xxxx
That on or about the 7th day of October 1998, in the City of Parañaque, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously have carnal knowledge of the complainant [AAA], a mental retardate, against her will and consent.
CONTRARY TO LAW.2
WHEREFORE, the prosecution having been able to prove the guilt of the accused CHARLIE BUTIONG beyond reasonable doubt of the crime of simple RAPE defined and punishable under Art. 266-A par. 1 in relation to Art. 266-B par. 1 of the Revised Penal Code as amended by R.A. 8353, accused CHARLIE BUTIONG is hereby sentenced to suffer the penalty of RECLUSION PERPETUA.
Pursuant to the existing jurisprudence, accused CHARLIE BUTIONG is further ordered to indemnify the private complainant, AAA, the amount of P50,000.00 as civil indemnity, P50,000.00 as moral damages and P25,000.00 as and by way of exemplary damages.
No pronouncement as to costs.
SO ORDERED.13
In sum, the Court sees no cogent reason to depart from the well-entrenched doctrine that the trial court's assessment of the credibility of witnesses is accorded great respect because of its opportunity to hear their testimonies and observe their demeanor and manner of testifying. Absent any showing that the trial court overlooked or misappreciated some facts or circumstances of weight and substance which would affect the result of the case, the Court sees no reason to alter the findings of the trial court.
WHEREFORE, the appealed Decision dated February 24, 2003 is affirmed in toto.
SO ORDERED.
I
THE TRIAL COURT ERRED IN RULING THAT PROOF OF THE DATE OF THE COMMISSION OF THE OFFENSE IS NOT NECESSARY IN ORDER TO CONVICT THE ACCUSED-APPELLANT.II
THE TRIAL COURT ERRED IN FINDING THAT THE OFFENDED PARTY IS A MENTAL RETARDATE.III
THE TRIAL COURT ERRED IN RULING THAT A MENTAL RETARDATE IS IN THE SAME CLASS AS A WOMAN DEPRIVED OF REASON OR OTHERWISE UNCONSCIOUS.
[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 indeed touched the labias or slid into the female organ, and not merely stroked the external surface thereof, for an accused to be convicted of consummated rape. As the labias, which are required to be "touched" by the penis, are by their natural situs or location beneath the mons pubis or the vaginal surface, to touch them with the penis is to attain some degree of penetration beneath the surface, hence, the conclusion that touching the labia majora or the labia minora of the pudendum constitutes consummated rape.
The pudendum or vulva is the collective term for the female genital organs that are visible in the perineal area, e.g., mons pubis, labia majora, labia minora, the hymen, the clitoris, the vaginal orifice, etc. The mons pubis is the rounded eminence that becomes hairy after puberty, and is instantly visible within the surface. The next layer is the labia majora or the outer lips of the female organ composed of the outer convex surface and the inner surface. The skin of the outer convex surface is covered with hair follicles and is pigmented, while the inner surface is a thin skin which does not have any hair but has many sebaceous glands. Directly beneath the labia majora is the labia minora. 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. Thus, a grazing of the surface of the female organ or touching the mons pubis of the pudendum is not sufficient to constitute consummated rape. Absent any showing of the slightest penetration of the female organ, i.e., touching of either labia of the pudendum by the penis, there can be no consummated rape; at most, it can only be attempted rape, if not acts of lasciviousness.25 [emphasis supplied]
At common law rape could be committed only where the unlawful carnal knowledge of a female was had without her consent or against her will; lack of consent was an essential element of the offense; and there can be no rape in the common-law sense without the element of lack of consent. Under the statutes punishing the offense, an essential element of the crime of rape is that the act was committed without the consent of the female, or, as it is otherwise expressed, against her will. The act of sexual intercourse is against the female's will or without her consent when, for any cause, she is not in a position to exercise any judgment about the matter.
Carnal knowledge of the female with her consent is not rape, provided she is above the age of consent or is capable in the eyes of the law of giving consent. Thus, mere copulation, with the woman passively acquiescent, does not constitute rape. The female must not at any time consent; her consent, given at any time prior to penetration, however reluctantly given, or if accompanied with mere verbal protests and refusals, prevents the act from being rape, provided the consent is willing and free of initial coercion. Thus, where a man takes hold of a woman against her will and she afterward consents to intercourse before the act is committed, his act is not rape. However, where the female consents, but then withdraws her consent before penetration, and the act is accomplished by force, it is rape; and where a woman offers to allow a man to have intercourse with her on certain conditions and he refuses to comply with the conditions, but accomplishes the act without her consent, he is guilty of rape. [emphasis supplied]
In rape committed by means of duress, the victim's will is nullified or destroyed. Hence, the necessity of proving real and constant resistance on the part of the woman to establish that the act was committed against her will. On the other hand, in the rape of a woman deprived of reason or unconscious, the victim has no will. The absence of will determines the existence of the rape. Such lack of will may exist not only when the victim is unconscious or totally deprived of reason, but also when she is suffering some mental deficiency impairing her reason or free will. In that case, it is not necessary that she should offer real opposition or constant resistance to the sexual intercourse. Carnal knowledge of a woman so weak in intellect as to be incapable of legal consent constitutes rape. Where the offended woman was feeble-minded, sickly and almost an idiot, sexual intercourse with her is rape. Her failure to offer resistance to the act did not mean consent for she was incapable of giving any rational consent.
The deprivation of reason need not be complete. Mental abnormality or deficiency is enough. Cohabitation with a feebleminded, idiotic woman is rape. Sexual intercourse with an insane woman was considered rape. But a deafmute is not necessarily deprived of reason. This circumstances must be proven. Intercourse with a deafmute is not rape of a woman deprived of reason, in the absence of proof that she is an imbecile. Viada says that the rape under par. 2 may be committed when the offended woman is deprived of reason due to any cause such as when she is asleep, or due to lethargy produced by sickness or narcotics administered to her by the accused. xxx [emphasis supplied]
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 12 years of age, or is demented, even though none of the circumstances first mentioned is present.
Article 266-A. Rape; When And How Committed. ? Rape is committed -
1) By a man who 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.
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.
Mental retardation is a chronic condition present from birth or early childhood and characterized by impaired intellectual functioning measured by standardized tests. It manifests itself in impaired adaptation to the daily demands of the individual's own social environment. Commonly, a mental retardate exhibits a slow rate of maturation, physical and/or psychological, as well as impaired learning capacity.
Although "mental retardation" is often used interchangeably with "mental deficiency," the latter term is usually reserved for those without recognizable brain pathology. The degrees of mental retardation according to their level of intellectual function are illustrated, thus:Mental Retardation
LEVEL DESCRIPTION TERM INTELLIGENCE QUOTIENT
(IQ RANGE) I Profound Below 20 II Severe 20-35 III Moderate 36-52 IV Mild 53-68xxxx
The traditional but now obsolescent terms applied to those degrees of mental retardation were (a) idiot, having an IQ of 0 to 19, and a maximum intellectual factor in adult life equivalent to that of the average two-year old child; (b) imbecile by an IQ of 20 to 49 and a maximum intellectual function in adult life equivalent to that of the average seven-year old child; moron or feebleminded, having an IQ of 50 to 69 and a maximum intellectual function in adult life equivalent to that of the average twelve-year old child. Psychiatrists and psychologists apply the term "borderline" intelligence to those with IQ between 70 to 89. In People vs. Palma, we ruled that a person is guilty of rape when he had sexual intercourse with a female who was suffering from a "borderline mental deficiency." [emphasis supplied]
Sexual intercourse with a woman who is deprived of reason or with a girl who is below twelve years of age is rape because she is incapable of giving rational consent to the carnal intercourse. "Las mujeres privadas de razon, enajenadas, idiotas, imbeciles, son incapaces por su estado mental de apreciar la ofensa que el culpable infiere a su honestidad y, por tanto, incapaces de consentir. Pero no es condicion precisa que la carencia de razon sea completa, basta la abnormalidad o deficiencia mental que solo la disminuye, sin embargo, la jurisprudence es discordante" (II Cuello Calon, Derecho Penal, 14th Ed., 1975, pp. 538-9).
"Comete violacion el que yace mujer que no tiene normalmente desarrolladas sus facultades mentales (19 nov. 1930); aqui esta comprendido el yacimiento con debiles o retrasados mentales (11 mayo 1932, 25 feb. 1948, 27 sept. 1951); constituye este delito el coito con una niña de 15 años enferma de epilepsia genuina que carece de capacidad para conocer el valor de sus actos (2 marzo 1953); el yacimiento con oligofrenicas (mentally deficient persons) 28 abril, 24 octubre, 1956, 19 feb. 1958); xxx" (ibid., note 3).
The same rule prevails in American jurisprudence. "There can be no question but that a copulation with a woman known to be mentally incapable of giving even an imperfect consent is rape" (State vs. Jewett, 192 At. 7).
"An accused is guilty of the crime of rape when it is established that he had sexual intercourse with a female who was mentally incapable of validly consenting to or opposing the carnal act" (65 Am Jur 2nd 766 citing State vs. Prokosch, 152 Minn. 86, 187 NW 971; Cokeley vs. State, 87 Tex. Crim. 256, 220 SW 1099; 31 ALR 3rd 1227, sec. 3).
"In this species of rape neither force upon the part of a man nor resistance upon the part of a woman forms an element of the crime. If, by reason of any mental weakness, she is incapable of legally consenting, resistance is not expected any more than it is in the case of one who has been drugged to unconsciousness, or robbed of judgment by intoxicants. Nor will an apparent consent in such a case avail any more than in the case of a child who may actually consent, but who by law is conclusively held incapable of legal consent. Whether the woman possessed mental capacity sufficient to give legal consent must, saving in exceptional cases, remain a question of fact xxx. It need but be said that legal consent presupposes an intelligence capable of understanding the act, its nature, and possible consequences. This degree of intelligence may exist with an impaired and weakened intellect, or it may not" (People vs. Boggs, 290 Pac. 618 citing People vs. Griffin, 49 Pac. 711 and People vs. Peery, 146 Pac. 44). [emphasis supplied]
Endnotes:
1 Rollo, pp. 3-17; penned by Associate Justice Fernanda Lampas-Peralta, with Associate Justice Ruben T. Reyes (later Presiding Justice and Member of the Court, since retired) and Associate Justice Josefina Guevara-Salonga concurring.
2 Original records, p. 1.
3 Pursuant to Republic Act No. 9262 (The Anti-Violence Against Women and Their Children Act of 2004), and its implementing rules, the real names of the victims, as well the names of their immediate family or household members, are withheld herein and, in lieu thereof, fictitious initials are used to represent them, to protect their privacy. See People v. Cabalquinto, G.R. No. 167693, September 19, 2006, 502 SCRA 419.
4 TSN dated August 2, 2001, pp. 7-12.
5 Id., pp. 15-16.
6 Original records, p. 291.
7 TSN dated December 11, 2001, p. 12.
8 Exhibits D, E, F, F-1 and G, at original records, pp. 280-284.
9 TSN dated May 3, 2001, pp. 13-16.
10 Original records, p. 272.
11 TSN dated September 24, 2002, pp. 7-8.
12 Id., p. 12.
13 CA Rollo, p. 99.
14 Judge Raul De Leon.
15 Rollo, pp. 3-17.
16 G.R. No. L-61126, January 31, 1985, 134 SCRA 405.
17 G.R. No. 112457-58, March 29, 1996, 255 SCRA 403.
18 Supra, note 1, p. 7, citing TSN of August 2, 2001, p. 121.
19 People v. Macabata, G.R. Nos. 150493-95, October 23, 2003, 414 SCRA 260, 268-269; People v. Taperla, G.R. No. 142860, January 16, 2003, 395 SCRA 310, 315; People v. Alicante, G.R. Nos. 127026-27, May 31, 2000, 332 SCRA 440, 464-465.
20 People v. Abulencia, G.R. No. 138403, August 22, 2001, 363 SCRA 496, 508; People v. Lacaba, G.R. No. 130591, November 17, 1999, 318 SCRA 301, 314; People v. Magana, G.R. No. 105673, July 26, 1996, 259 SCRA 380, 401.
21 People v. Freta, G.R. No. 134451-52, March 14, 2001, 354 SCRA 385, 392; People v. Masalihit, G.R. No. 124329, December 14, 1998, 300 SCRA 147, 155; People v. Flores, Jr., G.R. No.128823-24, December 27, 2002, 394 SCRA 325, 333.
22 Black's Law Dictionary 193 (5th ed., 1979).
23 People v. Jalosjos, G.R. Nos. 132875-876, November 16, 2001, 369 SCRA 179, 198.
24 G.R. No. 129433, March 30, 2000, 329 SCRA 270.
25 Id., pp. 280-282.
26 People v. Gonzales, G.R. No. 141599, June 29, 2004, 433 SCRA 102, 115.
27 People v. Corpuz, G.R. No. 168101, February 13, 2006, 482 SCRA 435, 448; People v. Ramirez, G.R. No. 136848, November 29, 2001, 371 SCRA 143, 149; People v. Apilo, G.R. No. 101213-14, October 28, 1996, 263 SCRA 582, 598.
28 75 CJS, Rape, § 11, pp. 473-474.
29 III Aquino, The Revised Penal Code, 1988 Edition, Central Lawbook Supply, Inc., Quezon City, pp. 393-394.
30 People v. Manlapaz, G.R. No. L-41819, February 28, 1979, 88 SCRA 704, 713.
31 People v. Magabo, G.R. N o. 139471, January 23, 2001, 350 SCRA 126, 131-132.
32 Id., (footnote 10), citing People v. Reyes, 315 SCRA 563, 577; People v. Andaya, G.R. No. 126545, April 21, 1999, 306 SCRA 202; People v. Guerrero, 242 SCRA 606; and People v. Nguyen Dinh Nhan, 200 SCRA 292.
33 G.R. No. 140209, December 27, 2002, 394 SCRA 433.
34 See People v. Miranda, G.R. No. 176064, August 7, 2007, 529 SCRA 399, where the Court, citing People v. Dalandas, affirmed the rape conviction because the victim, 13 years in age, suffered from borderline mental deficiency (i.e., her mentality was that of a four- to six-year old person with an IQ of only 40); her mental retardation, the Court held, was equivalent to imbecility "in traditional parlance."
35 People v. Pagsanjan, G.R. 139694, December 27, 2002, 394 SCRA 414, 424-425; People v. Itdang, G.R. No. 136393, October 18, 2000, 343 SCRA 624, 633-634; People v. Dizon, G.R. Nos. 126044-45, July 2, 1999, 309 SCRA 669, 677-678; People v. Andaya, G.R. No. 126545, April 21, 1999, 306 SCRA 202, 214-215; People v. Moreno, G.R. No. 126921, August 28, 1998, 294 SCRA 728, 739-740; People v. Estares, G.R. No. 121878, December 5, 1997, 282 SCRA 524, 533-534.
36 G.R. No. L-41819, February 28, 1979, 88 SCRA 704.
37 Supra, note 17.
38 G.R. No. 141128, August 30, 2001, 364 SCRA 142. See also People v. Cabingas, G.R. No. 79679, March 28, 2000, 329 SCRA 21.
39 Id.
40 Supra, note 33, at p. 441.
41 G.R. No. 113253, February 19, 1999, 303 SCRA 399.
42 Id., p. 410.
43 G.R. No. 123096, December 18, 2000, 348 SCRA 461.
44 Id., pp. 471-472.
45 CA Rollo, p. 26.
46 See People v. Abella, G.R. No. 177295, January 6, 2010, 610 SCRA 19, 36-37.