2015 Case Digest: Ricalde v. People




G.R. No. 211002      January 21, 2015




TOPIC: Rape through sexual assault, gender-free rape, homosexual rape, variance doctrine



                On January 30, 2002, at around 2:00 a.m., XXX, then 10 years old, woke up as “he felt pain in his anus and stomach and something inserted in his anus.”  He saw that Ricalde, 31 years old, a distant relative and textmate of XXX, “fondled his penis.”  When Ricalde returned to the sofa, XXX ran toward his mother’s room to tell her what happened.  He also told his mother that Ricalde played with his sexual organ.

                RTC found Ricalde guilty beyond reasonable doubt of rape through sexual assault. CA affirmed the conviction but lowered the amount of damages.


  1. Whether or not XXX’s failure to categorically state that a penis was inserted into his anal orifice, or that he saw a penis or any object being inserted into his anal orifice fatal.
  2. Whether or not the absence of trauma in XXX’s anal orifice, or any trace of spermatozoa disproves penile or object penetration.
  3. Whether or not the invocation of “variance doctrine” is proper.
  4. Whether or not the slightest penetration into one’s anus constitutes rape through sexual assault.




                Rape under the second paragraph of Article 266-A is also known as “instrument or object rape,” “gender-free rape,” or “homosexual rape.”  The gravamen of rape through sexual assault is “the insertion of the penis into another person’s mouth or anal orifice, or any instrument or object, into another person’s genital or anal orifice.”


First issue: NO


                The Court held that a victim need not identify what was inserted into his or her genital or anal orifice for the court to find that rape through sexual assault was committed. In People v. Soria, the Court ruled that “We find it inconsequential that “AAA” could not specifically identify the particular instrument or object that was inserted into her genital.  What is important and relevant is that indeed something was inserted into her vagina.  To require “AAA” to identify the instrument or object that was inserted into her vagina would be contrary to the fundamental tenets of due process.”

Second issue: NO

                Petitioner’s reliance on the medico-legal’s finding of no recent trauma in XXX’s anal orifice, or any trace of spermatozoa, lacks merit.  The absence of spermatozoa in XXX’s anal orifice does not negate the possibility of an erection and penetration.  This result does not contradict the positive testimony of XXX that the lower courts found credible, natural, and consistent with human nature.

                The Court has explained the merely corroborative character of expert testimony and the possibility of convictions for rape based on the victim’s credible lone testimony.

Third issue:  NO


Variance doctrine

                Variance doctrine is provided under Sections 4 and 5 of Rule 120 of the Rules on Criminal Procedure. It states:

SEC. 4. Judgment in case of variance between allegation and proof.—When there is variance between the offense charged in the complaint or information and that proved, and the offense as charged is included in or necessarily includes the offense proved, the accused shall be convicted of the offense proved which is included in the offense charged, or of the offense charged which is included in the offense proved.

SEC. 5. When an offense includes or is included in another.—An offense charged necessarily includes the offense proved when some of the essential elements or ingredients of the former, as alleged in the complaint or information, constitute the latter.  And an offense charged is necessarily included in the offense proved, when the essential ingredients of the former continue or form part of those constituting the latter.

                In the instant case, no variance exists between what was charged and what was proven during trial.  The prosecution established beyond reasonable doubt all elements of the crime of rape through sexual assault.

Fourth issue: YES

                XXX testified that he “felt something was inserted into his anus.”  The slightest penetration into one’s sexual organ distinguishes an act of lasciviousness from the crime of rape.

               Long line of cases consider a woman’s private organ since most if not all existing jurisprudence on rape involves a woman victim.  Nevertheless, this interpretation can apply by analogy when the victim is a man in that the slightest penetration to the victim’s anal orifice consummates the crime of rape through sexual assault.

                The gravamen of the crime is the violation of the victim’s dignity.  The degree of penetration is not important.  Rape is an “assault on human dignity.”

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