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DISSENTING OPINION

REGALADO, J.:

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.

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 latters 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.

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.

I fully agree with the discussion of Mr. Justice Davide that considerations of law and logic sustain the truth of the victims assertion, 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. Appellants proffered explanation for such an inexplicable conduct which he imputes to her is as bizarre as it is melodramatic.

In complainants 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.

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 questions 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.

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 for him for his stupidity.

That posture as a paragon of virtue which he affected was obviously to counter the prosecutions theory that, taking advantage of complainants 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 appellants pretense that she shouted at and cursed him for rebuffing her advances, which would be the conduct of a woman scorned by his indifference.

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.

Providentially, however, a third person was awakened by the unrestrained wailing of complainant over the outraged committed against her and what the former revealed in her testimony yields further light on the truth of complainants version. Nenita Maraon, 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, Maraon called out to him not to do so, only to realize shortly thereafter that truth of the caretakers presence on that occasion, as well as the accuracy of what she recounted to the court.

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 appellants 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 her 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.

2. I need not devote much space to the proposition that it was complainants negligence, in not ascertaining the identity of the person who come in the dark to lie with her, which resulted in her ravishment. 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 boyfriends 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.

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.

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.

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 appellants 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.

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.

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.³chanroblesvirtuallawlibrary

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 tambien equellas 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 x x x de la suplantacion del marido (oscuridad, timbre de voz, semisueno, etcetera). La jurisprudencia francesa siempre ha considerado estos casos como de violacion. 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 (Italics supplied).

Parenthetically, the conjoined word semisueno, which we shall meet again, is the legal term used by Spanish commentators to denote a person who is half asleep, semi being the prefix meaning half or partly, and sueno being sleep, sleeping, drowsiness.⁵chanroblesvirtuallawlibrary

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 cause 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: x x x 2. Cuando la mujer sa 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 semisueno de una mujer, penetre en su lecho fraudulentamente, y yace con ella haciendola creer que es su marido, sera responsible 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 cualquier otro medio que consista en cohibirla o soeprenderla 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 enganosos 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 semisueno 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 agraviada para auxiliarla contra el violador, que al ver descubierto el fraude apelo precipitadamente a la fuga: Considerando que semejantes hechos contienen los elementos constitutivos del crimen de violacion, etc. (S. de 31 de diciembre de 1858, Bull. Crim., pag. 539) Creemos que nustros 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 esta se halla privada de razon o de sentido, por cualquiera causa, habrian de estimar como causa de privacion de sentido ses semisueno durante el cual no funcionan sino incompletamente las facultadas del alma. ⁷ (Emphasis 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 fatuus 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.

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.