G.R. No. 163866 July 29, 2005 ISIDRO OLIVAREZ, Petitioners, vs.

COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, Respondents. DECISION YNARES-SANTIAGO, J.: For review is the Court of Appeals decision in CA-G.R. CR No. 228601 which affirmed the judgment2 rendered by the Regional Trial Court of San Pedro, Laguna, Branch 93,3 in Crim. Case No. 0505-SPL finding petitioner Isidro Olivarez guilty of violating Section 5, Republic Act No. 7610;4 and its resolution denying reconsideration thereof.5 The case originated from a complaint filed by the offended party with the Municipal Trial Court of San Pedro, Laguna which was the basis upon which an information for violation of R.A. 7610 was filed against Isidro Olivarez, to wit: The undersigned 4th Assistant Provincial Prosecution (sic) of Laguna upon a sworn complaint filed by the private complainant, CRISTINA B. ELITIONG, hereby accuses ISIDRO OLIVAREZ of the crime of "VIOLATION OF RA 7610", committed as follows: That on or about July 20, 1997, in the Municipality of San Pedro, Province of Laguna, within the jurisdiction of this Honorable Court, said accused actuated by lewd design did then and there wilfully, unlawfully and feloniously by means of force and intimidation commit acts of lasciviousness on the person of one CRISTINA B. ELITIONG, by touching her breasts and kissing her lips, against her will, to her damage and prejudice. CONTRARY TO LAW.6 The established facts of this case are as follows: ... The offended party Cristina Elitiong was a 16-year old high school student who with her brothers were employed by the accused, 64-year old Isidro Olivarez, in the making of sampaguita garlands. For one year she had been reporting for work during weekends at the residence of the accused. Within the compound and at about three armslength from the main door of the house

was her workplace. At about 11:30 oclock in the morning of July 20, 1997, Cristina, her two brothers Macoy and Dodong, and one named Liezel were at their work when the accused who was near the main door called for her. She dutifully approached him. The accused asked her if she had told her mother that he gave her money, and when she said that she did not, he embraced her and held her breast. The workers were facing the street so that the two were not seen. He pulled her to the kitchen and, closing the kitchen door, kissed her on the lips. She pushed him away and went back to her station. Her brother Macoy saw her crying when she came out of the house. She did not say a word, but went to the faucet and washed her face. The offended party continued to finish the garlands she was working on, and waited until the afternoon for her wages. When she arrived at her home, she first told her mother that she no longer wished to go back. When pressed for a reason, she said basta po mama ayaw ko ng magtuhog. Finally, she told her mother what happened. Aurora Elitiong, the mother, accompanied the offended party to the San Vicente Barangay Hall on July 26 to report the incident and give a statement. Days later, Cristina gave another statement to the local police. In the defense version, the offended party and her brothers had slept overnight in the house of the accused. When Isidro woke up in the early morning to relieve himself, he saw the girl sleeping on the sofa. He admonished her to join her brothers in the basement. He went back to his room and slept until 8 A.M. Two hours later, at 10 A.M., he left for the Caltex Service Station which was only a five minute ride from his home by tricycle. His daughter Analee Olivarez was staying in another house in the compound and attended a morning mass. When she returned at 10:30 A.M., she no longer saw her father. Maritess Buen, the laundrywoman, who was washing clothes outside the kitchen, saw the accused earlier. By 10 A.M., when she entered the house, he already left. He returned by noontime. The accused testified that he was at the Caltex station for two and a half hours waiting for the shipment of flowers from Pampanga. The goods arrived at 12:15 P.M. He left shortly thereafter and

passed by the market before going home. He arrived at 12:30 P.M. The next several days were uneventful for him until his laundrywoman Maritess told him that there was a complaint against him at the barangay office. A meeting took place between him and the girls family in the presence of the barangay authorities. The girls mother was demanding P30,000 for the settlement of the case, but he refused to cave in and told a barangay official Jaime Ramos that he would rather see his accusers in court than give a centavo because he did not commit the crime.7 The trial court found Olivarez guilty of violating Section 5 of R.A. 7610 and sentenced him to suffer an indeterminate penalty of imprisonment from eight (8) years and one (1) day of prision mayor as minimum to seventeen (17) years, four (4) months and one (1) day of reclusion temporal as maximum, to indemnify the minor Cristina Elitiong in the amount of P15,000.00 as moral damages and to pay the costs. On appeal, the decision of the trial court8 was affirmed by the Court of Appeals. The motion for reconsideration9 filed by the accused was denied.10 Hence, this petition for review11 on the following grounds: I. The Honorable Court of Appeals committed grave abuse of discretion in not holding that the essential elements in Violation of Section 5, Article III of Republic Act 7610, which are age of the offended party and that she is an abused or exploited child as defined in the law, not having been alleged in the Information, petitioner/accused cannot be found guilty of said offense and must be acquitted. II. The Honorable Court of Appeals erred and committed grave abuse of discretion in holding that the Information charging petitioner/accused of Violation of Section 5, Republic Act 7610, but failing to allege the essential elements of said offense, had substantially complied with the requirements of due process for the accused. III. The Honorable Court of Appeals erred and gravely abused its discretion in not reversing the judgment of the trial court convicting the accused/petitioner and sentencing him to suffer the penalty of imprisonment for alleged Violation of Section 5, Republic Act 7610, which was not alleged in the Information.12

Petitioner alleges that his right to be informed of the nature and cause of the accusation against him was violated for failure to allege in the information the essential elements of the offense for which he is being charged. Section 5, Article III of R.A. 7610 states: SEC. 5. Child Prostitution and Other Sexual Abuse. Children, whether male or female, who for money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse. The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following: ... (b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to other sexual abuse: Provided, That when the victim is under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and Article 336 of Act No. 3815, as amended, the Revised Penal Code, for rape or lascivious conduct, as the case may be: Provided, That the penalty for lascivious conduct when the victim is under twelve (12) years of age shall be reclusion temporal in its medium period; ..." (Italics supplied) The elements of sexual abuse under Section 5, Article III of R.A. 7610 are as follows: 1. The accused commits the act of sexual intercourse or lascivious conduct. 2. The said act is performed with a child exploited in prostitution or subjected to other sexual abuse. 3. The child, whether male or female, is below 18 years of age.13 Section 32, Article XIII, of the Implementing Rules and Regulations of R.A. 7610 defines lascivious conduct as follows: [T]he intentional touching, either directly or through clothing,

of the genitalia, anus, groin, breast, inner thigh, or buttocks, or the introduction of any object into the genitalia, anus or mouth, of any person, whether of the same or opposite sex, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person, bestiality, masturbation, lascivious exhibition of the genitals or pubic area of a person.14 (Emphasis supplied) The first element obtains in this case. It was established beyond reasonable doubt that petitioner kissed Cristina and touched her breasts with lewd designs as inferred from the nature of the acts themselves and the environmental circumstances.15 The second element, i.e., that the act is performed with a child exploited in prostitution or subjected to other sexual abuse, is likewise present. As succinctly explained in People v. Larin:16 A child is deemed exploited in prostitution or subjected to other sexual abuse, when the child indulges in sexual intercourse or lascivious conduct (a) for money, profit, or any other consideration; or (b) under the coercion or influence of any adult, syndicate or group. ... It must be noted that the law covers not only a situation in which a child is abused for profit, but also one in which a child, through coercion or intimidation, engages in lascivious conduct. (Emphasis supplied) We reiterated this ruling in Amployo v. People:17 ... As we observed in People v. Larin, Section 5 of Rep. Act No. 7610 does not merely cover a situation of a child being abused for profit, but also one in which a child engages in any lascivious conduct through coercion or intimidation... Thus, a child is deemed subjected to other sexual abuse when the child indulges in lascivious conduct under the coercion or influence of any adult. In this case, Cristina was sexually abused because she was coerced or intimidated by petitioner to indulge in a lascivious conduct. Furthermore, it is inconsequential that the sexual abuse occurred only once. As expressly provided in Section 3 (b) of R.A. 7610, the abuse may be habitual or not. It must be observed that Article III of R.A. 7610 is captioned as "Child Prostitution and Other Sexual Abuse" because Congress really intended to cover a situation where the minor may have been

coerced or intimidated into lascivious conduct, not necessarily for money or profit. The law covers not only child prostitution but also other forms of sexual abuse. This is clear from the deliberations of the Senate: Senator Angara. I refer to line 9, who for money or profit. I would like to amend this, Mr. President, to cover a situation where the minor may have been coerced or intimidated into this lascivious conduct, not necessarily for money or profit, so that we can cover those situations and not leave loophole in this section. The proposal I have is something like this: WHO FOR MONEY, PROFIT, OR ANY OTHER CONSIDERATION OR DUE TO THE COERCION OR INFLUENCE OF ANY ADULT, SYNDICATE OR GROUP INDULGE, et cetera. The President Pro Tempore. I see. That would mean also changing the subtitle of Section 4. Will it no longer be child prostitution? Senator Angara. No, no. Not necessarily, Mr. President, because we are still talking of the child who is being misused for sexual purposes either for money or for consideration. What I am trying to cover is the other consideration. Because, here, it is limited only to the child being abused or misused for sexual purposes, only for money or profit. I am contending, Mr. President, that there may be situations where the child may not have been used for profit or ... The President Pro Tempore. So, it is no longer prostitution. Because the essence of prostitution is profit. Senator Angara. Well, the Gentleman is right. Maybe the heading ought to be expanded. But, still, the President will agree that that is a form or manner of child abuse. The President Pro Tempore. What does the Sponsor say? Will the Gentleman kindly restate the amendment? ANGARA AMENDMENT Senator Angara. The new section will read something like this, Mr. President: MINORS, WHETHER MALE OR FEMALE, WHO FOR

MONEY, PROFIT, OR ANY OTHER CONSIDERATION OR INFLUENCE OF ANY ADULT, SYNDICATE OR GROUP INDULGE IN SEXUAL INTERCOURSE, et cetera. Senator Lina. It is accepted, Mr. President. The President Pro Tempore. Is there any objection? [Silence] Hearing none, the amendment is approved. How about the title, Child Prostitution, shall we change that too? Senator Angara. Yes, Mr. President, to cover the expanded scope. The President Pro Tempore. Is that not what we would call probable child abuse? Senator Angara. Yes, Mr. President. The President Pro Tempore. Subject to rewording. Is there any objection? [Silence] Hearing none, the amendment is approved. x x x. (Italicization supplied)18 Petitioner makes much of the failure to allege in the information that Cristina was a child below 18 years of age at the time the offense was committed. He insists that the Court of Appeals mistakenly relied on the case of People v. Rosare19 because unlike in Rosare, he had no personal knowledge of Cristinas age, which he claims was not proven beyond reasonable doubt. In all criminal prosecutions, the accused is entitled to be informed of the nature and cause of the accusation against him.20 A complaint is sufficient if it states the name of the accused; the designation of the offense given by the statute; the acts or omissions complained of as constituting the offense; the name of the offended party; the approximate date of the commission of the offense; and the place where the offense was committed.21 The complaint or information shall state the designation of the offense given by the statute, aver the acts or omissions constituting the offense, and specify its qualifying and aggravating circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it.22 The acts or omissions complained of as constituting the offense and the qualifying and aggravating circumstances must be

stated in ordinary and concise language and not necessarily in the language used in the statute but in terms sufficient to enable a person of common understanding to know what offense is being charged as well as its qualifying and aggravating circumstances and for the court to pronounce judgment.23 In the present case, the Court of Appeals found the information to be sufficient. Relying on the principle laid down in People v. Rosare, it held: Before us is an information for violation of RA 7610 that, as in Rosare, fails to mention an indispensable element of the offense, the age of the offended party, but makes allusion to another document, the sworn complaint of the offended party, and declares it to be the basis upon which the information was filed. This instrument is the complaint filed by the offended party with the Municipal Trial Court of San Pedro, Laguna in which she stated that she was 16 years old at the time of the offense. It forms part of the initial records of the case and comes before the posting of bail and entry of the plea of not guilty before the RTC. It appears that after the charge was filed with the MTC, and as the preliminary investigation went underway, the accused filed a manifestation stating that he had filed a counter-affidavit to the charge and reserved the right to file a motion to quash the information if it was filed. The MTC found probable cause against him and elevated the records to the provincial prosecutor for filing of the information. A complaint is under the Rules one of the two charging instruments for the offense of which the accused was tried and convicted here. While the criminal action was instituted by the complaint of the offended party, the information signed only by the fiscal ushered in the formal trial process. But both are accusations in writing against the accused and serve the purpose of enabling him to take the necessary legal steps for his defense. What is important is that the information states that the accused is being charged of an offense under RA 7610 based on the complaint of the offended party, to which the accused had adequately responded. Under these conditions, the accused was fully apprised of the accusation against him. The purpose and objective of the constitutional mandate are discharged and satisfied. The accused may not be said to be taken by surprise by the failure of the information to state the age of the offended party, when he had received the initiatory complaint where he was told how old the

offended party was.24 We agree with the ruling of the Court of Appeals. In People v. Rosare, the information did not allege that the victim was a mental retardate which is an essential element of the crime of statutory rape. This Court however sustained the trial courts judgment of conviction holding that the resolution of the investigating prosecutor which formed the basis of the information, a copy of which is attached thereto, stated that the offended party is suffering from mental retardation. It ruled that there was substantial compliance with the mandate that an accused be informed of the nature of the charge against him. Thus: Appellant contends that he cannot be convicted of statutory rape because the fact that the victim was a mental retardate was never alleged in the information and, absent this element, the acts charged negate the commission of the offense for which he was convicted by the lower court. Pursuant to Section 8, Rule 112 of the Rules of Court, we have decided to motu proprio take cognizance of the resolution issued by the investigating prosecutor in I.S. No. 92-0197 dated June 2, 1992, which formed the basis of and a copy of which was attached to the information for rape filed against herein appellant. Therein, it is clearly stated that the offended party is suffering from mental retardation. We hold, therefore, that this should be deemed a substantial compliance with the constitutional mandate that an accused be informed of the nature of the charge against him. ...25 In People v. Villamor,26 the information failed to allege the age of the offended party but since a copy of the order issued by the investigating judge was attached in the record of the preliminary investigation clearly stating that the complainant was nine years old, it was held that there was substantial compliance with the mandate to inform the accused of the nature of the accusation. It was also declared that the defense cannot invoke the element of surprise as to deprive it of the opportunity to suitably prepare for the accuseds defense, thus: ... Furthermore, even if the information filed did not allege that the complainant was nine years old, there was substantial compliance with the constitutional mandate that an accused be informed of the nature of the charge against him when the Order issued by the investigating judge, a copy of which was attached in the record of

the preliminary investigation, clearly stated that the complainant was nine years old. Consequently, the defense cannot invoke the element of surprise as to deprive it of the opportunity to suitably prepare for the accuseds defense.27 In People v. Galido,28 the information for rape failed to allege the element of force or intimidation. The Court ruled that this omission is not fatal since the complaint specifically charged the accused with three counts of rape committed by means of force and intimidation. Thus: Appellant avers that because the Informations on which he was arraigned and convicted did not allege the element of force or intimidation, he was deprived of his constitutional right to be informed of the nature and cause of the accusation against him. He insists that such failure was a fatal defect that rendered the Informations void. As a rule, the accused cannot be convicted of an offense, unless it is clearly charged in the complaint or information. Otherwise, their constitutional right to be informed of the nature and cause of the accusation against them would be violated. In the present case, appellant correctly pointed out that the element of "force or intimidation" should have been expressly alleged in the Informations. This omission is not fatal, however, because the Complaint specifically accused him of three counts of rape committed by means of force and intimidation...29 The same ground was adopted in People v. Mendez30 which involved an information for rape that failed to allege force or intimidation. We ruled therein that it was not a fatal omission because it was stated in the complaint that accused Rosendo raped Virginita "by means of force." In People v. Torellos,31 the Court treated the information for rape which failed to allege force and intimidation as merely defective and that the deficiency was cured by the failure of the accused to assail the insufficiency of the allegations in the Information and by competent evidence presented during trial. Thus, while it is necessary to allege the essential elements of the crime in the information, the failure to do so is not an irremediable vice. When the complaint or the resolution by the public prosecutor

which contain the missing averments is attached to the information and form part of the records, the defect in the latter is effectively cured, and the accused cannot successfully invoke the defense that his right to be informed is violated. In the instant case, the missing averment in the information is supplied by the Complaint which reads in full: COMPLAINT The undersigned complainant, accuses ISIDRO OLIVAREZ, of the crime of VIOLATION OF RA 7610, committed as follows: That on or about 11:30 A.M. of July 20, 1997 at Brgy. San Vicente, San Pedro, Laguna, Philippines and within the jurisdiction of this Honorable Court the said accused with lewd design did then and there willfully, unlawfully and feloniously commit an act of lasciviousness against one CRISTINA ELITIONG Y BALDONO, 16 years old, by kissing and touching her private parts and embracing her against her will. CONTRARY TO LAW.32 Petitioner was furnished a copy of the Complaint which was mentioned in the information, hence he was adequately informed of the age of the complainant. The prosecution has also established the minority of the offended party through competent evidence. Cristina testified that she was 16 years old and a certification from the Office of the Local Registrar of San Pedro, Laguna was presented showing that she was born on October 17, 1980.33 The third element of sexual abuse is therefore present. The information merely states that petitioner was being charged for the crime of "violation of R.A. 7610" without citing the specific sections alleged to have been violated by petitioner. Nonetheless, we do not find this omission sufficient to invalidate the information. The character of the crime is not determined by the caption or preamble of the information nor from the specification of the provision of law alleged to have been violated, they may be conclusions of law, but by the recital of the ultimate facts and circumstances in the complaint or information.34 The sufficiency of an information is not negated by an incomplete or defective designation of the crime in the caption or other parts of the information but by the narration of facts and circumstances which

adequately depicts a crime and sufficiently apprise the accused of the nature and cause of the accusation against him. True, the information herein may not refer to specific section/s of R.A. 7610 alleged to have been violated by the petitioner, but it is all to evident that the body of the information contains an averment of the acts alleged to have been performed by petitioner which unmistakably refers to acts punishable under Section 5 of R.A. 7610. As to which section of R.A. 7610 is being violated by petitioner is inconsequential. What is determinative of the offense is the recital of the ultimate facts and circumstances in the complaint or information. The prosecution has proved beyond reasonable doubt that petitioner committed acts of sexual abuse against Cristina. The trial court found Cristinas testimony to be clear, candid, and straightforward.35 Her testimony, given in a categorical, straightforward, spontaneous and candid manner, is worthy of faith and belief.36 In the face of the accusations against him, petitioner could only interpose uncorroborated alibi and denial. Denial, like alibi, is an inherently weak defense and cannot prevail over the positive and categorical identification provided by eyewitnesses.37 Not only did Cristina identify the petitioner as her assailant but no ill-motive was adduced why she would impute against him so grave a charge. This Court will not interfere with the trial courts assessment of the credibility of witnesses, absent any indication that some material fact was overlooked or a grave abuse of discretion committed. None of the exceptions obtain in the instant case.38 In addition to moral damages, a fine in the amount of P15,000.00 should likewise be imposed pursuant to our ruling in Amployo v. People:39 It does not end there. In People v. Abadies, and with respect specifically to lascivious conduct amounting to child abuse under Section 5(b) of Rep. Act No. 7610, we imposed a fine of P30,000 for each count of lascivious conduct in addition to the award of moral damages on the justification that It will be noted that Section 5, Article II of Republic Act No. 7610 provides for the penalty of imprisonment. Nevertheless, Section 31(f), Article XII (Common Penal Provisions) thereof allows the imposition of a fine subject to the discretion of the court, provided

that the same is to be administered as a cash fund by the Department of Social Welfare and Development and disbursed for the rehabilitation of each child victim, or any immediate member of his family if the latter is the perpetrator of the offense. This provision is in accord with Article 39 of the Convention on the Rights of the Child, to which the Philippines became a party on August 21, 1990, which stresses the duty of states parties to ensure the physical and psychological recovery and social reintegration of abused and exploited children in an environment which fosters their self-respect and human dignity. With the case of Abadies as guidepost, we impose a fine of Fifteen Thousand Pesos (P15,000.00) on petitioner. WHEREFORE, the petition is DENIED. The decision of the Court of Appeals dated January 9, 2004 in CA-G.R. CR No. 22860 and its resolution dated June 4, 2004, are AFFIRMED with MODIFICATION. In addition to the award of P15,000.00 as moral damages, petitioner Isidro Olivarez is also ordered to pay a fine in the amount of P15,000.00.

G.R. No. 164733

September 21, 2007

MICHAEL JOHN Z. MALTO, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent. DECISION CORONA, J.: Whereas, mankind owes to the child the best it has to give. (Final preambular clause of the Declaration of the Rights of the Child) This is a petition for review1 of the decision2 dated July 30, 2004 of the Court of Appeals (CA) in CA-G.R. CR No. 25925 affirming with modification the decision3 of Branch 109 of the Regional Trial Court of Pasay City in Criminal Case No. 00-0691 which found petitioner Michael John Z. Malto guilty for violation of paragraph 3, Section 5(a), Article III of RA 7610,4 as amended.

Petitioner was originally charged in an information which read: The undersigned Assistant City Prosecutor accuses MICHAEL JOHN Z. MALTO of VIOLATION OF SECTION 5(b), ARTICLE III, REPUBLIC ACT 7610, AS AMENDED, committed as follows: That on or about and sometime during the month of November 1997 up to 1998, in Pasay City, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, Michael John. Z. Malto, a professor, did then and there willfully, unlawfully and feloniously induce and/or seduce his student at Assumption College, complainant, AAA, a minor of 17 years old, to indulge in sexual intercourse for several times with him as in fact said accused had carnal knowledge. Contrary to law.5 This was subsequently amended as follows: The undersigned Assistant City Prosecutor accuses MICHAEL JOHN Z. MALTO of VIOLATION OF SECTION 5(a), ARTICLE III, REPUBLIC ACT 7610, AS AMENDED, committed as follows: That on or about and sometime during the month of November 1997 up to 1998, in Pasay City, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, Michael John. Z. Malto, a professor, did then and there willfully, unlawfully and feloniously take advantage and exert influence, relationship and moral ascendancy and induce and/or seduce his student at Assumption College, complainant, AAA, a minor of 17 years old, to indulge in sexual intercourse and lascivious conduct for several times with him as in fact said accused has carnal knowledge. Contrary to law.6 Petitioner did not make a plea when arraigned; hence, the trial court entered for him a plea of "not guilty." After the mandatory pre-trial, trial on the merits proceeded. The prosecution established the following: At the time of the incident, private complainant AAA was 17 years old.7 She was a college student at the Assumption College in San

Lorenzo Village, Makati City. Petitioner, then 28, was her professor in her Philosophy II class in the first semester of the school year 1997 to 1998. On July 18, 1997, AAA was having lunch with her friends when petitioner joined their group. He told them to address him simply as "Mike." He handed them his organizer and asked them to list down their names and contact numbers. On October 3, 1997, while AAA and her friends were discussing the movie Kama Sutra, petitioner butted in and bragged that it was nothing compared to his collection of xxx-rated films. To the shock of AAAs group, he lectured on and demonstrated sexual acts he had already experienced. He then invited the group to view his collection. On October 10, 1997, petitioner reiterated his invitation to AAA and her friends to watch his collection of pornographic films. Afraid of offending petitioner, AAA and two of her friends went with him. They rode in his car and he brought them to the Anito Lodge on Harrison St. in Pasay City. They checked in at a "calesa room." Petitioner was disappointed when he found out there was neither a video cassette player (on which he could play his video tapes) nor an x-rated show on the closed-circuit television. He suggested that they just cuddle up together. AAA and her friends ignored him but he pulled each of them towards him to lie with him in bed. They resisted until he relented. AAA and her friends regretted having accepted petitioners invitation. For fear of embarrassment in case their classmates got wind of what happened, they agreed to keep things a secret. Meanwhile, petitioner apologized for his actuations. Thereafter, petitioner started to show AAA amorous attention. He called her on the phone and paged8 her romantic messages at least thrice a day. When semestral break came, his calls and messages became more frequent. Their conversation always started innocently but he had a way of veering the subject to sex. Young, naive and coming from a broken family, AAA was soon overwhelmed by petitioners persistence and slowly got attracted to him. He was the first person to court her. Soon, they had a "mutual understanding" and became sweethearts. When AAA secured her class card in Philosophy II at the start of

the second semester, petitioner told her that he gave her a final grade of "3." She protested, stating that her mid-term grade was "1.2." He gave her a grade of "1.5" when she promised not to disclose his intimate messages to her to anyone. He also cautioned her not to tell anyone about their affair as it could jeopardize his job. On November 19, 1997, at around 11:00 a.m., AAA agreed to have lunch with petitioner outside the premises of the college. Since she was not feeling well at that time, he asked her to lie down in the backseat of his car. She was surprised when he brought her to Queensland Lodge9 on Harrison St. in Pasay City. Once inside the motel room, he kissed her at the back and neck, touched her breasts and placed his hand inside her blouse. She resisted his advances but he was too strong for her. He stopped only when she got angry at him. On November 26, 1997, petitioner asked AAA to come with him so that they could talk in private. He again brought her to Queensland Lodge. As soon as they were inside the room, he took off his shirt, lay down in bed and told her, "halika na, dito na tayo mag-usap." She refused but he dragged her towards the bed, kissed her lips, neck and breasts and unsnapped her brassiere. She struggled to stop him but he overpowered her. He went on top of her, lowered her pants and touched her private part. He tried to penetrate her but she pushed him away forcefully and she sat up in bed. He hugged her tightly saying, "Sige na, AAA, pumayag ka na, I wont hurt you." She refused and said, "Mike, ayoko." He angrily stood up saying, "Fine, hindi na tayo mag-uusap. Dont come to the faculty room anymore. You know I need this and if you will not give in or give it to me, let us end this." She replied, "Mike, hindi pa ako ready and it was you who said it will be after my debut" on December 3, 1997. He insisted that there was no difference between having sex then and after her debut. He told her, "kung hindi ko makukuha ngayon, tapusin na natin ngayon." Pressured and afraid of his threat to end their relationship, she hesitantly replied "Fine." On hearing this, he quickly undressed while commenting "ibibigay mo rin pala, pinahirapan mo pa ako" and laughed. They had sexual intercourse. In July 1999, AAA ended her relationship with petitioner. She learned that he was either intimately involved with or was sexually harassing his students in Assumption College and in other

colleges where he taught. In particular, he was dismissed from the De La Salle University-Aguinaldo for having sexual relations with a student and sexually harassing three other students. His employment was also terminated by Assumption College for sexually harassing two of his students. It was then that AAA realized that she was actually abused by petitioner. Depressed and distressed, she confided all that happened between her and petitioner to her mother, BBB. On learning what her daughter underwent in the hands of petitioner, BBB filed an administrative complaint in Assumption College against him. She also lodged a complaint in the Office of the City Prosecutor of Pasay City which led to the filing of Criminal Case No. 00-0691. In his defense, petitioner proffered denial and alibi. He claimed that the alleged incidents on October 3, 1997 and October 10, 1997 did not happen. He spent October 3, 1997 with his colleagues Joseph Hipolito and AJ Lagaso while he was busy checking papers and computing grades on October 10, 1997. The last time he saw AAA during the first semester was when she submitted her final paper on October 18, 1997. On November 19, 1997, between 10:30 a.m. and 1:00 p.m., he sorted out conflicts of class schedules for the second semester at the Assumption College. On November 26, 1997, he was at St. Scholasticas College (where he was also teaching) preparing a faculty concert slated on December 12, 1997. At lunch time, he attended the birthday treat of a colleague, Evelyn Bancoro. On November 29, 1997, he attended AAAs 18th birthday party. That was the last time he saw her. According to petitioner, AAA became his sweetheart when she was already 19 years old and after he was dismissed from Assumption College. On December 27 and 28, 1998, they spent time together, shared their worries, problems and dreams and kissed each other. On January 3, 1999, he brought her to Queensland Lodge where they had sexual intercourse for the first time. It was repeated for at least 20 times from January 1999 until they broke up in July 1999, some of which were done at either his or her house when no one was around. The trial court found the evidence for the prosecution sufficient to

sustain petitioners conviction. On March 7, 2001, it rendered a decision finding petitioner guilty.10 The dispositive portion read: In view of the foregoing, the Court finds the accused Michael John Malto y Zarsadias guilty beyond reasonable doubt for violation of Article III, Section 5(a)[,] paragraph 3 of RA 7610[,] as amended and hereby sentences him to reclusion temporal in its medium period or an imprisonment of seventeen (17) years, four (4) months and one (1) day to twenty (20) years and to pay civil indemnity in the amount of Php 75,000.00 and moral and exemplary damages of Php 50,000.00 to minor complainant with subsidiary imprisonment in case of insolvency.11 Petitioner questioned the trial courts decision in the CA. In a decision dated July 30, 2004,12 the appellate court affirmed his conviction even if it found that his acts were not covered by paragraph (a) but by paragraph (b) of Section 5, Article III of RA 7610. It further observed that the trial court failed to fix the minimum term of indeterminate sentence imposed on him. It also ruled that the trial court erred in awarding P75,000 civil indemnity in favor of AAA as it was proper only in a conviction for rape committed under the circumstances under which the death penalty was authorized by law.13 Hence, the CA modified the decision of the trial court as follows: WHEREFORE, the appealed Decision of conviction is AFFIRMED, with the MODIFICATION that (1) appellant MICHAEL JOHN MALTO y ZARSADIAS is hereby sentenced to an indeterminate penalty of Eight (8) Years and One (1) Day of prision mayor as minimum, to Seventeen (17) Years, Four (4) Months and One (1) Day of reclusion temporal as maximum; and (2) the sum of P75,000.00 as civil indemnity is DELETED.14 Hence, this petition. Petitioner contends that the CA erred in sustaining his conviction although it found that he did not rape AAA. For him, he should have been acquitted since there was no rape. He also claims that he and AAA were sweethearts and their sexual intercourse was consensual. Petitioner is wrong. The Offense Stated in the Information Was Wrongly

Designated In all criminal prosecutions, the accused is entitled to be informed of the nature and cause of the accusation against him.15 Pursuant thereto, the complaint or information against him should be sufficient in form and substance. A complaint or information is sufficient if it states the name of the accused; the designation of the offense by the statute; the acts or omissions complained of as constituting the offense; the name of the offended party; the approximate date of the commission of the offense and the place where the offense was committed.16 The complaint or information shall state the designation of the offense given by the statute, aver the acts or omissions constituting the offense and specify its qualifying and aggravating circumstances.17 If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it.18 The acts or omissions constituting the offense and the qualifying and aggravating circumstances must be stated in ordinary and concise language and not necessarily in the language used in the statute but in terms sufficient to enable a person of common understanding to know what offense is being charged as well as its qualifying and aggravating circumstances and for the court to pronounce judgment.19 The designation of the offense in the information against petitioner was changed from "violation of Section 5(b), Article III" of RA 7610 to "violation of Section 5(a), Article III" thereof. Paragraphs (a) and (b) of Section 5, Article III of RA 7610 provide: Section 5. Child Prostitution and Other Sexual Abuse. - Children, whether male or female, who, for money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse. The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following: (a) Those who engage in or promote, facilitate or induce child prostitution which include, but are not limited to, the following: 1. Acting as a procurer of a child prostitute;

2. Inducing a person to be a client of a child prostitute by means of written or oral advertisements or other similar means; 3. Taking advantage of influence or relationship to procure a child as a prostitute; 4. Threatening or using violence towards a child to engage him as a prostitute; or 5. Giving monetary consideration, goods or other pecuniary benefit to a child with intent to engage such child in prostitution. (b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to other sexual abuse: Provided, That when the victim is under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and Article 336 of Act No. 3815, as amended, the Revised Penal Code, for rape or lascivious conduct, as the case may be: Provided, that the penalty for lascivious conduct when the victim is under twelve (12) years of age shall be reclusion temporal in its medium period; and xxx xxx x x x(emphasis supplied)

The elements of paragraph (a) are: 1. the accused engages in, promotes, facilitates or induces child prostitution; 2. the act is done through, but not limited to, the following means: a. acting as a procurer of a child prostitute; b. inducing a person to be a client of a child prostitute by means of written or oral advertisements or other similar means; c. taking advantage of influence or relationship to procure a child as a prostitute; d. threatening or using violence towards a child to engage him as a prostitute or e. giving monetary consideration, goods or other pecuniary benefit to a child with intent to engage such child in prostitution;

3. the child is exploited or intended to be exploited in prostitution and 4. the child, whether male or female, is below 18 years of age. On the other hand, the elements of paragraph (b) are: 1. the accused commits the act of sexual intercourse or lascivious conduct; 2. the act is performed with a child exploited in prostitution or subjected to other sexual abuse and 3. the child, whether male or female, is below 18 years of age. Paragraph (a) essentially punishes acts pertaining to or connected with child prostitution. It contemplates sexual abuse of a child exploited in prostitution. In other words, under paragraph (a), the child is abused primarily for profit. On the other hand, paragraph (b) punishes sexual intercourse or lascivious conduct not only with a child exploited in prostitution but also with a child subjected to other sexual abuse. It covers not only a situation where a child is abused for profit but also one in which a child, through coercion, intimidation or influence, engages in sexual intercourse or lascivious conduct.20 The information against petitioner did not allege anything pertaining to or connected with child prostitution. It did not aver that AAA was abused for profit. What it charged was that petitioner had carnal knowledge or committed sexual intercourse and lascivious conduct with AAA; AAA was induced and/or seduced by petitioner who was her professor to indulge in sexual intercourse and lascivious conduct and AAA was a 17-year old minor. These allegations support a charge for violation of paragraph (b), not paragraph (a), of Section 5, Article III, RA 7610. The Real Nature of the Offense is Determined by Facts Alleged in the Information, Not By the Designation The designation in the information of the specific statute violated is imperative to avoid surprise on the accused and to afford him the opportunity to prepare his defense accordingly. However, the failure to designate the offense by statute,21 or to mention the

specific provision penalizing the act,22 or an erroneous specification of the law violated23 does not vitiate the information if the facts alleged clearly recite the facts constituting the crime charged.24 What controls is not the title of the information or the designation of the offense but the actual facts recited in the information.25 In other words, it is the recital of facts of the commission of the offense, not the nomenclature of the offense, that determines the crime being charged in the information.26 The facts stated in the amended information against petitioner correctly made out a charge for violation of Section 5(b), Article III, RA 7610. Thus, even if the trial and appellate courts followed the wrong designation of the offense, petitioner could be convicted of the offense on the basis of the facts recited in the information and duly proven during trial. Petitioner violated Section 5(b), Article III of RA 7610, as amended The first element of Section 5(b), Article III of RA 7610 pertains to the act or acts committed by the accused. The second element refers to the state or condition of the offended party. The third element corresponds to the minority or age of the offended party. The first element was present in this case. Petitioner committed lascivious conduct against and had sexual intercourse with AAA in the following instances: (1) on November 19, 1997, when he kissed her at the back and neck, touched her breasts and placed his hand inside her blouse to gratify his lust; (2) on November 26, 1997, when, with lewd designs, he dragged her towards the bed of the motel room and forcibly kissed her on the lips, neck and breasts and (3) when he exerted moral influence on her and pressured her until she surrendered herself to him on November 26, 1997. His acts were covered by the definitions of sexual abuse and lascivious conduct under Section 2(g) and (h) of the Rules and Regulations on the Reporting and Investigation of Child Abuse Cases promulgated to implement the provisions of RA 7610, particularly on child abuse: (g) "Sexual abuse" includes the employment, use, persuasion, inducement, enticement or coercion of a child to engage in, or assist another person to engage in, sexual intercourse or lascivious conduct or the molestation, prostitution, or incest with children;

(h) "Lascivious conduct" means the intentional touching, either directly or through clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks, or the introduction of any object into the genitalia, anus or mouth, of any person, whether of the same or opposite sex, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person, bestiality, masturbation, lascivious exhibition of the genitals or public area of a person. (emphasis supplied) The second element was likewise present here. The following pronouncement in People v. Larin27 is significant: A child is deemed exploited in prostitution or subjected to other sexual abuse, when the child indulges in sexual intercourse or lascivious conduct (a) for money, profit, or any other consideration; or (b) under the coercion or influence of any adult, syndicate or group. (emphasis supplied) On November 19, 1997, due to the influence of petitioner, AAA indulged in lascivious acts with or allowed him to commit lascivious acts on her. This was repeated on November 26, 1997 on which date AAA also indulged in sexual intercourse with petitioner as a result of the latters influence and moral ascendancy. Thus, she was deemed to be a "child subjected to other sexual abuse" as the concept is defined in the opening paragraph of Section 5, Article III of RA 7610 and in Larin. The third element of the offense was also satisfied. Section 3 (a), Article I of RA 7610 provides: SECTION 3. Definition of Terms. (a) "Children" refers [to] persons below eighteen (18) years of age or those over but are unable to fully take care of themselves or protect themselves from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability or condition; (emphasis supplied) On November 19, 2007 and November 26, 2007, AAA was a child as she was below 18 years of age. She was therefore within the protective mantle of the law. Since all three elements of the crime were present, the conviction of petitioner was proper.

Violation of Section 5(b), Article III of RA 7610 and Rape are Separate and Distinct Crimes Petitioner was charged and convicted for violation of Section 5(b), Article III of RA 7610, not rape. The offense for which he was convicted is punished by a special law while rape is a felony under the Revised Penal Code.28 They have different elements.29 The two are separate and distinct crimes. Thus, petitioner can be held liable for violation of Section 5(b), Article III of RA 7610 despite a finding that he did not commit rape. Consent of the Child is Immaterial in Criminal Cases Involving Violation of Section 5, Article III of RA 7610 Petitioner claims that AAA welcomed his kisses and touches and consented to have sexual intercourse with him. They engaged in these acts out of mutual love and affection. But may the "sweetheart theory" be invoked in cases of child prostitution and other sexual abuse prosecuted under Section 5, Article III of RA 7610? No. The sweetheart theory applies in acts of lasciviousness and rape, felonies committed against or without the consent of the victim. It operates on the theory that the sexual act was consensual. It requires proof that the accused and the victim were lovers and that she consented to the sexual relations.30 For purposes of sexual intercourse and lascivious conduct in child abuse cases under RA 7610, the sweetheart defense is unacceptable. A child exploited in prostitution or subjected to other sexual abuse cannot validly give consent to sexual intercourse with another person. The language of the law is clear: it seeks to punish [t]hose who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to other sexual abuse. Unlike rape, therefore, consent is immaterial in cases involving violation of Section 5, Article III of RA 7610. The mere act of having sexual intercourse or committing lascivious conduct with a child who is exploited in prostitution or subjected to sexual abuse constitutes the offense. It is a malum prohibitum, an evil that is

proscribed. A child cannot give consent to a contract under our civil laws.31 This is on the rationale that she can easily be the victim of fraud as she is not capable of fully understanding or knowing the nature or import of her actions. The State, as parens patriae, is under the obligation to minimize the risk of harm to those who, because of their minority, are as yet unable to take care of themselves fully.32 Those of tender years deserve its protection.33 The harm which results from a childs bad decision in a sexual encounter may be infinitely more damaging to her than a bad business deal. Thus, the law should protect her from the harmful consequences34 of her attempts at adult sexual behavior.35 For this reason, a child should not be deemed to have validly consented to adult sexual activity and to surrender herself in the act of ultimate physical intimacy under a law which seeks to afford her special protection against abuse, exploitation and discrimination. (Otherwise, sexual predators like petitioner will be justified, or even unwittingly tempted by the law, to view her as fair game and vulnerable prey.) In other words, a child is presumed by law to be incapable of giving rational consent to any lascivious act or sexual intercourse.36
1wphi1

This must be so if we are to be true to the constitutionally enshrined State policy to promote the physical, moral, spiritual, intellectual and social well-being of the youth.37 This is consistent with the declared policy of the State [T]o provide special protection to children from all forms of abuse, neglect, cruelty, exploitation and discrimination, and other conditions prejudicial to their development; provide sanctions for their commission and carry out a program for prevention and deterrence of and crisis intervention in situations of child abuse, exploitation, and discrimination.38 (emphasis supplied) as well as to intervene on behalf of the child when the parents, guardian, teacher or person having care or custody of the child fails or is unable to protect the child against abuse, exploitation, and discrimination or when such acts against the child are committed by the said parent, guardian, teacher or person having care and custody of the same.39 (emphasis supplied)

This is also in harmony with the foremost consideration of the childs best interests in all actions concerning him or her. The best interest of children shall be the paramount consideration in all actions concerning them, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities, and legislative bodies, consistent with the principles of First Call for Children as enunciated in the United Nations Convention on the Rights of the Child. Every effort shall be exerted to promote the welfare of children and enhance their opportunities for a useful and happy life.40 (emphasis supplied) Petitioner May Enjoy the Benefits of the Indeterminate Sentence Law The penalty prescribed for violation of the provisions of Section 5, Article III of RA 7610 is reclusion temporal in its medium period to reclusion perpetua. In the absence of any mitigating or aggravating circumstance, the proper imposable penalty is reclusion temporal in its maximum period, the medium of the penalty prescribed by the law.41 Notwithstanding that RA 7610 is a special law, petitioner may enjoy the benefits of the Indeterminate Sentence Law.42 Since the penalty provided in RA 7610 is taken from the range of penalties in the Revised Penal Code, it is covered by the first clause of Section 1 of the Indeterminate Sentence Law.43 Thus, he is entitled to a maximum term which should be within the range of the proper imposable penalty of reclusion temporal in its maximum period (ranging from 17 years, 4 months and 1 day to 20 years) and a minimum term to be taken within the range of the penalty next lower to that prescribed by the law: prision mayor in its medium period to reclusion temporal in its minimum period (ranging from 8 years and 1 day to 14 years and 8 months). The Award of Damages Should Be Modified The trial court awarded AAA P75,000 as civil indemnity, P50,000 as moral and exemplary damages. The CA deleted the award for civil indemnity. It correctly reasoned that the award was proper only in a conviction for rape committed under the circumstances under which the death penalty is authorized by law. Consistent, however, with the objective of RA 7610 to afford children special protection against abuse, exploitation and discrimination and with the principle that every person who contrary to law, willfully or

negligently causes damage to another shall indemnify the latter for the same,44 civil indemnity to the child is proper in a case involving violation of Section 5(b), Article III of RA 7610. Every person criminally liable is civilly liable.45 The rule is that, in crimes and quasi-delicts, the defendant shall be liable for all damages which are the natural and probable consequences of the act or omission complained of.46 Thus, P50,000 civil indemnity ex delicto shall be awarded in cases of violation of Section 5(b), Article III of RA 7610.47 Moreover, the CA erred in affirming the grant of P50,000 as "moral and exemplary damages." The rule is that, in every case, trial courts must specify the award of each item of damages and make a finding thereon in the body of the decision.48 Thus, moral damages and exemplary damages should be separate items of award. AAA testified that she was "emotionally devastated" and "lost touch of her inner self" as a result of what petitioner did to her. Because of the mental anxiety and wounded feelings caused by petitioner to her, she had several sessions with the dean for student affairs49 and the guidance counselor of Assumption College as well as with a psychiatrist. This was corroborated by her mother and the dean of student affairs of Assumption College. Thus, she is entitled to moral damages of P50,000. However, in the absence of an aggravating circumstance, the grant of exemplary damages is unwarranted.50 Accordingly, the petition is hereby DENIED. Petitioner Michael John Z. Malto is hereby found guilty of violating Section 5(b), Article III of RA 7610, as amended, for which he is sentenced to 14 years and 8 months of reclusion temporal as minimum to 20 years of reclusion temporal as maximum. He is further ordered to pay AAA P50,000 as civil indemnity and P50,000 for moral damages. Costs against petitioner. SO ORDERED. RENATO C. CORONA Associate Justice

G.R. No. 182835

April 20, 2010

RUSTAN ANG y PASCUA, Petitioner, vs. THE HONORABLE COURT OF APPEALS and IRISH SAGUD, Respondents. DECISION ABAD, J.: This case concerns a claim of commission of the crime of violence against women when a former boyfriend sent to the girl the picture of a naked woman, not her, but with her face on it. The Indictment The public prosecutor charged petitioner-accused Rustan Ang (Rustan) before the Regional Trial Court (RTC) of Baler, Aurora, of violation of the Anti-Violence Against Women and Their Children Act or Republic Act (R.A.) 9262 in an information that reads: That on or about June 5, 2005, in the Municipality of Maria Aurora, Province of Aurora, Philippines and within the jurisdiction of this Honorable Court, the said accused willfully, unlawfully and feloniously, in a purposeful and reckless conduct, sent through the Short Messaging Service (SMS) using his mobile phone, a pornographic picture to one Irish Sagud, who was his former girlfriend, whereby the face of the latter was attached to a completely naked body of another woman making it to appear that it was said Irish Sagud who is depicted in the said obscene and pornographic picture thereby causing substantial emotional anguish, psychological distress and humiliation to the said Irish Sagud.1 The Facts and the Case The evidence for the prosecution shows that complainant Irish Sagud (Irish) and accused Rustan were classmates at Wesleyan University in Aurora Province. Rustan courted Irish and they became "on-and-off" sweethearts towards the end of 2004. When Irish learned afterwards that Rustan had taken a live-in partner (now his wife), whom he had gotten pregnant, Irish broke up with him. Before Rustan got married, however, he got in touch with Irish and

tried to convince her to elope with him, saying that he did not love the woman he was about to marry. Irish rejected the proposal and told Rustan to take on his responsibility to the other woman and their child. Irish changed her cellphone number but Rustan somehow managed to get hold of it and sent her text messages. Rustan used two cellphone numbers for sending his messages, namely, 0920-4769301 and 0921-8084768. Irish replied to his text messages but it was to ask him to leave her alone. In the early morning of June 5, 2005, Irish received through multimedia message service (MMS) a picture of a naked woman with spread legs and with Irishs face superimposed on the figure (Exhibit A).2 The senders cellphone number, stated in the message, was 0921-8084768, one of the numbers that Rustan used. Irish surmised that he copied the picture of her face from a shot he took when they were in Baguio in 2003 (Exhibit B).3 After she got the obscene picture, Irish got other text messages from Rustan. He boasted that it would be easy for him to create similarly scandalous pictures of her. And he threatened to spread the picture he sent through the internet. One of the messages he sent to Irish, written in text messaging shorthand, read: "Madali lang ikalat yun, my chatrum ang tarlac rayt pwede ring send sa lahat ng chatter."4 Irish sought the help of the vice mayor of Maria Aurora who referred her to the police. Under police supervision, Irish contacted Rustan through the cellphone numbers he used in sending the picture and his text messages. Irish asked Rustan to meet her at the Lorentess Resort in Brgy. Ramada, Maria Aurora, and he did. He came in a motorcycle. After parking it, he walked towards Irish but the waiting police officers intercepted and arrested him. They searched him and seized his Sony Ericsson P900 cellphone and several SIM cards. While Rustan was being questioned at the police station, he shouted at Irish: "Malandi ka kasi!" Joseph Gonzales, an instructor at the Aurora State College of Technology, testified as an expert in information technology and computer graphics. He said that it was very much possible for one to lift the face of a woman from a picture and superimpose it on the body of another woman in another picture. Pictures can be manipulated and enhanced by computer to make it appear that the face and the body belonged to just one person.

Gonzales testified that the picture in question (Exhibit A) had two distinct irregularities: the face was not proportionate to the body and the face had a lighter color. In his opinion, the picture was fake and the face on it had been copied from the picture of Irish in Exhibit B. Finally, Gonzales explained how this could be done, transferring a picture from a computer to a cellphone like the Sony Ericsson P900 seized from Rustan. For his part, Rustan admitted having courted Irish. He began visiting her in Tarlac in October 2003 and their relation lasted until December of that year. He claimed that after their relation ended, Irish wanted reconciliation. They met in December 2004 but, after he told her that his girlfriend at that time (later his wife) was already pregnant, Irish walked out on him. Sometime later, Rustan got a text message from Irish, asking him to meet her at Lorentess Resort as she needed his help in selling her cellphone. When he arrived at the place, two police officers approached him, seized his cellphone and the contents of his pockets, and brought him to the police station. Rustan further claims that he also went to Lorentess because Irish asked him to help her identify a prankster who was sending her malicious text messages. Rustan got the senders number and, pretending to be Irish, contacted the person. Rustan claims that he got back obscene messages from the prankster, which he forwarded to Irish from his cellphone. This explained, he said, why the obscene messages appeared to have originated from his cellphone number. Rustan claims that it was Irish herself who sent the obscene picture (Exhibit A) to him. He presented six pictures of a woman whom he identified as Irish (Exhibits 2 to 7).5 Michelle Ang (Michelle), Rustans wife, testified that she was sure Irish sent the six pictures. Michelle claims that she received the pictures and hid the memory card (Exhibit 8) that contained them because she was jealous and angry. She did not want to see anything of Irish. But, while the woman in the pictures posed in sexy clothing, in none did she appear naked as in Exhibit A. Further, the face of the woman in Exhibits 2, 4, 5 and 6 could not be seen. Irish denied that she was the woman in those four pictures. As for Exhibits 3 and 7, the woman in the picture was fully dressed. After trial, the RTC found Irishs testimony completely credible,

given in an honest and spontaneous manner. The RTC observed that she wept while recounting her experience, prompting the court to comment: "Her tears were tangible expression of pain and anguish for the acts of violence she suffered in the hands of her former sweetheart. The crying of the victim during her testimony is evidence of the credibility of her charges with the verity borne out of human nature and experience."6 Thus, in its Decision dated August 1, 2001, the RTC found Rustan guilty of the violation of Section 5(h) of R.A. 9262. On Rustans appeal to the Court of Appeals (CA),7 the latter rendered a decision dated January 31, 2008,8 affirming the RTC decision. The CA denied Rustans motion for reconsideration in a resolution dated April 25, 2008. Thus, Rustan filed the present for review on certiorari. The Issues Presented The principal issue in this case is whether or not accused Rustan sent Irish by cellphone message the picture with her face pasted on the body of a nude woman, inflicting anguish, psychological distress, and humiliation on her in violation of Section 5(h) of R.A. 9262. The subordinate issues are: 1. Whether or not a "dating relationship" existed between Rustan and Irish as this term is defined in R.A. 9262; 2. Whether or not a single act of harassment, like the sending of the nude picture in this case, already constitutes a violation of Section 5(h) of R.A. 9262; 3. Whether or not the evidence used to convict Rustan was obtained from him in violation of his constitutional rights; and 4. Whether or not the RTC properly admitted in evidence the obscene picture presented in the case. The Courts Rulings Section 3(a) of R.A. 9262 provides that violence against women includes an act or acts of a person against a woman with whom he has or had a sexual or dating relationship. Thus:

SEC. 3. Definition of Terms. As used in this Act, (a) "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. xxxx Section 5 identifies the act or acts that constitute violence against women and these include any form of harassment that causes substantial emotional or psychological distress to a woman. Thus: SEC. 5. Acts of Violence Against Women and Their Children. The crime of violence against women and their children is committed through any of the following acts: xxxx h. Engaging in purposeful, knowing, or reckless conduct, personally or through another, that alarms or causes substantial emotional or psychological distress to the woman or her child. This shall include, but not be limited to, the following acts: xxxx 5. Engaging in any form of harassment or violence; The above provisions, taken together, indicate that the elements of the crime of violence against women through harassment are: 1. The offender has or had a sexual or dating relationship with the offended woman; 2. The offender, by himself or through another, commits an act or series of acts of harassment against the woman; and 3. The harassment alarms or causes substantial emotional or psychological distress to her.

One. The parties to this case agree that the prosecution needed to prove that accused Rustan had a "dating relationship" with Irish. Section 3(e) provides that a "dating relationship" includes a situation where the parties are romantically involved over time and on a continuing basis during the course of the relationship. Thus: (e) "Dating relationship" refers to a situation wherein the parties live as husband and wife without the benefit of marriage or are romantically involved over time and on a continuing basis during the course of the relationship. A casual acquaintance or ordinary socialization between two individuals in a business or social context is not a dating relationship. (Underscoring supplied.) Here, Rustan claims that, being "romantically involved," implies that the offender and the offended woman have or had sexual relations. According to him, "romance" implies a sexual act. He cites Websters Comprehensive Dictionary Encyclopedia Edition which provides a colloquial or informal meaning to the word "romance" used as a verb, i.e., "to make love; to make love to" as in "He romanced her." But it seems clear that the law did not use in its provisions the colloquial verb "romance" that implies a sexual act. It did not say that the offender must have "romanced" the offended woman. Rather, it used the noun "romance" to describe a couples relationship, i.e., "a love affair."9 R.A. 9262 provides in Section 3 that "violence against women x x x refers to any act or a series of acts committed by any person against a woman x x x with whom the person has or had a sexual or dating relationship." Clearly, the law itself distinguishes a sexual relationship from a dating relationship. Indeed, Section 3(e) above defines "dating relationship" while Section 3(f) defines "sexual relations." The latter "refers to a single sexual act which may or may not result in the bearing of a common child." The dating relationship that the law contemplates can, therefore, exist even without a sexual intercourse taking place between those involved. Rustan also claims that since the relationship between Irish and him was of the "on-and-off" variety (away-bati), their romance cannot be regarded as having developed "over time and on a continuing basis." But the two of them were romantically involved, as Rustan himself admits, from October to December of 2003. That would be time enough for nurturing a relationship of mutual

trust and love. An "away-bati" or a fight-and-kiss thing between two lovers is a common occurrence. Their taking place does not mean that the romantic relation between the two should be deemed broken up during periods of misunderstanding. Explaining what "away-bati" meant, Irish explained that at times, when she could not reply to Rustans messages, he would get angry at her. That was all. Indeed, she characterized their three-month romantic relation as continuous.10 Two. Rustan argues that the one act of sending an offensive picture should not be considered a form of harassment. He claims that such would unduly ruin him personally and set a very dangerous precedent. But Section 3(a) of R.A. 9262 punishes "any act or series of acts" that constitutes violence against women. This means that a single act of harassment, which translates into violence, would be enough. The object of the law is to protect women and children. Punishing only violence that is repeatedly committed would license isolated ones. Rustan alleges that todays women, like Irish, are so used to obscene communications that her getting one could not possibly have produced alarm in her or caused her substantial emotional or psychological distress. He claims having previously exchanged obscene pictures with Irish such that she was already desensitized by them. But, firstly, the RTC which saw and heard Rustan and his wife give their testimonies was not impressed with their claim that it was Irish who sent the obscene pictures of herself (Exhibits 2-7). It is doubtful if the woman in the picture was Irish since her face did not clearly show on them. Michelle, Rustans wife, claimed that she deleted several other pictures that Irish sent, except Exhibits 2 to 7. But her testimony did not make sense. She said that she did not know that Exhibits 2 to 7 had remained saved after she deleted the pictures. Later, however, she said that she did not have time to delete them.11 And, if she thought that she had deleted all the pictures from the memory card, then she had no reason at all to keep and hide such memory card. There would have been nothing to hide. Finally, if she knew that some pictures remained in the card, there was no reason for her to keep it for several years, given that as she said

she was too jealous to want to see anything connected to Irish. Thus, the RTC was correct in not giving credence to her testimony.
1avvphi1

Secondly, the Court cannot measure the trauma that Irish experienced based on Rustans low regard for the alleged moral sensibilities of todays youth. What is obscene and injurious to an offended woman can of course only be determined based on the circumstances of each case. Here, the naked woman on the picture, her legs spread open and bearing Irishs head and face, was clearly an obscene picture and, to Irish a revolting and offensive one. Surely, any woman like Irish, who is not in the pornography trade, would be scandalized and pained if she sees herself in such a picture. What makes it further terrifying is that, as Irish testified, Rustan sent the picture with a threat to post it in the internet for all to see. That must have given her a nightmare. Three. Rustan argues that, since he was arrested and certain items were seized from him without any warrant, the evidence presented against him should be deemed inadmissible. But the fact is that the prosecution did not present in evidence either the cellphone or the SIM cards that the police officers seized from him at the time of his arrest. The prosecution did not need such items to prove its case. Exhibit C for the prosecution was but a photograph depicting the Sony Ericsson P900 cellphone that was used, which cellphone Rustan admitted owning during the pre-trial conference. Actually, though, the bulk of the evidence against him consisted in Irishs testimony that she received the obscene picture and malicious text messages that the senders cellphone numbers belonged to Rustan with whom she had been previously in communication. Indeed, to prove that the cellphone numbers belonged to Rustan, Irish and the police used such numbers to summon him to come to Lorentess Resort and he did.12 Consequently, the prosecution did not have to present the confiscated cellphone and SIM cards to prove that Rustan sent those messages. Moreover, Rustan admitted having sent the malicious text messages to Irish.13 His defense was that he himself received those messages from an unidentified person who was harassing Irish and he merely forwarded the same to her, using his

cellphone. But Rustan never presented the cellphone number of the unidentified person who sent the messages to him to authenticate the same. The RTC did not give credence to such version and neither will this Court. Besides, it was most unlikely for Irish to pin the things on Rustan if he had merely tried to help her identify the sender. Four. Rustan claims that the obscene picture sent to Irish through a text message constitutes an electronic document. Thus, it should be authenticated by means of an electronic signature, as provided under Section 1, Rule 5 of the Rules on Electronic Evidence (A.M. 01-7-01-SC). But, firstly, Rustan is raising this objection to the admissibility of the obscene picture, Exhibit A, for the first time before this Court. The objection is too late since he should have objected to the admission of the picture on such ground at the time it was offered in evidence. He should be deemed to have already waived such ground for objection.14 Besides, the rules he cites do not apply to the present criminal action. The Rules on Electronic Evidence applies only to civil actions, quasi-judicial proceedings, and administrative 15 proceedings. In conclusion, this Court finds that the prosecution has proved each and every element of the crime charged beyond reasonable doubt. WHEREFORE, the Court DENIES the petition and AFFIRMS the decision of the Court of Appeals in CA-G.R. CR 30567 dated January 31, 2008 and its resolution dated April 25, 2008. SO ORDERED. ROBERTO A. ABAD Associate Justice

G.R. No. 155831

February 18, 2008

MA. LOURDES T. DOMINGO, petitioner, vs. ROGELIO I. RAYALA, respondent. x-------------------------x G.R. No. 155840 February 18, 2008

ROGELIO I. RAYALA, petitioner, vs. OFFICE OF THE PRESIDENT; RONALDO V. ZAMORA, in his capacity as Executive Secretary; ROY V. SENERES, in his capacity as Chairman of the National Labor Relations Commission (in lieu of RAUL T. AQUINO, in his capacity as Acting Chairman of the National labor Relations Commission); and MA. LOURDES T. DOMINGO, respondents. x-------------------------x G.R. No. 158700 February 18, 2008

The REPUBLIC OF THE PHILIPPINES, represented by the OFFICE OF THE PRESIDENT; and ALBERTO G. ROMULO, in his capacity as Executive Secretary, petitioners, vs. ROGELIO I. RAYALA, respondent. DECISION NACHURA, J.: Sexual harassment is an imposition of misplaced "superiority" which is enough to dampen an employees spirit and her capacity for advancement. It affects her sense of judgment; it changes her life.1 Before this Court are three Petitions for Review on Certiorari assailing the October 18, 2002 Resolution of the CAs Former Ninth Division2 in CA-G.R. SP No. 61026. The Resolution modified the December 14, 2001 Decision3 of the Court of Appeals Eleventh Division, which had affirmed the Decision of the Office of the President (OP) dismissing from the service then National Labor Relations Commission (NLRC) Chairman Rogelio I. Rayala (Rayala) for disgraceful and immoral conduct.

All three petitions stem from the same factual antecedents. On November 16, 1998, Ma. Lourdes T. Domingo (Domingo), then Stenographic Reporter III at the NLRC, filed a Complaint for sexual harassment against Rayala before Secretary Bienvenido Laguesma of the Department of Labor and Employment (DOLE). To support the Complaint, Domingo executed an Affidavit narrating the incidences of sexual harassment complained of, thus: xxxx 4. Sa simula ay pabulong na sinasabihan lang ako ni Chairman Rayala ng mga salitang "Lot, gumaganda ka yata?" 5. Sa ibang mga pagkakataon nilalapitan na ako ni Chairman at hahawakan ang aking balikat sabay pisil sa mga ito habang ako ay nagta-type at habang nagbibigay siya ng diktasyon. Sa mga pagkakataong ito, kinakabahan ako. Natatakot na baka mangyari sa akin ang mga napapabalitang insidente na nangyari na noon tungkol sa mga sekretarya niyang nagbitiw gawa ng mga mahahalay na panghihipo ni Chairman. 6. Noong ika-10 ng Setyembre, 1998, nang ako ay nasa 8th Floor, may nagsabi sa akin na kailangan akong bumaba sa 7th Floor kung nasaan ang aming opisina dahil sa may koreksyon daw na gagawin sa mga papel na tinayp ko. Bumaba naman ako para gawin ito. Habang ginagawa ko ito, lumabas si Chairman Rayala sa silid ni Mr. Alex Lopez. Inutusan ako ni Chairman na sumunod sa kaniyang silid. Nang nasa silid na kami, sinabi niya sa akin: Chairman: Lot, I like you a lot. Naiiba ka sa lahat. At pagkatapos ako ay kaniyang inusisa tungkol sa mga personal na bagay sa aking buhay. Ang ilan dito ay tungkol sa aking mga magulang, kapatid, pag-aaral at kung may boyfriend na raw ba ako. Chairman: May boyfriend ka na ba? Lourdes: Dati nagkaroon po. Chairman: Nasaan na siya?

Lourdes: Nag-asawa na ho. Chairman: Bakit hindi kayo nagkatuluyan? Lourdes: Nainip po. Chairman: Pagkatapos mo ng kurso mo ay kumuha ka ng Law at ako ang bahala sa iyo, hanggang ako pa ang Chairman dito. Pagkatapos ay kumuha siya ng pera sa kaniyang amerikana at inaabot sa akin. Chairman: Kuhanin mo ito. Lourdes: Huwag na ho hindi ko kailangan. Chairman: Hindi sige, kuhanin mo. Ayusin mo ang dapat ayusin. Tinanggap ko po ang pera ng may pag-aalinlangan. Natatakot at kinakabahan na kapag hindi ko tinanggap ang pera ay baka siya magagalit kasabay na rito ang pagtapon sa akin kung saan-saan opisina o kaya ay tanggalin ako sa posisyon. Chairman: Paglabas mo itago mo ang pera. Ayaw ko ng may makaka-alam nito. Just the two of us. Lourdes: Bakit naman, Sir? Chairman: Basta. Maraming tsismosa diyan sa labas. But I dont give them a damn. Hindi ako mamatay sa kanila. Tumayo na ako at lumabas. Pumanhik na ako ng 8th Floor at pumunta ako sa officemate ko na si Agnes Magdaet. Ikinwento ko ang nangyari sa akin sa opisina ni Chairman. Habang kinikwento ko ito kay Agnes ay binilang namin ang pera na nagkakahalaga ng tatlong libong piso (PHP 3,000). Sinabi ni Agnes na isauli ko raw ang pera, pero ang sabi ko ay natatakot ako baka magalit si Sir. Nagsabi agad kami kay EC Perlita Velasco at sinalaysay ko ang nangyari. Sinabi niya na isauli ko ang pera at noong araw ding iyon ay nagpasiya akong isauli na nga ito ngunit hindi ako nagkaroon ng pagkakataon dahil marami siyang naging bisita. Isinauli ko nga ang pera noong Lunes, Setyembre 14, 1998. 7. Noong huling linggo ng Setyembre, 1998, ay may tinanong din sa akin si Chairman Rayala na hindi ko masikmura, at sa aking

palagay at tahasang pambabastos sa akin. Chairman: Lot, may ka live-in ka ba? Lourdes: Sir, wala po. Chairman: Bakit malaki ang balakang mo? Lourdes: Kayo, Sir ha! Masama sa amin ang may ka live-in. Chairman: Bakit, ano ba ang relihiyon ninyo? Lourdes: Catholic, Sir. Kailangan ikasal muna. Chairman: Bakit ako, hindi kasal. Lourdes: Sir, di magpakasal kayo. Chairman: Huh. Ibahin na nga natin ang usapan. 8. Noong Oktubre 29, 1998, ako ay pumasok sa kwarto ni Chairman Rayala. Ito ay sa kadahilanang ang fax machine ay nasa loob ng kaniyang kwarto. Ang nag-aasikaso nito, si Riza Ocampo, ay naka-leave kaya ako ang nag-asikaso nito noong araw na iyon. Nang mabigyan ko na ng fax tone yung kausap ko, pagharap ko sa kanan ay nakaharang sa dadaanan ko si Chairman Rayala. Tinitingnan ako sa mata at ang titig niya ay umuusad mula ulo hanggang dibdib tapos ay ngumiti na may mahalay na pakahulugan. 9. Noong hapon naman ng pareho pa ring petsa, may nag-aapply na sekretarya sa opisina, sinabi ko ito kay Chairman Rayala: Lourdes: Sir, si Pinky po yung applicant, mag-papainterview po yata sa inyo. Chairman: Sabihin mo magpa-pap smear muna siya Chairman: O sige, i-refer mo kay Alex. (Alex Lopez, Chief of Staff). 10. Noong Nobyembre 9, 1998, ako ay tinawag ni Chairman Rayala sa kaniyang opisina upang kuhanin ko ang diktasyon niya para kay ELA Oscar Uy. Hindi pa kami nakakatapos ng unang talata, may pumasok na bisita si Chairman, si Baby Pangilinan na sinamahan ni Riza Ocampo. Pinalabas muna ako ni Chairman.

Nang maka-alis na si Ms. Pangilinan, pinapasok na niya ako ulit. Umupo ako. Lumapit sa likuran ko si Chairman, hinawakan ang kaliwang balikat ko na pinipisil ng kanang kamay niya at sinabi: Chairman: Saan na ba tayo natapos? Palakad-lakad siya sa aking likuran habang nag-didikta. Huminto siya pagkatapos, at nilagay niya ang kanang kamay niya sa aking kanang balikat at pinisil-pisil ito pagkatapos ay pinagapang niya ito sa kanang bahagi ng aking leeg, at pinagapang hanggang kanang tenga at saka kiniliti. Dito ko inalis ang kaniyang kamay sa pamamagitan ng aking kaliwang kamay. At saka ko sinabi: Lourdes: Sir, yung kamay ninyo alisin niyo! Natapos ko rin ang liham na pinagagawa niya pero halos hindi ko na maintindihan ang na-isulat ko dahil sa takot at inis na nararamdaman ko.4 After the last incident narrated, Domingo filed for leave of absence and asked to be immediately transferred. Thereafter, she filed the Complaint for sexual harassment on the basis of Administrative Order No. 250, the Rules and Regulations Implementing RA 7877 in the Department of Labor and Employment. Upon receipt of the Complaint, the DOLE Secretary referred the Complaint to the OP, Rayala being a presidential appointee. The OP, through then Executive Secretary Ronaldo Zamora, ordered Secretary Laguesma to investigate the allegations in the Complaint and create a committee for such purpose. On December 4, 1998, Secretary Laguesma issued Administrative Order (AO) No. 280, Series of 1998,5 constituting a Committee on Decorum and Investigation (Committee) in accordance with Republic Act (RA) 7877, the Anti-Sexual Harassment Act of 1995.6 The Committee heard the parties and received their respective evidence. On March 2, 2000, the Committee submitted its report and recommendation to Secretary Laguesma. It found Rayala guilty of the offense charged and recommended the imposition of the minimum penalty provided under AO 250, which it erroneously stated as suspension for six (6) months. The following day, Secretary Laguesma submitted a copy of the Committee Report and Recommendation to the OP, but with the

recommendation that the penalty should be suspension for six (6) months and one (1) day, in accordance with AO 250. On May 8, 2000, the OP, through Executive Secretary Zamora, issued AO 119,7 the pertinent portions of which read: Upon a careful scrutiny of the evidence on record, I concur with the findings of the Committee as to the culpability of the respondent [Rayala], the same having been established by clear and convincing evidence. However, I disagree with the recommendation that respondent be meted only the penalty of suspension for six (6) months and one (1) day considering the circumstances of the case. What aggravates respondents situation is the undeniable circumstance that he took advantage of his position as the superior of the complainant. Respondent occupies the highest position in the NLRC, being its Chairman. As head of said office, it was incumbent upon respondent to set an example to the others as to how they should conduct themselves in public office, to see to it that his subordinates work efficiently in accordance with Civil Service Rules and Regulations, and to provide them with healthy working atmosphere wherein co-workers treat each other with respect, courtesy and cooperation, so that in the end the public interest will be benefited (City Mayor of Zamboanga vs. Court of Appeals, 182 SCRA 785 [1990]). What is more, public service requires the utmost integrity and strictest discipline (Gano vs. Leonen, 232 SCRA 99 [1994]). Thus, a public servant must exhibit at all times the highest sense of honesty and integrity, and "utmost devotion and dedication to duty" (Sec. 4 (g), RA 6713), respect the rights of others and shall refrain from doing acts contrary to law, and good morals (Sec. 4(c)). No less than the Constitution sanctifies the principle that a public office is a public trust, and enjoins all public officers and employees to serve with the highest degree of responsibility, integrity, loyalty and efficiency (Section 1, Article XI, 1987 Constitution). Given these established standards, I see respondents acts not just [as] a failure to give due courtesy and respect to his coemployees (subordinates) or to maintain good conduct and behavior but defiance of the basic norms or virtues which a government official must at all times uphold, one that is contrary to

law and "public sense of morality." Otherwise stated, respondent to whom stricter standards must apply being the highest official [of] the NLRC had shown an attitude, a frame of mind, a disgraceful conduct, which renders him unfit to remain in the service. WHEREFORE, in view of the foregoing, respondent Rogelio I. Rayala, Chairman, National Labor Relations Commission, is found guilty of the grave offense of disgraceful and immoral conduct and is hereby DISMISSED from the service effective upon receipt of this Order. SO ORDER[ED]. Rayala filed a Motion for Reconsideration, which the OP denied in a Resolution8 dated May 24, 2000. He then filed a Petition for Certiorari and Prohibition with Prayer for Temporary Restraining Order under Rule 65 of the Revised Rules on Civil Procedure before this Court on June 14, 2000.9 However, the same was dismissed in a Resolution dated June 26, 2000 for disregarding the hierarchy of courts.10 Rayala filed a Motion for Reconsideration11 on August 15, 2000. In its Resolution12 dated September 4, 2000, the Court recalled its June 26 Resolution and referred the petition to the Court of Appeals (CA) for appropriate action. The CA rendered its Decision13 on December 14, 2001. It held that there was sufficient evidence on record to create moral certainty that Rayala committed the acts he was charged with. It said: The complainant narrated her story complete with details. Her straightforward and uninhibited testimony was not emasculated by the declarations of Commissioner Rayala or his witnesses. x x x Moreover, Commissioner Rayala has not proven any vicious motive for Domingo and her witnesses to invent their stories. It is very unlikely that they would perjure themselves only to accommodate the alleged conspiracy to oust petitioner from office. Save for his empty conjectures and speculations, Rayala failed to substantiate his contrived conspiracy. It is a hornbook doctrine that conspiracy must be proved by positive and convincing evidence (People v. Noroa, 329 SCRA 502 [2000]). Besides, it is improbable that the complainant would concoct a story of sexual harassment against the highest official of the NLRC and thereby

expose herself to the possibility of losing her job, or be the subject of reprisal from her superiors and perhaps public ridicule if she was not telling the truth. It also held that Rayalas dismissal was proper. The CA pointed out that Rayala was dismissed for disgraceful and immoral conduct in violation of RA 6713, the Code of Conduct and Ethical Standards for Public Officials and Employees. It held that the OP was correct in concluding that Rayalas acts violated RA 6713: Indeed, [Rayala] was a public official, holding the Chairmanship of the National Labor Relations Commission, entrusted with the sacred duty of administering justice. Occupying as he does such an exalted position, Commissioner Rayala must pay a high price for the honor bestowed upon him. He must comport himself at all times in such a manner that the conduct of his everyday life should be beyond reproach and free from any impropriety. That the acts complained of were committed within the sanctuary of [his] office compounded the objectionable nature of his wrongdoing. By daring to violate the complainant within the solitude of his chambers, Commissioner Rayala placed the integrity of his office in disrepute. His disgraceful and immoral conduct warrants his removal from office.14 Thus, it dismissed the petition, to wit: IN VIEW OF ALL THE FOREGOING, the instant petition is hereby DISMISSED and Administrative Order No. 119 as well [as] the Resolution of the Office of the President in O.P. Case No. 00-E9118 dated May 24, 2000 are AFFIRMED IN TOTO. No cost. SO ORDERED.15 Rayala timely filed a Motion for Reconsideration. Justices Vasquez and Tolentino voted to affirm the December 14 Decision. However, Justice Reyes dissented mainly because AO 250 states that the penalty imposable is suspension for six (6) months and one (1) day.16 Pursuant to the internal rules of the CA, a Special Division of Five was constituted.17 In its October 18, 2002 Resolution, the CA modified its earlier Decision: ACCORDINGLY, the Decision dated December [14], 2001 is MODIFIED to the effect that the penalty of dismissal is DELETED and instead the penalty of suspension from service for the

maximum period of one (1) year is HEREBY IMPOSED upon the petitioner. The rest of the challenged decision stands. SO ORDERED. Domingo filed a Petition for Review18 before this Court, which we denied in our February 19, 2003 Resolution for having a defective verification. She filed a Motion for Reconsideration, which the Court granted; hence, the petition was reinstated. Rayala likewise filed a Petition for Review19 with this Court essentially arguing that he is not guilty of any act of sexual harassment. Meanwhile, the Republic filed a Motion for Reconsideration of the CAs October 18, 2002 Resolution. The CA denied the same in its June 3, 2003 Resolution, the dispositive portion of which reads: ACCORDINGLY, by a majority vote, public respondents Motion for Reconsideration, (sic) is DENIED. SO ORDERED. The Republic then filed its own Petition for Review.20 On June 28, 2004, the Court directed the consolidation of the three (3) petitions. G.R. No. 155831 Domingo assails the CAs resolution modifying the penalty imposed by the Office of the President. She raises this issue: The Court of Appeals erred in modifying the penalty for the respondent from dismissal to suspension from service for the maximum period of one year. The President has the prerogative to determine the proper penalty to be imposed on an erring Presidential appointee. The President was well within his power when he fittingly used that prerogative in deciding to dismiss the respondent from the service.21 She argues that the power to remove Rayala, a presidential appointee, is lodged with the President who has control of the entire Executive Department, its bureaus and offices. The OPs

decision was arrived at after affording Rayala due process. Hence, his dismissal from the service is a prerogative that is entirely with the President.22 As to the applicability of AO No. 250, she argues that the same was not intended to cover cases against presidential appointees. AO No. 250 refers only to the instances wherein the DOLE Secretary is the disciplining authority, and thus, the AO does not circumscribe the power of the President to dismiss an erring presidential appointee. G.R. No. 155840 In his petition, Rayala raises the following issues: I. CONTRARY TO THE FINDINGS OF THE COURT OF APPEALS, THE ACTS OF HEREIN PETITIONER DO NOT CONSTITUTE SEXUAL HARASSMENT AS LAID DOWN BY THE En Banc RULING IN THE CASE OF AQUINO vs. ACOSTA, ibid., AS WELL AS IN THE APPLICATION OF EXISTING LAWS. II. CONTRARY TO THE FINDINGS OF THE HONORABLE COURT OF APPEALS, INTENT IS AN INDISPENSABLE ELEMENT IN A CASE FOR SEXUAL HARASSMENT. THE HONORABLE COURT ERRED IN ITS FINDING THAT IT IS AN OFFENSE THAT IS MALUM PROHIBITUM. III. THE INVESTIGATION COMMITTEE, THE OFFICE OF THE PRESIDENT, AND NOW, THE HONORABLE COURT OF APPEALS, HAS MISAPPLIED AND EXPANDED THE DEFINITION OF SEXUAL HARASSMENT IN THE WORKPLACE UNDER R.A. No. 7877, BY APPLYING DOLE A.O. 250, WHICH RUNS COUNTER TO THE RECENT PRONOUNCEMENTS OF THIS HONORABLE SUPREME COURT.23 Invoking Aquino v. Acosta,24 Rayala argues that the case is the definitive ruling on what constitutes sexual harassment. Thus, he posits that for sexual harassment to exist under RA 7877, there must be: (a) demand, request, or requirement of a sexual favor; (b) the same is made a pre-condition to hiring, re-employment, or continued employment; or (c) the denial thereof results in discrimination against the employee. Rayala asserts that Domingo has failed to allege and establish any

sexual favor, demand, or request from petitioner in exchange for her continued employment or for her promotion. According to Rayala, the acts imputed to him are without malice or ulterior motive. It was merely Domingos perception of malice in his alleged acts a "product of her own imagination"25 that led her to file the sexual harassment complaint. Likewise, Rayala assails the OPs interpretation, as upheld by the CA, that RA 7877 is malum prohibitum such that the defense of absence of malice is unavailing. He argues that sexual harassment is considered an offense against a particular person, not against society as a whole. Thus, he claims that intent is an essential element of the offense because the law requires as a conditio sine qua non that a sexual favor be first sought by the offender in order to achieve certain specific results. Sexual harassment is committed with the perpetrators deliberate intent to commit the offense.26 Rayala next argues that AO 250 expands the acts proscribed in RA 7877. In particular, he assails the definition of the forms of sexual harassment: Rule IV FORMS OF SEXUAL HARASSMENT Section 1. Forms of Sexual Harassment. Sexual harassment may be committed in any of the following forms: a) Overt sexual advances; b) Unwelcome or improper gestures of affection; c) Request or demand for sexual favors including but not limited to going out on dates, outings or the like for the same purpose; d) Any other act or conduct of a sexual nature or for purposes of sexual gratification which is generally annoying, disgusting or offensive to the victim.27 He posits that these acts alone without corresponding demand, request, or requirement do not constitute sexual harassment as contemplated by the law.28 He alleges that the rule-making power granted to the employer in Section 4(a) of RA 7877 is limited only

to procedural matters. The law did not delegate to the employer the power to promulgate rules which would provide other or additional forms of sexual harassment, or to come up with its own definition of sexual harassment.29 G.R. No. 158700 The Republic raises this issue: Whether or not the President of the Philippines may validly dismiss respondent Rayala as Chairman of the NLRC for committing acts of sexual harassment.30 The Republic argues that Rayalas acts constitute sexual harassment under AO 250. His acts constitute unwelcome or improper gestures of affection and are acts or conduct of a sexual nature, which are generally annoying or offensive to the victim.31 It also contends that there is no legal basis for the CAs reduction of the penalty imposed by the OP. Rayalas dismissal is valid and warranted under the circumstances. The power to remove the NLRC Chairman solely rests upon the President, limited only by the requirements under the law and the due process clause. The Republic further claims that, although AO 250 provides only a one (1) year suspension, it will not prevent the OP from validly imposing the penalty of dismissal on Rayala. It argues that even though Rayala is a presidential appointee, he is still subject to the Civil Service Law. Under the Civil Service Law, disgraceful and immoral conduct, the acts imputed to Rayala, constitute grave misconduct punishable by dismissal from the service.32 The Republic adds that Rayalas position is invested with public trust and his acts violated that trust; thus, he should be dismissed from the service. This argument, according to the Republic, is also supported by Article 215 of the Labor Code, which states that the Chairman of the NLRC holds office until he reaches the age of 65 only during good behavior.33 Since Rayalas security of tenure is conditioned upon his good behavior, he may be removed from office if it is proven that he has failed to live up to this standard. All the issues raised in these three cases can be summed up in two ultimate questions, namely:

(1) Did Rayala commit sexual harassment? (2) If he did, what is the applicable penalty? Initially, however, we must resolve a procedural issue raised by Rayala. He accuses the Office of the Solicitor General (OSG), as counsel for the Republic, of forum shopping because it filed a motion for reconsideration of the decision in CA-G.R. SP No. 61026 and then filed a comment in G.R. No. 155840 before this Court. We do not agree. Forum shopping is an act of a party, against whom an adverse judgment or order has been rendered in one forum, of seeking and possibly securing a favorable opinion in another forum, other than by appeal or special civil action for certiorari.34 It consists of filing multiple suits involving the same parties for the same cause of action, either simultaneously or successively, for the purpose of obtaining a favorable judgment.35 There is forum shopping when the following elements concur: (1) identity of the parties or, at least, of the parties who represent the same interest in both actions; (2) identity of the rights asserted and relief prayed for, as the latter is founded on the same set of facts; and (3) identity of the two preceding particulars such that any judgment rendered in the other action will amount to res judicata in the action under consideration or will constitute litis pendentia.36 Reviewing the antecedents of these consolidated cases, we note that the CA rendered the assailed Resolution on October 18, 2002. The Republic filed its Motion for Reconsideration on November 22, 2002. On the other hand, Rayala filed his petition before this Court on November 21, 2002. While the Republics Motion for Reconsideration was pending resolution before the CA, on December 2, 2002, it was directed by this Court to file its Comment on Rayalas petition, which it submitted on June 16, 2003. When the CA denied the Motion for Reconsideration, the Republic filed its own Petition for Review with this Court on July 3, 2003. It cited in its "Certification and Verification of a Non-Forum Shopping" (sic), that there was a case involving the same facts pending before this Court denominated as G.R. No. 155840. With respect to Domingos petition, the same had already been

dismissed on February 19, 2003. Domingos petition was reinstated on June 16, 2003 but the resolution was received by the OSG only on July 25, 2003, or after it had filed its own petition.37 Based on the foregoing, it cannot be said that the OSG is guilty of forum shopping. We must point out that it was Rayala who filed the petition in the CA, with the Republic as the adverse party. Rayala himself filed a motion for reconsideration of the CAs December 21, 2001 Decision, which led to a more favorable ruling, i.e., the lowering of the penalty from dismissal to one-year suspension. The parties adversely affected by this ruling (Domingo and the Republic) had the right to question the same on motion for reconsideration. But Domingo directly filed a Petition for Review with this Court, as did Rayala. When the Republic opted to file a motion for reconsideration, it was merely exercising a right. That Rayala and Domingo had by then already filed cases before the SC did not take away this right. Thus, when this Court directed the Republic to file its Comment on Rayalas petition, it had to comply, even if it had an unresolved motion for reconsideration with the CA, lest it be cited for contempt. Accordingly, it cannot be said that the OSG "file[d] multiple suits involving the same parties for the same cause of action, either simultaneously or successively, for the purpose of obtaining a favorable judgment." We now proceed to discuss the substantive issues. It is noteworthy that the five CA Justices who deliberated on the case were unanimous in upholding the findings of the Committee and the OP. They found the assessment made by the Committee and the OP to be a "meticulous and dispassionate analysis of the testimonies of the complainant (Domingo), the respondent (Rayala), and their respective witnesses." 38 They differed only on the appropriate imposable penalty. That Rayala committed the acts complained of and was guilty of sexual harassment is, therefore, the common factual finding of not just one, but three independent bodies: the Committee, the OP and the CA. It should be remembered that when supported by substantial evidence, factual findings made by quasi-judicial and administrative bodies are accorded great respect and even finality by the courts.39 The principle, therefore, dictates that such findings should bind us.40

Indeed, we find no reason to deviate from this rule. There appears no valid ground for this Court to review the factual findings of the CA, the OP, and the Investigating Committee. These findings are now conclusive on the Court. And quite significantly, Rayala himself admits to having committed some of the acts imputed to him. He insists, however, that these acts do not constitute sexual harassment, because Domingo did not allege in her complaint that there was a demand, request, or requirement of a sexual favor as a condition for her continued employment or for her promotion to a higher position.41 Rayala urges us to apply to his case our ruling in Aquino v. Acosta.42 We find respondents insistence unconvincing. Basic in the law of public officers is the three-fold liability rule, which states that the wrongful acts or omissions of a public officer may give rise to civil, criminal and administrative liability. An action for each can proceed independently of the others.43 This rule applies with full force to sexual harassment. The law penalizing sexual harassment in our jurisdiction is RA 7877. Section 3 thereof defines work-related sexual harassment in this wise: Sec. 3. Work, Education or Training-related Sexual Harassment Defined. Work, education or training-related sexual harassment is committed by an employer, manager, supervisor, agent of the employer, teacher, instructor, professor, coach, trainor, or any other person who, having authority, influence or moral ascendancy over another in a work or training or education environment, demands, requests or otherwise requires any sexual favor from the other, regardless of whether the demand, request or requirement for submission is accepted by the object of said Act. (a) In a work-related or employment environment, sexual harassment is committed when: (1) The sexual favor is made as a condition in the hiring or in the employment, re-employment or continued employment of said individual, or in granting said individual favorable compensation, terms, conditions, promotions, or privileges; or the refusal to grant the sexual favor results in limiting, segregating or classifying the

employee which in a way would discriminate, deprive or diminish employment opportunities or otherwise adversely affect said employee; (2) The above acts would impair the employees rights or privileges under existing labor laws; or (3) The above acts would result in an intimidating, hostile, or offensive environment for the employee. This section, in relation to Section 7 on penalties, defines the criminal aspect of the unlawful act of sexual harassment. The same section, in relation to Section 6, authorizes the institution of an independent civil action for damages and other affirmative relief. Section 4, also in relation to Section 3, governs the procedure for administrative cases, viz.: Sec. 4. Duty of the Employer or Head of Office in a Work-related, Education or Training Environment. It shall be the duty of the employer or the head of the work-related, educational or training environment or institution, to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment. Towards this end, the employer or head of office shall: (a) Promulgate appropriate rules and regulations in consultation with and jointly approved by the employees or students or trainees, through their duly designated representatives, prescribing the procedure for the investigation or sexual harassment cases and the administrative sanctions therefor. Administrative sanctions shall not be a bar to prosecution in the proper courts for unlawful acts of sexual harassment. The said rules and regulations issued pursuant to this section (a) shall include, among others, guidelines on proper decorum in the workplace and educational or training institutions. (b) Create a committee on decorum and investigation of cases on sexual harassment. The committee shall conduct meetings, as the case may be, with other officers and employees, teachers, instructors, professors, coaches, trainors and students or trainees

to increase understanding and prevent incidents of sexual harassment. It shall also conduct the investigation of the alleged cases constituting sexual harassment. In the case of a work-related environment, the committee shall be composed of at least one (1) representative each from the management, the union, if any, the employees from the supervisory rank, and from the rank and file employees. In the case of the educational or training institution, the committee shall be composed of at least one (1) representative from the administration, the trainors, teachers, instructors, professors or coaches and students or trainees, as the case maybe. The employer or head of office, educational or training institution shall disseminate or post a copy of this Act for the information of all concerned. The CA, thus, correctly ruled that Rayalas culpability is not to be determined solely on the basis of Section 3, RA 7877, because he is charged with the administrative offense, not the criminal infraction, of sexual harassment.44 It should be enough that the CA, along with the Investigating Committee and the Office of the President, found substantial evidence to support the administrative charge. Yet, even if we were to test Rayalas acts strictly by the standards set in Section 3, RA 7877, he would still be administratively liable. It is true that this provision calls for a "demand, request or requirement of a sexual favor." But it is not necessary that the demand, request or requirement of a sexual favor be articulated in a categorical oral or written statement. It may be discerned, with equal certitude, from the acts of the offender. Holding and squeezing Domingos shoulders, running his fingers across her neck and tickling her ear, having inappropriate conversations with her, giving her money allegedly for school expenses with a promise of future privileges, and making statements with unmistakable sexual overtones all these acts of Rayala resound with deafening clarity the unspoken request for a sexual favor. Likewise, contrary to Rayalas claim, it is not essential that the demand, request or requirement be made as a condition for continued employment or for promotion to a higher position. It is enough that the respondents acts result in creating an

intimidating, hostile or offensive environment for the employee.45 That the acts of Rayala generated an intimidating and hostile environment for Domingo is clearly shown by the common factual finding of the Investigating Committee, the OP and the CA that Domingo reported the matter to an officemate and, after the last incident, filed for a leave of absence and requested transfer to another unit. Rayalas invocation of Aquino v. Acosta46 is misplaced, because the factual setting in that case is different from that in the case at bench. In Aquino, Atty. Susan Aquino, Chief of the Legal and Technical Staff of the Court of Tax Appeals (CTA), charged then CTA Presiding Judge (now Presiding Justice) Ernesto Acosta of sexual harassment. She complained of several incidents when Judge Acosta allegedly kissed her, embraced her, and put his arm around her shoulder. The case was referred to CA Justice Josefina G. Salonga for investigation. In her report, Justice Salonga found that "the complainant failed to show by convincing evidence that the acts of Judge Acosta in greeting her with a kiss on the cheek, in a `beso-beso fashion, were carried out with lustful and lascivious desires or were motivated by malice or ill motive. It is clear from the circumstances that most of the kissing incidents were done on festive and special occasions," and they "took place in the presence of other people and the same was by reason of the exaltation or happiness of the moment." Thus, Justice Salonga concluded: In all the incidents complained of, the respondent's pecks on the cheeks of the complainant should be understood in the context of having been done on the occasion of some festivities, and not the assertion of the latter that she was singled out by Judge Acosta in his kissing escapades. The busses on her cheeks were simply friendly and innocent, bereft of malice and lewd design. The fact that respondent judge kisses other people on the cheeks in the 'beso-beso' fashion, without malice, was corroborated by Atty. Florecita P. Flores, Ms. Josephine Adalem and Ms. Ma. Fides Balili, who stated that they usually practice 'beso-beso' or kissing on the cheeks, as a form of greeting on occasions when they meet each other, like birthdays, Christmas, New Year's Day and even Valentine's Day, and it does not matter whether it is Judge Acosta's birthday or their birthdays. Theresa Cinco Bactat, a lawyer who belongs to complainant's department, further attested that on occasions like birthdays, respondent judge would likewise

greet her with a peck on the cheek in a 'beso-beso' manner. Interestingly, in one of several festive occasions, female employees of the CTA pecked respondent judge on the cheek where Atty. Aquino was one of Judge Acosta's well wishers. In sum, no sexual harassment had indeed transpired on those six occasions. Judge Acosta's acts of bussing Atty. Aquino on her cheek were merely forms of greetings, casual and customary in nature. No evidence of intent to sexually harass complainant was apparent, only that the innocent acts of 'beso-beso' were given malicious connotations by the complainant. In fact, she did not even relate to anyone what happened to her. Undeniably, there is no manifest sexual undertone in all those incidents.47 This Court agreed with Justice Salonga, and Judge Acosta was exonerated. To repeat, this factual milieu in Aquino does not obtain in the case at bench. While in Aquino, the Court interpreted the acts (of Judge Acosta) as casual gestures of friendship and camaraderie, done during festive or special occasions and with other people present, in the instant case, Rayalas acts of holding and squeezing Domingos shoulders, running his fingers across her neck and tickling her ear, and the inappropriate comments, were all made in the confines of Rayalas office when no other members of his staff were around. More importantly, and a circumstance absent in Aquino, Rayalas acts, as already adverted to above, produced a hostile work environment for Domingo, as shown by her having reported the matter to an officemate and, after the last incident, filing for a leave of absence and requesting transfer to another unit. Rayala also argues that AO 250 does not apply to him. First, he argues that AO 250 does not cover the NLRC, which, at the time of the incident, was under the DOLE only for purposes of program and policy coordination. Second, he posits that even assuming AO 250 is applicable to the NLRC, he is not within its coverage because he is a presidential appointee. We find, however, that the question of whether or not AO 250 covers Rayala is of no real consequence. The events of this case unmistakably show that the administrative charges against Rayala were for violation of RA 7877; that the OP properly assumed jurisdiction over the administrative case; that the participation of

the DOLE, through the Committee created by the Secretary, was limited to initiating the investigation process, reception of evidence of the parties, preparation of the investigation report, and recommending the appropriate action to be taken by the OP. AO 250 had never really been applied to Rayala. If it was used at all, it was to serve merely as an auxiliary procedural guide to aid the Committee in the orderly conduct of the investigation. Next, Rayala alleges that the CA erred in holding that sexual harassment is an offense malum prohibitum. He argues that intent is an essential element in sexual harassment, and since the acts imputed to him were done allegedly without malice, he should be absolved of the charges against him. We reiterate that what is before us is an administrative case for sexual harassment. Thus, whether the crime of sexual harassment is malum in se or malum prohibitum is immaterial. We also reject Rayalas allegations that the charges were filed because of a conspiracy to get him out of office and thus constitute merely political harassment. A conspiracy must be proved by clear and convincing evidence. His bare assertions cannot stand against the evidence presented by Domingo. As we have already ruled, the acts imputed to Rayala have been proven as fact. Moreover, he has not proven any ill motive on the part of Domingo and her witnesses which would be ample reason for her to conjure stories about him. On the contrary, ill motive is belied by the fact that Domingo and her witnesses all employees of the NLRC at that time stood to lose their jobs or suffer unpleasant consequences for coming forward and charging their boss with sexual harassment. Furthermore, Rayala decries the alleged violation of his right to due process. He accuses the Committee on Decorum of railroading his trial for violation of RA 7877. He also scored the OPs decision finding him guilty of "disgraceful and immoral conduct" under the Revised Administrative Code and not for violation of RA 7877. Considering that he was not tried for "disgraceful and immoral conduct," he argues that the verdict is a "sham and total nullity." We hold that Rayala was properly accorded due process. In previous cases, this Court held that:

[i]n administrative proceedings, due process has been recognized to include the following: (1) the right to actual or constructive notice of the institution of proceedings which may affect a respondents legal rights; (2) a real opportunity to be heard personally or with the assistance of counsel, to present witnesses and evidence in ones favor, and to defend ones rights; (3) a tribunal vested with competent jurisdiction and so constituted as to afford a person charged administratively a reasonable guarantee of honesty as well as impartiality; and (4) a finding by said tribunal which is supported by substantial evidence submitted for consideration during the hearing or contained in the records or made known to the parties affected.48 The records of the case indicate that Rayala was afforded all these procedural due process safeguards. Although in the beginning he questioned the authority of the Committee to try him,49 he appeared, personally and with counsel, and participated in the proceedings. On the other point raised, this Court has held that, even in criminal cases, the designation of the offense is not controlling, thus: What is controlling is not the title of the complaint, nor the designation of the offense charged or the particular law or part thereof allegedly violated, these being mere conclusions of law made by the prosecutor, but the description of the crime charged and the particular facts therein recited. The acts or omissions complained of must be alleged in such form as is sufficient to enable a person of common understanding to know what offense is intended to be charged, and enable the court to pronounce proper judgment. No information for a crime will be sufficient if it does not accurately and clearly allege the elements of the crime charged. Every element of the offense must be stated in the information. What facts and circumstances are necessary to be included therein must be determined by reference to the definitions and essentials of the specified crimes. The requirement of alleging the elements of a crime in the information is to inform the accused of the nature of the accusation against him so as to enable him to suitably prepare his defense.50 It is noteworthy that under AO 250, sexual harassment amounts to disgraceful and immoral conduct.51 Thus, any finding of liability for sexual harassment may also be the basis of culpability for

disgraceful and immoral conduct. With the foregoing disquisitions affirming the finding that Rayala committed sexual harassment, we now determine the proper penalty to be imposed. Rayala attacks the penalty imposed by the OP. He alleges that under the pertinent Civil Service Rules, disgraceful and immoral conduct is punishable by suspension for a period of six (6) months and one (1) day to one (1) year. He also argues that since he is charged administratively, aggravating or mitigating circumstances cannot be appreciated for purposes of imposing the penalty. Under AO 250, the penalty for the first offense is suspension for six (6) months and one (1) day to one (1) year, while the penalty for the second offense is dismissal.52 On the other hand, Section 22(o), Rule XVI of the Omnibus Rules Implementing Book V of the Administrative Code of 198753 and Section 52 A(15) of the Revised Uniform Rules on Administrative Cases in the Civil Service54 both provide that the first offense of disgraceful and immoral conduct is punishable by suspension of six (6) months and one (1) day to one (1) year. A second offense is punishable by dismissal. Under the Labor Code, the Chairman of the NLRC shall hold office during good behavior until he or she reaches the age of sixtyfive, unless sooner removed for cause as provided by law or becomes incapacitated to discharge the duties of the office.55 In this case, it is the President of the Philippines, as the proper disciplining authority, who would determine whether there is a valid cause for the removal of Rayala as NLRC Chairman. This power, however, is qualified by the phrase "for cause as provided by law." Thus, when the President found that Rayala was indeed guilty of disgraceful and immoral conduct, the Chief Executive did not have unfettered discretion to impose a penalty other than the penalty provided by law for such offense. As cited above, the imposable penalty for the first offense of either the administrative offense of sexual harassment or for disgraceful and immoral conduct is suspension of six (6) months and one (1) day to one (1) year. Accordingly, it was error for the Office of the President to impose upon Rayala the penalty of dismissal from the service, a penalty which can only be imposed upon commission of a second offense. Even if the OP properly considered the fact that Rayala took

advantage of his high government position, it still could not validly dismiss him from the service. Under the Revised Uniform Rules on Administrative Cases in the Civil Service,56 taking undue advantage of a subordinate may be considered as an aggravating circumstance57 and where only aggravating and no mitigating circumstances are present, the maximum penalty shall be imposed.58 Hence, the maximum penalty that can be imposed on Rayala is suspension for one (1) year. Rayala holds the exalted position of NLRC Chairman, with the rank equivalent to a CA Justice. Thus, it is not unavailing that rigid standards of conduct may be demanded of him. In Talens-Dabon v. Judge Arceo,59 this Court, in upholding the liability of therein respondent Judge, said: The actuations of respondent are aggravated by the fact that complainant is one of his subordinates over whom he exercises control and supervision, he being the executive judge. He took advantage of his position and power in order to carry out his lustful and lascivious desires. Instead of he being in loco parentis over his subordinate employees, respondent was the one who preyed on them, taking advantage of his superior position. In yet another case, this Court declared: As a managerial employee, petitioner is bound by more exacting work ethics. He failed to live up to his higher standard of responsibility when he succumbed to his moral perversity. And when such moral perversity is perpetrated against his subordinate, he provides a justifiable ground for his dismissal for lack of trust and confidence. It is the right, nay, the duty of every employer to protect its employees from oversexed superiors.60 It is incumbent upon the head of office to set an example on how his employees should conduct themselves in public office, so that they may work efficiently in a healthy working atmosphere. Courtesy demands that he should set a good example.61 Rayala has thrown every argument in the book in a vain effort to effect his exoneration. He even puts Domingos character in question and casts doubt on the morality of the former President who ordered, albeit erroneously, his dismissal from the service. Unfortunately for him, these are not significant factors in the disposition of the case. It is his character that is in question here

and sadly, the inquiry showed that he has been found wanting. WHEREFORE, the foregoing premises considered, the October 18, 2002 Resolution of the Court of Appeals in CA-G.R. SP No. 61026 is AFFIRMED. Consequently, the petitions in G.R. Nos. 155831, 155840, and 158700 are DENIED. No pronouncement as to costs. SO ORDERED. ANTONIO EDUARDO B. NACHURA Associate Justice

G.R. No. 119063. January 27, 1997]

JOSE G. GARCIA, petitioner, vs. COURT OF APPEALS, PEOPLE OF THE PHILIPPINES and ADELA TEODORA P. SANTOS, respondents. DECISION DAVIDE, JR., J.: The issue here is whether the Court of Appeals committed reversible error in affirming the trial court's order granting the motion to quash the information for bigamy based on prescription. On 28 August 1991, petitioner Jose G. Garcia filed with the Quezon City Prosecutor's Office an "Affidavit of Complaint" [1] charging his wife, private respondent Adela Teodora P. Santos alias "Delia Santos," with Bigamy, Violation of C.A. No. 142, as amended by R.A. No. 6085, and Falsification of Public Documents. However, in his letter of 10 October 1991 to Assistant City Prosecutor George F. Cabanilla, the petitioner informed the latter that he would limit his action to bigamy. [2] After appropriate proceedings, Assistant Prosecutor Cabanilla filed on 8 January 1992 with the Regional Trial Court (RTC) of Quezon City an information, [3] dated 15 November 1991, charging the private respondent with Bigamy allegedly committed as follows: That on or before the 2nd day of February, 1957, in Quezon City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, being previously united in lawful marriage with REYNALDO QUIROCA, and without the said marriage having been dissolved, (or before the absent spouse has been declared presumptively dead by a judgment rendered in the proper proceedings), did then and there wilfully, unlawfully and feloniously contract a second marriage with JOSE G. GARCIA, which marriage has [sic] discovered in 1989, to the damage and prejudice of the said offended party

in such amount as may be awarded under the provisions of the Civil Code. CONTRARY TO LAW. The information was docketed as Criminal Case No. Q-9227272 and assigned to Branch 83 of the said court. On 2 March 1992, the private respondent filed a Motion to Quash alleging prescription of the offense as ground therefor. She contended that by the petitioner's admissions in his testimony given-on 23 January 1991 in Civil Case No. 90-52730, entitled "Jose G. Garcia v. Delia S. Garcia," and in his complaint filed with the Civil Service Commission (CSC) on 16 October 1991, the petitioner discovered the commission of the offense as early as 1974. Pursuant then to Article 91 of the Revised Penal Code (RPC), [4] the period of prescription of the offense started to run therefrom. Thus, since bigamy was punishable by prision mayor, [5] an afflictive penalty [6] which prescribed in fifteen years pursuant to Article 92 of the RPC, then the offense charged prescribed in 1989, or fifteen years after its discovery by the petitioner. The private respondent quoted [7] the petitioner's testimony in Civil Case No.90-52730 as follows: Q No, no, just answer. What did you learn from her (Eugenia) about the private respondent? A That she has been married previously in case I don't know it. But she said she has been previously married, in fact I saw her husband - Rey, a few days ago and they said, "Baka magkasama pa silang muli:" xxx ATTY. EVANGELISTA: Q When did Eugenia R. Balingit told [sic] that private respondent was already married to another man? A That was when I told her that we are separating now. I

told her in tagalog, "na maghihiwalay na kami ni Delia ngayon." "Ang unang tanong niya sa akin, 'si Rey ba ang dahilan,' ang alam ko po, Rey ang dating boyfriend niya, kaya ang sabi ko, 'hindi po, Mario ang pangalan, ' napabagsak po siya sa upuan, sabi niya, 'hindi na nagbago."' Q When was that when you came to know from Eugenia Balingit, the judicial guardian, that private respondent was already married to another man when she married you? A Q A That was when the affair was happening and I found out. What year? 1974. [8]

The portion of the complaint filed on 16 October 1991 before the CSC which the private respondent alluded to, reads as follows: 5. At the time the respondent married the herein complainant she never informed him that she was previously married to a certain "REYNALDO QUIROCA" on December 1, 1951 wherein she used the name of "ADELA SANTOS" which was part of her true name "ADELA TEODORA P. SANTOS" as per her genuine Baptismal Certificate issued by the Parish of San Guillermo, Bacolor, Pampanga, a copy of the said Baptismal Certificate is hereto attached as ANNEX "D"; 6. xxx

7. These facts were discovered only by the herein complainant in the year 1974 where they separated from each other because of her illicit relations with several men continued use of her alias name "DELIA", without proper authority from the Courts; and committing a series of fraudulent acts; her previous marriage to a certain "Reynaldo Quiroca" is evidenced by a certification issued by the Local Civil Registrar of Manila, a copy of which is hereto attached as ANNEX "F"; [9] In its 29 June 1992 order, [10] the trial court granted the

motion to quash and dismissed the criminal case, ruling in this wise: This court believes that since the penalty prescribed under Article 349 of the Revised Penal Code for the offense of bigamy is prision mayor, which is classified as an afflictive penalty under Article 25 of the same Code, then said offense should prescribe in fifteen (15) years as provided in Article 92 of the Code. The complainant having discovered the first marriage of the accused to one Reynaldo Quiroca in 1974 when he was informed of it by one Eugenia Balingit, the offense charged has already prescribed when the information was filed in this case on November 15, 1991. The argument presented by the prosecution that it was difficult for the complainant to obtain evidence of the alleged first marriage, hence, the prescriptive period should be counted from the time the evidence was secured will not hold water. Article 91 of the Revised Penal Code specifically provides, thus: "The period of prescription shall commence to run from the day on which the crime is discovered x x x" it did not state "on the day sufficient evidence was gathered," thus this Court cannot change the requirements of the law. The petitioner moved for reconsideration of the above order on 26 August 1992, [11] to which he filed "numerous" supplements thereto, focusing on the private respondent's many trips abroad which the petitioner claimed suspended the running of the prescriptive period. These trips were enumerated in the certification [12] issued by Associate Commissioner Ramon M. Morales of the Bureau of Immigration (BID), which reads as follows: This is to certify that the name GARCIA/DELIA/S. appears in the Bureau's files of Arrivals and Departures as having the following travel records: Departed for HKG on Arrived from HKG on 06/03/77 07/02/77 aboard PR aboard PA

Arrived from SYD Arrived from GUM Arrived from MEL Arrived from TYO

on on on on

07/09/77 06/14/80 07/17/81 05/20/83 09/22/83 09/28/83 04/30/84 07/03/84 11/19/84 08/05/85 11/17/86 12/12/87 11/30/87 11/14/88

aboard BR aboard PA aboard PR aboard BA aboard PR aboard PR aboard PA aboard PA aboard PA aboard PA aboard UA aboard UA aboard UA aboard UA

Departed for HKG on Arrived from SIN Departed for TYO Arrived from SFO Departed for TYO Departed for TYO Departed for TYO Arrived from LAX Departed for LAX Departed for CHI on on on on on on on on on

The trial court disallowed reconsideration of its 29 June 1992 order, finding "no urgent or justifiable reason to disturb or set [it] aside." As to the sojourns abroad of the private respondent as shown in the certification, the trial court held that the same "is not that kind of absence from the Philippines which will interrupt the period of prescription of the offense charged . . . " [13] The petitioner then appealed to the Court of Appeals which docketed the appeal as CA-G.R. CR No. 14324. He contended therein that: (a) the trial court erred in quashing the information on the ground of prescription; and (b) the counsel for the accused was barred from filing the motion to quash the information against the accused. [14] As to the first, the petitioner argued that bigamy was a public offense, hence "the

offended party is not the first or second (innocent) spouse but the State whose law/policy was transgressed." He tried to distinguish bigamy from private offenses such as adultery or concubinage "where the private complainant is necessarily the offended party," thus, the prescriptive period for the former should commence from the day the State, being the offended party, discovered the offense, which in this case was on 28 August 1991 when the petitioner filed his complaint before the Prosecutor's Office. The petitioner added that the "interchanging use" In Article 91 of the RPC of the terms "offended party," "authorities," and "their agents" supports his view that the State is the offended party in public offenses. Additionally, the petitioner referred to the general rule stated in People v. Alagao [15] "that in resolving the motion to quash a criminal complaint or information[,] the facts alleged in the complaint or information should be taken as they are." The information in this case mentioned that the bigamy was discovered in 1989. He admitted, however, that this rule admits of exceptions, such as when the ground for the motion to quash is prescription of the offense, as provided in Section 4 of the old Rule 117 of the Rules of Criminal Procedure. Nonetheless, he advanced the view that this exception is no longer available because of the implied repeal of Section 4, as the amended Rule 117 no longer contains a similar provision under the rule on motions to quash; and that granting there was no repeal, the private respondent failed to introduce evidence to "support her factual averment in her motion to quash," which is required by Rule 117. He further asserted that the factual bases of the motion to quash, viz., the petitioner's testimony in Civil Case No. 90-52730 and his complaint filed with the CSC are not conclusive because the testimony is hearsay evidence, hence inadmissible, while the complaint is vague, particularly the following portion quoted by the private respondent: 7. These facts where discovered only by the herein complainant in the year 1974 when they separated from each other because of her illicit relations with several men

continued use of her alias name "DELIA", without proper authority from the Courts; and committing a series of fraudulent acts; her previous marriage to a certain "Reynaldo Quiroca" is evidenced by a certification issued by the Local Civil Registrar of Manila, a copy of which is hereto attached a ANNEX "F"; The petitioner alleged that the phrase "These facts" in said paragraph 7 does not clearly refer to his discovery of the private respondent's first marriage. Moreover, he doubted whether the term "discovered" in the said paragraph was used in the sense contemplated by law. At best, the petitioner theorized, the discovery only referred to the "initial, unconfirmed and uninvestigated raw, hearsay information" which he received from Balingit. Finally, the petitioner reiterated that the prescriptive period was interrupted several times by the private respondent's numerous trips abroad. As regards his second contention, the petitioner argued that the counsel for the private respondent had already stated that he represented only Delia S. Garcia and not Adela Teodora P. Santos. Consequently, the private respondent's counsel could not ask for the quash of the information in favor of Adela Teodora P. Santos alias Delia Santos. The petitioner opined that the counsel for the private respondent should have sought a dismissal of the case in favor of Delia Garcia alone. The Court of Appeals gave credence to the private respondent's evidence and concluded that the petitioner discovered the private respondent's first marriage in 1974. Since the information in this case was filed in court only on 8 January 1992, or eighteen years after the discovery of the offense, then the 15-year prescriptive period had certainly lapsed. [16] It further held that the quash of an information based on prescription of the offense could be invoked before or after arraignment and even on appeal, [17] for under Article 89(5) of the RPC, the criminal liability of a person is "'totally extinguish[ed]' by the prescription of the crime, which is a

mode of extinguishing criminal liability." Thus, prescription is not deemed waived even if not pleaded as a defense. [18] Undaunted, the petitioner is now before us on a petition for review on certiorari to annul and set aside the decision of the Court of Appeals and to compel the respondent court to remand the case to the trial court for further proceedings. He submits the following assignment of errors: I BIGAMY IS A PUBLIC OFFENSE, CONSEQUENTLY, PRESCRIPTION SHOULD HAVE BEEN COUNTED FROM THE TIME THE STATE DISCOVERED ITS COMMISSION; II A MOTION TO QUASH CANNOT ALSO GO BEYOND WHAT IS STATED IN THE INFORMATION; III BY THEMSELVES, THE FACTUAL BASES OF THE MOTION TO QUASH ARE NOT ALSO CONCLUSIVE; IV ASSUMING THE PRESCRIPTIVE PERIOD STARTED IN 1974, SAID PERIOD HOWEVER WAS INTERRUPTED SEVERAL TIMES. We notice that except for the first two pages of the petition, the deletion of a few paragraphs, the substitution of the term "petitioner" for "appellant," and the deletion of the contention on the counsel for the private respondent being barred from filing a motion to quash, the herein petition is a reproduction of the Appellant's Brief filed by the petitioner with the Court of Appeals. Verily then, the instant petition is a rehash of an old tale. However, the Court of Appeals failed to-sufficiently address several issues raised by the petitioner, most probably prompting him to seek redress from this Court. We resolved to give due course to the petition and required

the parties to submit their respective memoranda. The Office of the Solicitor General was the last to submit a Memorandum for the public respondent. Both the private and public respondents ask for the dismissal of this petition and the affirmance of the challenged decision. Petitioner's position is untenable. Denial then of this petition is all it merits. We shall take up the assigned errors in seriatim. I It is true that bigamy is a public offense. But, it is entirely incorrect to state, as the petitioner does, that only the State is the offended party in such case, as well as in other public offenses, and, therefore, only the State's discovery of the crime could effectively commence the running of the period of prescription therefor. Article 91 of the RPC provides that "[t]he period of prescription shall commence to run from the day on which the crime is discovered by the offended party, the authorities, or their agents . . . ." This rule makes no distinction between a public crime and a private crime. In both cases then, the discovery may be by the "offended party, the authorities, or their agents." Article 91 does not define the term "offended party." We find its definition in Section 12, Rule 110 of the Rules of Court as "the person against whom or against whose property, the offense was committed." [19] The said Section reads as follows: SEC. 12. Name of the offended party. -- A complaint or information must state the name and surname of the person against whom or against whose property the offense was committed, or any appellation or nickname by which such person has been or is known, and if there is no better way of identifying him, he must be described under a fictitious name. More specifically, it is reasonable to assume that the offended party in the commission of a crime, public or private, is the party to whom the offender is civilly liable, in light of Article

100 of the RPC, which expressly provides that "[e]very person criminally liable for a felony is also civilly liable." [20] Invariably then, the private individual to whom the offender is civilly liable is the offended party. This conclusion is strengthened by Section 1, Rule 111 of the Rules of Court which reads: SEC. 1. Institution of criminal and civil actions. -- When a criminal action is instituted, the civil action for the recovery of civil liability is impliedly instituted with a criminal action, unless the offended party waives the civil action, reserves his right to institute it separately, or institutes the civil action prior to the criminal action Such civil action includes recovery of indemnity under the Revised Penal Code, and damages under Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines arising from the same act or omission of the accused. x x x It is settled that in bigamy, both the first and the second spouses may be the offended parties depending on the circumstances. [21] The petitioner even admits that he is the offended party in Criminal Case No. Q-92-27272. The information therein, [22] which he copied in full in the petition in this case, describes him as the "offended party" who suffered "damage and prejudice . . . in such amount as may be awarded under the provisions of the Civil Code." [23] The distinction he made between public crimes and private crimes relates not to the discovery of the crimes, but to their prosecution. Articles 344 and 360 of the RPC, in relation to Section 5, Rule 110 of the Rules of Court, are clear on this matter. II The petitioner's contention that a motion to quash cannot go beyond the information in Criminal Case No. Q-92-27272

which states that the crime was discovered in 1989, is palpably unmeritorious. Even People v. Alagao, [24] which he cites, mentions the exceptions to the rule as provided in paragraphs (f) and (h) of Section 2, and Sections 4 and 5 of the old Rule 117 viz., (a) extinction of criminal liability, and (b) double jeopardy. His additional claim that the exception of extinction can no longer be raised due to the implied repeal of the former Section 4, [25] Rule 117 of the Rules of Court occasioned by its non-reproduction after its revision, is equally without merit. No repeal, express or implied, of the said Section 4 ever took place. While there is no provision in the new Rule 117 that prescribes the contents of a motion to quash based on extinction of criminal liability, Section 2 thereof encapsulizes the former Sections 3,4, and 5 of the old Rule 117. The said Section 2 reads as follows: SEC. 2. Form and contents. - The motion to quash shall be in writing signed by the accused or his counsel. It shall specify distinctly the factual and legal grounds therefor and the court shall consider no grounds other than those stated therein, except lack of jurisdiction over the offense charged. (3a, 4a, 5a). (underscoring supplied for emphasis) It is clear from this Section that a motion to quash may be based on factual and legal grounds, and since extinction of criminal liability and double jeopardy are retained as among the grounds for a motion to quash in Section 3 of the new Rule 117, it necessarily follows that facts outside the information itself may be introduced to prove such grounds. As a matter of fact, inquiry into such facts may be allowed where the ground invoked is that the allegations in the information do not constitute the offense charged. Thus, in People v. De la Rosa, [26] this Court stated: As a general proposition, a motion to quash on the ground that the allegations of the information do not constitute the offense charged, or any offense for that matter, should be resolved on the basis alone of said allegations whose truth and veracity are hypothetically admitted. However, as held in the case of

People vs. Navarro, 75 Phil. 516, additional facts not alleged in the information, but admitted or not denied by the prosecution may be invoked in support of the motion to quash. Former Chief justice Moran supports this theory. [27] In Criminal Case No. 92-27272, the trial court, without objection on the part of the prosecution, allowed the private respondent to offer evidence in support of her claim that the crime had prescribed. Consequently, the trial court, upon indubitable proof of prescription, correctly granted the motion to quash. It would have been, to quote De la Rosa, "pure technicality for the court to close its eyes to [the fact of prescription] and still give due course to the prosecution of the case" - a technicality which would have meant loss of valuable time of the court and the parties. As noted by Dr. Fortunato Gupit, Jr., consultant of the Rules of Court Revision Committee, the aforequoted Section 2 of the new Rule 117 on "factual and legal grounds" of a motion to quash is based on the De la Rosa case. [28] III The petitioner likewise claims that the factual bases of the private respondent's motion to quash are inconclusive. The petitioner cannot be allowed to disown statements he made under oath and in open court when it serves his purpose. This is a contemptible practice which can only mislead the courts and thereby contribute to injustice. Besides, he never denied having given the pertinent testimony. He did, however, term it vague in that it was not clear whether the prior marriage which Eugenia Balingit disclosed to him was that entered into by the private respondent with Reynaldo Quiroca. It is immaterial to whom the private respondent was first married; what is relevant in this case is that the petitioner was informed of a prior marriage contracted by the private respondent. Neither may the petitioner be heard to cast doubt on the meaning of his statements in his sworn complaint filed before the CSC. We find no hint of vagueness in them. In any event,

he has not denied that he in fact discovered in 1974 that the private respondent had been previously married. Finally, the petitioner draws our attention to the private respondent's several trips abroad as enumerated in the certification of the Bureau of Immigration, and cites the second paragraph of Article 91 of the RPC, viz.: "[t]he term of prescription shall not run when the offender is absent from the Philippine Archipelago." We agree with the Court of Appeals that these trips abroad did not constitute the "absence" contemplated in Article 91. These trips were brief, and in every case the private respondent returned to the Philippines. Besides, these were made long after the petitioner discovered the offense and even if the aggregate number of days of these trips are considered, still the information was filed well beyond the prescriptive period. WHEREFORE, the instant petition is DENIED for lack of merit and the challenged decision of 13 February 1995 of the Court of Appeals in CA-G.R. CR No.14324 is AFFIRMED. Costs against the petitioner. SO ORDERED.