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Grave misconduct

A LAW EACH DAY (Keeps Trouble Away) By Jose C. Sison (The Philippine Star) | Updated July 1, 2015 - 12:00am

Sexually molesting or harassing a person in an employment, education and training environment is unlawful pursuant to R.A. 7877
which was passed on March 5, 1995. This case of Atty. Pabling explains how this law is violated.
Atty. Pabling was the chief of the legal division of a government agency. One of the new lawyers working under him was Atty. Leila, an
attractive young lady who was recommended by his Administrative Officer Ms. Lisa. From the very first day of work, Leila already
caught the attention of Pabling. He even offered to buy her a cell phone so that he could text her but Leila curtly refused. On that same
day after office, he wanted her to join him in his car in going home but she likewise refused. Then one week later, Pabling asked Leila to
eat out for lunch but she refused once more.
In the course of Leilas employment with Pabling as her supervisor, the latter often made sexual advances and gestures but she still
tried to keep their relationship on a strictly professional level. So later on after her sick leave from office the exasperated Pabling called
her in his office, scolded her and uttered several unsavory, untruthful and threatening remarks to the extent of telling Leila, ayoko na sa
iyo,.. at ngayong ayoko na sa iyo alam mo naman kung sino ako dito, kaya ano ang gagawin natin ngayon.
But the incident that really prompted Leila to file an administrative complaint against Pabling happened three months later during her
birthday when Pabling invited her and other staff members, Ms. Lisa, Atty Juan and stenographer, Romy, to eat lunch at a nearby
restaurant. While already seated at the table waiting for their food to be served, Pabling suddenly took hold of Leilas face and forcefully
kissed her lips in the presence of Lisa, Juan and Romy and other customers. Leila tried to ward off Pabling by pulling her head away
but he persisted on kissing her against her will. Leila was so shocked and terrified and humiliated that she could hardly talk and move.
She wanted to cry but held her tears for fear of further embarrassment. After releasing her, Pabling said, ang sarap pala ng labi ni
Leila. Then Pabling held her hand and said Leila sige na. But Leila took away her hand and thereafter reported the incident to the
executive director of the agency.
To support her complaint affidavit and to corroborate her account, Leila also submitted the joint affidavit of her officemates, Ms. Lisa,
Atty. Juan and Romy who witnessed the entire kissing incident. Considering the long inaction of the government agency on her
complaint, Leila was constrained to elevate her case before the Office of the Ombudsman.
In his counter affidavit Pabling claimed that he treated his staff to lunch upon their own prodding as it was Leilas birthday and she had
no money for a blowout. And while their group was talking in the restaurant, he greeted Leila and simply planted an innocent birthday
greeting kiss on her left cheek, near her lips. He said that he often summoned Leila to his office to explain her frequent tardiness and
absences which was part of his function as legal counsel of the office.
In her reply affidavit, Leila countered that she never solicited any favor from Pabling let alone obligated him to spend money for her
birthday blowout and that the lunch treat was part of a premeditated evil plan by Pabling to have her submit to his sexual desire.
After proper investigation, the Office of the Ombudsman found probable cause to charge Atty. Pabling with sexual harassment
punishable under R.A. 7877 and recommended the filing of the necessary Information before the Metropolitan Trial Court. It also found
him administratively guilty of grave misconduct with the penalty of dismissal from the service. This ruling was later on affirmed by the
Court of Appeals (CA). Was the CA correct?
Yes. Misconduct is a transgression of some established and definite rule of action, more particularly unlawful behavior or gross
negligence by a public officer. The misconduct is considered grave if there is corruption or willful intent to violate the law or to disregard
established rules.
In this case, corruption is present because Atty. Pabling used his position and authority as head of the legal division, as well as his
moral ascendancy, to elicit sexual favors from Leila and to indulge in sexually malicious acts with his female subordinate. His sole
defense that he merely gave Leila an innocent birthday greeting kiss is unconvincing in view of the Joint Affidvit of their officemates
attesting that he forcibly kissed her lips and uttered Ang sarap pala ng labi ni Leila. His act of grabbing Leila and kissing her without
her consent is an unmistakable manifestation of his intention to violate R.A. 7877. Even assuming for the sake of argument that Pabling
never intended to violate said law, his attempt to kiss Leila was a flagrant disregard of a customary rule existing since time immemorial
that intimate physical contact between individuals must be consensual. So Pabling is indeed guilty of grave misconduct through
sexual harassment. But instead of dismissal his penalty should be reduced to six months suspension without pay considering there was
only one incident of sexual harassment.
Indeed, the sexual harassment offense committed by Atty. Pabling is analogous to unwarranted touching or brushing against a victims
body and to derogatory or degrading remarks or innuendoes directed towards the members of one sex (Section 53 B [1] and [3],
RA7877). Pursuant to Section 56 of said law, the corresponding maximum penalty for said offense is six months suspension without
pay since this is his first offense (Gonzales vs. Serrano, G.R. 175435, March 11, 2015).

Novel crime
A LAW EACH DAY (Keeps Trouble Away) By Jose C. Sison (The Philippine Star) | Updated June 10, 2015 - 12:00am

Until 1997, only women can be victims of rape. But with the enactment of R.A. 8353 or the Anti-Rape Law of 1997, rape is now
considered a crime against any person so that even a male can be a victim of rape as in this case of Boyette.
Boyette was a 10-year-old boy who was fond of modern gadgets particularly the mobile phone. One time at a town fiesta, he met
Ronnie a 31-year-old distant relative. Actually, Boyettes mother Lorna was the cousin of Ronnies cousin Andy. So despite age
difference the two distant relatives became friends and started texting each other.
Several months later, Boyette decided to invite Ronnie at their house located in another town. So he asked his mother Lorna to pick up
Ronnie at a fast food chain about 8 pm. After dinner, Lorna asked Ronnie to spend the night with them as it was already late. Ronnie
agreed and slept on the sofa while Boyette slept on the living room floor.
At around 2 a.m., Boyette awoke as he felt pain because something was being inserted in his anus. Then he saw Ronnie fondled his
penis and subsequently returned to the sofa. Instinctively, Boyette ran towards his mothers room to tell her what happened. He also
told his mother that Ronnie played with his sexual organ.
Armed with a knife, Lorna confronted Ronnie about the incident. But the latter remained silent. So she asked him to leave. Then she
accompanied Boyette to the barangay hall where they were directed to report the incident to the Municipal Police station. The police
referred them to the municipal health center for medical examination. A doctor examined Boyette and found no signs of recent trauma
in his anal orifice which was also negative for spermatozoa.
A few days later, Boyette and Lorna executed their sworn statements at the police station leading to the filing by the Provincial
Prosecutor of a criminal complaint for Rape. The complaint accused Ronnie of willfully, unlawfully, and feloniously inserting his penis
into the anus of Boyette who was then 10 years old, against his will and consent and to his damage and prejudice.
At the trial by the Regional Trial Court (RTC), Boyette testified in straightforward, unequivocal and convincing manner on how Ronnie
committed sexual assault on him. He told the court that Ronnie inserted his penis into his anal orifice and even played with it. Lorna and
the doctor who examined him also testified. So despite the vehement denial of Ronnie, the RTC found Ronnie guilty beyond reasonable
doubt of rape by sexual assault and sentenced him to suffer imprisonment ranging from 4 years 2 months and 1 day to 8 years, and to
pay P50,000 moral damages and P50,000 civil indemnity. This ruling was affirmed by the Court of Appeals except for the damages
which was reduced to P30,000 each.
Ronnie still appealed the decision to the Supreme Court (SC). He argued that his guilt had not been proven beyond reasonable doubt
as the medico legal officer even found no physical signs of trauma in the anus or any trace of spermatozoa. He also contended that
Boyettes inconsistent testimony especially about immediately pushing him away raises reasonable doubt about his guilt. He also
claimed that his acts would only be considered as acts of lasciviousness.
But the SC found Ronnies arguments unmeritorious and still affirmed Ronnies conviction. The SC said that Ronnie was indeed guilty
of rape under the second paragraph of Article 266 as amended by RA 8353 which is also known as instrument or object rape,
gender-free rape, or homosexual rape. The essence of this rape is the insertion of the penis into another persons mouth or anal
orifice or the insertion of an instrument or object into another persons genital or anal orifice.
The SC gave full weight and credit to Boyettes testimony who is a child witness because their youth and immaturity are generally
badges of truth and sincerity. Boyette then only ten years old had no reason to concoct lies against Ronnie. While there may be
inconsistencies in his testimony, they are only minor and do not affect the gravamen of the offense. Besides, leeway should be given to
witnesses who are minors, especially when they are relating past incidents of abuse.
The medic-legal findings do not likewise negate the possibility of an erection and penetration. The result does not contradict the positive
testimony of Boyette that the lower courts found credible, natural and consistent with human nature. Convictions for rape are based on
the victims credible lone testimony. Expert testimonies are merely corroborative in character. Besides, the doctor explained that the
negative finding of trauma in the anal orifice does not remove the possibility of an insertion considering the flexibility of the sphincter or
the ring-like muscle surrounding an opening in a body.
Ronnies crime cannot likewise be considered as mere acts of lasciviously because the prosecution has established beyond reasonable
doubt all the elements of the crime of rape through sexual assault. Rape is an assault on human dignity. So Ronnies conviction is
affirmed but his penalty should be the penalty for child abuse under RA 7610 because the victim is a child. So his sentence was
increased to imprisonment of 12 years 10 months and 21 days to 15 years, 6 months and 20 days (Ricalde vs. People, G.R. 211002,
January 21 2015).

Unexplained delay
A LAW EACH DAY (Keeps Trouble Away) By Jose C. Sison (The Philippine Star) | Updated April 22, 2015 - 12:00am
In cases of rape where only the victim and the assailant are usually involved, the general rule is that the lone uncorroborated testimony
of the victim suffices to warrant a conviction. But in this case of Lina, this rule was not followed. Let us find out why.
Lina was an eight-year-old Grade I pupil when she was allegedly raped. According to her, while she was playing saysaya with her two
friends at about 11 a.m., near the house of her uncle Alex who was the common law spouse of her auntie, she was summoned to go
inside the house. Obliging, she approached Alex in his house who then closed the door and carried her to the mezzanine. Once inside,
she said that her uncle Alex took off my short pants and panties, undressed me, put himself on top of me and then successfully raped
me after which I felt pain. Then he threatened me not to tell anybody because if I do so, he will kill me.
Continuing her story, Lina then said that she went to school in the afternoon but the following day he confided to her mother what
happened to her despite the threats to her life. Her mother told her sister about it who in turn revealed it to her grandmother. But her
grandmother refused to believe her claim so they just forgot about it.
But more than two years later, the incident was finally reported to the police by the Barangay Captain because Linas auntie who was
Alexs common law wife revealed it. So, a complaint for rape was filed against Alex with the Municipal Trial Court. Then after the
preliminary investigation an Information for rape was filed with the Regional Trial Court (RTC) against Alex for willfully, feloniously and
unlawfully having carnal knowledge of Lina against her will after undressing her, placing himself on top of her and kissing her while at
the same time pointing a knife at her and warning her not to tell anyone for he would kill her.
At the trial, Lina reiterated the same story she told her mother right after the alleged rape happened. Relying on this story and on the
testimony of the physician who examined her two years after the alleged rape and who found healed incomplete hymenal lacerations
that could have been caused by a sharp object or a male sex organ, the RTC convicted Alex of the crime of rape despite his alibi
corroborated by another witness that he was in Manila during the time that the alleged rape was committed. Was the RTC correct?
No. Linas narrative is tainted with ambiguity and deficiency on vital points. The stark outline of her testimony is so simplistic that it
leaves much to be desired and unmentioned those expectedly required. The prosecution did not even bother to elicit from Lina how she
was successfully raped by Alex. In the four corners of her testimony, no kissing was disclosed to have happened and no knife was
mentioned at all contrary to what appears in the Information. Her testimony on these key aspects contains gaps that allow the crevices
of reasonable doubt to creep in.
Moreover, Lina claimed to have reported the rape to her mother the day after it happened notwithstanding the threat to her life. Oddly
enough it took more than two years before such alleged rape was reported to the police and the victim examined by a physician. The
prosecution offered no reasonable or justifiable explanation for the delay nor presented her auntie or the Barangay Captain who
reported the rape to the police to shed light on this crucial matter. This unexplained delay therefore affects Linas credibility. Alexs alibi
that he was in Manila, while weak and not enough to exculpate him, at least indicate that every opportunity was available to Lina and
her family to bring the matter to the attention of the authorities. It is not thus farfetched to consider the delay an indication that the
complaint was made in a desire other than to bring the culprit to justice.
Since the prosecution failed to present its case with clarity and persuasion to the end that conviction becomes the only logical and
inevitable conclusion, the presumption of innocence of the accused should be sustained. So Alex should be acquitted of the crime of
rape (People vs. Jampas, G.R. 177766, July 12, 2009).