Crim 2 Part 8 [PDF] | Documents Community Sharing (2024)

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 1 3RD EXAM COVERAGE – CASES and SPECIAL LAWS PARRICIDE PEOPLE v. JUMAWAN Republic of the Philippines SUPREME COURT Baguio City FIRST DIVISION G.R. No. 187495

April 21, 2014

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. EDGAR JUMAWAN, Accused-Appellant. DECISION "Among the duties assumed by the husband are his duties to love, cherish and protect his wife, to give her a home, to provide her with the comforts and the necessities of life within his means, to treat her kindly and not cruelly or inhumanely. He is bound to honor her x x x; it is his duty not only to maintain and support her, but also to protect her from oppression and wrong."1 REYES, J.: Husbands do not have property rights over their wives' bodies. Sexual intercourse, albeit within the realm of marriage, if not consensual, is rape. This is the clear State policy expressly legislated in Section 266-A of the Revised Penal Code (RPC), as amended by Republic Act (R.A.) No. 8353 or the Anti-Rape Law of 1997. The Case This is an automatic review2 of the Decision3 dated July 9, 2008 of the Court of Appeals (CA) in CA-G.R. CR-HC No. 00353, which affirmed the Judgment4 dated April 1, 2002 of the Regional Trial Court (RTC) of Cagayan de Oro City, Branch 19, in Criminal Case Nos. 99-668 and 99-669 convicting him to suffer the penalty of reclusion perpetua for each count. The Facts Accused-appellant and his wife, KKK, 5 were married on October 18, 1975. They Ii ved together since then and raised their four (4) children6 as they put up several businesses over the years. On February 19, 1999, KKK executed a ComplaintAffidavit,7 alleging that her husband, the accused-appellant, raped her at 3 :00 a.m. of December 3, 1998 at their residence in Phase 2, Villa Ernesto, Gusa, Cagayan de Oro City, and that on December 12, 1998, the accused-appellant boxed her shoulder for refusing to have sex with him.

On June 11, 1999, the Office of the City Prosecutor of Cagayan de Oro City issued a Joint Resolution, 8 finding probable cause for grave threats, less serious physical injuries and rape and recommending that the appropriate criminal information be filed against the accused-appellant. On July 16, 1999, two Informations for rape were filed before the RTC respectively docketed as Criminal Case No. 996689 and Criminal Case No. 99-669.10 The Information in Criminal Case No. 99-668 charged the accused-appellant as follows: That on or about 10:30 in the evening more or less, of October 9, 1998, at Gusa, Cagayan de Oro City, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused by means of force upon person did then and there wilfully, unlawfully and feloniously have carnal knowledge with the private complainant, her [sic] wife, against the latter[']s will. Contrary to and in Violation of R.A. 8353, the Anti-Rape Law of 1997. Meanwhile the Information in Criminal Case No. 99-669 reads: That on or about 10:30 in the evening more or less, of October 10, 1998, at Gusa, Cagayan de Oro City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused by means of force upon person did then and there wilfully, unlawfully and feloniously have carnal knowledge with the private complainant, her [sic] wife, against the latter's will. Contrary to and in Violation of R.A. 8353, the Anti-Rape Law of 1997. The accused-appellant was arrested upon a warrant issued on July 21, 1999.11 On August 18, 1999, the accusedappellant filed a Motion for Reinvestigation,12 which was denied by the trial court in an Order 13 dated August 19, 1999. On even date, the accused-appellant was arraigned and he entered a plea of not guilty to both charges.14 On January 10, 2000, the prosecution filed a Motion to Admit Amended Information15 averring that the name of the private complainant was omitted in the original informations for rape. The motion also stated that KKK, thru a Supplemental Affidavit dated November 15, 1999,16 attested that the true dates of commission of the crime are October 16, 1998 and October 1 7, 1998 thereby modifying the dates stated in her previous complaint-affidavit. The motion was granted on January 18, 2000.17 Accordingly, the criminal informations were amended as follows: Criminal Case No. 99-668: That on or about October 16, 1998 at Gusa, Cagayan de Oro City, Philippines, and within the jurisdiction of this Honorable

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 2 3RD EXAM COVERAGE – CASES and SPECIAL LAWS Court, the above-named accused by means of force upon person did then and there wilfully, unlawfully and feloniously have carnal knowledge with the private complainant, his wife, [KKK], against the latter's will. Contrary to and in violation of R.A. 8353, the Anti-Rape Law of 1997.18 Criminal Case No. 99-669: That on or about October 17, 1998 at Gusa, Cagayan de Oro City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused by means of force upon person did then and there wilfully, unlawfully and feloniously have carnal knowledge with the private complainant, his wife, [KKK], against the latter's will. Contrary to and in violation of R.A. 8353, the Anti-Rape Law of 1997.19 The accused-appellant was thereafter re-arraigned. He maintained his not guilty plea to both indictments and a joint trial of the two cases forthwith ensued. Version of the prosecution The prosecution's theory was anchored on the testimonies of KKK, and her daughters MMM and 000, which, together with pertinent physical evidence, depicted the following events: KKK met the accused-appellant at the farm of her parents where his father was one of the laborers. They got married after a year of courtship.20 When their first child, MMM, was born, KKK and the accused-appellant put up a sari-sari store.21 Later on, they engaged in several other businesses -trucking, rice mill and hardware. KKK managed the businesses except for the rice mill, which, ideally, was under the accused-appellant's supervision with the help of a trusted employee. In reality, however, he merely assisted in the rice mill business by occasionally driving one of the trucks to haul goods.22 Accused-appellant's keenness to make the businesses flourish was not as fervent as KKK's dedication. Even the daughters observed the disproportionate labors of their parents.23 He would drive the trucks sometimes but KKK was the one who actively managed the businesses.24 She wanted to provide a comfortable life for their children; he, on the other hand, did not acquiesce with that objective.25 In 1994, KKK and the accused-appellant bought a lot and built a house in Villa Ernesto, Gusa, Cagayan de Oro City.26 Three of the children transferred residence therein while KKK, the accused-appellant and one of their sons stayed in Dangcagan, Bukidnon. She shuttled between the two places regularly and sometimes he accompanied her.27 In 1998, KKK stayed in Gusa, Cagayan De Oro City most of the days of the week. 28 On Wednesdays, she went to

Dangcagan, Bukidnon to procure supplies for the family store and then returned to Cagayan de Oro City on the same day.29 Conjugal intimacy did not really cause marital problems between KKK and the accused-appellant. It was, in fact, both frequent and fulfilling. He treated her well and she, of course, responded with equal degree of enthusiasm.30However, in 1997, he started to be brutal in bed. He would immediately remove her panties and, sans any foreplay, insert her penis in her vagin*. His abridged method of lovemaking was physically painful for her so she would resist his sexual ambush but he would threaten her into submission.31 In 1998, KKK and the accused-appellant started quarrelling usually upon his complaint that she failed to attend to him. She was preoccupied with financial problems in their businesses and a bank loan. He wanted KKK to stay at home because "a woman must stay in the house and only good in bed (sic) x x x." She disobeyed his wishes and focused on her goal of providing a good future for the children.32 Four days before the subject rape incidents or on October 12, 1998, KKK and the accused-appellant slept together in Cebu City where the graduation rites of their eldest daughter were held. By October 14, 1998, the three of them were already back in Cagayan de Oro City.33 On October 16, 1998, the accused-appellant, his wife KKK and their children went about their nightly routine. The family store in their residence was closed at about 9:00 p.m. before supper was taken. Afterwards, KKK and the children went to the girls' bedroom at the mezzanine of the house to pray the rosary while the accused-appellant watched television in the living room.34 OOO and MMM then prepared their beds. Soon after, the accused-appellant fetched KKK and bid her to come with him to their conjugal bedroom in the third floor of the house. KKK complied.35 Once in the bedroom, KKK changed into a daster and fixed the matrimonial bed but she did not lie thereon with the accused-appellant and instead, rested separately in a cot near the bed. Her reclusive behavior prompted him to ask angrily: "[W]hy are you lying on the c{o]t[?]", and to instantaneously order: "You transfer here [to] our bed."36 KKK insisted to stay on the cot and explained that she had headache and abdominal pain due to her forthcoming menstruation. Her reasons did not appease him and he got angrier. He rose from the bed, lifted the cot and threw it against the wall causing KKK to fall on the floor. Terrified, KKK stood up from where she fell, took her pillow and transferred to the bed.37 The accused-appellant then lay beside KKK and not before long, expressed his desire to copulate with her by tapping his fingers on her lap. She politely declined by warding off his hand and reiterating that she was not feeling well.38

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 3 3RD EXAM COVERAGE – CASES and SPECIAL LAWS The accused-appellant again asserted his sexual yearning and when KKK tried to resist by holding on to her panties, he pulled them down so forcefully they tore on the sides. 39 KKK stayed defiant by refusing to bend her legs.40

KKK and the children proceeded to the girls' bedroom and prayed the rosary. KKK decided to spend the night in the room's small bed and the girls were already fixing the beddings when the accused-appellant entered.

The accused-appellant then raised KKK's daster,41 stretched her legs apart and rested his own legs on them. She tried to wrestle him away but he held her hands and succeeded in penetrating her. As he was carrying out his carnal desires, KKK continued to protest by desperately shouting: "[D]on 't do that to me because I'm not feeling well."42

"Why are you sleeping in the room of our children", he asked KKK, who responded that she preferred to sleep with the children.54 He then scoffed: "Its alright if you will not go with me, anyway, there are women that could be paid [P] 1,000.00." She dismissed his comment by turning her head away after retorting: "So be it." After that, he left the room.55

With a concrete wall on one side and a mere wooden partition on the other enclosing the spouses' bedroom,43KKK's pleas were audible in the children's bedroom where MMM lay awake.

He returned 15 minutes later56 and when KKK still refused to go with him, he became infuriated. He lifted her from the bed and attempted to carry her out of the room as he exclaimed: "Why will you sleep here[?] Lets go to our bedroom." When she defied him, he grabbed her short pants causing them to tear apart.57 At this point, MMM interfered, "Pa, don't do that to Mama because we are in front of you."58

Upon hearing her mother crying and hysterically shouting: "Eddie, don't do that to me, have pity on me,"44 MMM woke up 000 who prodded her to go to their parents' room. 45 MMM hurriedly climbed upstairs, vigorously knocked on the door of her parents' bedroom and inquired: "Pa, why is it that Mama is crying?"46 The accused-appellant then quickly put on his briefs and shirt, partly opened the door and said: "[D]on 't interfere because this is a family trouble," before closing it again.47 Since she heard her mother continue to cry, MMM ignored his father's admonition, knocked at the bedroom door again, and then kicked it.48 A furious accused-appellant opened the door wider and rebuked MMM once more: "Don't interfere us. Go downstairs because this is family trouble!" Upon seeing KKK crouching and crying on top of the bed, MMM boldly entered the room, approached her mother and asked: "Ma, why are you crying?" before asking her father: "Pa, what happened to Mama why is it that her underwear is torn[?]"49 When MMM received no definite answers to her questions, she helped her mother get up in order to bring her to the girls' bedroom. KKK then picked up her tom underwear and covered herself with a blanket.50 However, their breakout from the room was not easy. To prevent KKK from leaving, the accused-appellant blocked the doorway by extending his arm towards the knob. He commanded KKK to "[S]tay here, you sleep in our room," when the trembling KKK pleaded: "Eddie, allow me to go out." He then held KKK's hands but she pulled them back. Determined to get away, MMM leaned against door and embraced her mother tightly as they pushed their way out.51 In their bedroom, the girls gave their mother some water and queried her as to what happened.52 KKK relayed: "[Y]our father is an animal, a beast; he forced me to have sex with him when I'm not feeling well." The girls then locked the door and let her rest."53 The accused-appellant's aggression recurred the following night. After closing the family store on October 17, 1998, KKK and the children took their supper. The accusedappellant did not join them since, according to him, he already ate dinner elsewhere. After resting for a short while,

The presence of his children apparently did not pacify the accused-appellant who yelled, "[E]ven in front of you, I can have sex of your mother [sic J because I'm the head of the family." He then ordered his daughters to leave the room. Frightened, the girls obliged and went to the staircase where they subsequently heard the pleas of their helpless mother resonate with the creaking bed.59 The episodes in the bedroom were no less disturbing. The accused-appellant forcibly pulled KKK's short pants and panties. He paid no heed as she begged, "[D]on 't do that to me, my body is still aching and also my abdomen and I cannot do what you wanted me to do [sic]. I cannot withstand sex."60 After removing his own short pants and briefs, he flexed her legs, held her hands, mounted her and forced himself inside her. Once gratified, the accused-appellant put on his short pants and briefs, stood up, and went out of the room laughing as he conceitedly uttered: "[I]t s nice, that is what you deserve because you are [a] flirt or fond of sex." He then retreated to the masters' bedroom.61 Sensing that the commotion in their bedroom has ceased, MMM and OOO scurried upstairs but found the door locked. MMM pulled out a jalousie window, inserted her arm, reached for the doorknob inside and disengaged its lock. Upon entering the room, MMM and OOO found their mother crouched on the bed with her hair disheveled. The girls asked: "Ma, what happened to you, why are you crying?" KKK replied: "[Y}our father is a beast and animal, he again forced me to have sex with him even if I don't feel well. "62 Version of the defense The defense spun a different tale. The accused-appellant's father owned a land adjacent to that of KKK's father. He came to know KKK because she brought food for her father's laborers. When they got married on October 18, 1975, he

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 4 3RD EXAM COVERAGE – CASES and SPECIAL LAWS was a high school graduate while she was an elementary graduate. Their humble educational background did not deter them from pursuing a comfortable life. Through their joint hard work and efforts, the couple gradually acquired personal properties and established their own businesses that included a rice mill managed by the accused-appellant. He also drove their trucks that hauled coffee, copra, or com.63 The accused-appellant denied raping his wife on October 16 and 17, 1998. He claimed that on those dates he was in Dangcagan, Bukidnon, peeling com. On October 7, his truck met an accident somewhere in Angeles Ranch, Maluko, Manolo Fortich, Bukidnon. He left the truck by the roadside because he had to attend MMM's graduation in Cebu on October 12 with KKK. When they returned to Bukidnon on October 14, he asked KKK and MMM to proceed to Cagayan de Oro City and just leave him behind so he can take care of the truck and buy some com.64 Ryle Equia (Equia), the spouses' driver from January 1996 until June 1999 corroborated the above claims. According to him, on October 16, 1998, the accused-appellant was within the vicinity of the rice mill's loading area in Dangcagan, Bukidnon, cleaning a pick-up truck. On October 17, 1998, he and the accused-appellant were in Dangcagan, Bukidnon, loading sacks of com into the truck. They finished loading at 3 :00 p.m. The accused-appellant then instructed Equia to proceed to Maluko, Manolo Fortich, Bukidnon while the former attended a fiesta in New Cebu, Kianggat, Dangcagan, Bukidnon. At around 4:00 p.m., Equia, together with a helper and a mechanic, left for Maluko in order to tow the stalled truck left there by the accused-appellant in October 7 and thereafter, bring it to Cagayan de Oro City together with the separate truck loaded with com. They arrived in Maluko at 7:00 p.m. and it took them three hours to turn the truck around and hoist it to the towing bar of the other truck. At around 10:00 p.m., the accused-appellant arrived in Maluko. The four of them then proceeded to Cagayan de Oro City where they arrived at 3 :00 a.m. of October 18, 1998. The accused-appellant went to Gusa while the other three men brought the damaged truck to Cugman.65 The accused-appellant asserted that KKK merely fabricated the rape charges as her revenge because he took over the control and management of their businesses as well as the possession of their pick-up truck in January 1999. The accused-appellant was provoked to do so when she failed to account for their bank deposits and business earnings. The entries in their bank account showed the balance of P3,190,539.83 on October 31, 1996 but after only a month or on November 30, 1996, the amount dwindled to a measly P9,894.88.66 Her failure to immediately report to the police also belies her rape allegations.67 KKK wanted to cover-up her extra-marital affairs, which the accused-appellant gradually detected from her odd behavior.

While in Cebu on October 12, 1998 for MMM's graduation rites, the accused-appellant and KKK had sexual intercourse. He was surprised when his wife asked him to get a napkin to wipe her after having sex. He tagged her request as "high-tech," because they did not do the same when they had sex in the past. KKK had also become increasingly indifferent to him. When he arrives home, it was an employee, not her, who opened the door and welcomed him. She prettied herself and would no longer ask for his permission whenever she went out.68 Bebs,69 KKK's cousin and a cashier in their Bukidnon store, gave the accused-appellant several love letters purportedly addressed to Bebs but were actually intended for KKK.70 KKK had more than ten paramours some of whom the accused-appellant came to know as: Arsenio, Jong-Jong, Joy or Joey, somebody from the military or the Philippine National Police, another one is a government employee, a certain Fernandez and three other priests.71 Several persons told him about the paramours of his wife but he never confronted her or them about it because he trusted her.72 What further confirmed his suspicions was the statement made by OOO on November 2, 1998. At that time, OOO was listening loudly to a cassette player. Since he wanted to watch a television program, he asked OOO to tum down the volume of the cassette player. She got annoyed, unplugged the player, spinned around and hit the accused-appellant's head with the socket. His head bled. An altercation between the accused-appellant and KKK thereafter followed because the latter took OOO's side. During the argument, OOO blurted out that KKK was better off without the accusedappellant because she had somebody young, handsome, and a businessman unlike the accused-appellant who smelled bad, and was old, and ugly.73 KKK also wanted their property divided between them with three-fourths thereof going to her and one-fourth to the accused-appellant. However, the separation did not push through because the accused-appellant's parents intervened.74 Thereafter, KKK pursued legal separation from the accused-appellant by initiating Barangay Case No. 00588-99 before the Office of Lupong Tagapamayapa of Gusa, Cagayan de Oro City and thereafter obtaining a Certificate to File Action dated February 18, 1999.75 Ruling of the RTC In its Judgment76 dated April 1, 2002, the RTC sustained the version proffered by the prosecution by giving greater weight and credence to the spontaneous and straightforward testimonies of the prosecution's witnesses. The trial court also upheld as sincere and genuine the two daughters' testimonies, as it is not natural in our culture for daughters to testify against their own father for a crime such as rape if the same was not truly committed. The trial court rejected the version of the defense and found unbelievable the accused-appellant's accusations of extra-

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 5 3RD EXAM COVERAGE – CASES and SPECIAL LAWS marital affairs and money squandering against KKK. The trial court shelved the accused-appellant's alibi for being premised on inconsistent testimonies and the contradicting declarations of the other defense witness, Equia, as to the accused-appellant's actual whereabouts on October 16, 1998. Accordingly, the RTC ruling disposed as follows: WHEREFORE, the Court hereby finds accused Edgar Jumawan "GUILTY" beyond reasonable doubt of the two (2) separate charges of rape and hereby sentences him to suffer the penalty of reclusion perpetua for each, to pay complainant [P]50,000.00 in each case as moral damages, indemnify complainant the sum of (P]75,000.00 in each case, [P]50,000.00 as exemplary damages and to pay the costs. SO ORDERED.77 Ruling of the CA In its Decision78 dated July 9, 2008, the CA affirmed in toto the RTC ruling. The CA held that Section 14, Rule 110 of the Rules of Criminal Procedure, sanctioned the amendment of the original informations. Further, the accused-appellant was not prejudiced by the amendment because he was rearraigned with respect to the amended informations. The CA found that the prosecution, through the straightforward testimony of the victim herself and the corroborative declarations of MMM and OOO, was able to establish, beyond reasonable doubt, all the elements of rape under R.A. No. 8353. The accused-appellant had carnal knowledge of KKK by using force and intimidation. The CA also ruled that KKK's failure to submit herself to medical examination did not negate the commission of the crime because a medical certificate is not necessary to prove rape. The CA rejected the accused-appellant's argument that since he and KKK are husband and wife with mutual obligations of and right to sexual intercourse, there must be convincing physical evidence or manifestations of the alleged force and intimidation used upon KKK such as bruises. The CA explained that physical showing of external injures is not indispensable to prosecute and convict a person for rape; what is necessary is that the victim was forced to have sexual intercourse with the accused. In addition, the CA noted that the fact that KKK and the accused-appellant are spouses only reinforces the truthfulness of KKK's accusations because no wife in her right mind would accuse her husband of having raped her if it were not true. The delay in the filing of the rape complaint was sufficiently explained by KKK when she stated that she only found out that a wife may charge his husband with rape when the fiscal investigating her separate complaint for grave threats and physical injuries told her about it.

Finally, the CA dismissed the accused-appellant's alibi for lack of convincing evidence that it was physically impossible for him to be at his residence in Cagayan de Oro City at the time of the commission of the crimes, considering that Dangcagan, Bukidnon, the place where he allegedly was, is only about four or five hours away. Accordingly, the decretal portion of the decision read: WHEREFORE, in the light of the foregoing, the appealed Judgment is hereby AFFIRMED. SO ORDERED.79 Hence, the present review. In the Court Resolution80 dated July 6, 2009, the Court notified the parties that, if they so desire, they may file their respective supplemental briefs. In a Manifestation and Motion81 dated September 4, 2009, the appellee, through the Office of the Solicitor General, expressed that it intends to adopt its Brief before the CA. On April 16, 2012, the accused-appellant, through counsel, filed his Supplemental Brief, arguing that he was not in Cagayan de Oro City when the alleged rape incidents took place, and the presence of force, threat or intimidation is negated by: (a) KKK's voluntary act of going with him to the conjugal bedroom on October 16, 1998; (b) KKK's failure to put up resistance or seek help from police authorities; and ( c) the absence of a medical certificate and of blood traces in KKK's panties.82 Our Ruling I. Rape and marriage: the historical connection The evolution of rape laws is actually traced to two ancient English practices of 'bride capture' whereby a man conquered a woman through rape and 'stealing an heiress' whereby a man abducted a woman and married her.83 The rape laws then were intended not to redress the violation of the woman's chastity but rather to punish the act of obtaining the heiress' property by forcible marriage 84 or to protect a man's valuable interest in his wife's chastity or her daughter's virginity.85 If a man raped an unmarried virgin, he was guilty of stealing her father's property and if a man raped his wife, he was merely using his property.86 Women were subjugated in laws and society as objects or goods and such treatment was justified under three ideologies. Under the chattel theory prevalent during the 6th century, a woman was the property of her father until she marries to become the property of her husband. 87 If a man abducted an unmarried woman, he had to pay the owner, and later buy her from the owner; buying and marrying a wife were synonymous.88

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 6 3RD EXAM COVERAGE – CASES and SPECIAL LAWS From the 11th century to the 16th century, a woman lost her identity upon marriage and the law denied her political power and status under the feudal doctrine of coverture.89 A husband had the right to chastise his wife and beat her if she misbehaved, allowing him to bring order within the family.90 This was supplanted by the marital unity theory, which espoused a similar concept. Upon marrying, the woman becomes one with her husband. She had no right to make a contract, sue another, own personal property or write a will.91 II. The marital exemption rule In the 17th century, Sir Matthew Hale (Hale), a Chief Justice in England, conceived the irrevocable implied consent theory that would later on emerge as the marital exemption rule in rape. He stated that: [T]he husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.92 The rule was observed in common law countries such as the United States of America (USA) and England. It gives legal immunity to a man who forcibly sexually assaults his wife, an act which would be rape if committed against a woman not his wife.93 In those jurisdictions, rape is traditionally defined as "the forcible penetration of the body of a woman who is not the wife of the perpetrator."94 The first case in the USA that applied the marital exemption rule was Commonwealth v. Fogerty95 promulgated in 1857. The Supreme Judicial Court of Massachusetts pronounced that it would always be a defense in rape to show marriage to the victim. Several other courts adhered to a similar rationale with all of them citing Hale's theory as basis.96 The rule was formally codified in the Penal Code of New York in 1909. A husband was endowed with absolute immunity from prosecution for the rape of his wife. 97 The privilege was personal and pertained to him alone. He had the marital right to rape his wife but he will be liable when he aids or abets another person in raping her.98 In the 1970s, the rule was challenged by women's movements in the USA demanding for its abolition for being violative of married women's right to be equally protected under rape laws.99 In 1978, the rule was qualified by the Legislature in New York by proscribing the application of the rule in cases where the husband and wife are living apart pursuant to a court order "which by its terms or in its effects requires such living apart," or a decree, judgment or written agreement of separation.100

In 1983, the marital exemption rule was abandoned in New York when the Court of Appeals of New York declared the same unconstitutional in People v. Liberta101 for lack of rational basis in distinguishing between marital rape and non-marital rape. The decision, which also renounced Hale's irrevocable implied consent theory, ratiocinated as follows: We find that there is no rational basis for distinguishing between marital rape and nonmarital rape. The various rationales which have been asserted in defense of the exemption are either based upon archaic notions about the consent and property rights incident to marriage or are simply unable to withstand even the slightest scrutiny. We therefore declare the marital exemption for rape in the New York statute to be unconstitutional. Lord Hale's notion of an irrevocable implied consent by a married woman to sexual intercourse has been cited most frequently in support of the marital exemption. x x x Any argument based on a supposed consent, however, is untenable. Rape is not simply a sexual act to which one party does not consent. Rather, it is a degrading, violent act which violates the bodily integrity of the victim and frequently causes severe, long-lasting physical and psychic harm x x x. To ever imply consent to such an act is irrational and absurd. Other than in the context of rape statutes, marriage has never been viewed as giving a husband the right to coerced intercourse on demand x x x. Certainly, then, a marriage license should not be viewed as a license for a husband to forcibly rape his wife with impunity. A married woman has the same right to control her own body as does an unmarried woman x x x. If a husband feels "aggrieved" by his wife's refusal to engage in sexual intercourse, he should seek relief in the courts governing domestic relations, not in "violent or forceful self-help x x x." The other traditional justifications for the marital exemption were the common-law doctrines that a woman was the property of her husband and that the legal existence of the woman was "incorporated and consolidated into that of the husband x x x." Both these doctrines, of course, have long been rejected in this State. Indeed, "[nowhere] in the common-law world - [or] in any modem society - is a woman regarded as chattel or demeaned by denial of a separate legal identity and the dignity associated with recognition as a whole human being x x x."102 (Citations omitted) By 1993, marital rape was a crime in all 50 states, with 17 of them, as well as the District of Columbia, outlawing the act without exemptions. Meanwhile, the 33 other states granted some exemptions to a husband from prosecution such as when the wife is mentally or physically impaired, unconscious, asleep, or legally unable to consent.103 III. Marital Rape in the Philippines Interestingly, no documented case on marital rape has ever reached this Court until now. It appears, however, that the old provisions of rape under Article 335 of the RPC adhered to Hale's irrevocable implied consent theory, albeit in a

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 7 3RD EXAM COVERAGE – CASES and SPECIAL LAWS limited form. According to Chief Justice Ramon C. Aquino,104 a husband may not be guilty of rape under Article 335 of Act No. 3815 but, in case there is legal separation, the husband should be held guilty of rape if he forces his wife to submit to sexual intercourse.105 In 1981, the Philippines joined 180 countries in ratifying the United Nations Convention on the Elimination of all Forms of Discrimination Against Women (UN-CEDAW).106 Hailed as the first international women's bill of rights, the CEDAW is the first major instrument that contains a ban on all forms of discrimination against women. The Philippines assumed the role of promoting gender equality and women's empowerment as a vital element in addressing global concerns.107 The country also committed, among others, to condemn discrimination against women in all its forms, and agreed to pursue, by all appropriate means and without delay, a policy of eliminating discrimination against women and, to this end, undertook: (a) To embody the principle of the equality of men and women in their national constitutions or other appropriate legislation if not yet incorporated therein and to ensure, through law and other appropriate means, the practical realization of this principle; (b) To adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women; xxxx (f) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women; (g) To repeal all national penal provisions which constitute discrimination against women.108 In compliance with the foregoing international commitments, the Philippines enshrined the principle of gender equality in the 1987 Constitution specifically in Sections 11 and 14 of Article II thereof, thus: Sec. 11. The State values the dignity of every human person and guarantees full respect for human rights. xxxx Sec. 14. The State recognizes the role of women in nationbuilding, and shall ensure the fundamental equality before the law of women and men. The Philippines also acceded to adopt and implement the generally accepted principles of international law such as the CEDA W and its allied issuances, viz: Article II, Section 2. The Philippines renounces war as an instrument of national policy, and adopts the generally accepted principles of international law as part of the law of

the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations. (Emphasis ours) The Legislature then pursued the enactment of laws to propagate gender equality. In 1997, R.A. No. 8353 eradicated the stereotype concept of rape in Article 335 of the RPC.109 The law reclassified rape as a crime against person and removed it from the ambit of crimes against chastity. More particular to the present case, and perhaps the law's most progressive proviso is the 2nd paragraph of Section 2 thereof recognizing the reality of marital rape and criminalizing its perpetration, viz: Article 266-C. Effect of Pardon. - The subsequent valid marriage between the offended party shall extinguish the criminal action or the penalty imposed. In case it is the legal husband who is the offender, the subsequent forgiveness by the wife as the offended party shall extinguish the criminal action or the penalty: Provided, That the crime shall not be extinguished or the penalty shall not be abated if the marriage is void ab initio. Read together with Section 1 of the law, which unqualifiedly uses the term "man" in defining rape, it is unmistakable that R.A. No. 8353 penalizes the crime without regard to the rapist's legal relationship with his victim, thus: 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 circ*mstances: 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 circ*mstances mentioned above be present. The explicit intent to outlaw marital rape is deducible from the records of the deliberations of the 10th Congress on the law's progenitor's, House Bill No. 6265 and Senate Bill No. 650. In spite of qualms on tagging the crime as 'marital rape' due to conservative Filipino impressions on marriage, the consensus of our lawmakers was clearly to include and penalize marital rape under the general definition of 'rape,' viz: MR. DAMASING: Madam Speaker, Your Honor, one more point

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 8 3RD EXAM COVERAGE – CASES and SPECIAL LAWS of clarification in the House version on Anti-Rape Bill, House Bill No. 6265, we never agreed to marital rape. But under Article 266-C, it says here: "In case it is the legal husband who is the offender... " Does this presuppose that there is now marital rape? x x x. MR. LARA: x x x [I]n this jurisdiction, well, I only have a limited, very limited 17 years of private practice in the legal profession, Madam Speaker, and I believe that I can put at stake my license as a lawyer in this jurisdiction there is no law that prohibits a husband from being sued by the wife for rape. Even jurisprudence, we don't have any jurisprudence that prohibits a wife from suing a husband. That is why even if we don't provide in this bill expanding the definition of crime that is now being presented for approval, Madam Speaker, even if we don't provide here for marital rape, even if we don't provide for sexual rape, there is the right of the wife to go against the husband. The wife can sue the husband for marital rape and she cannot be prevented from doing so because in this jurisdiction there is no law that prohibits her from doing so. This is why we had to put second paragraph of 266-C because it is the belief of many of us. x x x, that if it is true that in this jurisdiction there is marital rape even if we don't provide it here, then we must provide for something that will unify and keep the cohesion of the family together that is why we have the second paragraph. MR. DAMASING: Madam Speaker, Your Honor, under the House version specifically House Bill No. 6265 our provision on a husband forcing the wife is not marital rape, it is marital sexual assault. MR. LARA: That is correct, Madam Speaker. MR. DAMASING: But here it is marital rape because there is no crime of sexual assault. So, Your Honor, direct to the point, under Article 266-C, is it our understanding that in the second paragraph, quote: "In case it is the legal husband who is the offender, this refers to marital rape filed against the husband? Is that correct?

xxxx MR. DAMASING: Madam Speaker, Your Honor, I am in favor of this. I am in favor of punishing the husband who forces the wife even to 30 years imprisonment. But please do not call it marital rape, call it marital sexual assault because of the sanctity of marriage. x x x.110 (Emphasis ours) HON. APOSTOL: In our version, we did not mention marital rape but marital rape is not excluded. HON. ROCO: Yeah. No. But I think there is also no specific mention. HON. APOSTOL: No. No. No. Silent lang 'yung marital rape. xxxx HON. ROCO: xx x [I]f we can retain the effect of pardon, then this marital rape can be implicitly contained in the second paragraph. x x x So marital rape actually was in the House version x x x. But it was not another definition of rape. You will notice, it only says, that because you are the lawful husband does not mean that you cannot commit rape. Theoretically, I mean, you can beat up your wife until she's blue. And if the wife complains she was raped, I guess that, I mean, you just cannot raise the defense x x x[:] I am the husband. But where in the marriage contract does it say that I can beat you up? That's all it means. That is why if we stop referring to it as marital rape, acceptance is easy. Because parang ang marital rape, married na nga kami. I cannot have sex. No, what it is saying is you're [the] husband but you cannot beat me up. x x x. That's why to me it's not alarming. It was just a way of saying you're [the] husband, you cannot say when I am charged with rape x x x. PRESIDING OFFICER SHAHAN!: All right, so how do you propose it if we put it in[?]

MR. DAMASING: So if the husband is guilty of sexual assault, what do you call- it?

HON. ROCO: x x x [A]ll we are saying [is] that if you are the lawful husband does not mean you can have carnal knowledge by force[,] threat or intimidation or by depriving your wife reason, a grave abuse of authority, I don't know how that cannot apply. Di ba yung, or putting an instrument into the, yun ang sinasabi ko lang, it is not meant to have another classification of rape. It is all the same definition x x x.

MR. LARA: Sexual assault, Madam Speaker.

xxxx

MR. DAMASING: There is no crime of sexual assault, Your Honor, we have already stated that. Because under 1 and 2 it is all denominated as rape, there is no crime of sexual assault. That is why I am sorry that our House version which provided for sexual assault was not carried by the Senate version because all sexual crimes under this bicameral conference committee report are all now denominated as rape whether the penalty is from reclusion perpetua to death or whether the penalty is only prision mayor. So there is marital rape, Your Honor, is that correct?

HON.ROCO: What is 266-F? x x x. Now if we can retain 266F x x x, we can say that this rule is implicit already in the first proviso. It implies na there is an instance when a husband can be charged [with] rape x x x.

MR. LARA: No, Madam Speaker, not entirely, no. The answer is no.

HON. ROXAS: Otherwise, silent na.

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 9 3RD EXAM COVERAGE – CASES and SPECIAL LAWS HON. ROCO: Otherwise, we are silent na. So parang idelete natin ito. But it is understood that this rule of evidence is now transport[ed], put into 266-F, the effect of pardon. PRESIDING OFFICER APOSTOL: We will retain this effect of pardon. We will remove marital rape. HON. ROCO: No, yun ang, oo we will remove this one on page 3 but we will retain the one on page 8, the effect of pardon. x x x [I]t is inferred but we leave it because after all it is just a rule of evidence. But I think we should understand that a husband cannot beat at his wife to have sex. Di ha? I think that should be made clear. x x x. xxxx HON. ROCO: x x x [W]e are not defining a crime of marital rape. All we are saying is that if you're [the] legal husband, Jesus Christ, don't beat up to have sex. I almost want, you are my wife, why do you have to beat me up. So, ganoon. So, if we both justify it that way in the Report as inferred in proviso, I mean, we can face up, I hope, to the women and they would understand that it is half achieved. HON. ZAMORA: I think, Raul, as long as we understand that we are not defining or creating a new crime but instead, we are just defining a rule of evidence. x x x. HON. ROCO: Then, in which case we may just want to clarify as a rule of evidence the fact that he is husband is not, does not negate.111 CHAIRMAN LARA: x x x We all agree on the substance of the point in discussion. The only disagreement now is where to place it. Let us clear this matter. There are two suggestions now on marital rape. One is that it is rape if it is done with force or intimidation or any of the circ*mstances that would define rape x x x immaterial. The fact that the husband and wife are separated does not come into the picture. So even if they are living under one roof x x x for as long as the attendant circ*mstances of the traditional rape is present, then that is rape.112 PRESIDING OFFICER ANGARA-CASTILLO: Mr. Chairman, x x x [t]his provision on marital rape, it does not actually change the meaning of rape. It merely erases the doubt in anybody's mind, whether or not rape can indeed be committed by the husband against the wife. So the bill really says, you having been married to one another is not a legal impediment. So I don't really think there is any need to change the concept of rape as defined presently under the revised penal code. This do[es] not actually add anything to the definition of rape. It merely says, it is merely clarificatory. That if indeed the wife has evidence to show that she was really brow beaten, or whatever or forced or intimidated into having sexual intercourse against her will, then the crime of rape has been committed against her by the husband, notwithstanding the fact that they have been legally married. It does not change anything at all, Mr. Chairman.

PRESIDING OFFICER APOSTOL: Yes, I think, there is no change on this x x x.113 The paradigm shift on marital rape in the Philippine jurisdiction is further affirmed by R.A. No. 9262,114 which regards rape within marriage as a form of sexual violence that may be committed by a man against his wife within or outside the family abode, viz: Violence against women and their children refers to any act or a series of acts committed by any person against a woman who is his wife, former wife, or against a woman with whom the person has or had a sexual or dating relationship, or with whom he has a common child, or against her child whether legitimate or illegitimate, within or without the family abode, which result in or is likely to result in. physical, sexual, psychological harm or suffering, or economic abuse including threats of such acts, battery, assault, coercion, harassment or arbitrary deprivation of liberty. It includes, but is not limited to, the following acts: A. "Physical Violence" refers to acts that include bodily or physical harm; B. "Sexual violence" refers to an act which is sexual in nature, committed against a woman or her child. It includes, but is not limited to: a) rape, sexual harassment, acts of lasciviousness, treating a woman or her child as a sex object, making demeaning and sexually suggestive remarks, physically attacking the sexual parts of the victim's body, forcing her/him to watch obscene publications and indecent shows or forcing the woman or her child to do indecent acts and/or make films thereof, forcing the wife and mistress/lover to live in the conjugal home or sleep together in the same room with the abuser; b) acts causing or attempting to cause the victim to engage in any sexual activity by force, threat of force, physical or other harm or threat of physical or other harm or coercion; c) Prostituting the woman or child. Statistical figures confirm the above characterization. Emotional and other forms of non-personal violence are the most common type of spousal violence accounting for 23% incidence among ever-married women. One in seven evermarried women experienced physical violence by their husbands while eight percent (8%) experienced sexual violence.115 IV. Refutation of the accused-appellant's arguments The crux of the accused-appellant's plea for acquittal mirrors the irrevocable implied consent theory. In his appeal brief before the CA, he posits that the two incidents of sexual intercourse, which gave rise to the criminal charges for rape, were theoretically consensual, obligatory even, because he

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 10 3RD EXAM COVERAGE – CASES and SPECIAL LAWS and the victim, KKK, were a legally married and cohabiting couple. He argues that consent to copulation is presumed between cohabiting husband and wife unless the contrary is proved.

children in the household, dowry-related violence, marital rape, female genital mutilation and other traditional practices harmful to women, non-spousal violence and violence related to exploitation;119 (Emphasis ours)

The accused-appellant further claims that this case should be viewed and treated differently from ordinary rape cases and that the standards for determining the presence of consent or lack thereof must be adjusted on the ground that sexual community is a mutual right and obligation between husband and wife.116

Clearly, it is now acknowledged that rape, as a form of sexual violence, exists within marriage. A man who penetrates her wife without her consent or against her will commits sexual violence upon her, and the Philippines, as a State Party to the CEDA W and its accompanying Declaration, defines and penalizes the act as rape under R.A. No. 8353.

The contentions failed to muster legal and rational merit. The ancient customs and ideologies from which the irrevocable implied consent theory evolved have already been superseded by modem global principles on the equality of rights between men and women and respect for human dignity established in various international conventions, such as the CEDAW. The Philippines, as State Party to the CEDAW, recognized that a change in the traditional role of men as well as the role of women in society and in the family is needed to achieve full equality between them. Accordingly, the country vowed to take all appropriate measures to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices, customs and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.117 One of such measures is R.A. No 8353 insofar as it eradicated the archaic notion that marital rape cannot exist because a husband has absolute proprietary rights over his wife's body and thus her consent to every act of sexual intimacy with him is always obligatory or at least, presumed. Another important international instrument on gender equality is the UN Declaration on the Elimination of Violence Against Women, which was Promulgated118 by the UN General Assembly subsequent to the CEDA W. The Declaration, in enumerating the forms of gender-based violence that constitute acts of discrimination against women, identified 'marital rape' as a species of sexual violence, viz: Article 1 For the purposes of this Declaration, the term "violence against women" means any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life. Article 2 Violence against women shall be understood to encompass, but not be limited to, the following: (a) Physical, sexual and psychological violence occurring in the family, including battering, sexual abuse of female

A woman is no longer the chattel-antiquated practices labeled her to be. A husband who has sexual intercourse with his wife is not merely using a property, he is fulfilling a marital consortium with a fellow human being with dignity equal120 to that he accords himself. He cannot be permitted to violate this dignity by coercing her to engage in a sexual act without her full and free consent. Surely, the Philippines cannot renege on its international commitments and accommodate conservative yet irrational notions on marital activities121 that have lost their relevance in a progressive society. It is true that the Family Code,122 obligates the spouses to love one another but this rule sanctions affection and sexual intimacy, as expressions of love, that are both spontaneous and mutual123 and not the kind which is unilaterally exacted by force or coercion. Further, the delicate and reverent nature of sexual intimacy between a husband and wife excludes cruelty and coercion. Sexual intimacy brings spouses wholeness and oneness. It is a gift and a participation in the mystery of creation. It is a deep sense of spiritual communion. It is a function which enlivens the hope of procreation and ensures the continuation of family relations. It is an expressive interest in each other's feelings at a time it is needed by the other and it can go a long way in deepening marital relationship.124 When it is egoistically utilized to despoil marital union in order to advance a felonious urge for coitus by force, violence or intimidation, the Court will step in to protect its lofty purpose, vindicate justice and protect our laws and State policies. Besides, a husband who feels aggrieved by his indifferent or uninterested wife's absolute refusal to engage in sexual intimacy may legally seek the court's intervention to declare her psychologically incapacitated to fulfill an essential marital obligation.125 But he cannot and should not demand sexual intimacy from her coercively or violently. Moreover, to treat marital rape cases differently from nonmarital rape cases in terms of the elements that constitute the crime and in the rules for their proof, infringes on the equal protection clause. The Constitutional right to equal protection of the laws126 ordains that similar subjects should not be treated differently, so as to give undue favor to some and unjustly discriminate against others; no person or class of persons shall be denied the same protection of laws,

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 11 3RD EXAM COVERAGE – CASES and SPECIAL LAWS which is enjoyed, by other persons or other classes in like circ*mstances.127

cases and found that no reversible error can be imputed to the conviction meted the accused-appellant.

As above discussed, the definition of rape in Section 1 of R.A. No. 8353 pertains to: (a) rape, as traditionally known; (b) sexual assault; and (c) marital rape or that where the victim is the perpetrator's own spouse. The single definition for all three forms of the crime shows that the law does not distinguish between rape committed in wedlock and those committed without a marriage. Hence, the law affords protection to women raped by their husband and those raped by any other man alike.

The evidence for the prosecution was based on credible witnesses who gave equally credible testimonies

The posture advanced by the accused-appellant arbitrarily discriminates against married rape victims over unmarried rape victims because it withholds from married women raped by their husbands the penal redress equally granted by law to all rape victims.

In rape cases, the conviction of the accused rests heavily on the credibility of the victim. Hence, the strict mandate that all courts must examine thoroughly the testimony of the offended party. While the accused in a rape case may be convicted solely on the testimony of the complaining witness, courts are, nonetheless, duty-bound to establish that their reliance on the victim's testimony is justified. Courts must ensure that the testimony is credible, convincing, and otherwise consistent with human nature. If the testimony of the complainant meets the test of credibility, the accused may be convicted on the basis thereof.131

Further, the Court adheres to and hereby adopts the rationale in Liberta in rejecting the argument akin to those raised by herein accused-appellant. A marriage license should not be viewed as a license for a husband to forcibly rape his wife with impunity. A married woman has the same right to control her own body, as does an unmarried woman.128 She can give or withhold her consent to a sexual intercourse with her husband and he cannot unlawfully wrestle such consent from her in case she refuses.

It is settled that the evaluation by the trial court of the credibility of witnesses and their testimonies are entitled to the highest respect. This is in view of its inimitable opportunity to directly observe the witnesses and their deportment, conduct and attitude, especially during crossexamination. Thus, unless it is shown that its evaluation was tainted with arbitrariness or certain facts of substance and value have been plainly overlooked, misunderstood, or misapplied, the same will not be disturbed on appeal.132

Lastly, the human rights of women include their right to have control over and decide freely and responsibly on matters related to their sexuality, including sexual and reproductive health, free of coercion, discrimination and violence.129 Women do not divest themselves of such right by contracting marriage for the simple reason that human rights are inalienable.130

After approximating the perspective of the trial court thru a meticulous scrutiny of the entire records of the trial proceedings and the transcript of each witnesses' testimony, the Court found no justification to disturb its findings.

In fine, since the law does not separately categorize marital rape and non-marital rape nor provide for different definition or elements for either, the Court, tasked to interpret and apply what the law dictates, cannot trudge the forbidden sphere of judicial legislation and unlawfully divert from what the law sets forth. Neither can the Court frame distinct or stricter evidentiary rules for marital rape cases as it would inequitably burden its victims and unreasonably and irrationally classify them differently from the victims of nonmarital rape. Indeed, there exists no legal or rational reason for the Court to apply the law and the evidentiary rules on rape any differently if the aggressor is the woman's own legal husband. The elements and quantum of proof that support a moral certainty of guilt in rape cases should apply uniformly regardless of the legal relationship between the accused and his accuser. Thus, the Court meticulously reviewed the present case in accordance with the established legal principles and evidentiary policies in the prosecution and resolution of rape

Rather, the Court observed that KKK and her testimony were both credible and spontaneous. Hailed to the witness stand on six separate occasions, KKK never wavered neither did her statements vacillate between uncertainty and certitude. She remained consistent, categorical, straightforward, and candid during the rigorous cross-examination and on rebuttal examination, she was able to convincingly explain and debunk the allegations of the defense. She vividly recounted how the accused-appellant forced her to have sex with him despite her refusal on October 16, 1998. He initially ordered her to sleep beside him in their conjugal bed by violently throwing the cot where she was resting. In order not to aggravate his temper, KKK obeyed. On the bed, he insinuated for them to have sex. When she rejected his advances due to abdominal pain and headache, his request for intimacy transformed into a stubborn demand. Unyielding, KKK held her panties but the accused-appellant forcibly pulled them down. The tug caused the small clothing to tear apart. She reiterated that she was not feeling well and begged him to stop. But no amount of resistance or begging subdued him. He flexed her two legs apart, gripped her hands, mounted her, rested his own legs on hers and inserted his penis into her vagin*. She continued pleading but he never desisted.133

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 12 3RD EXAM COVERAGE – CASES and SPECIAL LAWS Her accurate recollection of the second rape incident on October 1 7, 1998 is likewise unmistakable. After the appalling episode in the conjugal bedroom the previous night, KKK decided to sleep in the children's bedroom. While her daughters were fixing the beddings, the accusedappellant barged into the room and berated her for refusing to go with him to their conjugal bedroom. When KKK insisted to stay in the children's bedroom, the accused-appellant got angry and pulled her up. MMM's attempt to pacify the accused-appellant further enraged him. He reminded them that as the head of the family he could do whatever he wants with his wife. To demonstrate his role as patriarch, he ordered the children to go out of the room and thereafter proceeded to force KKK into sexual intercourse. He forcibly pulled down her short pants and panties as KKK begged "Dont do that to me, my body is still aching and also my abdomen and I cannot do what you wanted me to do. I cannot withstand sex."134 But her pleas fell on deaf ears. The accused-appellant removed his shorts and briefs, spread KKK's legs apart, held her hands, mounted her and inserted his penis into her vagin*. After gratifying himself, he got dressed, left the room as he chuckled: "Its nice, that is what you deserve because you are [a] flirt or fond of sex."135 Entrenched is the rule that in the prosecution of rape cases, the essential element that must be proved is the absence of the victim's consent to the sexual congress.136 Under the law, consent is absent when: (a) it was wrestled from the victim by force, threat or intimidation, fraudulent machinations or grave abuse of authority; or (b) the victim is incapable of giving free and voluntary consent because he/she is deprived of reason or otherwise unconscious or that the offended party is under 12 years of age or is demented. Contrary to the accused-appellant's asseverations, KKK's consent was wrestled from her through force and intimidation both of which were established beyond moral certainty by the prosecution through the pertinent testimony of KKK, viz: On the October 16, 1998 rape incident: (Direct Examination) ATTY. LARGO: Q So, while you were already lying on the bed together with your husband, do you remember what happened? A He lie down beside me and asked me to have sex with him. Q How did he manifest that he wanted to have sex with you? A He put his hand on my lap and asked me to have sex with him but I warded off his hand.

Q Can you demonstrate to this Court how did he use his hand? A Yes. "witness demonstrating on how the accused used his finger by touching or knocking her lap which means that he wanted to have sex." Q So, what did you do after that? A I warded off his hand and refused because I was not feeling well. (at this juncture the witness is sobbing) Q So, what did your husband do when you refused him to have sex with you? A He insisted and he pulled my pantie forcibly, that is why my pantie [sic] was tom. Q Why, what did you do when he started to pull your pantie [sic]? A I resisted and tried to hold my pantie [sic] but I failed, because he is so strong. xx xx Q So, when your pantie [sic] was tom by your husband, what else did he do? A He flexed my two legs and rested his two legs on my legs. Q So after that what else did he do? A He succeeded in having sex with me because he held my two hands no matter how I wrestled but I failed because he is stronger than me. COURT: Make it of record that the witness is sobbing while she is giving her testimony. ATTY. LARGO: (To the witness cont'ng.) Q So, what did you do when your husband already stretched your two legs and rode on you and held your two hands? A I told him, "don't do that because I'm not feeling well and my whole body is aching." Q How did you say that to your husband? A I told him, "don't do that to me because I'm not feeling well." Q Did you say that in the manner you are saying now? xxxx

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 13 3RD EXAM COVERAGE – CASES and SPECIAL LAWS A I shouted when I uttered that words.

On the October 17, 1998 rape incident:

xxxx

(Direct Examination)

Q Was your husband able to consummate his desire?

ATTY. LARGO

xxxx

Q So, after your children went out of the room, what transpired?

A Yes, sir, because I cannot do anything.137 (Cross-Examination) ATTY. AMARGA; Q Every time you have sex with your husband it was your husband normally remove your panty? A Yes, Sir. Q It was not unusual for your husband then to remove your panty because according to you he normally do that if he have sex with you? A Yes, Sir. Q And finally according to you your husband have sex with you? A Yes, Sir because he forcibly used me in spite of holding my panty because I don't want to have sex with him at that time. Q You did not spread your legs at that time when he removed your panty? A Yes, Sir. Q Meaning, your position of your legs was normal during that time? A I tried to resist by not flexing my legs. xxxx Q At that time when your husband allegedly removed your panty he also remove your nightgown? A No, Sir.

A He successfully having sex with me because he pulled my short pant and pantie forcible. Q So, what did you say when he forcibly pulled your short and pantie? A I told him, "don't do that to me, my body is still aching and also my abdomen and I cannot do what you wanted me to do. I cannot withstand sex." Q So, what happened to your short when he forcibly pulled it down? A It was tom. Q And after your short and pantie was pulled down by your husband, what did he do? A He also removed his short and brief and flexed my two legs and mounted on me and succeeded in having sex with me.139 The accused-appellant forced his wife when he knowingly overpowered her by gripping her hands, flexing her legs and then resting his own legs thereon in order to facilitate the consummation of his much-desired non-consensual sexual intercourse. Records also show that the accused-appellant employed sufficient intimidation upon KKK. His actuations prior to the actual moment of the felonious coitus revealed that he imposed his distorted sense of moral authority on his wife. He furiously demanded for her to lay with him on the bed and thereafter coerced her to indulge his sexual craving. The fury the accused-appellant exhibited to sleep with him on their bed, when she the children's bedroom and the fact dominance over her as husband all submission.

when KKK refused insisted to sleep in that he exercises cowed KKK into

Q And he did pull out your duster [sic] towards your face? A He raised my duster [sic] up. Q In other words your face was covered when he raised your duster [sic]? A No, only on the breast level.138

The fact that KKK voluntarily went with the accusedappellant to their conjugal bedroom on October 16, 1998 cannot be stretched to mean that she consented to the forced sexual intercourse that ensued. The accusedappellant was KKK's husband and hence it was customary for her to sleep in the conjugal bedroom. No consent can be deduced from such act of KKK because at that juncture there were no indications that sexual intercourse was about to take place. The issue of consent was still irrelevant since the act

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 14 3RD EXAM COVERAGE – CASES and SPECIAL LAWS for which the same is legally required did not exist yet or at least unclear to the person from whom the consent was desired. The significant point when consent must be given is at that time when it is clear to the victim that her aggressor is soliciting sexual congress. In this case, that point is when the accused-appellant tapped his fingers on her lap, a gesture KKK comprehended to be an invitation for a sexual intercourse, which she refused. Resistance, medical certificate and blood traces. We cannot give credence to the accused-appellant's argument that KKK should have hit him to convey that she was resisting his sexual onslaught. Resistance is not an element of rape and the law does not impose upon the victim the burden to prove resistance140 much more requires her to raise a specific kind thereof. At any rate, KKK put up persistent, audible and intelligible resistance for the accused-appellant to recognize that she seriously did not assent to a sexual congress. She held on to her panties to prevent him from undressing her, she refused to bend her legs and she repeatedly shouted and begged for him to stop. Moreover, as an element of rape, force or intimidation need not be irresistible; it may be just enough to bring about the desired result. What is necessary is that the force or intimidation be sufficient to consummate the purpose that the accused had in mind141 or is of such a degree as to impel the defenseless and hapless victim to bow into submission.142 Contrary to the accused-appellant's allusions, the absence of blood traces in KKK's panties or the lack of a medical certificate do not negate rape. It is not the presence or absence of blood on the victim's underwear that determines the fact of rape143 inasmuch as a medical certificate is dispensable evidence that is not necessary to prove rape.144 These details do not pertain to the elements that produce the gravamen of the offense that is -sexual intercourse with a woman against her will or without her consent.145 The accused-appellant harps on the acquittal ruling in People v. Godoy,146 the evidentiary circ*mstances of which are, however, disparate from those in the present case. In Godoy, the testimony of the complainant was inherently weak, inconsistent, and was controverted by the prosecution's medico-legal expert witness who stated that force was not applied based on the position of her hymenal laceration. This led the Court to conclude that the absence of any sign of physical violence on the victim's body is an indication of consent.147 Here, however, KKK's testimony is, as discussed earlier, credible, spontaneous and forthright.

The corroborative testimonies of MMM and OOO are worthy of credence. The accused-appellant's assertion that MMM and OOO's testimonies lacked probative value as they did not witness the actual rape is bereft of merit. It must be stressed that rape is essentially committed in relative isolation, thus, it is usually only the victim who can testify with regard to the fact of the forced sexual intercourse.148 Hence, the probative value of MMM and OOO's testimonies rest not on whether they actually witnessed the rape but on whether their declarations were in harmony with KKK's narration of the circ*mstances, preceding, subsequent to and concurrent with, the rape incidents. MMM and OOO's testimonies substantiated significant points in KKK's narration. MMM heard KKK shouting and crying: "Eddie, don’t do that to me, have pity on me" 149 on the night of October 16, 1998 shortly after KKK and the accusedappellant went to their conjugal bedroom. When MMM went upstairs to check on her mother, the accused-appellant admonished her for meddling. Frustrated to aid her mother who persistently cried, MMM kicked the door so hard the accused-appellant was prompted to open it and rebuke MMM once more. OOO heard all these commotion from the room downstairs. MMM then saw her mother crouched on the bed, crying, with her hair disheveled while her tom panty lay on the floor. After a brief struggle with the accused-appellant, MMM and KKK were finally able to escape and retreat to the children's bedroom where KKK narrated to her daughters: "[Y]our father is an animal, a beast; he forced me to have sex with him when I'm not feeling well. " KKK gave a similar narration to MMM and OOO the following night after the accused-appellant barged inside the children's bedroom. The couple had an argument and when MMM tried to interfere, the accused-appellant ordered her and OOO to get out after bragging that he can have sex with his wife even in front of the children because he is the head of the family. The girls then stayed by the staircase where they afterwards heard their mother helplessly crying and shouting for the accused-appellant to stop. Indeed, the testimonies of KKK, MMM and OOO coherently depicted that the accused-appellant, through the use of force and intimidation, had non-consensual and forced carnal knowledge of his wife, KKK on the nights of October 16 and 17, 1998. KKK's helpless screams and pleas from inside the bedroom coupled with her verbal and physical resistance were clear manifestations of coercion. Her appearance when MMM saw her on the bed after the accused appellant opened the door on October 16, 1998, her conduct towards the accusedappellant on her way out of the room, and her categorical outcry to her children after the two bedroom episodes - all generate the conclusion that the sexual acts that occurred were against her will.

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 15 3RD EXAM COVERAGE – CASES and SPECIAL LAWS Failure to immediately report to the police authorities, if satisfactorily explained, is not fatal to the credibility of a witness. The testimonies of KKK and her daughters cannot be discredited merely because they failed to report the rape incidents to the police authorities or that KKK belatedly filed the rape charges. Delay or vacillation by the victims in reporting sexual assaults does not necessarily impair their credibility if such delay is satisfactorily explained.150 At that time, KKK and her daughters were not aware that a husband forcing his wife to submit to sexual intercourse is considered rape. In fact, KKK only found out that she could sue his husband for rape when Prosecutor Benjamin Tabique, Jr. (Prosecutor Tabique) told her about it when she filed the separate charges for grave threats and physical injuries against the accused-appellant.151 It must be noted that the incidents occurred a year into the effectivity of R.A. No. 8353 abolishing marital exemption in rape cases hence it is understandable that it was not yet known to a layman as opposed to legal professionals like Prosecutor Tabique. In addition, fear of reprisal thru social humiliation which is the common factor that deter rape victims from reporting the crime to the authorities is more cumbersome in marital rape cases. This is in view of the popular yet outdated belief that it is the wife's absolute obligation to submit to her husband's carnal desires. A husband raping his own wife is often dismissed as a peculiar occurrence or trivialized as simple domestic trouble. Unfamiliarity with or lack of knowledge of the law criminalizing marital rape, the stigma and public scrutiny that could have befallen KKK and her family had the intervention of police authorities or even the neighbors been sought, are acceptable explanations for the failure or delay in reporting the subject rape incidents. The victim’s testimony on the witness stand rendered unnecessary the presentation of her complaint-affidavit as evidence. The failure of the prosecution to present KKK's complaintaffidavit for rape is not fatal in view of the credible, candid and positive testimony of KKK on the witness stand. Testimonial evidence carries more weight than the affidavit since it underwent the rudiments of a direct, cross, re-direct and re-cross examinations. Affidavits or statements taken ex parte are generally considered incomplete and inaccurate. Thus, by nature, they are inferior to testimony given in court.152

prosecution was able to establish that the P3 Million deposit in the spouses' bank account was the proceeds of their loan from the Bank of Philippine Islands (BPI). Exhibit J, which is a BPI ML instruction sheet dated October 31, 1996 in the amount of P3,149,840.63 is the same amount the accusedappellant claimed to have entrusted to her wife. Although the accused-appellant denied being aware of such loan, he admitted that approximately P3 Million was spent for the construction of their house. These pieces of evidence effectively belie the accused appellant's allegation that KKK could not account for the money deposited in the bank.153 Anent, KKK's alleged extra-marital affairs, the accusedappellant failed to explain how Bebs could be his wife KKK when the letter-sender greeted Bebs a "happy birthday" on October 28 while KKK's birthday is June 23. The accusedappellant also did not present Bebs herself, being a more competent witness to the existence of the alleged love letters for KKK. He likewise failed, despite promise to do so, to present the original copies of such love letters neither did he substantiate KKK's supposed extra-marital affairs by presenting witnesses who could corroborate his claims. Further, the Court finds it unbelievable that an able man would not have the temerity to confront his wife who has fooled around with 10 men - some of whom he has even met. The accused-appellant's erratic statements on the witness stand are inconsistent with the theory of extramarital romance making it reasonable to infer that he merely made up those malicious stories as a desperate ploy to extricate himself out of this legal quandary. At best, the basis of the alleged illicit affairs of KKK were the accused-appellant's unfounded suspicions that hold no evidentiary weight in law and thus incompetent to destroy KKK's credibility and that of her testimony. In sum, the defense failed to present sufficiently convincing evidence that KKK is a mere vindictive wife who is harassing the accused-appellant with fabricated rape charges. Alibi It must be stressed that in raising the irrevocable implied consent theory as defense, the accused-appellant has essentially admitted the facts of sexual intercourse embodied in the two criminal informations for rape. This admission is inconsistent with the defense of alibi and any discussion thereon will thus be irrelevant. At any rate, the courts a quo correctly rejected his alibi. Alibi is one of the weakest defenses not only because it is inherently frail and unreliable, but also because it is easy to fabricate and difficult to check or rebut. It cannot prevail over the positive identification of the accused by eyewitnesses who had no improper motive to testify falsely.154

Ill motive imputed to the victim The ill motive, which the accused-appellant imputed to KKK, does not inspire belief as it is riddled with loopholes generated by incongruent and flimsy evidence. The

For the defense of alibi to prosper, the accused must prove not only that he was at some other place at the time of the commission of the crime, but also that it was physically impossible for him to be at the locus delicti or within its

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 16 3RD EXAM COVERAGE – CASES and SPECIAL LAWS immediate vicinity. Physical impossibility refers not only to the geographical distance between the place where the accused was and the place where the crime was committed when the crime transpired, but more importantly, the facility of access between the two places.155 Even granting in arguendo that the accused-appellant had indeed attended a fiesta in Dangcagan, Bukidnon or was hauling com with Equia on the dates of commission of the crime, the same will not easily exonerate him. The accusedappellant failed to adduce clear and convincing evidence that it was physically impossible for him to be at his residence in Cagayan de Oro City at the time of the commission of the crime. Dangcagan, Bukidnon can be traversed by about four or five hours from Cagayan de Oro City, and even less by private vehicle which was available to the accused appellant at any time.156 Thus, it was not physically impossible for him to be at the situs criminis at the dates and times when the two rape incidents were committed. Between the accused-appellant's alibi and denial, and the positive identification and credible testimony of the victim, and her two daughters, the Court must give weight to the latter, especially in the absence of ill motive on their part to falsely testify against the accused-appellant. Conclusion All told, the presumption of innocence endowed an accusedappellant was sufficiently overcome by KKK's clear, straightforward, credible, and truthful declaration that on two separate occasions, he succeeded in having sexual intercourse with her, without her consent and against her will. Evidence of overwhelming force and intimidation to consummate rape is extant from KKK's narration as believably corroborated by the testimonies of MMM and OOO and the physical evidence of KKK's tom panties and short pants. Based thereon, the reason and conscience of the Court is morally certain that the accused-appellant is guilty of raping his wife on the nights of October 16 and 17, 1998. Penalties The Court affirms the penalty of reclusion perpetua, for each count of rape, meted upon the accused-appellant for being in accord with Article 266-A in relation to 266-B of the RPC. Further, he shall not be eligible for parole pursuant to Section 3 of R.A. No. 9346, which states that "persons convicted of offenses punished with reclusion perpetua, or whose sentences will be reduced to reclusion perpetua, by reason of this Act, shall not be eligible for parole under Act No. 4180, otherwise known as the Indeterminate Sentence Law, as amended."157 The Court sustains the moral damages awarded in the amount of P50,000.00. Moral damages are granted to rape victims without need of proof other than the fact of rape under the assumption that the victim suffered moral injuries from the experience she underwent.158

The award of civil indemnity is proper; it is mandatory upon the finding that rape took place.1âwphi1 Considering that the crime committed is simple rape, there being no qualifying circ*mstances attendant in its commission, the appropriate amount is P50,000.00159 and not P75,000.00 as awarded by the RTC. To serve as an example for public good and in order to deter a similar form of domestic violence, an award ofP30,000.00 as exemplary damages is imperative.160 The damages awarded shall earn legal interest at the rate of six percent (6%) per annum to be reckoned from the date of finality of this judgment until fully paid.161 A Final Note Rape is a crime that evokes global condemnation because it is an abhorrence to a woman's value and dignity as a human being. It respects no time, place, age, physical condition or social status. It can happen anywhere and it can happen to anyone. Even, as shown in the present case, to a wife, inside her time-honored fortress, the family home, committed against her by her husband who vowed to be her refuge from cruelty. The herein pronouncement is an affirmation to wives that our rape laws provide the atonement they seek from their sexually coercive husbands. Husbands are once again reminded that marriage is not a license to forcibly rape their wives. A husband does not own his wife's body by reason of marriage. By marrying, she does not divest herself of the human right to an exclusive autonomy over her own body and thus, she can lawfully opt to give or withhold her consent to marital coitus. A husband aggrieved by his wife's unremitting refusal to engage in sexual intercourse cannot resort to felonious force or coercion to make her yield. He can seek succor before the Family Courts that can determine whether her refusal constitutes psychological incapacity justifying an annulment of the marriage. Sexual intimacy is an integral part of marriage because it is the spiritual and biological communion that achieves the marital purpose of procreation. It entails mutual love and self-giving and as such it contemplates only mutual sexual cooperation and never sexual coercion or imposition. The Court is aware that despite the noble intentions of the herein pronouncement, menacing personalities may use this as a tool to harass innocent husbands. In this regard, let it be stressed that safeguards in the criminal justice system are in place to spot and scrutinize fabricated or false marital rape complaints and any person who institutes untrue and malicious charges will be made answerable under the pertinent provisions of the RPC and/or other laws. WHEREFORE, all the foregoing considered, the Decision dated July 9, 2008 of the Court of Appeals in CA-G.R. CRHC No. 00353 is hereby AFFIRMED with MODIFICATIONS. Accused-appellant Edgar Jumawan is found GUILTY beyond

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 17 3RD EXAM COVERAGE – CASES and SPECIAL LAWS reasonable doubt of two (2) counts of RAPE and is sentenced to suffer the penalty of reclusion perpetua for each count, without eligibility for parole. He is further ordered to pay the victim, KKK, the amounts of PS0,000.00 as civil indemnity, P50,000.00 as moral damages, and P30,000.00 as exemplary damages, for each count of rape. The award of damages shall earn legal interest at the rate of six percent (6%) per annum from the finality of this judgment until fully paid. SO ORDERED.

already served the minimum period of her penalty while under detention during the pendency of this case.

The Case

For automatic review before this Court is the September 25, 1998 Decision[1] of the Regional Trial Court (RTC) of Ormoc City (Branch 35) in Criminal Case No. 50160, finding Marivic Genosa guilty beyond reasonable doubt of parricide. The decretal portion of the Decision reads:

PEOPLE v. GENOSA EN BANC

[G.R. No. 135981. January 15, 2004]

PEOPLE OF THE PHILIPPINES, appellee, vs. MARIVIC GENOSA, appellant. DECISION PANGANIBAN, J.: Admitting she killed her husband, appellant anchors her prayer for acquittal on a novel theory -- the “battered woman syndrome” (BWS), which allegedly constitutes self-defense. Under the proven facts, however, she is not entitled to complete exoneration because there was no unlawful aggression -- no immediate and unexpected attack on her by her batterer-husband at the time she shot him. Absent unlawful aggression, there can be no selfdefense, complete or incomplete. But all is not lost. The severe beatings repeatedly inflicted on appellant constituted a form of cumulative provocation that broke down her psychological resistance and self-control. This “psychological paralysis” she suffered diminished her will power, thereby entitling her to the mitigating factor under paragraphs 9 and 10 of Article 13 of the Revised Penal Code. In addition, appellant should also be credited with the extenuating circ*mstance of having acted upon an impulse so powerful as to have naturally produced passion and obfuscation. The acute battering she suffered that fatal night in the hands of her batterer-spouse, in spite of the fact that she was eight months pregnant with their child, overwhelmed her and put her in the aforesaid emotional and mental state, which overcame her reason and impelled her to vindicate her life and her unborn child’s. Considering the presence of these two mitigating circ*mstances arising from BWS, as well as the benefits of the Indeterminate Sentence Law, she may now apply for and be released from custody on parole, because she has

“WHEREFORE, after all the foregoing being duly considered, the Court finds the accused, Marivic Genosa y Isidro, GUILTY beyond reasonable doubt of the crime of Parricide as provided under Article 246 of the Revised Penal Code as restored by Sec. 5, RA No. 7659, and after finding treachery as a generic aggravating circ*mstance and none of mitigating circ*mstance, hereby sentences the accused with the penalty of DEATH. “The Court likewise penalizes the accused to pay the heirs of the deceased the sum of fifty thousand pesos (P50,000.00), Philippine currency as indemnity and another sum of fifty thousand pesos (P50,000.00), Philippine currency as moral damages.”[2] The Information[3] charged appellant with parricide as follows: “That on or about the 15th day of November 1995, at Barangay Bilwang, Municipality of Isabel, Province of Leyte, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, with treachery and evident premeditation, did then and there wilfully, unlawfully and feloniously attack, assault, hit and wound one BEN GENOSA, her legitimate husband, with the use of a hard deadly weapon, which the accused had provided herself for the purpose, [causing] the following wounds, to wit: ‘Cadaveric spasm. ‘Body on the 2nd stage of decomposition. ‘Face, black, blownup & swollen w/ evident post-mortem lividity. Eyes protruding from its sockets and tongue slightly protrudes out of the mouth. ‘Fracture, open, depressed, circular located at the occipital bone of the head, resulting [in] laceration of the brain, spontaneous rupture of the blood vessels on the posterior surface of the brain, laceration of the dura and meningeal vessels producing severe intracranial hemorrhage. ‘Blisters at both extrem[i]ties, anterior chest, posterior chest, trunk w/ shedding of the epidermis.

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 18 3RD EXAM COVERAGE – CASES and SPECIAL LAWS ‘Abdomen distended w/ gas. Trunk bloated.’ which caused his death.”[4] With the assistance of her counsel,[5] appellant pleaded not guilty during her arraignment on March 3, 1997. [6] In due course, she was tried for and convicted of parricide.

The Facts

Version of the Prosecution

The Office of the Solicitor General (OSG) summarizes the prosecution’s version of the facts in this wise: “Appellant and Ben Genosa were united in marriage on November 19, 1983 in Ormoc City. Thereafter, they lived with the parents of Ben in their house at Isabel, Leyte. For a time, Ben’s younger brother, Alex, and his wife lived with them too. Sometime in 1995, however, appellant and Ben rented from Steban Matiga a house at Barangay Bilwang, Isabel, Leyte where they lived with their two children, namely: John Marben and Earl Pierre. “On November 15, 1995, Ben and Arturo Basobas went to a co*ckfight after receiving their salary. They each had two (2) bottles of beer before heading home. Arturo would pass Ben’s house before reaching his. When they arrived at the house of Ben, he found out that appellant had gone to Isabel, Leyte to look for him. Ben went inside his house, while Arturo went to a store across it, waiting until 9:00 in the evening for the masiao runner to place a bet. Arturo did not see appellant arrive but on his way home passing the side of the Genosas’ rented house, he heard her say ‘I won’t hesitate to kill you’ to which Ben replied ‘Why kill me when I am innocent?’ That was the last time Arturo saw Ben alive. Arturo also noticed that since then, the Genosas’ rented house appeared uninhabited and was always closed. “On November 16, 1995, appellant asked Erlinda Paderog, her close friend and neighbor living about fifty (50) meters from her house, to look after her pig because she was going to Cebu for a pregnancy check-up. Appellant likewise asked Erlinda to sell her motorcycle to their neighbor Ronnie Dayandayan who unfortunately had no money to buy it. “That same day, about 12:15 in the afternoon, Joseph Valida was waiting for a bus going to Ormoc when he saw appellant going out of their house with her two kids in tow, each one carrying a bag, locking the gate and taking her children to the waiting area where he was. Joseph lived about fifty (50) meters behind the Genosas’ rented house. Joseph, appellant and her children rode the same bus to Ormoc. They had no conversation as Joseph noticed that appellant did not want to talk to him.

“On November 18, 1995, the neighbors of Steban Matiga told him about the foul odor emanating from his house being rented by Ben and appellant. Steban went there to find out the cause of the stench but the house was locked from the inside. Since he did not have a duplicate key with him, Steban destroyed the gate padlock with a borrowed steel saw. He was able to get inside through the kitchen door but only after destroying a window to reach a hook that locked it. Alone, Steban went inside the unlocked bedroom where the offensive smell was coming from. There, he saw the lifeless body of Ben lying on his side on the bed covered with a blanket. He was only in his briefs with injuries at the back of his head. Seeing this, Steban went out of the house and sent word to the mother of Ben about his son’s misfortune. Later that day, Iluminada Genosa, the mother of Ben, identified the dead body as that of [her] son. “Meanwhile, in the morning of the same day, SPO3 Leo Acodesin, then assigned at the police station at Isabel, Leyte, received a report regarding the foul smell at the Genosas’ rented house. Together with SPO1 Millares, SPO1 Colon, and Dr. Refelina Cerillo, SPO3 Acodesin proceeded to the house and went inside the bedroom where they found the dead body of Ben lying on his side wrapped with a bedsheet. There was blood at the nape of Ben who only had his briefs on. SPO3 Acodesin found in one corner at the side of an aparador a metal pipe about two (2) meters from where Ben was, leaning against a wall. The metal pipe measured three (3) feet and six (6) inches long with a diameter of one and half (1 1/2) inches. It had an open end without a stop valve with a red stain at one end. The bedroom was not in disarray. “About 10:00 that same morning, the cadaver of Ben, because of its stench, had to be taken outside at the back of the house before the postmortem examination was conducted by Dr. Cerillo in the presence of the police. A municipal health officer at Isabel, Leyte responsible for medico-legal cases, Dr. Cerillo found that Ben had been dead for two to three days and his body was already decomposing. The postmortem examination of Dr. Cerillo yielded the findings quoted in the Information for parricide later filed against appellant. She concluded that the cause of Ben’s death was ‘cardiopulmonary arrest secondary to severe intracranial hemorrhage due to a depressed fracture of the occipital [bone].’ “Appellant admitted killing Ben. She testified that going home after work on November 15, 1995, she got worried that her husband who was not home yet might have gone gambling since it was a payday. With her cousin Ecel Araño, appellant went to look for Ben at the marketplace and taverns at Isabel, Leyte but did not find him there. They found Ben drunk upon their return at the Genosas’ house. Ecel went home despite appellant’s request for her to sleep in their house. “Then, Ben purportedly nagged appellant for following him, even challenging her to a fight. She allegedly ignored him and instead attended to their children who were doing their

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 19 3RD EXAM COVERAGE – CASES and SPECIAL LAWS homework. Apparently disappointed with her reaction, Ben switched off the light and, with the use of a chopping knife, cut the television antenna or wire to keep her from watching television. According to appellant, Ben was about to attack her so she ran to the bedroom, but he got hold of her hands and whirled her around. She fell on the side of the bed and screamed for help. Ben left. At this point, appellant packed his clothes because she wanted him to leave. Seeing his packed clothes upon his return home, Ben allegedly flew into a rage, dragged appellant outside of the bedroom towards a drawer holding her by the neck, and told her ‘You might as well be killed so nobody would nag me.’ Appellant testified that she was aware that there was a gun inside the drawer but since Ben did not have the key to it, he got a three-inch long blade cutter from his wallet. She however, ‘smashed’ the arm of Ben with a pipe, causing him to drop the blade and his wallet. Appellant then ‘smashed’ Ben at his nape with the pipe as he was about to pick up the blade and his wallet. She thereafter ran inside the bedroom.

help as his left hand was covered with blood. Marivic left the house but after a week, she returned apparently having asked for Ben’s forgiveness. In another incident in May 22, 1994, early morning, Alex and his father apparently rushed to Ben’s aid again and saw blood from Ben’s forehead and Marivic holding an empty bottle. Ben and Marivic reconciled after Marivic had apparently again asked for Ben’s forgiveness.

“Appellant, however, insisted that she ended the life of her husband by shooting him. She supposedly ‘distorted’ the drawer where the gun was and shot Ben. He did not die on the spot, though, but in the bedroom.”[7] (Citations omitted)

“Mrs. Iluminada Genosa, Marivic’s mother-in-law, testified too, saying that Ben and Marivic married in ‘1986 or 1985 more or less here in Fatima, Ormoc City.’ She said as the marriage went along, Marivic became ‘already very demanding. Mrs. Iluminada Genosa said that after the birth of Marivic’s two sons, there were ‘three (3) misunderstandings.’ The first was when Marivic stabbed Ben with a table knife through his left arm; the second incident was on November 15, 1994, when Marivic struck Ben on the forehead ‘using a sharp instrument until the eye was also affected. It was wounded and also the ear’ and her husband went to Ben to help; and the third incident was in 1995 when the couple had already transferred to the house in Bilwang and she saw that Ben’s hand was plastered as ‘the bone cracked.’

Version of the Defense

“Both mother and son claimed they brought Ben to a Pasar clinic for medical intervention.

Appellant relates her version of the facts in this manner: “1. Marivic and Ben Genosa were allegedly married on November 19, 1983. Prior to her marriage, Marivic had graduated from San Carlos, Cebu City, obtaining a degree of Bachelor of Science in Business Administration, and was working, at the time of her husband’s death, as a Secretary to the Port Managers in Ormoc City. The couple had three (3) children: John Marben, Earl Pierre and Marie Bianca. “2. Marivic and Ben had known each other since elementary school; they were neighbors in Bilwang; they were classmates; and they were third degree cousins. Both sets of parents were against their relationship, but Ben was persistent and tried to stop other suitors from courting her. Their closeness developed as he was her constant partner at fiestas. “3. After their marriage, they lived first in the home of Ben’s parents, together with Ben’s brother, Alex, in Isabel, Leyte. In the first year of marriage, Marivic and Ben ‘lived happily’. But apparently, soon thereafter, the couple would quarrel often and their fights would become violent. “4. Ben’s brother, Alex, testified for the prosecution that he could not remember when Ben and Marivic married. He said that when Ben and Marivic quarreled, generally when Ben would come home drunk, Marivic would inflict injuries on him. He said that in one incident in 1993 he saw Marivic holding a kitchen knife after Ben had shouted for

“5. Arturo Basobas, a co-worker of Ben, testified that on November 15, 1995 ‘After we collected our salary, we went to the co*ck-fighting place of ISCO.’ They stayed there for three (3) hours, after which they went to ‘Uniloks’ and drank beer – allegedly only two (2) bottles each. After drinking they bought barbeque and went to the Genosa residence. Marivic was not there. He stayed a while talking with Ben, after which he went across the road to wait ‘for the runner and the usher of the masiao game because during that time, the hearing on masiao numbers was rampant. I was waiting for the ushers and runners so that I can place my bet.’ On his way home at about 9:00 in the evening, he heard the Genosas arguing. They were quarreling loudly. Outside their house was one ‘Fredo’ who is used by Ben to feed his fighting co*cks. Basobas’ testimony on the root of the quarrel, conveniently overheard by him was Marivic saying ‘I will never hesitate to kill you’, whilst Ben replied ‘Why kill me when I am innocent.’ Basobas thought they were joking. “He did not hear them quarreling while he was across the road from the Genosa residence. Basobas admitted that he and Ben were always at the co*ckpits every Saturday and Sunday. He claims that he once told Ben ‘before when he was stricken with a bottle by Marivic Genosa’ that he should leave her and that Ben would always take her back after she would leave him ‘so many times’. “Basobas could not remember when Marivic had hit Ben, but it was a long time that they had been quarreling. He said Ben ‘even had a wound’ on the right forehead. He had known the couple for only one (1) year.

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 20 3RD EXAM COVERAGE – CASES and SPECIAL LAWS “6. Marivic testified that after the first year of marriage, Ben became cruel to her and was a habitual drinker. She said he provoked her, he would slap her, sometimes he would pin her down on the bed, and sometimes beat her. “These incidents happened several times and she would often run home to her parents, but Ben would follow her and seek her out, promising to change and would ask for her forgiveness. She said after she would be beaten, she would seek medical help from Dr. Dino Caing, Dr. Lucero and Dra. Cerillo. These doctors would enter the injuries inflicted upon her by Ben into their reports. Marivic said Ben would beat her or quarrel with her every time he was drunk, at least three times a week. “7. In her defense, witnesses who were not so closely related to Marivic, testified as to the abuse and violence she received at the hands of Ben. ‘7.1. Mr. Joe Barrientos, a fisherman, who was a [neighbor] of the Genosas, testified that on November 15, 1995, he overheard a quarrel between Ben and Marivic. Marivic was shouting for help and through the open jalousies, he saw the spouses ‘grappling with each other’. Ben had Marivic in a choke hold. He did not do anything, but had come voluntarily to testify. (Please note this was the same night as that testified to by Arturo Busabos.[8]) ‘7.2. Mr. Junnie Barrientos, also a fisherman, and the brother of Mr. Joe Barrientos, testified that he heard his neighbor Marivic shouting on the night of November 15, 1995. He peeped through the window of his hut which is located beside the Genosa house and saw ‘the spouses grappling with each other then Ben Genosa was holding with his both hands the neck of the accused, Marivic Genosa’. He said after a while, Marivic was able to extricate he[r]self and enter the room of the children. After that, he went back to work as he was to go fishing that evening. He returned at 8:00 the next morning. (Again, please note that this was the same night as that testified to by Arturo Basobas). ‘7.3. Mr. Teodoro Sarabia was a former neighbor of the Genosas while they were living in Isabel, Leyte. His house was located about fifty (50) meters from theirs. Marivic is his niece and he knew them to be living together for 13 or 14 years. He said the couple was always quarreling. Marivic confided in him that Ben would pawn items and then would use the money to gamble. One time, he went to their house and they were quarreling. Ben was so angry, but would be pacified ‘if somebody would come.’ He testified that while Ben was alive ‘he used to gamble and when he became drunk, he would go to our house and he will say, ‘Teody’ because that was what he used to call me, ‘mokimas ta,’ which means ‘let’s go and look for a whor*.’ Mr. Sarabia further testified that Ben ‘would box his wife and I would see bruises and one time she ran to me, I noticed a wound (the witness pointed to his right breast) as according to her a knife was stricken to her.’ Mr. Sarabia also said that once he

saw Ben had been injured too. He said he voluntarily testified only that morning. ‘7.4. Miss Ecel Arano, an 18-year old student, who is a cousin of Marivic, testified that in the afternoon of November 15, 1995, Marivic went to her house and asked her help to look for Ben. They searched in the market place, several taverns and some other places, but could not find him. She accompanied Marivic home. Marivic wanted her to sleep with her in the Genosa house ‘because she might be battered by her husband.’ When they got to the Genosa house at about 7:00 in the evening, Miss Arano said that ‘her husband was already there and was drunk.’ Miss Arano knew he was drunk ‘because of his staggering walking and I can also detect his face.’ Marivic entered the house and she heard them quarrel noisily. (Again, please note that this is the same night as that testified to by Arturo Basobas) Miss Arano testified that this was not the first time Marivic had asked her to sleep in the house as Marivic would be afraid every time her husband would come home drunk. At one time when she did sleep over, she was awakened at 10:00 in the evening when Ben arrived because the couple ‘were very noisy in the sala and I had heard something was broken like a vase.’ She said Marivic ran into her room and they locked the door. When Ben couldn’t get in he got a chair and a knife and ‘showed us the knife through the window grill and he scared us.’ She said that Marivic shouted for help, but no one came. On cross-examination, she said that when she left Marivic’s house on November 15, 1995, the couple were still quarreling. ‘7.5. Dr. Dino Caing, a physician testified that he and Marivic were co-employees at PHILPHOS, Isabel, Leyte. Marivic was his patient ‘many times’ and had also received treatment from other doctors. Dr. Caing testified that from July 6, 1989 until November 9, 1995, there were six (6) episodes of physical injuries inflicted upon Marivic. These injuries were reported in his Out-Patient Chart at the PHILPHOS Hospital. The prosecution admitted the qualifications of Dr. Caing and considered him an expert witness.’ xxx

xxx

xxx

‘Dr. Caing’s clinical history of the tension headache and hypertention of Marivic on twenty-three (23) separate occasions was marked at Exhibits ‘2’ and ‘2-B.’ The OPD Chart of Marivic at the Philphos Clinic which reflected all the consultations made by Marivic and the six (6) incidents of physical injuries reported was marked as Exhibit ‘3.’ “On cross-examination, Dr. Caing said that he is not a psychiatrist, he could not say whether the injuries were directly related to the crime committed. He said it is only a psychiatrist who is qualified to examine the psychological make-up of the patient, ‘whether she is capable of committing a crime or not.’ ‘7.6 Mr. Panfilo Tero, the barangay captain in the place where the Genosas resided, testified that about two (2)

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 21 3RD EXAM COVERAGE – CASES and SPECIAL LAWS months before Ben died, Marivic went to his office past 8:00 in the evening. She sought his help to settle or confront the Genosa couple who were experiencing ‘family troubles’. He told Marivic to return in the morning, but he did not hear from her again and assumed ‘that they might have settled with each other or they might have forgiven with each other.’ xxx

xxx

xxx

“Marivic said she did not provoke her husband when she got home that night it was her husband who began the provocation. Marivic said she was frightened that her husband would hurt her and she wanted to make sure she would deliver her baby safely. In fact, Marivic had to be admitted later at the Rizal Medical Centre as she was suffering from eclampsia and hypertension, and the baby was born prematurely on December 1, 1995. “Marivic testified that during her marriage she had tried to leave her husband at least five (5) times, but that Ben would always follow her and they would reconcile. Marivic said that the reason why Ben was violent and abusive towards her that night was because ‘he was crazy about his recent girlfriend, Lulu x x x Rubillos.’ “On cross-examination, Marivic insisted she shot Ben with a gun; she said that he died in the bedroom; that their quarrels could be heard by anyone passing their house; that Basobas lied in his testimony; that she left for Manila the next day, November 16, 1995; that she did not bother anyone in Manila, rented herself a room, and got herself a job as a field researcher under the alias ‘Marvelous Isidro’; she did not tell anyone that she was leaving Leyte, she just wanted to have a safe delivery of her baby; and that she was arrested in San Pablo, Laguna. ‘Answering questions from the Court, Marivic said that she threw the gun away; that she did not know what happened to the pipe she used to ‘smash him once’; that she was wounded by Ben on her wrist with the bolo; and that two (2) hours after she was ‘whirled’ by Ben, he kicked her ‘ass’ and dragged her towards the drawer when he saw that she had packed his things.’ “9. The body of Ben Genosa was found on November 18, 1995 after an investigation was made of the foul odor emitting from the Genosa residence. This fact was testified to by all the prosecution witnesses and some defense witnesses during the trial. “10. Dra. Refelina Y. Cerillo, a physician, was the Municipal Health Officer of Isabel, Leyte at the time of the incident, and among her responsibilities as such was to take charge of all medico-legal cases, such as the examination of cadavers and the autopsy of cadavers. Dra. Cerillo is not a forensic pathologist. She merely took the medical board exams and passed in 1986. She was called by the police to go to the Genosa residence and when she got there, she saw ‘some police officer and neighbor around.’ She saw Ben

Genosa, covered by a blanket, lying in a semi-prone position with his back to the door. He was wearing only a brief. xxx

xxx

xxx

“Dra. Cerillo said that ‘there is only one injury and that is the injury involving the skeletal area of the head’ which she described as a ‘fracture’. And that based on her examination, Ben had been dead 2 or 3 days. Dra. Cerillo did not testify as to what caused his death. “Dra. Cerillo was not cross-examined by defense counsel. “11. The Information, dated November 14, 1996, filed against Marivic Genosa charged her with the crime of PARRICIDE committed ‘with intent to kill, with treachery and evidence premeditation, x x x wilfully, unlawfully and feloniously attack, assault, hit and wound x x x her legitimate husband, with the use of a hard deadly weapon x x x which caused his death.’ “12. Trial took place on 7 and 14 April 1997, 14 May 1997, 21 July 1997, 17, 22 and 23 September 1997, 12 November 1997, 15 and 16 December 1997, 22 May 1998, and 5 and 6 August 1998. “13. On 23 September 1998, or only fifty (50) days from the day of the last trial date, the Hon. Fortunito L. Madrona, Presiding Judge, RTC-Branch 35, Ormoc City, rendered a JUDGMENT finding Marivic guilty ‘beyond reasonable doubt’ of the crime of parricide, and further found treachery as an aggravating circ*mstance, thus sentencing her to the ultimate penalty of DEATH. “14. The case was elevated to this Honorable Court upon automatic review and, under date of 24 January 2000, Marivic’s trial lawyer, Atty. Gil Marvel P. Tabucanon, filed a Motion to Withdraw as counsel, attaching thereto, as a precautionary measure, two (2) drafts of Appellant’s Briefs he had prepared for Marivic which, for reasons of her own, were not conformed to by her. “The Honorable Court allowed the withdrawal of Atty. Tabucanon and permitted the entry of appearance of undersigned counsel. “15. Without the knowledge of counsel, Marivic Genosa wrote a letter dated 20 January 2000, to the Chief Justice, coursing the same through Atty. Teresita G. Dimaisip, Deputy Clerk of Court of Chief Judicial Records Office, wherein she submitted her ‘Brief without counsels’ to the Court. “This letter was stamp-received by the Honorable Court on 4 February 2000. “16. In the meantime, under date of 17 February 2000, and stamp-received by the Honorable Court on 19 February 2000, undersigned counsel filed an URGENT OMNIBUS

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 22 3RD EXAM COVERAGE – CASES and SPECIAL LAWS MOTION praying that the Honorable Court allow the exhumation of Ben Genosa and the re-examination of the cause of his death; allow the examination of Marivic Genosa by qualified psychologists and psychiatrists to determine her state of mind at the time she killed her husband; and finally, to allow a partial re-opening of the case a quo to take the testimony of said psychologists and psychiatrists. “Attached to the URGENT OMNIBUS MOTION was a letter of Dr. Raquel Fortun, then the only qualified forensic pathologist in the country, who opined that the description of the death wound (as culled from the post-mortem findings, Exhibit ‘A’) is more akin to a gunshot wound than a beating with a lead pipe. “17. In a RESOLUTION dated 29 September 2000, the Honorable Court partly granted Marivic’s URGENT OMNIBUS MOTION and remanded the case ‘to the trial court for the reception of expert psychological and/or psychiatric opinion on the ‘battered woman syndrome’ plea, within ninety (90) days from notice, and, thereafter to forthwith report to this Court the proceedings taken, together with the copies of the TSN and relevant documentary evidence, if any, submitted.’ “18. On 15 January 2001, Dra. Natividad A. Dayan appeared and testified before the Hon. Fortunito L. Madrona, RTC-Branch 35, Ormoc City. “Immediately before Dra. Dayan was sworn, the Court a quo asked if she had interviewed Marivic Genosa. Dra. Dayan informed the Court that interviews were done at the Penal Institution in 1999, but that the clinical interviews and psychological assessment were done at her clinic. “Dra. Dayan testified that she has been a clinical psychologist for twenty (20) years with her own private clinic and connected presently to the De La Salle University as a professor. Before this, she was the Head of the Psychology Department of the Assumption College; a member of the faculty of Psychology at the Ateneo de Manila University and St. Joseph’s College; and was the counseling psychologist of the National Defense College. She has an AB in Psychology from the University of the Philippines, a Master of Arts in Clinical [Counseling], Psychology from the Ateneo, and a PhD from the U.P. She was the past president of the Psychological Association of the Philippines and is a member of the American Psychological Association. She is the secretary of the International Council of Psychologists from about 68 countries; a member of the Forensic Psychology Association; and a member of the ASEAN [Counseling] Association. She is actively involved with the Philippine Judicial Academy, recently lecturing on the sociodemographic and psychological profile of families involved in domestic violence and nullity cases. She was with the Davide Commission doing research about Military Psychology. She has written a book entitled ‘Energy Global Psychology’ (together with Drs. Allan Tan and Allan Bernardo). The Genosa case is the first time she has

testified as an expert on battered women as this is the first case of that nature. “Dra. Dayan testified that for the research she conducted, on the socio-demographic and psychological profile of families involved in domestic violence, and nullity cases, she looked at about 500 cases over a period of ten (10) years and discovered that ‘there are lots of variables that cause all of this marital conflicts, from domestic violence to infidelity, to psychiatric disorder.’ “Dra. Dayan described domestic violence to comprise of ‘a lot of incidents of psychological abuse, verbal abuse, and emotional abuse to physical abuse and also sexual abuse.’ xxx

xxx

xxx

“Dra. Dayan testified that in her studies, ‘the battered woman usually has a very low opinion of herself. She has a selfdefeating and self-sacrificing characteristics. x x x they usually think very lowly of themselves and so when the violence would happen, they usually think that they provoke it, that they were the one who precipitated the violence, they provoke their spouse to be physically, verbally and even sexually abusive to them.’ Dra. Dayan said that usually a battered x x x comes from a dysfunctional family or from ‘broken homes.’ “Dra. Dayan said that the batterer, just like the battered woman, ‘also has a very low opinion of himself. But then emerges to have superiority complex and it comes out as being very arrogant, very hostile, very aggressive and very angry. They also had (sic) a very low tolerance for frustrations. A lot of times they are involved in vices like gambling, drinking and drugs. And they become violent.’ The batterer also usually comes from a dysfunctional family which over-pampers them and makes them feel entitled to do anything. Also, they see often how their parents abused each other so ‘there is a lot of modeling of aggression in the family.’ “Dra. Dayan testified that there are a lot of reasons why a battered woman does not leave her husband: poverty, selfblame and guilt that she provoked the violence, the cycle itself which makes her hope her husband will change, the belief in her obligations to keep the family intact at all costs for the sake of the children. xxx

xxx

xxx

“Dra. Dayan said that abused wives react differently to the violence: some leave the house, or lock themselves in another room, or sometimes try to fight back triggering ‘physical violence on both of them.’ She said that in a ‘normal marital relationship,’ abuses also happen, but these are ‘not consistent, not chronic, are not happening day in [and] day out.’ In an ‘abnormal marital relationship,’ the abuse occurs day in and day out, is long lasting and ‘even would cause hospitalization on the victim and even death on the victim.’

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 23 3RD EXAM COVERAGE – CASES and SPECIAL LAWS xxx

xxx

xxx

“Dra. Dayan said that as a result of the battery of psychological tests she administered, it was her opinion that Marivic fits the profile of a battered woman because ‘inspite of her feeling of self-confidence which we can see at times there are really feeling (sic) of loss, such feelings of humiliation which she sees herself as damaged and as a broken person. And at the same time she still has the imprint of all the abuses that she had experienced in the past.’ xxx

xxx

xxx

“Dra. Dayan said Marivic thought of herself as a loving wife and did not even consider filing for nullity or legal separation inspite of the abuses. It was at the time of the tragedy that Marivic then thought of herself as a victim. xxx

xxx

xxx

“19. On 9 February 2001, Dr. Alfredo Pajarillo, a physician, who has since passed away, appeared and testified before RTC-Branch 35, Ormoc City. “Dr. Pajarillo was a Diplomate of the Philippine Board of Psychiatry; a Fellow of the Philippine Board of Psychiatry and a Fellow of the Philippine Psychiatry Association. He was in the practice of psychiatry for thirty-eight (38) years. Prior to being in private practice, he was connected with the Veterans Memorial Medical Centre where he gained his training on psychiatry and neurology. After that, he was called to active duty in the Armed Forces of the Philippines, assigned to the V. Luna Medical Center for twenty six (26) years. Prior to his retirement from government service, he obtained the rank of Brigadier General. He obtained his medical degree from the University of Santo Tomas. He was also a member of the World Association of Military Surgeons; the Quezon City Medical Society; the Cagayan Medical Society; and the Philippine Association of Military Surgeons. “He authored ‘The Comparative Analysis of Nervous Breakdown in the Philippine Military Academy from the Period 1954 – 1978’ which was presented twice in international congresses. He also authored ‘The Mental Health of the Armed Forces of the Philippines 2000’, which was likewise published internationally and locally. He had a medical textbook published on the use of Prasepam on a Parke-Davis grant; was the first to use Enanthate (siquiline), on an E.R. Squibb grant; and he published the use of the drug Zopiclom in 1985-86. “Dr. Pajarillo explained that psychiatry deals with the functional disorder of the mind and neurology deals with the ailment of the brain and spinal cord enlarged. Psychology, on the other hand, is a bachelor degree and a doctorate degree; while one has to finish medicine to become a specialist in psychiatry.

“Even only in his 7th year as a resident in V. Luna Medical Centre, Dr. Pajarillo had already encountered a suit involving violent family relations, and testified in a case in 1964. In the Armed Forces of the Philippines, violent family disputes abound, and he has seen probably ten to twenty thousand cases. In those days, the primordial intention of therapy was reconciliation. As a result of his experience with domestic violence cases, he became a consultant of the Battered Woman Office in Quezon City under Atty. Nenita Deproza. “As such consultant, he had seen around forty (40) cases of severe domestic violence, where there is physical abuse: such as slapping, pushing, verbal abuse, battering and boxing a woman even to an unconscious state such that the woman is sometimes confined. The affliction of PostTraumatic Stress Disorder ‘depends on the vulnerability of the victim.’ Dr. Pajarillo said that if the victim is not very healthy, perhaps one episode of violence may induce the disorder; if the psychological stamina and physiologic constitutional stamina of the victim is stronger, ‘it will take more repetitive trauma to precipitate the post-traumatic stress disorder and this x x x is very dangerous.’ “In psychiatry, the post-traumatic stress disorder is incorporated under the ‘anxiety neurosis or neurologic anxcietism.’ It is produced by ‘overwhelming brutality, trauma.’ xxx

xxx

xxx

“Dr. Pajarillo explained that with ‘neurotic anxiety’, the victim relives the beating or trauma as if it were real, although she is not actually being beaten at that time. She thinks ‘of nothing but the suffering.’ xxx

xxx

xxx

“A woman who suffers battery has a tendency to become neurotic, her emotional tone is unstable, and she is irritable and restless. She tends to become hard-headed and persistent. She has higher sensitivity and her ‘self-world’ is damaged. “Dr. Pajarillo said that an abnormal family background relates to an individual’s illness, such as the deprivation of the continuous care and love of the parents. As to the batterer, he normally ‘internalizes what is around him within the environment.’ And it becomes his own personality. He is very competitive; he is aiming high all the time; he is so macho; he shows his strong façade ‘but in it there are doubts in himself and prone to act without thinking.’ xxx

xxx

xxx

“Dr. Pajarillo emphasized that ‘even though without the presence of the precipator (sic) or the one who administered the battering, that re-experiencing of the trauma occurred (sic) because the individual cannot control it. It will just come up in her mind or in his mind.’

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 24 3RD EXAM COVERAGE – CASES and SPECIAL LAWS xxx

xxx

xxx

“Dr. Pajarillo said that a woman suffering post traumatic stress disorder try to defend themselves, and ‘primarily with knives. Usually pointed weapons or any weapon that is available in the immediate surrounding or in a hospital x x x because that abound in the household.’ He said a victim resorts to weapons when she has ‘reached the lowest rock bottom of her life and there is no other recourse left on her but to act decisively.’ xxx

xxx

xxx

“Dr. Pajarillo testified that he met Marivic Genosa in his office in an interview he conducted for two (2) hours and seventeen (17) minutes. He used the psychological evaluation and social case studies as a help in forming his diagnosis. He came out with a Psychiatric Report, dated 22 January 2001. xxx

xxx

xxx

“On cross-examination by the private prosecutor, Dr. Pajarillo said that at the time she killed her husband Marivic’c mental condition was that she was ‘re-experiencing the trauma.’ He said ‘that we are trying to explain scientifically that the reexperiencing of the trauma is not controlled by Marivic. It will just come in flashes and probably at that point in time that things happened when the re-experiencing of the trauma flashed in her mind.’ At the time he interviewed Marivic ‘she was more subdued, she was not super alert anymore x x x she is mentally stress (sic) because of the predicament she is involved.’ xxx

xxx

xxx

“20. No rebuttal evidence or testimony was presented by either the private or the public prosecutor. Thus, in accord with the Resolution of this Honorable Court, the records of the partially re-opened trial a quo were elevated.”[9]

Supervening Circ*mstances

On February 19, 2000, appellant filed an Urgent Omnibus Motion praying that this Court allow (1) the exhumation of Ben Genosa and the reexamination of the cause of his death; (2) the examination of appellant by qualified psychologists and psychiatrists to determine her state of mind at the time she had killed her spouse; and (3) the inclusion of the said experts’ reports in the records of the case for purposes of the automatic review or, in the alternative, a partial reopening of the case for the lower court to admit the experts’ testimonies. On September 29, 2000, this Court issued a Resolution granting in part appellant’s Motion, remanding the case to the trial court for the reception of expert psychological and/or psychiatric opinion on the “battered woman syndrome” plea; and requiring the lower court to report thereafter to this Court the proceedings taken as well as to submit copies of the TSN and additional evidence, if any. Acting on the Court’s Resolution, the trial judge authorized the examination of Marivic by two clinical psychologists, Drs. Natividad Dayan[10] and Alfredo Pajarillo, [11] supposedly experts on domestic violence. Their testimonies, along with their documentary evidence, were then presented to and admitted by the lower court before finally being submitted to this Court to form part of the records of the case.[12]

The Issues

Appellant assigns the following alleged errors of the trial court for this Court’s consideration: “1. The trial court gravely erred in promulgating an obviously hasty decision without reflecting on the evidence adduced as to self-defense. “2. The trial court gravely erred in finding as a fact that Ben and Marivic Genosa were legally married and that she was therefore liable for parricide.

Ruling of the Trial Court

Finding the proffered theory of self-defense untenable, the RTC gave credence to the prosecution evidence that appellant had killed the deceased while he was in bed sleeping. Further, the trial court appreciated the generic aggravating circ*mstance of treachery, because Ben Genosa was supposedly defenseless when he was killed -- lying in bed asleep when Marivic smashed him with a pipe at the back of his head. The capital penalty having been imposed, the case was elevated to this Court for automatic review.

“3. The trial court gravely erred finding the cause of death to be by beating with a pipe. “4. The trial court gravely erred in ignoring and disregarding evidence adduced from impartial and unbiased witnesses that Ben Genosa was a drunk, a gambler, a womanizer and wife-beater; and further gravely erred in concluding that Ben Genosa was a battered husband. “5. The trial court gravely erred in not requiring testimony from the children of Marivic Genosa. “6. The trial court gravely erred in concluding that Marivic’s flight to Manila and her subsequent apologies were

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 25 3RD EXAM COVERAGE – CASES and SPECIAL LAWS indicia of guilt, instead of a clear attempt to save the life of her unborn child. “7. The trial court gravely erred in concluding that there was an aggravating circ*mstance of treachery. “8. The trial court gravely erred in refusing to reevaluate the traditional elements in determining the existence of self-defense and defense of foetus in this case, thereby erroneously convicting Marivic Genosa of the crime of parricide and condemning her to the ultimate penalty of death.”[13] In the main, the following are the essential legal issues: (1) whether appellant acted in self-defense and in defense of her fetus; and (2) whether treachery attended the killing of Ben Genosa.

The Court’s Ruling

been filed with the lower court on November 14, 1996. Thereafter, trial began and at least 13 hearings were held for over a year. It took the trial judge about two months from the conclusion of trial to promulgate his judgment. That he conducted the trial and resolved the case with dispatch should not be taken against him, much less used to condemn him for being unduly hasty. If at all, the dispatch with which he handled the case should be lauded. In any case, we find his actions in substantial compliance with his constitutional obligation.[15] Second, the lower court did not err in finding as a fact that Ben Genosa and appellant had been legally married, despite the non-presentation of their marriage contract. In People v. Malabago,[16] this Court held: “The key element in parricide is the relationship of the offender with the victim. In the case of parricide of a spouse, the best proof of the relationship between the accused and the deceased is the marriage certificate. In the absence of a marriage certificate, however, oral evidence of the fact of marriage may be considered by the trial court if such proof is not objected to.”

The appeal is partly meritorious.

Collateral Factual Issues

The first six assigned errors raised by appellant are factual in nature, if not collateral to the resolution of the principal issues. As consistently held by this Court, the findings of the trial court on the credibility of witnesses and their testimonies are entitled to a high degree of respect and will not be disturbed on appeal in the absence of any showing that the trial judge gravely abused his discretion or overlooked, misunderstood or misapplied material facts or circ*mstances of weight and substance that could affect the outcome of the case.[14] In appellant’s first six assigned items, we find no grave abuse of discretion, reversible error or misappreciation of material facts that would reverse or modify the trial court’s disposition of the case. In any event, we will now briefly dispose of these alleged errors of the trial court. First, we do not agree that the lower court promulgated “an obviously hasty decision without reflecting on the evidence adduced as to self-defense.” We note that in his 17-page Decision, Judge Fortunito L. Madrona summarized the testimonies of both the prosecution and the defense witnesses and -- on the basis of those and of the documentary evidence on record -- made his evaluation, findings and conclusions. He wrote a 3-page discourse assessing the testimony and the self-defense theory of the accused. While she, or even this Court, may not agree with the trial judge’s conclusions, we cannot peremptorily conclude, absent substantial evidence, that he failed to reflect on the evidence presented. Neither do we find the appealed Decision to have been made in an “obviously hasty” manner. The Information had

Two of the prosecution witnesses -- namely, the mother and the brother of appellant’s deceased spouse -- attested in court that Ben had been married to Marivic. [17] The defense raised no objection to these testimonies. Moreover, during her direct examination, appellant herself made a judicial admission of her marriage to Ben.[18] Axiomatic is the rule that a judicial admission is conclusive upon the party making it, except only when there is a showing that (1) the admission was made through a palpable mistake, or (2) no admission was in fact made.[19] Other than merely attacking the nonpresentation of the marriage contract, the defense offered no proof that the admission made by appellant in court as to the fact of her marriage to the deceased was made through a palpable mistake. Third, under the circ*mstances of this case, the specific or direct cause of Ben’s death -- whether by a gunshot or by beating with a pipe -- has no legal consequence. As the Court elucidated in its September 29, 2000 Resolution, “[c]onsidering that the appellant has admitted the fact of killing her husband and the acts of hitting his nape with a metal pipe and of shooting him at the back of his head, the Court believes that exhumation is unnecessary, if not immaterial, to determine which of said acts actually caused the victim’s death.” Determining which of these admitted acts caused the death is not dispositive of the guilt or defense of appellant. Fourth, we cannot fault the trial court for not fully appreciating evidence that Ben was a drunk, gambler, womanizer and wife-beater. Until this case came to us for automatic review, appellant had not raised the novel defense of “battered woman syndrome,” for which such evidence may have been relevant. Her theory of self-defense was then the crucial issue before the trial court. As will be discussed shortly, the legal requisites of self-defense under prevailing jurisprudence ostensibly appear inconsistent with the surrounding facts that led to the death of the victim. Hence, his

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 26 3RD EXAM COVERAGE – CASES and SPECIAL LAWS personal character, especially his past behavior, did not constitute vital evidence at the time. Fifth, the trial court surely committed no error in not requiring testimony from appellant’s children. As correctly elucidated by the solicitor general, all criminal actions are prosecuted under the direction and control of the public prosecutor, in whom lies the discretion to determine which witnesses and evidence are necessary to present.[20] As the former further points out, neither the trial court nor the prosecution prevented appellant from presenting her children as witnesses. Thus, she cannot now fault the lower court for not requiring them to testify. Finally, merely collateral or corroborative is the matter of whether the flight of Marivic to Manila and her subsequent apologies to her brother-in-law are indicia of her guilt or are attempts to save the life of her unborn child. Any reversible error as to the trial court’s appreciation of these circ*mstances has little bearing on the final resolution of the case. First Legal Issue: Self-Defense and Defense of a Fetus Appellant admits killing Ben Genosa but, to avoid criminal liability, invokes self-defense and/or defense of her unborn child. When the accused admits killing the victim, it is incumbent upon her to prove any claimed justifying circ*mstance by clear and convincing evidence.[21] Wellsettled is the rule that in criminal cases, self-defense (and similarly, defense of a stranger or third person) shifts the burden of proof from the prosecution to the defense.[22]

The Battered Woman Syndrome

In claiming self-defense, appellant raises the novel theory of the battered woman syndrome. While new in Philippine jurisprudence, the concept has been recognized in foreign jurisdictions as a form of self-defense or, at the least, incomplete self-defense.[23] By appreciating evidence that a victim or defendant is afflicted with the syndrome, foreign courts convey their “understanding of the justifiably fearful state of mind of a person who has been cyclically abused and controlled over a period of time.”[24] A battered woman has been defined as a woman “who is repeatedly subjected to any forceful physical or psychological behavior by a man in order to coerce her to do something he wants her to do without concern for her rights. Battered women include wives or women in any form of intimate relationship with men. Furthermore, in order to be classified as a battered woman, the couple must go through the battering cycle at least twice. Any woman may find herself in an abusive relationship with a man once. If it occurs a second time, and she remains in the situation, she is defined as a battered woman.”[25] Battered women exhibit common personality traits, such as low self-esteem, traditional beliefs about the home,

the family and the female sex role; emotional dependence upon the dominant male; the tendency to accept responsibility for the batterer’s actions; and false hopes that the relationship will improve.[26] More graphically, the battered woman syndrome is characterized by the so-called “cycle of violence,”[27] which has three phases: (1) the tension-building phase; (2) the acute battering incident; and (3) the tranquil, loving (or, at least, nonviolent) phase.[28] During the tension-building phase, minor battering occurs -- it could be verbal or slight physical abuse or another form of hostile behavior. The woman usually tries to pacify the batterer through a show of kind, nurturing behavior; or by simply staying out of his way. What actually happens is that she allows herself to be abused in ways that, to her, are comparatively minor. All she wants is to prevent the escalation of the violence exhibited by the batterer. This wish, however, proves to be double-edged, because her “placatory” and passive behavior legitimizes his belief that he has the right to abuse her in the first place. However, the techniques adopted by the woman in her effort to placate him are not usually successful, and the verbal and/or physical abuse worsens. Each partner senses the imminent loss of control and the growing tension and despair. Exhausted from the persistent stress, the battered woman soon withdraws emotionally. But the more she becomes emotionally unavailable, the more the batterer becomes angry, oppressive and abusive. Often, at some unpredictable point, the violence “spirals out of control” and leads to an acute battering incident.[29] The acute battering incident is said to be characterized by brutality, destructiveness and, sometimes, death. The battered woman deems this incident as unpredictable, yet also inevitable. During this phase, she has no control; only the batterer may put an end to the violence. Its nature can be as unpredictable as the time of its explosion, and so are his reasons for ending it. The battered woman usually realizes that she cannot reason with him, and that resistance would only exacerbate her condition. At this stage, she has a sense of detachment from the attack and the terrible pain, although she may later clearly remember every detail. Her apparent passivity in the face of acute violence may be rationalized thus: the batterer is almost always much stronger physically, and she knows from her past painful experience that it is futile to fight back. Acute battering incidents are often very savage and out of control, such that innocent bystanders or intervenors are likely to get hurt.[30] The final phase of the cycle of violence begins when the acute battering incident ends. During this tranquil period, the couple experience profound relief. On the one hand, the batterer may show a tender and nurturing behavior towards his partner. He knows that he has been viciously cruel and tries to make up for it, begging for her forgiveness and promising never to beat her again. On the other hand, the battered woman also tries to convince herself that the

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 27 3RD EXAM COVERAGE – CASES and SPECIAL LAWS battery will never happen again; that her partner will change for the better; and that this “good, gentle and caring man” is the real person whom she loves.

Q

A battered woman usually believes that she is the sole anchor of the emotional stability of the batterer. Sensing his isolation and despair, she feels responsible for his wellbeing. The truth, though, is that the chances of his reforming, or seeking or receiving professional help, are very slim, especially if she remains with him. Generally, only after she leaves him does he seek professional help as a way of getting her back. Yet, it is in this phase of remorseful reconciliation that she is most thoroughly tormented psychologically. The illusion of absolute interdependency is wellentrenched in a battered woman’s psyche. In this phase, she and her batterer are indeed emotionally dependent on each other -- she for his nurturant behavior, he for her forgiveness. Underneath this miserable cycle of “tension, violence and forgiveness,” each partner may believe that it is better to die than to be separated. Neither one may really feel independent, capable of functioning without the other.[31]

What will happen when he follow you?

A

He said he changed, he asked for forgiveness and I was convinced and after that I go to him and he said ‘sorry’.

Q

During those times that you were the recipient of such cruelty and abusive behavior by your husband, were you able to see a doctor?

A

Yes, sir.

Q

Who are these doctors?

A

The company physician, Dr. Dino Caing, Dr. Lucero and Dra. Cerillo.

xxx

xxx

xxx

Q

You said that you saw a doctor in relation to your injuries?

A

Yes, sir.

Q

Who inflicted these injuries?

History of Abuse in the Present Case

A

Of course my husband.

Q

You mean Ben Genosa?

To show the history of violence inflicted upon appellant, the defense presented several witnesses. She herself described her heart-rending experience as follows:

A

Yes, sir.

“ATTY. TABUCANON Q

How did you describe your marriage with Ben Genosa?

A

In the first year, I lived with him happily but in the subsequent year he was cruel to me and a behavior of habitual drinker.

Q

A

You said that in the subsequent year of your marriage, your husband was abusive to you and cruel. In what way was this abusive and cruelty manifested to you? He always provoke me in everything, he always slap me and sometimes he pinned me down on the bed and sometimes beat me.

Q

How many times did this happen?

A

Several times already.

Q

What did you do when these things happen to you?

A

I went away to my mother and I ran to my father and we separate each other.

Q

What was the action of Ben Genosa towards you leaving home?

A

He is following me, after that he sought after me.

xxx

xxx

xxx

[Court] /to the witness Q

How frequent was the alleged cruelty that you said?

A

Everytime he got drunk.

Q

No, from the time that you said the cruelty or the infliction of injury inflicted on your occurred, after your marriage, from that time on, how frequent was the occurrence?

A

Everytime he got drunk.

Q

Is it daily, weekly, monthly or how many times in a month or in a week?

A

Three times a week.

Q

Do you mean three times a week he would beat you?

A

Not necessarily that he would beat me but sometimes he will just quarrel me.” [32]

Referring to his “Out-Patient Chart”[33] on Marivic Genosa at the Philphos Hospital, Dr. Dino D. Caing bolstered her foregoing testimony on chronic battery in this manner: “Q So, do you have a summary of those six (6) incidents which are found in the chart of your clinic? A

Yes, sir.

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 28 3RD EXAM COVERAGE – CASES and SPECIAL LAWS Q

Who prepared the list of six (6) incidents, Doctor?

A

I did.

Q

Will you please read the physical findings together with the dates for the record.

A

A

Yes, sir.

Q

What did she tell you?

1. May 12, 1990 - physical findings are as follows: Hematoma (R) lower eyelid and redness of eye. Attending physician: Dr. Lucero;

A

As a doctor-patient relationship, we need to know the cause of these injuries. And she told me that it was done to her by her husband.

2. March 10, 1992 - ContusionHematoma (L) lower arbital area, pain and contusion (R) breast. Attending physician: Dr. Canora;

Q

You mean, Ben Genosa?

A

Yes, sir.

5. April 17, 1995 - Trauma, tenderness (R) Shoulder. Attending physician: Dr. Canora; and 6. June 5, 1995 - Swelling Abrasion (L) leg, multiple contusion Pregnancy. Attending physician: Dr. Canora.

Q

xxx

xxx

xxx

ATTY. TABUCANON: Q

By the way Doctor, were you able to physical examine the accused sometime in the month of November, 1995 when this incident happened?

A

As per record, yes.

Q

What was the date?

A

It was on November 6, 1995.

Q

So, did you actually see the accused physically?

Among the findings, there were two (2) incidents wherein you were the attending physician, is that correct?

A

Yes, sir.

Yes, sir.

Q

On November 6, 1995, will you please tell this Honorable Court, was the patient pregnant?

A

Yes, sir.

Q

Being a doctor, can you more engage at what stage of pregnancy was she?

A

Eight (8) months pregnant.

Q

So in other words, it was an advance stage of pregnancy?

A

Yes, sir.

Did you actually physical examine the accused?

A

Yes, sir.

Q

Now, going to your finding no. 3 where you were the one who attended the patient. What do you mean by abrasion furuncle left axilla?

A

xxx

Were you able to talk with the patient?

4. August 1, 1994 - Pain, mastitis (L) breast, 2 to trauma. Attending physician: Dr. Caing;

A

xxx Q

3. March 26, 1993 - Abrasion, Furuncle (L) Axilla;

Q

xxx

Abrasion is a skin wound usually when it comes in contact with something rough substance if force is applied.

Q

What was your November 6, 1995 examination, was it an examination about her pregnancy or for some other findings?

Q

What is meant by furuncle axilla?

A

It is secondary of the light infection over the abrasion.

A

No, she was admitted for hypertension headache which complicates her pregnancy.

Q

What is meant by pain mastitis secondary to trauma?

Q

When you said admitted, meaning she was confined?

A

So, in this 4th episode of physical injuries there is an inflammation of left breast. So, [pain] meaning there is tenderness. When your breast is traumatized, there is tenderness pain.

A

Yes, sir.

Q

For how many days?

A

One day.

Q

Where?

Q

So, these are objective physical injuries. Doctor?

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 29 3RD EXAM COVERAGE – CASES and SPECIAL LAWS A

At PHILPHOS Hospital.

xxx

xxx Q

Considering that she was 8 months pregnant, you mean this is dangerous level of blood pressure?

A

It was dangerous to the child or to the fetus.” [34]

xxx

Lets go back to the clinical history of Marivic Genosa. You said that you were able to examine her personally on November 6, 1995 and she was 8 months pregnant.

What is this all about? A

Q

Because she has this problem of tension headache secondary to hypertension and I think I have a record here, also the same period from 1989 to 1995, she had a consultation for twenty-three (23) times.

Q

For what?

A

Tension headache.

Q

Can we say that specially during the latter consultation, that the patient had hypertension?

A

The patient definitely had hypertension. It was refractory to our treatment. She does not response when the medication was given to her, because tension headache is more or less stress related and emotional in nature.

Q

What did you deduce of tension headache when you said is emotional in nature?

A

From what I deduced as part of our physical examination of the patient is the family history in line of giving the root cause of what is causing this disease. So, from the moment you ask to the patient all comes from the domestic problem.

Another defense witness, Teodoro Sarabia, a former neighbor of the Genosas in Isabel, Leyte, testified that he had seen the couple quarreling several times; and that on some occasions Marivic would run to him with bruises, confiding that the injuries were inflicted upon her by Ben.[35] Ecel Arano also testified[36] that for a number of times she had been asked by Marivic to sleep at the Genosa house, because the latter feared that Ben would come home drunk and hurt her. On one occasion that Ecel did sleep over, she was awakened about ten o’clock at night, because the couple “were very noisy … and I heard something was broken like a vase.” Then Marivic came running into Ecel’s room and locked the door. Ben showed up by the window grill atop a chair, scaring them with a knife. On the afternoon of November 15, 1995, Marivic again asked her help -- this time to find Ben -- but they were unable to. They returned to the Genosa home, where they found him already drunk. Again afraid that he might hurt her, Marivic asked her to sleep at their house. Seeing his state of drunkenness, Ecel hesitated; and when she heard the couple start arguing, she decided to leave. On that same night that culminated in the death of Ben Genosa, at least three other witnesses saw or heard the couple quarreling.[37] Marivic relates in detail the following backdrop of the fateful night when life was snuffed out of him, showing in the process a vivid picture of his cruelty towards her: “ATTY. TABUCANON: Q

Please tell this Court, can you recall the incident in November 15, 1995 in the evening?

A

Whole morning and in the afternoon, I was in the office working then after office hours, I boarded the service bus and went to Bilwang. When I reached Bilwang, I immediately asked my son, where was his father, then my second child said, ‘he was not home yet’. I was worried because that was payday, I was anticipating that he was gambling. So while waiting for him, my eldest son arrived from school, I prepared dinner for my children.

Q

You mean problem in her household?

A

Probably.

Q

Can family trouble cause elevation of blood pressure, Doctor?

A

Yes, if it is emotionally related and stressful it can cause increases in hypertension which is unfortunately does not response to the medication.

Q

In November 6, 1995, the date of the incident, did you take the blood pressure of the accused?

A

On November 6, 1995 consultation, the blood pressure was 180/120.

Q

This is evening of November 15, 1995?

A

Yes, sir.

Q

Is this considered hypertension?

Q

What time did Ben Genosa arrive?

A

Yes, sir, severe.

A

When he arrived, I was not there, I was in Isabel looking for him.

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 30 3RD EXAM COVERAGE – CASES and SPECIAL LAWS Q

So when he arrived you were in Isabel looking for him?

A

When I arrived home, he was there already in his usual behavior.

A

Yes, sir.

Q

Q

Did you come back to your house?

Will you tell this Court what was his disposition?

A

Yes, sir.

A

He was drunk again, he was yelling in his usual unruly behavior.

Q

By the way, where was your conjugal residence situated this time?

Q

What was he yelling all about?

A

His usual attitude when he got drunk.

Q

You said that when you arrived, he was drunk and yelling at you? What else did he do if any?

A

Bilwang.

Q

Is this your house or you are renting?

A

Renting.

Q

What time were you able to come back in your residence at Bilwang?

A

He is nagging at me for following him and he dared me to quarrel him.

A

I went back around almost 8:00 o’clock.

Q

Q

What happened when you arrived in your residence?

What was the cause of his nagging or quarreling at you if you know?

A

A

When I arrived home with my cousin Ecel whom I requested to sleep with me at that time because I had fears that he was again drunk and I was worried that he would again beat me so I requested my cousin to sleep with me, but she resisted because she had fears that the same thing will happen again last year.

He was angry at me because I was following x x x him, looking for him. I was just worried he might be overly drunk and he would beat me again.

Q

You said that he was yelling at you, what else, did he do to you if any?

A

He was nagging at me at that time and I just ignore him because I want to avoid trouble for fear that he will beat me again. Perhaps he was disappointed because I just ignore him of his provocation and he switch off the light and I said to him, ‘why did you switch off the light when the children were there.’ At that time I was also attending to my children who were doing their assignments. He was angry with me for not answering his challenge, so he went to the kitchen and [got] a bolo and cut the antenna wire to stop me from watching television.

Q

What did he do with the bolo?

Q

Who was this cousin of yours who you requested to sleep with you?

A

Ecel Araño, the one who testified.

Q

Did Ecel sleep with you in your house on that evening?

A

No, because she expressed fears, she said her father would not allow her because of Ben.

Q

During this period November 15, 1995, were you pregnant?

A

Yes, 8 months.

Q

How advance was your pregnancy?

Q

What else happened after he cut the wire?

A

Eight (8) months.

A

Q

Was the baby subsequently born?

He switch off the light and the children were shouting because they were scared and he was already holding the bolo.

A

Yes, sir.

Q

How do you described this bolo?

Q

What’s the name of the baby you were carrying at that time?

A

1 1/2 feet.

A

Marie Bianca.

Q

What was the bolo used for usually?

Q

What time were you able to meet personally your husband?

A

For chopping meat.

Q

You said the children were scared, what else happened as Ben was carrying that bolo?

A

He was about to attack me so I run to the room.

A

Yes, sir.

Q

What time?

A

He cut the antenna wire to keep me from watching T.V.

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 31 3RD EXAM COVERAGE – CASES and SPECIAL LAWS Q

What do you mean that he was about to attack you?

A

When I attempt to run he held my hands and he whirled me and I fell to the bedside.

Q

So when he whirled you, what happened to you?

A

I screamed for help and then he left.

Q

You said earlier that he whirled you and you fell on the bedside?

A

Yes, sir.

Q

You screamed for help and he left, do you know where he was going?

A

Outside perhaps to drink more.

Q

When he left what did you do in that particular time?

A

I packed all his clothes.

Q

What was your reason in packing his clothes?

A

I wanted him to leave us.

Q

During this time, where were your children, what were their reactions?

A

After a couple of hours, he went back again and he got angry with me for packing his clothes, then he dragged me again of the bedroom holding my neck.

Q

You said that when Ben came back to your house, he dragged you? How did he drag you?

(At this juncture the witness started crying). ATTY. TABUCANON: Q

Were you actually brought to the drawer?

A

Yes, sir.

Q

What happened when you were brought to that drawer?

A

He dragged me towards the drawer and he was about to open the drawer but he could not open it because he did not have the key then he pulled his wallet which contained a blade about 3 inches long and I was aware that he was going to kill me and I smashed his arm and then the wallet and the blade fell. The one he used to open the drawer I saw, it was a pipe about that long, and when he was about to pick-up the wallet and the blade, I smashed him then I ran to the other room, and on that very moment everything on my mind was to pity on myself, then the feeling I had on that very moment was the same when I was admitted in PHILPHOS Clinic, I was about to vomit.

COURT INTERPRETER: (The witness at this juncture is crying intensely). xxx

xxx

xxx

ATTY. TABUCANON: Q

Talking of drawer, is this drawer outside your room?

COURT INTERPRETER:

A

Outside.

The witness demonstrated to the Court by using her right hand flexed forcibly in her front neck)

Q

In what part of the house?

A

Dining.

Q

Where were the children during that time?

A

My children were already asleep.

ATTY. TABUCANON:

Q

You mean they were inside the room?

Q

A

Yes, sir.

Q

You said that he dropped the blade, for the record will you please describe this blade about 3 inches long, how does it look like?

A

Three (3) inches long and 1/2 inch wide.

Q

Is it a flexible blade?

A

It’s a cutter.

Q

How do you describe the blade, is it sharp both edges?

A

Yes, because he once used it to me.

Q

How did he do it?

A

And he dragged me towards the door backward.

Where did he bring you?

A

Outside the bedroom and he wanted to get something and then he kept on shouting at me that ‘you might as well be killed so there will be nobody to nag me.’

Q

So you said that he dragged you towards the drawer?

A

Yes, sir.

Q

What is there in the drawer?

A

I was aware that it was a gun.

COURT INTERPRETER:

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 32 3RD EXAM COVERAGE – CASES and SPECIAL LAWS A

He wanted to cut my throat.

Q

With the same blade?

A

xxx

“Q: What can you say, that you found Marivic as a battered wife? Could you in layman’s term describe to this Court what her life was like as said to you? What I remember happened then was it was more than ten years, that she was suffering emotional anguish. There were a lot of instances of abuses, to emotional abuse, to verbal abuse and to physical abuse. The husband had a very meager income, she was the one who was practically the bread earner of the family. The husband was involved in a lot of vices, going out with barkadas, drinking, even womanizing being involved in co*ckfight and going home very angry and which will trigger a lot of physical abuse. She also had the experience a lot of taunting from the husband for the reason that the husband even accused her of infidelity, the husband was saying that the child she was carrying was not his own. So she was very angry, she was at the same time very depressed because she was also aware, almost like living in purgatory or even hell when it was happening day in and day out.” [39]

Did you gather an information from Marivic that on the side of her husband they were fond of battering their wives?

A

I also heard that from her?

Q

You heard that from her?

A

Yes, sir.

Q

Did you ask for a complete example who are the relatives of her husband that were fond of battering their wives?

A

What I remember that there were brothers of her husband who are also battering their wives.

Q

Did she not inform you that there was an instance that she stayed in a hotel in Ormoc where her husband followed her and battered [her] several times in that room?

A

She told me about that.

Q

Did she inform you in what hotel in Ormoc?

A

Sir, I could not remember but I was told that she was battered in that room.

Q

Several times in that room?

A

Yes, sir. What I remember was that there is no problem about being battered, it really happened.

Q

Being an expert witness, our jurisprudence is not complete on saying this matter. I think that is the first time that we have this in the Philippines, what is your opinion?

A

Sir, my opinion is, she is really a battered wife and in this kind happened, it was really a self-defense. I also believe that there had been provocation and I also believe that she became a disordered person. She had to suffer anxiety reaction because of all the battering that happened and so she became an abnormal person who had lost she’s not during the time and that is why it happened because of all the physical battering, emotional battering, all the psychological abuses that she had experienced from her husband.

Q

I do believe that she is a battered wife. Was she extremely battered?

A

Sir, it is an extreme form of battering. Yes.[40]

In cross-examining Dra. Dayan, the public prosecutor not merely elicited, but wittingly or unwittingly put forward, additional supporting evidence as shown below: “Q

In your first encounter with the appellant in this case in 1999, where you talked to her about three hours, what was the most relevant information did you gather?

A

The most relevant information was the tragedy that happened. The most important information were escalating abuses that she had experienced during her marital life.

Q

Before you met her in 1999 for three hours, we presume that you already knew of the facts of the case or at least you have substantial knowledge of the facts of the case?

A

I believe I had an idea of the case, but I do not know whether I can consider them as substantial.

xxx

Q

Yes, sir, that was the object used when he intimidate me.” [38]

In addition, Dra. Natividad Dayan was called by the RTC to testify as an expert witness to assist it in understanding the psyche of a battered person. She had met with Marivic Genosa for five sessions totaling about seventeen hours. Based on their talks, the former briefly related the latter’s ordeal to the court a quo as follows:

A:

xxx

Parenthetically, the demonstrated as follows:

credibility

of

appellant

“Q And you also said that you administered [the] objective personality test, what x x x [is this] all about?

was

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 33 3RD EXAM COVERAGE – CASES and SPECIAL LAWS A

Q

The objective personality test is the Millon Clinical Multiaxial Inventory. The purpose of that test is to find out about the lying prone[ne]ss of the person. What do you mean by that?

A

Meaning, am I dealing with a client who is telling me the truth, or is she someone who can exaggerate or x x x [will] tell a lie[?]

Q

And what did you discover on the basis of this objective personality test?

A

She was a person who passed the honesty test. Meaning she is a person that I can trust. That the data that I’m gathering from her are the truth.”[41]

The other expert witness presented by the defense, Dr. Alfredo Pajarillo, testified on his Psychiatric Report, [42] which was based on his interview and examination of Marivic Genosa. The Report said that during the first three years of her marriage to Ben, everything looked good -- the atmosphere was fine, normal and happy -- until “Ben started to be attracted to other girls and was also enticed in[to] gambling[,] especially co*ckfighting. x x x. At the same time Ben was often joining his barkada in drinking sprees.” The drinking sprees of Ben greatly changed the attitude he showed toward his family, particularly to his wife. The Report continued: “At first, it was verbal and emotional abuses but as time passed, he became physically abusive. Marivic claimed that the viciousness of her husband was progressive every time he got drunk. It was a painful ordeal Marivic had to anticipate whenever she suspected that her husband went for a drinking [spree]. They had been married for twelve years[;] and practically more than eight years, she was battered and maltreated relentlessly and mercilessly by her husband whenever he was drunk.” Marivic sought the help of her mother-in-law, but her efforts were in vain. Further quoting from the Report, “[s]he also sought the advice and help of close relatives and wellmeaning friends in spite of her feeling ashamed of what was happening to her. But incessant battering became more and more frequent and more severe. x x x.”[43] From the totality of evidence presented, there is indeed no doubt in the Court’s mind that Appellant Marivic Genosa was a severely abused person.

Effect of Battery on Appellant

Because of the recurring cycles of violence experienced by the abused woman, her state of mind metamorphoses. In determining her state of mind, we cannot rely merely on the judgment of an ordinary, reasonable person who is evaluating the events immediately surrounding the incident. A Canadian court has aptly pointed out that expert evidence on the psychological effect of battering on wives and common law partners are both

relevant and necessary. “How can the mental state of the appellant be appreciated without it? The average member of the public may ask: Why would a woman put up with this kind of treatment? Why should she continue to live with such a man? How could she love a partner who beat her to the point of requiring hospitalization? We would expect the woman to pack her bags and go. Where is her self-respect? Why does she not cut loose and make a new life for herself? Such is the reaction of the average person confronted with the so-called ‘battered wife syndrome.’”[44] To understand the syndrome properly, however, one’s viewpoint should not be drawn from that of an ordinary, reasonable person. What goes on in the mind of a person who has been subjected to repeated, severe beatings may not be consistent with -- nay, comprehensible to -- those who have not been through a similar experience. Expert opinion is essential to clarify and refute common myths and misconceptions about battered women.[45] The theory of BWS formulated by Lenore Walker, as well as her research on domestic violence, has had a significant impact in the United States and the United Kingdom on the treatment and prosecution of cases, in which a battered woman is charged with the killing of her violent partner. The psychologist explains that the cyclical nature of the violence inflicted upon the battered woman immobilizes the latter’s “ability to act decisively in her own interests, making her feel trapped in the relationship with no means of escape.”[46] In her years of research, Dr. Walker found that “the abuse often escalates at the point of separation and battered women are in greater danger of dying then.”[47] Corroborating these research findings, Dra. Dayan said that “the battered woman usually has a very low opinion of herself. She has x x x self-defeating and self-sacrificing characteristics. x x x [W]hen the violence would happen, they usually think that they provoke[d] it, that they were the one[s] who precipitated the violence[; that] they provoke[d] their spouse to be physically, verbally and even sexually abusive to them.”[48] According to Dra. Dayan, there are a lot of reasons why a battered woman does not readily leave an abusive partner -- poverty, self-blame and guilt arising from the latter’s belief that she provoked the violence, that she has an obligation to keep the family intact at all cost for the sake of their children, and that she is the only hope for her spouse to change.[49] The testimony of another expert witness, Dr. Pajarillo, is also helpful. He had previously testified in suits involving violent family relations, having evaluated “probably ten to twenty thousand” violent family disputes within the Armed Forces of the Philippines, wherein such cases abounded. As a result of his experience with domestic violence cases, he became a consultant of the Battered Woman Office in Quezon City. As such, he got involved in about forty (40) cases of severe domestic violence, in which the physical abuse on the woman would sometimes even lead to her loss of consciousness.[50]

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 34 3RD EXAM COVERAGE – CASES and SPECIAL LAWS Dr. Pajarillo explained that “overwhelming brutality, trauma” could result in posttraumatic stress disorder, a form of “anxiety neurosis or neurologic anxietism.”[51] After being repeatedly and severely abused, battered persons “may believe that they are essentially helpless, lacking power to change their situation. x x x [A]cute battering incidents can have the effect of stimulating the development of coping responses to the trauma at the expense of the victim’s ability to muster an active response to try to escape further trauma. Furthermore, x x x the victim ceases to believe that anything she can do will have a predictable positive effect.”[52] A study[53] conducted by Martin Seligman, a psychologist at the University of Pennsylvania, found that “even if a person has control over a situation, but believes that she does not, she will be more likely to respond to that situation with coping responses rather than trying to escape.” He said that it was the cognitive aspect -- the individual’s thoughts -- that proved all-important. He referred to this phenomenon as “learned helplessness.” “[T]he truth or facts of a situation turn out to be less important than the individual’s set of beliefs or perceptions concerning the situation. Battered women don’t attempt to leave the battering situation, even when it may seem to outsiders that escape is possible, because they cannot predict their own safety; they believe that nothing they or anyone else does will alter their terrible circ*mstances.”[54] Thus, just as the battered woman believes that she is somehow responsible for the violent behavior of her partner, she also believes that he is capable of killing her, and that there is no escape.[55] Battered women feel unsafe, suffer from pervasive anxiety, and usually fail to leave the relationship.[56] Unless a shelter is available, she stays with her husband, not only because she typically lacks a means of self-support, but also because she fears that if she leaves she would be found and hurt even more.[57] In the instant case, we meticulously scoured the records for specific evidence establishing that appellant, due to the repeated abuse she had suffered from her spouse over a long period of time, became afflicted with the battered woman syndrome. We, however, failed to find sufficient evidence that would support such a conclusion. More specifically, we failed to find ample evidence that would confirm the presence of the essential characteristics of BWS. The defense fell short of proving all three phases of the “cycle of violence” supposedly characterizing the relationship of Ben and Marivic Genosa. No doubt there were acute battering incidents. In relating to the court a quo how the fatal incident that led to the death of Ben started, Marivic perfectly described the tension-building phase of the cycle. She was able to explain in adequate detail the typical characteristics of this stage. However, that single incident does not prove the existence of the syndrome. In other words, she failed to prove that in at least another battering episode in the past, she had gone through a similar pattern. How did the tension between the partners usually arise or build up prior to acute battering? How did Marivic normally respond to Ben’s relatively minor abuses? What

means did she employ to try to prevent the situation from developing into the next (more violent) stage? Neither did appellant proffer sufficient evidence in regard to the third phase of the cycle. She simply mentioned that she would usually run away to her mother’s or father’s house;[58]that Ben would seek her out, ask for her forgiveness and promise to change; and that believing his words, she would return to their common abode. Did she ever feel that she provoked the violent incidents between her and her spouse? Did she believe that she was the only hope for Ben to reform? And that she was the sole support of his emotional stability and well-being? Conversely, how dependent was she on him? Did she feel helpless and trapped in their relationship? Did both of them regard death as preferable to separation? In sum, the defense failed to elicit from appellant herself her factual experiences and thoughts that would clearly and fully demonstrate the essential characteristics of the syndrome. The Court appreciates the ratiocinations given by the expert witnesses for the defense. Indeed, they were able to explain fully, albeit merely theoretically and scientifically, how the personality of the battered woman usually evolved or deteriorated as a result of repeated and severe beatings inflicted upon her by her partner or spouse. They corroborated each other’s testimonies, which were culled from their numerous studies of hundreds of actual cases. However, they failed to present in court the factual experiences and thoughts that appellant had related to them -- if at all -- based on which they concluded that she had BWS. We emphasize that in criminal cases, all the elements of a modifying circ*mstance must be proven in order to be appreciated. To repeat, the records lack supporting evidence that would establish all the essentials of the battered woman syndrome as manifested specifically in the case of the Genosas.

BWS as Self-Defense

In any event, the existence of the syndrome in a relationship does not in itself establish the legal right of the woman to kill her abusive partner. Evidence must still be considered in the context of self-defense.[59] From the expert opinions discussed earlier, the Court reckons further that crucial to the BWS defense is the state of mind of the battered woman at the time of the offense [60] -she must have actually feared imminent harm from her batterer and honestly believed in the need to kill him in order to save her life. Settled in our jurisprudence, however, is the rule that the one who resorts to self-defense must face a real threat on one’s life; and the peril sought to be avoided must be imminent and actual, not merely imaginary.[61] Thus, the

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 35 3RD EXAM COVERAGE – CASES and SPECIAL LAWS Revised Penal Code provides the following requisites and effect of self-defense:[62] “Art. 11. Justifying circ*mstances. -- The following do not incur any criminal liability: “1. Anyone who acts in defense of his person or rights, provided that the following circ*mstances concur; First. Unlawful aggression; Second. Reasonable necessity of the means employed to prevent or repel it; Third. Lack of sufficient provocation on the part of the person defending himself.” Unlawful aggression is the most essential element of self-defense.[63] It presupposes actual, sudden and unexpected attack -- or an imminent danger thereof -- on the life or safety of a person.[64] In the present case, however, according to the testimony of Marivic herself, there was a sufficient time interval between the unlawful aggression of Ben and her fatal attack upon him. She had already been able to withdraw from his violent behavior and escape to their children’s bedroom. During that time, he apparently ceased his attack and went to bed. The reality or even the imminence of the danger he posed had ended altogether. He was no longer in a position that presented an actual threat on her life or safety. Had Ben still been awaiting Marivic when she came out of their children’s bedroom -- and based on past violent incidents, there was a great probability that he would still have pursued her and inflicted graver harm -- then, the imminence of the real threat upon her life would not have ceased yet. Where the brutalized person is already suffering from BWS, further evidence of actual physical assault at the time of the killing is not required. Incidents of domestic battery usually have a predictable pattern. To require the battered person to await an obvious, deadly attack before she can defend her life “would amount to sentencing her to ‘murder by installment.’”[65] Still, impending danger (based on the conduct of the victim in previous battering episodes) prior to the defendant’s use of deadly force must be shown. Threatening behavior or communication can satisfy the required imminence of danger.[66] Considering such circ*mstances and the existence of BWS, self-defense may be appreciated. We reiterate the principle that aggression, if not continuous, does not warrant self-defense.[67] In the absence of such aggression, there can be no self-defense -- complete or incomplete -- on the part of the victim. [68] Thus, Marivic’s killing of Ben was not completely justified under the circ*mstances.

Mitigating Circ*mstances Present

In any event, all is not lost for appellant. While she did not raise any other modifying circ*mstances that would alter her penalty, we deem it proper to evaluate and appreciate in her favor circ*mstances that mitigate her criminal liability. It is a hornbook doctrine that an appeal in a criminal case opens it wholly for review on any issue, including that which has not been raised by the parties.[69] From several psychological tests she had administered to Marivic, Dra. Dayan, in her Psychological Evaluation Report dated November 29, 2000, opined as follows: “This is a classic case of a Battered Woman Syndrome. The repeated battering Marivic experienced with her husband constitutes a form of [cumulative] provocation which broke down her psychological resistance and natural self-control. It is very clear that she developed heightened sensitivity to sight of impending danger her husband posed continuously. Marivic truly experienced at the hands of her abuser husband a state of psychological paralysis which can only be ended by an act of violence on her part.” [70] Dr. Pajarillo corroborates the findings of Dra. Dayan. He explained that the effect of “repetitious pain taking, repetitious battering, [and] repetitious maltreatment” as well as the severity and the prolonged administration of the battering is posttraumatic stress disorder.[71] Expounding thereon, he said: “Q What causes the trauma, Mr. Witness? A

xxx

What causes the trauma is probably the repetitious battering. Second, the severity of the battering. Third, the prolonged administration of battering or the prolonged commission of the battering and the psychological and constitutional stamina of the victim and another one is the public and social support available to the victim. If nobody is interceding, the more she will go to that disorder.... xxx

xxx

Q

You referred a while ago to severity. What are the qualifications in terms of severity of the postraumatic stress disorder, Dr. Pajarillo?

A

The severity is the most severe continuously to trig[g]er this post[t]raumatic stress disorder is injury to the head, banging of the head like that. It is usually the very very severe stimulus that precipitate this post[t]raumatic stress disorder. Others are suffocating the victim like holding a pillow on the face, strangulating the individual, suffocating the individual, and boxing the individual. In this situation therefore, the victim is heightened to painful stimulus, like for example she is pregnant, she is very susceptible because the woman will not only

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 36 3RD EXAM COVERAGE – CASES and SPECIAL LAWS protect herself, she is also to protect the fetus. So the anxiety is heightened to the end [sic] degree. Q

But in terms of the gravity of the disorder, Mr. Witness, how do you classify?

A

We classify the disorder as [acute], or chronic or delayed or [a]typical.

Q

Can you please describe this pre[-]classification you called delayed or [atypical]?

A

The acute is the one that usually require only one battering and the individual will manifest now a severe emotional instability, higher irritability remorse, restlessness, and fear and probably in most [acute] cases the first thing will be happened to the individual will be thinking of suicide.

Q A

And in chronic cases, Mr. Witness? The chronic cases is this repetitious battering, repetitious maltreatment, any prolonged, it is longer than six (6) months. The [acute] is only the first day to six (6) months. After this six (6) months you become chronic. It is stated in the book specifically that after six (6) months is chronic. The [a]typical one is the repetitious battering but the individual who is abnormal and then become normal. This is how you get neurosis from neurotic personality of these cases of post[t]raumatic stress disorder.” [72]

Answering the questions propounded by the trial judge, the expert witness clarified further: “Q

But just the same[,] neurosis especially on battered woman syndrome x x x affects x x x his or her mental capacity?

A

Yes, your Honor.

Q

As you were saying[,] it x x x obfuscated her rationality?

A

Of course obfuscated.”[73]

In sum, the cyclical nature and the severity of the violence inflicted upon appellant resulted in “cumulative provocation which broke down her psychological resistance and natural self-control,” “psychological paralysis,” and “difficulty in concentrating or impairment of memory.” Based on the explanations of the expert witnesses, such manifestations were analogous to an illness that diminished the exercise by appellant of her will power without, however, depriving her of consciousness of her acts. There was, thus, a resulting diminution of her freedom of action, intelligence or intent. Pursuant to paragraphs 9[74] and 10[75] of Article 13 of the Revised Penal Code, this

circ*mstance should be taken in her favor and considered as a mitigating factor. [76] In addition, we also find in favor of appellant the extenuating circ*mstance of having acted upon an impulse so powerful as to have naturally produced passion and obfuscation. It has been held that this state of mind is present when a crime is committed as a result of an uncontrollable burst of passion provoked by prior unjust or improper acts or by a legitimate stimulus so powerful as to overcome reason.[77] To appreciate this circ*mstance, the following requisites should concur: (1) there is an act, both unlawful and sufficient to produce such a condition of mind; and (2) this act is not far removed from the commission of the crime by a considerable length of time, during which the accused might recover her normal equanimity.[78] Here, an acute battering incident, wherein Ben Genosa was the unlawful aggressor, preceded his being killed by Marivic. He had further threatened to kill her while dragging her by the neck towards a cabinet in which he had kept a gun. It should also be recalled that she was eight months pregnant at the time. The attempt on her life was likewise on that of her fetus.[79]His abusive and violent acts, an aggression which was directed at the lives of both Marivic and her unborn child, naturally produced passion and obfuscation overcoming her reason. Even though she was able to retreat to a separate room, her emotional and mental state continued. According to her, she felt her blood pressure rise; she was filled with feelings of self-pity and of fear that she and her baby were about to die. In a fit of indignation, she pried open the cabinet drawer where Ben kept a gun, then she took the weapon and used it to shoot him. The confluence of these events brings us to the conclusion that there was no considerable period of time within which Marivic could have recovered her normal equanimity. Helpful is Dr. Pajarillo’s testimony[80] that with “neurotic anxiety” -- a psychological effect on a victim of “overwhelming brutality [or] trauma” -- the victim relives the beating or trauma as if it were real, although she is not actually being beaten at the time. She cannot control “reexperiencing the whole thing, the most vicious and the trauma that she suffered.” She thinks “of nothing but the suffering.” Such reliving which is beyond the control of a person under similar circ*mstances, must have been what Marivic experienced during the brief time interval and prevented her from recovering her normal equanimity. Accordingly, she should further be credited with the mitigating circ*mstance of passion and obfuscation. It should be clarified that these two circ*mstances -psychological paralysis as well as passion and obfuscation -did not arise from the same set of facts. On the one hand, the first circ*mstance arose from the cyclical nature and the severity of the battery inflicted by the batterer-spouse upon appellant. That is, the repeated beatings over a period of time resulted in her psychological paralysis, which was analogous to an illness diminishing the exercise of her will power without depriving her of consciousness of her acts.

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 37 3RD EXAM COVERAGE – CASES and SPECIAL LAWS The second circ*mstance, on the other hand, resulted from the violent aggression he had inflicted on her prior to the killing. That the incident occurred when she was eight months pregnant with their child was deemed by her as an attempt not only on her life, but likewise on that of their unborn child. Such perception naturally produced passion and obfuscation on her part.

ATTY. TABUCANON:

Second Legal Issue: Treachery

Q

Were you actually brought to the drawer?

A

Yes, sir.

Q

What happened when you were brought to that drawer?

A

He dragged me towards the drawer and he was about to open the drawer but he could not open it because he did not have the key then he pulled his wallet which contained a blade about 3 inches long and I was aware that he was going to kill me and I smashed his arm and then the wallet and the blade fell. The one he used to open the drawer I saw, it was a pipe about that long, and when he was about to pick-up the wallet and the blade, I smashed him then I ran to the other room, and on that very moment everything on my mind was to pity on myself, then the feeling I had on that very moment was the same when I was admitted in PHILPHOS Clinic, I was about to vomit.

There is treachery when one commits any of the crimes against persons by employing means, methods or forms in the execution thereof without risk to oneself arising from the defense that the offended party might make.[81] In order to qualify an act as treacherous, the circ*mstances invoked must be proven as indubitably as the killing itself; they cannot be deduced from mere inferences, or conjectures, which have no place in the appreciation of evidence. [82] Because of the gravity of the resulting offense, treachery must be proved as conclusively as the killing itself.[83] Ruling that treachery was present in the instant case, the trial court imposed the penalty of death upon appellant. It inferred this qualifying circ*mstances merely from the fact that the lifeless body of Ben had been found lying in bed with an “open, depressed, circular” fracture located at the back of his head. As to exactly how and when he had been fatally attacked, however, the prosecution failed to establish indubitably. Only the following testimony of appellant leads us to the events surrounding his death:

COURT INTERPRETER (The witness at this juncture is crying intensely). xxx

xxx

xxx

Q

“Q You said that when Ben came back to your house, he dragged you? How did he drag you?

You said that he dropped the blade, for the record will you please describe this blade about 3 inches long, how does it look like?

A

Three (3) inches long and ½ inch wide.

COURT:

Q

It is a flexible blade?

The witness demonstrated to the Court by using her right hand flexed forcibly in her front neck)

A

It’s a cutter.

Q

How do you describe the blade, is it sharp both edges?

A

Yes, because he once used it to me.

Q

How did he do it?

A

He wanted to cut my throat.

Q

With the same blade?

A

And he dragged me towards the door backward.

ATTY. TABUCANON: Q A

Where did he bring you? Outside the bedroom and he wanted to get something and then he kept on shouting at me that ‘you might as well be killed so there will be nobody to nag me’

Q

So you said that he dragged you towards the drawer?

A

Yes, sir.

Q

What is there in the drawer?

A

I was aware that it was a gun.

COURT INTERPRETER (At this juncture the witness started crying)

A

xxx

Yes, sir, that was the object used when he intimidate me. xxx

xxx

ATTY. TABUCANON: Q

You said that this blade fell from his grip, is it correct?

A

Yes, because I smashed him.

Q

What happened?

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 38 3RD EXAM COVERAGE – CASES and SPECIAL LAWS A

Ben tried to pick-up the wallet and the blade, I pick-up the pipe and I smashed him and I ran to the other room.

Q

What else happened?

A

When I was in the other room, I felt the same thing like what happened before when I was admitted in PHILPHOS Clinic, I was about to vomit. I know my blood pressure was raised. I was frightened I was about to die because of my blood pressure.

COURT INTERPRETER: (Upon the answer of the witness getting the pipe and smashed him, the witness at the same time pointed at the back of her neck or the nape). ATTY. TABUCANON: Q

You said you went to the room, what else happened?

A

Considering all the physical sufferings that I’ve been through with him, I took pity on myself and I felt I was about to die also because of my blood pressure and the baby, so I got that gun and I shot him.

COURT /to Atty. Tabucanon Q

You shot him?

A

Yes, I distorted the drawer.”[84]

The above testimony is insufficient to establish the presence of treachery. There is no showing of the victim’s position relative to appellant’s at the time of the shooting. Besides, equally axiomatic is the rule that when a killing is preceded by an argument or a quarrel, treachery cannot be appreciated as a qualifying circ*mstance, because the deceased may be said to have been forewarned and to have anticipated aggression from the assailant.[85] Moreover, in order to appreciate alevosia, the method of assault adopted by the aggressor must have been consciously and deliberately chosen for the specific purpose of accomplishing the unlawful act without risk from any defense that might be put up by the party attacked.[86] There is no showing, though, that the present appellant intentionally chose a specific means of successfully attacking her husband without any risk to herself from any retaliatory act that he might make. To the contrary, it appears that the thought of using the gun occurred to her only at about the same moment when she decided to kill her batterer-spouse. In the absence of any convincing proof that she consciously and deliberately employed the method by which she committed the crime in order to ensure its execution, this Court resolves the doubt in her favor.[87]

Proper Penalty

The penalty for parricide imposed by Article 246 of the Revised Penal Code is reclusion perpetua to death. Since two mitigating circ*mstances and no aggravating circ*mstance have been found to have attended the commission of the offense, the penalty shall be lowered by one (1) degree, pursuant to Article 64 of paragraph 5[88] of the same Code.[89] The penalty ofreclusion temporal in its medium period is imposable, considering that two mitigating circ*mstances are to be taken into account in reducing the penalty by one degree, and no other modifying circ*mstances were shown to have attended the commission of the offense.[90] Under the Indeterminate Sentence Law, the minimum of the penalty shall be within the range of that which is next lower in degree -- prision mayor -- and the maximum shall be within the range of the medium period of reclusion temporal. Considering all the circ*mstances of the instant case, we deem it just and proper to impose the penalty of prision mayor in its minimum period, or six (6) years and one (1) day in prison as minimum; to reclusion temporal in its medium period, or 14 years 8 months and 1 day as maximum. Noting that appellant has already served the minimum period, she may now apply for and be released from detention on parole.[91]

Epilogue

Being a novel concept in our jurisprudence, the battered woman syndrome was neither easy nor simple to analyze and recognize vis-à-vis the given set of facts in the present case. The Court agonized on how to apply the theory as a modern-day reality. It took great effort beyond the normal manner in which decisions are made -- on the basis of existing law and jurisprudence applicable to the proven facts. To give a just and proper resolution of the case, it endeavored to take a good look at studies conducted here and abroad in order to understand the intricacies of the syndrome and the distinct personality of the chronically abused person. Certainly, the Court has learned much. And definitely, the solicitor general and appellant’s counsel, Atty. Katrina Legarda, have helped it in such learning process. While our hearts empathize with recurrently battered persons, we can only work within the limits of law, jurisprudence and given facts. We cannot make or invent them. Neither can we amend the Revised Penal Code. Only Congress, in its wisdom, may do so. The Court, however, is not discounting the possibility of self-defense arising from the battered woman syndrome. We now sum up our main points. First, each of the phases of the cycle of violence must be proven to have characterized at least two battering episodes between the appellant and her intimate partner. Second, the final acute battering episode preceding the killing of the batterer must have produced in the battered person’s mind an actual fear of an imminent harm from her batterer and an honest belief that she needed to use force in order to save her life. Third, at the time of the killing, the batterer must have posed probable

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 39 3RD EXAM COVERAGE – CASES and SPECIAL LAWS -- not necessarily immediate and actual -- grave harm to the accused, based on the history of violence perpetrated by the former against the latter. Taken altogether, these circ*mstances could satisfy the requisites of self-defense. Under the existing facts of the present case, however, not all of these elements were duly established. WHEREFORE, the conviction of Appellant Marivic Genosa for parricide is hereby AFFIRMED. However, there being two (2) mitigating circ*mstances and no aggravating circ*mstance attending her commission of the offense, her penalty is REDUCED to six (6) years and one (1) day of prision mayor as minimum; to 14 years, 8 months and 1 day of reclusion temporal as maximum. Inasmuch as appellant has been detained for more than the minimum penalty hereby imposed upon her, the director of the Bureau of Corrections may immediately RELEASE her from custody upon due determination that she is eligible for parole, unless she is being held for some other lawful cause. Costs de oficio. SO ORDERED.

DEATH OR PHYSICAL INJURIES INFLICTED UNDER EXCEPTIONAL CIRc*msTANCES PEOPLE v. ABARCA Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 74433 September 14, 1987 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FRANCISCO ABARCA, accused-appellant.

SARMIENTO, J.: This is an appeal from the decision of the Regional Trial Court of Palo, Leyte, sentencing the accused-appellant Francisco Abarca to death for the complex crime of murder with double frustrated murder. The case was elevated to this Court in view of the death sentence imposed. With the approval of the new Constitution, abolishing the penalty of death and commuting all existing death sentences to life imprisonment, we required the accused-appellant to inform us whether or not he wished to pursue the case as an appealed case. In compliance therewith, he filed a statement informing us that he wished to continue with the case by way of an appeal. The information (amended) in this case reads as follows:

xxx xxx xxx The undersigned City Fiscal of the City of Tacloban accuses Francisco Abarca of the crime of Murder with Double Frustrated Murder, committed as follows: That on or about the 15th day of July, 1984, in the City of Tacloban, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with deliberate intent to kill and with evident premeditation, and with treachery, armed with an unlicensed firearm (armalite), M-16 rifle, did then and there wilfully, unlawfully and feloniously attack and shot several times KHINGSLEY PAUL KOH on the different parts of his body, thereby inflicting upon said KHINGSLEY PAUL KOH gunshot wounds which caused his instantaneous death and as a consequence of which also caused gunshot wounds to LINA AMPARADO and ARNOLD AMPARADO on the different parts of their bodies thereby inflicting gunshot wounds which otherwise would have caused the death of said Lina Amparado and Arnold Amparado, thus performing all the acts of execution which should have produced the crimes of murders as a consequence, but nevertheless did not produce it by reason of causes independent of his will, that is by the timely and able medical assistance rendered to Lina Amparado and Arnold Amparado which prevented their death. 1 xxx xxx xxx On arraignment, the accused-appellant pleaded not guilty. The Solicitor General states accurately the facts as follows: Khingsley Paul Koh and the wife of accused Francisco Abarca, Jenny, had illicit relationship. The illicit relationship apparently began while the accused was in Manila reviewing for the 1983 Bar examinations. His wife was left behind in their residence in Tacloban, Leyte (pp. 45-47, 65, tsn, Sept. 24, 1984). On July 15, 1984, the accused was in his residence in Tacloban, Leyte. On the morning of that date he went to the bus station to go to Dolores, Eastern Samar, to fetch his daughter. However, he was not able to catch the first trip (in the morning). He went back to the station in the afternoon to take the 2:00 o'clock trip but the bus had engine trouble and could not leave (pp. 5-8, tsn, Nov. 28, 1985). The accused, then proceeded to the residence of his father after which he went home. He arrived at his residence at the V & G Subdivision in Tacloban City at around 6:00 o'clock in the afternoon (pp. 8-9, tsn, Id.). Upon reaching home, the accused found his wife, Jenny, and Khingsley Koh in the act of sexual intercourse. When the wife and Koh noticed the accused, the wife pushed her paramour who got his revolver. The accused who was then peeping above the built-in cabinet in their room jumped and ran away (pp. 9-13, tsn, Id.). The accused went to look for a firearm at Tacloban City. He went to the house of a PC soldier, C2C Arturo Talbo, arriving

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 40 3RD EXAM COVERAGE – CASES and SPECIAL LAWS there at around 6:30 p.m. He got Talbo's firearm, an M-16 rifle, and went back to his house at V & G Subdivision. He was not able to find his wife and Koh there. He proceeded to the "mahjong session" as it was the "hangout" of Kingsley Koh. The accused found Koh playing mahjong. He fired at Kingsley Koh three times with his rifle (pp. 13-19, tsn, Id.). Koh was hit. Arnold and Lina Amparado who were occupying a room adjacent to the room where Koh was playing mahjong were also hit by the shots fired by the accused (pp. 34-49, tsn, Sept. 24, 1984). Kingsley Koh died instantaneously of cardiorespiratory arrest due to shock and hemorrhage as a result of multiple gunshot wounds on the head, trunk and abdomen (pp. 28-29, tsn, Sept. 24, 1984; see also exh. A): Arnold Amparado was hospitalized and operated on in the kidney to remove a bullet (pp. 17-23, tsn, Oct. 17, 1984; see also exh. C). His wife, Lina Amparado, was also treated in the hospital as she was hit by bullet fragments (p. 23, tsn, Id.). Arnold Amparado who received a salary of nearly P1,000.00 a month was not able to work for 1-1/2 months because of his wounds. He spent P15,000.00 for medical expenses while his wife spent Pl,000.00 for the same purpose (pp. 24-25, tsn, Id. ). 2 On March 17, 1986, the trial court rendered the appealed judgment, the dispositive portion whereof reads as follows: xxx xxx xxx WHEREFORE, finding the accused, Francisco Abarca guilty beyond reasonable doubt of the complex crime of murder with double frustrated murder as charged in the amended information, and pursuant to Art. 63 of the Revised Penal Code which does not consider the effect of mitigating or aggravating circ*mstances when the law prescribes a single indivisible penalty in relation to Art. 48, he is hereby sentenced to death, to indemnify the heirs of Khingsley Paul Koh in the sum of P30,000, complainant spouses Arnold and Lina Amparado in the sum of Twenty Thousand Pesos (P20,000.00), without subsidiary imprisonment in case of insolvency, and to pay the costs. It appears from the evidence that the deceased Khingsley Paul Koh and defendant's wife had illicit relationship while he was away in Manila; that the accused had been deceived, betrayed, disgraced and ruined by his wife's infidelity which disturbed his reasoning faculties and deprived him of the capacity to reflect upon his acts. Considering all these circ*mstances this court believes the accused Francisco Abarca is deserving of executive clemency, not of full pardon but of a substantial if not a radical reduction or commutation of his death sentence. Let a copy of this decision be furnished her Excellency, the President of the Philippines, thru the Ministry of Justice, Manila. SO ORDERED. 3 xxx xxx xxx

The accused-appellant assigns committed by the court a quo:

the

following

errors

I. IN CONVICTING THE ACCUSED FOR THE CRIME AS CHARGED INSTEAD OF ENTERING A JUDGMENT OF CONVICTION UNDER ARTICLE 247 OF THE REVISED PENAL CODE; II. IN FINDING THAT THE KILLING WAS AMENDED BY THE QUALIFYING CIRc*msTANCE OF TREACHERY. 4 The Solicitor General recommends that we apply Article 247 of the Revised Penal Code defining death inflicted under exceptional circ*mstances, complexed with double frustrated murder. Article 247 reads in full: ART. 247. Death or physical injuries inflicted under exceptional circ*mstances. — Any legally married person who, having surprised his spouse in the act of committing sexual intercourse with another person, shall kill any of them or both of them in the act or immediately thereafter, or shall inflict upon them any serious physical injury, shall suffer the penalty of destierro. If he shall inflict upon them physical injuries of any other kind, he shall be exempt from punishment. These rules shall be applicable, under the same circ*mstances, to parents with respect to their daughters under eighteen years of age, and their seducers, while the daughters are living with their parents. Any person who shall promote or facilitate prostitution of his wife or daughter, or shall otherwise have consented to the infidelity of the other spouse shall not be entitled to the benefits of this article. We agree with the Solicitor General that the aforequoted provision applies in the instant case. There is no question that the accused surprised his wife and her paramour, the victim in this case, in the act of illicit copulation, as a result of which, he went out to kill the deceased in a fit of passionate outburst. Article 247 prescribes the following elements: (1) that a legally married person surprises his spouse in the act of committing sexual intercourse with another person; and (2) that he kills any of them or both of them in the act or immediately thereafter. These elements are present in this case. The trial court, in convicting the accused-appellant of murder, therefore erred. Though quite a length of time, about one hour, had passed between the time the accused-appellant discovered his wife having sexual intercourse with the victim and the time the latter was actually shot, the shooting must be understood to be the continuation of the pursuit of the victim by the

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 41 3RD EXAM COVERAGE – CASES and SPECIAL LAWS accused-appellant. The Revised Penal Code, in requiring that the accused "shall kill any of them or both of them . . . immediately" after surprising his spouse in the act of intercourse, does not say that he should commit the killing instantly thereafter. It only requires that the death caused be the proximate result of the outrage overwhelming the accused after chancing upon his spouse in the basest act of infidelity. But the killing should have been actually motivated by the same blind impulse, and must not have been influenced by external factors. The killing must be the direct by-product of the accused's rage. It must be stressed furthermore that Article 247, supra, does not define an offense. 5 In People v. Araque, 6 we said: xxx xxx xxx As may readily be seen from its provisions and its place in the Code, the above-quoted article, far from defining a felony, merely provides or grants a privilege or benefit — amounting practically to an exemption from an adequate punishment — to a legally married person or parent who shall surprise his spouse or daughter in the act of committing sexual intercourse with another, and shall kill any or both of them in the act or immediately thereafter, or shall inflict upon them any serious physical injury. Thus, in case of death or serious physical injuries, considering the enormous provocation and his righteous indignation, the accused — who would otherwise be criminally liable for the crime of homicide, parricide, murder, or serious physical injury, as the case may be — is punished only withdestierro. This penalty is mere banishment and, as held in a case, is intended more for the protection of the accused than a punishment. (People vs. Coricor, 79 Phil., 672.) And where physical injuries other than serious are inflicted, the offender is exempted from punishment. In effect, therefore, Article 247, or the exceptional circ*mstances mentioned therein, amount to an exempting circ*mstance, for even where death or serious physical injuries is inflicted, the penalty is so greatly lowered as to result to no punishment at all. A different interpretation, i.e., that it defines and penalizes a distinct crime, would make the exceptional circ*mstances which practically exempt the accused from criminal liability integral elements of the offense, and thereby compel the prosecuting officer to plead, and, incidentally, admit them, in the information. Such an interpretation would be illogical if not absurd, since a mitigating and much less an exempting circ*mstance cannot be an integral element of the crime charged. Only "acts or omissons . . . constituting the offense" should be pleaded in a complaint or information, and a circ*mstance which mitigates criminal liability or exempts the accused therefrom, not being an essential element of the offense charged-but a matter of defense that must be proved to the satisfaction of the court-need not be pleaded. (Sec. 5, Rule 106, Rules of Court; U.S. vs. Campo, 23 Phil., 368.) That the article in question defines no crime is made more manifest when we consider that its counterpart in the old Penal Code (Article 423) was found under the General Provisions (Chapter VIII) of Title VIII covering crimes against

persons. There can, we think, hardly be any dispute that as part of the general provisions, it could not have possibly provided for a distinct and separate crime. xxx xxx xxx We, therefore, conclude that Article 247 of the Revised Penal Code does not define and provide for a specific crime, but grants a privilege or benefit to the accused for the killing of another or the infliction of serious physical injuries under the circ*mstances therein mentioned. ... 7 xxx xxx xxx Punishment, consequently, is not inflicted upon the accused. He is banished, but that is intended for his protection. 8 It shall likewise be noted that inflicting death under exceptional circ*mstances, not being a punishable act, cannot be qualified by either aggravating or mitigating or other qualifying circ*mstances, We cannot accordingly appreciate treachery in this case. The next question refers to the liability of the accusedappellant for the physical injuries suffered by Lina Amparado and Arnold Amparado who were caught in the crossfire as the accused-appellant shot the victim. The Solicitor General recommends a finding of double frustrated murder against the accused-appellant, and being the more severe offense, proposes the imposition of reclusion temporal in its maximum period pursuant to Article 48 of the Revised Penal Code. This is where we disagree. The accused-appellant did not have the intent to kill the Amparado couple. Although as a rule, one committing an offense is liable for all the consequences of his act, that rule presupposes that the act done amounts to a felony. 9 But the case at bar requires distinctions. Here, the accusedappellant was not committing murder when he discharged his rifle upon the deceased. Inflicting death under exceptional circ*mstances is not murder. We cannot therefore hold the appellant liable for frustrated murder for the injuries suffered by the Amparados. This does not mean, however, that the accused-appellant is totally free from any responsibility. Granting the fact that he was not performing an illegal act when he fired shots at the victim, he cannot be said to be entirely without fault. While it appears that before firing at the deceased, he uttered warning words ("an waray labot kagawas,") 10that is not enough a precaution to absolve him for the injuries sustained by the Amparados. We nonetheless find negligence on his part. Accordingly, we hold him liable under the first part, second paragraph, of Article 365, that is, less serious physical injuries through simple imprudence or negligence. (The records show that Arnold Amparado was incapacitated for one and one-half months; 11 there is no showing, with respect to Lina Amparado, as to the extent of her injuries. We presume that she was placed in confinement for only ten

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 42 3RD EXAM COVERAGE – CASES and SPECIAL LAWS to fourteen days based on the medical certificate estimating her recovery period.) 12 For the separate injuries suffered by the Amparado spouses, we therefore impose upon the accused-appellantarresto mayor (in its medium and maximum periods) in its maximum period, arresto to being the graver penalty (than destierro). 13 WHEREFORE, the decision appealed from is hereby MODIFIED. The accused-appellant is sentenced to four months and 21 days to six months of arresto mayor. The period within which he has been in confinement shall be credited in the service of these penalties. He is furthermore ordered to indemnify Arnold and Lina Amparado in the sum of P16,000.00 as and for hospitalization expense and the sum of P1,500.00 as and for Arnold Amparado's loss of earning capacity. No special pronouncement as to costs.

then and there willfully, unlawfully and feloniously attack, assault, stab and wound one Jesus Esquierdo, thereby inflicting upon him the following physical injuries, to wit: Cardiorespiratory arrest Hypovolemic shock irreversible Multiple organ injury Multiple stab wound chest & abdomen and as a result thereof the said Jesus Esquierdo died. “Contrary to and in violation of Article 248 of the Revised Penal Code with the aggravating circ*mstances (sic) of evident premeditation.”[5] Criminal Case No. 6018

IT IS SO ORDERED. PEOPLE v. OYANIB FIRST DIVISION [G.R. Nos. 130634-35. March 12, 2001] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MANOLITO OYANIB y MENDOZA, accusedappellant.

“That on or about September 4, 1995, in the City of Iligan, Philippines, and within the jurisdiction of this Honorable Court, the said accused, having conceived and (sic) deliberate intent to kill his wife Tita Oyanib, did then and there willfully, unlawfully and feloniously and with evident premeditation, attack, assault, stab and wound his wife, as a result of said attack, the said Tita Oyanib died. “Contrary to and in violation of Article 246 of the Revised Penal Code.”[6]

DECISION

The prosecutor recommended no bail for the temporary liberty of accused Manolito Oyanib y Mendoza in both cases.

Accused Manolito Oyanib y Mendoza appeals from the joint decision[1] of the Regional Trial Court, Branch 02, Iligan City finding him guilty beyond reasonable doubt of homicide and parricide and sentencing him to an indeterminate penalty[2] of six (6) months one day (1) to six (6) years of prision correccional as minimum to six (6) years one (1) day to eight (8) years of prision mayor as maximum,[3]and to pay P50,000.00 civil indemnity and the costs for the death of Jesus Esquierdo, and to reclusion perpetua, to pay P50,000.00 and the costs for the death of his wife, Tita T. Oyanib.[4]

On September 11, 1995, accused voluntarily surrendered to the police authorities[7] and was immediately detained at the Iligan City Jail.[8]

On September 11, 1995, Iligan City Prosecutor Ulysses V. Lagcao filed with the Regional Trial Court, Iligan City two (2) separate informations charging accused Manolito Oyanib y Mendoza with murder and parricide, as follows:

Accused Manolito Oyanib y Mendoza (hereafter Manolito) and Tita T. Oyanib (hereafter Tita) were married on February 3, 1979[10] and had two (2) children, Desilor and Julius. They lived in Purok 1, Tambacan, Iligan City.

Criminal Case No. 6012

In 1994, due to marital differences, Manolito and Tita separated, with Manolito keeping custody of their two (2) children. Tita rented a room at the second floor of the house of Edgardo Lladas (hereafter Edgardo), not far from the place where her family lived.

PARDO, J.:

“That on or about September 4, 1995, in the City of Iligan, Philippines, and within the jurisdiction of this Honorable Court, the said accused, armed with a deadly weapon to wit: a hunting knife about six inches long and with intent to kill and evident premeditation and by means of treachery, did

On January 17, 1996, the trial court arraigned accused Manolito Oyanib y Mendoza by reading the informations against him and translating them into the Visayan dialect. [9] He pleaded not guilty to both charges. As the two (2) cases arose from the same set of facts, the trial court conducted a joint trial.

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 43 3RD EXAM COVERAGE – CASES and SPECIAL LAWS At about 9:30 in the evening of September 4, 1995, while Edgardo and his family were watching TV at the sala located at the ground floor of their house at Purok 3A, Tambacan, Iligan City, they heard a commotion coming from the second floor rented by Tita. The commotion and the noise lasted for quite some time. When it died down, Edgardo went upstairs to check.[11] Upstairs, Edgardo saw Tita wearing a duster, bloodied and sprawled on the floor. He saw Manolito stabbing Jesus Esquierdo (hereafter Jesus) while sitting on the latter’s stomach. Jesus was wearing a pair of long black pants. When Edgardo asked Manolito what he was doing, accused told Edgardo not to interfere. Thereafter, Edgardo left the house and called the police. Meanwhile, the neighbors brought Tita to the hospital. She died on the way to the hospital.[12] SPO3 Eduard Tubil, police investigator, General Investigation Office, Iligan City Police Command, Precinct I, Poblacion, Iligan City said that at about 9:00 in the evening of September 4, 1995, while he was on duty, he received an information regarding a stabbing incident at the Llagas residence at Purok 3-A, Tambacan, Iligan City.[13] At the crime scene, SPO3 Tubil saw the lifeless body of Jesus lying face up with several stab wounds in different parts of the body. Jesus was clad in t-shirt and long pants. From the crime scene, he recovered a knife. Afterwards, he went to Dr. Uy Hospital to check on Tita; he was informed that she was dead. Manolito was the suspect in the killing of Jesus and Tita.[14] The incident was recorded in the police blotter as Entry No. 137138.[15] On September 5, 1995, Dr. Leonardo A. Labanon, Medico-Legal Officer, Iligan City examined the bodies of Jesus and Tita.[16] Jesus sustained multiple stab wounds, and those inflicted in the right and left chests and stomach were fatal.[17] The cause of death was “cardiorespiratory arrest, hypovolemic shock irreversible, multiple organ injury and multiple stab wound chest and abdomen.”[18] Likewise, Tita sustained several stab wounds, with the fatal wounds inflicted in the left chest and right side of the abdomen. The cause of death was “cardiorespiratory arrest, hypovolemic shock and multiple stab wound.”[19] As heretofore stated, in 1994, following a series of arguments, Manolito and Tita decided to live separately. Manolito retained custody of their two (2) children. Immediately after the separation, Tita stayed at her friend Merlyn’s house for two (2) months. Afterwards, she transferred to the Lladas residence, located at Purok 3, G. Tambacan, Iligan City, and rented the second floor.[20] The rented space consisted mainly of a sala with one adjoining room. It was arranged in a manner that if one enters the main entrance door, one is immediately led to the sala and from the sala, directly to the door of the adjoining room.

Despite their separation, Manolito tried to win Tita back and exerted all efforts towards reconciliation for the sake of the children. However, Tita was very reluctant to reconcile with Manolito.[21] In fact, she was very open about her relationship with other men and would flaunt it in front of Manolito. One time, he chanced upon his wife and her paramour, Jesus, in a very intimate situation by the hanging bridge at Brgy. Tambacan, Iligan City.[22] Manolito confronted Tita and Jesus about this. He censured his wife and reminded her that she was still his wife. They just ignored him; they even threatened to kill him.[23] In the evening of September 4, 1995, after supper, his daughter Desilor handed Manolito a letter from the Iligan City National High School. The letter mentioned that his son Julius failed in two (2) subjects and invited his parents to a meeting at the school. Because he had work from 8:00 in the morning until 5:00 in the afternoon the next day, Manolito went to Tita’s house to ask her to attend the school meeting in his behalf.[24] Upon reaching Tita’s rented place, he heard “sounds of romance” (kissing) coming from the inside. He pried open the door lock using a hunting knife. He caught his wife Tita and Jesus having sexual intercourse. Jesus was on top of Tita and his pants were down to his knees. Upon seeing him, Jesus kicked Manolito in the cheek. Manolito immediately stabbed Jesus. Though Jesus was 5’9” in height and weighed about 70 kg., the suddenness of the assault caused him to lose his balance and fall down. Manolito took advantage of this opportunity and stabbed Jesus in the stomach. Tita left the room upon seeing Manolito, only to come back armed with a Tanduay bottle. She hit Manolito in the head, while at the same time shouting “kill him Jake, kill him Jake.”[25] In the commotion, Manolito stabbed Jesus, hitting him in the abdomen. Jesus fell down and Manolito stabbed him again. Meanwhile, Tita stabbed Manolito in the arm with the broken Tanduay bottle. This angered Manolito and he stabbed Tita in the left breast. He stabbed her three (3) more times in different parts of her body. Tita fell near the lifeless body of her paramour. It was at this point that Edgardo, the owner of the house Tita was renting, appeared from the ground floor and inquired about what had happened. Manolito told Edgardo not to interfere because he had nothing to do with it. Thereafter, Manolito left the house of Edgardo and went to Kilumco, Camague, Iligan City and stayed at the wake of his friend’s neighbor. He threw away the knife he used in stabbing his wife and her paramour. At around 4:00 in the morning of the following day, he went to Camague Highway to catch a bus for Lentogan, Aurora, Zamboanga. While in Lentogan, he heard over radio DXIC that there was a call for him to surrender. He heeded the call and gave himself up to the police authorities in Precinct 2, Nonocan, Iligan City.[26]

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 44 3RD EXAM COVERAGE – CASES and SPECIAL LAWS When asked why he was carrying a knife when he went to his wife’s place, Manolito said that he brought it for selfdefense. Prior to the incident, he received threats from his wife and her paramour, Jesus, that they would kill him so they could live together.[27] After trial, on May 26, 1997, the trial court promulgated a joint decision finding accused guilty beyond reasonable doubt of the crimes charged. The dispositive portion reads: “WHEREFORE, in the light of the foregoing findings and pronouncements and having carefully observed the demeanor of witnesses, this Court hereby declares accused MANOLITO OYANIB y Mendoza GUILTY beyond reasonable doubt of the crime of Homicide (Crim. Case No. II-6012) and Parricide (Crim. Case No. II-6018) and appreciating the two (2) mitigating circ*mstances of passion or obfuscation and voluntary surrender without any aggravating circ*mstances to consider, this Court sentences accused Manolito Oyanib y Mendoza to suffer an imprisonment as follows: “1) In Criminal Case No. II-6012: To an Indeterminate Penalty ranging from SIX (6) MONTHS ONE (1) DAY to SIX (6) YEARS as Minimum to Six (6) YEARS ONE (1) DAY to EIGHT (8) YEARS as Maximum; to indemnify heirs of Jesus Esquierdo the sum of P50,000.00 as civil indemnity, and to pay the costs. “2) In Criminal Case No. II-6018: To RECLUSION PERPETUA pursuant to Republic Act No. 7659; to indemnify heirs of his wife P50,000.00 as civil indemnity and to pay the costs. “It is likewise ordered that the aforesaid imprisonment is subject to the forty (40) years limitation prescribed in Article 70 of the Revised Penal Code. “Accused is likewise entitled to full credit of his preventive imprisonment. “SO ORDERED. “Iligan City, Philippines, May 26, 1997.

“MAXIMO B. RATUNIL

“Presiding Judge”[28] On June 17, 1997, accused Manolito Oyanib y Mendoza interposed an appeal from the joint decision of the trial court to the Supreme Court.[29] Accused admitted the killings. He argued that he killed them both under the exceptional circ*mstances provided in Article 247 of the Revised Penal Code. He raised several

errors allegedly committed by the trial court, which boiled down to the basic issue of whether accused is entitled to the exceptional privilege under Article 247 of the Revised Penal Code.[30] He questioned the trial court’s appreciation of the facts and the evidence, contending that it ignored and overlooked vital pieces of physical evidence material to the defense of the accused, like the photograph of the lifeless body of Jesus. Accused contends that the photograph graphically showed that Jesus’ pants were wide open, unzipped and unbuttoned, revealing that he was not wearing any underwear, lending credence to his defense that he caught his wife and her paramour in the act of sexual intercourse. On the other hand, the Solicitor General submitted that accused-appellant failed to discharge the burden of proving, by clear and convincing evidence, that he killed the victims under the exceptional circ*mstances contemplated in Article 247 of the Revised Penal Code. Hence, the trial court did not err in denying him the exempting privilege under the Article.[31] We find the appeal meritorious. At the outset, accused admitted killing his wife and her paramour. He invoked Article 247 of the Revised Penal Code as an absolutory and an exempting cause. “An absolutory cause is present ‘where the act committed is a crime but for reasons of public policy and sentiment there is no penalty imposed.’”[32] Having admitted the killing, it is incumbent upon accused to prove the exempting circ*mstances to the satisfaction of the court in order to be relieved of any criminal liability. Article 247 of the Revised Penal Code prescribes the following essential elements for such a defense: (1) that a legally married person surprises his spouse in the act of committing sexual intercourse with another person; (2) that he kills any of them or both of them in the act or immediately thereafter; and (3) that he has not promoted or facilitated the prostitution of his wife (or daughter) or that he or she has not consented to the infidelity of the other spouse. [33] Accused must prove these elements by clear and convincing evidence, otherwise his defense would be untenable. “The death caused must be the proximate result of the outrage overwhelming the accused after chancing upon his spouse in the act of infidelity. Simply put, the killing by the husband of his wife must concur with her flagrant adultery.”[34] There is no question that the first element is present in the case at bar. The crucial fact that accused must convincingly prove to the court is that he killed his wife and her paramour in the act of sexual intercourse or immediately thereafter. After an assiduous analysis of the evidence presented and the testimonies of the witnesses, we find accused to have acted within the circ*mstances contemplated in Article 247 of the Revised Penal Code. Admittedly, accusedappellant surprised his wife and her lover in the act of sexual intercourse.

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 45 3RD EXAM COVERAGE – CASES and SPECIAL LAWS To the mind of the court, what actually happened was that accused chanced upon Jesus at the place of his wife. He saw his wife and Jesus in the act of having sexual intercourse. Blinded by jealousy and outrage, accused stabbed Jesus who fought off and kicked the accused. He vented his anger on his wife when she reacted, not in defense of him, but in support of Jesus. Hence, he stabbed his wife as well several times. Accused Manolito Oyanib y Mendoza surrendered to the police when a call for him to surrender was made. The law imposes very stringent requirements before affording the offended spouse the opportunity to avail himself of Article 247, Revised Penal Code. As the Court put it in People v. Wagas:[35] “The vindication of a Man’s honor is justified because of the scandal an unfaithful wife creates; the law is strict on this, authorizing as it does, a man to chastise her, even with death. But killing the errant spouse as a purification is so severe as that it can only be justified when the unfaithful spouse is caught in flagrante delicto; and it must be resorted to only with great caution so much so that the law requires that it be inflicted only during the sexual intercourse or immediately thereafter.” WHEREFORE, the Court REVERSES the appealed decision of the Regional Trial Court, Branch 02, Iligan City in Criminal Cases Nos. II-6012 and II-6018. The Court sentences accused Manolito Oyanib y Mendoza to two (2) years and four (4) months of destierro.[36] He shall not be permitted to enter Iligan City, nor within a radius of one hundred (100) kilometers from Iligan City.[37]

device, unless such sale, dispensation or distribution is by a duly licensed drug store or pharmaceutical company and with the prescription of a qualified medical practitioner. Section 2. For the purpose of this Act: (a) “Contraceptive drug” is any medicine, drug, chemical, or portion which is used exclusively for the purpose of preventing fertilization of the female ovum: and (b) “Contraceptive device” is any instrument, device, material, or agent introduced into the female reproductive system for the primary purpose of preventing conception. Section 3. Any person, partnership, or corporation, violating the provisions of this Act shall be punished with a fine of not more than five hundred pesos or an imprisonment of not less than six months or more than one year or both in the discretion of the Court. This Act shall take effect upon its approval. Approved, June 18, 1966.

MUTILATION AGUIRRE v. SECRETARY OF JUSTICE Republic of the Philippines SUPREME COURT Manila THIRD DIVISION

Costs de oficio. G.R. No. 170723

SO ORDERED.

UNINTENTIONAL ABORTION PEOPLE v. SALUFRANJA

GLORIA PILAR S. AGUIRRE, petitioner, vs. SECRETARY OF THE DEPARTMENT OF JUSTICE, MICHELINA S. AGUIRRE-OLONDRIZ, PEDRO B. AGUIRRE, DR. JUVIDO AGATEP and DR. MARISSA B. PASCUAL, respondents. DECISION

ABORTION RA 4729 REPUBLIC ACT NO. 4729

AN ACT TO REGULATE THE SALE, DISPENSATION, AND/OR DISTRIBUTION OF CONTRACEPTIVE DRUGS AND DEVICES Section 1. It shall be unlawful for any person, partnership, or corporation, to sell, dispense or otherwise distribute whether for or without consideration, any contraceptive drug or

March 3, 2008

CHICO-NAZARIO, J.: In this petition for review on certiorari1 under Rule 45 of the Rules of Court, as amended, petitioner Gloria Pilar S. Aguirre (Gloria Aguirre) seeks the reversal of the 21 July 2005 Decision2 and 5 December 2005 Resolution,3 both of the Court of Appeals in CA-G.R. SP No. 88370, entitled "Gloria Pilar S. Aguirre v. Secretary of the Department of Justice, Michelina S. Aguirre-Olondriz, Dr. Juvido Agatep, Dra. Marissa B. Pascual, Pedro B. Aguirre and John and Jane Does."

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 46 3RD EXAM COVERAGE – CASES and SPECIAL LAWS The Court of Appeals found no grave abuse of discretion on the part of the Secretary of the Department of Justice (DOJ) when the latter issued the twin resolutions dated 11 February 20044 and 12 November 2004,5 respectively, which in turn affirmed the 8 January 2003 Resolution 6 of the Office of the City Prosecutor (OCP) of Quezon City. The Assistant City Prosecutor for the OCP of Quezon City recommended the dismissal of the criminal complaint, docketed as I.S. No. 02-12466, for violation of Articles 172 (Falsification by Private Individuals and Use of Falsified Documents) and 262 (Mutilation), both of the Revised Penal Code, in relation to Republic Act No. 7610, otherwise known as "Child Abuse, Exploitation and Discrimination Act," for insufficiency of evidence. The case stemmed from a complaint filed by petitioner Gloria Aguirre against respondents Pedro B. Aguirre (Pedro Aguirre), Michelina S. Aguirre-Olondriz (Olondriz), Dr. Juvido Agatep (Dr. Agatep), Dr. Marissa B. Pascual (Dr. Pascual) and several John/Jane Does for falsification, mutilation and child abuse. The antecedents of the present petition are: Laureano "Larry" Aguirre7 used to be a charge of the Heart of Mary Villa, a child caring agency run by the Good Shepherd Sisters and licensed by the Department of Social Work and Development (DSWD). Sometime in 1978, respondent Pedro Aguirre; the latter's spouse, Lourdes S. Aguirre (Lourdes Aguirre); and their four daughters, who included petitioner Gloria Aguirre and respondent Olondriz, came to know Larry, who was then just over a year old. The Aguirres would have Larry spend a few days at their home and then return him to the orphanage thereafter. In June 1980, Larry, then two years and nine months of age, formally became the ward of respondent Pedro Aguirre and his spouse Lourdes Aguirre by virtue of an Affidavit of Consent to Legal Guardianshipexecuted in their favor by Sister Mary Concepta Bellosillo, Superior of the Heart of Mary Villa. On 19 June 1986, the Aguirre spouses' guardianship of Larry was legalized when the Regional Trial Court (RTC), Branch 3 of Balanga, Bataan, duly appointed them as joint co-guardians over the person and property of Larry. As Larry was growing up, the Aguirre spouses and their children noticed that his developmental milestones were remarkably delayed. His cognitive and physical growth did not appear normal in that "at age 3 to 4 years, Larry could only crawl on his tummy like a frog x x x;" 8 he did not utter his first word until he was three years of age; did not speak in sentences until his sixth year; and only learned to stand up and walk after he turned five years old. At age six, the Aguirre spouses first enrolled Larry at the Colegio de San Agustin, Dasmariñas Village, but the child experienced significant learning difficulties there. In 1989, at age eleven, Larry was taken to specialists for neurological and psychological evaluations. The psychological evaluation9 done on Larry revealed the latter to be suffering from a mild mental deficiency.10 Consequent thereto, the

Aguirre spouses transferred Larry to St. John Ma. Vianney, an educational institution for special children. In November of 2001, respondent Dr. Agatep, a urologist/surgeon, was approached concerning the intention to have Larry, then 24 years of age, vasectomized. Prior to performing the procedure on the intended patient, respondent Dr. Agatep required that Larry be evaluated by a psychiatrist in order to confirm and validate whether or not the former could validly give his consent to the medical procedure on account of his mental deficiency. In view of the required psychiatric clearance, Larry was brought to respondent Dr. Pascual, a psychiatrist, for evaluation. In a psychiatric report dated 21 January 2002, respondent Dr. Pascual made the following recommendation: [T]he responsibility of decision making may be given to his parent or guardian.11 the full text of which reads – PSYCHIATRY REPORT 21 January 2002 GENERAL DATA LAUREANO AGUIRRE, 24 years old, male, high school graduate of St. John [Marie Vianney], was referred for psychiatric evaluation to determine competency to give consent for vasectomy. CLINICAL SUMMARY Larry was adopted at age 3 from an orphanage and prenatal history is not known to the adoptive family except that abortion was attempted. Developmental milestones were noted to be delayed. He started to walk and speak in single word at around age 5. He was enrolled in Colegio de San Agustin at age 6 where he showed significant learning difficulties that he had to repeat 1st and 4th grades. A consult was done in 1989 when he was 11 years old. Neurological findings and EEG results were not normal and he was given Tecretol and Encephabol by his neurologist. Psychological evaluation revealed mild to moderate mental retardation, special education training was advised and thus, he was transferred to St. John Marie Vianney. He finished his elementary and secondary education in the said school. He was later enrolled in a vocational course at Don Bosco which he was unable to continue. There has been no reported behavioral problems in school and he gets along relatively well with his teachers and some of his classmates. Larry grew up with a very supportive adoptive family. He is the youngest in the family of four sisters. Currently, his adoptive parents are already old and have medical problem and thus, they could no longer monitor and take care of him like before. His adoptive mother has Bipolar Mood Disorder

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 47 3RD EXAM COVERAGE – CASES and SPECIAL LAWS and used to physically maltreat him. A year ago, he had an episode of dizziness, vomiting and headaches after he was hit by his adoptive mother. Consult was done in Makati Medical Center and several tests were done, results of which were consistent with his developmental problem. There was no evidence of acute insults. The family subsequently decided that he should stay with one of his sisters to avoid similar incident and the possibility that he would retaliate although he has never hurt anybody. There has been no episode of violent outburst or aggressive behavior. He would often keep to himself when sad, angry or frustrated.

vacuo dilatation of the atria of lateral ventricles associated thinned posterior half of the corpus callosum.

He is currently employed in the company of his sister and given assignment to do some photocopying, usually in the mornings. He enjoys playing billiards and basketball with his nephews and, he spends most of his leisure time watching TV and listening to music. He could perform activities of daily living without assistance except that he still needs supervision in taking a bath. He cannot prepare his own meal and never allowed to go out and run errands alone. He does not have friends and it is only his adoptive family whom he has significant relationships. He claims that he once had a girlfriend when he was in high school who was more like a best friend to him. He never had sexual relations. He has learned to smoke and drink alcohol few years ago through his cousins and the drivers. There is no history of abuse of alcohol or any prohibited substances.

Axis IV None at present

ASSESSMENT AND RECOMMENDATION Axis I None Axis II Mental Retardation, mild to moderate type Axis III None

Axis V Current GAF = 50-60 Larry's mental deficiency could be associated with possible perinatal insults, which is consistent with the neuroimaging findings. Mental retardation associated with neurological problems usually has poorer prognosis. Larry is very much dependent on his family for his needs, adaptive functioning, direction and in making major life decisions. At his capacity, he may never understand the nature, the foreseeable risks and benefits, and consequences of the procedure (vasectomy) that his family wants for his protection. Thus, the responsibility of decision making may be given to his parent or guardian.

MEDICAL STATUS EXAMINATION The applicant was appropriately dressed. He was cooperative and he had intermittent eye contact. Speech was spontaneous, soft, and relevant. He responded to questions in single words or simple sentences. He was anxious specially at the start of the interview, with full affect appropriate to mood and thought content. There was no apparent thought or perceptual disturbance. No suicidal/homicidal thoughts elicited. He was oriented to time, place and person. He has intact remote and recent memory. He could do simple calculation. He could write his name and read simple words. His human figure was comparable to a 78 year old. He demonstrated fair judgment and poor insight. He had fair impulse control. PSYCHOLOGICAL TESTS Psychological tests done on March 6, 1990 (Dr. Lourdes Ledesma) and on August 4, 2000 (Dr. Ma. Teresa GustiloVillaosor) consistently revealed mild to moderate mental deficiency. SIGNIFICANT LABORATORY EXAMS RESULTS CT scan done 09 January 2001 showed nonspecific right deep parietal subcortical malacia. No localized mass lesion in the brain. MRI done on 10 January 2001 showed bilateral parietal x x x volume loss, encephalomalacia, gliosis and ulegyria consistent with sequela of postnatal or neonatal infarcts. Ex-

Marissa B. Pascual, M.D. Psychiatrist12

Considering the above recommendation, respondent Pedro Aguirre's written consent was deemed sufficient in order to proceed with the conduct of the vasectomy. Hence, on 31 January 2002, respondent Dr. Agatep performed a bilateral vasectomy on Larry. On 11 June 2002, petitioner Gloria Aguirre, respondent Pedro Aguirre's eldest child, instituted a criminal complaint for the violation of the Revised Penal Code, particularly Articles 172 and 262, both in relation to Republic Act No. 7610 against respondents Pedro Aguirre, Olondriz, Dr. Agatep, Dr. Pascual and several John/Jane Does before the Office of the City Prosecutor of Quezon City. The Complaint Affidavit,13 docketed as I.S. No. 02-12466, contained the following allegations: 2. x x x Dr. Agatep and Dra. Pascual were (sic) medical practitioners specializing in urology and psychiatry respectively; while respondent Pedro B. Aguirre is my father; Michelina S. Aguirre-Olondriz is my sister, and the victim Laureano "Larry" Aguirre xxx is my common law brother. JOHN and JANE DOES were the persons who, acting upon the apparent instructions of respondents Michelina AguirreOlondriz and/or Pedro B. Aguirre, actually scouted, prospected, facilitated, solicited and/or procured the medical

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 48 3RD EXAM COVERAGE – CASES and SPECIAL LAWS services of respondents Dra. Pascual and Dr. Agatep vis-àvis the intended mutilation via bilateral vasectomy of my common law brother Larry Aguirre subject hereof. xxxx 4. Sometime in March 2002, however, the Heart of Mary Villa of the Good Shepherd Sisters was furnished a copy of respondent Dra. Pascual's Psychiatry Report dated 21 January 2004 by the "DSWD," in which my common law brother "Larry" was falsely and maliciously declared incompetent and incapable of purportedly giving his own consent to the MUTILATION VIA BILATERAL VASECTOMY intended to be performed on him by all the respondents. xxxx 6. Based on the foregoing charade and false pretenses invariably committed by all of the respondents in conspiracy with each other, on 31 January 2002, my common law brother Larry Aguirre, although of legal age but conspiratorially caused to be declared by respondents to be "mentally deficient" and incompetent to give consent to his BILATERAL VASECTOMY, was then intentionally, unlawfully, maliciously, feloniously and/or criminally placed thereafter under surgery for MUTILATION VIA "BILATERAL VASECTOMY" x x x, EVEN WITHOUT ANY AUTHORIZATION ORDER from the GUARDIANSHIP COURT, nor personal consent of Larry Aguirre himself. In addition to the above, the complaint included therein an allegation that – v. x x x without a PRIOR medical examination, professional interview of nor verification and consultation with my mother, Lourdes Sabino-Aguirre, respondent Dra. Pascual baselessly, fraudulently and with obvious intent to defame and malign her reputation and honor, and worse, that of our Sabido family, falsely concluded and diagnosed, via her falsified Psychiatry Report, that my mother Lourdes SabidoAguirre purportedly suffers from "BIPOLAR MOOD DISORDER" x x x. To answer petitioner Gloria Aguirre's accusations against them, respondents Pedro Aguirre, Olondriz, Dr. Agatep and Dr. Pascual submitted their respective Counter-Affidavits. In her defense,14 respondent Olondriz denied that she "prospected, scouted, facilitated, solicited and/or procured any false statement, mutilated or abused" her common-law brother, Larry Aguirre. Further, she countered that: 3. x x x While I am aware and admit that Larry went through a vasectomy procedure, there is nothing in the Complaint which explains how the vasectomy amounts to a mutilation. xxxx

5. In any case, as I did not perform the vasectomy, I can state with complete confidence that I did not participate in any way in the alleged mutilation. 6. Neither did I procure or solicit the services of the physician who performed the vasectomy, Dr. Juvido Agatep x x x. It was my father, Pedro Aguirre, Larry's guardian, who obtained his services. I merely acted upon his instructions and accompanied my brother to the physician, respondents Dra. Marissa B. Pascual x x x. xxxx 10. Neither does the Complaint explain in whatmanner the Complainant is authorized or has any standing to declare that Larry's consent was not obtained. Complainant is not the guardian or relative of Larry. While she argues that Larry's consent should have been obtained the Complaint does not dispute the psychiatrist's findings about Larry's inability to give consent. xxxx 13. x x x the Complaint does not even state what alleged participation was falsified or the portion of the psychiatric report that allegedly states that someone participated when in fact that person did not so participate. xxxx 15. Again, I had no participation in the preparation of the report of Dr. Pascual x x x. xxxx 17. x x x the Complaint does not dispute that he (Larry) is mentally deficient or incompetent to give consent. xxxx 19. x x x I verified that the effect of a vasectomy operation was explained to him (Larry) by both respondent doctors. 20. x x x I accompanied Larry and obeyed my father on the belief that my father continues to be the legal guardian of Larry. I know of no one else who asserts to be his legal guardian x x x.15 Alleging the same statement of facts and defenses, respondent Pedro Aguirre argues against his complicity in the crime of mutilation as charged and asserts that: 5. In any case, as I did not perform the vasectomy, I can state with complete confidence that I did not participate in any way in the alleged mutilation.16 Nevertheless, he maintains that the vasectomy performed on Larry does not in any way amount to mutilation, as the

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 49 3RD EXAM COVERAGE – CASES and SPECIAL LAWS latter's reproductive organ is still completely intact. 17 In any case, respondent Pedro Aguirre explains that the procedure performed is reversible through another procedure called Vasovasostomy, to wit: 8. I understand that vasectomy is reversible through a procedure called Vasovasostomy. I can also state with confidence that the procedure enables men who have undergone a vasectomy to sire a child. Hence, no permanent damage was caused by the procedure. Respondent Pedro Aguirre challenges the charge of falsification in the complaint, to wit: 14. x x x I did not make it appear that any person participated in any act or proceeding when that person did not in fact participate x x x. xxxx 16. x x x I had no participation in the preparation of the report of Dra. Pascual. She arrived at her report independently, using her own professional judgment x x x. xxxx 31. What I cannot understand about Petita's Complaint is how Larry is argued to be legally a child under the definition of one law but nonetheless and simultaneously argued to be capacitated to give his consent as fully as an adult.18 Respondent Pedro Aguirre further clarifies that coguardianship over Larry had been granted to himself and his wife, Lourdes Aguirre, way back on 19 June 1986 by the Regional Trial Court, Branch 3 of Balanga, Bataan. Respondent Pedro Aguirre contends that being one of the legal guardians, consequently, parental authority over Larry is vested in him. But assuming for the sake of argument that Larry does have the capacity to make the decision concerning his vasectomy, respondent Pedro Aguirre argues that petitioner Gloria Aguirre has no legal personality to institute the subject criminal complaint, for only Larry would have the right to do so. Just as the two preceding respondents did, respondent Dr. Agatep also disputed the allegations of facts stated in the Complaint. Adopting the allegations of his co-respondents insofar as they were material to the charges against him, he vehemently denied failing to inform Larry of the intended procedure. In his counter-statement of facts he averred that: (b) x x x I scheduled Larry for consultative interview x x x wherein I painstakingly explained what vasectomy is and the consequences thereof; but finding signs of mental deficiency, x x x I advised his relatives and his nurse who accompanied him to have Larry examined by a psychiatrist who could properly determine whether or not Larry x x x can really give his consent, thus I required them to secure first a psychiatric

evaluation and procedure.

clearance

prior

to

the

contemplated

(c) On January 21, 2002, I was furnished a copy of a psychiatric report prepared by Dr. Marissa Pascual x x x. In her said report, Dr. Pascual found Larry to suffer from "mental retardation, mild to moderate type" and further stated that "at his capacity, he may never understand the nature, the foreseeable risks and benefits and consequences of the procedure (vasectomy) x x x, thus the responsibility of decision making may be given to his parent or guardian x x x." (d) x x x I was likewise furnished a copy of an affidavit executed by Pedro Aguirre stating that he was the legal guardian of Larry x x x Pedro Aguirre gave his consent to vasectomize Larry x x x. (e) Only then, specifically January 31, 2002, vasectomy was performed with utmost care and diligence.19 In defense against the charge of falsification and mutilation, respondent Dr. Agatep argued that subject complaint should be dismissed for the following reasons: 1. The complainant has no legal personality to file this case. As mentioned above, she is only a common law sister of Larry who has a legal guardian in the person of Pedro Aguirre, one of the herein respondents x x x. 2. x x x [t]he allegations in the complaint clearly centers on the condition of complainant's mother, Lourdes Aguirre, her reputation, and miserably fails to implicate the degree of participation of herein respondent. x x x xxxx (b) Falsification. x x x I strongly aver that this felony does not apply to me since it clearly gives reference to co-respondent, Dr. Marissa Pascual's Psychiatry Report, dated January 21, 2002, in relation with her field of profession, an expert opinion. I do not have any participation in the preparation of said report, x x x neither did I utilized (sic) the same in any proceedings to the damage to another. x x x I also deny using a falsified document x x x. (c) Mutilation. x x x Vasectomy does not in anyway equate to castration and what is touched in vasectomy is not considered an organ in the context of law and medicine, it is quite remote from the penis x x x. (d) Child Abuse. x x x the complaint-affidavit is very vague in specifying the applicability of said law. It merely avers that Laureano "Larry" Aguirre is a child, and alleges his father, Pedro Aguirre, has parental authority over him x x x.20 Similarly, respondent Dr. Pascual denied the criminal charges of falsification and mutilation imputed to her. She

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 50 3RD EXAM COVERAGE – CASES and SPECIAL LAWS stands by the contents of the assailed Psychiatric Report, justifying it thus: x x x My opinion of Larry Aguirre's mental status was based on my own personal observations, his responses during my interview of him, the results of the two (2) psychological tests conducted by clinical psychologists, the results of laboratory tests, including a CT Scan and MRI, and his personal and family history which I obtained from his sister, Michelina Aguirre-Olondriz x x x. 5. x x x the reference in my report concerning Mrs. Lourdes Aguirre is not a statement of my opinion of Mrs. Aguirre's mental status, x x x. Rather, it is part of the patient's personal and family history as conveyed to me by Mrs. AguirreOlondriz. 6. x x x An expression of my opinion, especially of an expert opinion, cannot give rise to a charge for falsification. A contrary opinion by another expert only means that the experts differ, and does not necessarily reflect on the truth or falsity of either opinion x x x. 7. x x x I never stated that I examined Mrs. Aguirre, because I never did x x x. 8. I had no participation in the surgery performed on Larry Aguirre except to render an opinion on his capacity to give informed consent to the vasectomy x x x. 9. Without admitting the merits of the complaint, I submit that complainants are not the proper persons to subscribe to the same as they are not the offended party, peace officer or other public officer charged with the enforcement of the law violated x x x.21 The Assistant City Prosecutor held that the circ*mstances attendant to the case did not amount to the crime of falsification. He held that – [T]he claim of the complainant that the Psychiatric Report was falsified, because consent was not given by Larry Aguirre to the vasectomy and/or he was not consulted on said operation does not constitute falsification. It would have been different if it was stated in the report that consent was obtained from Larry Aguirre or that it was written therein that he was consulted on the vasectomy, because that would mean that it was made to appear in the report that Larry Aguirre participated in the act or proceeding by giving his consent or was consulted on the matter when in truth and in fact, he did not participate. Or if not, the entry would have been an untruthful statement. But that is not the case. Precisely (sic) the report was made to determine whether Larry Aguirre could give his consent to his intended vasectomy. Be that as it may, the matter of Larry's consent having obtained or not may nor be an issue after all, because complainant's (sic) herself alleged that Larry's mental condition is that of a child, who can not give consent. Based on the foregoing consideration, no falsification can be established under the circ*mstances.22

Even the statement in the Psychiatric Report of respondent Dr. Pascual that Lourdes Aguirre had Bipolar Mood Disorder cannot be considered falsification since – The report did not state that Lourdes Aguirre was in fact personally interviewed by respondent Dr. Pascual and that the latter concluded that Lourdes Aguirre has Bipolar Mood Disorder. The report merely quoted other sources of information with respect to the condition of Lourdes Aguirre, in the same manner that the fact that Lourdes Aguirre was physically abusing Larry Aguirre was also not of Dra. Pascual personal knowledge. But the fact that Dra. Pascual cited finding, which is not of her own personal knowledge in her report does not mean that she committed falsification in the process. Her sources may be wrong and may affect the veracity of her report, but for as long as she has not alleged therein that she personally diagnosed Lourdes Aguirre, which allegation would not then be true, she cannot be charged of falsification. Therefore, it goes without saying that if the author of the report is not guilty, then with more reason the other respondents are not liable.23 Respecting the charge of mutilation, the Assistant City Prosecutor also held that the facts alleged did not amount to the crime of mutilation as defined and penalized under Article 262 of the Revised Penal Code, i.e., "[t]he vasectomy operation did not in any way deprived (sic) Larry of his reproductive organ, which is still very much part of his physical self." He ratiocinated that: While the operation renders him the inability (sic) to procreate, the operation is reversible and therefore, cannot be the permanent damage contemplated under Article 262 of the Revised Penal Code.24 The Assistant City Prosecutor,25 in a Resolution26 dated 8 January 2003, found no probable cause to hold respondents Pedro Aguirre, Olondriz, Dr. Agatep and Dr. Pascual liable for the complaint of falsification and mutilation, more specifically, the violation of Articles 172 and 262 of the Revised Penal Code, in relation to Republic Act No. 7610. Accordingly, the Assistant City Prosecutor recommended the dismissal of petitioner Gloria Aguirre's complaint for insufficiency of evidence. The dispositive portion of the resolution reads: WHEREFORE, it is recommended that the above-entitled case be dismissed for insufficiency of evidence.27 On 18 February 2003, petitioner Gloria Aguirre appealed the foregoing resolution to the Secretary of the DOJ by means of a Petition for Review.28 In a Resolution dated 11 February 2004, Chief State Prosecutor Jovencito R. Zuño, for the Secretary of the DOJ, dismissed the petition. In resolving said appeal, the Chief State Prosecutor held that: Under Section 12, in relation to Section 7, of Department Circular No. 70 dated July 3, 2000, the Secretary of Justice may, motu proprio, dismiss outright the petition if there is no

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 51 3RD EXAM COVERAGE – CASES and SPECIAL LAWS showing of any reversible error in the questioned resolution or finds the same to be patently without merit. We carefully examined the petition and its attachments and found no error that would justify a reversal of the assailed resolution which is in accord with the law and evidenced (sic) on the matter.29 Petitioner Gloria Aguirre's Motion for Reconsideration was likewise denied with finality by the DOJ in another Resolution dated 12 November 2004. Resolute in her belief, petitioner Gloria Aguirre went to the Court of Appeals by means of a Petition for Certiorari, Prohibition and Mandamus under Rule 65 of the Rules of Court, as amended. On 21 July 2005, the Court of Appeals promulgated its Decision dismissing petitioner Gloria Aguirre's recourse for lack of merit. The fallo of the assailed decision reads: WHEREFORE, premises considered, the present petition is hereby DENIED DUE COURSE and accordingly DISMISSED for lack of merit. Consequently, the assailed Resolutions dated February 11, 2004 and November 12, 2004 of the Secretary of Justice in I.S. No. 02-12466 are hereby AFFIRMED.30 Petitioner Gloria Aguirre's motion for reconsideration proved futile as it was denied by the appellate court in a Resolution dated 5 December 2005. Hence, the present petition filed under Rule 45 of the Rules of Court, as amended, premised on the following arguments: I. THE COURT OF APPEALS COMMITTED SERIOUS, GRAVE AND REVERSIBLE ERRORS OF LAW WHEN IT CONCLUDED, BASED PURPORTEDLY ON THE INTERNET WHICH RUNS AMUCK WITH OUR SYSTEM OF THE RULE OF LAW AND THE EVIDENCE ON RECORD, THAT BILATERAL VASECTOMY IS PURPORTEDLY 100% REVERSIBLE BY A FUTURE MEDICAL PROCEDURE HENCE NOT AMOUNTING TO MUTILATION, X X X; AND xxxx II. WORSE, THE COURT OF APPEALS COMMITTED GRAVE, SERIOUS AND REVERSIBLE ERRORS OF LAW WHEN IT REFUSED TO DIRECT THE INDICTMENT OF THE PRIVATE RESPONDENTS FOR MUTILATION AND FALSIFICATION DESPITE THE EXISTENCE OF SUFFICIENT PROBABLE CAUSE THEREFOR X X X.31

The foregoing issues notwithstanding, the more proper issue for this Court's consideration is, given the facts of the case, whether or not the Court of Appeals erred in ruling that the DOJ did not commit grave abuse of discretion amounting to lack or excess of jurisdiction when the latter affirmed the public prosecutor's finding of lack of probable cause for respondents Pedro Aguirre, Olondriz, Dr. Agatep and Dr. Pascual to stand trial for the criminal complaints of falsification and mutilation in relation to Republic Act No. 7610. In ruling that the DOJ did not commit grave abuse of discretion amounting to lack or excess of jurisdiction, the Court of Appeals explained that: Evidently, the controversy lies in the permanency of sterilization as a result of a vasectomy operation, and the chances of restoring fertility with a reversal surgery x x x. We sustain the DOJ in ruling that the bilateral vasectomy performed on Larry does not constitute mutilation even if intentionally and purposely done to prevent him from siring a child. xxxx Sterilization is to be distinguished from castration: in the latter act the reproductive capacity is permanently removed or damaged.32 It then concluded that: The matter of legal liability, other than criminal,which private respondents may have incurred for the alleged absence of a valid consent to the vasectomy performed on Larry, is certainly beyond the province of this certiorari petition. Out task is confined to the issue of whether or not the Secretary of Justice and the Office of the City Prosecutor of Quezon City committed grave abuse of discretion in their determining the existence or absence of probable cause for filing criminal cases for falsification and mutilation under Articles 172 (2) and 262 of the Revised Penal Code.33 Petitioner Gloria Aguirre, however, contends that the Court of Appeals and the DOJ failed to appreciate several important facts: 1) that bilateral vasectomy conducted on petitioner's brother, Larry Aguirre, was admitted34; 2) that the procedure caused the perpetual destruction of Larry's reproductive organs of generation or conception;353) that the bilateral vasectomy was intentional and deliberate to deprive Larry forever of his reproductive organ and his capacity to procreate; and 4) that respondents, "in conspiracy with one another, made not only one but two (2) untruthful statements, and not mere inaccuracies when they made it appear in the psychiatry report"36that a) Larry's consent was obtained or at the very least that the latter was informed of the intended vasectomy; and b) that Lourdes Aguirre was likewise interviewed and evaluated. Paradoxically, however, petitioner Gloria Aguirre does not in any way state that she, instead of respondent Pedro Aguirre, has guardianship over the person

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 52 3RD EXAM COVERAGE – CASES and SPECIAL LAWS of Larry. She only insists that respondents should have obtained Larry's consent prior to the conduct of the bilateral vasectomy.

supposing that said report is flawed, it is, at most, an erroneous medical diagnosis. The petition has no merit.

In contrast, the Office of the Solicitor General (OSG), for public respondent DOJ, argues that "the conduct of preliminary investigation to determine the existence of probable cause for the purpose of filing (an) information is the function of the public prosecutor."37 More importantly, "the element[s] of castration or mutilation of an organ necessary for generation is completely absent as he was not deprived of any organ necessary for reproduction, much less the destruction of such organ."38 Likewise, in support of the decision of the Court of Appeals, respondents Pedro Aguirre and Olondriz assert that, fundamentally, petitioner Gloria Aguirre has no standing to file the complaint, as she has not shown any injury to her person or asserted any relationship with Larry other than being his "common law sister"; further, that she cannot prosecute the present case, as she has not been authorized by law to file said complaint, not being the offended party, a peace officer or a public officer charged with the enforcement of the law. Accordingly, respondents Pedro Aguirre and Olondriz posit that they, together with the other respondents Dr. Agatep and Dr. Pascual, may not be charged with, prosecuted for and ultimately convicted of: 1) "mutilation x x x since the bilateral vasectomy conducted on Larry does not involve castration or amputation of an organ necessary for reproduction as the twin elements of the crime of mutilation x x x are absent"39; and 2) "falsification x x x since the acts allegedly constituting falsification involve matters of medical opinion and not matters of fact," 40 and that petitioner Gloria Aguirre failed to prove damage to herself or to any other person. Respondent Dr. Agatep, in the same vein, stresses that vasectomy is not mutilation. He elucidates that vasectomy is merely the "excision of the vas deferens, the duct in testis which transport sem*n"41; that it is the penis and the testis that make up the male reproductive organ and not the vas deferens; and additionally argues that for the crime of mutilation to be accomplished, Article 262 of the Revised Penal Code necessitates that there be intentional total or partial deprivation of some essential organ for reproduction. Tubes, seminal ducts, vas deferens or prostatic urethra not being organs, respondent Dr. Agatep concludes, therefore, that vasectomy does not correspond to mutilation. Anent the charge of falsification of a private document, respondent Dr. Agatep asseverates that he never took part in disclosing any information, data or facts as contained in the contentious Psychiatric Report. For her part, respondent Dr. Pascual insists that the assailed Psychiatry Report was the result of her independent exercise of professional judgment. "Rightly or wrongly, (she) diagnosed Larry Aguirre to be incapable of giving consent, based on interviews made by the psychiatrist on Larry Aguirre and persons who interacted with him."42And

Probable cause has been defined as the existence of such facts and circ*mstances as would excite belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted.43 The term does not mean "actual and positive cause" nor does it import absolute certainty.44 It is merely based on opinion and reasonable belief;45 that is, the belief that the act or omission complained of constitutes the offense charged. A finding of probable cause merely binds over the suspect to stand trial. It is not a pronouncement of guilt.46 The executive department of the government is accountable for the prosecution of crimes, its principal obligation being the faithful execution of the laws of the land. A necessary component of the power to execute the laws is the right to prosecute their violators,47 the responsibility of which is thrust upon the DOJ. Hence, the determination of whether or not probable cause exists to warrant the prosecution in court of an accused is consigned and entrusted to the DOJ. And by the nature of his office, a public prosecutor is under no compulsion to file a particular criminal information where he is not convinced that he has evidence to prop up the averments thereof, or that the evidence at hand points to a different conclusion. Put simply, public prosecutors under the DOJ have a wide range of discretion, the discretion of whether, what and whom to charge, the exercise of which depends on a smorgasbord of factors which are best appreciated by (public) prosecutors.48 And this Court has consistently adhered to the policy of non-interference in the conduct of preliminary investigations, and to leave to the investigating prosecutor sufficient latitude of discretion in the determination of what constitutes sufficient evidence as will establish probable cause for the filing of an information against the supposed offender.49 But this is not to discount the possibility of the commission of abuses on the part of the prosecutor. It is entirely possible that the investigating prosecutor may erroneously exercise the discretion lodged in him by law. This, however, does not render his act amenable to correction and annulment by the extraordinary remedy of certiorari, absent any showing of grave abuse of discretion amounting to excess of jurisdiction.50 Prescinding from the above, the court's duty in an appropriate case, therefore, is confined to a determination of whether the assailed executive determination of probable cause was done without or in excess of jurisdiction resulting from a grave abuse of discretion. For courts of law to grant the extraordinary writ of certiorari, so as to justify the reversal of the finding of whether or not there exists probable cause to file an information, the one seeking the writ must be able

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 53 3RD EXAM COVERAGE – CASES and SPECIAL LAWS to establish that the investigating prosecutor exercised his power in an arbitrary and despotic manner by reason of passion or personal hostility, and it must be patent and gross as would amount to an evasion or to a unilateral refusal to perform the duty enjoined or to act in contemplation of law. Grave abuse of discretion is not enough.51 Excess of jurisdiction signifies that he had jurisdiction over the case but has transcended the same or acted without authority.52 Applying the foregoing disquisition to the present petition, the reasons of the Assistant City Prosecutor in dismissing the criminal complaints for falsification and mutilation, as affirmed by the DOJ, is determinative of whether or not he committed grave abuse of discretion amounting to lack or excess of jurisdiction. In ruling the way he did – that no probable cause for falsification and mutilation exists - the Assistant City Prosecutor deliberated on the factual and legal milieu of the case. He found that there was no sufficient evidence to establish a prima facie case for the crimes complained of as defined and punished under Articles 172, paragraph 2, and 262 of the Revised Penal Code in relation to Republic Act No. 7610, respectively. Concerning the crime of falsification of a private document, the Assistant City Prosecutor reasoned that the circ*mstances attendant to the case did not amount to the crime complained of, that is, the lack of consent by Larry Aguirre before he was vasectomized; or the fact that the latter was not consulted. The lack of the two preceding attendant facts do not in any way amount to falsification, absent the contention that it was made to appear in the assailed report that said consent was obtained. That would have been an untruthful statement. Neither does the fact that the Psychiatric Report state that Lourdes Aguirre has Bipolar Mood Disorder by the same token amount to falsification because said report does not put forward that such finding arose after an examination of the concerned patient. Apropos the charge of mutilation, he reasoned that though the vasectomy rendered Larry unable to procreate, it was not the permanent damage contemplated under the pertinent provision of the penal code. We agree. Grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the DOJ and the Assistant City Prosecutor was not shown in the present case. In the present petition, respondents Pedro Aguirre, Olondriz, Dr. Agatep and Dr. Pascual are charged with violating Articles 172 and 262 of the Revised Penal Code, in relation to Republic Act No. 7610. Article 172, paragraph 2 of the Revised Penal Code, defines the crime of falsification of a private document, viz – Art. 172. Falsification by private individuals and use of falsified documents. – The penalty of prision correccional in its medium and maximum periods and a fine of not more than 5,000 pesos shall be imposed upon: xxxx

2. Any person who, to the damage of a third party, or with the intent to cause such damage, shall in any private document commit any of the acts of falsification enumerated in the next preceding article. Petitioner Gloria Aguirre charges respondents with falsification of a private document for conspiring with one another in keeping Larry "in the dark about the foregoing (vasectomy) as the same was concealed from him by the respondents x x x,"53 as well as for falsely concluding and diagnosing Lourdes Aguirre to be suffering from Bipolar Mood Disorder. A scrutiny, however, of Article 171 of the Revised Penal Code which defines the acts constitutive of falsification, that is – Art. 171. x x x shall falsify a document by committing any of the following acts: 1. Counterfeiting or imitating any handwriting, signature, or rubric; 2. Causing it to appear that persons have participated in any act or proceeding when they did not in fact so participate; 3. Attributing to persons who have participated in an act or proceeding statements other than those in fact made by them; 4. Making untruthful statements in a narration of facts; 5. Altering true dates; 6. Making any alteration or intercalation in a genuine document which changes its meaning; 7. Issuing in an authenticated form a document purporting to be a copy of an original document when no such original exists, or including in such copy a statement contrary to, or different from, that of the genuine original; or 8. Intercalating any instrument or note relative to the issuance thereof in a protocol, registry, or official book. vis-à-vis the much criticized Psychiatric Report, shows that the acts complained of do not in any manner, by whatever stretch of the imagination, fall under any of the eight (8) enumerated acts constituting the offense of falsification. In order to properly address the issue presented by petitioner Gloria Aguirre, it is necessary that we discuss the elements of the crime of falsification of private document under the Revised Penal Code, a crime which all the respondents have been accused of perpetrating. The elements of said crime under paragraph 2 of Article 172 of our penal code are as follows: 1) that the offender committed any acts of falsification, except those in par. 7, enumerated in Article 171; 2) that the falsification was committed in any private document; and 3) that the falsification caused damage to a

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 54 3RD EXAM COVERAGE – CASES and SPECIAL LAWS third party or at least the falsification was committed with intent to cause such damage. Under Article 171, paragraph 2, a person may commit falsification of a private document by causing it to appear in a document that a person or persons participated in an act or proceeding, when such person or persons did not in fact so participate in the act or proceeding. On the other hand, falsification under par. 3 of the same article is perpetrated by a person or persons who, participating in an act or proceeding, made statements in that act or proceeding and the offender, in making a document, attributed to such person or persons statements other than those in fact made by such person or persons. And the crime defined under paragraph 4 thereof is committed when 1) the offender makes in a document statements in a narration of facts; 2) he has a legal obligation to disclose the truth of the facts narrated by him; 3) the facts narrated by the offender are absolutely false; and 4) the perversion of truth in the narration of facts was made with the wrongful intent of injuring a third person. Applying the above-stated elements of the crime to the case at bar, in order that respondent Dr. Pascual, and the rest acting in conspiracy with her, to have committed the crime of falsification under par. 3 and 4 of Article 171 of the Revised Penal Code, it is essential that that there be prima facie evidence to show that she had caused it to appear that Larry gave his consent to be vasectomized or at the very least, that the proposed medical procedure was explained to Larry. But in the assailed report, no such thing was done. Lest it be forgotten, the reason for having Larry psychiatrically evaluated was precisely to ascertain whether or not he can validly consent with impunity to the proposed vasectomy, and not to obtain his consent to it or to oblige respondent Dr. Pascual to explain to him what the import of the medical procedure was. Further, that Larry's consent to be vasectomized was not obtained by the psychiatrist was of no moment, because nowhere is it stated in said report that such assent was obtained. At any rate, petitioner Gloria Aguirre contradicts her very own allegations when she persists in the contention that Larry has the mental age of a child; hence, he was legally incapable of validly consenting to the procedure. In the matter of the supposed incorrect diagnosis of Lourdes Aguirre, with regard to paragraph 2 of Article 171 of the Revised Penal Code, we quote with approval the succinct statements of the Assistant City Prosecutor: [T]he fact that Dra. Pascual cited finding, which is not of her own personal knowledge in her report does not mean that she committed falsification in the process. Her sources may be wrong and may affect the veracity of her report, but for as long as she has not alleged therein that she personally diagnosed Lourdes Aguirre, which allegation would not then be true, she cannot be charged of falsification. Therefore, it goes without saying that if the author of the report is not guilty, then with more reason the other respondents are not liable.54

As to the charge of mutilation, Art. 262 of the Revised Penal Code defines the crime as – Art. 262. Mutilation. – The penalty of reclusion temporal to reclusion perpetua shall be imposed upon any person who shall intentionally mutilate another by depriving him, either totally or partially, of some essential organ for reproduction. Any other intentional mutilation shall be punished by prision mayor in its medium and maximum periods. A straightforward scrutiny of the above provision shows that the elements55 of mutilation under the first paragraph of Art. 262 of the Revised Penal Code to be 1) that there be a castration, that is, mutilation of organs necessary for generation; and 2) that the mutilation is caused purposely and deliberately, that is, to deprive the offended party of some essential organ for reproduction. According to the public prosecutor, the facts alleged did not amount to the crime of mutilation as defined and penalized above, i.e., "[t]he vasectomy operation did not in any way deprived (sic) Larry of his reproductive organ, which is still very much part of his physical self." Petitioner Gloria Aguirre, however, would want this Court to make a ruling that bilateral vasectomy constitutes the crime of mutilation. This we cannot do, for such an interpretation would be contrary to the intentions of the framers of our penal code. A fitting riposte to the issue at hand lies in United States v. Esparcia,56 in which this Court had the occasion to shed light on the implication of the term mutilation. Therein we said that: The sole point which it is desirable to discuss is whether or not the crime committed is that defined and penalized by article 414 of the Penal Code. The English translation of this article reads: "Any person who shall intentionally castrate another shall suffer a penalty ranging from reclusion temporal to reclusion perpetua." The Spanish text, which should govern, uses the word "castrare," inadequately translated into English as "castrate." The word "capar," which is synonymous of "castrar," is defined in the Royal Academic Dictionary as the destruction of the organs of generation or conception. Clearly it is the intention of the law to punish any person who shall intentionally deprived another of any organ necessary for reproduction. An applicable construction is that of Viada in the following language: "At the head of these crimes, according to their order of gravity, is the mutilation known by the name of 'castration' which consists of the amputation of whatever organ is necessary for generation. The law could not fail to punish with the utmost severity such a crime, which, although not destroying life, deprives a person of the means to transmit it. But bear in mind that according to this article in order for 'castration' to exist, it is indispensable that the 'castration' be made purposely. The law does not look only to the result but also to the intention of the act. Consequently, if by reason of an injury or attack, a person is deprived of the organs of

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 55 3RD EXAM COVERAGE – CASES and SPECIAL LAWS generation, the act, although voluntary, not being intentional to that end, it would not come under the provisions of this article, but under No. 2 of article 431." (Viada, Codigo Penal, vol. 3, p. 70. See to same effect, 4 Groizard, Codigo Penal, p. 525.)

WHEREFORE, premises considered, the instant petition is DENIED for lack of merit. The assailed 21 July 2005Decision and 5 December 2005 Resolution, both of the Court of Appeals in CA-G.R. SP No. 88370 are herebyAFFIRMED. Costs against petitioner Gloria Aguirre.

Thus, the question is, does vasectomy deprive a man, totally or partially, of some essential organ of reproduction? We answer in the negative.

SO ORDERED.

In the male sterilization procedure of vasectomy, the tubular passage, called the vas deferens, through which the sperm (cells) are transported from the testicl* to the urethra where they combine with the seminal fluid to form the ejaculant, is divided and the cut ends merely tied. 57 That part, which is cut, that is, the vas deferens, is merely a passageway that is part of the duct system of the male reproductive organs. The vas deferens is not an organ,i.e., a highly organized unit of structure, having a defined function in a multicellular organism and consisting of a range of tissues. 58 Be that as it may, even assuming arguendo that the tubular passage can be considered an organ, the cutting of the vas deferens does not divest or deny a man of any essential organ of reproduction for the simple reason that it does not entail the taking away of a part or portion of the male reproductive system. The cut ends, after they have been tied, are then dropped back into the incision.59 Though undeniably, vasectomy denies a man his power of reproduction, such procedure does not deprive him, "either totally or partially, of some essential organ for reproduction." Notably, the ordinary usage of the term "mutilation" is the deprivation of a limb or essential part (of the body), 60 with the operative expression being "deprivation." In the same manner, the word "castration" is defined as the removal of the testies or ovaries.61Such being the case in this present petition, the bilateral vasectomy done on Larry could not have amounted to the crime of mutilation as defined and punished under Article 262, paragraph 1, of the Revised Penal Code. And no criminal culpability could be foisted on to respondent Dr. Agatep, the urologist who performed the procedure, much less the other respondents. Thus, we find sufficient evidence to explain why the Assistant City Prosecutor and the DOJ ruled the way they did. Verily, We agree with the Court of Appeals that the writ of certiorari is unavailing; hence, should not be issued. It is once more apropos to pointedly apply the Court's general policy of non-interference in the conduct of preliminary investigations. As it has been oft said, the Supreme Court cannot order the prosecution of a person against whom the prosecutor does not find sufficient evidence to support at least a prima facie case.62 The courts try and absolve or convict the accused but, as a rule, have no part in the initial decision to prosecute him. 63 The possible exception to this rule is where there is an unmistakable showing of a grave abuse of discretion amounting to lack or excess of jurisdiction that will justify judicial intrusion into the precincts of the executive. But that is not the case herein.

HAZING RA 8049 REPUBLIC ACT No. 8049 AN ACT REGULATING HAZING AND OTHER FORMS OF INITIATION RITES IN FRATERNITIES, SORORITIES, AND OTHER ORGANIZATIONS AND PROVIDING PENALTIES THEREFOR Section 1. Hazing, as used in this Act, is an initiation rite or practice as a prerequisite for admission into membership in a fraternity, sorority or organization by placing the recruit, neophyte or applicant in some embarrassing or humiliating situations such as forcing him to do menial, silly, foolish and other similar tasks or activities or otherwise subjecting him to physical or psychological suffering or injury. The term "organization" shall include any club or the Armed Forces of the Philippines, Philippine National Police, Philippine Military Academy, or officer and cadet corp of the Citizen's Military Training and Citizen's Army Training. The physical, mental and psychological testing and training procedure and practices to determine and enhance the physical, mental and psychological fitness of prospective regular members of the Armed Forces of the Philippines and the Philippine National Police as approved ny the Secretary of National Defense and the National Police Commission duly recommended by the Chief of Staff, Armed Forces of the Philippines and the Director General of the Philippine National Police shall not be considered as hazing for the purposes of this Act. Section 2. No hazing or initiation rites in any form or manner by a fraternity, sorority or organization shall be allowed without prior written notice to the school authorities or head of organization seven (7) days before the conduct of such initiation. The written notice shall indicate the period of the initiation activities which shall not exceed three (3) days, shall include the names of those to be subjected to such activities, and shall further contain an undertaking that no physical violence be employed by anybody during such initiation rites. Section 3. The head of the school or organization or their representatives must assign at least two (2) representatives of the school or organization, as the case may be, to be present during the initiation. It is the duty of such representative to see to it that no physical harm of any kind shall be inflicted upon a recruit, neophyte or applicant.

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 56 3RD EXAM COVERAGE – CASES and SPECIAL LAWS Section 4. If the person subjected to hazing or other forms of initiation rites suffers any physical injury or dies as a result thereof, the officers and members of the fraternity, sorority or organization who actually participated in the infliction of physical harm shall be liable as principals. The person or persons who participated in the hazing shall suffer:

The responsible officials of the school or of the police, military or citizen's army training organization, may impose the appropriate administrative sanctions on the person or the persons charged under this provision even before their conviction. The maximum penalty herein provided shall be imposed in any of the following instances:

1. The penalty of reclusion perpetua (life imprisonment) if death, rape, sodomy or mutilation results there from.

(a) when the recruitment is accompanied by force, violence, threat, intimidation or deceit on the person of the recruit who refuses to join;

2. The penalty of reclusion temporal in its maximum period (17 years, 4 months and 1 day to 20 years) if in consequence of the hazing the victim shall become insane, imbecile, impotent or blind. 3. The penalty of reclusion temporal in its medium period (14 years, 8 months and one day to 17 years and 4 months) if in consequence of the hazing the victim shall have lost the use of speech or the power to hear or to smell, or shall have lost an eye, a hand, a foot, an arm or a leg or shall have lost the use of any such member shall have become incapacitated for the activity or work in which he was habitually engaged. 4. The penalty of reclusion temporal in its minimum period (12 years and one day to 14 years and 8 months) if in consequence of the hazing the victim shall become deformed or shall have lost any other part of his body, or shall have lost the use thereof, or shall have been ill or incapacitated for the performance on the activity or work in which he was habitually engaged for a period of more than ninety (90) days. 5. The penalty of prison mayor in its maximum period (10 years and one day to 12 years) if in consequence of the hazing the victim shall have been ill or incapacitated for the performance on the activity or work in which he was habitually engaged for a period of more than thirty (30) days. 6. The penalty of prison mayor in its medium period (8 years and one day to 10 years) if in consequence of the hazing the victim shall have been ill or incapacitated for the performance on the activity or work in which he was habitually engaged for a period of ten (10) days or more, or that the injury sustained shall require medical assistance for the same period. 7. The penalty of prison mayor in its minimum period (6 years and one day to 8 years) if in consequence of the hazing the victim shall have been ill or incapacitated for the performance on the activity or work in which he was habitually engaged from one (1) to nine (9) days, or that the injury sustained shall require medical assistance for the same period. 8. The penalty of prison correccional in its maximum period (4 years, 2 months and one day to 6 years) if in consequence of the hazing the victim sustained physical injuries which do not prevent him from engaging in his habitual activity or work nor require medical attendance.

(b) when the recruit, neophyte or applicant initially consents to join but upon learning that hazing will be committed on his person, is prevented from quitting; (c) when the recruit, neophyte or applicant having undergone hazing is prevented from reporting the unlawful act to his parents or guardians, to the proper school authorities, or to the police authorities, through force, violence, threat or intimidation; (d) when the hazing is committed outside of the school or institution; or (e) when the victim is below twelve (12) years of age at the time of the hazing. The owner of the place where hazing is conducted shall be liable as an accomplice, when he has actual knowledge of the hazing conducted therein but failed to take any action to prevent the same from occurring. If the hazing is held in the home of one of the officers or members of the fraternity, group, or organization, the parents shall be held liable as principals when they have actual knowledge of the hazing conducted therein but failed to take any action to prevent the same from occurring. The school authorities including faculty members who consent to the hazing or who have actual knowledge thereof, but failed to take any action to prevent the same from occurring shall be punished as accomplices for the acts of hazing committed by the perpetrators. The officers, former officers, or alumni of the organization, group, fraternity or sorority who actually planned the hazing although not present when the acts constituting the hazing were committed shall be liable as principals. A fraternity or sorority's adviser who is present when the acts constituting the hazing were committed and failed to take action to prevent the same from occurring shall be liable as principal. The presence of any person during the hazing is prima facie evidence of participation therein as principal unless he prevented the commission of the acts punishable herein. Any person charged under this provision shall not be entitled to the mitigating circ*mstance that there was no intention to commit so grave a wrong.

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 57 3RD EXAM COVERAGE – CASES and SPECIAL LAWS This section shall apply to the president, manager, director or other responsible officer of a corporation engaged in hazing as a requirement for employment in the manner provided herein.

"1) By a man who shall have carnal knowledge of a woman under any of the following circ*mstances:

Section 5. If any provision or part of this Act is declared invalid or unconstitutional, the other parts or provisions thereof shall remain valid and effective.

"b) When the offended party is deprived of reason or otherwise unconscious;

Section 6. All laws, orders, rules or regulations which are inconsistent with or contrary to the provisions of this Act are hereby amended or repealed accordingly. Section 7. This Act shall take effect fifteen (15) calendar days after its publication in at least two (2) national newspapers of general circulation.

RAPE RA 8353

"a) Through force, threat, or intimidation;

"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 circ*mstances mentioned above be present. "2) By any person who, under any of the circ*mstances mentioned in paragraph 1 hereof, shall commit an act of sexual assault by inserting his penis into another person's mouth or anal orifice, or any instrument or object, into the genital or anal orifice of another person.

Republic of the Philippines Congress of the Philippines Metro Manila

"Article 266-B. Penalty. - Rape under paragraph 1 of the next preceding article shall be punished by reclusion perpetua.

Tenth Congress

"Whenever the rape is committed with the use of a deadly weapon or by two or more persons, the penalty shall be reclusion perpetua to death.

Republic Act No. 8353

September 30, 1997

AN ACT EXPANDING THE DEFINITION OF THE CRIME OF RAPE, RECLASSIFYING THE SAME AS A CRIME AGAINST PERSONS, AMENDING FOR THE PURPOSE ACT NO. 3815, AS AMENDED, OTHERWISE KNOWN AS THE REVISED PENAL CODE, AND FOR OTHER PURPOSES Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled:: Section 1. Short Title. - This Act shall be known as "The Anti-Rape Law of 1997." Section 2. Rape as a Crime Against Persons. - The crime of rape shall hereafter be classified as a Crime Against Persons under Title Eight of Act No. 3815, as amended, otherwise known as the Revised Penal Code. Accordingly, there shall be incorporated into Title Eight of the same Code a new chapter to be known as Chapter Three on Rape, to read as follows: "Chapter Three "Rape "Article 266-A. Rape: When And How Committed. Rape is committed:

"When by reason or on the occasion of the rape, the victim has become insane, the penalty shall become reclusion perpetua to death. "When the rape is attempted and a homicide is committed by reason or on the occasion thereof, the penalty shall be reclusion perpetua to death. "When by reason or on the occasion ofthe rape, homicide is committed, the penalty shall be death. "The death penalty shall also be imposed if the crime of rape is committed with any of the following aggravating/qualifying circ*mstances: "l) When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, stepparent, guardian, relative by consanguinity or affinity within the third civil degree, or the commonlaw spouse of the parent of the victim; "2) When the victim is under the custody of the police or military authorities or any law enforcement or penal institution; "3) When the rape is committed in full view of the spouse, parent, any of the children or other

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 58 3RD EXAM COVERAGE – CASES and SPECIAL LAWS relatives within consanguinity;

the

third

civil

degree

of

"4) When the victim is a religious engaged in legitimate religious vocation or calling and is personally known to be such by the offender before or at the time of the commission of the crime; "5) When the victim is a child below seven (7) years old; "6) When the offender knows that he is afflicted with the Human Immuno-Deficiency Virus (HIV)/Acquired Immune Deficiency Syndrome (AIDS) or any other sexually transmissible disease and the virus or disease is transmitted to the victim; "7) When committed by any member of the Armed Forces of the Philippines or para-military units thereof or the Philippine National Police or any law enforcement agency or penal institution, when the offender took advantage of his position to facilitate the commission of the crime; "8) When by reason or on the occasion of the rape, the victim has suffered permanent physical mutilation or disability; "9) When the offender knew of the pregnancy of the offended party at the time of the commission of the crime; and "10) When the offender knew of the mental disability, emotional disorder and/or physical handicap of the offended party at the time of the commission of the crime. "Rape under paragraph 2 of the next preceding article shall be punished by prision mayor. "Whenever the rape is committed with the use of a deadly weapon or by two or more persons, the penalty shall be prision mayor to reclusion temporal. "When by reason or on the occasion of the rape, the victim has become insane, the penalty shall be reclusion temporal. "When the rape is attempted and a homicide is committed by reason or on the occasion thereof, the penalty shall be reclusion temporal to reclusion perpetua. "When by reason or on the occasion ofthe rape, homicide is committed, the penalty shall be reclusion perpetua.

"Reclusion temporal shall be imposed if the rape is committed with any of the ten aggravating/ qualifying circ*mstances mentioned in this article. "Article 266-C. Effect of Pardon. - The subsequent valid marriage between the offended party shall extinguish the criminal action or the penalty imposed. "In case it is the legal husband who is the offender, the subsequent forgiveness by the wife as the offended party shall extinguish the criminal action or the penalty: Provided, That the crime shall not be extinguished or the penalty shall not be abated if the marriage is void ab initio. "Article 266-D. Presumptions. - Any physical overt act manifesting resistance against the act of rape in any degree from the offended party, or where the offended party is so situated as to render her/him incapable of giving valid consent, may be accepted as evidence in the prosecution of the acts punished under Article 266-A." Section 3. Separability Clause. - If any part, Sec., or provision of this Act is declared invalid or unconstitutional, the other parts thereof not affected thereby shall remain valid. Section 4. Repealing Clause. - Article 336 of Act No. 3815, as amended, and all laws, acts, presidential decrees, executive orders, administrative orders, rules and regulations inconsistent with or contrary to the provisions of this Act are deemed amended, modified or repealed accordingly. Section 5. Effectivity. - This Act shall take effect fifteen (15) days after completion of its publication in two (2) newspapers of general circulation. Approved: September 30, 1997.

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 59 3RD EXAM COVERAGE – CASES and SPECIAL LAWS

PEOPLE v. ORITA Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 88724 April 3, 1990 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CEILITO ORITA alias "Lito," defendant-appellant. The Office of the Solicitor General for plaintiff-appellee. C. Manalo for defendant-appellant.

WHEREFORE. the Court being morally certain of the guilt of accused CEILITO ORITA @ LITO, of the crime of Frustrated Rape (Art. 335, RPC), beyond reasonable doubt, with the aggravating circ*mstances of dwelling and nightime (sic) with no mitigating circ*mstance to offset the same, and considering the provisions of the Indeterminate Sentence Law, imposes on accused an imprisonment of TEN (10) YEARS and ONE (1) DAY, PRISION MAYOR, as minimum to TWELVE (12) YEARSPRISION MAYOR, maximum; to indemnify CRISTINA S. ABAYAN, the amount of Four Thousand (P4,000.00) Pesos, without subsidiary imprisonment in case of insolvency, and to pay costs. SO ORDERED. Not satisfied with the decision, the accused appealed to the Court of Appeals. On December 29, 1988, the Court of Appeals rendered its decision, the dispositive portion of which reads (p. 102, Rollo): WHEREFORE, the trial court's judgment is hereby MODIFIED, and the appellant found guilty of the crime of rape, and consequently, sentenced to suffer imprisonment of reclusion perpetua and to indemnify the victim in the amount of P30,000.00.

MEDIALDEA, J.: SO ORDERED. The accused, Ceilito Orita alias Lito, was charged with the crime of rape in Criminal Case No. 83-031-B before the Regional Trial Court, Branch II, Borongan, Eastern Samar. The information filed in the said case reads as follows (p. 47, Rollo): The undersigned Second Assistant Provincial Fiscal upon prior complaint under oath by the offended party, accuses CEILITO ORITA alias LITO of the crime of Rape committed as follows: That on March 20, 1983, at about 1:30 o'clock in the morning inside a boarding house at Victoria St., Poblacion, Borongan, Eastern Samar, Philippines, and within the jurisdiction of this Honorable Court, above named accused with lewd designs and by the use of a Batangas knife he conveniently provided himself for the purpose and with threats and intimidation, did, then and there wilfully, unlawfully and feloniously lay with and succeeded in having sexual intercourse with Cristina S. Abayan against her will and without her consent. CONTRARY TO LAW. Upon being arraigned, the accused entered the plea of not guilty to the offense charged. After the witnesses for the People testified and the exhibits were formally offered and admitted, the prosecution rested its case. Thereafter, the defense opted not to present any exculpatory evidence and instead filed a Motion to Dismiss. On August 5, 1985, the trial court rendered its decision, the dispositive portion of which reads (pp. 59-60, Rollo):

On January 11, 1989, the Court of Appeals issued a resolution setting aside its December 29, 1988 decision and forwarded the case to this Court, considering the provision of Section 9, paragraph 3 of Batas Pambansa Blg. 129 in conjunction with Section 17, paragraph 3, subparagraph 1 of the Judiciary Act of 1948. The antecedent facts as summarized in the People's brief are as follows (pp. 71-75, Rollo): Complainant Cristina S. Abayan was a 19-year old freshman student at the St. Joseph's College at Borongan, Eastern Samar. Appellant was a Philippine Constabulary (PC) soldier. In the early morning of March 20, 1983, complainant arrived at her boarding house. Her classmates had just brought her home from a party (p. 44, tsn, May 23, 1984). Shortly after her classmates had left, she knocked at the door of her boarding house (p. 5, ibid). All of a sudden, somebody held her and poked a knife to her neck. She then recognized appellant who was a frequent visitor of another boarder (pp. 8-9, ibid). She pleaded with him to release her, but he ordered her to go upstairs with him. Since the door which led to the first floor was locked from the inside, appellant forced complainant to use the back door leading to the second floor (p. 77, ibid). With his left arm wrapped around her neck and his right hand poking a "balisong" to her neck, appellant dragged complainant up the stairs (p. 14, ibid). When they reached the second floor, he commanded her to look for a

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 60 3RD EXAM COVERAGE – CASES and SPECIAL LAWS room. With the Batangas knife still poked to her neck, they entered complainant's room.

Back — Multiple pinpoint marks. Extremities — Abrasions at (R) and (L) knees.

Upon entering the room, appellant pushed complainant who hit her head on the wall. With one hand holding the knife, appellant undressed himself. He then ordered complainant to take off her clothes. Scared, she took off her T-shirt. Then he pulled off her bra, pants and panty (p. 20, ibid). He ordered her to lie down on the floor and then mounted her. He made her hold his penis and insert it in her vagin*. She followed his order as he continued to poke the knife to her. At said position, however, appellant could not fully penetrate her. Only a portion of his penis entered her as she kept on moving (p. 23, ibid). Appellant then lay down on his back and commanded her to mount him. In this position, only a small part again of his penis was inserted into her vagin*. At this stage, appellant had both his hands flat on the floor. Complainant thought of escaping (p. 20, ibid). She dashed out to the next room and locked herself in. Appellant pursued her and climbed the partition. When she saw him inside the room, she ran to another room. Appellant again chased her. She fled to another room and jumped out through a window (p. 27, ibid). Still naked, she darted to the municipal building, which was about eighteen meters in front of the boarding house, and knocked on the door. When there was no answer, she ran around the building and knocked on the back door. When the policemen who were inside the building opened the door, they found complainant naked sitting on the stairs crying. Pat. Donceras, the first policeman to see her, took off his jacket and wrapped it around her. When they discovered what happened, Pat. Donceras and two other policemen rushed to the boarding house. They heard a sound at the second floor and saw somebody running away. Due to darkness, they failed to apprehend appellant. Meanwhile, the policemen brought complainant to the Eastern Samar Provincial Hospital where she was physically examined. Dr. Ma. Luisa Abude, the resident physician who examined complainant, issued a Medical Certificate (Exhibit "A") which states: Physical Examination — Patient is fairly built, came in with loose clothing with no under-clothes; appears in state of shock, per unambulatory. PE Findings — Pertinent Findings only. Neck- — Circ*mscribed hematoma at Ant. neck. Breast — Well developed, conical in shape with prominent nipples; linear abrasions below (L) breast.

Vulva — No visible abrasions or marks at the perineal area or over the vulva,errythematous (sic) areas noted surrounding vagin*l orifice, tender, hymen intact; no laceration fresh and old noted; examining finger can barely enter and with difficulty; vagin*l canal tight; no discharges noted. As aforementioned, the trial court convicted the accused of frustrated rape. In this appeal, the accused assigns the following errors: 1) The trial court erred in disregarding the substantial inconsistencies in the testimonies of the witnesses; and 2) The trial court erred in declaring that the crime of frustrated rape was committed by the accused. The accused assails the testimonies of the victim and Pat. Donceras because they "show remarkable and vital inconsistencies and its incredibility amounting to fabrication and therefore casted doubt to its candor, truth and validity." (p. 33, Rollo) A close scrutiny of the alleged inconsistencies revealed that they refer to trivial inconsistencies which are not sufficient to blur or cast doubt on the witnesses' straightforward attestations. Far from being badges of fabrication, the inconsistencies in their testimonies may in fact be justifiably considered as manifestations of truthfulness on material points. These little deviations also confirm that the witnesses had not been rehearsed. The most candid witnesses may make mistakes sometimes but such honest lapses do not necessarily impair their intrinsic credibility (People v. Cabato, G.R. No. L-37400, April 15, 1988, 160 SCRA 98). Rather than discredit the testimonies of the prosecution witnesses, discrepancies on minor details must be viewed as adding credence and veracity to such spontaneous testimonies (Aportadera et al. v. Court of Appeals, et al., G.R. No. L41358, March 16, 1988, 158 SCRA 695). As a matter of fact, complete uniformity in details would be a strong indication of untruthfulness and lack of spontaneity (People v. Bazar, G.R. No. L-41829, June 27, 1988, 162 SCRA 609). However, one of the alleged inconsistencies deserves a little discussion which is, the testimony of the victim that the accused asked her to hold and guide his penis in order to have carnal knowledge of her. According to the accused, this is strange because "this is the only case where an aggressor's advances is being helped-out by the victim in order that there will be a consumation of the act." (p. 34, Rollo). The allegation would have been meritorious had the testimony of the victim ended there. The victim testified further that the accused was holding a Batangas knife during the aggression. This is a material part of the victim's testimony which the accused conveniently deleted.

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 61 3RD EXAM COVERAGE – CASES and SPECIAL LAWS We find no cogent reason to depart from the well-settled rule that the findings of fact of the trial court on the credibility of witnesses should be accorded the highest respect because it has the advantage of observing the demeanor of witnesses and can discern if a witness is telling the truth (People v. Samson, G.R. No. 55520, August 25, 1989). We quote with favor the trial court's finding regarding the testimony of the victim (p 56, Rollo): As correctly pointed out in the memorandum for the People, there is not much to be desired as to the sincerity of the offended party in her testimony before the court. Her answer to every question profounded (sic), under all circ*mstances, are plain and straightforward. To the Court she was a picture of supplication hungry and thirsty for the immediate vindication of the affront to her honor. It is inculcated into the mind of the Court that the accused had wronged her; had traversed illegally her honor. When a woman testifies that she has been raped, she says in effect all that is necessary to show that rape was committed provided her testimony is clear and free from contradiction and her sincerity and candor, free from suspicion (People v Alfonso, G.R. No. 72573, August 31, 1987, 153 SCRA 487; People v. Alcid, G.R. Nos. 66387-88, February 28, 1985, 135 SCRA 280; People v. Soterol G.R. No. 53498, December 16, 1985, 140 SCRA 400). The victim in this case did not only state that she was raped but she testified convincingly on how the rape was committed. The victim's testimony from the time she knocked on the door of the municipal building up to the time she was brought to the hospital was corroborated by Pat. Donceras. Interpreting the findings as indicated in the medical certificate, Dr. Reinerio Zamora (who was presented in view of the unavailability of Dr. Abude) declared that the abrasions in the left and right knees, linear abrasions below the left breast, multiple pinpoint marks, circ*mscribed hematoma at the anterior neck, erythematous area surrounding the vagin*l orifice and tender vulva, are conclusive proof of struggle against force and violence exerted on the victim (pp. 52-53, Rollo). The trial court even inspected the boarding house and was fully satisfied that the narration of the scene of the incident and the conditions therein is true (p. 54, Rollo): . . . The staircase leading to the first floor is in such a condition safe enough to carry the weight of both accused and offended party without the slightest difficulty, even in the manner as narrated. The partitions of every room were of strong materials, securedly nailed, and would not give way even by hastily scaling the same. A little insight into human nature is of utmost value in judging rape complaints (People v. Torio, et al., G.R. No. L-48731, December 21, 1983, 126 SCRA 265). Thus, the trial court added (p. 55, Rollo): . . . And the jump executed by the offended party from that balcony (opening) to the ground which was correctly estimated to be less than eight (8) meters, will perhaps occasion no injury to a frightened individual being pursued.

Common experience will tell us that in occasion of conflagration especially occuring (sic) in high buildings, many have been saved by jumping from some considerable heights without being injured. How much more for a frightened barrio girl, like the offended party to whom honor appears to be more valuable than her life or limbs? Besides, the exposure of her private parts when she sought assistance from authorities, as corroborated, is enough indication that something not ordinary happened to her unless she is mentally deranged. Sadly, nothing was adduced to show that she was out of her mind. In a similar case (People v. Sambili G.R. No. L-44408, September 30, 1982, 117 SCRA 312), We ruled that: What particularly imprints the badge of truth on her story is her having been rendered entirely naked by appellant and that even in her nudity, she had to run away from the latter and managed to gain sanctuary in a house owned by spouses hardly known to her. All these acts she would not have done nor would these facts have occurred unless she was sexually assaulted in the manner she narrated. The accused questions also the failure of the prosecution to present other witnesses to corroborate the allegations in the complaint and the non-presentation of the medico-legal officer who actually examined the victim. Suffice it to say that it is up to the prosecution to determine who should be presented as witnesses on the basis of its own assessment of their necessity (Tugbang v. Court of Appeals, et al., G.R. No. 56679, June 29, 1989; People v. Somera, G.R. No. 65589, May 31, 1989). As for the non-presentation of the medico-legal officer who actually examined the victim, the trial court stated that it was by agreement of the parties that another physician testified inasmuch as the medico-legal officer was no longer available. The accused did not bother to contradict this statement. Summing up, the arguments raised by the accused as regards the first assignment of error fall flat on its face. Some were not even substantiated and do not, therefore, merit consideration. We are convinced that the accused is guilty of rape. However, We believe the subject matter that really calls for discussion, is whether or not the accused's conviction for frustrated rape is proper. The trial court was of the belief that there is no conclusive evidence of penetration of the genital organ of the victim and thus convicted the accused of frustrated rape only. The accused contends that there is no crime of frustrated rape. The Solicitor General shares the same view. Article 335 of the Revised Penal Code defines and enumerates the elements of the crime of rape: Art. 335. When and how rape is committed. — Rape is committed by having carnal knowledge of a woman under any of the following circ*mstances: 1. By using force or intimidation;

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 62 3RD EXAM COVERAGE – CASES and SPECIAL LAWS 2. When the woman is deprived of reason or otherwise unconscious and 3. When the woman is under twelve years of age, even though neither of the circ*mstances mentioned in the two next preceding paragraphs shall be present. xxx xxx xxx Carnal knowledge is defined as the act of a man in having sexual bodily connections with a woman (Black's Law Dictionary. Fifth Edition, p. 193). On the other hand, Article 6 of the same Code provides: Art. 6. Consummated, frustrated, and attempted felonies. — Consummated felonies as well as those which are frustrated and attempted, are punishable. A felony is consummated when all the elements necessary for its execution and accomplishment are present; and it is frustrated when the offender performs all the acts of execution which would produce the felony as a consequence but which, nevertheless, do not produce it by reason of causes independent of the will of the perpetrator. There is an attempt when the offender commences the commission of a felony directly by overt acts, and does not perform all the acts of execution which should produce the felony by reason of some cause or accident other than his own spontaneous desistance. Correlating these two provisions, there is no debate that the attempted and consummated stages apply to the crime of rape. Our concern now is whether or not the frustrated stage applies to the crime of rape. The requisites of a frustrated felony are: (1) that the offender has performed all the acts of execution which would produce the felony and (2) that the felony is not produced due to causes independent of the perpetrator's will. In the leading case of United States v. Eduave, 36 Phil. 209, 212, Justice Moreland set a distinction between attempted and frustrated felonies which is readily understood even by law students: . . . A crime cannot be held to be attempted unless the offender, after beginning the commission of the crime by overt acts, is prevented, against his will, by some outside cause from performing all of the acts which should produce the crime. In other words, to be an attempted crime the purpose of the offender must be thwarted by a foreign force or agency which intervenes and compels him to stop prior to the moment when he has performed all of the acts which should produce the crime as a consequence, which acts it is his intention to perform. If he has performed all of the acts which should result in the consummation of the crime and voluntarily desists from proceeding further, it can not be an attempt. The essential element which distinguishes attempted from frustrated felony is that, in the latter, there is

no intervention of a foreign or extraneous cause or agency between the beginning of the commission of the crime and the moment when all of the acts have been performed which should result in the consummated crime; while in the former there is such intervention and the offender does not arrive at the point of performing all of the acts which should produce the crime. He is stopped short of that point by some cause apart from his voluntary desistance. Clearly, in the crime of rape, from the moment the offender has carnal knowledge of his victim he actually attains his purpose and, from that moment also all the essential elements of the offense have been accomplished.Nothing more is left to be done by the offender, because he has performed the last act necessary to produce the crime. Thus, the felony is consummated. In a long line of cases (People v. Oscar, 48 Phil. 527; People v. Hernandez, 49 Phil. 980; People v. Royeras, G.R. No. L-31886, April 29, 1974, 56 SCRA 666; People v. Amores, G.R. No. L-32996, August 21, 1974, 58 SCRA 505), We have set the uniform rule that for the consummation of rape, perfect penetration is not essential. Any penetration of the female organ by the male organ is sufficient. Entry of the labia or lips of the female organ, without rupture of the hymen or laceration of the vagin* is sufficient to warrant conviction. Necessarily, rape is attempted if there is no penetration of the female organ (People v. Tayaba, 62 Phil. 559 People v. Rabadan et al., 53 Phil. 694; United States v. Garcia: 9 Phil. 434) because not all acts of execution was performed. The offender merely commenced the commission of a felony directly by overt acts. Taking into account the nature, elements and manner of execution of the crime of rape and jurisprudence on the matter, it is hardly conceivable how the frustrated stage in rape can ever be committed. Of course, We are aware of our earlier pronouncement in the case of People v. Eriña 50 Phil. 998 [1927] where We found the offender guilty of frustrated rape there being no conclusive evidence of penetration of the genital organ of the offended party. However, it appears that this is a "stray" decision inasmuch as it has not been reiterated in Our subsequent decisions. Likewise, We are aware of Article 335 of the Revised Penal Code, as amended by Republic Act No. 2632 (dated September 12, 1960) and Republic Act No. 4111 (dated March 29, 1965) which provides, in its penultimate paragraph, for the penalty of death when the rape is attempted orfrustrated and a homicide is committed by reason or on the occasion thereof. We are of the opinion that this particular provision on frustrated rape is a dead provision. The Eriña case, supra, might have prompted the law-making body to include the crime of frustrated rape in the amendments introduced by said laws. In concluding that there is no conclusive evidence of penetration of the genital organ of the victim, the trial court relied on the testimony of Dr. Zamora when he "categorically declared that the findings in the vulva does not give a concrete disclosure of penetration. As a matter of fact, he tossed back to the offended party the answer as to whether or not there actually was penetration." (p. 53, Rollo) Furthermore, the trial court stated (p. 57, Rollo):

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 63 3RD EXAM COVERAGE – CASES and SPECIAL LAWS . . . It cannot be insensible to the findings in the medical certificate (Exhibit "A") as interpreted by Dr. Reinerio Zamora and the equivocal declaration of the latter of uncertainty whether there was penetration or not. It is true, and the Court is not oblivious, that conviction for rape could proceed from the uncorroborated testimony of the offended party and that a medical certificate is not necessary (People v. Royeras People v. Orteza, 6 SCRA 109, 113). But the citations the people relied upon cannot be applicable to the instant case. The testimony of the offended party is at variance with the medical certificate. As such, a very disturbing doubt has surfaced in the mind of the court. It should be stressed that in cases of rape where there is a positive testimony and a medical certificate, both should in all respect, compliment each other, for otherwise to rely on the testimony alone in utter disregard of the manifest variance in the medical certificate, would be productive of mischievous results. The alleged variance between the testimony of the victim and the medical certificate does not exist. On the contrary, it is stated in the medical certificate that the vulva was erythematous (which means marked by abnormal redness of the skin due to capillary congestion, as in inflammation) and tender. It bears emphasis that Dr. Zamoradid not rule out penetration of the genital organ of the victim. He merely testified that there was uncertainty whether or not there was penetration. Anent this testimony, the victim positively testified that there was penetration, even if only partially (pp. 302, 304, t.s.n., May 23, 1984): Q Was the penis inserted on your vagin*?

sufficient to prove his guilt beyond reasonable doubt of the crime of consummated rape. Article 335, paragraph 3, of the Revised Penal Code provides that whenever the crime of rape is committed with the use of a deadly weapon, the penalty shall be reclusion perpetua to death. The trial court appreciated the aggravating circ*mstances of dwelling and nighttime. Thus, the proper imposable penalty is death. In view, however, of Article 111, Section 19(1) of the 1987 Constitution and Our ruling in People v. Millora, et al., G.R. Nos. L-38968-70, February 9, 1989, that the cited Constitutional provision did not declare the abolition of the death penalty but merely prohibits the imposition of the death penalty, the Court has since February 2, 1987 not imposed the death penalty whenever it was called for under the Revised Penal Code but instead reduced the same to reclusion perpetua (People v. Solis, et al., G.R. Nos. 78732-33, February 14, 1990). Reclusion perpetua, being a single indivisible penalty under Article 335, paragraph 3, is imposed regardless of any mitigating or aggravating circ*mstances (in relation to Article 63, paragraph 1, Revised Penal Code; see People v. Arizala, G.R. No. 59713, March 15, 1982, 112 SCRA 615; People v. Manzano, G.R. No. L38449, November 25, 1982, 118 SCRA 705; People v. Ramirez, G.R. No. 70744, May 31, 1985, 136 SCRA 702). ACCORDINGLY, the decision of the Regional Trial Court is hereby MODIFIED. The accused Ceilito Orita is hereby found guilty beyond reasonable doubt of the crime of rape and sentenced to reclusion perpetua as well as to indemnify the victim in the amount of P30,000.00.

A It entered but only a portion of it. SO ORDERED. xxx xxx xxx Q What do you mean when you said comply, or what act do you referred (sic) to, when you said comply? A I inserted his penis into my vagin*. Q And was it inserted? A Yes only a little. The fact is that in a prosecution for rape, the accused may be convicted even on the sole basis of the victim's testimony if credible (People v. Tabago, G.R. No. 69778, November 8, 1988, 167 SCRA 65; People v. Aragona, G.R. No. L-43752, September 19, 1985, 138 SCRA 569; People v. Taduyo, G.R. Nos. L-37928-29, September 29, 1987, 154 SCRA 349). Moreover, Dr. Zamora's testimony is merely corroborative and is not an indispensable element in the prosecution of this case (People v. Alfonso, supra). Although the second assignment of error is meritorious, it will not tilt the scale in favor of the accused because after a thorough review of the records, We find the evidence PEOPLE v. MANGALINO

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 64 3RD EXAM COVERAGE – CASES and SPECIAL LAWS Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 79011 February 15, 1990 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. SEMION MANGALINO y LUMANOG, accused-appellant. The Office of the Solicitor General for plaintiff-appellee. Adriatico T. Bruno for accused-appellant.

SARMIENTO, J.: This is an appeal from the decision of the Regional Trial Court of Manila, 1 in which the accused was convicted of statutory rape under Article 335, paragraph 3 of the Revised Penal Code, 2 and sentenced to suffer the penalty of reclusion perpetua and to pay the offended parties the sum of P50,000.00 as moral damages. The complaint signed by the father of the victim, Tomas Carlos y Valente states: xxx xxx xxx That on or about March 7, 1984, in the city of Manila, Philippines, the said accused did then and there wilfully, unlawfully and feloniously lie with and have carnal knowledge of the undersigned complainant's daughter Marichelle, a minor, 6 years of age, against her will and consent. Contrary to Law. The following facts are fully supported by the evidence on record, mainly the testimonies of the victim herself and her mother, Bernardine, Dr. Roberto V. Garcia, and Staff Sergeant Mario Oser, as well as the testimonies of the witnesses for the defense — Ramil las Dulce, Linda Ayroso, and the accused himself. At about 10 or 11 o'clock in the morning of March 7, 1984, Marichelle Carlos, 6 years old and a Grade I pupil at the Moises Salvador Elementary School, Manila, was playing "takbuhan" alone at the first level (ground floor) of the twostory apartment of the accused, Semion Mangalino, 53, married to 55-year old Laura Gasmin, childless, a security guard by occupation, and residing at 1597-D Honradez Street, Sampaloc, Manila. 3 At the time of the incident, Laura was in Balayan, Batangas, having left the day before the incident. The accused and Marichelle's parents (Tomas and Bernardine Carlos) are neighbors, their respective rented apartments being almost opposite each other.

During the morning of March 7, 1984, Ramil las Dulce, a 16year old high school student occupying the second floor of the apartment, for free and free board, too, a grandson of the accused (his mother, Edita Onadia who lived with him upstairs, being an adopted daughter of the accused), and Laura's nephew, Armando Ayroso, were allegedly playing chess 4 in the sala of the apartment. Ramil, a witness for the defense, testified that he did not hear or see the accused calling out to Marichelle and motioning her to go inside his bedroom or "sleeping quarters" at one end of the sala of the ground floor, opposite the kitchen. Once inside the bedroom, the accused handed the girl a two peso bill (P2.00) 5 and told her not to tell anybody about his calling her to his bedroom. The girl assented. 6 The accused then laid Marichelle down, removed her jogging pants, and placed them beside her feet. 7 He kissed her and fondled her infantile breasts. 8 He inserted his finger into the private part of the victim, 9 and then forcibly and repeatedly introduced his sexual organ into her undeveloped genitalia, but in vain. 10 Meanwhile, the victim's mother, Bernardine Carlos, 27, and a plain housewife, was looking for her daughter, who should be leaving for school by that time. She was informed by her sister Agnes, who was living next door, that the adopted daughter of the accused, Cielito, had told her that Marichelle was in their apartment. 11 Immediately, Michael, Agnes' fouryear old son, was dispatched to fetch Marichelle. Hearing the call of Michael, the victim put on her garments, and on the way home noticed that her jogging pants were wet. Upon reaching her house, Marichelle narrated to her mother what had happened, saying, "Si Mang Semion nilagay ang daliri niya sa pikpik ko," and "yong titi ni Mang Semion nilagay sa pikpik ko." 12 At about 2:30 that same day, an enraged Bernardine submitted her daughter to a physical and genital examination, 13 the results of which National Bureau of Investigation (NBI) Medico Legal Officer Roberto V. Garcia certified as follows: No evidence (or) sign of any extragenital physical injury noted on the body of the subject at the time of examination. Hymen, intact and its orifice, narrow. Sign of recent genital trauma, present. Dr. Garcia opined that the vestibular mucosa contusion could have been caused by a hard object like an erected penis and such bruises at such part of the girl's vagin* if caused by an erected penis would be an indication of an unsuccessful penetration. He discounted the probability of an accident, like bumping at an edge of a chair, or any blunt object, since there was no contusion of the labia. 14

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 65 3RD EXAM COVERAGE – CASES and SPECIAL LAWS The confrontation between the victim and the accused took place when Staff Sergeant Mario Oser of the Waterfront Unit, Reaction Strike Force, Philippine Constabulary Metropolitan Command (P.C. Metrocom), who conducted the initial investigation, invited the accused to the P.C. Headquarters. There, Marichelle Identified Semion Mangalino as the man who had abused her.

The defense vigorously argues against the probability of the rape having been committed on two points: 1) The commission of the crime was impossible, taking place as claimed, in broad daylight, and 2) there were at least eight persons — including the accused and the complainant — on the ground floor where the rape was supposedly consummated.

The accused vehemently denied having ever abused Marichelle. He argued that the bruises in the complainant's vestibular mucosa may have been self-inflicted. Marichelle, who was constantly running about, might have bumped her pelvis against a chair, which explained the absence of signs of contusions in the labia.

The commission of the crime, submits the defense, was impossible, considering that it was allegedly committed at noontime, which would have readily exposed the act of rape to anyone glancing in the direction of the place where the suspect was abusing the victim.

Curiously, the young victim candidly testified that she felt no pain when the accused was allegedly trying to insert his penis into her vagin*. She did not cry in pain nor shout for help when she was being abused. 15 Before the Court, the appellant assigned four errors in his brief which he claims the trial court committed, to wit: ASSIGNMENT OF ERRORS ERROR I THE TRIAL COURT ERRED IN NOT FINDING THAT, CONSIDERING THE PLACE, THE TIME, AND THE PRESENCE OF SO MANY PEOPLE WITHIN THE IMMEDIATE VICINITY WHERE THE ALLEGED CRIME WAS COMMITTED, THE ACCUSED COULD NOT HAVE SEXUALLY ABUSED MARICHELLE G. CARLOS, THE COMPLAINING WITNESS HEREIN; ERROR II THE TRIAL COURT ERRED IN NOT FINDING THAT THE BRUISES THROUGH THE VESTIBULAR MUCOSA OF THE PRIVATE PART OF MARICHELLE G. CARLOS IS THE RESULT OF AN ACCIDENT, CONSIDERING THAT ON MARCH 7,1984, SHE WAS IN THE GROUND FLOOR OF THE APARTMENT OF HEREIN ACCUSED PLAYING — RUNNING AROUND "TAKBUHAN"; ERROR III THE TRIAL COURT ERRED IN ORDERING THE ACCUSED TO PAY THE OFFENDED PARTIES, MARICHELLE G. CARLOS AND HER PARENTS, TOMAS CARLOS AND BERNARDINE GANLAC CARLOS, THE SUM OF P50,000.00 AS AND FOR DAMAGES; ERROR IV THE TRIAL COURT ERRED IN FINDING THAT THE ACCUSED IS GUILTY OF THE CHARGE ALLEGED IN THE INFORMATION, INSTEAD OF ACQUITTING HIM WITH COSTS DE OFFICIO. 16

On the second point, it is contended that the rape could not have been accomplished with so many persons present in the apartment. As it was, Ramil and Armando were playing chess near the front door of the apartment. Also, Linda Ayroso, 29, married to Armando, and a housewife, was washing laundry in the kitchen. Furthermore, the accused was cooking lunch also in the kitchen, and so could not have flitted from the kitchen to his room to execute his evil design without anyone noticing his absence. The defense brings to our attention the physical layout of the apartment of the accused. The place where the alleged sexual abuse took place was not even a room, he asserts. The apartment had neither a door nor walls, and what divided the so-called room from the living room was a wooden folding divider which was full of holes, "butasbutas." 17 Finally, the accused assails the lower court's slapping of damages based on the claims of prosecution witnesses of suffering mental anguish, moral shock, and a "besmirched reputation." Since he did not commit the offense attributed to him, the award of P50,000.00 as moral damages is unwarranted. Consequently, he prays he must be exculpated. We deny the appeal except the amount of the award of damages which we reduce to P20,000.00 conformably to prevailing jurisprudence. We rule that statutory rape had been committed beyond the shadow of a doubt. The gravamen of the offense of statutory rape as provided in Article 335, paragraph 3 of the Revised Penal Code is the carnal knowledge of a woman below 12 years of age. 18 Marichelle, a little over 6 years of age at the time, was raped. Beyond that, proof of intimidation or force used on her, or lack of it, is immaterial. The findings of Dr. Roberto V. Garcia, the NBI Medico Legal officer, who testified for the People, conclude that rape could have been perpetrated. To reiterate, he certified the existence of indications of recent genital trauma.Under normal condition, the color of the vestibular mucosa is pinkish. The doctor found the vestibular mucosa of the victim

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 66 3RD EXAM COVERAGE – CASES and SPECIAL LAWS to be dark red. 19 The forcible attempt of an erected penis to have complete penetration caused the 3 1/2-centimeter contusion prior to the hymen. The government doctor further discounted the probability of an accident, such as bumping the edge of a chair, or violent contact with a blunt object, as there was no contusion of the labia. The penile-vagin*l contact without penetration was due to the one- centimeter diameter opening of Marichelle's hymen. Usually, the average adult's hymen measures 2.8 to 3 centimeters in diameter, making it compatible to, or easily penetrable by, an average-size penis. The victim being of a tender age, the penetration could go only as deep as the labia. 20 In any case, the Court has consistently held that for rape to be committed, full penetration is not required. It is enough that there is proof of entrance of the male organ within the labia or pudendum of the female organ. 21Indeed, even the slightest penetration is sufficient to consummate the crime of rape. The relationship between the offender and the victim as neighbors remains unrebutted. This relationship has an important bearing on the medico-legal finding, because it explains the absence of visible signs of physical injuries.22 The close relationship of Semion Mangalino to Marichelle — as a nearby neighbor of the Carlos family — and the degree of respect that Semion may have had in Marichelle's life, helps explain why physical force was not employed. The mere size of the accused, a robust security guard, and 163 centimeters (five feet and four inches) in height, could have easily immobilized the victim who was at that time only one hundred eight centimeters tall and weighing 31.818 kilos (70 lbs.) The attempt to discredit the prosecution's version as shown by the fact that Marichelle did not cry out or struggle against her attacker deserves scant consideration. The absence of hymenal laceration adequately explains why Marichelle did not feel any pain during the attempted sexual intercourse. Why would she struggle, when she did not even know that her chastity was being violated? As her mother testified, it was only upon realizing that she had been defiled did her daughter cry. From then on, she became "matatakutin' and "hindi na kumakain", she became nervous and had no appetite for food — symptoms of a state of anguish. The simplicity of the testimony of Marichelle convinces us that she was telling the truth about her having been sexually abused. xxx xxx xxx

Court q Why, were you playing alone? Witness a Yes, your Honor. Fiscal Salvania q What were you playing? Witness a I was running around "takbuhan" madam. Court q Were you running outside or inside the house of the accused Witness a Inside the house of Semion Mangalino, your Honor. Fiscal Salvania q While you were playing inside the house of Semion Mangalino he called for you? Witness a Yes, madam. q Why did he called (sic) for you? Witness a He called me and told me to go to his bedroom madam. Fiscal Salvania q When you were asked to go to his bedroom, did he give you anything? Witness a Yes madam.

q (Asst. Fiscal Mercedes C. Salvania) Now, while you were playing will you tell this Honorable court where did you go after that?

q What did he give to you?

Witness (Marichelle)

Court

a While I was playing Mang Simeon called me madam.

q Did you accept that P2.00?

a He gave me P2.00, madam.

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 67 3RD EXAM COVERAGE – CASES and SPECIAL LAWS Witness

She said he inserted.

a Yes, your Honor.

q Was one of the fingers of the accused inserted in your private part?

Fiscal Salvania Witness q When you were asked to go inside the higaan of Semion Mangalino, did you go?

a Yes, your Honor.

Witness

q What did he do?

a Yes, madam.

a He kissed me your Honor.

q Now, when you went inside the higaan, what did he do to you?

q Where did he kissed (sic) you? a In my breast your Honor.

a He inserted one of his fingers in my private part madam. Fiscal Salvania Fiscal Salvania q Did he remove your T-shirt? q You stated that you were wearing jogging pant? Witness Witness a No madam. a Yes, madam. xxx xxx xxx q What happened to your jogging pant? Court a He first removed my jogging pant, madam. q Did Semion Mangalino removed (sic) his pant? q After removing your jogging pant, did he removed (sic)anything in his clothes?

Witness

a He did not removed (sic) anything in his clothes madam.

a He did not removed (sic) his pant your Honor.

Court q Beside the jogging pant you are (sic) wearing, were you also wearing a panty? Witness a Yes, your Honor. Fiscal Salvania

xxx xxx xxx q Do you know what is penis? a Yes, your Honor. q Did the accused put-out his penis while he was inserting his finger in your private part and kissing you in the breast? a He put-out his penis while he was kissing and his one fingers (sic) inserted in my private part, your Honor.

q What happen(ed) to your panty, did he remove? q What did he do with his penis? Witness a He is inserting his penis in my private part, your Honor. a He also removed my panty madam. Court Fiscal Salvania q What did he do with his finger?

q Was the accused able to insert his penis into your private part?

Court

Witness

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 68 3RD EXAM COVERAGE – CASES and SPECIAL LAWS a He was not able, your Honor. xxx xxx xxx q How do you feel or did you feel pain while the accused was trying to insert his penis into your private part? Witness a I did not feel anything, your Honor. q Did you feel pain? a I did not feel anything painful, your Honor. q Did you saw (sic) the penis of Semion Mangalino? a Yes, your Honor. q What was your position when Semion Mangalino was trying to insert his penis into your private part? Witness a I was lying down, your Honor. Court q Who put you lay (sic) down, was it yourself or what? Witness a Semion Mangalino, your Honor. q Did you not cry? a I did not cry, your Honor. q Did you shout? a I did not shout, your Honor. q Why, were there persons inside the house while Semion Mangalino was doing all these things to you? a There were no other persons except myself and Semion Mangalino your Honor. 23 Marichelle was a Grade I pupil when she was violated. She was in Grade II when she took the witness stand. In view of her very tender age and her little formal schooling, it is inconceivable for Marichelle to concoct a serious charge of rape, and to narrate, in unhesitating and simple terms, that she had been asked by the offender to go inside the room; that she was laid down after the accused had given her P2.00; that he removed her jogging pants and panty; that the accused kissed her and caressed her breasts, that "Mang

Semion" inserted a finger into her genital, and later his sexual organ. At age 6, Marichelle would have been one of those "babes and sucklings" from whose mouths words of praise should have been perfected, but alas, she was instead compelled to relate in the presence of people, some of them complete strangers, in the police precinct and in court, her tragic story. The heart of the matter is the violation of a child's incapacity to discern evil from good. As the behavior of the victim towards the accused during the commission of the crime and her testimony before police officers and in the court indicate, she had no awareness of the wrongfulness of the action of the accused who was old enough to be her grandfather. Her willingness to lie down on and accept the P2.00 given her by the accused, whom she looked up to as an elder person, a neighbor, and a friend of her family, indicate not naivete, but the absolute trust and confidence of the very young in an older person. She was incapable of reading malice or evil in his intentions. It is likely that it was only when she saw how distraught her mother was at her telling of her story and the flurry of police and judicial activity stirred up by her narration that her young and innocent mind was violently exposed to the reality of the existence of evil in the hearts of men. The moment of truth, dawning so violently upon young and innocent minds is contemptible. The older persons in the community should set themselves up as models of proper decorum and high moral purpose for young children; it is they who should guide the young, teach them, and nurture them in the way of the righteous. A 53-year-old man who instead corrupts and violates the purity and dignity of a minor is morally depraved and should be punished to the limits of the law. It is even more difficult to conceive of Mrs. Bernardine Carlos trumping up a charge of the rape of her daughter and subject herself and her daughter to humiliation, to fear, and anxiety, and community censure that she and her daughter will have to bear for the rest of their lives, 24 simply in consideration of P50,000.00, the amount asked for in moral damages. The trial court's findings of facts which rely on the credibility of witnesses are entitled to respect, if not finality. A painstaking examination and review of the records of the case yield no fact or circ*mstance that would have contradicted the findings of the trial court. The alleged inconsistencies refer to minor details and do not at all touch upon the basic aspects of the who, the how, and the when of the crime committed. Minor discrepancies in the testimonies of Marichelle and her mother are but natural, and even enhance their credibility as witnesses because these discrepancies indicate that the responses given were honest and unrehearsed. 25 In appreciation of the testimony of the victim, due regard must be accorded to her tender age. The contention of the accused that he never left the kitchen is flawed. The facility of a quick tap to his room can not be discounted considering that kitchen where he was supposed to have been cooking was only a few meters away. That the

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 69 3RD EXAM COVERAGE – CASES and SPECIAL LAWS presence of Ramil and Armando who were allegedly playing chess in the kitchen made the commission of the crime impossible, even if were true, falls flat in the face of the game of chess being one that requires utmost concentration; that being so, it is logical for both players to be concentrating on the game when the accused lured Marichelle into the room. We hold that when Ramil, Armando, and Linda were engrossed in what they were doing, that the accused surreptitiously enticed Marichelle into his higaan, and that the short distance between the kitchen and the "room" — a mere distance of 5 to 6 meters — is no obstacle to the satiation of his carnal lusting after the child. The accused claims it was impossible for him to have raped the victim in the presence of other people, more so, in a place without privacy. We do not agree. Rape was in fact committed. It is quite possible for an experienced man, like the accused, to consummate rape in just one minute, without attracting the attention of the people inside the apartment. 26 Marichelle's complete innocence may have facilitated the perpetration of the clime, and the divider, although "butas-butas," was sufficient to conceal the commission of the bestial act. In several instances, this Court held that rape can be committed even in places where people congregate: in parks, along the road side, within school premises, and even inside a house where there are other occupants. 27The apartment of the accused was no exception. Lust is no respecter of time or place. In fine, we hold that the trial court did not commit any reversible error in finding the accused-appellant guilty beyond reasonable doubt of the crime of statutory rape. No amount of money can soothe the pain and anguish suffered by a victim of rape and her family. Still, we cannot impose the damages of P50,000.00 on the accused. As stated earlier, we reduce the amount to P20,000.00. WHEREFORE, the appealled decision is AFFIRMED with the MODIFICATION above indicated. Costs against the accused-appellant. SO ORDERED. PEOPLE v. ERINIA Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-26298

January 20, 1927

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiffappellee,

vs. JULIAN ERINIA Y VINOLLA, defendant-appellant. Hermogenes Caluag for appellant. Attorney-General Jaranilla for appellee. OSTRAND, J.: This is an appeal from a judgment of the Court of First Instance of Manila finding the defendant guilty of the crime of consummated rape and sentencing him to suffer seventeen years, four months and one day of reclusion temporal, with the accessory penalties provided by law and to pay the costs. The victim of the crime was a child of 3 years and 11 months old and the evidence is conclusive that the defendant endeavored to have carnal intercourse with her, but there may be some doubt whether he succeeded in penetrating the vagin* before being disturbed by the timely intervention of the mother and the sister of the child. The physician who examined the genital organ of the child a few hours after the commission of the crime found a slight inflammation of the exterior parts of the organ, indicating that an effort had been made to enter the vagin*, but in testifying before the court he expressed doubts as to whether the entry had been effected. The mother of the child testified that she found its genital organ covered with a sticky substance, but that cannot be considered conclusive evidence of penetration. It has been suggested that the child was of such tender age that penetration was impossible; that the crime of rape consequently was impossible of consummation; and that, therefore, the offense committed should be treated only as abusos deshonestos. We do not think so. It is probably true that a complete penetration was impossible, but such penetration is not essential to the commission of the crime; it is sufficient if there is a penetration of the labia. In the case of Kenny vs. State ([Tex. Crim. App.], 79 S. W., 817; 65 L. R. A., 316) where the offended party was a child of the age of 3 years and 8 months the testimony of several physicians was to the effect that her labia of the privates of a child of that age can be entered by a man's male organ to the hymen and the defendant was found guilty of the consummated crime rape. There being no conclusive evidence of penetration of the genital organ of the offended party, the defendant is entitled to the benefit of the doubt and can only be found guilty of frustrated rape, but in view of the fact that he was living in the house of the parents of the child as their guest, the aggravating circ*mstance of abuse of confidence existed and the penalty must therefore be imposed in its maximum degree. The judgment appealed from is modified and the defendantappellant is hereby found guilty of the crime of frustrated rape and is sentenced to suffer twelve years of prision mayor, with the accessory penalties prescribed by law, and with the costs in both instances. So ordered.

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 70 3RD EXAM COVERAGE – CASES and SPECIAL LAWS PEOPLE v. CASTRO Republic of the Philippines SUPREME COURT Manila

xxx xxx xxx Q Now, what was the reason why your husband called you? A He asked me to fine out why my granddaughter does not want to eat and just keeps on crying.

SECOND DIVISION G.R. No. 91490 May 6, 1991

Q And what did you do wen (sic) your husband told you to see your granddaughter?

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DELFIN CASTRO y LOZADA, defendant-appellant.

A I went upstairs and found out what was wring (sic) with her whether she has fever. Q And what did you find out

The Solicitor General for plaintiff-appellee. Eduardo I. Advincula for defendant-appellant.

A At first she said she was complaining that her private property was painful and when I investigated I discovered that it swollen (sic). Q Then what happened after you found out that the private property of your granddaughter was swollen?

PADILLA, J.:p This is an appeal interposed by the accused, Delfin Castro y Lozada, from the decision* of the Regional Trial Court of Pasay City, Branch 110, imposing upon him the penalty of reclusion perpetua for statutory rape defined under Art. 335, paragraph 3 of the Revised Penal Code.

A I asked her why.

On the witness stand, six (6) year old Diana Rose Castro narrated how, while playing with a neighbor sometime on 4 October 1986, she was pulled by the accused inside a bathroom, prevented from going out, and made to stand on the toilet bowl. Accused is a first cousin of Diana Rose's mother. Kuya Delfin, as Diana Rose referred to the accused, then put up her clothes, took off her panty, made her lean on the wall and, despite her efforts to pull away he inserted his private part into her causing pain. Then she was told by the accused to go home. At home, she refused to have her private part washed by her Auntie Alice because it was hurting and painful. 1

Q And what did you do after that?

Mrs. Jacinta Castro, Diana's grandmother, testified that on 6 October 1986, in her house at No. 1692, F. Muñoz, Tramo, Pasay City, she was asked by her husband to find out why Diana was crying. Her testimony follows. 2

Q (sic). And what did your granddaughter tell you? A At first she told me that "nasabit sa hiyero."

xxx xxx xxx A What I did was to examine her carefully her private part; I lifted her two (2) legs and I discovered that her private property was reddened as swollen. Q Did you ask her again what happened to her private property? A Yes, sir, she told me that she was invited by her Kuya Delfin to the bathroom. Q And what else did she tell you? A She told me that she was asked by her Kuya to stand on top of the toilet bowl and he removed her panty and his (sic) Kuya Delfin also removed his pants.

COURT: Q Was there anything unusual that happened on Oct. 6 particularly in your house?

Q What else did she tell you?

A On Oct. 6 I was downstairs and there was a call by my husband.

A She told me that his (sic) Kuya Delfin had sexual intercourse with her.

xxx xxx xxx FISCAL:

COURT: Q Did you ask Diane Castro how Delfin allegedly had sexual intercourse with her?

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 71 3RD EXAM COVERAGE – CASES and SPECIAL LAWS A Yes, Your Honor. Q What did she answer? A She was standing and she was made to lean on the wall, Your Honor. . . Because of Diana's revelation, the grandmother brought her to the National Bureau of Investigation for examination on 8 October 1986. 3 Dr. Roberto Garcia, the NBI medico-legal, had this explanation: xxx xxx xxx A Under the single heading of "genital examination" the more insignificant findings will be the contused or bruised vetibular (sic) meaning the area inside the genital organ of the subject person; the hymen of the subject person was noted to be bruised or contused . . . Q Now what do you mean when you say that the genital parts you mentioned were contused or bruised? A The area was noted to be purplish or red darker than the normal appearance of the said portion being bruised or contused it would mean that this particular portion was subject to some amount of force or it could have come in contact with a hard object, the contract must have been done with a certain amount of force. Q Under No. 2 of the conclusion of this report it reads —"signs of recent genital trauma, present, consistent with the alleged date of infliction." Would you explain this? This witness meant that the appearance of the genital or prior of those mentioned was seen by this witness which brought about the trauma and that it has to be recent, meaning it could have been sustained by the subject person in a matter of days prior to the date of the examination. A Now, was the hymen of the subject lacerated? A No, sir. Q Now this genital trauma which you said to have been suffered by the subject from what could this injury or trauman (sic), what was the cause? A Any hard object would have produced this bruise or contusion. Q Now, this is a case of rape, Doctor, would you venture to state from what object this could have been inflicted?

A Under the normal course of events injuries of this nature involving this particular portion of the body of a female or woman is produced by the insertion of a male organ. 4 xxx xxx xxx A sworn complaint for rape was filed against Delfin Castro y Lozada. It charged as follows: That on or about the 4th day of October, 1986 in Pasay City, Philippines and within the jurisdiction of tills Honorable Court, the above named accused, Delfin Castro y Lozada, with lewd designs and taking advantage of his moral ascendancy over the undersigned complainant who is his niece, did then and there wilfully, unlawfully and feloniously have sexual intercourse with or carnal knowledge of the undersigned. 5 Accused pleaded not guilty and posted bail for his provisional liberty. Delfin's alibi begins on 3 October 1986 in 1692 Muñoz, Pasay City, where he lives two (2) houses away from complainant's. At about 12:00 P.M., Diana went to his house while he was taking a bath. She was crying and went inside the bathroom. When asked by the accused why, she replied that while going down the stairs, a dog whose two (2) hind legs were limping, chased her and so she tripped. The accused told Diana to go out because their dog might bite her. He proceeded to dress up and saw the victim playing outside. In the morning of 4 October 1986, he woke up at about quarter to seven, 6 left the house at 7:30 7 took a jeep plying the Pasay-Taft- Luneta route, arrived in school (Adamson University) at 8:15 in the morning. He proceeded to see Dolores Rivera, a godsister who worked in the treasurer's office of the university to ask the latter to type a term paper which was due that day. After submitting the term paper, he treated his godsister to lunch. Around 1:00 o'clock in the afternoon, he went home. Mrs. Teresita Castro's testimony dovetails with her son Delfin's saying that at around 12:30 P.M. on 4 October 1986, he arrived and ate lunch at home. 8 Mother and son talked of enmity between Mrs. Jacinta Castro, Diana's grandmother and their family. This rape case against Delfin is a result allegedly of the envy of Diana's said grandmother over his (Delfin's) fine scholastic performance. 9 Delfin further narrated that on or about 8 October 1986, he was invited to the Pasay Police Headquarters for questioning. While there, he was asked to undress, was blindfolded and beaten by around 7 to 10 policemen for about half an hour and made to admit that he raped Diana. Since he could no longer stand the torture, he told them that he used his small finger to touch her private part. 10 After the incident, Delfin left their house in order to avoid trouble; occasionally he would visit his parents. 11

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 72 3RD EXAM COVERAGE – CASES and SPECIAL LAWS Finding the testimony of Diana positive, clear and credible, the Regional Trial Court disregarded the alibi of the accused and convicted him. The trial court, inter alia, stated: . . . The accused's claim that he was, in the morning of October 4, 1986, at Adamson University waiting for his term paper engenders disbelief. By his evidence, he was enrolled at the Adamson University for the second semester of school 1986-1987 classes for which usually start in October. Term papers are usually submitted at the end of the semester, not at the beginning of the semester. In any event, Delfin was not shown that it was physically impossible for him to be at the place of the incident on October 4, 1986 as, by his evidence, he returned to his house after noontime, rested for a while, then left and returned again in the afternoon. His suggestion that Diana's genital bruises could have resulted from trippling down the stairs when she was chased by a limping dog is ridiculous. A dog whose two hind legs are limping chasing her (where did the dog come from?) while she was going down the stairs? Granted that were possible or that actually happened, the fall would cause abrasions, not hymenal contusions. Finally the defense's insinuation that Diana's grandmother Jacinta who was pictured to be supercilious and envious was behind the filing of this case is difficult to believe, there being no concrete proof thereof. Besides, it would be unthinkable for Jacinta to alienate her relations with all her in-laws, the Castros, who are staying in different houses of the same compound, by fabricating a charge against the accused. Finally, the accused's flight from his house after the filing of the present case is not consistent with his professed innocence. He did not, according to him, have any good relationship with Diana's grandmother even before October 4, 1986. So what was he fleeing from? His answer, that he wanted to avoid trouble, tells it all . . . xxx xxx xxx From the said decision sentencing him to suffer the penalty of reclusion perpetua and indemnify the victim in the amount of P20,000.00 by way of damages, the accused appealed to this Court pointing out the following alleged errors: 1. there is no rape because — a. the hymen of the victim was not lacerated. b. the victim was allegedly standing while the crime was being committed. c. the victim is still a virgin. 2. reliance on the conflicting testimony of the victim and not that of the accused. A recent decision of this Court in a case of statutory rape observed that, usually, the average adult's hymen measures

2.8 to 3 centimeters in diameter, making it compatible with, or easily penetrable by an average size penis. The victim being of tender age, the penetration of the male organ could go only as deep as the labia. In any case, for rape to be committed, full penetration is not required. It is enough that there is proof of entrance of the male organ within the labia or pudendum of the female organ. Even the slightest penetration is sufficient to consummate the crime of rape. 12 Perfect penetration, rupture of the hymen or laceration of the vagin* are not essential for the offense of consummated rape. Entry, to the least extent, of the labia or lips of the female organ is sufficient. 13 Diana's remaining a virgin does not negate rape. Sexual intercourse in a standing position, while perhaps uncomfortable, is not improbable. The RTC decision explained: . . . For her account that she was made to stand on the toilet bowl made it easy for the accused to do the act as she was too small and their private parts would not align unless she was elevated to a higher position. The suggestion of the defense counsel that a finger could have been used is absurd. For if it were only a finger there would have been no need to let Diana stand on the toilet bowl.. . . 14 The Solicitor General's brief, in turn, asserts that the position Diana was forced to take, made it easier for appellant to accomplish insertion of his organ than if Diana had been made to lie down. 15 Experience has shown that unfounded charges of rape have frequently been proffered by women actuated by some sinister, ulterior or undisclosed motive. Convictions in such cases should not be sustained without clear and convincing proof of guilt, 16 considering the gravity of the offense and the penalty it carries. On the alleged sinister motive of Diana's grandmother engendered by envy, we find this incredulous. For, what grandmother would exact vengeance on her enemies at the perpetual humiliation and disrepute of her six (6) year old granddaughter? Finally, the issue of credibility. Who among the contending parties is telling the truth? The prosecution's evidence is simple and straightforward. Appellant's alibi must fall. Claims of his scholastic achievements, assuming they are relevant, were unsubstantiated. His counsel did not even formally offer the exhibits attesting to his enrollment at Adamson University where he was supposed to have submitted in the morning of 4 October 1986 a term paper. His credibility is dubious; he was not able to even identify the topic of his alleged term paper. To discredit the victim he testified on her alleged propensity to tell lies. 17 The trial court, however, categorically held: While Diana's testimony was in some instances flawed, the flaw was minor and only with respect to dates. She is a

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 73 3RD EXAM COVERAGE – CASES and SPECIAL LAWS young girl. She sat at the witness stand four times, yet she survived the rigors of testifying, unwavering in her claim that she was raped. 18 Accused-appellant claims he was coerced and tortured by Pasay policemen to admit the rape, showing to the trial court bodily signs of said abuse. 19 Aside from his self-serving assertion, the truth of such allegation was not proven. Besides, this allegedly coerced admission of guilt cannot affect the prosecution's case which has been established by other positive evidence pointing to his guilt beyond reasonable doubt. Finding no reversible error in the decision subject of this appeal, we affirm the same in its entirety. WHEREFORE, the decision is AFFIRMED. Accusedappellant is sentenced to suffer the penalty of reclusion perpetua and to indemnify the victim, Diana Rose Castro in the amount of P30,000.00 in line with prevailing jurisprudence. Costs against the appellant. SO ORDERED.

CRUZ, J.:p Asked how she felt while she was being raped, the complainant replied: "Masarap." The trial judge believed her but just the same convicted the accused-appellant. The case is now before us. The complainant is Glenda Aringo, who was sixteen years old at the time of the alleged offense. She is the neighbor of Cesar Atento, the herein accused-appellant, a 39-year old store-keeper with a wife and eight children. Her claim is that Atento raped her five separate times, the first sometime in April 1986. She says that on that first occasion she went to Atento's store in Barangay 18, Minoro, Cabagñan, in Legazpi City to buy bread. Her parents were at work and Atento was alone in his house except for his three-year old daughter. Glenda claims Atento cajoled her into coming inside the house and then took her downstairs, where he succeeded in deflowering her. She says her maiden head ached and bled. Afterwards, he gave her P5.00. Glenda speaks of four other times when he raped her. It was later (presumably because her hymen had healed) that she felt tickled by his manhood and described the act of coitus as "masarap." 1 The girl says she never told anybody about Atento's attacks on her because he had threatened her life. But she could not conceal her condition for long and after five months had to admit she was pregnant. She revealed the accusedappellant as the father of the foetus in her womb. The child was delivered on December 27, 1987, and christened Hubert Buendia Aringo.

PEOPLE v. ATENTO Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 84728 April 26, 1991 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CESAR ATENTO accused-appellant. The Solicitor General for plaintiff-appellee. Public Attorney's Office for accused-appellant.

Atento denies the charge against him, saying it was pure harassment concocted by a relative of the girl who wanted to eject him from the land where his house was erected. Insisting that Glenda was a girl of loose morals, he says he had twice seen her in sexual congress with a man and that she had once offered her body to his thirteen year old son for a fee of P5.00. Glenda's description of the act of coitus as pleasurable would have destroyed the whole case against Atento but for one singular significant fact. The girl is a mental retardate. Ascendo Belmonte, a clinical psychologist at Don Susano Rodriguez Memorial Mental Hospital, subjected the girl to a series of intelligence tests, to wit, the Wecslar adult intelligence scale, revised beta exam, standard progressive matrices, and the Bender visual motor gestalt test, with the following findings: Glenda B. Aringo, who was born on June 18, 1970, is INTER ALIA with an intellectual capacity between the ages of nine

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 74 3RD EXAM COVERAGE – CASES and SPECIAL LAWS (9) and twelve (12) years. As such, her intellectual functioning is within the mentally defective level. Her fund of information is inadequate, her judgment is unsound, her thinking and working capacity is poor. She is unable to distinguish essential from non-essential details. Her vocabulary is limited. Her capacity for her perceptual processes is unsatisfactory. She lacks the capacity for abstracting and synthesizing concepts. However, in the midst of all these, Glenda was found capable of telling the truth. 2 Benita Aringo, Glenda's mother, testified that her daughter reached only third grade and did not like to continue studying, preferring to play with children younger than she, even when she was already pregnant. After delivering her child, she would often leave its care to Benita, and play marbles with the children rather than feed her baby. Another relative, Caridad Aringo, testified that Glenda had the mentality of a 12-year old and was fond of rubber bands and playing cards.

It is not necessary under Article 335 for the culprit to actually deprive the victim of reason prior to the rape, as by the administration of drugs or by some other illicit method. Ms provision also applies to cases where the woman has been earlier deprived of reason by other causes, as when she is congenitally retarded or has previously suffered some traumatic experience that has lowered her mental capacity. In such situations, the victim is in the same category as a child below 12 years of age for lacking the necessary will to object to the attacker's lewd intentions. In People v. Palma, 4 where a 14-year old mental retardate was another rape victim, we held that: The crime committed by Palma is rape under Article 335(2) of the Revised Penal Code. Copulation with a woman known to be mentally incapable of giving even an imperfect consent is rape. Physical intimidation need not precede sexual intercourse considering the age, mental abnormality and deficiency of the complainant.

The Court finds this to be the reason why, while a rape victim with normal intelligence, would have said that the attack on her caused her much physical pain and mental agony, Glenda naively declared that Atento's sexual organ in hers gave her much pleasure.

So also in People v. Sunga, 5 where the offended party was 23 years old with the mentality of a child about 8 to 9 years of age:

It is worth observing that Glenda's child was born on December, nine months after her rape in April, and that, according to the trial judge, there was a remarkable resemblance between Atento and the boy.

Because of her mental condition, complainant is incapable of giving consent to the sexual intercourse. She is in the same class as a woman deprived of reason or otherwise unconscious. Appellant therefore committed rape in having sexual intercourse with her.

Article 335 of the Revised Penal Code provides: Art. 335. When and how rape committed. –– Rape is committed by having carnal knowledge of a woman under any of the following circ*mstances: 1. By using force or intimidation; 2. When the woman is deprived of reason or otherwise unconscious and 3. When the woman is under twelve years of age, even though neither of the circ*mstances mentioned in the two next preceding paragraphs shall be present. xxx xxx xxx It has not been clearly established that Atento employed force or threat against Glenda to make her submit to his lust. Nevertheless, there is no question that Atento is guilty of rape upon Glenda under paragraph 2, because the girl was deprived of reason. Alternatively, he is liable under paragraph 3, because his victim had the mentality of a girl less than twelve years old at the time she was raped. In People v. Atutubo, 3 this Court held:

In his authoritative work on Criminal Law, Chief Justice Aquino explains Paragraph 2 as follows. 6 . . . in the rape of a woman deprived of reason or unconscious, the victim has no will. The absence of will determines the existence of the rape. Such lack of will may exist not only when the victim is unconscious or totally deprived of reason, but also when she is suffering some mental deficiency impairing her reason or free will. In that case, it is not necessary that she should offer real opposition or constant resistance to the sexual intercourse. Carnal knowledge of a woman so weak in intellect as to be incapable of legal consent constitutes rape. Where the offended woman was feeble-minded, sickly and almost an idiot, sexual intercourse with her is rape. Her failure to offer resistance to the act did not mean consent for she was incapable of giving any rational consent. The deprivation of reason need not be complete. Mental abnormality or deficiency is enough. Cohabitation with a feeble-minded, idiotic woman is rape. The trial court, however, held Atento guilty of rape under Paragraph 3, citing People v. Asturias, 7 where it was held: Assuming that complainant Vilma Ortega voluntarily submitted herself to the bestial desire of appellant still the crime committed is rape under paragraph 3 of Article 335 of the Revised Penal Code. This is so even if the

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 75 3RD EXAM COVERAGE – CASES and SPECIAL LAWS circ*mstances of force and intimidation, or of the victim being deprived of reason or otherwise unconscious are absent. The victim has the mentality of a child below seven years old. If sexual intercourse with a victim under twelve years of age is rape, then it should follow that carnal knowledge with a seventeen-year old girl whose mental capacity is that of a seven year old child would constitute rape. In coming to his conclusion, Judge Gregorio A. Consulta declared: . . . Given the low I.Q. of Glenda, it is impossible to believe that she could have fabricated her charges against the accused. She lacks the gift of articulation and inventiveness. She could not even explain with ease the meaning of rape, a term which she learned in the community. Even with intensive coaching, assuming that happened, on the witness stand where she was alone, it would show with her testimony falling into irretrievable pieces. But that did not happen. She proceeded, though with much difficulty, with childlike innocence. A smart and perspicacious person would hesitate to describe to the Court her sexual experiences as "tickling" and "masarap" for that would only elicit disdain and laughter. Only a simple-minded artless child would do it. And Glenda falls within the level of a 9-12 year old child. And Glenda was telling the truth! There is no doubt that when she submitted herself to the accused later for subsequent intercourses, she was dominated more by fear and ignorance than by reason. In any event, whether under paragraph 2 or under paragraph 3 of Article 335 of the Revised Penal Code, the accusedappellant deserves to be punished for the rape of Glenda Azingo. The trial court found the accused-appellant guilty of rape as charged, meaning that he raped the victim five times, but we do not agree that the other four rapes have been conclusively proven. Otherwise, he would have to be punished for five separate rapes. Except for this and the civil indemnity, which is increased from P20,000.00 to P30,000.00, we agree with the sentence imposing on him the penalty of reclusion perpetua, the obligation to acknowledge and support Hubert Buendia Aringo as his own spurious child, and to pay the costs. WHEREFORE, the appealed judgment is AFFIRMED as above modified. It is so ordered. PEOPLE v. CAMPUHAN Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 129433

March 30, 2000

PEOPLE OF THE PHILIPPINES, plaintiff, vs. PRIMO CAMPUHAN Y BELLO accused. BELLOSILLO, J.: On 3 April 1990 this Court in People v. Orita 1 finally did away with frustrated rape 2 and allowed only attempted rape and consummated rape to remain in our statute books. The instant case lurks at the threshold of another emasculation of the stages of execution of rape by considering almost every attempt at sexual violation of a woman as consummated rape, that is, if the contrary view were to be adopted. The danger there is that that concept may send the wrong signal to every roaming lothario, whenever the opportunity bares itself, to better intrude with climactic gusto, sans any restraint, since after all any attempted fornication would be considered consummated rape and punished as such. A mere strafing of the citadel of passion would then be considered a deadly fait accompli, which is absurd. In Orita we held that rape was consummated from the moment the offender had carnal knowledge of the victim since by it he attained his objective. All the elements of the offense were already present and nothing more was left for the offender to do, having performed all the acts necessary to produce the crime and accomplish it. We ruled then that perfect penetration was not essential; any penetration of the female organ by the male organ, however slight, was sufficient. The Court further held that entry of the labia or lips of the female organ, even without rupture of the hymen or laceration of the vagin*, was sufficient to warrant conviction for consummated rape. We distinguished consummated rape from attempted rape where there was no penetration of the female organ because not all acts of execution were performed as the offender merely commenced the commission of a felony directly by overt acts. 3 The inference that may be derived therefrom is that complete or full penetration of the vagin* is not required for rape to be consummated. Any penetration, in whatever degree, is enough to raise the crime to its consummated stage. But the Court in Orita clarified the concept of penetration in rape by requiring entry into the labia or lips of the female organ, even if there be no rupture of the hymen or laceration of the vagin*, to warrant a conviction for consummated rape. While the entry of the penis into the lips of the female organ was considered synonymous with mere touching of the external genitalia, e.g., labia majora, labia minora, etc.,4 the crucial doctrinal bottom line is that touching must be inextricably viewed in light of, in relation to, or as an essential part of, the process of penile penetration, and not just mere touching in the ordinary sense. In other words, the touching must be tacked to the penetration itself. The importance of the requirement of penetration, however slight, cannot be gainsaid because where entry into the labia or the lips of the female genitalia has not been established, the crime committed amounts merely to attempted rape.

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 76 3RD EXAM COVERAGE – CASES and SPECIAL LAWS Verily, this should be the indicium of the Court in determining whether rape has been committed either in its attempted or in its consummated stage; otherwise, no substantial distinction would exist between the two, despite the fact that penalty-wise, this distinction, threadbare as it may seem, irrevocably spells the difference between life and death for the accused — a reclusive life that is not even perpetua but only temporal on one hand, and the ultimate extermination of life on the other. And, arguing on another level, if the case at bar cannot be deemed attempted but consummated rape, what then would constitute attempted rape? Must our field of choice be thus limited only to consummated rape and acts of lasciviousness since attempted rape would no longer be possible in light of the view of those who disagree with this ponencia? On 27 May 1997 Primo Campuhan y Bello was found guilty of statutory rape and sentenced by the court a quo to the extreme penalty of death, 5 hence this case before us on automatic review under Art. 335 of the Revised Penal Code as amended by RA 7659. 6 As may be culled from the evidence on record, on 25 April 1996, at around 4 o'clock in the afternoon, Ma. Corazon P. Pamintuan, mother of four (4)-year old Crysthel Pamintuan, went down from the second floor of their house to prepare Milo chocolate drinks for her two (2) children. At the ground floor she met Primo Campuhan who was then busy filling small plastic bags with water to be frozen into ice in the freezer located at the second floor. Primo was a helper of Conrado Plata Jr., brother of Corazon. As Corazon was busy preparing the drinks, she heard one of her daughters cry, "Ayo'ko, ayo'ko!" 7 prompting Corazon to rush upstairs. Thereupon, she saw Primo Campuhan inside her children's room kneeling before Crysthel whose pajamas or "jogging pants" and panty were already removed, while his short pants were down to his knees. According to Corazon, Primo was forcing his penis into Crysthel's vagin*. Horrified, she cursed the accused, "P - t ng ina mo, anak ko iyan!" and boxed him several times. He evaded her blows and pulled up his pants. He pushed Corazon aside when she tried to block his path. Corazon then ran out and shouted for help thus prompting her brother, a cousin and an uncle who were living within their compound, to chase the accused. 8Seconds later, Primo was apprehended by those who answered Corazon's call for help. They held the accused at the back of their compound until they were advised by their neighbors to call the barangay officials instead of detaining him for his misdeed. Physical examination of the victim yielded negative results. No evident sign of extra-genital physical injury was noted by the medico-legal officer on Crysthel's body as her hymen was intact and its orifice was only 0.5 cm. in diameter. Primo Campuhan had only himself for a witness in his defense. He maintained his innocence and assailed the charge as a mere scheme of Crysthel's mother who allegedly harbored ill will against him for his refusal to run an errand for her. 9 He asserted that in truth Crysthel was in a playing

mood and wanted to ride on his back when she suddenly pulled him down causing both of them to fall down on the floor. It was in this fallen position that Corazon chanced upon them and became hysterical. Corazon slapped him and accused him of raping her child. He got mad but restrained himself from hitting back when he realized she was a woman. Corazon called for help from her brothers to stop him as he ran down from the second floor. Vicente, Corazon's brother, timely responded to her call for help and accosted Primo. Vicente punched him and threatened to kill him. Upon hearing the threat, Primo immediately ran towards the house of Conrado Plata but Vicente followed him there. Primo pleaded for a chance to explain as he reasoned out that the accusation was not true. But Vicente kicked him instead. When Primo saw Vicente holding a piece of lead pipe, Primo raised his hands and turned his back to avoid the blow. At this moment, the relatives and neighbors of Vicente prevailed upon him to take Primo to the barangay hall instead, and not to maul or possibly kill him. Although Primo Campuhan insisted on his innocence, the trial court on 27 May 1997 found him guilty of statutory rape, sentenced him to the extreme penalty of death, and ordered him to pay his victim P50,000.00 for moral damages, P25,000.00 for exemplary damages, and the costs. The accused Primo Campuhan seriously assails the credibility of Ma. Corazon Pamintuan. He argues that her narration should not be given any weight or credence since it was punctured with implausible statements and improbabilities so inconsistent with human nature and experience. He claims that it was truly inconceivable for him to commit the rape considering that Crysthel's younger sister was also in the room playing while Corazon was just downstairs preparing Milo drinks for her daughters. Their presence alone as possible eyewitnesses and the fact that the episode happened within the family compound where a call for assistance could easily be heard and responded to, would have been enough to deter him from committing the crime. Besides, the door of the room was wide open for anybody to see what could be taking place inside. Primo insists that it was almost inconceivable that Corazon could give such a vivid description of the alleged sexual contact when from where she stood she could not have possibly seen the alleged touching of the sexual organs of the accused and his victim. He asserts that the absence of any external signs of physical injuries or of penetration of Crysthel's private parts more than bolsters his innocence. In convicting the accused, the trial court relied quite heavily on the testimony of Corazon that she saw Primo with his short pants down to his knees kneeling before Crysthel whose pajamas and panty were supposedly "already removed" and that Primo was "forcing his penis into Crysthel's vagin*." The gravamen of the offense of statutory rape is carnal knowledge of a woman below twelve (12), as provided in Art. 335, par. (3), of the Revised Penal Code. Crysthel was only four (4) years old when sexually molested,

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 77 3RD EXAM COVERAGE – CASES and SPECIAL LAWS thus raising the penalty, from reclusion perpetua to death, to the single indivisible penalty of death under RA 7659, Sec. 11, the offended party being below seven (7) years old. We have said often enough that in concluding that carnal knowledge took place, full penetration of the vagin*l orifice is not an essential ingredient, nor is the rupture of the hymen necessary; the mere touching of the external genitalia by the penis capable of consummating the sexual act is sufficient to constitute carnal knowledge. 10 But the act of touching should be understood here as inherently part of the entry of the penis into the labias of the female organ and not mere touching alone of the mons pubis or the pudendum. In People v. De la Peña 11 we clarified that the decisions finding a case for rape even if the attacker's penis merely touched the external portions of the female genitalia were made in the context of the presence or existence of an erect penis capable of full penetration. Where the accused failed to achieve an erection, had a limp or flaccid penis, or an oversized penis which could not fit into the victim's vagin*, the Court nonetheless held that rape was consummated on the basis of the victim's testimony that the accused repeatedly tried, but in vain, to insert his penis into her vagin* and in all likelihood reached the labia of her pudendum as the victim felt his organ on the lips of her vulva, 12 or that the penis of the accused touched the middle part of her vagin*. 13 Thus, touching when applied to rape cases does not simply mean mere epidermal contact, stroking or grazing of organs, a slight brush or a scrape of the penis on the external layer of the victim's vagin*, or the mons pubis, as in this case. There must be sufficient and convincing proof that the penis indeed touched the labias or slid into the female organ, and not merely stroked the external surface thereof, for an accused to be convicted of consummated rape. 14 As the labias, which are required to be "touched" by the penis, are by their natural situs or location beneath the mons pubis or the vagin*l surface, to touch them with the penis is to attain some degree of penetration beneath the surface, hence, the conclusion that touching the labia majora or the labia minora of the pudendum constitutes consummated rape. The pudendum or vulva is the collective term for the female genital organs that are visible in the perineal area,e.g., mons pubis, labia majora, labia minora, the hymen, the cl*tor*s, the vagin*l orifice, etc. The mons pubis is the rounded eminence that becomes hairy after puberty, and is instantly visible within the surface. The next layer is the labia majora or the outer lips of the female organ composed of the outer convex surface and the inner surface. The skin of the outer convex surface is covered with hair follicles and is pigmented, while the inner surface is a thin skin which does not have any hair but has many sebaceous glands. Directly beneath the labia majora is the labia minora. 15 Jurisprudence dictates that the labia majora must be entered for rape to be consummated, 16 and not merely for the penis to stroke the surface of the female organ. Thus, a grazing of the surface of the female organ or touching the mons pubis of the pudendum is not sufficient to constitute consummated rape. Absent any showing of the slightest penetration of the female organ, i.e., touching of either labia of the pudendum by the

penis, there can be no consummated rape; at most, it can only be attempted rape, if not acts of lasciviousness. Judicial depiction of consummated rape has not been confined to the oft-quoted "touching of the female organ,"17 but has also progressed into being described as "the introduction of the male organ into the labia of the pudendum," 18 or "the bombardment of the drawbridge." 19 But, to our mild, the case at bar merely constitutes a "shelling of the castle of org*smic potency," or as earlier stated, a "strafing of the citadel of passion. A review of the records clearly discloses that the prosecution utterly failed to discharge its onus of proving that Primo's penis was able to penetrate Crysthel's vagin* however slight. Even if we grant arguendo that Corazon witnessed Primo in the act of sexually molesting her daughter, we seriously doubt the veracity of her claim that she saw the inter-genital contact between Primo and Crysthel. When asked what she saw upon entering her children's room Corazon plunged into saying that she saw Primo poking his penis on the vagin* of Crysthel without explaining her relative position to them as to enable her to see clearly and sufficiently, in automotive lingo, the contact point. It should be recalled that when Corazon chanced upon Primo and Crysthel, the former was allegedly in a kneeling position, which Corazon described thus: Q: How was Primo holding your daughter? A: (The witness is demonstrating in such a way that the chest of the accused is pinning down the victim, while his right hand is holding his penis and his left hand is spreading the legs of the victim). It can reasonably be drawn from the foregoing narration that Primo's kneeling position rendered an unbridled observation impossible. Not even a vantage point from the side of the accused and the victim would have provided Corazon an unobstructed view of Primo's penis supposedly reaching Crysthel's external genitalia, i.e., labia majora, labia minora, hymen, cl*tor*s, etc., since the legs and arms of Primo would have hidden his movements from Corazon's sight, not to discount the fact that Primo's right hand was allegedly holding his penis thereby blocking it from Corazon's view. It is the burden of the prosecution to establish how Corazon could have seen the sexual contact and to shove her account into the permissive sphere of credibility. It is not enough that she claims that she saw what was done to her daughter. It is required that her claim be properly demonstrated to inspire belief. The prosecution failed in this respect, thus we cannot conclude without any taint of serious doubt that inter-genital contact was at all achieved. To hold otherwise would be to resolve the doubt in favor of the prosecution but to run roughshod over the constitutional right of the accused to be presumed innocent. Corazon insists that Primo did not restrain himself from pursuing his wicked intention despite her timely appearance, thus giving her the opportunity to fully witness his beastly act.

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 78 3RD EXAM COVERAGE – CASES and SPECIAL LAWS We are not persuaded. It is inconsistent with man's instinct of self-preservation to remain where he is and persist in satisfying his lust even when he knows fully well that his dastardly acts have already been discovered or witnessed by no less than the mother of his victim. For, the normal behavior or reaction of Primo upon learning of Corazon's presence would have been to pull his pants up to avoid being caught literally with his pants down. The interval, although relatively short, provided more than enough opportunity for Primo not only to desist from but even to conceal his evil design. What appears to be the basis of the conviction of the accused was Crysthel's answer to the question of the court — Q: Did the penis of Primo touch your organ? A: Yes, sir. But when asked further whether his penis penetrated her organ, she readily said, "No." Thus — Q: But did his penis penetrate your organ? A: No, sir. 20 This testimony alone should dissipate the mist of confusion that enshrouds the question of whether rape in this case was consummated. It has foreclosed the possibility of Primo's penis penetrating her vagin*, however slight. Crysthel made a categorical statement denying penetration, 27 obviously induced by a question propounded to her who could not have been aware of the finer distinctions between touching and penetration. Consequently, it is improper and unfair to attach to this reply of a four (4)-year old child, whose vocabulary is yet as underdeveloped as her sex and whose language is bereft of worldly sophistication, an adult interpretation that because the penis of the accused touched her organ there was sexual entry. Nor can it be deduced that in trying to penetrate the victim's organ the penis of the accused touched the middle portion of her vagin* and entered the labia of her pudendum as the prosecution failed to establish sufficiently that Primo made efforts to penetrate Crysthel. 22Corazon did not say, nay, not even hint that Primo's penis was erect or that he responded with an erection. 23 On the contrary, Corazon even narrated that Primo had to hold his penis with his right hand, thus showing that he had yet to attain an erection to be able to penetrate his victim. Antithetically, the possibility of Primo's penis having breached Crysthel's vagin* is belied by the child's own assertion that she resisted Primo's advances by putting her legs close together; 24 consequently, she did not feel any intense pain but just felt "not happy" about what Primo did to her. 25 Thus, she only shouted "Ayo'ko, ayo'ko!" not "Aray ko, aray ko!" In cases where penetration was not fully established, the Court had anchored its conclusion that rape nevertheless was consummated on the victim's testimony

that she felt pain, or the medico-legal finding of discoloration in the inner lips of the vagin*, or the labia minora was already gaping with redness, or the hymenal tags were no longer visible. 26 None was shown in this case. Although a child's testimony must be received with due consideration on account of her tender age, the Court endeavors at the same time to harness only what in her story appears to be true, acutely aware of the equally guaranteed rights of the accused. Thus, we have to conclude that even on the basis of the testimony of Crysthel alone the accused cannot be held liable for consummated rape; worse, be sentenced to death.1âwphi1 Lastly, it is pertinent to mention the medico legal officer's finding in this case that there were no external signs of physical injuries on complaining witness' body to conclude from a medical perspective that penetration had taken place. As Dr. Aurea P. Villena explained, although the absence of complete penetration of the hymen does not negate the possibility of contact, she clarified that there was no medical basis to hold that there was sexual contact between the accused and the victim. 27 In cases of rape where there is a positive testimony and a medical certificate, both should in all respects complement each other; otherwise, to rely on the testimonial evidence alone, in utter disregard of the manifest variance in the medical certificate, would be productive of unwarranted or even mischievous results. It is necessary to carefully ascertain whether the penis of the accused in reality entered the labial threshold of the female organ to accurately conclude that rape was consummated. Failing in this, the thin line that separates attempted rape from consummated rape will significantly disappear. Under Art. 6, in relation to Art. 335, of the Revised Penal Code, rape is attempted when the offender commences the commission of rape directly by overt acts, and does not perform all the acts of execution which should produce the crime of rape by reason of some cause or accident other than his own spontaneous desistance. All the elements of attempted rape — and only of attempted rape — are present in the instant case, hence, the accused should be punished only for it. The penalty for attempted rape is two (2) degrees lower than the imposable penalty of death for the offense charged, which is statutory rape of a minor below seven (7) years. Two (2) degrees lower is reclusion temporal, the range of which is twelve (12) years and one (1) day to twenty (20) years. Applying the Indeterminate Sentence Law, and in the absence of any mitigating or aggravating circ*mstance, the maximum of the penalty to be imposed upon the accused shall be taken from the medium period of reclusion temporal, the range of which is fourteen (14) years, eight (8) months and (1) day to seventeen (17) years and four (4) months, while the minimum shall be taken from the penalty next lower in degree, which is prision mayor, the range of which is from six (6) years and one (1) day to twelve (12) years, in any of its periods.

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 79 3RD EXAM COVERAGE – CASES and SPECIAL LAWS WHEREFORE, the Decision of the court a quo finding accused PRIMO "SONNY" CAMPUHAN Y BELLO guilty of statutory rape and sentencing him to death and to pay damages is MODIFIED. He is instead found guilty of ATTEMPTED RAPE and sentenced to an indeterminate prison term of eight (8) years four (4) months and ten (10) days of prision mayor medium as minimum, to fourteen (14) years ten (10) months and twenty (20) days ofreclusion temporal medium as maximum. Costs de oficio. SO ORDERED.1âwphi1.nêt BULLYING RA 10627 Republic of the Philippines Congress of the Philippines Metro Manila Fifteenth Congress Third Regular Session Begun and held in Metro Manila, on Monday, the twenty-third day of July, two thousand twelve. [REPUBLIC ACT NO. 10627] AN ACT REQUIRING ALL ELEMENTARY AND SECONDARY SCHOOLS TO ADOPT POLICIES TO PREVENT AND ADDRESS THE ACTS OF BULLYING IN THEIR INSTITUTIONS Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled: SECTION 1. Short Title. – This Act shall be known as the “Anti-Bullying Act of 2013”.

c. Any slanderous statement or accusation that causes the victim undue emotional distress like directing foul language or profanity at the target, name-calling, tormenting and commenting negatively on victim’s looks, clothes and body; and d. Cyber-bullying or any bullying done through the use of technology or any electronic means. SEC. 3. Adoption of Anti-Bullying Policies. – All elementary and secondary schools are hereby directed to adopt policies to address the existence of bullying in their respective institutions. Such policies shall be regularly updated and, at a minimum, shall include provisions which: (a) Prohibit the following acts: (1) Bullying on school grounds; property immediately adjacent to school grounds; at school-sponsored or schoolrelated activities, functions or programs whether on or off school grounds; at school bus stops; on school buses or other vehicles owned, leased or used by a school; or through the use of technology or an electronic device owned, leased or used by a school; (2) Bullying at a location, activity, function or program that is not school-related and through the use of technology or an electronic device that is not owned, leased or used by a school if the act or acts in question create a hostile environment at school for the victim, infringe on the rights of the victim at school, or materially and substantially disrupt the education process or the orderly operation of a school; and (3) Retaliation against a person who reports bullying, who provides information during an investigation of bullying, or who is a witness to or has reliable information about bullying;

SEC. 2. Acts of Bullying. – For purposes of this Act, “bullying” shall refer to any severe or repeated use by one or more students of a written, verbal or electronic expression, or a physical act or gesture, or any combination thereof, directed at another student that has the effect of actually causing or placing the latter in reasonable fear of physical or emotional harm or damage to his property; creating a hostile environment at school for the other student; infringing on the rights of the other student at school; or materially and substantially disrupting the education process or the orderly operation of a school; such as, but not limited to, the following:

(b) Identify the range of disciplinary administrative actions that may be taken against a perpetrator for bullying or retaliation which shall be commensurate with the nature and gravity of the offense: Provided, That, in addition to the disciplinary sanctions imposed upon a perpetrator of bullying or retaliation, he/she shall also be required to undergo a rehabilitation program which shall be administered by the institution concerned. The parents of the said perpetrator shall be encouraged by the said institution to join the rehabilitation program;

a. Any unwanted physical contact between the bully and the victim like punching, pushing, shoving, kicking, slapping, tickling, headlocks, inflicting school pranks, teasing, fighting and the use of available objects as weapons;

(1) Reporting acts of bullying or retaliation;

b. Any act that causes damage to a victim’s psyche and/or emotional well-being;

(3) Restoring a sense of safety for a victim and assessing the student’s need for protection;

(c) Establish clear procedures and strategies for:

(2) Responding promptly to and investigating reports of bullying or retaliation;

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 80 3RD EXAM COVERAGE – CASES and SPECIAL LAWS (4) Protecting from bullying or retaliation of a person who reports acts of bullying, provides information during an investigation of bullying, or is witness to or has reliable information about an act of bullying; and (5) Providing counseling or referral to appropriate services for perpetrators, victims and appropriate family members of said students; (d) Enable students to anonymously report bullying or retaliation: Provided, however, That no disciplinary administrative action shall be taken against a perpetrator solely on the basis of an anonymous report;

both. Upon receipt of such a report, the school principal or the designated school officer or person shall promptly investigate. If it is determined that bullying or retaliation has occurred, the school principal or the designated school officer or person shall: (a) Notify the law enforcement agency if the school principal or designee believes that criminal charges under the Revised Penal Code may be pursued against the perpetrator; (b) Take appropriate disciplinary administrative action; (c) Notify the parents or guardians of the perpetrator; and

(e) Subject a student who knowingly makes a false accusation of bullying to disciplinary administrative action; (f) Educate students on the dynamics of bullying, the antibullying policies of the school as well as the mechanisms of such school for the anonymous reporting of acts of bullying or retaliation; (g) Educate parents and guardians about the dynamics of bullying, the anti-bullying policies of the school and how parents and guardians can provide support and reinforce such policies at home; and (h) Maintain a public record of relevant information and statistics on acts of bullying or retaliation in school: Provided, That the names of students who committed acts of bullying or retaliation shall be strictly confidential and only made available to the school administration, teachers directly responsible for the said students and parents or guardians of students who are or have been victims of acts of bullying or retaliation. All elementary and secondary schools shall provide students and their parents or guardians a copy of the anti-bullying policies being adopted by the school. Such policies shall likewise be included in the school’s student and/or employee handbook and shall be conspicuously posted on the school walls and website, if there is any. The Department of Education (DepED) shall include in its training programs, courses or activities which shall provide opportunities for school administrators, teachers and other employees to develop their knowledge and skills in preventing or responding to any bullying act. SEC. 4. Mechanisms to Address Bullying. – The school principal or any person who holds a comparable role shall be responsible for the implementation and oversight of policies intended to address bullying. Any member of the school administration, student, parent or volunteer shall immediately report any instance of bullying or act of retaliation witnessed, or that has come to one’s attention, to the school principal or school officer or person so designated by the principal to handle such issues, or

(d) Notify the parents or guardians of the victim regarding the action taken to prevent any further acts of bullying or retaliation. If an incident of bullying or retaliation involves students from more than one school, the school first informed of the bullying or retaliation shall promptly notify the appropriate administrator of the other school so that both may take appropriate action. SEC. 5. Reporting Requirement. – All schools shall inform their respective schools division superintendents in writing about the anti-bullying policies formulated within six (6) months from the effectivity of this Act. Such notification shall likewise be an administrative requirement prior to the operation of new schools. Beginning with the school year after the effectivity of this Act, and every first week of the start of the school year thereafter, schools shall submit a report to their respective schools division superintendents all relevant information and statistics on acts of bullying or retaliation. The schools division superintendents shall compile these data and report the same to the Secretary of the DepED who shall likewise formally transmit a comprehensive report to the Committee on Basic Education of both the House of Representatives and the Senate. SEC. 6. Sanction for Noncompliance. – In the rules and regulations to be implemented pursuant to this Act, the Secretary of the DepED shall prescribe the appropriate administrative sanctions on school administrators who shall fail to comply with the requirements under this Act. In addition thereto, erring private schools shall likewise suffer the penalty of suspension of their permits to operate. SEC. 7. Implementing Rules and Regulations. – Within ninety (90) days from the effectivity of this Act, the DepED shall promulgate the necessary rules and regulations to implement the provisions of this Act. SEC. 8. Separability Clause. – If, for any reason, any provision of this Act is declared to be unconstitutional or

CRIMINAL LAW 2 (Atty. Rene Rizza Bernardo-Mamburam) 81 3RD EXAM COVERAGE – CASES and SPECIAL LAWS invalid, the other sections or provisions hereof which are not affected thereby shall continue to be in full force or effect. SEC. 9. Repealing Clause. – All laws, decrees, orders, rules and regulations or parts thereof which are inconsistent with or contrary to the provisions of this Act are hereby repealed, amended or modified accordingly.

SEC. 10. Effectivity. – This Act shall take effect fifteen (15) days after its publication in at least two (2) national newspapers of general circulation. Approved: SEP 12 2013