People v.

Bagsic
December 13, 2017 G.R. No. 218404
Facts: AAA and BBB were born on 2 August 1996 and 18 June 2000, respectively. They called accused-
appellant "Lolo" as he was the common law husband of their maternal grandmother. Sometime in 2007,
while BBB was playing with her sisters, accused-appellant called her and brought her to a hut in a field
located at Zone 7, Sto. Niño 3rd, San Jose City, Nueva Ecija. Inside the hut, accused-appellant told BBB to
lie down, lifted her shirt, and removed her shorts and underwear. Accused-appellant then removed his
lower garments and had carnal knowledge of BBB, but he was unable to make a full penetration.
BBB cried and pushed accused-appellant away. She did not shout for help for fear that accused-
appellant would hurt her. Whenever someone came by the field, accused-appellant desisted from
assaulting her. For several times, thereafter, whenever accused-appellant urinated, he made BBB watch
him and hold his penis.

The assault upon BBB was repeated on 18 April 2009 at about five o’clock in the morning. At that time,
BBB and her two female siblings had to sleep in accused-appellant’s house because their mother was at
the hospital attending to AAA. While in bed, BBB was awakened by a finger being inserted into her
vagina. When she opened her eyes, BBB saw accused-appellant. Sensing that BBB was already awake,
accused-appellant left. About a month earlier or on 15 March 2009, AAA and her siblings stayed with
accused-appellant and their maternal grandmother because their parents had to attend the wake of a
deceased relative. At around four o'clock in the morning, AAA was awakened by somebody, whom she
identified to be accused-appellant because of his rough hand and odor, fiddling her nipple. The incident
lasted for about two minutes. Accused-appellant stopped when he realized that AAA's siblings were
already awake. Thereafter, AAA and her siblings rose from bed and prepared breakfast. AAA did not tell
anyone about the incident out of fear. It was only when BBB revealed the sexual acts committed against
her by accused-appellant that AAA also mustered the courage to speak out.

During the presentation of the prosecution’s evidence, however, an Affidavit of Desistance, dated 15
May 2012, was executed by AAA, BBB, and CCC.

RTC: RTC acquitted accused-appellant for violation of Section 5 (b) of R.A. No. 7610 for failure of the
prosecution to sufficiently establish the identity of the perpetrator. The trial court, however, found
accused-appellant guilty of statutory rape and of rape by sexual assault. It noted that BBB, even at such
a young age, was able to withstand the lengthy cross-examination. The RTC held that the affidavit of
desistance was not sufficient to reverse BBB’s earlier testimony clearly narrating how accused-appellant
had sexually molested her on two occasions.
CA: In a decision, dated 30 June 2014, the CA affirmed the conviction of accused-appellant but modified
the amount of damages awarded.

Issue: Whether Bagsic is guilty of the crimes imputed against him

Held: YES.
Accused-appellant is guilty of statutory rape.
For the accused to be found guilty of the crime of statutory rape, two (2) elements must concur: (1) that
the offender had carnal knowledge of the victim; and (2) that the victim is below twelve (12) years
old.31 If the woman is under 12 years of age, proof of force and consent becomes immaterial not only
because force is not an element of statutory rape, but the absence of a free consent is presumed.
Conviction will therefore lie, provided sexual intercourse is proven.
Accused-appellant is guilty of rape by sexual assault.

The following are the elements of rape by sexual assault:

(1) That the offender commits an act of sexual assault;

(2) That the act of sexual assault is committed by any of the following means:

(a) By inserting his penis into another person's mouth or anal orifice; or

(b) By inserting any instrument or object into the genital or anal orifice of another person;

(3) That the act of sexual assault is accomplished under any of the following circumstances:

(a) By using force and intimidation;

(b) When the woman is deprived of reason or otherwise unconscious; or

(c) By means of fraudulent machination or grave abuse of authority; or

(d) When the woman is under 12 years of age or demented.36 (emphasis supplied)

All the foregoing elements were met beyond reasonable doubt. Accused-appellant inserted his finger
into the vagina of BBB, a child under 12 years of age at the time of the incident.

Proper penalty for rape by sexual assault

Accused-appellant’s conviction for rape by sexual assault is affirmed, but the penalty imposed by the
lower court is modified to the penalty under Article III, Section 5(b) of R.A. No. 7610:

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:

xxx

(b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in
prostitution or subjected to other sexual abuse; Provided, That when the victim is under twelve (12)
years of age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and Article
336 of Act No. 3815, as amended, the Revised Penal Code, for rape or lascivious conduct, as the case
maybe: Provided, That the penalty for lascivious conduct when the victim is under twelve (12) years of
age shall be reclusion temporal in its medium period; x x x
The Implementing Rules and Regulations of R.A. No. 7610 defines "lascivious conduct" as [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.

BBB’s affidavit of desistance cannot be given any weight.

BBB’s affidavit of desistance is not a ground for the dismissal of the case. Rape is no longer considered a
private crime as R.A. No. 8353 or the Anti-Rape Law of 1997 has reclassified rape as a crime against
persons.19 Rape may now be prosecuted de officio; a complaint for rape commenced by the offended
party is no longer necessary for its prosecution. Hence, an affidavit of desistance, which may be
considered as pardon by the complaining witness, is not by itself a ground for the dismissal of a rape
action over which the court has already assumed jurisdiction.
 People of the Philippines vs. Nicolas Tubillo y Abella
G.R. No. 220718 June 21, 2017

Facts: At the time of the incident, HE was only 13 years old and was living with AAA, the person who
adopted her. On February 1, 2006, at around 10 PM in the evening, HGE was sleeping at home alone,
while AAA was working as a beautician at the salon. She was awakened when Tubillo, her neighbour,
entered their house by breaking the padlock of the door. Tubillo went directly to HGE then removed her
clothes and his own. He forcibly inserted his penis in her vagina by pushing his body towards her. HE felt
pain, but she did not resist as Tubillo was poking a knife at her neck. HGE revealed her ordeal at the
hands of Tubillo to her aunt, leading to the filing of the subject complaint. Dr. Ortiz testified that she had
a shallow healed laceration in the hymen. The findings were suggestive of the use of a blunt force or
penetrating trauma to the hymen. Tubillo denied the accusations against him and claimed that the
complaint was filed simply because HGE’s aunt was angry at him when he tried to collect some money
from her. The RTC found Tubillo guilty beyond reasonable doubt of the crime of simple rape, the RTC
found that Tubillo sexually violated HGE and it appreciated HGE’s consistent testimony and the medical
report presented to establish the carnal knowledge committed against her will. Tubillo elevated an
appeal before the CA. The CA affirmed Tubillo’s conviction with modifications. It was of the view that
HGE candidly testified about the sexual violation committed by Tubillo against her and that the
inconsistencies in her testimony were trivial. The CA however, opined that as HGE was more than 12
years old, Tubillo could be charged either rape under the RPC or Child Abuse under RA. No. 7610. The CA
modified the penalty by reducing it to 14 years and 8 months of reclusion temporal, as minimum, to 20
years of reclusion temporal, as maximum.

Issue: Whether or not the trial court gravely erred in finding that the accused-appellant’s guilt has been
proven beyond reasonable doubt?

Held: NO. The CA found that Tubillo committed the crime of rape against HGE, then a 13 year old minor.
Nevertheless, it opined that he must be convicted under Section 5 (b) of RA No. 7610 because it was the
crime alleged in the information. To reiterate, the elements of rape under Section 266-A of the RPC are:
1. the offender had carnal knowledge of the victim; and 2. such act was accomplished through force or
intimidation; or when the victim is deprived of reason or otherwise unconscious; or when the victim is
under 12 years of age. In the present case, the RTC convicted Tubillo for the crime of rape because the
prosecution proved that there was a carnal knowledge against HGE by means of force or intimidation,
particularly, with the bladed weapon. On the other hand, the CA convicted Tubillo with violation of
Section 5 (b) of RA. No. 7610 because the charge of rape under the information was in relation to RA. No
7610. After a judicious study of the records, the court rules that Tubillo should be convicted of rape
under Article 266-A of the RPC. Tubillo should be found guilty of rape with a prescribed penalty of
reclusion perpetua.

A reading of the information would show that the case at bench involves both the elements of Article
266-A (1) of the RPC and Section 5(b) of R.A. No.7610.1âwphi1 As elucidated in People v. Abay and
People v. Pangilinan, in such instance, the court must examine the evidence of the prosecution, whether
it focused on the specific force or intimidation employed by the offender or on the broader concept of
coercion or influence to have carnal knowledge with the victim.

Here, the evidence of the prosecution unequivocally focused on the force or intimidation employed by
Tubillo against HGE under Article 266-A (1) (a) of the RPC. The prosecution presented the testimony of
HGE who narrated that Tubillo unlawfully entered the· house where she was sleeping by breaking the
padlock. Once inside, he forced himself upon her, pointed a knife at her neck, and inserted his penis in
her vagina. She could not resist the sexual attack against her because Tubillo poked a bladed weapon at
her neck. Verily, Tubillo employed brash force or intimidation to carry out his dastardly deeds.