Crim 2 Part 8

CRIMINAL LAW 2 (Atty.
Rene Rizza Bernardo-Mamburam) 1

3RD EXAM COVERAGE CASES and SPECIAL LAWS
PARRICIDE
PEOPLE v. JUMAWAN
Republic of the Philippines
SUPREME COURT
Baguio City
FIRST DIVISION
G.R. No. 187495
April 21, 2014
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
EDGAR JUMAWAN, Accused-Appellant.
DECISION
"Among the duties assumed by the husband are his duties to
love, cherish and protect his wife, to give her a home, to
provide her with the comforts and the necessities of life
within his means, to treat her kindly and not cruelly or
inhumanely. He is bound to honor her x x x; it is his duty not
only to maintain and support her, but also to protect her from
oppression and wrong."1
REYES, J.:
Husbands do not have property rights over their wives'
bodies. Sexual intercourse, albeit within the realm of
marriage, if not consensual, is rape. This is the clear State
policy expressly legislated in Section 266-A of the Revised
Penal Code (RPC), as amended by Republic Act (R.A.) No.
8353 or the Anti-Rape Law of 1997.
The Case
This is an automatic review2 of the Decision3 dated July 9,
2008 of the Court of Appeals (CA) in CA-G.R. CR-HC No.
00353, which affirmed the Judgment4 dated April 1, 2002 of
the Regional Trial Court (RTC) of Cagayan de Oro City,
Branch 19, in Criminal Case Nos. 99-668 and 99-669
convicting him to suffer the penalty of reclusion perpetua for
each count.
The Facts
Accused-appellant and his wife, KKK, 5 were married on
October 18, 1975. They Ii ved together since then and raised
their four (4) children6 as they put up several businesses
over the years.
On February 19, 1999, KKK executed a ComplaintAffidavit,7 alleging that her husband, the accused-appellant,
raped her at 3 :00 a.m. of December 3, 1998 at their
residence in Phase 2, Villa Ernesto, Gusa, Cagayan de Oro
City, and that on December 12, 1998, the accused-appellant
boxed her shoulder for refusing to have sex with him.
On June 11, 1999, the Office of the City Prosecutor of

Cagayan de Oro City issued a Joint Resolution, 8 finding
probable cause for grave threats, less serious physical
injuries and rape and recommending that the appropriate
criminal information be filed against the accused-appellant.
On July 16, 1999, two Informations for rape were filed before
the RTC respectively docketed as Criminal Case No. 996689 and Criminal Case No. 99-669.10 The Information in
Criminal Case No. 99-668 charged the accused-appellant as
follows:
That on or about 10:30 in the evening more or less, of
October 9, 1998, at Gusa, Cagayan de Oro City, Philippines,
and within the jurisdiction of this Honorable Court, the abovenamed accused by means of force upon person did then and
there wilfully, unlawfully and feloniously have carnal
knowledge with the private complainant, her [sic] wife,
against the latter[']s will.
Contrary to and in Violation of R.A. 8353, the Anti-Rape Law
of 1997.
Meanwhile the Information in Criminal Case No. 99-669
reads:
That on or about 10:30 in the evening more or less, of
October 10, 1998, at Gusa, Cagayan de Oro City,
Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused by means of force upon
person did then and there wilfully, unlawfully and feloniously
have carnal knowledge with the private complainant, her [sic]
wife, against the latter's will.
Contrary to and in Violation of R.A. 8353, the Anti-Rape Law
of 1997.
The accused-appellant was arrested upon a warrant issued
on July 21, 1999.11 On August 18, 1999, the accusedappellant filed a Motion for Reinvestigation,12 which was
denied by the trial court in an Order 13 dated August 19, 1999.
On even date, the accused-appellant was arraigned and he
entered a plea of not guilty to both charges.14
On January 10, 2000, the prosecution filed a Motion to Admit
Amended Information15 averring that the name of the private
complainant was omitted in the original informations for rape.
The motion also stated that KKK, thru a Supplemental
Affidavit dated November 15, 1999,16 attested that the true
dates of commission of the crime are October 16, 1998 and
October 1 7, 1998 thereby modifying the dates stated in her
previous complaint-affidavit. The motion was granted on
January 18, 2000.17 Accordingly, the criminal informations
were amended as follows:
Criminal Case No. 99-668:
That on or about October 16, 1998 at Gusa, Cagayan de Oro
City, Philippines, and within the jurisdiction of this Honorable
CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 2

have carnal knowledge with the private complainant, his
wife, [KKK], against the latter's will.
Contrary to and in violation of R.A. 8353, the Anti-Rape Law
of 1997.18
Criminal Case No. 99-669:
That on or about October 17, 1998 at Gusa, Cagayan de Oro
City, Philippines, and within the jurisdiction of this Honorable
have carnal knowledge with the private complainant, his
wife, [KKK], against the latter's will.
Contrary to and in violation of R.A. 8353, the Anti-Rape Law
of 1997.19
The accused-appellant was thereafter re-arraigned. He
maintained his not guilty plea to both indictments and a joint
trial of the two cases forthwith ensued.
Version of the prosecution
The prosecution's theory was anchored on the testimonies of
KKK, and her daughters MMM and 000, which, together with
pertinent physical evidence, depicted the following events:
KKK met the accused-appellant at the farm of her parents
where his father was one of the laborers. They got married
after a year of courtship.20 When their first child, MMM, was
born, KKK and the accused-appellant put up a sari-sari
store.21 Later on, they engaged in several other businesses
-trucking, rice mill and hardware. KKK managed the
businesses except for the rice mill, which, ideally, was under
the accused-appellant's supervision with the help of a trusted
employee. In reality, however, he merely assisted in the rice
mill business by occasionally driving one of the trucks to haul
goods.22
Accused-appellant's keenness to make the businesses
flourish was not as fervent as KKK's dedication. Even the
daughters observed the disproportionate labors of their
parents.23 He would drive the trucks sometimes but KKK was
the one who actively managed the businesses.24
She wanted to provide a comfortable life for their children;
he, on the other hand, did not acquiesce with that objective.25
In 1994, KKK and the accused-appellant bought a lot and
built a house in Villa Ernesto, Gusa, Cagayan de Oro
City.26 Three of the children transferred residence therein
while KKK, the accused-appellant and one of their sons
stayed in Dangcagan, Bukidnon. She shuttled between the
two places regularly and sometimes he accompanied
her.27 In 1998, KKK stayed in Gusa, Cagayan De Oro City
most of the days of the week. 28 On Wednesdays, she went to
Dangcagan, Bukidnon to procure supplies for the family

store and then returned to Cagayan de Oro City on the same
day.29
Conjugal intimacy did not really cause marital problems
between KKK and the accused-appellant. It was, in fact, both
frequent and fulfilling. He treated her well and she, of course,
responded with equal degree of enthusiasm.30However, in
1997, he started to be brutal in bed. He would immediately
remove her panties and, sans any foreplay, insert her penis
in her vagina. His abridged method of lovemaking was
physically painful for her so she would resist his sexual
ambush but he would threaten her into submission.31
In 1998, KKK and the accused-appellant started quarrelling
usually upon his complaint that she failed to attend to him.
She was preoccupied with financial problems in their
businesses and a bank loan. He wanted KKK to stay at
home because "a woman must stay in the house and only
good in bed (sic) x x x." She disobeyed his wishes and
focused on her goal of providing a good future for the
children.32
Four days before the subject rape incidents or on October
12, 1998, KKK and the accused-appellant slept together in
Cebu City where the graduation rites of their eldest daughter
were held. By October 14, 1998, the three of them were
already back in Cagayan de Oro City.33
On October 16, 1998, the accused-appellant, his wife KKK
and their children went about their nightly routine. The family
store in their residence was closed at about 9:00 p.m. before
supper was taken. Afterwards, KKK and the children went to
the girls' bedroom at the mezzanine of the house to pray the
rosary while the accused-appellant watched television in the
living room.34 OOO and MMM then prepared their beds.
Soon after, the accused-appellant fetched KKK and bid her
to come with him to their conjugal bedroom in the third floor
of the house. KKK complied.35
Once in the bedroom, KKK changed into a daster and fixed
the matrimonial bed but she did not lie thereon with the
accused-appellant and instead, rested separately in a cot
near the bed. Her reclusive behavior prompted him to ask
angrily: "[W]hy are you lying on the c{o]t[?]", and to
instantaneously order: "You transfer here [to] our bed."36
KKK insisted to stay on the cot and explained that she had
headache and abdominal pain due to her forthcoming
menstruation. Her reasons did not appease him and he got
angrier. He rose from the bed, lifted the cot and threw it
against the wall causing KKK to fall on the floor. Terrified,
KKK stood up from where she fell, took her pillow and
transferred to the bed.37
The accused-appellant then lay beside KKK and not before
long, expressed his desire to copulate with her by tapping his
fingers on her lap. She politely declined by warding off his
hand and reiterating that she was not feeling well.38

The accused-appellant again asserted his sexual yearning
and when KKK tried to resist by holding on to her panties, he
pulled them down so forcefully they tore on the sides. 39 KKK
stayed defiant by refusing to bend her legs.40
KKK and the children proceeded to the girls' bedroom and

prayed the rosary. KKK decided to spend the night in the
room's small bed and the girls were already fixing the
beddings when the accused-appellant entered.
The accused-appellant then raised KKK's daster,41 stretched

her legs apart and rested his own legs on them. She tried to
wrestle him away but he held her hands and succeeded in
penetrating her. As he was carrying out his carnal desires,
KKK continued to protest by desperately shouting: "[D]on 't
do that to me because I'm not feeling well."42
"Why are you sleeping in the room of our children", he asked

KKK, who responded that she preferred to sleep with the
children.54 He then scoffed: "Its alright if you will not go with
me, anyway, there are women that could be paid [P]
1,000.00." She dismissed his comment by turning her head
away after retorting: "So be it." After that, he left the room.55
With a concrete wall on one side and a mere wooden

partition
on
the
other
enclosing
the
spouses'
bedroom,43KKK's pleas were audible in the children's
bedroom where MMM lay awake.
He returned 15 minutes later56 and when KKK still refused to

go with him, he became infuriated. He lifted her from the bed
and attempted to carry her out of the room as he exclaimed:
"Why will you sleep here[?] Lets go to our bedroom." When
she defied him, he grabbed her short pants causing them to
tear apart.57 At this point, MMM interfered, "Pa, don't do that
to Mama because we are in front of you."58
Upon hearing her mother crying and hysterically shouting:

"Eddie, don't do that to me, have pity on me,"44 MMM woke
up 000 who prodded her to go to their parents' room. 45 MMM
hurriedly climbed upstairs, vigorously knocked on the door of
her parents' bedroom and inquired: "Pa, why is it that Mama
is crying?"46 The accused-appellant then quickly put on his
briefs and shirt, partly opened the door and said: "[D]on 't
interfere because this is a family trouble," before closing it
again.47 Since she heard her mother continue to cry, MMM
ignored his father's admonition, knocked at the bedroom
door again, and then kicked it.48 A furious accused-appellant
opened the door wider and rebuked MMM once more: "Don't
interfere us. Go downstairs because this is family trouble!"
Upon seeing KKK crouching and crying on top of the bed,
MMM boldly entered the room, approached her mother and
asked: "Ma, why are you crying?" before asking her father:
"Pa, what happened to Mama why is it that her underwear is
torn[?]"49
When MMM received no definite answers to her questions,
she helped her mother get up in order to bring her to the
girls' bedroom. KKK then picked up her tom underwear and
covered herself with a blanket.50 However, their breakout
from the room was not easy. To prevent KKK from leaving,
the accused-appellant blocked the doorway by extending his
arm towards the knob. He commanded KKK to "[S]tay here,
you sleep in our room," when the trembling KKK pleaded:
"Eddie, allow me to go out." He then held KKK's hands but
she pulled them back. Determined to get away, MMM leaned
against door and embraced her mother tightly as they
pushed their way out.51
In their bedroom, the girls gave their mother some water and
queried her as to what happened.52 KKK relayed: "[Y]our
father is an animal, a beast; he forced me to have sex with
him when I'm not feeling well." The girls then locked the door
and let her rest."53
The accused-appellant's aggression recurred the following
night. After closing the family store on October 17, 1998,
KKK and the children took their supper. The accusedappellant did not join them since, according to him, he
already ate dinner elsewhere. After resting for a short while,
The presence of his children apparently did not pacify the

accused-appellant who yelled, "[E]ven in front of you, I can
have sex of your mother [sic J because I'm the head of the
family." He then ordered his daughters to leave the room.
Frightened, the girls obliged and went to the staircase where
they subsequently heard the pleas of their helpless mother
resonate with the creaking bed.59
The episodes in the bedroom were no less disturbing. The
accused-appellant forcibly pulled KKK's short pants and
panties. He paid no heed as she begged, "[D]on 't do that to
me, my body is still aching and also my abdomen and I
cannot do what you wanted me to do [sic]. I cannot withstand
sex."60
After removing his own short pants and briefs, he flexed her
legs, held her hands, mounted her and forced himself inside
her. Once gratified, the accused-appellant put on his short
pants and briefs, stood up, and went out of the room
laughing as he conceitedly uttered: "[I]t s nice, that is what
you deserve because you are [a] flirt or fond of sex." He then
retreated to the masters' bedroom.61
Sensing that the commotion in their bedroom has ceased,
MMM and OOO scurried upstairs but found the door locked.
MMM pulled out a jalousie window, inserted her arm,
reached for the doorknob inside and disengaged its lock.
Upon entering the room, MMM and OOO found their mother
crouched on the bed with her hair disheveled. The girls
asked: "Ma, what happened to you, why are you crying?"
KKK replied: "[Y}our father is a beast and animal, he again
forced me to have sex with him even if I don't feel well. "62
Version of the defense
The defense spun a different tale. The accused-appellant's
father owned a land adjacent to that of KKK's father. He
came to know KKK because she brought food for her father's
laborers. When they got married on October 18, 1975, he

was a high school graduate while she was an elementary
graduate.
Their humble educational background did not deter them
from pursuing a comfortable life. Through their joint hard
work and efforts, the couple gradually acquired personal
properties and established their own businesses that
included a rice mill managed by the accused-appellant. He
also drove their trucks that hauled coffee, copra, or com.63
The accused-appellant denied raping his wife on October 16
and 17, 1998. He claimed that on those dates he was in
Dangcagan, Bukidnon, peeling com. On October 7, his truck
met an accident somewhere in Angeles Ranch, Maluko,
Manolo Fortich, Bukidnon. He left the truck by the roadside
because he had to attend MMM's graduation in Cebu on
October 12 with KKK. When they returned to Bukidnon on
October 14, he asked KKK and MMM to proceed to Cagayan
de Oro City and just leave him behind so he can take care of
the truck and buy some com.64
Ryle Equia (Equia), the spouses' driver from January 1996
until June 1999 corroborated the above claims. According to
him, on October 16, 1998, the accused-appellant was within
the vicinity of the rice mill's loading area in Dangcagan,
Bukidnon, cleaning a pick-up truck. On October 17, 1998, he
and the accused-appellant were in Dangcagan, Bukidnon,
loading sacks of com into the truck. They finished loading at
3 :00 p.m. The accused-appellant then instructed Equia to
proceed to Maluko, Manolo Fortich, Bukidnon while the
former attended a fiesta in New Cebu, Kianggat, Dangcagan,
Bukidnon. At around 4:00 p.m., Equia, together with a helper
and a mechanic, left for Maluko in order to tow the stalled
truck left there by the accused-appellant in October 7 and
thereafter, bring it to Cagayan de Oro City together with the
separate truck loaded with com.
They arrived in Maluko at 7:00 p.m. and it took them three
hours to turn the truck around and hoist it to the towing bar of
the other truck. At around 10:00 p.m., the accused-appellant
arrived in Maluko. The four of them then proceeded to
Cagayan de Oro City where they arrived at 3 :00 a.m. of
October 18, 1998. The accused-appellant went to Gusa
while the other three men brought the damaged truck to
Cugman.65
The accused-appellant asserted that KKK merely fabricated
the rape charges as her revenge because he took over the
control and management of their businesses as well as the
possession of their pick-up truck in January 1999. The
accused-appellant was provoked to do so when she failed to
account for their bank deposits and business earnings. The
entries in their bank account showed the balance
of P3,190,539.83 on October 31, 1996 but after only a month
or on November 30, 1996, the amount dwindled to a
measly P9,894.88.66 Her failure to immediately report to the
police also belies her rape allegations.67
KKK wanted to cover-up her extra-marital affairs, which the
accused-appellant gradually detected from her odd behavior.
While in Cebu on October 12, 1998 for MMM's graduation

rites, the accused-appellant and KKK had sexual
intercourse. He was surprised when his wife asked him to
get a napkin to wipe her after having sex. He tagged her
request as "high-tech," because they did not do the same
when they had sex in the past. KKK had also become
increasingly indifferent to him. When he arrives home, it was
an employee, not her, who opened the door and welcomed
him. She prettied herself and would no longer ask for his
permission whenever she went out.68
Bebs,69 KKK's cousin and a cashier in their Bukidnon store,
gave the accused-appellant several love letters purportedly
addressed to Bebs but were actually intended for KKK.70
KKK had more than ten paramours some of whom the
accused-appellant came to know as: Arsenio, Jong-Jong,
Joy or Joey, somebody from the military or the Philippine
National Police, another one is a government employee, a
certain Fernandez and three other priests.71 Several persons
told him about the paramours of his wife but he never
confronted her or them about it because he trusted her.72
What further confirmed his suspicions was the statement
made by OOO on November 2, 1998. At that time, OOO was
listening loudly to a cassette player. Since he wanted to
watch a television program, he asked OOO to tum down the
volume of the cassette player. She got annoyed, unplugged
the player, spinned around and hit the accused-appellant's
head with the socket. His head bled. An altercation between
the accused-appellant and KKK thereafter followed because
the latter took OOO's side. During the argument, OOO
blurted out that KKK was better off without the accusedappellant because she had somebody young, handsome,
and a businessman unlike the accused-appellant who
smelled bad, and was old, and ugly.73
KKK also wanted their property divided between them with
three-fourths thereof going to her and one-fourth to the
accused-appellant. However, the separation did not push
through
because
the
accused-appellant's
parents
intervened.74 Thereafter, KKK pursued legal separation from
the accused-appellant by initiating Barangay Case No.
00588-99 before the Office of Lupong Tagapamayapa of
Gusa, Cagayan de Oro City and thereafter obtaining a
Certificate to File Action dated February 18, 1999.75
Ruling of the RTC
In its Judgment76 dated April 1, 2002, the RTC sustained the
version proffered by the prosecution by giving greater weight
and credence to the spontaneous and straightforward
testimonies of the prosecution's witnesses. The trial court
also upheld as sincere and genuine the two daughters'
testimonies, as it is not natural in our culture for daughters to
testify against their own father for a crime such as rape if the
same was not truly committed.
The trial court rejected the version of the defense and found
unbelievable the accused-appellant's accusations of extra-

marital affairs and money squandering against KKK. The trial
court shelved the accused-appellant's alibi for being
premised on inconsistent testimonies and the contradicting
declarations of the other defense witness, Equia, as to the
accused-appellant's actual whereabouts on October 16,
1998. Accordingly, the RTC ruling disposed as follows:
WHEREFORE, the Court hereby finds accused Edgar
Jumawan "GUILTY" beyond reasonable doubt of the two (2)
separate charges of rape and hereby sentences him to suffer
the penalty of reclusion perpetua for each, to pay
complainant [P]50,000.00 in each case as moral damages,
indemnify complainant the sum of (P]75,000.00 in each
case, [P]50,000.00 as exemplary damages and to pay the
costs.
SO ORDERED.77
Ruling of the CA
In its Decision78 dated July 9, 2008, the CA affirmed in toto
the RTC ruling. The CA held that Section 14, Rule 110 of the
Rules of Criminal Procedure, sanctioned the amendment of
the original informations. Further, the accused-appellant was
not prejudiced by the amendment because he was rearraigned with respect to the amended informations.
The CA found that the prosecution, through the
straightforward testimony of the victim herself and the
corroborative declarations of MMM and OOO, was able to
establish, beyond reasonable doubt, all the elements of rape
under R.A. No. 8353. The accused-appellant had carnal
knowledge of KKK by using force and intimidation.
The CA also ruled that KKK's failure to submit herself to
medical examination did not negate the commission of the
crime because a medical certificate is not necessary to prove
rape.
The CA rejected the accused-appellant's argument that since
he and KKK are husband and wife with mutual obligations of
and right to sexual intercourse, there must be convincing
physical evidence or manifestations of the alleged force and
intimidation used upon KKK such as bruises. The CA
explained that physical showing of external injures is not
indispensable to prosecute and convict a person for rape;
what is necessary is that the victim was forced to have
sexual intercourse with the accused.
In addition, the CA noted that the fact that KKK and the
accused-appellant are spouses only reinforces the
truthfulness of KKK's accusations because no wife in her
right mind would accuse her husband of having raped her if it
were not true.
The delay in the filing of the rape complaint was sufficiently
explained by KKK when she stated that she only found out
that a wife may charge his husband with rape when the fiscal
investigating her separate complaint for grave threats and
physical injuries told her about it.
Finally, the CA dismissed the accused-appellant's alibi for

lack of convincing evidence that it was physically impossible
for him to be at his residence in Cagayan de Oro City at the
time of the commission of the crimes, considering that
Dangcagan, Bukidnon, the place where he allegedly was, is
only about four or five hours away. Accordingly, the decretal
portion of the decision read:
WHEREFORE, in the light of the foregoing, the appealed
Judgment is hereby AFFIRMED.
SO ORDERED.79
Hence, the present review. In the Court Resolution80 dated
July 6, 2009, the Court notified the parties that, if they so
desire, they may file their respective supplemental briefs. In
a Manifestation and Motion81 dated September 4, 2009, the
appellee, through the Office of the Solicitor General,
expressed that it intends to adopt its Brief before the CA. On
April 16, 2012, the accused-appellant, through counsel, filed
his Supplemental Brief, arguing that he was not in Cagayan
de Oro City when the alleged rape incidents took place, and
the presence of force, threat or intimidation is negated by: (a)
KKK's voluntary act of going with him to the conjugal
bedroom on October 16, 1998; (b) KKK's failure to put up
resistance or seek help from police authorities; and ( c) the
absence of a medical certificate and of blood traces in KKK's
panties.82
Our Ruling
I. Rape and marriage: the historical connection
The evolution of rape laws is actually traced to two ancient
English practices of 'bride capture' whereby a man
conquered a woman through rape and 'stealing an heiress'
whereby a man abducted a woman and married her.83
The rape laws then were intended not to redress the
violation of the woman's chastity but rather to punish the act
of obtaining the heiress' property by forcible marriage 84 or to
protect a man's valuable interest in his wife's chastity or her
daughter's virginity.85
If a man raped an unmarried virgin, he was guilty of stealing
her father's property and if a man raped his wife, he was
merely using his property.86
Women were subjugated in laws and society as objects or
goods and such treatment was justified under three
ideologies.
Under the chattel theory prevalent during the 6th century, a
woman was the property of her father until she marries to
become the property of her husband. 87 If a man abducted an
unmarried woman, he had to pay the owner, and later buy
her from the owner; buying and marrying a wife were
synonymous.88

From the 11th century to the 16th century, a woman lost her
identity upon marriage and the law denied her political power
and status under the feudal doctrine of coverture.89
A husband had the right to chastise his wife and beat her if
she misbehaved, allowing him to bring order within the
family.90
This was supplanted by the marital unity theory, which
espoused a similar concept. Upon marrying, the woman
becomes one with her husband. She had no right to make a
contract, sue another, own personal property or write a will.91
II. The marital exemption rule
In the 17th century, Sir Matthew Hale (Hale), a Chief Justice
in England, conceived the irrevocable implied consent theory
that would later on emerge as the marital exemption rule in
rape. He stated that:
[T]he husband cannot be guilty of a rape committed by
himself upon his lawful wife, for by their mutual matrimonial
consent and contract the wife hath given up herself in this
kind unto her husband, which she cannot retract.92
The rule was observed in common law countries such as the
United States of America (USA) and England. It gives legal
immunity to a man who forcibly sexually assaults his wife, an
act which would be rape if committed against a woman not
his wife.93 In those jurisdictions, rape is traditionally defined
as "the forcible penetration of the body of a woman who is
not the wife of the perpetrator."94
The first case in the USA that applied the marital exemption
rule was Commonwealth v. Fogerty95 promulgated in 1857.
The Supreme Judicial Court of Massachusetts pronounced
that it would always be a defense in rape to show marriage
to the victim. Several other courts adhered to a similar
rationale with all of them citing Hale's theory as basis.96
The rule was formally codified in the Penal Code of New
York in 1909. A husband was endowed with absolute
immunity from prosecution for the rape of his wife. 97 The
privilege was personal and pertained to him alone. He had
the marital right to rape his wife but he will be liable when he
aids or abets another person in raping her.98
In the 1970s, the rule was challenged by women's
movements in the USA demanding for its abolition for being
violative of married women's right to be equally protected
under rape laws.99
In 1978, the rule was qualified by the Legislature in New York
by proscribing the application of the rule in cases where the
husband and wife are living apart pursuant to a court order
"which by its terms or in its effects requires such living apart,"
or a decree, judgment or written agreement of separation.100
In 1983, the marital exemption rule was abandoned in New

York when the Court of Appeals of New York declared the
same unconstitutional in People v. Liberta101 for lack of
rational basis in distinguishing between marital rape and
non-marital rape. The decision, which also renounced Hale's
irrevocable implied consent theory, ratiocinated as follows:
We find that there is no rational basis for distinguishing
between marital rape and nonmarital rape. The various
rationales which have been asserted in defense of the
exemption are either based upon archaic notions about the
consent and property rights incident to marriage or are
simply unable to withstand even the slightest scrutiny. We
therefore declare the marital exemption for rape in the New
York statute to be unconstitutional.
Lord Hale's notion of an irrevocable implied consent by a
married woman to sexual intercourse has been cited most
frequently in support of the marital exemption. x x x Any
argument based on a supposed consent, however, is
untenable. Rape is not simply a sexual act to which one
party does not consent. Rather, it is a degrading, violent act
which violates the bodily integrity of the victim and frequently
causes severe, long-lasting physical and psychic harm x x x.
To ever imply consent to such an act is irrational and absurd.
Other than in the context of rape statutes, marriage has
never been viewed as giving a husband the right to coerced
intercourse on demand x x x. Certainly, then, a marriage
license should not be viewed as a license for a husband to
forcibly rape his wife with impunity. A married woman has the
same right to control her own body as does an unmarried
woman x x x. If a husband feels "aggrieved" by his wife's
refusal to engage in sexual intercourse, he should seek relief
in the courts governing domestic relations, not in "violent or
forceful self-help x x x."
The other traditional justifications for the marital exemption
were the common-law doctrines that a woman was the
property of her husband and that the legal existence of the
woman was "incorporated and consolidated into that of the
husband x x x." Both these doctrines, of course, have long
been rejected in this State. Indeed, "[nowhere] in the
common-law world - [or] in any modem society - is a woman
regarded as chattel or demeaned by denial of a separate
legal identity and the dignity associated with recognition as a
whole human being x x x."102 (Citations omitted)
By 1993, marital rape was a crime in all 50 states, with 17 of
them, as well as the District of Columbia, outlawing the act
without exemptions. Meanwhile, the 33 other states granted
some exemptions to a husband from prosecution such as
when the wife is mentally or physically impaired,
unconscious, asleep, or legally unable to consent.103
III. Marital Rape in the Philippines
Interestingly, no documented case on marital rape has ever
reached this Court until now. It appears, however, that the
old provisions of rape under Article 335 of the RPC adhered
to Hale's irrevocable implied consent theory, albeit in a

limited form. According to Chief Justice Ramon C.
Aquino,104 a husband may not be guilty of rape under Article
335 of Act No. 3815 but, in case there is legal separation, the
husband should be held guilty of rape if he forces his wife to
submit to sexual intercourse.105
In 1981, the Philippines joined 180 countries in ratifying the
United Nations Convention on the Elimination of all Forms of
Discrimination Against Women (UN-CEDAW).106 Hailed as
the first international women's bill of rights, the CEDAW is
the first major instrument that contains a ban on all forms of
discrimination against women. The Philippines assumed the
role of promoting gender equality and women's
empowerment as a vital element in addressing global
concerns.107 The country also committed, among others, to
condemn discrimination against women in all its forms, and
agreed to pursue, by all appropriate means and without
delay, a policy of eliminating discrimination against women
and, to this end, undertook:
(a) To embody the principle of the equality of men and
women in their national constitutions or other appropriate
legislation if not yet incorporated therein and to ensure,
through law and other appropriate means, the practical
realization of this principle;
(b) To adopt appropriate legislative and other measures,
including sanctions where appropriate, prohibiting all
discrimination against women;
xxxx
(f) To take all appropriate measures, including legislation, to
modify or abolish existing laws, regulations, customs and
practices which constitute discrimination against women;
(g) To repeal all national penal provisions which constitute
discrimination against women.108
In compliance with the foregoing international commitments,
the Philippines enshrined the principle of gender equality in
the 1987 Constitution specifically in Sections 11 and 14 of
Article II thereof, thus:
Sec. 11. The State values the dignity of every human person
and guarantees full respect for human rights.
xxxx
Sec. 14. The State recognizes the role of women in nationbuilding, and shall ensure the fundamental equality before
the law of women and men. The Philippines also acceded to
adopt and implement the generally accepted principles of
international law such as the CEDA W and its allied
issuances, viz:
Article II, Section 2. The Philippines renounces war as an
instrument of national policy, and adopts the generally
accepted principles of international law as part of the law of
the land and adheres to the policy of peace, equality, justice,

freedom, cooperation, and amity with all nations. (Emphasis
ours)
The Legislature then pursued the enactment of laws to
propagate gender equality. In 1997, R.A. No. 8353
eradicated the stereotype concept of rape in Article 335 of
the RPC.109 The law reclassified rape as a crime against
person and removed it from the ambit of crimes against
chastity. More particular to the present case, and perhaps
the law's most progressive proviso is the 2nd paragraph of
Section 2 thereof recognizing the reality of marital rape and
criminalizing its perpetration, viz:
Article 266-C. Effect of Pardon. - The subsequent valid
marriage between the offended party shall extinguish the
criminal action or the penalty imposed.
In case it is the legal husband who is the offender, the
subsequent forgiveness by the wife as the offended party
shall extinguish the criminal action or the penalty: Provided,
That the crime shall not be extinguished or the penalty shall
not be abated if the marriage is void ab initio.
Read together with Section 1 of the law, which unqualifiedly
uses the term "man" in defining rape, it is unmistakable that
R.A. No. 8353 penalizes the crime without regard to the
rapist's legal relationship with his victim, thus:
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.
The explicit intent to outlaw marital rape is deducible from
the records of the deliberations of the 10th Congress on the
law's progenitor's, House Bill No. 6265 and Senate Bill No.
650. In spite of qualms on tagging the crime as 'marital rape'
due to conservative Filipino impressions on marriage, the
consensus of our lawmakers was clearly to include and
penalize marital rape under the general definition of 'rape,'
viz:
MR. DAMASING: Madam Speaker, Your Honor, one more
point

of clarification in the House version on Anti-Rape Bill, House
Bill No. 6265, we never agreed to marital rape. But under
Article 266-C, it says here: "In case it is the legal husband
who is the offender... " Does this presuppose that there is
now marital rape? x x x.
MR. LARA: x x x [I]n this jurisdiction, well, I only have a
limited, very limited 17 years of private practice in the legal
profession, Madam Speaker, and I believe that I can put at
stake my license as a lawyer in this jurisdiction there is no
law that prohibits a husband from being sued by the wife for
rape. Even jurisprudence, we don't have any jurisprudence
that prohibits a wife from suing a husband. That is why even
if we don't provide in this bill expanding the definition of
crime that is now being presented for approval, Madam
Speaker, even if we don't provide here for marital rape, even
if we don't provide for sexual rape, there is the right of the
wife to go against the husband. The wife can sue the
husband for marital rape and she cannot be prevented from
doing so because in this jurisdiction there is no law that
prohibits her from doing so. This is why we had to put
second paragraph of 266-C because it is the belief of many
of us. x x x, that if it is true that in this jurisdiction there is
marital rape even if we don't provide it here, then we must
provide for something that will unify and keep the cohesion
of the family together that is why we have the second
paragraph.
MR. DAMASING: Madam Speaker, Your Honor, under the
House version specifically House Bill No. 6265 our provision
on a husband forcing the wife is not marital rape, it is marital
sexual assault.
MR. LARA: That is correct, Madam Speaker.
MR. DAMASING: But here it is marital rape because there is
no crime of sexual assault. So, Your Honor, direct to the
point, under Article 266-C, is it our understanding that in the
second paragraph, quote: "In case it is the legal husband
who is the offender, this refers to marital rape filed against
the husband? Is that correct?
xxxx
MR. DAMASING: Madam Speaker, Your Honor, I am in favor
of this. I am in favor of punishing the husband who forces the
wife even to 30 years imprisonment. But please do not call it
marital rape, call it marital sexual assault because of the
sanctity of marriage. x x x.110 (Emphasis ours)
HON. APOSTOL: In our version, we did not mention marital
rape but marital rape is not excluded.
HON. ROCO: Yeah. No. But I think there is also no specific
mention.
HON. APOSTOL: No. No. No. Silent lang 'yung marital rape.
xxxx
HON. ROCO: xx x [I]f we can retain the effect of pardon,
then this marital rape can be implicitly contained in the
second paragraph. x x x So marital rape actually was in the
House version x x x. But it was not another definition of rape.
You will notice, it only says, that because you are the lawful
husband does not mean that you cannot commit rape.
Theoretically, I mean, you can beat up your wife until she's
blue. And if the wife complains she was raped, I guess that, I
mean, you just cannot raise the defense x x x[:] I am the
husband. But where in the marriage contract does it say that
I can beat you up? That's all it means. That is why if we stop
referring to it as marital rape, acceptance is easy. Because
parang ang marital rape, married na nga kami. I cannot have
sex. No, what it is saying is you're [the] husband but you
cannot beat me up. x x x. That's why to me it's not alarming.
It was just a way of saying you're [the] husband, you cannot
say when I am charged with rape x x x.
PRESIDING OFFICER SHAHAN!: All right, so how do you
propose it if we put it in[?]
MR. DAMASING: So if the husband is guilty of sexual

assault, what do you call- it?
HON. ROCO: x x x [A]ll we are saying [is] that if you are the
lawful husband does not mean you can have carnal
knowledge by force[,] threat or intimidation or by depriving
your wife reason, a grave abuse of authority, I don't know
how that cannot apply. Di ba yung, or putting an instrument
into the, yun ang sinasabi ko lang, it is not meant to have
another classification of rape. It is all the same definition x x
x.
MR. LARA: Sexual assault, Madam Speaker.
xxxx
MR. DAMASING: There is no crime of sexual assault, Your

Honor, we have already stated that. Because under 1 and 2
it is all denominated as rape, there is no crime of sexual
assault. That is why I am sorry that our House version which
provided for sexual assault was not carried by the Senate
version because all sexual crimes under this bicameral
conference committee report are all now denominated as
rape whether the penalty is from reclusion perpetua to death
or whether the penalty is only prision mayor. So there is
marital rape, Your Honor, is that correct?
HON.ROCO: What is 266-F? x x x. Now if we can retain 266F x x x, we can say that this rule is implicit already in the first
proviso. It implies na there is an instance when a husband
can be charged [with] rape x x x.
MR. LARA: No, Madam Speaker, not entirely, no. The

answer is no.
HON. ROXAS: Otherwise, silent na.

HON. ROCO: Otherwise, we are silent na. So parang idelete natin ito. But it is understood that this rule of evidence
is now transport[ed], put into 266-F, the effect of pardon.
PRESIDING OFFICER APOSTOL: We will retain this effect
of pardon. We will remove marital rape.
HON. ROCO: No, yun ang, oo we will remove this one on
page 3 but we will retain the one on page 8, the effect of
pardon. x x x [I]t is inferred but we leave it because after all it
is just a rule of evidence. But I think we should understand
that a husband cannot beat at his wife to have sex. Di ha? I
think that should be made clear. x x x.
xxxx
HON. ROCO: x x x [W]e are not defining a crime of marital
rape. All we are saying is that if you're [the] legal husband,
Jesus Christ, don't beat up to have sex. I almost want, you
are my wife, why do you have to beat me up.
So, ganoon. So, if we both justify it that way in the Report as
inferred in proviso, I mean, we can face up, I hope, to the
women and they would understand that it is half achieved.
HON. ZAMORA: I think, Raul, as long as we understand that
we are not defining or creating a new crime but instead, we
are just defining a rule of evidence. x x x.
HON. ROCO: Then, in which case we may just want to
clarify as a rule of evidence the fact that he is husband is
not, does not negate.111
CHAIRMAN LARA: x x x We all agree on the substance of
the point in discussion. The only disagreement now is where
to place it. Let us clear this matter. There are two
suggestions now on marital rape. One is that it is rape if it is
done with force or intimidation or any of the circumstances
that would define rape x x x immaterial. The fact that the
husband and wife are separated does not come into the
picture. So even if they are living under one roof x x x for as
long as the attendant circumstances of the traditional rape is
present, then that is rape.112
PRESIDING OFFICER ANGARA-CASTILLO: Mr. Chairman,
x x x [t]his provision on marital rape, it does not actually
change the meaning of rape. It merely erases the doubt in
anybody's mind, whether or not rape can indeed be
committed by the husband against the wife. So the bill really
says, you having been married to one another is not a legal
impediment. So I don't really think there is any need to
change the concept of rape as defined presently under the
revised penal code. This do[es] not actually add anything to
the definition of rape. It merely says, it is merely clarificatory.
That if indeed the wife has evidence to show that she was
really brow beaten, or whatever or forced or intimidated into
having sexual intercourse against her will, then the crime of
rape has been committed against her by the husband,
notwithstanding the fact that they have been legally married.
It does not change anything at all, Mr. Chairman.
PRESIDING OFFICER APOSTOL: Yes, I think, there is no

change on this x x x.113
The paradigm shift on marital rape in the Philippine
jurisdiction is further affirmed by R.A. No. 9262,114 which
regards rape within marriage as a form of sexual violence
that may be committed by a man against his wife within or
outside the family abode, viz:
Violence against women and their children refers to any act
or a series of acts committed by any person against a
woman who is his wife, former wife, or against a woman with
whom the person has or had a sexual or dating relationship,
or with whom he has a common child, or against her child
whether legitimate or illegitimate, within or without the family
abode, which result in or is likely to result in. physical,
sexual, psychological harm or suffering, or economic abuse
including threats of such acts, battery, assault, coercion,
harassment or arbitrary deprivation of liberty. It includes, but
is not limited to, the following acts:
A. "Physical Violence" refers to acts that include bodily or
physical harm;
B. "Sexual violence" refers to an act which is sexual in
nature, committed against a woman or her child. It includes,
but is not limited to:
a) rape, sexual harassment, acts of lasciviousness, treating
a woman or her child as a sex object, making demeaning
and sexually suggestive remarks, physically attacking the
sexual parts of the victim's body, forcing her/him to watch
obscene publications and indecent shows or forcing the
woman or her child to do indecent acts and/or make films
thereof, forcing the wife and mistress/lover to live in the
conjugal home or sleep together in the same room with the
abuser;
b) acts causing or attempting to cause the victim to engage
in any sexual activity by force, threat of force, physical or
other harm or threat of physical or other harm or coercion;
c) Prostituting the woman or child.
Statistical figures confirm the above characterization.
Emotional and other forms of non-personal violence are the
most common type of spousal violence accounting for 23%
incidence among ever-married women. One in seven evermarried women experienced physical violence by their
husbands while eight percent (8%) experienced sexual
violence.115
IV. Refutation of the accused-appellant's arguments
The crux of the accused-appellant's plea for acquittal mirrors
the irrevocable implied consent theory. In his appeal brief
before the CA, he posits that the two incidents of sexual
intercourse, which gave rise to the criminal charges for rape,
were theoretically consensual, obligatory even, because he

and the victim, KKK, were a legally married and cohabiting
couple. He argues that consent to copulation is presumed
between cohabiting husband and wife unless the contrary is
proved.
children in the household, dowry-related violence, marital

rape, female genital mutilation and other traditional practices
harmful to women, non-spousal violence and violence
related to exploitation;119 (Emphasis ours)
The accused-appellant further claims that this case should

be viewed and treated differently from ordinary rape cases
and that the standards for determining the presence of
consent or lack thereof must be adjusted on the ground that
sexual community is a mutual right and obligation between
husband and wife.116
Clearly, it is now acknowledged that rape, as a form of

sexual violence, exists within marriage. A man who
penetrates her wife without her consent or against her will
commits sexual violence upon her, and the Philippines, as a
State Party to the CEDA W and its accompanying
Declaration, defines and penalizes the act as rape under
R.A. No. 8353.
The contentions failed to muster legal and rational merit.

The ancient customs and ideologies from which the
irrevocable implied consent theory evolved have already
been superseded by modem global principles on the equality
of rights between men and women and respect for human
dignity established in various international conventions, such
as the CEDAW. The Philippines, as State Party to the
CEDAW, recognized that a change in the traditional role of
men as well as the role of women in society and in the family
is needed to achieve full equality between them. Accordingly,
the country vowed to take all appropriate measures to modify
the social and cultural patterns of conduct of men and
women, with a view to achieving the elimination of
prejudices, customs and all other practices which are based
on the idea of the inferiority or the superiority of either of the
sexes or on stereotyped roles for men and women.117 One of
such measures is R.A. No 8353 insofar as it eradicated the
archaic notion that marital rape cannot exist because a
husband has absolute proprietary rights over his wife's body
and thus her consent to every act of sexual intimacy with him
is always obligatory or at least, presumed.
Another important international instrument on gender
equality is the UN Declaration on the Elimination of Violence
Against Women, which was Promulgated118 by the UN
General Assembly subsequent to the CEDA W. The
Declaration, in enumerating the forms of gender-based
violence that constitute acts of discrimination against
women, identified 'marital rape' as a species of sexual
violence, viz:
Article 1
For the purposes of this Declaration, the term "violence
against women" means any act of gender-based violence
that results in, or is likely to result in, physical, sexual or
psychological harm or suffering to women, including threats
of such acts, coercion or arbitrary deprivation of liberty,
whether occurring in public or in private life.
Article 2
Violence against women shall be understood to encompass,
but not be limited to, the following:
(a) Physical, sexual and psychological violence occurring in
the family, including battering, sexual abuse of female
A woman is no longer the chattel-antiquated practices

labeled her to be. A husband who has sexual intercourse
with his wife is not merely using a property, he is fulfilling a
marital consortium with a fellow human being with dignity
equal120 to that he accords himself. He cannot be permitted
to violate this dignity by coercing her to engage in a sexual
act without her full and free consent. Surely, the Philippines
cannot renege on its international commitments and
accommodate conservative yet irrational notions on marital
activities121 that have lost their relevance in a progressive
society.
It is true that the Family Code,122 obligates the spouses to
love one another but this rule sanctions affection and sexual
intimacy, as expressions of love, that are both spontaneous
and mutual123 and not the kind which is unilaterally exacted
by force or coercion.
Further, the delicate and reverent nature of sexual intimacy
between a husband and wife excludes cruelty and coercion.
Sexual intimacy brings spouses wholeness and oneness. It
is a gift and a participation in the mystery of creation. It is a
deep sense of spiritual communion. It is a function which
enlivens the hope of procreation and ensures the
continuation of family relations. It is an expressive interest in
each other's feelings at a time it is needed by the other and it
can go a long way in deepening marital relationship.124 When
it is egoistically utilized to despoil marital union in order to
advance a felonious urge for coitus by force, violence or
intimidation, the Court will step in to protect its lofty purpose,
vindicate justice and protect our laws and State policies.
Besides, a husband who feels aggrieved by his indifferent or
uninterested wife's absolute refusal to engage in sexual
intimacy may legally seek the court's intervention to declare
her psychologically incapacitated to fulfill an essential marital
obligation.125 But he cannot and should not demand sexual
intimacy from her coercively or violently.
Moreover, to treat marital rape cases differently from nonmarital rape cases in terms of the elements that constitute
the crime and in the rules for their proof, infringes on the
equal protection clause. The Constitutional right to equal
protection of the laws126 ordains that similar subjects should
not be treated differently, so as to give undue favor to some
and unjustly discriminate against others; no person or class
of persons shall be denied the same protection of laws,

which is enjoyed, by other persons or other classes in like
circumstances.127
cases and found that no reversible error can be imputed to

the conviction meted the accused-appellant.
As above discussed, the definition of rape in Section 1 of

R.A. No. 8353 pertains to: (a) rape, as traditionally known;
(b) sexual assault; and (c) marital rape or that where the
victim is the perpetrator's own spouse. The single definition
for all three forms of the crime shows that the law does not
distinguish between rape committed in wedlock and those
committed without a marriage. Hence, the law affords
protection to women raped by their husband and those raped
by any other man alike.
The evidence for the prosecution was

based on credible witnesses who gave
equally credible testimonies
The posture advanced by the accused-appellant arbitrarily

discriminates against married rape victims over unmarried
rape victims because it withholds from married women raped
by their husbands the penal redress equally granted by law
to all rape victims.
In rape cases, the conviction of the accused rests heavily on

the credibility of the victim. Hence, the strict mandate that all
courts must examine thoroughly the testimony of the
offended party. While the accused in a rape case may be
convicted solely on the testimony of the complaining witness,
courts are, nonetheless, duty-bound to establish that their
reliance on the victim's testimony is justified. Courts must
ensure that the testimony is credible, convincing, and
otherwise consistent with human nature. If the testimony of
the complainant meets the test of credibility, the accused
may be convicted on the basis thereof.131
Further, the Court adheres to and hereby adopts the

rationale in Liberta in rejecting the argument akin to those
raised by herein accused-appellant. A marriage license
should not be viewed as a license for a husband to forcibly
rape his wife with impunity. A married woman has the same
right to control her own body, as does an unmarried
woman.128 She can give or withhold her consent to a sexual
intercourse with her husband and he cannot unlawfully
wrestle such consent from her in case she refuses.
It is settled that the evaluation by the trial court of the

credibility of witnesses and their testimonies are entitled to
the highest respect. This is in view of its inimitable
opportunity to directly observe the witnesses and their
deportment, conduct and attitude, especially during crossexamination. Thus, unless it is shown that its evaluation was
tainted with arbitrariness or certain facts of substance and
value have been plainly overlooked, misunderstood, or
misapplied, the same will not be disturbed on appeal.132
Lastly, the human rights of women include their right to have

control over and decide freely and responsibly on matters
related to their sexuality, including sexual and reproductive
health,
free
of
coercion,
discrimination
and
violence.129 Women do not divest themselves of such right by
contracting marriage for the simple reason that human rights
are inalienable.130
After approximating the perspective of the trial court thru a

meticulous scrutiny of the entire records of the trial
proceedings and the transcript of each witnesses' testimony,
the Court found no justification to disturb its findings.
In fine, since the law does not separately categorize marital

rape and non-marital rape nor provide for different definition
or elements for either, the Court, tasked to interpret and
apply what the law dictates, cannot trudge the forbidden
sphere of judicial legislation and unlawfully divert from what
the law sets forth. Neither can the Court frame distinct or
stricter evidentiary rules for marital rape cases as it would
inequitably burden its victims and unreasonably and
irrationally classify them differently from the victims of nonmarital rape.
Indeed, there exists no legal or rational reason for the Court
to apply the law and the evidentiary rules on rape any
differently if the aggressor is the woman's own legal
husband. The elements and quantum of proof that support a
moral certainty of guilt in rape cases should apply uniformly
regardless of the legal relationship between the accused and
his accuser.
Thus, the Court meticulously reviewed the present case in
accordance with the established legal principles and
evidentiary policies in the prosecution and resolution of rape
Rather, the Court observed that KKK and her testimony were
both credible and spontaneous. Hailed to the witness stand
on six separate occasions, KKK never wavered neither did
her statements vacillate between uncertainty and certitude.
She remained consistent, categorical, straightforward, and
candid during the rigorous cross-examination and on rebuttal
examination, she was able to convincingly explain and
debunk the allegations of the defense.
She vividly recounted how the accused-appellant forced her
to have sex with him despite her refusal on October 16,
1998. He initially ordered her to sleep beside him in their
conjugal bed by violently throwing the cot where she was
resting. In order not to aggravate his temper, KKK obeyed.
On the bed, he insinuated for them to have sex. When she
rejected his advances due to abdominal pain and headache,
his request for intimacy transformed into a stubborn demand.
Unyielding, KKK held her panties but the accused-appellant
forcibly pulled them down. The tug caused the small clothing
to tear apart. She reiterated that she was not feeling well and
begged him to stop. But no amount of resistance or begging
subdued him. He flexed her two legs apart, gripped her
hands, mounted her, rested his own legs on hers and
inserted his penis into her vagina. She continued pleading
but he never desisted.133

Her accurate recollection of the second rape incident on
October 1 7, 1998 is likewise unmistakable. After the
appalling episode in the conjugal bedroom the previous
night, KKK decided to sleep in the children's bedroom. While
her daughters were fixing the beddings, the accusedappellant barged into the room and berated her for refusing
to go with him to their conjugal bedroom. When KKK insisted
to stay in the children's bedroom, the accused-appellant got
angry and pulled her up. MMM's attempt to pacify the
accused-appellant further enraged him. He reminded them
that as the head of the family he could do whatever he wants
with his wife. To demonstrate his role as patriarch, he
ordered the children to go out of the room and thereafter
proceeded to force KKK into sexual intercourse. He forcibly
pulled down her short pants and panties as KKK begged
"Dont do that to me, my body is still aching and also my
abdomen and I cannot do what you wanted me to do. I
cannot withstand sex."134 But her pleas fell on deaf ears. The
accused-appellant removed his shorts and briefs, spread
KKK's legs apart, held her hands, mounted her and inserted
his penis into her vagina. After gratifying himself, he got
dressed, left the room as he chuckled: "Its nice, that is what
you deserve because you are [a] flirt or fond of sex."135
Entrenched is the rule that in the prosecution of rape cases,
the essential element that must be proved is the absence of
the victim's consent to the sexual congress.136
Under the law, consent is absent when: (a) it was wrestled
from the victim by force, threat or intimidation, fraudulent
machinations or grave abuse of authority; or (b) the victim is
incapable of giving free and voluntary consent because
he/she is deprived of reason or otherwise unconscious or
that the offended party is under 12 years of age or is
demented.
Contrary to the accused-appellant's asseverations, KKK's
consent was wrestled from her through force and intimidation
both of which were established beyond moral certainty by
the prosecution through the pertinent testimony of KKK, viz:
On the October 16, 1998 rape incident:
(Direct Examination)
ATTY. LARGO:
Q So, while you were already lying on the bed together with
your husband, do you remember what happened?
A He lie down beside me and asked me to have sex with
him.
Q How did he manifest that he wanted to have sex with you?
A He put his hand on my lap and asked me to have sex with
him but I warded off his hand.
Q Can you demonstrate to this Court how did he use his

hand?
A Yes. "witness demonstrating on how the accused used his
finger by touching or knocking her lap which means that he
wanted to have sex."
Q So, what did you do after that?
A I warded off his hand and refused because I was not
feeling well. (at this juncture the witness is sobbing)
Q So, what did your husband do when you refused him to
have sex with you?
A He insisted and he pulled my pantie forcibly, that is why my
pantie [sic] was tom.
Q Why, what did you do when he started to pull your pantie
[sic]?
A I resisted and tried to hold my pantie [sic] but I failed,
because he is so strong.
xx xx
Q So, when your pantie [sic] was tom by your husband, what
else did he do?
A He flexed my two legs and rested his two legs on my legs.
Q So after that what else did he do?
A He succeeded in having sex with me because he held my
two hands no matter how I wrestled but I failed because he
is stronger than me.
COURT: Make it of record that the witness is sobbing while
she is giving her testimony.
ATTY. LARGO: (To the witness cont'ng.)
Q So, what did you do when your husband already stretched
your two legs and rode on you and held your two hands?
A I told him, "don't do that because I'm not feeling well and
my whole body is aching."
Q How did you say that to your husband?
A I told him, "don't do that to me because I'm not feeling
well."
Q Did you say that in the manner you are saying now?
xxxx

A I shouted when I uttered that words.
On the October 17, 1998 rape incident:
xxxx
(Direct Examination)
Q Was your husband able to consummate his desire?
ATTY. LARGO
xxxx
Q So, after your children went out of the room, what

transpired?
A Yes, sir, because I cannot do anything.137

(Cross-Examination)
ATTY. AMARGA;
Q Every time you have sex with your husband it was your
husband normally remove your panty?
A Yes, Sir.
Q It was not unusual for your husband then to remove your
panty because according to you he normally do that if he
have sex with you?
A Yes, Sir.
Q And finally according to you your husband have sex with
you?
A Yes, Sir because he forcibly used me in spite of holding my
panty because I don't want to have sex with him at that time.
Q You did not spread your legs at that time when he
removed your panty?
A Yes, Sir.
Q Meaning, your position of your legs was normal during that
time?
A I tried to resist by not flexing my legs.
xxxx
Q At that time when your husband allegedly removed your
panty he also remove your nightgown?
A No, Sir.
A He successfully having sex with me because he pulled my

short pant and pantie forcible.
Q So, what did you say when he forcibly pulled your short
and pantie?
A I told him, "don't do that to me, my body is still aching and
also my abdomen and I cannot do what you wanted me to
do. I cannot withstand sex."
Q So, what happened to your short when he forcibly pulled it
down?
A It was tom.
Q And after your short and pantie was pulled down by your
husband, what did he do?
A He also removed his short and brief and flexed my two
legs and mounted on me and succeeded in having sex with
me.139
The accused-appellant forced his wife when he knowingly
overpowered her by gripping her hands, flexing her legs and
then resting his own legs thereon in order to facilitate the
consummation of his much-desired non-consensual sexual
intercourse.
Records also show that the accused-appellant employed
sufficient intimidation upon KKK. His actuations prior to the
actual moment of the felonious coitus revealed that he
imposed his distorted sense of moral authority on his wife.
He furiously demanded for her to lay with him on the bed and
thereafter coerced her to indulge his sexual craving.
The fury the accused-appellant exhibited
to sleep with him on their bed, when she
the children's bedroom and the fact
dominance over her as husband all
submission.
when KKK refused

insisted to sleep in
that he exercises
cowed KKK into
Q And he did pull out your duster [sic] towards your face?
A He raised my duster [sic] up.
Q In other words your face was covered when he raised your
duster [sic]?
A No, only on the breast level.138
The fact that KKK voluntarily went with the accusedappellant to their conjugal bedroom on October 16, 1998
cannot be stretched to mean that she consented to the
forced sexual intercourse that ensued. The accusedappellant was KKK's husband and hence it was customary
for her to sleep in the conjugal bedroom. No consent can be
deduced from such act of KKK because at that juncture there
were no indications that sexual intercourse was about to take
place. The issue of consent was still irrelevant since the act

for which the same is legally required did not exist yet or at
least unclear to the person from whom the consent was
desired. The significant point when consent must be given is
at that time when it is clear to the victim that her aggressor is
soliciting sexual congress. In this case, that point is when the
accused-appellant tapped his fingers on her lap, a gesture
KKK comprehended to be an invitation for a sexual
intercourse, which she refused.
Resistance, medical certificate and blood traces.
We cannot give credence to the accused-appellant's
argument that KKK should have hit him to convey that she
was resisting his sexual onslaught. Resistance is not an
element of rape and the law does not impose upon the victim
the burden to prove resistance140 much more requires her to
raise a specific kind thereof.
At any rate, KKK put up persistent, audible and intelligible
resistance for the accused-appellant to recognize that she
seriously did not assent to a sexual congress. She held on to
her panties to prevent him from undressing her, she refused
to bend her legs and she repeatedly shouted and begged for
him to stop.
Moreover, as an element of rape, force or intimidation need
not be irresistible; it may be just enough to bring about the
desired result. What is necessary is that the force or
intimidation be sufficient to consummate the purpose that the
accused had in mind141 or is of such a degree as to impel the
defenseless and hapless victim to bow into submission.142
Contrary to the accused-appellant's allusions, the absence of
blood traces in KKK's panties or the lack of a medical
certificate do not negate rape. It is not the presence or
absence of blood on the victim's underwear that determines
the fact of rape143 inasmuch as a medical certificate is
dispensable evidence that is not necessary to prove
rape.144 These details do not pertain to the elements that
produce the gravamen of the offense that is -sexual
intercourse with a woman against her will or without her
consent.145
The accused-appellant harps on the acquittal ruling in
People v. Godoy,146 the evidentiary circumstances of which
are, however, disparate from those in the present case. In
Godoy, the testimony of the complainant was inherently
weak, inconsistent, and was controverted by the
prosecution's medico-legal expert witness who stated that
force was not applied based on the position of her hymenal
laceration. This led the Court to conclude that the absence of
any sign of physical violence on the victim's body is an
indication of consent.147 Here, however, KKK's testimony is,
as discussed earlier, credible, spontaneous and forthright.
The corroborative testimonies of

MMM and OOO are worthy of credence.
The accused-appellant's assertion that MMM and OOO's
testimonies lacked probative value as they did not witness
the actual rape is bereft of merit. It must be stressed that
rape is essentially committed in relative isolation, thus, it is
usually only the victim who can testify with regard to the fact
of the forced sexual intercourse.148 Hence, the probative
value of MMM and OOO's testimonies rest not on whether
they actually witnessed the rape but on whether their
declarations were in harmony with KKK's narration of the
circumstances, preceding, subsequent to and concurrent
with, the rape incidents.
MMM and OOO's testimonies substantiated significant points
in KKK's narration. MMM heard KKK shouting and crying:
"Eddie, dont do that to me, have pity on me" 149 on the night
of October 16, 1998 shortly after KKK and the accusedappellant went to their conjugal bedroom. When MMM went
upstairs to check on her mother, the accused-appellant
admonished her for meddling. Frustrated to aid her mother
who persistently cried, MMM kicked the door so hard the
accused-appellant was prompted to open it and rebuke
MMM once more. OOO heard all these commotion from the
room downstairs.
MMM then saw her mother crouched on the bed, crying, with
her hair disheveled while her tom panty lay on the floor. After
a brief struggle with the accused-appellant, MMM and KKK
were finally able to escape and retreat to the children's
bedroom where KKK narrated to her daughters: "[Y]our
father is an animal, a beast; he forced me to have sex with
him when I'm not feeling well. "
KKK gave a similar narration to MMM and OOO the following
night after the accused-appellant barged inside the children's
bedroom. The couple had an argument and when MMM tried
to interfere, the accused-appellant ordered her and OOO to
get out after bragging that he can have sex with his wife
even in front of the children because he is the head of the
family. The girls then stayed by the staircase where they
afterwards heard their mother helplessly crying and shouting
for the accused-appellant to stop.
Indeed, the testimonies of KKK, MMM and OOO coherently
depicted that the accused-appellant, through the use of force
and intimidation, had non-consensual and forced carnal
knowledge of his wife, KKK on the nights of October 16 and
17, 1998.
KKK's helpless screams and pleas from inside the bedroom
coupled with her verbal and physical resistance were clear
manifestations of coercion. Her appearance when MMM saw
her on the bed after the accused appellant opened the door
on October 16, 1998, her conduct towards the accusedappellant on her way out of the room, and her categorical
outcry to her children after the two bedroom episodes - all
generate the conclusion that the sexual acts that occurred
were against her will.

Failure to immediately report to the
police authorities, if satisfactorily
explained, is not fatal to the
credibility of a witness.
The testimonies of KKK and her daughters cannot be
discredited merely because they failed to report the rape
incidents to the police authorities or that KKK belatedly filed
the rape charges. Delay or vacillation by the victims in
reporting sexual assaults does not necessarily impair their
credibility if such delay is satisfactorily explained.150
At that time, KKK and her daughters were not aware that a
husband forcing his wife to submit to sexual intercourse is
considered rape. In fact, KKK only found out that she could
sue his husband for rape when Prosecutor Benjamin
Tabique, Jr. (Prosecutor Tabique) told her about it when she
filed the separate charges for grave threats and physical
injuries against the accused-appellant.151
It must be noted that the incidents occurred a year into the
effectivity of R.A. No. 8353 abolishing marital exemption in
rape cases hence it is understandable that it was not yet
known to a layman as opposed to legal professionals like
Prosecutor Tabique. In addition, fear of reprisal thru social
humiliation which is the common factor that deter rape
victims from reporting the crime to the authorities is more
cumbersome in marital rape cases. This is in view of the
popular yet outdated belief that it is the wife's absolute
obligation to submit to her husband's carnal desires. A
husband raping his own wife is often dismissed as a peculiar
occurrence or trivialized as simple domestic trouble.
Unfamiliarity with or lack of knowledge of the law
criminalizing marital rape, the stigma and public scrutiny that
could have befallen KKK and her family had the intervention
of police authorities or even the neighbors been sought, are
acceptable explanations for the failure or delay in reporting
the subject rape incidents.
The victims testimony on the
witness stand rendered
unnecessary the presentation of her
complaint-affidavit as evidence.
The failure of the prosecution to present KKK's complaintaffidavit for rape is not fatal in view of the credible, candid
and positive testimony of KKK on the witness stand.
Testimonial evidence carries more weight than the affidavit
since it underwent the rudiments of a direct, cross, re-direct
and re-cross examinations. Affidavits or statements taken ex
parte are generally considered incomplete and inaccurate.
Thus, by nature, they are inferior to testimony given in
court.152
prosecution was able to establish that the P3 Million deposit

in the spouses' bank account was the proceeds of their loan
from the Bank of Philippine Islands (BPI). Exhibit J, which is
a BPI ML instruction sheet dated October 31, 1996 in the
amount of P3,149,840.63 is the same amount the accusedappellant claimed to have entrusted to her wife. Although the
accused-appellant denied being aware of such loan, he
admitted that approximately P3 Million was spent for the
construction of their house. These pieces of evidence
effectively belie the accused appellant's allegation that KKK
could not account for the money deposited in the bank.153
Anent, KKK's alleged extra-marital affairs, the accusedappellant failed to explain how Bebs could be his wife KKK
when the letter-sender greeted Bebs a "happy birthday" on
October 28 while KKK's birthday is June 23. The accusedappellant also did not present Bebs herself, being a more
competent witness to the existence of the alleged love letters
for KKK. He likewise failed, despite promise to do so, to
present the original copies of such love letters neither did he
substantiate KKK's supposed extra-marital affairs by
presenting witnesses who could corroborate his claims.
Further, the Court finds it unbelievable that an able man
would not have the temerity to confront his wife who has
fooled around with 10 men - some of whom he has even
met. The accused-appellant's erratic statements on the
witness stand are inconsistent with the theory of extramarital romance making it reasonable to infer that he merely
made up those malicious stories as a desperate ploy to
extricate himself out of this legal quandary.
At best, the basis of the alleged illicit affairs of KKK were the
accused-appellant's unfounded suspicions that hold no
evidentiary weight in law and thus incompetent to destroy
KKK's credibility and that of her testimony. In sum, the
defense failed to present sufficiently convincing evidence
that KKK is a mere vindictive wife who is harassing the
accused-appellant with fabricated rape charges.
Alibi
It must be stressed that in raising the irrevocable implied
consent theory as defense, the accused-appellant has
essentially admitted the facts of sexual intercourse embodied
in the two criminal informations for rape. This admission is
inconsistent with the defense of alibi and any discussion
thereon will thus be irrelevant.
At any rate, the courts a quo correctly rejected his alibi.
Alibi is one of the weakest defenses not only because it is
inherently frail and unreliable, but also because it is easy to
fabricate and difficult to check or rebut. It cannot prevail over
the positive identification of the accused by eyewitnesses
who had no improper motive to testify falsely.154
Ill motive imputed to the victim

The ill motive, which the accused-appellant imputed to KKK,
does not inspire belief as it is riddled with loopholes
generated by incongruent and flimsy evidence. The
For the defense of alibi to prosper, the accused must prove

not only that he was at some other place at the time of the
commission of the crime, but also that it was physically
impossible for him to be at the locus delicti or within its

immediate vicinity. Physical impossibility refers not only to
the geographical distance between the place where the
accused was and the place where the crime was committed
when the crime transpired, but more importantly, the facility
of access between the two places.155
Even granting in arguendo that the accused-appellant had
indeed attended a fiesta in Dangcagan, Bukidnon or was
hauling com with Equia on the dates of commission of the
crime, the same will not easily exonerate him. The accusedappellant failed to adduce clear and convincing evidence that
it was physically impossible for him to be at his residence in
Cagayan de Oro City at the time of the commission of the
crime. Dangcagan, Bukidnon can be traversed by about four
or five hours from Cagayan de Oro City, and even less by
private vehicle which was available to the accused appellant
at any time.156 Thus, it was not physically impossible for him
to be at the situs criminis at the dates and times when the
two rape incidents were committed.
Between the accused-appellant's alibi and denial, and the
positive identification and credible testimony of the victim,
and her two daughters, the Court must give weight to the
latter, especially in the absence of ill motive on their part to
falsely testify against the accused-appellant.
Conclusion
All told, the presumption of innocence endowed an accusedappellant was sufficiently overcome by KKK's clear,
straightforward, credible, and truthful declaration that on two
separate occasions, he succeeded in having sexual
intercourse with her, without her consent and against her will.
Evidence of overwhelming force and intimidation to
consummate rape is extant from KKK's narration as
believably corroborated by the testimonies of MMM and
OOO and the physical evidence of KKK's tom panties and
short pants. Based thereon, the reason and conscience of
the Court is morally certain that the accused-appellant is
guilty of raping his wife on the nights of October 16 and 17,
1998.
Penalties
The Court affirms the penalty of reclusion perpetua, for each
count of rape, meted upon the accused-appellant for being in
accord with Article 266-A in relation to 266-B of the RPC.
Further, he shall not be eligible for parole pursuant to Section
3 of R.A. No. 9346, which states that "persons convicted of
offenses punished with reclusion perpetua, or whose
sentences will be reduced to reclusion perpetua, by reason
of this Act, shall not be eligible for parole under Act No. 4180,
otherwise known as the Indeterminate Sentence Law, as
amended."157
The Court sustains the moral damages awarded in the
amount of P50,000.00. Moral damages are granted to rape
victims without need of proof other than the fact of rape
under the assumption that the victim suffered moral injuries
from the experience she underwent.158
The award of civil indemnity is proper; it is mandatory upon

the finding that rape took place.1wphi1 Considering that the
crime committed is simple rape, there being no qualifying
circumstances attendant in its commission, the appropriate
amount is P50,000.00159 and not P75,000.00 as awarded by
the RTC.
To serve as an example for public good and in order to deter
a similar form of domestic violence, an award ofP30,000.00
as exemplary damages is imperative.160
The damages awarded shall earn legal interest at the rate of
six percent (6%) per annum to be reckoned from the date of
finality of this judgment until fully paid.161
A Final Note
Rape is a crime that evokes global condemnation because it
is an abhorrence to a woman's value and dignity as a human
being. It respects no time, place, age, physical condition or
social status. It can happen anywhere and it can happen to
anyone. Even, as shown in the present case, to a wife,
inside her time-honored fortress, the family home, committed
against her by her husband who vowed to be her refuge from
cruelty. The herein pronouncement is an affirmation to wives
that our rape laws provide the atonement they seek from
their sexually coercive husbands.
Husbands are once again reminded that marriage is not a
license to forcibly rape their wives. A husband does not own
his wife's body by reason of marriage. By marrying, she does
not divest herself of the human right to an exclusive
autonomy over her own body and thus, she can lawfully opt
to give or withhold her consent to marital coitus. A husband
aggrieved by his wife's unremitting refusal to engage in
sexual intercourse cannot resort to felonious force or
coercion to make her yield. He can seek succor before the
Family Courts that can determine whether her refusal
constitutes psychological incapacity justifying an annulment
of the marriage.
Sexual intimacy is an integral part of marriage because it is
the spiritual and biological communion that achieves the
marital purpose of procreation. It entails mutual love and
self-giving and as such it contemplates only mutual sexual
cooperation and never sexual coercion or imposition.
The Court is aware that despite the noble intentions of the
herein pronouncement, menacing personalities may use this
as a tool to harass innocent husbands. In this regard, let it be
stressed that safeguards in the criminal justice system are in
place to spot and scrutinize fabricated or false marital rape
complaints and any person who institutes untrue and
malicious charges will be made answerable under the
pertinent provisions of the RPC and/or other laws.
WHEREFORE, all the foregoing considered, the Decision
dated July 9, 2008 of the Court of Appeals in CA-G.R. CRHC No. 00353 is hereby AFFIRMED with MODIFICATIONS.
Accused-appellant Edgar Jumawan is found GUILTY beyond

reasonable doubt of two (2) counts of RAPE and is
sentenced to suffer the penalty of reclusion perpetua for
each count, without eligibility for parole. He is further ordered
to pay the victim, KKK, the amounts of PS0,000.00 as civil
indemnity, P50,000.00 as moral damages, and P30,000.00
as exemplary damages, for each count of rape. The award of
damages shall earn legal interest at the rate of six percent
(6%) per annum from the finality of this judgment until fully
paid.
SO ORDERED.
already served the minimum period of her penalty while

under detention during the pendency of this case.
The Case
For automatic review before this Court is the

September 25, 1998 Decision[1] of the Regional Trial Court
(RTC) of Ormoc City (Branch 35) in Criminal Case No. 50160, finding Marivic Genosa guilty beyond reasonable doubt of
parricide. The decretal portion of the Decision reads:
PEOPLE v. GENOSA
EN BANC
[G.R. No. 135981. January 15, 2004]
PEOPLE OF THE PHILIPPINES, appellee, vs. MARIVIC

GENOSA, appellant.
DECISION
PANGANIBAN, J.:
Admitting she killed her husband, appellant anchors her
prayer for acquittal on a novel theory -- the battered woman
syndrome (BWS), which allegedly constitutes self-defense.
Under the proven facts, however, she is not entitled to
complete exoneration because there was no unlawful
aggression -- no immediate and unexpected attack on her by
her batterer-husband at the time she shot him.
Absent unlawful aggression, there can be no selfdefense, complete or incomplete.
But all is not lost. The severe beatings repeatedly
inflicted on appellant constituted a form of cumulative
provocation that broke down her psychological resistance
and self-control. This psychological paralysis she suffered
diminished her will power, thereby entitling her to the
mitigating factor under paragraphs 9 and 10 of Article 13 of
the Revised Penal Code.
In addition, appellant should also be credited with the
extenuating circumstance of having acted upon an impulse
so powerful as to have naturally produced passion and
obfuscation. The acute battering she suffered that fatal night
in the hands of her batterer-spouse, in spite of the fact that
she was eight months pregnant with their child, overwhelmed
her and put her in the aforesaid emotional and mental state,
which overcame her reason and impelled her to vindicate her
life and her unborn childs.
Considering the presence of these two mitigating
circumstances arising from BWS, as well as the benefits of
the Indeterminate Sentence Law, she may now apply for and
be released from custody on parole, because she has
WHEREFORE, after all the foregoing being duly

considered, the Court finds the accused, Marivic Genosa y
Isidro, GUILTY beyond reasonable doubt of the crime of
Parricide as provided under Article 246 of the Revised Penal
Code as restored by Sec. 5, RA No. 7659, and after finding
treachery as a generic aggravating circumstance and none
of mitigating circumstance, hereby sentences the accused
with the penalty of DEATH.
The Court likewise penalizes the accused to pay the heirs of
the deceased the sum of fifty thousand pesos (P50,000.00),
Philippine currency as indemnity and another sum of fifty
thousand pesos (P50,000.00), Philippine currency as moral
damages.[2]
The Information[3] charged appellant with parricide as
follows:
That on or about the 15th day of November 1995, at
Barangay Bilwang, Municipality of Isabel, Province of Leyte,
Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, with intent to kill, with
treachery and evident premeditation, did then and there
wilfully, unlawfully and feloniously attack, assault, hit and
wound one BEN GENOSA, her legitimate husband, with the
use of a hard deadly weapon, which the accused had
provided herself for the purpose, [causing] the following
wounds, to wit:
Cadaveric spasm.
Body on the 2nd stage of decomposition.
Face, black, blownup & swollen w/ evident post-mortem
lividity. Eyes protruding from its sockets and tongue slightly
protrudes out of the mouth.
Fracture, open, depressed, circular located at the occipital
bone of the head, resulting [in] laceration of the brain,
spontaneous rupture of the blood vessels on the posterior
surface of the brain, laceration of the dura and meningeal
vessels producing severe intracranial hemorrhage.
Blisters at both extrem[i]ties, anterior chest, posterior chest,
trunk w/ shedding of the epidermis.

Abdomen distended w/ gas. Trunk bloated.
which caused his death.[4]
With the assistance of her counsel,[5] appellant pleaded
not guilty during her arraignment on March 3, 1997. [6] In due
course, she was tried for and convicted of parricide.
The Facts
Version of the Prosecution
The Office of the Solicitor General (OSG) summarizes

the prosecutions version of the facts in this wise:
Appellant and Ben Genosa were united in marriage on
November 19, 1983 in Ormoc City. Thereafter, they lived
with the parents of Ben in their house at Isabel, Leyte. For a
time, Bens younger brother, Alex, and his wife lived with
them too. Sometime in 1995, however, appellant and Ben
rented from Steban Matiga a house at Barangay Bilwang,
Isabel, Leyte where they lived with their two children,
namely: John Marben and Earl Pierre.
On November 15, 1995, Ben and Arturo Basobas went to a
cockfight after receiving their salary. They each had two (2)
bottles of beer before heading home. Arturo would pass
Bens house before reaching his. When they arrived at the
house of Ben, he found out that appellant had gone to
Isabel, Leyte to look for him. Ben went inside his house,
while Arturo went to a store across it, waiting until 9:00 in the
evening for the masiao runner to place a bet. Arturo did not
see appellant arrive but on his way home passing the side of
the Genosas rented house, he heard her say I wont
hesitate to kill you to which Ben replied Why kill me when I
am innocent? That was the last time Arturo saw Ben alive.
Arturo also noticed that since then, the Genosas rented
house appeared uninhabited and was always closed.
On November 16, 1995, appellant asked Erlinda Paderog,
her close friend and neighbor living about fifty (50) meters
from her house, to look after her pig because she was going
to Cebu for a pregnancy check-up. Appellant likewise asked
Erlinda to sell her motorcycle to their neighbor Ronnie
Dayandayan who unfortunately had no money to buy it.
That same day, about 12:15 in the afternoon, Joseph Valida
was waiting for a bus going to Ormoc when he saw appellant
going out of their house with her two kids in tow, each one
carrying a bag, locking the gate and taking her children to
the waiting area where he was. Joseph lived about fifty (50)
meters behind the Genosas rented house. Joseph,
appellant and her children rode the same bus to Ormoc.
They had no conversation as Joseph noticed that appellant
did not want to talk to him.
On November 18, 1995, the neighbors of Steban Matiga

told him about the foul odor emanating from his house being
rented by Ben and appellant. Steban went there to find out
the cause of the stench but the house was locked from the
inside. Since he did not have a duplicate key with him,
Steban destroyed the gate padlock with a borrowed steel
saw. He was able to get inside through the kitchen door but
only after destroying a window to reach a hook that locked
it. Alone, Steban went inside the unlocked bedroom where
the offensive smell was coming from. There, he saw the
lifeless body of Ben lying on his side on the bed covered with
a blanket. He was only in his briefs with injuries at the back
of his head. Seeing this, Steban went out of the house and
sent word to the mother of Ben about his sons misfortune.
Later that day, Iluminada Genosa, the mother of Ben,
identified the dead body as that of [her] son.
Meanwhile, in the morning of the same day, SPO3 Leo
Acodesin, then assigned at the police station at Isabel,
Leyte, received a report regarding the foul smell at the
Genosas rented house. Together with SPO1 Millares, SPO1
Colon, and Dr. Refelina Cerillo, SPO3 Acodesin proceeded
to the house and went inside the bedroom where they found
the dead body of Ben lying on his side wrapped with a
bedsheet. There was blood at the nape of Ben who only had
his briefs on. SPO3 Acodesin found in one corner at the side
of an aparador a metal pipe about two (2) meters from where
Ben was, leaning against a wall. The metal pipe measured
three (3) feet and six (6) inches long with a diameter of one
and half (1 1/2) inches. It had an open end without a stop
valve with a red stain at one end. The bedroom was not in
disarray.
About 10:00 that same morning, the cadaver of Ben,
because of its stench, had to be taken outside at the back of
the house before the postmortem examination was
conducted by Dr. Cerillo in the presence of the police. A
municipal health officer at Isabel, Leyte responsible for
medico-legal cases, Dr. Cerillo found that Ben had been
dead for two to three days and his body was already
decomposing. The postmortem examination of Dr. Cerillo
yielded the findings quoted in the Information for parricide
later filed against appellant. She concluded that the cause of
Bens death was cardiopulmonary arrest secondary to
severe intracranial hemorrhage due to a depressed fracture
of the occipital [bone].
Appellant admitted killing Ben. She testified that going
home after work on November 15, 1995, she got worried that
her husband who was not home yet might have gone
gambling since it was a payday. With her cousin Ecel Arao,
appellant went to look for Ben at the marketplace and
taverns at Isabel, Leyte but did not find him there. They
found Ben drunk upon their return at the Genosas house.
Ecel went home despite appellants request for her to sleep
in their house.
Then, Ben purportedly nagged appellant for following him,
even challenging her to a fight. She allegedly ignored him
and instead attended to their children who were doing their

homework. Apparently disappointed with her reaction, Ben
switched off the light and, with the use of a chopping knife,
cut the television antenna or wire to keep her from watching
television. According to appellant, Ben was about to attack
her so she ran to the bedroom, but he got hold of her hands
and whirled her around. She fell on the side of the bed and
screamed for help. Ben left. At this point, appellant
packed his clothes because she wanted him to leave.
Seeing his packed clothes upon his return home, Ben
allegedly flew into a rage, dragged appellant outside of the
bedroom towards a drawer holding her by the neck, and told
her You might as well be killed so nobody would nag me.
Appellant testified that she was aware that there was a gun
inside the drawer but since Ben did not have the key to it, he
got a three-inch long blade cutter from his wallet. She
however, smashed the arm of Ben with a pipe, causing him
to drop the blade and his wallet. Appellant then smashed
Ben at his nape with the pipe as he was about to pick up the
blade and his wallet. She thereafter ran inside the bedroom.
help as his left hand was covered with blood. Marivic left the
house but after a week, she returned apparently having
asked for Bens forgiveness. In another incident in May 22,
1994, early morning, Alex and his father apparently rushed to
Bens aid again and saw blood from Bens forehead and
Marivic holding an empty bottle. Ben and Marivic reconciled
after Marivic had apparently again asked for Bens
forgiveness.
Appellant, however, insisted that she ended the life of her

husband by shooting him. She supposedly distorted the
drawer where the gun was and shot Ben. He did not die on
the spot, though, but in the bedroom.[7] (Citations omitted)
Mrs. Iluminada Genosa, Marivics mother-in-law, testified

too, saying that Ben and Marivic married in 1986 or 1985
more or less here in Fatima, Ormoc City. She said as the
marriage went along, Marivic became already very
demanding. Mrs. Iluminada Genosa said that after the birth
of Marivics two sons, there were three (3)
misunderstandings. The first was when Marivic stabbed
Ben with a table knife through his left arm; the second
incident was on November 15, 1994, when Marivic struck
Ben on the forehead using a sharp instrument until the eye
was also affected. It was wounded and also the ear and her
husband went to Ben to help; and the third incident was in
1995 when the couple had already transferred to the house
in Bilwang and she saw that Bens hand was plastered as
the bone cracked.
Version of the Defense
Both mother and son claimed they brought Ben to a Pasar

clinic for medical intervention.
Appellant relates her version of the facts in this

manner:
1.
Marivic and Ben Genosa were allegedly married
on November 19, 1983. Prior to her marriage, Marivic had
graduated from San Carlos, Cebu City, obtaining a degree of
Bachelor of Science in Business Administration, and was
working, at the time of her husbands death, as a Secretary
to the Port Managers in Ormoc City. The couple had three
(3) children: John Marben, Earl Pierre and Marie Bianca.
2.
Marivic and Ben had known each other since
elementary school; they were neighbors in Bilwang; they
were classmates; and they were third degree cousins. Both
sets of parents were against their relationship, but Ben was
persistent and tried to stop other suitors from courting her.
Their closeness developed as he was her constant partner at
fiestas.
3.
After their marriage, they lived first in the home of
Bens parents, together with Bens brother, Alex, in Isabel,
Leyte. In the first year of marriage, Marivic and Ben lived
happily. But apparently, soon thereafter, the couple would
quarrel often and their fights would become violent.
4.
Bens brother, Alex, testified for the prosecution
that he could not remember when Ben and Marivic married.
He said that when Ben and Marivic quarreled, generally
when Ben would come home drunk, Marivic would inflict
injuries on him. He said that in one incident in 1993 he saw
Marivic holding a kitchen knife after Ben had shouted for
5.
Arturo Basobas, a co-worker of Ben, testified that
on November 15, 1995 After we collected our salary, we
went to the cock-fighting place of ISCO. They stayed there
for three (3) hours, after which they went to Uniloks and
drank beer allegedly only two (2) bottles each. After
drinking they bought barbeque and went to the Genosa
residence. Marivic was not there. He stayed a while talking
with Ben, after which he went across the road to wait for the
runner and the usher of the masiao game because during
that time, the hearing on masiao numbers was rampant. I
was waiting for the ushers and runners so that I can place
my bet. On his way home at about 9:00 in the evening, he
heard the Genosas arguing. They were quarreling loudly.
Outside their house was one Fredo who is used by Ben to
feed his fighting cocks. Basobas testimony on the root of
the quarrel, conveniently overheard by him was Marivic
saying I will never hesitate to kill you, whilst Ben replied
Why kill me when I am innocent. Basobas thought they
were joking.
He did not hear them quarreling while he was across the
road from the Genosa residence. Basobas admitted that he
and Ben were always at the cockpits every Saturday and
Sunday. He claims that he once told Ben before when he
was stricken with a bottle by Marivic Genosa that he should
leave her and that Ben would always take her back after she
would leave him so many times.
Basobas could not remember when Marivic had hit Ben, but
it was a long time that they had been quarreling. He said
Ben even had a wound on the right forehead. He had
known the couple for only one (1) year.

6.
Marivic testified that after the first year of
marriage, Ben became cruel to her and was a habitual
drinker. She said he provoked her, he would slap her,
sometimes he would pin her down on the bed, and
sometimes beat her.
These incidents happened several times and she would
often run home to her parents, but Ben would follow her and
seek her out, promising to change and would ask for her
forgiveness. She said after she would be beaten, she would
seek medical help from Dr. Dino Caing, Dr. Lucero and Dra.
Cerillo. These doctors would enter the injuries inflicted upon
her by Ben into their reports. Marivic said Ben would beat
her or quarrel with her every time he was drunk, at least
three times a week.
7.
In her defense, witnesses who were not so closely
related to Marivic, testified as to the abuse and violence she
received at the hands of Ben.
7.1. Mr. Joe Barrientos, a fisherman, who was a [neighbor]
of the Genosas, testified that on November 15, 1995, he
overheard a quarrel between Ben and Marivic. Marivic was
shouting for help and through the open jalousies, he saw the
spouses grappling with each other. Ben had Marivic in a
choke hold. He did not do anything, but had come
voluntarily to testify. (Please note this was the same night as
that testified to by Arturo Busabos.[8])
7.2. Mr. Junnie Barrientos, also a fisherman, and the
brother of Mr. Joe Barrientos, testified that he heard his
neighbor Marivic shouting on the night of November 15,
1995. He peeped through the window of his hut which is
located beside the Genosa house and saw the spouses
grappling with each other then Ben Genosa was holding with
his both hands the neck of the accused, Marivic Genosa.
He said after a while, Marivic was able to extricate he[r]self
and enter the room of the children. After that, he went back
to work as he was to go fishing that evening. He returned at
8:00 the next morning. (Again, please note that this was the
same night as that testified to by Arturo Basobas).
7.3. Mr. Teodoro Sarabia was a former neighbor of the
Genosas while they were living in Isabel, Leyte. His house
was located about fifty (50) meters from theirs. Marivic is his
niece and he knew them to be living together for 13 or 14
years. He said the couple was always quarreling. Marivic
confided in him that Ben would pawn items and then would
use the money to gamble. One time, he went to their house
and they were quarreling. Ben was so angry, but would be
pacified if somebody would come. He testified that while
Ben was alive he used to gamble and when he became
drunk, he would go to our house and he will say, Teody
because that was what he used to call me, mokimas ta,
which means lets go and look for a whore. Mr. Sarabia
further testified that Ben would box his wife and I would see
bruises and one time she ran to me, I noticed a wound (the
witness pointed to his right breast) as according to her a
knife was stricken to her. Mr. Sarabia also said that once he
saw Ben had been injured too. He said he voluntarily

testified only that morning.
7.4. Miss Ecel Arano, an 18-year old student, who is a
cousin of Marivic, testified that in the afternoon of November
15, 1995, Marivic went to her house and asked her help to
look for Ben. They searched in the market place, several
taverns and some other places, but could not find him. She
accompanied Marivic home. Marivic wanted her to sleep
with her in the Genosa house because she might be
battered by her husband. When they got to the Genosa
house at about 7:00 in the evening, Miss Arano said that her
husband was already there and was drunk. Miss Arano
knew he was drunk because of his staggering walking and I
can also detect his face. Marivic entered the house and she
heard them quarrel noisily. (Again, please note that this is the
same night as that testified to by Arturo Basobas) Miss Arano
testified that this was not the first time Marivic had asked her
to sleep in the house as Marivic would be afraid every time
her husband would come home drunk. At one time when
she did sleep over, she was awakened at 10:00 in the
evening when Ben arrived because the couple were very
noisy in the sala and I had heard something was broken like
a vase. She said Marivic ran into her room and they locked
the door. When Ben couldnt get in he got a chair and a
knife and showed us the knife through the window grill and
he scared us. She said that Marivic shouted for help, but no
one came. On cross-examination, she said that when she
left Marivics house on November 15, 1995, the couple were
still quarreling.
7.5. Dr. Dino Caing, a physician testified that he and
Marivic were co-employees at PHILPHOS, Isabel, Leyte.
Marivic was his patient many times and had also received
treatment from other doctors. Dr. Caing testified that from
July 6, 1989 until November 9, 1995, there were six (6)
episodes of physical injuries inflicted upon Marivic. These
injuries were reported in his Out-Patient Chart at the
PHILPHOS Hospital. The prosecution admitted the
qualifications of Dr. Caing and considered him an expert
witness.
xxx
xxx
xxx
Dr. Caings clinical history of the tension headache and

hypertention of Marivic on twenty-three (23) separate
occasions was marked at Exhibits 2 and 2-B. The OPD
Chart of Marivic at the Philphos Clinic which reflected all the
consultations made by Marivic and the six (6) incidents of
physical injuries reported was marked as Exhibit 3.
On cross-examination, Dr. Caing said that he is not a
psychiatrist, he could not say whether the injuries were
directly related to the crime committed. He said it is only a
psychiatrist who is qualified to examine the psychological
make-up of the patient, whether she is capable of
committing a crime or not.
7.6 Mr. Panfilo Tero, the barangay captain in the place
where the Genosas resided, testified that about two (2)

months before Ben died, Marivic went to his office past 8:00
in the evening. She sought his help to settle or confront the
Genosa couple who were experiencing family troubles. He
told Marivic to return in the morning, but he did not hear from
her again and assumed that they might have settled with
each other or they might have forgiven with each other.
xxx
xxx
xxx
Marivic said she did not provoke her husband when she got
home that night it was her husband who began the
provocation. Marivic said she was frightened that her
husband would hurt her and she wanted to make sure she
would deliver her baby safely. In fact, Marivic had to be
admitted later at the Rizal Medical Centre as she was
suffering from eclampsia and hypertension, and the baby
was born prematurely on December 1, 1995.
Marivic testified that during her marriage she had tried to
leave her husband at least five (5) times, but that Ben would
always follow her and they would reconcile. Marivic said that
the reason why Ben was violent and abusive towards her
that night was because he was crazy about his recent
girlfriend, Lulu x x x Rubillos.
On cross-examination, Marivic insisted she shot Ben with a
gun; she said that he died in the bedroom; that their quarrels
could be heard by anyone passing their house; that Basobas
lied in his testimony; that she left for Manila the next day,
November 16, 1995; that she did not bother anyone in
Manila, rented herself a room, and got herself a job as a field
researcher under the alias Marvelous Isidro; she did not tell
anyone that she was leaving Leyte, she just wanted to have
a safe delivery of her baby; and that she was arrested in San
Pablo, Laguna.
Answering questions from the Court, Marivic said that she
threw the gun away; that she did not know what happened to
the pipe she used to smash him once; that she was
wounded by Ben on her wrist with the bolo; and that two (2)
hours after she was whirled by Ben, he kicked her ass and
dragged her towards the drawer when he saw that she had
packed his things.
9.
The body of Ben Genosa was found on November
18, 1995 after an investigation was made of the foul odor
emitting from the Genosa residence. This fact was testified
to by all the prosecution witnesses and some defense
witnesses during the trial.
10.
Dra. Refelina Y. Cerillo, a physician, was the
Municipal Health Officer of Isabel, Leyte at the time of the
incident, and among her responsibilities as such was to take
charge of all medico-legal cases, such as the examination of
cadavers and the autopsy of cadavers. Dra. Cerillo is not a
forensic pathologist. She merely took the medical board
exams and passed in 1986. She was called by the police to
go to the Genosa residence and when she got there, she
saw some police officer and neighbor around. She saw Ben
Genosa, covered by a blanket, lying in a semi-prone position

with his back to the door. He was wearing only a brief.
xxx
xxx
xxx
Dra. Cerillo said that there is only one injury and that is the
injury involving the skeletal area of the head which she
described as a fracture. And that based on her
examination, Ben had been dead 2 or 3 days. Dra. Cerillo
did not testify as to what caused his death.
Dra. Cerillo was not cross-examined by defense counsel.
11.
The Information, dated November 14, 1996, filed
against Marivic Genosa charged her with the crime of
PARRICIDE committed with intent to kill, with treachery and
evidence premeditation, x x x wilfully, unlawfully and
feloniously attack, assault, hit and wound x x x her legitimate
husband, with the use of a hard deadly weapon x x x which
caused his death.
12.
Trial took place on 7 and 14 April 1997, 14 May
1997, 21 July 1997, 17, 22 and 23 September 1997, 12
November 1997, 15 and 16 December 1997, 22 May 1998,
and 5 and 6 August 1998.
13.
On 23 September 1998, or only fifty (50) days
from the day of the last trial date, the Hon. Fortunito L.
Madrona, Presiding Judge, RTC-Branch 35, Ormoc City,
rendered a JUDGMENT finding Marivic guilty beyond
reasonable doubt of the crime of parricide, and further found
treachery as an aggravating circumstance, thus sentencing
her to the ultimate penalty of DEATH.
14.
The case was elevated to this Honorable Court
upon automatic review and, under date of 24 January 2000,
Marivics trial lawyer, Atty. Gil Marvel P. Tabucanon, filed a
Motion to Withdraw as counsel, attaching thereto, as a
precautionary measure, two (2) drafts of Appellants Briefs he
had prepared for Marivic which, for reasons of her own, were
not conformed to by her.
The Honorable Court allowed the withdrawal of Atty.
Tabucanon and permitted the entry of appearance of
undersigned counsel.
15.
Without the knowledge of counsel, Marivic
Genosa wrote a letter dated 20 January 2000, to the Chief
Justice, coursing the same through Atty. Teresita G.
Dimaisip, Deputy Clerk of Court of Chief Judicial Records
Office, wherein she submitted her Brief without counsels to
the Court.
This letter was stamp-received by the Honorable Court on 4
February 2000.
16.
In the meantime, under date of 17 February 2000,
and stamp-received by the Honorable Court on 19 February
2000, undersigned counsel filed an URGENT OMNIBUS

MOTION praying that the Honorable Court allow the
exhumation of Ben Genosa and the re-examination of the
cause of his death; allow the examination of Marivic Genosa
by qualified psychologists and psychiatrists to determine her
state of mind at the time she killed her husband; and finally,
to allow a partial re-opening of the case a quo to take the
testimony of said psychologists and psychiatrists.
Attached to the URGENT OMNIBUS MOTION was a letter
of Dr. Raquel Fortun, then the only qualified forensic
pathologist in the country, who opined that the description of
the death wound (as culled from the post-mortem findings,
Exhibit A) is more akin to a gunshot wound than a beating
with a lead pipe.
17.
In a RESOLUTION dated 29 September 2000, the
Honorable Court partly granted Marivics URGENT
OMNIBUS MOTION and remanded the case to the trial
court for the reception of expert psychological and/or
psychiatric opinion on the battered woman syndrome plea,
within ninety (90) days from notice, and, thereafter to
forthwith report to this Court the proceedings taken, together
with the copies of the TSN and relevant documentary
evidence, if any, submitted.
18.
On 15 January 2001, Dra. Natividad A. Dayan
appeared and testified before the Hon. Fortunito L. Madrona,
RTC-Branch 35, Ormoc City.
Immediately before Dra. Dayan was sworn, the Court a
quo asked if she had interviewed Marivic Genosa. Dra.
Dayan informed the Court that interviews were done at the
Penal Institution in 1999, but that the clinical interviews and
psychological assessment were done at her clinic.
Dra. Dayan testified that she has been a clinical
psychologist for twenty (20) years with her own private clinic
and connected presently to the De La Salle University as a
professor. Before this, she was the Head of the Psychology
Department of the Assumption College; a member of the
faculty of Psychology at the Ateneo de Manila University and
St. Josephs College; and was the counseling psychologist of
the National Defense College. She has an AB in Psychology
from the University of the Philippines, a Master of Arts in
Clinical [Counseling], Psychology from the Ateneo, and a
PhD from the U.P. She was the past president of the
Psychological Association of the Philippines and is a
member of the American Psychological Association. She is
the secretary of the International Council of Psychologists
from about 68 countries; a member of the Forensic
Psychology Association; and a member of the ASEAN
[Counseling] Association. She is actively involved with the
Philippine Judicial Academy, recently lecturing on the sociodemographic and psychological profile of families involved in
domestic violence and nullity cases. She was with the
Davide Commission doing research about Military
Psychology. She has written a book entitled Energy Global
Psychology (together with Drs. Allan Tan and Allan
Bernardo). The Genosa case is the first time she has
testified as an expert on battered women as this is the first

case of that nature.
Dra. Dayan testified that for the research she conducted, on
the socio-demographic and psychological profile of families
involved in domestic violence, and nullity cases, she looked
at about 500 cases over a period of ten (10) years and
discovered that there are lots of variables that cause all of
this marital conflicts, from domestic violence to infidelity, to
psychiatric disorder.
Dra. Dayan described domestic violence to comprise of a
lot of incidents of psychological abuse, verbal abuse, and
emotional abuse to physical abuse and also sexual abuse.
xxx
xxx
xxx
Dra. Dayan testified that in her studies, the battered woman

usually has a very low opinion of herself. She has a selfdefeating and self-sacrificing characteristics. x x x they
usually think very lowly of themselves and so when the
violence would happen, they usually think that they provoke
it, that they were the one who precipitated the violence, they
provoke their spouse to be physically, verbally and even
sexually abusive to them. Dra. Dayan said that usually a
battered x x x comes from a dysfunctional family or from
broken homes.
Dra. Dayan said that the batterer, just like the battered
woman, also has a very low opinion of himself. But then
emerges to have superiority complex and it comes out as
being very arrogant, very hostile, very aggressive and very
angry. They also had (sic) a very low tolerance for
frustrations. A lot of times they are involved in vices like
gambling, drinking and drugs. And they become violent.
The batterer also usually comes from a dysfunctional family
which over-pampers them and makes them feel entitled to
do anything. Also, they see often how their parents abused
each other so there is a lot of modeling of aggression in the
family.
Dra. Dayan testified that there are a lot of reasons why a
battered woman does not leave her husband: poverty, selfblame and guilt that she provoked the violence, the cycle
itself which makes her hope her husband will change, the
belief in her obligations to keep the family intact at all costs
for the sake of the children.
xxx
xxx
xxx
Dra. Dayan said that abused wives react differently to the

violence: some leave the house, or lock themselves in
another room, or sometimes try to fight back triggering
physical violence on both of them. She said that in a
normal marital relationship, abuses also happen, but these
are not consistent, not chronic, are not happening day in
[and] day out. In an abnormal marital relationship, the
abuse occurs day in and day out, is long lasting and even
would cause hospitalization on the victim and even death on
the victim.

xxx
xxx
xxx
Dra. Dayan said that as a result of the battery of

psychological tests she administered, it was her opinion that
Marivic fits the profile of a battered woman because inspite
of her feeling of self-confidence which we can see at times
there are really feeling (sic) of loss, such feelings of
humiliation which she sees herself as damaged and as a
broken person. And at the same time she still has the
imprint of all the abuses that she had experienced in the
past.
xxx
xxx
xxx
Dra. Dayan said Marivic thought of herself as a loving wife

and did not even consider filing for nullity or legal separation
inspite of the abuses. It was at the time of the tragedy that
Marivic then thought of herself as a victim.
xxx
xxx
xxx
19.
On 9 February 2001, Dr. Alfredo Pajarillo, a
physician, who has since passed away, appeared and
testified before RTC-Branch 35, Ormoc City.
Dr. Pajarillo was a Diplomate of the Philippine Board of
Psychiatry; a Fellow of the Philippine Board of Psychiatry
and a Fellow of the Philippine Psychiatry Association. He
was in the practice of psychiatry for thirty-eight (38) years.
Prior to being in private practice, he was connected with the
Veterans Memorial Medical Centre where he gained his
training on psychiatry and neurology. After that, he was
called to active duty in the Armed Forces of the Philippines,
assigned to the V. Luna Medical Center for twenty six (26)
years. Prior to his retirement from government service, he
obtained the rank of Brigadier General. He obtained his
medical degree from the University of Santo Tomas. He was
also a member of the World Association of Military Surgeons;
the Quezon City Medical Society; the Cagayan Medical
Society; and the Philippine Association of Military Surgeons.
He authored The Comparative Analysis of Nervous
Breakdown in the Philippine Military Academy from the
Period 1954 1978 which was presented twice in
international congresses. He also authored The Mental
Health of the Armed Forces of the Philippines 2000, which
was likewise published internationally and locally. He had a
medical textbook published on the use of Prasepam on a
Parke-Davis grant; was the first to use Enanthate (siquiline),
on an E.R. Squibb grant; and he published the use of the
drug Zopiclom in 1985-86.
Dr. Pajarillo explained that psychiatry deals with the
functional disorder of the mind and neurology deals with the
ailment of the brain and spinal cord enlarged. Psychology,
on the other hand, is a bachelor degree and a doctorate
degree; while one has to finish medicine to become a
specialist in psychiatry.
Even only in his 7th year as a resident in V. Luna Medical

Centre, Dr. Pajarillo had already encountered a suit involving
violent family relations, and testified in a case in 1964. In the
Armed Forces of the Philippines, violent family disputes
abound, and he has seen probably ten to twenty thousand
cases. In those days, the primordial intention of therapy was
reconciliation. As a result of his experience with domestic
violence cases, he became a consultant of the Battered
Woman Office in Quezon City under Atty. Nenita Deproza.
As such consultant, he had seen around forty (40) cases of
severe domestic violence, where there is physical abuse:
such as slapping, pushing, verbal abuse, battering and
boxing a woman even to an unconscious state such that the
woman is sometimes confined. The affliction of PostTraumatic Stress Disorder depends on the vulnerability of
the victim. Dr. Pajarillo said that if the victim is not very
healthy, perhaps one episode of violence may induce the
disorder; if the psychological stamina and physiologic
constitutional stamina of the victim is stronger, it will take
more repetitive trauma to precipitate the post-traumatic
stress disorder and this x x x is very dangerous.
In psychiatry, the post-traumatic stress disorder is
incorporated under the anxiety neurosis or neurologic
anxcietism. It is produced by overwhelming brutality,
trauma.
xxx
xxx
xxx
Dr. Pajarillo explained that with neurotic anxiety, the victim

relives the beating or trauma as if it were real, although she
is not actually being beaten at that time. She thinks of
nothing but the suffering.
xxx
xxx
xxx
A woman who suffers battery has a tendency to become

neurotic, her emotional tone is unstable, and she is irritable
and restless. She tends to become hard-headed and
persistent. She has higher sensitivity and her self-world is
damaged.
Dr. Pajarillo said that an abnormal family background
relates to an individuals illness, such as the deprivation of
the continuous care and love of the parents. As to the
batterer, he normally internalizes what is around him within
the environment. And it becomes his own personality. He is
very competitive; he is aiming high all the time; he is so
macho; he shows his strong faade but in it there are doubts
in himself and prone to act without thinking.
xxx
xxx
xxx
Dr. Pajarillo emphasized that even though without the

presence of the precipator (sic) or the one who administered
the battering, that re-experiencing of the trauma occurred
(sic) because the individual cannot control it. It will just come
up in her mind or in his mind.

xxx
xxx
xxx
Dr. Pajarillo said that a woman suffering post traumatic

stress disorder try to defend themselves, and primarily with
knives. Usually pointed weapons or any weapon that is
available in the immediate surrounding or in a hospital x x x
because that abound in the household. He said a victim
resorts to weapons when she has reached the lowest rock
bottom of her life and there is no other recourse left on her
but to act decisively.
xxx
xxx
xxx
Dr. Pajarillo testified that he met Marivic Genosa in his office

in an interview he conducted for two (2) hours and
seventeen (17) minutes. He used the psychological
evaluation and social case studies as a help in forming his
diagnosis. He came out with a Psychiatric Report, dated 22
January 2001.
xxx
xxx
xxx
On cross-examination by the private prosecutor, Dr. Pajarillo

said that at the time she killed her husband Marivicc mental
condition was that she was re-experiencing the trauma. He
said that we are trying to explain scientifically that the reexperiencing of the trauma is not controlled by Marivic. It will
just come in flashes and probably at that point in time that
things happened when the re-experiencing of the trauma
flashed in her mind. At the time he interviewed Marivic she
was more subdued, she was not super alert anymore x x x
she is mentally stress (sic) because of the predicament she
is involved.
xxx
xxx
xxx
20.
No rebuttal evidence or testimony was presented
by either the private or the public prosecutor. Thus, in
accord with the Resolution of this Honorable Court, the
records of the partially re-opened trial a quo were
elevated.[9]
Supervening Circumstances
On February 19, 2000, appellant filed an Urgent

Omnibus Motion praying that this Court allow (1) the
exhumation of Ben Genosa and the reexamination of the
cause of his death; (2) the examination of appellant by
qualified psychologists and psychiatrists to determine her
state of mind at the time she had killed her spouse; and (3)
the inclusion of the said experts reports in the records of the
case for purposes of the automatic review or, in the
alternative, a partial reopening of the case for the lower court
to admit the experts testimonies.
On September 29, 2000, this Court issued a Resolution
granting in part appellants Motion, remanding the case to
the trial court for the reception of expert psychological and/or
psychiatric opinion on the battered woman syndrome plea;
and requiring the lower court to report thereafter to this Court
the proceedings taken as well as to submit copies of the TSN
and additional evidence, if any.
Acting on the Courts Resolution, the trial judge
authorized the examination of Marivic by two clinical
psychologists, Drs. Natividad Dayan[10] and Alfredo Pajarillo,
[11]
supposedly experts on domestic violence. Their
testimonies, along with their documentary evidence, were
then presented to and admitted by the lower court before
finally being submitted to this Court to form part of the
records of the case.[12]
The Issues
Appellant assigns the following alleged errors of the

trial court for this Courts consideration:
1.
The trial court gravely erred in promulgating an
obviously hasty decision without reflecting on the evidence
adduced as to self-defense.
2.
The trial court gravely erred in finding as a fact
that Ben and Marivic Genosa were legally married and that
she was therefore liable for parricide.
Ruling of the Trial Court
Finding the proffered theory of self-defense untenable,

the RTC gave credence to the prosecution evidence that
appellant had killed the deceased while he was in bed
sleeping. Further, the trial court appreciated the generic
aggravating circumstance of treachery, because Ben Genosa
was supposedly defenseless when he was killed -- lying in
bed asleep when Marivic smashed him with a pipe at the
back of his head.
The capital penalty having been imposed, the case was
elevated to this Court for automatic review.
3.
The trial court gravely erred finding the cause of
death to be by beating with a pipe.
4.
The trial court gravely erred in ignoring and
disregarding evidence adduced from impartial and unbiased
witnesses that Ben Genosa was a drunk, a gambler, a
womanizer and wife-beater; and further gravely erred in
concluding that Ben Genosa was a battered husband.
5.
The trial court gravely erred in not requiring
testimony from the children of Marivic Genosa.
6.
The trial court gravely erred in concluding that
Marivics flight to Manila and her subsequent apologies were

indicia of guilt, instead of a clear attempt to save the life of
her unborn child.
7.
The trial court gravely erred in concluding that
there was an aggravating circumstance of treachery.
8.
The trial court gravely erred in refusing to reevaluate the traditional elements in determining the
existence of self-defense and defense of foetus in this case,
thereby erroneously convicting Marivic Genosa of the crime
of parricide and condemning her to the ultimate penalty of
death.[13]
In the main, the following are the essential legal
issues: (1) whether appellant acted in self-defense and in
defense of her fetus; and (2) whether treachery attended the
killing of Ben Genosa.
The Courts Ruling
been filed with the lower court on November 14, 1996.

Thereafter, trial began and at least 13 hearings were held for
over a year. It took the trial judge about two months from the
conclusion of trial to promulgate his judgment. That he
conducted the trial and resolved the case with dispatch
should not be taken against him, much less used to
condemn him for being unduly hasty. If at all, the dispatch
with which he handled the case should be lauded. In any
case, we find his actions in substantial compliance with his
constitutional obligation.[15]
Second, the lower court did not err in finding as a fact
that Ben Genosa and appellant had been legally married,
despite the non-presentation of their marriage contract.
In People v. Malabago,[16] this Court held:
The key element in parricide is the relationship of the
offender with the victim. In the case of parricide of a spouse,
the best proof of the relationship between the accused and
the deceased is the marriage certificate. In the absence of a
marriage certificate, however, oral evidence of the fact of
marriage may be considered by the trial court if such proof is
not objected to.
The appeal is partly meritorious.
Collateral Factual Issues
The first six assigned errors raised by appellant are

factual in nature, if not collateral to the resolution of the
principal issues. As consistently held by this Court, the
findings of the trial court on the credibility of witnesses and
their testimonies are entitled to a high degree of respect and
will not be disturbed on appeal in the absence of any
showing that the trial judge gravely abused his discretion or
overlooked, misunderstood or misapplied material facts or
circumstances of weight and substance that could affect the
outcome of the case.[14]
In appellants first six assigned items, we find no grave
abuse of discretion, reversible error or misappreciation of
material facts that would reverse or modify the trial courts
disposition of the case. In any event, we will now briefly
dispose of these alleged errors of the trial court.
First, we do not agree that the lower court promulgated
an obviously hasty decision without reflecting on the
evidence adduced as to self-defense. We note that in his
17-page Decision, Judge Fortunito L. Madrona summarized
the testimonies of both the prosecution and the defense
witnesses and -- on the basis of those and of the
documentary evidence on record -- made his evaluation,
findings and conclusions. He wrote a 3-page discourse
assessing the testimony and the self-defense theory of the
accused. While she, or even this Court, may not agree with
the trial judges conclusions, we cannot peremptorily
conclude, absent substantial evidence, that he failed to
reflect on the evidence presented.
Neither do we find the appealed Decision to have been
made in an obviously hasty manner. The Information had
Two of the prosecution witnesses -- namely, the mother

and the brother of appellants deceased spouse -- attested in
court that Ben had been married to Marivic. [17] The defense
raised no objection to these testimonies. Moreover, during
her direct examination, appellant herself made a judicial
admission of her marriage to Ben.[18] Axiomatic is the rule
that a judicial admission is conclusive upon the party making
it, except only when there is a showing that (1) the admission
was made through a palpable mistake, or (2) no admission
was in fact made.[19] Other than merely attacking the nonpresentation of the marriage contract, the defense offered no
proof that the admission made by appellant in court as to the
fact of her marriage to the deceased was made through a
palpable mistake.
Third, under the circumstances of this case, the specific
or direct cause of Bens death -- whether by a gunshot or by
beating with a pipe -- has no legal consequence. As the
Court elucidated in its September 29, 2000 Resolution,
[c]onsidering that the appellant has admitted the fact of
killing her husband and the acts of hitting his nape with a
metal pipe and of shooting him at the back of his head, the
Court believes that exhumation is unnecessary, if not
immaterial, to determine which of said acts actually caused
the victims death. Determining which of these admitted
acts caused the death is not dispositive of the guilt or
defense of appellant.
Fourth, we cannot fault the trial court for not fully
appreciating evidence that Ben was a drunk, gambler,
womanizer and wife-beater. Until this case came to us for
automatic review, appellant had not raised the novel defense of
battered woman syndrome, for which such evidence may
have been relevant. Her theory of self-defense was then the
crucial issue before the trial court. As will be discussed shortly,
the legal requisites of self-defense under prevailing
jurisprudence ostensibly appear inconsistent with the
surrounding facts that led to the death of the victim. Hence, his

personal character, especially his past behavior, did not
constitute vital evidence at the time.
Fifth, the trial court surely committed no error in not
requiring testimony from appellants children. As correctly
elucidated by the solicitor general, all criminal actions are
prosecuted under the direction and control of the public
prosecutor, in whom lies the discretion to determine which
witnesses and evidence are necessary to present.[20] As the
former further points out, neither the trial court nor the
prosecution prevented appellant from presenting her children
as witnesses. Thus, she cannot now fault the lower court for
not requiring them to testify.
Finally, merely collateral or corroborative is the matter
of whether the flight of Marivic to Manila and her subsequent
apologies to her brother-in-law are indicia of her guilt or are
attempts to save the life of her unborn child. Any reversible
error as to the trial courts appreciation of these
circumstances has little bearing on the final resolution of the
case.
First Legal Issue:
Self-Defense and Defense of a Fetus
Appellant admits killing Ben Genosa but, to avoid
criminal liability, invokes self-defense and/or defense of her
unborn child. When the accused admits killing the victim, it
is incumbent upon her to prove any claimed justifying
circumstance by clear and convincing evidence.[21] Wellsettled is the rule that in criminal cases, self-defense (and
similarly, defense of a stranger or third person) shifts the
burden of proof from the prosecution to the defense.[22]
The Battered Woman Syndrome
In claiming self-defense, appellant raises the novel

theory of the battered woman syndrome. While new in
Philippine jurisprudence, the concept has been recognized in
foreign jurisdictions as a form of self-defense or, at the least,
incomplete self-defense.[23] By appreciating evidence that a
victim or defendant is afflicted with the syndrome, foreign
courts convey their understanding of the justifiably fearful
state of mind of a person who has been cyclically abused
and controlled over a period of time.[24]
A battered woman has been defined as a woman who
is repeatedly subjected to any forceful physical or
psychological behavior by a man in order to coerce her to do
something he wants her to do without concern for her rights.
Battered women include wives or women in any form of
intimate relationship with men. Furthermore, in order to be
classified as a battered woman, the couple must go through
the battering cycle at least twice. Any woman may find
herself in an abusive relationship with a man once. If it
occurs a second time, and she remains in the situation, she
is defined as a battered woman.[25]
Battered women exhibit common personality traits,
such as low self-esteem, traditional beliefs about the home,
the family and the female sex role; emotional dependence

upon the dominant male; the tendency to accept
responsibility for the batterers actions; and false hopes that
the relationship will improve.[26]
More graphically, the battered woman syndrome is
characterized by the so-called cycle of violence,[27] which
has three phases: (1) the tension-building phase; (2) the
acute battering incident; and (3) the tranquil, loving (or, at
least, nonviolent) phase.[28]
During the tension-building phase, minor battering
occurs -- it could be verbal or slight physical abuse or
another form of hostile behavior. The woman usually tries to
pacify the batterer through a show of kind, nurturing
behavior; or by simply staying out of his way. What actually
happens is that she allows herself to be abused in ways that,
to her, are comparatively minor. All she wants is to prevent
the escalation of the violence exhibited by the batterer. This
wish, however, proves to be double-edged, because her
placatory and passive behavior legitimizes his belief that he
has the right to abuse her in the first place.
However, the techniques adopted by the woman in her
effort to placate him are not usually successful, and the
verbal and/or physical abuse worsens. Each partner senses
the imminent loss of control and the growing tension and
despair. Exhausted from the persistent stress, the battered
woman soon withdraws emotionally. But the more she
becomes emotionally unavailable, the more the batterer
becomes angry, oppressive and abusive. Often, at some
unpredictable point, the violence spirals out of control and
leads to an acute battering incident.[29]
The acute battering incident is said to be
characterized by brutality, destructiveness and, sometimes,
death. The battered woman deems this incident as
unpredictable, yet also inevitable. During this phase, she
has no control; only the batterer may put an end to the
violence. Its nature can be as unpredictable as the time of
its explosion, and so are his reasons for ending it. The
battered woman usually realizes that she cannot reason with
him, and that resistance would only exacerbate her
condition.
At this stage, she has a sense of detachment from the
attack and the terrible pain, although she may later clearly
remember every detail. Her apparent passivity in the face of
acute violence may be rationalized thus: the batterer is
almost always much stronger physically, and she knows from
her past painful experience that it is futile to fight back.
Acute battering incidents are often very savage and out of
control, such that innocent bystanders or intervenors are
likely to get hurt.[30]
The final phase of the cycle of violence begins when
the acute battering incident ends. During this tranquil
period, the couple experience profound relief. On the one
hand, the batterer may show a tender and nurturing behavior
towards his partner. He knows that he has been viciously
cruel and tries to make up for it, begging for her forgiveness
and promising never to beat her again. On the other hand,
the battered woman also tries to convince herself that the

battery will never happen again; that her partner will change
for the better; and that this good, gentle and caring man is
the real person whom she loves.
A battered woman usually believes that she is the sole

anchor of the emotional stability of the batterer. Sensing his
isolation and despair, she feels responsible for his wellbeing. The truth, though, is that the chances of his
reforming, or seeking or receiving professional help, are very
slim, especially if she remains with him. Generally, only after
she leaves him does he seek professional help as a way of
getting her back. Yet, it is in this phase of remorseful
reconciliation that she is most thoroughly tormented
psychologically.
The illusion of absolute interdependency is wellentrenched in a battered womans psyche. In this phase,
she and her batterer are indeed emotionally dependent on
each other -- she for his nurturant behavior, he for her
forgiveness. Underneath this miserable cycle of tension,
violence and forgiveness, each partner may believe that it is
better to die than to be separated. Neither one may really
feel independent, capable of functioning without the other.[31]
What will happen when he follow you?
He said he changed, he asked for

forgiveness and I was convinced and after
that I go to him and he said sorry.
During those times that you were the recipient

of such cruelty and abusive behavior by your
husband, were you able to see a doctor?
Yes, sir.
Who are these doctors?
The company physician, Dr. Dino Caing, Dr.

Lucero and Dra. Cerillo.
xxx
xxx
xxx
You said that you saw a doctor in relation to

your injuries?
Yes, sir.
Who inflicted these injuries?
History of Abuse
in the Present Case
Of course my husband.
You mean Ben Genosa?
To show the history of violence inflicted upon appellant,

the defense presented several witnesses. She herself
described her heart-rending experience as follows:
Yes, sir.
ATTY. TABUCANON
Q
How did you describe your marriage with Ben

Genosa?
In the first year, I lived with him happily but in

the subsequent year he was cruel to me and
a behavior of habitual drinker.
You said that in the subsequent year of your

marriage, your husband was abusive to you
and cruel. In what way was this abusive and
cruelty manifested to you?
He always provoke me in everything, he
always slap me and sometimes he pinned
me down on the bed and sometimes beat
me.
How many times did this happen?
Several times already.
What did you do when these things happen to

you?
I went away to my mother and I ran to my

father and we separate each other.
What was the action of Ben Genosa towards

you leaving home?
He is following me, after that he sought after

me.
xxx
xxx
xxx
[Court] /to the witness

Q
How frequent was the alleged cruelty that you

said?
Everytime he got drunk.
No, from the time that you said the cruelty or

the infliction of injury inflicted on your
occurred, after your marriage, from that time
on, how frequent was the occurrence?
Everytime he got drunk.
Is it daily, weekly, monthly or how many times

in a month or in a week?
Three times a week.
Do you mean three times a week he would

beat you?
Not necessarily that he would beat me but

sometimes he will just quarrel me. [32]
Referring to his Out-Patient Chart[33] on Marivic

Genosa at the Philphos Hospital, Dr. Dino D. Caing bolstered
her foregoing testimony on chronic battery in this manner:
Q So, do you have a summary of those six (6)
incidents which are found in the chart of your
clinic?
A
Yes, sir.

Q
Who prepared the list of six (6) incidents,

Doctor?
I did.
Will you please read the physical findings

together with the
dates for the record.
Yes, sir.
What did she tell you?
1.
May 12, 1990 - physical findings are as
follows: Hematoma (R) lower eyelid and
redness of eye. Attending physician: Dr.
Lucero;
As a doctor-patient relationship, we need to

know the cause of these injuries. And she
told me that it was done to her by her
husband.
2.
March 10, 1992 - ContusionHematoma (L) lower arbital area, pain and
contusion (R) breast. Attending physician:
Dr. Canora;
You mean, Ben Genosa?
Yes, sir.
5.
April 17, 1995 - Trauma, tenderness
(R) Shoulder. Attending physician: Dr.
Canora; and
6.
June 5, 1995 - Swelling Abrasion (L)
leg,
multiple
contusion
Pregnancy.
Attending physician: Dr. Canora.
xxx
xxx
xxx
ATTY. TABUCANON:
Q
By the way Doctor, were you able to physical

examine the accused sometime in the month
of November, 1995 when this incident
happened?
As per record, yes.
What was the date?
It was on November 6, 1995.
So, did you actually see the accused

physically?
Among the findings, there were two (2)

incidents wherein you were the attending
physician, is that correct?
Yes, sir.
Yes, sir.
On November 6, 1995, will you please tell this

Honorable Court, was the patient pregnant?
Yes, sir.
Being a doctor, can you more engage at what

stage of pregnancy was she?
Eight (8) months pregnant.
So in other words, it was an advance stage of

pregnancy?
Yes, sir.
Did you actually physical examine the

accused?
Yes, sir.
Now, going to your finding no. 3 where you

were the one who attended the patient.
What do you mean by abrasion furuncle left
axilla?
xxx
Were you able to talk with the patient?
4.
August 1, 1994 - Pain, mastitis (L)
breast, 2 to trauma. Attending physician:
Dr. Caing;
xxx
Q
3.
March 26, 1993 - Abrasion, Furuncle
(L) Axilla;
xxx
Abrasion is a skin wound usually when it

comes in contact with something rough
substance if force is applied.
What was your November 6, 1995

examination, was it an examination about
her pregnancy or for some other findings?
What is meant by furuncle axilla?
It is secondary of the light infection over the

abrasion.
No, she was admitted for hypertension

headache which complicates her pregnancy.
What is meant by pain mastitis secondary to

trauma?
When you said admitted, meaning she was

confined?
So, in this 4th episode of physical injuries

there is an inflammation of left breast. So,
[pain] meaning there is tenderness. When
your breast is traumatized, there is
tenderness pain.
Yes, sir.
For how many days?
One day.
Where?
So, these are objective physical injuries.

Doctor?

A
At PHILPHOS Hospital.
xxx
xxx
Q
Considering that she was 8 months pregnant,

you mean this is dangerous level of blood
pressure?
It was dangerous to the child or to the

fetus. [34]
xxx
Lets go back to the clinical history of Marivic

Genosa. You said that you were able to
examine her personally on November 6,
1995 and she was 8 months pregnant.
What is this all about?

A
Because she has this problem of tension

headache secondary to hypertension and I
think I have a record here, also the same
period from 1989 to 1995, she had a
consultation for twenty-three (23) times.
For what?
Tension headache.
Can we say that specially during the latter

consultation,
that
the
patient
had
hypertension?
The patient definitely had hypertension. It

was refractory to our treatment. She does
not response when the medication was
given to her, because tension headache is
more or less stress related and emotional in
nature.
What did you deduce of tension headache

when you said is emotional in nature?
From what I deduced as part of our physical

examination of the patient is the family
history in line of giving the root cause of
what is causing this disease. So, from the
moment you ask to the patient all comes
from the domestic problem.
Another defense witness, Teodoro Sarabia, a former

neighbor of the Genosas in Isabel, Leyte, testified that he
had seen the couple quarreling several times; and that on
some occasions Marivic would run to him with bruises,
confiding that the injuries were inflicted upon her by Ben.[35]
Ecel Arano also testified[36] that for a number of times
she had been asked by Marivic to sleep at the Genosa
house, because the latter feared that Ben would come home
drunk and hurt her. On one occasion that Ecel did sleep
over, she was awakened about ten oclock at night, because
the couple were very noisy and I heard something was
broken like a vase. Then Marivic came running into Ecels
room and locked the door. Ben showed up by the window
grill atop a chair, scaring them with a knife.
On the afternoon of November 15, 1995, Marivic again
asked her help -- this time to find Ben -- but they were
unable to. They returned to the Genosa home, where they
found him already drunk. Again afraid that he might hurt
her, Marivic asked her to sleep at their house. Seeing his
state of drunkenness, Ecel hesitated; and when she heard
the couple start arguing, she decided to leave.
On that same night that culminated in the death of Ben
Genosa, at least three other witnesses saw or heard the
couple quarreling.[37] Marivic relates in detail the following
backdrop of the fateful night when life was snuffed out of
him, showing in the process a vivid picture of his cruelty
towards her:
ATTY. TABUCANON:
Q
Please tell this Court, can you recall the

incident in November 15, 1995 in the
evening?
Whole morning and in the afternoon, I was in

the office working then after office hours, I
boarded the service bus and went to
Bilwang. When I reached Bilwang, I
immediately asked my son, where was his
father, then my second child said, he was
not home yet. I was worried because that
was payday, I was anticipating that he was
gambling. So while waiting for him, my
eldest son arrived from school, I prepared
dinner for my children.
You mean problem in her household?
Probably.
Can family trouble cause elevation of blood

pressure, Doctor?
Yes, if it is emotionally related and stressful it

can cause increases in hypertension which
is unfortunately does not response to the
medication.
In November 6, 1995, the date of the incident,

did you take the blood pressure of the
accused?
On November 6, 1995 consultation, the blood

pressure was 180/120.
This is evening of November 15, 1995?
Yes, sir.
Is this considered hypertension?
What time did Ben Genosa arrive?
Yes, sir, severe.
When he arrived, I was not there, I was in

Isabel looking for him.

Q
So when he arrived you were in Isabel

looking for him?
When I arrived home, he was there already in

his usual behavior.
Yes, sir.
Did you come back to your house?
Will you tell this Court what was his

disposition?
Yes, sir.
He was drunk again, he was yelling in his

usual unruly behavior.
By the way, where was your conjugal

residence situated this time?
What was he yelling all about?
His usual attitude when he got drunk.
You said that when you arrived, he was drunk

and yelling at you? What else did he do if
any?
Bilwang.
Is this your house or you are renting?
Renting.
What time were you able to come back in

your residence at Bilwang?
He is nagging at me for following him and he

dared me to quarrel him.
I went back around almost 8:00 oclock.
What happened when you arrived in your

residence?
What was the cause of his nagging or

quarreling at you if you know?
When I arrived home with my cousin Ecel

whom I requested to sleep with me at that
time because I had fears that he was again
drunk and I was worried that he would again
beat me so I requested my cousin to sleep
with me, but she resisted because she had
fears that the same thing will happen again
last year.
He was angry at me because I was following

x x x him, looking for him. I was just worried
he might be overly drunk and he would beat
me again.
You said that he was yelling at you, what else,

did he do to you if any?
He was nagging at me at that time and I just

ignore him because I want to avoid trouble
for fear that he will beat me again. Perhaps
he was disappointed because I just ignore
him of his provocation and he switch off the
light and I said to him, why did you switch
off the light when the children were there.
At that time I was also attending to my
children who were doing their assignments.
He was angry with me for not answering his
challenge, so he went to the kitchen and
[got] a bolo and cut the antenna wire to stop
me from watching television.
What did he do with the bolo?
Who was this cousin of yours who you

requested to sleep with you?
Ecel Arao, the one who testified.
Did Ecel sleep with you in your house on that

evening?
No, because she expressed fears, she said

her father would not allow her because of
Ben.
During this period November 15, 1995, were

you pregnant?
Yes, 8 months.
How advance was your pregnancy?
What else happened after he cut the wire?
Eight (8) months.
Was the baby subsequently born?
He switch off the light and the children were

shouting because they were scared and he
was already holding the bolo.
Yes, sir.
How do you described this bolo?
Whats the name of the baby you were

carrying at that time?
1 1/2 feet.
Marie Bianca.
What was the bolo used for usually?
What time were you able to meet personally

your husband?
For chopping meat.
You said the children were scared, what else

happened as Ben was carrying that bolo?
He was about to attack me so I run to the

room.
Yes, sir.
What time?
He cut the antenna wire to keep me from

watching T.V.

Q
What do you mean that he was about to

attack you?
When I attempt to run he held my hands and

he whirled me and I fell to the bedside.
So when he whirled you, what happened to

you?
I screamed for help and then he left.
You said earlier that he whirled you and you

fell on the bedside?
Yes, sir.
You screamed for help and he left, do you

know where he was going?
Outside perhaps to drink more.
When he left what did you do in that particular

time?
I packed all his clothes.
What was your reason in packing his clothes?
I wanted him to leave us.
During this time, where were your children,

what were their reactions?
After a couple of hours, he went back again

and he got angry with me for packing his
clothes, then he dragged me again of the
bedroom holding my neck.
You said that when Ben came back to your

house, he dragged you? How did he drag
you?
(At this juncture the witness started crying).

ATTY. TABUCANON:
Q
Were you actually brought to the drawer?
Yes, sir.
What happened when you were brought to

that drawer?
He dragged me towards the drawer and he

was about to open the drawer but he could
not open it because he did not have the key
then he pulled his wallet which contained a
blade about 3 inches long and I was aware
that he was going to kill me and I smashed
his arm and then the wallet and the blade
fell. The one he used to open the drawer I
saw, it was a pipe about that long, and when
he was about to pick-up the wallet and the
blade, I smashed him then I ran to the other
room, and on that very moment everything
on my mind was to pity on myself, then the
feeling I had on that very moment was the
same when I was admitted in PHILPHOS
Clinic, I was about to vomit.
COURT INTERPRETER:
(The witness at this juncture is crying intensely).
xxx
xxx
xxx
ATTY. TABUCANON:
Q
Talking of drawer, is this drawer outside your

room?
COURT INTERPRETER:
Outside.
The witness demonstrated to the Court by using

her right hand flexed forcibly in her front
neck)
In what part of the house?
Dining.
Where were the children during that time?
My children were already asleep.
ATTY. TABUCANON:
You mean they were inside the room?
Yes, sir.
You said that he dropped the blade, for the

record will you please describe this blade
about 3 inches long, how does it look like?
Three (3) inches long and 1/2 inch wide.
Is it a flexible blade?
Its a cutter.
How do you describe the blade, is it sharp

both edges?
Yes, because he once used it to me.
How did he do it?
And he dragged me towards the door

backward.
Where did he bring you?
Outside the bedroom and he wanted to get

something and then he kept on shouting at
me that you might as well be killed so there
will be nobody to nag me.
So you said that he dragged you towards the

drawer?
Yes, sir.
What is there in the drawer?
I was aware that it was a gun.
COURT INTERPRETER:

A
He wanted to cut my throat.
With the same blade?
xxx
Q: What can you say, that you found Marivic as

a battered wife? Could you in laymans term
describe to this Court what her life was like
as said to you?
What I remember happened then was it was
more than ten years, that she was suffering
emotional anguish. There were a lot of
instances of abuses, to emotional abuse, to
verbal abuse and to physical abuse. The
husband had a very meager income, she
was the one who was practically the bread
earner of the family. The husband was
involved in a lot of vices, going out with
barkadas, drinking, even womanizing being
involved in cockfight and going home very
angry and which will trigger a lot of physical
abuse. She also had the experience a lot of
taunting from the husband for the reason
that the husband even accused her of
infidelity, the husband was saying that the
child she was carrying was not his own. So
she was very angry, she was at the same
time very depressed because she was also
aware, almost like living in purgatory or even
hell when it was happening day in and day
out. [39]
Did you gather an information from Marivic

that on the side of her husband they were
fond of battering their wives?
I also heard that from her?
You heard that from her?
Yes, sir.
Did you ask for a complete example who are

the relatives of her husband that were fond
of battering their wives?
What I remember that there were brothers of

her husband who are also battering their
wives.
Did she not inform you that there was an

instance that she stayed in a hotel in Ormoc
where her husband followed her and
battered [her] several times in that room?
She told me about that.
Did she inform you in what hotel in Ormoc?
Sir, I could not remember but I was told that

she was battered in that room.
Several times in that room?
Yes, sir. What I remember was that there is

no problem about being battered, it really
happened.
Being an expert witness, our jurisprudence is

not complete on saying this matter. I think
that is the first time that we have this in the
Philippines, what is your opinion?
Sir, my opinion is, she is really a battered

wife and in this kind happened, it was really
a self-defense. I also believe that there had
been provocation and I also believe that she
became a disordered person. She had to
suffer anxiety reaction because of all the
battering that happened and so she became
an abnormal person who had lost shes not
during the time and that is why it happened
because of all the physical battering,
emotional battering, all the psychological
abuses that she had experienced from her
husband.
I do believe that she is a battered wife. Was

she extremely battered?
Sir, it is an extreme form of battering. Yes.[40]
In cross-examining Dra. Dayan, the public prosecutor

not merely elicited, but wittingly or unwittingly put forward,
additional supporting evidence as shown below:
Q
In your first encounter with the appellant in

this case in 1999, where you talked to her
about three hours, what was the most
relevant information did you gather?
The most relevant information was the

tragedy that happened. The most important
information were escalating abuses that she
had experienced during her marital life.
Before you met her in 1999 for three hours,

we presume that you already knew of the
facts of the case or at least you have
substantial knowledge of the facts of the
case?
I believe I had an idea of the case, but I do

not know whether I can consider them as
substantial.
xxx
Yes, sir, that was the object used when he

intimidate me. [38]
In addition, Dra. Natividad Dayan was called by the

RTC to testify as an expert witness to assist it in
understanding the psyche of a battered person. She had
met with Marivic Genosa for five sessions totaling about
seventeen hours. Based on their talks, the former briefly
related the latters ordeal to the court a quo as follows:
A:
xxx
Parenthetically, the
demonstrated as follows:
credibility
of
appellant
Q And you also said that you administered [the]

objective personality test, what x x x [is this]
all about?
was

A
The objective personality test is the Millon

Clinical Multiaxial Inventory. The purpose of
that test is to find out about the lying
prone[ne]ss of the person.
What do you mean by that?
Meaning, am I dealing with a client who is

telling me the truth, or is she someone who
can exaggerate or x x x [will] tell a lie[?]
And what did you discover on the basis of this

objective personality test?
She was a person who passed the honesty

test. Meaning she is a person that I can
trust. That the data that Im gathering from
her are the truth.[41]
The other expert witness presented by the defense, Dr.

Alfredo Pajarillo, testified on his Psychiatric Report, [42] which
was based on his interview and examination of Marivic
Genosa. The Report said that during the first three years of
her marriage to Ben, everything looked good -- the
atmosphere was fine, normal and happy -- until Ben started
to be attracted to other girls and was also enticed in[to]
gambling[,] especially cockfighting. x x x. At the same time
Ben was often joining his barkada in drinking sprees.
The drinking sprees of Ben greatly changed the attitude
he showed toward his family, particularly to his wife. The
Report continued: At first, it was verbal and emotional
abuses but as time passed, he became physically abusive.
Marivic claimed that the viciousness of her husband was
progressive every time he got drunk. It was a painful ordeal
Marivic had to anticipate whenever she suspected that her
husband went for a drinking [spree]. They had been married
for twelve years[;] and practically more than eight years, she
was battered and maltreated relentlessly and mercilessly by
her husband whenever he was drunk.
Marivic sought the help of her mother-in-law, but her
efforts were in vain. Further quoting from the Report, [s]he
also sought the advice and help of close relatives and wellmeaning friends in spite of her feeling ashamed of what was
happening to her. But incessant battering became more and
more frequent and more severe. x x x.[43]
From the totality of evidence presented, there is indeed
no doubt in the Courts mind that Appellant Marivic Genosa
was a severely abused person.
Effect of Battery on Appellant
Because of the recurring cycles of violence

experienced by the abused woman, her state of mind
metamorphoses. In determining her state of mind, we
cannot rely merely on the judgment of an ordinary,
reasonable person who is evaluating the events immediately
surrounding the incident. A Canadian court has aptly pointed
out that expert evidence on the psychological effect of
battering on wives and common law partners are both
relevant and necessary. How can the mental state of the

appellant be appreciated without it? The average member of
the public may ask: Why would a woman put up with this
kind of treatment? Why should she continue to live with
such a man? How could she love a partner who beat her to
the point of requiring hospitalization? We would expect the
woman to pack her bags and go. Where is her self-respect?
Why does she not cut loose and make a new life for herself?
Such is the reaction of the average person confronted with
the so-called battered wife syndrome.[44]
To understand the syndrome properly, however, ones
viewpoint should not be drawn from that of an ordinary,
reasonable person. What goes on in the mind of a person
who has been subjected to repeated, severe beatings may
not be consistent with -- nay, comprehensible to -- those who
have not been through a similar experience. Expert opinion
is essential to clarify and refute common myths and
misconceptions about battered women.[45]
The theory of BWS formulated by Lenore Walker, as
well as her research on domestic violence, has had a
significant impact in the United States and the United
Kingdom on the treatment and prosecution of cases, in
which a battered woman is charged with the killing of her
violent partner. The psychologist explains that the cyclical
nature of the violence inflicted upon the battered woman
immobilizes the latters ability to act decisively in her own
interests, making her feel trapped in the relationship with no
means of escape.[46] In her years of research, Dr. Walker
found that the abuse often escalates at the point of
separation and battered women are in greater danger of
dying then.[47]
Corroborating these research findings, Dra. Dayan said
that the battered woman usually has a very low opinion of
herself. She has x x x self-defeating and self-sacrificing
characteristics. x x x [W]hen the violence would happen,
they usually think that they provoke[d] it, that they were the
one[s] who precipitated the violence[; that] they provoke[d]
their spouse to be physically, verbally and even sexually
abusive to them.[48]
According to Dra. Dayan, there are a lot of reasons why
a battered woman does not readily leave an abusive partner
-- poverty, self-blame and guilt arising from the latters belief
that she provoked the violence, that she has an obligation to
keep the family intact at all cost for the sake of their children,
and that she is the only hope for her spouse to change.[49]
The testimony of another expert witness, Dr. Pajarillo,
is also helpful. He had previously testified in suits involving
violent family relations, having evaluated probably ten to
twenty thousand violent family disputes within the Armed
Forces of the Philippines, wherein such cases abounded. As
a result of his experience with domestic violence cases, he
became a consultant of the Battered Woman Office in
Quezon City. As such, he got involved in about forty (40)
cases of severe domestic violence, in which the physical
abuse on the woman would sometimes even lead to her loss
of consciousness.[50]

Dr. Pajarillo explained that overwhelming brutality,
trauma could result in posttraumatic stress disorder, a form
of anxiety neurosis or neurologic anxietism.[51] After being
repeatedly and severely abused, battered persons may
believe that they are essentially helpless, lacking power to
change their situation. x x x [A]cute battering incidents can
have the effect of stimulating the development of coping
responses to the trauma at the expense of the victims ability
to muster an active response to try to escape further
trauma. Furthermore, x x x the victim ceases to believe that
anything she can do will have a predictable positive effect.[52]
A study[53] conducted by Martin Seligman, a
psychologist at the University of Pennsylvania, found that
even if a person has control over a situation, but believes
that she does not, she will be more likely to respond to that
situation with coping responses rather than trying to escape.
He said that it was the cognitive aspect -- the individuals
thoughts -- that proved all-important. He referred to this
phenomenon as learned helplessness. [T]he truth or facts
of a situation turn out to be less important than the
individuals set of beliefs or perceptions concerning the
situation. Battered women dont attempt to leave the
battering situation, even when it may seem to outsiders that
escape is possible, because they cannot predict their own
safety; they believe that nothing they or anyone else does
will alter their terrible circumstances.[54]
Thus, just as the battered woman believes that she is
somehow responsible for the violent behavior of her partner,
she also believes that he is capable of killing her, and that
there is no escape.[55] Battered women feel unsafe, suffer
from pervasive anxiety, and usually fail to leave the
relationship.[56] Unless a shelter is available, she stays with
her husband, not only because she typically lacks a means
of self-support, but also because she fears that if she leaves
she would be found and hurt even more.[57]
In the instant case, we meticulously scoured the
records for specific evidence establishing that appellant, due
to the repeated abuse she had suffered from her spouse
over a long period of time, became afflicted with the battered
woman syndrome. We, however, failed to find sufficient
evidence that would support such a conclusion. More
specifically, we failed to find ample evidence that would
confirm the presence of the essential characteristics of BWS.
The defense fell short of proving all three phases of the
cycle of violence supposedly characterizing the relationship
of Ben and Marivic Genosa. No doubt there were acute
battering incidents. In relating to the court a quo how the
fatal incident that led to the death of Ben started, Marivic
perfectly described the tension-building phase of the cycle.
She was able to explain in adequate detail the typical
characteristics of this stage. However, that single incident
does not prove the existence of the syndrome. In other
words, she failed to prove that in at least another battering
episode in the past, she had gone through a similar pattern.
How did the tension between the partners usually arise
or build up prior to acute battering? How did Marivic
normally respond to Bens relatively minor abuses? What
means did she employ to try to prevent the situation from

developing into the next (more violent) stage?
Neither did appellant proffer sufficient evidence in
regard to the third phase of the cycle. She simply mentioned
that she would usually run away to her mothers or fathers
house;[58]that Ben would seek her out, ask for her forgiveness
and promise to change; and that believing his words, she
would return to their common abode.
Did she ever feel that she provoked the violent
incidents between her and her spouse? Did she believe that
she was the only hope for Ben to reform? And that she was
the sole support of his emotional stability and well-being?
Conversely, how dependent was she on him? Did she feel
helpless and trapped in their relationship? Did both of them
regard death as preferable to separation?
In sum, the defense failed to elicit from appellant
herself her factual experiences and thoughts that would
clearly and fully demonstrate the essential characteristics of
the syndrome.
The Court appreciates the ratiocinations given by the
expert witnesses for the defense. Indeed, they were able to
explain fully, albeit merely theoretically and scientifically, how
the personality of the battered woman usually evolved or
deteriorated as a result of repeated and severe beatings
inflicted upon her by her partner or spouse. They
corroborated each others testimonies, which were culled
from their numerous studies of hundreds of actual
cases. However, they failed to present in court the factual
experiences and thoughts that appellant had related to them
-- if at all -- based on which they concluded that she had
BWS.
We emphasize that in criminal cases, all the elements
of a modifying circumstance must be proven in order to be
appreciated. To repeat, the records lack supporting evidence
that would establish all the essentials of the battered woman
syndrome as manifested specifically in the case of the
Genosas.
BWS as Self-Defense
In any event, the existence of the syndrome in a

relationship does not in itself establish the legal right of the
woman to kill her abusive partner. Evidence must still be
considered in the context of self-defense.[59]
From the expert opinions discussed earlier, the Court
reckons further that crucial to the BWS defense is the state
of mind of the battered woman at the time of the offense [60] -she must have actually feared imminent harm from her
batterer and honestly believed in the need to kill him in order
to save her life.
Settled in our jurisprudence, however, is the rule that
the one who resorts to self-defense must face a real
threat on ones life; and the peril sought to be avoided must
be imminent and actual, not merely imaginary.[61] Thus, the

Revised Penal Code provides the following requisites and
effect of self-defense:[62]
Art. 11. Justifying circumstances. -- The following do not
incur any criminal liability:
1.
Anyone who acts in defense of his person or rights,
provided that the following circumstances concur;
First. Unlawful aggression;
Second. Reasonable necessity of the means
employed to prevent or repel it;
Third. Lack of sufficient provocation on the part of the
person defending himself.
Unlawful aggression is the most essential element of
self-defense.[63] It presupposes actual, sudden and
unexpected attack -- or an imminent danger thereof -- on the
life or safety of a person.[64] In the present case, however,
according to the testimony of Marivic herself, there was a
sufficient time interval between the unlawful aggression of
Ben and her fatal attack upon him. She had already been
able to withdraw from his violent behavior and escape to
their childrens bedroom. During that time, he apparently
ceased his attack and went to bed. The reality or even the
imminence of the danger he posed had ended altogether.
He was no longer in a position that presented an actual
threat on her life or safety.
Had Ben still been awaiting Marivic when she came out
of their childrens bedroom -- and based on past violent
incidents, there was a great probability that he would still
have pursued her and inflicted graver harm -- then, the
imminence of the real threat upon her life would not have
ceased yet. Where the brutalized person is already suffering
from BWS, further evidence of actual physical assault at the
time of the killing is not required. Incidents of domestic
battery usually have a predictable pattern. To require the
battered person to await an obvious, deadly attack before
she can defend her life would amount to sentencing her to
murder by installment.[65] Still, impending danger (based on
the conduct of the victim in previous battering episodes) prior
to the defendants use of deadly force must be shown.
Threatening behavior or communication can satisfy the
required imminence of danger.[66] Considering such
circumstances and the existence of BWS, self-defense may
be appreciated.
We reiterate the principle that aggression, if not
continuous, does not warrant self-defense.[67] In the absence
of such aggression, there can be no self-defense -- complete
or incomplete -- on the part of the victim. [68] Thus, Marivics
killing of Ben was not completely justified under the
circumstances.
Mitigating Circumstances Present
In any event, all is not lost for appellant. While she did
not raise any other modifying circumstances that would alter
her penalty, we deem it proper to evaluate and appreciate in
her favor circumstances that mitigate her criminal liability. It
is a hornbook doctrine that an appeal in a criminal case
opens it wholly for review on any issue, including that which
has not been raised by the parties.[69]
From several psychological tests she had administered
to Marivic, Dra. Dayan, in her Psychological Evaluation
Report dated November 29, 2000, opined as follows:
This is a classic case of a Battered Woman Syndrome. The
repeated battering Marivic experienced with her husband
constitutes a form of [cumulative] provocation which broke
down her psychological resistance and natural self-control.
It is very clear that she developed heightened sensitivity to
sight of impending danger her husband posed continuously.
Marivic truly experienced at the hands of her abuser
husband a state of psychological paralysis which can only be
ended by an act of violence on her part. [70]
Dr. Pajarillo corroborates the findings of Dra. Dayan.
He explained that the effect of repetitious pain taking,
repetitious battering, [and] repetitious maltreatment as well
as the severity and the prolonged administration of the
battering is posttraumatic stress disorder.[71] Expounding
thereon, he said:
Q What causes the trauma, Mr. Witness?
A
xxx
What causes the trauma is probably the

repetitious battering. Second, the severity of
the battering. Third, the prolonged
administration of battering or the prolonged
commission of the battering and the
psychological and constitutional stamina of
the victim and another one is the public and
social support available to the victim. If
nobody is interceding, the more she will go
to that disorder....
xxx
xxx
You referred a while ago to severity. What

are the qualifications in terms of severity of
the postraumatic stress disorder, Dr.
Pajarillo?
The severity is the most severe continuously

to trig[g]er this post[t]raumatic stress
disorder is injury to the head, banging of the
head like that. It is usually the very very
severe stimulus that precipitate this
post[t]raumatic stress disorder. Others are
suffocating the victim like holding a pillow on
the face, strangulating the individual,
suffocating the individual, and boxing the
individual. In this situation therefore, the
victim is heightened to painful stimulus, like
for example she is pregnant, she is very
susceptible because the woman will not only

protect herself, she is also to protect the
fetus. So the anxiety is heightened to the
end [sic] degree.
Q
But in terms of the gravity of the disorder, Mr.

Witness, how do you classify?
We classify the disorder as [acute], or chronic

or delayed or [a]typical.
Can
you
please
describe
this
pre[-]classification you called delayed or
[atypical]?
The acute is the one that usually require only

one battering and the individual will manifest
now a severe emotional instability, higher
irritability remorse, restlessness, and fear
and probably in most [acute] cases the first
thing will be happened to the individual will
be thinking of suicide.
Q
A
And in chronic cases, Mr. Witness?

The chronic cases is this repetitious
battering, repetitious maltreatment, any
prolonged, it is longer than six (6) months.
The [acute] is only the first day to six (6)
months. After this six (6) months you
become chronic. It is stated in the book
specifically that after six (6) months is
chronic. The [a]typical one is the repetitious
battering but the individual who is abnormal
and then become normal. This is how you
get neurosis from neurotic personality of
these cases of post[t]raumatic stress
disorder. [72]
Answering the questions propounded by the trial judge,

the expert witness clarified further:
Q
But just the same[,] neurosis especially on

battered woman syndrome x x x affects x x
x his or her mental capacity?
Yes, your Honor.
As you were saying[,] it x x x obfuscated her

rationality?
Of course obfuscated.[73]
In sum, the cyclical nature and the severity of the

violence inflicted upon appellant resulted in cumulative
provocation which broke down her psychological resistance
and natural self-control, psychological paralysis, and
difficulty in concentrating or impairment of memory.
Based on the explanations of the expert witnesses,
such manifestations were analogous to an illness that
diminished the exercise by appellant of her will power
without, however, depriving her of consciousness of her
acts. There was, thus, a resulting diminution of her freedom
of action, intelligence or intent. Pursuant to paragraphs
9[74] and 10[75] of Article 13 of the Revised Penal Code, this
circumstance should be taken in her favor and considered as

a mitigating factor. [76]
In addition, we also find in favor of appellant the
extenuating circumstance of having acted upon an impulse
so powerful as to have naturally produced passion and
obfuscation. It has been held that this state of mind is
present when a crime is committed as a result of an
uncontrollable burst of passion provoked by prior unjust or
improper acts or by a legitimate stimulus so powerful as to
overcome reason.[77] To appreciate this circumstance, the
following requisites should concur: (1) there is an act, both
unlawful and sufficient to produce such a condition of mind;
and (2) this act is not far removed from the commission of
the crime by a considerable length of time, during which the
accused might recover her normal equanimity.[78]
Here, an acute battering incident, wherein Ben Genosa
was the unlawful aggressor, preceded his being killed by
Marivic. He had further threatened to kill her while dragging
her by the neck towards a cabinet in which he had kept a
gun. It should also be recalled that she was eight months
pregnant at the time. The attempt on her life was likewise on
that of her fetus.[79]His abusive and violent acts, an
aggression which was directed at the lives of both Marivic
and her unborn child, naturally produced passion and
obfuscation overcoming her reason. Even though she was
able to retreat to a separate room, her emotional and mental
state continued. According to her, she felt her blood
pressure rise; she was filled with feelings of self-pity and of
fear that she and her baby were about to die. In a fit of
indignation, she pried open the cabinet drawer where Ben
kept a gun, then she took the weapon and used it to shoot
him.
The confluence of these events brings us to the
conclusion that there was no considerable period of time
within which Marivic could have recovered her normal
equanimity. Helpful is Dr. Pajarillos testimony[80] that with
neurotic anxiety -- a psychological effect on a victim of
overwhelming brutality [or] trauma -- the victim relives the
beating or trauma as if it were real, although she is not
actually being beaten at the time. She cannot control reexperiencing the whole thing, the most vicious and the
trauma that she suffered. She thinks of nothing but the
suffering. Such reliving which is beyond the control of a
person under similar circumstances, must have been what
Marivic experienced during the brief time interval and
prevented her from recovering her normal equanimity.
Accordingly, she should further be credited with the
mitigating circumstance of passion and obfuscation.
It should be clarified that these two circumstances -psychological paralysis as well as passion and obfuscation -did not arise from the same set of facts.
On the one hand, the first circumstance arose from the
cyclical nature and the severity of the battery inflicted by the
batterer-spouse upon appellant. That is, the repeated
beatings over a period of time resulted in her psychological
paralysis, which was analogous to an illness diminishing the
exercise of her will power without depriving her of
consciousness of her acts.

The second circumstance, on the other hand, resulted
from the violent aggression he had inflicted on her prior to
the killing. That the incident occurred when she was eight
months pregnant with their child was deemed by her as an
attempt not only on her life, but likewise on that of their
unborn child. Such perception naturally produced passion
and obfuscation on her part.
ATTY. TABUCANON:
Second Legal Issue:

Treachery
Were you actually brought to the drawer?
Yes, sir.
What happened when you were brought to

that drawer?
He dragged me towards the drawer and he

was about to open the drawer but he could
not open it because he did not have the key
then he pulled his wallet which contained a
blade about 3 inches long and I was aware
that he was going to kill me and I smashed
his arm and then the wallet and the blade
fell. The one he used to open the drawer I
saw, it was a pipe about that long, and when
he was about to pick-up the wallet and the
blade, I smashed him then I ran to the other
room, and on that very moment everything
on my mind was to pity on myself, then the
feeling I had on that very moment was the
same when I was admitted in PHILPHOS
Clinic, I was about to vomit.
There is treachery when one commits any of the crimes

against persons by employing means, methods or forms in
the execution thereof without risk to oneself arising from the
defense that the offended party might make.[81] In order to
qualify an act as treacherous, the circumstances invoked
must be proven as indubitably as the killing itself; they
cannot be deduced from mere inferences, or conjectures,
which have no place in the appreciation of evidence.
[82]
Because of the gravity of the resulting offense, treachery
must be proved as conclusively as the killing itself.[83]
Ruling that treachery was present in the instant case,
the trial court imposed the penalty of death upon appellant. It
inferred this qualifying circumstances merely from the fact
that the lifeless body of Ben had been found lying in bed with
an open, depressed, circular fracture located at the back of
his head. As to exactly how and when he had been fatally
attacked, however, the prosecution failed to establish
indubitably. Only the following testimony of appellant leads
us to the events surrounding his death:
COURT INTERPRETER
(The witness at this juncture is crying intensely).
xxx
xxx
xxx
Q You said that when Ben came back to your

house, he dragged you? How did he drag
you?
You said that he dropped the blade, for the

record will you please describe this blade
about 3 inches long, how does it look like?
Three (3) inches long and inch wide.
COURT:
It is a flexible blade?
The witness demonstrated to the Court by using

her right hand flexed forcibly in her front
neck)
Its a cutter.
How do you describe the blade, is it sharp

both edges?
Yes, because he once used it to me.
How did he do it?
He wanted to cut my throat.
With the same blade?
And he dragged me towards the door

backward.
ATTY. TABUCANON:
Q
A
Where did he bring you?

Outside the bedroom and he wanted to get
something and then he kept on shouting at
me that you might as well be killed so there
will be nobody to nag me
So you said that he dragged you towards the

drawer?
Yes, sir.
What is there in the drawer?
I was aware that it was a gun.
COURT INTERPRETER
(At this juncture the witness started crying)
xxx
Yes, sir, that was the object used when he

intimidate me.
xxx
xxx
ATTY. TABUCANON:
Q
You said that this blade fell from his grip, is it

correct?
Yes, because I smashed him.
What happened?

A
Ben tried to pick-up the wallet and the blade,

I pick-up the pipe and I smashed him and I
ran to the other room.
What else happened?
When I was in the other room, I felt the same

thing like what happened before when I was
admitted in PHILPHOS Clinic, I was about to
vomit. I know my blood pressure was
raised. I was frightened I was about to die
because of my blood pressure.
COURT INTERPRETER:
(Upon the answer of the witness getting the pipe
and smashed him, the witness at the same
time pointed at the back of her neck or the
nape).
ATTY. TABUCANON:
Q
You said you went to the room, what else

happened?
Considering all the physical sufferings that

Ive been through with him, I took pity on
myself and I felt I was about to die also
because of my blood pressure and the baby,
so I got that gun and I shot him.
COURT
/to Atty. Tabucanon
Q
You shot him?
Yes, I distorted the drawer.[84]
The above testimony is insufficient to establish the

presence of treachery. There is no showing of the victims
position relative to appellants at the time of the shooting.
Besides, equally axiomatic is the rule that when a killing is
preceded by an argument or a quarrel, treachery cannot be
appreciated as a qualifying circumstance, because the
deceased may be said to have been forewarned and to have
anticipated aggression from the assailant.[85]
Moreover, in order to appreciate alevosia, the method
of assault adopted by the aggressor must have been
consciously and deliberately chosen for the specific purpose
of accomplishing the unlawful act without risk from any
defense that might be put up by the party attacked.[86] There
is no showing, though, that the present appellant
intentionally chose a specific means of successfully attacking
her husband without any risk to herself from any retaliatory
act that he might make. To the contrary, it appears that the
thought of using the gun occurred to her only at about the
same moment when she decided to kill her batterer-spouse.
In the absence of any convincing proof that she consciously
and deliberately employed the method by which she
committed the crime in order to ensure its execution, this
Court resolves the doubt in her favor.[87]
Proper Penalty
The penalty for parricide imposed by Article 246 of the

Revised Penal Code is reclusion perpetua to death. Since
two mitigating circumstances and no aggravating
circumstance have been found to have attended the
commission of the offense, the penalty shall be lowered by
one (1) degree, pursuant to Article 64 of paragraph 5[88] of the
same Code.[89] The penalty ofreclusion temporal in its
medium period is imposable, considering that two mitigating
circumstances are to be taken into account in reducing the
penalty by one degree, and no other modifying
circumstances were shown to have attended the commission
of the offense.[90] Under the Indeterminate Sentence Law,
the minimum of the penalty shall be within the range of that
which is next lower in degree -- prision mayor -- and the
maximum shall be within the range of the medium period
of reclusion temporal.
Considering all the circumstances of the instant case,
we deem it just and proper to impose the penalty of prision
mayor in its minimum period, or six (6) years and one (1) day
in prison as minimum; to reclusion temporal in its medium
period, or 14 years 8 months and 1 day as maximum.
Noting that appellant has already served the minimum
period, she may now apply for and be released from
detention on parole.[91]
Epilogue
Being a novel concept in our jurisprudence, the

battered woman syndrome was neither easy nor simple to
analyze and recognize vis--vis the given set of facts in the
present case. The Court agonized on how to apply the
theory as a modern-day reality. It took great effort beyond
the normal manner in which decisions are made -- on the
basis of existing law and jurisprudence applicable to the
proven facts. To give a just and proper resolution of the
case, it endeavored to take a good look at studies conducted
here and abroad in order to understand the intricacies of the
syndrome and the distinct personality of the chronically
abused person. Certainly, the Court has learned much. And
definitely, the solicitor general and appellants counsel, Atty.
Katrina Legarda, have helped it in such learning process.
While our hearts empathize with recurrently battered
persons, we can only work within the limits of law,
jurisprudence and given facts. We cannot make or invent
them. Neither can we amend the Revised Penal Code. Only
Congress, in its wisdom, may do so.
The Court, however, is not discounting the possibility of
self-defense arising from the battered woman syndrome. We
now sum up our main points. First, each of the phases of
the cycle of violence must be proven to have characterized
at least two battering episodes between the appellant and
her intimate partner. Second, the final acute battering
episode preceding the killing of the batterer must have
produced in the battered persons mind an actual fear of an
imminent harm from her batterer and an honest belief that
she needed to use force in order to save her life. Third, at
the time of the killing, the batterer must have posed probable

-- not necessarily immediate and actual -- grave harm to the
accused, based on the history of violence perpetrated by the
former against the latter.
Taken altogether, these
circumstances could satisfy the requisites of self-defense.
Under the existing facts of the present case, however, not all
of these elements were duly established.
WHEREFORE, the conviction of Appellant Marivic
Genosa for parricide is hereby AFFIRMED. However, there
being two (2) mitigating circumstances and no aggravating
circumstance attending her commission of the offense, her
penalty is REDUCED to six (6) years and one (1) day
of prision mayor as minimum; to 14 years, 8 months and 1
day of reclusion temporal as maximum.
Inasmuch as appellant has been detained for more than the
minimum penalty hereby imposed upon her, the director of the
Bureau of Corrections may immediately RELEASE her from
custody upon due determination that she is eligible for
parole, unless she is being held for some other lawful
cause. Costs de oficio.
SO ORDERED.
DEATH OR PHYSICAL INJURIES INFLICTED UNDER

EXCEPTIONAL CIRCUMSTANCES
PEOPLE v. ABARCA
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 74433 September 14, 1987
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
FRANCISCO ABARCA, accused-appellant.
SARMIENTO, J.:
This is an appeal from the decision of the Regional Trial
Court of Palo, Leyte, sentencing the accused-appellant
Francisco Abarca to death for the complex crime of murder
with double frustrated murder.
The case was elevated to this Court in view of the death
sentence imposed. With the approval of the new
Constitution, abolishing the penalty of death and commuting
all existing death sentences to life imprisonment, we required
the accused-appellant to inform us whether or not he wished
to pursue the case as an appealed case. In compliance
therewith, he filed a statement informing us that he wished to
continue with the case by way of an appeal.
The information (amended) in this case reads as follows:
xxx xxx xxx

The undersigned City Fiscal of the City of Tacloban accuses
Francisco Abarca of the crime of Murder with Double
Frustrated Murder, committed as follows:
That on or about the 15th day of July, 1984, in the City of
Tacloban, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, with deliberate
intent to kill and with evident premeditation, and with
treachery, armed with an unlicensed firearm (armalite), M-16
rifle, did then and there wilfully, unlawfully and feloniously
attack and shot several times KHINGSLEY PAUL KOH on
the different parts of his body, thereby inflicting upon said
KHINGSLEY PAUL KOH gunshot wounds which caused his
instantaneous death and as a consequence of which also
caused gunshot wounds to LINA AMPARADO and ARNOLD
AMPARADO on the different parts of their bodies thereby
inflicting gunshot wounds which otherwise would have
caused the death of said Lina Amparado and Arnold
Amparado, thus performing all the acts of execution which
should have produced the crimes of murders as a
consequence, but nevertheless did not produce it by reason
of causes independent of his will, that is by the timely and
able medical assistance rendered to Lina Amparado and
Arnold Amparado which prevented their death. 1
xxx xxx xxx
On arraignment, the accused-appellant pleaded not guilty.
The Solicitor General states accurately the facts as follows:
Khingsley Paul Koh and the wife of accused Francisco
Abarca, Jenny, had illicit relationship. The illicit relationship
apparently began while the accused was in Manila reviewing
for the 1983 Bar examinations. His wife was left behind in
their residence in Tacloban, Leyte (pp. 45-47, 65, tsn, Sept.
24, 1984).
On July 15, 1984, the accused was in his residence in
Tacloban, Leyte. On the morning of that date he went to the
bus station to go to Dolores, Eastern Samar, to fetch his
daughter. However, he was not able to catch the first trip (in
the morning). He went back to the station in the afternoon to
take the 2:00 o'clock trip but the bus had engine trouble and
could not leave (pp. 5-8, tsn, Nov. 28, 1985). The accused,
then proceeded to the residence of his father after which he
went home. He arrived at his residence at the V & G
Subdivision in Tacloban City at around 6:00 o'clock in the
afternoon (pp. 8-9, tsn, Id.).
Upon reaching home, the accused found his wife, Jenny, and
Khingsley Koh in the act of sexual intercourse. When the
wife and Koh noticed the accused, the wife pushed her
paramour who got his revolver. The accused who was then
peeping above the built-in cabinet in their room jumped and
ran away (pp. 9-13, tsn, Id.).
The accused went to look for a firearm at Tacloban City. He
went to the house of a PC soldier, C2C Arturo Talbo, arriving

there at around 6:30 p.m. He got Talbo's firearm, an M-16
rifle, and went back to his house at V & G Subdivision. He
was not able to find his wife and Koh there. He proceeded to
the "mahjong session" as it was the "hangout" of Kingsley
Koh. The accused found Koh playing mahjong. He fired at
Kingsley Koh three times with his rifle (pp. 13-19, tsn, Id.).
Koh was hit. Arnold and Lina Amparado who were occupying
a room adjacent to the room where Koh was playing
mahjong were also hit by the shots fired by the accused (pp.
34-49, tsn, Sept. 24, 1984). Kingsley Koh died
instantaneously of cardiorespiratory arrest due to shock and
hemorrhage as a result of multiple gunshot wounds on the
head, trunk and abdomen (pp. 28-29, tsn, Sept. 24, 1984;
see also exh. A): Arnold Amparado was hospitalized and
operated on in the kidney to remove a bullet (pp. 17-23, tsn,
Oct. 17, 1984; see also exh. C). His wife, Lina Amparado,
was also treated in the hospital as she was hit by bullet
fragments (p. 23, tsn, Id.). Arnold Amparado who received a
salary of nearly P1,000.00 a month was not able to work for
1-1/2 months because of his wounds. He spent P15,000.00
for medical expenses while his wife spent Pl,000.00 for the
same purpose (pp. 24-25, tsn, Id. ). 2
On March 17, 1986, the trial court rendered the appealed
judgment, the dispositive portion whereof reads as follows:
xxx xxx xxx
WHEREFORE, finding the accused, Francisco Abarca guilty
beyond reasonable doubt of the complex crime of murder
with double frustrated murder as charged in the amended
information, and pursuant to Art. 63 of the Revised Penal
Code which does not consider the effect of mitigating or
aggravating circumstances when the law prescribes a single
indivisible penalty in relation to Art. 48, he is hereby
sentenced to death, to indemnify the heirs of Khingsley Paul
Koh in the sum of P30,000, complainant spouses Arnold and
Lina Amparado in the sum of Twenty Thousand Pesos
(P20,000.00), without subsidiary imprisonment in case of
insolvency, and to pay the costs.
It appears from the evidence that the deceased Khingsley
Paul Koh and defendant's wife had illicit relationship while he
was away in Manila; that the accused had been deceived,
betrayed, disgraced and ruined by his wife's infidelity which
disturbed his reasoning faculties and deprived him of the
capacity to reflect upon his acts. Considering all these
circumstances this court believes the accused Francisco
Abarca is deserving of executive clemency, not of full pardon
but of a substantial if not a radical reduction or commutation
of his death sentence.
Let a copy of this decision be furnished her Excellency, the
President of the Philippines, thru the Ministry of Justice,
Manila.
SO ORDERED. 3
xxx xxx xxx
The accused-appellant assigns

committed by the court a quo:
the
following
errors
I.
IN CONVICTING THE ACCUSED FOR THE CRIME AS
CHARGED INSTEAD OF ENTERING A JUDGMENT OF
CONVICTION UNDER ARTICLE 247 OF THE REVISED
PENAL CODE;
II.
IN FINDING THAT THE KILLING WAS AMENDED BY THE
QUALIFYING CIRCUMSTANCE OF TREACHERY. 4
The Solicitor General recommends that we apply Article 247
of the Revised Penal Code defining death inflicted under
exceptional circumstances, complexed with double frustrated
murder. Article 247 reads in full:
ART. 247. Death or physical injuries inflicted under
exceptional circumstances. Any legally married person
who, having surprised his spouse in the act of committing
sexual intercourse with another person, shall kill any of them
or both of them in the act or immediately thereafter, or shall
inflict upon them any serious physical injury, shall suffer the
penalty of destierro.
If he shall inflict upon them physical injuries of any other
kind, he shall be exempt from punishment.
These rules shall be applicable, under the same
circumstances, to parents with respect to their daughters
under eighteen years of age, and their seducers, while the
daughters are living with their parents.
Any person who shall promote or facilitate prostitution of his
wife or daughter, or shall otherwise have consented to the
infidelity of the other spouse shall not be entitled to the
benefits of this article.
We agree with the Solicitor General that the aforequoted
provision applies in the instant case. There is no question
that the accused surprised his wife and her paramour, the
victim in this case, in the act of illicit copulation, as a result of
which, he went out to kill the deceased in a fit of passionate
outburst. Article 247 prescribes the following elements: (1)
that a legally married person surprises his spouse in the act
of committing sexual intercourse with another person; and
(2) that he kills any of them or both of them in the act or
immediately thereafter. These elements are present in this
case. The trial court, in convicting the accused-appellant of
murder, therefore erred.
Though quite a length of time, about one hour, had passed
between the time the accused-appellant discovered his wife
having sexual intercourse with the victim and the time the
latter was actually shot, the shooting must be understood to
be the continuation of the pursuit of the victim by the

accused-appellant. The Revised Penal Code, in requiring
that the accused "shall kill any of them or both of them . . .
immediately" after surprising his spouse in the act of
intercourse, does not say that he should commit the killing
instantly thereafter. It only requires that the death caused be
the proximate result of the outrage overwhelming the
accused after chancing upon his spouse in the basest act of
infidelity. But the killing should have been actually motivated
by the same blind impulse, and must not have been
influenced by external factors. The killing must be the direct
by-product of the accused's rage.
It must be stressed furthermore that Article 247, supra, does
not define an offense. 5 In People v. Araque, 6 we said:
xxx xxx xxx
As may readily be seen from its provisions and its place in
the Code, the above-quoted article, far from defining a
felony, merely provides or grants a privilege or benefit
amounting practically to an exemption from an adequate
punishment to a legally married person or parent who
shall surprise his spouse or daughter in the act of committing
sexual intercourse with another, and shall kill any or both of
them in the act or immediately thereafter, or shall inflict upon
them any serious physical injury. Thus, in case of death or
serious physical injuries, considering the enormous
provocation and his righteous indignation, the accused
who would otherwise be criminally liable for the crime of
homicide, parricide, murder, or serious physical injury, as the
case may be is punished only withdestierro. This penalty
is mere banishment and, as held in a case, is intended more
for the protection of the accused than a punishment. (People
vs. Coricor, 79 Phil., 672.) And where physical injuries other
than serious are inflicted, the offender is exempted from
punishment. In effect, therefore, Article 247, or the
exceptional circumstances mentioned therein, amount to an
exempting circumstance, for even where death or serious
physical injuries is inflicted, the penalty is so greatly lowered
as to result to no punishment at all. A different interpretation,
i.e., that it defines and penalizes a distinct crime, would
make the exceptional circumstances which practically
exempt the accused from criminal liability integral elements
of the offense, and thereby compel the prosecuting officer to
plead, and, incidentally, admit them, in the information. Such
an interpretation would be illogical if not absurd, since a
mitigating and much less an exempting circumstance cannot
be an integral element of the crime charged. Only "acts or
omissons . . . constituting the offense" should be pleaded in
a complaint or information, and a circumstance which
mitigates criminal liability or exempts the accused therefrom,
not being an essential element of the offense charged-but a
matter of defense that must be proved to the satisfaction of
the court-need not be pleaded. (Sec. 5, Rule 106, Rules of
Court; U.S. vs. Campo, 23 Phil., 368.)
That the article in question defines no crime is made more
manifest when we consider that its counterpart in the old
Penal Code (Article 423) was found under the General
Provisions (Chapter VIII) of Title VIII covering crimes against
persons. There can, we think, hardly be any dispute that as

part of the general provisions, it could not have possibly
provided for a distinct and separate crime.
xxx xxx xxx
We, therefore, conclude that Article 247 of the Revised Penal
Code does not define and provide for a specific crime, but
grants a privilege or benefit to the accused for the killing of
another or the infliction of serious physical injuries under the
circumstances therein mentioned. ... 7
xxx xxx xxx
Punishment, consequently, is not inflicted upon the accused.
He is banished, but that is intended for his protection. 8
It shall likewise be noted that inflicting death under
exceptional circumstances, not being a punishable act,
cannot be qualified by either aggravating or mitigating or
other qualifying circumstances, We cannot accordingly
appreciate treachery in this case.
The next question refers to the liability of the accusedappellant for the physical injuries suffered by Lina Amparado
and Arnold Amparado who were caught in the crossfire as
the accused-appellant shot the victim. The Solicitor General
recommends a finding of double frustrated murder against
the accused-appellant, and being the more severe offense,
proposes the imposition of reclusion temporal in its
maximum period pursuant to Article 48 of the Revised Penal
Code. This is where we disagree. The accused-appellant did
not have the intent to kill the Amparado couple. Although as
a rule, one committing an offense is liable for all the
consequences of his act, that rule presupposes that the act
done amounts to a felony. 9
But the case at bar requires distinctions. Here, the accusedappellant was not committing murder when he discharged
his rifle upon the deceased. Inflicting death under
exceptional circumstances is not murder. We cannot
therefore hold the appellant liable for frustrated murder for
the injuries suffered by the Amparados.
This does not mean, however, that the accused-appellant is
totally free from any responsibility. Granting the fact that he
was not performing an illegal act when he fired shots at the
victim, he cannot be said to be entirely without fault. While it
appears that before firing at the deceased, he uttered
warning words ("an waray labot kagawas,") 10that is not
enough a precaution to absolve him for the injuries sustained
by the Amparados. We nonetheless find negligence on his
part. Accordingly, we hold him liable under the first part,
second paragraph, of Article 365, that is, less serious
physical injuries through simple imprudence or negligence.
(The records show that Arnold Amparado was incapacitated
for one and one-half months; 11 there is no showing, with
respect to Lina Amparado, as to the extent of her injuries.
We presume that she was placed in confinement for only ten

to fourteen days based on the medical certificate estimating
her recovery period.) 12
For the separate injuries suffered by the Amparado spouses,
we therefore impose upon the accused-appellantarresto
mayor (in its medium and maximum periods) in its maximum
period, arresto to
being
the
graver
penalty
(than destierro). 13
WHEREFORE, the decision appealed from is hereby
MODIFIED. The accused-appellant is sentenced to four
months and 21 days to six months of arresto mayor. The
period within which he has been in confinement shall be
credited in the service of these penalties. He is furthermore
ordered to indemnify Arnold and Lina Amparado in the sum
of P16,000.00 as and for hospitalization expense and the
sum of P1,500.00 as and for Arnold Amparado's loss of
earning capacity. No special pronouncement as to costs.
then and there willfully, unlawfully and feloniously attack,

assault, stab and wound one Jesus Esquierdo, thereby
inflicting upon him the following physical injuries, to wit:
Cardiorespiratory arrest
Hypovolemic shock irreversible
Multiple organ injury
Multiple stab wound chest & abdomen
and as a result thereof the said Jesus Esquierdo died.
Contrary to and in violation of Article 248 of the Revised
Penal Code with the aggravating circumstances (sic) of
evident premeditation.[5]
Criminal Case No. 6018
IT IS SO ORDERED.
PEOPLE v. OYANIB
FIRST DIVISION
[G.R. Nos. 130634-35. March 12, 2001]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.
MANOLITO OYANIB y MENDOZA, accusedappellant.
That on or about September 4, 1995, in the City of Iligan,

Court, the said accused, having conceived and (sic)
deliberate intent to kill his wife Tita Oyanib, did then and
there willfully, unlawfully and feloniously and with evident
premeditation, attack, assault, stab and wound his wife, as a
result of said attack, the said Tita Oyanib died.
Contrary to and in violation of Article 246 of the Revised
Penal Code.[6]
DECISION
The prosecutor recommended no bail for the temporary

liberty of accused Manolito Oyanib y Mendoza in both
cases.
Accused Manolito Oyanib y Mendoza appeals from the

joint decision[1] of the Regional Trial Court, Branch 02, Iligan
City finding him guilty beyond reasonable doubt of homicide
and parricide and sentencing him to an indeterminate
penalty[2] of six (6) months one day (1) to six (6) years
of prision correccional as minimum to six (6) years one (1)
day to eight (8) years of prision mayor as maximum,[3]and to
pay P50,000.00 civil indemnity and the costs for the death of
Jesus Esquierdo, and to reclusion perpetua, to pay
P50,000.00 and the costs for the death of his wife, Tita T.
Oyanib.[4]
On September 11, 1995, accused voluntarily

surrendered to the police authorities[7] and was immediately
detained at the Iligan City Jail.[8]
On September 11, 1995, Iligan City Prosecutor Ulysses

V. Lagcao filed with the Regional Trial Court, Iligan City two
(2) separate informations charging accused Manolito Oyanib
y Mendoza with murder and parricide, as follows:
Accused Manolito Oyanib y Mendoza (hereafter

Manolito) and Tita T. Oyanib (hereafter Tita) were married on
February 3, 1979[10] and had two (2) children, Desilor and
Julius. They lived in Purok 1, Tambacan, Iligan City.
Criminal Case No. 6012
In 1994, due to marital differences, Manolito and

Tita separated, with Manolito keeping custody of their two
(2) children. Tita rented a room at the second floor of the
house of Edgardo Lladas (hereafter Edgardo), not far from
the place where her family lived.
PARDO, J.:
That on or about September 4, 1995, in the City of Iligan,

Court, the said accused, armed with a deadly weapon to wit:
a hunting knife about six inches long and with intent to kill
and evident premeditation and by means of treachery, did
On January 17, 1996, the trial court arraigned accused

Manolito Oyanib y Mendoza by reading the informations
against him and translating them into the Visayan dialect.
[9]
He pleaded not guilty to both charges.
As the two (2) cases arose from the same set of facts,
the trial court conducted a joint trial.

At about 9:30 in the evening of September 4, 1995,
while Edgardo and his family were watching TV at
the sala located at the ground floor of their house at Purok 3A, Tambacan, Iligan City, they heard a commotion coming
from the second floor rented by Tita. The commotion and
the noise lasted for quite some time. When it died down,
Edgardo went upstairs to check.[11]
Upstairs, Edgardo saw Tita wearing a duster, bloodied
and sprawled on the floor. He saw Manolito stabbing Jesus
Esquierdo (hereafter Jesus) while sitting on the latters
stomach. Jesus was wearing a pair of long black
pants. When Edgardo asked Manolito what he was doing,
accused told Edgardo not to interfere.
Thereafter, Edgardo left the house and called the
police. Meanwhile, the neighbors brought Tita to the
hospital. She died on the way to the hospital.[12]
SPO3 Eduard Tubil, police investigator, General
Investigation Office, Iligan City Police Command, Precinct I,
Poblacion, Iligan City said that at about 9:00 in the evening
of September 4, 1995, while he was on duty, he received an
information regarding a stabbing incident at the Llagas
residence at Purok 3-A, Tambacan, Iligan City.[13]
At the crime scene, SPO3 Tubil saw the lifeless body of
Jesus lying face up with several stab wounds in different
parts of the body. Jesus was clad in t-shirt and long pants.
From the crime scene, he recovered a knife. Afterwards, he
went to Dr. Uy Hospital to check on Tita; he was informed
that she was dead. Manolito was the suspect in the killing
of Jesus and Tita.[14] The incident was recorded in the police
blotter as Entry No. 137138.[15]
On September 5, 1995, Dr. Leonardo A. Labanon,
Medico-Legal Officer, Iligan City examined the bodies of
Jesus and Tita.[16] Jesus sustained multiple stab wounds, and
those inflicted in the right and left chests and stomach were
fatal.[17] The cause of death was cardiorespiratory arrest,
hypovolemic shock irreversible, multiple organ injury and
multiple stab wound chest and abdomen.[18]
Likewise, Tita sustained several stab wounds, with the
fatal wounds inflicted in the left chest and right side of the
abdomen. The cause of death was cardiorespiratory arrest,
hypovolemic shock and multiple stab wound.[19]
As heretofore stated, in 1994, following a series of
arguments,
Manolito
and
Tita
decided
to
live
separately. Manolito retained custody of their two (2)
children. Immediately after the separation, Tita stayed at her
friend Merlyns house for two (2) months. Afterwards, she
transferred to the Lladas residence, located at Purok 3, G.
Tambacan, Iligan City, and rented the second floor.[20] The
rented space consisted mainly of a sala with one adjoining
room. It was arranged in a manner that if one enters the
main entrance door, one is immediately led to the sala and
from the sala, directly to the door of the adjoining room.
Despite their separation, Manolito tried to win Tita back

and exerted all efforts towards reconciliation for the sake of
the children. However, Tita was very reluctant to reconcile
with Manolito.[21] In fact, she was very open about her
relationship with other men and would flaunt it in front of
Manolito. One time, he chanced upon his wife and her
paramour, Jesus, in a very intimate situation by the hanging
bridge at Brgy. Tambacan, Iligan City.[22] Manolito confronted
Tita and Jesus about this. He censured his wife and
reminded her that she was still his wife. They just ignored
him; they even threatened to kill him.[23]
In the evening of September 4, 1995, after supper, his
daughter Desilor handed Manolito a letter from the Iligan City
National High School. The letter mentioned that his son
Julius failed in two (2) subjects and invited his parents to a
meeting at the school. Because he had work from 8:00 in
the morning until 5:00 in the afternoon the next day,
Manolito went to Titas house to ask her to attend the school
meeting in his behalf.[24]
Upon reaching Titas rented place, he heard sounds of
romance (kissing) coming from the inside. He pried open
the door lock using a hunting knife. He caught his wife Tita
and Jesus having sexual intercourse. Jesus was on top of
Tita and his pants were down to his knees.
Upon seeing him, Jesus kicked Manolito in the
cheek. Manolito immediately stabbed Jesus. Though Jesus
was 59 in height and weighed about 70 kg., the
suddenness of the assault caused him to lose his balance
and fall down. Manolito took advantage of this opportunity
and stabbed Jesus in the stomach. Tita left the room upon
seeing Manolito, only to come back armed with a Tanduay
bottle. She hit Manolito in the head, while at the same time
shouting kill him Jake, kill him Jake.[25]
In the commotion, Manolito stabbed Jesus, hitting him
in the abdomen. Jesus fell down and Manolito stabbed him
again. Meanwhile, Tita stabbed Manolito in the arm with the
broken Tanduay bottle. This angered Manolito and he
stabbed Tita in the left breast. He stabbed her three (3)
more times in different parts of her body. Tita fell near the
lifeless body of her paramour. It was at this point that
Edgardo, the owner of the house Tita was renting, appeared
from the ground floor and inquired about what had
happened. Manolito told Edgardo not to interfere because
he had nothing to do with it.
Thereafter, Manolito left the house of Edgardo and
went to Kilumco, Camague, Iligan City and stayed at the
wake of his friends neighbor. He threw away the knife he
used in stabbing his wife and her paramour. At around 4:00
in the morning of the following day, he went to Camague
Highway to catch a bus for Lentogan, Aurora,
Zamboanga. While in Lentogan, he heard over radio DXIC
that there was a call for him to surrender. He heeded the call
and gave himself up to the police authorities in Precinct 2,
Nonocan, Iligan City.[26]

When asked why he was carrying a knife when he went
to his wifes place, Manolito said that he brought it for selfdefense. Prior to the incident, he received threats from his
wife and her paramour, Jesus, that they would kill him so
they could live together.[27]
After trial, on May 26, 1997, the trial court promulgated
a joint decision finding accused guilty beyond reasonable
doubt of the crimes charged. The dispositive portion reads:
WHEREFORE, in the light of the foregoing findings and
pronouncements and having carefully observed the
demeanor of witnesses, this Court hereby declares accused
MANOLITO OYANIB y Mendoza GUILTY beyond reasonable
doubt of the crime of Homicide (Crim. Case No. II-6012) and
Parricide (Crim. Case No. II-6018) and appreciating the two
(2) mitigating circumstances of passion or obfuscation and
voluntary surrender without any aggravating circumstances
to consider, this Court sentences accused Manolito Oyanib y
Mendoza to suffer an imprisonment as follows:
1) In Criminal Case No. II-6012:
To an Indeterminate Penalty ranging from SIX (6) MONTHS
ONE (1) DAY to SIX (6) YEARS as Minimum to Six (6)
YEARS ONE (1) DAY to EIGHT (8) YEARS as Maximum; to
indemnify heirs of Jesus Esquierdo the sum of P50,000.00
as civil indemnity, and to pay the costs.
2) In Criminal Case No. II-6018:
To RECLUSION PERPETUA pursuant to Republic Act No.
7659; to indemnify heirs of his wife P50,000.00 as civil
indemnity and to pay the costs.
It is likewise ordered that the aforesaid imprisonment is
subject to the forty (40) years limitation prescribed in Article
70 of the Revised Penal Code.
Accused is likewise entitled to full credit of his preventive
imprisonment.
SO ORDERED.
Iligan City, Philippines, May 26, 1997.
MAXIMO B. RATUNIL
Presiding Judge[28]
On June 17, 1997, accused Manolito Oyanib y
Mendoza interposed an appeal from the joint decision of the
trial court to the Supreme Court.[29]
Accused admitted the killings. He argued that he killed
them both under the exceptional circumstances provided in
Article 247 of the Revised Penal Code. He raised several
errors allegedly committed by the trial court, which boiled

down to the basic issue of whether accused is entitled to the
exceptional privilege under Article 247 of the Revised Penal
Code.[30] He questioned the trial courts appreciation of the
facts and the evidence, contending that it ignored and
overlooked vital pieces of physical evidence material to the
defense of the accused, like the photograph of the lifeless
body of Jesus. Accused contends that the photograph
graphically showed that Jesus pants were wide open,
unzipped and unbuttoned, revealing that he was not wearing
any underwear, lending credence to his defense that he
caught his wife and her paramour in the act of sexual
intercourse. On the other hand, the Solicitor General
submitted that accused-appellant failed to discharge the
burden of proving, by clear and convincing evidence, that he
killed the victims under the exceptional circumstances
contemplated in Article 247 of the Revised Penal
Code. Hence, the trial court did not err in denying him the
exempting privilege under the Article.[31]
We find the appeal meritorious.
At the outset, accused admitted killing his wife and her
paramour. He invoked Article 247 of the Revised Penal
Code as an absolutory and an exempting cause. An
absolutory cause is present where the act committed is a
crime but for reasons of public policy and sentiment there is
no penalty imposed.[32]
Having admitted the killing, it is incumbent upon
accused to prove the exempting circumstances to the
satisfaction of the court in order to be relieved of any criminal
liability. Article 247 of the Revised Penal Code prescribes
the following essential elements for such a defense: (1) that
a legally married person surprises his spouse in the act of
committing sexual intercourse with another person; (2) that
he kills any of them or both of them in the act or
immediately thereafter; and (3) that he has not promoted or
facilitated the prostitution of his wife (or daughter) or that he
or she has not consented to the infidelity of the other spouse.
[33]
Accused must prove these elements by clear and
convincing evidence, otherwise his defense would be
untenable. The death caused must be the proximate result
of the outrage overwhelming the accused after chancing
upon his spouse in the act of infidelity. Simply put, the killing
by the husband of his wife must concur with her flagrant
adultery.[34]
There is no question that the first element is present in
the case at bar. The crucial fact that accused must
convincingly prove to the court is that he killed his wife and
her paramour in the act of sexual intercourse or immediately
thereafter.
After an assiduous analysis of the evidence presented
and the testimonies of the witnesses, we find accused to
have acted within the circumstances contemplated in Article
247 of the Revised Penal Code. Admittedly, accusedappellant surprised his wife and her lover in the act of sexual
intercourse.

To the mind of the court, what actually happened was
that accused chanced upon Jesus at the place of his
wife. He saw his wife and Jesus in the act of having sexual
intercourse. Blinded by jealousy and outrage, accused
stabbed Jesus who fought off and kicked the accused. He
vented his anger on his wife when she reacted, not in
defense of him, but in support of Jesus. Hence, he stabbed
his wife as well several times. Accused Manolito Oyanib y
Mendoza surrendered to the police when a call for him to
surrender was made.
The law imposes very stringent requirements before
affording the offended spouse the opportunity to avail himself
of Article 247, Revised Penal Code. As the Court put it
in People v. Wagas:[35]
The vindication of a Mans honor is justified because of the
scandal an unfaithful wife creates; the law is strict on this,
authorizing as it does, a man to chastise her, even with
death. But killing the errant spouse as a purification is so
severe as that it can only be justified when the unfaithful
spouse is caught in flagrante delicto; and it must be resorted
to only with great caution so much so that the law requires
that it be inflicted only during the sexual intercourse or
immediately thereafter.
WHEREFORE, the Court REVERSES the appealed
decision of the Regional Trial Court, Branch 02, Iligan City in
Criminal Cases Nos. II-6012 and II-6018. The Court
sentences accused Manolito Oyanib y Mendoza to two (2)
years and four (4) months of destierro.[36] He shall not be
permitted to enter Iligan City, nor within a radius of one
hundred (100) kilometers from Iligan City.[37]
device, unless such sale, dispensation or distribution is by a

duly licensed drug store or pharmaceutical company and
with the prescription of a qualified medical practitioner.
Section
2.
For
the
purpose
of
this
Act:
(a) Contraceptive drug is any medicine, drug, chemical, or
portion which is used exclusively for the purpose of
preventing fertilization of the female ovum: and
(b) Contraceptive device is any instrument, device,
material, or agent introduced into the female reproductive
system for the primary purpose of preventing conception.
Section 3. Any person, partnership, or corporation, violating
the provisions of this Act shall be punished with a fine of not
more than five hundred pesos or an imprisonment of not less
than six months or more than one year or both in the
discretion of the Court.
This Act shall take effect upon its approval.
Approved, June 18, 1966.
MUTILATION
AGUIRRE v. SECRETARY OF JUSTICE
SUPREME COURT
Manila
THIRD DIVISION
Costs de oficio.
G.R. No. 170723
SO ORDERED.
UNINTENTIONAL ABORTION
PEOPLE v. SALUFRANJA
GLORIA PILAR S. AGUIRRE, petitioner,

vs.
SECRETARY OF THE DEPARTMENT OF JUSTICE,
MICHELINA S. AGUIRRE-OLONDRIZ, PEDRO B.
AGUIRRE, DR. JUVIDO AGATEP and DR. MARISSA B.
PASCUAL, respondents.
DECISION
ABORTION
RA 4729
REPUBLIC ACT NO. 4729
AN ACT TO REGULATE THE SALE, DISPENSATION,

AND/OR DISTRIBUTION OF CONTRACEPTIVE DRUGS
AND DEVICES
Section 1. It shall be unlawful for any person, partnership, or
corporation, to sell, dispense or otherwise distribute whether
for or without consideration, any contraceptive drug or
March 3, 2008
CHICO-NAZARIO, J.:
In this petition for review on certiorari1 under Rule 45 of the
Rules of Court, as amended, petitioner Gloria Pilar S. Aguirre
(Gloria Aguirre) seeks the reversal of the 21 July 2005
Decision2 and 5 December 2005 Resolution,3 both of the
Court of Appeals in CA-G.R. SP No. 88370, entitled "Gloria
Pilar S. Aguirre v. Secretary of the Department of Justice,
Michelina S. Aguirre-Olondriz, Dr. Juvido Agatep, Dra.
Marissa B. Pascual, Pedro B. Aguirre and John and Jane
Does."

The Court of Appeals found no grave abuse of discretion on
the part of the Secretary of the Department of Justice (DOJ)
when the latter issued the twin resolutions dated 11 February
20044 and 12 November 2004,5 respectively, which in turn
affirmed the 8 January 2003 Resolution 6 of the Office of the
City Prosecutor (OCP) of Quezon City.
The Assistant City Prosecutor for the OCP of Quezon City
recommended the dismissal of the criminal complaint,
docketed as I.S. No. 02-12466, for violation of Articles 172
(Falsification by Private Individuals and Use of Falsified
Documents) and 262 (Mutilation), both of the Revised Penal
Code, in relation to Republic Act No. 7610, otherwise known
as "Child Abuse, Exploitation and Discrimination Act," for
insufficiency of evidence.
The case stemmed from a complaint filed by petitioner Gloria
Aguirre against respondents Pedro B. Aguirre (Pedro
Aguirre), Michelina S. Aguirre-Olondriz (Olondriz), Dr. Juvido
Agatep (Dr. Agatep), Dr. Marissa B. Pascual (Dr. Pascual)
and several John/Jane Does for falsification, mutilation and
child abuse.
The antecedents of the present petition are:
Laureano "Larry" Aguirre7 used to be a charge of the Heart of
Mary Villa, a child caring agency run by the Good Shepherd
Sisters and licensed by the Department of Social Work and
Development (DSWD). Sometime in 1978, respondent Pedro
Aguirre; the latter's spouse, Lourdes S. Aguirre (Lourdes
Aguirre); and their four daughters, who included petitioner
Gloria Aguirre and respondent Olondriz, came to know Larry,
who was then just over a year old. The Aguirres would have
Larry spend a few days at their home and then return him to
the orphanage thereafter. In June 1980, Larry, then two
years and nine months of age, formally became the ward of
respondent Pedro Aguirre and his spouse Lourdes Aguirre
by virtue of an Affidavit of Consent to Legal
Guardianshipexecuted in their favor by Sister Mary Concepta
Bellosillo, Superior of the Heart of Mary Villa. On 19 June
1986, the Aguirre spouses' guardianship of Larry was
legalized when the Regional Trial Court (RTC), Branch 3 of
Balanga, Bataan, duly appointed them as joint co-guardians
over the person and property of Larry.
As Larry was growing up, the Aguirre spouses and their
children noticed that his developmental milestones were
remarkably delayed. His cognitive and physical growth did
not appear normal in that "at age 3 to 4 years, Larry could
only crawl on his tummy like a frog x x x;" 8 he did not utter
his first word until he was three years of age; did not speak
in sentences until his sixth year; and only learned to stand up
and walk after he turned five years old. At age six, the
Aguirre spouses first enrolled Larry at the Colegio de San
Agustin, Dasmarias Village, but the child experienced
significant learning difficulties there. In 1989, at age eleven,
Larry was taken to specialists for neurological and
psychological
evaluations.
The
psychological
evaluation9 done on Larry revealed the latter to be suffering
from a mild mental deficiency.10 Consequent thereto, the
Aguirre spouses transferred Larry to St. John Ma. Vianney,

an educational institution for special children.
In November of 2001, respondent Dr. Agatep, a
urologist/surgeon, was approached concerning the intention
to have Larry, then 24 years of age, vasectomized. Prior to
performing the procedure on the intended patient,
respondent Dr. Agatep required that Larry be evaluated by a
psychiatrist in order to confirm and validate whether or not
the former could validly give his consent to the medical
procedure on account of his mental deficiency.
In view of the required psychiatric clearance, Larry was
brought to respondent Dr. Pascual, a psychiatrist, for
evaluation. In a psychiatric report dated 21 January 2002,
respondent Dr. Pascual made the following recommendation:
[T]he responsibility of decision making may be given to his
parent or guardian.11
the full text of which reads
PSYCHIATRY REPORT
21 January 2002
GENERAL DATA
LAUREANO AGUIRRE, 24 years old, male, high school
graduate of St. John [Marie Vianney], was referred for
psychiatric evaluation to determine competency to give
consent for vasectomy.
CLINICAL SUMMARY
Larry was adopted at age 3 from an orphanage and prenatal
history is not known to the adoptive family except that
abortion was attempted. Developmental milestones were
noted to be delayed. He started to walk and speak in single
word at around age 5. He was enrolled in Colegio de San
Agustin at age 6 where he showed significant learning
difficulties that he had to repeat 1st and 4th grades. A consult
was done in 1989 when he was 11 years old. Neurological
findings and EEG results were not normal and he was given
Tecretol and Encephabol by his neurologist. Psychological
evaluation revealed mild to moderate mental retardation,
special education training was advised and thus, he was
transferred to St. John Marie Vianney. He finished his
elementary and secondary education in the said school. He
was later enrolled in a vocational course at Don Bosco which
he was unable to continue. There has been no reported
behavioral problems in school and he gets along relatively
well with his teachers and some of his classmates.
Larry grew up with a very supportive adoptive family. He is
the youngest in the family of four sisters. Currently, his
adoptive parents are already old and have medical problem
and thus, they could no longer monitor and take care of him
like before. His adoptive mother has Bipolar Mood Disorder

and used to physically maltreat him. A year ago, he had an
episode of dizziness, vomiting and headaches after he was
hit by his adoptive mother. Consult was done in Makati
Medical Center and several tests were done, results of which
were consistent with his developmental problem. There was
no evidence of acute insults. The family subsequently
decided that he should stay with one of his sisters to avoid
similar incident and the possibility that he would retaliate
although he has never hurt anybody. There has been no
episode of violent outburst or aggressive behavior. He would
often keep to himself when sad, angry or frustrated.
vacuo dilatation of the atria of lateral ventricles associated

thinned posterior half of the corpus callosum.
He is currently employed in the company of his sister and

given assignment to do some photocopying, usually in the
mornings. He enjoys playing billiards and basketball with his
nephews and, he spends most of his leisure time watching
TV and listening to music. He could perform activities of daily
living without assistance except that he still needs
supervision in taking a bath. He cannot prepare his own
meal and never allowed to go out and run errands alone. He
does not have friends and it is only his adoptive family whom
he has significant relationships. He claims that he once had
a girlfriend when he was in high school who was more like a
best friend to him. He never had sexual relations. He has
learned to smoke and drink alcohol few years ago through
his cousins and the drivers. There is no history of abuse of
alcohol or any prohibited substances.
Axis IV None at present
ASSESSMENT AND RECOMMENDATION

Axis I None
Axis II Mental Retardation, mild to moderate type
Axis III None
Axis V Current GAF = 50-60

Larry's mental deficiency could be associated with possible
perinatal insults, which is consistent with the neuroimaging
findings. Mental retardation associated with neurological
problems usually has poorer prognosis. Larry is very much
dependent on his family for his needs, adaptive functioning,
direction and in making major life decisions. At his capacity,
he may never understand the nature, the foreseeable risks
and benefits, and consequences of the procedure
(vasectomy) that his family wants for his protection. Thus,
the responsibility of decision making may be given to his
parent or guardian.
MEDICAL STATUS EXAMINATION

The applicant was appropriately dressed. He was
cooperative and he had intermittent eye contact. Speech
was spontaneous, soft, and relevant. He responded to
questions in single words or simple sentences. He was
anxious specially at the start of the interview, with full affect
appropriate to mood and thought content. There was no
apparent
thought or perceptual
disturbance. No
suicidal/homicidal thoughts elicited. He was oriented to time,
place and person. He has intact remote and recent memory.
He could do simple calculation. He could write his name and
read simple words. His human figure was comparable to a 78 year old. He demonstrated fair judgment and poor insight.
He had fair impulse control.
PSYCHOLOGICAL TESTS
Psychological tests done on March 6, 1990 (Dr. Lourdes
Ledesma) and on August 4, 2000 (Dr. Ma. Teresa GustiloVillaosor) consistently revealed mild to moderate mental
deficiency.
SIGNIFICANT LABORATORY EXAMS RESULTS
CT scan done 09 January 2001 showed nonspecific right
deep parietal subcortical malacia. No localized mass lesion
in the brain.
MRI done on 10 January 2001 showed bilateral parietal x x x
volume loss, encephalomalacia, gliosis and ulegyria
consistent with sequela of postnatal or neonatal infarcts. Ex-
Marissa B. Pascual, M.D.

Psychiatrist12
Considering the above recommendation, respondent Pedro

Aguirre's written consent was deemed sufficient in order to
proceed with the conduct of the vasectomy. Hence, on 31
January 2002, respondent Dr. Agatep performed a bilateral
vasectomy on Larry.
On 11 June 2002, petitioner Gloria Aguirre, respondent
Pedro Aguirre's eldest child, instituted a criminal complaint
for the violation of the Revised Penal Code, particularly
Articles 172 and 262, both in relation to Republic Act No.
7610 against respondents Pedro Aguirre, Olondriz, Dr.
Agatep, Dr. Pascual and several John/Jane Does before the
Office of the City Prosecutor of Quezon City.
The Complaint Affidavit,13 docketed as I.S. No. 02-12466,
contained the following allegations:
2. x x x Dr. Agatep and Dra. Pascual were (sic) medical
practitioners specializing in urology and psychiatry
respectively; while respondent Pedro B. Aguirre is my father;
Michelina S. Aguirre-Olondriz is my sister, and the victim
Laureano "Larry" Aguirre xxx is my common law brother.
JOHN and JANE DOES were the persons who, acting upon
the apparent instructions of respondents Michelina AguirreOlondriz and/or Pedro B. Aguirre, actually scouted,
prospected, facilitated, solicited and/or procured the medical

services of respondents Dra. Pascual and Dr. Agatep vis-vis the intended mutilation via bilateral vasectomy of my
common law brother Larry Aguirre subject hereof.
xxxx
4. Sometime in March 2002, however, the Heart of Mary Villa
of the Good Shepherd Sisters was furnished a copy of
respondent Dra. Pascual's Psychiatry Report dated 21
January 2004 by the "DSWD," in which my common law
brother "Larry" was falsely and maliciously declared
incompetent and incapable of purportedly giving his own
consent to the MUTILATION VIA BILATERAL VASECTOMY
intended to be performed on him by all the respondents.
xxxx
6. Based on the foregoing charade and false pretenses
invariably committed by all of the respondents in conspiracy
with each other, on 31 January 2002, my common law
brother Larry Aguirre, although of legal age but
conspiratorially caused to be declared by respondents to be
"mentally deficient" and incompetent to give consent to his
BILATERAL VASECTOMY, was then intentionally, unlawfully,
maliciously, feloniously and/or criminally placed thereafter
under surgery for MUTILATION VIA "BILATERAL
VASECTOMY"
x
x
x,
EVEN
WITHOUT
ANY
AUTHORIZATION ORDER from the GUARDIANSHIP
COURT, nor personal consent of Larry Aguirre himself.
In addition to the above, the complaint included therein an
allegation that
v. x x x without a PRIOR medical examination, professional
interview of nor verification and consultation with my mother,
Lourdes
Sabino-Aguirre,
respondent
Dra.
Pascual
baselessly, fraudulently and with obvious intent to defame
and malign her reputation and honor, and worse, that of our
Sabido family, falsely concluded and diagnosed, via her
falsified Psychiatry Report, that my mother Lourdes SabidoAguirre purportedly suffers from "BIPOLAR MOOD
DISORDER" x x x.
To answer petitioner Gloria Aguirre's accusations against
them, respondents Pedro Aguirre, Olondriz, Dr. Agatep and
Dr. Pascual submitted their respective Counter-Affidavits.
In her defense,14 respondent Olondriz denied that she
"prospected, scouted, facilitated, solicited and/or procured
any false statement, mutilated or abused" her common-law
brother, Larry Aguirre. Further, she countered that:
3. x x x While I am aware and admit that Larry went
through a vasectomy procedure, there is nothing in the
Complaint which explains how the vasectomy amounts to a
mutilation.
xxxx
5. In any case, as I did not perform the vasectomy, I can

state with complete confidence that I did not participate in
any way in the alleged mutilation.
6. Neither did I procure or solicit the services of the physician
who performed the vasectomy, Dr. Juvido Agatep x x x. It
was my father, Pedro Aguirre, Larry's guardian, who obtained
his services. I merely acted upon his instructions and
accompanied my brother to the physician, respondents Dra.
Marissa B. Pascual x x x.
xxxx
10. Neither does the Complaint explain in whatmanner the
Complainant is authorized or has any standing to declare
that Larry's consent was not obtained. Complainant is not the
guardian or relative of Larry. While she argues that Larry's
consent should have been obtained the Complaint does not
dispute the psychiatrist's findings about Larry's inability to
give consent.
xxxx
13. x x x the Complaint does not even state what alleged
participation was falsified or the portion of the psychiatric
report that allegedly states that someone participated when
in fact that person did not so participate.
xxxx
15. Again, I had no participation in the preparation of the
report of Dr. Pascual x x x.
xxxx
17. x x x the Complaint does not dispute that he (Larry) is
mentally deficient or incompetent to give consent.
xxxx
19. x x x I verified that the effect of a vasectomy operation
was explained to him (Larry) by both respondent doctors.
20. x x x I accompanied Larry and obeyed my father on the
belief that my father continues to be the legal guardian of
Larry. I know of no one else who asserts to be his legal
guardian x x x.15
Alleging the same statement of facts and defenses,
respondent Pedro Aguirre argues against his complicity in
the crime of mutilation as charged and asserts that:
5. In any case, as I did not perform the vasectomy, I can
state with complete confidence that I did not participate in
any way in the alleged mutilation.16
Nevertheless, he maintains that the vasectomy performed on
Larry does not in any way amount to mutilation, as the

latter's reproductive organ is still completely intact. 17 In any
case, respondent Pedro Aguirre explains that the procedure
performed is reversible through another procedure called
Vasovasostomy, to wit:
8. I understand that vasectomy is reversible through a
procedure called Vasovasostomy. I can also state with
confidence that the procedure enables men who have
undergone a vasectomy to sire a child. Hence,
no permanent damage was caused by the procedure.
Respondent Pedro Aguirre challenges the charge of
falsification in the complaint, to wit:
14. x x x I did not make it appear that any person
participated in any act or proceeding when that person did
not in fact participate x x x.
xxxx
16. x x x I had no participation in the preparation of the report
of Dra. Pascual. She arrived at her report independently,
using her own professional judgment x x x.
xxxx
31. What I cannot understand about Petita's Complaint is
how Larry is argued to be legally a child under the definition
of one law but nonetheless and simultaneously argued to be
capacitated to give his consent as fully as an adult.18
Respondent Pedro Aguirre further clarifies that coguardianship over Larry had been granted to himself and his
wife, Lourdes Aguirre, way back on 19 June 1986 by the
Regional Trial Court, Branch 3 of Balanga, Bataan.
Respondent Pedro Aguirre contends that being one of the
legal guardians, consequently, parental authority over Larry
is vested in him. But assuming for the sake of argument that
Larry does have the capacity to make the decision
concerning his vasectomy, respondent Pedro Aguirre argues
that petitioner Gloria Aguirre has no legal personality to
institute the subject criminal complaint, for only Larry would
have the right to do so.
Just as the two preceding respondents did, respondent Dr.
Agatep also disputed the allegations of facts stated in the
Complaint. Adopting the allegations of his co-respondents
insofar as they were material to the charges against him, he
vehemently denied failing to inform Larry of the intended
procedure. In his counter-statement of facts he averred that:
(b) x x x I scheduled Larry for consultative interview x x x
wherein I painstakingly explained what vasectomy is and the
consequences thereof; but finding signs of mental deficiency,
x x x I advised his relatives and his nurse who accompanied
him to have Larry examined by a psychiatrist who could
properly determine whether or not Larry x x x can really give
his consent, thus I required them to secure first a psychiatric
evaluation and
procedure.
clearance
prior
to
the
contemplated
(c) On January 21, 2002, I was furnished a copy of a

psychiatric report prepared by Dr. Marissa Pascual x x x. In
her said report, Dr. Pascual found Larry to suffer from
"mental retardation, mild to moderate type" and further
stated that "at his capacity, he may never understand the
nature, the foreseeable risks and benefits and consequences
of the procedure (vasectomy) x x x, thus the responsibility of
decision making may be given to his parent or guardian x x
x."
(d) x x x I was likewise furnished a copy of an affidavit
executed by Pedro Aguirre stating that he was the legal
guardian of Larry x x x Pedro Aguirre gave his consent to
vasectomize Larry x x x.
(e) Only then, specifically January 31, 2002, vasectomy was
performed with utmost care and diligence.19
In defense against the charge of falsification and mutilation,
respondent Dr. Agatep argued that subject complaint should
be dismissed for the following reasons:
1. The complainant has no legal personality to file this case.
As mentioned above, she is only a common law sister of
Larry who has a legal guardian in the person of Pedro
Aguirre, one of the herein respondents x x x.
2. x x x [t]he allegations in the complaint clearly centers on
the condition of complainant's mother, Lourdes Aguirre, her
reputation, and miserably fails to implicate the degree of
participation of herein respondent. x x x
xxxx
(b) Falsification. x x x I strongly aver that this felony does not
apply to me since it clearly gives reference to co-respondent,
Dr. Marissa Pascual's Psychiatry Report, dated January 21,
2002, in relation with her field of profession, an expert
opinion. I do not have any participation in the preparation of
said report, x x x neither did I utilized (sic) the same in any
proceedings to the damage to another. x x x I also deny
using a falsified document x x x.
(c) Mutilation. x x x Vasectomy does not in anyway equate to
castration and what is touched in vasectomy is not
considered an organ in the context of law and medicine, it is
quite remote from the penis x x x.
(d) Child Abuse. x x x the complaint-affidavit is very vague in
specifying the applicability of said law. It merely avers that
Laureano "Larry" Aguirre is a child, and alleges his father,
Pedro Aguirre, has parental authority over him x x x.20
Similarly, respondent Dr. Pascual denied the criminal
charges of falsification and mutilation imputed to her. She

stands by the contents of the assailed Psychiatric Report,
justifying it thus:
x x x My opinion of Larry Aguirre's mental status was based
on my own personal observations, his responses during my
interview of him, the results of the two (2) psychological tests
conducted by clinical psychologists, the results of laboratory
tests, including a CT Scan and MRI, and his personal and
family history which I obtained from his sister, Michelina
Aguirre-Olondriz x x x.
5. x x x the reference in my report concerning Mrs. Lourdes
Aguirre is not a statement of my opinion of Mrs. Aguirre's
mental status, x x x. Rather, it is part of the patient's personal
and family history as conveyed to me by Mrs. AguirreOlondriz.
6. x x x An expression of my opinion, especially of an expert
opinion, cannot give rise to a charge for falsification. A
contrary opinion by another expert only means that the
experts differ, and does not necessarily reflect on the truth or
falsity of either opinion x x x.
7. x x x I never stated that I examined Mrs. Aguirre, because
I never did x x x.
8. I had no participation in the surgery performed on Larry
Aguirre except to render an opinion on his capacity to give
informed consent to the vasectomy x x x.
9. Without admitting the merits of the complaint, I submit that
complainants are not the proper persons to subscribe to the
same as they are not the offended party, peace officer or
other public officer charged with the enforcement of the law
violated x x x.21
The Assistant City Prosecutor held that the circumstances
attendant to the case did not amount to the crime of
falsification. He held that
[T]he claim of the complainant that the Psychiatric Report
was falsified, because consent was not given by Larry
Aguirre to the vasectomy and/or he was not consulted on
said operation does not constitute falsification. It would have
been different if it was stated in the report that consent was
obtained from Larry Aguirre or that it was written therein that
he was consulted on the vasectomy, because that would
mean that it was made to appear in the report that Larry
Aguirre participated in the act or proceeding by giving his
consent or was consulted on the matter when in truth and in
fact, he did not participate. Or if not, the entry would have
been an untruthful statement. But that is not the case.
Precisely (sic) the report was made to determine whether
Larry Aguirre could give his consent to his intended
vasectomy. Be that as it may, the matter of Larry's consent
having obtained or not may nor be an issue after all,
because complainant's (sic) herself alleged that Larry's
mental condition is that of a child, who can not give consent.
Based on the foregoing consideration, no falsification can be
established under the circumstances.22
Even the statement in the Psychiatric Report of respondent

Dr. Pascual that Lourdes Aguirre had Bipolar Mood Disorder
cannot be considered falsification since
The report did not state that Lourdes Aguirre was in fact
personally interviewed by respondent Dr. Pascual and that
the latter concluded that Lourdes Aguirre has Bipolar Mood
Disorder. The report merely quoted other sources of
information with respect to the condition of Lourdes Aguirre,
in the same manner that the fact that Lourdes Aguirre was
physically abusing Larry Aguirre was also not of Dra.
Pascual personal knowledge. But the fact that Dra. Pascual
cited finding, which is not of her own personal knowledge in
her report does not mean that she committed falsification in
the process. Her sources may be wrong and may affect the
veracity of her report, but for as long as she has not alleged
therein that she personally diagnosed Lourdes Aguirre,
which allegation would not then be true, she cannot be
charged of falsification. Therefore, it goes without saying that
if the author of the report is not guilty, then with more reason
the other respondents are not liable.23
Respecting the charge of mutilation, the Assistant City
Prosecutor also held that the facts alleged did not amount to
the crime of mutilation as defined and penalized under Article
262 of the Revised Penal Code, i.e., "[t]he vasectomy
operation did not in any way deprived (sic) Larry of his
reproductive organ, which is still very much part of his
physical self." He ratiocinated that:
While the operation renders him the inability (sic) to
procreate, the operation is reversible and therefore, cannot
be the permanent damage contemplated under Article 262 of
the Revised Penal Code.24
The Assistant City Prosecutor,25 in a Resolution26 dated 8
January 2003, found no probable cause to hold respondents
Pedro Aguirre, Olondriz, Dr. Agatep and Dr. Pascual liable for
the complaint of falsification and mutilation, more specifically,
the violation of Articles 172 and 262 of the Revised Penal
Code, in relation to Republic Act No. 7610. Accordingly, the
Assistant City Prosecutor recommended the dismissal of
petitioner Gloria Aguirre's complaint for insufficiency of
evidence. The dispositive portion of the resolution reads:
WHEREFORE, it is recommended that the above-entitled
case be dismissed for insufficiency of evidence.27
On 18 February 2003, petitioner Gloria Aguirre appealed the
foregoing resolution to the Secretary of the DOJ by means of
a Petition for Review.28
In a Resolution dated 11 February 2004, Chief State
Prosecutor Jovencito R. Zuo, for the Secretary of the DOJ,
dismissed the petition. In resolving said appeal, the Chief
State Prosecutor held that:
Under Section 12, in relation to Section 7, of Department
Circular No. 70 dated July 3, 2000, the Secretary of Justice
may, motu proprio, dismiss outright the petition if there is no

showing of any reversible error in the questioned resolution
or finds the same to be patently without merit.
We carefully examined the petition and its attachments and
found no error that would justify a reversal of the assailed
resolution which is in accord with the law and evidenced (sic)
on the matter.29
Petitioner Gloria Aguirre's Motion for Reconsideration was
likewise denied with finality by the DOJ in another Resolution
dated 12 November 2004.
Resolute in her belief, petitioner Gloria Aguirre went to the
Court of Appeals by means of a Petition for Certiorari,
Prohibition and Mandamus under Rule 65 of the Rules of
Court, as amended.
On 21 July 2005, the Court of Appeals promulgated its
Decision dismissing petitioner Gloria Aguirre's recourse for
lack of merit.
The fallo of the assailed decision reads:
WHEREFORE, premises considered, the present petition is
hereby DENIED DUE COURSE and accordingly
DISMISSED for lack of merit. Consequently, the assailed
Resolutions dated February 11, 2004 and November 12,
2004 of the Secretary of Justice in I.S. No. 02-12466 are
hereby AFFIRMED.30
Petitioner Gloria Aguirre's motion for reconsideration proved
futile as it was denied by the appellate court in a Resolution
dated 5 December 2005.
Hence, the present petition filed under Rule 45 of the Rules
of Court, as amended, premised on the following arguments:
I.
THE COURT OF APPEALS COMMITTED SERIOUS,
GRAVE AND REVERSIBLE ERRORS OF LAW WHEN IT
CONCLUDED,
BASED
PURPORTEDLY ON
THE
INTERNET WHICH RUNS AMUCK WITH OUR SYSTEM OF
THE RULE OF LAW AND THE EVIDENCE ON RECORD,
THAT BILATERAL VASECTOMY IS PURPORTEDLY 100%
REVERSIBLE BY A FUTURE MEDICAL PROCEDURE
HENCE NOT AMOUNTING TO MUTILATION, X X X; AND
xxxx
II.
WORSE, THE COURT OF APPEALS COMMITTED GRAVE,
SERIOUS AND REVERSIBLE ERRORS OF LAW WHEN IT
REFUSED TO DIRECT THE INDICTMENT OF THE
PRIVATE RESPONDENTS FOR MUTILATION AND
FALSIFICATION
DESPITE
THE
EXISTENCE
OF
SUFFICIENT PROBABLE CAUSE THEREFOR X X X.31
The foregoing issues notwithstanding, the more proper issue

for this Court's consideration is, given the facts of the case,
whether or not the Court of Appeals erred in ruling that the
DOJ did not commit grave abuse of discretion amounting to
lack or excess of jurisdiction when the latter affirmed the
public prosecutor's finding of lack of probable cause for
respondents Pedro Aguirre, Olondriz, Dr. Agatep and Dr.
Pascual to stand trial for the criminal complaints of
falsification and mutilation in relation to Republic Act No.
7610.
In ruling that the DOJ did not commit grave abuse of
discretion amounting to lack or excess of jurisdiction, the
Court of Appeals explained that:
Evidently, the controversy lies in the permanency of
sterilization as a result of a vasectomy operation, and the
chances of restoring fertility with a reversal surgery x x x.
We sustain the DOJ in ruling that the bilateral vasectomy
performed on Larry does not constitute mutilation even if
intentionally and purposely done to prevent him from siring a
child.
xxxx
Sterilization is to be distinguished from castration: in the
latter act the reproductive capacity is permanently removed
or damaged.32
It then concluded that:
The matter of legal liability, other than criminal,which private
respondents may have incurred for the alleged absence of a
valid consent to the vasectomy performed on Larry, is
certainly beyond the province of this certiorari petition. Out
task is confined to the issue of whether or not the Secretary
of Justice and the Office of the City Prosecutor of Quezon
City committed grave abuse of discretion in their determining
the existence or absence of probable cause for filing criminal
cases for falsification and mutilation under Articles 172 (2)
and 262 of the Revised Penal Code.33
Petitioner Gloria Aguirre, however, contends that the Court of
Appeals and the DOJ failed to appreciate several important
facts: 1) that bilateral vasectomy conducted on petitioner's
brother, Larry Aguirre, was admitted34; 2) that the procedure
caused the perpetual destruction of Larry's reproductive
organs of generation or conception;353) that the bilateral
vasectomy was intentional and deliberate to deprive Larry
forever of his reproductive organ and his capacity to
procreate; and 4) that respondents, "in conspiracy with one
another, made not only one but two (2) untruthful statements,
and not mere inaccuracies when they made it appear in the
psychiatry report"36that a) Larry's consent was obtained or at
the very least that the latter was informed of the intended
vasectomy; and b) that Lourdes Aguirre was likewise
interviewed and evaluated. Paradoxically, however, petitioner
Gloria Aguirre does not in any way state that she, instead of
respondent Pedro Aguirre, has guardianship over the person

of Larry. She only insists that respondents should have
obtained Larry's consent prior to the conduct of the bilateral
vasectomy.
supposing that said report is flawed, it is, at most, an

erroneous medical diagnosis.
The petition has no merit.
In contrast, the Office of the Solicitor General (OSG), for

public respondent DOJ, argues that "the conduct of
preliminary investigation to determine the existence of
probable cause for the purpose of filing (an) information is
the function of the public prosecutor."37 More importantly, "the
element[s] of castration or mutilation of an organ necessary
for generation is completely absent as he was not deprived
of any organ necessary for reproduction, much less the
destruction of such organ."38
Likewise, in support of the decision of the Court of Appeals,
respondents Pedro Aguirre and Olondriz assert that,
fundamentally, petitioner Gloria Aguirre has no standing to
file the complaint, as she has not shown any injury to her
person or asserted any relationship with Larry other than
being his "common law sister"; further, that she cannot
prosecute the present case, as she has not been authorized
by law to file said complaint, not being the offended party, a
peace officer or a public officer charged with the enforcement
of the law. Accordingly, respondents Pedro Aguirre and
Olondriz posit that they, together with the other respondents
Dr. Agatep and Dr. Pascual, may not be charged with,
prosecuted for and ultimately convicted of: 1) "mutilation x x
x since the bilateral vasectomy conducted on Larry does not
involve castration or amputation of an organ necessary for
reproduction as the twin elements of the crime of mutilation x
x x are absent"39; and 2) "falsification x x x since the acts
allegedly constituting falsification involve matters of medical
opinion and not matters of fact," 40 and that petitioner Gloria
Aguirre failed to prove damage to herself or to any other
person.
Respondent Dr. Agatep, in the same vein, stresses that
vasectomy is not mutilation. He elucidates that vasectomy is
merely the "excision of the vas deferens, the duct in testis
which transport semen"41; that it is the penis and the testis
that make up the male reproductive organ and not the vas
deferens; and additionally argues that for the crime of
mutilation to be accomplished, Article 262 of the Revised
Penal Code necessitates that there be intentional total or
partial deprivation of some essential organ for reproduction.
Tubes, seminal ducts, vas deferens or prostatic urethra not
being organs, respondent Dr. Agatep concludes, therefore,
that vasectomy does not correspond to mutilation.
Anent the charge of falsification of a private document,
respondent Dr. Agatep asseverates that he never took part in
disclosing any information, data or facts as contained in the
contentious Psychiatric Report.
For her part, respondent Dr. Pascual insists that the assailed
Psychiatry Report was the result of her independent exercise
of professional judgment. "Rightly or wrongly, (she)
diagnosed Larry Aguirre to be incapable of giving consent,
based on interviews made by the psychiatrist on Larry
Aguirre and persons who interacted with him."42And
Probable cause has been defined as the existence of such

facts and circumstances as would excite belief in a
reasonable mind, acting on the facts within the knowledge of
the prosecutor, that the person charged was guilty of the
crime for which he was prosecuted.43 The term does not
mean "actual and positive cause" nor does it import absolute
certainty.44 It is merely based on opinion and reasonable
belief;45 that is, the belief that the act or omission complained
of constitutes the offense charged. A finding of probable
cause merely binds over the suspect to stand trial. It is not a
pronouncement of guilt.46
The executive department of the government is accountable
for the prosecution of crimes, its principal obligation being
the faithful execution of the laws of the land. A necessary
component of the power to execute the laws is the right to
prosecute their violators,47 the responsibility of which is thrust
upon the DOJ. Hence, the determination of whether or not
probable cause exists to warrant the prosecution in court of
an accused is consigned and entrusted to the DOJ. And by
the nature of his office, a public prosecutor is under no
compulsion to file a particular criminal information where he
is not convinced that he has evidence to prop up the
averments thereof, or that the evidence at hand points to a
different conclusion.
Put simply, public prosecutors under the DOJ have a wide
range of discretion, the discretion of whether, what and
whom to charge, the exercise of which depends on a
smorgasbord of factors which are best appreciated by
(public) prosecutors.48 And this Court has consistently
adhered to the policy of non-interference in the conduct of
preliminary investigations, and to leave to the investigating
prosecutor sufficient latitude of discretion in the
determination of what constitutes sufficient evidence as will
establish probable cause for the filing of an information
against the supposed offender.49
But this is not to discount the possibility of the commission of
abuses on the part of the prosecutor. It is entirely possible
that the investigating prosecutor may erroneously exercise
the discretion lodged in him by law. This, however, does not
render his act amenable to correction and annulment by the
extraordinary remedy of certiorari, absent any showing of
grave abuse of discretion amounting to excess of
jurisdiction.50
Prescinding from the above, the court's duty in an
appropriate case, therefore, is confined to a determination of
whether the assailed executive determination of probable
cause was done without or in excess of jurisdiction resulting
from a grave abuse of discretion. For courts of law to grant
the extraordinary writ of certiorari, so as to justify the reversal
of the finding of whether or not there exists probable cause
to file an information, the one seeking the writ must be able

to establish that the investigating prosecutor exercised his
power in an arbitrary and despotic manner by reason of
passion or personal hostility, and it must be patent and gross
as would amount to an evasion or to a unilateral refusal to
perform the duty enjoined or to act in contemplation of law.
Grave abuse of discretion is not enough.51 Excess of
jurisdiction signifies that he had jurisdiction over the case but
has transcended the same or acted without authority.52
Applying the foregoing disquisition to the present petition, the
reasons of the Assistant City Prosecutor in dismissing the
criminal complaints for falsification and mutilation, as
affirmed by the DOJ, is determinative of whether or not he
committed grave abuse of discretion amounting to lack or
excess of jurisdiction.
In ruling the way he did that no probable cause for
falsification and mutilation exists - the Assistant City
Prosecutor deliberated on the factual and legal milieu of the
case. He found that there was no sufficient evidence to
establish a prima facie case for the crimes complained of as
defined and punished under Articles 172, paragraph 2, and
262 of the Revised Penal Code in relation to Republic Act
No. 7610, respectively. Concerning the crime of falsification
of a private document, the Assistant City Prosecutor
reasoned that the circumstances attendant to the case did
not amount to the crime complained of, that is, the lack of
consent by Larry Aguirre before he was vasectomized; or the
fact that the latter was not consulted. The lack of the two
preceding attendant facts do not in any way amount to
falsification, absent the contention that it was made to
appear in the assailed report that said consent was obtained.
That would have been an untruthful statement. Neither does
the fact that the Psychiatric Report state that Lourdes Aguirre
has Bipolar Mood Disorder by the same token amount to
falsification because said report does not put forward that
such finding arose after an examination of the concerned
patient. Apropos the charge of mutilation, he reasoned that
though the vasectomy rendered Larry unable to procreate, it
was not the permanent damage contemplated under the
pertinent provision of the penal code.
We agree. Grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of the DOJ and the
Assistant City Prosecutor was not shown in the present
case.
In the present petition, respondents Pedro Aguirre, Olondriz,
Dr. Agatep and Dr. Pascual are charged with violating
Articles 172 and 262 of the Revised Penal Code, in relation
to Republic Act No. 7610. Article 172, paragraph 2 of the
Revised Penal Code, defines the crime of falsification of a
private document, viz
Art. 172. Falsification by private individuals and use of
falsified documents. The penalty of prision correccional in
its medium and maximum periods and a fine of not more
than 5,000 pesos shall be imposed upon:
xxxx
2. Any person who, to the damage of a third party, or with the

intent to cause such damage, shall in any private document
commit any of the acts of falsification enumerated in the next
preceding article.
Petitioner Gloria Aguirre charges respondents with
falsification of a private document for conspiring with one
another in keeping Larry "in the dark about the foregoing
(vasectomy) as the same was concealed from him by the
respondents x x x,"53 as well as for falsely concluding and
diagnosing Lourdes Aguirre to be suffering from Bipolar
Mood Disorder.
A scrutiny, however, of Article 171 of the Revised Penal Code
which defines the acts constitutive of falsification, that is
Art. 171. x x x shall falsify a document by committing any of
the following acts:
1. Counterfeiting or imitating any handwriting, signature, or
rubric;
2. Causing it to appear that persons have participated in any
act or proceeding when they did not in fact so participate;
3. Attributing to persons who have participated in an act or
proceeding statements other than those in fact made by
them;
4. Making untruthful statements in a narration of facts;
5. Altering true dates;
6. Making any alteration or intercalation in a genuine
document which changes its meaning;
7. Issuing in an authenticated form a document purporting to
be a copy of an original document when no such original
exists, or including in such copy a statement contrary to, or
different from, that of the genuine original; or
8. Intercalating any instrument or note relative to the
issuance thereof in a protocol, registry, or official book.
vis--vis the much criticized Psychiatric Report, shows that
the acts complained of do not in any manner, by whatever
stretch of the imagination, fall under any of the eight (8)
enumerated acts constituting the offense of falsification.
In order to properly address the issue presented by petitioner
Gloria Aguirre, it is necessary that we discuss the elements
of the crime of falsification of private document under the
Revised Penal Code, a crime which all the respondents have
been accused of perpetrating. The elements of said crime
under paragraph 2 of Article 172 of our penal code are as
follows: 1) that the offender committed any acts of
falsification, except those in par. 7, enumerated in Article
171; 2) that the falsification was committed in any private
document; and 3) that the falsification caused damage to a

third party or at least the falsification was committed with
intent to cause such damage. Under Article 171, paragraph
2, a person may commit falsification of a private document
by causing it to appear in a document that a person or
persons participated in an act or proceeding, when such
person or persons did not in fact so participate in the act or
proceeding. On the other hand, falsification under par. 3 of
the same article is perpetrated by a person or persons who,
participating in an act or proceeding, made statements in
that act or proceeding and the offender, in making a
document, attributed to such person or persons statements
other than those in fact made by such person or persons.
And the crime defined under paragraph 4 thereof is
committed when 1) the offender makes in a document
statements in a narration of facts; 2) he has a legal obligation
to disclose the truth of the facts narrated by him; 3) the facts
narrated by the offender are absolutely false; and 4) the
perversion of truth in the narration of facts was made with
the wrongful intent of injuring a third person.
Applying the above-stated elements of the crime to the case
at bar, in order that respondent Dr. Pascual, and the rest
acting in conspiracy with her, to have committed the crime of
falsification under par. 3 and 4 of Article 171 of the Revised
Penal Code, it is essential that that there be prima
facie evidence to show that she had caused it to appear that
Larry gave his consent to be vasectomized or at the very
least, that the proposed medical procedure was explained to
Larry. But in the assailed report, no such thing was done.
Lest it be forgotten, the reason for having Larry
psychiatrically evaluated was precisely to ascertain whether
or not he can validly consent with impunity to the proposed
vasectomy, and not to obtain his consent to it or to oblige
respondent Dr. Pascual to explain to him what the import of
the medical procedure was. Further, that Larry's consent to
be vasectomized was not obtained by the psychiatrist was of
no moment, because nowhere is it stated in said report that
such assent was obtained. At any rate, petitioner Gloria
Aguirre contradicts her very own allegations when she
persists in the contention that Larry has the mental age of a
child; hence, he was legally incapable of validly consenting
to the procedure.
In the matter of the supposed incorrect diagnosis of Lourdes
Aguirre, with regard to paragraph 2 of Article 171 of the
Revised Penal Code, we quote with approval the succinct
statements of the Assistant City Prosecutor:
[T]he fact that Dra. Pascual cited finding, which is not of her
own personal knowledge in her report does not mean that
she committed falsification in the process. Her sources may
be wrong and may affect the veracity of her report, but for as
long as she has not alleged therein that she personally
diagnosed Lourdes Aguirre, which allegation would not then
be true, she cannot be charged of falsification. Therefore, it
goes without saying that if the author of the report is not
guilty, then with more reason the other respondents are not
liable.54
As to the charge of mutilation, Art. 262 of the Revised Penal

Code defines the crime as
Art. 262. Mutilation. The penalty of reclusion temporal to
reclusion perpetua shall be imposed upon any person who
shall intentionally mutilate another by depriving him, either
totally or partially, of some essential organ for reproduction.
Any other intentional mutilation shall be punished by prision
mayor in its medium and maximum periods.
A straightforward scrutiny of the above provision shows that
the elements55 of mutilation under the first paragraph of Art.
262 of the Revised Penal Code to be 1) that there be
a castration, that is, mutilation of organs necessary for
generation; and 2) that the mutilation is caused purposely
and deliberately, that is, to deprive the offended party of
some essential organ for reproduction. According to the
public prosecutor, the facts alleged did not amount to the
crime of mutilation as defined and penalized above, i.e.,
"[t]he vasectomy operation did not in any way deprived (sic)
Larry of his reproductive organ, which is still very much part
of his physical self." Petitioner Gloria Aguirre, however,
would want this Court to make a ruling that bilateral
vasectomy constitutes the crime of mutilation.
This we cannot do, for such an interpretation would be
contrary to the intentions of the framers of our penal code.
A fitting riposte to the issue at hand lies in United States v.
Esparcia,56 in which this Court had the occasion to shed light
on the implication of the term mutilation. Therein we said
that:
The sole point which it is desirable to discuss is whether or
not the crime committed is that defined and penalized by
article 414 of the Penal Code. The English translation of this
article reads: "Any person who shall intentionally castrate
another shall suffer a penalty ranging from reclusion
temporal to reclusion perpetua." The Spanish text, which
should govern, uses the word "castrare," inadequately
translated into English as "castrate." The word "capar," which
is synonymous of "castrar," is defined in the Royal Academic
Dictionary as the destruction of the organs of generation or
conception. Clearly it is the intention of the law to punish any
person who shall intentionally deprived another of any organ
necessary for reproduction. An applicable construction is that
of Viada in the following language:
"At the head of these crimes, according to their order of
gravity, is the mutilation known by the name of 'castration'
which consists of the amputation of whatever organ is
necessary for generation. The law could not fail to punish
with the utmost severity such a crime, which, although not
destroying life, deprives a person of the means to transmit it.
But bear in mind that according to this article in order for
'castration' to exist, it is indispensable that the 'castration' be
made purposely. The law does not look only to the result but
also to the intention of the act. Consequently, if by reason of
an injury or attack, a person is deprived of the organs of

generation, the act, although voluntary, not being intentional
to that end, it would not come under the provisions of this
article, but under No. 2 of article 431." (Viada, Codigo Penal,
vol. 3, p. 70. See to same effect, 4 Groizard, Codigo Penal,
p. 525.)
WHEREFORE, premises considered, the instant petition

is DENIED for lack of merit. The assailed 21 July
2005Decision and 5 December 2005 Resolution, both of the
Court of Appeals in CA-G.R. SP No. 88370 are
herebyAFFIRMED. Costs against petitioner Gloria Aguirre.
Thus, the question is, does vasectomy deprive a man, totally

or partially, of some essential organ of reproduction? We
answer in the negative.
SO ORDERED.
In the male sterilization procedure of vasectomy, the tubular

passage, called the vas deferens, through which the sperm
(cells) are transported from the testicle to the urethra where
they combine with the seminal fluid to form the ejaculant, is
divided and the cut ends merely tied. 57 That part, which is
cut, that is, the vas deferens, is merely a passageway that is
part of the duct system of the male reproductive organs. The
vas deferens is not an organ,i.e., a highly organized unit of
structure, having a defined function in a multicellular
organism and consisting of a range of tissues. 58 Be that as it
may, even assuming arguendo that the tubular passage can
be considered an organ, the cutting of the vas deferens does
not divest or deny a man of any essential organ of
reproduction for the simple reason that it does not entail the
taking away of a part or portion of the male reproductive
system. The cut ends, after they have been tied, are then
dropped back into the incision.59
Though undeniably, vasectomy denies a man his power of
reproduction, such procedure does not deprive him, "either
totally or partially, of some essential organ for reproduction."
Notably, the ordinary usage of the term "mutilation" is the
deprivation of a limb or essential part (of the body), 60 with the
operative expression being "deprivation." In the same
manner, the word "castration" is defined as the removal of
the testies or ovaries.61Such being the case in this present
petition, the bilateral vasectomy done on Larry could not
have amounted to the crime of mutilation as defined and
punished under Article 262, paragraph 1, of the Revised
Penal Code. And no criminal culpability could be foisted on
to respondent Dr. Agatep, the urologist who performed the
procedure, much less the other respondents. Thus, we find
sufficient evidence to explain why the Assistant City
Prosecutor and the DOJ ruled the way they did. Verily, We
agree with the Court of Appeals that the writ of certiorari is
unavailing; hence, should not be issued.
It is once more apropos to pointedly apply the Court's
general policy of non-interference in the conduct of
preliminary investigations. As it has been oft said, the
Supreme Court cannot order the prosecution of a person
against whom the prosecutor does not find sufficient
evidence to support at least a prima facie case.62 The courts
try and absolve or convict the accused but, as a rule, have
no part in the initial decision to prosecute him. 63 The possible
exception to this rule is where there is an unmistakable
showing of a grave abuse of discretion amounting to lack or
excess of jurisdiction that will justify judicial intrusion into the
precincts of the executive. But that is not the case herein.
HAZING
RA 8049
REPUBLIC ACT No. 8049
AN ACT REGULATING HAZING AND OTHER FORMS OF
INITIATION RITES IN FRATERNITIES, SORORITIES, AND
OTHER ORGANIZATIONS AND PROVIDING PENALTIES
THEREFOR
Section 1. Hazing, as used in this Act, is an initiation rite or
practice as a prerequisite for admission into membership in a
fraternity, sorority or organization by placing the recruit,
neophyte or applicant in some embarrassing or humiliating
situations such as forcing him to do menial, silly, foolish and
other similar tasks or activities or otherwise subjecting him to
physical or psychological suffering or injury.
The term "organization" shall include any club or the Armed
Forces of the Philippines, Philippine National Police,
Philippine Military Academy, or officer and cadet corp of the
Citizen's Military Training and Citizen's Army Training. The
physical, mental and psychological testing and training
procedure and practices to determine and enhance the
physical, mental and psychological fitness of prospective
regular members of the Armed Forces of the Philippines and
the Philippine National Police as approved ny the Secretary
of National Defense and the National Police Commission
duly recommended by the Chief of Staff, Armed Forces of
the Philippines and the Director General of the Philippine
National Police shall not be considered as hazing for the
purposes of this Act.
Section 2. No hazing or initiation rites in any form or manner
by a fraternity, sorority or organization shall be allowed
without prior written notice to the school authorities or head
of organization seven (7) days before the conduct of such
initiation. The written notice shall indicate the period of the
initiation activities which shall not exceed three (3) days,
shall include the names of those to be subjected to such
activities, and shall further contain an undertaking that no
physical violence be employed by anybody during such
initiation rites.
Section 3. The head of the school or organization or their
representatives must assign at least two (2) representatives
of the school or organization, as the case may be, to be
present during the initiation. It is the duty of such
representative to see to it that no physical harm of any kind
shall be inflicted upon a recruit, neophyte or applicant.

Section 4. If the person subjected to hazing or other forms
of initiation rites suffers any physical injury or dies as a result
thereof, the officers and members of the fraternity, sorority or
organization who actually participated in the infliction of
physical harm shall be liable as principals. The person or
persons who participated in the hazing shall suffer:
The responsible officials of the school or of the police,

military or citizen's army training organization, may impose
the appropriate administrative sanctions on the person or the
persons charged under this provision even before their
conviction. The maximum penalty herein provided shall be
imposed in any of the following instances:
1. The penalty of reclusion perpetua (life imprisonment) if

death, rape, sodomy or mutilation results there from.
(a) when the recruitment is accompanied by force, violence,

threat, intimidation or deceit on the person of the recruit who
refuses to join;
2. The penalty of reclusion temporal in its maximum period

(17 years, 4 months and 1 day to 20 years) if in
consequence of the hazing the victim shall become insane,
imbecile, impotent or blind.
3. The penalty of reclusion temporal in its medium period (14
years, 8 months and one day to 17 years and 4 months) if in
consequence of the hazing the victim shall have lost the use
of speech or the power to hear or to smell, or shall have lost
an eye, a hand, a foot, an arm or a leg or shall have lost the
use of any such member shall have become incapacitated
for the activity or work in which he was habitually engaged.
4. The penalty of reclusion temporal in its minimum period
(12 years and one day to 14 years and 8 months) if in
consequence of the hazing the victim shall become
deformed or shall have lost any other part of his body, or
shall have lost the use thereof, or shall have been ill or
incapacitated for the performance on the activity or work in
which he was habitually engaged for a period of more than
ninety (90) days.
5. The penalty of prison mayor in its maximum period (10
years and one day to 12 years) if in consequence of the
hazing the victim shall have been ill or incapacitated for the
performance on the activity or work in which he was
habitually engaged for a period of more than thirty (30) days.
6. The penalty of prison mayor in its medium period (8 years
and one day to 10 years) if in consequence of the hazing the
victim shall have been ill or incapacitated for the
habitually engaged for a period of ten (10) days or more, or
that the injury sustained shall require medical assistance for
the same period.
7. The penalty of prison mayor in its minimum period (6
years and one day to 8 years) if in consequence of the
hazing the victim shall have been ill or incapacitated for the
habitually engaged from one (1) to nine (9) days, or that the
injury sustained shall require medical assistance for the
same period.
8. The penalty of prison correccional in its maximum period
(4 years, 2 months and one day to 6 years) if in
consequence of the hazing the victim sustained physical
injuries which do not prevent him from engaging in his
habitual activity or work nor require medical attendance.
(b) when the recruit, neophyte or applicant initially consents

to join but upon learning that hazing will be committed on his
person, is prevented from quitting;
(c) when the recruit, neophyte or applicant having undergone
hazing is prevented from reporting the unlawful act to his
parents or guardians, to the proper school authorities, or to
the police authorities, through force, violence, threat or
intimidation;
(d) when the hazing is committed outside of the school or
institution; or
(e) when the victim is below twelve (12) years of age at the
time of the hazing.
The owner of the place where hazing is conducted shall be
liable as an accomplice, when he has actual knowledge of
the hazing conducted therein but failed to take any action to
prevent the same from occurring. If the hazing is held in the
home of one of the officers or members of the fraternity,
group, or organization, the parents shall be held liable as
principals when they have actual knowledge of the hazing
conducted therein but failed to take any action to prevent the
same from occurring.
The school authorities including faculty members who
consent to the hazing or who have actual knowledge thereof,
but failed to take any action to prevent the same from
occurring shall be punished as accomplices for the acts of
hazing committed by the perpetrators.
The officers, former officers, or alumni of the organization,
group, fraternity or sorority who actually planned the hazing
although not present when the acts constituting the hazing
were committed shall be liable as principals. A fraternity or
sorority's adviser who is present when the acts constituting
the hazing were committed and failed to take action to
prevent the same from occurring shall be liable as principal.
The presence of any person during the hazing is prima facie
evidence of participation therein as principal unless he
prevented the commission of the acts punishable herein.
Any person charged under this provision shall not be entitled
to the mitigating circumstance that there was no intention to
commit so grave a wrong.

This section shall apply to the president, manager, director or
other responsible officer of a corporation engaged in hazing
as a requirement for employment in the manner provided
herein.
"1) By a man who shall have carnal knowledge of a

woman under any of the following circumstances:
Section 5. If any provision or part of this Act is declared

invalid or unconstitutional, the other parts or provisions
thereof shall remain valid and effective.
"b) When the offended party is deprived of

reason or otherwise unconscious;
Section 6. All laws, orders, rules or regulations which are

inconsistent with or contrary to the provisions of this Act are
hereby amended or repealed accordingly.
Section 7. This Act shall take effect fifteen (15) calendar
days after its publication in at least two (2) national
newspapers of general circulation.
RAPE
RA 8353
"a) Through force, threat, or intimidation;
"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.

Congress of the Philippines
Metro Manila
"Article 266-B. Penalty. - Rape under paragraph 1

of the next preceding article shall be punished by
reclusion perpetua.
Tenth Congress
"Whenever the rape is committed with the use of a

deadly weapon or by two or more persons, the
penalty shall be reclusion perpetua to death.
Republic Act No. 8353
September 30, 1997
AN ACT EXPANDING THE DEFINITION OF THE CRIME

OF RAPE, RECLASSIFYING THE SAME AS A CRIME
AGAINST PERSONS, AMENDING FOR THE PURPOSE
ACT NO. 3815, AS AMENDED, OTHERWISE KNOWN AS
THE REVISED PENAL CODE, AND FOR OTHER
PURPOSES
Be it enacted by the Senate and House of Representatives
of the Philippines in Congress assembled::
Section 1. Short Title. - This Act shall be known as "The
Anti-Rape Law of 1997."
Section 2. Rape as a Crime Against Persons. - The crime
of rape shall hereafter be classified as a Crime Against
Persons under Title Eight of Act No. 3815, as amended,
otherwise known as the Revised Penal Code. Accordingly,
there shall be incorporated into Title Eight of the same Code
a new chapter to be known as Chapter Three on Rape, to
read as follows:
"Chapter Three
"Rape
"Article 266-A. Rape: When And How Committed. Rape is committed:
"When by reason or on the occasion of the rape,

the victim has become insane, the penalty shall
become reclusion perpetua to death.
"When the rape is attempted and a homicide is
committed by reason or on the occasion thereof,
the penalty shall be reclusion perpetua to death.
"When by reason or on the occasion ofthe rape,
homicide is committed, the penalty shall be death.
"The death penalty shall also be imposed if the
crime of rape is committed with any of the following
aggravating/qualifying circumstances:
"l) When the victim is under eighteen (18) years of
age and the offender is a parent, ascendant, stepparent, guardian, relative by consanguinity or
affinity within the third civil degree, or the commonlaw spouse of the parent of the victim;
"2) When the victim is under the custody of the
police or military authorities or any law enforcement
or penal institution;
"3) When the rape is committed in full view of the
spouse, parent, any of the children or other

relatives within
consanguinity;
the
third
civil
degree
of
"4) When the victim is a religious engaged in

legitimate religious vocation or calling and is
personally known to be such by the offender before
or at the time of the commission of the crime;
"5) When the victim is a child below seven (7) years
old;
"6) When the offender knows that he is afflicted with
the
Human
Immuno-Deficiency
Virus
(HIV)/Acquired Immune Deficiency Syndrome
(AIDS) or any other sexually transmissible disease
and the virus or disease is transmitted to the victim;
"7) When committed by any member of the Armed
Forces of the Philippines or para-military units
thereof or the Philippine National Police or any law
enforcement agency or penal institution, when the
offender took advantage of his position to facilitate
the commission of the crime;
"8) When by reason or on the occasion of the rape,
the victim has suffered permanent physical
mutilation or disability;
"9) When the offender knew of the pregnancy of the
offended party at the time of the commission of the
crime; and
"10) When the offender knew of the mental
disability, emotional disorder and/or physical
handicap of the offended party at the time of the
commission of the crime.
"Rape under paragraph 2 of the next preceding
article shall be punished by prision mayor.
"Whenever the rape is committed with the use of a
deadly weapon or by two or more persons, the
penalty shall be prision mayor to reclusion
temporal.
"When by reason or on the occasion of the rape,
the victim has become insane, the penalty shall be
reclusion temporal.
"When the rape is attempted and a homicide is
committed by reason or on the occasion thereof,
the penalty shall be reclusion temporal to reclusion
perpetua.
"When by reason or on the occasion ofthe rape,
homicide is committed, the penalty shall be
reclusion perpetua.
"Reclusion temporal shall be imposed if the rape is

committed with any of the ten aggravating/
qualifying circumstances mentioned in this article.
"Article 266-C. Effect of Pardon. - The subsequent
valid marriage between the offended party shall
extinguish the criminal action or the penalty
imposed.
"In case it is the legal husband who is the offender,
the subsequent forgiveness by the wife as the
offended party shall extinguish the criminal action or
the penalty: Provided, That the crime shall not be
extinguished or the penalty shall not be abated if
the marriage is void ab initio.
"Article 266-D. Presumptions. - Any physical overt
act manifesting resistance against the act of rape in
any degree from the offended party, or where the
offended party is so situated as to render her/him
incapable of giving valid consent, may be accepted
as evidence in the prosecution of the acts punished
under Article 266-A."
Section 3. Separability Clause. - If any part, Sec., or
provision of this Act is declared invalid or unconstitutional,
the other parts thereof not affected thereby shall remain
valid.
Section 4. Repealing Clause. - Article 336 of Act No. 3815,
as amended, and all laws, acts, presidential decrees,
executive orders, administrative orders, rules and regulations
inconsistent with or contrary to the provisions of this Act are
deemed amended, modified or repealed accordingly.
Section 5. Effectivity. - This Act shall take effect fifteen (15)
days after completion of its publication in two (2) newspapers
of general circulation.
Approved: September 30, 1997.

PEOPLE v. ORITA
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 88724 April 3, 1990
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
CEILITO ORITA alias "Lito," defendant-appellant.
The Office of the Solicitor General for plaintiff-appellee.
C. Manalo for defendant-appellant.
WHEREFORE. the Court being morally certain of the guilt of

accused CEILITO ORITA @ LITO, of the crime of Frustrated
Rape (Art. 335, RPC), beyond reasonable doubt, with the
aggravating circumstances of dwelling and nightime (sic)
with no mitigating circumstance to offset the same, and
considering the provisions of the Indeterminate Sentence
Law, imposes on accused an imprisonment of TEN (10)
YEARS and ONE (1) DAY, PRISION MAYOR, as minimum to
TWELVE (12) YEARSPRISION MAYOR, maximum; to
indemnify CRISTINA S. ABAYAN, the amount of Four
Thousand
(P4,000.00)
Pesos,
without
subsidiary
imprisonment in case of insolvency, and to pay costs.
SO ORDERED.
Not satisfied with the decision, the accused appealed to the
Court of Appeals. On December 29, 1988, the Court of
Appeals rendered its decision, the dispositive portion of
which reads (p. 102, Rollo):
WHEREFORE, the trial court's judgment is hereby
MODIFIED, and the appellant found guilty of the crime of
rape, and consequently, sentenced to suffer imprisonment
of reclusion perpetua and to indemnify the victim in the
amount of P30,000.00.
MEDIALDEA, J.:
SO ORDERED.
The accused, Ceilito Orita alias Lito, was charged with the
crime of rape in Criminal Case No. 83-031-B before the
Regional Trial Court, Branch II, Borongan, Eastern Samar.
The information filed in the said case reads as follows (p.
47, Rollo):
The undersigned Second Assistant Provincial Fiscal upon
prior complaint under oath by the offended party, accuses
CEILITO ORITA alias LITO of the crime of Rape committed
as follows:
That on March 20, 1983, at about 1:30 o'clock in the morning
inside a boarding house at Victoria St., Poblacion, Borongan,
Eastern Samar, Philippines, and within the jurisdiction of this
Honorable Court, above named accused with lewd designs
and by the use of a Batangas knife he conveniently provided
himself for the purpose and with threats and intimidation, did,
then and there wilfully, unlawfully and feloniously lay with and
succeeded in having sexual intercourse with Cristina S.
Abayan against her will and without her consent.
CONTRARY TO LAW.
Upon being arraigned, the accused entered the plea of not
guilty to the offense charged. After the witnesses for the
People testified and the exhibits were formally offered and
admitted, the prosecution rested its case. Thereafter, the
defense opted not to present any exculpatory evidence and
instead filed a Motion to Dismiss. On August 5, 1985, the trial
court rendered its decision, the dispositive portion of which
reads (pp. 59-60, Rollo):
On January 11, 1989, the Court of Appeals issued a

resolution setting aside its December 29, 1988 decision and
forwarded the case to this Court, considering the provision of
Section 9, paragraph 3 of Batas Pambansa Blg. 129 in
conjunction with Section 17, paragraph 3, subparagraph 1 of
the Judiciary Act of 1948.
The antecedent facts as summarized in the People's brief
are as follows (pp. 71-75, Rollo):
Complainant Cristina S. Abayan was a 19-year old freshman
student at the St. Joseph's College at Borongan, Eastern
Samar. Appellant was a Philippine Constabulary (PC) soldier.
In the early morning of March 20, 1983, complainant arrived
at her boarding house. Her classmates had just brought her
home from a party (p. 44, tsn, May 23, 1984). Shortly after
her classmates had left, she knocked at the door of her
boarding house (p. 5, ibid). All of a sudden, somebody held
her and poked a knife to her neck. She then recognized
appellant who was a frequent visitor of another boarder (pp.
8-9, ibid).
She pleaded with him to release her, but he ordered her to
go upstairs with him. Since the door which led to the first
floor was locked from the inside, appellant forced
complainant to use the back door leading to the second floor
(p. 77, ibid). With his left arm wrapped around her neck and
his right hand poking a "balisong" to her neck, appellant
dragged complainant up the stairs (p. 14, ibid). When they
reached the second floor, he commanded her to look for a

room. With the Batangas knife still poked to her neck, they
entered complainant's room.
Back Multiple pinpoint marks.

Extremities Abrasions at (R) and (L) knees.
Upon entering the room, appellant pushed complainant who

hit her head on the wall. With one hand holding the knife,
appellant undressed himself. He then ordered complainant to
take off her clothes. Scared, she took off her T-shirt. Then he
pulled off her bra, pants and panty (p. 20, ibid).
He ordered her to lie down on the floor and then mounted
her. He made her hold his penis and insert it in her vagina.
She followed his order as he continued to poke the knife to
her. At said position, however, appellant could not fully
penetrate her. Only a portion of his penis entered her as she
kept on moving (p. 23, ibid).
Appellant then lay down on his back and commanded her to
mount him. In this position, only a small part again of his
penis was inserted into her vagina. At this stage, appellant
had both his hands flat on the floor. Complainant thought of
escaping (p. 20, ibid).
She dashed out to the next room and locked herself in.
Appellant pursued her and climbed the partition. When she
saw him inside the room, she ran to another room. Appellant
again chased her. She fled to another room and jumped out
through a window (p. 27, ibid).
Still naked, she darted to the municipal building, which was
about eighteen meters in front of the boarding house, and
knocked on the door. When there was no answer, she ran
around the building and knocked on the back door. When the
policemen who were inside the building opened the door,
they found complainant naked sitting on the stairs crying.
Pat. Donceras, the first policeman to see her, took off his
jacket and wrapped it around her. When they discovered
what happened, Pat. Donceras and two other policemen
rushed to the boarding house. They heard a sound at the
second floor and saw somebody running away. Due to
darkness, they failed to apprehend appellant.
Meanwhile, the policemen brought complainant to the
Eastern Samar Provincial Hospital where she was physically
examined.
Dr. Ma. Luisa Abude, the resident physician who examined
complainant, issued a Medical Certificate (Exhibit "A") which
states:
Physical Examination Patient is fairly built, came in with
loose clothing with no under-clothes; appears in state of
shock, per unambulatory.
PE Findings Pertinent Findings only.
Neck- Circumscribed hematoma at Ant. neck.
Breast Well developed, conical in shape with prominent
nipples; linear abrasions below (L) breast.
Vulva No visible abrasions or marks at the perineal area

or
over
the
vulva,errythematous (sic) areas
noted
surrounding vaginal orifice, tender, hymen intact; no
laceration fresh and old noted; examining finger can barely
enter and with difficulty; vaginal canal tight; no discharges
noted.
As aforementioned, the trial court convicted the accused of
frustrated rape.
In this appeal, the accused assigns the following errors:
1) The trial court erred in disregarding the substantial
inconsistencies in the testimonies of the witnesses; and
2) The trial court erred in declaring that the crime of
frustrated rape was committed by the accused.
The accused assails the testimonies of the victim and Pat.
Donceras because they "show remarkable and vital
inconsistencies and its incredibility amounting to fabrication
and therefore casted doubt to its candor, truth and validity."
(p. 33, Rollo)
A close scrutiny of the alleged inconsistencies revealed that
they refer to trivial inconsistencies which are not sufficient to
blur or cast doubt on the witnesses' straightforward
attestations. Far from being badges of fabrication, the
inconsistencies in their testimonies may in fact be justifiably
considered as manifestations of truthfulness on material
points. These little deviations also confirm that the witnesses
had not been rehearsed. The most candid witnesses may
make mistakes sometimes but such honest lapses do not
necessarily impair their intrinsic credibility (People v. Cabato,
G.R. No. L-37400, April 15, 1988, 160 SCRA 98). Rather
than discredit the testimonies of the prosecution witnesses,
discrepancies on minor details must be viewed as adding
credence and veracity to such spontaneous testimonies
(Aportadera et al. v. Court of Appeals, et al., G.R. No. L41358, March 16, 1988, 158 SCRA 695). As a matter of fact,
complete uniformity in details would be a strong indication of
untruthfulness and lack of spontaneity (People v. Bazar, G.R.
No. L-41829, June 27, 1988, 162 SCRA 609). However, one
of the alleged inconsistencies deserves a little discussion
which is, the testimony of the victim that the accused asked
her to hold and guide his penis in order to have carnal
knowledge of her. According to the accused, this is strange
because "this is the only case where an aggressor's
advances is being helped-out by the victim in order that there
will be a consumation of the act." (p. 34, Rollo). The
allegation would have been meritorious had the testimony of
the victim ended there. The victim testified further that the
accused was holding a Batangas knife during the
aggression. This is a material part of the victim's testimony
which the accused conveniently deleted.

We find no cogent reason to depart from the well-settled rule
that the findings of fact of the trial court on the credibility of
witnesses should be accorded the highest respect because it
has the advantage of observing the demeanor of witnesses
and can discern if a witness is telling the truth (People v.
Samson, G.R. No. 55520, August 25, 1989). We quote with
favor the trial court's finding regarding the testimony of the
victim (p 56, Rollo):
As correctly pointed out in the memorandum for the People,
there is not much to be desired as to the sincerity of the
offended party in her testimony before the court. Her answer
to every question profounded (sic), under all circumstances,
are plain and straightforward. To the Court she was a picture
of supplication hungry and thirsty for the immediate
vindication of the affront to her honor. It is inculcated into the
mind of the Court that the accused had wronged her; had
traversed illegally her honor.
When a woman testifies that she has been raped, she says
in effect all that is necessary to show that rape was
committed provided her testimony is clear and free from
contradiction and her sincerity and candor, free from
suspicion (People v Alfonso, G.R. No. 72573, August 31,
1987, 153 SCRA 487; People v. Alcid, G.R. Nos. 66387-88,
February 28, 1985, 135 SCRA 280; People v. Soterol G.R.
No. 53498, December 16, 1985, 140 SCRA 400). The victim
in this case did not only state that she was raped but she
testified convincingly on how the rape was committed. The
victim's testimony from the time she knocked on the door of
the municipal building up to the time she was brought to the
hospital was corroborated by Pat. Donceras. Interpreting the
findings as indicated in the medical certificate, Dr. Reinerio
Zamora (who was presented in view of the unavailability of
Dr. Abude) declared that the abrasions in the left and right
knees, linear abrasions below the left breast, multiple
pinpoint marks, circumscribed hematoma at the anterior
neck, erythematous area surrounding the vaginal orifice and
tender vulva, are conclusive proof of struggle against force
and violence exerted on the victim (pp. 52-53, Rollo). The
trial court even inspected the boarding house and was fully
satisfied that the narration of the scene of the incident and
the conditions therein is true (p. 54, Rollo):
. . . The staircase leading to the first floor is in such a
condition safe enough to carry the weight of both accused
and offended party without the slightest difficulty, even in the
manner as narrated. The partitions of every room were of
strong materials, securedly nailed, and would not give way
even by hastily scaling the same.
A little insight into human nature is of utmost value in judging
rape complaints (People v. Torio, et al., G.R. No. L-48731,
December 21, 1983, 126 SCRA 265). Thus, the trial court
added (p. 55, Rollo):
. . . And the jump executed by the offended party from that
balcony (opening) to the ground which was correctly
estimated to be less than eight (8) meters, will perhaps
occasion no injury to a frightened individual being pursued.
Common experience will tell us that in occasion of

conflagration especially occuring (sic) in high buildings,
many have been saved by jumping from some considerable
heights without being injured. How much more for a
frightened barrio girl, like the offended party to whom honor
appears to be more valuable than her life or limbs? Besides,
the exposure of her private parts when she sought
assistance from authorities, as corroborated, is enough
indication that something not ordinary happened to her
unless she is mentally deranged. Sadly, nothing was
adduced to show that she was out of her mind.
In a similar case (People v. Sambili G.R. No. L-44408,
September 30, 1982, 117 SCRA 312), We ruled that:
What particularly imprints the badge of truth on her story is
her having been rendered entirely naked by appellant and
that even in her nudity, she had to run away from the latter
and managed to gain sanctuary in a house owned by
spouses hardly known to her. All these acts she would not
have done nor would these facts have occurred unless she
was sexually assaulted in the manner she narrated.
The accused questions also the failure of the prosecution to
present other witnesses to corroborate the allegations in the
complaint and the non-presentation of the medico-legal
officer who actually examined the victim. Suffice it to say that
it is up to the prosecution to determine who should be
presented as witnesses on the basis of its own assessment
of their necessity (Tugbang v. Court of Appeals, et al., G.R.
No. 56679, June 29, 1989; People v. Somera, G.R. No.
65589, May 31, 1989). As for the non-presentation of the
medico-legal officer who actually examined the victim, the
trial court stated that it was by agreement of the parties that
another physician testified inasmuch as the medico-legal
officer was no longer available. The accused did not bother
to contradict this statement.
Summing up, the arguments raised by the accused as
regards the first assignment of error fall flat on its face. Some
were not even substantiated and do not, therefore, merit
consideration. We are convinced that the accused is guilty of
rape. However, We believe the subject matter that really calls
for discussion, is whether or not the accused's conviction
for frustrated rape is proper. The trial court was of the belief
that there is no conclusive evidence of penetration of the
genital organ of the victim and thus convicted the accused of
frustrated rape only.
The accused contends that there is no crime of frustrated
rape. The Solicitor General shares the same view.
Article 335 of the Revised Penal Code defines and
enumerates the elements of the crime of rape:
Art. 335. When and how rape is committed. Rape is
committed by having carnal knowledge of a woman under
any of the following circumstances:
1. By using force or intimidation;

2. When the woman is deprived of reason or otherwise
unconscious and
3. When the woman is under twelve years of age, even
though neither of the circumstances mentioned in the two
next preceding paragraphs shall be present.
xxx xxx xxx
Carnal knowledge is defined as the act of a man in having
sexual bodily connections with a woman (Black's Law
Dictionary. Fifth Edition, p. 193).
On the other hand, Article 6 of the same Code provides:
Art. 6. Consummated, frustrated, and attempted felonies.
Consummated felonies as well as those which are frustrated
and attempted, are punishable.
A felony is consummated when all the elements necessary
for its execution and accomplishment are present; and it is
frustrated when the offender performs all the acts of
execution which would produce the felony as a consequence
but which, nevertheless, do not produce it by reason of
causes independent of the will of the perpetrator.
There is an attempt when the offender commences the
commission of a felony directly by overt acts, and does not
perform all the acts of execution which should produce the
felony by reason of some cause or accident other than his
own spontaneous desistance.
Correlating these two provisions, there is no debate that the
attempted and consummated stages apply to the crime of
rape. Our concern now is whether or not the frustrated stage
applies to the crime of rape.
The requisites of a frustrated felony are: (1) that the offender
has performed all the acts of execution which would produce
the felony and (2) that the felony is not produced due to
causes independent of the perpetrator's will. In the leading
case of United States v. Eduave, 36 Phil. 209, 212, Justice
Moreland set a distinction between attempted and frustrated
felonies which is readily understood even by law students:
. . . A crime cannot be held to be attempted unless the
offender, after beginning the commission of the crime by
overt acts, is prevented, against his will, by some outside
cause from performing all of the acts which should produce
the crime. In other words, to be an attempted crime the
purpose of the offender must be thwarted by a foreign force
or agency which intervenes and compels him to stop prior to
the moment when he has performed all of the acts which
should produce the crime as a consequence, which acts it is
his intention to perform. If he has performed all of the acts
which should result in the consummation of the crime and
voluntarily desists from proceeding further, it can not be an
attempt. The essential element which distinguishes
attempted from frustrated felony is that, in the latter, there is
no intervention of a foreign or extraneous cause or agency

between the beginning of the commission of the crime and
the moment when all of the acts have been performed which
should result in the consummated crime; while in the former
there is such intervention and the offender does not arrive at
the point of performing all of the acts which should produce
the crime. He is stopped short of that point by some cause
apart from his voluntary desistance.
Clearly, in the crime of rape, from the moment the offender
has carnal knowledge of his victim he actually attains his
purpose and, from that moment also all the essential
elements of the offense have been accomplished.Nothing
more is left to be done by the offender, because he has
performed the last act necessary to produce the crime. Thus,
the felony is consummated. In a long line of cases (People v.
Oscar, 48 Phil. 527; People v. Hernandez, 49 Phil. 980;
People v. Royeras, G.R. No. L-31886, April 29, 1974, 56
SCRA 666; People v. Amores, G.R. No. L-32996, August 21,
1974, 58 SCRA 505), We have set the uniform rule that for
the consummation of rape, perfect penetration is not
essential. Any penetration of the female organ by the male
organ is sufficient. Entry of the labia or lips of the female
organ, without rupture of the hymen or laceration of the
vagina is sufficient to warrant conviction. Necessarily, rape is
attempted if there is no penetration of the female
organ (People v. Tayaba, 62 Phil. 559 People v. Rabadan et
al., 53 Phil. 694; United States v. Garcia: 9 Phil.
434) because not all acts of execution was performed. The
offender merely commenced the commission of a felony
directly by overt acts. Taking into account the nature,
elements and manner of execution of the crime of rape and
jurisprudence on the matter, it is hardly conceivable how the
frustrated stage in rape can ever be committed.
Of course, We are aware of our earlier pronouncement in the
case of People v. Eria 50 Phil. 998 [1927] where We found
the offender guilty of frustrated rape there being no
conclusive evidence of penetration of the genital organ of the
offended party. However, it appears that this is a "stray"
decision inasmuch as it has not been reiterated in Our
subsequent decisions. Likewise, We are aware of Article 335
of the Revised Penal Code, as amended by Republic Act No.
2632 (dated September 12, 1960) and Republic Act No. 4111
(dated March 29, 1965) which provides, in its penultimate
paragraph, for the penalty of death when the rape is
attempted orfrustrated and a homicide is committed by
reason or on the occasion thereof. We are of the opinion that
this particular provision on frustrated rape is a dead
provision. The Eria case, supra, might have prompted the
law-making body to include the crime of frustrated rape in
the amendments introduced by said laws.
In concluding that there is no conclusive evidence of
penetration of the genital organ of the victim, the trial court
relied on the testimony of Dr. Zamora when he "categorically
declared that the findings in the vulva does not give a
concrete disclosure of penetration. As a matter of fact, he
tossed back to the offended party the answer as to whether
or not there actually was penetration." (p. 53, Rollo)
Furthermore, the trial court stated (p. 57, Rollo):

. . . It cannot be insensible to the findings in the medical
certificate (Exhibit "A") as interpreted by Dr. Reinerio Zamora
and the equivocal declaration of the latter of uncertainty
whether there was penetration or not. It is true, and the Court
is not oblivious, that conviction for rape could proceed from
the uncorroborated testimony of the offended party and that
a medical certificate is not necessary (People v. Royeras
People v. Orteza, 6 SCRA 109, 113). But the citations the
people relied upon cannot be applicable to the instant case.
The testimony of the offended party is at variance with the
medical certificate. As such, a very disturbing doubt has
surfaced in the mind of the court. It should be stressed that
in cases of rape where there is a positive testimony and a
medical certificate, both should in all respect, compliment
each other, for otherwise to rely on the testimony alone in
utter disregard of the manifest variance in the medical
certificate, would be productive of mischievous results.
The alleged variance between the testimony of the victim
and the medical certificate does not exist. On the contrary, it
is stated in the medical certificate that the vulva was
erythematous (which means marked by abnormal redness of
the skin due to capillary congestion, as in inflammation) and
tender. It bears emphasis that Dr. Zamoradid not rule
out penetration of the genital organ of the victim. He merely
testified that there was uncertainty whether or not there was
penetration. Anent this testimony, the victim positively
testified that there was penetration, even if only partially (pp.
302, 304, t.s.n., May 23, 1984):
Q Was the penis inserted on your vagina?
sufficient to prove his guilt beyond reasonable doubt of the

crime of consummated rape.
Article 335, paragraph 3, of the Revised Penal Code
provides that whenever the crime of rape is committed with
the use of a deadly weapon, the penalty shall be reclusion
perpetua to death. The trial court appreciated the
aggravating circumstances of dwelling and nighttime. Thus,
the proper imposable penalty is death. In view, however, of
Article 111, Section 19(1) of the 1987 Constitution and Our
ruling in People v. Millora, et al., G.R. Nos. L-38968-70,
February 9, 1989, that the cited Constitutional provision did
not declare the abolition of the death penalty but merely
prohibits the imposition of the death penalty, the Court has
since February 2, 1987 not imposed the death penalty
whenever it was called for under the Revised Penal Code
but instead reduced the same to reclusion perpetua (People
v. Solis, et al., G.R. Nos. 78732-33, February 14,
1990). Reclusion perpetua, being a single indivisible penalty
under Article 335, paragraph 3, is imposed regardless of any
mitigating or aggravating circumstances (in relation to Article
63, paragraph 1, Revised Penal Code; see People v. Arizala,
G.R. No. 59713, March 15, 1982, 112 SCRA 615; People v.
Manzano, G.R. No. L38449, November 25, 1982, 118 SCRA
705; People v. Ramirez, G.R. No. 70744, May 31, 1985, 136
SCRA 702).
ACCORDINGLY, the decision of the Regional Trial Court is
hereby MODIFIED. The accused Ceilito Orita is hereby
found guilty beyond reasonable doubt of the crime of rape
and sentenced to reclusion perpetua as well as to indemnify
the victim in the amount of P30,000.00.
A It entered but only a portion of it.

SO ORDERED.
xxx xxx xxx
Q What do you mean when you said comply, or what act do
you referred (sic) to, when you said comply?
A I inserted his penis into my vagina.
Q And was it inserted?
A Yes only a little.
The fact is that in a prosecution for rape, the accused may
be convicted even on the sole basis of the victim's testimony
if credible (People v. Tabago, G.R. No. 69778, November 8,
1988, 167 SCRA 65; People v. Aragona, G.R. No. L-43752,
September 19, 1985, 138 SCRA 569; People v. Taduyo, G.R.
Nos. L-37928-29, September 29, 1987, 154 SCRA 349).
Moreover, Dr. Zamora's testimony is merely corroborative
and is not an indispensable element in the prosecution of
this case (People v. Alfonso, supra).
Although the second assignment of error is meritorious, it will
not tilt the scale in favor of the accused because after a
thorough review of the records, We find the evidence
PEOPLE v. MANGALINO

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 79011 February 15, 1990
vs.
SEMION MANGALINO y LUMANOG, accused-appellant.
The Office of the Solicitor General for plaintiff-appellee.
Adriatico T. Bruno for accused-appellant.
SARMIENTO, J.:
This is an appeal from the decision of the Regional Trial
Court of Manila, 1 in which the accused was convicted of
statutory rape under Article 335, paragraph 3 of the Revised
Penal Code, 2 and sentenced to suffer the penalty
of reclusion perpetua and to pay the offended parties the
sum of P50,000.00 as moral damages. The complaint signed
by the father of the victim, Tomas Carlos y Valente states:
xxx xxx xxx
That on or about March 7, 1984, in the city of Manila,
Philippines, the said accused did then and there wilfully,
unlawfully and feloniously lie with and have carnal
knowledge of the undersigned complainant's daughter
Marichelle, a minor, 6 years of age, against her will and
consent.
Contrary to Law.
The following facts are fully supported by the evidence on
record, mainly the testimonies of the victim herself and her
mother, Bernardine, Dr. Roberto V. Garcia, and Staff
Sergeant Mario Oser, as well as the testimonies of the
witnesses for the defense Ramil las Dulce, Linda Ayroso,
and the accused himself.
At about 10 or 11 o'clock in the morning of March 7, 1984,
Marichelle Carlos, 6 years old and a Grade I pupil at the
Moises Salvador Elementary School, Manila, was playing
"takbuhan" alone at the first level (ground floor) of the twostory apartment of the accused, Semion Mangalino, 53,
married to 55-year old Laura Gasmin, childless, a security
guard by occupation, and residing at 1597-D Honradez
Street, Sampaloc, Manila. 3 At the time of the incident, Laura
was in Balayan, Batangas, having left the day before the
incident. The accused and Marichelle's parents (Tomas and
Bernardine Carlos) are neighbors, their respective rented
apartments being almost opposite each other.
During the morning of March 7, 1984, Ramil las Dulce, a 16year old high school student occupying the second floor of
the apartment, for free and free board, too, a grandson of the
accused (his mother, Edita Onadia who lived with him
upstairs, being an adopted daughter of the accused), and
Laura's nephew, Armando Ayroso, were allegedly playing
chess 4 in the sala of the apartment. Ramil, a witness for the
defense, testified that he did not hear or see the accused
calling out to Marichelle and motioning her to go inside his
bedroom or "sleeping quarters" at one end of the sala of the
ground floor, opposite the kitchen.
Once inside the bedroom, the accused handed the girl a two
peso bill (P2.00) 5 and told her not to tell anybody about his
calling her to his bedroom. The girl assented. 6
The accused then laid Marichelle down, removed her jogging
pants, and placed them beside her feet. 7 He kissed her and
fondled her infantile breasts. 8 He inserted his finger into the
private part of the victim, 9 and then forcibly and repeatedly
introduced his sexual organ into her undeveloped genitalia,
but in vain. 10
Meanwhile, the victim's mother, Bernardine Carlos, 27, and a
plain housewife, was looking for her daughter, who should be
leaving for school by that time. She was informed by her
sister Agnes, who was living next door, that the adopted
daughter of the accused, Cielito, had told her that Marichelle
was in their apartment. 11 Immediately, Michael, Agnes' fouryear old son, was dispatched to fetch Marichelle.
Hearing the call of Michael, the victim put on her garments,
and on the way home noticed that her jogging pants were
wet. Upon reaching her house, Marichelle narrated to her
mother what had happened, saying, "Si Mang Semion
nilagay ang daliri niya sa pikpik ko," and "yong titi ni Mang
Semion nilagay sa pikpik ko." 12
At about 2:30 that same day, an enraged Bernardine
submitted her daughter to a physical and genital
examination, 13 the results of which National Bureau of
Investigation (NBI) Medico Legal Officer Roberto V. Garcia
certified as follows:
No evidence (or) sign of any extragenital physical injury
noted on the body of the subject at the time of examination.
Hymen, intact and its orifice, narrow.
Sign of recent genital trauma, present.
Dr. Garcia opined that the vestibular mucosa contusion could
have been caused by a hard object like an erected penis and
such bruises at such part of the girl's vagina if caused by an
erected penis would be an indication of an unsuccessful
penetration. He discounted the probability of an accident, like
bumping at an edge of a chair, or any blunt object, since
there was no contusion of the labia. 14

The confrontation between the victim and the accused took
place when Staff Sergeant Mario Oser of the Waterfront Unit,
Reaction Strike Force, Philippine Constabulary Metropolitan
Command (P.C. Metrocom), who conducted the initial
investigation, invited the accused to the P.C. Headquarters.
There, Marichelle Identified Semion Mangalino as the man
who had abused her.
The defense vigorously argues against the probability of the

rape having been committed on two points: 1) The
commission of the crime was impossible, taking place as
claimed, in broad daylight, and 2) there were at least eight
persons including the accused and the complainant on
the ground floor where the rape was supposedly
consummated.
The accused vehemently denied having ever abused

Marichelle. He argued that the bruises in the complainant's
vestibular mucosa may have been self-inflicted. Marichelle,
who was constantly running about, might have bumped her
pelvis against a chair, which explained the absence of signs
of contusions in the labia.
The commission of the crime, submits the defense, was

impossible, considering that it was allegedly committed at
noontime, which would have readily exposed the act of rape
to anyone glancing in the direction of the place where the
suspect was abusing the victim.
Curiously, the young victim candidly testified that she felt no

pain when the accused was allegedly trying to insert his
penis into her vagina. She did not cry in pain nor shout for
help when she was being abused. 15
Before the Court, the appellant assigned four errors in his
brief which he claims the trial court committed, to wit:
ASSIGNMENT OF ERRORS
ERROR I
THE TRIAL COURT ERRED IN NOT FINDING THAT,
CONSIDERING THE PLACE, THE TIME, AND THE
PRESENCE OF SO MANY PEOPLE WITHIN THE
IMMEDIATE VICINITY WHERE THE ALLEGED CRIME WAS
COMMITTED, THE ACCUSED COULD NOT HAVE
SEXUALLY ABUSED MARICHELLE G. CARLOS, THE
COMPLAINING WITNESS HEREIN;
ERROR II
THE TRIAL COURT ERRED IN NOT FINDING THAT THE
BRUISES THROUGH THE VESTIBULAR MUCOSA OF THE
PRIVATE PART OF MARICHELLE G. CARLOS IS THE
RESULT OF AN ACCIDENT, CONSIDERING THAT ON
MARCH 7,1984, SHE WAS IN THE GROUND FLOOR OF
THE APARTMENT OF HEREIN ACCUSED PLAYING
RUNNING AROUND "TAKBUHAN";
ERROR III
THE TRIAL COURT ERRED IN ORDERING THE ACCUSED
TO PAY THE OFFENDED PARTIES, MARICHELLE G.
CARLOS AND HER PARENTS, TOMAS CARLOS AND
BERNARDINE GANLAC CARLOS, THE SUM OF
P50,000.00 AS AND FOR DAMAGES;
ERROR IV
THE TRIAL COURT ERRED IN FINDING THAT THE
ACCUSED IS GUILTY OF THE CHARGE ALLEGED IN THE
INFORMATION, INSTEAD OF ACQUITTING HIM WITH
COSTS DE OFFICIO. 16
On the second point, it is contended that the rape could not

have been accomplished with so many persons present in
the apartment. As it was, Ramil and Armando were playing
chess near the front door of the apartment. Also, Linda
Ayroso, 29, married to Armando, and a housewife, was
washing laundry in the kitchen. Furthermore, the accused
was cooking lunch also in the kitchen, and so could not have
flitted from the kitchen to his room to execute his evil design
without anyone noticing his absence.
The defense brings to our attention the physical layout of the
apartment of the accused. The place where the alleged
sexual abuse took place was not even a room, he asserts.
The apartment had neither a door nor walls, and what
divided the so-called room from the living room was a
wooden folding divider which was full of holes, "butasbutas." 17
Finally, the accused assails the lower court's slapping of
damages based on the claims of prosecution witnesses of
suffering mental anguish, moral shock, and a "besmirched
reputation." Since he did not commit the offense attributed to
him, the award of P50,000.00 as moral damages is
unwarranted. Consequently, he prays he must be
exculpated.
We deny the appeal except the amount of the award of
damages which we reduce to P20,000.00 conformably to
prevailing jurisprudence.
We rule that statutory rape had been committed beyond the
shadow of a doubt.
The gravamen of the offense of statutory rape as provided in
Article 335, paragraph 3 of the Revised Penal Code is the
carnal knowledge of a woman below 12 years of
age. 18 Marichelle, a little over 6 years of age at the time, was
raped. Beyond that, proof of intimidation or force used on
her, or lack of it, is immaterial.
The findings of Dr. Roberto V. Garcia, the NBI Medico Legal
officer, who testified for the People, conclude that rape could
have been perpetrated. To reiterate, he certified the
existence of indications of recent genital trauma.Under
normal condition, the color of the vestibular mucosa is
pinkish. The doctor found the vestibular mucosa of the victim

to be dark red. 19 The forcible attempt of an erected penis to
have complete penetration caused the 3 1/2-centimeter
contusion prior to the hymen. The government doctor further
discounted the probability of an accident, such as bumping
the edge of a chair, or violent contact with a blunt object, as
there was no contusion of the labia.
The penile-vaginal contact without penetration was due to
the one- centimeter diameter opening of Marichelle's hymen.
Usually, the average adult's hymen measures 2.8 to 3
centimeters in diameter, making it compatible to, or easily
penetrable by, an average-size penis. The victim being of a
tender age, the penetration could go only as deep as the
labia. 20 In any case, the Court has consistently held that for
rape to be committed, full penetration is not required. It is
enough that there is proof of entrance of the male organ
within the labia or pudendum of the female organ. 21Indeed,
even the slightest penetration is sufficient to consummate the
crime of rape.
The relationship between the offender and the victim as
neighbors remains unrebutted. This relationship has an
important bearing on the medico-legal finding, because it
explains the absence of visible signs of physical
injuries.22 The close relationship of Semion Mangalino to
Marichelle as a nearby neighbor of the Carlos family
and the degree of respect that Semion may have had in
Marichelle's life, helps explain why physical force was not
employed. The mere size of the accused, a robust security
guard, and 163 centimeters (five feet and four inches) in
height, could have easily immobilized the victim who was at
that time only one hundred eight centimeters tall and
weighing 31.818 kilos (70 lbs.)
The attempt to discredit the prosecution's version as shown
by the fact that Marichelle did not cry out or struggle against
her attacker deserves scant consideration. The absence of
hymenal laceration adequately explains why Marichelle did
not feel any pain during the attempted sexual intercourse.
Why would she struggle, when she did not even know that
her chastity was being violated? As her mother testified, it
was only upon realizing that she had been defiled did her
daughter cry. From then on, she became "matatakutin' and
"hindi na kumakain", she became nervous and had no
appetite for food symptoms of a state of anguish.
The simplicity of the testimony of Marichelle convinces us
that she was telling the truth about her having been sexually
abused.
xxx xxx xxx
Court
q Why, were you playing alone?
Witness
a Yes, your Honor.
Fiscal Salvania
q What were you playing?
Witness
a I was running around "takbuhan" madam.
Court
q Were you running outside or inside the house of the
accused
Witness
a Inside the house of Semion Mangalino, your Honor.
Fiscal Salvania
q While you were playing inside the house of Semion
Mangalino he called for you?
Witness
a Yes, madam.
q Why did he called (sic) for you?
Witness
a He called me and told me to go to his bedroom madam.
Fiscal Salvania
q When you were asked to go to his bedroom, did he give
you anything?
Witness
a Yes madam.
q (Asst. Fiscal Mercedes C. Salvania) Now, while you were

playing will you tell this Honorable court where did you go
after that?
q What did he give to you?
Witness (Marichelle)
Court
a While I was playing Mang Simeon called me madam.
q Did you accept that P2.00?
a He gave me P2.00, madam.

Witness
She said he inserted.
a Yes, your Honor.
q Was one of the fingers of the accused inserted in your

private part?
Fiscal Salvania
Witness
q When you were asked to go inside the higaan of Semion
Mangalino, did you go?
a Yes, your Honor.
Witness
q What did he do?
a Yes, madam.
a He kissed me your Honor.
q Now, when you went inside the higaan, what did he do to

you?
q Where did he kissed (sic) you?

a In my breast your Honor.
a He inserted one of his fingers in my private part madam.

Fiscal Salvania
Fiscal Salvania
q Did he remove your T-shirt?
q You stated that you were wearing jogging pant?
Witness
Witness
a No madam.
a Yes, madam.
xxx xxx xxx
q What happened to your jogging pant?
Court
a He first removed my jogging pant, madam.
q Did Semion Mangalino removed (sic) his pant?
q After removing your jogging pant, did he removed
(sic)anything in his clothes?
Witness
a He did not removed (sic) anything in his clothes madam.
a He did not removed (sic) his pant your Honor.
Court
q Beside the jogging pant you are (sic) wearing, were you
also wearing a panty?
Witness
a Yes, your Honor.
Fiscal Salvania
xxx xxx xxx

q Do you know what is penis?
a Yes, your Honor.
q Did the accused put-out his penis while he was inserting
his finger in your private part and kissing you in the breast?
a He put-out his penis while he was kissing and his one
fingers (sic) inserted in my private part, your Honor.
q What happen(ed) to your panty, did he remove?

q What did he do with his penis?
Witness
a He is inserting his penis in my private part, your Honor.
a He also removed my panty madam.
Court
Fiscal Salvania
q What did he do with his finger?
q Was the accused able to insert his penis into your private
part?
Court
Witness

a He was not able, your Honor.
xxx xxx xxx
q How do you feel or did you feel pain while the accused was
trying to insert his penis into your private part?
Witness
a I did not feel anything, your Honor.
q Did you feel pain?
a I did not feel anything painful, your Honor.
q Did you saw (sic) the penis of Semion Mangalino?
a Yes, your Honor.
q What was your position when Semion Mangalino was
trying to insert his penis into your private part?
Witness
a I was lying down, your Honor.
Court
q Who put you lay (sic) down, was it yourself or what?
Witness
a Semion Mangalino, your Honor.
q Did you not cry?
a I did not cry, your Honor.
q Did you shout?
a I did not shout, your Honor.
q Why, were there persons inside the house while Semion
Mangalino was doing all these things to you?
a There were no other persons except myself and Semion
Mangalino your Honor. 23
Marichelle was a Grade I pupil when she was violated. She
was in Grade II when she took the witness stand. In view of
her very tender age and her little formal schooling, it is
inconceivable for Marichelle to concoct a serious charge of
rape, and to narrate, in unhesitating and simple terms, that
she had been asked by the offender to go inside the room;
that she was laid down after the accused had given her
P2.00; that he removed her jogging pants and panty; that the
accused kissed her and caressed her breasts, that "Mang
Semion" inserted a finger into her genital, and later his

sexual organ. At age 6, Marichelle would have been one of
those "babes and sucklings" from whose mouths words of
praise should have been perfected, but alas, she was
instead compelled to relate in the presence of people, some
of them complete strangers, in the police precinct and in
court, her tragic story.
The heart of the matter is the violation of a child's incapacity
to discern evil from good. As the behavior of the victim
towards the accused during the commission of the crime and
her testimony before police officers and in the court indicate,
she had no awareness of the wrongfulness of the action of
the accused who was old enough to be her grandfather. Her
willingness to lie down on and accept the P2.00 given her by
the accused, whom she looked up to as an elder person, a
neighbor, and a friend of her family, indicate not naivete, but
the absolute trust and confidence of the very young in an
older person. She was incapable of reading malice or evil in
his intentions. It is likely that it was only when she saw how
distraught her mother was at her telling of her story and the
flurry of police and judicial activity stirred up by her narration
that her young and innocent mind was violently exposed to
the reality of the existence of evil in the hearts of men. The
moment of truth, dawning so violently upon young and
innocent minds is contemptible. The older persons in the
community should set themselves up as models of proper
decorum and high moral purpose for young children; it is
they who should guide the young, teach them, and nurture
them in the way of the righteous. A 53-year-old man who
instead corrupts and violates the purity and dignity of a minor
is morally depraved and should be punished to the limits of
the law.
It is even more difficult to conceive of Mrs. Bernardine Carlos
trumping up a charge of the rape of her daughter and subject
herself and her daughter to humiliation, to fear, and anxiety,
and community censure that she and her daughter will have
to bear for the rest of their lives, 24 simply in consideration of
P50,000.00, the amount asked for in moral damages.
The trial court's findings of facts which rely on the credibility
of witnesses are entitled to respect, if not finality. A
painstaking examination and review of the records of the
case yield no fact or circumstance that would have
contradicted the findings of the trial court.
The alleged inconsistencies refer to minor details and do not
at all touch upon the basic aspects of the who, the how, and
the when of the crime committed. Minor discrepancies in the
testimonies of Marichelle and her mother are but natural, and
even enhance their credibility as witnesses because these
discrepancies indicate that the responses given were honest
and unrehearsed. 25 In appreciation of the testimony of the
victim, due regard must be accorded to her tender age.
The contention of the accused that he never left the kitchen
is flawed. The facility of a quick tap to his room can not be
discounted considering that kitchen where he was supposed
to have been cooking was only a few meters away. That the

presence of Ramil and Armando who were allegedly playing
chess in the kitchen made the commission of the crime
impossible, even if were true, falls flat in the face of the
game of chess being one that requires utmost concentration;
that being so, it is logical for both players to be concentrating
on the game when the accused lured Marichelle into the
room. We hold that when Ramil, Armando, and Linda were
engrossed in what they were doing, that the accused
surreptitiously enticed Marichelle into his higaan, and that
the short distance between the kitchen and the "room" a
mere distance of 5 to 6 meters is no obstacle to the
satiation of his carnal lusting after the child.
The accused claims it was impossible for him to have raped
the victim in the presence of other people, more so, in a
place without privacy. We do not agree. Rape was in fact
committed. It is quite possible for an experienced man, like
the accused, to consummate rape in just one minute, without
attracting the attention of the people inside the
apartment. 26 Marichelle's complete innocence may have
facilitated the perpetration of the clime, and the divider,
although "butas-butas," was sufficient to conceal the
commission of the bestial act.
In several instances, this Court held that rape can be
committed even in places where people congregate: in
parks, along the road side, within school premises, and even
inside a house where there are other occupants. 27The
apartment of the accused was no exception. Lust is no
respecter of time or place.
In fine, we hold that the trial court did not commit any
reversible error in finding the accused-appellant guilty
beyond reasonable doubt of the crime of statutory rape.
No amount of money can soothe the pain and anguish
suffered by a victim of rape and her family. Still, we cannot
impose the damages of P50,000.00 on the accused. As
stated earlier, we reduce the amount to P20,000.00.
WHEREFORE, the appealled decision is AFFIRMED with the
MODIFICATION above indicated.
Costs against the accused-appellant.
SO ORDERED.
PEOPLE v. ERINIA
SUPREME COURT
Manila
EN BANC
G.R. No. L-26298
January 20, 1927
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiffappellee,
vs.
JULIAN ERINIA Y VINOLLA, defendant-appellant.
Hermogenes Caluag for appellant.
Attorney-General Jaranilla for appellee.
OSTRAND, J.:
This is an appeal from a judgment of the Court of First
Instance of Manila finding the defendant guilty of the crime of
consummated rape and sentencing him to suffer seventeen
years, four months and one day of reclusion temporal, with
the accessory penalties provided by law and to pay the
costs.
The victim of the crime was a child of 3 years and 11 months
old and the evidence is conclusive that the defendant
endeavored to have carnal intercourse with her, but there
may be some doubt whether he succeeded in penetrating
the vagina before being disturbed by the timely intervention
of the mother and the sister of the child. The physician who
examined the genital organ of the child a few hours after the
commission of the crime found a slight inflammation of the
exterior parts of the organ, indicating that an effort had been
made to enter the vagina, but in testifying before the court he
expressed doubts as to whether the entry had been effected.
The mother of the child testified that she found its genital
organ covered with a sticky substance, but that cannot be
considered conclusive evidence of penetration.
It has been suggested that the child was of such tender age
that penetration was impossible; that the crime of rape
consequently was impossible of consummation; and that,
therefore, the offense committed should be treated only
as abusos deshonestos. We do not think so. It is probably
true that a complete penetration was impossible, but such
penetration is not essential to the commission of the crime; it
is sufficient if there is a penetration of the labia. In the case
of Kenny vs. State ([Tex. Crim. App.], 79 S. W., 817; 65 L. R.
A., 316) where the offended party was a child of the age of 3
years and 8 months the testimony of several physicians was
to the effect that her labia of the privates of a child of that
age can be entered by a man's male organ to the hymen and
the defendant was found guilty of the consummated crime
rape.
There being no conclusive evidence of penetration of the
genital organ of the offended party, the defendant is entitled
to the benefit of the doubt and can only be found guilty of
frustrated rape, but in view of the fact that he was living in
the house of the parents of the child as their guest, the
aggravating circumstance of abuse of confidence existed
and the penalty must therefore be imposed in its maximum
degree.
The judgment appealed from is modified and the defendantappellant is hereby found guilty of the crime of frustrated
rape and is sentenced to suffer twelve years of prision
mayor, with the accessory penalties prescribed by law, and
with the costs in both instances. So ordered.

PEOPLE v. CASTRO
SUPREME COURT
Manila
xxx xxx xxx

Q Now, what was the reason why your husband called you?
A He asked me to fine out why my granddaughter does not
want to eat and just keeps on crying.
SECOND DIVISION
G.R. No. 91490 May 6, 1991
Q And what did you do wen (sic) your husband told you to
see your granddaughter?

vs.
DELFIN CASTRO y LOZADA, defendant-appellant.
A I went upstairs and found out what was wring (sic) with her
whether she has fever.
Q And what did you find out
The Solicitor General for plaintiff-appellee.

Eduardo I. Advincula for defendant-appellant.
A At first she said she was complaining that her private

property was painful and when I investigated I discovered
that it swollen (sic).
Q Then what happened after you found out that the private
property of your granddaughter was swollen?
PADILLA, J.:p
This is an appeal interposed by the accused, Delfin Castro y
Lozada, from the decision* of the Regional Trial Court of
Pasay City, Branch 110, imposing upon him the penalty
of reclusion perpetua for statutory rape defined under Art.
335, paragraph 3 of the Revised Penal Code.
A I asked her why.
On the witness stand, six (6) year old Diana Rose Castro
narrated how, while playing with a neighbor sometime on 4
October 1986, she was pulled by the accused inside a
bathroom, prevented from going out, and made to stand on
the toilet bowl. Accused is a first cousin of Diana Rose's
mother. Kuya Delfin, as Diana Rose referred to the accused,
then put up her clothes, took off her panty, made her lean on
the wall and, despite her efforts to pull away he inserted his
private part into her causing pain. Then she was told by the
accused to go home. At home, she refused to have her
private part washed by her Auntie Alice because it was
hurting and painful. 1
Q And what did you do after that?
Mrs. Jacinta Castro, Diana's grandmother, testified that on 6

October 1986, in her house at No. 1692, F. Muoz, Tramo,
Pasay City, she was asked by her husband to find out why
Diana was crying. Her testimony follows. 2
Q (sic). And what did your granddaughter tell you?

A At first she told me that "nasabit sa hiyero."
xxx xxx xxx

A What I did was to examine her carefully her private part; I
lifted her two (2) legs and I discovered that her private
property was reddened as swollen.
Q Did you ask her again what happened to her private
property?
A Yes, sir, she told me that she was invited by her Kuya
Delfin to the bathroom.
Q And what else did she tell you?
A She told me that she was asked by her Kuya to stand on
top of the toilet bowl and he removed her panty and his (sic)
Kuya Delfin also removed his pants.
COURT:
Q Was there anything unusual that happened on Oct. 6
particularly in your house?
Q What else did she tell you?
A On Oct. 6 I was downstairs and there was a call by my

husband.
A She told me that his (sic) Kuya Delfin had sexual

intercourse with her.
xxx xxx xxx

FISCAL:
COURT:
Q Did you ask Diane Castro how Delfin allegedly had sexual
intercourse with her?

A Yes, Your Honor.
Q What did she answer?
A She was standing and she was made to lean on the wall,
Your Honor. . .
Because of Diana's revelation, the grandmother brought her
to the National Bureau of Investigation for examination on 8
October 1986. 3
Dr. Roberto Garcia, the NBI medico-legal, had this
explanation:
xxx xxx xxx
A Under the single heading of "genital examination" the more
insignificant findings will be the contused or bruised vetibular
(sic) meaning the area inside the genital organ of the subject
person; the hymen of the subject person was noted to be
bruised or contused . . .
Q Now what do you mean when you say that the genital
parts you mentioned were contused or bruised?
A The area was noted to be purplish or red darker than the
normal appearance of the said portion being bruised or
contused it would mean that this particular portion was
subject to some amount of force or it could have come in
contact with a hard object, the contract must have been done
with a certain amount of force.
Q Under No. 2 of the conclusion of this report it reads
"signs of recent genital trauma, present, consistent with
the alleged date of infliction."
Would you explain this?
This witness meant that the appearance of the genital or
prior of those mentioned was seen by this witness which
brought about the trauma and that it has to be recent,
meaning it could have been sustained by the subject person
in a matter of days prior to the date of the examination.
A Now, was the hymen of the subject lacerated?
A No, sir.
Q Now this genital trauma which you said to have been
suffered by the subject from what could this injury or trauman
(sic), what was the cause?
A Any hard object would have produced this bruise or
contusion.
Q Now, this is a case of rape, Doctor, would you venture to
state from what object this could have been inflicted?
A Under the normal course of events injuries of this nature

involving this particular portion of the body of a female or
woman is produced by the insertion of a male organ. 4
xxx xxx xxx
A sworn complaint for rape was filed against Delfin Castro y
Lozada. It charged as follows:
That on or about the 4th day of October, 1986 in Pasay City,
Philippines and within the jurisdiction of tills Honorable Court,
the above named accused, Delfin Castro y Lozada, with
lewd designs and taking advantage of his moral ascendancy
over the undersigned complainant who is his niece, did then
and there wilfully, unlawfully and feloniously have sexual
intercourse with or carnal knowledge of the undersigned. 5
Accused pleaded not guilty and posted bail for his
provisional liberty.
Delfin's alibi begins on 3 October 1986 in 1692 Muoz,
Pasay City, where he lives two (2) houses away from
complainant's. At about 12:00 P.M., Diana went to his house
while he was taking a bath. She was crying and went inside
the bathroom. When asked by the accused why, she replied
that while going down the stairs, a dog whose two (2) hind
legs were limping, chased her and so she tripped. The
accused told Diana to go out because their dog might bite
her. He proceeded to dress up and saw the victim playing
outside.
In the morning of 4 October 1986, he woke up at about
quarter to seven, 6 left the house at 7:30 7 took a jeep plying
the Pasay-Taft- Luneta route, arrived in school (Adamson
University) at 8:15 in the morning. He proceeded to see
Dolores Rivera, a godsister who worked in the treasurer's
office of the university to ask the latter to type a term paper
which was due that day. After submitting the term paper, he
treated his godsister to lunch. Around 1:00 o'clock in the
afternoon, he went home.
Mrs. Teresita Castro's testimony dovetails with her son
Delfin's saying that at around 12:30 P.M. on 4 October 1986,
he
arrived
and
ate
lunch
at
home. 8 Mother and son talked of enmity between Mrs.
Jacinta Castro, Diana's grandmother and their family. This
rape case against Delfin is a result allegedly of the envy of
Diana's said grandmother over his (Delfin's) fine scholastic
performance. 9
Delfin further narrated that on or about 8 October 1986, he
was invited to the Pasay Police Headquarters for
questioning. While there, he was asked to undress, was
blindfolded and beaten by around 7 to 10 policemen for
about half an hour and made to admit that he raped Diana.
Since he could no longer stand the torture, he told them that
he used his small finger to touch her private part. 10 After the
incident, Delfin left their house in order to avoid trouble;
occasionally he would visit his parents. 11

Finding the testimony of Diana positive, clear and credible,
the Regional Trial Court disregarded the alibi of the accused
and convicted him. The trial court, inter alia, stated:
. . . The accused's claim that he was, in the morning of
October 4, 1986, at Adamson University waiting for his term
paper engenders disbelief. By his evidence, he was enrolled
at the Adamson University for the second semester of school
1986-1987 classes for which usually start in October. Term
papers are usually submitted at the end of the semester, not
at the beginning of the semester. In any event, Delfin was
not shown that it was physically impossible for him to be at
the place of the incident on October 4, 1986 as, by his
evidence, he returned to his house after noontime, rested for
a while, then left and returned again in the afternoon. His
suggestion that Diana's genital bruises could have resulted
from trippling down the stairs when she was chased by a
limping dog is ridiculous. A dog whose two hind legs are
limping chasing her (where did the dog come from?) while
she was going down the stairs? Granted that were possible
or that actually happened, the fall would cause abrasions,
not hymenal contusions. Finally the defense's insinuation
that Diana's grandmother Jacinta who was pictured to be
supercilious and envious was behind the filing of this case is
difficult to believe, there being no concrete proof thereof.
Besides, it would be unthinkable for Jacinta to alienate her
relations with all her in-laws, the Castros, who are staying in
different houses of the same compound, by fabricating a
charge against the accused.
Finally, the accused's flight from his house after the filing of
the present case is not consistent with his professed
innocence. He did not, according to him, have any good
relationship with Diana's grandmother even before October
4, 1986. So what was he fleeing from? His answer, that he
wanted to avoid trouble, tells it all . . .
xxx xxx xxx
From the said decision sentencing him to suffer the penalty
of reclusion perpetua and indemnify the victim in the amount
of P20,000.00 by way of damages, the accused appealed to
this Court pointing out the following alleged errors:
1. there is no rape because
a. the hymen of the victim was not
lacerated.
b. the victim was allegedly standing while
the crime was being committed.
c. the victim is still a virgin.
2. reliance on the conflicting testimony of the victim and not
that of the accused.
A recent decision of this Court in a case of statutory rape
observed that, usually, the average adult's hymen measures
2.8 to 3 centimeters in diameter, making it compatible with,

or easily penetrable by an average size penis. The victim
being of tender age, the penetration of the male organ could
go only as deep as the labia. In any case, for rape to be
committed, full penetration is not required. It is enough that
there is proof of entrance of the male organ within the labia
or pudendum of the female organ. Even the slightest
penetration is sufficient to consummate the crime of rape. 12
Perfect penetration, rupture of the hymen or laceration of the
vagina are not essential for the offense of consummated
rape. Entry, to the least extent, of the labia or lips of the
female organ is sufficient. 13 Diana's remaining a virgin does
not negate rape.
Sexual intercourse in a standing position, while perhaps
uncomfortable, is not improbable. The RTC decision
explained:
. . . For her account that she was made to stand on the toilet
bowl made it easy for the accused to do the act as she was
too small and their private parts would not align unless she
was elevated to a higher position. The suggestion of the
defense counsel that a finger could have been used is
absurd. For if it were only a finger there would have been no
need to let Diana stand on the toilet bowl.. . . 14
The Solicitor General's brief, in turn, asserts that the position
Diana was forced to take, made it easier for appellant to
accomplish insertion of his organ than if Diana had been
made to lie down. 15
Experience has shown that unfounded charges of rape have
frequently been proffered by women actuated by some
sinister, ulterior or undisclosed motive. Convictions in such
cases should not be sustained without clear and convincing
proof of guilt, 16 considering the gravity of the offense and the
penalty it carries.
On the alleged sinister motive of Diana's grandmother
engendered by envy, we find this incredulous. For, what
grandmother would exact vengeance on her enemies at the
perpetual humiliation and disrepute of her six (6) year old
granddaughter?
Finally, the issue of credibility. Who among the contending
parties is telling the truth? The prosecution's evidence is
simple and straightforward. Appellant's alibi must fall. Claims
of his scholastic achievements, assuming they are relevant,
were unsubstantiated. His counsel did not even formally offer
the exhibits attesting to his enrollment at Adamson University
where he was supposed to have submitted in the morning of
4 October 1986 a term paper. His credibility is dubious; he
was not able to even identify the topic of his alleged term
paper. To discredit the victim he testified on her alleged
propensity to tell lies. 17 The trial court, however, categorically
held:
While Diana's testimony was in some instances flawed, the
flaw was minor and only with respect to dates. She is a

young girl. She sat at the witness stand four times, yet she
survived the rigors of testifying, unwavering in her claim that
she was raped. 18
Accused-appellant claims he was coerced and tortured by
Pasay policemen to admit the rape, showing to the trial court
bodily signs of said abuse. 19 Aside from his self-serving
assertion, the truth of such allegation was not proven.
Besides, this allegedly coerced admission of guilt cannot
affect the prosecution's case which has been established by
other positive evidence pointing to his guilt beyond
reasonable doubt.
Finding no reversible error in the decision subject of this
appeal, we affirm the same in its entirety.
WHEREFORE, the decision is AFFIRMED. Accusedappellant is sentenced to suffer the penalty of reclusion
perpetua and to indemnify the victim, Diana Rose Castro in
the amount of P30,000.00 in line with prevailing
jurisprudence. Costs against the appellant.
SO ORDERED.
CRUZ, J.:p
Asked how she felt while she was being raped, the
complainant replied: "Masarap." The trial judge believed her
but just the same convicted the accused-appellant. The case
is now before us.
The complainant is Glenda Aringo, who was sixteen years
old at the time of the alleged offense. She is the neighbor of
Cesar Atento, the herein accused-appellant, a 39-year old
store-keeper with a wife and eight children. Her claim is that
Atento raped her five separate times, the first sometime in
April 1986.
She says that on that first occasion she went to Atento's
store in Barangay 18, Minoro, Cabagan, in Legazpi City to
buy bread. Her parents were at work and Atento was alone
in his house except for his three-year old daughter. Glenda
claims Atento cajoled her into coming inside the house and
then took her downstairs, where he succeeded in
deflowering her. She says her maiden head ached and bled.
Afterwards, he gave her P5.00.
Glenda speaks of four other times when he raped her. It was
later (presumably because her hymen had healed) that she
felt tickled by his manhood and described the act of coitus as
"masarap." 1
The girl says she never told anybody about Atento's attacks
on her because he had threatened her life. But she could not
conceal her condition for long and after five months had to
admit she was pregnant. She revealed the accusedappellant as the father of the foetus in her womb. The child
was delivered on December 27, 1987, and christened Hubert
Buendia Aringo.
PEOPLE v. ATENTO
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 84728 April 26, 1991
vs.
CESAR ATENTO accused-appellant.
The Solicitor General for plaintiff-appellee.
Public Attorney's Office for accused-appellant.
Atento denies the charge against him, saying it was pure

harassment concocted by a relative of the girl who wanted to
eject him from the land where his house was erected.
Insisting that Glenda was a girl of loose morals, he says he
had twice seen her in sexual congress with a man and that
she had once offered her body to his thirteen year old son for
a fee of P5.00.
Glenda's description of the act of coitus as pleasurable
would have destroyed the whole case against Atento but for
one singular significant fact. The girl is a mental retardate.
Ascendo Belmonte, a clinical psychologist at Don Susano
Rodriguez Memorial Mental Hospital, subjected the girl to a
series of intelligence tests, to wit, the Wecslar adult
intelligence scale, revised beta exam, standard progressive
matrices, and the Bender visual motor gestalt test, with the
following findings:
Glenda B. Aringo, who was born on June 18, 1970, is INTER
ALIA with an intellectual capacity between the ages of nine

(9) and twelve (12) years. As such, her intellectual
functioning is within the mentally defective level. Her fund of
information is inadequate, her judgment is unsound, her
thinking and working capacity is poor. She is unable to
distinguish essential from non-essential details. Her
vocabulary is limited. Her capacity for her perceptual
processes is unsatisfactory. She lacks the capacity for
abstracting and synthesizing concepts. However, in the midst
of all these, Glenda was found capable of telling the truth. 2
Benita Aringo, Glenda's mother, testified that her daughter
reached only third grade and did not like to continue
studying, preferring to play with children younger than she,
even when she was already pregnant. After delivering her
child, she would often leave its care to Benita, and play
marbles with the children rather than feed her baby. Another
relative, Caridad Aringo, testified that Glenda had the
mentality of a 12-year old and was fond of rubber bands and
playing cards.
It is not necessary under Article 335 for the culprit to actually

deprive the victim of reason prior to the rape, as by the
administration of drugs or by some other illicit method. Ms
provision also applies to cases where the woman has been
earlier deprived of reason by other causes, as when she is
congenitally retarded or has previously suffered some
traumatic experience that has lowered her mental capacity.
In such situations, the victim is in the same category as a
child below 12 years of age for lacking the necessary will to
object to the attacker's lewd intentions.
In People v. Palma, 4 where a 14-year old mental retardate
was another rape victim, we held that:
The crime committed by Palma is rape under Article 335(2)
of the Revised Penal Code. Copulation with a woman known
to be mentally incapable of giving even an imperfect consent
is rape. Physical intimidation need not precede sexual
intercourse considering the age, mental abnormality and
deficiency of the complainant.
The Court finds this to be the reason why, while a rape victim
with normal intelligence, would have said that the attack on
her caused her much physical pain and mental agony,
Glenda naively declared that Atento's sexual organ in hers
gave her much pleasure.
So also in People v. Sunga, 5 where the offended party was

23 years old with the mentality of a child about 8 to 9 years
of age:
It is worth observing that Glenda's child was born on

December, nine months after her rape in April, and that,
according to the trial judge, there was a remarkable
resemblance between Atento and the boy.
Because of her mental condition, complainant is incapable of

giving consent to the sexual intercourse. She is in the same
class as a woman deprived of reason or otherwise
unconscious. Appellant therefore committed rape in having
sexual intercourse with her.
Article 335 of the Revised Penal Code provides:

Art. 335. When and how rape committed. Rape is
committed by having carnal knowledge of a woman under
any of the following circumstances:
1. By using force or intimidation;
2. When the woman is deprived of reason or otherwise
unconscious and
3. When the woman is under twelve years of age, even
though neither of the circumstances mentioned in the two
next preceding paragraphs shall be present.
xxx xxx xxx
It has not been clearly established that Atento employed
force or threat against Glenda to make her submit to his lust.
Nevertheless, there is no question that Atento is guilty of
rape upon Glenda under paragraph 2, because the girl was
deprived of reason. Alternatively, he is liable under
paragraph 3, because his victim had the mentality of a girl
less than twelve years old at the time she was raped.
In People v. Atutubo, 3 this Court held:
In his authoritative work on Criminal Law, Chief Justice

Aquino explains Paragraph 2 as follows. 6
. . . in the rape of a woman deprived of reason or
unconscious, the victim has no will. The absence of will
determines the existence of the rape. Such lack of will may
exist not only when the victim is unconscious or totally
deprived of reason, but also when she is suffering some
mental deficiency impairing her reason or free will. In that
case, it is not necessary that she should offer real opposition
or constant resistance to the sexual intercourse. Carnal
knowledge of a woman so weak in intellect as to be
incapable of legal consent constitutes rape. Where the
offended woman was feeble-minded, sickly and almost an
idiot, sexual intercourse with her is rape. Her failure to offer
resistance to the act did not mean consent for she was
incapable of giving any rational consent.
The deprivation of reason need not be complete. Mental
abnormality or deficiency is enough. Cohabitation with a
feeble-minded, idiotic woman is rape.
The trial court, however, held Atento guilty of rape under
Paragraph 3, citing People v. Asturias, 7 where it was held:
Assuming that complainant Vilma Ortega voluntarily
submitted herself to the bestial desire of appellant still the
crime committed is rape under paragraph 3 of Article 335 of
the Revised Penal Code. This is so even if the

circumstances of force and intimidation, or of the victim
being deprived of reason or otherwise unconscious are
absent. The victim has the mentality of a child below seven
years old. If sexual intercourse with a victim under twelve
years of age is rape, then it should follow that carnal
knowledge with a seventeen-year old girl whose mental
capacity is that of a seven year old child would constitute
rape.
In coming to his conclusion, Judge Gregorio A. Consulta
declared:
. . . Given the low I.Q. of Glenda, it is impossible to believe
that she could have fabricated her charges against the
accused. She lacks the gift of articulation and inventiveness.
She could not even explain with ease the meaning of rape, a
term which she learned in the community. Even with
intensive coaching, assuming that happened, on the witness
stand where she was alone, it would show with her testimony
falling into irretrievable pieces. But that did not happen. She
proceeded, though with much difficulty, with childlike
innocence. A smart and perspicacious person would hesitate
to describe to the Court her sexual experiences as "tickling"
and "masarap" for that would only elicit disdain and laughter.
Only a simple-minded artless child would do it. And Glenda
falls within the level of a 9-12 year old child. And Glenda was
telling the truth!
There is no doubt that when she submitted herself to the
accused later for subsequent intercourses, she was
dominated more by fear and ignorance than by reason.
In any event, whether under paragraph 2 or under paragraph
3 of Article 335 of the Revised Penal Code, the accusedappellant deserves to be punished for the rape of Glenda
Azingo.
The trial court found the accused-appellant guilty of rape as
charged, meaning that he raped the victim five times, but we
do not agree that the other four rapes have been
conclusively proven. Otherwise, he would have to be
punished for five separate rapes. Except for this and the civil
indemnity, which is increased from P20,000.00 to
P30,000.00, we agree with the sentence imposing on him
the penalty of reclusion perpetua, the obligation to
acknowledge and support Hubert Buendia Aringo as his own
spurious child, and to pay the costs.
WHEREFORE, the appealed judgment is AFFIRMED as
above modified. It is so ordered.
PEOPLE v. CAMPUHAN
SUPREME COURT
Manila
EN BANC
G.R. No. 129433
March 30, 2000
PEOPLE OF THE PHILIPPINES, plaintiff,

vs.
PRIMO CAMPUHAN Y BELLO accused.
BELLOSILLO, J.:
On 3 April 1990 this Court in People v. Orita 1 finally did away
with frustrated rape 2 and allowed only attempted rape and
consummated rape to remain in our statute books. The
instant case lurks at the threshold of another emasculation of
the stages of execution of rape by considering almost every
attempt at sexual violation of a woman as consummated
rape, that is, if the contrary view were to be adopted. The
danger there is that that concept may send the wrong signal
to every roaming lothario, whenever the opportunity bares
itself, to better intrude with climactic gusto, sans any
restraint, since after all any attempted fornication would be
considered consummated rape and punished as such. A
mere strafing of the citadel of passion would then be
considered a deadly fait accompli, which is absurd.
In Orita we held that rape was consummated from the
moment the offender had carnal knowledge of the victim
since by it he attained his objective. All the elements of the
offense were already present and nothing more was left for
the offender to do, having performed all the acts necessary
to produce the crime and accomplish it. We ruled then that
perfect penetration was not essential; any penetration of the
female organ by the male organ, however slight, was
sufficient. The Court further held that entry of the labia or lips
of the female organ, even without rupture of the hymen or
laceration of the vagina, was sufficient to warrant conviction
for consummated rape. We distinguished consummated rape
from attempted rape where there was no penetration of the
female organ because not all acts of execution were
performed as the offender merely commenced the
commission of a felony directly by overt acts. 3 The inference
that may be derived therefrom is that complete or full
penetration of the vagina is not required for rape to be
consummated. Any penetration, in whatever degree, is
enough to raise the crime to its consummated stage.
But the Court in Orita clarified the concept of penetration in
rape by requiring entry into the labia or lips of the female
organ, even if there be no rupture of the hymen or laceration
of the vagina, to warrant a conviction for consummated rape.
While the entry of the penis into the lips of the female organ
was considered synonymous with mere touching of the
external genitalia, e.g., labia majora, labia minora, etc.,4 the
crucial doctrinal bottom line is that touching must be
inextricably viewed in light of, in relation to, or as an
essential part of, the process of penile penetration, and not
just mere touching in the ordinary sense. In other words, the
touching must be tacked to the penetration itself. The
importance of the requirement of penetration, however slight,
cannot be gainsaid because where entry into the labia or the
lips of the female genitalia has not been established, the
crime committed amounts merely to attempted rape.

Verily, this should be the indicium of the Court in determining
whether rape has been committed either in its attempted or
in its consummated stage; otherwise, no substantial
distinction would exist between the two, despite the fact that
penalty-wise, this distinction, threadbare as it may seem,
irrevocably spells the difference between life and death for
the accused a reclusive life that is not even perpetua but
only temporal on one hand, and the ultimate extermination of
life on the other. And, arguing on another level, if the case at
bar cannot be deemed attempted but consummated rape,
what then would constitute attempted rape? Must our field of
choice be thus limited only to consummated rape and acts of
lasciviousness since attempted rape would no longer be
possible in light of the view of those who disagree with
this ponencia?
On 27 May 1997 Primo Campuhan y Bello was found guilty
of statutory rape and sentenced by the court a quo to the
extreme penalty of death, 5 hence this case before us on
automatic review under Art. 335 of the Revised Penal Code
as amended by RA 7659. 6
As may be culled from the evidence on record, on 25 April
1996, at around 4 o'clock in the afternoon, Ma. Corazon P.
Pamintuan, mother of four (4)-year old Crysthel Pamintuan,
went down from the second floor of their house to prepare
Milo chocolate drinks for her two (2) children. At the ground
floor she met Primo Campuhan who was then busy filling
small plastic bags with water to be frozen into ice in the
freezer located at the second floor. Primo was a helper of
Conrado Plata Jr., brother of Corazon. As Corazon was busy
preparing the drinks, she heard one of her daughters cry,
"Ayo'ko, ayo'ko!" 7 prompting Corazon to rush upstairs.
Thereupon, she saw Primo Campuhan inside her children's
room kneeling before Crysthel whose pajamas or "jogging
pants" and panty were already removed, while his short
pants were down to his knees.
According to Corazon, Primo was forcing his penis into
Crysthel's vagina. Horrified, she cursed the accused, "P - t ng ina mo, anak ko iyan!" and boxed him several times. He
evaded her blows and pulled up his pants. He pushed
Corazon aside when she tried to block his path. Corazon
then ran out and shouted for help thus prompting her brother,
a cousin and an uncle who were living within their
compound, to chase the accused. 8Seconds later, Primo was
apprehended by those who answered Corazon's call for
help. They held the accused at the back of their compound
until they were advised by their neighbors to call the
barangay officials instead of detaining him for his misdeed.
Physical examination of the victim yielded negative results.
No evident sign of extra-genital physical injury was noted by
the medico-legal officer on Crysthel's body as her hymen
was intact and its orifice was only 0.5 cm. in diameter.
Primo Campuhan had only himself for a witness in his
defense. He maintained his innocence and assailed the
charge as a mere scheme of Crysthel's mother who allegedly
harbored ill will against him for his refusal to run an errand
for her. 9 He asserted that in truth Crysthel was in a playing
mood and wanted to ride on his back when she suddenly

pulled him down causing both of them to fall down on the
floor. It was in this fallen position that Corazon chanced upon
them and became hysterical. Corazon slapped him and
accused him of raping her child. He got mad but restrained
himself from hitting back when he realized she was a
woman. Corazon called for help from her brothers to stop
him as he ran down from the second floor.
Vicente, Corazon's brother, timely responded to her call for
help and accosted Primo. Vicente punched him and
threatened to kill him. Upon hearing the threat, Primo
immediately ran towards the house of Conrado Plata but
Vicente followed him there. Primo pleaded for a chance to
explain as he reasoned out that the accusation was not true.
But Vicente kicked him instead. When Primo saw Vicente
holding a piece of lead pipe, Primo raised his hands and
turned his back to avoid the blow. At this moment, the
relatives and neighbors of Vicente prevailed upon him to take
Primo to the barangay hall instead, and not to maul or
possibly kill him.
Although Primo Campuhan insisted on his innocence, the
trial court on 27 May 1997 found him guilty of statutory rape,
sentenced him to the extreme penalty of death, and ordered
him to pay his victim P50,000.00 for moral damages,
P25,000.00 for exemplary damages, and the costs.
The accused Primo Campuhan seriously assails the
credibility of Ma. Corazon Pamintuan. He argues that her
narration should not be given any weight or credence since it
was
punctured with implausible statements and
improbabilities so inconsistent with human nature and
experience. He claims that it was truly inconceivable for him
to commit the rape considering that Crysthel's younger sister
was also in the room playing while Corazon was just
downstairs preparing Milo drinks for her daughters. Their
presence alone as possible eyewitnesses and the fact that
the episode happened within the family compound where a
call for assistance could easily be heard and responded to,
would have been enough to deter him from committing the
crime. Besides, the door of the room was wide open for
anybody to see what could be taking place inside. Primo
insists that it was almost inconceivable that Corazon could
give such a vivid description of the alleged sexual contact
when from where she stood she could not have possibly
seen the alleged touching of the sexual organs of the
accused and his victim. He asserts that the absence of any
external signs of physical injuries or of penetration of
Crysthel's private parts more than bolsters his innocence.
In convicting the accused, the trial court relied quite heavily
on the testimony of Corazon that she saw Primo with his
short pants down to his knees kneeling before Crysthel
whose pajamas and panty were supposedly "already
removed" and that Primo was "forcing his penis into
Crysthel's vagina." The gravamen of the offense of statutory
rape is carnal knowledge of a woman below twelve (12), as
provided in Art. 335, par. (3), of the Revised Penal Code.
Crysthel was only four (4) years old when sexually molested,

thus raising the penalty, from reclusion perpetua to death, to
the single indivisible penalty of death under RA 7659, Sec.
11, the offended party being below seven (7) years old. We
have said often enough that in concluding that carnal
knowledge took place, full penetration of the vaginal orifice is
not an essential ingredient, nor is the rupture of the hymen
necessary; the mere touching of the external genitalia by the
penis capable of consummating the sexual act is sufficient to
constitute carnal knowledge. 10 But the act of touching should
be understood here as inherently part of the entry of the
penis into the labias of the female organ and not mere
touching alone of the mons pubis or the pudendum.
In People v. De la Pea 11 we clarified that the decisions
finding a case for rape even if the attacker's penis merely
touched the external portions of the female genitalia were
made in the context of the presence or existence of an erect
penis capable of full penetration. Where the accused failed
to achieve an erection, had a limp or flaccid penis, or an
oversized penis which could not fit into the victim's vagina,
the Court nonetheless held that rape was consummated on
the basis of the victim's testimony that the accused
repeatedly tried, but in vain, to insert his penis into her
vagina and in all likelihood reached the labia of her
pudendum as the victim felt his organ on the lips of her
vulva, 12 or that the penis of the accused touched the middle
part of her vagina. 13 Thus, touching when applied to rape
cases does not simply mean mere epidermal contact,
stroking or grazing of organs, a slight brush or a scrape of
the penis on the external layer of the victim's vagina, or
the mons pubis, as in this case. There must be sufficient and
convincing proof that the penis indeed touched the labias or
slid into the female organ, and not merely stroked the
external surface thereof, for an accused to be convicted of
consummated rape. 14 As the labias, which are required to
be "touched" by the penis, are by their natural situs or
location beneath the mons pubis or the vaginal surface, to
touch them with the penis is to attain some degree of
penetration beneath the surface, hence, the conclusion that
touching the labia majora or the labia minora of the
pudendum constitutes consummated rape.
The pudendum or vulva is the collective term for the female
genital organs that are visible in the perineal area,e.g., mons
pubis, labia majora, labia minora, the hymen, the clitoris, the
vaginal orifice, etc. The mons pubis is the rounded eminence
that becomes hairy after puberty, and is instantly visible
within the surface. The next layer is the labia majora or the
outer lips of the female organ composed of the outer convex
surface and the inner surface. The skin of the outer convex
surface is covered with hair follicles and is pigmented, while
the inner surface is a thin skin which does not have any hair
but has many sebaceous glands. Directly beneath the labia
majora is the labia minora. 15 Jurisprudence dictates that the
labia majora must be entered for rape to be
consummated, 16 and not merely for the penis to stroke the
surface of the female organ. Thus, a grazing of the surface of
the female organ or touching the mons pubis of the
pudendum is not sufficient to constitute consummated rape.
Absent any showing of the slightest penetration of the female
organ, i.e., touching of either labia of the pudendum by the
penis, there can be no consummated rape; at most, it can

only be attempted rape, if not acts of lasciviousness.
Judicial depiction of consummated rape has not been
confined to the oft-quoted "touching of the female
organ,"17 but has also progressed into being described as
"the introduction of the male organ into the labia of the
pudendum," 18 or
"the
bombardment
of
the
drawbridge." 19 But, to our mild, the case at bar merely
constitutes a "shelling of the castle of orgasmic potency," or
as earlier stated, a "strafing of the citadel of passion.
A review of the records clearly discloses that the prosecution
utterly failed to discharge its onus of proving that Primo's
penis was able to penetrate Crysthel's vagina however slight.
Even if we grant arguendo that Corazon witnessed Primo in
the act of sexually molesting her daughter, we seriously
doubt the veracity of her claim that she saw the inter-genital
contact between Primo and Crysthel. When asked what she
saw upon entering her children's room Corazon plunged into
saying that she saw Primo poking his penis on the vagina of
Crysthel without explaining her relative position to them as to
enable her to see clearly and sufficiently, in automotive lingo,
the contact point. It should be recalled that when Corazon
chanced upon Primo and Crysthel, the former was allegedly
in a kneeling position, which Corazon described thus:
Q: How was Primo holding your daughter?
A: (The witness is demonstrating in such a way that
the chest of the accused is pinning down the victim,
while his right hand is holding his penis and his left
hand is spreading the legs of the victim).
It can reasonably be drawn from the foregoing narration that
Primo's kneeling position rendered an unbridled observation
impossible. Not even a vantage point from the side of the
accused and the victim would have provided Corazon an
unobstructed view of Primo's penis supposedly reaching
Crysthel's external genitalia, i.e., labia majora, labia minora,
hymen, clitoris, etc., since the legs and arms of Primo would
have hidden his movements from Corazon's sight, not to
discount the fact that Primo's right hand was allegedly
holding his penis thereby blocking it from Corazon's view. It
is the burden of the prosecution to establish how Corazon
could have seen the sexual contact and to shove her
account into the permissive sphere of credibility. It is not
enough that she claims that she saw what was done to her
daughter. It is required that her claim be properly
demonstrated to inspire belief. The prosecution failed in this
respect, thus we cannot conclude without any taint of serious
doubt that inter-genital contact was at all achieved. To hold
otherwise would be to resolve the doubt in favor of the
prosecution but to run roughshod over the constitutional right
of the accused to be presumed innocent.
Corazon insists that Primo did not restrain himself from
pursuing his wicked intention despite her timely appearance,
thus giving her the opportunity to fully witness his beastly
act.

We are not persuaded. It is inconsistent with man's instinct of
self-preservation to remain where he is and persist in
satisfying his lust even when he knows fully well that his
dastardly acts have already been discovered or witnessed by
no less than the mother of his victim. For, the normal
behavior or reaction of Primo upon learning of Corazon's
presence would have been to pull his pants up to avoid
being caught literally with his pants down. The interval,
although relatively short, provided more than enough
opportunity for Primo not only to desist from but even to
conceal his evil design.
What appears to be the basis of the conviction of the
accused was Crysthel's answer to the question of the court
Q: Did the penis of Primo touch your organ?

A: Yes, sir.
But when asked further whether his penis penetrated her
organ, she readily said, "No." Thus
Q: But did his penis penetrate your organ?
A: No, sir. 20
This testimony alone should dissipate the mist of confusion
that enshrouds the question of whether rape in this case was
consummated. It has foreclosed the possibility of Primo's
penis penetrating her vagina, however slight. Crysthel made
a categorical statement denying penetration, 27 obviously
induced by a question propounded to her who could not
have been aware of the finer distinctions between touching
and penetration. Consequently, it is improper and unfair to
attach to this reply of a four (4)-year old child, whose
vocabulary is yet as underdeveloped as her sex and whose
language is bereft of worldly sophistication, an adult
interpretation that because the penis of the accused touched
her organ there was sexual entry. Nor can it be deduced that
in trying to penetrate the victim's organ the penis of the
accused touched the middle portion of her vagina and
entered the labia of her pudendum as the prosecution failed
to establish sufficiently that Primo made efforts to penetrate
Crysthel. 22Corazon did not say, nay, not even hint that
Primo's penis was erect or that he responded with an
erection. 23 On the contrary, Corazon even narrated that
Primo had to hold his penis with his right hand, thus showing
that he had yet to attain an erection to be able to penetrate
his victim.
Antithetically, the possibility of Primo's penis having
breached Crysthel's vagina is belied by the child's own
assertion that she resisted Primo's advances by putting her
legs close together; 24 consequently, she did not feel any
intense pain but just felt "not happy" about what Primo did to
her. 25 Thus, she only shouted "Ayo'ko, ayo'ko!" not "Aray ko,
aray ko!" In cases where penetration was not fully
established, the Court had anchored its conclusion that rape
nevertheless was consummated on the victim's testimony
that she felt pain, or the medico-legal finding of discoloration

in the inner lips of the vagina, or the labia minora was
already gaping with redness, or the hymenal tags were no
longer visible. 26 None was shown in this case. Although a
child's testimony must be received with due consideration on
account of her tender age, the Court endeavors at the same
time to harness only what in her story appears to be true,
acutely aware of the equally guaranteed rights of the
accused. Thus, we have to conclude that even on the basis
of the testimony of Crysthel alone the accused cannot be
held liable for consummated rape; worse, be sentenced to
death.1wphi1
Lastly, it is pertinent to mention the medico legal officer's
finding in this case that there were no external signs of
physical injuries on complaining witness' body to conclude
from a medical perspective that penetration had taken place.
As Dr. Aurea P. Villena explained, although the absence of
complete penetration of the hymen does not negate the
possibility of contact, she clarified that there was no medical
basis to hold that there was sexual contact between the
accused and the victim. 27
In cases of rape where there is a positive testimony and a
medical certificate, both should in all respects complement
each other; otherwise, to rely on the testimonial evidence
alone, in utter disregard of the manifest variance in the
medical certificate, would be productive of unwarranted or
even mischievous results. It is necessary to carefully
ascertain whether the penis of the accused in reality entered
the labial threshold of the female organ to accurately
conclude that rape was consummated. Failing in this, the
thin line that separates attempted rape from consummated
rape will significantly disappear.
Under Art. 6, in relation to Art. 335, of the Revised Penal
Code, rape is attempted when the offender commences the
commission of rape directly by overt acts, and does not
perform all the acts of execution which should produce the
crime of rape by reason of some cause or accident other
than his own spontaneous desistance. All the elements of
attempted rape and only of attempted rape are present
in the instant case, hence, the accused should be punished
only for it.
The penalty for attempted rape is two (2) degrees lower than
the imposable penalty of death for the offense charged,
which is statutory rape of a minor below seven (7) years.
Two (2) degrees lower is reclusion temporal, the range of
which is twelve (12) years and one (1) day to twenty (20)
years. Applying the Indeterminate Sentence Law, and in the
absence of any mitigating or aggravating circumstance, the
maximum of the penalty to be imposed upon the accused
shall be taken from the medium period of reclusion temporal,
the range of which is fourteen (14) years, eight (8) months
and (1) day to seventeen (17) years and four (4) months,
while the minimum shall be taken from the penalty next lower
in degree, which is prision mayor, the range of which is from
six (6) years and one (1) day to twelve (12) years, in any of
its periods.

WHEREFORE, the Decision of the court a quo finding
accused PRIMO "SONNY" CAMPUHAN Y BELLO guilty of
statutory rape and sentencing him to death and to pay
damages is MODIFIED. He is instead found guilty of
ATTEMPTED RAPE and sentenced to an indeterminate
prison term of eight (8) years four (4) months and ten (10)
days of prision mayor medium as minimum, to fourteen (14)
years ten (10) months and twenty (20) days ofreclusion
temporal medium as maximum. Costs de oficio.
SO ORDERED.1wphi1.nt
BULLYING
RA 10627
Congress of the Philippines
Metro Manila
Fifteenth Congress
Third Regular Session
Begun and held in Metro Manila, on Monday, the twenty-third
day of July, two thousand twelve.
[REPUBLIC ACT NO. 10627]
AN ACT REQUIRING ALL ELEMENTARY AND
SECONDARY SCHOOLS TO ADOPT POLICIES TO
PREVENT AND ADDRESS THE ACTS OF BULLYING IN
THEIR INSTITUTIONS
Be it enacted by the Senate and House of Representatives
of the Philippines in Congress assembled:
SECTION 1. Short Title. This Act shall be known as the
Anti-Bullying Act of 2013.
c. Any slanderous statement or accusation that causes the

victim undue emotional distress like directing foul language
or profanity at the target, name-calling, tormenting and
commenting negatively on victims looks, clothes and body;
and
d. Cyber-bullying or any bullying done through the use of
technology or any electronic means.
SEC. 3. Adoption of Anti-Bullying Policies. All elementary
and secondary schools are hereby directed to adopt policies
to address the existence of bullying in their respective
institutions. Such policies shall be regularly updated and, at
a minimum, shall include provisions which:
(a) Prohibit the following acts:
(1) Bullying on school grounds; property immediately
adjacent to school grounds; at school-sponsored or schoolrelated activities, functions or programs whether on or off
school grounds; at school bus stops; on school buses or
other vehicles owned, leased or used by a school; or through
the use of technology or an electronic device owned, leased
or used by a school;
(2) Bullying at a location, activity, function or program that is
not school-related and through the use of technology or an
electronic device that is not owned, leased or used by a
school if the act or acts in question create a hostile
environment at school for the victim, infringe on the rights of
the victim at school, or materially and substantially disrupt
the education process or the orderly operation of a school;
and
(3) Retaliation against a person who reports bullying, who
provides information during an investigation of bullying, or
who is a witness to or has reliable information about bullying;
SEC. 2. Acts of Bullying. For purposes of this Act,

bullying shall refer to any severe or repeated use by one or
more students of a written, verbal or electronic expression,
or a physical act or gesture, or any combination thereof,
directed at another student that has the effect of actually
causing or placing the latter in reasonable fear of physical or
emotional harm or damage to his property; creating a hostile
environment at school for the other student; infringing on the
rights of the other student at school; or materially and
substantially disrupting the education process or the orderly
operation of a school; such as, but not limited to, the
following:
(b) Identify the range of disciplinary administrative actions

that may be taken against a perpetrator for bullying or
retaliation which shall be commensurate with the nature and
gravity of the offense: Provided, That, in addition to the
disciplinary sanctions imposed upon a perpetrator of bullying
or retaliation, he/she shall also be required to undergo a
rehabilitation program which shall be administered by the
institution concerned. The parents of the said perpetrator
shall be encouraged by the said institution to join the
rehabilitation program;
a. Any unwanted physical contact between the bully and the

victim like punching, pushing, shoving, kicking, slapping,
tickling, headlocks, inflicting school pranks, teasing, fighting
and the use of available objects as weapons;
(1) Reporting acts of bullying or retaliation;
b. Any act that causes damage to a victims psyche and/or

emotional well-being;
(3) Restoring a sense of safety for a victim and assessing

the students need for protection;
(c) Establish clear procedures and strategies for:
(2) Responding promptly to and investigating reports of

bullying or retaliation;

(4) Protecting from bullying or retaliation of a person who
reports acts of bullying, provides information during an
investigation of bullying, or is witness to or has reliable
information about an act of bullying; and
(5) Providing counseling or referral to appropriate services
for perpetrators, victims and appropriate family members of
said students;
(d) Enable students to anonymously report bullying or
retaliation: Provided, however, That no disciplinary
administrative action shall be taken against a perpetrator
solely on the basis of an anonymous report;
both. Upon receipt of such a report, the school principal or

the designated school officer or person shall promptly
investigate. If it is determined that bullying or retaliation has
occurred, the school principal or the designated school
officer or person shall:
(a) Notify the law enforcement agency if the school principal
or designee believes that criminal charges under the
Revised Penal Code may be pursued against the
perpetrator;
(b) Take appropriate disciplinary administrative action;
(c) Notify the parents or guardians of the perpetrator; and
(e) Subject a student who knowingly makes a false

accusation of bullying to disciplinary administrative action;
(f) Educate students on the dynamics of bullying, the antibullying policies of the school as well as the mechanisms of
such school for the anonymous reporting of acts of bullying
or retaliation;
(g) Educate parents and guardians about the dynamics of
bullying, the anti-bullying policies of the school and how
parents and guardians can provide support and reinforce
such policies at home; and
(h) Maintain a public record of relevant information and
statistics on acts of bullying or retaliation in school: Provided,
That the names of students who committed acts of bullying
or retaliation shall be strictly confidential and only made
available to the school administration, teachers directly
responsible for the said students and parents or guardians of
students who are or have been victims of acts of bullying or
retaliation.
All elementary and secondary schools shall provide students
and their parents or guardians a copy of the anti-bullying
policies being adopted by the school. Such policies shall
likewise be included in the schools student and/or employee
handbook and shall be conspicuously posted on the school
walls and website, if there is any.
The Department of Education (DepED) shall include in its
training programs, courses or activities which shall provide
opportunities for school administrators, teachers and other
employees to develop their knowledge and skills in
preventing or responding to any bullying act.
SEC. 4. Mechanisms to Address Bullying. The school
principal or any person who holds a comparable role shall be
responsible for the implementation and oversight of policies
intended to address bullying.
Any member of the school administration, student, parent or
volunteer shall immediately report any instance of bullying or
act of retaliation witnessed, or that has come to ones
attention, to the school principal or school officer or person
so designated by the principal to handle such issues, or
(d) Notify the parents or guardians of the victim regarding the

action taken to prevent any further acts of bullying or
retaliation.
If an incident of bullying or retaliation involves students from
more than one school, the school first informed of the
bullying or retaliation shall promptly notify the appropriate
administrator of the other school so that both may take
appropriate action.
SEC. 5. Reporting Requirement. All schools shall inform
their respective schools division superintendents in writing
about the anti-bullying policies formulated within six (6)
months from the effectivity of this Act. Such notification shall
likewise be an administrative requirement prior to the
operation of new schools.
Beginning with the school year after the effectivity of this Act,
and every first week of the start of the school year thereafter,
schools shall submit a report to their respective schools
division superintendents all relevant information and
statistics on acts of bullying or retaliation. The schools
division superintendents shall compile these data and report
the same to the Secretary of the DepED who shall likewise
formally transmit a comprehensive report to the Committee
on Basic Education of both the House of Representatives
and the Senate.
SEC. 6. Sanction for Noncompliance. In the rules and
regulations to be implemented pursuant to this Act, the
Secretary of the DepED shall prescribe the appropriate
administrative sanctions on school administrators who shall
fail to comply with the requirements under this Act. In
addition thereto, erring private schools shall likewise suffer
the penalty of suspension of their permits to operate.
SEC. 7. Implementing Rules and Regulations. Within
ninety (90) days from the effectivity of this Act, the DepED
shall promulgate the necessary rules and regulations to
implement the provisions of this Act.
SEC. 8. Separability Clause. If, for any reason, any
provision of this Act is declared to be unconstitutional or

invalid, the other sections or provisions hereof which are not
affected thereby shall continue to be in full force or effect.
SEC. 9. Repealing Clause. All laws, decrees, orders, rules
and regulations or parts thereof which are inconsistent with
or contrary to the provisions of this Act are hereby repealed,
amended or modified accordingly.
SEC. 10. Effectivity. This Act shall take effect fifteen (15)
days after its publication in at least two (2) national
newspapers of general circulation.
Approved: SEP 12 2013

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CRIMINAL LAW 2 (Atty.

Rene Rizza Bernardo-Mamburam) 1

April 21, 2014

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

On June 11, 1999, the Office of the City Prosecutor of

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 2

Dangcagan, Bukidnon to procure supplies for the family

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 3

KKK and the children proceeded to the girls' bedroom and

The accused-appellant then raised KKK's daster,41 stretched

"Why are you sleeping in the room of our children", he asked

With a concrete wall on one side and a mere wooden

He returned 15 minutes later56 and when KKK still refused to

Upon hearing her mother crying and hysterically shouting:

The presence of his children apparently did not pacify the

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 4

While in Cebu on October 12, 1998 for MMM's graduation

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 5

Finally, the CA dismissed the accused-appellant's alibi for

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 6

In 1983, the marital exemption rule was abandoned in New

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 7

the land and adheres to the policy of peace, equality, justice,

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 8

MR. DAMASING: So if the husband is guilty of sexual

MR. LARA: Sexual assault, Madam Speaker.

MR. DAMASING: There is no crime of sexual assault, Your

MR. LARA: No, Madam Speaker, not entirely, no. The

HON. ROXAS: Otherwise, silent na.

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 9

PRESIDING OFFICER APOSTOL: Yes, I think, there is no

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 10

children in the household, dowry-related violence, marital

The accused-appellant further claims that this case should

Clearly, it is now acknowledged that rape, as a form of

The contentions failed to muster legal and rational merit.

A woman is no longer the chattel-antiquated practices

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 11

cases and found that no reversible error can be imputed to

As above discussed, the definition of rape in Section 1 of

The evidence for the prosecution was

The posture advanced by the accused-appellant arbitrarily

In rape cases, the conviction of the accused rests heavily on

Further, the Court adheres to and hereby adopts the

It is settled that the evaluation by the trial court of the

Lastly, the human rights of women include their right to have

After approximating the perspective of the trial court thru a

In fine, since the law does not separately categorize marital

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 12

Q Can you demonstrate to this Court how did he use his

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 13

On the October 17, 1998 rape incident:

Q Was your husband able to consummate his desire?

Q So, after your children went out of the room, what

A Yes, sir, because I cannot do anything.137

A He successfully having sex with me because he pulled my

when KKK refused

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 14

The corroborative testimonies of

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 15

prosecution was able to establish that the P3 Million deposit

Ill motive imputed to the victim

For the defense of alibi to prosper, the accused must prove