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RAPE AND THE SWEETHEART THEORY:

(1) People v. Olesco, G.R. No. 174861, April 11, 2011 "In rape, the sweetheart defense must be proven by compelling evidence: first, that the accused and the victim were
lovers; and, second, that she consented to the alleged sexual relations. The second is as important as the first,
because this Court has held often enough that love is not a license for lust."
xxxx
"The sweetheart theory or sweetheart defense is an oft-abused justification that rashly derides the intelligence of
this Court and sorely tests our patience. For the Court to even consider giving credence to such defense, it must be
proven by compelling evidence. The defense cannot just present testimonial evidence in support of the theory, as in
the instant case. Independent proof is required -- such as tokens, mementos, and photographs.
(2) People v. Gahi, G.R. No. 202976, February 19, 2014 For the [sweetheart] theory to prosper, the existence of the supposed relationship must be proven by convincing
substantial evidence. Failure to adduce such evidence renders his claim to be selfserving and of no probative value.
For the satisfaction of the Court, there should be a corroboration by their common friends or, if none, a
substantiation by tokens of such a relationship such as love letters, gifts, pictures and the like.
(3) Dumadag v. People, G.R. No. 176740, June 22, 2011
Appellants claim that they are lovers is untenable. For one, such claim was not substantiated by the evidence on the
record. The only evidence adduced by appellant were his testimony and those of his relatives Boyet and Nieves
Irish. According to Boyet, he knows of their relationship because they were conversing and writing each other while
Nieves Irish saw them once walking in the street. To the mind of the Court, these are not enough evidence to prove
that a romantic relationship existed between appellant and AAA. . . .
HOW WOULD SUCH ROMANTIC RELATIONSHIP BE PROVEN? Intimacies such as loving caresses,
cuddling, tender smiles, sweet murmurs or any other affectionate gestures that one bestows upon his or her lover
would have been seen.
. . . . . In People v. Napudo where the accused likewise invoked the sweetheart defense, this Court held that:
[T]he fact alone that two people were seen seated beside each other, conversing during a jeepney ride, without more,
cannot give rise to the inference that they were sweethearts. Intimacies such as loving caresses, cuddling, tender
smiles, sweet murmurs or any other affectionate gestures that one bestows upon his or her lover would have been
seen and are expected to indicate the presence of the relationship.
FOR SWEETHEART DEFENSE TO BE CREDIBLE WHAT OTHER PROOF MAY SUFFICE? Some
documentary or other evidence of relationship [such as notes, gifts, pictures, mementos] and the like.
SUPPOSE APPELLANT AND THE ALLEGED VICTIM WERE INDEED SWEETHEARTS, CAN THERE
STILL BE RAPE? Yes. A man can employ violence upon her fiancee on the pretext of love.
Besides, even if it were true that appellant and AAA were sweethearts, this fact does not necessarily negate rape.
Definitely, a man cannot demand sexual gratification from a fiance and worse, employ violence upon her on the
pretext of love. Love is not a license for lust. But what destroyed the veracity of appellants sweetheart defense
were the credible declaration of AAA that she does not love him and her categorical denial that he is her
boyfriend.
(4) People v. Baldo, G.R. No. 175238, February 24, 2009
The "sweetheart theory" or "sweetheart defense" is an oft-abused justification that rashly derides the intelligence of
this Court and sorely tests our patience. For the Court to even consider giving credence to such defense, it must be
proven by compelling evidence. The defense cannot just present testimonial evidence in support of the theory, as in
the instant case. Independent proof is required -- such as tokens, mementos, and photographs. There is none
presented here by the defense.
(5) People v. Arivan, G.R. No. 176065 April 22, 2008 -

Similarly, it must be stressed that the absence of spermatozoa in the private complainants sex organ does not
disprove rape. It could be that the victim washed or urinated prior to her examination, which may well explain the
absence of spermatozoa.
(6)People v. Aycardo, G.R. No. 168299 October 6, 2008
No sane girl would concoct a story of defloration, allow an examination of her private parts and subject herself to
public trial or ridicule if she has not, in truth, been a victim of rape, and thus impelled to seek justice for the wrong
done to her. The weight of her testimony may be countered by physical evidence to the contrary, or indubitable proof
that the accused could not have committed the rape, but in the absence of such countervailing proof, the testimony
shall be accorded utmost value.
(7) People v. Salidga, 513 SCRA 306
A woman raped in a state of unconsciousness would not be able to narrate her defloration during that state, and her
violation may be proved indirectly by other evidence.
The prosecution, at all times, bears the burden of establishing an accuseds guilt beyond reasonable doubtno
matter how weak the defense may be, it is not and cannot be the sole basis of conviction if, on the other hand, the
evidence for the prosecution is even weaker; The accused may offer no more than a feeble alibi but the Court is
enjoined to proclaim him innocent in light of insufficient evidence proving his guilt.
(8) People vs. Batiancila, 513 SCRA 434
Defense cannot just present testimonial evidence in support of the theory that the accused and the victim were
sweethearts, independent proof is necessary such as tokens, mementos, and photographs.
(9) People vs. Oliquino, 517 SCRA 579
For defense of sweetheart theory to prosper, it should be substantiated by some documentary or other evidence of
the relationshiplike mementos, love letters, notes, pictures and the like.
(10) People vs. Moran, Jr., 517 SCRA 714
In cases where the victim could not testify on the actual commission of the rape because she was rendered
unconscious at the time the crime was perpetrated, the Revised Rules on Evidence sanctions the courts to rule on the
basis of circumstantial evidence.
(11) People vs. Suyat, 518 SCRA 582
In rape cases specifically, the credibility of the complaint is of paramount importance as oftentimes her testimony,
when it satisfies the test of credibility, may be the sole basis for an accuseds conviction.
The rule is that when a rape victims testimony is straightforward and candid, unshaken by rigid cross-examination
and unflawed by inconsistencies or contradictions in its vital points, the same must be given full faith and credit.
(12) People vs. Dadulla, 519 SCRA 48
The sweetheart defense is effectively an admission of carnal knowledge of the victim and consequently places on
the accused the burden of proving the alleged relationship by substantial evidence.
(13) People vs. Durano, 519 SCRA 466
Rape is committed when the accused has carnal knowledge of the victim by force or intimidation and without
consent.
When the testimony of a rape victim is simple and straightforward, unshaken by rigorous cross-examination and
unflawed by any serious inconsistency or contradiction, the same must be given full faith and creditwhen a
woman says that she has been raped, she says in effect all that is necessary to show that rape has been committed.
Physical evidence of bruises or scratches eloquently speaks of the force employed upon the rape victim.
Behavioral psychology teaches that people react to similar situations dissimilarly.

(14) People vs. Bejic, 525 SCRA 488


In determining the quilt or innocence of the accused in cases of rape, the victims testimony is crucial in view of the
intrinsic nature of the crime in which only two persons are normally involved.
(15) People vs. Castro, 529 SCRA 800
Judges must free themselves of the natural tendency to be overprotective of every woman decrying her having been
sexually abused, and demanding punishment for the abuser.
(16) People vs. Abulon, 530 SCRA 675
When a rape victims testimony, however, is straightforward and marked with consistency despite grueling
examination, it deserves full faith and confidence and cannot be discarded.
(17) People vs. Hapin, 531 SCRA 224
The sweetheart theory is effectively an admission of carnal knowledge of the victim and consequently places on
the accused the burden of proving the supposed relationship by substantial evidenceto be worthy of judicial
acceptance, such a defense should be supported by documentary, testimonial, or other evidence.
(18) People vs. San Antonio, Jr., 532 SCRA 411
The sweetheart defense is a much-abused defense that rashly derides the intelligence of the Court and sorely tests
its patienceto be worthy of judicial acceptance, such a defense should be supported by documentary, testimonial
or other evidence.
(19) People vs. Ceballos, Jr., 533 SCRA 493
In rape cases, the credibility of the victim is almost always the single most important issue.
(A) POSSIBLE ARGUMENT OF THE DEFENSE:
(1) People v. Olesco, G.R. No. 174861, April 11, 2011 "In rape, the sweetheart defense must be proven by compelling evidence: first, that the accused and the victim were
lovers; and, second, that she consented to the alleged sexual relations. The second is as important as the first,
because this Court has held often enough that love is not a license for lust."
xxxx
For the Court to even consider giving credence to such defense, it must be proven by compelling evidence. The
defense cannot just present testimonial evidence in support of the theory, as in the instant case. Independent proof is
required -- such as tokens, mementos, and photographs.
(2) Dumadag v. People, G.R. No. 176740, June 22, 2011
HOW WOULD SUCH ROMANTIC RELATIONSHIP BE PROVEN? Intimacies such as loving caresses,
cuddling, tender smiles, sweet murmurs or any other affectionate gestures that one bestows upon his or her lover
would have been seen.
FOR SWEETHEART DEFENSE TO BE CREDIBLE WHAT OTHER PROOF MAY SUFFICE? Some
documentary or other evidence of relationship [such as notes, gifts, pictures, mementos] and the like.
(3) People v. Arivan, G.R. No. 176065 April 22, 2008 Similarly, it must be stressed that the absence of spermatozoa in the private complainants sex organ does not
disprove rape. It could be that the victim washed or urinated prior to her examination, which may well explain the
absence of spermatozoa. [ASSUMING THAT THE MEDICAL CERTIFICATE IS ADMISSIBLE,
COMPLAINANT STATED IN HER AFFIDAVIT-COMPLAINANT THAT UPON ARRIVING HOME, SHE
IMMEDIATELY BATHED AND SCRUBBED HER BODY OVER AND OVER AGAIN, THUS, IT MAY BE
POSSIBLE THAT NO SEMEN WAS FOUND ON HER ORIFICE AFTER ALL WHICH IS CONTRARY TO THE
MEDICAL EXAM. HEHE.]

(4) People vs. Bejic, 525 SCRA 488


In determining the quilt or innocence of the accused in cases of rape, the victims testimony is crucial in view of the
intrinsic nature of the crime in which only two persons are normally involved. [WE MUST ATTACK THE
CREDIBILITY OF THE COMPLAINANT TO PROVE THAT SHE IS LYING.]
(5) People vs. Castro, 529 SCRA 800
Judges must free themselves of the natural tendency to be overprotective of every woman decrying her having been
sexually abused, and demanding punishment for the abuser.
(6) People vs. Ceballos, Jr., 533 SCRA 493
In rape cases, the credibility of the victim is almost always the single most important issue. [AGAIN, ATTACKING
THE CREDIBILITY OF THE COMPLAINANT]
(7) People v. Ricamora, G.R. No. 168628, December 6, 2006
It would be the height of incredulity for live-in partners between a young lady and a middle age man to display for
others to see their intimate moments for even married husband and wife will normally seek a place where they are
alone together to perform their romantic encounters secure from possible prying eyes. [WE CAN ARGUE THAT
THE COMPLAINANT AND THE ACCUSED SOUGHT TO HAVE THEIR ROMANTIC MOMENT IN A
BEDROOM PRECISELY BECAUSE THEY WANTED PRIVACY AND A SENSE OF DECENCY.]
(8) WE CAN ALSO ARGUE ON A REVERSE PSYCHOLOGY EFFECT, THUS: It is true that being
sweethearts, the man has no right to have sexual intercourse with the woman against her will, for being sweethearts
per se does not prove consent to the sexual act. It is also true that ordinarily, no sane girl would fabricate a story of
defloration, allow an examination of her private parts and subject herself to public trial or ridicule if she has not, in
truth, been a victim of rape. To these, the defense agrees to the highest degree, for rape indeed is not just an act
strictly prohibited by law but foremost, a moral evil that cannot and can never be countenanced. Rape should be
condemned for it has no place in our civilized society. As rational individuals with moral decency, we should not act
in a manner that is below human standards. Rape in whatever form is rape; it is wrong and definitely unjust.
As for two young individuals who have fallen in love with each other, it is somehow difficult for them to resist that
urge to spend a moment of romance together. Love, indeed, works in a mysterious way. For sweethearts who are
deeply and passionately in love with each other, the call of nature forces them to surrender. What can we do?
Humans, after all, are not only rational but sexual beings as well. Do we have the right to prohibit lovers from
engaging in romantic moments? Provided, of course that no legal incapacity exists for them to be together. This is
especially true if both sweethearts are already of legal age and are about to obtain their college diplomas. These
circumstances would indicate that they know what they are doing and the consequences of their acts.
Now then, should we punish them for their private act of purely romantic engagement? Should we persecute them
for their act of loving each other? We do not think so! For who are we to do that? We are sure that everyone in this
room has reached that point in his or her life of being romantically involved with another person. Love is a gift that
we humans cannot really control. Should we criminalize a young man who gave in to sexual desires with his
girlfriend, who in the first place, gave her unconditional and unblemished consent? A young man with a credibility
and family reputation to protect, a gentleman who has a wonderful life ahead of him, do you think he would have
surrendered himself to his girlfriend if he knew all along that in the end, he will be accused of a morally
unacceptable action? No rational gentleman would consent to having carnal knowledge with a woman, whom he is
deeply in love with, if he will be charged of rape afterwards. Clearly, no gentleman would destroy his reputation for
mere sexual lust.
The very gentleman who is now accused of having committed rape against his sweetheart, do you think that he is
indeed guilty of the crime charged? If there is one thing that he is guilty of, that is, he fell in love with a young
woman whom he pursued for quite sometime. Is that a crime? Definitely not! Otherwise, all of us should have been
sent already to prison for falling in love. The accused herein cannot and should not be held guilty for he never
committed rape! The romance that had transpired between the parties herein is purely consensual arising from
passion. Consensual for the lady complainant through her letters and text messages has repeatedly conveyed to the
gentleman accused that she is ready to consummate their romantic relationship. Thus, on that fateful day, after
having some drinking spree, the two lovers indeed had carnal knowledge. But this happened only after the

gentleman had repeatedly verified from his girlfriend if she is in fact consenting to such act. Since the girlfriend had
given her unconditional confirmation of her willingness to have carnal knowledge with the gentleman, the latter had
agreed to do it. Unfortunately, due to fear of parental rejection, not to mention being disowned and disinherited, the
complainant herein instituted this action after her parents forced her to do so. This is a classic case of a young
woman who was caught in the middle of having to choose between her parents, on one hand, and her boyfriend, on
the other hand. As she does not want to disobey her parents and commit further acts that would infuriate them, she
has to file a complaint for rape against her innocent boyfriend.
Given these circumstances and the pieces of evidence already presented, ladies and gentlemen, members of the jury,
and to this honourable court, who is now the real victim in this case? [THIS CAN BE MADE PART OF THE
CLOSING SPEECH.]
(B) POSSIBLE ARGUMENTS OF THE PROSECUTION:
(1) People v. Olesco, G.R. No. 174861, April 11, 2011 It is well-settled that being sweethearts does not negate the commission of rape because such fact does not give
appellant license to have sexual intercourse against her will, and will not exonerate him from the criminal charge of
rape. Being sweethearts does not prove consent to the sexual act."
(2) Dumadag v. People, G.R. No. 176740, June 22, 2011
SUPPOSE APPELLANT AND THE ALLEGED VICTIM WERE INDEED SWEETHEARTS, CAN THERE
STILL BE RAPE? Yes. A man can employ violence upon her fiancee on the pretext of love.
Besides, even if it were true that appellant and AAA were sweethearts, this fact does not necessarily negate rape.
Definitely, a man cannot demand sexual gratification from a fiance and worse, employ violence upon her on the
pretext of love. Love is not a license for lust. But what destroyed the veracity of appellants sweetheart defense
were the credible declaration of AAA that she does not love him and her categorical denial that he is her
boyfriend.
(3) People v. Baldo, G.R. No. 175238, February 24, 2009
Moreover, even if it were true that they were sweethearts, a love affair does not justify rape. As wisely ruled in a
previous case, a man does not have the unbridled license to subject his beloved to his carnal desires.
AAAs failure to shout or to tenaciously resist appellant should not be taken against her since such negative assertion
would not ipso facto make voluntary her submission to appellants criminal act. In rape, the force and intimidation
must be viewed in the light of the victims perception and judgment at the time of the commission of the crime. As
already settled in our jurisprudence, not all victims react the same way. Some people may cry out, some may faint,
some may be shocked into insensibility, while others may appear to yield to the intrusion. Some may offer strong
resistance while others may be too intimidated to offer any resistance at all. Moreover, resistance is not an element
of rape. A rape victim has no burden to prove that she did all within her power to resist the force or intimidation
employed upon her. As long as the force or intimidation is present, whether it was more or less irresistible is beside
the point. In this case, the presence of a fan knife on hand or by his side speaks loudly of appellants use of violence,
or force and intimidation.
(4) People v. Arivan, G.R. No. 176065 April 22, 2008 Similarly, it must be stressed that the absence of spermatozoa in the private complainants sex organ does not
disprove rape. It could be that the victim washed or urinated prior to her examination, which may well explain the
absence of spermatozoa.
(5)People v. Aycardo, G.R. No. 168299 October 6, 2008
No sane girl would concoct a story of defloration, allow an examination of her private parts and subject herself to
public trial or ridicule if she has not, in truth, been a victim of rape, and thus impelled to seek justice for the wrong
done to her. The weight of her testimony may be countered by physical evidence to the contrary, or indubitable proof

that the accused could not have committed the rape, but in the absence of such countervailing proof, the testimony
shall be accorded utmost value.
(6) People vs. Pangilinan, 518 SCRA 358
This Court has held time and again that testimonies of rape victims who are young and immature deserve full
credence, considering that no young woman, especially of tender age, would concoct a story of defloration, allow an
examination of her private parts, and thereafter pervert herself by being subject to a public trial, if she was not
motivated solely by the desire to obtain justice for the wrong committed against her.
The delay and initial reluctance of a rape victim to make public the assault on her virtue is neither unknown nor
uncommon.
(7) People vs. Suyat, 518 SCRA 582
For the conviction of rape, it is not necessary that the same be supported by medical findings of injuries as proof of
injuries is not an essential element of the crime.
(8) People vs. Dadulla, 519 SCRA 48
The failure to shout or offer tenacious resistance does not make voluntary the victims submission to the criminal act
of the offender.
(9) People vs. Durano, 519 SCRA 466
Resistance is not an element of rape as rape could be perpetrated through the use of force or intimidation.
Behavioral psychology teaches that people react to similar situations dissimilarly.
A sweetheart cannot be forced to have sex against her willdefinitely a man cannot demand sexual gratification
from a fiance and, worse, employee violence upon her on the pretext of love.
(10) People vs. Gregorio, Jr., 523 SCRA 216
The failure of the victim to immediately report the rape is not necessarily an indication of a fabricated charge.
(11) People vs. Cornelio, 523 SCRA 419
The silence of a victim of rape or her failure to disclose her misfortune to the authorities without loss of material
time does not prove that her charge is baseless and fabricatedit is not uncommon for young girls to conceal for
some time the assault on their virtues because of the rapists threat on their lives, more so when the offender is
someone whom she knew and who was living with her.
(12) People vs. Bejic, 525 SCRA 488
Rape victims do not cherish keeping in their memory an accurate account of the manner in which they were sexually
violatederrorless recollection of a harrowing experience cannot be expected of a witness, especially when she is
recounting details from an experience so humiliating and painful as rape.
(13) People vs. dela Cruz, 529 SCRA 109
It is not necessary that the force and intimidation employed to commit rape to be so great of such character as could
not be resisted because all that is required is that it be sufficient to consummate the purpose which the accused had
in mind.
It is instinctive for a young woman, unmarried woman to protect her honor and thus difficult to believe that she
would fabricate a tale of defloration, allow the examination of her private parts, reveal her shame and permit herself
to be the subject of a public trial if she had not really been ravished.
(14) People vs. Cabierte, 529 SCRA 311
The victims character in rape is immaterial.
It is not unusual for a rape victim to conceal the incident at least momentarily.

(15) People vs. Miranda, 529 SCRA 399


There is no uniform behavior that can be expected from those who had the misfortune of being sexually molested.
(16) People vs. Castro, 529 SCRA 800
The fact that the private complainant did not resist or attempt or flee or shout for help does not negate force or
intimidation.
(17) People vs. San Antonio, Jr., 532 SCRA 411
Failure of the victim to shout or offer tenacious resistance does not make voluntary the victims submission to the
criminal acts of the accusedthere is no standard form of reaction for a woman, much more a minor, when facing a
shocking and horrifying experience such as a sexual assault.
It is well-settled that proof of physical injuries sustained by reason of resistance to the sexual attacker is not an
essential element of the crime of rapeit is enough to show that the appellant did succeed in having sexual
intercourse with the complainant against her will.
The act of the complainant in filing a complaint against the accused, few hours after the rape incident happened, can
be regarded as an indication of a truthful narration that indeed, she was raped by the accused; Testimonies of childvictims are given full faith and credit, since when a girl says she has been raped, she says in effect all that is
necessary to show that rape was indeed committed.
(18) People vs. Biyoc, 532 SCRA 528
No woman would openly admit that she was raped and consequently subject herself to an examination of her private
parts, undergo the trauma and humiliation of a public trial and embarrass herself with the need to narrate in detail
how she was raped unless she was in fact raped.
(19) People vs. Balonzo, 533 SCRA 760
The law does not impose a burden on the rape victim to prove resistance.
(20) People vs. Soriano, 534 SCRA 140
When the victims testimony is corroborated by the physicians findings of penetration, then there is sufficient
foundation to conclude the existence of the essential requisite of carnal knowledge.
A man does not have an unbridled license to subject his beloved to his carnal desires.
(21) People vs. Fernandez, 535 SCRA 159
Rape is committed by having carnal knowledge of a woman who is deprived of reason or otherwise unconscious
thus, there is rape where the woman was unconscious as when she was asleep when the carnal act was
accomplished.
(22) People vs. Tuazon, 537 SCRA 494
The hesitance of the victim in reporting the crime to the authorities is not necessarily an indication of a fabricated
charge, and this is especially true where the delay can be attributed to the pattern of fear instilled by the threats of
bodily harm made by a person who exercises moral ascendancy over the victim.
(23) People vs. Aguilar, 540 SCRA 509
The crying of a victim during her testimony is eloquent evidence of the credibility of the rape charge with the verity
borne out of human nature and experience. [HENCE, THE ACCUSED SHOULD ALSO CRY IN OPEN COURT
TO SHOW THAT HE IS SINCERE AND INNOCENT.]
(24) People vs. Ela, 541 SCRA 508
The eloquent testimony of the victim, coupled with the medical findings attesting to her non-virgin state, should be
enough to confirm the truth of the charges.

I INCLUDED THESE CASES BECAUSE THE FACTS ARE INTERESTING AND WE MAY
USE THE SAME FOR OUR ARGUMENTS AND GUIDELINE:

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,v. SILVINO SALARZA,


JR., Accused-Appellant. (G. R. No. 117682, August 18, 1997)

BELLOSILLO, J.:
DEATH, the punishment in extremis, was imposed on Silvino Salarza Jr. for rape. We now
review his conviction.

Zareen Smith, British, was 30, single, a television and stage actress. Sometime in 1994, she
came to the Philippines and chose Boracay in Aklan and Port Barton in Palawan for her
vacation retreats. In Port Barton, she met Enrico de Jesus, Filipino, 26, caretaker of Elsa's
Place, a resort owned by his parents. Soon enough a mutual attraction developed between
them which ripened into an intense love affair that they would have sex almost every night.

On 30 April 1994, Enrico brought Zareen to Mary's Cottage in Sitio Sabang, Bgy.
Cabayugan, and introduced her to his granduncle, Rogelio Maraon, and grandaunts, Nenita
Maraon and Maria Ausan, who collectively owned and managed the resort. Enrico and
Zareen occupied Cottage No. 1. They spent the day at the beach where they drank and
swam. They were later joined in by Enrico's friend Silvino Salarza, Jr., a tourist guide, a
press relations officer and a fisherman.

In the evening Enrico and Zareen went to Sabang Centro together with Silvino, Julio Morales
and a certain Tonton to attend a dance. The dance however was canceled so they proceeded
to Coco Grove Restaurant and drank a bottle of rhum. Zareen did not drink as she preferred
red wine which was not available. At eleven o'clock the group returned to Mary's Cottage
where Enrico awakened his grandaunt Nenita and ask her for two (2) more bottles of rhum,
after which, they went back to the beach and continued drinking. This time Zareen opted for
a bottle of beer. After a while Zareen said she felt tired and sleepy so she excused herself
and retired to the cottage. She was accompanied by Enrico who left her there to sleep. Back
at the beach Enrico asked his friends to go spearfishing. Although Silvino went with them he
later returned to the beach because he could not stand the cold and was feeling dizzy. From
this point on, the prosecution and the defense presented varying versions.

According to the prosecution, at two o'clock in the morning of 1 May 1994 Zareen woke up
when she felt somebody take off her underwear. [1] The room was dark as the resort
management switched off the lights at ten o'clock. Zareen said she did not stop the man
from removing her panties as she thought it was Enrico, her boyfriend, and she was halfasleep. The man in turn removed his briefs and placed himself on top of her, spread her
legs, penetrated her and executed push-and-pull movements. Later, the man softly
whispered: "Zareen, it's not Ricky; it's Jun. I love you." According to Zareen, when she
heard those words, she pushed him aside. She cried and became hysterical. She went to the
bathroom and washed herself, at the same time telling Silvino, "Why? Why did you do that
to me? You have ruined everything. You know that Ricky and I are trying to have a baby of
our own, what will happen now? I might get impregnated by what you did to me." Silvino,
however, assured her that pregnancy was out of the question as he did not ejaculate.

Maria Ausan heard Zareen cry so she awakened Nenita. Thinking that Enrico was forcing
himself on Zareen, Nenita went near Cottage No. 1 and pleaded, "Rico, please naman, kung
ayaw huwag mong pilitin." But she did not enter the cottage. At this moment she noticed a
lighted petromax approaching. It was Enrico with Julio and Tonton coming from the beach.
Enrico hurriedly walked to the cottage. He saw Silvino coming out. At once he assumed that
Silvino must have molested Zareen. Upon nearing Silvino, Enrico punched him even before
Zareen could narrate what happened to her. Rogelio Maraon and Julio Morales then
reported the incident at the police station and Patrolmen Eleazar and Rodillo immediately
responded.

On the other hand, Silvino claims that it was Zareen who was flirting with him. His version is
that while at Coco Grove Restaurant, whenever Enrico was not looking, Zareen would
whisper to him and place her arm on his shoulder. She would talk to him about her stay in
Boracay with her sister Lucila and the men she met there. In turn, he spoke to her about his
former girlfriends. When Enrico invited him to go spearfishing he went with the group but
after a while he returned to the beach saying he was feeling cold and dizzy having imbibed
one too many. He even stumbled and fell on the sand. As a result, he got sand all over his
body so he proceeded to the public restroom for a shower. On the way to get his t-shirt and
cigarettes he saw Zareen lying on the hammock. She asked him for a cigarette and insisted
that he take his shower inside her cottage instead of the public restroom which was about a
hundred meters away. He hesitated for a while but finally acceded.

After emerging from his shower he was surprised to see Zareen on the bed. She pulled him
towards her and asked him to make love to her. She embraced him tightly and kissed him
lustfully. He was surprised with the turn of events and felt uncomfortable because of Enrico

whom he did not wish to offend, much less betray, so he pushed her away. In her
exasperation she shouted, "Sh---t you, you are stupid!" Then she rushed to the bathroom
and washed herself. He heard the voice of Nenita Maraon coming from outside Cottage
No. 1 calling for Enrico and inquiring what was happening, apparently thinking it was her
grandnephew with Zareen having a lover's quarrel. So Silvino answered, "This is not Ricky,
Tiyay, this is me, Jun." He informed her that he had just taken his shower inside. While
Silvino and Nenita were talking, Zareen was simply keeping quiet. As he went out of the
cottage he met Enrico on the way. Nenita shouted, "Jun, Ricky is coming, you're dead!" True
enough Enrico boxed Silvino. Tonton and Julio ganged up on him, beat him, poured pepper
on his body and pulled him towards the river. Fearful that they would eventually kill him,
Silvino crawled towards the coconut grove and upon reaching the road leading to Sabang
Centro he walked to the police station to lodge his complaint. On his way, he met Policemen
Eleazar and Rodillo. Rodillo brought him to the police station while Eleazar continued his way
towards Mary's Cottage to conduct an investigation.

But the trial court was not persuaded by Silvino's story. It pronounced him guilty of rape
and imposed upon him the supreme penalty of death. The court threw out his declaration
that Zareen had been flirting with him earlier and was the one who even proposed that they
engage in sex that night. It found incredible that Zareen would fall for Silvino and substitute
him for Enrico, rationalizing that Zareen was 30 years old, Enrico 26, and Silvino already 35,
and that Enrico was 5'8" tall, handsome, with a well-shaped face and nose, while Silvino
was not generously endowed and standing only at 5'2". Besides, it argued that a woman
would not charge a person with the heinous crime of rape if it were not true, for she would
not allow the examination of her private parts and subject herself to a public trial which are
both embarrassing if her accusation was merely fabricated. It quoted People v.
Selfaison, [2] where it was held that it was difficult to believe that the complainants, who
were young and unmarried, would tell a story of defloration, allow the examination of their
private parts and thereafter permit themselves to be a subject of a public trial if they were
not motivated by an honest desire to have the culprits apprehended and punished.
Obviously the court did not find it pertinent that Zareen was already 30, a stage and
television actress, by her admission had several boyfriends in the past with whom she had
sexual relations, and was possessed with a vigorous appetite for sex as she was indulging in
intercourse with Enrico almost every night without benefit of marriage.

Quite interestingly, the Information alleges that Silvino had carnal communication with
Zareen while she was asleep, with the use of force, against her will and without her consent.

We do not find the facts substantiating the Information. We must acquit.

Under Art. 335 of the Revised Penal Code, as amended by Sec. 11, R. A. 7659, rape is
committed by having carnal knowledge of a woman under any of the following
circumstances: (a) by using force or intimidation; (b) when the woman is deprived of reason
or otherwise unconscious; and, (c) when the woman is under twelve (12) years of age or is
demented. The facts of this case do not by any means show the existence of any of these
circumstances; thus we cannot see how the trial court have convicted and, worse,
sentenced the accused to die.

First, the complaining witness was not below twelve (12) years of age at the time of the
alleged commission of the offense. She was already thirty (30) years old. Neither was she
demented.

Second, the Information avers use of force but the evidence negates any use of force, nay,
not even intimidation, in the commission of the offense charged. In fact, as discussed
hereunder, the sexual advances of the accused were done with the consent of the
complaining witness although she claimed she thought that the man who laid with her was
her boyfriend Enrico. Here it may be argued that consent to the sexual act was given by
Zareen only because of her erroneous belief that the man on top of her was Enrico, thus
implying that had she known it was someone else she would have resisted.

The explanation is not persuasive. The evidence shows that this mistake was purely a
subjective configuration of Zareen's mind an assumption entirely contrived by her. Our
impression is that Silvino had nothing to do with the formulation of this belief; he did
nothing to mislead or deceive Zareen into thinking that he was Enrico. In fact, Silvino
precisely, and confidently, told her, "Zareen, it's not Ricky; it's Jun. I love you." It is thus
obvious that whatever mistake there was could only be attributable to Zareen and her
inexcusable imprudence and to nobody else. Clearly, the fault was hers. She had the
opportunity to ascertain the identity of the man but she preferred to remain passive and
allow things to happen as they did. Silvino never used force on her and was even most
possibly encouraged by the fact that when he pulled down her panties she never objected;
when her legs were being parted she never objected; and, when he finally mounted her she
never objected. Where then was force?

Third, Zareen was not deprived of reason or otherwise unconscious when the accused had
intercourse with her. Her lame excuse was that she was half-asleep. However she admitted
that in the early morning of 1 May 1994 she woke up to find someone removing her
underwear. Thuswise, it cannot be said that she was deprived of reason or unconscious. She
knew, hence, was conscious, when her panties were being pulled down; she knew, hence,

was conscious, when her legs were being parted to prepare for the sexual act; she knew,
hence, was conscious, when the man was pulling down his briefs to prepare himself likewise
for the copulation; she knew, hence, was conscious, when the man mounted her and lusted
after her virtue. Her justification was that she never objected to the sexual act from the
start because she thought that the man was her boyfriend with whom she was having sex
almost every night for the past three (3) weeks as they were getting married and wanted
already to have a baby. In other words, her urge could not wait for the more appropriate
time.

The prosecution would have the accused convicted of rape under its hypothesis that the
complaining witness was half-asleep, ergo unconscious, when the sexual assault took place.
Obviously, it had in mind the doctrine enunciated in 1929 in People v. Corcino, [3] and later
in 1935 in People v. Caballero. [4] These cases, however, do not apply because the
offended parties there were unquestionably fast asleep and not just half-asleep as in the
instant case when the act was perpetrated. Consequently, there was no opportunity for
them to either object or give their consent as they were in deep slumber at the time of the
coition. It was only some time after they woke up that they realized that the men having
sex with them were not their husbands they thought them to be. In convicting the accused,
this Court held, as the trial courts did, that the crime of rape had already been
consummated even before the offended parties woke up from their sleep. In Caballero it
was found that when Consorcia, the offended party, awoke the appellant had already
introduced his organ into her genitals and in fact he was already having sexual intercourse
with her. We mention this fact on account of a certain doubt arising from the offended
party's testimony during the direct examination relative to this detail, but in the attempt of
the attorney for the defense to clarify this point during his cross-examination, the offended
party categorically affirmed that she had been unaware when the appellant introduced his
organ into hers when the offended party awoke, the crime of rape committed by the
appellant was already consummated, having had carnal knowledge with the offended party
while she was unconscious for being asleep. The offended party's consent to the act was
subsequent thereto and it was given on the belief that the man lying with her was her own
husband. (emphasis supplied). [5]

The import of this pronouncement is that it was no longer relevant, much less significant,
that after waking up the offended party continued to have sex with the man she thought
was her husband. Her "consent" to the act was subsequent to the rape, or after the crime
was already committed; the fact that the consent even if only implied was given on the
belief that the man was her spouse, was inconsequential. In the case of Zareen, her
"consent" was given prior to the carnal act, i.e., the act was done because of her passivity,
if not consent.

The record abounds with indicia to discredit the theory of the prosecution that Zareen was
dead drunk when the alleged rape took placed. Having consumed only a small quantity of
rhum during the day, according to her, and a bottle of beer in the evening on a normal pace,
she could not have been so drunk as to be deprived of reason or otherwise rendered
unconscious. When she returned to her cottage she immediately fell asleep as she was tired
and remained so for some time. When she was supposedly molested at around two-thirty
the following morning she must have already been, as we believe she was, in full possession
of her mental and physical faculties. Whatever intoxicating effect the rhum and beer might
have had on her would have already worn off.

Zareen herself claimed that she woke up when she felt someone removing her panties. This
means she was fully conscious when somebody approached her bed, removed her panties,
spread her legs "although not far apart but just enough to get her underwear off," and then
proceeded to perform coital movements with her. Her testimony that she knew that the
"intruder" removed his own briefs; that his penis was already erect; that no effort to
foreplay was made before penetrating her in his first attempt; that the man did not kiss her
nor touch her breasts; that she did not even guide his penis into the trough of her ferminity;
and, that he "pushed-and-pulled" on top of her for approximately less than a minute, all
validate our conviction that she was fully conscious not asleep nor even half-asleep of what
was being done to her from the beginning. She was also aware that there was no light as
the gas lamp inside the cottage was not lighted and the electricity was already shut off.

Most significantly, Zareen was acutely aware of the manner by which Silvino identified
himself "Zareen, it's not Ricky; it's Jun" because she testified that " xxx it was not
preceeded by a question. It was as if Jun wanted to wake me up fully." [6] To repeat, all
these details vividly recalled and recounted by her ineluctably indicate that she was awake
all the time and capable of comprehending the nature of the sexual act and of exercising her
own free will as to yield to or resist a Lothario's libido.

Zareen had known Enrico for three [3] weeks and since then had been making love with him
almost every night. It strains credulity and understanding that she could have mistaken
Silvino for Enrico. Their constant lovemaking and togetherness would have already made
her familiar with the physical attributes of Enrico and accustomed to his fornicating
peculiarities. Zareen even asserted that Enrico was not inclined to sexual intercourse when
drunk and would usually indulge in foreplay before actual copulation. These oddities are
cues which reasonably engender suspicion that the man she was having carnal
communication with was not her lover but someone else. She had the moral responsibility
not only to herself but to society itself to ascertain first the identity of her "ravisher" before
yielding completely to him. It can hardly be said that she was not imprudent, reckless and
irresponsible in giving in to her own sexual impulses. Moreover, being almost a stranger in

the place, Zareen should have been leery of her surroundings especially at night. In this
regard, she should not have left her cottage door unlocked as much as she did leave
pregnable and unshielded the portals of her womanhood.

In People v. Bacalzo, [7] the accused boxed his victim into unconsciousness. When the
victim regained her consciousness she felt the flaccid penis of her ravisher still inside her
vagina and that thereafter he removed his sexual organ. He then warned her not to divulge
what had happened or else she and her family would be killed. Force, which was used to
knock the victim into unconsciousness, was employed before the act was done to ensure its
consummation. In People v. Corcino [8] the complaining witness was totally asleep and
when she woke up the organ of the accused was already inside her genitalia. In People v.
Caballero [9] the victim was fully asleep when the accused had carnal communication with
her, such that when she woke up the crime of rape was already consummated. The same
was true in People v. Inot.[10] In People v. Dayo, [11] the rapist's organ was already in the
vagina of the offended party when she woke up, so she pushed him away and screamed.
But the accused pulled out his revolver and threatened to kill her if she made any further
outcry. She fainted, and the accused continued having sex with her. In fine, in all these
cases raped was already consummated before the offended parties could even exercise their
volition to grant or deny access to erotic consortium.

Under the circumstances we cannot help entertaining serious doubts on the culpability of
the accused. Rape is a charge easy to make, hard to prove and harder to defend by the
party accused, though innocent. Experience has shown that unfounded charges of rape have
frequently been proferred by women actuated by some sinister, ulterior or undisclosed
motive. Convictions for such crime should not be sustained without clear and convincing
proof of guilt. On more than one occasion it has been pointed out that in crimes against
chastity the testimony of the injured woman should not be received with precipitate
credulity. When the conviction depends on any vital point upon her uncorroborated
testimony, it should not be accepted unless her sincerity and candor are free from suspicion.
A little insight into human nature is of utmost value in judging matters of this kind. [12]

But even from the narration of Zareen, the elements of the crime of rape are, regretfully,
miserably wanting. There was no force nor intimidation; Zareen was not deprived of reason
nor otherwise unconscious; and, she was not below twelve nor demented.

WHEREFORE, the decision appealed from is REVERSED and SET ASIDE and accusedappellant SILVINO SALARZA JR. is ACQUITTED of the crime charged; consequently, he is
ordered immediately RELEASED from confinement unless held for some other lawful cause.

LESSON: THE PROSECUTION WILL DELVE INTO THE UNCONSCIOUSNESS OF THE VICTIM
WHICH MAY PROVE THAT THERE WAS NO CONSENT. HOWEVER, WE MAY DISPROVE THIS
BY MAKING IT KNOWN FROM THE VICTIM HERSELF THAT SHE WAS NOT ACTUALLY
UNCONSCIOUS DURING THE ALLEGED RAPE. IN FACT, SHE WAS AN ACTIVE PARTICIPANT
THERETO. SHE GAVE HER PRIOR CONSENT AND CONTINUED CONSENTING BY ACTIVELY
PARTICIPATING IN THE ACT. BASTA, DAPAT LUMABAS NA ALAM NI VICTIM ANG DETAILS NG
EVENT(S). ONCE WE PROVED THAT THE VICTIM WAS CONSCIOUS AND SHE GAVE HER
CONSENT, THEN, THERE IS NO REMAINING ELEMENT OF THE CRIME OF RAPE. ACQUITTED
NA SI ACCUSED. HEHE.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BRYAN FERDINAND DY y LA MADRID and


GIOVAN BERNARDINO y GARCIA, accused-appellants. [G.R. Nos. 115236-37. January 29, 2002]

YNARES-SANTIAGO, J.:

Accused-appellants Bryan Dy and Giovan Bernardino were charged with Rape and Acts of
Lasciviousness in a complaint initiated by Gina Marie Mobley under the following informations:

Criminal Case No. 12600-R:


That on or about the 12th day of January, 1994, in the City of Baguio, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring, confederating and mutually aiding one another, did then
and there willfully, unlawfully and feloniously and taking advantage of the unconscious state of the complainant
who was then under the influence of drugs, have carnal knowledge of the complainant GINA MARIE MOBLEY,
against her will and consent.
CONTRARY TO LAW.

Criminal Case No. 12601-R:


That on or about the 12th day of January, 1994, in the City of Baguio, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, actuated by lust with lewd design and with deliberate intent to satisfy
their lascivious desire, conspiring, confederating and mutually aiding one another, did then and there willfully,

unlawfully and feloniously kiss her, fondle her breast, undress her and insert their fingers into her vagina, who was
then unconscious by reason of the drugs employed on her by the accused, all against her will and without her
consent, thereby inflicting upon the latter moral shock, fright, humiliation, dishonor and besmirched reputation on
the part of the complainant and her family.

The two cases were tried jointly. Accused-appellants refused to be arraigned and enter a plea;
hence, a plea of not guilty was entered on their behalf.

During the trial, the following undisputed facts were established: Complainant Gina Marie Mobley,
together with her companion Helen Kathleen Tennican, both American nationals, were exchange students
at the Chengdu University of Science and Technology in Chengdu, Sichuan, China. Gina was taking up
Biology. Helen was also a Biology major and took Chinese Studies as an additional course. Both were
enrolled at the Pacific Lutheran University at Tacoma, Washington, where Gina was a university scholar.

Having heard of the renowned Filipino hospitality from their Filipino-American friends, Gina and
Helen decided to spend their semestral break in the Philippines. They arrived in the country on January
10, 1994. They stayed overnight in Manila then went to Angeles City the next day. In Angeles City, they
visited a bar and had cocktails, played billiards and went disco dancing.

The following morning, January 12, 1994, they flew over Mt. Pinatubo and viewed the lahar-covered
areas on board an ultralight plane. That afternoon, they were driven from their hotel to the Philippine
Rabbit Bus terminal in Dau, Pampanga, where they were supposed to take a ride to Baguio City. While
waiting for their bus, they went to a Shakeys Pizza Parlor near the terminal.

Gina and Helen took the table near the comfort room. Accused-appellants Bryan and Giovan, who
are brothers-in-law, were seated at the next table. With them was their driver, Rizal. Bryan recognized the
two girls from the Angeles Flying Club, where Gina and Helen rented the ultralight plane. Gina went to
the comfort room. Bryan and Giovan approached Helen and introduced themselves. They invited Helen
to join them at their table, but she declined.

While Brian and Giovan were still talking to Helen, Gina returned. She presumed that Helen knew
them, so she started to talk with the boys. Gina told them they came to the country to see the sights and
that they wanted to experience Filipino hospitality. Since they could hardly hear each other above the din
of the TV, the girls agreed to join them at their table. The girls talked about their plan to go to Baguio City
and Banaue. Bryan and Giovan offered the girls a ride to Baguio City. Gina and Helen talked the matter

between themselves. Eventually they accepted the offer thinking that they could save some
money. Besides, they thought the boys looked nice and trustworthy.

They left Shakeys at 7:30 in the evening and boarded a white 1991 four-door Mitsubishi
sedan. Rizal took the wheel, while Bryan sat at the front passenger seat. Helen, Gina and Giovan stayed
on the back seat, in that order. Before proceeding to Baguio, they stopped at a residential area where
Bryan delivered some papers and picked up some jackets.

On their way to Baguio, they talked about school. The girls told them about their boyfriends, while
Bryan talked about his Italian ex-girlfriend. Rizal and Giovan did not join in the conversation at all. Bryan
asked Gina whether she has taken drugs, but Gina replied that she only drinks alcohol occasionally.

The group arrived in Baguio City at 10:45 in the evening. They proceeded to the house of Bryans
uncle, but shortly afterwards, they left to look for another place to stay. They went to the Terraces Hotel
but found the rates too expensive. Then, they checked the Baden Powell. The girls found the dormitory
style accommodations to their liking and were about to unload their things, when Bryan suggested the
Benguet Pines Tourist Inn, which he said he had already tried and had found to be a very fine hotel.

They checked in at the Benguet Pines Tourist Inn at 11:00 in the evening. They got two rooms on
opposite sides of the corridor on the second floor. After a while, Bryan and Giovan asked the girls out for
some drinks and dancing at the Songs Jazz Bar along Session Road.

The parties versions of the events that followed differed.

According to Gina and Helen, while at the Songs Jazz Bar, Helen drank a margarita, tequila and
blowjob with plenty of water. Gina drank Singaporean sling, blowjob and half a glass of Giovans mai
tai. Bryan drank just one shot of tequila while Giovan drank half a glass of mai tai. They also had
appetizers. Gina and Helen did not feel intoxicated. They just felt warm.

On the other hand, Bryan and Giovan narrate that Helen drank margarita, daiquiri, tequila and blow
job while Gina had Singaporean sling, tequila, blow job and mai tai. Bryan had a bottle of beer and two
shots of tequila while Giovan only drank one bottle of beer. They ordered chicken wings
and kropeck chips.

After the group left Songs Jazz Bar, Ginas and Helens account went as follows:

As they were pulling away, Giovan, who was driving, said that he was thirsty and wanted to buy cola drinks. Gina
agreed to have one (See Exhibit B-2). But Helen declined since she had drank plenty of water already at the
Songs Jazz Bar (Ibid.). Giovan then drove to what the girls called a convenience store because it was open at odd
hours, but which is actually the Kowloon Restaurant, according to the boys. Giovan and Bryan alighted and
returned after some ten minutes with Giovan carrying three plastic cups of Sprite or Seven-Up and Bryan, two cups
and a plastic bag containing Chinese food with small lemons to be squeezed on it. Bryan gave Helen and Gina a cup
each. Since she thought it impolite not to drink what was given her, Helen removed the cover of her cup and sipped
from it as there was no straw, although the cup cover had a hole into which a straw is to be inserted. On the other
hand, Gina did not at first remove the lid of her cup (See Exhibit 4); she just sucked from the hole intended for the
straw (Exhibit 4-B). But later on she took off the cover (Exhibit 4-A) and drunk from the cup.

Meanwhile, as they were drinking their cola drinks, Giovan drove the group to Camp John Hay (should be Club
John Hay) where he told the guards at the gate that they were just going to check on the Clubs billeting rates. They
parked in front of the billeting office. Gina was then about to finish her cola drink when she felt something gritty in
it which stuck into her teeth; they were like small particles. She spat them back into the cup and dumped out the
remaining contents of the cup outside the car and thereafter gave the cup to Giovan who threw it into a trash
can. Gina commented out loud about the gritty substance in her drink and related that in China they often found
strange things in their food. There was no word from the boys. Helen finished her drink and then handed the empty
cup to Giovan who likewise threw it into a trash can.[1]

After leaving Club John Hay, the group returned to their hotel. The girls went on to narrate:

Giovan, Gina, Bryan and Helen, in that order entered. Helen no longer noticed where Rizal was. Giovan directly
proceeded upstairs and stopped on the stair just above the first landing while Gina followed him and stopped on the
first landing. Helen got the keys to their room while Bryan was behind her talking to the desk clerk. Helen tossed
the key to the boys room to Gina who was about seven to ten feet away and the latter, in turn, gave it to
Giovan. Helen also flipped their key to Gina who caught it with one hand. Helen waited for Bryan and they went
upstairs together. Gina was trying to open her and Helens room with difficulty and so the latter got the key from
her and opened the door. Both entered the room briefly and when Helen was still by the doorway, Gina went out
and walked towards the boys room. Gina had no recollection why she did so; all she could recall was that she was
standing inside the boys room.

On the other hand, Helen remembered that one of the boys asked if she had playing cards but he seemed
preoccupied with something else, so she did not make any move to get the playing cards from her bag. Since she

was very tired she entered their (girls) room, took off her contact lenses in the comfort room, put them in her
contacts case and went to bed. Thereupon, she lost her memory. Sometime later, she felt the sensation of wanting to
vomit and ran to the comfort room in panic that she might not get there on time. However, she did not know if she
vomitted. She lost her sense of time and did not know if she ever went back to bed. She had never felt that way
before.

She again regained partial consciousness when she felt being wet on her face and upper chest as though somebody
was touching her with the mouth. She could not tell if her eyes were open but, in any event, she could not see
anyone or anything; she only felt that her personal space was being violated. She curled up like a baby in the womb
and kept on saying, no, until whoever was with her in the room went away. Then, she lapsed into
unconsciousness.

At this time in the boys room, Gina noticed that one of the boys pushed the two beds in the room together. She
walked up to one of the beds and lay down on her belly. Giovan lay alongside her and forcefully kissed her. She
could not call to mind what else happened as she believed she was drugged. She could only remember that Giovan
was trying to take off her pants while she was trying to prevent him by holding on to its elastic waist line. Giovan
was all along kissing her with his tongue in her mouth, lying on top of her and touching her breasts. He inserted his
fingers into her vagina but at this precise moment someone knocked on the door. So, Giovan got up and it was then
that Gina realized that he was completely naked and so was she. He handed the blanket on the bed to her and she
covered her body with it. She saw lights coming from the hallway and heard Giovan say, I think she is
asleep. She could not recall removing them again. When that someone laid on top of her, she found out that it was
Bryan. He placed himself between her legs. She could not recollect if they kissed but she felt his erect penis against
her vaginal opening. She told him that she did not want to have sex; that she was still a virgin. He asked why she
was still a virgin and she replied that she wanted to wait for a husband. More words were in her mind but she could
not speak them out. Bryan told her that he wont put it in. But Gina felt pain in her vagina because his penis was
going into it.

The thought occurred to Gina that if she did not do anything, she knew what was going to happen. It dawned on her
that if she stimulated him in some other way, he might not penetrate her further. So, she slid down and did a fellatio
or oral sex on him. She could not explain her feelings then; to her it was like a nightmare; it was as if she was
observing what was going on and it wasnt really her; she felt like her head was detached from her body. She did the
oral sex for only several seconds because it was as if someone went into the room. Then, she became unconscious.[2]

Again, Bryan and Giovan had a different story:

[F]rom the Songs Jazz Bar they went to Kowloon Restaurant because Bryan was hungry and wanted to eat siomai
and chicken pao with Sprite. Gina and Helen also wanted Sprite while Giovan and Rizal, grape juice and root beer,
respectively. Giovan and Rizal went down to buy all these. They made their orders through a small window

because the main entrance to the restaurant was already closed. They returned with Rizal holding three plastic cups
of Sprite with ice in them and Giovan, root beer and grape juice and two plastic bags containing siomai and chicken
pao. Then, Giovan drove them to John Hay because one of the girls wanted to see the place. That was already past
2:00 oclock in the morning of January 13. They pulled over the premises of the billeting area because Giovan told
the guards at the gate that they would just check on the billeting rates. Giovan went to the billeting office where he
stayed for about ten minutes. In the meantime, those left in the car finished their drinks and Bryan collected the
cups and threw them into a trash can at the farther left side of where they parked. They were at John Hay for less
than 15 minutes. Then, they left for the Benguet Pines Tourist Inn at about 2:00 oclock in the morning of January
13.[3]

As to the events that occurred at the hotel, accused-appellants had this to say:

Bryan, Helen, Gina and Rizal got off the car ahead as Giovan went to park it. Giovan got the key to their room from
the cars glove compartment and picked up the key to the girls room from the backseat of the car because he saw it
lying there. He averred that they did not leave their hotel keys at the front desk when they left for the Songs Jazz
Bar since there was no one there at the time. After giving the girls key to them at the hallway where they were
talking with Bryan, he went to their room followed by Rizal and then Gina. On the other hand, Bryan went with
Helen to the girls room where he borrowed Helens playing cards.

After Bryan had entered the boys room, they joined together the two beds inside and sat on them (Exhibit
8). They taught Gina how to play Russian poker or what is commonly called pusoy for more than thirty
minutes. But Gina never learned the game and so they switched to blackjack. Then, Gina said that she was
hungry. Giovan offered to go out and buy what Gina wanted, to which the latter replied that any food will
do. Giovan left with Rizal. That was already past 4:00 oclock in the morning of January 13. After Giovan had
closed the door, she and Bryan continued playing blackjack. After some ten minutes, Gina put down the playing
cards and said that she just wanted to talk with Bryan. She lay down on her left side facing Bryan with her left hand
supporting her head. Bryan moved up on the bed until his face was on the same level as Ginas. Their heads were
more than a foot but less than two feet away from each other. While they were talking Gina was stroking Bryans
head, maybe six times. Bryan just kept silent as he did not know what to do. On the other hand, Gina was smiling
at him. He then smacked her on the lips. She kissed him back and they started kissing each other. Gina inquired if
he had had sex before and he replied, yes, although it was not true because he was afraid that Gina might laugh at
him if he told the truth that he has no experience in lovemaking. Bryan shot back a similar question to her and she
answered that she has not had sex yet and is still a virgin as she wanted to preserve her virginity for her future
husband. At this point they again kissed each other. Then, Gina asked if Bryan had a condom and the latter said,
none. She remarked that she was worried about AIDS and he told her that he is not afflicted with the
disease. Thereupon, Gina said that if they are to do it, he should not tell it to anyone to which he commented that he
is not the kiss-and-tell type. She then undressed and he did the same. They went back to bed and resumed kissing
each other. Gina went on top of Bryan and then she slid down and kissed the area around his organ and later did a
fellatio on him. After he had climaxed, Gina moved up and wanted to kiss him but he did not react. She then asked
him to enter her and he replied, yes, and touched her breasts. However, he was turned off when, upon feeling her
genitals, his hand was smeared with transparent liquid with something like brown or dark brown or red substance in
it which smelled awful. He concluded that it was menstrual fluid because earlier when they were playing cards

something fell from Ginas jogging pants which he picked up. When he handed it to her, she commented that it was
tampon used for menstruation. He told her that he could not do the act anymore to which she replied, never
mind. They then put back their clothes on. Bryan went to the comfort room where he washed his smeared
hand. When he came out, he saw Gina lying in bed with her eyes closed. He switched off the lights and laid beside
her but he could not sleep. He later on got up and went down to see if Giovan and Rizal had already
arrived. However, the security guard told him that the two had not yet gone back. He returned to their room and,
again, lay down beside Gina. This time he fell asleep. The sun was already somewhat up. He went to the porch to
see if their car was already there and he saw it there. He went down to the car and found both Giovan and Rizal
sleeping inside the car; Rizal on the drivers seat with Giovan beside him.[4]

Giovan claimed that he and Rizal bought food for Gina at the Kowloon Restaurant. When Giovan
returned to the room, however, he found Bryan and Gina sleeping. So he just ate the food that they
bought. He slept in the car with Rizal until Bryan woke them up.

Bryan related to Giovan what had transpired between him and Gina. Giovan teased Bryan that he
might get AIDS. Giovan told Bryan that he would like to go home to his wife. Bryan ordered breakfast,
then the he and Giovan went upstairs to their room. Gina was still there. They asked her if she would like
some breakfast, but she said no.

Bryan and Giovan then got their things and went downstairs. Bryan finished his breakfast. Bryan
told Giovan that they should wait for the girls to wake up before leaving Baguio. They went first to the
driving range at Camp John Hay, but it was full, so they just went back to the hotel. It was 8:00 in the
morning. Bryan wrote his phone number on a piece of paper to give to the girls, since he had promised to
show them around Manila. They went upstairs to the girls room and found Gina there. Both girls were
still sleeping. Bryan roused Gina and asked her if it was alright for them to leave. Gina said,
Yes. Before leaving, Brian left the paper with his phone number.

Gina testified that she passed out after doing oral sex on Bryan. She woke up at 3:00 in the
afternoon feeling groggy and confused. She was shocked to realize what time it was, since she normally
sleeps only seven and a half to eight hours a day. She also felt tired. She could not remember how she
was able to get back to their room. She also felt that her hair, pillow and underwear, which was on the
floor, were wet. She remembered that check-out time at the hotel was at 12:00 noon. She opened her
purse to get money to pay for the room, but found that her US$290.00, P2,000.00, 300 yuan and
US$200.00 travellers check were all missing. Only her US $100.00 travellers check was left. She tried
to wake Helen up but the latter only rolled over.

She got up and went out of the room, but she had difficulty balancing herself. She walked to the
boys room but found that the door was already open and the beddings had been changed. She ran

downstairs and met Hilda, a hotel desk girl, who asked her if she was alright. Gina cried and told her that
she had been robbed. Hilda said she will call the police. Gina returned to their room to wake up Helen
but the latter still did not wake up.

After sometime, Gina again went downstairs and was introduced to five or six members of the
Criminal Investigation Service (CIS). She told them that she was robbed and sexually molested and
narrated to them what had happened. Two CIS agents drove Gina to look for the house of Bryans uncle
but Gina could not find it.

The hotel owner, Mrs. Delos Santos, asked two hotel guests, Mariano Robles, Jr. and Rizza Lao, for
assistance in helping Gina. Together, they went upstairs and found Helen still asleep. She was wearing
black tights and a green sweatsuit. A bra lay on the table. Mrs. Delos Santos tried to wake her up. It
took a while before Helen opened her eyes and gazed around her. Mrs. Delos Santos introduced
Mariano and Rizza. Helen said nothing. Rizza propped her up with a pillow on her back. Helen
appeared sleepy, helpless and unable to move. When Rizza asked her what happened, she just
cried. They thought she was drunk but her breath did not smell of alcohol. Someone brought in a bowl of
soup and Rizza let her sip from it a little at a time. Helen tried to eat it with a spoon but her hands
trembled and she could not put the spoon properly into her mouth. It took her about 30 minutes to finish
the soup.

Mariano and Rizza decided to take Helen for a walk to let her blood circulate. Rizza helped her into
her sandals and pulled her to the side of the bed. Helen tried to stand up but she fell back. Mariano held
her on both arms and pulled her up. He stood on Helens right side, held her right arm with his right hand
and placed his left arm around her waist. Rizza held Helens left arm. Mariano and Rizza tried to move
forward but Helen could not take a single step. Mariano dragged her forward and she made shaky steps.
On the stairway, Mariano had to remind Helen that they were going downstairs. He guided her every
step until they reached the hotel lobby. From the hotel, they walked around Burnham Park for about fifty
(50) minutes to an hour. Everytime they came upon a stairway, Mariano had to instruct Helen how to go
down step by step. Whenever Helen got tired, they sat on a bench. They did this four (4) or five (5)
times. Mariano had to support Helens back every time they sat down on the park benches to prevent her
from falling over.

When they returned to the hotel, they saw Gina. Mariano and Rizza invited the two girls to have
dinner with them. Gina declined. They took Helen to the Barrio Fiesta Restaurant along Session
Road. Again, they had to assist Helen in getting out of Marianos car. At the restaurant, Helen hardly ate.
On the witness stand, Helen recounted that at that time she felt as if the effects of anesthesia was
wearing out. She was disoriented and groggy. She was dizzy and did not feel like waking up. She had
difficulty focusing on a single object. The act of walking was itself an ordeal.

The following morning, Helen still felt groggy and had difficulty concentrating and walking. She and
Gina decided to go to Baguio General Hospital for a urinalysis and pelvic examination. Dr. Mildred Torres
(MOTHER-IN-LAW NI KUYA FLINT ITO AH. HEHE), who conducted the tests, made the following
findings:

Perineal Exam.: Positive erythema at the lateral aspect of vaginal wall. No lacerations; no bleeding
noted.
Internal Exam.: Nulliparous introitus. Vagina admits two fingers with difficulty.
Uterus: small. Adnexae: negative. Bleeding: negative. Discharge: minimal; whitish.
Specimen taken for sperm analysis and gram straining.
Urinalysis and pregnancy test requested.
Result: Pregnancy Test: Negative.
Urinalysis: Epithelial cells: occasional. Amorphous Urates: moderate. Pus cells: 0-3. RBC:0-2
Gram Stain: Smear shows gram (-) reds.
Pus cells:
Epithelial cells: many.
Smear Identification: Negative for sperm cell.

Dr. Torres also found erythema on both the lateral aspects of the inner part of the labia minora which
could have been caused by infection, scratching or insertion of any foreign object into the introitus. Ruling
out infection due to the absence of purulent or yellowish discharge, she supposed that it could have been
caused by scratching or coitus. On cross-examination, she opined that it could also have been caused by
the use of tampon during menstruation. She concluded that no force could have been applied on Ginas
hymen as it did not have any laceration or bleeding.

Gina likewise underwent urinalysis and her urine sample yielded negative of sperm cell. She did not,
however, undergo drug testing as there were no facilities for such anywhere in Baguio City.
The prosecution presented Dr. Francisco Hernandez, a neuro-surgeon, as expert witness to
corroborate Ginas testimony that she was drugged. Dr. Hernandez testified that in the practice of his

profession, he uses sedative-hypnotic drugs belonging to the benzodiazepine family of drugs. According
to him, he uses these drugs as tools, such that whenever he sees a patient, he can form an opinion on
whether he or she has been drugged.

Based on the set of facts provided by the private prosecutor, the entries in Ginas journal and the
transcript of stenographic notes taken during the preliminary examination conducted by the trial court in
the afternoon of January 26 and 27, 1994, Dr. Hernandez opined that Gina and Helen were drugged,
possibly with lorazepam or ativan, which is a benzodiazepine.

The defense presented two expert witnesses to counter Dr. Hernandezs opinion. Dr. Rey San
Pedro, a psychiatrist, opined that Gina and Helen could not have been drugged because they have not
been medically examined for the presence of drugs in their system. Neither were the cups used by Gina
and Helen examined if they were indeed laced with drugs. Instead, the condition described by the girls
based on the documents given by the defense could have been caused by the alcoholic drinks. He
added, though, that while Ginas behavior as described in her journal might have been caused by ativan,
he did not have any basis to conclude the same in much the same way that he concluded that said
behavior was caused by alcohol. He conceded that if ativan were to be taken with alcohol, there would
be a potentiating effect, meaning, that because of the alcohol, the effect of the ativan would last longer or
there would be sedation.

The second expert witness, Dr. Pedro Solis, testified that a person who imbibes alcohol goes through
three stages, namely: (a) stage of excitement; (b) stage of intoxication or the proprioception stage; and (c)
stage of being dead drunk or the toxic stage. On the basis of the statement of facts and documents
provided him by the defense, Gina was only at the first stage, the stage of excitement due to her alcohol
intake for the following reasons: she had the power to coordinate when she caught the room key thrown
to her by Helen with one hand; she could properly walk; and she could properly reason out when she
decided to do oral sex on Bryan in order to avoid sexual intercourse. Dr. Solis explained that the rather
long sleep experienced by Gina and Helen was due to fatigue brought about by their activities the
previous day, their alcohol intake, their youth and the cool ambience of Baguio City.

He said it could not be definitely concluded that the girls were drugged because no drug test was
conducted. He added that mere observance of the clinical symptoms can not be a basis for concluding
that they were drugged. He conceded, though, that ativan and some other benzodiazepines are relatively
new drugs and, as yet, he has had no experience observing its effects except from what he has
read. Like Dr. San Pedro, he stated that if alcohol is ingested with any of the psychotropic drugs like
ativan, a potentiating effect would be produced in the sense that the pharmacologic effect of the drug is
increased.

The trial court gave credence to the version of the prosecution. On March 16, 1994, it rendered a
decision the dispositive portion of which is as follows:

WHEREFORE, the Court hereby finds and declares both the accused BRYAN FERDINAND DY y LA MADRID
and GIOVAN BERNARDINO y GARCIA guilty beyond reasonable doubt of the crimes of rape and acts of
lasciviousness as charged and (a) In Crim. Case No. 12600-R, for rape, DY is sentenced, after appreciating in his favor the privileged mitigating
circumstance of minority and the generic mitigating circumstance of voluntary surrender, to suffer an indeterminate
penalty of EIGHT (8) YEARS of prision mayor, as minimum, to FOURTEEN (14) YEARS and EIGHT (8)
MONTHS of reclusion temporal, as maximum; while BERNARDINO is sentenced, likewise after appreciating in
his favor the mitigating circumstance of voluntary surrender, to suffer an indeterminate penalty of TWELVE (12)
YEARS and ONE (1) DAY of reclusion temporal, as minimum, to TWENTY (20) YEARS and ONE (1) DAY
of reclusion perpetua, as maximum. Both accused are ordered to pay the offended party GINA MARIE MOBLEY
in the amounts of: P50,000.00 for her being raped, P12,195.00 (the equivalent of US$450.00 dollars at the exchange
rate of P27.10 to US$1.00) as actual damages, and P500,000.00 as moral damages, plus costs.
(b) In Crim. Case No. 12601-R, for acts of lasciviousness, DY is sentenced, after applying in his favor the same
mitigating circumstances mentioned above, to suffer a straight penalty of TWO (2) MONTHS of arresto mayor; and
BERNARDINO is sentenced, likewise after applying to him the same mitigating circumstance stated above, to
suffer an indeterminate penalty of TWO (2) MONTHS OFarresto mayor, as minimum, to TWO (2) YEARS and
FOUR (4) MONTHS of prision correccional, as maximum. Both accused shall also indemnify, jointly and
severally, the offended party, GINA MARIE MOBLEY, in the amount of P100,000.00 for and as moral damages,
plus costs.
Both accused shall furthermore pay, jointly and severally, the offended party attorneys fees in the amount of
P100,000.00 in the two cases.
The accused BERNARDINO shall be credited with his preventive imprisonment under the terms and conditions
prescribed in Article 29 in relation to Article 70 of the Revised Penal Code, as amended.
SO ORDERED.[5]

Accused-appellants filed separate appeals. Accused-appellant Bryan Dy assigned the following


errors:
A.

Errors of Law
I. THE DECISION RENDERED BY THE TRIAL COURT SHOULD BE REVERSED AND SET
ASIDE ON THE GROUND THAT NO VALID ARRAIGNMENT TOOK PLACE DURING THE
TRIAL BELOW.

II. EVEN ASSUMING THAT THE PROCEEDINGS BELOW WERE VALIDLY CONDUCTED,
THE TRIAL COURT ERRED IN FINDING ACCUSED-APPELLANT GUILTY OF RAPE AND
OF ACTS OF LASCIVIOUSNESS BECAUSE:
a. THE CHARGE OF ACTS OF LASCIVIOUSNESS SHOULD HAVE BEEN DEEMED
INCLUDED IN THE CHARGE OF RAPE.
b. THE LOWER COURT ERRED IN USING THE TESTIMONY OF DR. PEDRO SOLIS,
THE EXPERT WITNESS FOR THE DEFENSE, GIVEN BY HIM MORE THAN TWENTY
YEARS AGO IN THE CASE OF PEOPLE V. CESAR GUY, 12 C.A. REP. 2nd 258, TO
DISCREDIT THE TESTIMONY GIVEN BY HIM DURING THE TRIAL BELOW.
B. Errors of Fact
III. THE TRIAL COURT ERRED IN FINDING APPELLANT GUILTY OF RAPE BECAUSE:
a. THERE WAS IN FACT NO CARNAL KNOWLEDGE;
b. THE PRIVATE COMPLAINANT WAS NOT DEPRIVED OF REASON OR OTHERWISE
UNCONSCIOUS;
c. THERE WAS NO FORCE OR INTIMIDATION.
IV. THE TRIAL COURT ERRED IN FINDING APPELLANT GUILTY OF ACTS OF
LASCIVIOUSNESS BECAUSE:
a. THERE WAS NO ACT OF LEWDNESS COMMITTED;
b. THE PRIVATE COMPLAINANT WAS NOT DEPRIVED OF REASON OR OTHERWISE
UNCONSCIOUS; and
c. THERE WAS NO FORCE OR INTIMIDATION.
V. THE TRIAL COURT ERRED IN NOT FINDING THAT THE SUBSEQUENT ACTS OF
APPELLANT ARE NOT CONSISTENT WITH THE ACTS OF A PERSON WHO HAD JUST
COMMITTED AN OFFENSE.
VI. THE TRIAL COURT ERRED IN NOT FINDING THAT THE PRIVATE COMPLAINANTS
SUBSEQUENT ACTS AND STATEMENTS MADE AS PART OF THE RES GESTAE SHOW
THAT SHE HAD NOT BEEN MOLESTED.
VII.
THE TRIAL COURT ERRED IN NOT FINDING
COMPLAINANTS CREDIBILITY HAS BEEN IMPEACHED.

THAT

THE

PRIVATE

VIII.
THE TRIAL COURT ERRED IN NOT FINDING THAT THE CREDIBILITY OF THE
OTHER PROSECUTION WITNESSES HAS BEEN IMPEACHED.[6]
Accused-appellant Giovan Bernardino, on the other hand, assigns the following errors:

I. THE TRIAL COURT FAILED TO ACCORD THE CONSTITUTIONAL RIGHTS OF THE


ACCUSED TO DUE PROCESS OF LAW THUS DEPRIVING THEM OF A FAIR TRIAL.
II. THE TRIAL COURT ERRED IN FINDING GIOVAN BERNARDINO GUILTY AS A COCONSPIRATOR IN THE CRIME OF RAPE BECAUSE THERE WAS NO CARNAL
KNOWLEDGE BETWEEN BRYAN DY AND PRIVATE COMPLAINANT.
III. THE TRIAL COURT ERRED IN FINDING GIOVAN BERNARDINO GUILTY AS A COCONSPIRATOR IN THE CRIME OF RAPE BECAUSE NEITHER FORCE NOR
INTIMIDATION WAS EMPLOYED NOR WAS THE PRIVATE COMPLAINANT DEPRIVED
OF REASON OR OTHERWISE UNCONSCIOUS.
IV. THE TRIAL COURT ERRED IN FINDING GIOVAN BERNARDINO GUILTY AS A COCONSPIRATOR IN THE CRIME OF RAPE BECAUSE BRYAN DY LACKED THE
REQUISITE DOLO OR CRIMINAL INTENT TO COMMIT THE SAID INTENTIONAL
FELONY.
V. THE TRIAL COURT ERRED IN CONCLUDING THAT GIOVAN BERNARDINO WAS A COCONSPIRATOR IN THE CRIME OF RAPE BY REASON OF CONSPIRACY OR THAT HE
PARTICIPATED IN ANY WAY IN THE ALLEGED CRIME.
VI. THE TRIAL COURT ERRED IN FINDING GIOVAN BERNARDINO GUILTY OF THE CRIME
OF ACTS OF LASCIVIOUSNESS BEYOND REASONABLE DOUBT.
VII.
THE TRIAL COURT ERRED IN DECLARING THAT THE CRIME ALLEGEDLY
COMMITTED WAS QUALIFIED RAPE, AND IN FAILING TO CREDIT ACCUSEDAPPELLANT GIOVAN BERNARDINO WITH THE MITIGATING CIRCUMSTANCE OF
MINORITY.
VIII.
THE TRIAL COURT ERRED IN ORDERING BOTH ACCUSED-APPELLANTS IN
CRIMINAL CASE No. 12600-R TO PAY THE PRIVATE COMPLAINANT FIFTY THOUSAND
PESOS FOR THE ALLEGED RAPE, ACTUAL AND MORAL DAMAGES PLUS COSTS; AND
IN CRIMINAL CASE No. 12601 TO MORAL DAMAGES PLUS COSTS.[7]

The defense contends that there was no valid arraignment since they were not furnished a copy of
the complaint or information. Moreover, the complaint or information was not read in a dialect or
language known to them. While they waived their right to enter a plea, they claim that they never waived
their right to be informed of the nature and cause of the accusation against them.

Concededly, the right to be informed of the nature and cause of the accusation may not be
waived. Indeed, the defense may waive their right to enter a plea and let the court enter a plea of not
guilty in their behalf. However, it becomes altogether a different matter if the accused themselves refuse
to be informed of the nature and cause of the accusation against them. The defense can not hold
hostage the court by their refusal to the reading of the complaint or information.

The reason proffered by accused-appellants for their refusal to be arraigned, i.e., that to do so would
supposedly constitute a waiver of their right to appeal the resolutions of the prosecutor to the Secretary of
Justice,[8] appears to be specious. Evidently, accused-appellants only wanted the trial court to suspend
the arraignment to enable them to exhaust their remedy of appeal to the Secretary of Justice. However,
accused-appellants had no valid ground to move that their arraignment be held in abeyance, considering
that at that time they had not filed a petition for review of the prosecutors resolution before the
Department of Justice. In Solar Team Entertainment, Inc. v. How,[9] this Court has held that:

Procedurally speaking, after the filing of an information, the court is in complete control of the case and any
disposition therein is subject to its sound discretion. The decision to suspend arraignment to await the resolution of
an appeal with the Secretary of Justice is an exercise of such discretion.
x
x

xxx

It bears stressing that the court is however, not bound to adopt the resolution of the Secretary of Justice since the
court is mandated to independently evaluate or assess the merits of the case, and may either agree or disagree with
the recommendation of the Secretary of Justice. Reliance alone on the resolution of the Secretary of Justice would
be an abdication of the trial courts duty and jurisdiction to determineprima facie case.

As the Solicitor General correctly observed, thus:


x x x [A]ssuming, arguendo, that appellants were not validly arraigned, such defect, if any, was waived when
appellants, without objection, proceeded to trial as if they have been duly arraigned (22 C.J.S. 626). Any
irregularity in an arraignment, such as failure to deliver a copy of the indictment, or to read the same to accused, or
delivering the same to the attorney of the accused, instead of to the accused himself, is waived by failure to object
thereto in the trial court (Ibid., p. 628).
x
x

xxx

It is also important to stress that to nullify the proceedings had before the court a quo would set a dangerous
precedent. For, all that an accused would do is to refuse to be arraigned and then proceed to trial, and if found guilty
would just invoke the absence of arraignment to set aside the proceedings had in the trial court. Such practice would
run counter to the purpose and spirit of our rules of procedure which is: to help achieve an orderly and speedy
disposition of cases.[10]

Nonetheless, accused-appellants were substantially informed of the nature and cause of the
accusation against them when their counsel received a copy of the Prosecutors resolution maintaining
the charge for rape and acts of lasciviousness. [11] The failure to read the complaint or information in a

language or dialect known to them was essentially a procedural infirmity that was eventually nonprejudicial to accused-appellants. Not only did they receive a copy of the information, they likewise
participated in the trial, cross-examined the complainant and her witnesses and presented their own
witnesses to debunk and deny the charges against them. The conduct of the defense, particularly their
participation in the trial, clearly indicates that they were fully aware of the nature and cause of the
accusations against them.

Interestingly, after the arraignment, the defense never brought up the supposed invalidity or defect
thereof. Rather, accused-appellants and their counsel vigorously and fully participated in the trial of the
case.

Accused-appellants are clearly estopped to question the alleged invalidity of or infirmity in their
arraignment. By actively participating in the trial of the case, they have effectively waived whatever
procedural error there was in their arraignment. In short, whatever was the defect in their arraignment
was substantially cured by their own omission and subsequent actions.

Accused-appellants next submit that the crime of acts of lasciviousness should have been absorbed
by the crime of rape.

The Office of the Solicitor General disagreed arguing, thus:


While it may be true that in certain cases, the crime of acts of lasciviousness may be considered absorbed by the
crime of rape, in the instant case, it cannot be so because the two crimes were committed by two different persons
acting in conspiracy. Such being the case, there is no occasion for the application of the procedural rule that one
crime whose elements are identical with another crime is absorbed by the more serious crime. There being
conspiracy, what is applicable is the rule that the crime committed by one conspirator is added to the crime
committed by his co-conspirator and vice-versa. This is so because in conspiracy, the act of one is considered as the
act of the other co-conspirator. In the case under consideration, while appellant Bernardino has committed the crime
of acts of lasciviousness, his co-conspirator appellant Bryan Dy, committed the crime of rape. They are, therefore,
liable for both offenses in view of the presence of conspiracy.

Appellants, in insisting that the crime of acts of lasciviousness should have been absorbed by the crime of rape,
misappreciated the application of Section 5, Rule 120 (when an offense includes or is included in another) of the
Rules on Criminal Procedure and the principle of conspiracy.[12]

The position of the Solicitor General is well-taken. As will be shown hereunder, both accusedappellants acted in conspiracy, especially in their act of offering the girls alcoholic drinks at the Songs
Jazz Bar and in administering drugs in their cola drinks. Under the principle of conspiracy, the act of one
is the act of all. Consequently, Bryan should also be held criminally liable for the acts of lasciviousness
committed by Giovan on Gina, made possible by his convenient absence in the room. Corollarily, Giovan
should be held equally guilty for the rape committed by Bryan.

Accused-appellants dispute the factual findings of rape made by the trial court, arguing that: (1) that
there was no carnal knowledge; (2) complainant was not deprived of reason or otherwise unconscious;
and (3) there was no force or intimidation.

In rape cases, courts are guided by the following principles: (1) to accuse a man of rape is easy, but
to disprove it is difficult though the accused may be innocent; (2) considering that in the nature of things,
only two persons are usually involved in the crime of rape, the testimony of the complainant should be
scrutinized with great caution; and (3) the evidence for the prosecution must stand or fall on its own merit
and not be allowed to draw strength from the weakness of the evidence for the defense. [13]

Accused-appellant Dy insists there was no carnal knowledge between him and complainant. He
avers that the only intimate contact between them consisted merely of Mobleys kissing him, holding his
penis and eventually sucking it, and of him in turn kissing her and placing his fingers in her vagina. [14] He
claims that Dr. Torres and Dr. Solis findings as well as complainants journal confirmed his testimony. Dr.
Torres, in particular, testified that complainants cervix merely showed reddening and irritation indicating
positive erythema at the lateral aspect of the vaginal wall. Said erythema could have been caused by
coitus, infection, scratching, or the use of a tampon. She added that erythema could not be caused solely
by sex. The presence of erythema, however, cannot give a definitive conclusion as to its cause. She also
found complainants hymen to be intact and that there was no laceration, bleeding or spermatozoa.

Dr. Solis, on the other hand, submits that erythema or reddening could not have been caused by
intercourse as said act would have produced not only irritation on the vaginal wall but also irritation,
swelling and reddening of complainants outer genital area. He added that coitus is a blind act and would
have caused irritation to the labia majora, labia minora and hymen in addition to the vaginal wall,
suggesting that erythema on the vaginal wall was more consistent with scratching or the insertion of a
foreign object such as a tampon.

Accused-appellant Dys contention fails to persuade. The medical opinions he cites do not totally
rule out penetration or contact of penis with the vagina. In fact, Dr. Torres could not give a definitive
conclusion that the reddening of the vaginal walls was not caused by sexual intercourse. Even if we were
to follow Dr. Solis line of reasoning, he was not likewise categorical in stating that the reddening of the

vaginal walls was not caused by penetration by a penis. Rather, he stated that such reddening was more
consistent with scratching or the use of a tampon.[15]

Further, lack of lacerated wounds does not negate sexual intercourse. A freshly broken hymen is not
an essential element of rape. Even the fact that the hymen of the victim was still intact does not negate
rape. As explained by Dr. Maximo Reyes, medico-legal officer of the NBI, there are hymens that may
admit without necessarily producing laceration and there are hymens that may admit injuries that will
produce such laceration.[16]

Even the presence or absence of spermatozoa is immaterial in the prosecution of a rape case. It is
well settled that penetration of the womans vagina, however slight, and not ejaculation, constitutes
rape. The Court rejects the argument that the absence of sperm in the vaginal area is a good defense in
a rape case.[17]

For rape to be consummated, full penetration is not necessary. Penile invasion necessarily entails
contact with the labia. It suffices that there is proof of the entrance of the male organ with the labia of the
pudendum of the female organ. Penetration of the penis by entry into the lips of the vagina, even without
rupture or laceration of the hymen, is enough to justify a conviction for rape. To repeat, the rupture of the
hymen or laceration of any part of the womans genitalia is not indispensable to a conviction for rape. [18]

Accused-appellant Dy also insists that complainant could not have been drugged, relying on the
opinion of his expert witnesses, namely, Dr. San Pedro and Dr. Solis. The reasoning that complainant
could not have been drugged as there was no drug test taken is at least speculative and at most non
sequitur. The trial court found that:

The proven reaction of Gina and Helen to the cola drinks given them by the accused unmistakably indicates that
they were indeed drugged. Dr. Francisco Hernandez, the prosecution expert witness, opined that the sedativehypnotic drug known as ativan or lorazepam could probably be the one used. As explained by him, ativan is a doserelated drug. A dosage of from 0.5 milligram to 4 milligrams could produce in a person of average built or with a
weight of 130 pounds anxiolytic effect, visual hallucination, amnesia, confusion, disorientation, gait unsteadiness
and sedation. At a 4-milligram dosage, the imbiber would experience sedation and excessive sleepiness (See
Exhibit G). The onset of the action of the drug is within 15 to 45 minutes from the time it is ingested; it peaks
after 2 hours; and the action will last for 6 to 8 hours.

The effects of ativan manifested themselves in Gina and Helen but they were more profound in Helen because she
drank all the cola drink spiked with drug and she is slimmer than the 165-pound Gina who did not finish her cola

drink because when she felt something gritty that stuck into her teeth, she spat back into her cup the cola in her
mouth and dumped out the rest of her drink.

Accused-appellant Dy can not take comfort in the fact that Gina failed to undergo a drug
test. In People v. Villanos,[19] the issue of whether the laced softdrink should have been presented in
evidence to prove that complainant felt dizzy and unconscious after drinking the same was resolved thus:
True, there was no test conducted to determine the presence of any sedative or drug in the drinks given to the victims
which caused them to lose momentary control of their faculties. But this is of little consequence as the same is not
an indispensable element in a prosecution for rape. Under the circumstances, it suffices that the victim was found to
have been unconscious at the time the offender had carnal knowledge of her.

Accused-appellant Dys submission that the ativan is an anxiety-reducing drug and not a sedative
which would not normally produce sleep unless taken in massive quantities is belied by the undisputed
fact that Gina slept for approximately thirteen hours while Helen slept for almost eighteen hours. Gina
testified that she normally sleeps from seven and a half hours to eight hours. The trial court correctly
appreciated the clinical and academic assessment of the potency and effect of ativan which, according to
Dr. Hernandez, is a benzodiazepine or a sedative-hypnotic drug. More specifically, the trial court found
that:
Gina experienced patchy amnesia, i.e., she could remember some of the events happening to her and in front of her
but forget the others, like her inability to recall that she went back to their room and even bathed. She also had
disorientation and confusion because she did not know why she went to the boys room and why she was
naked. Disorientation and confusion, in turn, produce hypnotic effect, making the one drugged easily suggestible,
easily manipulated and easily taken advantaged of. Gina likewise had visual hallucination since she had the
sensation that it was as if her head was detached from her body. She could resist but she had no means of resisting
because ativan is a muscle relaxant and all her muscles were flaccid or lax.

Quite significantly, Dr. San Pedro, one of the defense expert witnesses, stated that ativan could also cause Ginas
feeling that she was falling in and out of consciousness during the incident in question. Significantly, too, Dr. San
Pedro further testified that Ginas behavior could be consistent with her taking alcoholic drinks and ativan on the
same occasion. Dr. Solis, the other defense expert witness, also gave the view that imbibing alcohol together with
ativan would produce potentiation or increase the pharmacologic effect of the drug.[20]

Accused-appellant Dy asserts that: (a) the combination of drugs and alcohol normally produces a
potentiating effect in that the subject can either fall into a coma or do the opposite which is to act
aggressively and with extreme hostility, and (b) the effects described by complainant and Helen Tennican
are more consistent with alcohol use rather than the effect of drugs. These assertions are not in accord
with the trial courts findings of fact, and when combined with the adverbs normally and more
consistent, are not definitive.

Even so, the trial court did not err in its assessment of the credibility of Dr. Hernandezs
testimony. The fact that Dr. Hernandez has not been accredited as an expert by the Dangerous Drugs
Board does not necessarily mean that he is not an expert on the effects of drugs, as accused-appellant
Dy would like this Court to believe. Accreditation by the Board is not an essential element of
expertise. More properly, expertise pertains to knowledge and experience as well as relevant exposure to
a particular field of discipline. It appears that Dr. Hernandez has met these latter requisites.

Since complainant was drugged, she was effectively deprived of reason if not effectively rendered
unconscious.

Under Article 335 of the Revised Penal Code, as amended by RA No. 7659, rape is committed by
having carnal knowledge of a woman who is unconscious. In such a case, the fact of sexual assault and
the identity of the assailant can be established from the events preceding or following the victims loss of
consciousness.[21] Here, complainant was not totally unconscious but was physically helpless to resist or
effectively communicate her refusal to the lewd desires of accused-appellants. She was aware of the fact
of sexual assault and the identity of her assailants despite her patchy amnesia, disorientation and
confusion. In People v. Lintag,[22] this Court held that:

[I]f the ability to resist is taken away by administering drugs, even though the woman may be conscious, sexual
intercourse with her is rape. (Citation omitted) If the womans will is affected by the anesthetic so that the
connection is had without her consent, though she may be more or less conscious, the act will be rape. (Citation
omitted)

In this regard, the trial court observed:


Gina has positively and steadfastly and unrelentingly claimed that after the effects of the drug had taken on her and
she lay down on the beds put together in the boys room, Giovan lay alongside her and forcibly kissed her with his
tongue inside her mouth, kissed her breasts and inserted his index and middle fingers into her vagina followed by
Bryan having sexual intercourse with her and just to prevent Bryan from penetrating her further, she did oral sex on
him.[23]

Conspiracy exists when two or more persons come to an agreement concerning the commission of a
felony and decide to commit it. The agreement may be deduced from the manner in which the offense
was committed. It must be shown that all participants performed specific acts with such closeness and
coordination as to indicate a common purpose or design to commit the felony.[24]

Accused-appellants joint participation in the crime of rape is clear from the trial courts findings as
follows:
(a)

Bryan and Giovan were both at the Angeles Flying Club when Bryan spotted Gina and Helen;

(b) The two boys and their driver sat at a table next to the girls and immediately Bryan and later on Giovan struck
up a conversation with the girls, initially with Helen whom they invited to their table which she declined, and then
with Gina after the latter came out of the washroom who accepted the boys invitation to their table and Helen then
followed suit;
(c) Upon learning that the girls were coming up to Baguio City, the boys intimated that they, too, were coming up
as they had planned two weeks earlier and offered the girls a ride with them. The boys pretension could not be true
otherwise Bryan, who came from Manila, would have prepared at least a jacket and some clothes for their wellplanned Baguio trip; instead, they had to go first to a residential area in Angeles City where Bryan borrowed a jacket
(two according to Helen) before driving to Baguio City;
x
x

xxx

(e)

At the Songs Jazz Bar, Bryan and Giovan kept on offering and giving Gina and Helen alcoholic drinks;

(f)

As they left, Giovan suggested that he was thirsty and wanted cola drink;

(g)

Notably, Helen declined any further cola drink since she had already drunk enough water at the Songs;

(h) But Bryan and Giovan, who went to buy the drinks at Kowloon Restaurant, saw to it that the two plastic cups
of Sprite carried by Bryan be given to Gina and Helen. They were the drugged cola drinks;
(i)
As heretofore stated, they detoured through Club John Hay to let Gina and Helen drink their drug-laced Sprite
and have the drug take its initial effect;
(j)
When Giovan was satiating his lust on Gina, Bryan was not around to let Giovan freely do what he
wanted. When Bryans turn came, Giovan also left.

Accused-appellant Bernardinos contention that he could not have been a co-conspirator in the crime
of rape because Bryan Dy lacked the requisite dolo or criminal intent to commit said intentional felony is
unmeritorious. Complainant was found to have been drugged. The obvious implication of drugging
complainant was to render her unconscious or at least unable to resist the malicious and sexual designs
of accused-appellants on the former. By doing so, accused-appellants ensured that complainant would
be in no position to resist or to effectively say no. The fact of drugging complainant betrays both
accused-appellants intent to sexually assault complainant or engage in sexual intercourse with her.

In addition, accused-appellant Dy submits that he would not have acted the way he did had he
committed the crime of rape. His argument is non sequitur. While an accused-appellants post-incident
behavior is never proof of guilt, neither is it of innocence.

By the same token, accused-appellant submits that complainants acts and statements, which are
allegedly part of the res gestae, indicate that she had not been raped or molested. This contention is,
likewise, unmeritorious. The behavior and reaction of every person cannot be predicted with accuracy. It
is an accepted maxim that different people react differently to a given situation or type of situation and
there is no standard form of behavioral response when one is confronted with a strange or startling
experience. Not every rape victim can be expected to act conformably to the usual expectations of every
one. Some may shout; some may faint; and some may be shocked into insensibility, while others may
openly welcome the intrusion.[25] Behavioral psychology teaches us that people react to similar situations
dissimilarly. There is no standard form of behavior when one is confronted by a shocking incident. The
workings of the human mind when placed under emotional stress are unpredictable. This Court indeed
has not laid down any rule on how a rape victim should behave immediately after she has been
abused. This experience is relative and may be dealt with in any way by the victim depending on the
circumstances, but her credibility should not be tainted by any modicum of doubt. [26]

Accused-appellant Dy also avers that the credibility of complainant and her other witnesses was
impeached. In effect, accused-appellants question the trial courts assessment of complainants
credibility.

Credible witness and credible testimony are the two essential elements for the determination of the
weight of a particular testimony. This principle could not ring any truer where the prosecution relies
mainly on the testimony of the complainant, corroborated by the medico-legal findings of a physician. Be
that as it may, the accused may be convicted on the basis of the lone, uncorroborated testimony of the
rape victim, provided that her testimony is clear, convincing and otherwise consistent with human nature.
[27]

Needless to say, this is a matter best assigned to the trial court which had the first-hand opportunity
to hear the testimonies of the witnesses and observe their demeanor, conduct, and attitude during crossexamination. Such matters cannot be gathered from a mere reading of the transcripts of stenographic
notes. Hence, the trial courts findings carry great weight and substance. [28]

In any case, well-settled is the rule that the findings of facts and assessment of credibility of
witnesses is a matter best left to the trial court because of its unique position of having observed that
elusive and incommunicable evidence of the witnesses deportment on the stand while testifying, which
opportunity is denied to the appellate courts. Only the trial judge can observe the furtive glance, blush of

conscious shame, hesitation, flippant or sneering tone, calmness, sigh, or the scant or full realization of
an oath all of which are useful aids for an accurate determination of a witness honesty and
sincerity. The trial courts findings are accorded finality, unless there appears in the record some fact or
circumstance of weight which the lower court may have overlooked, misunderstood or misappreciated
and which, if properly considered, would alter the results of the case. [29] Unless certain facts of substance
and value were overlooked which, if considered, might affect the result of the case, its assessment must
be respected for it had the opportunity to observe the conduct and demeanor of the witnesses while
testifying and detect if they are lying.[30]

This Court does not agree that the trial court overlooked or misappreciated any fact of substance or
value. In assessing the credibility of complainant, the trial court commented thus:
The Court had observed her demeanor when she was testifying and she was direct, spontaneous and straightforward,
even crying in narrating the sensitive details of her horrible experience; she had also demonstrated much care and
concern about her obligation to tell the truth and nothing but the truth under the oath which she had taken before
sitting on the witness chair.[31]

The victims act of crying during her testimony bolsters the credibility of the rape charge with the
verity born out of human nature and experience.[32]

Besides, no woman would concoct a story of defloration, allow examination of her private parts and
subject herself to public trial or ridicule if she has not, in truth, been a victim of rape and impelled to seek
justice for the wrong done to her. It is settled jurisprudence that when a woman says that she has been
raped, she says in effect all that is necessary to show that rape was indeed committed. [33] A woman would
think twice before she concocts a story of rape unless she is motivated by a patent desire to seek justice
for the wrong committed against her.[34]

No decent woman in her right mind would tell a tale that could sully her reputation and bring undue
embarrassment and shame to herself and expose her family to all sorts of public aspersions if it is not the
truth.[35] If her story had only been contrived, she would not have been so composed and consistent
throughout her entire testimony in the face of intense and lengthy interrogation. [36] Indeed, if an accused
had really nothing to do with the crime, it is against the natural order of events and human nature and
against the presumption of good faith that the prosecution witness would falsely testify against the former.
[37]

In this case, accused-appellants could not even come up with a credible motive for complainant to
charge them with rape. At any rate, ill motive is never an essential element of a crime. It becomes

inconsequential in a case where there are affirmative, nay, categorical declarations towards the accusedappellants accountability for the felony.[38]

It is doctrinally settled that the lone testimony of a rape victim, by itself, is sufficient to convict if
credible. Equally settled is the principle that when a woman declares that she has been raped, she says
in effect all that is necessary to mean that she has been raped, and where her testimony passes the test
of credibility, the accused can be convicted on the basis thereof. This is because from the nature of the
crime, the only evidence that can be offered to establish the guilt of the accused is the complainants
testimony.[39]

Accused-appellant Bernardino assails the trial courts failure to credit him with the mitigating
circumstance of minority. There is no merit to this contention. Accused-appellant Bernardino was already
nineteen when the crime was committed. Moreover, in the case of People v. Abad,[40] which accusedappellant Bernardino cites, the circumstances and immaturity of accused in said case did not allow him
the freedom of initiative and action which should be expected of a person who is aware of the full
consequences and responsibility for his acts. Accused-appellant Bernardino was not under similar
circumstances and neither was there any clinical basis to show he was immature.

Under the second paragraph of Article 335 of the Revised Penal Code, rape is punished by reclusion
perpetua. Although Section 17 of R.A. No. 7659 fixed the duration of reclusion perpetua from 20 years
and 1 day to 40 years, the penalty has remained indivisible.

At the time of the commission of the crime, accused-appellant Dy was 17 years old, hence a
minor. Under Article 68 of the Revised Penal Code, when the offender is a minor under 18 years, the
penalty next lower to that prescribed by law shall be imposed, but always in the proper period.

Minority being a privileged mitigating circumstance, the proper imposable penalty in this case for
accused-appellant Dy is reclusion temporal, which ranges from 12 years and 1 day to 20
years. Appreciating the ordinary generic mitigating circumstance of voluntary surrender in favor of Dy, the
imposable penalty should be within minimum period of reclusion temporal, i.e.,12 years and 1 day to 14
years and 8 months. Applying the Indeterminate Sentence Law, the minimum term of the penalty should
be within the range of prision mayor in any of its periods,i.e., from 6 years and 1 day to 12 years.

Considering the foregoing, accused-appellant Dy is hereby sentenced to suffer the penalty of 8 years
of prision mayor, as minimum up to 14 years and 8 months of reclusion temporal, as maximum.

As regards accused-appellant Bernardino, he is not entitled to the privileged mitigating circumstance


of minority considering that at the time of the commission of the crime, he was already nineteen years old.
[41]
Hence, as to him, the proper imposable penalty is reclusion perpetua, an indivisible penalty. Under
Article 63, first paragraph, of the Revised Penal Code, this penalty shall be imposed regardless of the
attendance of the mitigating circumstance of voluntary surrender.

The trial court erred in sentencing accused-appellant Bernardino to an indeterminate penalty. Since
the penalty of reclusion perpetua is imposed on him, accused-appellant Bernardino can not enjoy the
benefit of the Indeterminate Sentence Law.[42]

Accused-appellant Bernardinos act of kissing Ginas breasts and inserting his finger into her vagina
constituted acts of lasciviousness.[43] The penalty for this felony, under Article 336 of the Revised Penal
Code, is prision correccional. The penalty to be imposed on accused-appellant Dy, after appreciating the
privileged mitigating circumstance of minority and the generic mitigating circumstance of voluntary
surrender, is arresto mayor in its minimum period. Inasmuch as the Indeterminate Sentence Law is not
applicable,[44] the trial court correctly imposed on him the straight penalty of two months of arresto mayor.
On the other hand, the penalty to be imposed on accused-appellant Bernardino, considering the
generic mitigating circumstance of voluntary surrender, is prision correccional in its minimum period. The
trial court, therefore, correctly imposed on him the indeterminate penalty of two months of arresto mayor,
as minimum, to two years and four months of prision correccional, as maximum.

Finally, in the matter of the damages awarded by the trial court, this Court reduces the award of
moral damages from P500,000.00 to P50,000.00 in line with prevailing jurisprudence. Moral damages are
not awarded to punish the accused but to compensate for the mental anguish, serious anxiety, and moral
shock suffered by the victim or his family as the proximate result of the wrongful act. The award is not
meant to enrich the victim at the expense of the accused. [45]

Likewise, the award of P12,195.00 or the equivalent of US$450.00 as actual damages is deleted for
lack of factual basis. To seek recovery of actual damages, it is necessary to prove the actual amount of
loss with a reasonable degree of certainty, premised upon competent proof and on the best evidence
obtainable by the injured party.[46]

WHEREFORE, in view of the foregoing, the Decision of the Regional Trial Court of Baguio City,
Branch 5, in Criminal Case No. 12600-R, finding accused-appellant BRYAN FERDINAND DY y LA
MADRID and GIOVAN BERNARDINO y GARCIA guilty of Rape, and sentencing accused-appellant Bryan

Dy to suffer an indeterminate penalty of eight years ofprision mayor, as minimum, up to fourteen years
and eight months of reclusion temporal, as maximum, is AFFIRMED. The said decision, insofar as
accused-appellant Giovan Bernardinos penalty is concerned, is MODIFIED in that he is sentenced to
suffer the penalty of reclusion perpetua.

The decision of the trial court in Criminal Case No. 12601-R, finding accused-appellants guilty of
Acts of Lasciviousness and sentencing accused-appellant Dy to suffer the straight penalty of two months
of arresto mayor, and accused-appellant Bernardino to suffer the indeterminate penalty of two months
of arresto mayor, as minimum, to two years and four months ofprision correccional, as maximum, is
AFFIRMED.

Accused-appellants Dy and Bernardino are further ORDERED, jointly and severally, to pay
complainant, Gina Marie Mobley, the amounts of P50,000.00 as civil indemnity, P50,000.00 as moral
damages and P100,000.00 as attorneys fees, and to pay the costs of the suit. The award of P12,195.00
or US$450.00 as actual damages is DELETED.

SO ORDERED.

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. ANDRES C. FONTILLAS alias


"ANDING," Accused-Appellant. (G.R. No. 184177, December 15, 2010)

LEONARDO-DE CASTRO, J.:

The Court of Appeals correctly rejected the accused-appellants assertion that his extreme intoxication
from alcohol on the night of the rape should be appreciated as a mitigating circumstance. Section 15 of
the Revised Penal Code, on alternative circumstances, provides:
ART. 15. Their concept. Alternative circumstances are those which must be taken into consideration as
aggravating or mitigating according to the nature and effects of the crime and the other conditions
attending its commission. They are the relationship, intoxication and the degree of instruction and
education of the offender.
xxxx

The intoxication of the offender shall be taken into consideration as a mitigating circumstance when the
offender has committed a felony in a state of intoxication, if the same is not habitual or subsequent to the
plan to commit said felony; but when the intoxication is habitual or intentional, it shall be considered as an
aggravating circumstance.
Accused appellant did not present any evidence that his intoxication was not habitual or subsequent to
the plan to commit the rape. The person pleading intoxication must likewise prove that he took such
quantity of alcoholic beverage, prior to the commission of the crime, as would blur his reason. 24 Accusedappellant utterly failed to present clear and convincing proof of the extent of his intoxication on the night of
December 8, 2001 and that the amount of liquor he had taken was of such quantity as to affect his mental
faculties. Not one of accused-appellants drinking buddies testified that they, in fact, consumed eight
bottles of gin prior to the rape incident.

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. JOSEPH FABITO, Accused-Appellant. (G.R. No.
179933, April 16, 2009)

BRION, J.:

THE COURTS RULING


We find that the prosecution failed to prove the appellants guilt beyond reasonable doubt and therefore ACQUIT
him of the crime charged.

AAAs Credibility

The review of a criminal case opens up the case in its entirety. The totality of the evidence presented by both the
prosecution and the defense are weighed, thus, avoiding general conclusions based on isolated pieces of evidence. 51
In the case of rape, a review begins with the reality that rape is a very serious accusation that is painful to make; at
the same time, it is a charge that is not hard to lay against another by one with malice in her mind. Because of the
private nature of the crime that justifies the acceptance of the lone testimony of a credible victim to convict, it is not
easy for the accused, although innocent, to disprove his guilt. These realities compel us to approach with great
caution and to scrutinize the statements of a victim on whose sole testimony conviction or acquittal depends. 52

An examination of the appealed decision shows that the appellants conviction was based largely on the
uncorroborated testimony of the victim, AAA. This is not at all unusual in rape cases, as the participants are usually

the only parties at the rape scene and only they can testify on what happened. But as we stated above, the testimony
of a sole witness to the alleged rape must be closely examined when it is the pivotal point on which conviction or
acquittal will turn. We should be ready to accept it if the victims sincerity is above reproach, and at the same time
reject it if indicators point to her doubtful credibility. In the present case, we opt for the latter option as various
circumstances show that we cannot wholly believe the victims testimony.53

First, the medical findings of Dr. De Luna, the examining physician, does not fully support AAAs claim that she
was raped. Effectively, Dr. De Luna testified that the victim was no longer a virgin and has had past sexual
experience. She could not, however, conclude whether the healed vaginal lacerations were the result of forced or
consensual sexual congress.

ATTY. ELMER M. SUROT:


Q: Madam Witness, in your expert opinion, based on this particular findings, the lacerations sustained, will you be in
a position to tell us whether this particular laceration in consistent with voluntary copulation or there was violence?
PROSECUTOR MARLON MENESES:
Objection, your Honor, that area has already been touched.
COURT:
Witness may answer.
DR. DE LUNA:
A: Because the laceration is old, I also placed there that the vagina is vary lax and admits two (2) fingers so I could
not tell exactly whether there was voluntary consent or there is forcible penetration, sir.
COURT:
Especially so when the victim have had previous sexual intercourse?
A: Yes, your Honor.54 [Emphasis supplied]

Thus, the healed lacerations are undisputed but they can only prove that AAA has had prior sexual experience.
Lacking is the specific proof that sexual intercourse occurred on or about the time she was alleged to have been
raped by the appellant.

Second, AAAs declaration that her boyfriend, Froilan, watched her being raped by the appellant strikes us as highly
unlikely and contrary to human nature and experience. This impression is further reinforced by her statement that on
December 9, 1999, or a day after the alleged rape, she went to Froilans house to attend the birthday party of his
(Froilans) brother. To directly quote from the records:

ATTY. ELMER M. SUROT:


Q: Madam Witness, considering that as you have said or claimed you were allegedly raped by Joseph Fabito, why is
it that you still attended your boyfriends brother [sic] on December 9, 1999?
PROSECUTOR MARLON MENESES:
Vague, your Honor.
COURT:
Reform.
ATTY. SUROT:
Madam Witness, I am showing you back this sworn statement particularly Question No. 12 "Q How about this
Ardy Bauzon, what is his participation?" "A That is a separate incident and that was transpired [sic] on the
following day December 9, 1999 at around 6:00 oclock in the evening wherein I attended the birthday party of
Froilans brother also in Barangay Ventinilla, Sta, Barbara, Pangasinan together with my friends (ladies) but later on
they already left me behind and Im talking to my boyfriend Froilan and that he also give [sic] me orange juice
which he ordered me to consume all of it. After consuming, my boyfriend Froilan ordered Ardy Bauzon to
accompany me in going to my grandmothers house also in Brgy. Ventinilla, Sta. Barbara, but while on half-way I
was down on my knees into the ground and I already felt dizzy, and as Ardy helped me stand, he brought me at the
house of his Lola also in Brgy. Ventinilla, Sta. Barbara, Pangasinan." Do you confirm that?
xxx
AAA:
A: Yes, sir.
Q: So, it is clear that despite the alleged rape which happened to you on December 8, 1999, you still went back to
your boyfriend Froilans house?
A: Yes, sir.
x x x55 [Emphasis ours]

The idea of the rape victim going to a birthday party the house of her boyfriend who had watched her (AAA)
being ravaged a day after she was raped baffles us no end; the party was at house of one who participated in and
who was initially accused of the rap and ordinarily was an occasion an aggrieved rape victim would not attend. Her
attendance in our view, was a conduct, done immediately after the rape, that is directly inconsistent with the natural
reaction of an outraged woman who had been robbed of her honor. 56 Time and again, this Court has emphasized that
a womans conduct immediately after an alleged sexual assault is critically important in gauging the truth of her
accusations. The conduct must coincide with logic and experience, taking into account the experience she just went
through. While it may be true that AAA cannot be expected to act in any particular manner and that people may
react differently to a given situation, still, this Court finds it hard to believe that she would act as if nothing untoward
happened so soon after an allegedly harrowing incident.57

Third, AAAs statements that that (a) she attended school on December 8, 1999; (b) she went to the house of Tony to
look for her boyfriend after her class was dismissed at 4:00 p.m.; and (c) she was wearing her school uniform when
she was raped, were contradicted by the evidence on record.

AAAs very own class adviser, Jovito, testified that she (AAA) had dropped out of school as of October 29, 1999.
ATTY. ELMER M. SUROT:
Q: Now, Mr. Witness do you know one by the name of AAA?
JOVITO Q. IDOS
A: Yes, sir. I am the adviser of AAA.
Q: Now, have you received the subpoena issued by the Court for you to bring the attendance record of AAA?
A: I received the subpoena last October 11, 2000, sir.
Q: Did you bring that document with you?
A: Yes, sir. [Witness bringing out school register and pointing the same to the name of student AAA]
Q: With respect to this document, in what school year is this covered?
A: For the school year 1999-2000, sir.
Q: Now, Mr. Witness, using this school register, could you please inform the Honorable Court regarding the
attendance of AAA on the month of December 1999?
A: She has no attendance already in the month of December, sir.
COURT:

Q: What do you mean by no attendance in the month of December?


A: She was already dropped, sir.
ATTY. ELMER M. SUROT:
Q: You said that AAA is already drop [sic] in that particular document, will you please show on what date was she
considered already as drop [sic]?
JOVITO Q. IDOS
A: She was dropped as early as October 29, 1999, sir.
COURT:
Q: What was the last attendance of AAA?
A: October 29, 1999, sir.
x x x58 [Emphasis and italics supplied]

Jovitos testimony is corroborated by AAAs attendance records from September to December 1999 (Exhibits "6" 59
and "7"60 ), which disclosed that the last time she attended school was on October 29, 1999; as well as a certification
(Exh "8")61 dated September 22, 2000 signed by the school principal stating that AAA was dropped from the list of
students for the school year 1999-2000 on October 29, 1999. The authenticity and validity of these documents
remained unrebutted throughout the trial and were never controverted nor assailed by the prosecution.

Significantly, no logical reason exists for witness Jovito to testify falsely; in fact, the prosecution did not discredit
nor attribute any ill motive against him.

Fourth, AAAs credibility is further eroded by inconsistencies between her sworn statement, on the one hand, and
her court testimony, on the other hand.62

In her sworn statement, she stated that she felt dizzy on arrival at Tonys house because she "already drank shots of
liquor;" thereafter she accepted Tonys offer to sleep upstairs, thus:

xxx

5. Q - : Will you relate to me in brief how this incident happened?


A - : This is the story, sir. Ive just dismissed [sic] from the school last December 8, 1999 at around 4:00 oclock in
the afternoon when I decided to visit my boyfriend Froilan Paraan in Brgy. Ventinilla, Sta. Barbara, Pangasinan
wherein upon arrival thereat, at the house of one Tony alyas Enciong Bauzon, my boyfriend together with another
named Joseph Fabito were then having a drinking spree. While there I told them that I felt dizzy because I already
drank shots of liquor and that this Enciong Bauzon offered me to just take a rest upstairs of the house.
6. Q - : Did you accepted [sic] his offer?
A - : Yes, sir.
x x x63 [Emphasis supplied]

However, in her testimony dated September 18, 2000, she stated that she only became dizzy and fell asleep after she
consumed the coke offered by Froilan. When she regained consciousness, she was already lying on a bed in a room
and the appellant was already on top of her. When asked to explain the inconsistencies between her testimony in
court and her affidavit, she simply stated that she forgot to state in her affidavit that she was offered a glass of coke
by her boyfriend. She also added that she no longer could remember who led or carried her upstairs.

In her sworn statement, she also declared that she did not bother to shout or ask for help because she was scared that
the three (3) accused might kill her; she reiterated this matter in her court testimony of September 18, 2000.
However, upon further cross examination, she stated that she asked Froilan to help her, thus:

ATTY. ELMER M. SUROT


Q: You were already awake when you turned your body?
[AAA]
A: Yes, sir.
Q: Did you shout at him?
A: I told him do not do this to me, I do not like this but he kept on doing it, sir.
Q: Now, did you not seek the help of your boyfriend taking into consideration that he was present at that time?
A: He does not want to help me, sir.
Q: But did you try to seek his help?

A: Yes, sir.
Q: In what way?
A: Help me, help me but he did not help me, sir.64
She likewise stated in her sworn statement that the appellant and Tony accompanied her to the public market after
the rape incident; thereafter, the three (3) of them parted ways. However, in her testimony of September 18, 2000,
she testified that Froilan and the appellant went downstairs after the rape leaving her and Tony in the room;
thereafter, she got her panty from the floor, wore it, and then left. To directly quote her testimony:
COURT:
Q: How many times did Joseph Fabito insert his penis?
[AAA]:
A: Only once, sir.
PROSECUTOR MARLON MENESES:
Q: And so what happened next?
A: Froilan Paraan pulled Joseph Fabito downstairs.
xxx
Q: So you claimed that Froilan Paraan and Joseph Fabito went down afterwards, how about Tony Bauzon?
A: He was upstairs, he was with me upstairs, he did not do anything to me, sir.
Q: What did Tony Bauzon do to you when you were left alone with him?
A: Nothing, sir.
Q: And so what happened next after Joseph Fabito and Froilan Paraan went down?
A: I got my panty from the floor, I wore it then I left, sir.65
In her subsequent testimony dated September 25, 2000, AAA again contradicted herself and declared that no one
was in the room when she left. She testified:
ATTY. ELMER M. SUROT:
Q: Now, Madam Witness, after the alleged rape, who accompanied you in going downstairs?
[AAA]:

A: Nobody, sir.
Q: At the time you left the room where you were allegedly raped, all of the accused were still there and you left
them inside the room?
A: No, sir.
Q: At the time you left the room, who were still there?
A: Nobody, sir.66

While rape victims are not required or expected to remember all the details of their harrowing experience, the
inconsistencies drawn from AAAs sworn statement and her declarations during trial cannot be considered as minor
inconsistencies that do not affect her credibility.67 These discrepancies are not isolated nor are they on minor details
of her tale of rape. Her contradictory statements are on important details and cannot but seriously impair the
probative value and cast serious doubt on the integrity of her testimony.68

Finally, there were facts elicited during trial that give us reasons not to unquestionably accept AAAs testimony. One
of these is her testimony that she woke up lying on a bed inside a room at the second floor of Tonys house after
consuming the coke that Froilan offered. We have to reject this testimony because the unrebutted testimony on
record is that both rooms in the second floor of Tonys house had neither beds nor doors. Trinidad, Tonys mother,
testified to this physical fact, confirming Tonys own testimony that there was no bed in the room where the alleged
rape took place. AAAs story, on the other hand, remained unsubstantiated.

We also find it unlikely that when AAA returned home after the rape incident, BBB did not observe anything
unusual about her that could have immediately aroused her suspicion that something untoward had happened to
her.69 Surprisingly, AAA even told BBB that she came from a Bible study.

Taking AAAs testimony in its totality, we find ourselves unable to accord it the same credibility extended to it by
the lower courts. For evidence to be believed, it must not only come from the mouth of a credible witness, but must
be credible in itself; it must be one that reason and the common experience and observation of mankind can approve
as probable under the circumstances. These are the same standards to determine its value in weighing it in the scale
of judicial acceptance.70

Denial as a defense

Generally, denial as a defense is weak and is looked upon with disfavor. Weakness of the defense, however, cannot
be the basis for conviction. The primary burden still lies with the prosecution whose evidence must stand or fall on
its own weight and who must establish by proof beyond reasonable doubt the guilt of the accused before there can
be conviction. Under this rule, the defense of denial finds its special place and assumes primacy when the case for
the prosecution is at the margin of sufficiency in establishing proof beyond reasonable doubt; a validly established
denial then becomes sufficient to defeat the prosecutions case and tilt the outcome in favor of the defense.

In our view, the present case is characterized by a double plus in favor of the defense.

A first plus factor is the weakness in the prosecutions case. The prosecution almost solely relied on the testimony of
AAA. As discussed above, her testimony is replete with inconsistencies and we cannot accept it, by itself, as
sufficient proof beyond reasonable doubt that would support a conviction. It could have been helped by the
corroborative testimony of Ardee who appeared to have been present in the "drinking spree" that preceded the
alleged rape, but who, inexplicably, was never called by either party. There are, of course, other prosecution
witnesses but they did not contribute in any significant way in establishing the level of proof that the law requires. In
fact, we read the medical evidence as an indicator of how ambivalent the prosecutions case is. Thus, the
prosecutions evidence, by itself, is sufficient to lead to a verdict of acquittal on grounds of reasonable doubt.

A second plus for the defense is the evidence of denial that it adduced. The evidence was straight forward and
needed no elaborate analysis to understand. Three boys were enjoying life on their own, conversing and drinking
under the shade of a mango tree, when two girls came and joined them. One girl has had several drinks before she
came and indicated signs of being tipsy. This much was undisputed. At the time they were drinking, the family of the
owner of the house were at the premises, and the father even asked the group to break up after some time. Thus, the
group did and that would have ended that happy afternoon except for the accusation of rape that subsequently
followed. Under these facts, it is not hard to resolve, given the shaky contrary tale of the prosecution, that a simple
denial is all that is needed for a verdict of acquittal on grounds of reasonable doubt. We thus confirm once more
what we said in People v. Muleta:71

In our jurisdiction accusation is not synonymous with guilt. The freedom of the accused is forfeit[ed] 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 accuseds 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. If the
prosecution fails to discharge the burden, then it is not only the accuseds right to be freed; it is, even more, the
courts constitutional duty to acquit him.72

WHEREFORE, under these premises, we ACQUIT the appellant Joseph Fabito on grounds of reasonable doubt. We
consequently REVERSE and SET ASIDE the June 29, 2007 decision of the Court of Appeals in CA-G.R. CR-HC
No. 00006 that affirmed with modification the judgment of conviction of the Regional Trial Court, Branch 43,
Dagupan City.

AN EXCERPT FROM THE APPEAL BRIEF OF DANIEL SMITH:


REPUBLIC OF THE PHILIPPINES
COURT OF APPEALS
MANILA
Fifteenth Division
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, - versus LCPL. DANIEL J.
SMITH, Accused-Appellant.
CA-G.R. CR - H.C. No. 02587
(Crim. Case No. 06-651)
X X
APPELLANTS BRIEF
X X X
As the Supreme Court held in Bernardino v. People, G.R. No. 170453, October
30, 2006:
The equipoise rule finds application if, as in the present case, the
inculpatory facts and circumstances are capable of two or more explanations,
one of which is consistent with the innocence of the accused and the other
consistent with his guilt, for then the evidence does not fulfill the test of
moral certainty, and does not suffice to produce a conviction . (Emphasis and
underscoring supplied)
X X X
36. It will be recalled that in the Information, Prosecutor Jalandoni charged
appellant, along with his co-accused, with:
XXX conspiring, confederating together and mutually helping one another, with
lewd design and by means of force, threat or intimidation, with abuse of
superior strength and taking advantage of the intoxication of the victim, did
then and there willfully, unlawfully and feloniously sexually abuse and have
sexual intercourse with or carnal knowledge of one Suzette S. Nicolas xxx xxx
against the will and consent of the said Suzette S. Nicolas, to her damage and
prejudice.
CONTRARY TO LAW. (Emphasis supplied)
That the alleged victim, Suzette S. Nicolas, passed out and was rendered
unconscious by reason of her purported drunkenness for the entire duration
that the alleged rape was being committed was not alleged, much less
specified, in the information.
37. It is beyond dispute that appellant is accorded the express
Constitutional protection, embodied in Section 14(2), Article III of the 1987

Constitution, "to be informed of the nature and cause of the accusation


against him."
This right requires that the offense be charged with clearness and all
necessary certainty to inform the appellant of the crime of which he stands
charged, in sufficient detail to enable him to prepare a defense. As explained
by the Supreme Court in People V. Monteron, G.R. No. 130709, March 6, 2002,
[t]he rationale behind this constitutional guarantee are: First, to furnish
the accused with the description of the charge against him as will enable him
to make his defense; second, to avail himself of his conviction or acquittal,
for protection against a further prosecution for the same cause; and third, to
inform the court of the facts alleged, so that it may decide whether they are
sufficient in law to support a conviction, if one should be had.
X X X
To warrant a conviction in a rape charge, the victim's testimony must be clear
and free from contradictions. In prosecuting offenses of this nature,
conviction or acquittal virtually depends entirely on the credibility of
complainant's testimony because of the fact that usually only the participants
can testify as to its occurrences. It is a fundamental principle in rape cases
that the evidence for the prosecution must stand or fall on its own merits and
cannot be allowed to draw its strength from the weakness of the defense
evidence. The seriousness with which the State rightfully views the matter
with the corresponding imposition of the punishment that fits the crime calls
for extreme care on the part of the judiciary to avoid an injustice from being
done to an accused.
Noteworthy here are the facts that (a) neither the pants nor the underwear of
the complainant were torn; (b) there was an absence of injuries on the inner
thighs of the complainant;
X X X
89. That no force was employed on the complainant is demonstrated by
the fact that all her items of clothing bear no tears or other marks of
struggle that would otherwise signify that complainant was forcibly raped by
appellant.
90. Likewise, complainant does not bear any injuries that would otherwise
indicate that force was employed on her. The testimony of Dr. Teresita
Sanchez, expert witness for the defense, is very enlightening. She commented
on the conspicuous absence of injuries on the inner knee and thighs of
complainant, as follows:
Q: And what is the significance now. Doctor, of the absence of contusions,
bruises or other signs of injuries in the inner thigh of Suzette Nicolas?
A: I just want to clarify. This per se, is a rape case. This is supposed to be
the victim of rape but I did not find any injury significant to suggest that
there was rape or force on the person.
Q: What is your basis in saying so, Doctor?
A: My basis is the absence of contusion in the inner thigh and inner knees. I
have a book here to support this findings. " Evidence of extra-genital iniury
is not essential to the successful prosecution of a rapist but it is easily
voidable in collaborating lack of consent in intercourse. The classic (sic)

those abrasions on the inside of the knees or lower thighs due to forcible
separation of the legs during rape or attempted rape as shown here that 16
year old who survived the experience.
Q: What are your comments on what you read in that book,
Doctor?
A: While it is true that in rape cases, you have sometimes to observe the
genital or extra-genital. In this particular case, the victim showed that she
is prone to easy brusibility. So, that means, we expect of course that if she
refuses intercourse or she refrains, the legs are so heavy and so you have to
apply force in order to open the legs, you have to apply force to penetrate.
XXX
Q: Now, you mentioned, Doctor, that if the witness was dead drunk, her legs
are heavy, what is the basis?
A: From experience and the fact that she is not moving, she is uncooperative,
definitely, the legs are very heavy like persons who are under anesthesia.
XXX
Q: Now, Doctor, I am asking you why do you say or what is your basis in saying
that when a person is dead drunk, her legs or body would be heavy?
A: This is also from experience and also from literature that a person who is
not cooperative and because she is dead drunk and not aware of what is
happening around her, she will have a heavy legs just like a person who is
under anesthesia. And therefore, to be able to penetrate, we have to use force
to open up the legs. (Emphasis and underscoring supplied)
91. Under American Jurisprudence, it is held that:
In prosecution for forcible rape, the prosecutrix must relate the very acts
done on her part to resist, and mere general statements, involving her
conclusions, that she did her utmost and the like, will not suffice to
establish the fact of resistance. That there is no indication of violence is a
strong circumstance showing lack of resistance, and where there is no evidence
of yielding through fear, the absence of any iniury to the assailant or
tearing or disarray of the clothing is strong evidence of willingness and lack
of resistance. (Underscoring supplied)
X X X
The lower court erred in disregarding appellant's "mistake of fact" defense.
95. Our jurisdiction recognizes the mistake of fact defense. As applied to an
acquaintance-rape case, this generally means that the accused may mount a
defense claiming that even if the complainant did not consent, the accused had
no reason to know, and did not actually know, that the sex was non-consensual.
In this case, there is a distinct possibility that if, in fact, complainant
was an unwilling participant in the sex, appellant did not know that she was
unwilling because, in her allegedly intoxicated state, complainant gave
appellant a number of signs that she was attracted to him.
96. There are a number of key facts that indicate that appellant had reason to
believe that complainant was a willing participant in the sexual intercourse,
and much of that evidence was undisputed. And even where the evidence was
subject to dispute, there are strong reasons to believe that the evidence in

appellant's favor were more reliable. In spite of this, the lower court
handled this issue - "mistake of fact" - as though it were clear-cut and there
was only one conclusion that could possibly be drawn from the evidence before
it.
97. Some of the evidence in appellant's favor include the fact that at the
Neptune Club, appellant and complainant danced together in a highly suggestive
manner, and appellant was the last person to dance with complainant before
they (complainant and appellant) left the Neptune Club.
XXX
At any rate, the evidence on record clearly established complainant's motives,
but the lower court simply ignored them.
Complainant falsely accused appellant to avoid being stigmatized as a woman of
loose morals
152. On the evening of November 1, 2005, complainant alighted from a Starex
van in a state of partial undress - her pants undone and pulled down below her
knees - along with three (3) US Marines, appellant, Duplantis and Silkwood one of which referred to her as a "bitch", as bystanders in the area looked
on.
Complainant thought of her mother. She would get angry if she found out what
happened. She wanted complainant and her stepsister to head for home already
that morning. They did not heed her bidding. Instead, they stayed on inSubic,
went out that evening, left their young sister alone in their hotel room and
went to the casino, then went clubbing, drank alcohol, and danced the night
away. As for complainant, she met appellant, danced and flirted with him, sat
on his lap and kissed him, and ultimately, had sex with him. Her mother would
get angry if she found out. Her boyfriend/fiancee would get angry if he found
out. No wonder complainant cried rape.
153. In People vs. Castillon, the Supreme Court, ruling in this regard.
We take judicial cognizance of the fact that in rural areas in the
Philippines, like Albor, Surigao del Norte, young ladies are strictly
required to act with circumspection and prudence. Great caution is observed so
that their reputations shall remain untainted. Any breath of scandal which
brings dishonor to their character humiliates their entire families. The fact
that Arlene agreed to engage in pre-marital sex is already a disgrace to her
family, what more of her acquiescence to have sexual intercourse on a stage
near the vicinity where the JS program was being held and prying eyes and ears
abound. Thus, she must have reasoned that it is better to cry "rape" and bring
suit thereon to salvage her honor in part than to have her reputation sullied
in the community by being bruited around and stigmatized as a woman of loose
morals.
155. Interestingly, literature referred to by the prosecution's own expert
witness. Dr. Fortun, support the forgoing proposition regarding complainant's
contrived story of rape, as follows:
Q: Now, you also identified a paper or book entitled "Color Atlas of Sexual
Assault" marked as Exhibit "BBB", do you have that in front of you. Doctor?
A: Yes, Sir.

Q: On page 24, it says, and I quote:


XXX
"False allegation of sexual assault may be motivated by the need to conceal
consensual intercourse , the need for nurturance, the need for antibiotics to
avert possible sexually transmitted deseases (STDs), and in hopes to be tested
for acquired immunodeficiency syndrome (AIDS) following unknown exposure, xxx"
do you agree with that statement. Doctor?
A: Yes, that seemed to be valid. Sir.
Q: And the next sentence, I read and I quote:
"x X X Anger toward the accused perpetrator is another motivation for false
allegation, x x x"
Q: Let me read it:
"The fact is that the significant proportion of allegations of rape and sexual
assault reported to the police are found to be untrue, this is often wholly
denied by women's (group) but is an undisputable fact, proven by many
subseguent admissions by girls that no such attack took place."
XXX
Q: At a little bit lower of the same page, Doctor, it says:
"Another more common reason is where a girl consent to intercourse and later
denies that she agreed and accuses the man of rape or other sexual
misbehavior. This may be due to fear of pregnancy, veneral infection but more
often to a breakdown in the relationship such as being shielded where motives
of revenge or mischief are present. "(Underscoring supplied) do you agree with
that?
X X X
Complainant was scared of her mother.
157. Testimony was offered at the trial that when complainant was dropped off
by the Marines, "her companions asked [complainant] (who was crying) what
happened, to which she responded, "I do not know. I will be punished by my
mother."^^ Bicycle Policeman Paule, a prosecution witness and the first
police officer to encounter complainant that evening, testified that
complainant repeatedly told police that "[i]f my mother will learn about this,
she will kill me."^^^
158. In fact, complainant did not specifically allege that she had been
sexually assaulted by the appellant until more than twelve hours after the
encounter had occurred, despite the fact that she was with family, friends,
law enforcement and medical personnel nearly the entire time. The catalyst for
her specific allegation appears to have been succumbing to the assumptions of
others and out of fear of her mother finding out that her daughter was found
drunk, with her pants down, after having been left at the side of the road by
several Marines.
159. It also seems highly unlikely that if complainant had actually been
sexually assaulted her first reaction would be to fear her mother's anger.
Surely, it would be far more likely that a daughter who had been raped would
look to her mother for support and comfort. On the other hand, the logical

response of a woman who had just had sex in the back of a crowded van with a
man she had met hours before and had then been dumped only partially dressed
in front of a crowd of onlookers, might well be to fear her mother's
(justifiable) wrath. Once her mother was involved, she had to propose a
version of events that differed from the unflattering portrait of a
promiscuous young woman who had allowed herself to be treated poorly by a
group of men she barely knew.
163. The lower court discounted embarrassment as a possible motivation because
the complainant had testified that she was not embarrassed about having had a
number of drinks. ^^^ But the issue in this case is not whether the
complainant was embarrassed about having had a few drinks - it is whether she
was embarrassed about what she did AFTER having those drinks, something that
the lower court never addressed. The lower court similarly noted that simply
being called a 'bitch' is not enough to cause someone to file a false claim.
^^"^