Rape even if child victim consented to the sexual intercourse

Dear PAO,

I read in the news about a six-year-old by her father, who claimed that their sexual intercourse was with the child’ s consent. Does this mean that the father cannot be held liable for any crime?

Skylar Dear Skylar,

Republic Act (RA) 8353, or more commonly known as The Anti-Rape Law of 1997 penalizes any person who shall have carnal knowledge or commits sexual assault to a child below 12 years of age. To be specific, the law provides:

““Article 266-A. Rape: When And How Committed. - rape is committed:

“1) By a man who shall have carnal knowledge of a woman under any of the following circumstances:

“a) Through force, threat, or intimidation;

“b) When the offended party is deprived of reason or otherwise unconscious;

“c) By means of fraudulent machination or grave abuse of authority; and

“d) When the offended party is under twelve (12) years of age or is demented, even though none of the circumstances mentioned above be present.

“2) By any person who, under any of the circumstances mentioned in paragraph 1 hereof, shall commit an act of sexual assault by inserting his penis into another PERSON’S MOUTH OR ANAL ORIFICE, OR any instrument or object, into the GENITAL OR ANAL ORIFICE OF ANOTHER person.” (Emphasis supplied)

Based on the aforementioned provision of the law, the father you mentioned in your letter may be held liable for the crime of rape for having sexual intercourse with his six-year-old child. His claim that said child gave her consent to the sexual intercourse may not be validly used as a defense because a child of tender years could not have freely and voluntarily given consent to an act which they have no clear and objective understanding of. What is important is to establish that there was indeed sexual intercourse between them. In fact, our Supreme Court emphasized that the consent of a child in such a situation is immaterial:

“For a successful prosecution of rape, the following elements must be proved beyond reasonable doubt, to wit: (1) that the accused had carnal knowledge of the victim; and (2) that said act was accomplished: (a) through the use of force and intimidation, or (b) when the victim is deprived of reason or otherwise unconscious, or (c) when the victim is under 12 years of age or is demented.

“In this case, there was no issue that the accused-appellant was the father of AAA and that she was only 7 years old during the time material to this case, thus, qualifying the rape committed against AAA as one under Art. 266-A (I) (d) of R.A. No. 8353 or statutory rape where the child victim’s consent is immaterial because the law presumes that her young age makes her incapable of discerning good from evil. Its elements are as follows: (1) the offended party is under 12 years of age and (2) the accused has carnal knowledge of her, regardless of whether there was force, threat or intimidation; whether the victim was deprived of reason or consciousness; or whether it was done through fraud or grave abuse of authority. It is enough that the age of the victim is proven and that there was sexual intercourse.” ( Peoplevs.Tanglao, GR219963,June13,2018,Ponente: AssociateJusticeSamuelMartires)

We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.