PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. TOMAS ABLOG Y FERNANDO, DEFENDANT-APPELLANT.

People versus Ablog

The Case

This is the People of the Philippines against Tomas Ablog y Fernando, a criminal case for statutory rape. The accused, then sixty-eight years old, was charged with having carnal knowledge of his ten-year old grandniece, Christine Winda Montera, inside a common comfort room shared by their two households. The case matters for the bar candidate because it gathers in one decision the Court's settled rules on the defense of impotency and old age, on the credibility of a child victim, on what constitutes carnal knowledge, and on the civil liability that follows a conviction for rape.

Procedural History

The Monteras charged Tomas Ablog with statutory rape before the Regional Trial Court of Pasig City. After trial, the court convicted him of raping his ten-year old grandniece, sentenced him to reclusion perpetua, and ordered him to indemnify the victim in the amount of 100,000 pesos. Ablog appealed to the Supreme Court, invoking the constitutional presumption of innocence and insisting that the prosecution failed to prove his guilt beyond reasonable doubt. The Supreme Court affirmed the conviction but modified the award of damages.

Facts

The Montera family lived in a house abutting a wall of the house of Tomas Ablog in West Crame, Quezon City. The two families lived harmoniously until the evening of 27 May 1995. Between 7:30 and 8:00 o'clock that evening, Christine Winda Montera, nicknamed Tin-tin, was sitting on a wooden bed under their house with her grandmother Vivian Baldo, whom she called Lola Bibing, watching her mother Erlinda wash clothes nearby. Tin-tin asked permission to go to the comfort room used in common by both families. She was allowed to go alone.

While inside, she saw through the sackcloth covering her granduncle, Tomas Ablog, whom she called Lolo Tomas, approaching and lowering the zippers of his short pants. From past experiences with him, she already sensed his sexual intentions. He entered bringing a slat of wood, laid it on the floor, and told her to lie down. She obliged. He commanded her to undress while he removed his shorts and underpants. He told her to spread her legs, briefly played with her private parts, and kissed her immature breasts. He then placed himself on top of her, told her to hold his flaccid penis, and penetrated her. He was still pumping when her grandmother called for her, and continued until Lola Bibing called for Erlinda. Finally he pulled himself out, told Tin-tin to rise and dress up, and instructed her to step out of the room first.

As Tin-tin was going out she met her mother Erlinda, who also noticed Ablog coming out of the same room while zipping up his shorts. Erlinda took Tin-tin up to their house and asked why she and her Lolo Tomas came out of the comfort room together. Tin-tin tearfully narrated her ravishment. The couple agreed to have their daughter medically examined and to file the necessary complaint. Dr. Owen Lebaquin of the PNP Crime Laboratory Service found shallow and healed lacerations on the hymen at the 3:00 o'clock and 9:00 o'clock positions, and the external vaginal orifice offered strong resistance to the insertion of the doctor's index finger. The Monteras charged Ablog with statutory rape on 31 May 1995. Thereafter they received several offers for settlement from Baltazar Ablog, a nephew of the accused, and from a certain Aida Alvarez, a townmate. The accused himself approached William Montera during the investigation at Camp Crame to seek his forgiveness. The Monteras never yielded.

Issues

• Whether or not the defense of impotency on account of old age and hypertension can overcome the presumption in favor of potency and overturn a conviction for rape.
• Whether or not the alleged inconsistencies and omissions in the testimony of the child victim, including her description of the accused's penis as soft and small, discredit her and negate carnal knowledge.
• Whether or not the absence of a freshly broken hymen, and the failure to present the victim's underwear or the wooden board, negate rape.
• Whether or not the accused is guilty beyond reasonable doubt of statutory rape, and what civil liability properly attaches.

Applicable Provisions

Article 335, paragraph 3 of the Revised Penal Code, as the Court cites it, defines the crime charged:

Article 335, par. (3) of the Revised Penal Code is committed by having carnal knowledge of a woman under twelve (12) years of age.

This is the provision under which the accused was convicted, and it fixes the age of the victim, not her consent, as the operative element.

Section 11 of Republic Act Number 7659, as the Court describes it, governs the death penalty in qualified rape:

Section 11 of RA 7659 imposes the supreme penalty only on relatives by blood or affinity who are within the third civil degree when the rape victim is under eighteen (18) years of age.

This provision explains why the accused escaped the supreme penalty: his relationship to the victim fell outside the third civil degree.

Ruling

On the first issue, the Court rejected the claim of impotency. Impotency as a defense in rape cases must be proved with certainty to overcome the presumption in favor of potency. The accused never presented himself for examination, and his own expert, Dr. Arnold Pasia, could not state with unequivocal conviction that his hypertension was permanent and of such gravity as to render him bereft of sexual desires and potency; the doctor stressed that the hypertension was merely symptomatic and could be healed by proper medication. Old age alone is no criterion, for the Court had previously convicted an octogenarian of rape.

On the second issue, the Court held that omissions in an affidavit do not necessarily discredit the affiant's testimony in open court, since affidavits taken ex parte are generally inferior to testimony given in court. On the description of the penis as soft and small, the Court saw no inconsistency with the medical findings. Softness is relative, and it may even be the touching by the offended party that transformed its initially soft condition to hardness. Nor is it improbable for a penis of that size to penetrate the vagina of a ten-year old girl, because the resistance of the hymen does not depend on the size of the penetrator but on the laxity of the hymen itself.

On the third issue, the Court stressed that nowhere did the accused categorically deny penetration of the labia of the victim, and held:

It is well settled that penetration, no matter how slight, or the mere introduction of the male organ into the labia of the pudenda constitutes carnal knowledge.

Shallow and healed lacerations do not negate rape, for a freshly broken hymen is not an essential element of the crime. Neither is the presentation of the underwear or the wooden board necessary to the prosecution.

On the fourth issue, the Court found the accused guilty beyond a scintilla of doubt, taking into account the numerous offers of settlement, his plea of forgiveness which was tantamount to a confession of guilt, and his admission that he could think of no ill motive on the part of the Monteras. The trial court's assessment of the child's credibility was accorded great weight. On the penalty, the Court noted that the accused was fortunate that the relationship he abused was the very relationship that saved him from death, since he was a fourth civil degree relation of the offended party. The civil indemnity of 100,000 pesos was reduced to 50,000 pesos, and another 50,000 pesos was awarded as moral damages without need for pleading or proof of its basis.

Doctrine

A bar candidate should retain these rules. First, impotency as a defense in rape must be proved with certainty to overcome the presumption in favor of potency, and old age taken alone is not a criterion in determining sexual interest and capability. Second, carnal knowledge is complete upon penetration, no matter how slight, or the mere introduction of the male organ into the labia of the pudenda; a freshly broken hymen is not an essential element of rape. Third, omissions in an ex parte affidavit do not necessarily discredit the affiant's testimony in open court. Fourth, the trial judge's findings on the credibility of witnesses are accorded great weight because of his unique opportunity to observe them firsthand. Fifth, under Section 11 of Republic Act Number 7659, the death penalty for qualified rape requires that the offender be a relative by blood or affinity within the third civil degree and the victim under eighteen years of age. Sixth, moral damages may be awarded to the rape victim without need for pleading or proof of its basis.

Disposition

The Supreme Court affirmed the conviction and the sentence of reclusion perpetua, reduced the civil indemnity from 100,000 pesos to 50,000 pesos, and awarded another 50,000 pesos as moral damages, with no costs.

Remember This

Memorize the line that penetration, no matter how slight, or the mere introduction of the male organ into the labia of the pudenda constitutes carnal knowledge. Examiners use this case for the defense of impotency and old age, for the credibility of a child victim of rape, and for the rule that moral damages may be awarded without need of proof.