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J.

Angelino, a Filipino, is a transgender who underwent gender reassignment and had implants in
different parts of her body. She changed her name to Angelina and was a finalist in the Miss Gay
International. She
came back to the Philippines and while she was walking outside her home, she was abducted by Max and
Razzy who took her to a house in the province. She was then placed in a room and Razzy forced her to
have sex with him at knife's point. After the act, it dawned upon Razzy that Angelina is actually a male.
Incensed, Razzy called Max to help him beat Angelina. The beatings that Angelina received eventually
caused her death. What crime or crimes, if any, were committed? Explain. (5%) (2016 BAR)

SUGGESTED ANSWER:

Razzy is liable for kidnapping with homicide. Abducting Angelino is not forcible abduction since the
victim in this crime must be a woman. Gender reassignment will not make him a woman within the
meaning of Art. 342 of the RPC. There is no showing, moreover, that at the time of abduction is
committed with lewd design; hence, his abduction constitutes illegal detention. Since Angelino was killed
in the course of the detention, the crime constitutes kidnapping and serious illegal detention with
homicide under Art. 267.

Having sexual intercourse with Angelino is not rape through sexual intercourse since the victim in this
crime must be a woman. This act is not rape through sexual assault either, Razzy did not insert his penis
into the anal orifice or mouth of Angelino or an instrument or object into the latter’s anal orifice or genital
orifice, hence this act constitutes acts of lasciviousness under Art. 336. Since the acts of lasciviousness is
committed by reason or on occasion of kidnapping, it will be integrated into one and indivisible felony of
kidnapping with homicide (People v. De Leon, GR No. 179943, June 26, 2009; People v. Jugueta, GR
No. 202124, April 05, 2016; People v. Laog, GR No. 178321, October 5, 2011; People v. Larranaga,
138874-75, February 3, 2004).

Max is liable for kidnapping with homicide as an accomplice since he concurred in the criminal design of
Razzy in depriving Angelino his liberty and supplied the former material aid in an efficacious way by
helping him beat the latter.

K. During the nationwide transport strike to protest the phase out of old public utility vehicles, striking
jeepney drivers Percy, Pablo, Pater and Sencio, each armed with guns, hailed several MMDA buses then
providing free transport to the stranded public to stop them from plying their routes. They later on
commandeered one of the buses without allowing any of the passengers to alight, and told the driver to
bring the bus to Tanay, Rizal.

Upon reaching a remote area in Tanay, Percy, Pablo, Pater and Sencio forcibly divested the passengers of
their cash and valuables. They ordered the passengers to leave thereafter. Then, they burned the bus.
When a tanod of the barangay of the area came around to Intervene, Pater fired at him, instantly killing
him.

After Percy, Pablo, Pater and Sencio were arrested, the police authorities recommended them to be
charged with the following crimes, to wit: (1) carnapping; (2) robbery, (3) direct assault with homicide;
(4) kidnapping; and (5) arson.

State your legal opinion on the recommendation of the police authorities on the criminal liabilities
incurred by Percy, Pablo, Pater and Sencio. (10%) (2017 BAR)

SUGGESTED ANSWER:
The accused should only be charged with kidnapping and arson.
Carnapping and Robbery are not proper because there was no intent to gain. Direct assault with
homicide is not correct because a tanod is not considered as a person in authority.

Kidnapping is proper because there was unlawful deprivation of the liberty of the passengers as
well as the driver of the bus when the bus driver was directed to bring the bus to a remote area in Tanay
without allowing any of the passengers to alight. This is simple kidnapping as none of the ingredients for
serious kidnapping is present in the case.

Arson is also proper. The act of the 4 accused amount to destructive arson punished under Art.
320(3) of the RPC because a locomotive, devoted to transportation or conveyance for public use was
burned.

L. Braulio invited Lulu, his 11-year old stepdaughter, inside the master bedroom. He pulled out a knife
and threatened her with harm unless she submitted to his desires. He was touching her chest and sex
organ when his wife caught him in the act. The prosecutor is unsure whether to charge Braulio for acts of
lasciviousness under Art. 336 of the RPC; for lascivious conduct under RA 7610 (Special Protection
against Child Abuse, Exploitation and Discrimination Act); or for rape under Art. 266-A of the RPC.
What is the crime committed? Explain. (5%) (2016 BAR)

SUGGESTED ANSWER:

The acts of Braulio of touching the chest and sex organ of Lulu, who is under 12 years of age, are merely
acts of lasciviousness and not attempted rape because intent to have sexual intercourse is not clearly
shown (People v. Banzuela, GR No. 202060,11 December 2013). To be held liable of attempted rape, it
must be shown that the erectile penis is in the position to penetrate (Cruz v. People GR no. 166441, 8
October 2014) or the offender actually commenced to force his penis into the victim’s sexual organ
(People v. Banzuela, supra).

The same acts of touching the chest and sex organ of Lulu under psychological coercion or influence of
her stepfather, Braulio constitutes sexual abuse under Sec. 5 (b) of RA No. 7610 (People v. Optana, GR
No. 133922, 12 February 2001).

Since the requisites for acts of lasciviousness under Art. 336 of the RPC are met, in addition to the
requisites for sexual abuse under Sec. 5 of RA No. 7610, and the victim is under 12 years of age,

Braulio shall be prosecuted for acts of lasciviousness under the RPC but the penalty imposable is that
prescribed by RA No. 7610 (Amployo v. People, GR No. 157718, 26 April 2005). Under Sec. 5 (b) of RA
No. 7610, when the victim (child subjected to sexual abuse) is under 12 years of age, the perpetrators
shall be prosecuted (for acts of lasciviousness) under Art. 336 of the RPC, provided, that the penalty for
lascivious conduct when the victim is under 12 years of age shall be reclusion temporal in its medium
period.