LOPEZ, J., J.:
Criminal Case No. F-10-49-MJUpon arraignment on September 22, 2010, Dalaguet pleaded not guilty[6] to the offenses charged.
That sometime in December 2009, in the Municipality of xxxxxxxxxxxxxxxxxxxxx, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, by means of force, coercion, and intimidation and with lewd designs and intent to cause to gratify his sexual desire or abuse, humiliate, degrade complainant, did, then and there, willfully, unlawfully and feloniously have sexual intercourse with [AAA],[3] a minor, fifteen (15) years old, without her consent and against her will, to the damage and prejudice of said victim.[4]
Criminal Case No. F-10-50-MJ
That on or about March 2010, in the Municipality of xxxxxxxxxxxxxxxxxxxxx, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, by means of force, coercion, and intimidation and with lewd designs and intent to cause to gratify his sexual desire or abuse, humiliate, degrade complainant, did, then and there, willfully, unlawfully and feloniously have sexual intercourse with [AAA], a minor, fifteen (15) years old, without her consent and against her will, to the damage of said victim.
CONTRARY TO LAW.[5]
1. The identity of the parties and that the private complainant is a minor;Considering that AAA's birth certificate was admitted by the defense, the testimony of the local civil registrar was dispensed with. Said birth certificate indicates that AAA was 15 years old at the time of the incidents.
2. That they are neighbors considering the house of the accused is five meters away from the house of the private complainant;
3. That on March 9, 2010 at about 6:00 o'clock in the morning, the accused went inside the house of the private complainant.[7]
WHEREFORE, in view of the foregoing, the accused Benny Dalaguet is hereby found guilty beyond reasonable doubt (the victim being a minor as admitted by the defense and proven by her Birth Certificate) for two (2) counts of Rape and he is hereby sentenced to a penalty of Reclusion Perpetua or a period of twenty (20) years and one (1) day to forty (40) years for each count of Rape. Accused is also ordered to pay the victim, [AAA], the amount of One Hundred Thousand Pesos [P]100,000.00 for actual damages and another One Hundred Thousand Pesos [P]100,000.00 for moral damages.[26]For the first incident of rape on December 2009, the RTC found that AAA usually pastures the family cow and carabao at the place where the family has a "payag-payag," which was admitted by Dalaguet.[27] Thus, the RTC did not sustain Dalaguet's bare allegation of denial that he could not have raped AAA.[28] Dalaguet did not even present any member of his family who could have testified that he was in their house when the rape incident happened.[29] The RTC also ruled that a bare allegation of denial is a negative and self-serving defense, which cannot be given greater evidentiary value over convincing, straightforward, and probable testimony on affirmative matters.[30]
WHEREFORE, the appeal is hereby DENIED. The Decision dated July 13, 2016 of the Regional Trial Court (RTC), xxxxxxx, Branch 45 in Criminal Case Nos. F-10-49-MJ and F-10-50-MJ is AFFIRMED WITH MODIFICATION. Accused-appellant Benny Dalaguet is hereby found GUILTY beyond reasonable doubt of two (2) counts of Lascivious Conduct under Section 5(b) of R.A. No. 7610 and is sentenced to suffer the indeterminate penalty of eight (8) years and one (1) day of prisi[ó]n mayor as minimum, to seventeen (17) years, four (4) months and one (1) day of reclusion temporal as maximum, for each count of violation. Accused-appellant is ORDERED to pay private complainant AAA the amounts of [P]50,000.00 as civil indemnity, [P]50,000.00 as moral damages, and [P]50,000.00 as exemplary damages, for each count of violation, with legal interest of six percent (6%) per annum from the date of finality of this judgment until full payment.The CA found Dalaguet guilty beyond reasonable doubt for two counts of lascivious conduct under Section 5(b) of Republic Act (R.A.) No. 7610 holding that the CA held that the prosecution failed to prove beyond reasonable doubt, all the elements of rape through sexual intercourse under Article 266-A (1a) of the Revised Penal Code (RPC), to wit: a) the man had carnal knowledge of a woman; and (b) he accomplished this act through force, threat or intimidation.
SO ORDERED.[33]
First, the credibility of witnesses is best addressed by the trial court, considering that it is in a unique position to directly observe the demeanor of a witness on the stand. The trial judge's evaluation of the testimonies of the witnesses is given the highest respect, on appeal. Second, where there is no substantial reason to justify the reversal of the RTC's assessments and conclusions, the reviewing court is generally bound by the lower court's finding; in particular, when no significant facts and circumstances, affecting the outcome of the case are shown to have been disregarded. Third, the rule is more strictly applied if the CA concurred with the RTC.[42]In this case, accused-appellant faults the CA for giving weight and credence to AAA's testimony.
The fact that the accused never threatened or forced AAA on that particular night and that she was still able to go out of the house and buy something from a store cannot exculpate him. Even if she did not resist him or even gave her consent, his having carnal knowledge of her is still considered rape considering that she was only eight (8) years old at that time. It must be remembered that the accused is an uncle of the victim and has moral ascendancy over her. Her behavior can be explained by the fear she had of the accused, who had repeatedly beaten her for various reasons. His moral ascendancy over her, combined with memories of previous beatings, was more than enough to intimidate her and render her helpless and submissive while she was being brutalized.[52]In the same case, this Court ruled:
The behavior and reaction of every person cannot be predicated with accuracy. It is an accepted maxim that different people react differently to a given situation or type of situation, and there is no standard form of behavioral response when one is confronted with a strange or startling experience. Not every rape victim can be expected to act conformably to the usual expectations of everyone. Some may shout; some may faint; and some be shocked into insensibility, while others may openly welcome the intrusion. Behavioral psychology teaches us that people react to similar situations dissimilarly. There is no standard form of behavior when one is confronted by a shocking incident. The workings of the human mind when placed under emotional stress are unpredictable. This is true specially in this case where the victim is a child of tender age under the moral ascendancy of the perpetrator of the crime.[53]This Court has repeatedly declared that the failure to shout or offer tenacious resistance does not make voluntary the rape survivor's submission to the perpetrator's lust.[54] In addition, physical resistance is not an element of rape.[55] More often than not, a rape survivor is driven by fear, rather than reason.
Accused-appellant cannot be found guilty of two counts of rape through sexual intercourse |
Article 266-A. Rape: When And How Committed. - Rape is committed:To warrant a conviction of rape through sexual intercourse under Article 266-A (1a), the prosecution must prove the following elements beyond reasonable doubt: (a) the man had carnal knowledge of a woman; and (b) he accomplished this act through force, threat or intimidation.[63]
- By a man who shall have carnal knowledge of a woman under any of the following circumstances:
- Through force, threat, or intimidation;
- When the offended party is deprived of reason or otherwise unconscious;
- By means of fraudulent machination or grave abuse of authority; and
- When the offended party is under twelve (12) years of age or is demented, even though none of the circumstances mentioned above be present.
[T]ouching when applied to rape cases does not simply mean mere epidermal contact, stroking or grazing of organs, a slight brush or a scrape of the penis on the external layer of the victim's vagina, or the mons pubis, as in this case. There must be sufficient and convincing proof that the penis indeed touched the labias or slid into the female organ, and not merely stroked the external surface thereof, for an accused to be convicted of consummated rape. As the labias, which are required to be "touched" by the penis, are by their natural situs or location beneath the mons pubis or the vaginal surface, to touch them with the penis is to attain some degree of penetration beneath the surface, hence, the conclusion that touching the labia majora or the labia minora of the pudendum constitutes consummated rape.Here, AAA has been consistent in categorically stating that accused-appellant was not able to penetrate his penis into her vagina. On direct examination, AAA testified:
The pudendum or vulva is the collective term for the female genital organs that are visible in the perineal area, e.g., mons pubis, labia majora, labia minora, the hymen, the clitoris, the vaginal orifice, etc. The mons pubis is the rounded eminence that becomes hairy after puberty, and is instantly visible within the surface. The next layer is the labia majora or the outer lips of the female organ composed of the outer convex surface and the inner surface. The skin of the outer convex surface is covered with hair follicles and is pigmented, while the inner surface is a thin skin which does not have any hair but has many sebaceous glands. Directly beneath the labia majora is the labia minora. Jurisprudence dictates that the labia majora must be entered for rape to be consummated, and not merely for the penis to stroke the surface of the female organ. Thus, a grazing of the surface of the female organ or touching the mons pubis of the pudendum is not sufficient to constitute consummated rape. Absent any showing of the slightest penetration of the female organ, i.e., touching of either labia of the pudendum by the penis, there can be no consummated rape; at most, it can only be attempted rape, if not acts of lasciviousness.[70]
It can be gleaned from AAA's testimony that on both incidents, accused-appellant's overt acts of lying on top of AAA while they were both naked, and as accused-appellant did push and pull movements without his penis penetrating AAA's vagina would show that the element of sexual intercourse in the crime of rape has not been established. AAA's testimony reveals that there is doubt as to how far accused-appellant's penis had been outside AAA's external genitalia.[72] Thus, there is equal doubt as to whether accused-appellant's penis had touched the external pudenda or any part of the vaginal wall.[73]
Pros. Ybañez:
Q Mr. (sic) witness, do you know of a certain Benny Dalaguet? A Yes. Q Why do you know him? A Because he is our neighbor. Q Aside from his name Benny Dalaguet, do you call him another name? What do you call him? A I just call him by his name. Q Can your recall of having executed an affidavit in relation to this case? A Yes. Q Showing to you an affidavit previously marked as Exhibit "B". Kindly examine this whether this is the same affidavit that you are referring to? A Yes, this is my affidavit. Q There is a signature over the printed name [AAA], whose signature is that? A This is my signature. Q Do you affirm and confirm the contents of the said affidavit as true and correct based upon your personal knowledge? A Yes. Q In your affidavit there is a statement that on December 2009 while pasturing your cow and carabao to the farm of a certain Tatay xxxxxxx he invited you to go with him, am I correct? A No, what happened was that whenever I'll be there in the field pasturing my cow and carabao he was just following me. Q So sometime on December 2009, was he able to follow you? A Yes. Q And were you able to meet with this Benny? A Yes. Court: Q You mean you had an argument in the farm or somewhere? A No. Pros. Ybañez: Q After you met him, what happened then if any? A He molested me. Q When you say "he molested me[,]" can you please tell us how did it happen? A He raped me. Q At what particular place in xxxxxxxxxxxxxxxx did this Benny Dalaguet rape you? A In the hut. Q When you met this Benny Dalaguet while pasturing your cow you were brought to a hut? A Yes. Q After arriving at the hut, what did he do to you? A He undressed me. Q After undressing you, what happened if any? Atty. Lajot: We would like to manifest, your Honor, that the witness has a hard time in answering the question, your Honor. A He had sex with me. Q When you say "he had sex with you[,]" can you please tell us how did the accused have sex with you? A He had sexual intercourse with me. Court: Q Did he make you lie down? A Yes. Q When he was undressing you[,] you were still standing up? A No. Q You were already lying down? A Yes. Q Did you try to struggle to get away? A Yes, I struggled. Q And were you able to get away? A No. Q Why? A Because he held me tightly. Q Did you shout? A Yes, I shouted but there were no people near the hut. Q You mean you had no neighbors that could hear you shout? A No. Q When he brought you to the nipa hut, did he force you to go with him to the nipa hut and how? A No. Q How did he bring you to the nipa hut when you said you did not voluntarily go with him? Did he carry you or did he drag you by holding your hands or body? A No. Q So how were you brought to the nipa hut? A Because when I pastured the carabao he just followed me. Q But when you were pasturing your carabao you were outside the nipa hut? A Yes. Q So when you arrived you were still outside the nipa hut? A Yes. Q That's why you were brought to the nipa hut? A No. Q Where did he bring you? Atty. Lajot: There was a previous answer, [Y]our Honor, that every time she will pasture the cow[,] Benny Dalaguet will follow and bring her to a nipa hut. Court: Yeah, I'm just trying to clarify this because it seems she was not brought to the nipa hut. A (No answer). Q Did he bring you to the nipa hut or not? A Yes, he brought me. Q You voluntarily went with him to the nipa hut? A No. Q Did he drag you by the hands or by the body or did he carry you bodily? A He carried me. Q So when he was carrying you[,] you struggled? A Yes. Q And you shouted? A Yes. Court: Proceed. Pros. Ybañez: Q When you say Benny Dalaguet had sexual intercourse with you[,] you mean to say he inserted his penis into your vagina? A Only outside. Q So his penis did not penetrate into your vagina? A No. Q And after that, what happened? After you said that Benny Dalaguet had sexual intercourse with you? A On March 8. Q What I mean Madam witness on that incident of December 2009 when you were at the nipa hut? A March. Atty. Lajot: Already answered on March 8. Pros. Ybañez: Q Madam witness, that incident on December 2009, that you said Benny Dalaguet had sexual intercourse with you, did you report the said incident to your father or mother or anybody else? A No. Q Why did you not tell anybody? A Because he said to me that if I will tell (sic) my parents about it my parents [would] not believe me. They will just [maltreat] me. Q Why are you saying that your parents will not believe you? A Because he said that my parents have not seen (sic) during the act. Court: Q But did you not allege that your grandfather caught you in the act with [the] accused[,] in the act of sexual intercourse? A Yes. Q At that time you were not anymore shouting? A No. Q Why? A Because he said, "Do not shout because many might hear. Q So to avoid other people from hearing your shout you did not shout anymore? A Yes. Q In other words, you are telling the court that you are consenting to the sexual advances of Benny Dalaguet? A No. Court: Proceed. Pros. Ybañez Q That incident you said that your Lolo was able to see in the act of sexual intercourse with the accused[,] that incident was on March 9, 2010, am I correct? Atty. Lajot: Already answered your Honor. The second incident happened on March 8. Pros. Ybañez: There was no mentioned (sic) about March 8, [Y]our Honor. Court: There was no mentioned (sic) about second or not. It was several times. Q The last time that you had sexual intercourse with this Benny Dalaguet whether it's force[d] or not and it was at that time you were caught by your grandfather on March 9, 2010? A Yes. Pros. Ybañez Q And before you have sexual intercourse with this Benny Dalaguet your companion at the house was your sister [CCC], am I correct? A Yes. Q And the accused arrived around 7:00 o'clock in the morning? A Yes. Q By the way, how old is [CCC] at that time? A Nine (9) years old. Q And what did he tell [CCC], if any, when this Benny arrived? A He said to my sister, "You should go out[.]" Q And where was your father then at that time on March 9, 2010? A They went to xxxxxxxx Q What municipality is xxxxxxx located? A Part of xxxxxxxxxxx Q And what about your mother, where was she then? A She was together with my father at that time. Q So the person left in your house is you and your sister [CCC]? A Yes. Q Did [CCC] go out from your house when she was requested by Benny the accused in this case to go out the house? A Yes, because she was attending to (sic) school at that time. Court: Q How about you, you do not go to school at that time? A No. x x x x Pros. Ybañez: Q After this [CCC] left your house, what happened then if any? A He held my hand. Q After he held your hand, what happened? A He made me lie down and he undressed me. Q And what about Benny, did he also undress? A Yes. Q And after that while you were both undressed, what did he do to you? A We were caught in the act. Atty. Lajot: We pray [Y]our Honor, that we put the word[s,] "Nasakpan nami[.]" Pros. Ybañez: Q By the way, who caught you? A My grandfather. Q When you say you were caught you mean to say you were caught having sexual intercourse with Benny? A Yes. Q When you say you have sex with Benny, was Benny able to penetrate his penis into your vagina? A No. Q After you were caught what happened? A (No Answer.) Court: Q This is now clear that even if you said you had sexual intercourse you are still maintaining that this accused Benny was not able to penetrate his penis into your vagina? A Yes. Q How can you have sexual intercourse meaning in [B]isaya "Iyot: if he was not able to penetrate his penis into your vagina? A He just made it outside his penis. Q The meaning of gipagawas ang iyaha that means he was inside yours and then he pull it out? A (No answer.) Q In these two (2) occasion in December 2009 and on March 9, 2010 when you said you had sexual intercourse with Benny you still maintain that he was not able to put his penis inside your vagina even if you call it sexual intercourse? Even if you said he did it just outside your vagina? This is very important. A Yes. Pros. Ybañez: A Miss [W]itness, am I correct to say that when you say you have sexual intercourse . . . (interrupted) Court: Anyway, on March 9, she was also examined by the doctor and the doctor did not observe any fresh laceration. There maybe healed laceration, but it could happen to anybody. So that's clear. Pros. Ybañez: Q You mean to say Madam witness that you have sexual intercourse with Benny and this Benny was just making a push and pull movements? Court: What push and pull? How could it be a push and pull when the penis is not inside the vagina? That is not push and pull. You cannot push and pull without getting the penis inside the vagina. You might be doing a thrusting motion but not push and pull. Because several times we asked this witness whether they were doing the act. Whether they call it sexual intercourse; whether the penis of the accused entered I do not know if his penis is small. She could not anymore feel whether it[']s inside. It's very clear there was no fresh laceration also. Pros. Ybañez: Let me finish this witness, [Y]our Honor. Q So what happened next after your Lolo caught you in the act? A My grandfather [maltreated] me and he was very mad at me. Court: Q Why did your Lolo [maltreat] you if you have not committed something wrong? A Because he said, that's not good. Q Meaning consenting to a (sic) sexual advances of a person who is older that you? A Yes. Q Even if the penis of that old man did not enter your vagina? A Yes. Pros. Ybañez: Q What did your Lolo do to Benny if there was any? A I heard that he will kill my grandfather. Q Did Benny kill your grandfather? A He was about to kill him of (sic) nobody had succumb to help. Q Who was able to help? A [FFF]. Q Who is that [FFF]? A Our neighbor. Court: Q So after your Lolo caught you in this sexual encounter with the accused he brought you to the hospital or medical examination at the Municipal Health Office? A Yes. Q And were you examined by the doctor? A No. Q You mean your private parts [were] not examined by the doctor? A Because there was no doctor in our place when the incident happened. Q Were you eventually examined by the doctor? A Yes. Q Where? A In xxxxxxxx Q And there you were examined including your private parts? A Yes.[71] (Emphasis supplied)
Accused-appellant is guilty of two counts of lascivious conduct under Section 5(b) of R.A. No. 7610 |
[T]he prosecution has proven the lascivious conduct of petitioner: "Clearly, CICL XXX's acts of kissing AAA on her lips and neck, mashing her breasts, removing her upper garments and panties, are morally inappropriate and indecent designed to abuse the latter."In the same manner, accused-appellant must be convicted of two counts of lascivious conduct under Section 5(b), Article III of R.A. No. 7610. This conviction is pursuant to the variance doctrine under Sections 4 and 5, Rule 120[76] of the Rules of Court. The same offenses were proved during trial and are necessarily included in lascivious conduct under Section 2(h)[77] of the rules and regulations of R.A. No. 7610, which under settled jurisprudence, is necessarily included in the crime of rape.[78]
x x x x
[C]onsidering that petitioner committed acts of lasciviousness on complainant AAA, who was 15 years of age at the time of the commission of the crime, the nomenclature of the crime should be Lascivious Conduct under Section 5 (b) of R.A. No. 7610.[75]
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.The elements of lascivious conduct under Section 5(b), Article III of R.A. No. 7610 are: (1) The accused commits the act of sexual intercourse or lascivious conduct; (2) The said act is performed with a child exploited in prostitution or subjected to sexual abuse; (3) The child, whether male or female, is below 18 years of age.[80]
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 of lascivious conduct with a child exploited in prostitution or subject to other sexual abuse; Provided, That when the victims 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;
In Criminal Case Nos. 02-548 and 02-552, there is a similar dearth of evidence that accused-appellant was able to commence penetration of his penis into AAA's vagina. What the evidence on record established was that during these two occasions, accused-appellant was only able to undress himself and his daughter before the arrival of BBB and CCC.In this case, lascivious conduct was sufficiently established. AAA testified that in December 2009 and March 2010, accused-appellant made her lie down, and undressed her while he also undressed himself. AAA also stated that accused-appellant had "sexual intercourse" with her against her will, although it is unclear whether there was penile penetration. This Court reiterates AAA's testimony on the first incident of sexual molestation against her in December 2009 by Benny Dalaguet at a nipa hut:
x x x x
We cannot simply assume in Criminal Case Nos. 02-548 and 02-552 that accused-appellant was intending to rape AAA simply because accused-appellant undressed himself and AAA during these two instances, plus the fact that accused-appellant did rape AAA on three other occasions. Such a presumption hardly constitutes proof beyond reasonable doubt of the crime of attempted rape. The gauge in determining whether the crime of attempted rape had been committed is the commencement of the act of sexual intercourse, i.e., penetration of the penis into the vagina, before the interruption.
As the [CA held], it has been established beyond reasonable doubt in Criminal Case Nos. 02-548 and 02-552 that accused-appellant committed the crime of acts of lasciviousness.[82]
On the second incident of sexual molestation in March 2010, AAA testified:
Q In your affidavit there is a statement that on December 2009 while pasturing your cow and carabao to the farm of a certain Tatay Benny he invited you to go with him, am I correct? A No, what happened was that whenever I'll be there in the field pasturing my cow and carabao he was just following me. x x x x Q At what particular place in Barangay xxxxxxxxxxx did this Benny Dalaguet rape you? A In the hut. Q When you met this Benny Dalaguet while pasturing your cow you were brought to a hut? A Yes. Q After arriving at the hut, what did he do to you? A He undressed me. Q After undressing you, what happened if any? Atty. Lajot: We would like to manifest, your Honor, that the witness has a hard time in answering the question, your Honor. A He had sex with me. Q When you say "he had sex with you[,]" can you please tell us how did the accused have sex with you? A He had sexual intercourse with me. x x x x Pros. Ybañez: Q When you say Benny Dalaguet had sexual intercourse with you[,] you mean to say he inserted his penis into your vagina? A Only outside. Q So his penis did not penetrate into your vagina? A No.[83]
Similar to the case of Dominguez,[85] it was only established that both the victim and accused-appellant were undressed, in both the first and second incidents of sexual molestation. For this reason, there is doubt as to the intention of accused-appellant to rape AAA. Based on AAA's testimony it is unclear whether there was penetration. Rather, her testimony clearly established that accused-appellant's objective is to pursue his lewd designs against AAA, which constitutes the crime of lascivious conduct under Section 5(b) of R.A. No. 7610.
Q The last time that you had sexual intercourse with the accused whether it's force[d] or not and it was at that time you were caught by your grandfather on March 9, 2010? A Yes. x x x x Pros. Ybañez: Q After this [CCC] left your house, what happened then if any? A He held my hand. Q After he held your hand, what happened? A He made me lie down and he undressed me. Q And what about Benny, did he also undress? A Yes. Q And after that while you were both undressed, what did he do to you? A We were caught in the act. Atty. Lajot: We pray [Y]our Honor, that we put the word[s,] "Nasakpan nami[.]" Pros. Ybañez: Q By the way, who caught you? A My grandfather. Q When you say you were caught you mean to say you were caught having sexual intercourse with Benny? A Yes. Q When you say you have sex with Benny, was Benny able to penetrate his penis into your vagina? A No. Q After you were caught what happened? A (No Answer.) Court: Q This is now clear that even if you said you had sexual intercourse you are still maintaining that this accused Benny was not able to penetrate his penis into your vagina? A Yes. Q How can you have sexual intercourse meaning in [B]isaya "Iyot: if he was not able to penetrate his penis into your vagina? A He just made it outside his penis. Q The meaning of gipagawas ang iyaha that means he was inside yours and then he pull it out? A (No answer.) Q In these two (2) occasion in December 2009 and on March 9, 2010 when you said you had sexual intercourse with Benny you still maintain that he was not able to put his penis inside your vagina even if you call it sexual intercourse? Even if you said he did it just outside your vagina? This is very important. A Yes.[84]
In Criminal Case Nos. 02-548 and 02-552, there is a similar dearth of evidence that accused-appellant was able to commence penetration of his penis into AAA's vagina. What the evidence on record established was that during these two occasions, accused-appellant was only able to undress himself and his daughter before the arrival of BBB and CCC.In this case, lascivious conduct was sufficiently established. AAA testified that in December 2009 and March 2010, accused-appellant made her lie down, and undressed her while he also undressed himself. AAA also stated that accused-appellant had "sexual intercourse" with her against her will, although it is unclear whether there was penile penetration. This created a doubt as to the commission of the crime of rape, but not for lascivious conduct.
x x x x
We cannot simply assume in Criminal Case Nos. 02-548 and 02-552 that accused-appellant was intending to rape AAA simply because accused-appellant undressed himself and AAA during these two instances, plus the fact that accused-appellant did rape AAA on three other occasions. Such a presumption hardly constitutes proof beyond reasonable doubt of the crime of attempted rape. The gauge in determining whether the crime of attempted rape had been committed is the commencement of the act of sexual intercourse, i.e., penetration of the penis into the vagina, before the interruption.
As the [CA held], it has been established beyond reasonable doubt in Criminal Case Nos. 02-548 and 02-552 that accused-appellant committed the crime of acts of lasciviousness.[87]
Sec. 5. It shall be the duty of the Board of Indeterminate Sentence to look into the physical, mental and moral record of the prisoners who shall be eligible to parole and to determine the proper time of release of such prisoners. Whenever any prisoner shall have served the minimum penalty imposed on him, and it shall appear to the Board of Indeterminate Sentence, from the reports of the prisoner's work and conduct which may be received in accordance with the rules and regulations prescribed, and from the study and investigation made by the Board itself, that such prisoner is fitted by his training for release, that there is a reasonable probability that such prisoner will live and remain at liberty without violating the law, and that such release will not be incompatible with the welfare of society, said Board of Indeterminate Sentence may, in its discretion, and in accordance with the rules and regulations adopted hereunder, authorize the release of such prisoner on parole, upon such terms and conditions as are herein prescribed and as may be prescribed by the Board. The said Board of Indeterminate Sentence shall also examine the records and status of prisoners who shall have been convicted of any offense other than those named in Section 2 hereof, and have been sentenced for more than one year by final judgment prior to the date on which this Act shall take effect, and shall make recommendation in all such cases to the Governor-General with regard to the parole of such prisoners as they shall deem qualified for parole as herein provided, after they shall have served a period of imprisonment not less than the minimum period for which they might have been sentenced under this Act for the same offense.Notably, the new law increased the minimum term of indeterminate penalty imposed upon the accused-appellant: from prisión mayor medium to reclusion temporal minimum. The retroactive application of R.A. No. 11648 will thus result into a higher minimum term of the indeterminate penalty. Considering that the new penalty has a higher minimum term, it is more burdensome to the accused-appellant as it will take him a longer period of time to serve the minimum of the indeterminate sentence before he becomes eligible for a review of his parole case.
"1) By a person who shall have carnal knowledge of another person under any of the following circumstances:"d) When the offended party is under sixteen (16) years of age or is demented, even though none of the circumstances mentioned above be present: Provided, That there shall be no criminal liability on the part of a person having carnal knowledge of another person under sixteen (16) years of age when the age difference between the parties is not more than three (3) years, and the sexual act in question is proven to be consensual, non-abusive and non-exploitative: Provided further, That if the victim is under thirteen (13) years of age, this exception shall not apply.
x x x x