PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. XXX277728, ACCUSED-APPELLANT.

People versus XXX277728

The Case

This is an ordinary appeal in a criminal case for sexual abuse of a child. The People of the Philippines prosecuted XXX277728, the biological father of the victim AAA277728, for raping his then fourteen-year-old daughter. The case matters for two reasons. First, it fixes the threshold for consummated rape by carnal knowledge when the accused's penis merely hovered over, but was never shown to have entered, the victim's sex organ. Second, it settles the proper designation of the offense when the act proved is the introduction of a finger into the child's genitalia: lascivious conduct under Section 5(b) of Republic Act No. 7610, not rape by sexual assault under the Revised Penal Code.

Procedural History

An Information was filed before the Regional Trial Court charging XXX277728 with rape. Upon arraignment he pleaded not guilty. After the prosecution rested, he moved to plead guilty to the lesser offense of acts of lasciviousness, and the victim expressed her conformity, but the public prosecutor opposed the plea bargaining, so the trial court denied the motion and directed the defense to present evidence. The Regional Trial Court found him guilty beyond reasonable doubt of qualified rape, sentenced him to reclusion perpetua without eligibility for parole, and awarded civil indemnity, moral damages, and exemplary damages, all with legal interest. He appealed to the Court of Appeals. The Court of Appeals upheld the conviction but modified it, changing the designation of the offense to lascivious conduct under Section 5(b) of Republic Act No. 7610, imposing reclusion perpetua, and adjusting the monetary awards and the fine. The case then reached the Supreme Court by ordinary appeal.

Facts

At about midnight of July 24, 2017, AAA277728, then fourteen years old, was sleeping on a mattress inside their house together with her nine-year-old brother and her father, with the brother positioned between her and the accused. She was awakened when her father lay down beside her and embraced her. She tried to remove his hands, but he persisted. He touched, fondled, and sucked her breasts, kissed her neck, pulled down her lower garments, and inserted his finger into her vagina with a push and pull movement. He then forced her to hold his penis, spread her legs, and placed his penis over her vagina, telling her he would do it slowly. She covered her vagina with her hands and closed her legs while weeping quietly. Her brother suddenly moved, and the accused stopped. He warned her not to tell anyone, saying he would go to jail.

The following morning she reported the incident to her teacher, who contacted her mother in Singapore and accompanied her to the authorities for a medico-legal examination.

At trial she testified in detail and wept on the stand. Presented later by the defense, she retracted, claiming she fabricated the charges because her father was too strict, that she did not realize the gravity of her accusations, and that she recanted voluntarily to help her father and restore peace.

Issues

• Whether or not XXX277728 should be convicted for sexually abusing AAA277728.
• Whether or not, if convicted, the proper designation of the offense is lascivious conduct under Section 5(b) of Republic Act No. 7610.

Applicable Provisions

Section 5(b) of Republic Act No. 7610 provides:

Section 5. Child Prostitution and Other Sexual Abuse. - Children, whether male or female, who for money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse. The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following: (b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to other sexual abuse: Provided, That when the victim is under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and Article 336 of Act No. 3815, as amended, the Revised Penal Code, for rape or lascivious conduct, as the case may be: Provided, that the penalty for lascivious conduct when the victim is under twelve (12) years of age shall be reclusion temporal in its medium period.

This is the provision under which the accused is ultimately convicted, because the finger he inserted into the child's genitalia falls within its definition of lascivious conduct.

Section 2(h) of the Implementing Rules and Regulations of Republic Act No. 7610 defines lascivious conduct as:

the intentional touching, either directly or through clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks, or the introduction of any object into the genitalia, anus or mouth, of any person, whether of the same or opposite sex, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person, bestiality, masturbation, lascivious exhibition of the genitals or pubic area of a person.

The introduction of a finger into the vagina is the introduction of an object into the genitalia, which places the act squarely within this definition.

Ruling

On the first issue, the Court sustained the conviction. An appeal in a criminal case throws the entire case open for review, and the Court may correct errors even if unassigned. On credibility, the Court applied its settled guidelines: the trial court's assessment of a witness's demeanor is given the highest respect, the reviewing court is generally bound by it absent substantial reason to reverse, and the rule is applied more stringently where the Court of Appeals concurred. The Court found that the Information alleged insertion of both finger and penis, but only the insertion of the finger was established beyond reasonable doubt. On the penis, the victim testified only that the accused placed it over her vagina before she covered herself and closed her legs. Under the doctrine of the case of People versus Agao, rape by carnal knowledge is consummated once the penis penetrates the vulval cleft or the cleft of the labia majora, however slight. Whether that threshold was reached here was uncertain, and under the equipoise rule, where inculpatory facts admit of two interpretations, one consistent with innocence, the evidence does not fulfill the test of moral certainty. The Court therefore held that insertion of the penis was not proved beyond reasonable doubt, but since the finger insertion was both alleged and proved, criminal liability subsists.

On the retraction, the Court gave it no credence. A recantation is viewed with suspicion and disfavor, because recanted testimony is exceedingly unreliable and may itself later be repudiated, and because intimidation or monetary consideration may have caused it. The original testimony must be compared with the retraction, and the circumstances and motives for the change scrutinized. The victim's prosecution testimony was detailed, straightforward, and categorical, delivered while she wept, and she submitted to a medico-legal examination. Youth and immaturity are badges of truth and sincerity, and no young girl would concoct such a tale, allow her private parts to be examined, and endure the trauma and scandal of a public trial unless she had truly been abused.

On the second issue, the Court held that the Court of Appeals correctly designated the offense. Under the doctrine of the case of People versus Tulagan, where the lascivious conduct is covered both by sexual assault under the Revised Penal Code and by the definition of lascivious conduct under Section 5(b) of Republic Act No. 7610, meaning the introduction of any object into the genitalia, the offender is liable for lascivious conduct under Section 5(b). The Court noted that the case of Gramatica versus People modified Tulagan only as to acts of lasciviousness committed against minors aged twelve and above but below eighteen, and that Tulagan remains controlling as to rape by carnal knowledge and rape by sexual assault. Because the accused is the victim's parent, the penalty is imposed in its maximum period, and a fine is added. The Court corrected one error: the fine is a criminal penalty, not civil liability, and therefore earns no interest and is not payable to the victim as damages.

Doctrine

• Rape by carnal knowledge is consummated upon the slightest penetration of the vulval cleft or the cleft of the labia majora; placing the penis merely over the vagina, without proof of entry, does not cross that threshold.
• Under the equipoise rule, where inculpatory facts admit of two interpretations, one consistent with innocence, the evidence does not fulfill the test of moral certainty and cannot support conviction.
• The introduction of a finger into a child's genitalia is lascivious conduct under Section 5(b) of Republic Act No. 7610, following the definition of lascivious conduct in its Implementing Rules and Regulations and the doctrine of Tulagan.
• A recantation is viewed with suspicion and does not necessarily vitiate a credible original testimony; the two must be compared, and the circumstances and motives for the change scrutinized.
• When the perpetrator is the parent of the victim, the penalty under Republic Act No. 7610 is imposed in its maximum period, and a fine is added; the fine is a criminal penalty, not civil liability, and earns no interest.

Disposition

The appeal was denied, and the Court of Appeals decision was affirmed with modification: XXX277728 was found guilty beyond reasonable doubt of lascivious conduct under Section 5(b) of Republic Act No. 7610, sentenced to reclusion perpetua and a fine of 15,000 pesos, and ordered to pay the victim 75,000 pesos as civil indemnity, 75,000 pesos as moral damages, and 75,000 pesos as exemplary damages, all with legal interest of six percent per annum from finality until full payment.

Remember This

Memorize this line: the slightest penetration of the labia majora consummates rape, but a penis merely placed over the vagina does not, while a finger inserted into the genitalia is lascivious conduct under Section 5(b) of Republic Act No. 7610. Examiners use this case to test the consummation threshold in rape by carnal knowledge, the equipoise rule, the treatment of recantations, and the Tulagan designation rule for lascivious conduct.