834 Phil. 837
PERLAS-BERNABE, J.:
That on or about the 10th day of October, 2001 at past 7:00 o'clock in the evening, at xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with lewd design and by means of force and intimidation, did then and there willfully, unlawfully and feloniously lie and succeed in having carnal knowledge with [AAA], a minor, who is only fifteen (15) years old at the time of the commission of the offense against her will and consent and which act demeans the intrinsic worth and dignity of said minor as a human being.The prosecution alleged that at around six (6) o'clock in the evening of October 10, 2001, AAA, then a fifteen (15) year old high school student, was cleaning the chicken cage at the back of their house located in xxxxxxxxxxxxxxxxx when suddenly, she saw Ejercito pointing a gun at her saying, "Ato ato lang ni. Sabta lang ko. Ayaw gyud saba para dili madamay imo pamilya." AAA pleaded, "Tang, don't do this to me" but the latter replied, "Do you want me to kill you? I will even include your mother and father." Thereafter, Ejercito dragged AAA to a nearby barn, removed her shorts and underwear, while he undressed and placed himself on top of her. He covered her mouth with his right hand and used his left hand to point the gun at her, as he inserted his penis into her vagina and made back and forth movements. When he finished the sexual act, Ejercito casually walked away and warned AAA not to tell anybody or else, her parents will get killed. Upon returning to her house, AAA hurriedly went to the bathroom where she saw a bloody discharge from her vagina. The following day, AAA absented herself from school and headed to the house of her aunt, CCC, who asked if she was okay. At that point, AAA tearfully narrated the incident and requested CCC to remain silent, to which the latter reluctantly obliged.[8]
CONTRARY TO LAW.[7]
Article 266-A. Rape, When and How Committed. - Rape is committed -For a charge of Rape by sexual intercourse under Article 266-A (1) of the RPC, as amended by RA 8353, to prosper, the prosecution must prove that: (a) the offender had carnal knowledge of a woman; and (b) he accomplished this act under the circumstances mentioned in the provision, e.g., through force, threat or intimidation. The gravamen of Rape is sexual intercourse with a woman against her will.[18]
1. By a man who shall have carnal knowledge of a woman under any of the following circumstances:
a. Through force, threat or intimidation;
x x x x
Article 266-B. Penalties. - Rape under paragraph 1 of the next preceding article shall be punished by reclusion perpetua.
Whenever the rape is committed with the use of a deadly weapon or by two or more persons, the penalty shall be reclusion perpetua to death.
x x x x
Section 5. Child Prostitution and Other Sexual Abuse. - Children, whether male or female, who for money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse.In Quimvel v. People (Quimvel),[21] the Court set important parameters in the application of Section 5 (b) of RA 7610, to wit:
The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following:
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
x x x x
To the mind of the Court, the allegations are sufficient to classify the victim as one "exploited in prostitution or subject to other sexual abuse." This is anchored on the very definition of the phrase in Sec. 5 of RA 7610, which encompasses children who indulge 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.(2) A violation of Section 5 (b) of RA 7610 occurs even though the accused committed sexual abuse against the child victim only once, even without a prior sexual affront:
Correlatively, Sec. 5 (a) of RA 7610 punishes acts pertaining to or connected with child prostitution wherein the child is abused primarily for profit. On the other hand, paragraph (b) punishes sexual intercourse or lascivious conduct committed on a child subjected to other sexual abuse. It covers not only a situation where a child is abused for profit but also one in which a child, through coercion, intimidation or influence, engages in sexual intercourse or lascivious conduct. Hence, the law punishes not only child prostitution but also other forms of sexual abuse against children. x x x.[22] (Emphases and underscoring supplied)
[T]he very definition of "child abuse" under Sec. 3 (b) of RA 7610 does not require that the victim suffer a separate and distinct act of sexual abuse aside from the act complained of. For it refers to the maltreatment, whether habitual or not, of the child. Thus, a violation of Sec. 5 (b) of RA 7610. occurs even though the accused committed sexual abuse against the child victim only once, even without a prior sexual affront.[23] (Emphasis and underscoring supplied)(3) For purposes of determining the proper charge, the term "coercion and influence" as appearing in the law is broad enough to cover "force and intimidation" as used in the Information; in fact, as these terms are almost used synonymously, it is then "of no moment that the terminologies employed by RA 7610 and by the Information are different":
The term "coercion and influence" as appearing in the law is broad enough to cover "force and intimidation" as used in the Information. To be sure, Black's Law Dictionary defines "coercion" as "compulsion; force; duress" while "[undue] influence" is defined as "persuasion carried to the point of overpowering the will." On the other hand, "force" refers to "constraining power, compulsion; strength directed to an end" while jurisprudence defines "intimidation" as "unlawful coercion; extortion; duress; putting in fear." As can be gleaned, the terms are used almost synonymously. It is then of no moment that the terminologies employed by RA 7610 and by the Information are different. And to dispel any remaining lingering doubt as to their interchangeability, the Court enunciated in Caballo v. People [(710 Phil. 792, 805-806[2013])] that:Thus, the Court, in Quimvel, observed that although the Information therein did not contain the words "coercion or influence" (as it instead, used the phrase "through force and intimidation"), the accused may still be convicted under Section 5 (b) of RA 7610. Further, following the rules on the sufficiency of an Information, the Court held that the Information need not even mention the exact phrase "exploited in prostitution or subjected to other abuse" for the accused to be convicted under Section 5 (b) of RA 7610; it was enough for the Information to have alleged that the offense was committed by means of "force and intimidation" for the prosecution of an accused for violation of Section 5 (b) of RA 7610 to prosper.[25]x x x sexual intercourse or lascivious conduct under the coercion or influence of any adult exists when there is some form of compulsion equivalent to intimidation which subdues the free exercise of the offended party's free will. Corollary thereto, Section 2 (g) of the Rules on Child Abuse Cases conveys that sexual abuse involves the element of influence which manifests in a variety of forms. It is defined as:The employment, use, persuasion, inducement, enticement or coercion of a child to engage in or assist another person to engage in, sexual intercourse or lascivious conduct or the molestation, prostitution, or incest with children.To note, the term "influence" means the "improper use of power or trust in any way that deprives a person of free will and substitutes another's objective." Meanwhile, "coercion" is the "improper use of x x x power to compel another to submit to the wishes of one who wields it."[24] (emphases and underscoring supplied)
It is a rule of statutory construction that where one statute deals with a subject in general terms, and another deals with a part of the same subject in a more detailed way, the two should be harmonized if possible; but if there is any conflict, the latter shall prevail regardless of whether it was passed prior to the general statute. Or where two statutes are of contrary tenor or of different dates but are of equal theoretical application to a particular case, the one designed therefor specially should prevail over the other.[27] (Emphases supplied)After much deliberation, the Court herein observes that RA 8353 amending the RPC should now be uniformly applied in cases involving sexual intercourse committed against minors, and not Section 5 (b) of RA 7610. Indeed, w}file RA 7610 has been considered as a special law that covers the sexual abuse of minors, RA 8353 has expanded the reach of our already existing rape laws. These existing rape laws should not only pertain to the old Article 335[28] of the RPC but also to the provision on sexual intercourse under Section 5 (b)[29] of RA 7610 which, applying Quimvel's characterization of a child "exploited in prostitution or subjected to other abuse," virtually punishes the rape of a minor.
Article 266-A. Rape: When and How Committed. - Rape is committed -Moreover, RA 8353 provides for new penalties for Rape that may be qualified under the following circumstances:
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 otherwise unconscious;
c) By means of fraudulent machination or grave abuse of authority; and
d) When the offended party is under twelve (12) years of age or is demented, even though none of the circumstances mentioned above be present.
2) By any person who, under any of the circumstances mentioned in paragraph 1 hereof, shall commit an act of sexual assault by inserting his penis into another person's mouth or anal orifice, or any instrument or object, into the genital or anal orifice of another person. (Emphasis supplied)
Article 266-B. Penalty. - Rape under paragraph 1 of the next preceding article shall be punished by reclusion perpetua.Significant to this case, the above-highlighted provisions of RA 8353 already accounted for the circumstance of minority under certain peculiar instances. The consequence therefore is a clear overlap' with minority as an element of the crime of sexual intercourse against a minor under Section 5 (b) of RA 7610. However, as it was earlier intimated, RA 8353 is not only the more recent statutory enactment but more importantly, the more comprehensive law on rape; therefore, the Court herein clarifies that in cases where a minor is raped through sexual intercourse, the provisions of RA 8353 amending the RPC ought to prevail over Section 5 (b) of RA 7610 although the latter also penalizes the act of sexual intercourse against a minor.
Whenever the rape is committed with the use of a deadly weapon or by two or more persons, the penalty shall be reclusion perpetua to death.
When by reason or on the occasion of the rape, the victim has become insane, the penalty shall become reclusion perpetua to death.
When the rape is attempted and a homicide is committed by reason or on the occasion thereof, the penalty shall be reclusion perpetua to death.
When by reason or on the occasion of the rape, homicide is committed, the penalty shall be death.
The death penalty shall also be imposed if the crime of rape is committed with any of the following aggravating/qualifying circumstances:
1) When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or afinnity within the third civil degree, or the common-law spouse of the parent of the victim;
2) When the victim is under the custody of the police or military authorities or any law enforcement or penal institution;
3) When the rape is committed in full view of the spouse, parent, any of the children or other relatives within the third civil degree of consanguinity;
4) When the victim is a religious engaged in legitimate religious vocation or calling and is personally known to be such by the offender before or at the time of the commission of the crime;
5) When the victim is a child below seven (7) years old;
6) When the offender knows that he is afflicted with the Human Immuno-Deficiency Virus (HIV)/Acquired Immune Deficiency Syndrome (AIDS) or any other sexually transmissible disease and the virus or disease is transmitted to the victim;
7) When committed by any member of the Armed Forces of the Philippines or para-military units thereof or the Philippine National Police or any law enforcement agency or penal institution, when the offender took advantage of his position to facilitate the commission of the crime;
8) When by reason or on the occasion of the rape, the victim has suffered permanent physical mutilation or disability;
9) When the offender knew of the pregnancy of the offended party at the time of the commission of the crime; and
10) When the offender knew of the mental disability, emotional disorder and/or physical handicap of the offended party at the time of the commission of the crime.
x x x x (Emphases supplied)
To reiterate, the elements of rape under Section 266-A of the RPC are: (1) the offender had carnal knowledge of the victim; and (2) such act was accomplished through force or intimidation; or when the victim is deprived of reason or otherwise unconscious; or when the victim is under twelve years of age.As may be gleaned therefrom, the Court examined the evidence of the prosecution to determine "whether it focused on the specific force or intimidation employed by the offender or on the broader concept of coercion or influence to have carnal knowledge with the victim."[35] The premise in Tubillo that "coercion or influence" is the broader concept in contrast to "force or intimidation" appears to have been rooted from that statement in Quimvel wherein it was mentioned that "[t]he term 'coercion and influence' as appearing in the law is broad enough to cover 'force and intimidation' as used in the Information."[36] However, Quimvel did not intend to provide any distinction on the meanings of these terms so as to determine whether an accused's case should fall under Section 5 (b) of RA 7610 or RA 8353 amending the RPC, much more foist any distinction depending on what the prosecution's e vidence "focused" on. In fact, the Court in Quimvel stated "the terms ['coercion and influence' and 'force and intimidation'] are used almost synonymously";[37] as such, the Court in Quimvel held that "[i]t is then of no moment that the terminologies employed by RA 7610 and by the Information are different";[38] and that "the words 'coercion or influence' need not specifically appear"[39] in order for the accused to be prosecuted under Section 5 (b) of RA 7610. As such, the Court misconstrued the aforesaid statement in Quimvel and misapplied the same to somehow come up with Tubillo, et al.'s "focus of evidence" approach.
On the other hand, the elements of Section 5 (b) of R.A. No. 7610, are: (1) the accused commits the act of sexual intercourse or lascivious conduct; (2) the act is performed with a child exploited in prostitution or subjected to other sexual abuse; and (3) the child, whether male or female, is below 18 years of age. It is also stated there that children exploited in prostitution and other sexual abuse are those 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.
In the recent case of Quimvel v. People, the Court ruled that the term "coercion and influence" as appearing in the law is broad enough to cover "force and intimidation." Black's Law Dictionary defines coercion as compulsion; force; duress, while undue influence is defined as persuasion carried to the point of overpowering the will. On the other hand, force refers to constraining power, compulsion; strength directed to an end; while jurisprudence defines intimidation as unlawful coercion; extortion; duress; putting in fear. As can be gleaned, the terms are used almost synonymously. Thus, it is not improbable that an act of committing carnal knowledge against a child, twelve (12) years old or older, constitutes both rape under Section 266-A of the RPC and child abuse under Section 5 (b) of R.A. No. 7610.
In People v. Abay, the Court was faced with the same predicament. In that case, both the elements of Section 266-A of the RPC and Section 5 (b) of R.A. No. 7610 were alleged in the information. Nevertheless, these provisions were harmonized, to wit:Under Section 5 (b), Article III of RA 7610 in relation to RA 8353, if the victim of sexual abuse is below 12 years of age, the offender should not be prosecuted for sexual abuse but for statutory rape under Article 266-A (1) (d) of the Revised Penal Code and penalized with reclusion perpetua. On the other hand, if the victim is 12 years or older, the offender should be charged with either sexual abuse under Section 5 (b) of RA 7610 or rape under At1icle 266-A (except paragraph 1 [d]) of the Revised Penal Code. However, the offender cannot be accused of both crimes for the same act because his right against double jeopardy will be prejudiced. A person cannot be subjected twice to criminal liability for a single criminal act. Likewise, rape cannot be complexed with a violation of Section 5 (b) of RA 7610. Under Section 48 of the Revised Penal Code (on complex crimes), a felony under the Revised Penal Code (such as rape) cannot be complexed with an offense penalized by a special law. (Emphasis supplied)In Abay, the offended party was thirteen (13) years old at the time of the rape incident. Again, the information therein contained all the elements of Article 266-A (1) of the RPC and Section 5 (b) of R.A. No. 7610. Nevertheless, the Court observed that the prosecution's evidence only focused on the specific fact that accused therein sexually violated the offended party through force and intimidation by threatening her with a bladed instrument and forcing her to submit to his bestial designs. Thus, accused therein was convicted of the crime of rape under Article 266-A (1) of the RPC. Notably, the prosecution did not tackle the broader scope of "influence or coercion" under Section 5 (b) of R.A. No. 7610.
Similarly, in People v. Pangilinan, the Court was faced with the same dilemma because all the elements of Article 266-A (1) of the RPC and Section 5 (b) of R.A. No. 7610 were present. It was ruled therein that the accused can be charged with either rape or child abuse and be convicted therefor. The Court observed, however, that the prosecution's evidence proved that accused had carnal knowledge with the victim through force and intimidation by threatening her with a samurai sword. Thus, rape was established. Again, the evidence in that case did not refer to the broader scope of "influence or coercion" under Section 5 (b) of R.A. No. 7610.
In the present case, the RTC convicted Tubillo for the crime of rape because the prosecution proved that there was carnal knowledge against by means of force or intimidation, particularly, with a bladed weapon. On the other hand, the CA convicted Tubillo with violation of Section 5 (b) of R.A. No. 7610 because the charge of rape under the information was in relation to R.A. No. 7610.
After a judicious study of the records, the Court rules that Tubillo should be convicted of rape under Article 266-A (1) (a) of the RPC.
A reading of the information would show that the case at bench involves both the elements of Article 266-A (1) of the RPC and Section 5 (b) of R.A. No. 7610. As elucidated in People v. Abay and People v. Pangilinan, in such instance, the court must examine the evidence of the prosecution, whether it focused on the specific force or intimidation employed by the offender or on the broader concept of coercion or influence to have carnal knowledge with the victim.
Here, the evidence of the prosecution unequivocally focused on the force or intimidation employed by Tubillo against HGE under Article 266-A (1) (a) of the RPC. The prosecution presented the testimony HGE who narrated that Tubillo unlawfully entered the house where she was sleeping by breaking the padlock. Once inside, he forced himself upon her, pointed a knife at her neck, and inserted his penis in her vagina. She could not resist the sexual. attack against her because. Tubillo poked a bladed weapon at her neck. Verily, Tubillo employed brash force or intimidation to carry out his dastardly deeds.
In fine, Tubillo should be found guilty of rape under Article 266-A (1) (a) of the RPC with a prescribed penalty of reclusion perpetua, instead of Section 5 (b) of R.A. No. 7610.[34] (Emphases and underscoring supplied)
Accordingly, for the guidance of public prosecutors and the courts, the Court takes this opportunity to prescribe the following guidelines in designating or charging the proper offense in case lascivious conduct is committed under Section 5 (b) of R.A. No. 7610, and in determining the imposable penalty:Thus, being the more recent case, it may be concluded that Caoili implicitly abandoned the "focus of evidence" approach used in the Tubillo, et al. rulings. Likewise, it is apt to clarify that if there appears to be any rational dissonance or perceived unfairness in the imposable penalties between two applicable laws (say for instance, that a person who commits rape by sexual assault under Article 266-A in relation to Article 266-B of the RPC,[43] as amended by RA 8353 is punished less than a person who commits lascivious conduct against a minor under Section 5 (b) of RA 7610[44]), then the solution is through remedial legislation and not through judicial interpretation. It is well-settled that the determination of penalties is a policy matter that belongs to the legislative branch of government.[45] Thus, however compelling the dictates of reason might be, our constitutional order proscribes the Judiciary from adjusting the gradations of the penalties which are fixed by Congress through its legislative function. As Associate Justice Diosdado M. Peralta had instructively observed in his opinion in Caoli:
1. The age of the victim is taken into consideration in designating or charging the offense, and in determining the imposable penalty.
2. If the victim is under twelve (12) years of age, the nomenclature of the crime should be "Acts of Lasciviousness under Article 336 of the Revised Penal Code in relation to Section 5 (b) of R.A. No. 7610." Pursuant to the second proviso in Section 5 (b) of R.A. No. 7610, the imposable penalty is reclusion temporal in its medium period.
3. If the victim is exactly twelve (12) years of age, or more than twelve (12) but below eighteen (18) years of age, or is eighteen (18) years old or older but is unable to fully take care of herself/himself or protect herself/himself from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability or condition, the crime should be designated as "Lascivious Conduct under Section 5 (b) of R.A. No. 7610," and the imposable penalty is reclusion temporal in its medium period to reclusion perpetua.[42]
Curiously, despite the clear intent of R.A. 7610 to provide for stronger deterrence and special protection against child abuse, the penalty [reclusion temporal medium] when the victim is under 12 years old is lower compared to the penalty [reclusion temporal medium to reclusion perpetua] when the victim is 12 years old and below 18. The same holds true if the crime of acts of lasciviousness is attended by an aggravating circumstance or committed by persons under Section 31, Article XII of R.A. 7610, in which case, the imposable penalty is reclusion perpetua. In contrast, when no mitigating or aggravating circumstance attended the crime of acts of lasciviousness, the penalty therefor when committed against a child under 12 years old is aptly higher than the penalty when the child is 12 years old and below 18. This is because, applying the Indeterminate Sentence Law, the minimum term in the case of the younger victims shall be taken from reclusion temporal minimum, whereas as [sic] the minimum term in the case of the older victims shall be taken from prision mayor medium to reclusion temporal minimum. It is a basic rule in statutory construction that what courts may correct to reflect the real and apparent intention of the legislature are only those which are clearly clerical errors or obvious mistakes, omissions, and misprints, but not those due to oversight, as shown by a review of extraneous circumstances, where the law is clear, and to correct it would be to change the meaning of the law. To my mind, a corrective legislation is the proper remedy to address the noted incongruent penalties for acts of lasciviousness committed against a child.[46] (Emphasis supplied)Based on the foregoing considerations, the Court therefore holds that in instances where an accused is charged and eventually convicted of having sexual intercourse with a minor, the provisions on rape under RA 8353 amending the RPC should prevail over Section 5 (b) of RA 7610. Further, to reiterate, the "focus of evidence" approach used in the Tubillo, et al. rulings had already been abandoned.