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SECOND DIVISION

G.R. No. 151952 March 25, 2009


THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
HERACLEO ABELLO Y FORTADA, Accused-Appellant.
D E C I S I O N
BRION, J .:
We review in this appeal the decision of the Court of Appeals in CA-G.R. CR No. 23746,
1
which affirmed with
modification the joint decision of the Regional Trial Court (RTC), Branch 170, Malabon City, in Criminal Case Nos.
19623-MN, 19624-MN and 19625-MN.
2

Appellant Heracleo Abello y Fortada (Abello) stands convicted of one (1) count of violation of paragraph 2, Article
266-A of the Revised Penal Code (RPC), as amended;
3
and two (2) counts of violation of sexual abuse under
Republic Act (R.A.) No. 7610 (Child Abuse Law). For these crimes, he was sentenced to suffer imprisonment of
twelve (12) years of prision mayor, as minimum, to twenty (20) years of reclusion temporal, and two reclusion
perpetuas, respectively.
The following Informations (all dated July 8, 1998) were filed against the appellant:
Criminal Case No. 19623-MN
That on or about the 8th day of July 1998, in Navotas, Metro Manila, and within the jurisdiction of this Honorable
Court, the above-named accused, being a step-father (sic) of victim AAA,
4
with lewd design and by means of force
and intimidation, did then and there willfully, unlawfully and feloniously putting his penis inside the mouth of said
AAA, against her will and without her consent.
CONTRARY TO LAW.
5

Criminal Case No. 19624-MN
That on or about the 30th day of June 1998, in Navotas, Metro Manila, and within the jurisdiction of this Honorable
Court, the above-named accused, being a step-father (sic) of victim AAA, a (sic) years old, and Polio Striken (sic),
with lewd design by means of violence and intimidation, did then and there willfully, unlawfully and feloniously
mashing her breast, against her will and without her consent.
6

CONTRARY TO LAW.
Criminal Case No. 19625-MN
That on or about the 2nd day of July 1998, in Navotas, Metro Manila, and within the jurisdiction of this Honorable
Court, the above-named accused, being a step-father (sic) of victim AAA, a (sic) 21 years old, and Polio Striken
(sic), with lewd design by means of violence and intimidation, did then and there willfully, unlawfully and feloniously
mashing her breast, against her will and without her consent.
7

CONTRARY TO LAW.
Abello, with the assistance of counsel, pleaded not guilty to these charges. The cases were jointly tried since they
arose from similar incidents involving the same parties.
8
The prosecution relied on testimony of the victim, AAA, who
identified Abello as the perpetrator of the rape and sexual abuses against her. Abellos defense was confined to his
denial of the accusations.
The Background Facts
The RTC summarized the facts as follows:
The victim in these cases is twenty-one (21) year old AAA. She contracted polio when she was seven (7) months
old. She was not able to study on account of her difficulty in walking. Hence, she could only read and write her name
including that of her friends.
On June 30, 1998 at around 4:00 oclock (sic) in the early morning, AAA was sleeping in their house in Kalyeng
Impiyerno, Navotas, Metro Manila along with her sister-in-law and nephew. She was suddenly awakened when
Abello mashed her breast. Come July 2, 1999 at around 3:00 a.m. Abello again mashed the breast of AAA
practically under the same previous situation while the latter was sleeping. In these two occasions AAA was able to
recognize Abello because of the light coming from outside which illuminated the house. Then on July 8, 1998, at
around 2:00 a.m., Abello this time placed his soft penis inside the mouth of AAA. The latter got awaken when Abello
accidentally kneeled on her right hand. AAA exclaimed "Aray" forcing the accused to hurriedly enter his room. He
was nevertheless seen by AAA. The victim on the same date reported the incident to her sister-in-law and mother.
Amidst the accusation of raping and twice sexually abusing AAA, Abello interposed the defense of denial. In all of
the instances, Abello claimed that he merely stepped on the victim at the sala on his way to his room after retiring
home.
The RTC found Abello guilty under the three Informations. The dispositive portion of the decision states:
WHEREFORE, premises considered, judgment is hereby rendered as follows:
1. In Criminal Case No. 19623-MN, the Court finds accused Heracleo Abello y Fortada guilty beyond reasonable
doubt of the crime of Violation of Paragraph 2, Article 226-A, Republic Act [No.] 8353 and hereby sentences him to
suffer an indeterminate penalty of Seven (7) Years of prision mayor, as minimum, to Thirteen (13) Years of reclusion
temporal, as maximum;
9

2. In Criminal Case Nos. 19624-MN and 19625-MN, the Court finds accused Heracleo Abello y Fortada guilty
beyond reasonable doubt of two (2) counts of Violation of Section 5, Article III of Republic Act [No.] 7610 and hereby
sentences him in each of the two cases to suffer an indeterminate penalty of Four (4) Years of prision correctional
(sic), as minimum, to Twelve (12) Years and One (1) Day of prision mayor, as maximum.
10
[Emphasis theirs]
The CA affirmed Abellos conviction on appeal but modified the penalties imposed. The dispositive portion of its
decision reads:
WHEREFORE, the appealed judgement (sic) is hereby AFFIRMED subject to the following MODIFICATIONS:
1.In Criminal Case No. 19623-MN, appellant is hereby sentenced to suffer an indeterminate penalty of twelve (12)
years of prision mayor, as minimum, to twenty (20) years of reclusion temporal, as maximum; Appellant is further
ordered to pay complainant, AAA, moral damages in the amount of P50,000.00
2. In Criminal Case Nos. 19624-MN and 19625-MN, appellant is hereby sentenced to suffer the penalty of reclusion
perpetua in each of the two cases.
11

The Issues
Abello contends in his Brief that:
12

1. The court a quo erred in not absolving the accused-appellant of the crime of violation of paragraph 2, Article 266-
A of the Revised Penal Code, as amended;
2. The court a quo has committed an error in not exculpating the accused-appellant of the crime of violation of
Section 5, Article III of R.A. No. 7610.
13

He emphasizes that it was impossible for him to have committed these crimes considering that: (a) he is AAAs
stepfather who has a healthy sexual relationship with her mother; (b) AAA was not alone during these alleged
incidents; and (c) AAA admitted that she was asleep when these incidents happened making it likely that she could
have just dreamed of them.
The Office of the Solicitor General maintains the correctness of Abellos conviction on the basis of AAAs positive
and candid narration covering the elements constituting the crimes of rape by sexual assault and sexual abuse.
Our Ruling
We affirm Abellos conviction on all three charges.
Determining the guilt or innocence of an accused, based solely on the victims testimony, is not an easy task in
reviewing convictions for rape and sexual abuse cases. For one, these crimes are usually committed in private so
that only the two direct parties can attest to what happened; thus, the testimonies are largely uncorroborated as to
the exact details of the rape, and are usually in conflict with one another. With this in mind, we exercise utmost care
in scrutinizing the parties testimonies to determine who of them is believable. Oftentimes, we rely on the
surrounding circumstances as shown by the evidence, and on common human experience.
We carefully reviewed AAAs testimony in light of the issues Abello raised in his appeal, and in light of matters he
did not raise but which materially affect his innocence or culpability. After due consideration, we find no reason to
doubt the veracity of AAAs testimony and her version of the events that led to the filing of the present charges.
In her testimony, AAA positively and unequivocally narrated the details of her rape and sexual abuse she suffered in
Abellos hands, as follows:
Q: Do you remember any unusual incident that happened on June 30, 1999, inside your mothers house at around
4:00 oclock (sic)?
A: I remembered on that date that he hold (sic) my breast, sir.
Q: Who hold (sic) your breast?
A: He is the one, sir. (Witness pointed to the accused.)
Q: What else did he do to you at that time?
A: That was again repeated on July 2 more or less 3:00 oclock (sic), sir.
Q: What did he do to you on July 2 at 3:00 oclock (sic)?
A: The same he mashed my breast, sir.
Q: Was that repeated?
A: On July 8 at around 2:00 oclock in the morning, sir.
Q: What happened then?
A: He placed his penis on (sic) my mouth, sir.
Q: While his penis was inside your mouth, what else was he doing to you?
A: He suddenly entered the room of my mother because I saw him and I was sure that it was him who was doing
that to me, sir.
Q: When was that when the accused placed his penis inside your mouth?
A: I was sleeping at that time, sir.
Q: Were you awaken (sic)?
A: Yes, sir.
Q: When you were awakened, what did you see?
A: His organ was in my mouth while I was sleeping, I got awaken (sic) because I felt pain after he accidentally
kneeled on my right hand and because of that I cried "aray," x x x
x x x
Q: So, it cannot take one minute or thirty seconds that the penis of the accused was inserted on (sic) your mouth
open?
A: I notice that my mouth was open, Your Honor.
Q: So, you were not sure whether it lasted for one second or one minute?
A: It lasted for one second, Your Honor.
Q: And you were awakened?
A: Yes, Your Honor.
Q: How do you know that it was the penis of the accused?
A: I saw it, Your Honor.
Q: Whom did you see?
A: Him, you honor.
Q: While the penis was inside your mouth, were you sleeping or awaken already?
A: I got awaken because of the placement of his penis on (sic) my mouth, sir.
Q: Was his penis soft or hard?
A: I got hold of it, Your honor.
x x x
Q: How were you able to hold the penis?
A: I hold (sic) the penis to push it out on (sic) my mouth, Your honor.
14

We note that both the RTC and CA found AAAs testimony to be positive, direct, and categorical, while the RTC
found the defenses version too strained to be believed for being contrary to human experience; the RTC refused to
accept the claim that Abello was prosecuted for rape and sexual abuse simply because he stepped with his knees
on her stepdaughters hand.
15
A material point we noted is that Abello could not say why AAA would falsely accuse
him.
16
The substance and tenor of the testimony and the element of motivation are critical points for us since a
straightforward, categorical and candid narration by the victim deserves credence if no ill motive can be shown
driving her to falsely testify against the accused.
17

Our consideration of Abellos defense of denial and his other arguments lead us to reject them for the following
reasons:
First, the issue of his credibility is reduced to a choice between the offended partys positive testimony and the
denial of the accused. In this case, AAA categorically and unmistakably identified Abello as her rapist and sexual
abuser;
18
the identification was positive because the scene was illuminated by a light coming from outside the
parties house at the time of the incidents.
19
She also testified that during the rape, she saw Abello suddenly enter
the room of her mother after she yelped in pain when he stepped with his knee on her hand.
20
Settled jurisprudence
tells us that the mere denial of ones involvement in a crime cannot take precedence over the positive testimony of
the offended party.
21

Abello likewise admitted that in the wee hours of the mornings of June 30, July 2, and July 8, 1998, he passed by
the sala of their house where AAA and her companions were sleeping.
22
This admission shows that he had the
opportunity and the means to commit these crimes in terms of his location and close proximity to AAA who, together
with her companions, were then sleeping.
Second, we flatly reject Abellos argument that his relationship with AAA insulates him from the crimes charged. Our
judicial experience tells us that in handling these types of cases, the relationship between the offender and the
offended party has never been an obstacle to the commission of the crime against chastity. Although alarming to
admit, this kind and degree of relationship is now quite common in these types of crimes. Studies show a rising
incidence of family and domestic violence where 98.8% of the victims are women; an estimated 26.7% of these
cases involve sexual abuse, while 33% involve incest committed against children.
23
In these cases, the male
spouse, the father of the victim, or close male relatives, have been identified as frequent abusers.
24

Third, we find the claim that AAA could have just dreamed of the incidents complained of, to be preposterous. It is
highly unlikely that a woman in her right mind would expose and declare herself a victim of rape and sexual abuse,
when she would thereby open herself to the humiliating experience of a public trial and to the possible social stigma
of being a victim of rape and sexual abuse. In the normal course, a woman will not expose herself to these risks
unless she is certain of what happened and she seeks to obtain justice against the perpetrator. We note in this
regard AAAs categorical testimony that she filed the criminal charges because she did not know what to do; she
thus reported the incidents to her mother and sister-in-law who thereafter sought police assistance.
25

The record also shows that AAA lived a sheltered life cared for by her relatives because of her polio.
26
Unless the
contrary is shown, it is highly unusual for her to have the worldly sophistication to invent or fabricate the charges she
made, particularly one made against her stepfather. A charge against ones stepfather, too, is unusual in our socio-
cultural context because of the respect we give our elders, and is only understandable if there is a deeply felt cause
for complaint. We particularly note that no imputation has been made at any time in the case that AAA is not normal,
save for her physical disability, or has a strained relationship with her stepfather prior to the acts charged.
Based on these considerations and in the absence of clear indications of errors in giving credence to AAAs
testimony, we find no reason to disturb the factual findings of the RTC and the CA.
Rape by sexual assault
R.A. No. 8353 which took effect on October 22, 1997 introduced into the Philippine legal system the concept of rape
by sexual assault. This amendment not only reclassified rape as a crime against persons, but also expanded the
definition of rape from the traditional concept of a sexual intercourse committed by a man against an unwilling
woman.
The second paragraph of Article 266-A of the RPC, as amended defines rape by sexual assault as committed by
any person who, under any of the circumstance mentioned in paragraph 1 shall commit an act of sexual assault
by inserting his penis into another persons mouth or anal orifice, or any instrument or object, into the genital or anal
orifice of another person.
The elements of rape by sexual assault are:
(1)That the offender commits an act of sexual assault;
(2)That the act of sexual assault is committed by any of the following means:
(a) By inserting his penis into another persons mouth or anal orifice; or
x x x
(3) That the act of sexual assault is accomplished under any of the following circumstances:
(a) By using force or intimidation;
(b) When a woman is deprived of reason or otherwise unconscious;
x x x
27

AAAs testimony covers the commission of the sexual assault through the insertion of Abellos male organ into her
mouth; AAA also consistently identified Abello as the perpetrator of the sexual assault. These statements satisfy the
first and second elements of the rape.
Her testimony that she was roused from sleep with Abellos male organ inserted in her mouth, goes into the third
element of the crime.
28
In this respect, we observe that both the RTC and the CA failed to notice the variance
between the allegations in the Information for rape and that proven at the trial on the mode of committing the
offense. The Information alleges "force and intimidation" as the mode of commission, while AAA testified during the
trial that she was asleep at the time it happened and only awoke to find Abellos male organ inside her mouth.
This variance is not fatal to Abellos conviction for rape by sexual assault. In People v. Corpuz,
29
we ruled that a
variance in the mode of commission of the offense is binding upon the accused if he fails to object to evidence
showing that the crime was committed in a different manner than what was alleged. In the present case, Abello did
not object to the presentation of evidence showing that the crime charged was committed in a different manner than
what was stated in the Information. Thus, the variance is not a bar to Abellos conviction of the crime charged in the
Information.
Acts of lasciviousness
Abello was convicted of two (2) counts of sexual abuse under Section 5 (b), Article III of R.A. No. 7610, which
defines and penalizes acts of lasciviousness committed against a child:
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.
x x x
(b) Those who commit the act of sexual intercourse or 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; and
The essential elements of this provision 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 other sexual abuse.
3. The child whether male or female, is below 18 years of age.
30

Paragraph (h), Section 2 of the Implementing Rules and Regulations of R.A. 7610
31
(implementing rules) defines
lascivious conduct as a crime committed through the intentional touching, either directly or through the clothing of
the genitalia, anus, groin, breast, inner thigh or buttocks with the intent to abuse, humiliate, harass, degrade, or
arouse or gratify the sexual desire of any person, among others. Records show that AAA duly established this
element when she positively testified that Abello fondled her breasts on two separate occasions while she slept.
The second element requires that the lascivious conduct be committed on a child who is either exploited in
prostitution or subjected to other sexual abuse. This second element requires evidence proving that: (a) AAA was
either exploited in prostitution or subjected to sexual abuse and (b) she is a child as defined under R.A. No. 7610.
In Olivarez v. Court of Appeals,
32
we explained that the phrase, "other sexual abuse" in the above provision covers
not only a child who is abused for profit, but also one who engages in lascivious conduct through the coercion or
intimidation by an adult. In the latter case, there must be some form of compulsion equivalent to intimidation which
subdues the free exercise of the offended partys will.
33

In the present case, the prosecution failed to present any evidence showing that force or coercion attended Abellos
sexual abuse on AAA; the evidence reveals that she was asleep at the time these crimes happened and only awoke
when she felt her breasts being fondled. Hence, she could have not resisted Abellos advances as she was
unconscious at the time it happened. In the same manner, there was also no evidence showing that Abello
compelled her, or cowed her into silence to bear his sexual assault, after being roused from sleep. Neither is there
evidence that she had the time to manifest conscious lack of consent or resistance to Abellos assault.
More importantly, AAA cannot be considered a child under Section 3(a) of R.A. No. 7610 which reads:
(a) "Children" refers to person below eighteen (18) years of age or those over but are unable to fully take care of
themselves or protect themselves from abuse, neglect, cruelty, exploitation or discrimination because of a physical
or mental disability or condition; [Emphasis supplied]
The implementing rules elaborated on this definition when it defined a "child" as one who is below 18 years of age or
over said age who, upon evaluation of a qualified physician, psychologist or psychiatrist, is found to be incapable of
taking care of herself fully because of a physical or mental disability or condition or of protecting herself from abuse.
While the records show that the RTC, the CA and the investigating prosecutor who filed the corresponding
Informations, considered AAAs polio as a physical disability that rendered her incapable of normal function, no
evidence was in fact presented showing the prosecutions compliance with the implementing rules. Specifically, the
prosecution did not present any evidence, testimonial or documentary, of any medical evaluation or medical finding
from a qualified physician, psychologist or psychiatrist attesting that AAAs physical condition rendered her
incapable of fully taking care of herself or of protecting herself against sexual abuse. Under the circumstances, we
cannot consider AAA a child under Section 3(a) of R.A. No. 7610.
In arriving at this conclusion, we consider that since R.A. No. 7610 is a special law referring to a particular class in
society, the prosecution must show that the victim truly belongs to this particular class to warrant the application of
the statutes provisions. Any doubt in this regard we must resolve in favor of the accused.
From another perspective, we also note that no evidence has been adduced showing that AAAs physical disability
prevented her from resisting Abellos attacks; the evidence only reveals that Abello took advantage of the
opportunity presented to him (i.e., that AAA and her companions who were then asleep) to commit the sexual
abuses; this inference is supported by the fact that he stopped his sexual assault when AAA started to awaken. It
can also be reasonably deduced from these circumstances that Abello sought to commit the sexual abuses with
impunity -- without AAAs knowledge and without any interference on her part.
In light of these conclusions, we cannot hold Abello liable under R.A. No. 7610. However, we still find him liable for
acts of lasciviousness under Article 336 of the RPC, as amended.
In Olivarez, we emphasized that the character of the crime is not determined by the caption or preamble of the
information or from the specification of the provision of law alleged to have been violated; the crime committed is
determined by the recital of the ultimate facts and circumstances in the complaint or information.
34
In the present
case, although the two Informations wrongly designated R.A. No. 7610 as the law violated; the allegations therein
sufficiently constitute acts punishable under Article 336 of the RPC whose elements are:
1. That the offender commits any act of lasciviousness;
2. That the offended party is another person of either sex; and
3. That it is done under any of the following circumstances:
a. By using force or intimidation; or
b. When the offended party is deprived of reason or otherwise unconscious; or
c. When the offended party is under 12 years of age or is demented.
35

The presence of the first and second elements of the offense has been earlier discussed, albeit in the consideration
of a charge under R.A. No. 7610. The prosecution established these elements through AAAs testimony that her
breasts were fondled while she was asleep. While she did not actually see Abello fondling her (as the fondling was
done while she was asleep and stopped when she awakened), she related that she identified Abello because she
saw him enter her mothers room immediately after she felt her breasts fondled and after he stepped with his knees
on her hand.
36
AAA also testified that Abello was illuminated by a light coming from outside their house.
37
Further,
the perpetrator could only be Abello as the only other occupants of the house at the time were her mother, her
sister-in-law and her young nephew who were all asleep.
38
The third element was proven by her testimony that, on
two occasions, Abello mashed her breasts while she was sleeping.
39

As we discussed above, the Informations alleged the element of violence and intimidation as the mode of
committing the sexual abuses, contrary to what the prosecution established during the trial that AAA was asleep on
the two occasions when the offenses were committed. Pursuant to our above discussions citing Corpuz,
40
the
deficiencies in the allegations will not relieve Abello of liability under the circumstances of this case.
The Penalty
The three Informations all alleged the stepfather-stepdaughter relationship between AAA and Abello. Relationship
as an alternative circumstance under Article 15 of the RPC, as amended, and is an aggravating circumstance in
crimes against chastity and in rape.
41
This modifying circumstance, however, was not duly proven in the present
case due to the prosecutions failure to present the marriage contract between Abello and AAAs mother. If the fact
of marriage came out in the evidence at all, it was via an admission by Abello of his marriage to AAAs mother. This
admission, however, is inconclusive evidence to prove the marriage to AAAs mother,
42
as the marriage contract still
remains the best evidence to prove the fact of marriage.
43
This stricter requirement is only proper as relationship is
an aggravating circumstance that increases the imposable penalty, and hence must be proven by competent
evidence.
Rape by sexual assault is penalized by prision mayor which has a range of six (6) years and one (1) day to twelve
(12) years. Applying the Indeterminate Sentence Law, the minimum of the indeterminate penalty shall be within the
full range of the penalty that is one degree lower than prision mayor, in this case, prision correccional which has a
range of penalty from six (6) months and one (1) day to six (6) years. In the absence of any mitigating or
aggravating circumstance, the maximum of the indeterminate penalty shall be taken within the medium period of
prision mayor, or eight (8) years and one (1) day to ten (10) years.
44
Hence, Abello may be sentenced to suffer an
indeterminate penalty ranging from six (6) months and one (1) day to six (6) years of prision correccional, as
minimum, to eight (8) years and one (1) day to ten (10) years, as maximum, for the crime of rape.
The imposable penalty for acts of lasciviousness under Article 336 of the RPC, as amended, is prision correccional.
Under Scale No. 1 of Article 71 of this law, one degree lower from prision correccional is arresto mayor which has a
range of penalty from one (1) month and one (1) day to six (6) months. Applying the Indeterminate Sentence Law,
the minimum of the indeterminate penalty shall be taken from the full range of arresto mayor. Absent any mitigating
or aggravating circumstance in the case, the maximum of the indeterminate penalty shall be taken from the medium
period of prision correccional or two (2) years, four (4) months and one (1) day to four (4) years and two (2) months.
Accordingly, Abello may be meted an indeterminate penalty ranging from one (1) month and one (1) day to six (6)
months of arresto mayor, as minimum, to two (2) years, four (4) months and one (1) day to four (4) years and two
(2) months of prision correccional, as maximum, for each count of acts of lasciviousness.
The Civil Liability
A victim of rape by sexual assault is entitled to an award of P30,000 as civil indemnity and P30,000 as moral
damages.
45
Civil indemnity is separate and distinct from the award of moral damages which is automatically granted
in rape cases.
46
Moral damages are additionally awarded without need of further pleading or proof; it is presumed
that the victim necessarily suffered injury due to the odiousness of the crime.
47
1avvphi 1
For acts of lasciviousness, AAA is awarded P20,000 as civil indemnity and P30,000 as moral damages for each
count in line with existing jurisprudence.
48

The Court further awards exemplary damages in the amount of P25,000 for the rape through sexual assault
committed upon AAA and P2,000 for each count of acts of lasciviousness.
49
Article 2230 of the Civil Code allows an
award of exemplary damages when the crime is committed with one or more aggravating circumstances.
Although not alleged in the Informations (as now required by Sections 8 and 9, Rule 110 of the 2000 Revised Rules
of Criminal Procedure),
50
the aggravating circumstance of dwelling was nonetheless proven during the trial when
AAA testified that she was sexually abused by Abello while she was asleep in their house.
51

Additionally, Article 266-B of the RPC, as amended, recognizes knowledge by the offender of the mental disability,
emotional disorder and/or physical handicap of the offended party at the time of the commission of the crime, as a
qualifying circumstance. Again, this knowledge by Abello of AAAs polio was duly proven during the trial; this matter
was not alleged in the Information.
52

These aggravating and qualifying circumstances of dwelling and Abellos knowledge of AAAs physical disability
may be appreciated in awarding the victim exemplary damages in line with our ruling in People v. Catubig
53
where
we held that the presence of an aggravating circumstance, whether ordinary or qualifying, entitles the offended party
to an award of exemplary damages.
WHEREFORE, premises considered, the decision dated January 3, 2002 of the Court of Appeals in CA-G.R. CR
No. 23746 is AFFIRMED with the following MODIFICATIONS in that:
(1) In Criminal Case No. 19623, we find appellant Heracleo Abello y Fortada GUILTY of rape by sexual
assault defined and penalized under Articles 266-A and 266-B of the Revised Penal Code, as amended. We
sentence him to suffer an indeterminate prison term of six (6) years of prision correccional, as minimum, to
ten (10) years of prision mayor, as maximum. He is ORDERED to pay AAA P30,000.00 as civil
liability;P30,000.00 as moral damages and P25,000.00 as exemplary damages;
(2) In Criminal Case Nos. 19624-MN and 19625-MN, we find appellant Heracleo Abello y Fortada GUILTY of
acts of lasciviousness, defined and penalized under Article 336 of the Revised Penal Code, as amended.
For each count, he is sentenced to an indeterminate prison term of six (6) months of arresto mayor, as
minimum, to four (4) years and two (2) months of prision correccional, as maximum. He is further
ORDERED to pay AAA the amounts of P20,000.00 as civil indemnity; P30,000.00 as moral damages
and P2,000.00 as exemplary damages, in each case.
SO ORDERED.



SECOND DIVISION
G.R. No. 169143 February 2, 2007
[Formerly G.R. No. 138328]
PEOPLE OF THE PHLIPPINES, Appellee
vs.
SIMPLICIO DELANTAR, Appellant.
D E C I S I O N
TINGA, J .:
The forfeiture of the right to live free in society is the due requital for peddling a child to sexual servitude.
We begin with the antecedents.
On 27 August 1996, an information for violation of Section 5, Article III of Republic Act (R.A.) No. 7610
1
was filed
against appellant Simplicio Delantar y Redondo. Docketed as Criminal Case No. 96-9175
2
of the Regional Trial
Court (RTC) of Pasay City, the information was amended on 3 September 1996.
3
The accusatory portion of the
Amended Information reads:
That sometime and during the period from 1994 to August 1996, in Pasay City, Metro Manila, Philippines and within
the jurisdiction of this Honorable Court, the above-named accused, SIMPLICIO DELANTAR Y REDONDO, through
coercion and influence, did then and there wilfully, unlawfully and feloniously promote, facilitate and induce [AAA],
4
a
female child below 12 years of age, to indulge in sexual intercourse and lascivious conduct for money, profit and
other consideration.1awphi 1. net
Contrary to [l]aw.
5

On 4 September 1996, appellant, assisted by counsel de parte, entered a plea of not guilty and informed the court
that he did not want a pre-trial.
6
An attempt to quash the information was made but the same proved
futile.
7
Thereafter, trial proceeded in due course.
The prosecution presented the following as witnesses: (1) AAA,
8
the complainant; (2) Dr. Emmanuel Aranas
9
of the
PNP Crime Laboratory; and (3) Carolina Buan
10
of the Philippine Long Distance Telephone Co. On 31 January
1997, the prosecution submitted its Formal Offer of Evidence.
11

Trial thereafter continued with the defense presenting the following as witnesses: (1) Simplicio Delantar;
12
(2)
Angelito Entruzo;
13
and (3) Eduardo Juarez, Jr.
14
On 20 August 1998, the defense rested its case.
On 25 February 1999, the RTC-Pasay City, Branch 109, rendered a Decision,
15
finding appellant guilty beyond
reasonable doubt of two counts of violation of Section 5(a), paragraphs 1, 4 and 5 of Article III of R.A. No. 7610. The
trial court arrived at the following principal findings and conclusions, thus:
From all the foregoing, the Court opines that the prosecution has proven the guilt of the accused Simplicio Delantar
y Redondo beyond reasonable doubt when he delivered his daughter [AAA] to an Arab national by the name of Mr.
Hammond from their house at 2165-A P. Burgos St., Pasay City sometime in 1994 selling her in prostitution to the
said [A]rab who committed acts of lasciviousness on her person by kissing her on her lips, her breast, her private
parts and even rubbing his penis against her private parts which is a clear violation of Section 5(a), paragraph 1, 4,
and 5 [of] Article III of R.A. [No.] 7610 and hereby sentences him of Reclusion Perpetua and to pay civil liability to
the victim in the amount of P60,000.00.
Likewise, the Court finds accused guilty beyond reasonable doubt for violation of Section 5(a) paragraph 1, 4, and 5
of Article III of R.A. [No.] 7610 when the accused Simplicio Delantar pimped and delivered the complainant, an
eleven (11) year old minor to Congressman Romeo Jalosjos of the First District of Zamboanga del Norte at the Ritz
Tower in Makati where the said Congressman for eight (8) times committed acts of lasciviousness on her person
when he kissed her on her lips, private organ and even raped her. That all these times, the accused brought his
child from their residence at 2165-A P. Burgos St., Pasay City and [the Court] hereby sentences him to Reclusion
Perpetua and to pay the victim civil liability in the amount of P60,000.00.
SO ORDERED.
16

Appellant interposed an appeal with this Court. After submission of the parties briefs, on 20 September 2004, this
Court through the Second Division then transferred the appeal to the Court of Appeals for appropriate action and
disposition.
17
On 31 May 2005, the Court of Appeals rendered a Decision
18
affirming with modification the trial courts
Decision. The appellate court ruled in the dispositive portion, thus:
WHEREFORE, the appealed decision, finding appellant Simplicio Delantar guilty beyond reasonable doubt of
Violation of Section 5(a), paragraph[s] 1, 4 and 5, Article III of R.A. No. 7610, for one count only, is AFFIRMED with
the MODIFICATION that he is also sentenced to pay complainant [AAA] the amount of P50,000.00 as civil
indemnity, P50,000.00 as moral damages and P25,000.00 as exemplary damages.
Costs against appellant.
SO ORDERED.
19

On 23 June 2005, appellant, through counsel, filed a Notice of Appeal from the Decision of the Court of Appeals to
this Court.
20
On 21 July 2005, the Court of Appeals gave due course to the Notice of Appeal and elevated the
records of the case to this Court for purposes of the appeal.
21

In his Brief,
22
appellant assigns the following errors committed by the trial court:
I
THE TRIAL COURT ERRED IN CONVICTING [APPELLANT] OF THE CRIME CHARGED DESPITE THE FAILURE
OF THE PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT.
II
THE TRIAL COURT ERRED IN CONVICTING [APPELLANT] OF TWO (2) VIOLATIONS OF SECTION 5, ARTICLE
III, R.A. [NO.] 7610 DESPITE THE FACT THAT ONLY A SINGLE INFORMATION WAS FILED BY THE 2nd
ASSISTANT CITY PROSECUTOR OF PASAY CITY.
III
THE TRIAL COURT ERRED IN IMPOSING THE PENALTY FOR THE CRIME CHARGED IN ITS MAXIMUM
PERIOD (RECLUSION PERPETUA) WHEN THERE IS NO SHOWING IN ITS DECISION [OF] THE ATTENDANCE
OF A QUALIFYING CIRCUMSTANCE WHICH WOULD WARRANT THE IMPOSITION OF THE MAXIMUM
PENALTY.
23

Of the issues raised by appellant in his brief, we only have to resolve the first and the third issues since the Court of
Appeals has already upheld the second contention which is that he should only be convicted of one violation
24
and
also since a reversal of the ruling would constitute double jeopardy. In any event, we fully agree with the appellate
courts adjudication.
25

Appellant stands charged of violating Section 5, Article III of R.A. No. 7610, which provides:
ARTICLE III.
CHILD PROSTITUTION AND OTHER SEXUAL ABUSE
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:
(a) Those who engage in or promote, facilitate or induce child prostitution which include, but are not limited
to, the following:
(1) Acting as a procurer of a child prostitute;
(2) Inducing a person to be a client of a child prostitute by means of written or oral advertisements or
other similar means;
(3) Taking advantage of influence or relationship to procure a child as a prostitute;
(4) Threatening or using violence towards a child to engage him as a prostitute; or
(5) Giving monetary consideration, goods or other pecuniary benefit to a child with the intent to
engage such child in prostitution.
(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; and
(c) Those who derive profit or advantage therefrom, whether as manager or owner of the establishment
where the prostitution takes place or of the sauna, disco, bar, resort, place of entertainment or establishment
serving as a cover or which engages in prostitution in addition to the activity for which the license has been
issued to said establishment.
In a criminal case, the accused is entitled to an acquittal, unless his guilt is shown beyond reasonable doubt. Proof
beyond reasonable doubt does not mean such a degree of proof as, excluding possibility of error, produces absolute
certainty. Moral certainty only is required, or that degree of proof which produces conviction in an unprejudiced
mind.
26

There is no doubt, drawing from the evidence, that AAA was a child who was exploited in prostitution as defined in
Section 5, Article III quoted above. The law punishes not only the person who commits the acts of sexual
intercourse or lascivious conduct with the child but also those who engage in or promote, facilitate or induce child
prostitution. Appellant is one such person.
The testimony of AAA shows that appellant procured her as a child prostitute for at least two clients: the first, an
Arab national named Mr. Hammond and the second, then Congressman Romeo Jalosjos.
AAA testified that she was brought to the first client at least eleven (11) times between the period 1994 to June
1996.
27
On each of these occasions, appellant and AAA would go to Ralph Anthony Suites in Manila where the
client stayed. Appellant would tell AAA that they had to go to the client because they needed to pay some
obligations,
28
they
had to settle something,
29
they had to pay the electric bill,
30
or they had to ask for money for AAAs tuition
fees.
31
Upon their arrival at Ralph Anthony Suites, appellant would talk to the client for a few minutes and then leave
AAA alone with the client. Money was usually given by the client to appellant who would leave on the pretext of
buying something from Robinsons, a nearby mall. When he returned, usually after two (2) to four (4) hours,
appellant would have something for AAA such as food and clothes.
Once left alone with AAA, the client would perform lascivious acts on AAA. With the sordid details spread all over
the transcript of AAAs testimony as she gave it before the trial court, the recurrent salient points of her harrowing
experience revolved around the clients kissing her, touching her breasts, embracing her, and inserting his finger in
her private parts.
32

On one occasion, the client even tried to insert his penis inside AAAs vagina but the latter pleaded for him not to.
The client thereafter rubbed his penis on AAAs vagina. On the same occasion, the client made AAA sit on him near
his groin while his penis was fully erect. The client then made pumping motions while his organ was touching AAAs
vagina until "his penis got wet."
33

After their first visit to the client, AAA told appellant that she did not want to go back because the client was "bastos."
Appellant promised her that they would no longer go back but the promise was broken as they went back a few
more times.
34
AAA continued to complain to appellant about the acts committed on her by the first client but
appellant would dismiss the same saying that if the clients private part is not inserted in AAAs private part, there is
nothing wrong about it,
35
or that since there was no penetration, there was nothing wrong about it.
36

Sometime in June 1996, AAA told appellant that she did not want to go to the client anymore. On that day, AAA and
appellant went to Harrison Plaza where appellant instructed AAA to call the client and tell the latter that if he would
not give them P5000, they would not go there anymore. AAA complied and told the client exactly what appellant had
told her. The client responded by saying that he would only give them P5,000.00 if AAA would have sexual
intercourse with him. They did not go to this client anymore.
37

Appellant thereafter started to bring AAA to the second client. As with the first client, appellant would tell AAA that
they had to go to the second client because they had obligations to pay such as the telephone bill, electric bill, rent,
and tuition fees.
38
During each of these visits, the
client would give AAA money ranging from P2,000.00 to P10,000.00.
39
The details of what transpired when AAA
was left alone with the second client were vividly recounted in People v. Jalosjos,
40
where the second client was
convicted of two (2) counts of rape and six (6) counts of acts of lasciviousness, all committed against AAA on
various dates. In the case, the Court found that it was appellant who brought AAA to said client. The Court in that
case even referred to appellant as the second clients "suking bugaw."
41

From her testimony, it could easily be gleaned that AAA did not consent to the acts of lasciviousness and the sexual
intercourse. After their initial visit to the first client, AAA pointedly told appellant that she did not want to go back
because the client was "bastos" but appellant did not mind this and continued to bring AAA to the first client
still.
42
AAA persisted in complaining but appellant would dismiss the remonstration, saying that if the clients private
parts are not inserted in AAAs private parts, there is nothing wrong about it,
43
or that since there was no
penetration, there was nothing wrong about it.
44

Appellant succeeded in infusing AAA with intense fear and awe of him. She was afraid that appellant might send her
away if she did not obey him.
45
She was scared of him also because when he got angry, he would pull her and her
brothers hair, whip them very hard, slap them, hit them on the upper arm with a hanger, box them on the arms, bite
them or even make them kneel on salt with outstretched hands.
46
Appellant even hit AAA with the telephone
apparatus a number of times, the last time was on 15 August 1996, the day before she ran away to escape, and
only because she had forgotten to call the second client.
47
It was this dread of appellant that pushed AAA to still go
with him to the clients even if she did not want what was being done to her by whoever was the client once she was
left alone with him.
Further, appellant instilled the feeling of guilt and helplessness in AAA by constantly saying that they had to pay
some obligations,
48
they had to settle something,
49
they had to pay the electric bill,
50
or they had to ask for money for
AAAs tuition fees.
51

Verily, it was against AAAs will and consent to see the two clients. But even if AAA had in fact consented, appellant
may still be prosecuted for child prostitution under Section 5, Article III of R.A. No. 7610 because the childs consent
or lack of it is not an element of the offense.
As held by this Court in People v. Larin,
52
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.
53
If AAA was not coerced into
child prostitution under (b) above, she definitely was influenced by appellant to enter into said activity. As the person
who had raised and taken care of AAA, appellant had moral ascendancy over AAA. This moral ascendancy coupled
with AAAs fear and awe of appellant and her exposure to the world of prostitution at the early age of five had
exerted a dominating influence on her being.
Further, AAA was doing it so that they could have money to meet their several needs, including her own tuition fees.
This engendered in AAA sufficient "consideration" under (a) above to engage or agree to be exploited in prostitution
because after every encounter with the clients, AAA would receive either money (ranging fromP2,000.00
to P10,000.00) or food and clothing.
Aside from the testimony of AAA, the record is replete with evidence of appellants liability beyond reasonable doubt.
The testimony of Dr. Emmanuel L. Aranas, Medico Legal Officer of the PNP Crime Laboratory, who conducted a
medical examination on AAA on 23 August 1996, as well as the Medico Legal Report
54
that he prepared showed
that, at the time of physical examination, AAA was in a non-virgin state physically and that her hymen had a shallow
healed laceration at 3 oclock position and a deep healed laceration at 8 oclock position. Dr. Aranas testified that
the lacerations could be caused by the entry either of a finger or an erect male organ a week or more prior to the
date of the examination.
55
This testimony proves that AAA was subjected either to lascivious conduct or sexual
intercourse before the medical examination.
Witness Carolina Buan, for her part, testified that several calls were made from appellants phone to the second
client.
56
Exhibits I to I-15-A and J to J-20, as well as appellants own admission that he was the subscriber of
telephone number 831-2423
57
and that he is the "S. Delantar" indicated in the telephone bill,
58
establish a connection
between appellant and the second client. This connection in turn forged the regularity which characterized the
communication between the two, indeed the situation that normally obtains between a regular client and a "suking
bugaw."
Appellant, in his brief, does not deny that he brought AAA to the clients.
59
He, however, attempts to exculpate
himself by stating that he did not coerce or influence AAA to go to the two clients to be exploited in prostitution.
60

Appellant further claims that there is no showing that he made promises to AAA either by assuring her that he would
give her money or anything to convince her to go with him to the clients. He even seeks to discredit AAA for not
attempting to object to be brought to the first client despite her previous experience in several encounters with him.
This absence of any objection on the part of AAA, so appellant insists, is proof that she was brought to the client of
her own free will, and at the same time militates against any finding that appellant had coerced or influenced AAA to
go to the client.
61
Also, according to appellant, AAA herself admitted she had already known, by their second visit,
that she was being pimped to the first client.
62
Appellant likewise dismisses AAAs fear that he would send her away
should she refuse to go to the clients as a mere conclusion or presumption from AAAs end because at no time did
appellant actually tell her to go away.
63
In the same vein, AAAs fear that appellant would get angry if she refused to
go with him to the clients is merely imaginary or conjectural.
64
Appellant even cites excerpts from AAAs testimony to
the effect that he only laid hands on AAA only for the purpose of disciplining her.
65

Appellants testimony itself contains an admission that he had indeed brought AAA to the two clients. He admitted
that even in his presence, questions about AAAs pretty legs and breast size were propounded.
66
Certainly, he
cannot deny knowledge that the persons who propounded the questions had lewd designs on AAA. These are
questions laced with lecherousness and drenched in perversity especially when asked of a child. Worse, after such
questions were propounded, appellant left AAA alone with the clients who in the first place had inquired about AAAs
legs and breasts. Appellant even admitted that in one instance the person who shot the questions to him even
placed his hands on the breasts of AAA.
67

Appellant claims that he was promoting AAAs prospective career as an actress. Appellants clear intention to pimp
or promote AAA as a child prostitute to the second client cannot be concealed in the guise of a move to help AAA to
realize her ambition to become an actress. AAAs acting skills may not be measured or determined by a picture of
her in a bikini.
68
There is no profound connection between acting skills and nudity.
Appellants recourse to the testimony of the other two witnesses is likewise vain and futile. Angelito Entruzo testified
that after appellant had adopted AAA, he took good care of her by providing for her needs such as food, clothing,
shelter and education.
69
This testimony, while making appellant look benevolent, has actually worked to his
detriment because it further shows his dark side as a person on whom a child had depended but who abused the
situation of dependency. Ed Juares, Jr., on the other hand, merely testified that appellant had brought AAA to him to
make her an actress. The claim does not rule out the finding that appellant had engaged in child prostitution.
We reject appellants avowals of innocence. We affirm the verdict of guilt.
Doubtlessly, appellant had repeatedly pandered AAA to two clients for sexual gratification. He procured paying
customers for her sexual services. The acts done on AAA by the two clients ranged from "lascivious conduct"
defined under the Implementing Rules and Regulation of R.A. No. 7610, as "the 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," and statutory rape, under Art. 335, paragraph 3 of the Revised Penal
Code, as amended by R.A. No. 7659.
Appellants violation of Sec. 5, Art. III of R.A. No. 7610 is as clear as day. The provision penalizes anyone who
engages in or promotes, facilitates or induces child prostitution either by: (1) acting as a procurer of a child
prostitute; or (2) inducing a person to be a client of a child prostitute by means of written or oral advertisements or
other similar means; or (3) by taking advantage of influence or relationship to procure a child as a prostitute; or (4)
threatening or using violence towards a child to engage him as a prostitute; or (5) giving monetary consideration,
goods or other pecuniary benefits to the child with the intent to engage such child in prostitution.
The purpose of the law is to provide special protection to children from all forms of abuse, neglect, cruelty,
exploitation and discrimination, and other conditions prejudicial to their development.
70
A child exploited in
prostitution may seem to "consent" to what is being done to her or him and may appear not to complain. However,
we have held that a child who is "a person 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" is incapable of giving rational consent
71
to any lascivious act or sexual intercourse. In
fact, the absence of free consent is conclusively presumed when the woman is below the age of twelve.
72

Appellant, whom AAA had looked up to as her father, had the duty to care for and bring her up. Far from looking
after her moral character, mental state and physical well-being, he had actually facilitated her debasement by
introducing her to clients and inducing her to engage in prostitution. Abusing the moral ascendancy he had over her,
he exposed her to prostitution at a very tender age, made her feel it was her obligation to earn money for their
family, in a detestable manner at that, and callously impressed upon her that there was nothing wrong with what the
clients had been doing to her. At days end, he raked in the money that his corruption of the child had brought in.
The penalty prescribed by Section 5 of R.A. No. 7610 is reclusion temporal in its medium period to reclusion
perpetua. However, it was not proven that appellant is the parent or guardian of AAA.
The establishment of either relationship would have justified the imposition of the penalty provided in the law in its
maximum. Thus, there being neither mitigating nor aggravating circumstance, the penalty which could properly be
imposed is reclusion temporal in its maximum period, the medium of the penalty prescribed by the law. After
applying the Indeterminate Sentence Law, the proper imposable penalty is an indeterminate sentence the maximum
term of which shall be that which could properly be imposed (reclusion temporal in its maximum period), and the
minimum of which shall not be less than the minimum term prescribed by the law (reclusion temporal in its medium
period).
73

Section 31(c), Article XII of R.A. No. 7610 states:
x x x x
(c) The penalty provided herein shall be imposed in its maximum period when the perpetrator is an ascendant,
parent, guardian, stepparent or collateral relative within the second degree of consanguinity or affinity, or a
manager or owner of an establishment which has no license to operate or its license has expired or has been
revoked. (Emphasis supplied.)
Under R.A. No. 7610, Sec. 31(c), relationship is not a qualifying circumstance but only an ordinary generic
aggravating circumstance. Thus, although it was not alleged in the information it can nevertheless be taken into
account in fixing the penalty for the crime because it was proven.
74
A generic aggravating circumstance provides for
the imposition of the prescribed penalty in its maximum period, while a qualifying circumstance changes the nature
of the crime.
75

In the case at bar, the only evidence presented to establish AAAs alleged relationship to appellant is her birth
certificate
76
which mentions appellant as the father. However, said document does not bear appellants signature. In
fact, appellant, in his testimony, denied that he is AAAs father.
77
He claimed that, sometime in 1983, AAA was
brought to him by a certain Salvacion Buela, AAAs real mother, who could not support her.
78
Salvacion Buela told
appellant that AAA was born on 11 May 1983 and that her natural father was a Japanese national.
79
As prepared,
the birth certificate indicates that AAA was born on "11 May 1985" to "Librada A. Telin" (mother) and "Simplicio R.
Delantar" (father) who were married on "14 February 1977" in "Manila." The legible signature which reads "Librada
T. Delantar" appears below the printed item "INFORMANT" and above the typewritten name "Librada T. Delantar"
and word "Mother." However, nowhere on the face of the birth certificate can the signature of appellant be found.
According to appellant, Librada A. Telin is his sister and they did not get married to each other on the date indicated
in the birth certificate, or impliedly at least, not ever.
While under the Family Code, filiation can be established by, among others, the record of birth appearing in the civil
register,
80
yet the rule is where the birth certificate presented was not signed by the father against whom filiation is
asserted, such may not be accepted as evidence of the alleged filiation. In Angeles v. Maglaya,
81
we held:
x x x Such certificate, albeit considered a public record of a private document is, under Section 23, Rule 132 of the
Rules of Court, evidence only of the fact which gave rise to its execution: the fact of birth of a child. Jurisprudence
teaches that a birth certificate, to be considered as validating proof of paternity and as an instrument of recognition,
must be signed by the father and mother jointly, or by the mother alone if the father refuses. x x x
82

In Angeles v. Maglaya, we refused to give evidentiary weight to the birth certificate as proof of filiation in a case for
settlement of estate to support a claim of legitimacy because the same was unsigned by the alleged father. With
more reason we should not accord value to the birth certificate in this case considering that its effect would be to
increase the penalty to be imposed on the appellant. This is a criminal case wherein an interpretation unfavorable to
the accused is generally unacceptable.
The Solicitor General cites this Courts pronouncement in Heirs of Cabais v. Court of Appeals,
83
that "[a] birth
certificate, being a public document, offers prima facie evidence of filiation and a high degree of proof is needed to
overthrow the presumption of truth contained in such public document."
84
The pronouncement is not applicable to
this case. It was made merely as an elucidation of the limited evidentiary value of a baptismal certificate in this
jurisdiction vis--vis a birth certificate. In that case, presented was the baptismal certificate of the person whose
filiation was sought to be established. The birth certificate itself was not presented. In the case at bar, the birth
certificate of AAA was presented.
We thus hold that the birth certificate of AAA is prima facie evidence only of the fact of her birth and not of her
relation to appellant. After all, it is undisputed that appellant is not AAAs biological father.
At best, appellant is AAAs de facto guardian. Now, would this circumstance justify the imposition of the higher
penalty on him? We think not. We apply, by analogy, the ruling of this Court in People v. Garcia,
85
where we held
that the restrictive concept of guardian, legal or judicial, is required by Sec. 11 of R.A. No. 7659. Said provision, by
way of amending Art. 335 of the Revised Penal Code, ordains that where the victim of the crime of rape is under
eighteen years of age and the offender is, inter alia, a guardian of the victim, the death penalty shall be imposed.
We ruled:
The law requires a legal or judicial guardian since it is the consanguineous relation or the solemnity of judicial
appointment which impresses upon the guardian the lofty purpose of his office and normally deters him from
violating its objectives. Such considerations do not obtain in appellants case or, for that matter, any person similarly
circumstanced as a mere custodian of a ward
or anothers property. The fiduciary powers granted to a real guardian warrant the exacting sanctions should he
betray the trust.
86

Further, according to the maxim noscitur a sociis, the correct construction of a word or phrase susceptible of various
meanings may be made clear and specific by considering the company of words in which it is found or with which it
is associated.
87
Section 31(c) of R.A. No. 7610 contains a listing of the circumstances of relationship between the
perpetrator and the victim which will justify the imposition of the maximum penalty, namely when the perpetrator is
an "ascendant, parent, guardian, stepparent or collateral relative within the second degree of consanguinity or
affinity." It should be noted that the words with which "guardian" is associated in the provision all denote a legal
relationship. From this description we may safely deduce that the guardian envisioned by law is a person who has a
legal relationship with a ward. This relationship may be established either by being the wards biological parent
(natural guardian) or by adoption (legal guardian). Appellant is neither AAAs biological parent nor is he AAAs
adoptive father. Clearly, appellant is not the "guardian" contemplated by law.
On the award of indemnity and damages, we delete the Court of Appeals award of civil indemnity because
appellant was not the one who committed the lascivious acts and perpetrated the rape of AAA. Instead, we impose
a fine which shall be administered as a cash fund by the Department of Social Welfare and Development and
disbursed for the rehabilitation of AAA, pursuant to Section 31 (f), Article XII, R.A. No. 7610. Likewise, the award of
exemplary damages is improper considering that appellant is not AAAs biological father.
WHEREFORE, premises considered, the 31 May 2005 Decision of the Court of Appeals in CA-G.R. CR H.C. No.
00977 is hereby AFFIRMED WITH MODIFICATION. Appellant SIMPLICIO DELANTAR y REDONDO is found guilty
of one count of violation of Section 5(a), R.A. No. 7610. He is sentenced to suffer the indeterminate sentence of
fourteen (14) years, eight (8) months and one (1) day of reclusion temporal, as minimum, to seventeen (17) years,
four (4) months and one (1) day of reclusion temporal, as maximum, and to pay a fine in the sum of P20,000.00 to
be administered as a cash fund by the Department of Social Welfare and Development and disbursed for the
rehabilitation of AAA,
88
and P50,000.00 as moral damages.
SO ORDERED.




EN BANC
G.R. Nos. 132875-76 November 16, 2001
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ROMEO G. JALOSJOS, accused-appellant.
YNARES-SANTIAGO, J .:
This Court has declared that the state policy on the heinous offense of rape is clear and unmistakable. Under certain
circumstances, some of them present in this case, the offender may be sentenced to a long period of confinement,
or he may suffer death. The crime is an assault on human dignity. No legal system worthy of the name can afford to
ignore the traumatic consequences for the unfortunate victim and grievous injury to the peace and good order of the
community.
1

Rape is particularly odious, one which figuratively scrapes the bottom of the barrel of moral depravity, when
committed against a minor.
2

In view of the intrinsic nature of the crime of rape where only two persons are usually involved, the testimony of the
complainant is always scrutinized with extreme caution.
3

In the present case, there are certain particulars which impelled the court to devote an even more painstaking and
meticulous examination of the facts on record and a similarly conscientious evaluation of the arguments of the
parties. The victim of rape in this case is a minor below twelve (12) years of age. As narrated by her, the details of
the rape are mesmerically sordid and repulsive. The victim was peddled for commercial sex by her own guardian
whom she treated as a foster father. Because the complainant was a willing victim, the acts of rape were preceded
by several acts of lasciviousness on distinctly separate occasions. The accused is also a most unlikely rapist. He is
a member of Congress. Inspite of his having been charged and convicted by the trial court for statutory rape, his
constituents liked him so much that they knowingly re-elected him to his congressional office, the duties of which he
could not perform.
Statutory rape committed by a distinguished Congressman on an eleven (11) year old commercial sex worker is
bound to attract widespread media and public attention. In the words of accused-appellant, "he has been demonized
in the press most unfairly, his image transmogrified into that of a dastardly, ogre, out to get his slimy hands on
innocent and nave girls to satiate his lustful desires."
4
This Court, therefore, punctiliously considered accused-
appellants claim that he suffered "invidiously discriminatory treatment." Regarding the above allegation, the Court
has ascertained that the extensive publicity generated by the case did not result in a mistrial; the records show that
the accused had ample and free opportunity to adduce his defenses.
This is an appeal from the decision
5
of the Regional Trial Court of Makati, Branch 62, in Criminal Case Nos. 96-1985
and 96-1986, convicting accused-appellant Romeo Jalosjos of two (2) counts of statutory rape, and in Criminal Case
Nos. 96-1987, 96-1988, 96-1989, 96-1990, 96-1992, and 96-1993, for six (6) counts of acts of lasciviousness
defined and penalized under Article 336 of the Revised Penal Code, in relation to Section 5(b) of Republic Act No.
7610, also known as the Child Abuse Law.
There were six (6) other cases, Criminal Case Nos. 96-1991, 96-1994, 96-1995, 96-1996, 96-1997, and 96-1998,
where the accused-appellant was acquitted of the charges of acts of lasciviousness for failure of the prosecution to
prove his guilt beyond reasonable doubt.
On December 16, 1996, two (2) informations for the crime of statutory rape; and twelve (12) for acts of
lasciviousness defined and penalized under Article 336 of the Revised Penal Code, in relation to Section 5(b) of
Republic Act No. 7610, were filed against accused-appellant. The accusatory portion of said informations for the
crime of statutory rape state:
In Criminal Case No. 96-1985:
The undersigned, upon prior sworn complaint by the offended party, eleven (11) year old minor ROSILYN
DELANTAR, accuses ROMEO JALOSJOS of the crime of RAPE defined and penalized under Art. 335 (3) of
the Revised Penal Code, committed as follows:
That on or about June 18, 1996 at Room No.1702, Ritz Towers, Makati City, and within the jurisdiction of
this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously have
carnal knowledge with (sic) eleven year old minor Rosilyn Delantar against her will, with damage and
prejudice.
CONTRARY TO LAW.
6

In Criminal Case No. 96-1986:
The undersigned, upon prior sworn complaint by the offended party, eleven (11) year old minor ROSILYN
DELANTAR, accuses ROMEO JALOSJOS of the crime of RAPE defined and penalized under Art. 335 (3) of
the Revised Penal Code, committed as follows:
That on or about June 20, 1996 at Room No. 1702, Ritz Towers, Makati City, and within the
jurisdiction of this Honorable Court, the above-named accused, did then and there willfully,
unlawfully and feloniously have carnal knowledge with (sic) eleven year old minor Rosilyn Delantar
against her will, with damage and prejudice.
CONTRARY TO LAW.
7

For acts of lasciviousness, the informations
8
under which accused-appellant was convicted were identical except for
the different dates of commission on June 14, 1996; June 15, 1996; June 16, 1996; June 20, 1996; June 21, 1996;
and June 22, 1996, to wit:
The undersigned, upon prior sworn complaint by the offended party, eleven (11)-year old minor ROSILYN
DELANTAR accuses ROMEO JALOSJOS of the crime of ACTS OF LASCIVIOUSNESS in relation to
Section 5 (b), Article III of Republic Act No. 7610, otherwise known as the Special Protection of Children
against Abuse, Exploitation and Discrimination Act, committed as follows:
That in the evening of June 14, 1996, or thereabout, in Room No. 1702, Ritz Towers, Makati City,
Metro-Manila and within the jurisdiction of this Honorable Court, the above-named accused, with
lewd design, did then and there wilfully, unlawfully and feloniously kiss, caress and fondle said
complainant's face, lips, neck, breasts, whole body, and vagina, suck her nipples and insert his
finger and then his tongue into her vagina, place himself on top of her, then insert his penis in
between her thighs until ejaculation, and other similar lascivious conduct against her will, to her
damage and prejudice.
CONTRARY TO LAW.
In Criminal Cases Nos. 96-1988; 96-1990; and 96-1993, there were added averments that on the different dates, the
accused gave the complainant P10,000.00, P5,000.00 and P5,000.00 respectively.
Upon arraignment on January 29, 1997, accused-appellant refused to enter a plea. Hence, the trial court entered a
plea of not guilty for him. At the trial, the prosecution presented eight (8) main witnesses and seven (7) rebuttal
witnesses as well as documentary evidences marked as Exhibits A to EEEE, inclusive of submarkings. The
defense, on the other hand presented twenty-six (26) witnesses. Its documentary evidence consists of Exhibits 1 to
153, inclusive of submarkings. The records of the case are extremely voluminous.
The Peoples version of the facts, culled mainly from the testimony of the victim, are as follows:
Maria Rosilyn Delantar was a slim, eleven-year old lass with long, straight black hair and almond-shaped black
eyes. She grew up in a two-storey apartment in Pasay City under the care of Simplicio Delantar, whom she treated
as her own father. Simplicio was a fifty-six year old homosexual whose ostensible source of income was
sellinglongganiza and tocino and accepting boarders at his house. On the side, he was also engaged in the skin
trade as a pimp.
Rosilyn never got to see her mother, though she had known a younger brother, Shandro, who was also under the
care of Simplicio. At a very young age of 5, fair and smooth-complexioned Rosilyn was exposed by Simplicio to his
illicit activities. She and her brother would tag along with Simplicio whenever he delivered prostitutes to his clients.
When she turned 9, Rosilyn was offered by Simplicio as a prostitute to an Arabian national known as Mr. Hammond.
Thus begun her ordeal as one of the girls sold by Simplicio for sexual favors.
Rosilyn first met accused-appellant, Romeo Jalosjos, sometime in February 1996 at his office located near
Robinsons Galleria. Rosilyn and Simplicio were brought there and introduced by a talent manager by the name of
Eduardo Suarez. Accused-appellant promised to help Rosilyn become an actress. When he saw Rosilyn, accused-
appellant asked how old she was. Simplicio answered, "10. She is going to be 11 on May 11." Accused-appellant
inquired if Rosilyn knows how to sing. Simplicio told Rosilyn to sing, so she sang the song, "Tell Me You Love Me."
Accused-appellant then asked if Rosilyn has nice legs and then raised her skirt up to the mid-thighs. He asked if she
was already menstruating, and Simplicio said yes. Accused-appellant further inquired if Rosilyn already had breasts.
When nobody answered, accused-appellant cupped Rosilyns left breast. Thereafter, accused-appellant assured
them that he would help Rosilyn become an actress as he was one of the producers of the TV programs, "Valiente"
and "Eat Bulaga."
Simplicio and Suarez then discussed the execution of a contract for Rosilyns movie career. Accused-appellant, on
the other hand, said that he would adopt Rosilyn and that the latter would have to live with him in his condominium
at the Ritz Towers. Before Simplicio and Rosilyn went home, accused-appellant gave Rosilyn P2,000.00.
The second time Rosilyn met accused-appellant was at his condominium unit, located at Room 1702, Ritz Towers,
Makati City. Accused-appellant and Simplicio discussed the contract and his plan to finance Rosilyns studies.
Accused-appellant gave Simplicio P500.00, thereafter, Rosilyn, Shandro and Simplicio left.
The third meeting between Rosilyn and accused-appellant was also at Ritz Towers to discuss her acting career.
Accused-appellant referred the preparation of Rosilyns contract to his lawyer, who was also present. After the
meeting, Simplicio and Rosilyn left. As they were walking towards the elevator, accused-appellant approached them
and gave Rosilyn P3,000.00.
On June 14, 1996, at about 8:30 to 9:00 p.m., Simplicio and Rosilyn returned to accused-appellants condominium
unit at Ritz Towers. When accused-appellant came out of his bedroom, Simplicio told Rosilyn to go inside the
bedroom, while he and accused-appellant stayed outside. After a while, accused-appellant entered the bedroom
and found Rosilyn watching television. He walked towards Rosilyn and kissed her on the lips, then left the room
again. Simplicio came in and bid her goodbye. Rosilyn told Simplicio that accused-appellant kissed her to which
Simplicio replied, "Halik lang naman."
Rosilyn was left alone in the bedroom watching television. After some time, accused-appellant came in and entered
the bathroom. He came out clad in a long white T-shirt on which was printed the word, "Dakak." In his hand was a
plain white T-shirt. Accused-appellant told Rosilyn that he wanted to change her clothes. Rosilyn protested and told
accused-appellant that she can do it herself, but accused-appellant answered, "Daddy mo naman ako." Accused-
appellant then took off Rosilyns blouse and skirt. When he was about to take off her panties, Rosilyn said, "Huwag
po." Again, accused-appellant told her, "After all, I am your Daddy." Accused-appellant then removed her panties
and dressed her with the long white T-shirt.
The two of them watched television in bed. After sometime, accused-appellant turned off the lamp and the
television. He turned to Rosilyn and kissed her lips. He then raised her shirt, touched her breasts and inserted his
finger into her vagina. Rosilyn felt pain and cried out, "Tama na po." Accused-appellant stopped. He continued to
kiss her lips and fondle her breasts. Later, accused-appellant told Rosilyn to sleep.
The following morning, Rosilyn was awakened by accused-appellant whom she found bent over and kissing her. He
told her to get up, took her hand and led her to the bathroom. He removed Rosilyns shirt and gave her a bath. While
accused-appellant rubbed soap all over Rosilyns body, he caressed her breasts and inserted his finger into her
vagina. After that, he rinsed her body, dried her with a towel and applied lotion on her arms and legs. Then, he dried
her hair and told her to dress up. Rosilyn put on her clothes and went out of the bathroom, while accused-appellant
took a shower.
Accused-appellant ate breakfast while Rosilyn stayed in the bedroom watching television. When accused-appellant
entered the room, he knelt in front of her, removed her panties and placed her legs on his shoulders. Then, he
placed his tongue on her vagina. Thereafter, he gave Rosilyn P10,000.00 and told his housemaid to take her
shopping at Shoemart. When she returned to the Ritz Towers, Simplicio was waiting for her. The two of them went
home. Rosilyn narrated to Simplicio what accused-appellant did to her, and pleaded for him not to bring her back to
the Ritz Towers. Simplicio told her that everything was alright as long as accused-appellant does not have sexual
intercourse with her.
That same evening, at around 9:00 to 9:30 in the evening, Simplicio again brought Rosilyn to the Ritz Towers. After
Simplicio left, accused-appellant removed Rosilyns clothes and dressed her with the same long T-shirt. They
watched television for a while, then accused-appellant sat beside Rosilyn and kissed her on the lips. He made
Rosilyn lie down, lifted her shirt above her breasts, and inserted his finger into her vagina. Then, accused-appellant
removed his own clothes, placed his penis between Rosilyns thighs and made thrusting motions until he ejaculated
on her thighs. Thereafter, accused-appellant kissed her and told her to sleep.
The next day, June 16, 1996, accused-appellant roused her from sleep and bathed her. Again, he rubbed soap all
over her body, washed her hair, and thereafter rinsed her body and dried her hair. While accused-appellant was
bathing Rosilyn, he asked her to fondle his penis while he caressed her breasts and inserted his finger into her
vagina. After their shower, accused-appellant ate breakfast. He gave Rosilyn P5,000.00 and told her to just wait for
Simplicio in the condominium unit. On their way home, Simplicio told Rosilyn that if accused-appellant tries to insert
his penis into her vagina, she should refuse.
At around 8:00 p.m. of June 18, 1996, Simplicio brought Rosilyn to the Ritz Towers. They found accused-appellant
sitting on the bed in his bedroom. Simplicio told Rosilyn to approach accused-appellant, then he left. Accused-
appellant took off Rosilyns clothes and dressed her with a long T-shirt on which was printed a picture of accused-
appellant and a woman, with the caption, "Cong. Jalosjos with his Toy." They watched television for a while, then
accused-appellant lay beside Rosilyn and kissed her on the lips. He raised her shirt and parted her legs. He
positioned himself between the spread legs of Rosilyn, took off his own shirt, held his penis, and poked and pressed
the same against Rosilyns vagina. This caused Rosilyn pain inside her sex organ. Thereafter, accused-appellant
fondled her breasts and told her to sleep.
When Rosilyn woke up the following morning, June 19, 1996, accused-appellant was no longer around but she
found P5,000.00 on the table. Earlier that morning, she had felt somebody touching her private parts but she was
still too sleepy to find out who it was. Rosilyn took a bath, then went off to school with Simplicio, who arrived to fetch
her.
The next encounter of Rosilyn with accused-appellant was on June 21, 1996, at about 9:00 oclock in the evening in
his bedroom at the Ritz Towers. Accused-appellant stripped her naked and again put on her the long shirt he
wanted her to wear. After watching television for a while, accused-appellant knelt beside Rosilyn, raised her shirt,
caressed her breasts and inserted his finger into her vagina. Then, he clipped his penis between Rosilyns thighs,
and made thrusting motions until he ejaculated. Thereafter, Rosilyn went to sleep.
The next day, June 22, 1996, Rosilyn was awakened by accused-appellant who was kissing her and fondling her
sex organ. She, however, ignored him and went back to sleep. When she woke up, she found the P5,000.00 which
accused-appellant left and gave the same to Simplicio Delantar, when the latter came to pick her up.
On June 29, 1996, Rosilyn again went to the Ritz Towers. During that visit, accused-appellant took photographs of
Rosilyn. He asked her to pose with her T-shirt pulled down thereby exposing her breasts. He also took her
photographs with her T-shirt rolled up to the pelvis but without showing her pubis, and finally, while straddled on a
chair facing the backrest, showing her legs.
Before Rosilyn went to sleep, accused-appellant kissed her lips, fondled her breasts and inserted his finger into her
vagina. The following morning, she woke up and found the P5,000.00 left by accused-appellant on the table. She
recalled that earlier that morning, she felt somebody caressing her breasts and sex organ.
On July 2, 1996 at 7:00 p.m., Rosilyn and Simplicio returned to the Ritz Towers. Rosilyn had to wait for accused-
appellant, who arrived between 12:00 to 1:00 a.m. He again dressed her with the long white shirt similar to what he
was wearing. While sitting on the bed, accused-appellant kissed her lips and inserted his tongue into her mouth. He
then fondled her breasts and inserted his finger into her vagina, causing her to cry in pain. Accused-appellant
stopped and told her to sleep.
The next morning, accused-appellant bathed her again. While he soaped her body, he fondled her breasts and
inserted his finger in her vagina. Rosilyn felt pain and shoved his hand away. After bathing her, accused-appellant
had breakfast. Before he left, he gave Rosilyn P5,000.00. As soon as Simplicio arrived, Rosilyn gave her the money
and then they left for school.
On July 20, 1996, Simplicio again brought Rosilyn to the Ritz Towers. Accused-appellant was waiting in his
bedroom. He took off Rosilyns clothes, including her panties, and dressed her with a long T-shirt similar to what he
was wearing. After watching television, accused-appellant kissed Rosilyn on the lips, inserted his tongue in her
mouth and fondled her breasts. Then, he made Rosilyn lie on the bed, spread her legs apart and placed a pillow
under her back. He inserted his finger in her vagina and mounted himself between her legs with his hands rested on
her sides. After that, he lifted his shirt, then pointed and pressed his penis against her vagina. Accused-appellant
made thrusting motions, which caused Rosilyn pain. Thereafter, accused-appellant told her to sleep.
In the early morning of July 21, 1996, Rosilyn felt somebody touching her sex organ, but she did not wake up. When
she woke up later, she found P5,000.00 on the table, and she gave this to Simplicio when he came to fetch her.
On August 15, 1996, Rosilyn and Simplicio went to the Ritz Towers at around 7:00 p.m. Accused-appellant was
about to leave, so he told them to come back later that evening. The two did not return.
The following day, Rosilyn ran away from home with the help of Yamie Estreta, one of their boarders. Yamie
accompanied Rosilyn to the Pasay City Police, where she executed a sworn statement against Simplicio Delantar.
Rosilyn was thereafter taken to the custody of the Department of Social Welfare and Development (DSWD). The
National Bureau of Investigation (NBI) conducted an investigation, which eventually led to the filing of criminal
charges against accused-appellant.
On August 23, 1996, Rosilyn was examined by Dr. Emmanuel L. Aranas at Camp Crame. The examination yielded
the following results:
EXTERNAL AND EXTRAGENITAL
Fairly developed, fairly nourished and coherent female subject. Breasts are conical with pinkish brown
areola and nipples from which no secretions could be pressed out. Abdomen is flat and soft
GENITAL
There is moderate growth of pubic hair. Labia majora are full, convex and coaptated with the pinkish brown
labia minora presenting in between. On separating the same disclosed an elastic, fleshy type hymen, with
shallow healed laceration at 3 o'clock position and deep healed laceration at 8 o'clock position. External
vaginal orifice offers moderate resistance to the introduction of the examining index finger and the virgin
sized vaginal speculum. Vaginal canal is narrow with prominent rugosities. Cervix is firm and closed.
CONCLUSION:
Subject is in non-virgin state physically.
There are no external signs of application of any form of violence.
9

During the trial, accused-appellant raised the defense of denial and alibi. He claimed that it was his brother,
Dominador "Jun" Jalosjos, whom Rosilyn had met, once at accused-appellants Dakak office and twice at the Ritz
Towers. Accused-appellant insisted that he was in the province on the dates Rosilyn claimed to have been sexually
abused. He attributed the filing of the charges against him to a small group of blackmailers who wanted to extort
money from him, and to his political opponents, particularly Ex-Congressman Artemio Adaza, who are allegedly
determined to destroy his political career and boost their personal agenda.
More specifically, accused-appellant claims that on June 16, 1996, he was on the Philippine Airlines (PAL) 9:40 a.m.
flight from Manila to Dipolog. He stayed in Dipolog until June 18, 1996. He submitted in evidence airline ticket no.
10792424,
10
showing that he was on board Flight PR 165; the said flights passengers manifest,
11
where the name
JALOSJOS/RM/MR appears; and photographs showing accused-appellants constituents welcoming his arrival and
showing accused-appellant talking with former Mayor Hermanico Carreon and Fiscal Empainado.
Accused-appellant further alleges that on June 28, 1996, he again took the 9:40 a.m. flight from Manila to Dipolog
City. On the same flight, he met Armando Nocom of the Philippine Daily Inquirer. Upon arrival and after talking to his
representatives, he proceeded to his residence known as "Barangay House" in Taguinon, Dapitan, near Dakak
Beach resort, and spent the night there.
On June 29, 1996, accused-appellant attended the fiesta at Barangay San Pedro. He stayed in the house of
Barangay Captain Mila Yap until 5:30 p.m. Then, together with some friends, he visited the Rizal Shrine and the
Pirate Bar at Dakak Beach Resort. Thereafter, he retired in the "Barangay House" in Taguilon.
On June 30, 1996, accused-appellant alleges that he attended a city-wide consultation with his political leaders at
the Blue Room of Dakak, which lasted till the afternoon. In the evening, he went home and slept in the "Barangay
House."
On July 1, 1996, he attended the whole day celebration of Dipolog Day. He spent the night in the "Barangay House."
On July 2, 1996, he attended the inauguration of the reception hall of Dakak Beach Resort. The blessing ceremony
was officiated by Assistant Parish Priest Adelmo Laput.
On July 3, 1996, he was the guest in the inaguration of the 3rd Engineering District of Dapitan City. After the mass,
he visited the Jamboree site in Barangay Taguilon, Dapitan City.
He further contended that after his arrival in Dipolog on June 28, 1996, there was never an instance when he went
to Manila until July 9, 1996, when he attended a conference called by the President of the Philippines.
Accused-appellant likewise alleged that on July 21, 1996, he took the 5:00 a.m. flight of PAL from Manila to
Dumaguete City. From there, he was flown by a private plane to Dipolog, where he stayed until the President of the
Philippines arrived.
To buttress the theory of the defense, Dominador "Jun" Jalosjos testified that he was the one, and not accused-
appellant, whom Rosilyn met on three occasions. These occurred once during the first week of May 1996, at
accused-appellants Dakak office where Rosilyn and Simplicio Delantar were introduced to him by Eduardo Suarez,
and twice at the Ritz Towers when he interviewed Rosilyn, and later when Rosilyn and Simplicio followed up the
proposed entry of Rosilyn into the show business.
Dominadors admission of his meetings with Rosilyn on three instances were limited to interviewing her and
assessing her singing and modeling potentials. His testimony made no mention of any sexual encounter with
Rosilyn.
After trial, the court rendered the assailed decision, the dispositive portion of which reads:
WHEREFORE, premises considered, judgment is hereby rendered as follows:
1. In Criminal Cases Nos. 96-1985 and 96-1986, the prosecution has proven beyond reasonable doubt the
guilt of the accused, ROMEO JALOSJOS y GARCIA, as principal in the two (2) counts of statutory rape
defined and penalized under Article 335 of the Revised Penal Code. He is hereby declared CONVICTED in
each of these cases.
2. Accordingly, he is sentenced to:
2a. suffer the penalty of reclusion perpetua in each of these cases.
2b. indemnify the victim, MA. ROSILYN DELANTAR, in the amount of FIFTY THOUSAND PESOS
(P50,000.00) as moral damages for each of the cases.
3. In Criminal Cases Nos. 96-1987, 96-1988, 96-1989, 96-1990, 96-1992 and 96-1993, the prosecution has
proven beyond reasonable doubt the guilt of the accused, ROMEO JALOSJOS y GARCIA, as principal in six
(6) counts of acts of lasciviousness defined under Article 336 of the Revised Penal Code and penalized
under Section 5 (b) of R.A. 7610 otherwise known as the Child Abuse Law. He is hereby declared
CONVICTED in each of these cases;
4. Accordingly he is sentenced to:
4.a. suffer in each of the cases an indeterminate prison term of from eight (8) years, eight (8) months
and one (1) day of prision mayor in its medium period, as maximum, to fifteen (15) years, six (6)
months and twenty (20) days of reclusion temporal in its medium period, as maximum;
4.b. indemnify the victim, MA ROSILYN DELANTAR, in the amount of TWENTY THOUSAND
(P20,000.00) as moral damages for each of the cases;
5. In Criminal Case Nos. 96-1991, 96-1994, 96-1995, 96-1996, 96-1997 and 96-1998, the prosecution has
failed to prove beyond reasonable doubt the guilt of the accused, ROMEO JALOSJOS y GARCIA, in six (6)
counts of acts of lasciviousness. Therefore, on the ground of reasonable doubt, the accused in these cases
is hereby ACQUITTED.
SO ORDERED.
12

Hence, the instant appeal. Accused-appellant contends:
A.
THE TRIAL COURT GRIEVOUSLY ERRED IN CONVICTING THE ACCUSED-APPELLANT BASED ON
TESTIMONY OF THE PRIVATE COMPLAINANT, CONSIDERING THE ATTENDANT INDICIA OF
INCONSISTENCIES AND UNTRUTHS.
B.
THE TRIAL COURT GRIEVOUSLY ERRED IN DISREGARDING THE SIGNIFICANCE OF THE CONFLICTING
STATEMENTS GIVEN BY THE PRIVATE COMPLAINANT.
C.
THE TRIAL COURT GRIEVOUSLY ERRED IN DISREGARDING THE SIGNIFICANCE OF PRIVATE
COMPLAINANTS FAILURE TO IDENTIFY THE ACCUSED-APPELLANT.
D.
THE TRIAL COURT GRIEVOUSLY ERRED IN RULING THAT THE PRIVATE COMPLAINANT WAS A MINOR
LESS THAN TWELVE YEARS OF AGE WHEN THE CLAIMED INCIDENTS ALLEGEDLY TOOK PLACE.
E.
THE TRIAL COURT GRIEVOUSLY ERRED IN FINDING THAT RAPE WAS COMMITTED AGAINST THE
PRIVATE COMPLAINANT.
13

In this jurisdiction, the testimony of the private complainant in rape cases is scrutinized with utmost caution. The
constitutional presumption of innocence requires no less than moral certainty beyond any scintilla of doubt. This
applies with more vigor in rape cases where the evidence for the prosecution must stand or fall on its own merits
and is not allowed to draw strength from the weakness of the evidence of the defense. As an inevitable
consequence, it is the rape victim herself that is actually put on trial. The case at bar is no exception. Bent on
destroying the veracity of private complainants testimony, the errors assigned by accused-appellant, particularly the
first three, are focused on the issue of credibility.
Accused-appellant makes much of his acquittal in Criminal Case Nos. 96-1991, 96-1994, 96-1995, 96-1996, 96-
1997, and 96-1998, for acts of lasciviousness. According to him, the fact that the trial court sustained his defense of
alibi in the said cases only shows that Rosilyn concocted her stories and the rest of her testimony ought not to be
believed. Stated differently, accused-appellant urges the application of the doctrine of "falsus in uno falsus in
omnibus" (false in part, false in everything).
14

The contention is without merit. Falsus in uno falsus in omnibus is not an absolute rule of law and is in fact rarely
applied in modern jurisprudence.
15
Thus, in People v. Yanson-Dumancas,
16
citing People v. Li Bun Juan,
17
this Court
held that:
... In this connection it must be borne in mind that the principle falsus in uno falsus in omnibus is not an
absolute one, and that it is perfectly reasonable to believe the testimony of a witness with respect to some
facts and disbelieve it with respect to other facts. In People vs. Keller, 46 O.G. No. 7, pp. 3222-3223, the
following was quoted with approval by the Court of Appeals from 1 Moore on Facts, p. 23:
"18. Testimony may be partly credited and partly rejected. --- Trier of facts are not bound to believe
all that any witness has said; they may accept some portions of his testimony and reject other
portions, according to what seems to them, upon other facts and circumstances to be the truth
Even when witnesses are found to have deliberately falsified in some material particulars, the jury
are not required to reject the whole of their uncorroborated testimony, but may credit such portions
as they deem worthy of belief." (p. 945)
18

Being in the best position to discriminate between the truth and the falsehood, the trial court's assignment of values
and weight on the testimony of Rosilyn should be given credence. Significantly, it should be borne in mind that the
issue at hand hinges on credibility, the assessment of which, as oft-repeated, is best made by the trial court
because of its untrammeled opportunity to observe her demeanor on the witness stand.
On the demeanor and manner of testifying shown by the complainant, the trial court stated:
Guided by the foregoing principles, this court found no reason why it should not believe Rosilyn when she
claimed she was raped. Testimonies of rape victims especially those who are young and immature deserve
full credence (People v. Liquiran, 228 SCRA 62 (1993) considering that "no woman would concoct a story of
defloration, allow an examination of her private parts and thereafter allow herself to be perverted in a public
trial if she was not motivated solely by the desire to have the culprit apprehended and punished." (People v.
Buyok, 235 SCRA 622 [1996]).
When asked to describe what had been done to her, Rosilyn was able to narrate spontaneously in detail
how she was sexually abused. Her testimony in this regard was firm, candid, clear and straightforward, and
it remained to be so even during the intense and rigid cross-examination made by the defense counsel.
19

Accused-appellant next argues that Rosilyns direct and redirect testimonies were rehearsed and lacking in
candidness. He points to the supposed hesitant and even idiotic answers of Rosilyn on cross and re-cross
examinations. He added that she was trained to give answers such as, "Ano po?", "Parang po," "Medyo po," and
"Sa tingin ko po."
Accused-appellants arguments are far from persuasive. A reading of the pertinent transcript of stenographic notes
reveals that Rosilyn was in fact firm and consistent on the fact of rape and lascivious conduct committed on her by
accused-appellant. She answered in clear, simple and natural words customary of children of her age. The above
phrases quoted by accused-appellant as uttered by Rosilyn are, as correctly pointed out by the Solicitor General,
typical answers of child witnesses like her.
At any rate, even assuming that Rosilyn, during her lengthy ordeals on the witness stand, may have given some
ambiguous answers, they refer merely to minor and peripheral details which do not in any way detract from her firm
and straightforward declaration that she had been molested and subjected to lascivious conduct by accused-
appellant. Moreover, it should be borne in mind that even the most candid witness oftentimes makes mistakes and
confused statements. At times, far from eroding the effectiveness of the evidence, such lapses could, indeed,
constitute signs of veracity.
20

Then, too, accused-appellant capitalizes on the alleged absence of any allegation of rape in the five (5) sworn
statements executed by Rosilyn as well as in the interviews and case study conducted by the representatives of the
DSWD. In particular, accused-appellant points to the following documents:
(1) Sworn statements dated August 22 and 26, 1996, executed before SPO5 Milagros A. Carrasco of the
Pasay City Police;
(2) Sworn statements dated September 5, 11, and 19, 1996, executed before NBI Agents Cynthia L.
Mariano and Supervising NBI Agent Arlis E. Vela;
(3) The Initial Interview of Rosilyn by the DSWD dated August 30, 1996;
(4) DSWD Final Case Study Report dated January 10, 1997.
It must be stressed that "rape" is a technical term, the precise and accurate definition of which could not have been
understood by Rosilyn. Indeed, without the assistance of a lawyer, who could explain to her the intricacies of rape,
she expectedly could not distinguish in her affidavits and consequently disclose with proficient exactitude the act or
acts of accused-appellant that under the contemplation of law constitute the crime of rape. This is especially true in
the present case where there was no exhaustive and clear-cut evidence of full and complete penetration of the
victims vagina. It may well be that Rosilyn thought, as any layman would probably do, that there must be the fullest
penetration of the victims vagina to qualify a sexual act to rape.
In People v. Campuhan,
21
we ruled that rape is consummated "by the slightest penetration of the female organ,i.e.,
touching of either labia of the pudendum by the penis." There need not be full and complete penetration of the
victims vagina for rape to be consummated. There being no showing that the foregoing technicalities of rape was
fully explained to Rosilyn on all those occasions that she was interviewed by the police, the NBI agents and DSWD
social workers, she could not therefore be expected to intelligibly declare that accused-appellants act of pressing
his sex organ against her labia without full entry of the vaginal canal amounted to rape.
In the decision of the trial court, the testimony on one of the rapes is cited plus the courts mention of the
jurisprudence on this issue, to wit:
Q: You said that when Congressman Jalosjos inserted his finger into your vagina, your back was rested
on a pillow and your legs were spread wide apart, what else did he do?
A: He lifted his shirt, and held his penis; and again "idinikit-dikit niya ang ari niya sa ari ko." (Italics
supplied)
Q: And, after doing that: "Idinikit-dikit niya yong ari niya sa ari ko"; what else did he do?
A: After that, "Itinutok niya po yong ari niya at idiniin-diin niya ang ari niya sa ari ko." (underscoring
supplied)
(pp. 23, 25 to 30, TSN, 16 April 1997)
It is well-entrenched in this jurisdiction that rape can be committed even without full penetration of the male
organ into the vagina of the woman. It is enough that there be proof of the entrance of the male organ within
the labia of the pudendum of the female organ. (People vs. Mangalino, 182 SCRA 329; People vs. Tismo,
204 SCRA 535; People vs. Bacani, 181 SCRA 393). "Penetration of the penis by entry into the lips of the
female organ suffices to warrant a conviction." (People vs. Galimba, G.R. No. 111563-64, February 20, 1996
citing People vs. Abonada, 169 SCRA 530). Hence, with the testimony of Rosilyn that the accused pressed
against ("idiniin") and pointed to ("itinutok") Rosilyns vagina his sexual organ on two (2) occasions, two (2)
acts of rape were consummated.
22

Moreover, it must be borne in mind that Rosilyns purpose in executing the affidavits on August 22 and 26, 1996
before the Pasay City Police was to charge Simplicio Delantar, not accused-appellant. As aptly pointed out by the
trial court, it is preposterous to expect Rosilyn to make an exhaustive narration of the sexual abuse of accused-
appellant when he was not the object of the said complaint.
Additionally, Rosilyns statements, given to the NBI on September 11 and 19, 1996, concerned mainly the
identification of pictures. There was thus no occasion for her to narrate the details of her sexual encounter with
accused-appellant.
As to the interviews and studies conducted by the DSWD, suffice it to state that said meetings with Rosilyn were
specially focused on the emotional and psychological repercussions of the sexual abuse on Rosilyn, and had
nothing to do with the legal actions being prepared as a consequence thereof. Thus, the documents pertaining to
said interviews and studies cannot be relied upon to reveal every minute aspect of the sexual molestations
complained of.
At any rate, the inconsistencies between the affidavits and Rosilyns testimony, if at all they existed, cannot diminish
the probative value of Rosilyns declarations on the witness stand. The consistent ruling of this Court is that, if there
is an inconsistency between the affidavit of a witness and her testimonies given in open court, the latter commands
greater weight than the former.
23

In the third assigned error, accused-appellant attempts to impress upon this Court that Rosilyn gave the name
Congressman Romeo Jalosjos as her abuser only because that was the name given to her by the person to whom
she was introduced. That same name, accused-appellant claims, was merely picked up by Rosilyn from the name
plate, plaque, and memo pad she saw on accused-appellants office desk. Accused-appellant presented his brother,
Dominador "Jun" Jalosjos, in an attempt to cast doubt on his culpability. It was Dominador "Jun" Jalosjos who
allegedly met and interviewed Rosilyn at the Dakak office. In advancement of this theory, accused-appellant cites
the fact that out of a total of 16 pictures presented to Rosilyn for identification, she picked up only 4, which depict
Dominador "Jun" Jalosjos. In the same vein, accused-appellant claims that the resulting cartographic sketch from
the facial characteristics given by Rosilyn to the cartographer, resembles the facial appearance of Dominador "Jun"
Jalosjos. Accused-appellant also points out that Rosilyn failed to give his correct age or state that he has a mole on
his lower right jaw.
Contrary to the contentions of accused-appellant, the records reveal that Rosilyn positively and unhesitatingly
identified accused-appellant at the courtroom. Such identification during the trial cannot be diminished by the fact
that in her sworn statement, Rosilyn referred to accused-appellant as her abuser based on the name she heard from
the person to whom she was introduced and on the name she saw and read in accused-appellants office. Verily, a
persons identity does not depend solely on his name, but also on his physical features. Thus, a victim of a crime
can still identify the culprit even without knowing his name. Similarly, the Court, in People v. Vasquez,
24
ruled that:
It matters little that the eyewitness initially recognized accused-appellant only by face [the witness]
acted like any ordinary person in making inquiries to find out the name that matched [appellants] face.
Significantly, in open court, he unequivocally identified accused-appellant as their assailant.
Even in the case of People v. Timon,
25
relied upon by accused-appellant to discredit his identification, this Court said
that even assuming that the out-of-court identification of accused-appellant was defective, their subsequent
identification in court cured any flaw that may have initially attended it.
In light of the foregoing, Rosilyns failure to identify accused-appellant out of the 16 pictures shown to her does not
foreclose the credibility of her unqualified identification of accused-appellant in open court. The same holds true with
the subject cartographic sketch which, incidentally, resembles accused-appellant. As noted by the trial court,
accused-appellant and his brother Dominador Jalosjos have a striking similarity in facial features. Naturally, if the
sketch looks like Dominador, it logically follows that the same drawing would definitely look like accused-appellant.
Likewise, Rosilyns failure to correctly approximate the age of accused-appellant and to state that he has a mole on
the lower right jaw, cannot affect the veracity of accused-appellants identification. At a young age, Rosilyn cannot
be expected to give the accurate age of a 56 year-old person. As to accused-appellants mole, the Solicitor General
is correct in contending that said mole is not so distinctive as to capture Rosilyns attention and memory. When she
was asked to give additional information about accused-appellant, Rosilyn described him as having a "prominent
belly." This, to our mind, is indeed a more distinguishing feature that would naturally catch the attention of an eleven
year-old child like Rosilyn.
In his fifth assigned error, accused-appellant insists that the words "idinikit," "itinutok," and "idiniin-diin," which
Rosilyn used to describe what accused-appellant did to her vagina with his genitals, do not constitute consummated
rape. In addition, the defense argued that Rosilyn did not actually see accused-appellants penis in the supposed
sexual contact. In fact, they stressed that Rosilyn declared that accused-appellants semen spilled in her thighs and
not in her sex organ.
Moreover, in his Reply Brief, accused-appellant, citing People v. Campuhan, argued that, assuming that his penis
touched or brushed Rosilyns external genitals, the same is not enough to establish the crime of rape.
True, in People v. Campuhan,
26
we explained that the phrase, "the mere touching of the external genitalia by the
penis capable of consummating the sexual act is sufficient to constitute carnal knowledge," means that the act of
touching should be understood here as inherently part of the entry of the penis into the labia of the female organ and
not mere touching alone of the mons pubis or the pudendum. We further elucidated that:
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 hairs 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.
27

In the present case, there is sufficient proof to establish that the acts of accused-appellant went beyond "strafing of
the citadel of passion" or "shelling of the castle of orgasmic potency," as depicted in the Campuhan case, and
progressed into "bombardment of the drawbridge [which] is invasion enough,"
28
there being, in a manner of
speaking, a conquest of the fortress of ignition. When the accused-appellant brutely mounted between Rosilyns
wide-spread legs, unfetteredly touching, poking and pressing his penis against her vagina, which in her position
would then be naturally wide open and ready for copulation, it would require no fertile imagination to belie the
hypocrisy claimed by accused-appellant that his penis or that of someone who looked like him, would under the
circumstances merely touch or brush the external genital of Rosilyn. The inevitable contact between accused-
appellants penis, and at the very least, the labia of the pudendum of Rosilyn, was confirmed when she felt pain
inside her vagina when the "idiniin" part of accused appellants sex ritual was performed.
The incident on June 18, 1996 was described by Rosilyn as follows:
PROS. ZUNO:
Q. And, after kissing your lips; after kissing you in your lips, what else did he do?
A. After that, he was lifting my shirt.
Q. Now, while he was lifting your shirt, what was your position; will you tell the court?
A. I was lying, sir.
Q. Lying on what?
A. On the bed, sir.
Q. And, after lifting your shirt, what else did he do?
A. He spread my legs sir.
Q. And, after spreading your legs apart; what did he do?
A. After that, he lifted his shirt and held his penis.
Q. And while he was holding his penis; what did he do?
A. He pressed it in my vagina.
ATTY. FERNANDEZ:
May we request that the vernacular be used?
A. Tapos po, idinikit-dikit po niya yong ari niya sa ari ko.
PROS. ZUNO:
May I respectfully move that the word: "idinikit-dikit niya ang ari niya sa ari ko," be incorporated?
Q. And while he was doing that; according to you, "idinikit-dikit niya ang ari niya sa ari mo;" what did you
feel?
A. I was afraid and then, I cried.
Q. Will you tell the Court why you felt afraid and why you cried?
A. Because I was afraid he might insert his penis into my vagina.
Q. And, for how long did Congressman Jalosjos perform that act, which according to you, "idinikit-dikit
niya yong ari niya sa ari ko?"
COURT:
Place the Tagalog words, into the records.
A. Sandali lang po yon.
Q. What part of your vagina, or "ari" was being touched by the ari or penis?
x x x x x x x x x
Q. You said that you felt I withdraw that question. How did you know that Congressman Jalosjos was
doing, "idinikit-dikit niya yung ari niya sa ari ko?"
A. Because I could feel it, sir.
Q. Now, you said you could feel it. What part of the vagina in what part of your vagina was
Congressman Jalosjos, according to you, "idinikit-dikit niya yong ari niya sa ari mo?"
A. In front of my vagina, sir.
Q. In front of your vagina? O.K.; will you tell the Court the position? Will you describe the position of
Congressman Jalosjos when he was doing that. "Idinikit-dikit niya sa ari ko?"
A. Ide-demonstrate ko po ba?
FISCAL ZUNO:
Q. Can you demonstrate?
x x x x x x x x x
A. He was holding me like this with his one hand; and was holding his penis while his other hand, or his
free hand was on the bed.
x x x x x x x x x
PROS. ZUNO:
Now, according to you, you dont know how to say it; or what was done to you. Now, will you tell the
Court how can you describe what was done to you?
A. After he "dinikit-dikit niya yong ari niya sa ari ko; itinutok naman niya ito."
Q. O.K. you said "itinutok niya ito;" what else did he do?
PROS. ZUNO:
She is now trying to describe.
COURT:
Translate.
A. He seems to be "parang idinidiin po niya."
Q. Now, what did you feel, when according to you; as I would quote: "parang idinidiin niya?"
A. Masakit po.
Q. And, just to make it clear in Tagalog: Ano itong idinidiin niya?
COURT:
Q. Sabi mo itinutok. Nakita mo bang itinutok?
A. I saw him na nakaganuon po sa ano niya.
PROS. ZUNO:
Q. O.K., clarify. You said "nakaganuon siya" what do you mean by "nakaganuon siya?"
A. He was holding his penis, and then, that was the one which he itinutok sa ari ko.
PROS. ZUNO:
Q. And, when you said "idinidiin po niya;" to which you are referring? What is this "idinidiin niya?"
A. Idinidiin niya ang ari niya sa ari ko.
Q. And what did you feel when you said: he was "idinidiin niya ang ari niya sa ari ko?"
A. Masakit po.
COURT:
The answer is "masakit po."
Proceed.
PROS. ZUNO:
Q. Where did you feel the pain?
A. Inside my ari po. (Sa loob po ng ari ko.)
x x x x x x x x x
PROS. ZUNO:
Q. And then, after that, what else did he do
A. After that, he touched my breast, sir.
Q. And, after touching your breast, what did he do?
A. And after that I felt that he was (witness demonstrating to the court, with her index finger, rubbing
against her open left palm)
Q. And after doing that, what else did he do?
A. After that, he instructed me to go to sleep.
x x x x x x x x x
A. I put down my clothes and then, I cried myself to sleep, sir.
Q. Why did you cry? Will you tell the court, why did you cried after putting down your clothes?
A. Because I felt pity for myself. (Naaawa po ako sa sarili ko.)
x x x x x x x x x.
(Emphasis supplied.)
29

Even the July 20, 1996 encounter between Rosilyn and accused-appellant would not tax the sketchy visualization of
the nave and uninitiated to conclude that there was indeed penile invasion by accused-appellant of Rosilyns labia.
On that occasion, accused-appellant was similarly ensconced between the parted legs of Rosilyn, except that, this
time, Rosilyn was conveniently rested on, and elevated with a pillow on her back while accused-appellant was
touching, poking and pressing his penis against her vagina. Topped with the thrusting motions employed by
accused-appellant, the resulting pain felt by Rosilyn in her sex organ was no doubt a consequence of consummated
rape.
The pertinent portions of Rosilyns account of the July 20, 1996 incident is as follows:
PROS. ZUNO:
x x x x x x x x x
Q. The moment when Cong. Jalosjos inserted his finger into your vagina, what was your position?
INTERPRETER:
The witness is asking he (sic) she has to demonstrate?
FISCAL ZUNO:
Q. Ipaliwanag mo lang?
A. My back was rested on a pillow and my legs were spread apart.
Q. You said that when Congressman Jalosjos inserted his finger into your vagina, your back was rested
on a pillow and your legs were spread wide apart, what else did he do?
A. He lifted his shirt, and held his penis; and again "idinikit-dikit niya ang ari niya sa ari ko."
Q. And what did you feel when he was doing that which according to you and I would quote in Tagalog:
"idinikit-dikit niya yong ari niya sa ari ko?"
A. I was afraid sir.
Q. And, after doing that: "idinikit-dikit niya yong ari niya sa ari ko," what else did he do?
A. After that, "itinutok niya po yong ari niya at idiniin-diin niya ang ari niya sa ari ko."
Q. You said: "Congressman Jalosjos itinutok niya yong ari niya sa ari ko; at idiniin-diin niya yong ari niya
sa ari ko;" Now, while he was doing that act, what was the position of Congressman Jalosjos?
A. His two (2) hands were on my side and since my legs were spread apart; he was in-between them,
and doing an upward and downward movement.
(Witness demonstrated a pushing, or pumping movement)
Q. For how long did Congressman Jalosjos perform that act, pushing or pumping movement while his
penis, or "ang ari niya ay nakatutok at idinidiin-diin yong ari niya sa ari mo?"
A. I dont know.
Q. And what did you feel when Congressman Jalosjos was making that movement, pushing, or
pumping?
A. I felt pain and then I cried.
Q. Where did you feel the pain?
A. Inside my vagina, sir.
x x x x x x x x x.
30

The childs narration of the rape sequence is revealing. The act of "idinikit-dikit niya" was followed by "itinutok niya
xxx at idiniin-diin niya." The "idiniin-diin niya" was succeeded by "Masakit po." Pain inside her "ari" is indicative of
consummated penetration.
The environmental circumstances displayed by the graphic narration of what took place at the appellants room from
June 14 to June 16 and June 21 to June 22, 1996 are consistent with the complainants testimony which shows that
rape was legally consummated.
In the case of People v. Campuhan, the victim put up a resistance --- by putting her legs close together --- which,
although futile, somehow made it inconvenient, if not difficult, for the accused-appellant to attempt penetration. On
the other hand, the ease with which accused-appellant herein perpetrated the sexual abuse, not to mention the
absence of time constraint, totally distinguishes the instant case from Campuhan. Here, the victim was passive and
even submissive to the lecherous acts of accused-appellant. Thus, even assuming that his penis then was flaccid,
his act of holding, guiding and assisting his penis with his one hand, while touching, poking and pressing the same
against Rosilyn's vagina, would surely result in even the slightest contact between the labia of the pudendum and
accused-appellant's sex organ.
Considering that Rosilyn is a self-confessed sex worker, and the circumstances of the alleged sexual assault at bar,
the defense argued that it is highly improbable and contrary to human experience that accused-appellant exercised
a Spartan-like discipline and restrained himself from fully consummating the sexual act when there was in fact no
reason for him not to do so. In the same light, the defense likewise branded as unnatural the testimony of Rosilyn
that accused-appellant contented himself with rubbing his penis clipped between her thighs until he reached orgasm
and desisted from fully penetrating her, when Rosilyn was then entirely at his disposal.
The defense seems to forget that there is no standard form of behavior when it comes to gratifying ones basic
sexual instinct. The human sexual perversity is far too intricate for the defense to prescribe certain forms of conduct.
Even the word "perverse" is not entirely precise, as what may be perverse to one may not be to another. Using a
child of tender years who could even pass as ones granddaughter, to unleash what others would call downright
bestial lust, may be utterly nauseating and repulsive to some, but may peculiarly be a festive celebration of
salacious fantasies to others. For all we know, accused-appellant may have found a distinct and complete sexual
gratification in such kind of libidinous stunts and maneuvers.
Nevertheless, accused-appellant may not have fully and for a longer period penetrated Rosilyn for fear of
perpetrating his name through a child from the womb of a minor; or because of his previous agreement with his
"suking bugaw," Simplicio Delantar, that there would be no penetration, otherwise the latter would demand a higher
price. This may be the reason why Simplicio Delantar gave his mocking fatherly advice to Rosilyn that it is bad if
accused-appellant inserts his penis into her sex organ, while at the same time ordering her to call him if accused-
appellant would penetrate her. Such instance of penile invasion would prompt Simplicio to demand a higher price,
which is, after all, as the Solicitor General calls it, the peculiarity of prostitution.
The defense contends that the testimony of Rosilyn that accused-appellant ejaculated on her thighs and not in her
vagina, only proves that there was no rape. It should be noted that this portion of Rosilyns testimony refers to the
June 15 and 21, 1996 charges of acts of lasciviousness, and not the rape charges. In any event, granting that it
occurred during the twin instances of rape on June 18 and July 20, 1996, the ejaculation on the victims thighs would
not preclude the fact of rape.
There is no truth to the contention of the defense that Rosilyn did not see the penis of accused-appellant. As can be
gleaned from the above-quoted portions of the transcripts, Rosilyn unequivocally testified that accused-appellant
held his penis then poked her vagina with it. And even if she did not actually see accused-appellants penis go
inside her, surely she could have felt whether it was his penis or just his finger.
We now come to the issue of whether or not Rosilyn was below twelve (12) years of age at the time the rape
complained of occurred. To bolster the declaration of Rosilyn that she was then eleven years old, the prosecution
presented the following documents:
(1) Rosilyns birth certificate showing her birthday as May 11, 1985;
31

(2) Rosilyns baptismal certificate showing her birthday as May 11, 1985;
32

(3) Master List of Live Births stating that Ma. Rosilyn Delantar was born on May 11, 1985 to Librada Telen
as the mother;
33

(4) Marked pages of the Cord Dressing Room Book;
34

(5) Summary of the Cord Dressing Book, showing her birthday as May 11, 1985 and her parents (Librada
Telen and Simplicio Delantar) patient file number (39-10-71);
35

(6) Record of admission showing her parents patient number (39-10-71) and confinement at the Jose
Fabella Memorial Hospital from May 5-14, 1985.
36

It is settled that in cases of statutory rape, the age of the victim may be proved by the presentation of her birth
certificate. In the case at bar, accused-appellant contends that the birth certificate of Rosilyn should not have been
considered by the trial court because said birth certificate has already been ordered cancelled and expunged from
the records by the Regional Trial Court of Manila, Branch 38, in Special Proceedings No. 97-81893, dated April 11,
1997.
37
However, it appears that the said decision has been annulled and set aside by the Court of Appeals on June
10, 1999, in CA-G.R. SP No. 45289. The decision of the Court of Appeals was appealed to this Court by petition for
review, docketed as G.R. No. 140305. Pending the final outcome of that case, the decision of the Court of Appeals
is presumed valid and can be invoked as prima facie basis for holding that Rosilyn was indeed eleven years old at
the time she was abused by accused-appellant.
However, even assuming the absence of a valid birth certificate, there is sufficient and ample proof of the
complainants age in the records.
Rosilyns Baptismal Certificate can likewise serve as proof of her age. In People v. Liban,
38
we ruled that the birth
certificate, or in lieu thereof, any other documentary evidence that can help establish the age of the victim, such as
the baptismal certificate, school records, and documents of similar nature, can be presented.
And even assuming ex gratia argumenti that the birth and baptismal certificates of Rosilyn are inadmissible to prove
her age, the Master List of Live Births and the Cord Dressing Book of Dr. Jose Fabella Memorial Hospital where
Rosilyn was born are sufficient evidence to prove that her date of birth was May 11, 1985. These documents are
considered entries in official records, admissible as prima facie evidence of their contents and corroborative of
Rosilyns testimony as to her age.
Thus, Rule 130, Section 44, of the Rules of Court states:
Entries in official records. --- Entries in official records made in the performance of his duty by a public officer
of the Philippines, or by a person in the performance of a duty especially enjoined by law, are prima facie
evidence of the facts therein stated.
In Africa v. Caltex, et al., (Phil), Inc., et al.,
39
the Court laid down the requisites for the application of the foregoing
rule, thus:
(a) That the entry was made by a public officer, or by another person specially enjoined by law to do so;
(b) That it was made by the public officer in the performance of his duties or by such other person in the
performance of a duty specially enjoined by law; and
(c) That the public office or the other person had sufficient knowledge of the facts by him stated, which must
have been acquired by him personally or through official information.
In order for a book to classify as an official register and admissible in evidence, it is not necessary that it be required
by an express statute to be kept, nor that the nature of the office should render the book indispensable; it is
sufficient that it be directed by the proper authority to be kept. Thus, official registers, though not required by law,
kept as convenient and appropriate modes of discharging official duties, are admissible.
40

Entries in public or official books or records may be proved by the production of the books or records themselves or
by a copy certified by the legal keeper thereof.
41
It is not necessary to show that the person making the entry is
unavailable by reason of death, absence, etc., in order that the entry may be admissible in evidence, for his being
excused from appearing in court in order that public business be not deranged, is one of the reasons for this
exception to the hearsay rule.
42

Corollary thereto, Presidential Decree No. 651, as amended by P.D. No. 766,
43
mandates hospitals to report and
register with the local civil registrar the fact of birth, among others, of babies born under their care. Said Decree
imposes a penalty of a fine of not less that P500.00 nor more than P1,000.00 or imprisonment of not less than three
(3) months nor more than six (6) months, or both, in the discretion of the court, in case of failure to make the
necessary report to the local civil registrar.
Hence, under the above-cited P.D. 651, as amended, in connection with Rule 30, Section 44, of the Rules of Court,
it is clear that the Cord Dressing Room Book where the fact of birth, name of the mother and other related entries
are initially recorded, as well as the Master List of Live Births of the hospital, are considered entries in official record,
being indispensable to and appropriate modes of recording the births of children preparatory to registration of said
entries with the local civil registrar, in compliance with a duty specifically mandated by law.
It matters not that the person presented to testify on these hospital records was not the person who actually made
those entries way back in 1985, but Amelita Avenante, the records custodian of the hospital in 1995. To reiterate,
these records may be proved by the presentation of the record itself or by a certified copy or the legal keeper
thereof. Proof of the unavailability of the person who made those entries is not a requisite for their admissibility.
What is important is that the entries testified to by Avenante were gathered from the records of the hospital which
were accomplished in compliance with a duty specifically mandated by law.
Therefore, the Cord Dressing Room Book and the Master List of Live Births of the hospital are admissible as
evidence of the facts stated therein.
The preparation of these hospital documents preceded that of the birth and baptismal certificates of Rosilyn. They
establish independent and material facts prepared by unbiased and disinterested persons under environmental
circumstances apart from those that may have attended the preparation of the birth and baptismal certificates.
Hence, these hospital records, to reiterate, are sufficient to support the testimony of Rosilyn as to her age.
Consequently, the testimony of Simplicio Delantar that the entries in the birth certificate of Rosilyn are false and that
he merely made them up, particularly her date of birth, was correctly disregarded by the trial court. It should be
noted that the criminal charges for child abuse filed by Rosilyn against him was the direct cause of his incarceration.
This raises a possibility that Simplicio falsely testified in the present case, to get even with Rosilyn.
Likewise, the trial court correctly disregarded the testimonies of Gloria Binay and Angelito Intruzo because the
defense failed to prove that they were knowledgeable as to the circumstances of Rosilyns birth. Their testimonies
consist mainly of observations tending to show that Rosilyns appearance belie her claim that she was born on May
11, 1985.
In the four instances of acts of lasciviousness allegedly committed on June 29, June 30, July 2, and July 3, 1996
(Criminal Cases Nos. 96-1994, 96-1995, 96-1996, and 96-1997, respectively), the trial court acquitted accused-
appellant on the ground of reasonable doubt as the defense was able to prove that accused-appellant was not in
Manila but either in Dipolog or Dapitan City at the time the lascivious acts were supposedly committed. The
evidence of the defense established that accused-appellant flew to Dipolog on June 28, 1996, and stayed there until
July 9, 1996.
In Criminal Cases Nos. 96-1991 and 96-1998, for two counts of acts of lasciviousness allegedly committed both in
the early mornings of June 19 and July 21, 1996, Rosilyn merely testified that she felt somebody touching her
private part but failed to identify the person who was performing those lecherous acts as she was too sleepy to wake
up. Hence, accused-appellant was likewise acquitted in these cases on the ground of reasonable doubt.
With respect, however, to the acts of lasciviousness committed in the morning of June 15 and 22, 1996, and in the
evening of June 14, 15, 18, and 21, 1996, as well as the rape perpetrated on June 18, 1996 and July 20, 1996,
accused-appellant failed to account for his whereabouts. A careful review of the pertinent transcript of stenographic
notes reveals that accused-appellant did not give any testimony as to where he was at the time these crimes were
committed. Clearly, therefore, the trial court correctly disregarded his unsubstantiated defense of denial, which
cannot prevail over his positive identification by Rosilyn as the culprit.
As regards the charge of acts of lasciviousness committed in the morning of June 16, 1996, accused-appellant
claimed that it was impossible for him to have committed the same because he flew to Dipolog on that day. The
records disclose, however, that accused-appellants flight was at 9:40 a.m. The possibility, therefore, of accused-
appellants having performed the lascivious acts on the victim before he went off to the airport is not at all precluded.
For his failure to prove the physical impossibility of his presence at the Ritz Towers in the morning of June 16, 1996,
when the sexual abuse of Rosilyn was committed, his defense of alibi must fail.
Article III, Section 5 of Republic Act No. 7610, states:
Child Prostitution and other Sexual Abuse. --- Children, whether male or female, who for money or 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, paragraphs 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 . (Emphasis supplied.)
In People v. Optana,
44
the Court, citing the case of People v. Larin,
45
explained the elements of the offense of
violation of Section 5 (b) of R.A. 7610, or the Child Abuse Law, as follows:
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 other sexual abuse.
3. The child, whether male or female, is below 18 years of age.
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."
"Lascivious conduct" is defined under Article XIII, Section 32 of the Implementing Rules and Regulation of R.A.
7610, as follows:
[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 the case at bar, accused-appellants acts of kissing Rosilyn on the lips, fondling her breast, inserting his finger
into her vagina and placing his penis between her thighs, all constitute lascivious conduct intended to arouse or
gratify his sexual desire. Hence, the trial court correctly convicted accused-appellant of violation of Section 5 (b) of
R.A. 7610, or the Child Abuse Law, in Criminal Cases Nos. 96-1987, 96-1988, 96-1989, 96-1990, 96-1992, and 96-
1993, charging him with the above-described lascivious acts.
The penalty for violation of Section 5 (b) of R.A. 7610, or the Child Abuse Law, where the victim is below 12 years of
age, is reclusion temporal in its medium period.
The records show that on at least nine (9) separate occasions, the accused-appellant inserted his finger into the
complainants vagina. These insertions took place in 1996. A year later, Congress enacted Republic Act No. 8353,
the Anti-Rape law of 1997. It does not apply to this case but it indicates state policy on rape. The Revised Penal
Code is now amended to read as follows:
Article 266-A. Rape; When and How Committed. Rape is committed
1. By a man who 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 persons mouth or anal orifice or any instrument or
object, into the genital or anal orifice of another person. (Emphasis supplied.)
Indicative of the continuing state policy towards rape, the Anti-Rape Law of 1997 now classifies the crime as an
offense against persons. Any public prosecutor, not necessarily the victim or her parents, can prosecute the case.
The penalties for the crime of rape in the light of various circumstances, which are now set forth and contained in
Article 266-B of the Revised Penal Code, have also been increased.
Considering that there are neither mitigating nor aggravating circumstance, the trial court correctly imposed on
accused-appellant the maximum penalty of fifteen (15) years, six (6) months and twenty (20) days of reclusion
temporal, which is within the medium period of reclusion temporal medium, pursuant to our ruling in Dulla v. Court of
Appeals.
46
Notwithstanding that R.A. 7610 is a special law, accused-appellant may enjoy a minimum term of the
indeterminate sentence to be taken within the range of the penalty next lower to that prescribed by the
Code.
47
However, the trial court erroneously fixed the minimum term of the indeterminate sentence at eight (8) years,
eight (8) months and one (1) day of prision mayor in its medium period. In the aforesaid case of Dulla,
48
we held that
the penalty next lower in degree to reclusion temporal medium is reclusion temporal minimum, the range of which is
from twelve (12) years and one (1) day to fourteen (14) years and eight (8) months. Hence, for violation of Article III,
Section 5 (b) of R.A. 7610, accused-appellant shall suffer the indeterminate sentence of twelve years (12) and one
(1) day of reclusion temporal, as minimum, to fifteen (15) years, six (6) months and twenty (20) days of reclusion
temporal as maximum.
At the time of commission of the crimes complained of herein in 1996, statutory rape was penalized under Section
11 of R.A. 7659, which amended Article 335 of the Revised Penal Code, to wit:
When and how rape is committed. --- Rape is committed by having carnal knowledge of a woman under any
of the following circumstances:
1. By using force or intimidation;
2. When the woman is deprived of reason or otherwise unconscious; and
3. When the woman is under twelve years of age or is demented.
The crime of rape shall be punished by reclusion perpetua. xxx.
In statutory rape, mere sexual congress with a woman below twelve years of age consummates the crime of
statutory rape regardless of her consent to the act or lack of it. The law presumes that a woman of tender age does
not possess discernment and is incapable of giving intelligent consent to the sexual act. Thus, it was held that carnal
knowledge of a child below twelve years old even if she is engaged in prostitution is still considered statutory rape.
The application of force and intimidation or the deprivation of reason of the victim becomes irrelevant. The absence
of struggle or outcry of the victim or even her passive submission to the sexual act will not mitigate nor absolve the
accused from liability.
49

In the case at bar, the prosecution established beyond reasonable doubt that accused-appellant had carnal
knowledge of Rosilyn. Moreover, the prosecution successfully proved that Rosilyn was only eleven years of age at
the time she was sexually abused. As such, the absence of proof of any struggle, or for that matter of consent or
passive submission to the sexual advances of accused-appellant, was of no moment. The fact that accused-
appellant had sexual congress with eleven year-old Rosilyn is sufficient to hold him liable for statutory rape, and
sentenced to suffer the penalty of reclusion perpetua.
As to accused-appellant's civil liability, the amount of moral damages awarded by the trial court for each count of
acts of lasciviousness under Section 5 (b) of R.A. 7610 should be increased from P20,000.00 to P50,000.00.
50
On
the other hand, the award of the amount of P50,000.00 as moral damages for each count of statutory rape was
correct.
In People v. Lor,
51
citing the cases of People v. Victor,
52
and People v. Gementiza,
53
we held that the indemnity
authorized by our criminal law as civil indemnity ex delicto for the offended party, in the amount authorized by the
prevailing judicial policy and aside from other proven actual damages, is itself equivalent to actual or compensatory
damages in civil law. Said civil indemnity is mandatory upon finding of the fact of rape; it is distinct from and should
not be denominated as moral damages which are based on different jural foundations and assessed by the court in
the exercise of sound judicial discretion.
54
Hence, accused-appellant should be ordered to pay the offended party
another P50,000.00 as civil indemnity for each count of rape and acts of lasciviousness.
WHEREFORE, the Decision of the Regional Trial Court of Makati, Branch 62, in Criminal Case Nos. 96-1985 and
96-1986 finding accused-appellant Romeo Jalosjos guilty beyond reasonable doubt of two counts of statutory rape,
and sentencing him to suffer the penalty of reclusion perpetua for each count, is AFFIRMED. Likewise, the appealed
Decision of the Regional Trial Court of Makati, Branch 62 in Criminal Case Nos. 96-1987, 96-1988, 96-1989, 96-
1990, 96-1992, and 96-1993, finding accused-appellant guilty beyond reasonable doubt of acts of lasciviousness in
six counts, is AFFIRMED with MODIFICATIONS. As modified, accused-appellant is sentenced to suffer, for each
count of acts of lasciviousness, the indeterminate penalty of twelve years (12) and one (1) day ofreclusion temporal,
as minimum, to fifteen (15) years, six (6) months and twenty (20) days of reclusion temporal as maximum. Further,
accused-appellant is ordered to pay the victim, Ma. Rosilyn Delantar, the additional amount of P50,000.00 as civil
indemnity for each count of statutory rape and acts of lasciviousness. Finally, the award of moral damages for each
count of acts of lasciviousness is increased to P50,000.00.
SO ORDERED.



SECOND DIVISION
G.R. No. 171863 August 20, 2008
PEOPLE OF THE PHILIPPINES, petitioner,
vs.
THE HONORABLE COURT OF APPEALS (Second Division) and GASPAR
OLAYON,respondents.
D E C I S I O N
CARPIO MORALES, J .:
The then 22-year old herein respondent Gaspar Olayon was charged with violation
of Section 10(a) of Republic Act No. 7610 (The Special Protection of Children against
Abuse, Exploitation, and Discrimination Act) in two separate Informations filed before the
Regional Trial Court (RTC) of Pasig City, of which the then 14-year old AAA was alleged
to be the victim.
Criminal Case No. 112571 alleged that
On or about 10:00 a.m. of January 27, 1997 in Taguig, Metro Manila and within the
jurisdiction of this Honorable Court, the accused, with lewd designs, did then and
there willfully, unlawfully and feloniously have sexual intercourse with and commit
lewd and lascivious acts upon the person of [AAA], a minor, fourteen (14) years of
age.
1
(Underscoring supplied)
Criminal Case No. 112572 alleged that
On or about 2:00 p.m. of January 27, 1997 in Taguig, Metro Manila and within the
jurisdiction of this Honorable Court, the accused, with lewd designs, did then and
there willfully, unlawfully and feloniously have sexual intercourse with and commit
lewd and lascivious acts upon the person of [AAA], a minor, fourteen (14) years of
age.
2
(Underscoring supplied)
Respondent was also charged for acts of lasciviousness before the RTC of Taguig,
docketed as Criminal Case No. 116350, of which the same then 14-year old AAA was
alleged to be the victim. The case was transferred to the Pasig City RTC and consolidated
with Criminal Case Nos. 112571-72.
3
The three cases were jointly tried.
4

After trial, Branch 158 of the Pasig City RTC, by Decision of January 15, 2002, acquitted
respondent in Criminal Case No. 116350 (for acts of lasciviousness).
5
It, however,
convicted respondent of violation ofSection 10 (a) of Republic Act (R.A.) No. 7610 in
Criminal Case Nos. 112571-72 in this wise:
x x x The accused, Olayon admitted his sexual liaisons with [AAA]. His defenses
are: 1) [AAA] is his sweetheart and 2) whatever happened to them in terms of these
sexual liaisons, occurred with the consent of [AAA]. Although the testimony of [AAA]
denies she consented to the sexual liaisons, the evidence did not support it.
The events that occurred on January 27, 1997 at the house of one Duke Espiritu
show that [AAA] went with Olayon to that place voluntarily. First, she was fetched
from a tricycle stand and it took them another ride to go to the house of Espiritu. If
indeed she was forced to board the tricycle, she could have resisted and shouted for
help considering that there were normally people around in a tricycle stand, waiting
for rides. If she indeed resisted and showed any manifestation in this regard, people
could have easily helped her in resisting whatever it was Olayon wanted. Second, at
the house of Espiritu she could have easily shouted for help since it was located
near a road and a pathway. x x x
x x x x
Although the sexual liaisons that occurred on January 27, 1997 were with the
consent of [AAA] who at that time was only 14 years of age, Olayon cannot escape
responsibility because he took advantage of [AAAs] minority to have these
sexual liaisons, even if they were with her consent. Consent is not an accepted
defense in this special law. He violated then Republic Act No. 7610, Section
10(a) which provides:
Section 10(a) Any person who shall commit any other acts of child abuse,
cruelty or exploitation or be responsible for other conditions prejudicial to the
childs development including those covered by Article 59 of Presidential
Decree No. 603, as amended, shall suffer the penalty of prision mayor in its
minimum period.
x x x x
6
(Emphasis and underscoring supplied)
Thus the trial court disposed:
WHEREFORE, Gaspar Olayon y Matubis a.k.a Eric Ramirez is found guilty beyond
reasonable doubt for having violated Republic Act No. 7610, Section 10 (a) in
Criminal Case Nos. 112571-72 and is sentenced to suffer in prison the penalty of six
(6) years, eight (8) months and one (1) day to seven (7) years and four (4) months
of prision mayor for each count. He is acquitted in Criminal Case No. 116350.
Costs against the accused.
SO ORDERED.
7

On appeal by respondent,
8
the Court of Appeals, answering in the negative the issue of
whether consensual sexual intercourse with a minor is classified as child abuse under
Section 10 of RA No. 7610, reversed the trial courts decision and acquitted respondent,
by Decision
9
of January 13, 2006, reasoning as follows:
"Acts of child abuse" under Section 10 (a) of R.A. 7610 refers to those acts listed
under Sec. 3(b) of R.A. 7610, which reads as follows:
Sec. 3. Definition of Terms
(a) x x x
(b) "Child Abuse" refers to maltreatment, whether habitual or not, of the child which
includes any of the following:
1) Psychological and physical abuse, neglect, cruelty, sexual abuse and
emotional maltreatment;
2) Any act or deeds [sic] or words [sic] which debases, degrades or demeans
the intrinsic worth and dignity of a child as a human being;
3) Unreasonable deprivation of his basic needs for survival, such as food and
shelter; or
4) Failure to immediately give medical treatment to an injured child resulting in
serious impairment of his growth and development or in his permanent
incapacity or death.
Consensual sexual intercourse between OLAY[O]N and [AAA] does not fall under
the "sexual abuse" definition [in Section 5 of R.A. No. 7610] which is a completely
distinct and separate offense from "child abuse," [under Section 10] because
"sexual abuse" pertains to and is associated with "child prostitution" [as defined in
Section 5]. "Sexual abuse" is defined separately under Section 5 of R.A. 7610,
which reads 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.
Moreover, for the act of intercourse between OLAY[O]N and [AAA] to be
considered sexual abuse [under Section 5], such intercourse should have
occurred due to coercion or intimidation. In the case at bench, neither coercion
nor intimidation were found to have been present, consent having been freely
given.
10
(Emphasis, italics and underscoring supplied)
Hence, the present petition for certiorari
11
of the People under Rule 65, alleging that the
Court of Appeals acted with grave abuse of discretion amounting to lack or excess of
jurisdiction
x x x IN ACQUITTING RESPONDENT OLAYON OF THE TWO (2) COUNTS OF
CHILD ABUSE UNDER SECTION 10(A) OF R.A. 7610 DESPITE THE FACT THAT
THE SEXUAL ACTSCOMMITTED BY RESPONDENT OLAYON ON THE MINOR
PRIVATE COMPLAINANT ARE CLEARLY WITHIN THE TERM "OTHER ACTS OF
NEGLECT, ABUSE, CRUELTY OR EXPLOITATION AND OTHER CONDITIONS
PREJUDICIAL TO THE CHILDS DEVELOPMENT" DECLARED PUNISHABLE
UNDER SECTION 10(A) OF R.A. 7610.
12
(Emphasis and underscoring supplied)
The record shows that the Pasig City Prosecutors Office found that the acts of respondent
did not amount to rape as they were done with the consent of the 14-year old
AAA.
13
Nevertheless, it found the acts constitutive of "violations of [Republic] Act No.
7610," hence, its filing of the above-quoted Informations for violation of Section 10(a).
14

The Informations alleged that respondent, "with lewd designs did willfully, unlawfully, and
feloniously have sexual intercourse with and commit lewd and lascivious acts upon the
person of [AAA], a minor, fourteen (14) years of age."
15

Section 10(a) of R.A. No. 7610 under which respondent was charged in each of the two
cases provides:
SECTION 10. Other Acts of Neglect, Abuse, Cruelty or Exploitation and Other
ConditionsPrejudicial to the Child's Development.
(a) Any person who shall commit any other acts of child abuse, cruelty or
exploitation or be responsible for other conditions prejudicial to the child's
development including those covered by Article 59 of Presidential Decree No. 603,
as amended, but not covered by the Revised Penal Code, as amended, shall suffer
the penalty of prision mayor in its minimum period. (Underscoring supplied),
Section 5(b), upon the other hand, provides:
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
(b) Those who commit the act of sexual intercourse or 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; (Italics in the
original, emphasis and underscoring supplied)
As Section 10 refers to acts of child abuse prejudicial to the childs
development other than child prostitution and other sexual abuse
16
under Section 5,
attempt to commit child prostitution,
17
child trafficking,
18
attempt to commit child
trafficking,
19
and obscene publications and indecent shows,
20
the Court of Appeals did not
commit grave abuse of discretion in holding that "x x x sexual abuse [as defined under
Section 5] x x x is a completely distinct and separate offense from child abuse [as defined
under Section 10]."
Consensual sexual intercourse or even acts of lasciviousness with a minor who is 12
years old or older could constitute a violation of Section 5(b) of R.A. No. 7610. For Section
5(b) punishes sexual intercourse or lascivious conduct not only with a child exploited in
prostitution but also with a child subjected to other sexual abuse.
21

Section 2(g) of the Rules and Regulations on the Reporting and Investigation of Child
Abuse Cases, promulgated to implement R.A. No. 7610, defines "sexual abuse" as
including "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." (Underscoring supplied)
For consensual sexual intercourse or lascivious conduct with a minor, who is not exploited
in prostitution, to thus fall within the purview of Section 5(b) of R.A. No. 7610, "persuasion,
inducement, enticement or coercion" of the child must be present.
In People v. Larin,
22
the information alleged that the therein accused took advantage of his
authority, influence, and moral ascendancy as trainor/swimming instructor of the minor
victim
23
which the Court found constituted "psychological coercion."
24
In convicting the
therein accused for lascivious acts, the Court held:
It must be noted that [Republic Act No. 7610] covers not only a situation in which a
child is abused for profit, but also one in which a child, through coercion or
intimidation, engages in any lascivious conduct.
25
(Emphasis and underscoring
supplied)
And even in Malto v. People
26
wherein the accused was convicted for violation of Section
5(b) of R.A. No. 7610, the information alleged, and the prosecution proved, that the
therein accused who was the minors professor obtained the minors consent by taking
advantage of his relationship and moral ascendancy to exert influence on her.
In the case at bar, even if respondent were charged under Section 5(b), instead of Section
10(a), respondent would just the same have been acquitted as there was no allegation
that an element of the offense coercion or influence or intimidation attended its
commission.
In light of the foregoing disquisition, the petition is DENIED.
SO ORDERED.