SECOND DIVISION
G.R. No. 211002, January 21, 2015
RICHARD RICALDE, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.
D E C I S I O N
LEONEN, J.:
Even men can become victims of rape.
Before us is a criminal case for rape through sexual assault committed against a 10-year-old boy. Accused Richard Ricalde (Ricalde) was charged with rape as described under the second paragraph of Section 266-A of the Revised Penal Code, committed “[b]y 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.”1cralawred
This is a Petition for Review2 assailing the Court of Appeals’ August 28, 2013 Decision3 affirming Ricalde’s conviction for rape through sexual assault and January 15, 2014 Resolution4 denying reconsideration.
The Provincial Prosecutor of Biñan, Laguna filed an Information charging Ricalde of rape through sexual assault:chanRoblesvirtualLawlibrary
That on or about January 31, 2002, in the Municipality of Sta. Rosa, Province of Laguna, Philippines, and within the jurisdiction of this Honorable Court, accused Richard Ricalde, prompted with lewd design, did then and there willfully, unlawfully and feloniously inserting [sic] his penis into the anus of XXX who was then ten (10) years of age against his will and consent, to his damage and prejudice.
CONTRARY TO LAW.5cralawred
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WHEREFORE, this Court finds accused Richard Ricalde guilty beyond reasonable doubt of the crime of rape by sexual assault and, accordingly, sentences him to suffer the penalty of imprisonment ranging from four (4) years, two (2) months and one (1) day of prision correccional as minimum, to eight (8) years of prision mayor as maximum. Accused is ordered to pay [XXX] the sums of P50,000.00 as moral damages and P50,000.00 as civil indemnity.
SO ORDERED.cralawlawlibrary33cralawlawlibrary
WHEREFORE, the Decision dated 20 June 2011 of Branch 34 of the Regional Trial Court of Calamba, Laguna, in Crim. Case No. 11906-B, is AFFIRMED but with MODIFICATION as to the award of damages. Accused-appellant RICHARD RICALDE is ordered to pay the victim civil indemnity in the amount of Thirty Thousand (P30,000.00) Pesos and moral damages likewise in the amount of Thirty Thousand (P30,000.00) Pesos, both with interest at the legal rate of six (6%) percent per annum from the date of finality of this judgment until fully paid.35cralawlawlibrary
Article 266–A. Rape; When and How Committed.—Rape is Committed—
1) By a man who shall have carnal knowledge of a woman under any of the following circumstances:
a) Through force, threat, or intimidation;
b) When the offended party is deprived of reason or otherwise unconscious;
c) By means of fraudulent machination or grave abuse of authority; and
d) When the offended party is under twelve (12) years of age or is demented, even though none of the circumstances mentioned above be present;ChanRoblesVirtualawlibrary
2) By any person who, under any of the circumstances mentioned in paragraph 1 hereof, shall commit an act of sexual assault by inserting his penis into another person’s mouth or anal orifice, or any instrument or object, into the genital or anal orifice of another person. (Emphasis supplied)cralawlawlibrary
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Q: That early morning of January 31, 2002, while you were sleeping at your house, do you recall any unusual incident that happened to you? A: Yes sir, I felt something was inserted in my anus. . . . . Q: When you said that you felt something was inserted in your anus, what did you do? A: I felt that he was inserting his penis inside my anus because I was even able to hold his penis. He was also playing with my penis. Q: So when you said he was inserting his penis to your anus and he was even playing with your private part, who is this person you are referring to as “he”? A: Richard, sir.85
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.87cralawlawlibrary
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Q: Now, a while ago you testified that he was sodomized and your findings states [sic] that you did not find any congestion or abrasion, can you explain to this court why you stated in your findings that you did not find any congestion or abrasion? A: Again, based on my examination[,] there were no external signs of recent trauma to the anus. It should be realized that the sphincter, that is the particular portion of the anus controlling the bowel movement, it exhibits a certain flexibility such that it can resist any objected [sic] inserted and that area is very vascular, meaning to say, it is rich in blood supply, such that any injuries would be healed in 24 hours or less than 24 hours, sir?89
SEC. 4. Judgment in case of variance between allegation and proof.—When there is variance between the offense charged in the complaint or information and that proved, and the offense as charged is included in or necessarily includes the offense proved, the accused shall be convicted of the offense proved which is included in the offense charged, or of the offense charged which is included in the offense proved.
SEC. 5. When an offense includes or is included in another.—An offense charged necessarily includes the offense proved when some of the essential elements or ingredients of the former, as alleged in the complaint or information, constitute the latter. And an offense charged is necessarily included in the offense proved, when the essential ingredients of the former continue or form part of those constituting the latter.cralawlawlibrary
It must be emphasized, however, that like in the crime of rape whereby the slightest penetration of the male organ or even its slightest contact with the outer lip or the labia majora of the vagina already consummates the crime, in like manner, if the tongue, in an act of cunnilingus, touches the outer lip of the vagina, the act should also be considered as already consummating the crime of rape through sexual assault, not the crime of acts of lasciviousness. Notwithstanding, in the present case, such logical interpretation could not be applied. It must be pointed out that the victim testified that Ireno only touched her private part and licked it, but did not insert his finger in her vagina. This testimony of the victim, however, is open to various interpretation, since it cannot be identified what specific part of the vagina was defiled by Ireno. Thus, in conformity with the principle that the guilt of an accused must be proven beyond reasonable doubt, the statement cannot be the basis for convicting Ireno with the crime of rape through sexual assault.95 (Emphasis supplied)cralawlawlibrary
The classifications of rape in Article 266-A of the Revised Penal Code are relevant only insofar as these define the manners of commission of rape. However, it does not mean that one manner is less heinous or wrong than the other. Whether rape is committed by nonconsensual carnal knowledge of a woman or by insertion of the penis into the mouth of another person, the damage to the victim’s dignity is incalculable. Child sexual abuse in general has been associated with negative psychological impacts such as trauma, sustained fearfulness, anxiety, self-destructive behavior, emotional pain, impaired sense of self, and interpersonal difficulties. Hence, one experience of sexual abuse should not be trivialized just because it was committed in a relatively unusual manner.
“The prime purpose of [a] criminal action is to punish the offender in order to deter him and others from committing the same or similar offense, to isolate him from society, reform and rehabilitate him or, in general, to maintain social order.” Crimes are punished as retribution so that society would understand that the act punished was wrong.
Imposing different penalties for different manners of committing rape creates a message that one experience of rape is relatively trivial or less serious than another. It attaches different levels of wrongfulness to equally degrading acts. Rape, in whatever manner, is a desecration of a person’s will and body. In terms of penalties, treating one manner of committing rape as greater or less in heinousness than another may be of doubtful constitutionality.
However, the discriminatory treatment of these two acts with the same result was not raised in this case. Acknowledging that every presumption must be accorded in favor of accused in criminal cases, we have no choice but to impose a lesser penalty for rape committed by inserting the penis into the mouth of the victim.98 (Citations omitted)cralawlawlibrary
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 perpertua 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 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 maybe: 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; (Emphasis supplied)cralawlawlibrary
[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.100cralawlawlibrary
It is undisputed that at the time of the commission of the sexual abuse, VVV was ten (10) years old. This calls for the application of R.A. No. 7610, or “The Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act,” which defines sexual abuse of children and prescribes the penalty therefor in Section 5(b), Article III, to wit:
. . . .
In this case, the offended party was ten years old at the time of the commission of the offense. Pursuant to the above-quoted provision of law, Armando was aptly prosecuted under paragraph 2, Article 266-A of the Revised Penal Code, as amended by R.A. No. 8353, for Rape Through Sexual Assault. However, instead of applying the penalty prescribed therein, which is prision mayor, considering that VVV was below 12 years of age, and considering further that Armando’s act of inserting his finger in VVV’s private part undeniably amounted to lascivious conduct, the appropriate imposable penalty should be that provided in Section 5 (b), Article III of R.A. No. 7610, which is reclusion temporal in its medium period.
The Court is not unmindful to the fact that the accused who commits acts of lasciviousness under Article 366, in relation to Section 5 (b), Article III of R.A. No. 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. This is undeniably unfair to the child victim. To be sure, it was not the intention of the framers of R.A. No. 8353 to have disallowed the applicability of R.A. No. 7610 to sexual abuses committed to children. Despite the passage of R.A. No. 8353, R.A. No. 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.”104 (Emphasis supplied, citations omitted)cralawlawlibrary
Endnotes:
* Designated acting member per S.O. No. 1910 dated January 12, 2015.
1 Rep. Act No. 8353 (1997) introduced this new provision.
2Rollo, pp. 10–24. The Petition was filed pursuant to Rule 45 of the Rules of Court.
3 Id. at 31–40. The Decision was penned by Associate Justice Rodil V. Zalameda and concurred in by Presiding Justice Andres B. Reyes, Jr. and Associate Justice Ramon M. Bato, Jr. of the First Division.
4 Id. at 42–43. The Resolution was penned by Associate Justice Rodil V. Zalameda and concurred in by Presiding Justice Andres B. Reyes, Jr. and Associate Justice Ramon M. Bato, Jr.
5 Id. at 32 and 54.
6 Id.
7 The fictitious initials “XXX” represent the victim-survivor’s real name. In People v. Cabalquinto (533 Phil. 703 (2006) [Per J. Tinga , En Banc]), this court discussed the need to withhold the victim’s real name and other information that would compromise the victim’s identity, applying the confidentiality provisions of: (1) Republic Act No. 7610 (Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act and its implementing rules; (2) Republic Act No. 9262 (Anti-Violence Against Women and Their Children Act of 2004) and its implementing rules; and (3) this court’s October 19, 2004 Resolution in A.M. No. 04-10-11-SC (Rule on Violence Against Women and their Children).
8 Id. at 32 and 55.
9Rollo, pp. 33 and 55.
10 Id. at 20.
11 Id. at 12.
12 Id. at 33 and 55.
13 Id.
14 Id. at 55.
15 Id.
16 Id. at 33 and 55.
17 Id. at 33.
18 Id. at 33 and 55.
19 Id.
20 Id.
21 Id. at 33.
22 Id. at 55. Dr. Camarillo examined XXX at the Regional Crime Laboratory in Camp Vicente Lim, Calamba, Laguna.
23 Id. at 33 and 57.
24 Id. at 33.
25 Id. at 33 and 55.
26 Id. at 34.
27 Id. at 34 and 57.
28 Id.
29 Id. at 34 and 58.
30 Id. at 33 and 55.
31 Id. at 34.
32 Id. at 54–64. The Decision was penned by Presiding Judge Wilhelmina B. Jorge-Wagan, Branch 34, Regional Trial Court, Calamba, Laguna.
33 Id. at 64.
34 Id. at 31–40.
35 Id. at 39–40.
36 Id. at 23.
37 Id. at 16.
38 Id.
39 Id. at 17, quoting Bank of the Philippine Islands v. Reyes, et al., 568 Phil. 188, 204 (2008) [Per J. Austria-Martinez, Third Division].
40 Id. at 17.
41 Id.
42 Id.
43 Id.
44 Id. at 21.
45 Id. at 60, citing TSN, September 11, 2003.
46 Id. at 21.
47 Id. at 18.
48 Id.
49 Id.
50 618 Phil. 650, 668 (2009) [Per J. Nachura, Third Division].
51Rollo, p. 19.
52 Id. at 20–21.
53 Id. at 20.
54 Id. at 21.
55 Id.
56 Id.
57 Id. at 124–138.
58 Id. at 129.
59 Id. at 128.
60 Id. at 129.
61 G.R. No. 189324, March 20, 2013, 694 SCRA 141, 166 [Per J. Perez, Second Division].
62 Id. at 130.
63 Id. at 38 and 130.
64 Id. at 131–132.
65 Id. at 135.
66 Id. at 131–132.
67 Rep. Act No. 8353 (1997).
68 Rep. Act No. 8353 (1997), sec. 2.
69People v. Abulon, 557 Phil. 428, 454 (2007) [Per J. Tinga, En Banc], citing People v. Silvano, 368 Phil. 676, 696 (1999) [Per Curiam, En Banc].
70People v. Abulon, 557 Phil. 428, 454 (2007) [Per J. Tinga, En Banc], citing Deliberations of the Senate on Senate Bill No. 950, Special Law on Rape, August 6, 1996, pp. 12–15; Deliberations of the House of Representatives, Committee on Revision of Laws and Committee on Women on House Bill No. 6265 entitled “An Act to Amend Article 335 of the Revised Penal Code, as amended, and Defining and Penalizing the Crime of Sexual Assault,” August 27, 1996, pp. 44–50; See also People v. Garcia, G.R. No. 206095, November 25, 2013, 710 SCRA 571, 580 [Per J. Mendoza, Third Division].
71People v. Abulon, 557 Phil. 428, 454 (2007) [Per J. Tinga, En Banc], citing Deliberations of the Senate on Senate Bill No. 950, Special Law on Rape, August 6, 1996, pp. 12–15.
72Pielago v. People, G.R. No. 202020, March 13, 2013, 693 SCRA 476, 488 [Per J. Reyes, First Division].
73People v. Vitero, G.R. No. 175327, April 3, 2013, 695 SCRA 54, 64–65 [Per J. Leonardo-De Castro, First Division].
74Rollo, p. 59.
75 Id.
76 Id. at 62.
77 Id. at 36–37.
78See Pielago v. People, G.R. No. 202020, March 13, 2013, 693 SCRA 476, 488 [Per J. Reyes, First Division]; Campos v. People, 569 Phil. 658, 671 (2008) [Per J. Ynares-Santiago, Third Division], quoting People v. Capareda, 473 Phil. 301, 330 (2004) [Per J. Callejo, Sr., Second Division]; People v. Galigao, 443 Phil. 246, 260 (2003) [Per J. Ynares-Santiago, En Banc].
79People v. Oliva, 616 Phil. 786, 792 (2009) [Per J. Nachura, Third Division], citing People v. De Guzman, 423 Phil. 313, 331 (2001) [Per Curiam, En Banc].
80Rollo, pp. 37 and 62.
81People v. Dominguez, G.R. No. 191065, June 13, 2011, 651 SCRA 791, 802 [Per J. Sereno (now C.J.), Third Division].
82Rollo, pp. 44–53.
83 Id. at 50–51.
84 Id. at 59, citing TSN, September 11, 2003.
85 Id. at 59–60, citing TSN, September 11, 2003.
86 G.R. No. 179031, November 14, 2012, 685 SCRA 483 [Per J. Del Castillo, Second Division]. Justice Brion penned a dissenting opinion.
87 Id. at 504–505.
88People v. Colorado, G.R. No. 200792, November 14, 2012, 685 SCRA 660, 673 [Per J. Reyes, First Division], citing People v. Balonzo, 560 Phil. 244, 259–260 (2007) [Per J. Chico-Nazario, Third Division]; See also People v. De Guzman, G.R. No. 188352, September 1, 2010, 629 SCRA 784, 799 [Per J. Mendoza, Second Division].
89Rollo, p. 38, citing TSN, January 22, 2003, p. 9.
90 618 Phil. 650 (2009) [Per J. Nachura, Third Division].
91 Id. at 666.
92 Id. at 667.
93Rollo, p. 59, citing TSN, September 11, 2003.
94 G.R. No. 188897, June 6, 2011, 650 SCRA 620 [Per J. Peralta, Second Division].
95 Id. at 640.
96People v. Jalosjos, 421 Phil. 43, 54 (2001) [Per J. Ynares-Santiago, En Banc].
97 G.R. No. 199402, November 12, 2014 [Per J. Leonen, Second Division].
98 Id.
99 Rep. Act No. 7610 was approved on June 17, 1992.
100See Garingarao v. People, G.R. No. 192760, July 20, 2011, 654 SCRA 243, 254 [Per J. Carpio, Second Division]; See also People v. Chingh, G.R. No. 178323, March 16, 2011, 645 SCRA 573, 587 [Per J. Peralta, Second Division].
101 G.R. No. 178323, March 16, 2011, 645 SCRA 573 [Per J. Peralta, Second Division].
102 Id. at 577.
103 Id. at 580.
104 Id. at 586–588.
105 Id. at 589.
106Rollo, p. 62.
107 Id. at 54.
108See People v. Garcia, G.R. No. 206095, November 25, 2013, 710 SCRA 571, 588 [Per J. Mendoza, Third Division]; People v. Lomaque, G.R. No. 189297, June 3, 2013, 697 SCRA 383, 410 [Per J. Del Castillo, Second Division]; Pielago v. People, G.R. No. 202020, March 13, 2013, 693 SCRA 476, 488 and 489 [Per J. Reyes, First Division]; People v. Soria, G.R. No. 179031, November 14, 2012, 685 SCRA 483, 508 [Per J. Del Castillo, Second Division].
109People v. Dominguez, G.R. No. 191065, June 13, 2011, 651 SCRA 791, 806 [Per J. Sereno (now C.J.), Third Division], citing People v. Soriano, 436 Phil. 719, 757 (2002) [Per Curiam, En Banc], People v. Palma, 463 Phil. 767, 784 (2003) [Per J. Vitug, En Banc], People v. Olaybar, 459 Phil. 114, 129 (2003) [Per J. Vitug, En Banc], People v. Suyu, 530 Phil. 569, 597 (2006) [Per J. Callejo, Sr., First Division], People v. Hermocilla, 554 Phil. 189, 212 (2007) [Per J. Ynares-Santiago, Third Division], People v. Fetalino, 552 Phil. 254, 279 (2007) [Per J. Chico-Nazario, Third Division], People v. Senieres, 547 Phil. 674, 689 (2007) [Per J. Tinga, Second Division], Flordeliz v. People, 628 Phil. 124, 143 (2010) [Per J. Nachura, Third Division], People v. Alfonso, G.R. No. 182094, August 18, 2010, 628 SCRA 431, 452 [Per J. Del Castillo, First Division].cralawlawlibrary
VELASCO, JR., J.:
That on or about January 31, 2002, in the Municipality of Sta. Rosa, Province of Laguna, Philippines, and within the jurisdiction of this Honorable Court, accused Richard Ricalde, prompted with lewd design, did then and there willfully, unlawfully, and feloniously inserting [sic] his penis into the anus of XXX who was then ten (10) years of age against his will and consent, to his damage and prejudice.
CONTRARY TO LAW1cralawlawlibrary
(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; orx x x x
(3) That the act of sexual assault is accomplished under any of the following circumstances:(a) By using force or intimidation;cralawlawlibrary
(b) When a woman is deprived of reason or otherwise unconscious.3
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- The accused commits the act of sexual intercourse or lascivious conduct.
- The said act is performed with a child exploited in prostitution or subjected to other sexual abuse.
- The child whether male or female, is below 18 years of age.4
It is fundamental that every element constituting the offense must be alleged in the information. The main purpose of requiring the various elements of a crime to be set out in the information is to enable the accused to suitably prepare his defense because he is presumed to have no independent knowledge of the facts that constitute the offense. The allegations of facts constituting the offense charged are substantial matters and an accused's right to question his conviction based on facts not alleged in the information cannot be waived. No matter how conclusive and convincing the evidence of guilt may be, an accused cannot be convicted of any offense unless it is charged in the information on which he is tried or is necessarily included therein. To convict him of a ground not alleged while he is concentrating his defense against the ground alleged would plainly be unfair and underhanded. The rule is that a variance between the allegation in the information and proof adduced during trial shall be fatal to the criminal case if it is material and prejudicial to the accused so much so that it affects his substantial rights.7cralawlawlibrary
The majority opinion correctly enumerates the essential elements of the crimes of acts of lasciviousness under Section 5 of RA 7610. The majority opinion states:
The elements of sexual abuse under Section 5, Article III of R.A. 7610 are as follows:The majority opinion correctly distinguishes the first element from the second element. The first element refers to acts of lasciviousness that the accused performs on the child. The second element refers to the special circumstance that the "child (is) exploited in prostitution or subjected to other sexual abuse." This special circumstance already exists when the accused performs acts of lasciviousness on the child. In short, the acts of lasciviousness that the accused performs on the child are separate from the child's exploitation in prostitution or subjection to "other sexual abuse."
- The accused commits the acts of sexual intercourse or lascivious conduct.
- The said act is performed with a child exploited in prostitution or subjected to other sexual abuse.
- The child, whether male or female, is below 18 years of age.
Under Article 336 of the RPC, the accused performs the acts of lasciviousness on a child who is neither exploited in prostitution nor subjected to "other sexual abuse. " In contrast, under Section 5 of RA 7610, the accused performs the acts of lasciviousness on a child who is either exploited in prostitution or subjected to "other sexual abuse."
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."
The phrase "other sexual abuse" refers to any sexual abuse other than the acts of lasciviousness complained of and other than exploitation in prostitution. Such "other sexual abuse" could fall under acts encompassing "[O]bscene publications and indecent shows" mentioned in Section 3(d)(3) of RA 7610.9cralawlawlibrary
Endnotes:
1Rollo. pp. 32, 54.
2 "Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act."
3People v. Heracleo Abello y Fortada, G.R. No. 151952, March 25,2009.
4 Id.
5 Sec. I, Article III, 1987 Philippine Constitution.
6 Sec. 14(2), Article III, 1987 Philippine Constitution.
7 G.R. No. 168486, June 27, 2006, 493 SCRA 539.
8 G.R. No. 163866, July 29, 2005, 465 SCRA 465.
9 Id. at 487-488.