Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 179031

November 14, 2012

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
BENJAMIN SORIA y GOMEZ, Accused-Appellant.
DECISION
DEL CASTILLO, J.:
This case involves a fathers detestable act of abusing his daughter through rape by sexual assault.
Factual Antecedents
Accused-appellant Benjamin Soria y Gomez (appellant) seeks a review of the December 29, 2006
Decision1 of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 01442 which affirmed with
modification the June 30, 2005 Judgment2 of the Regional Trial Court (RTC) of Quezon City, Branch
94, in Criminal Case No. Q-01-98692. Said RTC Judgment found appellant guilty beyond reasonable
doubt of the crime of rape committed against his daughter "AAA",3 as described in an
Information,4 the relevant portion of which reads:
That on or about the 26th day of February, 2000, in Quezon City, Philippines, the said accused, who
is the father of private complainant "AAA", did then and there willfully, unlawfully, and feloniously with
force and intimidation commit an act of sexual assault upon the person of one "AAA", a minor, 7
years of age[,] by then and there inserting his penis into [the] genital of said complainant, all against
her will and consent, which act debases, degrades, or demeans the intrinsic worth and dignity of
said "AAA", as a human being, in violation of said law.
CONTRARY TO LAW.5
Appellant pleaded not guilty to the crime charged. Pre-trial and trial thereafter ensued.
Version of the Prosecution
On February 26, 2000, "AAA" and her siblings enjoyed the spaghetti their father (appellant) brought
home for merienda. After eating, "AAA" went to the bedroom to rest. Thereafter, appellant also
entered the room and positioned himself on top of "AAA", took off her clothes and inserted his penis
into her vagina. "AAA" felt intense pain from her breast down to her vagina and thus told her father
that it was painful. At that point, appellant apologized to his daughter, stood up, and left the room.
This whole incident was witnessed by "AAAs" brother, "BBB".
The pain persisted until "AAAs" vagina started to bleed. She thus told her aunt about it and they
proceeded to a hospital for treatment. Her mother was also immediately informed of her ordeal.
Subsequently, "AAA" was taken into the custody of the Department of Social Welfare and
Development.

On March 15, 2000, Medico-Legal Officer Francisco A. Supe, Jr., M.D. (Dr. Supe) examined "AAA",
which examination yielded the following results:
GENERAL AND EXTRA-GENITAL: Fairly developed, fairly nourished and coherent female child.
Breasts are undeveloped. Abdomen is flat and soft.
GENITAL: There is absent growth of pubic hair. Labia majora are full, convex, and coaptated with
light brown labia minora presenting in between. On separating the same, disclosed an elastic, fleshy
type, hyperemic and intact hymen. Posterior fourchette is sharp.
CONCLUSION: The subject is in virgin state physically. There are no external signs of application of
any form of physical trauma.6
Version of the Defense
Appellant admitted that he was at home on the day and time of "AAAs" alleged rape but denied
committing the same. Instead, he claimed that the filing of the rape case against him was instigated
by his wife, whom he confronted about her illicit affair with a man residing in their community.
According to appellant, he could not have molested "AAA" because he treated her well. In fact, he
was the only one sending his children to school since his wife already neglected them and seldom
comes home.
Ruling of the Regional Trial Court
On June 30, 2005, the trial court rendered its Judgment7 finding appellant guilty beyond reasonable
doubt of the crime of rape against "AAA", his daughter of minor age, as charged in the Information. It
ruled that the lack of tenacious resistance on the part of "AAA" is immaterial considering that
appellants moral ascendancy and influence over her substitute for violence and intimidation.8 It also
held that his wife could not have instigated the filing of the rape case since as the mother of "AAA", it
would not be natural for her to use her child as a tool to exact revenge especially if it will result in her
embarrassment and stigma.9 The trial court gave credence to the testimony of "AAA" and her
positive identification of appellant as her rapist, and rejected the latters defense of denial. The
dispositive portion of the Judgment reads as follows:
WHEREFORE, premises considered, judgment is hereby rendered finding the herein accused,
BENJAMIN SORIA Y GOMEZ GUILTY beyond reasonable doubt of the crime as charged and
sentences him to suffer the supreme penalty of DEATH and to indemnify the offended party the
amount of P75,000.00, to pay moral damages in the amount of P50,000.00, and the amount of
P25,000.00 as exemplary damages to deter other fathers with perverse proclivities for aberrant
sexual behavior for sexually abusing their own daughters.
SO ORDERED.10
Ruling of the Court of Appeals
In its Decision11 dated December 29, 2006, the CA found partial merit in the appeal. While the
appellate court was convinced that appellant raped "AAA", it nevertheless noted the prosecutions
failure to present her birth certificate as competent proof of her minority. Thus, the CA concluded
that the crime committed by appellant against his daughter was only simple rape and accordingly
modified the penalty imposed by the trial court from death to reclusion perpetua and reduced the civil

indemnity awarded from P75,000.00 to P50,000.00. The dispositive portion of the appellate courts
Decision reads as follows:
WHEREFORE, premises considered, the appeal is hereby GRANTED and the June 30, 2005
Decision of the Regional Trial Court of Quezon City, Branch 94, in Criminal Case No. Q-01-98692, is
hereby MODIFIED, in that, the penalty imposed is reduced to reclusion perpetua instead of death
and the civil indemnity to be paid by the offender to the victim is hereby reduced to the amount of
P50,000.00 instead of P75,000.00 pursuant to prevailing jurisprudence as explained in this decision.
Pursuant to Section 13(c), Rule 124 of the 2000 Rules of Criminal Procedure as amended by A.M.
No. 00-5-03-SC dated September 28, 2004, which became effective on October 15, 2004, this
judgment of the Court of Appeals may be appealed to the Supreme Court by notice of appeal filed
with the Clerk of Court of the Court of Appeals.
SO ORDERED.12
Still insisting on his innocence, appellant comes to this Court through this appeal.
Assignment of Errors
Appellant adopts the same assignment of errors he raised before the appellate court, viz:
I. THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED GUILTY OF THE
CRIME OF RAPE DESPITE THE FAILURE OF THE PROSECUTION TO OVERTHROW
THE CONSTITUTIONAL PRESUMPTION OF INNOCENCE X X X.
II. ASSUMING ARGUENDO THAT THE ACCUSED IS GUILTY OF THE CRIME CHARGED,
THE TRIAL COURT GRAVELY ERRED IN IMPOSING THE DEATH PENALTY UPON
HIM.13
Appellant asserts that he should be acquitted of the crime of rape since there is no evidence that
would establish the fact of sexual intercourse. Aside from the prosecutions failure to prove penile
contact, "AAAs" testimony was also wanting in details as to how he took off her underwear or
whether she saw his penis during the incident despite leading questions propounded on the matter
by the prosecution. The medical report even revealed that "AAAs" hymen remained intact and that
there were no notable lacerations or external physical injuries thereon. Appellant therefore surmises
that his wife merely instigated "AAA" to file this baseless rape case against him in retaliation for his
act of confronting her about her illicit relationship with a neighbor.
Our Ruling
The appeal lacks merit.
The crime of rape under Article 266-A of
the Revised Penal Code (RPC).
Republic Act No. 8353, otherwise known as the Anti-Rape Law of 1997, classified the crime of rape
as a crime against persons. It also amended Article 335 of the RPC and incorporated therein Article
266-A which reads:
Article 266-A. Rape, When and How Committed. Rape is committed

1) By a man who shall have carnal knowledge of a woman under any of the following
circumstances:
a) Through force, threat or intimidation;
b) When the offended party is deprived of reason or is otherwise unconscious,
c) By means of fraudulent machination or grave abuse of authority;
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.
Thus, rape can now be committed either through sexual intercourse or by sexual assault. Rape
under paragraph 1 of the above-cited article is referred to as rape through sexual intercourse. Carnal
knowledge is the central element and it must be proven beyond reasonable doubt.14 It is commonly
denominated as "organ rape" or "penile rape"15and must be attended by any of the circumstances
enumerated in subparagraphs (a) to (d) of paragraph 1.
On the other hand, rape under paragraph 2 of Article 266-A is commonly known as rape by sexual
assault. The perpetrator, under any of the attendant circumstances mentioned in paragraph 1,
commits this kind of rape 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. It is also called "instrument or
object rape", also "gender-free rape".16
The Information did not specify whether
the crime of rape was committed through
sexual intercourse or by sexual assault.
The Information in this case did not specify with certainty whether appellant committed the rape
through sexual intercourse under paragraph 1 of Article 266-A, or rape by sexual assault as
described in paragraph 2 thereof. The Information stated that appellant inserted his penis into the
genital of "AAA," which constituted rape by sexual intercourse under the first paragraph of Article
266-A. At the same time, the Information alleged that appellant used force and intimidation to
commit an act of sexual assault. While these allegations cause ambiguity, they only pertain to the
mode or manner of how the rape was committed and the same do not invalidate the Information or
result in the automatic dismissal of the case. "[W]here an offense may be committed in any of the
different modes and the offense is alleged to have been committed in two or more modes specified,
the indictment is sufficient, notwithstanding the fact that the different means of committing the same
offense are prohibited by separate sections of the statute. The allegation in the information of the
various ways of committing the offense should be regarded as a description of only one offense and
the information is not thereby rendered defective on the ground of multifariousness."17 Any objection
from the appellant with respect to the Information is held to have been waived failing any effort to
oppose the same before trial.18 He therefore can be convicted of rape through sexual intercourse or
rape by sexual assault, depending on the evidence adduced during trial.
The findings of the RTC and the CA on

the credibility of "AAA" deserve respect

and great weight.
Both the trial court and the CA held that "AAA" was a credible witness. They ruled that her testimony
deserved credence and is sufficient evidence that she was raped by appellant. We find no cogent
reason to overturn these findings.
It would be highly inconceivable for "AAA" to impute to her own father the crime of raping her unless
the imputation is true.19 In fact, it takes "a certain amount of psychological depravity for a young
woman to concoct a story which would put her own father in jail for the rest of his remaining life and
drag the rest of the family including herself to a lifetime of shame"20 unless the imputation is true.
When a rape victims testimony on the manner she was defiled is "straightforward and candid, and is
corroborated by the medical findings of the examining physician as in this case, the same is
sufficient to support a conviction for rape."21
Appellant is guilty of rape by sexual
assault and not through sexual
intercourse.
The trial courts conviction of the appellant was for rape through sexual intercourse under paragraph
1(a) of Article 266-A. The CA sustained the trial courts finding that appellant had sexual intercourse
with "AAA" against her will.
In determining whether appellant is indeed guilty of rape through sexual intercourse under paragraph
1 of Article 266-A, it is essential to establish beyond reasonable doubt that he had carnal knowledge
of "AAA". There must be proof that his penis touched the labia of "AAA" or slid into her female organ,
and not merely stroked the external surface thereof, to ensure his conviction of rape by sexual
intercourse.22
1vvph!1

We reviewed the testimony of "AAA" and found nothing therein that would show that she was raped
through sexual intercourse. While "AAA" categorically stated that she felt something inserted into her
vagina, her testimony was sorely lacking in important details that would convince us with certainty
that it was indeed the penis of appellant that was placed into her vagina.
When "AAA" was placed on the witness stand, she narrated that:
Q - The earlier statement which you made when you said that you wanted to explain something
about your father, is that true?
A - Yes, sir.
Q - So, you said that you wanted to explain something about your father, what was that?
A - What he did, sir.
Q - What was that?

A - I was raped, sir.

Q - What did he do when you said he raped you?
A - He laid on top of me, sir.23
xxxx
Q - So when you said he laid on top of you, did you feel anything? Did you feel any pain in any part
of your body?
A - Yes, sir.
Q - In what part of your body did you feel pain?
A - I felt pain in my breast and my stomach.
Q - What about your private part?
A - Yes, sir.
Q - Did you know why your stomach as well as your body and your private part hurt or become
painful?
A - I dont know, sir.
Q - Did you feel something inserted into your private part?
A - Yes, sir.
Q - What is that, if you know?
A - The bird of my papa.
Q - Why did you know that?
A - Because my brother, "BBB", told me.
Q - Why? Was "BBB", your brother, present when your father was on top of you?
A - Yes, sir.
Q - Why do you know that he was there?
A - He told me so, sir.
Q - Who?
A - "BBB".

Q - Okay, when you felt pain as something was inserted [into] your private part, what did you say to
your father?
A - He left the room.
Q - Before he went away and left?
A - It was painful, sir.
Q - And what was the answer of your father?
A - He said sorry, sir.
Q - How long was he or how long were you in that position, you were lying down and your father was
on top of you?
A - I do not know, sir.24
xxxx
Q - Earlier, you were making reference to your father whom you said abused you. I am asking you
now to tell us if your father is around?
A - Yes, sir.
Q - Will you please point x x x to him?
A - Yes, sir. (Witness pointing to a man who is wearing yellow t-shirt and maong pants who when
asked identified himself as Benjamin Soria.)
Q - Is he the same person who according to you laid on top of you and inserted something into your
vagina or private part?
A - Yes, sir.25
It is evident from the testimony of "AAA" that she was unsure whether it was indeed appellants penis
which touched her labia and entered her organ since she was pinned down by the latters weight,
her father having positioned himself on top of her while she was lying on her back. "AAA" stated that
she only knew that it was the "bird" of her father which was inserted into her vagina after being told
by her brother "BBB". Clearly, "AAA" has no personal knowledge that it was appellants penis which
touched her labia and inserted into her vagina. Hence, it would be erroneous to conclude that there
was penile contact based solely on the declaration of "AAAs" brother, "BBB", which declaration was
hearsay due to "BBBs" failure to testify. Based on the foregoing, it was an error on the part of the
RTC and the CA to conclude that appellant raped "AAA" through sexual intercourse.
Instead, we find appellant guilty of rape by sexual assault. It cannot be denied that appellant inserted
an object into "AAAs" female organ. "AAA" categorically testified that appellant inserted something
into her vagina. She claimed to have suffered tremendous pain during the insertion. The insertion
even caused her vagina to bleed necessitating her examination at the hospital. Both the trial court
and the CA found "AAAs" testimony to be credible. We find no compelling reason not to lend
credence to the same.

This defilement constitutes rape under paragraph 2 of Article 266-A of the RPC, which provides that
rape by sexual assault is committed "by any person who, under any of the circumstances mentioned
in paragraph 1 hereof, shall commit an act of sexual assault by inserting x x x any instrument or
object, into the genital or anal orifice of another person."
Moreover, Dr. Supe corroborated her testimony as follows:
Q - Doctor, with respect to Exhibit A, the Medico-Legal Report pertaining to the entry into the genital,
which reads: On separating the hymen, disclosed was an elastic, fleshy type, hyperemic and intact
hymen. Will you please tell us, Doctor, what is this hyperemic hymen?
A - Hyperemic hymen, sir, means that at the time of examination, I found out that it was reddish in
color.
Q - Considering the age of the child or the patient, the victim whom you examined at that time who
was about 6 years old, will you be able to tell us, Doctor, what could have caused this kind of injury,
because this is an injury to the hymen?
A - Hyperemic, sir, is observed whenever there is friction applied to an area, such as in the form of
scratching.
Q - What about insertion of object, would this result into hyperemic hymen?
A - If the object is being rubbed, sir, there is a possibility.
Q - A finger will produce this kind of injury?
A - Possible, sir.26
According to Dr. Supe, it is possible that "AAAs" hyperemic hymen may be the result of the insertion
of a finger or object. While Dr. Supe said that the injury could also be attributed to scratching,
"AAAs" testimony is bereft of any showing that she scratched her genital organ thus causing the
reddening. Appellant would also want to make it appear that the injury of "AAA" was the result of
friction from playing or riding a bicycle since the doctor testified that this was also possible. However,
there is likewise no evidence that friction was applied on "AAAs" female organ when she played
hide and seek with her playmates or that she actually rode a bicycle. On the other hand, "AAA" was
categorical in stating that in the afternoon of February 26, 2000, appellant removed her clothes, laid
on top of her, and that she felt something being inserted into her vagina and that thereafter she
experienced pain in her genitals. The foregoing thus proved that appellant inserted an object into
"AAAs" vagina against her will and without consent. Simply put, appellant committed the crime of
rape by sexual assault.
The following are the elements of rape by sexual assault:
(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

(b) By inserting any instrument or object into the genital or anal orifice of another
person;
(3) That the act of sexual assault is accomplished under any of the following circumstances:
(a) By using force and intimidation;
(b) When the woman is deprived of reason or otherwise unconscious; or
(c) By means of fraudulent machination or grave abuse of authority; or
(d) When the woman is under 12 years of age or demented.27
In the instant case, it was clearly established that appellant committed an act of sexual assault on
"AAA" by inserting an instrument or object into her genital. We find it inconsequential that "AAA"
could not specifically identify the particular instrument or object that was inserted into her genital.
What is important and relevant is that indeed something was inserted into her vagina. To require
"AAA" to identify the instrument or object that was inserted into her vagina would be contrary to the
fundamental tenets of due process. It would be akin to requiring "AAA" to establish something that is
not even required by law. Moreover, it might create problems later on in the application of the law if
the victim is blind or otherwise unconscious. Moreover, the prosecution satisfactorily established that
appellant accomplished the act of sexual assault through his moral ascendancy and influence over
"AAA" which substituted for violence and intimidation. Thus, there is no doubt that appellant raped
"AAA" by sexual assault.
Appellants contentions are untenable.
The failure of "AAA" to mention that her panty was removed prior to the rape does not preclude
sexual assault. We cannot likewise give credence to the assertion of appellant that the crime of rape
was negated by the medical findings of an intact hymen or absence of lacerations in the vagina of
"AAA". Hymenal rupture, vaginal laceration or genital injury is not indispensable because the same is
not an element of the crime of rape.28 "An intact hymen does not negate a finding that the victim was
raped."29 Here, the finding of reddish discoloration of the hymen of "AAA" during her medical
examination and the intense pain she felt in her vagina during and after the sexual assault
sufficiently corroborated her testimony that she was raped.
Likewise undeserving of credence is appellants contention that his wife merely instigated "AAA" to
file the charge of rape against him in retaliation for his having confronted her about her illicit affair
with another man. This imputation of ill motive is flimsy considering that it is unnatural for appellants
wife to stoop so low as to subject her own daughter to the hardships and shame concomitant with a
prosecution for rape, just to assuage her hurt feelings.30 It is also improbable for appellants wife to
have dared encourage their daughter "AAA" to publicly expose the dishonor of the family unless the
rape was indeed committed.31
Penalty
Under Article 266-B of the RPC, the penalty for rape by sexual assault is prision mayor. However,
the penalty is increased to reclusion temporal "if the rape is committed by any of the 10
aggravating/qualifying circumstances mentioned in this article". The Information alleged the
qualifying circumstances of relationship and minority. It was alleged that appellant is the father of
"AAA". During the pre-trial conference, the parties stipulated that "AAA" is the daughter of

appellant.32 During trial, appellant admitted his filial bond with "AAA".33 "Admission in open court of
relationship has been held to be sufficient and, hence, conclusive to prove relationship with the
victim."34
With respect to minority, however, the Information described "AAA" as a 7-year old daughter of
appellant. While this also became the subject of stipulation during the pre-trial conference, same is
insufficient evidence of "AAAs" age. Her minority must be "proved conclusively and indubitably as
the crime itself".35 "There must be independent evidence proving the age of the victim, other than the
testimonies of prosecution witnesses and the absence of denial by the accused."36 Documents such
as her original or duly certified birth certificate, baptismal certificate or school records would suffice
as competent evidence of her age.37 Here, there was nothing on record to prove the minority of
"AAA" other than her testimony, appellants absence of denial, and their pre-trial stipulation.38 The
prosecution also failed to establish that the documents referred to above were lost, destroyed,
unavailable or otherwise totally absent.39
It is settled that "when either one of the qualifying circumstances of relationship and minority is
omitted or lacking, that which is pleaded in the information and proved by the evidence may be
considered as an aggravating circumstance."40 As such, appellants relationship with "AAA" may be
considered as an aggravating circumstance.
In view of these, the imposable penalty is reclusion temporal which ranges from twelve (12) years
and one (1) day to twenty (20) years. Applying the Indeterminate Sentence Law, the penalty next
lower in degree is prision mayor which ranges from six (6) years and one (1) day to twelve (12)
years. Hence, a penalty of twelve (12) years of prison mayor, as minimum, to twenty (20) years of
reclusion temporal, as maximum, is imposed upon appellant.
Damages
In line with prevailing jurisprudence, the awards of P50,000.00 as civil indemnity, P50,000.00 as
moral damages and P25,000.00 as exemplary damages are each modified to P30,000.00.41 "AAA" is
also entitled to an interest on all the amounts of damages awarded at the legal rate of 6% per annum
from the date of finality of this judgment until fully paid.42
WHEREFORE, the December 29, 2006 Decision of the Court of Appeals in CA-G.R. CR-H.C. No.
01442 is AFFIRMED with MODIFICATIONS. Accused-appellant Benjamin Soria y Gomez is found
guilty beyond reasonable doubt of the crime of rape by sexual assault and is sentenced to suffer the
penalty of twelve (12) years of prison mayor, as minimum, to twenty (20) years of reclusion temporal,
as maximum. He is also ordered to pay "AAA" the amounts of P30,000.00 as civil indemnity,
P30,000.00 as moral damages, and P30,000.00 as exemplary damages. "AAA" is entitled to an
interest on all damages awarded at the legal rate of 6% per annum from the date of finality of this
judgment until fully paid.
SO ORDERED.
MARIANO C. DEL CASTILLO
Associate Justice
WE CONCUR:
ANTONIO T. CARPIO
Associate Justice
Chairperson

ARTURO D. BRION
Associate Justice

JOSE PORTUGAL PEREZ

Associate Justice

ESTELA M. PERLAS-BERNABE
Associate Justice
ATTESTATION
I attest that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Courts Division.
ANTONIO T. CARPIO
Associate Justice
Chairperson
CERTIFICATION
I certify that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Courts Division.
MARIA LOURDES P. A. SERENO
Chief Justice

Footnotes
CA rollo, pp. 83-96; penned by Associate Justice Vicente Q. Roxas and concurred in by
Associate Justices Josefina Guevara Salonga and Apolinario D. Bruselas, Jr.
1

Records, pp. 76-81; penned by Judge Romeo F. Zamora.

"The identity of the victim or any information which could establish or compromise her
identity, as well as those of her immediate family or household members, shall be withheld
pursuant to Republic Act No. 7610, An Act Providing for Stronger Deterrence And Special
Protection Against Child Abuse, Exploitation And Discrimination, And for Other Purposes;
Republic Act No. 9262, An Act Defining Violence Against Women And Their Children,
Providing For Protective Measures for Victims, Prescribing Penalties Therefor, And for Other
Purposes; and Section 40 of A.M. No. 04-10-11-SC, known as the Rule on Violence against
Women and Their Children, effective November 5, 2004." People v. Dumadag, G.R.
No.176740, June 22, 2011, 652 SCRA 535, 538-539.
3

Records, p. 1.

Id.

Id. at 4.

Id. at 76-81.

Id. at 79.

Id. at 79-80.

10

Id. at 81.

11

CA rollo, pp. 83-96.

12

Id. at 95-96.

13

Id. at 21.

14

People v. Brioso, G.R. No. 182517, March 13, 2009, 581 SCRA 485, 493.

15

People v. Abulon, G.R. No. 174473, August 17, 2007, 530 SCRA 675, 702.

16

Id.

17

Jurado v. Suy Yan, 148 Phil. 677, 686 (1971).

Provincial Fiscal of Nueva Ecija v. Court of First Instance of Nueva Ecija, 79 Phil. 165, 168
(1947).
18

19

People v. Felan, G.R. No. 176631, February 2, 2011, 641 SCRA 449, 453-454.

20

Id. at 453-454, citing People v. Javier, 370 Phil. 128, 139 (1999).

21

People v. Sumingwa, G.R. No. 183619, October 13, 2009, 603 SCRA 638, 652.

22

People v. Brioso, supra note 14 at 495.

23

Records, unpaginated; TSN, February 10, 2003, pp. 3-4.

24

Id., id. at 4-5. Emphases supplied.

25

Id., id. at 8.

26

Id.; TSN, July 30, 2002, p. 5.

27

Reyes, Luis B., The Revised Penal Code, Book Two, Seventeenth Edition, p. 557.

28

People v. Valenzuela, G.R. No. 182057, February 6, 2009, 578 SCRA 157, 169-170.

29

People v. Tampos, 455 Phil. 844, 858 (2003).

30

People v. Palgan, G.R. No. 186234, December 21, 2009, 608 SCRA 725, 731.

31

Id. at 731-732.

32

Records, p. 14.

33

Id.; TSN, October 22, 2003, p. 3.

34

People v. Padilla, G.R. No. 167955, September 30, 2009, 601 SCRA 385, 397.

People v. Albalate, Jr., G.R. No. 174480, December 18, 2009, 608 SCRA 535, 546, citing
People v. Manalili, G.R. No. 184598, June 23, 2009, 590 SCRA 695, 716.
35

36

Id., citing People v. Tabanggay, 390 Phil. 67, 91 (2000).

37

People v. Padilla, supra at 397-398.

38

Id. at 398.

39

Id.

People v. Hermocilla, G.R. No. 175830, July 10, 2007, 527 SCRA 296, 304-305, citing
People v. Esperanza, 453 Phil. 54, 75-76 (2003).
40

41

People v. Alfonso, G.R. No. 182094, August 18, 2010, 628 SCRA 431, 452.

42

People v. Flores, G.R. No. 177355, December 15, 2010, 638 SCRA 631, 643.

The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION
BRION, J.:
I DISSENT as I believe that the prosecution has not proven beyond reasonable doubt that appellant
Benjamin Soria is guilty of rape through sexual assault under Article 266-A, paragraph 2 of the
Revised Penal Code, as amended.
As my discussions below will show, the appellant should be acquitted of this crime on grounds of
reasonable doubt, and should instead be convicted of the lesser crime and included crime of acts of
lasciviousness -the crime that, under the available evidence, has been proven beyond reasonable
doubt.
The Antecedents:
The evidence for the prosecution showed that in the afternoon of February 26, 2000, AAA1 and her
siblings ate the spaghetti that their father (the appellant) brought home for merienda. The records
also show that after AAA finished eating, the appellant went on top of her and removed her
clothes.2 AAA felt pain in her breasts and in her stomach; she also felt that "something" had been
inserted into her private part. When AAA told the appellant that she felt pain in her private part, the

latter apologized to her and then left the room. The incident was allegedly witnessed by BBB, who
told AAA that it was the appellants "bird" that had been inserted into her vagina. AAA reported the
incident to her aunt, CCC, who told her that the appellant was a bad person. CCC accompanied
AAA to the hospital when AAAs vagina started to bleed. AAA also informed her mother what the
appellant did to her. Thereafter, AAA was committed to the care and custody of the Department of
Social Welfare and Development.
The prosecution charged the appellant with the crime of rape under Article 266-A of the Revised
Penal Code, as amended, in relation to Republic Act No. 7610, before the Regional Trial Court
(RTC), Branch 94, Quezon City. In its judgment3 of June 30, 2005, the RTC found the appellant
guilty beyond reasonable doubt of the crime of rape by sexual intercourse,4 and it imposed the death
penalty. It also ordered him to pay the victim the amounts of P75,000.00 as civil indemnity,
P50,000.00 as moral damages, and P25,000.00 as exemplary damages.
On appeal, the Court of Appeals (CA) affirmed the RTC judgment with the following modifications:
(1) the appellant was found guilty of simple rape only; (2) the death penalty was reduced to reclusion
perpetua; and (3) the amount of civil indemnity was reduced to P50,000.00.5
The ponencia affirmed the CA decision with the following modifications: (1) the appellant is found
guilty of rape through sexual assault under Article 266-A, paragraph 2 of the Revised Penal Code,
as amended; (2) he is sentenced to suffer the indeterminate penalty of twelve
(12) years of prision mayor, as minimum, to twenty (20) years of reclusion temporal, as maximum;
and (3) on his liability for damages (a) the amount of civil indemnity is reduced from P50,000.00 to
P30,000.00; (b) the amount of moral damages is reduced from P50,000.00 to P30,000.00; (c) the
amount of exemplary damages is increased from P25,000.00 to P30,000.00; and (d) the appellant is
ordered to further pay the victim interest on all damages awarded at the legal rate of 6% per annum
from the date of finality of the judgment until fully paid.
The Dissent:
I clarify at the outset that I agree with the ponencias conclusion that the appellant cannot be
convicted of rape by sexual intercourse under Article 266-A, paragraph 1 of the Revised Penal
Code, as amended. The prosecution failed to establish beyond reasonable doubt the element of
carnal knowledge.
My opposition stems from the ponencias finding that the appellant should be convicted of rape
through sexual assault under Article 266-A, paragraph 2 of the Revised Penal Code, as amended.
Under Article 266-A, paragraph 2 of the Revised Penal Code, as amended, rape through sexual
assault is committed "by any person who, under any of the circumstances mentioned in paragraph 1
hereof, shall commit an act of sexual assault by inserting his penis into another person's mouth or
anal orifice, or any instrument or object, into the genital or anal orifice of another person."6
In the present case, there is no admissible evidence to show that the appellant inserted his penis
into AAAs mouth or anal orifice, or any instrument or object into the victims genital or anal orifice. In
her testimony, AAA merely "felt" that something had been inserted in her private part, as a result of
which, she felt pain. To be sure, had there been any testimony that it was the appellants "bird" that
had been inserted into her vagina, the appellants conviction for rape by sexual intercourse under
Article 266-A, paragraph 1 should have followed. No such testimony, however, was ever given; AAA
merely admitted that her brother BBB told her it was the appellants bird that had been inserted. This
testimony, of course, is clearly hearsay; BBB was never presented in court to testify.

On the basis of this evidence, the ponencia holds that while it had not been clearly established that it
was the appellants penis that had been inserted into AAAs vagina, it cannot be denied that the
appellant "inserted an object" into the victims female organ. The ponencia based its conclusion on
the following circumstances: (a) AAA "experienced pain when the appellant inserted something in
her vagina";7 and (b) Dr. Francisco Supe, Jr. testified that the victims hyperemic hymen could have
been caused by an object being "rubbed" on her private part.
I find the ponencias reasoning and conclusion seriously flawed.
First, it is a dangerous proposition to equate AAAs testimony of pain in her private part with rape; it
is the insertion of an instrument or object into the victims genital or anal orifice, not pain, that
constitutes rape through sexual assault. Thus, the victims testimony should, at the very least, have
mentioned that the appellant inserted an object or instrument in her vagina or anal orifice or she
should have testified on circumstances that would lead us to reasonably conclude that the appellant
inserted an instrument or object into her genital or anal orifice. As earlier stated, AAA merely felt
pain; it was BBB who told her that it was the appellants "bird" that had been inserted into her vagina.
At most, AAA merely "assumed" that something had been inserted into her vagina. This is what the
totality of her testimony implied.
Significantly, the records bear out that the appellant removed only AAAs clothes, and not her
underwear, during the incident. To directly quote from the records:
FISCAL BEN DELA CRUZ:
Q: So you said you wanted to explain something about your father, what was that?
AAA:
A: What he did, sir.
Q: What is that?
A: I was raped, sir.
Q: What did he do when you said he raped you?
A: He laid on top of me, sir.
Q: Did you have your dress on when he did that?
A: Yes, sir.
Q: What about your underwear? Did you have your underwear on?
A: Yes, sir.
Q: He did not remove any of your clothes?
A: Only my clothes, sir.8 (emphasis ours)

This circumstance makes the insertion of an object or instrument into the victims genital highly
improbable. Considering that AAA also testified that she felt pain in her breasts and stomach when
the appellant went on top of her, it is not far-fetched that the pain she felt in her private part could
have been caused by the appellants weight being pressed against her whole body, and it was not
due to the insertion of an object into her vagina.
Second, Dr. Supes Medico-Legal Report and court testimony did not support the ponencias
conclusion that the appellant inserted an object or even his penis into AAAs vagina. Dr. Supe
testified that he conducted a medical examination on AAA on March 3, 2000, and made the following
findings:
GENERAL AND EXTRA-GENITAL: Fairly developed, fairly nourished and coherent female child.
Breasts are undeveloped. Abdomen is flat and soft.
GENITAL: There is absent growth of pubic hair. Labia majora are full, convex, and coaptated with
light brown labia minora presenting in between. On separating the same, disclosed an elastic, fleshy
type, hyperemic and intact hymen. Posterior fourchette is sharp.
CONCLUSION: The subject is in virgin state physically. There are no external signs of application of
any form of physical trauma.9 (emphasis ours)
According to Dr. Supe, a hyperemic hymen is the result of the application of friction, such as
scratching, on the hymen. Dr. Supe further stated that the insertion of an object could result to a
hyperemic hymen if this object was "rubbed." For clarity and precision, I quote the relevant portions
of Dr. Supes testimony:
ASSISTANT CITY PROSECUTOR BEN DELA CRUZ:
Q: Doctor, with respect to Exhibit A, the Medico-Legal Report pertaining to the entry on the genital,
which reads: On separating the hymen, disclosed an elastic, fleshy-type, hyperemic and intact
hymen. Will you please tell us, Doctor, what is this hyperemic hymen?
DR. FRANCISCO SUPE, JR.:
A: Hyperemic hymen, sir, means that at the time of the examination, I found out that it was reddish in
color.
Q: Considering that the age of the child or the patient, the victim whom you examined at that time
which was about 6 years old, will you be able to tell us, Doctor, what could have caused this type of
injury, because this is an injury to the hymen?
A: Hyperemic, sir, is observed whenever there is friction applied to an area, such as in the form of
scratching.
Q: What about insertion of an object, would this result into hyperemic hymen?
A: If the object is being rubbed, sir, there is a possibility.
Q: A finger would produce that kind of injury?
A: Possible, sir.

xxxx
ATTY. JOSEPH SIA:
Q: The friction that caused the hyperemic hymen would be caused by other activities of the child, like
for example playing or bicycle riding?
DR. SUPE, JR:
A: If there is a friction, it is possible.10 (emphases ours)
Clearly, there was no categorical declaration by Dr. Supe that an instrument or object had been
inserted into the victims private part. Notably, Dr. Supe also declared that the victims other
activities, like playing of riding a bicycle, could lead to a hyperemic hymen if friction had been applied
on the area. The prosecution thus failed to establish the medical basis for a finding of rape through
sexual assault.
Finally, I point out that Dr. Supe found AAA to be in a "virgin state physically";11 he also found her
hymen to be intact. I am not unmindful of the oft-repeated doctrine that an intact hymen does not
necessarily preclude a finding that the victim had been raped. However, when the prosecutions
evidence fails to establish with moral certainty all the elements necessary to consummate the crime
of rape, a finding by the medico-legal officer that the victim is in a "virgin state," and that her hymen
is intact, suffices to cast doubt on the appellants culpability.
In rape cases, the prosecution bears the primary duty to present its evidence with clarity and
persuasion, to the end that conviction becomes the only logical and inevitable conclusion. "The
freedom of the accused is forfeited only if the requisite quantum of proof necessary for conviction be
in existence. This, of course, requires the most careful scrutiny of the evidence for the State, both
oral and documentary, independent of whatever defense is offered by the accused. Every
circumstance favoring the accused's innocence must be duly taken into account. The proof against
the accused must survive the test of reason. Strongest suspicion must not be permitted to sway
judgment. The conscience must be satisfied that on the accused could be laid the responsibility for
the offense charged."12
Lewd or Lascivious Conduct Proven
Notwithstanding the prosecution's failure to prove the appellant's guilt for rape, I take the view that
sufficient evidence exists to convict him of acts of lasciviousness under Article 336 of the Revised
Penal Code. A charge of acts of lasciviousness is necessarily included in a complaint for rape. "The
elements of acts of lasciviousness are: (1) that the offender commits any act of lasciviousness or
lewdness; (2) that it is done under any of the following circumstances: (a) by using force or
intimidation, (b) when the offended woman is deprived of reason or otherwise unconscious; or (c)
when the offended party is under twelve (12) years of age; and (3) that the offended party is another
person of either sex."13
"Lewd is defined as obscene, lustful, indecent, or lecherous. It signifies that form of immorality
related to moral impurity, or that which is carried on a wanton manner."14 In Sombilon, Jr. v.
People,15 the Court explained this concept as follows:
The term "lewd" is commonly defined as something indecent or obscene; it is characterized by or
intended to excite crude sexual desire. That an accused is entertaining a lewd or unchaste design is

necessarily a mental process the existence of which can be inferred by overt acts carrying out such
intention, i.e., by conduct that can only be interpreted as lewd or lascivious. The presence or
absence of lewd designs is inferred from the nature of the acts themselves and the environmental
circumstances.
The evidence in the present case established that the appellant went on top of AAA, and removed
her clothes. The appellant only stopped when the victim told him that she felt pain in her private part.
To my mind, the appellants acts of mounting her very own daughter, and then removing her clothes,
showed lewdness that constitutes acts of lasciviousness. These acts are clearly indecent and
inappropriate; it undeniably demonstrates the appellants gross moral depravity.
In light of these considerations, I maintain that - on grounds of reasonable doubt - the appellant
should be acquitted of the crime of rape through sexual assault unde1 Article 266-A, paragraph 2 of
the Revised Penal Code, as amended. He should instead be convicted of the lesser and included
crime of acts of lasciviousness as the evidence on record shows the presence of all the elements of
this crime.
ARTURO D. BRION
Associate Justice

Footnotes
1

See our ruling in People v. Cabalquinto, 533 Phil. 703 (2006).

There is nothing in the transcript of stenographic notes that supports the ponencia's
narration that AAA went in the bedroom to rest after eating.
2

Penned by Judge Romeo F. Zamora; CA rollo, pp. 39-44.

Qualified by relationship and minority.

Penned by Associate Justice Vicente Q. Roxas, and concurred in by Associate Justices

Josefina Guevara Salonga and Apolinario D. Bruselas, Jr.; rollo, pp. 2-15.
5

Underscoring ours.

Ponencia, p. 11.

TSN, February 10, 2003, pp. 3-4.

Ponencia, p. 3.

10

TSN, July 30, 2002, pp. 5-6.

11

Records, p. 4.

12

See People v. Fabito, G.R. No. 179933, April 16, 2009, 585 SCRA 591, 614.

People v. Poras, G.R. No. 177747, February 16, 2010, 612 SCRA 624, 645, citing People
v. Mingming, G.R. No. 174195, December 10, 2008, 573 SCRA 509, 534-535.
13

14

Ibid., citing People v. Lizada, 444 Phil. 67 (2003).

15

G.R. No. 175528, September 30, 2009, 601 SCRA 405, 414.