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The accused in this case is charged with mutilation under Article 262 of the Revised Penal Code, which

provides:
Art. 262 Mutilation- The penalty of reclusion temporal to reclusion temporal shall be imposed upon any person who shall intentionally mutilate another by depriving him, either totally or partially, of some essential organ for reproduction

However, she cannot be held criminally liable under this provision due to the fact that not only one of the elements are missing but also in fact, none of the elements of mutilation are present. The elements of mutilation are as follows:
1. 2. That there be a castration, that is, mutilation of organs necessary for generation, such as the penis or ovarium That the mutilation is caused purposely and deliberately, that is, to deprive the offended party of some essential organ for reproduction

There is no castration involved in this case. Castration is defined as to render impotent. Mutilation is defined as the lopping or clipping off of some part of the body. In Aguirre vs Secretary of Department of Justice1, it was stated the ordinary usage of the term "mutilation" is the deprivation of a limb or essential part (of the body), with the operative expression being "deprivation." In the same manner, the word "castration" is defined as the removal of the testies or ovaries. The accused never attempted to render the victim impotent and never even attempted to clip off the reproductive organ of the victim. All that was done was the placing of the ball clamp on the testicles. This alone shows that she must be acquitted of this charge since no mutilation even occurred. It is accepted that the testicles are necessary for reproduction. However, the loss of the use of the testicles was not due to any severing or cutting on the part of the accused. There was no severing or cutting involved in the first place. The accused did not directly cut off the testicles of the victim. It was actually the doctor who performed the operation and severed the testicles of the victim. The accused merely engaged in a lawful, although extremely bizarre, exercise of sexual experimentation. Although the victim in this case has been deprived of his capacity to reproduce offspring, there was no intent to actually and deliberately cause this to happen. The purpose for placing the ball clamp on the testicles of the victim was to obtain sexual gratification due to the fact that the couple wanted to experiment with different kind of sexually oriented toys. An indispensable requirement to the crime of mutilation is that there must be intent to actually divest the victim of the capacity to produce offspring and deny that person the use of his or her reproductive organs. The court held in US vs Esparcia2 that:
At the head of these crimes, according to their order of gravity, is the mutilation known by the name of castration which consists of the amputation of whatever
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GR. 70723 36 Phil 840

organ is necessary for generation. The law could not fail to punish with the utmost severity such a crime, which, although not destroying life, deprives a person of the means to transmit it. But bear in mind that according to this article in order for castration to exist, it is indispensable that the castration be made purposely. The law does not look only to the result but also to the intention of the act. Consequently, if by reason of an injury or attack, a person is deprived of the organs of generation, the act, although voluntary, not being intentional to that end, it would not come under the provisions of this article.

Furthermore, the accused cannot be convicted of this crime because consent was given by the victim for the placement of the ball clamp on his testicles. This is further proof that the accused had no intent to deprive him of the ability to reproduce. It was merely a sexual experiment between two consenting adults that just happened to produce the effect of one of them losing the capacity to reproduce. Notwithstanding the fact that the victim later withdrew his consent, the supposed damage to his reproductive organ arose from the fact that he already gave his consent to the placement of the ball clamp on his testicles and the accused was merely acting upon the consent given to her by the victim in this case. The argument that Art 4 of the Revised Penal Code is applicable in the case at bar is untenable. Art 4 is stated as follows:
Art. 4. Criminal liability. Criminal liability shall be incurred: 1. By any person committing a felony (delito) although the wrongful act done be different from that which he intended. 2. By any person performing an act which would be an offense against persons or property, were it not for the inherent impossibility of its accomplishment or an account of the employment of inadequate or ineffectual means.

However, this article may only be applied if the person was committing a felony. In the first place, the accused was performing a lawful act of sexual union between two consenting adults. There was nothing unlawful or illegal in this act and therefore this article cannot be applied. Although a person may be held liable for a felony even if the act done was different from what as intended, this presupposes that there was indeed a felony or a wrongful act being committed by the accused. However, in the case at bar, there was actually no wrongful act committed. Just because the act resulted in a doctor having to sever the testicles of the victim, it does not mean that the accused is responsible because what she was doing was a perfectly legal act. An example to illustrate this argument is found in the case of US vs Villanueva3, where the Supreme Court held that when a person has not committed a felony, he is not criminally liable for the result which is not intended. As long as the act is perfectly legal, Art 4 of the Revised Penal Code cannot be applied. The act in this case of placing the ball clamps on the testicles of the victim with his consent is not punishable by the Revised Penal Code and therefore cannot be punished at all.

31 Phil. 412