G.R. No.

212193

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee

vs.
JUAN RICHARD TIONLOC y MARQUEZ, Accused-Appellant

DECISION

DEL CASTILLO, J.:

When the evidence fails to establish all the elements of the crime, the verdict must be one of
acquittal of the accused. This basic legal precept applies in this criminal litigation for rape.

Factual Antecedents

Juan Richard Tionloc y Marquez (appellant) appeals the September 26, 2013 Decision1 of the Court
of Appeals (CA) in CA-G.R. CR.-H.C. No. 05452 which affirmed with modification the February 15,
2012 Decision2 of the Regional Trial Court (RTC) of Manila, Branch 37, in Criminal Case No. 08-
264453. The RTC found appellant guilty beyond reasonable doubt of the crime of rape committed
against "AAA"3 under paragraph 1 of Article 266-A of the Revised Penal Code (RPC). The
designation of the crime in the Information against appellant is rape by sexual assault under
paragraph 2, Article 266-A of the RPC. However, the accusatory portion of the Information charges
appellant with rape through sexual intercourse under paragraph l(b), Article 266-A, to wit:

That on or about September 29, 2008 in the City of Manila, Philippines, the said accused, conspiring
and confederating with one whose true name, real identity and present whereabouts are still
unknown and mutually helping each other, did then and there wilfully, unlawfully and feloniously, with
lewd design and by means of force and intimidation, commit sexual abuse upon the person of "AAA"
by then and there making her drink liquor which made her dizzy and drunk, depriving her of reason
or otherwise unconsciousness, bringing her to a room and succeeded in having carnal knowledge of
her, against her will.

Contrary to law.4

When arraigned, appellant pleaded "not guilty." Elvis James Meneses (Meneses) was involved in the
commission of the crime but could not be prosecuted due to his minority. He was only 14 years old
at the time of the incident.

Version of the Prosecution

"AAA" testified that at around 9:30 p.m. of September 29, 2008, she was having a drinking session
with appellant and Meneses in the house of appellant. After some time, she felt dizzy so she took a
nap. At around 11:00 p.m., she was roused from her sleep by Meneses who was mounting her and
inserting his penis into her vagina. She felt pain but could only cry in silence for fear that the knife
which they used to cut hotdog and now lying on top of a table nearby would be used to kill her if she
resisted. Meneses left after raping her. While still feeling dizzy, afraid and shivering, appellant
approached her and asked if he could also have sex with her. When she did not reply appellant
mounted and raped her. Appellant stopped only when she tried to reposition her body. "AAA" then
left appellant's house and immediately returned to the house she shared with her live-in partner.
The following day, "AAA" reported the incident to the police. She also underwent a medical
examination and the results revealed two lacerations in her hymen.

Version of the Defense

Appellant denied raping "AAA." He claimed that on that fateful night, he was having a drinking
session with his cousin, Gerry Tionloc. After a while, Meneses and "AAA" arrived and joined in their
drinking session. Meneses and

"AAA" then went inside his bedroom and continued drinking while he went out of the house to buy
food. When he returned and entered his bedroom, he saw Meneses and "AAA" having sex. They
asked him to leave, so he went to the kitchen. Meneses then came out of the bedroom followed by
"AAA" who was holding a bottle of "rugby," which she brought home with her. Appellant contended
that nothing more happened that night. Meneses corroborated his version of the incident.

Ruling of the Regional Trial Court

In its Decision5 dated February 15, 2012, the RTC clarified that appellant is charged with rape
through sexual intercourse under paragraph 1, Article 266-A of the RPC based on the allegations in
the Information and not with rape by sexual assault under paragraph 2 of the same provision of law,
as the designation in the Information suggests. The RTC stressed that this is consistent with the
legal precept that it is the allegations or recital in the Information that determine the nature of the
crime committed. Thus, the RTC ruled that appellant was guilty beyond reasonable doubt of rape
through sexual intercourse against "AAA." It held that the prosecution successfully established the
crime through the testimony of "AAA," which was credible, natural, convincing and consistent with
human nature and the normal course of things. The dispositive portion of the Decision reads as
follows:

WHEREFORE, the Court finds the accused Juan Richard Tionloc y Marquez GUILTY beyond
reasonable doubt of the crime of rape punishable under paragraph 1 of Article 266-A of the Revised
Penal Code and hereby sentences him to suffer the penalty of reclusion perpetua. He is ordered to
pay the private complainant Php50,000.00 as civil indemnity and Php50,000.00 as moral damages.

SO ORDERED.6

Appellant appealed the RTC's Decision arguing that discrepancies in the sworn statement of "AAA"
and her testimony diminished her credibility. Appellant contended that "AAA" alleged in her sworn
statement that: (1) appellant held her hands while Meneses was on top of her; and (2) she slept after
Meneses raped her and awakened only when he was on top of her. However, "AAA" did not mention
these allegations during her direct examination. Appellant maintained that "AAA" failed to refute his
assertions that her aunt and uncle fabricated the charges against him for having previous affairs with
two of her cousins.

Ruling of the Court of Appeals

In its Decision7 dated September 26, 2013, the CA ruled that discrepancies between the affidavit and
testimony of "AAA" did not impair her credibility since the former is taken ex parte and is often
incomplete or inaccurate for lack or absence of searching inquiries by the investigating officer. The
inconsistencies even preclude the possibility that the testimony given was rehearsed. Moreover, the
CA held that a rape victim like "AAA" is not expected to make an errorless recollection of the
incident, so humiliating and painful that she might even try to obliterate it from her memory. The CA
gave scant consideration to the appellant's claim of ill motive of the aunt and uncle of "AAA," as well
as his denial of raping her which cannot overcome her positive, candid and categorical testimony
that he was the rapist. The CA therefore affirmed the Decision of the R TC with modification that
interest at the rate of 6% per annum is imposed on all damages awarded from the date of finality of
the CA's Decision until fully paid. The dispositive portion of the CA's Decision reads as follows:

WHEREFORE, premises considered, the appeal is DENIED. The Decision dated 15 February 2012
of the Regional Trial Court, National Capital Judicial Region, Manila, Branch 37, in Crim. Case No.
08-264453 finding accused-appellant Juan Richard Tionloc y Marquez guilty beyond reasonable
doubt for the crime of rape under paragraph 1 of Article 266-A of the Revised Penal Code, as
amended, and sentencing him to suffer the penalty of reclusion perpetua and to pay Php50,000.00
as civil indemnity and another Php50,000.00 as moral damages in favor of private complainant AAA
is AFFIRMED with MODIFICATION in that interest at the rate of 6% per annum is imposed on all
damages awarded from the date of finality of this judgment until fully paid.

SO ORDERED.8

Still insisting on his innocence, appellant comes to this Court through this appeal.

Assignment of Error

Appellant adopts the same assignment of error he raised before the CA, viz.:

THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY

BEYOND REASONABLE DOUBT OF THE CRIME CHARGED.9

Appellant asserts that he should be acquitted of rape since the prosecution was not able to establish
the required quantum of evidence in order to overcome the presumption of innocence.

Our Ruling

The appeal is meritorious.

The Facts Recited In The Information
Determine the Crime Charged

It is apparent that there is a discrepancy in the designation of the crime in the Information (rape by
sexual assault under paragraph 2 of Article 266-A of the RPC) and the recital in the Information
(rape through sexual intercourse under paragraph 1 of the same provision of law). However, this
discrepancy does not violate appellant's right to be informed of the nature and cause of the
accusation against him. As ruled correctly by the RTC, the allegations in the Information charged
appellant with rape through sexual intercourse under paragraph 1 of Article 266-A of the RPC and
said allegations or recital in the Information determine the nature of the crime committed. "[T]he
character of the crime is not determined by the caption or preamble of the Information nor from the
specification of the provision of law alleged to have been violated, but by the recital of the ultimate
facts and circumstances in the complaint or information."10

The Use Of Force, Threat or

Intimidation Causes Fear on the Part of
the Rape Victim.

Be that as it may, the prosecution had to overcome the presumption of innocence of appellant by
presenting evidence that would establish the elements of rape by sexual intercourse under
paragraph 1, Article 266-A of the RPC, to wit: (1) the offender is a man; (2) the offender had carnal
knowledge of a woman; (3) such act was accomplished by using force, threat or intimidation. "In
rape cases alleged to have been committed by force, threat or intimidation, it is imperative for the
prosecution to establish that the element of voluntariness on the part of the victim be absolutely
lacking. The prosecution must prove that force or intimidation was actually employed by accused
upon his victim to achieve his end. Failure to do so is fatal to its cause."11

Force, as an element of rape, must be sufficient to consummate the purposes which the accused
had in mind. On the other hand, intimidation must produce fear that if the victim does not yield to the
bestial demands of the accused, something would happen to her at that moment or even thereafter
as when she is threatened with death if she reports the incident.12 "Intimidation includes the moral
kind as the fear caused by threatening the girl with a knife or pistol."13

It this case, the prosecution established that appellant was an 18-year old man who had sexual
intercourse with "AAA," a woman who was 24 years old during the incident. However, there was no
evidence to prove that appellant used force, threat or intimidation during his sexual congress with
"AAA." She testified that appellant and Meneses are her good friends. Thus, she frequented the
house of appellant. At around 7:00 p.m. of September 29, 2008, she again went to the house of
appellant and chatted with him and Meneses while drinking liquor. From that time up to about 11
p.m. when she took a nap, there is no showing that appellant or Meneses forced, threatened or
intimidated her.

As to how appellant and Meneses had sexual intercourse with her, "AAA" merely testified as follows:

Q - Madam Witness, you said that it was Elvis James who raped you first. And then after he left this
Juan Richard Tionloc [accused] approached you and asked if you can do it?

A - Yes, Ma' am; he asked me but I did not answer because I was still shivering.

Q - And then what else happened after that?

A - That is it; he was the one who did it.14

No allegation whatsoever was made by "AAA" that Meneses or appellant employed force, threat or
intimidation against her. No claim was ever made that appellant physically overpowered, or used or
threatened to use a weapon against, or uttered threatening words to "AAA." While "AAA" feared for
her life since a knife lying on the table nearby could be utilized to kill her if she resisted, her fear was
a mere product of her own imagination. There was no evidence that the knife was placed nearby
precisely to threaten or intimidate her. We cannot even ascertain whether said knife can be used as
a weapon or an effective tool to intimidate a person because it was neither presented nor described
in court. These findings are clear from the following testimony of "AAA:"

Q- While Elvis James was inserting his penis to [sic] your vagina, what are [sic] you doing?

A- I was crying, Ma'am.

Q - You did not shout for help?

A - I did not because I was afraid, Ma'am.

Q - Why were you afraid, madam witness?

A - Because there was a knife inside the room which we used in cutting the hotdog and then [I] did
not shout anymore because I was afraid that they might stab me, Ma'am.15

Even assuming in the nil possibility that Meneses was able to force or instill fear in "AAA's" mind, it
should be noted that he was already gone when appellant asked "AAA" for a sexual favor. In other
words, the source of the feigned force, threat or intimidation was no longer present when appellant
casually asked his friend, "AAA," if she "can do it" one more time. "AAA" did not respond either in the
affirmative or in the negative.

Resistance Should be Made Before the Rape is Consummated.

Later on, appellant went on top of "AAA" without saying anything or uttering threatening words. For
her part, "AAA" neither intimated any form of resistance nor expressed any word of rejection to
appellant's advances. It was only when she felt something painful minutes during their sexual
intercourse that "AAA" tried to move. Thus:

A - During the intercourse that was about few minutes and when I felt the pain that was the time
when I tried to move.

Q - When you tried to move, what else happened?

A - When I tried to move he released himself

Q - And then what happened?

A - He went out of the room.16

Three things are thus clear from the testimony of "AAA:" first, appellant never employed the slightest
force, threat or intimidation against her; second, "AAA" never gave the slightest hint of rejection
when appellant asked her to have sex with him; and, third, appellant did not act with force since he
readily desisted when "AAA" felt the slightest pain and tried to move during their sexual congress.

"AAA" could have resisted right from the start. But she did not, and chose not to utter a word or
make any sign of rejection of appellant's sexual advances. It was only in the middle of their sexual
congress when "AAA" tried to move which can hardly be considered as an unequivocal
manifestation of her refusal or rejection of appellant's sexual advances.

In People v. Amogis,17 this Court held that resistance must be manifested and tenacious. A mere
1âwphi1

attempt to resist is not the resistance required and expected of a woman defending her virtue, honor
and chastity. And granting that it was sufficient, "AAA" should have done it earlier or the moment
appellant's evil design became manifest. In other words, it would be unfair to convict a man of rape
committed against a woman who, after giving him the impression thru her unexplainable silence of
her tacit consent and allowing him to have sexual contact with her, changed her mind in the middle
and charged him with rape.

The Age Gap Between the Victim and

Appellant Negates Force, Threat or
Intimidation.

"AAA's" state of "shivering" could not have been produced by force, threat or intimidation. She
insinuates that she fell into that condition after Meneses had sexual intercourse with her. However,
their age gap negates force, threat or intimidation; he was only 14 while "AAA" was already 24, not
to mention that they were friends. In addition, per "AAA's" own declaration, Meneses and appellant
did not also utter threatening words or perform any act of intimidation against her.

Drunkeness Should Have Deprived the

Victim of Her Will Power to Give her
Consent.

The fact that "AAA" was tipsy or drunk at that time cannot be held against the appellant. There is
authority to the effect that "where consent is induced by the administration of drugs or liquor, which
incites her passion but does not deprive her of her will power, the accused is not guilty of rape."18

Here, and as narrated by "AAA" on the witness stand, appellant and Meneses were her friends.
Thus, as usual, she voluntarily went with them to the house of appellant and chatted with them while
drinking liquor for about four hours. And while "AAA" got dizzy and was "shivering," the prosecution
failed to show that she was completely deprived of her will power.

"AAA's" degree of dizziness or "shivering" was not that grave as she portrays it to be. "AAA" is used
to consuming liquor.19 And if it is true that the gravity of her "shivering" at that time rendered her
immobile such that she could not move her head to signal her rejection of appellant's indecent
proposal or to whisper to him her refusal, then she would have been likewise unable to stand up and
walk home immediately after the alleged rape.

It has been ruled repeatedly that in criminal litigation, the evidence of the prosecution must stand or
fall on its own merits and cannot draw strength from the weakness of the defense. The burden of
proof rests on the State. Thus, the failure of the prosecution to discharge its burden of evidence in
this case entitles appellant to an acquittal.

WHEREFORE, the appeal is GRANTED. The September 26, 2013 Decision of the Court of Appeals
in CA-G.R. CR.-H.C. No. 05452 affirming with modification the Decision of the Regional Trial Court
of Manila, Branch 37, in Criminal Case No. 08-264453 is REVERSED and SET ASIDE. Accused-
appellant Juan Richard Tionloc y Marquez is ACQUITTED due to insufficiency of evidence. His
immediate RELEASE from detention is hereby ORDERED, unless he is being held for another
lawful cause. Let a copy of this Decision be furnished to the Director of the Bureau of Corrections,
Muntinlupa City for immediate implementation, who is then directed to report to this Court the action
he has taken within five days from receipt hereof.

SO ORDERED.
G.R. No. 179031 November 14, 2012

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
BENJAMIN SORIA y GOMEZ, Accused-Appellant.

DECISION

DEL CASTILLO, J.:

This case involves a father’s detestable act of abusing his daughter through rape by sexual assault.

Factual Antecedents

Accused-appellant Benjamin Soria y Gomez (appellant) seeks a review of the December 29, 2006
Decision1 of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 01442 which affirmed with
modification the June 30, 2005 Judgment2 of the Regional Trial Court (RTC) of Quezon City, Branch
94, in Criminal Case No. Q-01-98692. Said RTC Judgment found appellant guilty beyond reasonable
doubt of the crime of rape committed against his daughter "AAA",3 as described in an
Information,4 the relevant portion of which reads:

That on or about the 26th day of February, 2000, in Quezon City, Philippines, the said accused, who
is the father of private complainant "AAA", did then and there willfully, unlawfully, and feloniously with
force and intimidation commit an act of sexual assault upon the person of one "AAA", a minor, 7
years of age[,] by then and there inserting his penis into [the] genital of said complainant, all against
her will and consent, which act debases, degrades, or demeans the intrinsic worth and dignity of
said "AAA", as a human being, in violation of said law.

CONTRARY TO LAW.5

Appellant pleaded not guilty to the crime charged. Pre-trial and trial thereafter ensued.

Version of the Prosecution

On February 26, 2000, "AAA" and her siblings enjoyed the spaghetti their father (appellant) brought
home for merienda. After eating, "AAA" went to the bedroom to rest. Thereafter, appellant also
entered the room and positioned himself on top of "AAA", took off her clothes and inserted his penis
into her vagina. "AAA" felt intense pain from her breast down to her vagina and thus told her father
that it was painful. At that point, appellant apologized to his daughter, stood up, and left the room.
This whole incident was witnessed by "AAA’s" brother, "BBB".

The pain persisted until "AAA’s" vagina started to bleed. She thus told her aunt about it and they
proceeded to a hospital for treatment. Her mother was also immediately informed of her ordeal.
Subsequently, "AAA" was taken into the custody of the Department of Social Welfare and
Development.

On March 15, 2000, Medico-Legal Officer Francisco A. Supe, Jr., M.D. (Dr. Supe) examined "AAA",
which examination yielded the following results:

GENERAL AND EXTRA-GENITAL: Fairly developed, fairly nourished and coherent female child.
Breasts are undeveloped. Abdomen is flat and soft.
GENITAL: There is absent growth of pubic hair. Labia majora are full, convex, and coaptated with
light brown labia minora presenting in between. On separating the same, disclosed an elastic, fleshy
type, hyperemic and intact hymen. Posterior fourchette is sharp.

CONCLUSION: The subject is in virgin state physically. There are no external signs of application of
any form of physical trauma.6

Version of the Defense

Appellant admitted that he was at home on the day and time of "AAA’s" alleged rape but denied
committing the same. Instead, he claimed that the filing of the rape case against him was instigated
by his wife, whom he confronted about her illicit affair with a man residing in their community.
According to appellant, he could not have molested "AAA" because he treated her well. In fact, he
was the only one sending his children to school since his wife already neglected them and seldom
comes home.

Ruling of the Regional Trial Court

On June 30, 2005, the trial court rendered its Judgment7 finding appellant guilty beyond reasonable
doubt of the crime of rape against "AAA", his daughter of minor age, as charged in the Information. It
ruled that the lack of tenacious resistance on the part of "AAA" is immaterial considering that
appellant’s moral ascendancy and influence over her substitute for violence and intimidation.8 It also
held that his wife could not have instigated the filing of the rape case since as the mother of "AAA", it
would not be natural for her to use her child as a tool to exact revenge especially if it will result in her
embarrassment and stigma.9 The trial court gave credence to the testimony of "AAA" and her positive
identification of appellant as her rapist, and rejected the latter’s defense of denial. The dispositive
portion of the Judgment reads as follows:

WHEREFORE, premises considered, judgment is hereby rendered finding the herein accused,
BENJAMIN SORIA Y GOMEZ − GUILTY beyond reasonable doubt of the crime as charged and
sentences him to suffer the supreme penalty of DEATH and to indemnify the offended party the
amount of P75,000.00, to pay moral damages in the amount of P50,000.00, and the amount of
P25,000.00 as exemplary damages to deter other fathers with perverse proclivities for aberrant
sexual behavior for sexually abusing their own daughters.

SO ORDERED.10

Ruling of the Court of Appeals

In its Decision11 dated December 29, 2006, the CA found partial merit in the appeal. While the
appellate court was convinced that appellant raped "AAA", it nevertheless noted the prosecution’s
failure to present her birth certificate as competent proof of her minority. Thus, the CA concluded
that the crime committed by appellant against his daughter was only simple rape and accordingly
modified the penalty imposed by the trial court from death to reclusion perpetua and reduced the civil
indemnity awarded from P75,000.00 to P50,000.00. The dispositive portion of the appellate court’s
Decision reads as follows:

WHEREFORE, premises considered, the appeal is hereby GRANTED and the June 30, 2005
Decision of the Regional Trial Court of Quezon City, Branch 94, in Criminal Case No. Q-01-98692, is
hereby MODIFIED, in that, the penalty imposed is reduced to reclusion perpetua instead of death
and the civil indemnity to be paid by the offender to the victim is hereby reduced to the amount of
P50,000.00 instead of P75,000.00 pursuant to prevailing jurisprudence as explained in this decision.
Pursuant to Section 13(c), Rule 124 of the 2000 Rules of Criminal Procedure as amended by A.M.
No. 00-5-03-SC dated September 28, 2004, which became effective on October 15, 2004, this
judgment of the Court of Appeals may be appealed to the Supreme Court by notice of appeal filed
with the Clerk of Court of the Court of Appeals.

SO ORDERED.12

Still insisting on his innocence, appellant comes to this Court through this appeal.

Assignment of Errors

Appellant adopts the same assignment of errors he raised before the appellate court, viz:

I. THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED GUILTY OF THE
CRIME OF RAPE DESPITE THE FAILURE OF THE PROSECUTION TO OVERTHROW
THE CONSTITUTIONAL PRESUMPTION OF INNOCENCE X X X.

II. ASSUMING ARGUENDO THAT THE ACCUSED IS GUILTY OF THE CRIME CHARGED,
THE TRIAL COURT GRAVELY ERRED IN IMPOSING THE DEATH PENALTY UPON HIM.13

Appellant asserts that he should be acquitted of the crime of rape since there is no evidence that
would establish the fact of sexual intercourse. Aside from the prosecution’s failure to prove penile
contact, "AAA’s" testimony was also wanting in details as to how he took off her underwear or
whether she saw his penis during the incident despite leading questions propounded on the matter
by the prosecution. The medical report even revealed that "AAA’s" hymen remained intact and that
there were no notable lacerations or external physical injuries thereon. Appellant therefore surmises
that his wife merely instigated "AAA" to file this baseless rape case against him in retaliation for his
act of confronting her about her illicit relationship with a neighbor.

Our Ruling

The appeal lacks merit.

The crime of rape under Article 266-A of

the Revised Penal Code (RPC).

Republic Act No. 8353, otherwise known as the Anti-Rape Law of 1997, classified the crime of rape
as a crime against persons. It also amended Article 335 of the RPC and incorporated therein Article
266-A which reads:

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 is otherwise unconscious,

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

 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.

Thus, rape can now be committed either through sexual intercourse or by sexual assault. Rape
under paragraph 1 of the above-cited article is referred to as rape through sexual intercourse. Carnal
knowledge is the central element and it must be proven beyond reasonable doubt.14 It is commonly
denominated as "organ rape" or "penile rape"15and must be attended by any of the circumstances
enumerated in subparagraphs (a) to (d) of paragraph 1.

On the other hand, rape under paragraph 2 of Article 266-A is commonly known as rape by sexual
assault. The perpetrator, under any of the attendant circumstances mentioned in paragraph 1,
commits this kind of rape 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. It is also called "instrument or
object rape", also "gender-free rape".16

The Information did not specify whether

the crime of rape was committed through
sexual intercourse or by sexual assault.

The Information in this case did not specify with certainty whether appellant committed the rape
through sexual intercourse under paragraph 1 of Article 266-A, or rape by sexual assault as
described in paragraph 2 thereof. The Information stated that appellant inserted his penis into the
genital of "AAA," which constituted rape by sexual intercourse under the first paragraph of Article
266-A. At the same time, the Information alleged that appellant used force and intimidation to
commit an act of sexual assault. While these allegations cause ambiguity, they only pertain to the
mode or manner of how the rape was committed and the same do not invalidate the Information or
result in the automatic dismissal of the case. "[W]here an offense may be committed in any of the
different modes and the offense is alleged to have been committed in two or more modes specified,
the indictment is sufficient, notwithstanding the fact that the different means of committing the same
offense are prohibited by separate sections of the statute. The allegation in the information of the
various ways of committing the offense should be regarded as a description of only one offense and
the information is not thereby rendered defective on the ground of multifariousness."17 Any objection
from the appellant with respect to the Information is held to have been waived failing any effort to
oppose the same before trial.18 He therefore can be convicted of rape through sexual intercourse or
rape by sexual assault, depending on the evidence adduced during trial.

The findings of the RTC and the CA on the credibility of "AAA" deserve respect and great weight.

Both the trial court and the CA held that "AAA" was a credible witness. They ruled that her testimony
deserved credence and is sufficient evidence that she was raped by appellant. We find no cogent
reason to overturn these findings.

It would be highly inconceivable for "AAA" to impute to her own father the crime of raping her unless
the imputation is true.19 In fact, it takes "a certain amount of psychological depravity for a young
woman to concoct a story which would put her own father in jail for the rest of his remaining life and
drag the rest of the family including herself to a lifetime of shame"20 unless the imputation is true.
When a rape victim’s testimony on the manner she was defiled is "straightforward and candid, and is
corroborated by the medical findings of the examining physician as in this case, the same is
sufficient to support a conviction for rape."21

Appellant is guilty of rape by sexual assault and not through sexual intercourse.

The trial court’s conviction of the appellant was for rape through sexual intercourse under paragraph
1(a) of Article 266-A. The CA sustained the trial court’s finding that appellant had sexual intercourse
with "AAA" against her will.

In determining whether appellant is indeed guilty of rape through sexual intercourse under paragraph
1 of Article 266-A, it is essential to establish beyond reasonable doubt that he had carnal knowledge
of "AAA". There must be proof that his penis touched the labia of "AAA" or slid into her female organ,
and not merely stroked the external surface thereof, to ensure his conviction of rape by sexual
intercourse.22 1ªvvph!1

We reviewed the testimony of "AAA" and found nothing therein that would show that she was raped
through sexual intercourse. While "AAA" categorically stated that she felt something inserted into her
vagina, her testimony was sorely lacking in important details that would convince us with certainty
that it was indeed the penis of appellant that was placed into her vagina.

When "AAA" was placed on the witness stand, she narrated that:

Q - The earlier statement which you made when you said that you wanted to explain something
about your father, is that true?

A - Yes, sir.

Q - So, you said that you wanted to explain something about your father, what was that?

A - What he did, sir.

Q - What was that?

A - I was raped, sir.

Q - What did he do when you said he raped you?

A - He laid on top of me, sir.23

xxxx

Q - So when you said he laid on top of you, did you feel anything? Did you feel any pain in any part
of your body?

A - Yes, sir.

Q - In what part of your body did you feel pain?

A - I felt pain in my breast and my stomach.

Q - What about your private part?

A - Yes, sir.

Q - Did you know why your stomach as well as your body and your private part hurt or become
painful?

A - I don’t know, sir.

Q - Did you feel something inserted into your private part?

A - Yes, sir.

Q - What is that, if you know?

A - The bird of my papa.

Q - Why did you know that?

A - Because my brother, "BBB", told me.

Q - Why? Was "BBB", your brother, present when your father was on top of you?

A - Yes, sir.

Q - Why do you know that he was there?

A - He told me so, sir.

Q - Who?

A - "BBB".

Q - Okay, when you felt pain as something was inserted [into] your private part, what did you say to
your father?

A - He left the room.

Q - Before he went away and left?

A - It was painful, sir.

Q - And what was the answer of your father?

A - He said sorry, sir.

Q - How long was he or how long were you in that position, you were lying down and your father was
on top of you?

A - I do not know, sir.24

xxxx

Q - Earlier, you were making reference to your father whom you said abused you. I am asking you
now to tell us if your father is around?

A - Yes, sir.

Q - Will you please point x x x to him?

A - Yes, sir. (Witness pointing to a man who is wearing yellow t-shirt and maong pants who when
asked identified himself as Benjamin Soria.)

Q - Is he the same person who according to you laid on top of you and inserted something into your
vagina or private part?

A - Yes, sir.25

It is evident from the testimony of "AAA" that she was unsure whether it was indeed appellant’s penis
which touched her labia and entered her organ since she was pinned down by the latter’s weight,
her father having positioned himself on top of her while she was lying on her back. "AAA" stated that
she only knew that it was the "bird" of her father which was inserted into her vagina after being told
by her brother "BBB". Clearly, "AAA" has no personal knowledge that it was appellant’s penis which
touched her labia and inserted into her vagina. Hence, it would be erroneous to conclude that there
was penile contact based solely on the declaration of "AAA’s" brother, "BBB", which declaration was
hearsay due to "BBB’s" failure to testify. Based on the foregoing, it was an error on the part of the
RTC and the CA to conclude that appellant raped "AAA" through sexual intercourse.

Instead, we find appellant guilty of rape by sexual assault. It cannot be denied that appellant inserted
an object into "AAA’s" female organ. "AAA" categorically testified that appellant inserted something
into her vagina. She claimed to have suffered tremendous pain during the insertion. The insertion
even caused her vagina to bleed necessitating her examination at the hospital. Both the trial court
and the CA found "AAA’s" testimony to be credible. We find no compelling reason not to lend
credence to the same.

This defilement constitutes rape under paragraph 2 of Article 266-A of the RPC, which provides that
rape by sexual assault is committed "by any person who, under any of the circumstances mentioned
in paragraph 1 hereof, shall commit an act of sexual assault by inserting x x x any instrument or
object, into the genital or anal orifice of another person."

Moreover, Dr. Supe corroborated her testimony as follows:

Q - Doctor, with respect to Exhibit A, the Medico-Legal Report pertaining to the entry into the genital,
which reads: On separating the hymen, disclosed was an elastic, fleshy type, hyperemic and intact
hymen. Will you please tell us, Doctor, what is this hyperemic hymen?

A - Hyperemic hymen, sir, means that at the time of examination, I found out that it was reddish in
color.

Q - Considering the age of the child or the patient, the victim whom you examined at that time who
was about 6 years old, will you be able to tell us, Doctor, what could have caused this kind of injury,
because this is an injury to the hymen?
A - Hyperemic, sir, is observed whenever there is friction applied to an area, such as in the form of
scratching.

Q - What about insertion of object, would this result into hyperemic hymen?

A - If the object is being rubbed, sir, there is a possibility.

Q - A finger will produce this kind of injury?

A - Possible, sir.26

According to Dr. Supe, it is possible that "AAA’s" hyperemic hymen may be the result of the insertion
of a finger or object. While Dr. Supe said that the injury could also be attributed to scratching,
"AAA’s" testimony is bereft of any showing that she scratched her genital organ thus causing the
reddening. Appellant would also want to make it appear that the injury of "AAA" was the result of
friction from playing or riding a bicycle since the doctor testified that this was also possible. However,
there is likewise no evidence that friction was applied on "AAA’s" female organ when she played
hide and seek with her playmates or that she actually rode a bicycle. On the other hand, "AAA" was
categorical in stating that in the afternoon of February 26, 2000, appellant removed her clothes, laid
on top of her, and that she felt something being inserted into her vagina and that thereafter she
experienced pain in her genitals. The foregoing thus proved that appellant inserted an object into
"AAA’s" vagina against her will and without consent. Simply put, appellant committed the crime of
rape by sexual assault.

The following are the elements of rape by sexual assault:

(1) That the offender commits an act of sexual assault;

(2) That the act of sexual assault is committed by any of the following means:

(a) By inserting his penis into another person’s mouth or anal orifice; or

(b) By inserting any instrument or object into the genital or anal orifice of another
person;

(3) That the act of sexual assault is accomplished under any of the following circumstances:

(a) By using force and intimidation;

(b) When the woman is deprived of reason or otherwise unconscious; or

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

(d) When the woman is under 12 years of age or demented.27

In the instant case, it was clearly established that appellant committed an act of sexual assault on
"AAA" by inserting an instrument or object into her genital. We find it inconsequential that "AAA"
could not specifically identify the particular instrument or object that was inserted into her genital.
What is important and relevant is that indeed something was inserted into her vagina. To require
"AAA" to identify the instrument or object that was inserted into her vagina would be contrary to the
fundamental tenets of due process. It would be akin to requiring "AAA" to establish something that is
not even required by law. Moreover, it might create problems later on in the application of the law if
the victim is blind or otherwise unconscious. Moreover, the prosecution satisfactorily established that
appellant accomplished the act of sexual assault through his moral ascendancy and influence over
"AAA" which substituted for violence and intimidation. Thus, there is no doubt that appellant raped
"AAA" by sexual assault.

Appellant’s contentions are untenable.

The failure of "AAA" to mention that her panty was removed prior to the rape does not preclude
sexual assault. We cannot likewise give credence to the assertion of appellant that the crime of rape
was negated by the medical findings of an intact hymen or absence of lacerations in the vagina of
"AAA". Hymenal rupture, vaginal laceration or genital injury is not indispensable because the same is
not an element of the crime of rape.28 "An intact hymen does not negate a finding that the victim was
raped."29 Here, the finding of reddish discoloration of the hymen of "AAA" during her medical
examination and the intense pain she felt in her vagina during and after the sexual assault
sufficiently corroborated her testimony that she was raped.

Likewise undeserving of credence is appellant’s contention that his wife merely instigated "AAA" to
file the charge of rape against him in retaliation for his having confronted her about her illicit affair
with another man. This imputation of ill motive is flimsy considering that it is unnatural for appellant’s
wife to stoop so low as to subject her own daughter to the hardships and shame concomitant with a
prosecution for rape, just to assuage her hurt feelings.30 It is also improbable for appellant’s wife to
have dared encourage their daughter "AAA" to publicly expose the dishonor of the family unless the
rape was indeed committed.31

Penalty

Under Article 266-B of the RPC, the penalty for rape by sexual assault is prision mayor. However,
the penalty is increased to reclusion temporal "if the rape is committed by any of the 10
aggravating/qualifying circumstances mentioned in this article". The Information alleged the
qualifying circumstances of relationship and minority. It was alleged that appellant is the father of
"AAA". During the pre-trial conference, the parties stipulated that "AAA" is the daughter of
appellant.32 During trial, appellant admitted his filial bond with "AAA".33 "Admission in open court of
relationship has been held to be sufficient and, hence, conclusive to prove relationship with the
victim."34

With respect to minority, however, the Information described "AAA" as a 7-year old daughter of
appellant. While this also became the subject of stipulation during the pre-trial conference, same is
insufficient evidence of "AAA’s" age. Her minority must be "proved conclusively and indubitably as
the crime itself".35 "There must be independent evidence proving the age of the victim, other than the
testimonies of prosecution witnesses and the absence of denial by the accused."36 Documents such
as her original or duly certified birth certificate, baptismal certificate or school records would suffice
as competent evidence of her age.37 Here, there was nothing on record to prove the minority of "AAA"
other than her testimony, appellant’s absence of denial, and their pre-trial stipulation.38 The
prosecution also failed to establish that the documents referred to above were lost, destroyed,
unavailable or otherwise totally absent.39

It is settled that "when either one of the qualifying circumstances of relationship and minority is
omitted or lacking, that which is pleaded in the information and proved by the evidence may be
considered as an aggravating circumstance."40 As such, appellant’s relationship with "AAA" may be
considered as an aggravating circumstance.
In view of these, the imposable penalty is reclusion temporal which ranges from twelve (12) years
and one (1) day to twenty (20) years. Applying the Indeterminate Sentence Law, the penalty next
lower in degree is prision mayor which ranges from six (6) years and one (1) day to twelve (12)
years. Hence, a penalty of twelve (12) years of prison mayor, as minimum, to twenty (20) years of
reclusion temporal, as maximum, is imposed upon appellant.

Damages

In line with prevailing jurisprudence, the awards of P50,000.00 as civil indemnity, P50,000.00 as
moral damages and P25,000.00 as exemplary damages are each modified to P30,000.00.41 "AAA" is
also entitled to an interest on all the amounts of damages awarded at the legal rate of 6% per annum
from the date of finality of this judgment until fully paid.42

WHEREFORE, the December 29, 2006 Decision of the Court of Appeals in CA-G.R. CR-H.C. No.
01442 is AFFIRMED with MODIFICATIONS. Accused-appellant Benjamin Soria y Gomez is found
guilty beyond reasonable doubt of the crime of rape by sexual assault and is sentenced to suffer the
penalty of twelve (12) years of prison mayor, as minimum, to twenty (20) years of reclusion temporal,
as maximum. He is also ordered to pay "AAA" the amounts of P30,000.00 as civil indemnity,
P30,000.00 as moral damages, and P30,000.00 as exemplary damages. "AAA" is entitled to an
interest on all damages awarded at the legal rate of 6% per annum from the date of finality of this
judgment until fully paid.

SO ORDERED.
G.R. No. 166441 October 8, 2014

NORBERTO CRUZ y BARTOLOME, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

BERSAMIN, J.:

The intent of the offender to lie with the female defines the distinction between attempted rape and
acts of lasciviousness. The felony of attempted rape requires such intent; the felony of acts of
lasciviousness does not. Only the direct overt acts of the offender establish the intent to lie with the
female. However, merely climbing on top of a naked female does not constitute attempted rape
without proof of his erectile penis being in a position to penetrate the female's vagina.

The Case

This appeal examines the decision promulgated on July 26, 2004,1 whereby the Court of Appeals
(CA) affirmed the conviction for attempted rape of the petitioner by the Regional Trial Court, Branch
34, in Balaoan, La Union (RTC), and imposing on him the indeterminate penalty of imprisonment of
four (4) years and two (2) months of prision correccional, as minimum, to ten (10) years of prision
mayor, as maximum, and ordering him to pay moral damages of ₱20,000.00 to AAA,2 the victim.

Antecedents

The petitioner was charged in the RTC with attempted rape and acts of lasciviousness involving
different victims. At arraignment, he pleaded not guiltyto the respective informations, to wit: Criminal
Case No. 2388

Attempted Rape

That on or about the 21st day of December 1993, at about 2:00 o'clock in the morning, along the
Bangar-Luna Road, Barangay Central West No. 2, Municipality of Bangar,Province of La Union,
Philippines and within the jurisdiction of this Honorable Court, said accused, did then and there
willfully, unlawfully and feloniously and by means of force and intimidation commenced the
commission ofrape directly byovert acts, to wit: While private complainant AAA, an unmarried
woman, fifteen (15) yearsold, was sleeping inside the tentalong Bangar-Luna Road, the said
accused remove her panty and underwear and lay on top of said AAA embracing and touching her
vagina and breast with intent of having carnal knowledge of her by means of force, and if the
accused did not accomplish his purpose that is to have carnal knowledge of the said AAA it was not
because of his voluntary desistance but because the said offended party succeeded in resisting the
criminal attempt of said accused to the damage and prejudice of said offended party.

CONTRARY TO LAW.3

Criminal Case No. 2389

Acts of Lasciviousness

That on or about the 21st day of December 1993, at about 3:00 o’clock in the morning, along the
Bangar-Luna Road, Barangay Central West No. 2, Municipality of Bangar, Province of La Union,
Philippines and within the jurisdiction of this Honorable Court, the above-named accused with lewd
design, did then and there willfully, unlawfully and feloniously touch the vagina of [BBB] 4 against the
latter’s will and with no other purpose but to satisfy his lascivious desire to the damage and prejudice
of said offended party.

CONTRARY TO LAW.5

Version of the Prosecution

The CA summarized the version of the Prosecution as follows:6

x x x [Petitioner] Norberto Bartolome and [his wife] Belinda Cruz were engaged in the selling of
plastic wares and glass wares in different municipalities around the country. On December 20, 1993,
Norberto and Belinda employed AAA and BBB to help them in selling their wares in Bangar, La
Union which was then celebrating its fiesta. From Libsong East, Lingayen, Pangasinan to Bangar, La
Union, AAA and BBB boarded a passenger jeepney owned by Norberto. The young girls were
accompanied by Norberto, Belinda, Ruben Rodriguez (driver) and a sales boy by the name of
"Jess".

Upon reaching Bangar, La Union, at around 8:00 in the evening of December 20, 1993, they parked
in front of Maroon enterprises. They brought out all the goods and wares for display. Two tents were
fixed in order that they will have a place to sleep. Belinda and the driver proceeded to Manila in
order to get more goods to be sold.

On December 21, 1993, at around 1:00 o’clock in the morning, AAA and BBB went to sleep. Less
thanan hour later, AAA was awakened when she felt that somebody was on top of her. Norberto was
mashing her breast and touching her private part. AAA realized that she was divested of her clothing
and that she was totally naked. Norberto ordered her not to scream or she’ll be killed. AAA tried to
push Norberto away and pleaded to have pity on her but her pleas fell on deaf ears. She fought back
and kicked Norberto twice.

Norberto was not able to pursue his lustful desires. Norberto offered her money and told her not
totell the incident to her mother otherwise, she will be killed. AAA went out of the tent to seek help
from Jess (the house boy) but she failed to wake him up.

Thirty minutes later, when AAA returned to their tent, she saw Norberto touching the private parts of
BBB. AAA saw her companion awake but her hands wereshaking. When she finally entered the tent,
Norberto left and went outside.

Later that day, AAA and BBB narrated to Jess the incident that took place that early morning. Later
still, while they were on their way to fetch water, AAA and BBB asked the people around where they
can find the municipal building. An old woman pointed to them the place.

In the evening of December 21, 1993, AAA and BBB went straight to the municipal hall where they
met a policeman by the name of "Sabas".

They told Sabas the sexual advances made to them by Norberto. Norberto was summoned to the
police station where he personally confronted his accusers. When Norberto’s wife, Belinda, arrived
at the police station, an argument ensued between them.
On December 22, 1993, at around 2:20 o’clock in the morning, the police investigator ordered the
complainants to return at6:00 o’clock in the morning. Norberto and Belinda were still able to bring
AAA and BBB home with them and worked for them until December 30, 1994, after which they were
sent back to Lingayen, Pangasinan.

On January 10, 1994, AAA and BBB went back to La Union and executed their respective sworn
statements against Norberto.

Version of the Defense

The petitioner denied the criminal acts imputed to him. His version was presented in the assailed
decision of the CA,7 as follows:

In a bid to exculpate himself, accused-appellant presents a totally different version of the story. The
accused maintains that it was not possible for him to commit the crimes hurled against him. On the
date of the alleged incident, there were many people around who were preparing for the "simbang
gabi". Considering the location of the tents, which were near the road and the municipal hall, he
could not possibly do the dastardly acts out in the open, not to mention the fact that once AAA and
BBB would scream, the policemen in the municipal hall could hear them. He believes that the reason
why the complainants filed these cases against him was solely for the purpose of extorting money
from him.

Judgment of the RTC

After the joint trial of the two criminal cases, the RTC rendered its judgment on April 6, 2000 finding
the petitioner guilty beyond reasonable doubt of attempted rape in Criminal Case No. 2388 and acts
of lasciviousness in Criminal Case No. 2389,8 to wit:

WHEREFORE, in the light of the foregoing, the Court hereby renders judgment declaring the
accused NORBERTO CRUZ Y BARTOLOME guilty beyond reasonable doubt of the crimes of
ATTEMPTED RAPE and ACTS OF LASCIVIOUSNESS as defined and penalized in Article 335 in
relation with (sic) Article 6, par. 3 and Article 336 of the Revised Penal Code respectively. With
respect to the crime of ATTEMPTED RAPE, the Court hereby sentences the accused to suffer an
indeterminate penalty of imprisonment from FOUR (4) YEARS and TWO (2) MONTHS PRISION
CORRECCIONAL as Minimum to TEN (10) YEARS PRISION MAYOR as Maximum and the
accessory penalties provided for by law and to pay the victim AAA the amount of ₱20,000.00 as
moral damages.

With regard to the crime ofACTS OF LASCIVIOUSNESS, the Court hereby sentences the accused
to suffer an indeterminate penalty of imprisonment from FOUR (4) MONTHS ARRESTO MAYOR as
Minimum to FOUR (4) YEARS and TWO (2) MONTHS PRISION CORRECCIONAL as Maximum
and the accessory penalties provided for by law, and to pay the victim BBBthe amount of
₱10,000.00 as moral damages.

The preventive imprisonment suffered by the accused by reason of the two cases is counted in his
favor.

SO ORDERED.9

Decision of the CA
On appeal, the petitioner contended that the RTC gravely erred in convicting him of attempted rape
despite the dubious credibility of AAA, and of acts of lasciviousness despite the fact that BBB did not
testify.

On July 26, 2004, the CA promulgated its decision affirming the conviction of the petitioner for
attempted rape in Criminal Case No. 2388, but acquitting him of the acts of lasciviousness charged
in Criminal Case No. 2389 due to the insufficiency of the evidence,10 holding thusly:

In sum, the arguments of the accused-appellant are too puerile and inconsequential as to dent, even
slightly, the overall integrity and probative value of the prosecution's evidence insofar as AAA is
concerned.

Under Article 51 of the Revised Penal Code, the penalty for an attempted felony is the "penalty lower
by two (2) degrees" prescribed by law for the consummated felony. In this case, the penalty for rape
if it had been consummated would have been reclusion perpetuapursuant to Article 335 of the
Revised Penalty Code, as amended by Republic Act No. 7659. The penalty two degrees lower than
reclusion perpetuais prision mayor.

Applying the Indeterminate Sentence Law, the maximum term of the penalty shall be the medium
period of prision mayorin the absence of any mitigating or aggravating circumstance and the
minimum shall be within the range of the penalty nextlower to that prescribed for the offense which in
this case is prision correccionalin any of its periods.

We also find that the trial court correctly assessed the amount of ₱20,000.00 by way of moral
damages against the accused-appellant. In a rape case, moral damages may be awarded without
the need of proof or pleading since it is assumed that the private complainant suffered moral injuries,
more so, when the victim is aged 13 to 19.

Insofar as the crime of acts of lasciviousness committed against BBB, the accused argues that there
is not enough evidence to support such accusation. BBB did not testify and neither her sworn
statement was formally offered in evidence to support the charge for acts of lasciviousness.

In this case, the evidence adducedby the prosecution is insufficient to substantiate the charge of
acts of lasciviousness against the accusedappellant. The basis of the complaint for acts of
lasciviousness is the sworn statement of BBB to the effectthat the accused-appellant likewise
molested her by mashing her breast and touching her private part. However, she was not presented
to testify. While AAA claims that she personally saw the accused touching the private parts of BBB,
there was no testimony to the effect that suchlascivious acts were without the consent or against the
will of BBB.11

Issues

In this appeal, the petitioner posits that the CA’s decision was not in accord with law or with
jurisprudence, particularly:

I. In giving credence to the incredulous and unbelievable testimony of the alleged victim; and

II. In convicting the accused notwithstanding the failure of the prosecution to prove the guilt
of the petitioner beyond reasonable doubt.
Anent the first issue, the petitioner assails the behavior and credibility of AAA. He argues that AAA
still continued working for him and his wife until December 30, 1994 despite the alleged attempted
rape in the early morning of December 21, 1994, thereby belying his commission of the crime
against her; that he could not have undressed her without rousing her if she had gone to sleep only
an hour before, because her bra was locked at her back; that her testimony about his having been
on top of her for nearly an hour while they struggled was also inconceivable unless she either
consented to his act and yielded to his lust, or the incident did not happen at all, being the product
only of her fertileimagination; that the record does not indicate if he himself was also naked, or that
his penis was poised to penetrate her; and that she and her mother demanded from him ₱80,000.00
as settlement, under threat that she would file a case against him.12

On the second issue, the petitioner assails the glaring inconsistencies in the testimony of AAA that
cast doubt on her veracity.

Ruling of the Court

The appeal is partly meritorious.

In an appeal under Rule 45 of the Rules of Court,13 the Court reviews only questions of law. No
review of the findings of fact by the CA is involved. As a consequence of this rule, the Court accords
the highest respect for the factual findings of the trial court, its assessment of the credibility of
witnesses and the probative weight of their testimonies and the conclusions drawn from its factual
findings, particularly when they are affirmed by the CA. Judicial experience has shown, indeed, that
the trial courts are in the best position to decide issues of credibility of witnesses, having themselves
heard and seen the witnesses and observed firsthand their demeanor and deportment and the
manner of testifying under exacting examination. As such, the contentions of the petitioner on the
credibility of AAA as a witness for the State cannot be entertained. He thereby raises questions of
fact that are outside the scope of this appeal. Moreover, he thereby proposes to have the Court,
which is not a trier of facts, review the entire evidence adduced by the Prosecution and the Defense.

Conformably with this limitation, our review focuses only on determining the question of law of
whether or not the petitioner’s climbing on top of the undressed AAA such thatthey faced each other,
with him mashing her breasts and touching her genitalia with his hands, constituted attempted rape,
the crime for which the RTC and the CA convicted and punished him. Based on the information,
supra, he committed such acts "with intent of having carnal knowledge ofher by means of force, and
if the accused did not accomplish his purpose that is to have carnal knowledge of the said AAA it
was not because of his voluntary desistance but because the said offended party succeeded in
resisting the criminal attempt of said accused to the damage and prejudice of said offended party."

There is an attempt, according to Article 6 of the Revised Penal Code, 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 this own
spontaneous desistance. In People v. Lamahang,14 the Court, speaking through the eminent Justice
Claro M.Recto, eruditely expounded on what overt acts would constitute anattempted felony, to wit:

It is our opinion that the attempt to commit an offense which the Penal Code punishes is that which
has a logical relation to a particular, concrete offense; that, which is the beginning of the execution of
the offense by overt acts of the perpetrator, leading directly to its realization and consummation. The
attempt to commit an indeterminate offense, inasmuch as its nature in relation to its objective is
ambiguous, is not a juridical fact from the standpoint of the Penal Code. xxxx But it is not sufficient,
for the purpose of imposing penal sanction, that an act objectively performed constitute a mere
beginning of execution; it is necessary to establish its unavoidable connection, like the logical and
natural relation of the cause and its effect, with the deed which, upon its consummation, will develop
into one of the offenses defined and punished by the Code; it is necessary to prove that said
beginning of execution, if carried to its complete termination following its natural course, without
being frustrated by external obstacles nor by the voluntary desistance of the perpetrator, will logically
and necessarily ripen into a concrete offense. x x x x.

"It must be borne in mind (I Groizard, p. 99) that in offenses not consummated, as the material
damage iswanting, the nature of the action intended (accion fin) cannot exactly be ascertained, but
the same must be inferred from the nature of the acts of execution (accion medio). Hence, the
necessity that these acts be such that by their very nature, by the facts to which they are related, by
the circumstances of the persons performing the same, and by the things connected therewith, they
must show without any doubt, that they are aimed at the consummation of a crime. Acts susceptible
of double interpretation, that is, in favor as well as against the culprit, and which show an innocent
aswell as a punishable act, must not and cannot furnish grounds by themselves for attempted or
frustrated crimes. The relation existing between the facts submitted for appreciation and the offense
of which said facts are supposed to produce must be direct; the intention must be ascertainedfrom
the facts and therefore it is necessary, in order to avoid regrettable instance of injustice, that the
mind be able to directly infer from them the intention of the perpetrator to cause a particular injury.
This must have been the intention of the legislator in requiring that in order for an attempt to exist,
the offender must commence the commission of the felony directly by overt acts, that is to say, that
the acts performed must be such that, withoutthe intent to commit an offense, they would be
meaningless."15

To ascertain whether the acts performed by the petitioner constituted attempted rape, we have to
determine the law on rape in effect on December 21, 1993, when the petitioner committed the crime
he was convicted of. That law was Article 335 of the Revised Penal Code, which pertinently provided
as follows:

Article335. 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 ofreason 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.

xxxx

The basic element of rape then and now is carnal knowledge of a female. Carnal knowledge
isdefined simply as "theact of a man having sexual bodily connections with a woman,"16 which
explains why the slightest penetration of the female genitalia consummates the rape. In other words,
rape is consummated once the peniscapable of consummating the sexual act touches the external
genitalia of the female.17 In People v. Campuhan,18 the Court has defined the extent of "touching" by
the penis in rape in the following terms:

[T]ouching 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
indeedtouched 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. As the labias, which are required to
be "touched" bythe penis, are by their natural situsor location beneath the mons pubisor 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 pudendumor vulvais 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 pubisis 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 majorais the
labia minora. Jurisprudence dictates that the labia majora must be entered for rape to be
consummated, and not merely for the penis to stroke the surface of the female organ. xxxx Thus, a
grazing of the surface of the female organ or touching the mons pubisof 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 pudendumby the penis, there can be no
consummated rape; at most, it can only be attempted rape, if not acts of lasciviousness. [Bold
emphasis supplied]

It is noteworthy that in People v. Orita,19 the Court clarified that the ruling in People v.
Eriñia20 whereby the offender was declared guilty of frustrated rape because of lack of conclusive
evidence of penetration of the genital organ of the offended party, was a stray decision for not
having been reiterated in subsequent cases. As the evolving case law on rape stands, therefore,
rape in its frustrated stage is a physical impossibility, considering that the requisites of a frustrated
felony under Article 6 of the Revised Penal Codeare that: (1) 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. Obviously, the offender attains his purpose from the moment
he has carnal knowledge of his victim, because from that moment all the essential elements of the
offense have been accomplished, leaving nothing more to be done by him.21

Nonetheless, rape admits of an attempted stage. In this connection, the character of the overt
actsfor purposes of the attempted stage has been explained in People v. Lizada:22

An overt or external act is defined as some physical activity or deed, indicating the intention to
commit a particular crime, more than a mere planning or preparation, which if carried out to its
complete termination following its natural course, without being frustrated by external obstacles nor
by the spontaneous desistance of the perpetrator, will logically and necessarily ripen into a concrete
offense. The raison d’etrefor the law requiring a direct overtact is that, in a majority of cases, the
conduct of the accused consisting merely of acts of preparation has never ceased to be equivocal;
and this is necessarily so, irrespective of his declared intent. It is that quality of being equivocal that
must be lacking before the act becomes one which may be said to be a commencement of the
commission of the crime, or an overt act or before any fragment of the crime itself has been
committed, and this is so for the reason that so long as the equivocal quality remains, no one can
say with certainty what the intent of the accused is.It is necessary that the overt act should have
been the ultimate step towards the consummation of the design. It is sufficient if it was the "first or
some subsequent step in a direct movement towards the commission of the offense after the
preparations are made." The act done need not constitute the last proximate one for completion. It is
necessary, however, that the attempt must have a causal relation to the intended crime. In the words
of Viada, the overt acts must have an immediate and necessary relation to the offense. (Bold
emphasis supplied)
In attempted rape, therefore, the concrete felony is rape, but the offender does not perform all the
acts of execution of having carnal knowledge. If the slightest penetration of the female genitalia
consummates rape, and rape in its attempted stage requires the commencement of the commission
of the felony directly by overt acts without the offender performing all the acts of execution that
should produce the felony, the only means by which the overt acts performed by the accused can be
shown to have a causal relation to rape as the intended crime is to make a clear showing of his
intent to lie with the female. Accepting that intent, being a mental act, is beyond the sphere of
criminal law,23 that showing must be through his overt acts directly connected with rape. He cannot
be held liable for attempted rape without such overt acts demonstrating the intent to lie with the
female. In short, the State, to establish attempted rape, must show that his overt acts, should his
criminalintent be carried to its complete termination without being thwarted by extraneous matters,
would ripen into rape,24 for, as succinctly put in People v. Dominguez, Jr.:25 "The gauge in
determining whether the crime of attempted rape had been committed is the commencement of the
act of sexual intercourse, i.e., penetration of the penis into the vagina, before the interruption."

The petitioner climbed on top of the naked victim, and was already touching her genitalia with his
hands and mashing her breasts when she freed herself from his clutches and effectively ended his
designs on her. Yet, inferring from such circumstances thatrape, and no other,was his intended
felony would be highly unwarranted. This was so, despite his lust for and lewd designs towards her
being fully manifest. Such circumstances remained equivocal, or "susceptible of double
interpretation," as Justice Recto put in People v. Lamahang, supra, such that it was not permissible
to directly infer from them the intention to cause rape as the particular injury. Verily, his felony would
not exclusively be rapehad he been allowed by her to continue, and to have sexual congress with
her, for some other felony like simple seduction (if he should employ deceit to have her yield to
him)26 could also be ultimate felony.

We clarify that the direct overt acts of the petitioner that would have produced attempted rape did not
include equivocal preparatory acts. The former would have related to his acts directly connected to
rape as the intended crime, but the latter, whether external or internal, had no connection with rape
as the intended crime. Perforce, his perpetration of the preparatory acts would not render him guilty
of an attempt to commit such felony.27 His preparatory acts could include his putting up of the
separate tents, with one being for the use of AAA and BBB, and the other for himself and his
assistant, and his allowing his wife to leave for Manila earlier that evening to buy more wares. Such
acts, being equivocal, had no direct connection to rape. As a rule, preparatory acts are not
punishable under the Revised Penal Codefor as long as they remained equivocal or of uncertain
significance, because by their equivocality no one could determine with certainty what the
perpetrator’s intent really was.28

If the acts of the petitioner did not constitute attempted rape, did they constitute acts of
lasciviousness?

It is obvious that the fundamental difference between attempted rape and acts of lasciviousness is
the offender’s intent to lie with the female. In rape, intent to lie with the female is indispensable, but
this element is not required in acts of lasciviousness.29 Attempted rape is committed, therefore, when
the "touching" of the vagina by the penis is coupled with the intent to penetrate. The intent to
penetrate is manifest only through the showing of the penis capable of consummating the sexual act
touching the external genitalia of the female.30 Without such showing, only the felony of acts of
lasciviousness is committed.31

Based on Article 336 of the Revised Penal Code, the felony of acts of lasciviousness is
consummated when the following essential elements concur, namely: (a) the offender commits any
act of lasciviousness or lewdness upon another person of either sex; and (b) the act of
lasciviousness or lewdness is committed either (i) by using force or intimidation; or (ii) when the
offended party is deprived ofreason or is otherwise unconscious; or (iii) when the offended party is
under 12 years of age.32 In that regard, lewdis defined as obscene, lustful, indecent, lecherous; it
signifies that form of immorality that has relation to moral impurity; or that which is carried on a
wanton manner.33

The information charged that the petitioner "remove[d] her panty and underwear and la[id] on top of
said AAA embracing and touching her vagina and breast." With such allegation of the information
being competently and satisfactorily proven beyond a reasonable doubt, he was guilty only of acts of
lasciviousness, not attempted rape. His embracing her and touching her vagina and breasts did not
directly manifest his intent to lie with her. The lack of evidence showing his erectile penis being in the
position to penetrate her when he was on top of her deterred any inference about his intent to lie
with her. At most, his acts reflected lewdness and lust for her.

The intent to commit rape should not easily be inferred against the petitioner, even from his own
declaration of it, if any, unless he committed overt acts directly leading to rape. A good illustration of
this can be seen in People v. Bugarin,34 where the accused was charged with attempted rape
through an information alleging that he, by means of force and intimidation, "did then and there
willfully, unlawfully and feloniously commence the commission of the crime of Rape directly by overt
acts, by then and there kissing the nipples and the vagina of the undersigned [complainant], a minor,
and about to lay on top of her, all against her will, however, [he] did not perform all the acts of
execution which would have produced the crime of Rape by reason of some causes other than his
own spontaneous desistance, that is, undersigned complainant push[ed] him away." The accused
was held liable only for acts of lasciviousness because the intent to commit rape "is not apparent
from the act described," and the intent to have sexual intercourse with her was not inferable from the
act of licking her genitalia. The Court also pointed out that the "act imputed to him cannot be
considered a preparatory act to sexual intercourse."35

Pursuant to Article 336 of the Revised Penal Code, the petitioner, being guilty of acts of
lasciviousness, is punished with prision correccional. In the absence of modifying circumstances,
prision correccional is imposed in its medium period, which ranges from two (2) years, four (4)
months and one day to four (4) years and two (2) months. Applying the Indeterminate Sentence
Law, the minimum of the penalty should come from arresto mayor, the penalty next lower than
prision correccionalwhich ranges from one (1) month to six (6) months. Accordingly, the Court fixes
the indeterminate sentence of three (3) months of arresto mayor, as the minimum, to two (2) years,
four (4) months and one day of prision correccional, as the maximum.

In acts of lasciviousness, the victim suffers moral injuries because the offender violates her chastity
by his lewdness. "Moral damages include physical suffering, mental anguish, fright, serious anxiety,
1âwphi 1

besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury. Though
incapable of pecuniary computation, moral damages may be recovered if they are the proximate
result of the defendant's wrongful act for omission."36 Indeed, Article 2219, (3), of the Civil Code
expressly recognizes the right of the victim in acts of lasciviousness to recover moral
damages.37 Towards that end, the Court, upon its appreciation of the record, decrees that
₱30,000.00 is a reasonable award of moral damages.38 In addition, AAA was entitled to recover civil
indemnity of ₱20,000.00.39

Under Article 2211 of the Civil Code, the courts are vested with the discretion to impose interest as a
part of the damages in crimes and quasidelicts. In that regard, the moral damages of ₱20,000.00
shall earn interest of 6% per annum reckoned from the finality of this decision until full payment.40
WHEREFORE, the Court FINDS and PRONOUNCES petitioner NORBERTO CRUZ y BARTOLOME
guilty of ACTS OF LASCIVIOUSNESS, and, ACCORDINGLY, PENALIZES him with the
indeterminate sentence of three (3) months of arresto mayor, as the minimum, to two (2) years, four
(4) months and one day of prision correccional, as the maximum; ORDERS him to pay moral
damages of ₱30,000.00 and civil indemnity of ₱20,000.00 to the complainant, with interest of 6% per
annum on such awards reckoned from the finality of this decision until full payment; and DIRECTS
him to pay the costs of suit.

SO ORDERED.
G.R. No. 152589 & 152758 January 31, 2005

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ANTONIO MENDOZA Y BUTONES, accused-appellant.

RESOLUTION

PER CURIAM:

Before Us is the Motion for Reconsideration filed by herein accused-appellant of our Decision dated
24 October 2003 in G.R. No. 152589 and No. 152758.1 In said decision, we modified the ruling of the
Regional Trial Court (RTC), Branch 61, Gumaca, Quezon, in Crim. Case No. 6636-G finding
accused-appellant guilty of rape under Articles 266-A and 266-B of the Revised Penal Code and
instead, we adjudged him guilty only of attempted rape. We, however, upheld the ruling of the court
a quo with regard to Crim. Case No. 6637-G finding accused-appellant guilty of incestuous rape of a
minor under Art. 266-B of the Revised Penal Code as amended by Republic Act No. 8353 and for
this, we sentenced accused-appellant to suffer the ultimate penalty of death.

Anent Crim. Case No. 6636-G, accused-appellant submits that our pronouncement that -

Under these circumstances, while incestuous rape can be rationally ruled out since there is no
evidence of the introduction of the penis of appellant into the aperture or within the pudendum of the
vagina of private complainant, accused-appellant is positive for having an intent to lie with his victim.
He is guilty of attempted rape.

...

Appellant's unclothed being which he rubbed against the torso of his daughter whom he had also
stripped of clothing, his acts of kissing and touching the victim's breasts while the latter was flat on
the bed and rendered purposely unconscious by appellant, evidently demonstrate the intent of
appellant to have carnal knowledge of her against her will.2

fails to support our conclusion that he is guilty of attempted rape. He argues that at most, he should
1aw phi 1.nét

only be convicted of acts of lasciviousness, defined and punished under Art. 336 of the Revised
Penal Code, as the above-quoted portion of our decision does not establish his intent to have carnal
knowledge with private complainant.

In its Comment dated 15 September 2004, the Office of the Solicitor General (OSG), on behalf of the
government, points to the following portion of private complainant's testimony as the basis for
establishing accused-appellant's intent to lie with the former, thus:

PROSECUTOR MATA:

Q And how were you raped by your father?

A He removed my clothes, Ma'am.<

Q When he removed your clothes, where was your sister?

A She was outside, Ma'am.

Q And after he removed your clothes, what else did he do?

A He placed himself on top of me, Ma'am.

Q When he placed himself on top of you, was he fully clothed or without clothes?

A None, Ma'am.

Q And after he placed himself on top of you, were both of you naked?

A Yes, Ma'am.

Q And what did he do when he was on top of you?

A He kissed me, Ma'am.

Q Aside from kissing you, what else did he do?

A He touched me, Ma'am.

Q Where were you touched?

A On my breast, Ma'am.

Q Where else? What else did he do aside from touching your breast?

A He threatened me, Ma'am.

Q How were you threatened?

A He told me that if I will tell somebody, he will kill us, Ma'am.

Q After he threatened you and he was on top of you, he touched your breast, what did he do
next? You said you were raped. Both of you were naked. He was on top of you. What
happened next?

A He boxed me on my stomach, Ma'am.

Q After boxing you on your stomach, what else did he do?

A I do not know already, Ma'am.

Q Why did you not know?

A Because I lost consciousness, Ma'am.

Q You lost consciousness and when you regained consciousness, what did you notice about
your body?

A I saw blood, Ma'am.

 Q Where did you see blood?

A On my thigh, Ma'am.

Q And where was the blood coming?

A From my vagina, Ma'am.

Q And what did you feel in your vagina?

A It was painful, Ma'am.

Q Was that your first sexual experience?

A Yes, Ma'am.

Q And who caused your vagina to bleed?

A My father, Ma'am.

Q And when you regained consciousness, where was your sister?

A She was at my side, Ma'am.

Q What did she do, if any, when she saw your condition?

A None, Ma'am.

Q How about you? What did you do? I withdraw that question, Your Honor.

Q When you regained consciousness, were you still naked?

A Yes, Ma'am.3

After a thorough review and evaluation of the records of this case, we find no sufficient basis to
modify our earlier decision convicting accused-appellant of attempted rape in Crim. Case No. 6636-
G.

There is an attempt to commit rape when the offender commences its commission directly by overt
acts but 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.4 The elements, therefore, of an
attempted felony are the following: (1) the offender commences the commission of the felony directly
by overt acts; (2) he does not perform all the acts of execution which should produce the felony; (3)
the offender's act be not stopped by his own spontaneous desistance; and (4) the non-performance
of all acts of execution was due to cause or accident other than his spontaneous desistance.5

Upon the other hand, Article 366 of the Revised Penal Code states: "(a)ny person who shall commit
any act of lasciviousness upon the other person of either sex, under any of the circumstances
mentioned in the preceding article, shall be punished by prision correccional." The elements of this
crime are: (1) that the offender commits any act of lasciviousness or lewdness; (2) that it is done (a)
by using force and intimidation, or (b) when the offended party is deprived of reason or otherwise
unconscious, or (c) when the offended party is under 12 years of age; and (3) that the offended party
is another person of either sex.6 As explained by an eminent author of criminal law, rape and acts of
lasciviousness have the same nature. There is, however, a fundamental difference between the two.
In rape, there is the intent to lie with a woman whereas this element is absent in acts of
lasciviousness.7

In this case, the series of appalling events which took place on the night of 18 March 1998 inside the
humble home of private complainant and of accused-appellant, establish beyond doubt that the latter
intended to ravish his very own flesh and blood. As vividly narrated by private complainant before
the trial court, accused-appellant, taking advantage of the cover of darkness and of the absence of
his wife, removed her (private complainant's) clothing and thereafter placed himself on top of her.
Accused-appellant, who was similarly naked as private complainant, then proceeded to kiss the
latter and he likewise touched her breasts until finally, he rendered private complainant unconscious
by boxing her in the stomach.8 These dastardly acts of accused-appellant constitute "the first or
some subsequent step in a direct movement towards the commission of the offense after the
preparations are made."9 Far from being mere obscenity or lewdness, they are indisputably overt
acts executed in order to consummate the crime of rape against the person of private complainant.

Indeed, had private complaint given a categorical statement that the penis of accused-appellant had
in fact penetrated her vagina or that it had at least touched her labia, we would have definitely
affirmed the accused-appellant's conviction for consummated rape in Crim. Case No. 6636-G.
Unfortunately, the records are bereft of any indication to this effect thus, we are constrained to find
accused-appellant guilty only of attempted rape as far as Crim. Case No. 6636-G is concerned lest
we obliterate the fine distinction between an attempted and consummated rape.

Worthy of note also is the fact that when confronted with the above-mentioned circumstances during
his turn at the witness stand, accused-appellant miserably failed to proffer a credible defense on his
behalf. All that accused-appellant managed to do during that time was to deny the accusations
hurled against him in the following manner:

Q Mr. Witness, your daughter Maricar, complained that in the night time of March 18, 1998,
while her mother was not in the house, and you were sleeping there, you raped her, what
can you say about that?

A That is not true.

Q And if it is not true, what is the truth about it[?]

A I was sending my children to school and she always come home late.

Q In what school was she enrolled prior to March 18, 1998?

A At Barangay Malusak, Atimonan, Quezon, sir.

Q Do you know of any reason why your daughter Maricar should file a complaint against you
if it is not true that you raped her on March 18, 1998 at night time?

A According to the person who informed me, my daughter was just using me.

Q And who was that person who informed you that your daughter just accused you?
 A Erlinda Rivera, sir.

Q From what place is this Erlinda Rivera?

A From Malusak, Atimonan, Quezon.

Q And what did this Erlinda Rivera tell you about that?

A I was informed by Erlinda Rivera that my daughter was always going with several men.

Q In what place did this Erlinda Rivera tell you that your daughter always go with several
men?

A In her house when I went there.

Q When was that if you can still remember?

A I could not exactly recall.

Q Was it when you were already incarcerated or was it before you were incarcerated when
Erlinda Rivera told you about that fact that your daughter was always going with other men?

A She told me that when I was already incarcerated.

Q In what place, was it in the Provincial Jail or where?

A Here in court.10

It is well-settled that denial is essentially the weakest form of defense and it can never overcome an
affirmative testimony particularly when it comes from the mouth of a credible witness.11 Accused-
appellant's bare assertion that private complainant was just "using" him to allow her to freely frolic
with other men, particularly with a certain Renato Planas, begs the credulity of this Court. This is
especially true in the light of our consistent pronouncement that "no decent and sensible woman will
publicly admit being a rape victim and thus run the risk of public contempt - the dire consequence of
a rape charge - unless she is, in fact, a rape victim."12 More in point is our pronouncement in People
v. Canoy,13 to wit:

… It is unthinkable for a daughter to accuse her own father, to submit herself for examination
of her most intimate parts, put her life to public scrutiny and expose herself, along with her
family, to shame, pity or even ridicule not just for a simple offense but for a crime so serious
that could mean the death sentence to the very person to whom she owes her life, had she
really not have been aggrieved. Nor do we believe that the victim would fabricate a story of
rape simply because she wanted to exact revenge against her father, appellant herein, for
allegedly scolding and maltreating her.14

With regard to Crim. Case No. 6637-G, accused-appellant posits the argument that due to the
inconsistencies in the testimony of private complainant, the prosecution failed to establish his guilt
beyond reasonable doubt.

The argument fails to persuade.

This Court will not disturb the findings of facts of trial courts unless there is a showing that it failed to
consider facts and circumstances, which if taken into account, would materially affect the resolution
of a case.15 In the case at bar, the alleged inconsistencies in private complainant's testimonies
pertain to the number of times when she was raped by accused-appellant and the date when her
mother, Leonida Mendoza, actually came back from San Narciso, Quezon, to their house at
Barangay Lakip, Atimonan, Quezon. In her testimony on 29 March 2001, private complainant
claimed that her mother returned to their house on 19 March 1998 - the day after the first incident of
rape. On the other hand, Leonida testified that she stayed in San Narciso for one week.16

Needless to state, these supposed inconsistencies deal with minor matters and should not affect the
genuineness of private complainant's version of how her harrowing experience came to be. They do
not deal with the basic aspects of the who, the how, and the when, of the crime committed.17 As we
have declared before, "inconsistencies on matters of minor details do not detract from the actual fact
of rape."18 Verily, private complainant's consistent retelling of the relevant details regarding the
violation of her person by her own father far outweighs the latter's persistent assault on her credibility
and candor.

In any case, it is a doctrine in criminal law that minor inconsistencies in testimonies strengthen rather
than weaken the witness' credibility for they eliminate the impression of a rehearsed testimony.
Particularly in rape cases, this court does not expect a rape victim to recall every minute detail that
occurred during her horrible ordeal. As we declared in People v. Abiera,19 "a rape victim cannot push
out of her mind the violent attack upon her chastity but she is nevertheless not expected to
remember all the sordid details of that traumatic experience."20

WHEREFORE, the instant motion for reconsideration is DENIED for lack of merit and our decision
dated 24 October 2003 is hereby AFFIRMED.

Costs de oficio.

SO ORDERED.
G.R. No. 192253 September 18, 2013

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
CARLITO ESPENILLA, Accused-Appellant.

DECISION

LEONARDO-DE CASTRO, J.:

The present case is an appeal from the Decision1 dated February 25,2010 of the Court of Appeals in
CA-G.R. CR.-H.C. No. 01830, entitled People of he Philippines v. Carlita Espenilla, which affirmed
the Decision2 dated March 3, 2005 of the Regional Trial Court (RTC) of Masbate City, Branch 44 in
Criminal Case No. 9115. The trial court found appellant Carlito Espenilla guilty beyond reasonable
doubt of the crime of simple rape as defined and penalized under Article 335 of the Revised Penal
Code.

As stated in the Information3 dated March 30, 1999, the aforementioned crime was committed in the
following manner:

That on or about October 20, 1995, at x x x, Province of Masbate, Philippines, within the jurisdiction
of this Honorable Court, the above-named accused with lewd design and by means of violence and
intimidation, did then and there willfully, unlawfully and feloniously have carnal knowledge with one
AAA,4 a girl of 13 years old, against her will.

It should be noted that appellant was charged under Article 335 of the Revised Penal Code prior to
its amendment by Republic Act No. 8353 or the "Anti-Rape Law of 1997" that reclassified and
expanded the definition of rape, the provisions of which are now found in Articles 266-A to 266-
Dunder Crimes Against Persons in the Revised Penal Code. This was in light of the fact that the
alleged offense was committed prior to the effectivity of said amendment on October 22, 1997.

The case sprang from one of two complaints instituted by AAA with the aid of her father BBB who
represented her since she was then a minor. The other complaint for rape was filed against AAA’s
grandfather, CCC. The two criminal cases were tried jointly. However, the case against CCC was
later dismissed by the trial court owing to the death of the accused.5

Upon his arraignment on November 18, 1999, appellant entered a plea of "not guilty."6 Pre-trial of the
case was held which was then followed by a trial on the merits. Only AAA testified for the
prosecution while the defense offered BBB and the appellant as witnesses.

The facts of this case, as culled in the assailed February 25, 2010Decision of the Court of Appeals,
are as follows:

At around 7:00 o’clock in the morning of October 20, 1995, while AAA, a Grade 2 pupil in Brgy.
Balatucan Elementary School was left in their house in x x x, Masbate with her two younger siblings
(as her father and stepmother were in the farm), accused-appellant Carlito Espenilla, who is the
brother of her stepmother, arrived and asked her for a tobacco leaf and a newspaper. When AAA
went inside the room to get what was asked of her, accused-appellant followed and closed the door
behind him. While inside the room, accused-appellant who was then with a bolo, immediately
undressed her by taking off her shorts and panty and at the same time warning her not to tell anyone
about what is happening, otherwise, she will be killed. After she was undressed, accused-appellant
unzipped his pants, put out his private organ, held her, and ordered her to lie down on the floor. With
the unsheathed bolo beside them, accused-appellant inserted his penis into AAA’s vagina. AAA
cried because of the pain but did not offer any resistance because accused-appellant was very
strong and had a bolo that was placed beside her. Neither did she shout because there was no other
person in the house (except her younger siblings). And besides, she knows that nobody would come
to her rescue. With accused-appellant’s penis inside AAA’s private organ, he then made thrusting
motions which lasted for about five (5) minutes and AAA felt something come out from accused-
appellant’s penis. When accused-appellant was done, he again warned AAA not to reveal the
incident to anybody, otherwise, he would kill her and her family.

In the late afternoon or early evening of the same date, while AAA’s parents were not yet around,
accused-appellant came back and raped her again for the second time. Again, she was threatened
not to reveal to anyone said incident. Because of fear, she kept the incident to herself. She could
not, however, keep it forever as she could no longer suffer in silence. Thus, she ran away from home
and took refuge at the house of Brgy. Captain Floro Medina of the nearby barangay of Marintoc. It
was there that she was able to unburden herself of her secret. Brgy. Captain Medina then
summoned the victim’s father, BBB, and explained to him his daughter’s predicament. Thereafter,
BBB accompanied his daughter to the Police Authorities of Mobo where she was investigated. She
was also subjected to medical examination by Dr. Enrique O. Legaspi III who issued a Medico-Legal
Certificate (Records, p. 81) dated January7, 1999, with the following findings:

Name : AAA

Address : x x x, Mobo

Age : 13

Sex : Female

Date and Time of Infliction : 1995 (?) – 1996 (?)

Date and Time of Examination : January 7, 1999, 2:30 p.m.

Findings : Old healed hymenal

laceration at 3, 6, 9, o’clock position. Admits two fingers with resistance.

A complaint was then lodged before the MCTC of Mobo-Milagros in connection with the aforesaid
rape incident. Meanwhile, after AAA’s plight was brought to the attention of the Department of Social
Welfare and Development (DSWD), AAA was taken from the house of Brgy. Captain Medina and
was brought to the Bahay Ampunan of DSWD in Sorsogon where she stayed after the case was
filed in Court.

On its turn to present evidence, the defense offered the testimony of the victim’s father BBB and the
accused-appellant himself. BBB testified that he was the complainant in the cases filed against
herein accused-appellant and CCC, the victim’s grandfather or BBB’s father. He narrated that he
was made to believe by her daughter AAA that she was raped by the said two accused on different
occasions. However, he allegedly came to realize that the story of rape was not true, that is why he
wanted that if it is possible, the cases against the two accused be dismissed by the Court. He then
proceeded to affirm and confirm the contents of the Affidavit of Recantation which he claimed he had
previously executed. When cross-examined, BBB maintained that he filed the cases against the
accused-appellant and CCC (AAA’s grandfather or BBB’s father) because his daughter AAA
informed him that she was allegedly raped and not because of the misunderstanding regarding the
administration of his father’s property. But when asked by the Court during a clarificatory hearing,
BBB easily changed his answer and claimed that what he stated in his Affidavit of Recantation was
the truth. That he merely forced his daughter AAA to say that she was raped by CCC and accused-
appellant, so that the two will be put to jail. He went further and said that he came to know that the
person who actually raped his daughter was someone who was killed by the NPA.

When called to the witness stand, accused-appellant Carlito Espenilla, merely denied the accusation
against him and claimed that the charge of rape was fabricated only because of a misunderstanding
between him and BBB regarding his non-payment of the Php1,000.00 indebtedness he owed to BBB
(the victim’s father). Accused-appellant did not offer an alibi.7

Upon evaluation of the evidence, the trial court found credence in AAA’s version of events and, thus,
convicted appellant of the felony of simple rape. The dispositive portion of the assailed March 3,
2005 ruling read:

WHEREFORE, foregoing premises considered, the Court finds the accused CARLITO ESPENILLA,
guilty beyond reasonable doubt of the crime of Rape, defined and penalized under Article 335 of the
Revised Penal Code and is hereby sentenced to suffer the penalty of Reclusion Perpetua to pay the
amount of ₱50,000.00 as civil indemnity, ₱50,000.00for moral damages, or a total amount of
₱100,000.00, and to pay the costs.

The accused being a detention prisoner, his detention shall be credited in full in the service of his
sentence.8

Appellant then elevated his case to the Court of Appeals in the hope that his conviction would be
reversed. However, the Court of Appeals merely affirmed the trial court’s ruling in the assailed
February 25, 2010Decision, the dispositive portion of which provided:

WHEREFORE, in view of the foregoing, the appealed Decision dated March 3, 2005 of the Regional
Trial Court (RTC) of Masbate City, Branch 44 in Criminal Case No. 9115 finding herein accused-
appellant Carlito Espenilla guilty beyond reasonable doubt of the crime of rape, sentencing him to
Reclusion Perpetua and ordering him to pay the amount of Php50,000.00 as civil indemnity;
Php50,000.00 as moral damages and costs is hereby AFFIRMED.9

Hence, appellant questions before us the foregoing affirmance of his guilt by propounding the
following assignments of error:

THE COURT A QUO GRAVELY ERRED IN GIVING FULLCREDENCE TO THE TESTIMONY OF

THE PRIVATECOMPLAINANT.

II

THE COURT A QUO GRAVELY ERRED IN FINDING THEACCUSED-APPELLANT GUILTY OF

THE CRIME OF RAPEDESPITE THE PROSECUTION’S FAILURE TO PROVE HIS GUILTBEYOND
REASONABLE DOUBT.10

After an assiduous review, we find the present appeal to be without merit.

To reiterate, the incident of rape involved in this case occurred before the enactment of Republic Act
No. 8353 and the applicable provision of law is Article 335 of the Revised Penal Code:

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 or is demented.

Based on the foregoing provision, the elements of rape under Article335 of the Revised Penal Code
are: (1) the offender had carnal knowledge of the victim; and (2) such act was accomplished through
force or intimidation; or when the victim is deprived of reason or otherwise unconscious; or when the
victim is under 12 years of age.11

The records of this case reveal that the prosecution has sufficiently demonstrated that there is ample
evidence to prove that appellant had carnal knowledge of the then minor victim through the use of
force and intimidation. The testimony of AAA pertaining to the rape incident at issue articulates in
blunt detail her horrific experience at the hands of appellant. The pertinent portion of her testimony is
quoted here:

PROSECUTOR ALFORTE

Q While you and the accused were inside the house, what happened?

A He undressed me.

Q In what part of the house the accused undressed you? Do you have a room?

A There was a room.

Q Were you undressed inside the room of that house?

A Yes, sir.

Q How about your younger brother, where was he at that time?

A My younger brother cried.

Q Where was he, inside or outside the bedroom?

A Outside the bedroom.

Q Was the accused armed at that time he undressed you?

A Yes, sir.

Q What kind of instrument?

A A bolo.

COURT

Q What did he do with that bolo?

A When I was already nude, he placed the bolo beside me.

Q You told the court that you were told by the accused to undress yourself. Were you able to
undress yourself?

A He was the one [who] undressed me.

Q Did he succeed in undressing you?

A Yes, sir.

Q Completely?

A My shorts and my panty.

Q After you were undressed by him, what did the accused do?

A He unzipped his pants and put out his male organ.

Q Did he tell you anything when he undressed you?

A Yes, your Honor.

Q What did he tell you?

A He told me not to reveal this matter, because if I will reveal this to anybody, he is going to kill me.

PROSECUTOR ALFORTEQ When the accused was already undressed and allow his penis to go
out, what did he do next?

A He held my breast and inserted his penis.

COURT

Q Can you tell us what was your position whether sitting, standing or what?

A I was made to lie down.

PROSECUTOR ALFORTE

Q You want to impress the court… the Honorable Court when the accused inserted his male organ
or penis, you were lying down?

A Yes, sir.
COURT

Q On bed or on the floor?

A On the floor.

Q Did you cry when the accused inserted his penis in your vagina?

A Yes, sir.

Q Did you tell anything to the accused before he inserted his penis in your vagina?

A Yes, sir.

Q What did you tell him?

A I told him it is painful.

COURT

Q You did not resist?

A I did not resist because he is very strong.

Q Where was the bolo at the time?

A Beside me.

xxxx

PROSECUTOR ALFORTEQ Was it unsheathed from the scabbard?

A It was unsheathed from the scabbard.12

It is a settled doctrine in our jurisprudence that in a prosecution for rape, the accused may be
convicted solely on the basis of the testimony of the victim that is credible, convincing, and
consistent with human nature and the normal course of things.13 It is likewise elementary that the
issue of credibility of witnesses is resolved primarily by the trial court since it is in a better position to
decide the same after having heard the witnesses and observed their conduct, deportment and
manner of testifying; accordingly, the findings of the trial court are entitled to the highest degree of
respect and will not be disturbed on appeal in the absence of any showing that it over looked,
misunderstood, or misapplied some facts or circumstances of weight or substance which would
otherwise affect the result of the case.14 In other words, as we have repeatedly declared in the past,
the trial judge’s evaluation, which the Court of Appeals affirmed, binds the Court, leaving to the
accused the burden to bring to the Court’s attention facts or circumstances of weight that were
overlooked, misapprehended, or misinterpreted by the lower courts but would materially affect the
disposition of the case differently if duly considered.15 Unfortunately, appellant failed to discharge this
burden.
We find that the testimony of AAA was indeed delivered in a clear and straightforward manner; thus,
the same is worthy of the belief that was bestowed upon it by the trial court and later by the Court of
Appeals. As borne out of the records of this case, AAA never wavered in her allegations of rape
against appellant. Furthermore, conventional wisdom cemented in jurisprudence dictates that no
young Filipina would publicly admit that she had been criminally abused and ravished unless it is the
truth, for it is her natural instinct to protect her honor; and that no young girl would concoct a tale of
defloration, allow the examination of her private parts and undergo the expense, trouble and
inconvenience, not to mention the trauma and scandal of a public trial, unless she was, in fact,
raped.16

With regard to appellant’s assertion that the considerable amount of time which elapsed between the
rape and AAA’s act of reporting said incident gives rise to doubt as to the veracity of the charge, this
argument deserves scant consideration since it is already doctrinally settled that delay in reporting
rape incidents, in the face of threats of physical violence, cannot be taken against the victim.17

Lastly, we declare that the Affidavit of Recantation18 executed by BBB, AAA’s father, fails to convince
considering that the said document, which seeks to exculpate appellant from the charge of rape, was
unsubstantiated by clear and convincing evidence. In both his affidavit and testimony, BBB intimated
that the rape incident at issue was merely a fabrication concocted by him and AAA so that he could
get back at CCC and appellant with both of whom he had a misunderstanding over the management
of certain real properties.

Courts have long been skeptical of recantations of testimonies for as we explained in

People v. Nardo19:

A recantation of a testimony is exceedingly unreliable, for there is always the probability that such
recantation may later on be itself repudiated. Courts look with disfavor upon retractions, because
they can easily be obtained from witnesses through intimidation or for monetary consideration. A
retraction does not necessarily negate an earlier declaration. x x x. (Citation omitted.)

Indeed, jurisprudence is replete with instances where the recantation of testimony by the rape victim
herself was not accepted by the Court when her previous testimony appeared more trustworthy and
believable.20

In People v. Bulagao,21 we reiterated the rationale for upholding a rape victim’s original testimony
over that of her subsequent recantation in this wise:

In rape cases particularly, the conviction or acquittal of the accused most often depends almost
entirely on the credibility of the complainant’s testimony. By the very nature of this crime, it is
generally unwitnessed and usually the victim is left to testify for herself. When a rape victim’s
testimony is straightforward and marked with consistency despite grueling examination, it deserves
full faith and confidence and cannot be discarded. If such testimony is clear, consistent and credible
to establish the crime beyond reasonable doubt, a conviction may be based on it, notwithstanding its
subsequent retraction. Mere retraction by a prosecution witness does not necessarily vitiate her
original testimony.

A retraction is looked upon with considerable disfavor by the courts. It is exceedingly unreliable for
there is always the probability that such recantation may later on be repudiated. It can easily be
obtained from witnesses through intimidation or monetary consideration. Like any other testimony, it
is subject to the test of credibility based on the relevant circumstances and, especially, on the
demeanor of the witness on the stand. (Citation omitted.)
Thus, with more reason, we cannot ascribe any weight to the recantation of the charges by the
victim’s father when the victim’s own categorical testimony remains on record. Alternatively put,
unless supported by clear and convincing evidence, BBB’s recantation cannot prevail over the
positive declaration of rape made by AAA.

In view of the foregoing, we therefore affirm the conviction of appellant with the modification that
exemplary damages in the amount of ₱30,000.00, in addition to the amount of civil indemnity and
moral damages previously granted, should also be awarded to AAA in line with prevailing
jurisprudence.22

WHEREFORE, premises considered, the Decision dated February25, 2010 of the Court of Appeals
in CA-G.R. CR.-H.C. No. 01830, finding appellant Carlito Espenilla guilty in Criminal Case No. 9115,
is hereby AFFIRMED with MODIFICATIONS, to wit:

(1) Appellant Carlito Espenilla is ordered to pay Thirty Thousand Pesos (₱30,000.00) as
exemplary damages; and

(2) Appellant Carlito Espenilla is further ordered to pay the private offended party interest on
all damages awarded at the legal rate of six percent (6%) per annum from the date of finality
of this judgment.

No pronouncement as to costs.

SO ORDERED.

TERESITA J. LEONARDO-DE CASTRO**

Associate Justice
Acting Chairperson, First Division

WE CONCUR:

ANTONIO T. CARPIO*
Acting Chief Justice

JOSE CATRAL MENDOZA*** BIENVENIDO L. REYES

Associate Justice Associate Justice

ESTELA M. PERLAS-BERNABE****
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court's Division.

TERESITA J. LEONARDO-DE CASTRO

Associate Justice
Acting Chairperson, First Division

CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution and the Division Acting Chairperson's
Attestation, I cet1ify that the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Court's Division.

ANTONIO T. CARPIO
Acting Chief Justice
THIRD DIVISION

G.R. No. 193854 September 24, 2012

PEOPLE OF THE PHILIPPINES, Appellee,

vs.
DINA DULAY y PASCUAL, Appellant.

DECISION

PERALTA, J.:

This is to resolve an appeal from the Decision1 dated August 4, 2010 of the Court of Appeals (CA) in
CA-G.R. CR-HC No. 03725 affirming with modification the Decision2 dated October 8, 2008 of the
Regional Trial Court (RTC), Branch 194, Parañaque City, finding appellant Dina Dulay guilty beyond
reasonable doubt of the crime of Rape under Article 266-A. No. 1 (a) of the Revised Penal Code
(RPC) as amended by Republic Act (R.A.) 8353 as a co-principal by indispensable cooperation.

The records bear the following factual antecedents:

Private complainant AAA3 was 12 years old when the whole incident happened. AAA's sister
introduced the appellant to AAA as someone who is nice. Thereafter, appellant convinced AAA to
accompany her at a wake at GI San Dionisio, Parañaque City. Before going to the said wake, they
went to a casino to look for appellant's boyfriend, but since he was not there, they went to Sto. Niño
at Don Galo. However, appellant's boyfriend was also not there. When they went to Bulungan Fish
Port along the coastal road to ask for some fish, they saw appellant's boyfriend. Afterwards, AAA,
appellant and the latter's boyfriend proceeded to the Kubuhan located at the back of the Bulungan
Fish Port. When they reached the Kubuhan, appellant suddenly pulled AAA inside a room where a
man known by the name "Speed" was waiting. AAA saw "Speed" give money to appellant and heard
"Speed" tell appellant to look for a younger girl. Thereafter, "Speed" wielded a knife and tied AAA's
hands to the papag and raped her. AAA asked for appellant's help when she saw the latter peeping
into the room while she was being raped, but appellant did not do so. After the rape, "Speed" and
appellant told AAA not to tell anyone what had happened or else they would get back at her.

AAA went to San Pedro, Laguna after the incident and told her sister what happened and the latter
informed their mother about it. AAA, her sister and mother, filed a complaint at Barangay San
Dionisio. Thereafter, the barangay officials of San Dionisio referred the complaint to the police
station.

The Parañaque City Police Office (Women's and Children Concern Desk) asked the assistance of
the Child Protection Unit of the Philippine General Hospital, upon which the latter assigned the case
to Dr. Merle Tan. Consequently, with the consent of AAA and her mother, and in the presence of a
social worker of the Department of Social Welfare and Development (DSWD), Dr. Tan conducted the
requisite interview and physical examination on AAA. Later on, Dr. Tan issued a Medico-Legal
Report4 stating that there was no evident injury in the body of AAA, but medical evaluation cannot
exclude sexual abuse. During her testimony, Dr. Tan explained that such impression or conclusion
pertains to the ano-genital examination and also stated that she found multiple abrasions on the
back portion of the body of AAA.5

Thus, an Information was filed, which reads as follows:

That on or about the 3rd day of July 2005, in the City of Parañaque, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating
together with one alias "Speed," whose true name and identity and present whereabouts is still
unknown, and both of them mutually helping and aiding one another, the herein accused Dina P.
Dulay having delivered and offered for a fee complainant AAA, 12 year old minor, to accused alias
"Speed," who with lewd design and by means of force and intimidation, did then and there willfully,
unlawfully and feloniously have carnal knowledge on said minor complainant AAA against her will
and without her consent, which act is prejudicial to the normal growth and development of the said
child.

CONTRARY TO LAW.6

With the assistance of counsel de oficio, on August 3, 2005, appellant entered a plea of not
guilty.7 Therafter, trial on the merits ensued.

To support the above allegations, the prosecution presented the testimonies of AAA and Dr. Merle
Tan. On the other hand, the defense presented the sole testimony of appellant which can be
summarized as follows:

Appellant met AAA a few days before June 2005 when the latter was introduced to her by her cousin
Eglay Akmad during the wake of a relative of AAA at Palanyag. The cousin of appellant was AAA's
neighbor at Palanyag. Around 1 o'clock in the morning of July 3, 2005, appellant averred that she
was at La Huerta, at the Bulungan Fish Port in Parañaque City with her cousin Eglay and stayed
there for about thirty (30) minutes. They then proceeded to the house of appellant's cousin in
Palanyag. In the said house, appellant saw "Speed" and two (2) other male persons. She also saw
AAA who was engaged in a conversation with "Speed" and his two (2) companions. She asked AAA
what she was doing there and the latter said that it was none of her business ("wala kang pakialam
sa akin"). Because of the response of AAA, appellant left the house and went home to General
Trias, Cavite.

On October 8, 2008, the RTC found appellant guilty beyond reasonable doubt of the crime of rape
as co-principal by indispensable cooperation. The dispositive portion of the decision reads:

WHEREFORE, finding Accused Danilo guilty beyond reasonable doubt for rape as a co-principal by
indispensable cooperation, she is hereby sentenced to suffer an imprisonment of Reclusion
Perpetua under Article 266-B of the Revised Penal Code and to pay the offended party the amount
of ₱ 50,000.00 by way of damages.

The period of her detention shall be considered part of the service of her sentence.

SO ORDERED.8

Not satisfied with the judgment of the trial court, the appellant brought the case to the CA. The latter,
on August 4, 2010, promulgated its decision affirming the ruling of the RTC with a modification on
the award of damages, thus:

WHEREFORE, the appealed Decision of the court a quo is AFFIRMED with the MODIFICATION
that the accused-appellant is sentenced to suffer the penalty of reclusion perpetua and ordered to
indemnify the offended party the sum of Fifty Thousand Pesos (₱ 50,000.00) as civil indemnity, Fifty
Thousand Pesos (₱ 50,000.00) as moral damages and Twenty-Five Thousand Pesos (₱ 25,000.00)
as exemplary damages.
SO ORDERED.9

Hence, the present appeal.

In her Brief, appellant assigned the following errors:

THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT

GUILTY OF RAPE AS CO-PRINCIPAL BY INDISPENSABLE COOPERATION.

II

THE TRIAL COURT GRAVELY ERRED IN GIVING FULL WEIGHT AND CREDENCE TO
THE TESTIMONY OF THE PRIVATE COMPLAINANT AAA.10

The Office of the Solicitor General, representing the appellee, refutes the above assignment of
errors by stating the following arguments:

I.

CONSPIRACY WAS CLEARLY ESTABLISHED IN THIS CASE.

II.

THE LOWER COURT DID NOT ERR IN BELIEVING THE TESTIMONY OF PRIVATE
COMPLAINANT.

III.

ACCUSED-APPELLANT'S DEFENSE OF DENIAL CANNOT BE GIVEN GREATER

EVIDENTIARY WEIGHT THAN THE POSITIVE TESTIMONY OF PRIVATE
COMPLAINANT.11

An appeal in a criminal case throws the whole case wide open for review and the reviewing tribunal
can correct errors, though unassigned in the appealed judgment, or even reverse the trial court's
decision on the basis of grounds other than those that the parties raised as errors.12

The appellant in this case was charged in the Information as having committed the crime of Rape
under Article 266-A, No. 1 (a) of the RPC, as amended by R.A. 8353 in relation to Section 5 (b) of
R.A. 7610. She was eventually convicted by the trial court of the crime of rape as a co-principal by
indispensable cooperation and was sentenced to suffer imprisonment of reclusion perpetua as
provided under Article 266-B of the RPC.

In sustaining the conviction of the appellant as co-principal by indispensable cooperation, the CA,
ratiocinated:

To cooperate means to desire or wish in common a thing. But that common will or purpose does not
necessarily mean previous understanding, for it can be explained or inferred from the circumstances
of each case. The cooperation must be indispensable, that is, without which the commission of the
crime would not have been accomplished. x x x

xxxx

The proven facts and circumstances obtaining in this case fall squarely on the above-cited example.
It will be noted that the cooperation of the accused-appellant consisted in performing an act which is
different from the act of execution of the crime committed by the rapist. Accused-appellant
cooperated in the perpetration of the crime of rape committed by "Speed" by acts without which the
crime would not have been consummated, since she prepared the way for the perpetration thereof,
convinced the victim to go with her under the guise of looking for her boyfriend and upon arrival at
the kubuhan, she pulled the victim inside a room where "Speed" was waiting, delivered the victim to
him, and then after receiving some amount of money from "Speed" she settled in another room
together with her boyfriend so that "Speed" might freely consummate the rape with violence and
intimidation, as he did.13

However, this Court is of another view and does not subscribe to the findings of the trial court, as
sustained by the CA that appellant is guilty beyond reasonable doubt as co-principal by
indispensable cooperation in the crime of rape.

Under the Revised Penal Code,14 an accused may be considered a principal by direct participation,
by inducement, or by indispensable cooperation. To be a principal by indispensable cooperation,
one must participate in the criminal resolution, a conspiracy or unity in criminal purpose and
cooperation in the commission of the offense by performing another act without which it would not
have been accomplished.15 Nothing in the evidence presented by the prosecution does it show that
the acts committed by appellant are indispensable in the commission of the crime of rape. The
events narrated by the CA, from the time appellant convinced AAA to go with her until appellant
received money from the man who allegedly raped AAA, are not indispensable in the crime of rape.
Anyone could have accompanied AAA and offered the latter's services in exchange for money and
AAA could still have been raped. Even AAA could have offered her own services in exchange for
monetary consideration and still end up being raped. Thus, this disproves the indispensable aspect
of the appellant in the crime of rape. It must be remembered that in the Information, as well as in the
testimony of AAA, she was delivered and offered for a fee by appellant, thereafter, she was raped by
"Speed." Thus:

PROS. R. GARCIA: Now, what happened after you met this Dina Dulay?

WITNESS AAA: She invited me to go with her boyfriend, Sir.

xxxx

Q: You went to the bulungan, what happened when you reached the fish port or bulungan, AAA?

A: Pumunta kami sa kubuhan, Sir.

Q: Where is this kubuhan located in relation to the fish port?

A: At the back portion, Sir.

Q: And, when you said pumunta kami, who was then your companion in going to that kubuhan?
A: Dina Dulay and her boyfriend, Sir.

Q: Do you know the name of the boyfriend of Dina Dulay?

A: No, Sir.

xxxx

Q: All right. After reaching the kubuhan, what happened next?

A: Pina-rape po ako, Sir.

Q: What made you say AAA that accused here Dina Dulay had you raped at the kubuhan?

A: Kasi po binayaran siya nung lalaki, Sir.

Q: Now, do you know how much this Dina Dulay was paid by that person who was you said raped
you?

A: No, Sir. I just saw them.

Q: And what did you see that was paid to Dina?

A: Pera, Sir.

Q: Aside from seeing a guy giving money to Dina Dulay, did you hear any conversation between this
Dina Dulay and that man who gave money to her?

A: Yes, sir.

Q: Can you tell this Honorable Court AAA, what was that conversation you heard between this Dina
Dulay and the person who gave money to her?

A: He said to look for a younger girl, Sir.16

xxxx

PROS. R. GARCIA:

Q: Okay. After that conversation and the giving of money to Dina Dulay, what happened to you and
the man?

A: He raped me, Sir.

Q: Where were you raped?

A: At the Kubuhan, Sir. Q: Can you describe to this Honorable Court how you were raped by that
person?

A: He tied me up, Sir.

Q: How were you tied up as you said?

A: He tied up both my hands, Sir.

Q: Then after tying your hands what happened next?

A: He raped me and he pointed a knife at me, Sir.

Q: When you said you were raped, are you referring to the insertion of his penis into your sex organ?

A: Yes, Sir.

Q: And, how did you feel at that time when the organ of this man was inserted into your organ?

A: It was painful, Sir.

Q: And, how did you react when as you said you were being raped by this person?

A: I cannot talk. He put clothes in my mouth, Sir.

Q: For how long did you stay in that kubuhan with this man? May isang oras ba kayo doon?

A: Yes, Sir.

Q: Now, tell us how AAA many times did this person insert his penis into your organ?

A: Only one (1) AAA, Sir.17

It must be clear that this Court respects the findings of the trial court that AAA was indeed raped by
considering the credibility of the testimony of AAA. The rule is that factual findings of the trial court
and its evaluation of the credibility of witnesses and their testimonies are entitled to great respect
and will not be disturbed on appeal.18However, the review of a criminal case opens up the case in its
entirety. The totality of the evidence presented by both the prosecution and the defense are
weighed, thus, avoiding general conclusions based on isolated pieces of evidence.19 In the case of
rape, a review begins with the reality that rape is a very serious accusation that is painful to make; at
the same time, it is a charge that is not hard to lay against another by one with malice in her mind.
Because of the private nature of the crime that justifies the acceptance of the lone testimony of a
credible victim to convict, it is not easy for the accused, although innocent, to disprove his guilt.
These realities compel this Court to approach with great caution and to scrutinize the statements of
a victim on whose sole testimony conviction or acquittal depends.20

In this light, while this Court does not find appellant to have committed the crime of rape as a
principal by indispensable cooperation, she is still guilty of violation of Section 5 (a) of R.A. 7610, or
the Special Protection of Children Against Abuse, Exploitation and Discrimination Act, which states
that:

Section 5. Child Prostitution and Other Sexual Abuse. – Children, whether male or female, who for
money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate
or group, indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited in
prostitution and other sexual abuse.
The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon
the following:

(a) Those who engage in or promote, facilitate or induce child prostitution which include, but are not
limited to, the following:

(1) Acting as a procurer of a child prostitute;

(2) Inducing a person to be a client of a child prostitute by means of written or oral

advertisements or other similar means;

(3) Taking advantage of influence or relationship to procure a child as a prostitute;

(4) Threatening or using violence towards a child to engage him as a prostitute; or

(5) Giving monetary consideration goods or other pecuniary benefit to a child with intent to
engage such child in prostitution.21

The elements of paragraph (a) are:

1. the accused engages in, promotes, facilitates or induces child prostitution;

2. the act is done through, but not limited to, the following means:

a. acting as a procurer of a child prostitute;

b. inducing a person to be a client of a child prostitute by means of written or oral

advertisements or other similar means;

c. taking advantage of influence or relationship to procure a child as a prostitute;

d. threatening or using violence towards a child to engage him as a prostitute; or

e. giving monetary consideration, goods or other pecuniary benefit to a child with

intent to engage such child in prostitution;

3. the child is exploited or intended to be exploited in prostitution and

4. the child, whether male or female, is below 18 years of age.22

Paragraph (a) essentially punishes acts pertaining to or connected with child prostitution. It
contemplates sexual abuse of a child exploited in prostitution. In other words, under paragraph (a),
the child is abused primarily for profit.23

As alleged in the Information and proven through the testimony of AAA, appellant facilitated or
induced child prostitution. Children, whether male or female, who for money, profit, or any other
consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual
intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other
sexual abuse.24 Thus, the act of apellant in convincing AAA, who was 12 years old at that time, to go
with her and thereafter, offer her for sex to a man in exchange for money makes her liable under the
above-mentioned law. The purpose of the law is to provide special protection to children from all
forms of abuse, neglect, cruelty, exploitation and discrimination, and other conditions prejudicial to
their development.25 A child exploited in prostitution may seem to "consent" to what is being done to
her or him and may appear not to complain. However, we have held that a child who is "a person
below eighteen years of age or those unable to fully take care of themselves or protect themselves
from abuse, neglect, cruelty, exploitation or discrimination because of their age or mental disability or
condition" is incapable of giving rational consent26 to any lascivious act or sexual intercourse.

It must be noted that in the Information, it was alleged that appellant was accused of Rape under
Article 266-A, No. 1 (a) of the RPC, as amended by R.A. 8353 in relation to Section 5 (b) of R.A.
7610, and then went on to enumerate the elements of Section 5 (a) of R.A. 7610 in its body. The
Information partly reads:

x x x the herein accused Dina P. Dulay having delivered and offered for a fee complainant AAA, 12
year old minor, to accused alias "Speed," who with lewd design and by means of force and
intimidation, did then and there willfully, unlawfully and feloniously have carnal knowledge on said
minor complainant AAA against her will and without her consent x x x 27

Undoubtedly, the above-quoted falls under Section 5 (a) of R.A. 7610, the appellant acting as a
procurer of a child and inducing the latter into prostitution. It must be remembered that the character
of the crime is not determined by the caption or preamble of the information nor from the
specification of the provision of law alleged to have been violated, they may be conclusions of law,
but by the recital of the ultimate facts and circumstances in the complaint or information. 28 The
sufficiency of an information is not negated by an incomplete or defective designation of the crime in
the caption or other parts of the information but by the narration of facts and circumstances which
adequately depicts a crime and sufficiently apprises the accused of the nature and cause of the
accusation against him.29 1âwphi 1

To dispute the allegation and the evidence presented by the prosecution, appellant merely
interposes the defense of denial. It is well settled that denial is essentially the weakest form of
defense and it can never overcome an affirmative testimony, particularly when it comes from the
mouth of a credible witness.30

Anent the penalty, for violation of the provisions of Section 5, Article III of R.A. 7610, the penalty
prescribed is reclusion temporal in its medium period to reclusion perpetua. Therefore, in the
absence of any mitigating or aggravating circumstance, the proper imposable penalty is reclusion
temporal in its maximum period, the medium of the penalty prescribed by the law.31 Notwithstanding
that R.A. 7610 is a special law, appellant may enjoy the benefits of the Indeterminate Sentence
Law.32 Since the penalty provided in R.A. 7610 is taken from the range of penalties in the Revised
Penal Code, it is covered by the first clause of Section 1 of the Indeterminate Sentence Law. 33 Thus,
appellant is entitled to a maximum term which should be within the range of the proper imposable
penalty of reclusion temporal in its maximum period (ranging from 17 years, 4 months and 1 day to
20 years) and a minimum term to be taken within the range of the penalty next lower to that
prescribed by the law: prision mayor in its medium period to reclusion temporal in its minimum period
(ranging from 8 years and 1 day to 14 years and 8 months).34

As to the award of damages, the same must be consistent with the objective of R.A. 7610 to afford
children special protection against abuse, exploitation and discrimination and with the principle that
every person who contrary to law, willfully or negligently causes damage to another shall indemnify
the latter for the same.35 Therefore, civil indemnity to the child is proper in a case involving violation of
Section 5 (a), Article III of R.A. 7610. This is also in compliance with Article 100 of the RPC which
states that every person criminally liable is civilly liable. Hence, the amount of ₱ 50,000.00 civil
indemnity ex delicto as awarded in cases of violation of Section 5 (b), Article III of R.A. 7610 36 shall
also be the same in cases of violation of Section 5 (a), Article III of R.A. 7610.

WHEREFORE, the appeal of appellant Dina Dulay y Pascual is hereby DISMISSED. However, the
Decision of the CA is hereby MODIFIED as appellant is not guilty beyond reasonable doubt of the
crime of rape, but of violating Section 5 (a), Article III R.A. 7610, amended, for which she is
sentenced to fourteen (14) years and eight (8) months of reclusion temporal, as minimum, to twenty
(20) years of reclusion temporal, as maximum. Appellant is also ORDERED to pay AAA the amount
of ₱ 50,000.00 as civil indemnity.

SO ORDERED.
G.R. No. 212337

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs
BELTRAN FUENTES, JR. Accused-Appellant.

RESOLUTION

PEREZ, J.:

Before us for review is the Court of Appeals' Decision1 promulgated on 28 September 2012 in CA-
G.R. CEB C.R. HC No. 00467. The Decision affirmed the Regional Trial Court (RTC), Branch 31,
Dumaguete City's conviction of appellant Beltran Fuentes, Jr. for rape.

Appellant is charged with rape in the following Information:

That on or about 8:00 o'clock in the evening of April 30, 2002, at Barngay Nagbo-lao, Municipality of
Basay, Province of Negros Oriental, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused, with lewd design, employing force, did then and there, willfully,
unlawfully and feloniously have carnal knowledge with [AAA],2 a 14-years old minor girl, and niece of
the accused without the victim's consent and against the latter's will.

Contrary to Article 266-A of the Revised Penal Code as amended by Republic Act No. 7659 in
relation to Republic Act No. 7610.3

After filing the case, AAA executed an Affidavit of Desistance4 on 24 June 2002.

Upon arraignment, appellant pleaded not guilty. During the pre-trial, the parties stipulated that AAA
is a 14-year old minor and niece of appellant by affinity.

The prosecution's version of the rape incident is encapsulated as follow:

AAA lives in her parents' house in Barangay Nagbo-alao, Basay, Negros Oriental. At around 8:00
p.m. on 20 April 2002, AAA was defecating under a gmelina tree situated at some 35 meters from
her house. Appellant suddenly appeared and grabbed her from behind. Appellant initially warned
AAA not to tell her mother before he forced her to lie down. Appellant started to kiss her. AAA
struggled but she was overpowered by appellant. Appellant managed to strip his and AAA's pants
and underwear. He then mounted her and inserted his penis into her vagina. After consummating his
bestial act, appellant ordered AAA to keep her mouth shut, else her mother would scold them. When
AAA reached the house, she immediately told her parents about her ordeal.5 They then went to the
police station to report the rape incident. Thereafter, AAA underwent a medical examination where
she was found to have lacerations in her hymen and her underwear had blood-stained
secretions.6 AAA was born on 6 June 19877 and she was fourteen-years old on the date of the rape
incident.

Appellant testified on his behalf. He claimed that on the alleged date of the crime, he was doing
carpentry work in the house of the parents of AAA. He worked from 8:00 a.m. until 5:00 p.m. then
headed home right after. Upon reaching home, appellant rested for a while. While waiting for supper,
he heard a certain Gina Becang calling for him and accusing him of molesting AAA. He first went
directly to the store of AAA' s parents and told AAA not to make accusations. He then went to the
house of his parents-in-law where he was arrested.8
AAA filed an Affidavit of Desi stance on 24 June 2002.

In a Decision9 dated 24 January 2006, the trial court found appellant guilty beyond reasonable doubt
of rape. The dispositive portion of the decision reads:

WHEREFORE, all the foregoing premises considering, and finding the evidence of the prosecution
to have proved the guilt of accused for the crime of rape defined under Article 266-A, No. 1, and
penalized under Article 266-B, with the aggravating circumstance of being the relative of the victim
by affinity within the third civil degree, accused Beltran Fuentes, Jr., is hereby sentenced to serve
the supreme penalty of death, with all the accessory penalties of the law.10

Appellant filed a motion for new trial invoking AAA's retraction. The trial court denied the motion.

Appellant appealed.

On 28 September 2012, the Court of Appeals affirmed the decision of the trial court. It ruled that the
categorical and positive testimony of AAA prevailed over appellant's defense of denial and alibi. The
Court of Appeals also ruled that AAA has no motive to falsely testify against appellant. The Court of
Appeals upheld the express renunciation of the affidavit of desistance by AAA based on her
explanation that she was lured by appellant's wife into signing the affidavit in exchange for sending
her to school. The dispositive portion of the Court of Appeals' decision reads:

WHEREFORE, premises considered, the appeal is hereby DENIED. The assailed January 24, 2006
Judgment of the Regional Trial Court (RTC), Branch 31 of Dumaguete City in Criminal Case No.
1581 is hereby AFFIRMED with the modification that the penalty of death imposed on accused-
appellant is reduced to reclusion perpetua without eligibility for parole pursuant to Republic Act 9346.

No costs.11

In his appellant's Brief,12 appellant argues that AAA' s testimony is improbable with respect to how
appellant removed her shorts and underwear when she was apparently defecating when appellant
grabbed her. Appellant also claims that AAA was not able to positively identify him because she was
merely relying on the familiarity of his voice.

Refuting appellant's arguments, appellee maintains that appellant's guilt in committing the crime of
rape was proven beyond reasonable doubt. The alleged "confusing" testimony of AAA was in fact
1âw phi1

clear and categorical. Appellee points out that the medical certificate corroborates AAA' s testimony
that she was raped. Appellee also avers that appellant failed to present any concrete evidence to
prove his alibi in light of the positive identification made by AAA. Finally, appellee urges the Court to
dismiss the recantation because it was dubious.

The issue in this case is whether appellant is guilty beyond reasonable doubt of the crime charged.
Appellant is essentially assailing the credibility of AAA.

It is a well-settled principle that the findings of the trial court are not to be disturbed unless the
consideration of certain facts of substance and value, which have been plainly overlooked, might
affect the result of the case.13 The evaluation of the credibility of witnesses and their testimonies is a
matter best undertaken by the trial court because of its unique opportunity to observe the witnesses
firsthand and to note their demeanor, conduct, and attitude under grilling examination. These are
important in determining the truthfulness of witnesses and in unearthing the truth, especially in the
face of conflicting testimonies. For, indeed, the emphasis, gesture, and inflection of the voice are
potent aids in ascertaining the witness' credibility, and the trial court has the opportunity and can
take advantage of these aids. These cannot be incorporated in the record so that all that the
appellate court can see are the cold words of the witness contained in transcript of testimonies with
the risk that some of what the witness actually said may have been lost in the process of
transcribing.14

We find no valid reason to depart from the abovementioned doctrine especially when the Court of
Appeals held that her testimony was categorical and positive. It correctly ruled on this matter when it
held:

Private complainant categorically and positively identified in court as to how she was raped by the
appellant. She was defecating under the gemelina (sic) tree when she was suddenly hugged by the
appellant from behind who warned her not to tell her mother about it for they might be scolded. He
then forced her to lie down and inserted his penis to the victim's vagina. AAA remained
straightforward in her testimony despite the obvious effort of the defense to confuse her during
cross-examination. We therefore find no reason not to believe her, just as the trial court had no such
reason.15

Appellant points out to several supposed inconsistencies in AAA's statements such as how appellant
manhandled her before actually raping her. We have ruled time and again that minor inconsistencies
in the testimony of the rape victim do not detract from the actual fact of rape.16 These inconsistencies
do not affect the credibility of AAA because they have nothing to do with the essential elements of
the crime of rape.

Anent the Affidavit of Desistance, we had previously stated in previous cases that a recantation or
an affidavit of desistance is viewed with suspicion and reservation. Jurisprudence has invariably
regarded such affidavit as exceedingly unreliable, because it can easily be secured from a poor and
ignorant witness, usually through intimidation or for monetary consideration. Moreover, there is
always the probability that it would later on be repudiated, and criminal prosecution would thus be
interminable.17

Indeed, the Affidavit of Desistance executed by AAA is highly suspect. The Court of Appeals noted,
thus:

We note of the fact that AAA expressly renounced during trial the affidavit of desistance that she
executed n June 24, 2002 when she testified in open court on August 19, 2003 about the sexual
assault made by appellant against her on the night of April 30, 2002. Further, she was able to
explain why she executed the same. The document was a product of compulsion and influence on
the part of appellant's wife to force AAA to sign the document. The victim was lured by appellant's
wife into signing the document in exchange for her offer that she will send her to school until she
finishes her education. Such testimony of AAA effectively casts doubt on the truthfulness of said
affidavit. Thus, it deserves non consideration at all.18

Article 266 of the Revised Penal Code provides:

Article 266-A. Rape: When and How Committed. - Rape is committed:

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

xxxx
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 woman is under twelve (12) years of age or is demented, even though none of the
circumstances mentioned above be present.

Article 266-B. Penalty. - Rape under paragraph 1 of the next preceding article shall be punished
by reclusion perpetua:

xxxx

The death penalty shall also be imposed if the crime of rape is committed with any of the following
aggravating/qualifying circumstances:

1) When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-
parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law
spouse of the parent of the victim;

The prosecution was able to show evidence that all the circumstances necessary to convict
appellant under the above provisions were present in the case.

Based on the testimony of AAA, there was carnal knowledge between her and appellant. This was
further corroborated by medical findings which showed vaginal lacerations. It was further stipulated
during pre-trial that the appellant is AAA's uncle by affinity and that she was fourteen years old at the
time of the rape incident. It was ruled in People v. Ofemiano19that "even absent any actual force or
intimidation, rape may be committed if the malefactor has moral ascendancy over the victim. We
emphasized that in rape committed by a close kin, such as the victim's father, stepfather, uncle, or
the common-law spouse of her mother, moral influence or ascendancy substitutes for violence or
intimidation."

Against this overwhelming evidence of the prosecution, denial and alibi cannot stand, more so when
his alibi is unsubstantiated and even inconsistent.

Under Article 266-B(l), the death penalty shall be imposed if the crime of rape is committed when the
victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent,
guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse
of the parent of the victim. In this case, appellant should be meted the death penalty. However, in
view of Republic Act No. 9346, the penalty of reclusion perpetua should be imposed without
eligibility for parole.

Finally, a modification of damages is in order. Pursuant to People v. Jugueta,20 civil indemnity, moral
damages and exemplary damages should be increased to P100,000.00 each. In addition, interest at
the rate of six percent (6%) per annum shall be imposed on all monetary awards from date of finality
of this Resolution until fully paid.

WHEREFORE, the assailed 28 September 2012 Decision of the Court of Appeals in CA-G.R. CEB
C.R. HC No. 00467 finding appellant Beltran Fuentes, Jr. guilty beyond reasonable doubt of the
crime of rape is AFFIRMED with MODIFICATIONS that appellant is not eligible for parole; the
awards of civil indemnity, moral damages, and exemplary damages are increased to P100,000.00
each; and finally, all monetary awards shall earn interest at the rate of six percent (6%) per
annum from date of finality of this Resolution until fully paid.

SO ORDERED.
DISSENTING OPINION

CAGUIOA, J.:

The People's evidence show that: 7-year-old AAA lived with her father and siblings in a house close
to her grandfather's; accused Quimvel worked for AAA's grandfather as caretaker of ducks and lived
in the grandfather's house; one evening, AAA was left alone with her siblings when her father left the
house to buy kerosene; on that night, Quimvel brought a vegetable viand to AAA's house;
whereupon, AAA asked Quimvel to stay with her and her siblings because they were afraid; Quimvel
acceded; AAA fell asleep and awakened to Quimvel's leg over her body and his hand being
inserted into her shorts, then caressing her vagina; she removed Quimvel's hand from inside her
shorts; Quimvel left just as AAA's father arrived.

Quimvel was indicted for the crime of acts of lasciviousness in relation to Section 5(b) of Republic
Act No. 7610 (RA 7610).1 He was convicted by the Regional Trial Court (RTC) and sentenced to
fourteen (14) years, eight (8) months and one (1) day of reclusion temporal in its medium period as
minimum to fifteen (15) years, six (6) months and nineteen (19) days of reclusion temporal in its
medium period as maximum. 2 The Court of Appeals (CA) affirmed the conviction.3

On petition for review on certiorari before this Court, Quimvel asserts that the prosecution failed to
prove his guilt beyond reasonable doubt, and that assuming that he is guilty, he could only be
convicted of acts of lasciviousness under Article 336 of the Revised Penal Code (RPC) and not in
relation to Section 5(b) of RA 7610.4

The ponencia affirms his conviction for acts of lasciviousness in relation to Section 5(b).

I dissent. The majority opinion's interpretation of Section 5(b) of RA 7610 effectively repeals Articles
226-A and 336 with respect to offended parties who are under twelve (12) years old. Moreover, its
cavalier treatment of the concepts of "force or intimidation" and "coercion or influence" muddles the
essential elements of what are otherwise separate and distinct offenses punished under Article 336
and Section 5(b).

The evidence establishes that no

money, profit or other
consideration and no coercion or
influence attended AAA's sexual
abuse.

The definition of a child exploited in prostitution or subjected to other sexual abuse is provided by
Section 5 of RA 7610, namely: as a child, who (a) for money, profit or other consideration, or (b) due
to coercion or influence by an adult, group, or syndicate, indulges in sexual intercourse or lascivious
conduct.

There is no question that the sexual abuse of AAA was not for money, profit or other consideration.
There is also no dispute that there was no coercion or influence exerted on AAA by Quimvel or any
other person for the simple reason that the act of lasciviousness (i.e., caressing her vagina) was
done while she was asleep. On this score alone, it is easy to see that AAA does not fall in the
definition of a child exploited in prostitution or subjected to other sexual abuse. Accordingly, the
evidence negates the application of Section 5(b). 5

Thus, as far as Quimvel is concerned, he can only be convicted of acts of lasciviousness under
Article 336 in relation to Article 266-A(d) of the RPC and meted the penalty only of prision
correccional. Hence, in disposing of this case, there really is no need to further discuss the nuances
of the proper application of Section 5(b) of RA 7610. Nevertheless, I submit this dissent on the
different issues that have been made a part of the majority decision.

RA 7610 was not intended to cover

all sexual abuses against children.

At the outset, I join Justice Carpio's observation that if the intention of RA 7 610 is to penalize all
sexual abuses against children under its provisions to the exclusion of the RPC, it would have
expressly stated so and would have done away with the qualification that the child be "exploited in
prostitution or subjected to other sexual abuse."6 It did not.

When the statute speaks unequivocally, there is nothing for the courts to do but to apply it. Section
5(b) is a provision of specific and limited application, and must be applied as worded - a separate
and distinct offense from the "common" or "ordinary" acts of lasciviousness under Article 336 of the
RPC.

Upon the premise that the language of Section 5(b) is ambiguous and is susceptible to
interpretation, I have conscientiously studied the deliberations of RA 7610 to ascertain the intent of
the law with respect to how it would interplay with the provisions of the RPC and other laws that
penalize the same or similar acts.

While the Senate, in its deliberations, would appear to equivocate in the protection of children
against all or specific types of abuse, it cannot be escaped that the overriding impetus for the
passage of the law is based on a certain recurring theme. Senator Rasul, one of RA 7610's
sponsors, in her speech, stated:

SenatorRasul. x x x

xxxx

But undoubtedly, the most disturbing, to say the least, is the persistent report of children being
sexually exploited and molested for purely material gains. Children with ages ranging from three to
18 years are used and abused. We hear and read stories of rape, manhandling and sexual
molestation in the hands of cruel sexual perverts, local and foreigners alike. As of October 1990,
records show that 50 cases of physical abuse were reported, with the ratio of six females to four
males. xxx

xxxx

x x x No less than the Supreme Court, in the recent case of People vs. Ritter, held that we lack
criminal laws which will adequately protect streetchildren from exploitation by pedophiles.x x
x7

The case referred to by Senator Rasul, People v. Ritter,8 is a 1991 case which involved an Austrian
national who was charged with rape with homicide for having ultimately caused the death of Rosario,
a street child, by inserting a foreign object into her vagina during the course of performing sexual
acts with her. Ritter was acquitted based on reasonable doubt on account of, among others, the
failure of the prosecution to (1) establish the age of Rosario to be within the range of statutory rape,
and (2) show force or intimidation as an essential element of rape in the face of the finding that
Rosario was a child prostitute who willingly engaged in sexual acts with Ritter.
Constrained to acquit Ritter, the Court made the following pronouncements:

It is with distressing reluctance that we have to seemingly set back the efforts of Government to
dramatize the death of Rosario Baluyot as a means of galvanizing the nation to care for its street
children. It would have meant a lot to social workers and prosecutors alike if one pedophile-killer
could be brought to justice so that his example would arouse public concern, sufficient for the
formulation and implementation of meaningful remedies. However, we cannot convict on anything
less than proof beyond reasonable doubt. The protections of the Bill of Rights and our criminal
justice system are as much, if not more so, for the perverts and outcasts of society as they are for
normal, decent, and law-abiding people.

xxxx

And finally, the Court deplores the lack of criminal laws which will adequately protect street
children from exploitation by pedophiles, pimps, and, perhaps, their own parents or
guardians who profit from the sale of young bodies. The provisions on statutory rape and other
related offenses were never intended for the relatively recent influx of pedophiles taking advantage
of rampant poverty among the forgotten segments of our society. Newspaper and magazine articles,
media exposes, college dissertations, and other studies deal at length with this serious social
problem but pedophiles like the appellant will continue to enter the Philippines and foreign
publications catering to them will continue to advertise the availability of Filipino street children
unless the Government acts and acts soon. We have to acquit the appellant because the Bill of
Rights commands us to do so. We, however, express the Court's concern about the problem of
street children and the evils committed against them. Something must be done about it.9

That the protection of street children from exploitation is the thrust of RA 7610 is further confirmed by
Senator Lina's elucidation on the application of Section 6 following questions from Senator Enrile:

Senator Enrile. Pareho silang hubad na hubad at naliligo. Walang ginagawa. Walang touching po,
basta naliligo lamang. Walang akapan, walang touching, naliligo lamang sila. Ano po ang ibig
sabihin noon? Hindi po ba puwedeng sabihin, kagaya ng standard na ginamit natin, na UNDER
CIRCUMSTANCES WHICH WOULD LEAD A REASONABLE PERSON TO BELIEVE THAT THE
CHILD IS ABOUT TO BE SEXUALLY EXPLOITED, OR ABUSED.

Senator Lina. Kung mayroon pong balangkas or amendment to cover that situation, tatanggapin ng
Representation na ito. Baka ang sitwasyong iyon ay hindi na ma-cover nito sapagkat, at the back of
our minds, Mr. President, ang sitwasyong talagang gusto nating ma-address ay maparusahan
iyong tinatawag na "pedoph[i]lia" or prey on our children. Hindi sila makakasuhan sapagkat
their activities are undertaken or are committed in the privacy of homes, inns, hotels, motels and
similarestablishments. 10

And when he explained his vote, Senator Lina stated the following:

With this legislation, child traffickers could be easily prosecuted and penalized. Incestuous abuse
and those where victims are under twelve years of age are penalized gravely, ranging from reclusion
temporal to reclusion perpetua, in its maximum period. It also imposes the penalty of reclusion
temporal in its medium period to reclusion perpetua. equivalent to a 14-30 year prison term for
those: "(a) who promote or facilitate child prostitution; (b) commit the act of sexual intercourse or
lascivious conduct with a child exploited in prostitution; (c) derive profit or advantage whether
as manager or owner of an establishment where the prostitution takes place or of the sauna, disco,
bar resort, place of entertainment or establishment serving as a cover or which engages in a
prostitution in addition to the activity for which the license has been issued to said establishment. 11
The Senate deliberations on RA 7610 is replete with similar disquisitions tending to show the
intendment to make the law applicable to cases involving child exploitation through prostitution,
sexual abuse, child trafficking, pornography and other types of abuses; the passage of the law was
the Senate's act of heeding the call of the Supreme Court to afford protection to a special class of
children and not to cover any and all crimes against children that are already covered by other penal
laws such as the RPC and the Child and Youth Welfare Code.

The structure of RA 7610 confirms

the foregoing intendment.

In this regard, even the structure of RA 7610 demonstrates its intended application.

Article 1 lays the preliminaries including state policy and defines the terms used in the statute. Article
II mandates the creation of a comprehensive program to protect children from sexual abuse,
exploitation, and discrimination - and thereafter enumerated the headings of subsequent articles that
grouped prohibited acts according to the classes of abuse that RA 7 610 penalizes. Article III
penalizes child prostitution and other sexual abuse; Article IV, child trafficking; Article V, obscene
publications and indecent shows; Article VI, other acts of abuse; and Article VII for sanctions for
establishments wherein these prohibited acts are promoted, facilitated or conducted. The remaining
articles cover circumstances which gravely threaten or endanger the survival and normal
development of children.

By both literal and purposive tests, I find nothing in the language of the law or in the Senate
deliberations that necessarily leads to the conclusion that RA 7 610 subsumes all instances of
sexual abuse against children.

The language of Section 5(b) cannot

be read in isolation and should be
read in the context of the
intendment of RA 7610.

Section 5(b) reads:

SEC. 5. Child Prostitution and Other Sexual Abuse. - Children, whether male or female, who for
money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate
or group, indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited in
prostitution and other sexual abuse.

The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon
the following:

xxxx

(b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in
prostitution or subjected to other sexual abuse; Provided, That when the victim is under twelve (12)
years of age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and
Article 336 of Act No 3815, as amended, the Revised Penal Code, for rape or lascivious conduct, as
the case may be: Provided, That the penalty for lascivious conduct when the victim is under twelve
(12) years of age shall be reclusion temporal in its medium period x x x. 12
Its essential elements are: (1) The accused commits the act of sexual intercourse or lascivious
conduct; (2) The said act is performed with a child exploited in prostitution or subjected to other
sexual abuse; and (3) The child whether male or female, is below 18 years of age. 13

The unique circumstances of the children exploited in prostitution or subjected to other sexual abuse
for which the provisions of RA 7610 are intended are highlighted in this exchange:

The Presiding Officer [Senator Mercado]. Senator Pimentel.

Senator Pimentel. Just this question, Mr. President, if the Gentleman will allow.

Will this amendment14 also affect the Revised Penal Code provisions on seduction?

Senator Lina. No, Mr. President. Article 336 of Act No. 3815 will remain unaffected by this
amendment we are introducing here. As a backgrounder, the difficulty in the prosecution of so-
called "pedophiles" can be traced to this problem of having to catch the malefactor
committing the sexual act on the victim. And those in the law enforcement agencies and in the
prosecution service of the Government have found it difficult to prosecute. Because if an old person,
especially a foreigner, is seen with a child with whom he has no relation-blood or otherwise-and they
are just seen in a room and there is no way to enter the room and to see them inflagrante
delicto, then it will be very difficult for the prosecution to charge or to hale to court these pedophiles.

So, we are introducing into this bill, Mr. President, an act that is considered already an attempt to
commit child prostitution. This, in no way, affects the Revised Penal Code provision on acts of
lasciviousness or qualified seduction. 15

As to the proviso of Section 5(b), some guidance may be had as to its import during the period of
committee amendments:

SenatorLina. On page 3, between lines 12 and 13, insert the following: PROVIDED THAT WHEN
THE VICTIM IS TWELVE (12) YEARS OR LESS, THE PERPETRATORS SHALL BE
PROSECUTED UNDER ARTICLE 335, PARAGRAPH 3, AND ARTICLE 336 OF REPUBLIC ACT
3815, AS AMENDED, THE REVISED PENAL CODE, FOR RAPE OR LASCIVIOUS CONDUCT AS
THE CASE MAY BE.

The Presiding Officer [Senator Mercado]. Is there any objection? [Silence] Hearing none, the
amendment is approved.

xxxx

Senator Lina. No, Mr. President, as stated in the Committee amendment which has just been
approved but which, of course, can still stand some individual amendments during the period of
individual amendment, it is stated that, "PROVIDED, THAT WHEN THE VICTIM IS TWELVE (12)
YEARS OR LESS, THE PERPETRATOR SHALL BE PROSECUTED UNDER ARTICLE 335, PAR.
3, AND ARTICLE 336 OF R.A. 3815, AS AMENDED."

Article 335 of the Revised Penal Code, Mr. President, is, precisely, entitled: "When And How Rape Is
Committed." So, prosecution will still be under Article 335, when the victim is 12 years old or below.

Senator Pimentel. Despite the presence of monetary considerations?

Senator Lina. Yes, Mr. President. It will still be rape. We will follow the concept as it has been
observed under the Revised Penal Code. Regardless of monetary consideration, regardless of
consent, the perpetrator will still be charged with statutory rape.

Senator Pimentel. So, it is only when the victim or the child who was abused is a male that the
offender would probably be prosecuted under the distinguished Gentleman's amendment because,
obviously, the crime of rape does not cover child abuse of males.

Senator Lina. Yes, that will be the effect, Mr. President.

Senator Pimentel. Thank you, Mr. President. 16

Bearing these in mind, there is no disagreement as to the first and third elements of Section 5(b ).
The core of the discussion relates to the meaning of the second element - that the said act is
performed with a child exploited in prostitution or subjected to other sexual abuse.

To my mind, a person can only be convicted of violation of Article 336 in relation to Section S(b ),
upon allegation and proof of the unique circumstances of the child - that he or she is exploited in
prostitution or subject to other sexual abuse. In this light, I quote in agreement Justice Carpio's
dissenting opinion in Olivarez v. Court of Appeals

17
:

Section 5 of RA 7610 deals with a situation where the acts of lasciviousness are committed on a
child already either exploited in prostitution or subjected to "other sexual abuse." Clearly, the acts
of lasciviousness committed on the child are separate and distinct from the other circumstance - that
the child is either exploited in prostitution or subjected to "other sexual abuse."

xxxx

Section 5 of RA 7610 penalizes those "who commit the act of sexual intercourse or lascivious
conduct with a child exploited in prostitution or subjected to other sexual abuse." The act of sexual
intercourse or lascivious conduct may be committed on a child already exploited in
prostitution, whether the child engages in prostitution for profit or someone coerces her into
prostitution against her will. The element of profit or coercion refers to the practice of prostitution, not
to the sexual intercourse or lascivious conduct committed by the accused. A person may commit
acts of lasciviousness even on a prostitute, as when a person mashes the private parts of a
prostitute against her will.

The sexual intercourse or act of lasciviousness may be committed on a child already subjected to
other sexual abuse. The child may be subjected to such other sexual abuse for profit or through
coercion, as when the child is employed or coerced into pornography. A complete stranger, through
force or intimidation, may commit acts of lasciviousness on such child in violation of Section 5 of RA
7610.

The phrase "other sexual abuse" plainly me1.lns that the child is already subjected to sexual
abuse other than the crime for which the accused is charged under Section 5 of RA 7610.
The "other sexual abuse" is an element separate and distinct from the acts of lasciviousness that
the accused performs on the child. The majority opinion admits this when it enumerates the second
element of the crime under Section 5 of RA 7610- that the lascivious "act is performed with a child x
x x subjected to other sexual abuse."18
In its bare essentials, the second element can be met by allegation and proof of either circumstance:

a) the child is exploited in prostitution; OR

b) the child is subjected to other sexual abuse.

which should already be existing at the time of sexual intercourse or lascivious conduct complained
of.

Otherwise stated, in order to impose the higher penalty provided in Section 5(b) as compared to
Article 336, it must be alleged and proved that the child - (1) for money, profit, or any other
consideration or (2) due to the coercion or influence of any adult, syndicate or group - indulges in
sexual intercourse or lascivious conduct.

In People v. Fragante, 19 the accused was convicted of seven (7) counts of acts of lasciviousness
and one (1) count of rape committed against his own minor daughter. The Court found that the
elements of Section 5(b) were present. Remarkably, the Court meticulously explained the interplay
of the elements of rape and acts of lasciviousness and Section 5(b).

It held that actual force or intimidation need not be employed in incestuous rape of a minor because
the moral and physical dominion of the father is sufficient to cow the victim into submission. 20 The
appreciation of how the sexual intercourse and lascivious conduct in this case fell within the ambit of
Section 5(b) is cogently explained thus: appellant, as a father having moral ascendancy over his
daughter, coerced AAA to engage in lascivious conduct, which is within the purview of sexual
abuse.21

In People v. Abello,22 one of the reasons the accused was convicted of rape by sexual assault and
acts of lasciviousness and penalized under the RPC and not under Section 5(b) was because there
was no showing of coercion or influence required by the second element. The Court ratiocinated:

In Olivarez v. Court of Appeals, we explained that the phrase, "other sexual abuse" in the above
provision covers not only a child who is abused for profit, but also one who engages in
lascivious conduct through the coercion or intimidation by an adult. In the latter case, there must
be some form of compulsion equivalent to intimidation which subdues the free exercise of the
offended party's will.

In the present case, the prosecution failed to present any evidence showing that force or
coercion attended Abello's sexual abuse on AAA; the evidence reveals that she was asleep at
the time these crimes happened and only awoke when she felt her breasts being fondled. Hence,
she could have not resisted Abello' s advances as she was unconscious at the time it happened. In
the same manner, there was also no evidence showing that Abello compelled her, or cowed her into
silence to bear his sexual assault, after being roused from sleep. Neither is there evidence that she
had the time to manifest conscious lack of consent or resistance to Abello's assault.23

Prior sexual affront is not always

required for Section 5(b) to apply.

That is not to say that in every instance, prior sexual affront upon the child must be shown to
characterize the child as one "subjected to other sexual abuse". What is only necessary is to show
that the child is already a child exploited in prostitution or subjected to other sexual abuse at the time
the sexual intercourse or lascivious conduct complained of was committed or that circumstances
obtain prior or during the first instance of abuse that constitutes such first instance of sexual
intercourse or lascivious conduct as having converted the child into a child "exploited in prostitution
or subjected to other sexual abuse."

I am, therefore, in full agreement with Justice Bernabe that alleging and proving the second element
do not require a prior sexual affront;24 precisely, because a prior sexual affront is not the only way to
satisfy the second element.

It is in this light that I had, during the deliberations of this case, discussed the need to contextualize
the operation of Section 5(b) in reference to Section 5(a) and the other parts of Section 5. I
understand the structure of Section 5 as following the more common model or progression of child
prostitution or other forms of sexual exploitation:

A child is procured, induced, or threatened to become a prostitute by any person, in violation of

Section 5(a). In this instance, the person who has sexual intercourse or performs lascivious acts
upon the child, even if this were the very first act by the child, already makes the person liable under
Section 5(b), because the very fact that someone had procured the child to be used for another
person's sexual gratification in exchange for money, profit or other consideration already qualifies
the child as a child exploited in prostitution. In this instance, no requirement of a prior sexual affront
is required.

In cases where any person, under the circumstances of Section 5(a), procures, induces, or threatens
a child to engage in any sexual activity with another person, even without an allegation or showing
that the impetus is money, profit or other consideration, the first sexual affront by the person to
whom the child is offered already triggers Section 5(b) because the circumstance of the child being
offered to another already qualifies the child as one subjected to other sexual abuse. Similar to these
situations, the first sexual affront upon a child shown to be performing in obscene publications and
indecent shows, or under circumstances falling under Section 6 is already a violation of Section 5(b)
because these circumstances are sufficient to qualify the child as one subjected to other sexual
abuse.

In certain cases, however, it appears that a first sexual affront, on its own, cannot be considered a
violation of Section 5(b ). For example, a person who has moral ascendancy or influence over a child
cannot be automatically considered to have coerced or influenced the child into indulging in sexual
intercourse or lascivious conduct with him on account only of his or her ascendancy over the child,
unless there are circumstances that would allow the inference that the relationship between the
perpetrator and the victim amounts to coercion or influence (e.g., as when a person who has
ascendancy over a child is later found with the child under the circumstances of Section 6, any
subsequent sexual activity squarely violates Section 5(b ), because the circumstances of Section 6
may be the basis to infer that the accused conducted his relationship with the child with the view of
inducing him or her to indulge in sexual intercourse or lascivious conduct, thus furnishing the
element of coercion or influence). Otherwise, it appears that without the circumstances of Section
5(a) or independent evidence of coercion or influence, a single instance of sexual intercourse or
lascivious conduct may not be sufficient to meet the second element of Section 5(b ). However, as
with the "discrepancy" in the penalties,25 this state of law should be addressed by remedial
legislation, and not adjusted by the Court based on its own value judgment.

Larin does not support the

extension of Section S(b) to all cases
of lascivious conduct against a
child.
People v. Larin26 has been used as jurisprudential support for the proposition that Section 5(b)
applies to all instances of lascivious conduct against children because of the phrase "other
consideration". Larin's use of this passage in the deliberations is oft-cited:

Senator Angara. I refer to line 9, 'who for money or profit'. I would like to amend this, Mr.
President, to cover a situation where theminor may have been coerced or intimidated into this
lascivious conduct, not necessarily for money or profit, so that we can cover those situations and not
leave loophole in this section.

The proposal I have is something like this: WHO FOR MONEY, PROFIT, OR ANY OTHER
CONSIDERATION OR DUE TO THE COERCION OR INFLUENCE OF ANY ADULT, SYNDICATE
OR GROUP INDULGE, et cetera.

The President Pro Tempore. I see. That would mean also changing the subtitle of Section 4. Will it
no longer be child prostitution?

Senator Angara. No, no. Not necessarily, Mr. President, because we are still talking of the child who
is being misused for sexual purposes either for money or for consideration. What I am trying to cover
is the other consideration. Because, here, it is limited only to the child being abused or misused for
sexual purposes, only for money or profit.

I am contending, Mr. President, that there may be situations where the child may not have been
used for profit or ...

The President Pro Tempore. So, it is no longer prostitution. Because the essence of prostitution is
profit.

Senator Angara. Well, the Gentleman is right. Maybe the heading ought to be expanded. But, still,
the President will agree that that is a form or manner of child abuse.

The President Pro Tempore. What does the Sponsor say? Will the Gentleman kindly restate the
amendment?

ANGARA AMENDMENT.

Senator Angara. The new section will read something like this, Mr. President: MINORS, WHETHER
MALE OR FEMALE, WHO FOR MONEY, PROFIT, OR ANY OTHER CONSIDERATION OR
INFLUENCE OF ANY ADULT, SYNDICATE OR GROUP INDULGE IN SEXUAL INTERCOURSE, et
cetera.

Senator Lina. It is accepted, Mr. President.

The President Pro Tempore. Is there any objection? [Silence] Hearing none, the amendment is
approved.

How about the title, 'Child Prostitution,' shall we change that too?

Senator Angara. Yes, Mr. President, to cover the expanded scope.

The President Pro Tempore. Is that not what we would call probable 'child abuse'?
Senator Angara. Yes, Mr. President.

The President Pro Tempore. Subject to rewording. Is there any objection? [Silence] Hearing none,
the amendment is approved. x x x27

While this amendment undoubtedly expanded the scope of Section 5(b) to include non-monetary
consideration, this does not furnish support for the interpretation that all cases of sexual intercourse
or lascivious conduct against a child should be prosecuted in relation to Section 5(b). Worthy of note
are the following statements of Senator Angara who proposed the amendment:

The President Pro Tempore. I see. That would mean also changing the subtitle of Section 4. Will it
no longer be child prostitution?

Senator Angara. No, no. Not necessarily, Mr. President, because we are still talking of the
child who is being misused for sexual purposes either for money or for consideration. What I
am trying to cover is the other consideration. Because, here, it is limited only to the child being
abused or misused for sexual purposes, only for money or profit.

I am contending, Mr. President, that there may be situations where the child may not have been
used for profit or ...

The President Pro Tempore. So, it is no longer prostitution. Because the essence of prostitution is
profit.

Senator Angara. Well, the Gentleman is right. Maybe the heading ought to be expanded. But, still,
the President will agree that that is a form or manner of child abuse.

The President Pro Tempore. What does the Sponsor say? Will the Gentleman kindly restate the
amendment?

ANGARA AMENDMENT

Senator Angara. The new section will read something like this, Mr. President: MINORS, WHETHER
MALE OR FEMALE, WHO FOR MONEY, PROFIT, OR ANY OTHER CONSIDERATION OR DUE
TO THE COERCION OR INFLUENCE OF ANY ADULT, SYNDICATE OR GROUP INDULGE IN
SEXUAL INTERCOURSE, et cetera.

Senator Lina. It is accepted, Mr. President.

The President Pro Tempore. Is there any objection? [Silence] Hearing none, the amendment is
approved. 28

That Larin's crime is subsumed in Section 5(b) is not doubted. However, the reliance on this
passage in the Senate deliberations cannot be used to extend the application of Section 5(b) beyond
what is expressly stated by its provisions.

In Larin, the Court held that the elements of Section 5(b) are present. Larin, being an adult and the
swimming trainor of his 14-year-old victim, had the influence and ascendancy to cow her into
submission. Evidence was introduced to show that Larin employed psychological coercion upon his
child victim by attacking her self-esteem and then pretending to be attentive to her needs and
making himself out to be the only one who could accept her inadequacies.
The independent proof given of psychological coercion, prior to the first lascivious conduct against
the child victim, coupled with the fact that the lascivious conduct happened on two separate
occasions indubitably proved the second element - that the child victim was coerced or influenced by
Larin to engage in lascivious conduct at the first instance of lascivious conduct, or, to be sure, on the
second instance of lascivious conduct (as the first was already sufficient to convert the child victim
into a child exploited in prostitution or subjected to other sexual abuse).

Verily, this factual milieu sufficiently places Larin within the ambit of Section 5(b) because of
coercion and influence and not because of "other consideration." The relationship and the manner of
committing the lascivious conduct in Larin distinguish it from the facts of Quimvel.

Understanding the last proviso of Section 5(b).

It has been submitted that the interpretation of the final proviso of Section 5(b) imposing reclusion
temporal in its medium period if the child is under twelve (12) years old should be made to depend
only on the proviso preceding it.29 The practical effect of this submission is that whenever the victim
of lascivious conduct is any child under twelve (12) years of age, the prosecution shall be under
Article 336 of the RPC and the penalty automatically becomes reclusion temporal.

I disagree. True, the office of the proviso is to qualify or modify only the phrase immediately
preceding it or restrains or limits the generality of the clause that immediately follows. As applied to
Section 5(b), the understanding of the last proviso should not lose sight of the fact that what it
qualifies is another proviso, which also operates only within the meaning of the phrase preceding the
latter:

(b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in
prostitution or subjected to other sexual abuse; Provided, That when the victim is under twelve (12)
years of age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and
Article 336 of Act No 3815, as amended, the Revised Penal Code, for rape or lascivious conduct, as
the case may be: Provided, That the penalty for lascivious conduct when the victim is under twelve
(12) years of age shall be reclusion temporal in its medium period[.]

Therefore, I submit that the proper understanding of Section 5(b) with both provisos in operation
would be: in prosecutions for lascivious conductunder Article 336 when the victim is (1) a child
exploited in prostitution or subjected to other sexual abuse, AND (2) under twelve (12) years old, the
penalty would be reclusion temporal in its medium period.

In this context, it cannot be said that the penalty for all prosecutions for lascivious conduct under
Article 336 is reclusion temporal in its medium period. As it should be, prosecution for acts of
lasciviousness that do not involve a child exploited in prostitution or subjected to other sexual abuse
even if she were under twelve (12) years old, the penalty should - as it should be meted on Quimvel
- be the penalty provided in the RPC, which is prision correccional.

Section 5(b), as worded and as intended, is a small subset of the universe of lascivious conduct
covered by Article 336, thereby requiring allegation and proof of the specific circumstances required
for it to operate - which, put simply, are composed of its essential elements.

RA 7610 did not repeal Article 336.

In this light, I concur with the majority that Article 336 remains an operative provision, and the crime
of acts of lasciviousness under the RPC remains a distinct and subsisting crime from RA 7610.
While rape was relocated to the title on crimes against persons, Article 336 can fairly be read to refer
to the provision that replaced Article 335 (Article 266) to save it from becoming non-operational.

The legislative intent to have the provisions of RA 7610 to operate side by side with the provisions
of the RPC - and a recognition that the latter remain effective - can be gleaned from Section 10 of
the law:

Section 10. Other Acts of Neglect, Abuse, Cruelty or Exploitation and Other Conditions
Prejudicial to the Child's Development. -

(a) Any person who shall commit any other acts of child abuse, cruelty or exploitation or to be
responsible for other conditions prejudicial to the child's development including those covered by
Article 59 of Presidential Decree No. 603, as amended, but not covered by the Revised Penal
Code, as amended, shall suffer the penalty of prision mayor in its minimum period.

This is confirmed by Senator Lina in his sponsorship speech of RA 7610, thus:

Senator Lina. x x x

xxxx

Senate Bill No. 1209, Mr. President, is intended to provide stiffer penalties for abuse of children and
to facilitate prosecution of perpetrators of abuse. It is intended to complement provisions of the
Revised Penal Code where the crimes committed are those which lead children to
prostitution and sexual abuse, trafficking in children and use of the young in pornographic
activities.

These are the three areas of concern which are specifically included in the United Nations
Convention o[n] the Rights of the Child. As a signatory to this Convention, to which the Senate
concurred in 1990, our country is required to pass measures which protect the child against these
forms of abuse.

xxxx

Mr. President, this bill on providing higher penalties for abusers and exploiters, setting up legal
presumptions to facilitate prosecution of perpetrators of abuse, and complementing the existing
penal provisions of crimes which involve children below 18 years of age is a part of a national
program for protection of children.

xxxx

Mr. President, subject to perfecting amendments, I am hopeful that the Senate will approve this bill
and thereby add to the growing program for special protection of children and youth. We need this
measure to deter abuse. We need a law to prevent exploitation. We need a framework for the
effective and swift administration of justice for the violation of the rights of children.30

This same deference to the discreteness and subsistence of the felonies in the RPC is apparent in
this interpellation with respect to seduction:
Senator Lina. This is qualified seduction. Simple seduction is seduction of a woman who is single or
a widow of good reputation over 12, but under 18 years of age, committed by means of deceit. Here
the subject is a woman.

In our proposal, it will be both male and female. But that is not the only difference, Mr. President.
The situation that we would like to cover that will lead to easier prosecution and to overcome this
present problem of government enforcement agencies in booking or charging an alleged so-called
"pedophile" is that we want the fact of being present, say, inside a hotel, sauna, or an inn, between
the presence of a person without any relationship with a child under 18 years of age and there is no
sexual contact. It is not proved that there is sexual contact. There is no need for proof of lewd
design. The fact that they are there will be considered an attempt to commit child prostitution.

We are, in effect, advancing a new concept or theory, Mr. President, to cover this gap in our present
statutes, making it easier or making it difficult for the prosecution to hale to court this so-called
"pedophile." So, this is different from consented abduction, qualified seduction or simple
deduction.31

Force or intimidation does not equate to coercion or influence.

Since Section S(b) penalizes a specific class of lascivious conduct, I cannot concur with
the ponencia when it states that the element of coercion or influence under Section S(b) was met by
the allegation in the Information of force and intimidation - an element of Article 336.

"Common" or "ordinary" acts of lasciviousness under Article 336 and lascivious conduct under Article
336 in relation to Section 5(b) are separate offenses, with distinct essential elements. To hold that
the allegation and proof of the existence of an element of one can take the place of what has been
jurisprudentially defined as an element of another muddles the understanding of these two offenses,
and effectively constitutes judicial legislation as it results in a partial repeal of Article 336 through a
change of its essential elements.

The essential elements of acts of lasciviousness under Article 336 of the RPC are as follows:

1. That the offender commits any act of lasciviousness or lewdness;

2. That the act of lasciviousness is committed against a person of either sex;

3. That it is done under any of the following circumstances:

a. By using force or intimidation; or

b. When the offended party is deprived of reason or otherwise unconscious; [or]

c. By means of fraudulent machination or grave abuse of authority; or

d. When the offended party is under 12 years of age or is demented.

(Italics supplied)32

On the other hand, Section 5(b)'s essential elements are as follows:

1. The accused commits the act of sexual intercourse or lascivious conduct.

 2. The said act is performed with a child exploited in prostitution or subjected to other sexual
abuse.

3. The child, whether male or female, is below 18 years of age. 33

The muddling is made even more inopportune by the fact that the people's evidence shows neither
force or intimidation, nor coercion or influence employed by Quimvel upon AAA. Quimvel took
advantage of the fact that AAA was asleep, committed lascivious conduct upon her, and forthwith
ceased when she awoke and removed his hand from within her shorts - her being asleep a
circumstance properly belonging to being unconscious.

However, even as the Information alleged the use of force or intimidation, the evidence established
only that AAA was unconscious or asleep; meaning that Quimvel could not be convicted of Section
S(b) but could be convicted only of Article 336.

It has been argued that neither force or intimidation nor coercion or influence need be shown if the
offended party is a child under twelve (12) years old. This proposition is correct IF the prosecution is
for Articles 266- A or 336, as the age of the offended party is a circumstance that, on its own,
already satisfies the conditions of Articles 266-A and 336. However, I maintain that in a prosecution
under Section 5(b), coercion or influence (or otherwise, that the child indulged in sexual intercourse
or lascivious conduct for money, profit or other consideration) is a textually-provided circumstance
that must be separately shown apart from the age of the child victim.

Issues of operationalization.

A challenge to this interpretation has been articulated that the requirement of showing what Justice
Carpio calls as the "circumstances of the child" is difficult to operationalize. 34 I disagree. The
circumstances of the child can be proved in any manner allowed by the Rules of Court, as by
testimony of the child himself or herself, or any other person who has personal knowledge of the
child's circumstances. Ultimately, if difficulty is encountered in operationalizing a provision - in terms
of evidence required - it is within the province of the Court to lay down guidelines in appreciating a
fact as an element of the crime or as a qualifying circumstance, as it had done in People v.
Pruna35 as to the question of proving a victim's age.

In view of the foregoing discussion, Section 5(b), to my mind, is, as earlier intimated, correctly
understood to be a subset of the universe of acts of lasciviousness covered by Article 336, thereby
requiring allegation and proof of the specific circumstances required for it to operate - which, again,
are simply composed of its essential elements.

The Court's role is to punish the guilty with the penalty provided by law for the offense proved by the
People's evidence. While I share the sentiment that the highest degree of protection must be
afforded to children, I am mindful of the fact that, as far as this protection is equated to the proper
penalty upon persons that offend against children, the extent of this protection only goes as far as
the law can be reasonably and equitably interpreted to allow.

It is in this light that I cannot join the majority in imposing the higher penalty of reclusion temporal as
provided in RA 7610, despite the fact that I stand with the rest of the members of the Court in
absolute condemnation of the abuse committed against the child victim.

Recapitulation.
A dispassionate evaluation of the evidence shows that what the prosecution only proved were the
essential elements of Article 336: that (1) Quimvel committed an act of lasciviousness or lewdness
by caressing AAA's vagina; (2) he committed the said act against AAA; and (3) the said act was
done while AAA, a 7-year-old, was asleep.

I vote to convict Quimvel only of acts of lasciviousness and impose upon him the penalty of prision
correccional under Article 336 of the RPC.

ALFREDO BENJAMIN S. CAGUIOA

Associate Justice

Footnotes

1
Decision, p. 2.

2
Decision, p. 3.

3
With modification as to the amount of damages; Decision, p. 4.

4
Decision, p. 4.

5
See People v. Abella, 601 Phil. 373, 393 (2009); an extended discussion of Abella is found
in pages 9-10.

6
J. Carpio Separate Opinion, p. 5.

7
Record ofthe Senate, Vol. III, No. 104, March 19, 1991, p. 1204; emphasis and
underscoring supplied.

8
272 Phil. 532 (1991).

9
Id. at 563-564, 569-570; emphasis and underscoring supplied.

Record of the Senate, Vol. I, No. 7, August 1, 1991, pp. 264-265; emphasis and
10

underscoring supplied.

Record of the Senate, Vol. II, No. 58, December 2, 1991, pp. 793-794; emphasis and
11

underscoring supplied.

12
Underscoring supplied.

13
People v. Abella, supra note 5, at 392.

14
N.B. On the provisions relating to attempt to commit child prostitution.

Record of the Senate, Vol. IV, No. 116, May 9, 1991, pp. 334-335; emphasis and
15

underscoring supplied.
16
Id. at 333-334.

17
503 Phil. 421 (2005).

18
Id. at 445-447; italics omitted, emphasis supplied.

19
657 Phil. 577 (2011).

20
Id. at 592.

21
Id. at 597.

22
Supra note 5.

23
Id. at 393; additional emphasis and underscoring supplied.

24
J. Bernabe Concurring Opinion, p. 3.

25
The President Pro Tempore noted this discrepancy in penalties during the deliberations,
thus: "The penalty in the case of those who commit acts of lasciviousness is that they are
punished under the Penal Code with merely prision correccional. That seems to be rather
odd, because this is if the child, in the Penal Code, is less than 15, the penalty is higher or
heavier. That is reclusion temporal, whereas, if the child is less than 12, it is only prision
correccional." (Record of the Senate, Vol. II, No.52,August21, 1991,p.605.)

26
357 Phil. 987 (1998).

27
Id. at 998-999.

Record of the Senate, Vol. I, No. 7, August 1, 1991, p. 262; emphasis and underscoring
28

supplied.

29
J. Peralta Separate Opinion.

Record of the Senate, Vol. IV, No. 111, April 29, 1991, pp. 191-193; emphasis and
30

underscoring supplied.

Record of the Senate, Vol. IV, No. 116, May 9, 1991, pp. 335-336; emphasis and
31

underscoring supplied.

32
Dissenting Opinion of J. Carpio in Olivarez v. Court of Appeals, supra note 17, at 442-443.

33
People v. Fragante, supra note 19, at 596, citing People v. Abe/lo, supra note 5, at 392,
further citing People v. Larin, supra note 26, at 997; Amployo v. People, 496 Phil. 747, 758
(2005); Olivarez v. Court of Appeals, supra note 17, at 431 and 444; and Ma/to v.
People, 560 Phil. 119, 134 (2007).

34
J. Bernabe Concurring Opinion.

35
People v. Pruna, 439 Phil. 440 (2002).
The Lawphil Project - Arellano Law Foundation

CONCURRING OPINION

PERLAS-BERNABE, J.:

I concur.

Petitioner Eduardo Quimvel y Braga (Quimvel) should be convicted under Section 5 (b), Article III of
Republic Act No. (RA) 7610,1 otherwise known as the "Special Protection of Children Against Abuse,
E:xploitation and Discrimination Act," in relation to Article 336 of the Revised Penal Code. As now
subscribed to by the ponencia, the said provision covers a situation wherein a child engages in any
lascivious conduct through coercion or intimidation, even if such sexual abuse occurred only once,
as in Quimvel's case. To my mind, the law does not contemplate a situation where the acts of
lasciviousness are committed on a child priorly exploited in prostitution or subjected to other sexual
abuse. This latter position effectively requires allegation and proof of a first act of abuse committed
against the same child victim for a sex offender to be convicted.

Section 5 (b), Article III of RA 7610 reads:

ARTICLE III

Child Prostitution and Other Sexual Abuse

Section 5. Child Prostitution and Other Sexual Abuse. - Children, whether male or female, who for
money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate
or group, indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited
in prostitution and other sexual abuse.

The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon
the following:

(a) Those who engage in or promote, facilitate or induce child prostitution which include, but are not
limited to, the following:

(1) Acting as a procurer of a child prostitute;

(2) Inducing a person to be a client of a child prostitute by means of written or oral

advertisements or other similar means;

(3) Taking advantage of influence or relationship to procure a child as prostitute;

(4) Threatening or using violence towards a child to engage him as a prostitute; or

(5) Giving monetary consideration goods or other pecuniary benefit to a child with intent to
engage such child in prostitution.
(b) Those who commit the act of sexual intercourse or lascivious conduct with a child
exploited in prostitution or subject to other sexual abuse; Provided, That when the victims is
under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335, paragraph 3,
for rape and Article 336 of Act No. 3815, as amended, the Revised Penal Code, for rape or
lascivious conduct, as the case may be: Provided, That the penalty for lascivious conduct when the
victim is under twelve (12) years of age shall be reclusion temporal in its medium period; and

x x x x (Emphases supplied)

For the brief reasons that follow, I deem it enough that a singular act of sexual abuse be committed
against a minor in order to qualify under the law's protection:

First, the prevailing Congressional intent behind RA 7 610 was to establish "[a] national program for
protection of children" which needs "not only the institutional protective mechanisms, but also a
mechanism for strong deterrence against commission of abuse and exploitation."2 In his sponsorship
speech for Senate Bill No. 1209, from which RA 7610 originated, Senator Jose D. Lina, Jr. (Senator
Lina, Jr.) mentioned that the law was "intended to provide stiffer penalties for abuse of children and
to facilitate prosecution of perpetrators of abuse. It is intended to complement the provisions of the
Revised Penal Code [at that time] where the crimes committed are those which lead children to
prostitution and sexual abuse, trafficking in children and use of the young in pornographic
activities."3 Senator Lina, Jr. also presented cases of reported abuse, none of which imply that the
child victims have been previously exploited. Instead, they are straight-up cases of sexual abuse of
minors. 4 Hence, if RA 7 610 was directly meant to reinforce the legal framework against the sexual
abuse of minors, it would not make any sense to first require a preliminary act of sexual abuse
against a child before a sex offender could be punished under the same. Indeed, a person's chastity
- much more a child's - is undoubtedly sacred and once ravaged, is forever lost and leaves a scar on
his or her well-being.

As such, our lawmakers, in crafting a special legislation precisely to deter child abuse, would not
have thought of such absurdity.

Second, it is difficult - if not, insensible - to operationalize the application of RA 7610 under the
theory that the commission of a prior act of sexual abuse is required before a lascivious conduct may
be penalized under Section 5 (b) of the same law. For one, no operational parameter was provided
by law to determine the existence of a prior sexual abuse so as to satisfy the preliminary element of
the aforementioned theory. It is unclear whether a prior sexual abuse on the same child victim
should be pronounced in an official court declaration, or whether a mere finding on that matter in the
same case would suffice. The Congressional deliberations also express nothing on the necessity to
determine a prior sexual abuse to qualify the lascivious conduct. If a prior sexual abuse was an
integral element for prosecution, then it stands to reason that the language of the law or the
deliberations should have addressed the same.

And third, while the grammatical structure of Section 5 (b) of RA 7610 may, if construed literally, be
taken to mean that the victim should be one who is first "exploited in prostitution or subjected to
other sexual abuse" as previously intimated during the deliberations on this case, this interpretation
would surely depart from the law's purpose based on its policy considerations as afore-discussed.
On the other hand, it is my view that Section 5 (b) can be construed in another way, in order to give
full life and meaning to its avowed purpose, which is to "provide stiffer penalties for abuse of children
and to facilitate prosecution of perpetrators of abuse."

Particularly, it is observed that the phrase "a child exploited in prostitution or subject to other
sexual abuse" in Section 5 (b) has been priorly defined in the first paragraph of the same provision
as "[a child], whether male or female, who for money, profit, or any other consideration or
due to the coercion or influence of any adult, syndicate or group, indulge[s] in sexual
intercourse or lascivious conduct." Hence, just by switching this phrase with its equivalent
technical definition in the first paragraph, Section 5 (b) may then be construed as follows: "Those
who commit the act of sexual intercourse or lascivious conduct against [a child], whether
male or female, x x x for money, profit, or any other consideration or due to the coercion or
influence of any adult, syndicate or group."

To my mind, this reading equally passes grammatical logic, and most importantly, renders Section 5
(b) consistent with the fundamental intent of the law. Besides, nowhere from the entirety of the law's
other provisions nor the deliberations on the same could one discern that the requirement of a prior
sexual affront on a child exists. Ultimately, despite Section 5 (b)'s ambiguous wording, it should be
remembered that in the final analysis:

The legislative intent is not at all times accurately reflected in the manner in which the resulting law
is couched. Thus, applying a verba legis or strictly literal interpretation of a statute may render it
meaningless and lead to inconvenience, an absurd situation or injustice. To obviate this aberration,
and bearing in mind the principle that the intent or the spirit of the law is the law itself, resort should
be to the rule that the spirit of the law controls its letter. 5

ACCORDINGLY, I vote to DENY the petition. The conviction of petitioner Eduardo Quimvel y Braga
for the crime of Acts of Lasciviousness in relation to Section 5 (b), Article III of Republic Act No. 7610
should be AFFIRMED with MODIFICATION anent the proper penalty as held in the ponencia.6

ESTELA M. PERLAS-BERNABE
Associate Justice

Footnotes

1
Entitled "AN ACT PROVIDING FOR STRONGER DETERRENCE AND SPECIAL
PROTECTION AGAINST CHILD ABUSE, EXPLOITATION AND DISCRIMINATION, AND
FOR OTHER PURPOSES," approved on June 17, 1992.

2
See deliberations on Senate Bill No. 1209 dated April 29, 1991, Records of the Senate, Vol.
IV, No. 111, p. 191.

3
See deliberations on Senate Bill No. 1209 dated April 29, 1991, Records of the Senate, Vol.
IV, No. 111, pp. 191-192.

4
See deliberations on Senate Bill No. 1209 dated April 29, 1991, Records of the Senate, Vol.
IV, No. 111, p. 192.

5
League of Cities of the Philippines v. COMELEC, 623 Phil. 531, 564-565 (2009).

6
See ponencia, pp. 22-23.

The Lawphil Project - Arellano Law Foundation

SEPARATE CONCURRING OPINION

PERALTA, J.:

I agree with the ponencia in affirming the conviction of petitioner Eduardo Quimvel y Braga for Acts
of Lasciviousness under Article 336 of the Revised Penal Code (RPC), in relation to Section
5(b), 1 Article III of Republic Act (R.A.) No. 7610,2 and I have decided to expound more on the
applicable laws and imposable penalties for acts of lasciviousness committed against minors, as
reference for future legislation and for guidance and information purposes.

Eduardo Quimvel y Braga was charged with the crime of acts of lasciviousness in an Information,
which reads:

That on or about 8 o'clock in the evening of July 18, 2007 at Palpas, Ligao City, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, with lewd and unchaste
design, through force and intimidation, did then and there, willfully, unlawfully and feloniously, insert
his hand inside the panty of AAA, a minor of 7 years old and mash her vagina, against her will and
consent, to her damage and prejudice.

ACTS CONTRARY TO LAW.

The Regional Trial Court (RTC) of Ligao City, Albay, Branch 11, found Quimvel guilty beyond
reasonable doubt of the crime of Acts of Lasciviousness in relation to Section 5(b), Article III of R.A.
7610.3 The dispositive portion of the RTC decision reads:

WHEREFORE, in the light of the foregoing, judgment is hereby rendered:

1. Finding the accused, EDUARDO QUIMVEL Y BRAGA a.k.a. EDWARD/EDUARDO

QUIMVEL Y BRAGA, GUILTY beyond reasonable doubt of the crime of Acts of
Lasciviousness in relation to Section 5 (b ), Article III of R.A. 7610 and hereby sentenced him
to suffer the penalty of imprisonment from FOURTEEN (14) YEARS, EIGHT (8) MONTHS
and ONE (1) day of Reclusion Temporal in its medium period as minimum to FIFTEEN (15)
YEARS, SIX (6) MONTHS and NINETEEN (19) DAYS of Reclusion Temporal in its medium
period as maximum; and

2. ORDERING the accused, EDUARDO QUIMVEL Y BRAGA a.k.a .. EDWARD/EDUARDO

QUIMVEL Y BRAGA shall be credited with the period of his preventive detention pursuant to
Article 29 of the Revised Penal Code.

No costs.

SO ORDERED.

On appeal, the Court of Appeals (CA) affirmed the RTC Decision with modification as to the
damages, civil indemnity and interest thereon, 4 to wit:
WHEREFORE, the Decision dated 23 January 2013 of the Regional Trial Court, Fifth Judicial
Region, Ligao City Branch 11, in Criminal Case No. 5530, is hereby MODIFIED in that the accused-
appellant EDUARDO QUIMVEL y BRAGA also known as EDUARDO/EDWARD QUIMVEL y
BRAGA is ORDERED TO PAY THE VICTIM, AAA moral damages, exemplary damages and fine in
the amount of P15,000.00 each as well as P20,000.00 as civil indemnity. All damages shall earn
interest at the rate of six percent (6%) per annum from the date of finality of judgment.

SO ORDERED.

Hence, the present petition for review on certiorari under Rule 45, raising the following issues:

I.

The CA erred in affirming the decisions of the trial court as the prosecution was not able to prove
that he is guilty of the crime charged beyond reasonable doubt.

II.

Assuming without admitting that he is guilty hereof, he may be convicted only of Acts of
Lasciviousness under Art. 336 of the Revised Penal Code (RPC) and not in relation to Section 5 of
R.A. 7610.

I concur with the ponencia in affirming the CA' s decision finding Quimvel gμilty beyond reasonable
doubt of the crime of violation of Section S(b), Article III of R.A. 7610.

Acts of lasciviousness under Article 336 of the RPC, together with child prostitution and rape, is dealt
with under Section 5(b) of Article III of R.A. 7610 which reads:

ARTICLE III

Child Prostitution and Other Sexual Abuse

SECTION 5. Child Prostitution and Other Sexual Abuse. - Children, whether male or female, who for
money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate
or group, indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited in
prostitution and other sexual abuse.

The penalty of reclusion temporal in its medium period to reclusion perpetua shall be
imposed upon the following:

(a) Those who engage in or promote, facilitate or induce child prostitution which include, but are not
limited to, the following:

(1) Acting as a procurer of a child prostitute;

(2) Inducing a person to be a client of a child prostitute by means of written or oral

advertisements or other similar means;

(3) Taking advantage of influence or relationship to procure a child as prostitute;

 (4) Threatening or using violence towards a child to engage him as a prostitute; or

(5) Giving monetary consideration, goods or other pecuniary benefit to a child with
intent to engage such child in prostitution.

(b) Those who commit the act of sexual intercourse or lascivious conduct with a child
exploited in prostitution or subjected to other sexual abuse; Provided, That when the victim
is under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335,
paragraph 3, for rape and Article 336 of Act No. 3815, as amended, the Revised Penal Code,
for rape or lascivious conduct, as the case may be: Provided, That the penalty for lascivious
conduct when the victim is under twelve (12) years of age shall be reclusion temporal in its
medium period; and

(c) Those who derive profit or advantage therefrom, whether as manager or owner of the
establishment where the prostitution takes place, or of the sauna, disco, bar, resort, place of
entertainment or establishment serving as a cover or which engages in prostitution in addition to the
activity for which the license has been issued to said establishment. 5

In a charge for acts of lasciviousness under Article 336 of the RPC in relation to R.A. 7610, there
is no need to allege that the lascivious conduct was committed with a "child exploited in prostitution
or subject to other sexual abuse." Such allegation is pertinent only when the charge is for child
prostitution or violation of the first clause of Section 5(b ), Article III of R.A.
7610 against "those who commit the act of sexual intercourse or lascivious conduct with a child
exploited in prostitution or subjected to other sexual abuse," i.e., the customer or patron.

Violation of the first clause of Section 5(b), Article III of R.A. 7610 is separate and distinct from acts
of lasciviousness under Article 336 of the RPC. Aside from being dissimilar in the sense that the
former is an offense under special law, while the latter is a felony under the RPC, they also have
different elements. On the one hand, the elements of violation of the first clause of Section 5(b) are:
(1) accused commits the act of sexual intercourse or lascivious conduct; (2) the act is performed with
a child exploited in prostitution or subjected to other sexual abuse; and (3) the child, whether male or
female, is below 18 years of age. On the other hand, the elements of acts of lasciviousness under
Article 336 are: (1) that the offender commits any act of lasciviousness or lewdness; (2) that it is
done under any of the following circumstances: (a) by using force or intimidation; or (b) when the
offended party is deprived of reason or otherwise unconscious; or (c) When the offended party is
under 12 years of age; and (3) that the offended party is another person of either sex. Thus, the
allegation that the child be "exploited under prostitution or subjected to other sexual abuse," need
not be alleged in the information for acts of lasciviousness simply because it is not one of the
elements of such crime as defined by Article 336 of the RPC.

Moreover, while the first clause of Section 5(b), Article III of R.A. 7610 is silent with respect to the
age of the victim, Section 3, Article I thereof defines "children" as those below eighteen (18) years of
age or those over but are unable to fully take care of themselves or protect themselves from abuse,
neglect, cruelty, exploitation or discrimination because of a physical or mental disability. Notably, two
provisos succeeding the first clause of Section 5(b) explicitly state a qualification that when the
victims of lascivious conduct is under 12 years of age, the perpetrator shall be (1) prosecuted
under Article 336 of the RPC, and (2) the penalty shall be , reclusion temporal in its medium
period. It is a basic rule in statutory construction that the office of the proviso qualifies or modifies
only the phrase immediately preceding it or restrains of limits the generality of the clause that it
immediately follows. A proviso is to be construed with reference to the immediately preceding part of
the provisions, to which it is attached, and not to the statute itself or the other sections
thereof.6 Accordingly, this case falls under the qualifying provisos of Section 5(b), Article III of R.A.
7610 because the allegations in the information make out a case for acts of lasciviousness, as
defined under Article 336 of the RPC, and the victim is under 12 years of age:

That on or about 8 o'clock in the evening of July 18, 2007 at Palpas, Ligao City, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, with lewd and
unchaste design, through force and intimidation, did then and there, willfully, unlawfully and
feloniously, insert his hand inside the panty of AAA, a minor of 7 years old and mash her
vagina, against her will and consent, to her damage and prejudice.

ACTS CONTRARY TO LAW.7

Quimvel should therefore prosecuted under Article 336 of the RPC, and the indeterminate sentence
should be computed based on the imposable penalty of reclusion temporal in its medium period,
pursuant to Section S(b ), Article III of R.A. 7610.

To be sure, Quimvel cannot be merely penalized with prision correccional for acts of lasciviousness
under Article 336 of the RPC when the victim is a child because it is contrary to the letter and intent
of R.A. 7610 to provide for stronger deterrence and special protection against child abuse,
exploitation and discrimination. This legislative intent is expressed under Section 10, Article VI of
R.A. 7610 which, among others, increased by one degree the penalty for certain crimes when the
victim is a child under 12 years of age, to wit:

Section 10. Other Acts of Neglect, Abuse, Cruelty or Exploitation and Other Conditions Prejudicial to
the Child's Development. –

xxxx

For purposes of this Act, the penalty for the commission of acts punishable under Articles 248, 249,
262, paragraph 2, and 263, paragraph 1 of Act No. 3815, as amended, for the crimes of murder,
homicide, other intentional mutilation, and serious physical injuries, respectively, shall be reclusion
perpetua when the victim is under twelve (12) years of age. The penalty for the commission of
acts punishable under Article 337, 339, 340.and 341 of Act No. 3815, as amended, the Revised
Penal Code, for the crimes of qualified seduction, acts of lasciviousness with consent of the
offended party, corruption of minors, and white slave trade, respectively, shall be one (1)
degree higher than that imposed by law when the victim is under twelve (12) years of age. 8

To impose upon Quimvel an indeterminate sentence computed from the penalty of prisi6n
correccional under Article 336 of the RPC would defeat the purpose of R.A. 7610 to provide for
stronger deterrence and special protection against child abuse, exploitation and discrimination. First,
the imposition of such penalty would erase the substantial distinction between acts of lasciviousness
under Article 336 and acts of lasciviousness with consent of the offended party under Article
339,9 which used to be punishable by arresto mayor, and now by prisi6n correccional pursuant to
Section 10, Article VI of R.A. 7610. Second, it would inordinately put on equal footing the acts of
lasciviousness committed against a child and the same crime committed against an adult, because
the imposable penalty for both would still be prision correccional, save for the aggravating
circumstance of minority that may be considered against the perpetrator. Third, it would make acts
of lasciviousness against a child an offense a probationable offense, pursuant to the Probation Law
of 1976,10 as amended by R.A. 10707. 11

Indeed, while the foregoing implications are favorable to the accused, they are contrary to the State
policy and principles under R.A. 7610 and the Constitution on the special protection to children.
Based on the the legal definitions of "child abuse," it is also my view that there is no need to allege
that the lascivious conduct be committed "with a child exploited in other prostitution" or with
habituality, before a person may be held liable for acts of lasciviousness under Article 336 of the
RPC, in relation to Section 5(b), Article III of R.A. 7610.

Section 3, Article I of R.A. 7610 states that "child abuse" refers to the maltreatment,
whether habitual or not, of the child which includes any of the following:

(1) Psychological and physical abuse, neglect, cruelty, sexual abuse and emotional
maltreatment;

(2) Any act by deeds or words which debases, degrades or demeans the intrinsic worth and
dignity of a child as a human being;

(3) Unreasonable deprivation of his basic needs for survival, such as food and shelter; or

(4) Failure to immediately give medical attention to an injured child resulting in serious
impairment of his growth and development or in his permanent incapacity or death.

Section 5, Article III of R.A. 7610 deems to be "children exploited in prostitution and other sexual
abuse" those children, whether male or female, who indulge in sexual intercourse or lascivious
conduct either (1) for money, profit or any other consideration; or (2) due to coercion or influence of
any adult, syndicate or group.

Corollarily, the Rules and Regulations on the Reporting and Investigation of Child Abuse Cases
define the terms "child abuse," "sexual abuse", and "lascivious conduct" as follows:

Section 2. Definition of Terms. - As used in these Rules, unless the context requires otherwise –

xxxx

b) "Childabuse" refers to the infliction of physical or psychological injury, cruelty to, or neglect,
sexual abuse or exploitation of a child;

xxxx

g) "Sexualabuse" includes the employment, use, persuasion, inducement, enticement or coercion of

a child to engage in, or assist another person to engage in, sexual intercourse or lascivious
conduct or the molestation, prostitution, or incest with children;

xxxx

h) "Lascivious conduct" means the intentional touching, either directly or through clothing, of the
genitalia, anus, groin, breast, inner thigh, or buttocks, or the introduction of any object into the
genitalia, anus or mouth, of any person, whether of the same or opposite sex, with an intent to
abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person, bestiality,
masturbation, lascivious exhibition of the genitals or pubic area of a person; xxx12

From the foregoing definitions, it can be deduced that a single lascivious conduct is enough to
penalize Quimvel for acts of lasciviousness under Article 336 of the RPC, in relation to R.A. 7610.
These definitions negate the necessity to allege in the information a separate and distinct act of
sexual abuse apart from the lascivious act complained of. R.A. 7610 does not merely cover a
situation wherein a child is being abused for profit as in prostitution, but also one wherein a child
engages in any lascivious conduct through coercion or intimidation, even if such sexual abuse
occurred only once, as in Quimvel's case. Also, based on the definitions above, prostitution - which
involves an element of habituality - is just one of the several other forms of sexual abuses. Thus,
neither habituality nor the fact that the child is exploited in prostitution, is required to be alleged in the
information for acts of lasciviousness because Article 336 of the RPC does not so provide.

In the same vein, the title of Article III of R.A. 7610 itself is clear that the subsequent provisions
thereof pertain not only on the subject of "child prostitution" but also on "other sexual abuse." Under
Section 5 thereof, those considered to be under child prostitution are "children, whether male or
female, who for money, profit, or any other consideration" "indulge in sexual intercourse or lascivious
conduct" and those that do not fall under that category are those children, who, "due to the coercion
or influence of any adult, syndicate or group" "indulge in sexual intercourse or lascivious conduct."
This case falls under the second scenario where no money, profit or any other consideration was
involved.

To construe "other sexual abuse" as referring to any other sexual abuse other than the acts of
lasciviousness complained of is wrong. The law did not use such phrase in order to cover other
forms of sexual abuse that a child might have previously experienced, other than being exploited in
prostitution for profit, or for any other consideration. Instead, the law clearly distinguishes those
children who indulged in sexual intercourse or lascivious

conduct for money, profit, or any other consideration, from those children who, without money, profit,
or any other consideration, had sexual intercourse or lascivious conduct due to the coercion or
influence of any adult, syndicate or group. This is further bolstered by the use of the disjunctive word
"or" in separating the two contexts contemplated in the law. Thus, it is erroneous to interpret that
R.A. 7610 contemplates situations wherein a child, who was already subjected to prostitution or
other sexual abuse, is again subjected to another abuse or lascivious conduct. Note that in the
definition of "child abuse," the phrase "whether habitual or not" is used to describe the frequency
upon which a maltreatment can be considered as an abuse. Thus, a single act of abuse is enough
for a perpetrator to be considered. as having violated the law. To interpret it otherwise would lead to
an absurdity and ambiguity of the law.

In Olivarez vs. Court of Appeals, 13 the Court held that a child is deemed subjected to other sexual
abuse when the child indulges in lascivious "conduct under the coercion or influence of any adult.
The Court found that the 16-year old victim in that case was sexually abused because she was
coerced or intimidated by petitioner to indulge in a lascivious conduct. According to the Court, it is
inconsequential that the sexual abuse occurred only once because, as expressly provided in
Section 3 (b) of R.A. 7610, the abuse may be habitual or not. It also observed that Article III of R.A.
7610 is captioned as "Child Prostitution and Other Sexual Abuse" because Congress really intended
to cover a situation where the minor may have been coerced or intimidated into lascivious conduct,
not necessarily for money or profit, hence, the law covers not only child prostitution but also other
forms of sexual abuse. In support of its ruling in Olivarez, the Court cited Peop(e v. Larin14 which
was restated in Amployo v. People, 15 thus:

A child is deemed exploited in prostitution or subjected to other sexual abuse, when the child
indulges in sexual intercourse or lascivious conduct (a) for money, profit, or any other
consideration; or (b) under the coercion or influence of any adult, syndicate or group. x x x.

It must be noted that the law covers not only a situation in which a child is abused for profit, but also
one in which a child, through coercion or intimidation, engages in lascivious conduct. 16
Associate Justice Antonio T. Carpio dissented in Olivarez where he pointed out that the second
element of acts of lasciviousness, Section 5, Article III of R.A. 7610 requires that the accused
performs on the child a lascivious conduct separate and different from the child's exploitation m
prostitution or subject to other sexual abuse.

However, in Garingarao vs People, 17 the court, in a Decision18 penned by Justice Carpio, affirmed
the conviction of petitioner for acts of lasciviousness in relation to R.A. 7610 in an Information which
reads:

That on or about the 29th day of October 2003, at Virgen Milagrosa University Hospital, San Carlos
City, Pangasinan, and within the jurisdiction of this Honorable Court, the above-named accused, with
lewd designs, did then and there, willfully, unlawfully and feloniously touched the breast of AAA, 16
years of age, touched her genitalia, and inserted his finger into her vagina, to the damage and
prejudice of said AAA who suffered psychological and emotional disturbance, anxiety, sleeplessness
and humiliation.

Contrary to Article 336 of the Revised Penal Code in relation to RA 7610.

Citing Olivarez, the Court held in Garingarao that petitioner is liable for acts of lasciviousness in
relation to R.A. 7610 even if the crime occurred only once:

The Court has ruled that a child is deemed subject to other sexual abuse when the child is the victim
of lascivious conduct under the coercion or influence of any adult. In lascivious conduct under the
coercion or influence of any adult, there must be some form of compulsion equivalent to intimidation
which subdues the free exercise of the offended party's free will. In this case, Garingarao coerced
AAA into submitting to his lascivious acts by pretending that he was examining her.

Garingarao insists that, assuming that the testimonies of the prosecution witnesses were true, he
should not be convicted of violation of RA 7610 because the incident happened only once.
Garingarao alleges that the single incident would not suffice to hold him liable under RA 7610.

Garingarao's argument has no legal basis.

The Court has already ruled that it is inconsequential that sexual abuse under RA 7610
occurred only once. Section 3 (b) of RA 7610 provides that the abuse may be habitual or not.
Hence, the fact that the offense occurred only once is enou9h to hold Garingarao liable for
acts of lasciviousness under RA 7610. 19

To be sure, if and when there is an absurdity in the interpretation of the provisions of the law, the
proper recourse is to refer to the objectives or the declaration of state policy and principles under
Section 2 of the R.A. 7610, as well as Section 3(2), Article XV of the 1987 Constitution:

[R.A. 7610] Sec. 2. Declaration of State Policy and Principles. - It is hereby declared to be the policy
of the State to provide special protection to children from all forms of abuse, neglect, cruelty,
exploitation and discrimination, and other conditions prejudicial to their
development including child labor and its worst forms; provide sanctions for their commission and
carry out a program for prevention and deterrence of and crisis intervention in situations of child
abuse, exploitation and discrimination. The State shall intervene on behalf of the child when the
parent, guardian, teacher or person having care or custody of the child fails or is unable to protect
the child against abuse, exploitation and discrimination or when such acts against the child are
committed by the said parent, guardian, teacher or person having care and custody of the same.
It shall be the policy of the State to protect and rehabilitate children gravely threatened or
endangered by circumstances which affect or will affect their survival and normal development and
over which they have no control.

The best interests of children shall be the paramount consideration in all actions concerning them,
whether undertaken by public or private social welfare institutions, courts of law, administrative
authorities, and legislative bodies, consistent with the principle of First Call for Children as
enunciated in the United Nations Convention on the Rights of the Child. Every effort shall be exerted
to promote the welfare of children and enhance their opportunities foe a useful and happy life.
[Emphasis added]

[Article XV 1987 Constitution] Section 3. The State shall defend:

Xxx

(2) The right of children to assistance, including proper care and nutrition, and special protection
from all forms of neglect, abuse, cruelty, exploitation, and other conditions prejudicial to their
development. 20

Clearly, the objective of the law, more so the Constitution is to provide a special type of protection for
children from all types of abuse. Hence, it can be rightly inferred that the title used in Article III,
Section 5, "Child Prostitution and Other Sexual Abuse" does not mean that it is only applicable to
children used as prostitutes as the main offense and the other sexual abuses as additional offenses,
the absence of the former rendering inapplicable the imposition of the penalty provided under R.A.
7610 on the other sexual abuses committed by the offenders on the children concerned.

Even if the remaining issue in the en bane decision in Dimakuta v. People[[21]]was whether or not
an accused is disqualified to apply for probation ·even if such appeal resulted in the reduction of the
non-probationable penalty imposed to a probationable one, the majority has nonetheless discussed
at length the matters of sexual abuse under R.A. 7610 and acts of lasciviousness under the RPC,
thus:

Petitioner was charged and convicted by the trial court with violation of Section 5 (b), Article III of
R.A. No. 7610 based on the complaint of a sixteen (16)-year-old girl for allegedly molesting her by
touching her breast and vagina while she was sleeping.

x x xx

The elements of sexual abuse are as follows:

1. The accused commits the act of sexual intercourse or lascivious conduct.

2. The said act is performed with a child exploited in prostitution or subjected to sexual
abuse.

3. The child, whether male or female, is below 18 years of age.

Under Section 5, Article III of R.A. No. 7610, a child is deemed subjected to other sexual abuse
when he or she indulges in lascivious conduct under the coercion or influence of any
adult. This statutory provision must be distinguished from Acts of Lasciviousness under Articles 336
and 339 of the RPC. As defined in Article 336 of the RPC, Acts of Lasciviousness has the following
elements:

(1) That the offender commits any act of lasciviousness or lewdness;

(2) That it is done under any of the following circumstances:

a. By using force or intimidation; or

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

c. When the offended party is under 12 years of age; and

(3) That the offended party is another person of either sex.

Article 339 of the RPC likewise punishes acts of lasciviousness committed with the consent of the
offended party if done by the same persons and under the same circumstances mentioned in
Articles 337 and 338 of the RPC, to wit:

1. if committed against a virgin over twelve years and under eighteen years of age by any
person in public authority, priest, home-servant, domestic, guardian, teacher, or any person
who, in any capacity, shall be entrusted with the education or custody of the woman; or

2. if committed by means of deceit against a woman who is single or a widow of good

reputation, over twelve but under eighteen years of age.

Therefore, if the victim of the lascivious acts or conduct is over 12 years· of age and under eighteen
(18) years of age, the accused shall be liable for:

1. Other acts of lasciviousness under Art. 339 of the RPC, where the victim is a virgin and
consents to the lascivious acts through abuse of confidence or when the victim is single or a
widow of good reputation and consents to the lascivious acts through deceit, or;

2. Acts of lasciviousness under Art. 336 if the act of lasciviousness is not covered by
lascivious conduct as defined in R.A. No. 7610. In case the acts of lasciviousness is covered
by lascivious conduct under R.A. No. 7610 and it is done through coercion or influence,
which establishes absence or lack of consent, then Art. 336 of the RPC is no longer
applicable

3. Section 5(b), Article III of R.A. No. 7610, where there was no consent on the part of
the victim to the lascivious conduct, which was done through the employment of
coercion or influence. The offender may likewise be liable for sexual abuse under R.A.
No. 7610 if the victim is at least eighteen (18) years and she is unable to fully take care
of herself or protect herself from abuse, neglect, cruelty, exploitation or discrimination
because of a physical or mental disability or condition.

Article 226-A, paragraph 2 of the RPC, punishes inserting of the penis into another person's mouth
or anal orifice, or any instrument or object, into the genital or anal orifice of another person if the
victim did not consent either it was done through force, threat or intimidation; or when the victim is
deprived of reason or is otherwise unconscious; or by means of fraudulent machination or grave
abuse of authority as sexual assault as a form of rape. However, in instances where the lascivious
conduct is covered by the definition under R.A. No. 7610, where the penalty is reclusion
temporal medium, and the act is likewise covered by sexual assault under Article 266-A, paragraph
2 of the RPC, which is punishable by prisi6n mayor, the offender should be liable for violation of
Section 5 (b), Article III of R.A. No. 7610, where the law provides for the higher penalty of reclusion
temporal medium, if the offended party is a child victim. But if the victim is at least eighteen (18)
years of age, the offender should be liable under Art. 266-A, par. 2 of the RPC and not R.A. No.
7610, unless the victim is at least eighteen (18) years and she is unable

to fully take care of herself or protect herself from abuse, neglect, cruelty, exploitation or
discrimination because of a physical or mental disability or condition, in which case, the offender
may still be held liable for sexual abuse under R.A. No. 7610.

There could be no other conclusion, a child is presumed by law to be incapable of giving rational
consent to any lascivious act, taking into account the constitutionally enshrined State policy to
promote the physical, moral, spiritual, intellectual and social well-being of the youth, as well as, in
harmony with the foremost consideration of the child's best interests in all actions concerning him or
her. This is equally consistent with the declared policy of the State to provide .special protection
to children from all forms of abuse, neglect, cruelty, exploitation and discrimination, and
other conditions prejudicial to their development; provide sanctions for their commission and
carry out a program for prevention and deterrence of and crisis intervention in situations of child
abuse, exploitation, and discrimination. Besides, if it was the intention of the framers of the law
to make child offenders liable only of Article 266-A of the RPC, which provides for a lower
penalty than R.A. No. 7610, the law could have expressly made such statements.

As correctly found by the trial court, all the elements of sexual abuse under Section 5 (b), Article III
of R.A. No. 7610 are present in the case at bar.

First, petitioner's lewd advances of touching the breasts and vagina of his hapless victim
constitute lascivious conduct as defined in Section 32, Article XIII of the Implementing Rules and
Regulations (IRR) of R.A. No. 7610:

[T]he intentional touching, either directly or through clothing, of the genitalia, anus, groin, breast,
inner thigh, or buttocks, or the introduction of any object into the genitalia, anus or mouth, of any
person, whether of the same or opposite sex, with an intent to abuse, humiliate, harass, degrade, or
arouse or gratify the sexual desire of any person, bestiality, masturbation, lascivious exhibition of the
genitals or pubic area of a person.

Second, petitioner clearly has moral ascendancy over the minor victim not just because of his
relative seniority but more importantly due to the presumed presence of mutual trust and confidence
between them by virtue of an existing employment relationship, AAA being a domestic helper in
petitioner's household. Notably, a child is considered as sexually abused under Section 5 (b) of R.A.
No. 7610 when he or she is subjected to lascivious conduct under the coercion or influence of any
adult. Intimidation need not necessarily be irresistible. It is sufficient that some compulsion
equivalent to intimidation annuls or subdues the free exercise of the will of the offended party. The
law does not require physical violence on the person of the victim; moral coercion or ascendancy is
sufficient. On this point, Caballo v. People explicated:

As it is presently worded, Section 5, Article III of RA 7610 provides that when a child indulges in
sexual intercourse or any lascivious conduct due to the coercion or influence of any adult, the child is
deemed to be a "child exploited in prostitution and other sexual abuse." In this manner, the law is
able to act as an effective deterrent to quell all forms of abuse, neglect, cruelty, exploitation and
discrimination against children, prejudicial as they are to their development.

In this relation, case law further clarifies that sexual intercourse or lascivious conduct under the
coercion or influence of any adult exists when there is some form of compulsion equivalent to
intimidation which subdues the free exercise of the offended party's free will. Corollary thereto,
Section 2(g) of the Rules on Child Abuse Cases conveys that sexual abuse involves the element of
influence which manifests in a variety of forms. It is defined as:

The employment, use, persuasion, inducement, enticement or coercion of a child to engage in, or
assist another person to engage in, sexual intercourse or lascivious conduct or the molestation,
prostitution, or incest with children.

To note, the term "influence" means the "improper use of power or trust in any way that deprives a
person of free will and substitutes another's objective." Meanwhile, "coercion" is the "improper use of
... power to compel another to submit to the wishes of one who wields it."

Finally, the victim is 16 years of age at the time of the commission of the offense. Under Section 3
(a) of R.A. No. 7610, "children" refers to "persons below eighteen (18) years of age or those over but
unable to fully take care of themselves or protect themselves from abuse, neglect, cruelty,
exploitation or discrimination because of a physical or mental disability or condition. 22

In view of the above discussion in Dimakuta v. People, 23 to which the ponencia appears to
subscribe, and considering that all the elements of acts of lasciviousness under Article 336 of the
RPC, in relation to Section 5(b ), Article III of R.A. 7610,24 have been proven beyond reasonable
doubt, the CA correctly upheld the R TC in convicting Quimvel of the said crime.

Moreover, the application of the provisions of R.A. 7610, although not specifically stated in the
Information, does not violate the accused's right to be informed of the nature and cause of the
accusation against him. This is because all the elements of the crime of "sexual abuse" 25 as
contemplated in Section 5, Article III of R.A. 7610, as well as the age of minority of the victim, are all
sufficiently alleged in the same Information in this wise: "the above-named accused [Quimvel], with
lewd and unchaste design, through force and intimidation, did then and there, willfully,
unlawfully, and feloniously, insert his hand inside the panty of [AAA], a minor of 7 years old and
mash her vagina, against her will and consent, to her damage and prejudice.26

It bears emphasis that since Section 5, Article III of R.A. 7610 already deems to be "children
exploited in prostitution and other sexual abuse" those children, whether male or female, who
indulge in sexual intercourse or lascivious conduct either (1) for money, profit or any other
consideration; or (2) due to coercion or influence of any adult, syndicate or group, the afore-
quoted allegation that the lascivious conduct was done "through force and intimidation," suffices to
inform the accused of the second element of sexual abuse.

Having in mind the State policies and principles behind R.A. 7610 (Special Protection of Children
Against Abuse, Exploitation, and Discrimination Act) and R.A. 835327 (Anti-Rape Law of 1997), as
well as the statutory construction rules that penal laws should be strictly construed against the state
and liberally in favor of the accused, and that every law should be construed in such a way that it will
harmonize with existing laws on the same subject matter, I submit that the following are the
applicable laws and imposable penalties for acts of lasciviousness committed against a child28 under
Article 336 of the RPC, in relation to R.A. 7610:
 1. Under 12 years old - Section 5(b), Article III of R.A. 7610, in relation to .Article 336 of the
RPC, as amended by R.A. 8353, applies and the imposable penalty is reclusion temporal in
its medium period, instead of prisi6n correccional. In People v. Fragante, 29 lmbo v. People of
the Philippines, 30 and People of the Philippines v. Santos, 31 the accused were convicted of
acts of lasciviousness committed against victims under 12 years old, and were penalized
under Section 5(b), Article III of R.A. 7 610, and not under Article 336 of the RPC, as
amended.

2. 12 years old and below 18, or 18 or older under special circumstances under
Section 3(a) of R.A. 761032 - Section 5(b), Article III of R.A. 7610 in relation to Article 336 of
the RPC, as amended, applies and the penalty is reclusion temporal in its medium period
to reclusion perpetua. This is because the proviso under Section 5(b) apply only if the
victim is under 12 years old, but silent as to those 12 years old and below 18; hence, the
main clause thereof still applies in the absence of showing that the legislature intended a
wider scope to include those belonging to the latter age bracket. The said penalty was
applied in People of the Philippines v. Bacus33 ahd People of the Philippines v.
Baraga34 where the accused were convicted of acts of lasciviousness committed against
victims 12 years old and below 18, and were penalized under Section 5(b ), Article III of R.A.
7610. But, if the acts of lasciviousness is not covered by lascivious conduct as defined in
R.A. 7 610, such as when the victim is 18 years old and above, acts of lasciviousness under
Article 336 of the RPC applies and the penalty is prisi6n correccional.35

Curiously, despite the clear intent of R.A. 7 610 to provide for stronger deterrence and special
protection against child abuse, the penalty [reclusion temporal medium] when the victim is under 12
years old is lower compared to the pena,lty [reclusion temporal medium to reclusion perpetua] when
the victim is 12 years old and below 18. The same holds true if the crime of acts of lasciviousness is
attended by an aggravating circumstance or committed by persons under Section 31,36 Article XII of
R.A. 7610, in which case, the imposable penalty is reclusion perpetua. In contrast, when no
mitigating or aggravating circumstance attended the crime of acts of lasciviousness, the penalty
therefor when committed against a child under 12 years old is aptly higher than the penalty when the
child is 12 years old and below 18. This is because, applying the Indeterminate Sentence Law, the
minimum term in the case of the younger victims shall be taken from reclusion
temporal minimum,37 whereas as the minimum term in the ·case of the older victims shall be taken
from prisi6n mayor medium to reclusion temporal minimum. 38 It is a basic rule in statutory
construction that what courts may correct to reflect the real and apparent intention of the legislature
are only those which are clearly clerical errors or obvious mistakes, omissions, and misprints,39 but
not those due to oversight, as shown by a review of extraneous circumstances, where the law is
clear, and to correct it would be to change the meaning of the law.40 To my mind, a corrective
legislation is the proper remedy to address the noted incongruent penalties for acts of lasciviousness
committed against a child.

Too, it bears emphasis that R.A. 8353 did not expressly repeal Article 336 of the RPC, as amended.
Section 4 of R.A. 8353 only states that Article 336 of the RPC, as amended, and all laws, rules and
regulations inconsistent with or contrary to the provisions thereof are deemed amended, modified or
repealed, accordingly. There is nothing inconsistent between the provisions of Article 336 of the
RPC, as amended, and R.A. 8353, except in sexual assault as a form of rape. Hence, when the
lascivious act is not covered by R.A. 8353, then Article 336 of the RPC is applicable, except when
the lascivious conduct is covered by R.A. 7610.

In fact, R.A. 8353 only modified Article. 336 of the RPC, as follows: (1) by carrying over to acts of
lasciviousness the additional circumstances41 applicable to rape, viz.: threat and fraudulent
machinations or grave abuse of authority; (2) by retaining the circumstance that the offended party is
under 12 years old, and including dementia as another one, in order for acts of lasciviousness to be
considered as statutory, wherein evidence of force or intimidation is immaterial because the
offended party who is under 12 years old or demented, is presumed incapable of giving rational
consent; and (3) by removing from the scope of acts of lasciviousness and placing under the crime
of rape by sexual assault the specific lewd act of inserting the offender's penis into another person's
mouth or anal orifice, or any instrument or object into the genital or anal orifice of another person. In
fine, Article 336 of the RPC, as amended, is still a good law despite the enactment of R.A. 8353 for
there is no irreconcilable inconsistency between their provisions.

Meanwhile, the Court is also not unmindful of the fact that the accused who commits acts of
lasciviousness under Article 336 of the RPC, in relation to Section 5 (b), Article III of R.A. 7610,
suffers the more severe penalty of reclusion temporal in its medium period, than the one who
commits Rape Through Sexual Assault, which is merely punishable by prision mayor. In People v.
Chingh,42 the Court noted that the said fact is undeniably unfair to the child victim, and it was not the
intention of the framers of R.A. 8353 to have disallowed the applicability of R.A. 7610 to sexual
abuses committed to children. The Court held that despite the passage of R.A. 8353, R.A. 7610 is
still good law, which must be applied when the victims are children or those "persons below
eighteen (18) years of age or those over but are unable to fully take care of themselves or protect
themselves from abuse, neglect, cruelty, exploitation or discrimination because of a physical or
mental disability or condition."43

Finally, as the Court stressed in Dimakuta v. People, 44 where the lascivious conduct is covered by
the definition under R.A. 7610 where the penalty is reclusion temporal medium and the said act is
likewise covered by sexual assault under Article 266-A, paragraph 2 of the RPC, which is punishable
by prisi6n mayor, the offender should be liable for violation of Section 5(b), Article III of R.A. 7610,
where the law provides the higher penalty of reclusion temporal medium, if the offended party is a
child. But if the victim is at least eighteen (18) years of age, the offender should be liable under
Article 266-A, par. 2 of the RPC and not R.A. 7610, unless the victim is at least 18 years old and she
is unable to fully take care of herself or protect from herself from abuse, neglect, cruelty, exploitation
or discrimination because of a physical or mental disability or condition, in which case, the offender
may still be held liable of sexual abuse under R.A. 7610. The reason for the foregoing is that, aside
from the affording special protection and stronger deterrence against child abuse, R.A. 7 610 is a
special law which should clearly prevail over R.A. 8353, which is a mere general law amending the
RPC.

DIOSDADO M. PERALTA
Associate Justice