ManilaEN
BANC
PEOPLE
OF THE
PHILIPPINES,
Plaintiff-Appellee,
G.
R.
No. 117682
August
18, 1997
-versus-
SILVINO
SALARZA,
JR.,
Accused-Appellant.
D
E C I S I
O N
BELLOSILLO,
J.:
DEATH, the punishment
in extremis, was imposed on Silvino Salarza Jr. for rape.
We now
review his conviction.cralaw:red
Zareen Smith, British,
was 30, single, a television and stage actress. Sometime in 1994, she
came
to the Philippines and chose Boracay in Aklan and Port Barton in
Palawan
for her vacation retreats. In Port Barton, she met Enrico de Jesus,
Filipino,
26, caretaker of Elsa's Place, a resort owned by his parents. Soon
enough
a mutual attraction developed between them which ripened into an
intense
love affair that they would have sex almost every night.cralaw:red
On 30 April 1994, Enrico
brought Zareen to Mary's Cottage in Sitio Sabang, Bgy. Cabayugan, and
introduced
her to his granduncle, Rogelio Marañon, and grandaunts, Nenita
Marañon
and Maria Ausan, who collectively owned and managed the resort. Enrico
and Zareen occupied Cottage No. 1. They spent the day at the beach
where
they drank and swam. They were later joined in by Enrico's friend
Silvino
Salarza, Jr., a tourist guide, a press relations officer and a
fisherman.cralaw:red
In the evening Enrico
and Zareen went to Sabang Centro together with Silvino, Julio Morales
and
a certain Tonton to attend a dance. The dance however was canceled so
they
proceeded to Coco Grove Restaurant and drank a bottle of rhum. Zareen
did
not drink as she preferred red wine which was not available. At eleven
o'clock the group returned to Mary's Cottage where Enrico awakened his
grandaunt Nenita and ask her for two (2) more bottles of rhum, after
which,
they went back to the beach and continued drinking. This time Zareen
opted
for a bottle of beer. After a while Zareen said she felt tired and
sleepy
so she excused herself and retired to the cottage. She was accompanied
by Enrico who left her there to sleep. Back at the beach Enrico asked
his
friends to go spearfishing. Although Silvino went with them he later
returned
to the beach because he could not stand the cold and was feeling dizzy.
From this point on, the prosecution and the defense presented varying
versions.cralaw:red
According to the prosecution,
at two o'clock in the morning of 1 May 1994 Zareen woke up when she
felt
somebody take off her underwear.[1]
The room was dark as the resort management switched off the lights at
ten
o'clock. Zareen said she did not stop the man from removing her panties
as she thought it was Enrico, her boyfriend, and she was half-asleep.
The
man in turn removed his briefs and placed himself on top of her, spread
her legs, penetrated her and executed push-and-pull movements. Later,
the
man softly whispered: "Zareen, it's not Ricky; it's Jun. I love you."
According
to Zareen, when she heard those words, she pushed him aside. She cried
and became hysterical. She went to the bathroom and washed herself, at
the same time telling Silvino, "Why? Why did you do that to me? You
have
ruined everything. You know that Ricky and I are trying to have a baby
of our own, what will happen now? I might get impregnated by what you
did
to me." Silvino, however, assured her that pregnancy was out of the
question
as he did not ejaculate.cralaw:red
Maria Ausan heard Zareen
cry so she awakened Nenita. Thinking that Enrico was forcing himself on
Zareen, Nenita went near Cottage No. 1 and pleaded, "Rico, please
naman,
kung ayaw huwag mong pilitin." But she did not enter the cottage.
At
this moment she noticed a lighted petromax approaching. It was Enrico
with
Julio and Tonton coming from the beach. Enrico hurriedly walked to the
cottage. He saw Silvino coming out. At once he assumed that Silvino
must
have molested Zareen. Upon nearing Silvino, Enrico punched him even
before
Zareen could narrate what happened to her. Rogelio Marañon and
Julio
Morales then reported the incident at the police station and Patrolmen
Eleazar and Rodillo immediately responded.cralaw:red
On the other hand, Silvino
claims that it was Zareen who was flirting with him. His version is
that
while at Coco Grove Restaurant, whenever Enrico was not looking, Zareen
would whisper to him and place her arm on his shoulder. She would talk
to him about her stay in Boracay with her sister Lucila and the men she
met there. In turn, he spoke to her about his former girlfriends. When
Enrico invited him to go spearfishing he went with the group but after
a while he returned to the beach saying he was feeling cold and dizzy
having
imbibed one too many. He even stumbled and fell on the sand. As a
result,
he got sand all over his body so he proceeded to the public restroom
for
a shower. On the way to get his t-shirt and cigarettes he saw Zareen
lying
on the hammock. She asked him for a cigarette and insisted that he take
his shower inside her cottage instead of the public restroom which was
about a hundred meters away. He hesitated for a while but finally
acceded.cralaw:red
After emerging from
his shower he was surprised to see Zareen on the bed. She pulled him
towards
her and asked him to make love to her. She embraced him tightly and
kissed
him lustfully. He was surprised with the turn of events and felt
uncomfortable
because of Enrico whom he did not wish to offend, much less betray, so
he pushed her away. In her exasperation she shouted, "Sh---t you, you
are
stupid!" Then she rushed to the bathroom and washed herself. He
heard
the voice of Nenita Marañon coming from outside Cottage No. 1
calling
for Enrico and inquiring what was happening, apparently thinking it was
her grandnephew with Zareen having a lover's quarrel. So Silvino
answered,
"This is not Ricky, Tiyay, this is me, Jun." He informed her that he
had
just taken his shower inside. While Silvino and Nenita were talking,
Zareen
was simply keeping quiet. As he went out of the cottage he met Enrico
on
the way. Nenita shouted, "Jun, Ricky is coming, you're dead!" True
enough
Enrico boxed Silvino. Tonton and Julio ganged up on him, beat him,
poured
pepper on his body and pulled him towards the river. Fearful that they
would eventually kill him, Silvino crawled towards the coconut grove
and
upon reaching the road leading to Sabang Centro he walked to the police
station to lodge his complaint. On his way, he met Policemen Eleazar
and
Rodillo. Rodillo brought him to the police station while Eleazar
continued
his way towards Mary's Cottage to conduct an investigation.cralaw:red
But the trial court
was not persuaded by Silvino's story. It pronounced him guilty of rape
and imposed upon him the supreme penalty of death. The court threw out
his declaration that Zareen had been flirting with him earlier and was
the one who even proposed that they engage in sex that night. It found
incredible that Zareen would fall for Silvino and substitute him for
Enrico,
rationalizing that Zareen was 30 years old, Enrico 26, and Silvino
already
35, and that Enrico was 5'8" tall, handsome, with a well-shaped face
and
nose, while Silvino was not generously endowed and standing only at
5'2".
Besides, it argued that a woman would not charge a person with the
heinous
crime of rape if it were not true, for she would not allow the
examination
of her private parts and subject herself to a public trial which are
both
embarrassing if her accusation was merely fabricated. It quoted People
v. Selfaison,[2]
where it was held that it was difficult to believe that the
complainants,
who were young and unmarried, would tell a story of defloration, allow
the examination of their private parts and thereafter permit themselves
to be a subject of a public trial if they were not motivated by an
honest
desire to have the culprits apprehended and punished. Obviously the
court
did not find it pertinent that Zareen was already 30, a stage and
television
actress, by her admission had several boyfriends in the past with whom
she had sexual relations, and was possessed with a vigorous appetite
for
sex as she was indulging in intercourse with Enrico almost every night
without benefit of marriage.cralaw:red
Quite interestingly,
the Information alleges that Silvino had carnal communication with
Zareen
while she was asleep, with the use of force, against her will and
without
her consent.cralaw:red
We do not find the facts
substantiating the Information. We must acquit.cralaw:red
Under Art. 335 of the
Revised Penal Code, as amended by Sec. 11, R. A. 7659, rape is
committed
by having carnal knowledge of a woman under any of the following
circumstances:
(a) by using force or intimidation; (b) when the woman is deprived of
reason
or otherwise unconscious; and, (c) when the woman is under twelve (12)
years of age or is demented. The facts of this case do not by any means
show the existence of any of these circumstances; thus we cannot see
how
the trial court have convicted and, worse, sentenced the accused to die.cralaw:red
First, the complaining
witness was not below twelve (12) years of age at the time of the
alleged
commission of the offense. She was already thirty (30) years old.
Neither
was she demented.cralaw:red
Second, the Information
avers use of force but the evidence negates any use of force, nay, not
even intimidation, in the commission of the offense charged. In fact,
as
discussed hereunder, the sexual advances of the accused were done with
the consent of the complaining witness although she claimed she thought
that the man who laid with her was her boyfriend Enrico. Here it may be
argued that consent to the sexual act was given by Zareen only because
of her erroneous belief that the man on top of her was Enrico,
thus
implying that had she known it was someone else she would have resisted.cralaw:red
The explanation is not
persuasive. The evidence shows that this mistake was purely a
subjective
configuration of Zareen's mind an assumption entirely contrived
by
her. Our impression is that Silvino had nothing to do with the
formulation
of this belief; he did nothing to mislead or deceive Zareen into
thinking
that he was Enrico. In fact, Silvino precisely, and confidently, told
her,
"Zareen, it's not Ricky; it's Jun. I love you." It is thus obvious that
whatever mistake there was could only be attributable to Zareen
and
her inexcusable imprudence and to nobody else. Clearly, the fault
was hers. She had the opportunity to ascertain the identity of the man
but she preferred to remain passive and allow things to happen as they
did. Silvino never used force on her and was even most possibly
encouraged
by the fact that when he pulled down her panties she never objected;
when
her legs were being parted she never objected; and, when he finally
mounted
her she never objected. Where then was force?
Third, Zareen was not
deprived of reason or otherwise unconscious when the accused had
intercourse
with her. Her lame excuse was that she was half-asleep. However she
admitted
that in the early morning of 1 May 1994 she woke up to find someone
removing
her underwear. Thuswise, it cannot be said that she was deprived of
reason
or unconscious. She knew, hence, was conscious, when her panties were
being
pulled down; she knew, hence, was conscious, when her legs were being
parted
to prepare for the sexual act; she knew, hence, was conscious, when the
man was pulling down his briefs to prepare himself likewise for the
copulation;
she knew, hence, was conscious, when the man mounted her and lusted
after
her virtue. Her justification was that she never objected to the sexual
act from the start because she thought that the man was her boyfriend
with
whom she was having sex almost every night for the past three (3) weeks
as they were getting married and wanted already to have a baby. In
other
words, her urge could not wait for the more appropriate time.cralaw:red
The prosecution would
have the accused convicted of rape under its hypothesis that the
complaining
witness was half-asleep, ergo unconscious, when the sexual assault took
place. Obviously, it had in mind the doctrine enunciated in 1929 in
People
v. Corcino,[3]
and later in 1935 in People v. Caballero.[4]
These cases, however, do not apply because the offended parties there
were
unquestionably fast asleep and not just half-asleep as in the
instant
case when the act was perpetrated. Consequently, there was no
opportunity
for them to either object or give their consent as they were in deep
slumber
at the time of the coition. It was only some time after they woke up
that
they realized that the men having sex with them were not their husbands
they thought them to be. In convicting the accused, this Court held, as
the trial courts did, that the crime of rape had already been
consummated
even before the offended parties woke up from their sleep. In Caballero
it was found that when Consorcia, the offended party, awoke the
appellant
had already introduced his organ into her genitals and in fact he was
already
having sexual intercourse with her. We mention this fact on account of
a certain doubt arising from the offended party's testimony during the
direct examination relative to this detail, but in the attempt of the
attorney
for the defense to clarify this point during his cross-examination, the
offended party categorically affirmed that she had been unaware when
the
appellant introduced his organ into hers when the offended party awoke,
the crime of rape committed by the appellant was already consummated,
having
had carnal knowledge with the offended party while she was unconscious
for being asleep. The offended party's consent to the act was
subsequent
thereto and it was given on the belief that the man lying with her was
her own husband. (emphasis supplied).[5]
The import of this pronouncement
is that it was no longer relevant, much less significant, that after
waking
up the offended party continued to have sex with the man she thought
was
her husband. Her "consent" to the act was subsequent to the rape, or
after
the crime was already committed; the fact that the consent even
if
only implied was given on the belief that the man was her spouse,
was inconsequential. In the case of Zareen, her "consent" was given
prior
to the carnal act, i.e., the act was done because of her
passivity,
if not consent.cralaw:red
The record abounds with
indicia to discredit the theory of the prosecution that Zareen was dead
drunk when the alleged rape took placed. Having consumed only a small
quantity
of rhum during the day, according to her, and a bottle of beer in the
evening
on a normal pace, she could not have been so drunk as to be deprived of
reason or otherwise rendered unconscious. When she returned to her
cottage
she immediately fell asleep as she was tired and remained so for some
time.
When she was supposedly molested at around two-thirty the following
morning
she must have already been, as we believe she was, in full possession
of
her mental and physical faculties. Whatever intoxicating effect the
rhum
and beer might have had on her would have already worn off.cralaw:red
Zareen herself claimed
that she woke up when she felt someone removing her panties. This means
she was fully conscious when somebody approached her bed, removed her
panties,
spread her legs "although not far apart but just enough to get her
underwear
off," and then proceeded to perform coital movements with her. Her
testimony
that she knew that the "intruder" removed his own briefs; that his
penis
was already erect; that no effort to foreplay was made before
penetrating
her in his first attempt; that the man did not kiss her nor touch her
breasts;
that she did not even guide his penis into the trough of her ferminity;
and, that he "pushed-and-pulled" on top of her for approximately less
than
a minute, all validate our conviction that she was fully
conscious
not asleep nor even half-asleep of what was being done to her from the
beginning. She was also aware that there was no light as the gas lamp
inside
the cottage was not lighted and the electricity was already shut off.cralaw:red
Most significantly,
Zareen was acutely aware of the manner by which Silvino identified
himself
"Zareen, it's not Ricky; it's Jun" because she testified that "
xxx
it was not preceeded by a question. It was as if Jun wanted to wake me
up fully."[6]
To repeat, all these details vividly recalled and recounted by her
ineluctably
indicate that she was awake all the time and capable of comprehending
the
nature of the sexual act and of exercising her own free will as to
yield
to or resist a Lothario's libido.cralaw:red
Zareen had known Enrico
for three [3] weeks and since then had been making love with him almost
every night. It strains credulity and understanding that she could have
mistaken Silvino for Enrico. Their constant lovemaking and togetherness
would have already made her familiar with the physical attributes of
Enrico
and accustomed to his fornicating peculiarities. Zareen even asserted
that
Enrico was not inclined to sexual intercourse when drunk and would
usually
indulge in foreplay before actual copulation. These oddities are cues
which
reasonably engender suspicion that the man she was having carnal
communication
with was not her lover but someone else. She had the moral
responsibility
not only to herself but to society itself to ascertain first the
identity
of her "ravisher" before yielding completely to him. It can hardly be
said
that she was not imprudent, reckless and irresponsible in giving in to
her own sexual impulses. Moreover, being almost a stranger in the
place,
Zareen should have been leery of her surroundings especially at night.
In this regard, she should not have left her cottage door unlocked as
much
as she did leave pregnable and unshielded the portals of her womanhood.cralaw:red
In People v. Bacalzo,[7]
the accused boxed his victim into unconsciousness. When the victim
regained
her consciousness she felt the flaccid penis of her ravisher still
inside
her vagina and that thereafter he removed his sexual organ. He then
warned
her not to divulge what had happened or else she and her family would
be
killed. Force, which was used to knock the victim into unconsciousness,
was employed before the act was done to ensure its consummation. In
People
v. Corcino[8]
the complaining witness was totally asleep and when she woke up the
organ
of the accused was already inside her genitalia. In People v. Caballero[9]
the victim was fully asleep when the accused had carnal communication
with
her, such that when she woke up the crime of rape was already
consummated.
The same was true in People v. Inot.[10]
In People v. Dayo,[11]
the rapist's organ was already in the vagina of the offended party when
she woke up, so she pushed him away and screamed. But the accused
pulled
out his revolver and threatened to kill her if she made any further
outcry.
She fainted, and the accused continued having sex with her. In fine, in
all these cases raped was already consummated before the offended
parties
could even exercise their volition to grant or deny access to erotic
consortium.cralaw:red
Under the circumstances
we cannot help entertaining serious doubts on the culpability of the
accused.
Rape is a charge easy to make, hard to prove and harder to defend by
the
party accused, though innocent. Experience has shown that unfounded
charges
of rape have frequently been proferred by women actuated by some
sinister,
ulterior or undisclosed motive. Convictions for such crime should not
be
sustained without clear and convincing proof of guilt. On more than one
occasion it has been pointed out that in crimes against chastity the
testimony
of the injured woman should not be received with precipitate credulity.
When the conviction depends on any vital point upon her uncorroborated
testimony, it should not be accepted unless her sincerity and candor
are
free from suspicion. A little insight into human nature is of utmost
value
in judging matters of this kind.[12]
But even from the narration
of Zareen, the elements of the crime of rape are, regretfully,
miserably
wanting. There was no force nor intimidation; Zareen was not deprived
of
reason nor otherwise unconscious; and, she was not below twelve nor
demented.cralaw:red
WHEREFORE, the decision
appealed from is REVERSED and SET ASIDE and accused-appellant SILVINO
SALARZA
JR. is ACQUITTED of the crime charged; consequently, he is ordered
immediately
RELEASED from confinement unless held for some other lawful cause.
Costs
de oficio.cralaw:red
SO ORDERED.cralaw:red
Narvasa, C.J.,
Puno, Kapunan, Hermosisima, Jr., JJ., concur.cralaw:red
Vitug, J., I
vote for acquittal not for anything attributable to complainant but
simply
because of a failure of proof beyond reasonable doubt.cralaw:red
Torres, Jr., J.,
is on leave.
Separate
Opinions
FRANCISCO, J.,
concurring:
By her own account,
complainant was half-asleep when accused-appellant took off her
underwear,
removed his briefs, placed himself on top of her, spread her legs,
penetrated
her and executed push and pull movements. Thinking that it was her
boyfriend,
complainant did not do anything until accused-appellant softly
whispered
to her "Zareen, it's not Ricky; it's Jun. I love you." Afterwhich, she
pushed him aside.
Complainant's tale
of rape is unconvicing. It is quite puzzling that a supposed rapist,
who
having accomplished with utmost ease his sinister intention to have
carnal
knowledge with an unsuspecting victim, would all of a sudden
unexplainably
blow his cover by revealing his identity. Instinctively, the attacker's
natural reaction would be to shield himself from every possibility of
being
identified to avoid prosecution.cralaw:red
Even more baffling is
complainant's immediate reaction after the alleged rape. Instead of
fleeing
from the clutches of her attacker, complainant proceeded to the
bathroom
and washed herself for fear of being impregnated. At the same time, she
even talked to her attacker and asked him why he did such thing to her.
Undoubtedly, her reaction was too casual for somebody who was supposed
to have undergone a harrowing experience of rape.cralaw:red
On this score, I find
it hard to give credence to complainant's testimony bearing in mind
that
"evidence, to be believed, must not only proceed from the mouth of a
credible
witness, but it must be credible in itself such as the common
experience
and observation of mankind can approve as probable under the
circumstances."
Complainant's testimony does not jibe with the normal reactions
commonly
exhibited by persons placed under the same situation. Thus, her version
is simply incredible.cralaw:red
I, therefore, concur
with the opinion of Justice Bellosillo and vote for the acquittal of
herein
accused-appellant.cralaw:red
_____________________________________
Mendoza, J.,
concurs.cralaw:red
_____________________________________
Regalado, J.,
dissenting:
I find the presentation
and analysis by Mr. Justice Davide of the case for the People to be
both
objective and sustained by the evidence, hence I adopt the position he
has taken, with some observations in amplification.cralaw:red
1. In the delictual
setting of the rape case at bar, it is obvious that the ascertainment
of
the true factual version on its commission must have primacy in the
inquiry.
Here, as is often the situation, we have the word of complainant Zareen
Smith that she was raped while half-asleep as against that of appellant
Salarza denying the charge. The peculiarity in the latter's negation is
that, aside from completely denying that he had ever sexually molested
complainant, he adds that by her own enticements it would have been a
consensual
affair had he done so.cralaw:red
We must perforce assay
their contending accounts along the fundamental principle that the
prosecution
must rely primarily on the strength of its evidence, but with the
contrapuntal
rule that affirmative assertions have greater evidentiary weight than
bare
denials. Also, while jurisprudence teaches that a rape charge is easy
to
make and hard to disprove, since generally only the complainant and the
accused can testify on what actually happened, yet it is both a
commonsensical
and doctrinal rule that the weakness revealed by the false testimony of
one strengthens pro tanto the credibility of the declarations of the
other.cralaw:red
I fully agree with the
discussion of Mr. Justice Davide that considerations of law and logic
sustain
the truth of the victim's assertions, with the accusing finger of
prevarication
pointing at appellant. Indeed, one is hard put to rationalize why
complainant
should charge appellant with such a heinous crime with its grave
penalty
apparently for no reason at all and without any perceivable motive for
doing so. Appellant's proffered explanation for such an inexplicable
conduct
which he imputes to her is as bizarre as it is melodramatic.cralaw:red
In complainant's story,
we have all the earmarks of truth consistent with the expectable
reactions
of a woman whose virtue has been sullied against her will. As further
imprints
of her credibility, not all her revelatory statements are
self-laudatory
nor tailored by exaggeration in order to subserve an unworthy purpose.
Appellant, on the other hand, weaves a tale of fancied events which
would
project the sainted innocence he claims to have maintained against
supposed
erotic temptations.cralaw:red
Thus, for instance,
complainant could very well have passed over in silence or explained
away
her past sexual experiences abroad, or her relations with her local
boyfriend,
Enrico de Jesus, just to strike a pitiable pose as a victim worthy of
full
sympathy. Instead of honestly admitting that she was half-asleep and
slightly
aware when the pre-coital acts were done on her person, she could have
so easily dissembled without fear of contradiction that she was fast
asleep
and totally insensible to everything until her discovery of what
appellant
was doing to her. Yet, she did not do so but, to her credit, she
candidly
answered all question's fielded to her by the investigators and the
court
in the manner in which they now appear of record, thereby even
affording
appellant the opportunity for a nitpicking defense.cralaw:red
Appellant, as earlier
stated, assumed a different stance by reciting that complainant first
induced
him to go to her cottage; then after stripping to the nude, she first
tried
to manually stimulate him sexually; then when he did not react, she
wanted
to perform fellatio on him; and when he refused, she tried to have him
engage in cunnilingus with her. All these sexual wiles and
blandishments
he claims to have stolidly rejected, such that complainant angrily
berated
him for his stupidity.cralaw:red
That posture as a paragon
of virtue which he affected was obviously to counter the prosecution's
theory that, taking advantage of complaint's somnolence or drowsiness,
he easily obtained physical access to and quickly commenced sexual
congress
with her but he was discovered as a lecherous impostor and the victim
cried
out her anguish and emotional revulsion. This was, therefore, the
natural
reaction of a woman who was wronged by a sexual imposition against her
will. This is in contrast to appellant's pretense that she shouted at
and
cursed him for rebuffing her advances, which would be the conduct of a
woman scorned by his indifference.cralaw:red
A mere comparison of
the respective narrations of the parties readily exposes which one is
evidently
fabricated. Indulging appellant in his fabulous claim, one may then
wonder
why, with the cottage door open and her boyfriend expected to return
any
time, complainant would seek to have both normal and deviant sexual
relations
with appellant, despite the time that would be involved and without any
precautions against discovery. Worse, after being thus spurned in her
alleged
desires, she is supposed to have scandalously shouted and cursed out
her
frustration for all to hear, instead of keeping silent so that the
shameful
episode would not be known by others.cralaw:red
Providentially, however,
a third person was awakened by the unrestrained wailing of complainant
over the outrage committed against her and what the former revealed in
her testimony yields further light on the truth of complainant's
version.
Nenita Marañon, caretaker of the cottage rented by complainant
and
her boyfriend, confirmed inter alia that upon arrival at the cottage,
she
heard complainant crying. In fact, thinking that she was being forced
to
have sex by her boyfriend against her will, Marañon called out
to
him not to do so, only to realize shortly thereafter that it was
appellant
instead who was there. Appellant admitted the truth of the caretaker's
presence on that occasion, as well as the accuracy of what she
recounted
to the court.cralaw:red
Taken in concert with
the findings and conclusions in the opinion of Mr. Justice Davide, I
venture
to state that only naivete or gullibility would grant any cachet to
appellant's
defensive charade. In fact, my understanding is that even those
sympathetic
to his plea for acquittal concede that he did have sexual intercourse
with
the victim, thereby upholding he version and giving the lie to that of
appellant. It is instransigently posited, however, that the blame for
the
assault against her chastity is ascribable to complainant, and that
brings
this opinion to a discussion of that extraordinary thesis.cralaw:red
2. I need not devote
much space to the proposition that it was complainant's negligence, in
not ascertaining the identity of the person who came in the dark to lie
with her, which resulted in her revishment. This would be equivalent to
saying that the stealth of the rapist would be rewarded with absolution
upon proof of negligence on the part of the victim in meticulously
ascertaining
any semblance of duplicity in the forbidding privacy of the bedroom.
Complainant
was expecting her boyfriend's momentary return, then she fell asleep;
she
was slightly aroused by the preliminaries for coitus which she and her
boyfriend had been indulging in and, in the dark with nothing to warn
her
otherwise, in her drowsy state of mind she submitted to the person she
thought was her boyfriend.cralaw:red
She is now faulted for
not exercising that degree of diligence necessary to detect any
strategy
of an impostor, otherwise the latter shall be rewarded for his success.
The responsibility for the sexual assault is laid at the door of the
victim
for not detecting and preventing it from happening, and not upon the
felon
who schemed and caused the event to happen. This appears to be the
alarming
import of the arguments offered in defense of appellant on this score,
a cogitation which regretfully I cannot reconcile with any doctrinal
rule
I have learned in the law of crimes against chastity.cralaw:red
It is insisted, moreover,
that the pertinent law contemplates the situation "[w]here the woman is
deprived of reason or otherwise unconscious,"[1]
and the cases so far decided in our jurisdiction involved as victims
women
who were fully asleep at the time the rape may be legally deemed
consummated.
Hence, the case at bar does not fall within the purview of such
statutory
and case law since the victim was only half asleep and supposedly
admitted
to some degree of awareness when her panties were being removed.cralaw:red
Mr. Justice Davide has
cited authoritative discussions demonstrating, from both physiological
and neurological considerations, that a person who is half asleep and
therefore
in a stupor of drowsiness or semiconsciousness, is not capable of
giving
full, informed, intelligent and voluntary consent. This refutes and
exposes
the essence of appellant's evasive tactics, that is, since it is beyond
cavil that he did sexually penetrate her, the fallback alternative is
to
argue that it was with her consent even if she was then half asleep.cralaw:red
This is a legal gambit,
passing under the guise of novelty, but which has been analyzed and
disposed
of long ago since it is a matter of common and ordinary human
experience.
A woman who is half asleep being only half conscious, or in a state of
drowsiness hence not fully conscious, is not capable of completely
giving
that consent contemplated as valid in law which would bar a prosecution
for rape upon the defense of consensuality in the sexual act.cralaw:red
Thus, as pointed out
by one of our early commentators on the Revised Penal Code, Judge
Guillermo
B. Guevarra, "He who lies with a woman, while the latter is in a state
of unconsciousness or drowsiness, is guilty of rape."[2]
Drowsiness is defined as the state of being drowsy, that is, ready to
fall
asleep or half asleep.[3]
This echoes the writings
of a Spanish commentator on this mode of commission of rape as embodied
in the Spanish Penal Code of a vintage contemporary with ours, that is,
El Codigo de 1932, which provides that rape is committed "que este
privada
la mujer de razon o de sentido." He explains:
b) Que dentro de
la frase privada de sentido cabe comprender también aquellas
situaciones
en que puede encontrarse la mujer en las que, bien por accidentes
exteriores,
bien por hallarse en un estado crepuscular, entienda que no debe
resistir.
Es el caso.de la suplantación del marido [oscuridad,
timbre
de voz, semisueño, etcetera]. La jurisprudencia francesa siempre
ha considerado estos casos como de violación. En nuestra patria
el Tribunal Supremo asi lo estimo en un caso en que la mujer se
encontraba
dormida [31 de enero de 1902]. Entendemos debe apreciarse igual
doctrina
en las otras hipotesis.[4](Emphasis supplied)
Parenthetically, the conjoined
word "semisueño," which we shall meet again, is the
legal
term used by Spanish commentator to denote a person who is half asleep,
"semi" being the prefix meaning "half" or "partly," and "sueño"
being "sleep, sleeping, drowsiness."[5]
Of more familiarity
and direct application to the present case is the work of Viada on the
Spanish Penal Code of 1870,[6]
the principal source of our Revised Penal Code, where he cites and
discusses
a case almost on all fours with that before us, the only difference
being
that it was the husband there, and the boyfriend here, who was
supplanted
by the rapist. Involved therein was Article 453 of said Code which
pertinently
provided: "Se comete violacion yaciendo con la mujer en cualquiero
de
los casos siguientes: xxx 2. Cuando la mujer se hallare privada
de
razon o de sentido por cualquiera causa."
The illustration given
therein, which is substantially identical with the situation in the
case
at bar, is as follows:
CUESTION 6.
El que aprovechandose de semisueño de una mujer, penetra en su
lecho
fraudulentamente, y yace con ella haciendola creer que es su marido,
sera
responsable del delito de violacion? El Tribunal Supremo de
casacion
frances ha resuelto la afirmativa: "Considerando, dice, que el crimen
de
violacion consiste en el hecho de yacer con una mujer contra su
voluntad,
ya provenga la falta de consentimiento de la violencia fisical o moral
que de se ejercicio sobre ella, ya del cualqueir otro medio que
consista
en cohibirla o sorprenderla para conseguir, sin la voluntad de la
victima,
el objeto el autor del acto: Considerando que de los hechos probados en
esta causa resulta que valiendose Dubas de engañosos artificios
con objeto de hacerse pasar por Laurent, se ha introducido en el cuarto
y en el lecho de la mujer de este, y aprovechandose del
semisueño
en que se hallaba sumida, ha logrado yacer con la expresada mujer, la
que
estaba tan distante de consentir el acto ejeculado por Dubas, que al
concebir
sospechas de que no era realmente su marido la persona con quien
cohabitaba,
lo rechazo al instante, dando voces de socórro, a las que
acudió
el padre de la agraviada para auxiliarla contra el violador, que al ver
descubierto el fraude apeló precipitadamente a la fuga:
Considerando
que semejantes hechos contienen los elementos constitutivos del crimen
de violación, etc." (S. de 31 de diciembre de 1858, Bull. Crim.,
pag. 539) Creemos que nuestros Tribunales habrian de resolver el caso
en
igual sentido, ya que comprendiendo el num. 2 del articulo, como caso
de
violacion, el de yacer con una mujer cuando ésta se halla
privada
de razon o de sentido, por cualquiera causa, habrian de estimar como
causa
de privación de sentido ese semisueno durante el cual no
funcionan
sino incompletamente las facultadas del alma.[7](Emphases supplied)
With the confluence
of all the foregoing indicia and dicta on his guilt, it is pointless
for
appellant to latch on to the ignis factuus of reasonable doubt for
acquittal.
For, as important as the rule that innocence shall not suffer is the
societal
imperative that guilt shall not escape. The trial court, in my view,
acted
correctly in pronouncing a verdict of guilty in light of the proven
facts;
unfortunately, it imposed an erroneous penalty, in point of law.
Appellant has been
sentenced to death, the court below invoking as its authority therefor
the provisions of Article 335 of the Revised Penal Code, as last
amended
by Republic Act No. 7659. Yet nowhere in the records is there a showing
that any of the circumstances which would warrant the imposition of the
capital punishment, as successively introduced by amendments to Article
335,[8]
obtain in this case. For that matter, the trial court does not specify
either or even intimate what circumstance it relies on for the death
penalty.
This is, therefore, a case of simple rape punishable only by reclusion
perpetua, yet the death penalty has been inexplicably imposed through a
serious judicial error for which the judge a quo should be made to
account.cralaw:red
I, therefore, vote for
the affirmance of the conviction of accused-appellant Silverio Salarza,
Jr. for the felony of simple rape, and that the lower penalty of
reclusion
perpetua be imposed on him.cralaw:red
Padilla, Romero, Melo
and Panganiban, JJ., concur.cralaw:red
_____________________________________
Davide, Jr., J.,
dissenting:
After reading the well-crafted
ponencia of our colleague, Mr. Justice Bellosillo, the
appealed
decision and the transcripts of the stenographic notes of the
witnesses,
I am more than convinced that accused-appellant should not be allowed
to
go scot-free. He should be convicted of rape. I beg then to dissent.
The core issues in
this case are: (a) whether accused Silverio Salazar, Jr. had carnal
knowledge
of complainant, Zareen Smith; and (b) whether he did so under
circumstances
which made him liable for rape.cralaw:red
Zareen testified that
accused had carnal knowledge of her while she was half-sleep and in the
belief, in all good faith, that it was her boyfriend Enrico de Jesus
(Ricky)
who penetrated her. When she found out that it was the accused, she
immediately
pushed him aside and confronted the accused: "Why? Why did you do it to
me? You have ruined everything. You know that Ricky and I are trying to
have a baby of our own, what will happen now? I might get impregnated
by
what you did to me." Then crying hysterically, she went to the bathroom
to wash, with Nenita Marañon, caretakers of Mary's Cottage,
having
heard her cries.cralaw:red
The trial court gave
full faith to her story, holding:
The testimony of the
complaining witness herein is very credible. It is natural, simple,
straightforward,
convincing and consistent with human nature and the run of things in
this
world. It has all the earmarks of truth and verity. (OR, 71).cralaw:red
Its summary of Zareen's
testimony and explanation as to its credibility are as follows:
The alleged victim and
the vital witness presented by the prosecution to prove the heinous
crime
of Rape charged in this case, Miss Zareen Smith, who is a British stage
and TV actress, positively identified and pointed to the accused
Silverio
Salarza, Jr. alias Jun as the person who "very quickly penetrated" her
or had sexual intercourse with her without her consent and against her
will which happened at about 2:00 o'clock in the early morning of May
1,
1994 in Cottage No. 1, at Sabang, Cabayugan, Puerto Princesa City at
the
time she was half asleep and/or half awoke as she was drank after
taking
liquor and tired and was merely asleep for about two (2) hours earlier.
Someone was removing her underwear and she was half asleep and the room
was dark, and so, she assumed he was her boyfriend, Ricky de Jesus.
Very
quickly the accused Jun Salarza was on top of her and penetrated her or
had sexual intercourse with her which happened fast when she was still
half asleep. The accused made in-and-out movements on top of her after
he entered his penis into her vagina and then told her: "Zareen, it's
not
Ricky, it's Jun, I love you". These words were uttered by the accused
as
if he wanted to wake her up. Upon hearing these words, the victim
Zareen
pushed the accused off her immediately and ran to the bathroom a few
meters
away to wash herself. While washing at the bathroom, she was screaming
at the accused in a loud voice, saying: "Why Jun did you do this to me,
you ruined everything. You know Ricky and I wanted to have a baby, why
did you do this to me, why? why?" Then the accused Salarza came to the
door of the bathroom and tried to pacify her. He wanted her to be calm
because she was hysterical. The accused Jun Salarza then told her?
"It's
alright I did not finish". The victim Zareen was crying as she was
washing
herself and she told him that her boyfriend would kill her to which the
accused answered that he knows.cralaw:red
The rape victim reported
this incident to the policeman at the Police Sub-Station in Sabang,
Cabayugan
and had herself medically examined by Dr. Jesselito De Lara at the
Sabang
medical clinic with the help of Ricky de Jesus and his lola, Nenita
Marañon.
Then she formalized a complaint against the accused (Exhibits "B",
"B-1",
"B-2" and "B-3") and executed a sworn statement in support thereof
(Exhibits
"D", "D-1", and "D-3").
The alleged rape
incident
was duly reported to the nearest policemen and accordingly entered in
the
blotter of the police sub-station of Sabang, Cabayugan, this City. The
British victim with the help of her friends in the locality, lost no
time
in taking appropriate action against the accused after her womanhood
and
honor were violated and transgressed which is but a natural reaction of
any aggrieved party who has a legitimate gripe to address against a
felon.cralaw:red
It is notably significant
that the complaining witness, Zareen Smith made loud cries, shouts and
screams immediately after the accused sexually abused her. She angrily
rebuked and scolded and sharply reprimandad the accused for his
unwarranted
act in entering his penis into her private organ. These are proofs
enough
that show the disapproves, rejects, disagrees, resents, abhors and did
not like what the accused did to her. She looks decent enough to be
sexually
assaulted. (Id., 69-70)
On the other hand, the
trial court found incredulous the defense of the accused that he had no
carnal knowledge of Zareen because, despite Zareen's flirtatious ways,
he was not provoked; and despite her vigorous efforts to excite his
penis,
it did not "harden;" hence, he was unable to insert his penis into
Zareen's
private parts. For one, accused's own witness, PO2 Rosauro Rodillo,
testified
that accused admitted having had sex with Zareen. On cross-examination
Rodillo declared:
PROSECUTOR SENA:
Q Is it not a fact
that
when you confronted Jun Salarza that he had raped the victim Zareen
Smith
he admitted he used Zareen Smith only he justified it that Zareen Smith
loves him also?
A Yes, Sir.
COURT:
Q What did the
accused
admit to you?
A That he had sex
with
Zareen Smith because Zareen Smith loves him, Your Honor. (TSN, 8 June
1994,
22-23)
For another, and more specifically
as to accused's claim that he was not sufficiently stimulated to
achieve
an erection, the trial court, which had the singular advantage of
observing
accused's deportment and manner of testifying and taking full use of
all
aids to arrive at a more accurate assessment of his credibility,
declared:
The version of the accused
on this score is unnatural, abnormal and contrary to human nature and
experience.
Only inanimate objects do not react. The accused looks normal and not
otherwise
as a human person. The court saw and observed him to be so. With his
young
age and status it is unlikely that his penis will not erect or harden
if
held and played by a woman younger than him but single like him,
especially
a foreigners. [Id. 71].cralaw:red
The trial court must
have borne in mind the fact that on two previous occasions, accused had
carnal knowledge of two foreigners of the opposite sex at the same
Mary's
Cottage where Zareen claimed to have been raped by accused. On
questions
by the trial court, accused volunteered the information that he had sex
with two foreigners, thus:
COURT:
xxx
xxx
xxx
Q As caretaker of
the
cottage, have you had even one sexual intercourse with tourist, not
necessarily
Zareen Smith?
A I have, Your
Honor.
Q How many
foreigners?
A Two times, Your
Honor.
Q Both foreigners?
A Yes, Sir.
Q White?
A Yes, Sir.
Q Americans?
A No, Sir.
Q What are they?
A They are from
Netherlands,
Your Honor. (TSN, 9 June 1994, 29-30).
Notably, accused likewise
failed to convincingly refute the testimony of Enrico that at one time
the accused went inside a cottage where a female foreigner was
sleeping;
although no rape happened, the latter cried and reported the incident
to
her sister. (TSN, 2 June 1994, 31-32).
The trial court correctly
took note of these previous incidents, for under Section 34 of Rule 130
of the Rules of Court, they can be received "to prove a specific
intent,.plan.scheme, habit.and the like." With those
incidents
as premises, relevant as they are in legal contemplation, the
conclusion
is inevitable that the accused is a woman molester, with a lechery
partial
to Caucasians. His description of himself then as a "fisherman and
public
relation officer and a tourist guide at the Mary's Cottage," (TSN, 9
June
1994, 3) was nothing but a camouflage to conceal a satyr on the prowl.cralaw:red
There is, as well, no
doubt in my mind that accused intentionally proceeded to Mary's Cottage
to molest Zareen. If he merely wanted to go to the public restroom to
wash
off the sand on his body, he could have done so without passing by
Mary's
Cottage, as the communal restroom. That was more than one hundred
meters
away from Mary's Cottage. Moreover, it was not necessary for him to
wash
off the sand at the public restroom, he could have simply returned to
the
sea nearby. He went to Mary's Cottage because he knew Zareen was there,
Ricky having gone back to the beach without her.cralaw:red
Zareen's unhesitating
admission of nightly sex with her boyfriend Ricky and sexual congress
with
her previous boyfriends should not have been taken against her, as the
ponencia impliedly suggests; in fact, they were even earmarks of her
truthfulness.
She could have easily hidden those facts, there being no necessity for
their revelation. It would then be irrelevant and thus impermissible to
consider Zareen's behaviour and conclude that she was sexually
indiscriminate
as the defense would make her out to be. Clearly, a distinction may be
drawn between one who is sexually active, but monogamous, on one hand,
and who engages in indiscriminate promiscuity, on the other. But even
assuming
otherwise, it must not be forgotten that even prostitutes may be a
victim
of rape (People v. Rivera, 242 SCRA 26, 37 [1995]), and the victim's
unchaste
character is neither a defense nor a mitigating circumstance in rape
cases
(Ramon C. Aquino, The Revised Penal Code, Vol. 3 [1988], 405-406).cralaw:red
With equal strength,
it must not be overlooked that the character assassination employed by
accused against Zareen is simply contrived and an afterthought. The
accused
forgot that his main thesis was that he was under the influence of
liquor
(Tanduay) or, as testified to by his witness PO2 Rodillo, the, accused,
was drunk, thus:
COURT:
Q When you met Jun
Salarza
on the beach, Jun Salarza went on his own way and proceeded to Mary's
Cottage?
A No, your Honor.
Q What happened?
A We detained him
temporarily
to rest and that because he was drunk, Your Honor.
Q In your station?
A Yes, Your Honor.
Q So, because he
was
drunk you detained him not because of the reported rape?
A For both
reasons,
Your Honor. (TSN, 8 June 1994, 21).
If indeed the accused was
drunk, it would have been impossible for him to observed vividly, must
less accurately recall what transpired.
Finally, Zareen's conduct
immediately after discovering that the man who penetrated her was not
Ricky,
but the accused, further strengthened the credibility of her story that
she was penetrated by the accused. She shouted at and confronted the
accused,
ran to the bathroom to wash, cried and became hysterical. Her cries
were
in fact heard by Nenita Marañon, caretaker of the Mary's
Cottage,
although Nenita was staying at a place which 500 meters from Mary's
Cottage
(TSN, 1 June 1994, 8-9); she reported the incident to the police
authorities
and submitted herself to an investigation. Then she voluntarily
submitted
herself to a physical and medical examination by a physician who
examined
her private parts. These speak eloquently of her sincerity in obtaining
justice and seeking redress for a wrong, and of the absence of any
ulterior
motive on her part.cralaw:red
Having, thus, shown
that accused consummated his carnal knowledge of Zareen, the issue that
remains to be resolved is whether that act constituted rape under the
second
circumstance of Article 335 of the Revised Penal Code. This Article
pertinently
provides as follows:
Art. 335. When
and
how rape is committed. Rape is committed by having carnal
knowledge
of a woman under any of the following circumstances:
1. By using force
or
intimidation;
2. When the woman
is
deprived of reason or otherwise unconscious; and
3. When the woman
is
under twelve years of age or is demented.
The trial court held as
it did because Zareen was half-asleep and believed in good faith that
the
accused was her boyfriend Ricky. The trial court did not use the word
unconscious,
it only ruled that she was "half-asleep or subconscious (sic)"
in one instance (Decision, p. 17; OR, 68) or "half-asleep and
semi-conscious"
in another instance (Id., 21; id., 72).
When a woman is "deprived
of reason" or is "unconscious," she is deemed to have "no will," as
distinguished
from the first circumstance where force or intimidation is used, in
which
case her will "is nullified or destroyed," or that it was committed
against
her will (Aquino, op. cit., 393).cralaw:red
Deprivation of reason
need not be complete, as mere mental abnormality or deficiency is
enough.
(Id., 393-394) The crux of the matter then is the construction
and
interpretation of the word "unconscious." I submit that since both
"being
deprived of reason" and "unconsciousness" are founded on absence of
will
to give consent intelligently and freely, the term "unconsciousness,"
then,
should not be tested by a mere physical standard, i.e., whether
one is awake or asleep, conscious or alert. Rather, the inquiry should
likewise determine whether the victim was fully informed of all
considerations
so as to make a free and informed decision regarding the grant of
consent.
It is only through this two-tiered test that a holistic appraisal of
consent
may be had.cralaw:red
In our jurisprudence,
carnal knowledge of a sleeping woman is rape (People v. Dayo, 51 Phil.
102 [1927]; People v. Corcino, 53 Phil. 234 [1929]; People v.
Caballero,
61 Phil. 900 [1935] and People v. Conde, 322 Phil. 757 [1996]), because
in that state the woman is completely unconscious, both physically and
mentally. Sleep, being the naturally or artificially induced state of
suspension
of sensory and motor activity (People v. Conde, supra, at 767),
obviously deprives a woman of the ability to consent. However, to
repeat,
since it is "absence or lack of will" which is the primordial factor in
the second circumstance of rape, then I submit that to construe the
term
"unconsciousness" exclusively in light of physical considerations would
be unduly restrictive and fail to heed the gravamen of the offense,
i.e., lack of consent.cralaw:red
The ponencia makes much
of Zareen's testimony that she was aware that someone pulled off her
underwear
and spread her legs, then concludes that she must have been fully
conscious
and could not have been mistaken as to her partner's identity. However,
to take this at face value would not serve the ends of justice.
Plainly,
despite Zareen's awareness of what was being done to her, the question
of who was doing it to her was a totally different matter. Her
accession
to the what was premised on the belief, in good faith, that it was her
boyfriend who lay with her in bed. Her failure to ascertain the
identity
of her partner was a mistake in good faith for which she should not be
faulted; neither should it result in the acquittal of accused-appellant.cralaw:red
In Zareen's case, she
was still "half-asleep" or drowsy when she was penetrated by the
accused,
having been awakened when he removed her underwear and mounted her,
which
she acceded to believing, in good faith, that it was her boyfriend
Ricky,
with whom she had nightly intercourse. When this belief turned out to
be
erroneous when accused announced, in the midst of the act, that he was
not Ricky, but Jun (the accused), that was the only time that Zareen
became
fully aware of the totality of circumstances critically, that of
her partner's identity at which time she intelligently and freely
exercised her will by immediately and unequivocally rejecting the
accused.cralaw:red
I submit that an inquiry
into whether or not Zareen was half-asleep does not suffice as regards
the determination of an intelligent grant of consent; hence it may be
said
that in a sense, the grant of consent was likewise not free. Clearly,
it
is only when a woman is fully informed that consent may be
intelligently
given which was absent in the instant case. Further, given that
Zareen
was newly awakened and still drowsy; that it was 2:30 a.m.; that she
was
in her cottage; and that she had known only Ricky for the last three
weeks,
it was then not unreasonable for her to presume that the man who lay
with
her that night was no one else but Ricky.cralaw:red
However, should there
by any further debate on the issue of Zareen's physical condition and
consequences
thereof, i.e., she was "awake" thus fully conscious, I assert that
Zareen's
failure to detect that it was not Ricky who lay with her that night,
was
not only not unreasonable, but perfectly understandable, in light of
human
nature and as recognized by the medical profession. "Consciousness" has
been described by medical practitioners as denoting a state of
awareness
of one's self and one's environment;[1]
conversely, whether a person is disoriented is measured by one's degree
of alertness and awareness of the environment, considering the
circumstances
of time, place and person.[2]
What matters for purposes
of this opinion is that the medical profession recognizes a spectrum of
impaired or depressed consciousness and orientation in persons who are
nevertheless deemed "awake." The terms used in this regard are
obtundity,
somnolence and stupor.[3]
While we wish not to dabble in areas where we admittedly do not possess
the requisite expertise, at bottom, given the circumstances of time and
place, Zareen was clearly, in layman's language: disoriented, drowsy or
confused,[4]
thus cannot be held culpable for her failure to immediately recognize
that
it was not Ricky, nor her failure to ascertain Jun's identity, not even
her assumption that it was Ricky who lay with her:
This orientation as
to person, place, and time depends on the ongoing sensory impression.
Have
you ever awakened from a deep sleep to find that momentarily you did
not
know the day, the hour, or even where you were? Weren't your mental
functions
impaired until you became oriented, until all the pieces of the puzzle
suddenly fell into place?[5](Emphasis supplied)
Returning to the legal
front, what is material here is that any semblance of consent given was
clearly and painfully a mistake in good faith, as Zareen was not fully
aware of the totality of the circumstances, thus rendering her, for all
legal intents and purposes, unconscious and unable to give consent
freely
and intelligently. All told, this instance of reverse error in
personae,
clearly a material factor in the grant of consent by the victim,
resulted
in total absence of consent which accused-appellant should be held
criminally
liable for as charged.cralaw:red
On a final note, however,
the penalty therefor should not be death, as erroneously ruled by the
trial
court. Under Article 335 of the Revised Penal Code, as amended by R. A.
No. 7659, death is imposable only under any of the following
circumstances,
none of which obtain here:
When the crime of
rape
is committed with the use of a deadly weapon or by two or more persons,
the penalty shall be reclusion perpetua to death.
When by reason or
on
the occasion of the rape, the victim has become insane, the penalty
shall
be death.
When the rape is
attempted
or frustrated and a homicide is committed by reason or on the occasion
thereof, the penalty shall be reclusion perpetua to death.
When by reason or
on
the occasion of the rape, a homicide is committed, the penalty shall be
death.
The penalty shall also
be imposed if the crime of rape is committed, with any of the following
attendant circumstances:
1. When the victim
is under eighteen (18) years old and the offender is a parent,
ascendant,
step-parent, guardian, relative by consanguinity or affinity within the
third civil degree, or the common-law-spouse of the parent of the
victim.
2. When the victim
is
under the custody of the police or military authorities.
3. When the rape
is
committed in full view of the husband, parent, any of the children or
other
relatives within the third degree or consanguinity.
4. When the victim
is
a religious or a child below seven (7) years old.
5. When the
offender
knows that he is afflicted with Acquired Immune Deficiency Syndrome
(AIDS)
disease.
6. When committed
by
any member of the Armed Forces of the Philippines or the Philippine
National
Police or any law enforcement agency.
7. When by reason
or
on the occasion of the rape, the victim has suffered permanent physical
mutilation. (As amended by Sec. 11, R. A. 7659.)
WHEREFORE, I vote to affirm
the decision, subject to the modification of the penalty which should
be
reduced from death to reclusion perpetua.
Padilla, Romero, Melo
and Panganiban, JJ., concur.cralaw:red
______________________________________
Endnotes
[1]
TSN, 31 May 1994, p. 19.
[2]
No. L-14732, 28 January 1961, 1 SCRA 235.
[3]
53 Phil. 234 [1929].
[4]
61 Phil. 900 [1935].
[5]
Ibid.
[6]
TSN, 31 May 1994, p. 35.
[7]
G.R. No. 89811, 22 March 1991, 195 SCRA 565.
[8]
See Note 3.
[9]
See Note 4.
[10]
No. L-36790, 29 May 1987, 150 SCRA 322.
[11]
51 Phil. 104 [1927].
[12]
Aquino, Ramon C., The Revised Penal Code, 1966 Ed., p. 1575.
__________________________________
Regalado, J.,
dissenting:
[1]
Art. 335(2), Revised Penal Code, as amended by R.A. No. 7659.
[2]
Commentaries on the Revised Penal Code, 4th ed., 714, citing Viada, 3
Cod.
Pen., 121-122.
[3]
Webster's Third New International Dictionary [1966], 695.
[4]
Federico Puig Peña, Derecho Penal, Tomo IV, Parte Especial,
28-29.
[5]
See Appleton's New Cuyas Dictionary [1966], 5th ed., 496, 514; New
Revised
Velasquez Spanish and English Dictionary, 1959 ed., 598, 618.
[6]
Salvador Viada y Villaseca, Codigo Penal Reformado de 1870, Quinta
Edicion,
revised and updated by Salvador Viada y Rauret, Tomo V.
[7]
Op. cit., 223.
[8]
R. A. Nos. 2632, 4111 and 7659.
__________________________________
Davide, Jr., J., dissenting:
[1]
Raymond D. Adams, Coma and Related Disturbances of Consciousness, in
Kurt
J. Isselbacher, Raymond D. Adams, Eugene Braunwald, Robert G.
Petersdorf
and Jean D. Wilson (Eds.), Harrison's Principles of Internal Medicine,
at 114 (Chapter 20, 9d., 1980) (hereinafter Adams); and William E.
Demyer,
Technique of the Neurologic Examination, at 383, Chapter 11 (1994)
(hereinafter
Demyer).
[2]
See John Gilroy and John Stirling Meyer, Medical Neurology, at 3
(3d., 1979) (hereinafter Gilroy and Meyer).
[3]Obtundity is when the subject
can be
aroused
by stimuli and will then respond to questions or commands. The subject
remains aroused as long as the stimuli are applied. During arousal, the
subject responds but may be confused, in Gilroy and Meyer, id.
Somnolence
is when the persons arouses spontaneously at times or after normal
stimuli
but drifts off inappropriately. The sensorium functions adequately when
aroused, in Demyer, at 419.
Stupor
is when one appears asleep but arouses to vigorous verbal stimuli. May
awaken spontaneously for brief periods, but sensorium clouded. Shows
some
spontaneous movements and follows some brief commands, id.
[4]
Denoted as the inability to think with customary speed and coherence,
in
Adams, at 115.
[5]
Demyer, at 383.
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