Republic of the Philippines REGIONAL TRIAL COURT 7th Judicial Region Branch III City of Tagbilaran

THE PEOPLE OF THE PHILIPPINES, Plaintiff

Criminal Case No. 13467 For: STATUTORY RAPE

-versus-

TEOFILO LUPAGUE @ Pilo, Accused x---------------------------------------------------------/

PLAINTIFFS MEMORANDUM
PLAINTIFF, by the undersigned counsel, and unto this Honorable Court, most respectfully submits the following Memorandum.

THE CASE

This is a case for Statutory Rape filed by the plaintiff on February 9, 2007 before this Honorable Court. On December 20, 2006 at about 3:00 oclock in the afternoon at Madangog, Calape, Bohol plaintiff Virginia Gujilde, an eleven (11) year old minor went to the house of Mr. Teofilo Lupague to ask for hot water. The accused invited the plaintiff to get inside the house and because the plaintiff was not thinking of any danger, the plaintiff went inside the house and when already inside, the accused told the plaintiff to sit down and then closed the door of his house and thereafter the accused approached the plaintiff and suddenly cover the plaintiffs mouth with his left hand and then the accused drag the plaintiff down, then on top of the plaintiff, the accused removed the plaintiffs underwear, then he inserted his penis into the plaintiffs vagina.

Despite the pain, the plaintiff was not able to shout or to resist because the plaintiff was so afraid of the accused. Thereafter the plaintiff felt pain on her vagina and the plaintiff noticed that blood was coming out from her vagina.

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The plaintiff disclosed the incident to Nang Lucy, their neighbor, and Dionesia Aranas, a barangay kagawad of Madangog, Calape, Bohol.

As shown in the Medico Legal Certificate issued by Dr. Sulpicio Yu, Jr., Municipal Health Officer of Calape, Bohol, it is shown that the plaintiff had blood stained at the external genitalia and buttock areas and positive for hymenal laceration. It is also shown in the Certificate of Live Birth that the plaintiff was born on January 1, 1995. Hence, the plaintiff was still below twelve (12) years old at the time of the incident.

There was no appearance of the accused during the clarificatory hearing of the case on January 11, 2007 and no Counter-Affidavit was submitted by the accused.

THE ISSUES

The following factual/legal issues are identified for resolution by this Honorable Court:

A. Whether or not accused is guilty of the crime of Statutory Rape. B. Whether or not accused is liable to pay damages to the plaintiff.

DISCUSSION

On the Guilt of the Accused of the Crime of Statutory Rape

The applicable law on statutory rape of Article 266-A of the Revised Penal Code, which reads: Art. 266-A. Rape, When and How Committed. - Rape is committed 1) By a man who shall have carnal knowledge of a woman under any of the following circumstances:

a) Through force, threat or intimidation; b) When the offended party is deprived of reason or is otherwise unconscious; c) By means of fraudulent machination or grave abuse of authority;

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d) WHEN THE OFFENDED PARTY IS UNDER TWELVE (12) YEARS OF AGE or is demented, even though none of the circumstances above be present; 2) x x x (underscoring and words in all capital letters are supplied for emphasis)

By looking at the underlying facts which are established and uncontroverted, it is apparent that the accused have committed carnal knowledge with the plaintiff, who is below twelve (12) years of age, through force and without the consent of the plaintiff. It is in fact proven by the Certificate of Live Birth that the plaintiff was below twelve (12) years of age at the time of the incident. Hence, these facts alone clearly show beyond reasonable doubt that the act of the accused is a crime of rape.

Accordingly, Rape is committed even if the girl under twelve (12) years old is a prostitute. (People vs. Perez, C.A., 37 O.G. 1762) Further, it is committed although she consented to the sexual act. (People vs. Villamor, C.A., 37 O.G. 947; People vs. Canencia, C.A. 51 O.G. 844) The law does not consider that kind of consent voluntary, as the offended party under 12 years old cannot have a will of her own.

As shown in the Medico Legal Certificate issued by Dr. Sulpicio Yu, Jr., Municipal Health Officer of Calape, Bohol, it is shown that the plaintiff had blood stained at the external genitalia and buttock areas and positive for hymenal laceration. The slightest penetration is enough. Proof of emission is not necessary. (Miller, Criminal Law, 299; People vs. Selfaison, et al., G.R. No. L-14732, Jan. 28, 1961) The absence of spermatozoa in the vagina does not negative rape. (People vs. Nula, G.R. No. 19896-R, May 7, 1958; People vs. Canastre, 82 Phil. 480) As expressed in the facts of this case, the accused approached the plaintiff and suddenly cover the plaintiffs mouth with his left hand and then the accused drag the plaintiff down, then on top of the plaintiff, the accused removed the plaintiffs underwear, then he inserted his penis into the plaintiffs vagina. It is not necessary that the force employed against the complaining woman in rape be so great or of such a character as could not be resisted. It is enough that the force used is sufficient to consummate the culprits purpose of copulating with the offended woman. The force or violence necessary in rape is naturally a relative term, depending on the age, size and strength of the parties and their relation to each other. (People vs. Savellano, 57 SCRA 320)

Despite the pain, the plaintiff was not able to shout or to resist because the plaintiff was so afraid and intimidated of the accused. Intimidation must be viewed in light of the victims

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perception and judgment at the time of rape and not by any hard and fast rule. It is enough that it produces fear fear that if the victim does not yield to the bestial demands of the accused, something would happen to her at the moment or thereafter. (People vs. Tabugoca, 285 SCRA 312, 332[1998]; People vs. Metin, G.R. No. 140781, May 8, 2003)

Right to Damages

The award of civil indemnity is not only a reaction to the apathetic societal perception of the penal law and the financial fluctuations overtime, but also an expression of the displeasure of the court over the incidence of heinous crimes against chastity. (People vs. Victor, 292 SCRA 186 [1998]) The accused should be slapped with damages as a consequence of his act of committing heinous crime against the plaintiff.

Moral damages may be awarded to the victim in such amount as the court deems just without the necessity for pleading or proof of mental or physical suffering provided in Article 2217 of the Civil Code other than the fact of the commission of the offense. This is because it is recognized that the victims injury is concomitant with and necessarily resulting from the odious crime of rape to warrant per se the award of moral damages. (People vs. Dizon, 309 SCRA 669 [1999])

The plaintiff in this case suffered dishonor, disgrace and embarrassment to the society at her very young age, such feeling is so uncanny and almost unbearable for a child like her. It is an acutely self-conscious state in which the self is 'split,' imagining herself in the eyes of the other; by contrast. Hence, the accused should be required to reimburse the plaintiff for all the expenses in this case including attorneys fees, and to compensate for the anxiety experienced by the plaintiff, the accused should be ordered to pay moral damages as well as exemplary damages to teach him a lesson for his malicious and perverted act.

WHEREFORE, plaintiff earnestly prays that the accused be convicted of the crime of statutory rape and that the reliefs and remedies prayed for in this case be granted.

Tagbilaran City, Bohol, March 18, 2007.

ATTY. JOHN PATRICK SUPIEZA Counsel for Plaintiff University of Bohol, Tagbilaran City Roll No. 14344; PTR No. 7654321, 2-10-07 IBP No. 654321; 2-10-07; TIN 321-456-987

Plaintiffs Memorandum

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