G.R. No. 211002, January 21, 2015, RICHARD RICALDE, PETITIONER, VS. PEOPLE OF THE PHILIPPINES, RESPONDENT.
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Lastly, we address petitioner’s invocation of the “variance doctrine” citing People v. Sumingwa.24
Section 4 in relation to Section 5 of Rule 120 of the Rules on Criminal Procedure provides for the “variance doctrine”:
SEC. 4. Judgment in case of variance between allegation and proof.—When there is variance between the offense charged in the complaint or information and that proved, and the offense as charged is included in or necessarily includes the offense proved, the accused shall be convicted of the offense proved which is included in the offense charged, or of the offense charged which is included in the offense proved.
SEC. 5. When an offense includes or is included in another.—An offense charged necessarily includes the offense proved when some of the essential elements or ingredients of the former, as alleged in the complaint or information, constitute the latter. And an offense charged is necessarily included in the offense proved, when the essential ingredients of the former continue or form part of those constituting the latter.
In Sumingwa, the accused in Criminal Case Nos. 1649 and 1654 was charged with qualified rape but was convicted for the lesser offense of acts of lasciviousness committed against a child under Article III, Section 5(b) of Republic Act No. 761025 since “there was no penetration, or even an attempt to insert [the accused’s] penis into [the victim’s] vagina.”26
In the instant case, no variance exists between what was charged and what was proven during trial. The prosecution established beyond reasonable doubt all elements of the crime of rape through sexual assault.
XXX testified that he “felt something was inserted [into his] anus.”27 The slightest penetration into one’s sexual organ distinguishes an act of lasciviousness from the crime of rape. People v. Bonaagua28 discussed this distinction:
It must be emphasized, however, that like in the crime of rape whereby the slightest penetration of the male organ or even its slightest contact with the outer lip or thelabia majora of the vagina already consummates the crime, in like manner, if the tongue, in an act of cunnilingus, touches the outer lip of the vagina, the act should also be considered as already consummating the crime of rape through sexual assault, not the crime of acts of lasciviousness. Notwithstanding, in the present case, such logical interpretation could not be applied. It must be pointed out that the victim testified that Ireno only touched her private part and licked it, but did not insert his finger in her vagina. This testimony of the victim, however, is open to various interpretation, since it cannot be identified what specific part of the vagina was defiled by Ireno. Thus, in conformity with the principle that the guilt of an accused must be proven beyond reasonable doubt, the statement cannot be the basis for convicting Ireno with the crime of rape through sexual assault.29 (Emphasis supplied)
People v. Bonaagua considers a woman’s private organ since most if not all existing jurisprudence on rape involves a woman victim. Nevertheless, this interpretation can apply by analogy when the victim is a man in that the slightest penetration to the victim’s anal orifice consummates the crime of rape through sexual assault.
The gravamen of the crime is the violation of the victim’s dignity. The degree of penetration is not important. Rape is an “assault on human dignity.”30
People v. Quintos31 discussed how rape causes incalculable damage on a victim’s dignity, regardless of the manner of its commission:
The classifications of rape in Article 266-A of the Revised Penal Code are relevant only insofar as these define the manners of commission of rape. However, it does not mean that one manner is less heinous or wrong than the other. Whether rape is committed by nonconsensual carnal knowledge of a woman or by insertion of the penis into the mouth of another person, the damage to the victim’s dignity is incalculable. Child sexual abuse in general has been associated with negative psychological impacts such as trauma, sustained fearfulness, anxiety, self-destructive behavior, emotional pain, impaired sense of self, and interpersonal difficulties. Hence, one experience of sexual abuse should not be trivialized just because it was committed in a relatively unusual manner.
“The prime purpose of [a] criminal action is to punish the offender in order to deter him and others from committing the same or similar offense, to isolate him from society, reform and rehabilitate him or, in general, to maintain social order.” Crimes are punished as retribution so that society would understand that the act punished was wrong.
Imposing different penalties for different manners of committing rape creates a message that one experience of rape is relatively trivial or less serious than another. It attaches different levels of wrongfulness to equally degrading acts. Rape, in whatever manner, is a desecration of a person’s will and body. In terms of penalties, treating one manner of committing rape as greater or less in heinousness than another may be of doubtful constitutionality.
However, the discriminatory treatment of these two acts with the same result was not raised in this case. Acknowledging that every presumption must be accorded in favor of accused in criminal cases, we have no choice but to impose a lesser penalty for rape committed by inserting the penis into the mouth of the victim.32 (Citations omitted)
We affirm petitioner’s conviction but modify the penalty imposed by the lower court to the penalty under Article III, Section 5(b) of Republic Act No. 7610 known as the “Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act”33:
SEC. 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 perpertua 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 maybe: 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; (Emphasis supplied)
The Implementing Rules and Regulations of Republic Act No. 7610 defines “lascivious conduct”:
[T]he 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.34
In People v. Chingh,35 the accused was charged with rape “for inserting his fingers and afterwards his penis into the private part of his minor victim[.]”36 The Court of Appeals found the accused guilty of two counts of rape: statutory rape and rape through sexual assault37. This court modified the penalty imposed for rape through sexual assault to the penalty provided in Article III, Section 5(b) of Republic Act No. 7610, discussing as follows:
It is undisputed that at the time of the commission of the sexual abuse, VVV was ten (10) years old. This calls for the application of R.A. No. 7610, or “The Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act,” which defines sexual abuse of children and prescribes the penalty therefor in Section 5(b), Article III, to wit:
. . . .
In this case, the offended party was ten years old at the time of the commission of the offense. Pursuant to the above-quoted provision of law, Armando was aptly prosecuted under paragraph 2, Article 266-A of the Revised Penal Code, as amended by R.A. No. 8353, for Rape Through Sexual Assault. However, instead of applying the penalty prescribed therein, which is prision mayor, considering that VVV was below 12 years of age, and considering further that Armando’s act of inserting his finger in VVV’s private part undeniably amounted to lascivious conduct, the appropriate imposable penalty should be that provided in Section 5 (b), Article III of R.A. No. 7610, which is reclusion temporal in its medium period.
The Court is not unmindful to the fact that the accused who commits acts of lasciviousness under Article 366, in relation to Section 5 (b), Article III of R.A. No. 7610, suffers the more severe penalty of reclusion temporal in its medium period than the one who commits Rape Through Sexual Assault, which is merely punishable by prision mayor. This is undeniably unfair to the child victim. To be sure, it was not the intention of the framers of R.A. No. 8353 to have disallowed the applicability of R.A. No. 7610 to sexual abuses committed to children. Despite the passage of R.A. No. 8353, R.A. No. 7610 is still good law, which must be applied when the victims are children or those “persons below eighteen (18) years of age or those over but are unable to fully take care of themselves or protect themselves from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability or condition.”38 (Emphasis supplied, citations omitted)
Thus, “for Rape Through Sexual Assault under paragraph 2, Article 266-A, [the accused Chingh was] sentenced to suffer the indeterminate penalty of twelve (12) years, ten (10) months and twenty-one (21) days of reclusion temporal, as minimum, to fifteen (15) years, six (6) months, and twenty (20) days of reclusion temporal, as maximum.”39
The imposable penalty under Republic Act No. 7610, Section 5(b) “for lascivious conduct when the victim is under twelve (12) years of age shall be reclusion temporal in its medium period.” This penalty is higher than the imposable penalty of prision correccional for acts of lasciviousness under Article 336 of the Revised Penal Code.
In enacting Republic Act No. 7610, the legislature intended to impose a higher penalty when the victim is a child.
The fact that XXX was only 10 years old when the incident happened was established by his birth certificate, and this was admitted by the defense40. His age of 10 years old was alleged in the Information41. The higher penalty under Republic Act No. 7610, as discussed in People v. Chingh, applies in this case.
Having sex with a 10-year-old is child abuse and is punished by a special law (Republic Act No. 7610). It is a progression from the Revised Penal Code to provide greater protection for children. Justice Velasco suggests that this is not so. He anchors his view on his interpretation that Republic Act No. 7610 requires a showing that apart from the actual coerced sexual act on the 10-year-old, the child must also be exploited by prostitution or by other sexual acts. This view is inaccurate on grounds of verba legis and ratione legis.
The first paragraph of Article III, Section 5 of Republic Act No. 7610 clearly provides that “children . . . who . . . due to the coercion . . . of any adult . . . indulge in sexual intercourse . . . are deemed to be children exploited in prostitution and other sexual abuse.” The label “children exploited in . . . other sexual abuse” inheres in a child who has been the subject of coercion and sexual intercourse.
Thus, paragraph (b) refers to a specification only as to who is liable and the penalty to be imposed. The person who engages in sexual intercourse with a child already coerced is liable.
It does not make sense for the law not to consider rape of a child as child abuse. The proposal of Justice Velasco implies that there has to be other acts of a sexual nature other than the rape itself that will characterize rape as child abuse. One count of rape is not enough. Child abuse, in his view, is not yet present with one count of rape.
This is a dangerous calculus which borders on judicial insensitivity to the purpose of the law. If we adopt his view, it would amount to our collective official sanction to the idea that a single act of rape is not debilitating to a child. That a single act of rape is not a tormenting memory that will sear into a child’s memory, frame his or her view of the world, rob him or her of the trust that will enable him or her to have full and diverse meaningful interactions with other human beings. In my view, a single act of sexual abuse to a child, by law, is already reprehensible. Our society has expressed that this is conduct which should be punishable. The purpose and text of the law already punish that single act as child abuse.
Rape is rape. Rape of a child is clearly, definitely, and universally child abuse.
Justice Velasco further observes that the right to due process of the accused will be violated should we impose the penalty under Republic Act No. 7610. I disagree.
The Information was clear about the facts constitutive of the offense. The facts constitutive of the offense will suggest the crime punishable by law. The principle is that ignorantia legis non excusat. With the facts clearly laid out in the Information, the law which punishes the offense should already be clear and the accused put on notice of the charges against him.
Additionally, there is no argument that the accused was not represented by counsel. Clear from the records is the entry and active participation of his lawyer up to and including this appeal.
On the award of damages, we maintain the amount of P30,000.00 in favor of XXX as a victim of rape through sexual assault, consistent with jurisprudence42.
This court has stated that “jurisprudence from 2001 up to the present yields the information that the prevailing amount awarded as civil indemnity to victims of simple rape committed by means other than penile insertion is P30,0001.”43
This statement considered the prevailing situation in our jurisprudence where victims of rape are all women. However, as in this case, men can also become victims of rape through sexual assault, and this can involve penile insertion.
WHEREFORE, the Court of Appeals Decision in CA-G.R. C.R. No. 34387 dated August 28, 2013 is AFFIRMED with MODIFICATION in that for rape through sexual assault under Article 266-A, paragraph 2, accused-appellant Richard Ricalde is sentenced to suffer the indeterminate penalty of twelve (12) years, ten (10) months and twenty-one (21) days of reclusion temporal, as minimum, to fifteen (15) years, six (6) months and twenty (20) days of reclusion temporal, as maximum. He is ordered to pay the victim civil indemnity in the amount of P30,000.00 and moral damages likewise in the amount of P30,000.00, both with interest at the legal rate of 6% per annum from the date of finality of this judgment until fully paid.
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