THIRD DIVISION
G.R. No. 235610, September 16, 2020
RODAN A. BANGAYAN, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondents.
D E C I S I O N
CARANDANG, J.:
This is a Petition for Review on Certiorari1 assailing the Decision2 dated June 28, 2017 of the Court of Appeals finding Rodan Bangayan y Alcaide (Bangayan) guilty beyond reasonable doubt of violation of Section 5(b), Article III of Republic Act No. (R.A) 7610, the dispositive portion of which reads:cralawred
FOR THE STATED REASONS, the appeal is DENIED. The assailed Decision of the Regional Trial Court is AFFIRMED with MODIFICATION that the award of damages is increased to Php 75,000.00 each as civil indemnity, moral damages and exemplary damages.
SO ORDERED.3
During trial, the prosecution presented three (3) witnesses, namely: (1) PO2 Rosalita Manilao (PO2 Manilao); (2) BBB;7 and (3) Dr. Luis Villar (Dr. Villar). The following documents were likewise submitted in evidence: (1) Malaya at Kusang Loob na Salaysay of AAA;8 (2) Malaya at Kusang Loob na Salaysay ni BBB;9 (3) Medical Certificate issued by Dr. Villar;10 and (4) Certificate of Live Birth of AAA.11That sometime in the month of January, [sic] 2012 at Brgy. San Ramos, Municipality of Nagtipunan, Province of Quirino, Philippines,. and within the jurisdiction of this Honorable Court, the above-named Accused, with intent to abuse, harass and degrade AAA5 , a twelve (12) year old minor at that time, and gratify the sexual desire of said accused, the latter did then and there, willfully, unlawfully and feloniously, had sexual intercourse with said AAA, in her dwelling against her will and consent.6
Physical Examination Findings:When Dr. Villar testified, he confirmed that AAA admitted to him that she had sexual intercourse with Bangayan on several occasions even prior to January 5, 2012.19 He explained that the "opening" noted during his examination, as stated in item no. 3 of the physical findings, is not a normal occurrence. For a young patient like AAA, it should have been closed. He further testified that AAA was already pregnant when she was examined because her fundus is 15 centimeters in height and the presence of 151 beats per minute at the last lower quadrant of her abdomen was observed.20 These indicate that, at the time of the examination, she was two (2) to three (3) months pregnant, which could be compatible with the claim that she had sexual intercourse with Bangayan in January 2012, the date stated in the information, or even before said date.21
- Formed and developed areolar complexes.
- Developed labia majora,
- No recent hymenal injury but the edges are smooth and the opening approximates the size of the index finger of the examiner.18
In convicting Bangayan, the RTC found that the prosecution was able to establish the elements of Section 5(b), Article III of R.A. 7610. Bangayan had sexual intercourse with AAA who was born on December 14, 1999 and was 12 years, one (1) month, and 14 days old at the time of the incident.29 For the RTC, the moral ascendancy or influence of Bangayan over AAA is beyond question due to their age gap of 15 years, and the fact that he is her brother- in-law, he being the brother of the husband of her older sister.30 The RTC ruled that it will not matter if AAA consented to her defloration because as a rule, the submissiveness or consent of the child under the influence of an adult is not a defense in sexual abuse.31 The RTC also considered the Affidavit of Desistance AAA executed as hearsay evidence because she did not testify regarding its execution. The RTC added that an Affidavit of Desistance is like an Affidavit of Recantation which the court does not look with favor.32WHEREFORE, premises considered, judgment is hereby rendered finding RODAN BANGAYAN y ALCAIDE GUILTY beyond reasonable doubt of violation of Section 5 (b), Article III of Republic Act 7610 and sentences him to an imprisonment of 14 years and 8 months of reclusion temporal as minimum to 20 years of reclusion temporal as maximum. However, his preventive imprisonment shall be fully credited to him in the service of sentence pursuant to Article 29 of the Revised Penal Code, as amended.
Accused is ordered to pay [AAA] the amount of 1] PHP 50,000.00 as civil indemnity with interest of 6% per annum from finality of the decision until fully paid.
With the category of the accused as a national prisoner, the Clerk of Court is directed to prepare the corresponding mittimus or commitment order for his immediate transfer to the Bureau of Corrections and Penology, Muntinlupa City, pursuant to SC Circular No. 4- 92-A dated April 20, 1992.
SO ORDERED.28 (Emphasis in the original)
Pursuant to the Implementing Rules and Regulations of R.A. 7610, "sexual abuse" 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.52 The present case does not fall under any of the circumstances enumerated. Therefore, not all the elements of the crime were present to justify Bangayan's conviction.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;49
The following requisites must concur: (1) the 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 eighteen (18) years of age.50 This paragraph "punishes sexual intercourse or lascivious conduct not only with a child exploited in prostitution but also with a child subjected to other sexual abuse. It covers not only a situation where a child is abused for profit but also one in which a child, through coercion, intimidation or influence, engages in sexual intercourse or lascivious conduct.51
We are not unmindful that in Tulagan, the accused inserted his finger into a nine-year-old girl's vagina and had sexual intercourse with her. Nevertheless, the vital discussion made by the Court with respect to the capacity of a victim aged between 12 years old and below 18 years of age to give rational consent to engage in sexual activity (sexual consent) cannot simply be disregarded. Though it may be considered obiter dictum, the principle laid down in the majority opinion, speaking through the ponencia of then Associate Justice Diosdado Peralta, now Chief Justice, remains relevant and crucial to the resolution of the present case because it clearly outlined the essential elements of the offense. The discussion of the Court in Tulagan should serve as a guide in resolving situations identified by the Court to be potential sources of conflicting interpretations. The fact that Tulagan did not involve a victim between 12 years old and below 18 years old should not dissuade the Court from applying a principle that aims to clarify and harmonize conflicting provisions due to an apparent gap in the law.However, considering the definition under Section 3(a) of R.A. No. 7610 of the term "children" which refers to 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, We find that the opinion in Malto, that a child is presumed by law to be incapable of giving rational consent, unduly extends the concept of statutory rape or acts of lasciviousness to those victims who are within the range of 12 to 17 years old, and even those 18 years old and above under special circumstances who are still considered as "children" under Section 3(a) of R.A. No. 7610. While Malto is correct that consent is immaterial in cases under R.A. No. 7610 where the offended party is below 12 years of age, We clarify that consent of the child is material and may even be a defense in criminal cases involving violation of Section 5, Article III of R.A. No. 7610 when the offended party is 12 years old or below 18, or aboye 18 under special circumstances. Such consent may be implied from the failure to prove that the said victim engaged in sexual intercourse either "due to money, profit or any other consideration or due to the coercion or influence of any adult, syndicate or group."
x x x x
If the victim who is 12 years old or less than 18 and is deemed to be a child "exploited in prostitution and other sexual abuse" because she agreed to indulge in sexual intercourse "for money, profit or any other consideration or due to coercion or influence of any adult, syndicate or group," then the crime could not be rape under the RPC, because this no longer falls under the concept of statutory rape, and there was consent. That is why the offender will now be penalized under Section 5(b), R.A. No. 7610, and not under Article 335 of the RPC [now Article 266-A], But if the said victim does not give her consent to sexual intercourse in the sense that the sexual intercourse was committed through force, threat or intimidation, the crime Is rape under paragraph 1, Article 266-A of the RPC. However, if the same victim gave her consent to the sexual intercourse, and no money, profit, consideration, coercion or influence is involved, then there is no crime committed, except in those cases where "force, threat or intimidation" as an element of rape is substituted by "moral ascendancy or moral authority," like in the cases of incestuous rape, and unless it is punished under the RPC as qualified seduction under Article 337 or simple seduction under Article 338.56 (Emphasis and underscoring supplied; citations omitted)
Therefore, it is now clear that consent is a material factor in determining the guilt of Bangayan.xxx [I]t bears to point out that "consent of the child is material and may even be a defense in criminal cases" involving the aforesaid violation when the offended party is 12 years old or below 18 years old, as in AAA's case. The concept of consent under Section 5 (b), Article III of RA 7610 peculiarly relates to the second element of the crime - that is, the act of sexual intercourse is performed with a child exploited in prostitution or subjected to other sexual abuse. A child is considered "exploited in prostitution or subjected to other sexual abuse when the child is predisposed to indulge in sexual intercourse or lascivious conduct because of money, profit or any other consideration or due to the coercion of any adult, syndicate, or group.
x x x x58 (Emphasis supplied; citations omitted)
Accordingly, the Court deems it prudent to rectify the difference between the concept of consent under contract law and sexual consent in criminal law which determines the guilt of an individual engaging in a sexual relationship with one who is between 12 years old or below 18 years of age. These are concepts that are distinct from each other and have differing legal implications.We take exception, however, to the sweeping conclusions in Malto (1) that "a child is presumed by law to be incapable of giving rational consent to any lascivious conduct or sexual intercourse" and (2) that "consent of the child is immaterial in criminal cases involving violation of Section 5, Article III of RA 7610" because they would virtually eradicate the concepts of statutory rape and statutory acts of lasciviousness, and trample upon the express provisions of the said law.62
is erroneous. Contrary to the ruling of the RTC, it cannot be said that Bangayan exercised moral ascendancy over AAA simply because of their 15-year age gap and the fact that he is her "brother-in-law." Following the concept of brother-in-law in its ordinary sense, Bangayan is not AAA's brother-in-law because a brother-in-law refers only to a wife's brother or a sister's husband. It does not include a brother of the husband of AAA's older sister.xxx [T]he moral ascendancy or influence of the accused over the victim is beyond question because of their 15 year age gap, not to mention that the former is also her brother- in-law, he being the brother of the husband of her older sister.67
In Gumabon v. Philippine National Bank,71 the Court explained that formal offer "means that the offeror shall inform the court of the purpose of introducing its exhibits into evidence." In the absence of a formal offer, courts cannot take notice of the evidence even if this has been previously marked and identified.72Section. 34. Offer of evidence. - The court shall consider no evidence which has not been formally offered. The purpose for which the evidence is offered must be specified.
A careful study of the records reveals that the RTC received the Social Case Study Report dated September 25, 2014 on October 8, 2014. Although the testimony of the social worker was included in the Pre-Trial Order,75 the document was never properly" idehtified, authenticated by the social worker who prepared the report, and included in the formal offer of evidence.76 The social worker never testified in open court and the defense was never given an opportunity to test her credibility and verify the correctness and accuracy of her findings. To Our mind, giving credence to evidence which was not formally offered during trial would deprive the other party of due process. Thus, evidence not formally offered has no probative value and must be excluded by the court.Based on the above information, the client suffered multiple emotional crisis that hampered her growth and development. She has the time, knowledge, potentials and abilities that could enhance her total development. However, as early as 7 years old, she had crisis due to role confusion.
Being abused, she was unable to develop her unique values or personality. She was not allowed the opportunities to acquire friends, develop skills and knowledge through formal education.
Living together with the perpetuator [sic] could support her longing for a parental figure. He served as support for her existence but considering his weaknesses such as from abusing her, the lack for sense of responsibility and assertiveness as lack of resources should affect the future of the minor and son. He could not provide the basic needs such as food, shelter and education with his disposition in life.
The minor had the CHANCE to grab the opportunities of the PRESENT and the FUTURE once she is AWAY with her perpetuator [sic]. Support from relatives is highly recommended for direction.
The honored court is then requested for favorable action that will promote the general welfare of the minor- [AAA] and her family.74
In this exceptional situation, We are not prepared to punish two individuals and deprive their children from having a normal family life simply because of the minority of AAA at the time she began dating Bangayan. The benefits of living in a nuclear family to AAA and their two (2) children outweigh any perceived dangers of the on-going romantic relationship Bangayan has with AAA who is 15 years younger than him. This arrangement is more favorable to the welfare of both parties as they are planning to get married.80 We verified from the records that Bangayan was single at the time he gave his personal circumstanced when he testified in court.81 This is more consistent with the principle of upholding the best interests of children as it gives Bangayan an opportunity to perform his essential parental obligations and be present for their two (2) children.xxx [T]he "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 of the Rights of the Child.
Thru: The Superintendent
New Bilibid Prison
BUREAU OF CORRECTIONS
1770 Muntinlupa City
"WHEREFORE, the appeal is GRANTED. The Decision dated April 11, 2016 of the Regional Trial Court of Maddela, Quirino, Branch 38, in Criminal Case No. 38-510 as well as the Decision dated June 28, 2017 of the Court of Appeals in CA-G.R. CR No. 38723 are hereby REVERSED and SET ASIDE. Petitioner Rodan A. Bangayan is ACQUITTED. He is ORDERED to be IMMEDIATELY RELEASED unless he is being held for some other valid or lawful cause. The Director of the Bureau of Corrections is DIRECTED to inform this Court of the action taken hereon within five (5) days from receipt hereof.NOW, THEREFORE, You are hereby ordered to immediately release RODAN A. BANGAYAN unless there are other lawful causes for which he should be further detained, and to return this Order with the certificate of your proceedings within five (5) days from notice hereof.
SO ORDERED."
Endnotes:
1Rollo, pp. 11-24.
2 Penned by Associate Justice Mario V. Lopez (now a Member of this Court), with the concurrence of Associate Justices Remedios A. Salazar-Fernando and Eduardo B. Peralta, Jr.; id. 27-34.
3 Id. at 33.
4 Records, pp. 2-3.
5 As decreed in People v. Cabalquinto, 533 Phil. 709 (2006), complainant's real name is withheld to effectuate the provisions of R.A. 7610 and its implementing rules, R.A. 9262 (Anti Violence Against Women and Their Children Act of 2004) and its implementing rules, and A.M. No. 04-10-11-SC (Rule on Violence Against Women and their Children).
6 Records, pp. 2-3.
7 Supra note 5.
8 Records, pp. 7-8.
9 Id. at 9-10.
10 Id. at 11.
11 Id. at 12
12 TSN dated May 21, 2015, p. 14.
13 Id. at 15.
14 Records, p. 12.
15 Supra note 5.
16 Records, p. 6.
17 Id. at 11.
18 Id.
19 TSN dated June 16, 2015, p. 5.
20 Id. at 4
21 Id. at 5.
22 Id. at 41.
23 Id. at 24.
24 Id.
25 Id. at 5-6; records, p. 28.
26 TSN dated November 18, 2015, p. 9.
27 Penned by Executive Judge Menrado V. Corpuz; records, pp. 103-110.
28 Id. at 110.
29 Id. at 107.
30 Id. at 108.
31 Id.
32 Id. at 109.
33Rollo, pp. 40-50.
34 Id. at 46-49.
35 Id. at 47-48.
36 Id. at 48.
37 Id. at 49.
38 Supra note 2.
39Rollo, p. 33.
40 Id. at 30-33.
41 Id. at 85-88.
42 Penned by Associate Justice Mario V. Lopez (now a Member of this Court), with the concurrence of Associate Justices Remedios A. Salazar-Fernando and Eduardo B. Peralta, Jr.; id. at 36-37.
43 Id. at 11-24.
44 Id. at 19.
45 Id. at 20.
46 Id.
47 Id. at 108.
48 R.A. 7610, Sec. 5.
49 Id.
50 Id.
51People v. Gaduyon, 720 Phil. 750 (2013).
52 Section 2(g), 10-1993 Rules and Regulations on the Reporting and Investigation of Child Abuse Cases (R.A. 7610).
53 R.A. 7610, Sec. 5.
54 R.A. 7610, Sec. 5.
55 G.R.No. 227363, March 12, 2019.
56 Id.
57 G.R. No. 235799, July 29, 2019.
58Monroy v. People, G.R. No. 235799, July 29, 2019.
59 G.R. No. 235799, July 29, 2019.
60 560 Phil. 119 (2007).
61 G.R. No. 227363, March 12, 2019
62 Id.
63 CIVIL CODE OF THE PHILIPPINES, Art. 37.
64 CIVIL CODE OF THE PHILIPPINES, Art. 1319.
65People v. Tulagan, supra note 55.
66 Id.
67 Records, p. 108.
68 Id. at 7-8.
69 TSN dated June 16, 2015, p. 5.
70 Id. at 2-3.
71 G.R. No. 202514, July 25, 2016.
72 Id.
73 Records, pp. 30-40.
74 Id. at 40.
75 Id. at 49.
76 TSN dated August 3, 2015, pp. 1-6.
77 TSN dated November 18, 2015 p. 9.
78 Id. at 8.
79 Id. at 9.
80 TSN dated November 18, 2015, p. 9.
81 Id. at 2-4.
LEONEN, J.:
With the greatest respect, I cannot accept that our laws can be interpreted so that a 12-year-old girl, barely in the sixth grade, can give her mature consent to sexual intercourse.
Sexual intercourse is a complex act which is not only physical or sensual. Beyond that, it comes with the complexity of intimacy, relationship, and reproductive consequences. I fail to see how a grade six student can understand all of these.
I urge the ponente to re-evaluate the precedent We create to further disempower our young daughters and granddaughters against patriarchy.
This case is an opportunity to clarify the application of Republic Act No. 7610 vis-a-vis Article 336 of the Revised Penal Code, with respect to victims within the ages of 12 to 18 years old. The obiter dictum laid down in People v. Tulagan must be qualified and refined.
That sometime in the month of January 2012 atx x x x x x x x Province of Quirino, Philippines, within the jurisdiction of this Honorable Court, the above-named Accused, with intent to abuse, [harass] and degrade [AAA], a twelve (12) years old minor at that time, and gratify the sexual desire of said accused, the latter did then and there, willfully, unlawfully[,] and feloniously, had sexual intercourse with said [AAA], in her dwelling against her will and consent.1Upon arraignment, Bangayan pleaded not guilty. His counsel manifested that AAA, then 14 years old, was no longer interested in pursuing the case because she and Bangayan were already living together as husband and wife.2 The counsel submitted AAA's Affidavit of Desistance.3
Pre-trial and trial then ensued.6RECOMMENDATION
Based on the above information, the client suffered multiple emotional [crises] that hampered her growth and development. She has the time, knowledge, potentials, and abilities that could enhance her total development. However, as early as 7 years old, she had crisis due to role confusion.
Being abused, she was unable to develop her unique values or personality. She was not allowed the opportunities to acquire friends, develop skills and knowledge through formal education.
Living together with the perpetrator could support her longing for a parental figure. He served as support for her existence but considering his weaknesses such as abusing her. the lack of sense of responsibility and assertiveness as lack of resources could affect the future of the minor and son. He could not provide the basic needs such as food, shelter, and education with his disposition in life.
The minor had the CHANCE to grab the opportunities of the PRESENT and the FUTURE once she is AWAY from her perpetrator. Support from relatives is highly recommended for direction.
The honored court is then requested for favorable action that will promote the general welfare of the minor-[AAA] and her family.5
A plain textual reading shows that the provision penalizes two (2) offenses: (1) child prostitution; and (2) other sexual abuse.ARTICLE IIIChild 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:cralawred(a) Those who engage in or promote, facilitate or induce child prostitution which include, but are not limited to, the following:cralawred(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 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(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.
(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.31 (Emphasis in the original)
Article 266-A. Rape: When And How Committed. — Rape is committed —As Tulagan explained, consent is immaterial in sexual intercourse with children under 12 years of age, because they are presumed to be incapable of giving consent, thus:cralawred
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. (Emphasis supplied)
Recall that in statutory rape, the only subject of inquiry is whether the woman is below 12 years old or is demented and whether carnal knowledge took place; whereas force, intimidation and physical evidence of injury are not relevant considerations. With respect to acts of lasciviousness, R.A. No. 8353 modified Article 336 of the RPC by retaining the circumstance that the offended party is under 12 years old in order for acts of lasciviousness to be considered as statutory and by adding the circumstance that the offended party is demented, thereby rendering the evidence of force or intimidation immaterial. This is because the law presumes that the victim who is under 12 years old or is demented does not and cannot have a will of her own on account of her tender years or dementia; thus, a child's or a demented person's consent is immaterial because of her presumed incapacity to discern good from evil.It bears emphasis that the protection under the Revised Penal Code only applies to children below 12 years old, while the age of majority is at 18 years old. This situation presents a lacuna, which Republic Act No. 7610 resolved by providing criminal liability for acts of prostitution or other forms of sexual abuse done with a child between 12 and 18 years old.
. . .
It bears emphasis that violation of the first clause of Section 5(b), Article III of R.A. No. 7610 on sexual intercourse with a child exploited in prostitution or subject to other sexual abuse, is separate and distinct from statutory rape under paragraph 1(d), Article 266-A 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. Nevertheless, sexual intercourse with a victim who is under 12 years of age or is demented is always statutory.rape, as Section 5(b) of R.A. No. 7610 expressly states that the perpetrator will be prosecuted under Article 335, paragraph 3 of the RPC (now paragraph 1 (d), Article 266-A of the RPC as amended by R.A. No. 8353).
Even if the girl who is below twelve (12) years old or is demented consents to the sexual intercourse, it is always a crime of statutory rape under the RPC, and the offender should no longer be held liable under R.A. No. 7610. For example, a nine (9)-year-old girl was sold by a pimp to a customer, the crime committed by the latter if he commits sexual intercourse with the girl is still statutory rape, because even if the girl consented or is demented, the law presumes that she is incapable of giving a rational consent[.]33 (Citations omitted)
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[.] (Emphasis supplied)The text of the law mandates that children exploited in prostitution or subject to other forms of sexual abuse (children in EPSOSA) must have consented: (1) due to money, profit, or any other consideration; or (2) due to the coercion or influence of an adult.
[C]ase 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:cralawredThis Court considered, among other factors, the age difference between AAA and Caballo as an indicium of coercion and influence:cralawredThe 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."38 (Citations omitted)
[C]oupled with AAA's minority is Caballo's seniority. Records indicate that Caballo was 23 years old at the time of the commission of the offense and therefore, 6 years older than AAA, more or less. The age disparity between an adult and a minor placed Caballo in a stronger position over AAA so as to enable him to force his will upon the latter.39In People v. Errojo:40
At a tender age of fourteen, innocent of the ways of the world, complainant is no match to the accused-appellant, a forty-one year old married individual who sexually assaulted her. The sheer force and strength of the accused- appellant would have easily overcome any resistance that complainant could have put up. What more if the assault was committed with a deadly knife, the sight of which would have necessarily evoked fear in complainant. Thus, it is understandable if she easily succumbed to the sexual intrusion. Her failure to disclose the outrage on her person to anybody including her parents is due to the threats on her life and her brothers. Indeed, one cannot expect her to act like an adult or a mature and experienced woman who would have the courage and intelligence to disregard a threat to her life and complain immediately that she had been sexually assaulted. It is not uncommon for young girls to conceal for sometime the assaults on their virtue because of the rapist's threats on their lives.41Similarly, in People v. Clado:42
It is therefore enough that it produces fear — fear that if the victim does not yield to the bestial demands of the accused, something would happen to heart the moment or thereafter, as when she is threatened with death if she reports the incident. This Court has noted in several cases that minors could be easily intimidated and cowed into silence even by the mildest threat against their lives. At the time of the commission of the crimes, Salve was a fifteen-year old girl who had just arrived in town to tend the beauty parlor of her sister. She was left all alone that night and intimidation would explain why she did not put up a determined resistance against her defiler.43 (Citations omitted)In these cases, this Court resolved that the victim's minority is an important consideration in determining whether he or she could freely and
On this note, Ruben anchors his claim of consensual sexual congress on the fact of his cohabitation with AAA. However, such claim was already addressed by the CA in the questioned Decision, which affirmed the findings of the RTC, that such cohabitation occurred only after the respective dates of the incidents. Here, such fact of cohabitation, by itself, had no bearing on the prior forcible advances committed by Ruben upon AAA. In fact, contrary to Ruben's assertions, any consent implied from the fact of cohabitation is dispelled by AAA's express declarations that she was forced against her will to live with Ruben out of fear of her father.Moreover, the ruling of the ponencia is consistent with the idea that rape or sexual abuse may be pardoned. This Court has settled that rape is no longer pardoned through marriage. In People v. Jumawan:48
To be sure, that a man and a woman are living in the same house is not enough to rule out the bestial act of forced sexual intercourse. Here, the fact of cohabitation is immaterial to the charge of rape as it only took place after the alleged incidents. In People v. Bautista, the Court aptly held:cralawredBesides, even if he and the victim were really sweethearts, such a fact would not necessarily establish consent. It has been consistently ruled that "a love affair does not justify rape, for the beloved cannot be sexually violated against her will." The fact that a woman voluntarily goes out on a date with her lover does not give him unbridled license to have sex with her against her will.47 (Citations omitted)
In 1997, R.A. No. 8353 eradicated the stereotype concept of rape in Article 335 of the RPC. The law reclassified rape as a crime against person and removed it from the ambit of crimes against chastity. More particular to the present case, and perhaps the law's most progressive proviso is the 2nd paragraph of Section 2 thereof recognizing the reality of marital rape and criminalizing its perpetration, viz.:cralawredJumawan considered the enactment of Republic Act No. 8353, which reclassified rape as a crime against person, and no longer a crime against chastity. This reclassification is not only nominal but a crucial shift in understanding the gravity and nature of rape.Article 266-C. Effect of Pardon. — The subsequent valid marriage between the offended party shall extinguish the criminal action or the penalty imposed.The paradigm shift on marital rape in the Philippine jurisdiction is further affirmed by R.A. No. 92'62, which regards rape within marriage as a form of sexual violence that may be. committed by a man against his wife within or outside the family abode[.]
In case it is the legal husband who is the offender, the subsequent forgiveness by the wife as the offended party shall extinguish the criminal action or the penalty: Provided, That the crime shall not be extinguished or the penalty shall not be abated if the marriage is void ab initio.
. . ..
. . .
Clearly, it is now acknowledged that rape, as a form of sexual violence, exists within marriage. A man who penetrates her wife without her consent or against her will commits sexual violence upon her, and the Philippines, as a State Party to the CEDAW and its accompanying Declaration, defines and penalizes the act as rape under R.A. No. 8353.
A woman is no longer the chattel-antiquated practices labeled her to be. A husband who has sexual intercourse with his wife is not merely using a property, he is fulfilling a marital consortium with a fellow human being with dignity equal to that he accords himself. He cannot be permitted to violate this dignity by coercing her to engage in a sexual act without her full and free consent. Surely, the Philippines cannot renege on its international commitments and accommodate conservative yet irrational notions on marital activities that have lost their relevance in a progressive society.49
Endnotes:
1Rollo, p. 54. Regional Trial Court Decision.
2 Id.
3 Id.
4 Id.
5 Id. at 55.
6 Id.
7 Id. at 56-57.
8 Id. at 56.
9 Id.
10 Id. at 56-57.
11 Id. at 57.
12 Id. at 57.
13 Id. at 54-61. The Decision was penned by Executive Judge Menrado V. Corpuz of Branch 38, Regional Trial Court, Maddela Quirino.
14 Id. at 59.
15 Id.
16 Id. at 60.
17 Id. at 29-30.
18 Id. at 30-31.
19 Id. at 32.
20 Id. at 32.
21 Id. at 36-37. Court of Appeals Resolution. The Resolution was penned by Associate Justice Mario V. Lopez, and concurred in by Associate Justices Remedios A. Salazar-Fernando and Eduardo B. Peralta, Jr. of the Former Second Division, Court of Appeals, Manila.
22 Id. at 46—49.
23 Ponencia, p. 6.
24 Id. at 7-8.
25 Id. at 8-12.
26 Id. at 12.
27 G.R. No. 227363, March 12, 2019, https://elibrary.judiciary.gov.ph/thebookshelf/showdocs/1/65020 > [Per J. Peralta, En Banc].
28 Id.
29 Id.
30 Rep. Act No. 7610 (1992), sec. 2 provides: ,
SECTION 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 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. 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 of the Rights of the Child. Every effort shall be exerted to promote the welfare of children and enhance their opportunities for a useful and happy life.
31 REV. PEN. CODE, art. 335 has been repealed by Republic Act No. 8353 or the Anti-Rape law of 1997. New provisions on rape are found in REV. PEN. CODE, art. 266-A to 266-D under Crimes Against Persons.
32 Separate Opinion of J. Leonen in People v. Tulagan, G.R. No. 227363, March 12, 2019, https://elibrary.judiciary.gov.ph/thebookshelf/showdocs/1/65020 > [Per J. Peralta, En Banc].
33 Id.
34 Id.
35People v. Tulagan, G.R. No. 227363, March 12, 2019, https://elibrary.judiciary.gov.ph/thebookshelf/showdocs/1/65020> [Per J. Peralta, En Banc].
36 Republic Act No. 7610 (1992), sec. 2.
37 710 Phil. 792 (2013) [Per J. Perlas-Bernabe, Second Division].
38 Id. at 805-806.
39 Id. at 807.
40 299 Phil. 51 (1994) [Per J. Nocon, Second Division].
41 Id. at 60.
42 397 Phil. 813 (2000) [Per J. Gonzaga-Reyes, Third Division].
43 Id. at 826.
44Rollo, p. 55.
45 Id. at 60.
46 816 Phil. 596 (2017) [Per J. Caguioa, First Division].
47 Id. at 608-609.
48 733 Phil. 102 (2014) [Per J. Reyes, First Division].
49 Id. at 133-141.
50 Rosemary Hunter, et al., Choice and Consent 97 (2007).
51 Alan Wertheimer, Consent To Sexual Relations 53-54 (2003).
52 Id. at 56.
53See J. Leonen, Dissenting Opinion in People v. Tulagan, G.R. No. 227363, March 12, 2019, https://elibrary.judiciary.gov.ph/thebookshelf/showdocs/1/65020 [Per J. Peralta, En Banc].
54 Alan Wertheimer, Consent To Sexual Relations 37-19 (2003).
55 Id.
56 Rosemary Hunter, et al., Choice and Consent 98 (2007).
57 Alan Wertheimer, Consent To Sexual Relations 126 (2003).
58 Franklin Miller, et al., The Ethics of Consent 5 (2009). See also David Archard, Sexual Consent 91 (1997).
59 Joseph J. Fischel, Sex and Harm in the Age of Consent 102-103 (2016).
60See People v. Andres, 324 Phil. 124 (1996) [Per J. Puno, Second Division].
ZALAMEDA, J.:
In the recent case of People v. Tulagan1 the Court clarified the significance of consent in sexual abuse cases when the offended party is a child 12 years old and above, but below 18 years old, or when the child is 18 years or older under special circumstances, to wit:
We take exception, however, to the sweeping conclusions in Malto (1) that "a child is presumed by law to be incapable of giving rational consent to any lascivious conduct or sexual intercourse" and (2) that "consent of the child is immaterial in criminal cases involving violation of Section 5, Article III of RA 7610" because they would virtually eradicate the concepts of statutory rape and statutory acts of lasciviousness, and trample upon the express provision "of the said law.
Recall that in statutory rape, the only subject of inquiry is whether the woman is below 12 years old or is demented and whether carnal knowledge took place; whereas force, intimidation and physical evidence of injury are not relevant considerations. With respect to acts of lasciviousness, R.A. No. 8353 modified Article 336 of the RPC by retaining the circumstance that the offended party is under 12 years old in order for acts of lasciviousness to be considered as statutory and by adding the circumstance that the offended party is demented, thereby rendering the evidence of force or intimidation immaterial. This is because the law presumes that the victim who is under 12 years old or is demented does not and cannot have a will of her own on account of her tender years or dementia; thus, a child's or a demented person's consent is immaterial because of her presumed incapacity to discern good from evil.
However, considering the definition under Section 3 (a) of R.A. No. 7610 of the term "children" which refers to 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, We find that the opinion in Malto, that a child is presumed by law to be incapable of giving rational consent, unduly extends the concept of statutory rape or acts of lasciviousness to those victims who are within the range of 12 to 17 years old, and even those 18 years old and above under special circumstances who are still considered as "children" under Section 3 (a) of R.A. No. 7610. While Malto is correct that consent is immaterial in cases under R.A. No. 7610 where the offended party is below 12 years of age, We clarify that consent of the child is material and may even be a defense in criminal cases involving violation of Section 5, Article III of R.A. No. 7610 when the offended party is 12 years old or below 18, or above 18 under special circumstances. Such consent may be implied from the failure to prove that the said victim engaged in sexual intercourse either"due to money, profit or any other consideration or due to the coercion or influence of any adult, syndicate or group."This notion was reiterated by the Court in Monroy v. People,3viz:cralawred
x x x x
If the victim who is 12 years old or less than 18 and is deemed to be a child "exploited in prostitution and other sexual abuse" because she agreed to indulge in sexual intercourse "for money, profit or any other consideration or due to coercion or influence of any adult, syndicate or group," then the crime could not be rape under the RPC, because this no longer falls under the concept of statutory rape, and there was consent. That is why the offender will now be penalized under Section 5 (b). R.A. No. 7610, and not under Article 335 of the RPC [now Article 266-A], But if the said victim does not give her consent to sexual intercourse in the sense that the sexual intercourse was committed through force, threat or intimidation, the crime is rape under paragraph 1, Article 266-A of the RPC. However, if the same victim gave her consent to the sexual intercourse, and no money, profit, consideration, coercion or influence is involved, then there is no crime committed, except in those cases where "force, threat or intimidation" as an element of rape is substituted by "moral ascendancy or moral authority," like in the cases of incestuous rape, and unless it is punished under the RPC as qualified seduction under Article 337 or simple seduction under Article 338.2 (Emphasis and underscoring supplied)
xxx The concept of consent under Section 5 (b), Article III of RA 7610 peculiarly relates to the second element of the crime - that is, the act of sexual intercourse is performed with a child exploited in prostitution or subjected to other sexual abuse. A child is considered "exploited in prostitution or subjected to other sexual abuse" when the child is predisposed to indulge in sexual intercourse or lascivious conduct becauseHence, for the successful prosecution of a violation of Section 5(b) of Republic Act No. (RA) 7610, it must be proven that the child engaged in sexual intercourse or lascivious conduct due to money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group.
of money, profit or any other consideration or due to the coercion of any adult, syndicate, or group, which was not shown in this case; hence, petitioner's conviction for the said crime cannot be sustained.4 (Emphasis supplied)
It bears stressing that the Court's finding does not mean absolute certainty that petitioner did not coerce AAA to engage in the sexual act. It is simply that the evidence presented by the prosecution fall short of the quantum of proof required to support a conviction. Jurisprudence has consistently held that "[a] conviction in a criminal case must be supported by proof beyond reasonable doubt, which means a moral certainty that the accused is guilty; the burden of proof rests upon the prosecution." If the prosecution fails to do so, "the presumption of innocence of the accused must be sustained and his exoneration be granted as a matter of right. For the prosecution's evidence must stand or fall on its own merit and cannot be allowed to draw strength from the weakness of the evidence for the defense," as in this case. (Emphasis supplied)Evaluating the facts of this case with the relevant, factors that may have influenced AAA's perception and judgment at the time of the commission of the crime, I believe the Court should similarly acquit herein accused-appellant on account of reasonable doubt. Compared to Monroy, where the 14-year-old victim professed her love to therein accused through a letter, the supposed "consent" of herein victim, who just barely turned 12 years old when the incident occurred, is less recognizable. Accordingly, rather than absolving accused-appellant because AAA absolutely and undoubtedly "consented" to having sexual intercourse with him, I believe that the Court should, instead, acquit accused-appellant on the ground of reasonable doubt engendered by to the prosecution's failure to present evidence on other factors that may have affected AAA's consent such that it can be considered ineffectual or driven by coercion or influence.
Endnotes:
1 G R. No. 227363, 12 March 2019.
2 Id.
3 G.R. No. 235799, July 29. 2019.
4 Id.
5Ramilo v. People, G.R. No. 234841, 03 June 2019.
6Quimvel v. People, 808 Phil. 889-1000 (2017); G.R No. 214497, 18 April 2017, 823 SCRA 192, 230.
7 Section 2, RA 7610.
8 Section 3, RA 7610.
9People v. Andres, 324 Phil. 124-151 (1996); G.R. No. 114936. 20 February 1996, 253 SCRA 751, 757.
10 Lique, Venus V. The Anti- Rape Law and the Changing Times: Nature, Issues and Incidents. 43 ATENEO L.J. 141 (1999). See https://drive.google.com/file/d/13FwizXkNFs7Im_bfqpBijpTJWQ2zgqqf/view.
11Patula v. People, 685 Phil. 376-411 (2012); G.R. No. 164457, 11 April 2012, 669 SCRA 135, 150.
12People v. Baulite, 419 Phil. 191-199 (2001); G.R.No. 137599, 08 October 2001, 366 SCRA 732, 737.
13Supra at note 3