Professional Documents
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Under the circumstances we cannot help entertaining serious doubts Separate Opinions
on the culpability of the accused. Rape is a charge easy to make,
hard to prove and harder to defend by the party accused, though
innocent. Experience has shown that unfounded charges of rape
have frequently been proferred by women actuated by some sinister, FRANCISCO, J., concurring:
ulterior or undisclosed motive. Convictions for such crime should not
be sustained without clear and convincing proof of guilt. On more By her own account, complainant was half-asleep when
than one occasion it has been pointed out that in crimes against accused-appellant took off her underwear, removed his
chastity the testimony of the injured woman should not be received briefs, placed himself on top of her, spread her legs,
with precipitate credulity. When the conviction depends on any vital penetrated her and executed push and pull movements.
point upon her uncorroborated testimony, it should not be accepted Thinking that it was her boyfriend, complainant did not do
unless her sincerity and candor are free from suspicion. A little anything until accused-appellant softly whispered to her
insight into human nature is of utmost value in judging matters of this "Zareen, it's not Ricky; it's Jun. I love you." Afterwhich, she
kind.12 pushed him aside.
But even from the narration of Zareen, the elements of the crime of Complainant's tale of rape is unconvicing. It is quite puzzling
rape are, regretfully, miserably wanting. There was no force nor that a supposed rapist, who having accomplished with
intimidation; Zareen was not deprived of reason nor otherwise utmost ease his sinister intention to have carnal knowledge
unconscious; and, she was not below twelve nor demented. with an unsuspecting victim, would all of a sudden
unexplainably blow his cover by revealing his identity.
WHEREFORE, the decision appealed from is REVERSED and SET Instinctively, the attacker's natural reaction would be to
ASIDE and accused-appellant SILVINO SALARZA JR. is shield himself from every possibility of being identified to
ACQUITTED of the crime charged; consequently, he is ordered avoid prosecution.
immediately RELEASED from confinement unless held for some
other lawful cause. Costs de oficio. Even more baffling is complainant's immediate reaction after
the alleged rape. Instead of fleeing from the clutches of her
SO ORDERED. attacker, complainant proceeded to the bathroom and
washed herself for fear of being impregnated. At the same We must perforce assay their contending accounts along the
time, she even talked to her attacker and asked him why he fundamental principle that the prosecution must rely primarily
did such thing to her. Undoubtedly, her reaction was too on the strength of its evidence, but with the contrapuntal rule
casual for somebody who was supposed to have undergone that affirmative assertions have greater evidentiary weight
a harrowing experience of rape. than bare denials. Also, while jurisprudence teaches that a
rape charge is easy to make and hard to disprove, since
On this score, I find it hard to give credence to complainant's generally only the complainant and the accused can testify
testimony bearing in mind that "evidence, to be believed, on what actually happened, yet it is both a commonsensical
must not only proceed from the mouth of a credible witness, and doctrinal rule that the weakness revealed by the false
but it must be credible in itself — such as the common testimony of one strengthens pro tanto the credibility of the
experience and observation of mankind can approve as declarations of the other.
probable under the circumstances." Complainant's testimony
does not jibe with the normal reactions commonly exhibited I fully agree with the discussion of Mr. Justice Davide that
by persons placed under the same situation. Thus, her considerations of law and logic sustain the truth of the
version is simply incredible. victim's assertions, with the accusing finger of prevarication
pointing at appellant. Indeed, one is hard put to rationalize
I therefore concur with the opinion of Justice Bellosillo and why complainant should charge appellant with such a
vote for the acquittal of herein accused-appellant. heinous crime with its grave penalty apparently for no reason
at all and without any perceivable motive for doing so.
Mendoza, J., concurs. Appellant's proffered explanation for such an inexplicable
conduct which he imputes to her is as bizarre as it is
melodramatic.
REGALADO, J., dissenting:
In complainant's story, we have all the earmarks of truth
I find the presentation and analysis by Mr. Justice Davide of consistent with the expectable reactions of a woman whose
the case for the People to be both objective and sustained virtue has been sullied against her will. As further imprints of
by the evidence, hence I adopt the position he has taken, her credibility, not all her revelatory statements are self-
with some observations in amplification. laudatory nor tailored by exaggeration in order to subserve
an unworthy purpose. Appellant, on the other hand, weaves
1. In the delictual setting of the rape case at bar, it is obvious a tale of fancied events which would project the sainted
that the ascertainment of the true factual version on its innocence he claims to have maintained against supposed
commission must have primacy in the inquiry. Here, as is erotic temptations.
often the situation, we have the word of complainant Zareen
Smith that she was raped while half-asleep as against that of Thus, for instance, complainant could very well have passed
appellant Salarza denying the charge. The peculiarity in the over in silence or explained away her past sexual
latter's negation is that, aside from completely denying that experiences abroad, or her relations with her local boyfriend,
he had ever sexually molested complainant, he adds that by Enrico de Jesus, just to strike a pitiable pose as a victim
her own enticements it would have been a consensual affair worthy of full sympathy. Instead of honestly admitting that
had he done so. she was half-asleep and slightly aware when the pre-coital
acts were done on her person, she could have so easily
dissembled without fear of contradiction that she was fast scandalously shouted and cursed out her frustration for all to
asleep and totally insensible to everything until her discovery hear, instead of keeping silent so that the shameful episode
of what appellant was doing to her. Yet, she did not do so would not be known by others.
but, to her credit, she candidly answered all question's
fielded to her by the investigators and the court in the Providentially, however, a third person was awakened by the
manner in which they now appear of record, thereby even unrestrained wailing of complainant over the outrage
affording appellant the opportunity for a nitpicking defense. committed against her and what the former revealed in her
testimony yields further light on the truth of complainant's
Appellant, as earlier stated, assumed a different stance by version. Nenita Marañon, caretaker of the cottage rented by
reciting that complainant first induced him to go to her complainant and her boyfriend, confirmed inter alia that upon
cottage; then after stripping to the nude, she first tried to arrival at the cottage, she heard complainant crying. In fact,
manually stimulate him sexually; then when he did not react, thinking that she was being forced to have sex by her
she wanted to perform fellatio on him; and when he refused, boyfriend against her will, Marañon called out to him not to
she tried to have him engage in cunnilingus with her. All do so, only to realize shortly thereafter that it was appellant
these sexual wiles and blandishments he claims to have instead who was there. Appellant admitted the truth of the
stolidly rejected, such that complainant angrily berated him caretaker's presence on that occasion, as well as the
for his stupidity. accuracy of what she recounted to the court.
That posture as a paragon of virtue which he affected was Taken in concert with the findings and conclusions in the
obviously to counter the prosecution's theory that, taking opinion of Mr. Justice Davide, I venture to state that only
advantage of complaint's somnolence or drowsiness, he naivete or gullibility would grant any cachet to appellant's
easily obtained physical access to and quickly commenced defensive charade. In fact, my understanding is that even
sexual congress with her but he was discovered as a those sympathetic to his plea for acquittal concede that he
lecherous impostor and the victim cried out her anguish and did have sexual intercourse with the victim, thereby
emotional revulsion. This was, therefore, the natural reaction upholding he version and giving the lie to that of appellant. It
of a woman who was wrongedby a sexual imposition against is instransigently posited, however, that the blame for the
her will. This is in contrast to appellant's pretense that she assault against her chastity is ascribable to complainant, and
shouted at and cursed him for rebuffing her advances, which that brings this opinion to a discussion of that extraordinary
would be the conduct of a woman scorned by his thesis.
indifference.
2. I need not devote much space to the proposition that it
A mere comparison of the respective narrations of the was complainant's negligence, in not ascertaining the
parties readily exposes which one is evidently fabricated. identity of the person who came in the dark to lie with her,
Indulging appellant in his fabulous claim, one may then which resulted in her revishment. This would be equivalent
wonder why, with the cottage door open and her boyfriend to saying that the stealth of the rapist would be rewarded
expected to return any time, complainant would seek to have with absolution upon proof of negligence on the part of the
both normal and deviant sexual relations with appellant, victim in meticulously ascertaining any semblance of
despite the time that would be involved and without any duplicity in the forbidding privacy of the bedroom.
precautions against discovery. Worse, after being thus Complainant was expecting her boyfriend's momentary
spurned in her alleged desires, she is supposed to have return, then she fell asleep; she was slightly aroused by the
preliminaries for coitus which she and her boyfriend had This is a legal gambit, passing under the guise of novelty,
been indulging in and, in the dark with nothing to warn her but which has been analyzed and disposed of long ago since
otherwise, in her drowsy state of mind she submitted to the it is a matter of common and ordinary human experience. A
person she thought was her boyfriend. woman who is half asleep being only half conscious, or in a
state of drowsiness hence not fully conscious, is not capable
She is now faulted for not exercising that degree of diligence of completely giving that consent contemplated as valid in
necessary to detect any strategy of an impostor, otherwise law which would bar a prosecution for rape upon the defense
the latter shall be rewarded for his success. The of consensuality in the sexual act.
responsibility for the sexual assault is laid at the door of the
victim for not detecting and preventing it from happening, Thus, as pointed out by one of our early commentators on
and not upon the felon who schemed and caused the event the Revised Penal Code, Judge Guillermo B. Guevarra, "He
to happen. This appears to be the alarming import of the who lies with a woman, while the latter is in a state of
arguments offered in defense of appellant on this score, a unconsciousness or drowsiness, is guilty of
cogitation which regretfully I cannot reconcile with any rape."2 Drowsiness is defined as the state of being drowsy,
doctrinal rule I have learned in the law of crimes against that is, ready to fall asleep or half asleep.3
chastity.
This echoes the writings of a Spanish commentator on this
It is insisted, moreover, that the pertinent law contemplates mode of commission of rape as embodied in the Spanish
the situation "(w)here the woman is deprived of reason or Penal Code of a vintage contemporary with ours, that is, El
otherwise unconscious,"1 and the cases so far decided in our Codigo de 1932, which provides that rape is committed "que
jurisdiction involved as victims women who were fully asleep este privada la mujer de razon o de sentido." He explains:
at the time the rape may be legally deemed consummated.
Hence, the case at bar does not fall within the purview of b) Que dentro de la frase privada de sentido cabe
such statutory and case law since the victim was comprender también aquellas situaciones en que
only half asleep and supposedly admitted to some degree of puede encontrarse la mujer en las que, bien por
awareness when her panties were being removed. accidentes exteriores, bien por hallarse en un
estado crepuscular, entienda que no debe resistir.
Mr. Justice Davide has cited authoritative discussions Es el caso . . . de la suplantación del marido
demonstrating, from both physiological and neurological (oscuridad, timbre de voz, semisueño, etcetera). La
considerations, that a person who is half asleep and jurisprudencia francesa siempre ha considerado
therefore in a stupor of drowsiness or semiconsciousness, is estos casos como de violación. En nuestra patria el
not capable of giving full, informed, intelligent and voluntary Tribunal Supremo asi lo estimo en un caso en que la
consent. This refutes and exposes the essence of mujer se encontraba dormida (31 de enero de
appellant's evasive tactics, that is, since it is beyond cavil 1902). Entendemos debe apreciarse igual doctrina
that he did sexually penetrate her, the fallback alternative is en las otras hipotesis.4 (Emphasis supplied).
to argue that it was with her consent even if she was then
half asleep. Parenthetically, the conjoined word "semisueño," which we
shall meet again, is the legal term used by Spanish
commentator to denote a person who is half asleep, "semi"
being the prefix meaning "half" or "partly," and "sueño" being persona con quien cohabitaba, lo rechazo al
"sleep, sleeping, drowsiness."5 instante, dando voces de socórro, a las que acudió
el padre de la agraviada para auxiliarla contra el
Of more familiarity and direct application to the present case violador, que al ver descubierto el fraude apeló
is the work of Viada on the Spanish Penal Code of precipitadamente a la fuga: Considerando que
1870,6 the principal source of our Revised Penal Code, semejantes hechos contienen los elementos
where he cites and discusses a case almost on all fours with constitutivos del crimen de violación, etc." (S. de 31
that before us, the only difference being that it was the de diciembre de 1858, Bull. Crim., pag.
husband there, and the boyfriend here, who was supplanted 539) Creemos que nuestros Tribunales habrian de
by the rapist. Involved therein was Article 453 of said Code resolver el caso en igual sentido, ya que
which pertinently provided: "Se comete violacion yaciendo comprendiendo el num. 2 del articulo, como caso de
con la mujer en cualquiero de los casos siguientes: . . . 2. violacion, el de yacer con una mujer cuando ésta se
Cuando la mujer se hallare privada de razon o de sentido halla privada de razon o de sentido, por cualquiera
por cualquiera causa." causa, habrian de estimar como causa de privación
de sentido ese semisueno durante el cual no
funcionan sino incompletamente las facultadas del
The illustration given therein, which is substantially identical
alma.7 (Emphases supplied.)
with the situation in the case at bar, is as follows:
CUESTION 6. El que aprovechandose With the confluence of all the foregoing indicia and dicta on
de semisueño de una mujer, penetra en su his guilt, it is pointless for appellant to latch on to the ignis
factuus of reasonable doubt for acquittal. For, as important
lechofraudulentamente, y yace con ella haciendola
creer que es su marido, sera responsable del delito as the rule that innocence shall not suffer is the societal
imperative that guilt shall not escape. The trial court, in my
de violacion? — El Tribunal Supremo de casacion
view, acted correctly in pronouncing a verdict of guilty in light
frances ha resuelto la afirmativa: "Considerando,
dice, que el crimen de violacion consiste en el hecho of the proven facts; unfortunately, it imposed an erroneous
penalty, in point of law.
de yacer con una mujer contra su voluntad, ya
provenga la falta de consentimiento de la violencia
fisical o moral que de se ejercicio sobre ella, ya del Appellant has been sentenced to death, the court below
cualqueir otro medio que consista en cohibirla o invoking as its authority therefor the provisions of Article 335
sorprenderla para conseguir, sin la voluntad de la of the Revised Penal Code, as last amended by Republic
victima, el objeto el autor del acto: Considerando Act No. 7659. Yet nowhere in the records is there a showing
que de los hechos probados en esta causa resulta that any of the circumstances which would warrant the
que valiendose Dubas de engañosos artificios con imposition of the capital punishment, as successively
objeto de hacerse pasar por Laurent, se ha introduced by amendments to Article 335,8 obtain in this
introducido en el cuarto y en el lecho de la mujer de case. For that matter, the trial court does not specify either
este, y aprovechandose del semisueño en que se or even intimate what circumstance it relies on for the death
hallaba sumida, ha logrado yacer con la expresada penalty. This is, therefore, a case of simple rape punishable
mujer, la que estaba tan distante de consentir el only by reclusion perpetua, yet the death penalty has been
acto ejeculado por Dubas, que al concebir inexplicably imposed through a serious judicial error for
sospechas de que no era realmente su marido la which the judge a quo should be made to account.
I, therefore, vote for the affirmance of the conviction of the run of things in this world. It has all the earmarks
accused-appellant Silverio Salarza, Jr. for the felony of of truth and verity. (OR, 71).
simple rape, and that the lower penalty of reclusion
perpetua be imposed on him. Its summary of Zareen's testimony and explanation as to its
credibility are as follows:
Padilla, Romero, Melo and Panganiban, JJ., concur.
The alleged victim and the vital witness presented
DAVIDE, JR., J., dissenting: by the prosecution to prove the heinous crime of
Rape charged in this case, Miss Zareen Smith, who
After reading the well-crafted ponencia of our colleague, Mr. is a British stage and TV actress, positively identified
Justice Bellosillo, the appealed decision and the transcripts and pointed to the accused Silverio Salarza,
of the stenographic notes of the witnesses, I am more than Jr. alias Jun as the person who "very quickly
convinced that accused-appellant should not be allowed to penetrated" her or had sexual intercourse with her
go scot-free. He should be convicted of rape. I beg then to without her consent and against her will which
dissent. happened at about 2:00 o'clock in the early morning
of May 1, 1994 in Cottage no. 1, at Sabang,
Cabayugan, Puerto Princesa City at the time she
The core issues in this case are: (a) whether accused
Silverio Salazar, Jr. had carnal knowledge of complainant, was half asleep and/or half awoke as she was drank
Zareen Smith; and (b) whether he did so under after taking liquor and tired and was merely asleep
for about two (2) hours earlier. Someone was
circumstances which made him liable for rape.
removing her underwear and she was half asleep
and the room was dark, and so, she assumed he
Zareen testified that accused had carnal knowledge of her was her boyfriend, Ricky de Jesus. Very quickly the
while she was half-sleep and in the belief, in all good faith, accused Jun Salarza was on top of her and
that it was her boyfriend Enrico de Jesus (Ricky) who penetrated her or had sexual intercourse with her
penetrated her. When she found out that it was the accused, which happened fast when she was still half asleep.
she immediately pushed him aside and confronted the The accused made in-and-out movements on top of
accused: "Why? Why did you do it to me? You have ruined her after he entered his penis into her vagina and
everything. You know that Ricky and I are trying to have a then told her: "Zareen, it's not Ricky, it's Jun, I love
baby of our own, what will happen now? I might get you". These words were uttered by the accused as if
impregnated by what you did to me." Then crying he wanted to wake her up. Upon hearing these
hysterically, she went to the bathroom to wash, with Nenita words, the victim Zareen pushed the accused off her
Marañon, caretakers of Mary's Cottage, having heard her immediately and ran to the bathroom a few meters
cries. away to wash herself. While washing at the
bathroom, she was screaming at the accused in a
The trial court gave full faith to her story, holding: loud voice, saying: "Why Jun did you do this to me,
you ruined everything. You know Ricky and I wanted
The testimony of the complaining witness herein is to have a baby, why did you do this to me, why?
very credible. It is natural, simple, straightforward, why?" Then the accused Salarza came to the door
convincing and consistent with human nature and of the bathroom and tried to pacify her. He wanted
her to be calm because she was hysterical. The On the other hand, the trial court found incredulous the
accused Jun Salarza then told her? "It's alright I did defense of the accused that he had no carnal knowledge of
not finish". The victim Zareen was crying as she was Zareen because, despite Zareen's flirtatious ways, he was
washing herself and she told him that her boyfriend not provoked; and despite her vigorous efforts to excite his
would kill her to which the accused answered that he penis, it did not "harden;" hence, he was unable to insert his
knows. penis into Zareen's private parts. For one, accused's own
witness, PO2 Rosauro Rodillo, testified that accused
The rape victim reported this incident to the admitted having had sex with Zareen. On cross-examination
policeman at the Police Sub-Station in Sabang, Rodillo declared:
Cabayugan and had herself medically examined by
Dr. Jesselito De Lara at the Sabang medical clinic PROSECUTOR SENA:
with the help of Ricky de Jesus and his lola, Nenita
Marañon. Then she formalized a complaint against Q Is it not a fact that when you
the accused (Exhibits "B", "B-1", "B-2" and "B-3") confronted Jun Salarza that he had
and executed a sworn statement in support thereof raped the victim Zareen Smith he
(Exhibits "D", "D-1", and "D-3"). admitted he used Zareen Smith only
he justified it that Zareen Smith
The alleged rape incident was duly reported to the loves him also?
nearest policemen and accordingly entered in the
blotter of the police sub-station of Sabang, A Yes, Sir.
Cabayugan, this City. The British victim with the help
of her friends in the locality, lost no time in taking
COURT:
appropriate action against the accused after her
womanhood and honor were violated and
transgressed which is but a natural reaction of any Q What did the accused admit to
aggrieved party who has a legitimate gripe to you?
address against a felon.
A That he had sex with Zareen
It is notably significant that the complaining witness, Smith because Zareen Smith loves
Zareen Smith made loud cries, shouts and screams him, Your Honor. (TSN, 8 June
immediately after the accused sexually abused her. 1994, 22-23)
She angrily rebuked and scolded and sharply
reprimandad the accused for his unwarranted act in For another, and more specifically as to accused's claim that
entering his penis into her private organ. These are he was not sufficiently stimulated to achieve an erection, the
proofs enough that show the disapproves, rejects, trial court, which had the singular advantage of observing
disagrees, resents, abhors and did not like what the accused's deportment and manner of testifying and taking
accused did to her. She looks decent enough to be full use of all aids to arrive at a more accurate assessment of
sexually assaulted. (id., 69-70) his credibility, declared:
The version of the accused on this score is A Yes, Sir.
unnatural, abnormal and contrary to human nature
and experience. Only inanimate objects do not react. Q Americans?
The accused looks normal and not otherwise as a
human person. The court saw and observed him to
A No, Sir.
be so. With his young age and status it is unlikely
that his penis will not erect or harden if held and
played by a woman younger than him but single like Q What are they?
him, especially a foreigners. (id. 71).
A They are from Netherlands, Your
The trial court must have borne in mind the fact that on two Honor. (TSN, 9 June 1994, 29-30).
previous occasions, accused had carnal knowledge of two
foreigners of the opposite sex at the same Mary's Cottage Notably, accused likewise failed to convincingly refute the
where Zareen claimed to have been raped by accused. On testimony of Enrico that at one time the accused went inside
questions by the trial court, accused volunteered the a cottage where a female foreigner was sleeping; although
information that he had sex with two foreigners, thus: no rape happened, the latter cried and reported the incident
to her sister. (TSN, 2 June 1994, 31-32).
COURT:
The trial court correctly took note of these previous incidents,
xxx xxx xxx for under Section 34 of Rule 130 of the Rules of Court, they
can be received "to prove a specific intent, . . . plan . .
. scheme, habit . . . and the like." With those incidents as
Q As caretaker of the cottage, have premises, relevant as they are in legal contemplation, the
you had even one sexual conclusion is inevitable that the accused is a woman
intercourse with tourist, not
molester, with a lechery partial to Caucasians. His
necessarily Zareen Smith?
description of himself then as a "fisherman and public
relation officer and a tourist guide at the Mary's Cottage,"
A I have, Your Honor. (TSN, 9 June 1994, 3) was nothing but a camouflage to
conceal a satyr on the prowl.
Q How many foreigners?
There is, as well, no doubt in my mind that accused
A Two times, Your Honor. intentionally proceeded to Mary's Cottage to molest Zareen.
If he merely wanted to go to the public restroom to wash off
Q Both foreigners? the sand on his body, he could have done so without
passing by Mary's Cottage, as the communal restroom. That
was more than one hundred meters away from Mary's
A Yes, Sir.
Cottage. Moreover, it was not necessary for him to wash off
the sand at the public restroom, he could have simply
Q White? returned to the sea nearby. He went to Mary's Cottage
because he knew Zareen was there, Ricky having gone back A We detained him temporarily to
to the beach without her. rest and that because he was drunk,
Your Honor.
Zareen's unhesitating admission of nightly sex with her
boyfriend Ricky and sexual congress with her previous Q In your station?
boyfriends should not have been taken against her, as
the ponencia impliedly suggests; in fact, they were even A Yes, Your Honor.
earmarks of her truthfulness. She could have easily hidden
those facts, there being no necessity for their revelation. It
Q So, because he was drunk you
would then be irrelevant and thus impermissible to consider
detained him not because of the
Zareen's behaviour and conclude that she was sexually
reported rape?
indiscriminate as the defense would make her out to be.
Clearly, a distinction may be drawn between one who is
sexually active, but monogamous, on one hand, and who A For both reasons, Your Honor.
engages in indiscriminate promiscuity, on the other. But (TSN, 8 June 1994, 21).
even assuming otherwise, it must not be forgotten that even
prostitutes may be a victim of rape (People v. Rivera, 242 If indeed the accused was drunk, it would have been
SCRA 26, 37 [1995]), and the victim's unchaste character is impossible for him to observed vividly, must less accurately
neither a defense nor a mitigating circumstance in rape recall what transpired.
cases (RAMON C. AQUINO, The Revised Penal Code, vol.
3 [1988], 405-406). Finally, Zareen's conduct immediately after discovering that
the man who penetrated her was not Ricky, but the accused,
With equal strength, it must not be overlooked that the further strengthened the credibility of her story that she was
character assassination employed by accused against penetrated by the accused. She shouted at and confronted
Zareen is simply contrived and an afterthought. The accused the accused, ran to the bathroom to wash, cried and became
forgot that his main thesis was that he was under the hysterical. Her cries were in fact heard by Nenita Marañon,
influence of liquor (Tanduay) or, as testified to by his witness caretaker of the Mary's Cottage, although Nenita was staying
PO2 Rodillo, the, accused, was drunk, thus: at a place which 500 meters from Mary's Cottage (TSN, 1
June 1994, 8-9); she reported the incident to the police
COURT: authorities and submitted herself to an investigation. Then
she voluntarily submitted herself to a physical and medical
examination by a physician who examined her private parts.
Q When you met Jun Salarza on the
These speak eloquently of her sincerity in obtaining justice
beach, Jun Salarza went on his own and seeking redress for a wrong, and of the absence of any
way and proceeded to Mary's ulterior motive on her part.
Cottage?
Having thus shown that accused consummated his carnal
A No, your Honor.
knowledge of Zareen, the issue that remains to be resolved
is whether that act constituted rape under the second
Q What happened?
circumstance of Article 335 of the Revised Penal Code. This likewise determine whether the victim was fully informed of
Article pertinently provides as follows: all considerations so as to make a free and informed
decision regarding the grant of consent. It is only through
Art. 335. When and how rape is committed. — Rape this two-tiered test that a holistic appraisal of consent may
is committed by having carnal knowledge of a be had.
woman under any of the following circumstances:
In our jurisprudence, carnal knowledge of a sleeping woman
1. By using force or intimidation; is rape (People v. Dayo, 51 Phil. 102 [1927]; People v.
Corcino, 53 Phil. 234 [1929]; People v. Caballero, 61 Phil.
900 [1935] and People v. Conde, 322 Phil. 757 [1996]),
2. When the woman is deprived of
because in that state the woman is completely unconscious,
reason or otherwise unconscious;
both physically and mentally. Sleep, being the naturally or
and
artificially induced state of suspension of sensory and motor
activity (People v. Conde, supra, at 767), obviously deprives
3. When the woman is under twelve a woman of the ability to consent. However, to repeat, since
years of age or is demented. it is "absence or lack of will" which is the primordial factor in
the second circumstance of rape, then I submit that to
The trial court held as it did because Zareen was half-asleep construe the term "unconsciousness" exclusively in light of
and believed in good faith that the accused was her physical considerations would be unduly restrictive and fail
boyfriend Ricky. The trial court did not use the to heed the gravamen of the offense, i.e., lack of consent.
word unconscious, it only ruled that she was "half-asleep or
subconscious (sic)" in one instance (Decision, p. 17; OR, 68) The ponencia makes much of Zareen's testimony that she
or "half-asleep and semi-conscious" in another instance (id., was aware that someone pulled off her underwear and
21; id., 72). spread her legs, then concludes that she must have
been fully conscious and could not have been mistaken as to
When a woman is "deprived of reason" or is "unconscious," her partner's identity. However, to take this at face value
she is deemed to have "no will," as distinguished from the would not serve the ends of justice. Plainly, despite Zareen's
first circumstance where force or intimidation is used, in awareness of what was being done to her, the question
which case her will "is nullified or destroyed," or that it was of who was doing it to her was a totally different matter. Her
committed against her will (AQUINO, op. cit., 393). accession to the what was premised on the belief, in good
faith, that it was her boyfriend who lay with her in bed. Her
Deprivation of reason need not be complete, as mere mental failure to ascertain the identity of her partner was a mistake
abnormality or deficiency is enough. (Id., 393-394) The crux in good faith for which she should not be faulted; neither
of the matter then is the construction and interpretation of should it result in the acquittal of accused-appellant.
the word "unconscious." I submit that since both "being
deprived of reason" and "unconsciousness" are founded on In Zareen's case, she was still "half-asleep" or drowsy when
absence of will to give consent intelligently and freely, the she was penetrated by the accused, having been awakened
term "unconsciousness," then, should not be tested by a when he removed her underwear and mounted her, which
mere physical standard, i.e., whether one is awake or she acceded to believing, in good faith, that it was her
asleep, conscious or alert. Rather, the inquiry should boyfriend Ricky, with whom she had nightly intercourse.
When this belief turned out to be erroneous when accused circumstances of time and place, Zareen was clearly, in
announced, in the midst of the act, that he was not Ricky, layman's language: disoriented, drowsy or confused,4 thus
but Jun (the accused), that was the only time that Zareen cannot be held culpable for her failure to immediately
became fully aware of the totality of circumstances — recognize that it was not Ricky, nor her failure to ascertain
critically, that of her partner's identity — at which time she Jun's identity, not even her assumption that it was Ricky who
intelligently and freely exercised her will by immediately and lay with her:
unequivocally rejecting the accused.
This orientation as to person, place, and time
I submit that an inquiry into whether or not Zareen was half- depends on the ongoing sensory impression. Have
asleep does not suffice as regards the determination of an you ever awakened from a deep sleep to find that
intelligent grant of consent; hence it may be said that in a momentarily you did not know the day, the hour, or
sense, the grant of consent was likewise not free. Clearly, it even where you were? Weren't your mental
is only when a woman is fully informed that consent may be functions impaired until you became oriented, until
intelligently given — which was absent in the instant case. all the pieces of the puzzle suddenly fell into place? .
Further, given that Zareen was newly awakened and still . .5 (emphasis supplied)
drowsy; that it was 2:30 a.m.; that she was in her cottage;
and that she had known only Ricky for the last three weeks, Returning to the legal front, what is material here is that any
it was then not unreasonable for her to presume that the semblance of consent given was clearly and painfully a
man who lay with her that night was no one else but Ricky. mistake in good faith, as Zareen was not fully aware of the
totality of the circumstances, thus rendering her, for all legal
However, should there by any further debate on the issue of intents and purposes, unconscious and unable to give
Zareen's physical condition and consequences thereof, i.e., consent freely and intelligently. All told, this instance of
she was "awake" thus fully conscious, I assert that Zareen's reverse error in personae, clearly a material factor in the
failure to detect that it was not Ricky who lay with her that grant of consent by the victim, resulted in total absence of
night, was not only not unreasonable, but perfectly consent which accused-appellant should be held criminally
understandable, in light of human nature and as recognized liable for as charged.
by the medical profession. "Consciousness" has been
described by medical practitioners as denoting a state of On a final note, however, the penalty therefor should not be
awareness of one's self and one's environment; 1 conversely, death, as erroneously ruled by the trial court. Under Article
whether a person is disoriented is measured by one's degree 335 of the Revised Penal Code, as amended by R.A. No.
of alertness and awareness of the environment, considering 7659, death is imposable only under any of the following
the circumstances of time, place and person.2 circumstances, none of which obtain here:
What matters for purposes of this opinion is that the medical When the crime of rape is committed with the use of
profession recognizes a spectrum of impaired or depressed a deadly weapon or by two or more persons, the
consciousness and orientation in persons who are penalty shall be reclusion perpetua to death.
nevertheless deemed "awake." The terms used in this
regard are obtundity, somnolence and stupor.3 While we
wish not to dabble in areas where we admittedly do not
possess the requisite expertise, at bottom, given the
When by reason or on the occasion of the rape, the Deficiency Syndrome (AIDS)
victim has become insane, the penalty shall be disease.
death.
6. When committed by any member
When the rape is attempted or frustrated and a of the Armed Forces of the
homicide is committed by reason or on the occasion Philippines or the Philippine
thereof, the penalty shall be reclusion perpetua to National Police or any law
death. enforcement agency.
5. When the offender knows that he Complainant's tale of rape is unconvicing. It is quite puzzling
is afflicted with Acquired Immune that a supposed rapist, who having accomplished with
utmost ease his sinister intention to have carnal knowledge 1. In the delictual setting of the rape case at bar, it is obvious
with an unsuspecting victim, would all of a sudden that the ascertainment of the true factual version on its
unexplainably blow his cover by revealing his identity. commission must have primacy in the inquiry. Here, as is
Instinctively, the attacker's natural reaction would be to often the situation, we have the word of complainant Zareen
shield himself from every possibility of being identified to Smith that she was raped while half-asleep as against that of
avoid prosecution. appellant Salarza denying the charge. The peculiarity in the
latter's negation is that, aside from completely denying that
Even more baffling is complainant's immediate reaction after he had ever sexually molested complainant, he adds that by
the alleged rape. Instead of fleeing from the clutches of her her own enticements it would have been a consensual affair
attacker, complainant proceeded to the bathroom and had he done so.
washed herself for fear of being impregnated. At the same
time, she even talked to her attacker and asked him why he We must perforce assay their contending accounts along the
did such thing to her. Undoubtedly, her reaction was too fundamental principle that the prosecution must rely primarily
casual for somebody who was supposed to have undergone on the strength of its evidence, but with the contrapuntal rule
a harrowing experience of rape. that affirmative assertions have greater evidentiary weight
than bare denials. Also, while jurisprudence teaches that a
On this score, I find it hard to give credence to complainant's rape charge is easy to make and hard to disprove, since
testimony bearing in mind that "evidence, to be believed, generally only the complainant and the accused can testify
must not only proceed from the mouth of a credible witness, on what actually happened, yet it is both a commonsensical
but it must be credible in itself — such as the common and doctrinal rule that the weakness revealed by the false
experience and observation of mankind can approve as testimony of one strengthens pro tanto the credibility of the
probable under the circumstances." Complainant's testimony declarations of the other.
does not jibe with the normal reactions commonly exhibited
by persons placed under the same situation. Thus, her I fully agree with the discussion of Mr. Justice Davide that
version is simply incredible. considerations of law and logic sustain the truth of the
victim's assertions, with the accusing finger of prevarication
I therefore concur with the opinion of Justice Bellosillo and pointing at appellant. Indeed, one is hard put to rationalize
vote for the acquittal of herein accused-appellant. why complainant should charge appellant with such a
heinous crime with its grave penalty apparently for no reason
Mendoza, J., concurs. at all and without any perceivable motive for doing so.
Appellant's proffered explanation for such an inexplicable
conduct which he imputes to her is as bizarre as it is
REGALADO, J., dissenting: melodramatic.
I find the presentation and analysis by Mr. Justice Davide of In complainant's story, we have all the earmarks of truth
the case for the People to be both objective and sustained consistent with the expectable reactions of a woman whose
by the evidence, hence I adopt the position he has taken, virtue has been sullied against her will. As further imprints of
with some observations in amplification. her credibility, not all her revelatory statements are self-
laudatory nor tailored by exaggeration in order to subserve
an unworthy purpose. Appellant, on the other hand, weaves
a tale of fancied events which would project the sainted would be the conduct of a woman scorned by his
innocence he claims to have maintained against supposed indifference.
erotic temptations.
A mere comparison of the respective narrations of the
Thus, for instance, complainant could very well have passed parties readily exposes which one is evidently fabricated.
over in silence or explained away her past sexual Indulging appellant in his fabulous claim, one may then
experiences abroad, or her relations with her local boyfriend, wonder why, with the cottage door open and her boyfriend
Enrico de Jesus, just to strike a pitiable pose as a victim expected to return any time, complainant would seek to have
worthy of full sympathy. Instead of honestly admitting that both normal and deviant sexual relations with appellant,
she was half-asleep and slightly aware when the pre-coital despite the time that would be involved and without any
acts were done on her person, she could have so easily precautions against discovery. Worse, after being thus
dissembled without fear of contradiction that she was fast spurned in her alleged desires, she is supposed to have
asleep and totally insensible to everything until her discovery scandalously shouted and cursed out her frustration for all to
of what appellant was doing to her. Yet, she did not do so hear, instead of keeping silent so that the shameful episode
but, to her credit, she candidly answered all question's would not be known by others.
fielded to her by the investigators and the court in the
manner in which they now appear of record, thereby even Providentially, however, a third person was awakened by the
affording appellant the opportunity for a nitpicking defense. unrestrained wailing of complainant over the outrage
committed against her and what the former revealed in her
Appellant, as earlier stated, assumed a different stance by testimony yields further light on the truth of complainant's
reciting that complainant first induced him to go to her version. Nenita Marañon, caretaker of the cottage rented by
cottage; then after stripping to the nude, she first tried to complainant and her boyfriend, confirmed inter alia that upon
manually stimulate him sexually; then when he did not react, arrival at the cottage, she heard complainant crying. In fact,
she wanted to perform fellatio on him; and when he refused, thinking that she was being forced to have sex by her
she tried to have him engage in cunnilingus with her. All boyfriend against her will, Marañon called out to him not to
these sexual wiles and blandishments he claims to have do so, only to realize shortly thereafter that it was appellant
stolidly rejected, such that complainant angrily berated him instead who was there. Appellant admitted the truth of the
for his stupidity. caretaker's presence on that occasion, as well as the
accuracy of what she recounted to the court.
That posture as a paragon of virtue which he affected was
obviously to counter the prosecution's theory that, taking Taken in concert with the findings and conclusions in the
advantage of complaint's somnolence or drowsiness, he opinion of Mr. Justice Davide, I venture to state that only
easily obtained physical access to and quickly commenced naivete or gullibility would grant any cachet to appellant's
sexual congress with her but he was discovered as a defensive charade. In fact, my understanding is that even
lecherous impostor and the victim cried out her anguish and those sympathetic to his plea for acquittal concede that he
emotional revulsion. This was, therefore, the natural reaction did have sexual intercourse with the victim, thereby
of a woman who was wrongedby a sexual imposition against upholding he version and giving the lie to that of appellant. It
her will. This is in contrast to appellant's pretense that she is instransigently posited, however, that the blame for the
shouted at and cursed him for rebuffing her advances, which assault against her chastity is ascribable to complainant, and
that brings this opinion to a discussion of that extraordinary Mr. Justice Davide has cited authoritative discussions
thesis. demonstrating, from both physiological and neurological
considerations, that a person who is half asleep and
2. I need not devote much space to the proposition that it therefore in a stupor of drowsiness or semiconsciousness, is
was complainant's negligence, in not ascertaining the not capable of giving full, informed, intelligent and voluntary
identity of the person who came in the dark to lie with her, consent. This refutes and exposes the essence of
which resulted in her revishment. This would be equivalent appellant's evasive tactics, that is, since it is beyond cavil
to saying that the stealth of the rapist would be rewarded that he did sexually penetrate her, the fallback alternative is
with absolution upon proof of negligence on the part of the to argue that it was with her consent even if she was then
victim in meticulously ascertaining any semblance of half asleep.
duplicity in the forbidding privacy of the bedroom.
Complainant was expecting her boyfriend's momentary This is a legal gambit, passing under the guise of novelty,
return, then she fell asleep; she was slightly aroused by the but which has been analyzed and disposed of long ago since
preliminaries for coitus which she and her boyfriend had it is a matter of common and ordinary human experience. A
been indulging in and, in the dark with nothing to warn her woman who is half asleep being only half conscious, or in a
otherwise, in her drowsy state of mind she submitted to the state of drowsiness hence not fully conscious, is not capable
person she thought was her boyfriend. of completely giving that consent contemplated as valid in
law which would bar a prosecution for rape upon the defense
She is now faulted for not exercising that degree of diligence of consensuality in the sexual act.
necessary to detect any strategy of an impostor, otherwise
the latter shall be rewarded for his success. The Thus, as pointed out by one of our early commentators on
responsibility for the sexual assault is laid at the door of the the Revised Penal Code, Judge Guillermo B. Guevarra, "He
victim for not detecting and preventing it from happening, who lies with a woman, while the latter is in a state of
and not upon the felon who schemed and caused the event unconsciousness or drowsiness, is guilty of
to happen. This appears to be the alarming import of the rape."2 Drowsiness is defined as the state of being drowsy,
arguments offered in defense of appellant on this score, a that is, ready to fall asleep or half asleep.3
cogitation which regretfully I cannot reconcile with any
doctrinal rule I have learned in the law of crimes against This echoes the writings of a Spanish commentator on this
chastity. mode of commission of rape as embodied in the Spanish
Penal Code of a vintage contemporary with ours, that is, El
It is insisted, moreover, that the pertinent law contemplates Codigo de 1932, which provides that rape is committed "que
the situation "(w)here the woman is deprived of reason or este privada la mujer de razon o de sentido." He explains:
otherwise unconscious,"1 and the cases so far decided in our
jurisdiction involved as victims women who were fully asleep b) Que dentro de la frase privada de sentido cabe
at the time the rape may be legally deemed consummated. comprender también aquellas situaciones en que
Hence, the case at bar does not fall within the purview of puede encontrarse la mujer en las que, bien por
such statutory and case law since the victim was accidentes exteriores, bien por hallarse en un
only half asleep and supposedly admitted to some degree of estado crepuscular, entienda que no debe resistir.
awareness when her panties were being removed. Es el caso . . . de la suplantación del marido
(oscuridad, timbre de voz, semisueño, etcetera). La cualqueir otro medio que consista en cohibirla o
jurisprudencia francesa siempre ha considerado sorprenderla para conseguir, sin la voluntad de la
estos casos como de violación. En nuestra patria el victima, el objeto el autor del acto: Considerando
Tribunal Supremo asi lo estimo en un caso en que la que de los hechos probados en esta causa resulta
mujer se encontraba dormida (31 de enero de que valiendose Dubas de engañosos artificios con
1902). Entendemos debe apreciarse igual doctrina objeto de hacerse pasar por Laurent, se ha
en las otras hipotesis.4 (Emphasis supplied). introducido en el cuarto y en el lecho de la mujer de
este, y aprovechandose del semisueño en que se
Parenthetically, the conjoined word "semisueño," which we hallaba sumida, ha logrado yacer con la expresada
shall meet again, is the legal term used by Spanish mujer, la que estaba tan distante de consentir el
commentator to denote a person who is half asleep, "semi" acto ejeculado por Dubas, que al concebir
being the prefix meaning "half" or "partly," and "sueño" being sospechas de que no era realmente su marido la
"sleep, sleeping, drowsiness."5 persona con quien cohabitaba, lo rechazo al
instante, dando voces de socórro, a las que acudió
Of more familiarity and direct application to the present case el padre de la agraviada para auxiliarla contra el
violador, que al ver descubierto el fraude apeló
is the work of Viada on the Spanish Penal Code of
precipitadamente a la fuga: Considerando que
1870,6 the principal source of our Revised Penal Code,
semejantes hechos contienen los elementos
where he cites and discusses a case almost on all fours with
constitutivos del crimen de violación, etc." (S. de 31
that before us, the only difference being that it was the
de diciembre de 1858, Bull. Crim., pag.
husband there, and the boyfriend here, who was supplanted
539) Creemos que nuestros Tribunales habrian de
by the rapist. Involved therein was Article 453 of said Code
resolver el caso en igual sentido, ya que
which pertinently provided: "Se comete violacion yaciendo
comprendiendo el num. 2 del articulo, como caso de
con la mujer en cualquiero de los casos siguientes: . . . 2.
violacion, el de yacer con una mujer cuando ésta se
Cuando la mujer se hallare privada de razon o de sentido
halla privada de razon o de sentido, por cualquiera
por cualquiera causa."
causa, habrian de estimar como causa de privación
de sentido ese semisueno durante el cual no
The illustration given therein, which is substantially identical funcionan sino incompletamente las facultadas del
with the situation in the case at bar, is as follows: alma.7 (Emphases supplied.)
CUESTION 6. El que aprovechandose With the confluence of all the foregoing indicia and dicta on
de semisueño de una mujer, penetra en su his guilt, it is pointless for appellant to latch on to the ignis
lechofraudulentamente, y yace con ella haciendola factuus of reasonable doubt for acquittal. For, as important
creer que es su marido, sera responsable del delito as the rule that innocence shall not suffer is the societal
de violacion? — El Tribunal Supremo de casacion imperative that guilt shall not escape. The trial court, in my
frances ha resuelto la afirmativa: "Considerando, view, acted correctly in pronouncing a verdict of guilty in light
dice, que el crimen de violacion consiste en el hecho of the proven facts; unfortunately, it imposed an erroneous
de yacer con una mujer contra su voluntad, ya penalty, in point of law.
provenga la falta de consentimiento de la violencia
fisical o moral que de se ejercicio sobre ella, ya del
Appellant has been sentenced to death, the court below she immediately pushed him aside and confronted the
invoking as its authority therefor the provisions of Article 335 accused: "Why? Why did you do it to me? You have ruined
of the Revised Penal Code, as last amended by Republic everything. You know that Ricky and I are trying to have a
Act No. 7659. Yet nowhere in the records is there a showing baby of our own, what will happen now? I might get
that any of the circumstances which would warrant the impregnated by what you did to me." Then crying
imposition of the capital punishment, as successively hysterically, she went to the bathroom to wash, with Nenita
introduced by amendments to Article 335,8 obtain in this Marañon, caretakers of Mary's Cottage, having heard her
case. For that matter, the trial court does not specify either cries.
or even intimate what circumstance it relies on for the death
penalty. This is, therefore, a case of simple rape punishable The trial court gave full faith to her story, holding:
only by reclusion perpetua, yet the death penalty has been
inexplicably imposed through a serious judicial error for
The testimony of the complaining witness herein is
which the judge a quo should be made to account.
very credible. It is natural, simple, straightforward,
convincing and consistent with human nature and
I, therefore, vote for the affirmance of the conviction of the run of things in this world. It has all the earmarks
accused-appellant Silverio Salarza, Jr. for the felony of of truth and verity. (OR, 71).
simple rape, and that the lower penalty of reclusion
perpetua be imposed on him.
Its summary of Zareen's testimony and explanation as to its
credibility are as follows:
Padilla, Romero, Melo and Panganiban, JJ., concur.
The alleged victim and the vital witness presented
DAVIDE, JR., J., dissenting: by the prosecution to prove the heinous crime of
Rape charged in this case, Miss Zareen Smith, who
After reading the well-crafted ponencia of our colleague, Mr. is a British stage and TV actress, positively identified
Justice Bellosillo, the appealed decision and the transcripts and pointed to the accused Silverio Salarza,
of the stenographic notes of the witnesses, I am more than Jr. alias Jun as the person who "very quickly
convinced that accused-appellant should not be allowed to penetrated" her or had sexual intercourse with her
go scot-free. He should be convicted of rape. I beg then to without her consent and against her will which
dissent. happened at about 2:00 o'clock in the early morning
of May 1, 1994 in Cottage no. 1, at Sabang,
The core issues in this case are: (a) whether accused Cabayugan, Puerto Princesa City at the time she
Silverio Salazar, Jr. had carnal knowledge of complainant, was half asleep and/or half awoke as she was drank
Zareen Smith; and (b) whether he did so under after taking liquor and tired and was merely asleep
circumstances which made him liable for rape. for about two (2) hours earlier. Someone was
removing her underwear and she was half asleep
and the room was dark, and so, she assumed he
Zareen testified that accused had carnal knowledge of her
was her boyfriend, Ricky de Jesus. Very quickly the
while she was half-sleep and in the belief, in all good faith,
accused Jun Salarza was on top of her and
that it was her boyfriend Enrico de Jesus (Ricky) who
penetrated her. When she found out that it was the accused, penetrated her or had sexual intercourse with her
which happened fast when she was still half asleep. aggrieved party who has a legitimate gripe to
The accused made in-and-out movements on top of address against a felon.
her after he entered his penis into her vagina and
then told her: "Zareen, it's not Ricky, it's Jun, I love It is notably significant that the complaining witness,
you". These words were uttered by the accused as if Zareen Smith made loud cries, shouts and screams
he wanted to wake her up. Upon hearing these immediately after the accused sexually abused her.
words, the victim Zareen pushed the accused off her She angrily rebuked and scolded and sharply
immediately and ran to the bathroom a few meters reprimandad the accused for his unwarranted act in
away to wash herself. While washing at the entering his penis into her private organ. These are
bathroom, she was screaming at the accused in a proofs enough that show the disapproves, rejects,
loud voice, saying: "Why Jun did you do this to me, disagrees, resents, abhors and did not like what the
you ruined everything. You know Ricky and I wanted accused did to her. She looks decent enough to be
to have a baby, why did you do this to me, why? sexually assaulted. (id., 69-70)
why?" Then the accused Salarza came to the door
of the bathroom and tried to pacify her. He wanted On the other hand, the trial court found incredulous the
her to be calm because she was hysterical. The
defense of the accused that he had no carnal knowledge of
accused Jun Salarza then told her? "It's alright I did
Zareen because, despite Zareen's flirtatious ways, he was
not finish". The victim Zareen was crying as she was
not provoked; and despite her vigorous efforts to excite his
washing herself and she told him that her boyfriend
penis, it did not "harden;" hence, he was unable to insert his
would kill her to which the accused answered that he penis into Zareen's private parts. For one, accused's own
knows. witness, PO2 Rosauro Rodillo, testified that accused
admitted having had sex with Zareen. On cross-examination
The rape victim reported this incident to the Rodillo declared:
policeman at the Police Sub-Station in Sabang,
Cabayugan and had herself medically examined by PROSECUTOR SENA:
Dr. Jesselito De Lara at the Sabang medical clinic
with the help of Ricky de Jesus and his lola, Nenita
Marañon. Then she formalized a complaint against Q Is it not a fact that when you
the accused (Exhibits "B", "B-1", "B-2" and "B-3") confronted Jun Salarza that he had
and executed a sworn statement in support thereof raped the victim Zareen Smith he
(Exhibits "D", "D-1", and "D-3"). admitted he used Zareen Smith only
he justified it that Zareen Smith
loves him also?
The alleged rape incident was duly reported to the
nearest policemen and accordingly entered in the
blotter of the police sub-station of Sabang, A Yes, Sir.
Cabayugan, this City. The British victim with the help
of her friends in the locality, lost no time in taking COURT:
appropriate action against the accused after her
womanhood and honor were violated and Q What did the accused admit to
transgressed which is but a natural reaction of any you?
A That he had sex with Zareen Q How many foreigners?
Smith because Zareen Smith loves
him, Your Honor. (TSN, 8 June A Two times, Your Honor.
1994, 22-23)
Q Both foreigners?
For another, and more specifically as to accused's claim that
he was not sufficiently stimulated to achieve an erection, the A Yes, Sir.
trial court, which had the singular advantage of observing
accused's deportment and manner of testifying and taking
full use of all aids to arrive at a more accurate assessment of Q White?
his credibility, declared:
A Yes, Sir.
The version of the accused on this score is
unnatural, abnormal and contrary to human nature Q Americans?
and experience. Only inanimate objects do not react.
The accused looks normal and not otherwise as a A No, Sir.
human person. The court saw and observed him to
be so. With his young age and status it is unlikely Q What are they?
that his penis will not erect or harden if held and
played by a woman younger than him but single like
A They are from Netherlands, Your
him, especially a foreigners. (id. 71).
Honor. (TSN, 9 June 1994, 29-30).
The trial court must have borne in mind the fact that on two
Notably, accused likewise failed to convincingly refute the
previous occasions, accused had carnal knowledge of two
testimony of Enrico that at one time the accused went inside
foreigners of the opposite sex at the same Mary's Cottage
a cottage where a female foreigner was sleeping; although
where Zareen claimed to have been raped by accused. On
no rape happened, the latter cried and reported the incident
questions by the trial court, accused volunteered the
to her sister. (TSN, 2 June 1994, 31-32).
information that he had sex with two foreigners, thus:
I submit that an inquiry into whether or not Zareen was half- This orientation as to person, place, and time
asleep does not suffice as regards the determination of an depends on the ongoing sensory impression. Have
intelligent grant of consent; hence it may be said that in a you ever awakened from a deep sleep to find that
sense, the grant of consent was likewise not free. Clearly, it momentarily you did not know the day, the hour, or
is only when a woman is fully informed that consent may be even where you were? Weren't your mental
intelligently given — which was absent in the instant case. functions impaired until you became oriented, until
Further, given that Zareen was newly awakened and still all the pieces of the puzzle suddenly fell into place? .
drowsy; that it was 2:30 a.m.; that she was in her cottage; . .5 (emphasis supplied)
and that she had known only Ricky for the last three weeks,
it was then not unreasonable for her to presume that the Returning to the legal front, what is material here is that any
man who lay with her that night was no one else but Ricky. semblance of consent given was clearly and painfully a
mistake in good faith, as Zareen was not fully aware of the
However, should there by any further debate on the issue of totality of the circumstances, thus rendering her, for all legal
Zareen's physical condition and consequences thereof, i.e., intents and purposes, unconscious and unable to give
she was "awake" thus fully conscious, I assert that Zareen's consent freely and intelligently. All told, this instance of
failure to detect that it was not Ricky who lay with her that reverse error in personae, clearly a material factor in the
night, was not only not unreasonable, but perfectly grant of consent by the victim, resulted in total absence of
understandable, in light of human nature and as recognized consent which accused-appellant should be held criminally
by the medical profession. "Consciousness" has been liable for as charged.
described by medical practitioners as denoting a state of
awareness of one's self and one's environment; 1 conversely, On a final note, however, the penalty therefor should not be
whether a person is disoriented is measured by one's degree death, as erroneously ruled by the trial court. Under Article
335 of the Revised Penal Code, as amended by R.A. No. the children or other relatives within
7659, death is imposable only under any of the following the third degree or consanguinity.
circumstances, none of which obtain here:
4. When the victim is a religious or a
When the crime of rape is committed with the use of child below seven (7) years old.
a deadly weapon or by two or more persons, the
penalty shall be reclusion perpetua to death. 5. When the offender knows that he
is afflicted with Acquired Immune
When by reason or on the occasion of the rape, the Deficiency Syndrome (AIDS)
victim has become insane, the penalty shall be disease.
death.
6. When committed by any member
When the rape is attempted or frustrated and a of the Armed Forces of the
homicide is committed by reason or on the occasion Philippines or the Philippine
thereof, the penalty shall be reclusion perpetua to National Police or any law
death. enforcement agency.