THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ZZZ, ACCUSED-APPELLANT.

People versus ZZZ

The Case

This is a criminal appeal in which the People of the Philippines prosecuted a father, referred to in the record as ZZZ, for sexually violating his own thirteen-year-old daughter, AAA. Two separate charges were filed: one for rape by sexual intercourse and one for rape by sexual assault. The case matters for two reasons. First, it is a textbook illustration of how the Court weighs the lone testimony of a child victim in incestuous rape, and how a father's moral ascendancy may substitute for force, threat, or intimidation. Second, and more importantly for the bar, it is a precise application of the rule that an accused charged with rape by sexual intercourse cannot be convicted of rape by sexual assault, however clearly the latter may be proven at trial, because the two modes of rape are materially distinct and the second is not subsumed in the first.

Procedural History

Two Informations were filed against ZZZ, and the cases were consolidated before the Regional Trial Court, Branch 20, Tacurong City. On arraignment, ZZZ pleaded not guilty to both charges, and trial on the merits followed. In a Joint Judgment dated the fourteenth of January 2009, the trial court convicted him of both crimes. For rape by sexual intercourse, it imposed reclusion perpetua and ordered him to pay civil indemnity, moral damages, and exemplary damages. For rape by sexual assault, it imposed an indeterminate penalty ranging from twelve years of prision mayor as minimum to eighteen years of reclusion temporal as maximum, with the corresponding awards of damages.

ZZZ appealed to the Court of Appeals, faulting the trial court for convicting him. He argued that the complainant was an unreliable witness because of inconsistencies in her testimony as to the exact times she arrived at the bunk house and went to sleep, that no force, threat, or intimidation was shown, and that penile penetration was doubtful. The Office of the Solicitor General defended the conviction, stressing the medical corroboration and the father's moral ascendancy. In a Decision dated the thirtieth of October 2015, the Court of Appeals denied the appeal and affirmed the Joint Judgment in full. ZZZ then elevated the matter to the Supreme Court, and both he and the Office of the Solicitor General adopted their respective briefs filed in the Court of Appeals in lieu of supplemental briefs.

Facts

AAA was the eldest of the four children of ZZZ and BBB. She was born on the twenty-ninth of April 1994, so that in October 2007 she was thirteen years old. She was then studying, and to save on transportation costs and time she moved into the bunk house her father rented near his work, where he was employed as a helper on a ten-wheeler truck.

On the night of the twenty-fifth of October 2007, at about ten o'clock in the evening, AAA was sleeping alone in the bunk house. A few hours later she noticed her mosquito net being raised and saw her father removing his short pants. He removed her shorts and panty, held her hands with one hand, covered her mouth with the other, and spread her legs with his knee. He inserted his penis into her vagina and stayed on top of her for about twenty minutes. She did not shout because she was afraid: two knives had been placed near her head, and he threatened to kill her, her siblings, and her mother if she did not submit. He dismounted when someone switched on a light at the back of the bunk house. She felt pain and saw blood on the blanket, then moved to the sofa and cried herself to sleep.

On the third of November 2007, at around one o'clock in the morning, AAA came home to the bunk house after watching television with friends. While she was sleeping, she felt her father remove her blanket, place her head on his arm, and spread her legs with his leg. He inserted his finger into her vagina for about five minutes, and she felt pain. When she pleaded with him to stop, he stopped and went to sleep. On the fifth of November 2007 her mother visited, and AAA confided what her father had done. She later told her uncle, and on the eleventh of November 2007, with her mother and a companion, she reported the matter to the Tacurong City Police Station. A physician who examined her on the twelfth of November 2007 found healed lacerations in her vagina and issued a medical certificate. After the cases were filed, ZZZ sent his daughter a handwritten letter asking for forgiveness. At trial he offered alibi and denial, claiming he was on truck deliveries in Davao City and General Santos City on the relevant dates, but he admitted sending the letter.

Issues

• Whether or not the appellant is guilty beyond reasonable doubt of qualified rape by sexual intercourse in the first case.
• Whether or not the appellant is guilty beyond reasonable doubt of qualified rape by sexual assault in the second case.

Applicable Provisions

Article 266-A of the Revised Penal Code defines rape and its modes:

Article 266-A. Rape: When And How Committed. - Rape is committed: 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.

This provision supplies the elements of rape by sexual intercourse, which the Court measures against the evidence in the first case.

Article 266-B of the Revised Penal Code provides the penalty and the qualifying circumstances:

Article 266-B Penalty - The death penalty shall also be imposed if the crime of rape is committed with any of the following aggravating/qualifying circumstances: 1) When the victim is under eighteen (18) years of age 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.

This is the provision that qualifies the rape, the victim being a minor and the offender her own father, and it fixes the penalty and the civil liabilities.

Ruling

On the first issue, the Court affirmed the conviction for qualified rape by sexual intercourse. It held that the complainant's testimony was spontaneous, clear, and consistent, and that the alleged discrepancies as to the exact times she arrived and slept were trivial and did not touch the material elements of the crime. Precision as to the time of the rape has no bearing on its commission. The Court stressed that youth and immaturity are badges of truth, that no improper motive was shown to have impelled a daughter to accuse her own father, and that the medical findings of healed lacerations corroborated her account of penetration. Against this, the appellant's alibi and denial were the weakest of defenses, since he failed to prove that it was physically impossible for him to be at the scene. The Court also treated his handwritten plea for forgiveness as an implied admission of guilt. On the elements of qualified rape, the Court found all of them present: sexual congress with a woman, by force and without consent, the victim under eighteen, and the offender her parent. It added that even without actual force or intimidation, the father's moral ascendancy and influence over his daughter sufficed to subjugate her will.

On the second issue, the Court reached a different result, not because the molestation was not proven, but because of a defect in the charge. The Information in the second case charged rape by sexual intercourse, yet the evidence established rape by sexual assault, committed by inserting a finger into the victim's vagina. The Court applied its ruling in People versus Caoili, quoting it:

By jurisprudence, however, an accused charged in the Information with rape by sexual intercourse cannot be found guilty of rape by sexual assault, even though the latter crime was proven during trial.

The reason lies in the material distinctions between the two modes. In rape by sexual intercourse the offender is always a man, the offended party always a woman, the act is penile penetration of the vagina, and the penalty is reclusion perpetua. In rape by sexual assault the offender and the offended party may each be a man or a woman, the act is inserting the penis into another's mouth or anal orifice, or any instrument or object into the genital or anal orifice, and the penalty is prision mayor. Because the first mode is not necessarily included in the second, and the second is not subsumed in the first, the variance doctrine cannot be applied. To convict the appellant of rape by sexual assault under an Information charging rape by sexual intercourse would violate his constitutional right to be informed of the nature and cause of the accusation against him.

Doctrine

First, the elements of qualified rape are sexual congress with a woman, accomplished by force and without consent, the victim being under eighteen years of age, and the offender being a parent, ascendant, step-parent, guardian, a relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent. Second, in incestuous rape the father's moral ascendancy and influence may substitute for force, threat, or intimidation, since his moral and physical dominion is sufficient to cow the victim into submission. Third, the lone testimony of a child victim, when clear, convincing, and consistent, and corroborated by medical findings of penetration, is sufficient to sustain a conviction, and a plea for forgiveness is an implied admission of guilt. Fourth, and most examinable, an accused charged with rape by sexual intercourse cannot be convicted of rape by sexual assault even if the latter is proven at trial, because the two modes are materially distinct and the second is not included in the first; the variance doctrine does not apply, and a conviction for the uncharged mode would violate the right to be informed of the nature and cause of the accusation.

Disposition

The Court affirmed the conviction for qualified rape by sexual intercourse in the first case, but acquitted the appellant of rape by sexual assault in the second case because that crime was not charged in the Information.

Remember This

Memorize this line: an accused charged with rape by sexual intercourse cannot be convicted of rape by sexual assault, however clearly proven, because the second mode is not subsumed in the first. Examiners use this case to test the distinction between the two modes of rape and the constitutional right of the accused to be informed of the nature and cause of the accusation.