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Republic of the Philippines

Department of Justice
National Prosecution Service
Cabagan, Isabela

_______________________, NO. II-04-INV -___-_____


-versus- FOR:
JOEMEL S. ____________,


Respondent, by counsel, move this Honorable Office for

reconsideration of its resolution dated March 18, 2019, upon the following
consideration and further avers THAT:


The determination of the existence of probable cause lies within the

discretion of the prosecuting officer after conducting a preliminary
investigation in accordance with the guidelines set forth under the Revised
Rules of Criminal Procedure.
Prosecutors however, are not given an unregulated authority to
determine the existence of probable cause. They must abide by the cardinal
rules of justice and fair play.


On April 20, 2019, Respondent received a copy of the Resolution

dated March 18, 2019, issued by the Honorable Office finding probable
cause for the case of Rape against herein respondent. The dispositive
portion of dais resolution read as follows:

“WHEREFORE, in view of the foregoing, it is most

respectfully recommended that an Information for RAPE defined
and penalized under Article 266-A, paragraph 1 of the Revised
Penal Code be filed against the respondent JOEMEL S. ______.”
Pursuant to the Rules on Procedure in The Investigation, Prosecution
and Trial of Criminal Cases, (specifically, Part III, Section 56 thereof),
respondent is given 10 days from the receipt of the resolution, or until April
30, 2019 to file a Motion for Reconsideration;

Therefore, the filing of this Motion for Reconsideration;



Respondent move for the reconsideration of the resolution of the

investigating public prosecutor finding probable cause to charge herein
respondent for crime of rape on the grounds of errors of facts.


Respondent now pleads to the Honorable Office to take a second look

of the facts stated in the complaint-affidavit of the private complainant.

As already stated in the Counter-Affidavit of herein respondent, he

strongly denies the accusations against him for being malicious and falsely
fabricated. Respondent did not take advantage of the complainant by having
a sexual intercourse with her or on several occasions.

It was admitted by the complainant that she is suffering from cognitive

dementia, a disease that impaired the mental capacity of a person. A person
suffering from such disease lacks the recollection of memory. Being that
case, how can the complainants could make an affidavit complaint that is
coherently arranged? Someone made it for her. Assuming that she narrated
her torment to this someone, she cannot totally recall the events and
circumstances. Her narrations could be a product of her fantasy. Since her
narration is lacking, this someone whom she narrated her suffering has the
tendency to fill-up the gaps in order to suit the complaint for rape case.
Then, it creates a doubt as to the truthfulness and veracity of the complaint.

Rape is a loathsome offense that is condemned to the highest degree.

It is a serious accusation 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. The prosecution
is thus task to carefully evaluate the complaint if there exist a probable
cause to indict the respondent of the charged. The respondent now is being
charged of said crime as per resolution of the investigating prosecutor.
There must be a finding of moral certainty of its having been committed in
order to warrant the finding of probable cause. Considering the nature and
the gravity of penalty to be imposed, the investigating prosecutor must see
to it that the complaint-affidavit contained all the elements of the crime of
rape to warrant the finding of probable cause.

The long standing rule is that when an alleged victim of rape says she
was violated, she says in effect all that is necessary to show that rape has
indeed been committed. The prosecution must carefully read the complaint
if all the elements of the crime of rape were present. If the investigating
prosecutor found out the all the elements of the crime are present then
there is probable cause to indict the respondent for the charge, otherwise, it
must fail;

Assuming without admitting and for the sake of arguments, that the
narration of sexual encounter between the complainant and respondent
took place, the same do not constitute the crime of rape.

The provision of the Revised Penal Code particularly Article 266-A

clearly provides that:

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

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

a) Through force, threat, or intimidation;

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


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. xxx”

The elements necessary to sustain a conviction for rape are: (1) the
accused had carnal knowledge of the victim; and (2) said act was
accomplished (a) through the use of force or intimidation, or (b) when the
victim is deprived of reason or otherwise unconscious, or (c) when the
victim is under 12 years of age or is demented.( People vs. Patentes. G.R. No.
190178, February 12, 2014);
On the other hand, the provision of sexual abuse under R.A. No. 7610


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:


(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; xxx

The elements of sexual abuse under Section 5, Article III of Rep. Act
No. 7610 are the following:

(1) The accused commits the act of sexual intercourse or lascivious


(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.

Force refers to constraining power, compulsion; strength directed to

an end. Intimidation is intentional behavior that "would cause a person of
ordinary sensibilities" to fear injury or harm. It is not necessary to prove that
the behavior was so violent as to cause mean terror or that the victim was
actually frightened. Threat refers to a statement of intention to inflict pain,
injury or damage or other hostile action to a person, especially if the person
does not do something in particular.
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.
(People vs. Tionloc, G.R. No. 212193, February 15, 2017)

Based on the allegation of the complaint-affidavit, the elements of

force, intimidation or threat is lacking. Nowhere from the complaint-
affidavit that, force, were threat or intimidation applied by the respondent
against the complainant. The complaint-affidavit states that the respondent
immediately kisses her touch her breast down to her vagina and laid her
down. If there was really force or threat the complainant should have
resisted from the beginning when the respondent begun to kiss her.

The High Court has held in People v. Amogis, 420 Phil. 278, 292 (2001)
that resistance must be manifested and tenacious. A mere attempt to resist
is not the resistance required and expected of a woman defending her
virtue, honor and chastity.

In the complaint–affidavit, there was no showing that the complainant

showed resistance when herein respondent kisses her and touches her
breast down to her vagina. It was only at the time when the respondent
inserted his penis that complainant allegedly showed resistance.

Absence of force, threat or intimidation in the commission of carnal

knowledge, the resolution of the investigating public prosecutor finding
probable cause to indict the respondent for the crime of Rape must fail.

On the other hand, the term “coercion and influence” used under
Section 5 of R.A. No. 7610 is broad enough to cover force and intimidation
under the rape law. Force and intimidation under the Rape Law focus on the
specific force or intimidation employed by the offender while force and
intimidation under R.A. No. 7610 are broader concept under the term
“coercion or influence” of said law. 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 x x x power to compel another to submit to the wishes of
one who wields it”.( People vs. Ejercito, G.R. No. 229861, July 2, 2018)

R.A 7610 defines sexual abuse 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.

Given that the complaint-affidavit lacks the element of force, threat or

intimidation, the recommendation for the Information of Rape against
respondent is improper. However, an Information for violation of Section 5
of R.A. No. 7610 may be possible applying the broad meaning of coercion
and influence under the said law.


IN VIEW OF THE FOREGOING, it is respectfully prayed of this

Honorable Office that the Resolution dated March 18, 2019, recommending
the filing of an Information for Rape against herein respondent be

Other reliefs, just and equitable under the premises are likewise
prayed for.


April 29, 2019, ________, Isabela.



ATTY. F______ M. _________________

Roll No. 71940
PTR No. 10793692/ 01- 03-19/Isabela
IBP Receipt No. 043019/05-17-2018
MCLE Comp. No. V-0005915/10-01-2018
MCLE is valid until April 14, 2022