357 Phil. 987
"ACCORDINGLY, this Court finds accused Ernesto Larin y Bondad GUILTY beyond reasonable doubt of the crime of violation of Section 5(b) of Republic Act No. 7610 and hereby sentences him to suffer the penalty of [r]eclusion [p]erpetua with all its attendant accessory penalty and to indemnify AAA [in] the sum of ONE HUNDRED THOUSAND (P100,000.00) PESOS as moral damages.State Prosecutor Lilian Doris S. Alejo accused herein appellant of violating Section 5(b), in relation to Section 31(e) of RA 7610, in the following Information dated May 27, 1996:
"Pursuant to Supreme Court Administrative Circular No. 2-92 dated January 20, 1992, the bail bond posted by the accused for his provisional liberty is hereby cancelled and accused is ordered confined at the National Penitentiary pending resolution of his appeal."
"The undersigned, upon the prior sworn complaint of the offended party, fourteen (14) year old AAA, assisted by her parents Spouses Rene and Susan Calumpang, accuses ERNESTO LARIN Y BONDAD of violation of Sec. 5(b) in relation to Sec. 31(e) of RA 7610 (An Act Providing for Stronger Deterrence and Special Protection Against Child Abuse, Exploitation and Discrimination, Providing Penalties for its Violation and for Other Purposes) committed as follows:When arraigned on July 17, 1996, the appellant, with the assistance of Counsel de Parte Cayetano T. Santos, entered a plea of not guilty and thereafter waived the pretrial proceedings. After trial in due course, the court a quo rendered its assailed Decision.
"That on or about April 17, 1996, inside the ladies’ shower room located at the Baker’s Hall, UP Los Baños, Laguna, and within the jurisdiction of this Honorable Court, the above-named accused, who is a public employee of the U.P. Los Baños, by taking advantage of his authority, influence and moral ascendancy as trainor/swimming instructor of minor AAA, and through moral compulsion, did then and there, willfully, unlawfully and feloniously, commit lascivious conduct on the person of said minor AAA by shaving her pubic hair, performing the lewd act of cunnilingus on her, licking her breasts, forcing her to hold and squeeze his penis; and forcibly kissing her on the cheeks and lips the day after, against her will and consent, to her damage and prejudice."
"On April 17, 1996, at around 4:00 o’clock in the afternoon, after a practice swim at the university pool in Baker’s Hall, U.P. Los Baños, [private complainant] proceeded to the bath house to shower and dress up; unknown to her, accused followed and then instructed her to remove the towel wrapped around her; clad in her swimsuit, accused again ordered her to undress to allow him to shave her public hair which he allegedly noticed was visible [sic]; accused then went outside while she undressed and wrapped a towel around her body; when the accused came back, he asked her to sit down while he took a squatting position in front of her holding on to a shaving instrument; but instead of shaving her pubic hair as he committed to do, accused performed the act of cunnilingus; she backed away saying "Nandidiri ako" but accused kept on saying "Huwag mong lagyan ng malisya"; accused then asked her to stand up and told her to simply pretend that he was her boyfriend and thereupon accused removed the right cap of her brassiere and licked her right breast while touching her vagina at the same time; she was then told to lie down but she sat down instead and again accused performed the act of cunnilingus on her as she repeatedly said "Nandidiri ako."; accused then told her to stand up as he pulled down his shorts and forced her to hold and squeeze his penis saying "if your boyfriend will do this, just tell him, ‘huwag mo itong ipapasok sa katawan ko’"; thereafter, accused left after instructing her to shave her public hair; the next day, she went to see the accused to return a book and there she told him that she was confused, bothered and terribly upset with what happened and accused replied "Ako rin. Hindi ako nakatulog kagabi at para mawala ang kaba mo, halik lang ang kailangan." and forced her to kiss him on the right cheek and on the lips; that on the night after the incident, she experienced a nightmare about rape and she then decided to quit swimming; she told her mother about her decision as she narrated what the accused actually did to her; she was then brought to Dr. Nectarina Rabor-Fellizar and thereafter in [the] company of her parents, went to the National Bureau of Investigation where she filed her complaint."
"x x x [T]hat on the day in question, there were around seven (7) people in the pool and that AAA was not alone as she was with a classmate until 5:45 p.m. when they dressed up. When the classmate left, [the appellant] even accompanied AAA to the boarding area in the company of two (2) other girls and a security guard’ (Ibid., p. 4)."Finding the above abbreviated narration insufficient, we hereby reproduce the trial court’s digest of the testimonies of the defense witnesses:
"PATRICIO LAUREL, a lifeguard at UPLB who testified that he ha[d] known the accused since 1992 and that by virtue of a university memorandum, they [were] prohibited from conducting swimming lessons to high school students. He further averred that on the day in question, he saw AAA and a companion still swimming in the pool with another individual by the time he left the area, but that he ha[d] no knowledge as to what transpired inside the premises of the bathhouse.
"VENERANDA L. GENIO, Chairman of the P.E. Department of UPLB with the rank of Associate Professor, attested to the appointment of accused as a lifeguard in the P.E. Department but belied the prosecution’s claim that accused was a swimming instructor.
"ELMER SUÑAZ, a fourth year high school student at UP Rural High School, was at Baker’s Hall on April 17, 1996, and took a dip at the pool for about five minutes; that he saw AAA in the pool talking to the accused but that he never saw AAA enter the bathroom during the time that he was there and when he left, AAA was all alone in the pool.
"ERNESTO LARIN, the accused himself, who vehemently denied the charge and maintained that he was only a lifeguard and never a trainer of the victim in swimming. Accused averred that on the day in question, there were around seven (7) people swimming in the pool and that AAA was not alone as she was with a classmate until 5:45 p.m. when they dressed up. When the classmate left, he even accompanied AAA to the boarding area in the company of two other girls and a security guard.
"On rebuttal, the prosecution called to the witness stand defense witness Professor Genio and Tony Ann A. Cortez, a college sophomore at UPLB, who averred that while still in first year high, she tried out for the freshmen swimming team and singled out the accused as her trainer; that for accused’s efforts, their batch paid him P500.00 during the summer and P70.00 each during the semestral break.
"By way of sur-rebuttal, defense presented Almond Oquendo, swimming instructor at UP Rural High who disclaimed the testimony of Tony Anne Cortez [o]n the matter of her training by the accused and the amount of remuneration paid to the latter."
"A. That the lower court erred in finding the accused-appellant guilty of a violation of Sec. 5 (b) of R.A. No. 7610.In fine, appellant assails the sufficiency of the evidence adduced against him.
"B. That the lower court erred in giving weight to the highly incredible and unnatural testimony of the offended party as the lone eyewitness for the prosecution.
"C. That, assuming the accused-appellant to be guilty, the lower court erred in imposing the penalty of reclusion perpetua."
Section 5, Article III of RA 7610, states:The elements of the offense penalized under this provision are as follows:
"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:
x x x x x x x x x
"(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; x x x."(Italics supplied.)
1. The accused commits the act of sexual intercourse or lascivious conduct.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. Under RA 7610, children are "persons below eighteen years of age or those unable to fully take care of themselves or protect themselves from abuse, neglect, cruelty, exploitation or discrimination because of their age or mental disability or condition."
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.
"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 defense argues that "there is no proof or allegation that complainant ‘indulged in lascivious conduct’ with the accused-appellant ‘for money, profit or any other consideration’"; or "that she was ‘coerced or influenced’ by accused-appellant ‘to indulge in lascivious conduct.’"
"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?
"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.)
Q AAA where were you on April 17, 1996? A We went to Baker Hall at the UPLB campus to practice swimming. Q Were you able to practice swimming? A Yes, ma’am. Q After practicing what did you do next if any? A I went to the bath house or the lady shower room to shower and dress-up. Q What happened next, if any, when you were there in the shower room? A Mr. Larin followed me to the shower room. Q Who is this Mr. Larin? A He is Mr. Ernesto Larin, my swimming trainor for two years since 1994 when I was still a freshman. Q Is he inside the chambers now? Will you point him out or describe him to this Honorable Court? A That man (witness pointed to a man who when asked gave his name as Ernesto Larin alias Erning). Q Mr. Larin followed you inside the shower room[;] what happened next, if any? A He ordered me to remove the towel around my body. Q And did you remove the towel around your body or did you not? A I did. Q What happened next, if any? A He ordered me to remove the swimsuit so that he could shave the pubic hair which he noticed was showing out of my swimsuit. Q What happened next, if any? A He went out of the bath house and then I decided to remove my swimsuit. Q What happened next, if any? A He came back when I ha[d] a towel around my body. Q After he actually came back, what did he do, if any? A He made [me] sit down and then he squatted in front of me with the shaving instrument. Q Did he do anything if any? A Yes, ma’am. Fiscal ALEJO: Your Honor may we make of record that the witness is sobbing. A Instead of shaving, he licked my vagina. Q What did you do, if any, when he licked your vagina? A I backed out, telling him "nandidiri ako" but he kept on saying "huwag mong lagyan ng malisya". Q After that what happened next, if any? A He made me stand up. Q And then? A As I stood up he said "boyfriends and girlfriends in college indulge in [an] act like this" so he told me to pretend that he was my boyfriend. Q After that what else did he do, if there [was] anything else that he did? A He said that guys do like this and he attempted to remove the towel around my body. Q And was he able to remove the towel around your body? A Yes, ma’am. Q After that what did he do next if there is anything else that he did? A He removed the right cap of my brassiere. Q What did he do, if any? A He licked my right breast and at the same time he touched my vagina. Q And then what happened? A He told me to lie down on the bench. Q Did you lie down on the bench? A No, I did not. Q What happened when you did not lie down? A Since I did not lie down I sat down on the bench. Q And then what happened? A And then he licked my vagina again. Q What did you do, if any, when he was licking your vagina? A I kept on telling him "nandidiri ako." Q What did he do when you told him "nandidiri ka?" A He stood up and ordered me to stand up. Q What happened next, if any? A He pulled down his shorts and he forced me to hold and squeeze his penis pretending that he was my boyfriend. Q Pretending or asking or telling you? A Telling me to pretend that he was my boyfriend. Q What else did he tell you, if any? A He said that if your boyfriend will do this just tell him “huwag mo itong ipasok sa katawan ko.” Q Thereafter, what else happened? A He told me to shave my public hair and he went out. Q And then after he left, was there anything else that happened? A I changed then and went out. Q Was there any other incident if any? A Then he said the reason why he let me [touch] his penis was to let me know how it [felt]. Q After that is there any other incident? A I went home already. Q After you went home what happened next? Did you report back to school the next day or not? A No I ha[d] to return the book. Q So you returned the book, to whom? A To Mr. Larin. Q What happened when you returned the book to Mr. Larin, if any? A I told him that "nakukunsensya ako" and he replied that "ako rin hindi ako makatulog kagabi." Q By words "nakukusensya ako," what exactly d[id] you mean? A I was confused, bothered and terribly upset about what had happened. Q Why then did you say that "nakukusensya ka" when what you really mean[t] was you were bothered, confused and terribly upset? A I’m not good [at] expressing myself in Tagalog. Q After telling him "na nakukusensya ka" and [his] telling you na "hindi siya nakatulog kagabi" what else happened? A He told me na "para mawala ang kaba mo, halik lang ang kailangan." Q What happened, if any? A He forced me to kiss him at the right cheek and on the lips. Q And after that what happened next, if there is any? A I went home already. Q Incidentally AAA on April 17, 1996 when you narrated [t]his incident which you just said [sic] a while ago were there any other person inside the bath room? A There was nobody inside the bath room. Q You said that you went home already[;] at home was there any unusual incident that occurred? A I had a nightmare about rape and then I decided the next day to quit swimming. Q When you decided to quit swimming, what happened? A I told my mother about my decision and after that she found out about what Mr. Larin did to me."
"[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."In this case, appellant shaved the pubic hair of the victim, performed cunnilingus on her, licked her breast, touched her genitalia, and forced her to hold his sexual organ. These actions cannot be brushed aside as innocent; rather, they manifest sexual perversity and lewd intentions. Larin was the swimming instructor or trainor of AAA, a mere child. We find no justification for Larin’s conduct.
"That AAA’s swimming trainor, a certain Mr. Ernesto Larin had built a relationship with AAA for the past year before the incident in question. During that year, Mr. Larin presented himself as a person AAA could trust. Mr. Larin would give AAA special attention and be perceptive [of] AAA’s needs and protective towards her. There was a certain degree of manipulation by Mr. Larin as he would intimidate AAA by attacking her self-esteem, after which he would offer himself as someone who could help solve her inadequacies.During her direct examination, she clarified the meaning of psychological coercion:
"AAA manifested all the symptoms of Post-Traumatic Stress Disorder, i.e., sleeplessness, nightmares, anxiousness about going back to school, paranoia and fear that people would know and talk about what happened to her. At the same time, she is angry at Mr. Larin for what he has done to her and how he could have manipulated and intimidated her so."
"Q What exactly is a psychological coer[c]ion?Dr. Ventura explained why AAA, an intelligent child, succumbed to such lewd acts:
A It involves the use of influence of a more powerful person who is in position of power. It can be a parent or an adult but basically that person has to have had some kind of continued relationship with the child. It cannot happen that you just meet the child or the other person or to submit right away to the person because in psychological coercion, a relationship is built up with the victim and to my knowledge in this particular case there was such, if I may refer to this case, there was such a relationship between [C]arla and her coach in swimming. Generally in psychological coercion there is a form of trust. That is what I mean by relation. A trust in relation is built up and it is understandable that this happened in this particular case because you know it was a skill that was being taught and at the same time, because a teacher cannot be effective unless there [is] some kind of rapport. x x x"
x x x x x x x x x
"A I was saying that in everything that [C]arla communicated to me, I could say that the perpetrator continued to communicate or tried to continue that feeling of trust even he was doing all of those things to her, so that made her particularly vulnerable and that is part of psychological coercion."