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A LAW EACH DAY (Keeps Trouble Away) By Jose C. Sison (The Philippine

Star) | Updated July 22, 2015 - 12:00am

Under the amended Revised Penal Code (Article 266-A), there are already two
modes of committing the crime: by sexual intercourse and by sexual assault. This
case of Fredo is an illustration of committing rape by sexual assault.

Fredo is a tricycle driver who has three daughters:  Nita who is 9 years old, Lita,
15 years old and Lina, already of age with a husband applying for overseas
employment. Fredo’s wife is usually out of the house to help in earning the
family’s daily bread. So most of the time when Fredo goes home only Nita and
Lita are in their house.

One afternoon when Lita was only Grade 6, Fredo teased her by jokingly
touching her breast and the private parts of her body including her organ. And
the following day he asked her to massage his body when he was only wearing
his under wear. Eventually, he started inserting his finger into her female organ
and stoked the external surface thereof with his organ. It turned that that he also
used to touch the sexual organ of her younger sister Nita sometime in the
morning or afternoon even before this particular incident when their mother was
away. According to Lita, she did not report the incidents right away because she
was afraid that her father might kill them since he owned a pamalo and a gun. 
But one time when Lina their eldest sister went back to their house, Lita confided
everything to her.

It turned out that Lina had also been raped by Fredo and begot a child. But for
reasons of her own she did not file charges. And so when she learned about
what happened to her sisters she lost no time anymore in reporting the matter to
PNP Women and Children Protection Desk of their town and the Municipal Social
Welfare Officer.

Lita and Nita reiterated the above incidents involving the father Fredo in their
affidavits taken by Police Officer 3 (PO3) Ana and Social Welfare Officer Delia.
The Municipal Health Officer also conducted a physical examination of Lita who
found “no evident injury at the time of the exam nor was there any discharge
found” although at the end he noted that “the medical examination does not
exclude sexual abuse.”

Thus Fredo was charged with the crime of rape against Lita and acts of
lasciviousness against Nita before the Regional Trial Court (RTC) of their
province. The prosecution presented Lita, the PO3 Ana SWO Delia and the
medico legal officer who examined her.

For his defense, only Fredo testified and claimed that while detained, Lina
allegedly visited him and confided to him that she merely urged her sisters to file
complaints against him to extort money from him in order to fund her husband’s
overseas job application. He also alleged that Lina took particular advantage of
Lita’s resentment against him because of his strict attitude towards dating, so he
said that according to Lina herself when she visited him, the complaints of Lita
and Nita were fabrications.

 But after trial the RTC found Fredo guilty of rape by sexual assault on Lita,
although it acquitted him of the crime of acts of lasciviousness against Nita. The
RTC gave credence to Lita’s testimony because it was delivered in a categorical,
straightforward, spontaneous and frank manner. On the other hand, Fredo’s
defense was unsupported by evidence. The RTC also stated that while the
medico legal report did not contain any finding of injury, the same is not
necessary to prove the commitment of rape. So he was sentenced to suffer
imprisonment of 9 years as minimum,  to 14 years and 1 day up to 17 years and
four months as maximum and pay  civil indemnity and moral damages of
P50,000 each as well as P25,000 exemplary damages. This was affirmed by the
Court of Appeals which even increased the penalty imposed to reclusion
perpetua and the civil indemnity to P75,000 because the crime committed was
qualified by the fact that Fredo was the father and Lita was below 18 years.

Fredo contested the findings of guilt beyond reasonable doubt by the RTC and
the CA. He contended that the prosecution failed to prove the elements of the
crime of rape because the witnesses presented gave inconsistent testimonies
and the medico legal report does not support the finding of rape. Was Fredo
correct?
No. The Supreme Court ruled that the credibility of the witnesses is a question
best addressed by the trial court which has the opportunity to observe their
demeanor while testifying. And when the appellate court affirms this finding, with
more reason should it be binding on this court. In majority of rape cases only the
offended party’s testimony is available. In this case, Lita affirmed her affidavit in
open court where she narrated what started out as innocent teasing that
escalated into her father inserting his finger into her organ.

While she admitted that Fredo did not insert but just pointed his penis into her
organ, he is still guilty of rape, because rape is committed not only by sexual
intercourse but also by sexual assault like inserting his finger into her minor
daughter’s female organ. The RTC and the CA is therefore correct in finding
Fredo guilty of rape. But the penalty should be 9 years of as minimum, to 14
years, 8 months and 1 day of reclusion temporal as maximum which is the
penalty imposed by Article 266-B of the RPC is the crime committed is qualified
by the circumstance that the victim is under 18 years and the assailant is her
father (People vs. Salvador, G.R. 207815, June 22, 2015).