People of the Philippines- AppelleeVs.Alejandro Rellota y Tadeo- AppellantGR No. 168103 August 3, 2010
RAPE VIS-À-VIS ACTS OF LASCIVIOUSNESS
FACTS:AAA the complainant is 12 years old when the incidents allegedly happened. Together withher siblings, AAA lived with her aunt, DDD and the latter’s second husband, appellant in AntipoloCity, Rizal from September 1992 to January 1994.According to AAA, appellant had been kissing her and touching her private parts sinceSeptember 1993.She narrated that appellant would usually rape her at night when the othermembers of the family were either out of the house or asleep.AAA stated that she resisted theadvances of appellant, but was not successful. Appellant, according to her would usually place abolo beside him whenever she would rape her. She added that appellant would threaten AAA bytelling her that he would kill her brother and sister and that he would stop sending her to school.On December 20, 1993, appellant raped AAA twice in the latter’s bedroom. He tied herhands with a rope before forcibly inserting his penis inside her vagina. The same incident happenson January 31, 1994 when AAA was inside their room. Appellant laid her down on the sofa, kissedher and touched her private part, while AAA kicked him and scratched his arms. She was able topush him and after which appellant ran out the door. The CA ruled that appellant is guilty of 2 counts of consummated rape and 1 count of attemptedrape.ISSUE:Whether or not the actions of appellant on January 31, 1994 constitute acts of lasciviousness andnot attempted rape?HELD: Yes. Attempted rape requires that the offender commence the commission of rape directly by overtacts, but does not perform all the acts of execution by reason of some cause or accident other thanhis own spontaneous desistance. Appellant’s act of removing the towel wrapped in the body of AAA, laying her on the sofa and kissing and touching her private parts does not exactlydemonstrate the intent of appellant to have carnal knowledge on AAA on that particular date. Evenso, the said acts should not be left unpunished as the elements of the crime of acts of lasciviousness, AAA being a minor when the incident happened, are present:1.That the offender commits any act of lasciviousness or lewdness2.That is donea.By using force and intimidationb.When the offended party is deprived of reason or otherwise unconsciousc.When the offended party is under 12 years of age3.That the offended party is another person of either sex. The actions of appellant on January 31,1994, by definition, lascivious or lewd, and based onAAA’s testimony, the intimidation from appellant was in existence and apparent. Sec 5 of RA No7610 does not merely cover a situation of a child being abused for profit, but also one in which achild engages in any lascivious conduct through coercion or intimidation. As case law has it,intimidation need not necessarily be irresistible. It is sufficient that some compulsion equivalent tointimidation annuls or subdues the free exercise of the will of the offended party.