New Rape Law 1997 an amendment

REPUBLIC ACT NO. 8353

AN ACT EXPANDING THE DEFINITION OF THE CRIME OF RAPE, RECLASSIFYING THE

SAME AS A CRIME AGAINST PERSONS, AMENDING FOR THE PURPOSE ACT NO. 3815,
AS AMENDED, OTHERWISE KNOWN AS THE REVISED PENAL CODE, AND FOR OTHER
PURPOSES.

Be it enacted by the Senate and House of Representatives of the

Philippines in Congress assembled:

Section 1. Short Title. - This Act shall be known as "The Anti-Rape Law of
1997."

Section 2. Rape as a Crime Against Persons. - The crime of rape shall

hereafter be classified as a Crime Against Persons under Title Eight of Act No.
3815, as amended, otherwise known as the Revised Penal Code. Accordingly,
there shall be incorporated into Title Eight of the same Code a new chapter to be
known as Chapter Three on Rape, to read as follows:

"Chapter Three "

Rape

"Article 266-A. Rape: When And How Committed. - Rape is committed:

1) By a man who shall have carnal knowledge of a woman under any

of the following circumstances:

a) Through force, threat, or intimidation;

b) When the offended party is deprived of reason or otherwise unconscious;

c) By means of fraudulent machination or grave abuse of authority; and

d) When the offended party is under twelve (12) years of age or is demented,
even though none of the circumstances mentioned above be present.

2) By any person who, under any of the circumstances mentioned in paragraph 1

hereof, shall commit an act of sexual assault by inserting his penis into another
person's mouth or anal orifice, or any instrument or object, into the genital or anal
orifice of another person.

"Article 266-B. Penalty. - Rape under paragraph 1 of the next preceding article
shall be punished by reclusion perpetua.

"Whenever the rape is committed with the use of a deadly weapon or by two or
more persons, the penalty shall be reclusion perpetua to death.

"When by reason or on the occasion of the rape, the victim has become insane,
the penalty shall become reclusion perpetua to death.

"When the rape is attempted and a homicide is committed by reason or on

theoccasion thereof, the penalty shall be reclusion perpetua to death.

"When by reason or on the occasion ofthe rape, homicide is committed, the

penalty shall be death.

"The death penalty shall also be imposed if the crime of rape is

committed with any of the following aggravating/qualifying circumstances:

l) When the victim is under eighteen (18) years of age and the offender is a
parent, ascendant, step-parent, guardian, relative by consanguinity or affinity
within the third civil degree, or the common-law spouse of the parent of the
victim;

2) When the victim is under the custody of the police or military authorities or any
law enforcement or penal institution;

3) When the rape is committed in full view of the spouse, parent, any of the
children or other relatives within the third civil degree of consanguinity;

4) When the victim is a religious engaged in legitimate religious vocation or

calling and is personally known to be such by the offender before or at the time of
the commission of the crime;

5) When the victim is a child below seven (7) years old;

6) When the offender knows that he is afflicted with the Human Immuno-
Deficiency Virus (HIV)/Acquired Immune Deficiency Syndrome (AIDS) or any
other sexually transmissible disease and the virus or disease is transmitted to the
victim;

7) When committed by any member of the Armed Forces of the Philippines or

para-military units thereof or the Philippine National Police or any law
enforcement agency or penal institution, when the offender took advantage of his
position to facilitate the commission of the crime;

8) When by reason or on the occasion of the rape, the victim has suffered
permanent physical mutilation or disability;

9) When the offender knew of the pregnancy of the offended party at the time of
the commission of the crime; and
10) When the offender knew of the mental disability, emotional disorder and/or
physical handicap of the offended party at the time of the commission of the
crime.

"Rape under paragraph 2 of the next preceding article shall be punished by

prison mayor.

"Whenever the rape is committed with the use of a deadly weapon or by two or
more persons, the penalty shall be prison mayor to reclusion temporal.

"When by reason or on the occasion of the rape, the victim has become insane,
the penalty shall be reclusion temporal.

"When the rape is attempted and a homicide is committed by reason or on the

occasion thereof, the penalty shall be reclusion temporal to reclusion perpetual.

"When by reason or on the occasion of the rape, homicide is committed, the

penalty shall be reclusion perpetua.

"Reclusion temporal shall be imposed if the rape is committed with any of the ten
aggravating/ qualifying circumstances mentioned in this
article.

"Article 266-C. Effect of Pardon. - The subsequent valid marriage between the
offended party shall extinguish the criminal action or the penalty imposed.

"In case it is the legal husband who is the offender, the subsequent forgiveness
by the wife as the offended party shall extinguish the criminal action or the
penalty: Provided, That the crime shall not be extinguished or the penalty shall
not be abated if the marriage is void ab initio.

"Article 266-D. Presumptions. - Any physical overt act manifesting resistance

against the act of rape in any degree from the offended party, or where the
offended party is so situated as to render her/him incapable of giving valid
consent, may be accepted as evidence in the prosecution of the acts punished
under Article 266-A."

Section 3. Separability Clause. - If any part, Sec., or provision of this Act is

declared invalid or unconstitutional, the other parts thereof not affected thereby
shall remain valid.

Section 4. Repealing Clause. - Article 336 of Act No. 3815, as amended, and all
laws, acts, presidential decrees, executive orders, administrative orders, rules
and regulations inconsistent with or contrary to the provisions of this Act are
deemed amended, modified or repealed accordingly.
Section 5. Effectivity. - This Act shall take effect fifteen (15) days after
completion of its publication in two (2) newspapers of general circulation.

Approved: September 30, 1997.

CHAPTER I: CONCEPT, NATURE AND ESSENCE OF RAPE

Concept of Rape

In general, rape is defined as the act of having carnal knowledge of a woman by

a man, forcibly and against her will, or without conscious permission, or where
permission has been extorted by force or fear of immediate harm (Evans v. State,
21 S.E. 2nd 336, 337, 47 Ga. App. 631).

Stated otherwise, it is the act of unlawful sexual intercourse between persons not
married to each other accomplished through the use of force or fear of force by
the man and implying lack of consent by the woman (Legal Dictionary by Gifis,
1975 ed).

The Revised Penal Code defines rape as the carnal knowledge of a woman by
using force or intimidation, or when she is deprived of reason or otherwise
unconscious, or when she is under twelve years of age (Art. 335).

Nature of Rape

Rape, like prostitution, is as old as mankind. It is a most detestable crime which

ought to be severely and impartially punished (2 Chatys Blackstone 165; People
vs. Leones, 117 SCRA 383; U.S. vs. Flores, 26 Phil. 726; People vs. Quintal 125
SCRA 734). It is nauseating (People vs. Ramos 165 SCRA 488). It is horrible
(People vs. Erinia, 50 Phil. 998). It is an accusation easy to make, hard to prove,
but harder to defend by the party accused, though innocent (U.S. vs. Flores,
supra; People vs. Leoparte, 187 SCR.A 190; People vs. Cabading, 174 SCRA
48). It is of such a nature that it can only be established by clear and positive
evidence and cannot be made to depend upon inference or dubious
circumstantial evidence (People vs. Fortin, L-7392, August 11, 1955).

Rape is an offense, to which, as is often the case, only two people can testify,
thus requiring the most conscientious effort on the part of the arbiter to weigh and
appraise the conflicting testimonies (People vs. Nazareno, 80 SCRA 484).

The detestable crime of rape, in which a man shows his most heinous side, is
one of the hardest to prove. The testimony of the offended party most often is the
only one available to prove directly its commission corroboration by other
witnesses is seldom available. In fact, the presence of such eyewitnesses could,
in certain cases, place a serious doubt as to the probability of its commission.
Perforce, courts of justice are most often placed in the necessary position of
having to accept such uncorroborated testimony sufficient to establish the guilt of
the accused, if the same is in other regards conclusive, logical and probable
(People vs. Landicho, 43 OG 3767).

Rape by its nature, is usually committed in private. Reason: self-preservation

(People vs. Landicho, supra; People vs. Dazo, 58 Phil. 420). It is a crime that
takes only a short time to consummate (People vs. Tamayo, 120 SCRA 412), and
may be committed even in places where people congregate (People vs.
Mangalino, 182 SCRA 329), in a jeep (People vs. Izon, 173 SCRA 118), in a
narrow bathroom (People vs. Paras, 124 SCRA 286), along the roadside, within
school premises or even inside a house where there are other occupants (People
vs. Reyes, 203 SCRA 707). It is reprehensible (People vs. Ramirez, 69 SCRA
144).

Rape is essentially an offense of secrecy, not generally attempted except in dark

or deserted and secluded places, away from prying eyes. (People vs. Nuflez, 208
SCRA 34).

Rape is not a continuous offense, but each act of intercourse constitutes a

distinct and separate crime for which separate indictment may be preferred (75
GS 465).

The crime of rape is not to be presumed (People vs. Alvarez, 55 SCRA 81;
People vs. Reyes, 60 SCRA 126), but should be proven by clear and conclusive
ev.idence (U.S. vs. De Dios, 8 Phil. 279; People vs. Teodosio, 198 SCRA 121).
Hence, courts are admonished t exercise painstaking care in scrutinizing the
testimony of complainant (U.S. vs. Ramos, 35 Phil. 671; People.vs. Topacio,
OG1 1358).

There is need, therefore, for the most careful scrutiny of the testimony of the
state, both oral and documentary, independently of whatever defense is offered
by the accused. Only if the judge below and the appellate tribunal could arrive at
a conclusion that the crime had been committed precisely by the person on trial
under such an exacting test should the sentence be one of conviction. It is thus
required that every circumstance favoring his innocence be duly taken into
account. The proof against him must survive the test of reason, the strongest
suspicion must not be permitted to sway judgment. The conscience must be
satisfied that on the defendant could be laid the responsibility for the offense
charged that not only did he perpetrate the act but that it amounted to a crime.
What is required is moral certainty (People vs. Reyes, supra).

The testimony of complainant should not be received with precipitate

credulity and when her case depends upon her uncorroborated testimony, it
would not be sufficient unless it is in all respects candid and free from suspicion
(People vs. Arriata, 60 Phil. 326; People vs. Fausto, 51 Phil. 882).
Crimes against chastity by their very nature usually involve only two
persons the complainant and the offender. Seldom, if ever, is there an
eyewitness to the commission of the offense. As a consequence, conviction or
acquittal of the accused depends almost entirely on the credibility of
complainants testimony. It is, therefore, for a good reason that courts should
examine with the greatest care the complainants story and subject it to a
thorough scrutiny to determine its veracity in the light of human nature and
experience (People vs. Martinez, 126 SCRA 102).

In crimes against chastity, the testimony of the injured woman should not be
received with precipitate credulity; and when the conviction depends at any vital
point upon her uncorroborated testimony, it should not be accepted unless her
sincerity and candor are free from suspicion x x x (People vs. Francisco, 185
SCRA 516).

The Essence of the Crime of Rape

The essence of the crime of rape is not the fact of intercourse, but the injury
and outrage to the modesty and feeling of the woman, by means of the carnal
knowledge feloniously and forcibly effected (State v. Rome, 56 Ariz 174, 185). It
consists in carrying out the carnal act of the offender with a woman against her
will and each carnal access that is consummated is a complete attack on the
honor, person and liberty of the offended woman, which requires a separate
penalty for each of the defendant (People vs. Bernardo, et al., 39 OG 3479).
The injury in rape cases is not inflicted on the unfortunate victim alone. The
consternation it causes her family must also be taken into account.

The States Policy on Rape

The State condemns with severity the crime of rape. It regards it as an

intrusion into the right of privacy an assault on human dignity.

The States policy on the heinous offense of rape is clear and unmistakable. Life
is made forfeit under certain circumstances. At first blush, the harshness of the
penalty may cause for concern, considering that by the very nature of its
commission, it is both sordid and joyless, the pleasure derived, if any, being
minimal. To be thereafter sentenced to a long period of confinement, perhaps for
the rest of ones life, even to suffer death may appear excessive. Nonetheless,
there is sound reason for such severity. It is an intrusion into the right of privacy,
an assault on human dignity. No legal system worthy of the name can afford to
ignore the traumatic consequences for the unfortunate victim and previous injury
to the peace and good order of the community. Nonetheless, 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 done to an accused. For it is equally true that only
two people can testify, thus requiring the most conscientious effort on the part of
the arbiter to weigh and appraise the conflicting testimony. if a reasonable doubt
exists, the verdict must be one of acquittal. (People vs. Reyes, 60 SCRA 126;
People vs. Nazareno, 80 SCRA, supra).

The imposition of severe penalty on rape is a manifestation of the high

respect the country accords to its female population. Any departure from such a
norm is a betrayal of a deep-seated national tradition (U.S. vs. Flores, 26 Phil.
262; People vs. Quaizon, 78 SCRA 513). It shows the legislative intention to curb
the rampancy of that sexual offense to protect women against the unbridled
bestiality
persons who cannot control their libidinous proclivities (People vs. Babasa, 87
SCRA 672).

The state, as pareizs patriae, is under the obligation to minimize the risk of harm
to those, who, because of their minority, are as yet unable to take care of
themselves fully. Those of tender years deserve its utmost protection. Moreover,
the injury in cases of rape is not inflicted on the unfortunate victim alone. The
consternation it causes her family must also be taken into account. It may reflect
a failure to abide by the announced concern in the fundamental law for such
institution. (People vs. Cawili, 65 SCRA 24).

The severe penalty imposed on the crime of rape reflects the societal feeling of
revulsion for the degradation imposed on an unwflhing victim or one presumed
unable to give consent (People vs. Lopez, 74 SCRA 205, citing Brownmillers
Against Our Will).

(W) with the changing mores, there should be less occasion for a resort to
violence or intimidation. Aptly has it been said that further refinement in the
techniques of persuasion could possibly lead to the same result and at that, to
the mutual satisfaction of both parties. On a clear showing, therefore, that the
requisites of the law exist, it is imperative, if it is to serve its deterrent purpose,
that the offender be subjected to the repressive measure his deplorable conduct
has elicited. (Ibid).

CHAPTER II

KINDS AND ELEMENTS OF RAPE

Kinds of Rape
Rape may be classified into simple, qualified or statutory. When it is committed
with the use of a deadly weapon or by two or more persons, it is qualified (Art.
335, Revised Penal Code as amended by RA 2632, RA 4111 and BA 7659;
People vs. Carandang, 52 SCRA 259). If committed without the attendance of
any of the said qualifying circumstances, it is simple (People vs. Dela Cruz, L-
28810, March 27, 1974; People vs. Oscar, 48 Phil. 527; People vs. Hernandez,
49 Phil. 980; People vs. Gonzales, 58 SCRA 265). Statutory rape is sexual
intercourse with a girl under the age of consent as defined by statute (65 AmJur
2d 769). In this jurisdiction, twelve is the statutory age of consent (Art. 335,
supra).

The gravamen of statutory rape is merely carnal knowledge of a woman below

twelve years of age (People vs. Villegas, Jr., 127 SCRA 195; People vs. Villegas,
Jr., 127 SCRA 195; People vs. Dela Cruz, 56 SCRA 84; People vs. Santos, 189
SCRA 25). Force and intimidation are not its essential ingredients. They may be
present or absent without affecting the criminality of the carnal knowledge (Paige
vs. State, 219 Ga 569, 154 SE ed 7095; People vs. Mangalino, 182 SCRA 329).
Nonconsent of a female is not essential, nor consent a defense (69 Am Jur 2d
770).

In statutory rape, proof of intimidation or force used on the victim, or lack of it, is
immaterial (People vs. Mangalino, supra).

Thus, if the offended party is less than twelve years old, rape is committed
although there is consent to the sexual act. For being of tender age, she does not
have the will of her own and the law does not consider any kind of consent given
by her voluntarily (People vs. Villamor, 37 OG 947; People vs. Morales, 94 SCRA
191). It is settled doctrine that carnal knowledge of a girl under twelve years of
age is always rape, even if no force or intiiiiidation is used and even if she is not
deprived of reason or otherwise made unconscious, and even if she agrees or
consents. (People vs. Villegas, Jr. sup ra, People vs. Pelias Jover, 137 SCRA
160).

The above philosophy manifests the deep concern of the State for the welfare of
the child. Such an approach vitalizes further the concept of parens patriae
(People vs. Baylon, 57 SCRA 114; People vs. Cawili, 65 SCRA 24).

Elements of Rape

The elements that constitute the crime of rape are carnal knowledge, force or
intimidation and the commission of the act without the consent, or against the
will, of the woman, oi. where the latter is under twelve years of age, or when she
is deprived of reason, or otherwise unconscious. Article 335 of the Revised Penal
Code mandates that rape is committed by having carnal knowledge of a woman
by using force or intimidation, when the woman is deprived of reason or
otherwise unconscious, or when the woman is under twelve years of age or is
demented.

Carnal Knowledge

Carnal knowledge means sexual intercourse. It is the actual contact of the sexual
organs of a man and a woman. It denotes penetration (15 CJS 471). Penetration
means that the sex organ of the male entered the sexual organ of the female
(Calhoun v. State, 115 S.W. 265). The slightest penetration is enough for
conviction in the crime of rape (People vs. Selfaison, 1 SCRA 235). For a
consummated rape to exist, it is not necessary that there be a complete
penetration or destruction of the hymen (People vs. Hernandez, 49 Phil. 980).
Perfect penetration is not essential. Mere entry into the labia or lips of the female
private parts without rupture of the hymen, or laceration of the vagina is sufficient
to warrant conviction (People vs. Tirado, 47 OG 12 p 6337; People vs. Oscar, 48
Phil. 527; People vs. Royeras, 56 SCRA 666; People vs. Anonas, 58 SCRA 505;
People vs. Rebancos, 172 SCRA 425).

It is settled rule that any penetration, however slight, and whether reaching the
hymen or not, is sufficient to constitute the crime of rape (People vs. Hernandez,
49 Phil. 980; People vs. Villamor, 37 OG 974). It is undoubtedly the law that
penetration even to the least extent will be sufficient, and this may be inferred
from the circumstances of the crime (People vs. Itac, 98 SCRA 644). In the crime
of rape, what is essential is evidence of penetration of the offenders. sex organ
into the complainants sex organ (People vs. Sato, 163 SCRA 602). Any
penetration of the females body by the male organ is sufficient (People vs.
Alvarez, 163 SCRA 745). Slight penetration, even without emission, is sufficient
for conviction (People vs. Bautista, 102
SCRA 483).

It is settled rule that for rape to be consummated, it is not essential that there be
perfect, complete and full penetration of the vagina. Mere entry of the labia or lips
of the female organ without rupture of the hymen or laceration of the vagina, is
sufficient to warrant conviction for consummated rape. (People vs. Hangdaan,
201 SCRA 568, citing People vs. Oscar, 48 Phil. 527).

It is enough that there be proof of entrance of the male organ within the labia of
the pudendum, or lips of the female organ (People vs. Paton-og, 155 SCRA 675;
People vs. Pastores, 40 SCRA 498; People vs. Conchada, 88 SCRA 683; People
vs. Selfaison, 1 SCRA 235).

It is not necessary to determine how far the penis penetrated the vagina for rape
to exist. After all -Scientific and anatomical distinctions as to where the vagina
commences are worthless in a case of rape; it is enough if the womans body is
entered; and it is not necessary to show to what extent penetration of the parts
has taken place, whether it has gone past the hymen, or even so far as to touch
the hymen. (People vs. Basas, 130 SCRA 178, citing Stwart on Legal Medicine,
p. 137; State v. Johnson, 91 Mo. 439, cited in Hernandez case).
In People vs. Erinia, 50 Phil. 998, it was ruled:

It has been suggested that the child was of such tender age that penetration
was impossible; that the crime of rape consequently was impossible of
consummation; and that, therefore, the offense committed should be treated only
as abuso dishonestos. We do not think so. It is probably true that a complete
penetration was impossible, but such penetration is not essential to the
coinmission of the crime; it is sufficient if there is a penetration of the labia.

The important consideration in rape is the penetration of the pudenda and not
emission of seminal fluid (People vs. Bacalso, 195 SCRA 55; People vs.
Eclarinal, 182 SCRA 106; People vs. Magaluma, 205 SCRA 266).

Force

Force as a necessary element of the crime of rape, is to be taken in its ordinary

acceptation. It means common physical force and fear of life or bodily harm, so
that one is unable to make resistance (David v. State, 39 S.W. 356, 63 Ark. 478).

The force necessary to constitute rape need not be actual physical force, but
fear, fright or coercion (State vs. Thompson, 40 S.E. 620). It may mean
threatened force or violence if the female does not comply (65 AmJur. 2d 764). It
also includes intimidation (King v. Commonwealth, 20 S.S. 224, 225, 14 Ky. Law,
Report 254).

While force is a necessary ingredient in the commission of rape, no particular

amount of it is necessary, nor is it essential that it should create a reasonable
apprehension of death, if the female on whom it was committed had reason to
consider resistance dangerous or even absolutely useless (People v. Jeanor, 23
Ill. 2d 257, 178 NE 2d).

It is a doctrine well-established by the courts that in order to consider the

existence of the crime of rape, it is not necessary that the force employed in
ccomplisli. jag it be so great or of such character as could not be resisted; it is
only necessary that the force uscd by the guilty party be sufficient to
consummate the purpose which he had in view (United States vs. Villarosa, 4
Phil.434; People vs. Sarile, 71 Phil. 593; People vs. Gan 46 SCR4 667).

Degree of Force Required

The degree of force required to constitute rape is relative depending upon the
particular circumstances, but in any case it must be sufficient to subject and put
the dissenting woman within the power of the man and thus enable him to have
carnal knowledge of her notwithstanding good-faith resistance on her part
(Prokov vs. State, 148 Neb. 582, 28 NW 2d 200, 172 ALR 916).

The force or violence necessary in rape is naturally a relative term, depending

on the size and strength of the parties and their relation to each other. What is
essential is that the act was accomplished against the *ill of the aggrieved
person, and in spite of her resistance. (U.S. vs. Villarosa, supra; People vs.
Momo, 56 Phil. 86; People vs. Savellano, 57 SCRA 320; 75 CJS 476).

In rape, force need not be irresistable. It need not be present, and so long as it
brings about the desired result, all considerations of whether it was more or less
irresistable is beside the point (People vs. Momo, supra; see also People vs.
Villarosa, 174 SCRA 70).

Force to be attendant as to make the sexual act the crime of rape, it need not be
irresistible. It is enough that the force used is such as would make possible the
consummation of the desire for an intercourse, considering the age of the parties,
their sizes, strength and relation to each other. (People vs. Tejada, 107 SCRA
176).

It is not even necessary in rape that the offender in using fbrce should be armed
with a weapon to intimidate the womah. The use of a deadly weapon serves only
to increase the penalty (People vs. Sato, 163 SCRA 602).

The victim need not kick, bite, hit, slap or scratch with her fingernails the
offender so that she may successfully claim that she has been raped. It is
enough that the coition is taken against her will, explicit and persistent,

for the absence of the consent at the initial stage of the coitus is converted into a
tacit assent when the woman contributes to its consummation with her quietude
and passivity (U.S. vs. De Bios, 8 Phil. 270). It is sufftcient that the carnal
knowledge is done after the woman yields because of authentic apprehension
and real fear of immediate death or great bodily harm. (People vs. Dolores,
CA.GR No. 10065.R, August 23, 1957).

In the rape of a daughter, the degree of force or intimidation need not be the
same as where the parties are not related to each other (People vs. Navarette,
101 SCRA 394).

Proof of Force

Where the offense charged is rape through force, there must be a showing of
compulsion being resorted to and coercion employed. The element of
voluntariness must be lacking. If there be an indication of willingness, even if
halfhearted, the complaint must be dismissed (People vs. Joven SCRA 126;
People vs. Lopez, SCRA 1216).

The force and violence must be proven by clear and conclusive evidence (U.S.
vs. De Dios, supra). Thus, the accepted rule in rape cases is that the element of
force must be proven by clear and conclusive evidence; otherwise, there is
reason to suspect the act was committed with consent (U.S. vs. Flores, 25 Phil.
262).

Intimidation

The crime of rape can be committed even if no force is used. Intimidation is

sufficient (People vs. Garciness, 57 SCRA 653).

Intimidation is the act of deterring a person by threats (the New Webster

Encyclopedic Dictionary). It consists in causing or creating a fear in the mind of a
person or in bringing in a sense of mental distress in view of risk or evil that may
be impending really or in imagination (People vs. Marco, 12, C.A.R. (2s) 383,
Philippine Law Dictionary, 1972 edition). It includes the moral kind such as the
fear caused by threatening the girl with a knife or pistol (People vs. Garciness,
supra). Thus, rape is committed where intimidation is used on the victim and the
latter submits herself against her will because of fear for her life and personal
safety (People vs. Aruego, 181 SCRA 344).

Appellants contention that the prosecution did not prove that he used force in
having carnal knowledge of Rosella does not mean that no rape was committed.
The crime can be committed by employing intimidation. Rosella was thirteen
years, four months and twenty-nine days old at the time. She was raped. She
was an immature teenager. She could easily be coerced or cowed by a big old
farmer and former security guard x x x. The case is not far removed from that of
an eleven-year old girl with whom voluntary carnal intercourse is considered rape
(People vs. Garciness, supra).

Resistance

To render the carnal act as rape, it is necessary that it must have been
committed against the resistance of the woman (People vs. Nazworth, 152 Cal.
583, 49 P711). Resistance establishes two elements carnal knowledge by
force by one of the parties and nonconsent by the other (65 AmJur 2d 764).

Resistance must be manifest and tenacious. Mere initial resistance is not enough
(People vs. Lazo, 45 OG 1356). Resistance by acts and not by mere words is
required (Mills vs. United States, 164 US 644).

It is generally held that the resistance required depends on the parties relative
strength (People v. Ford, 81 Cal. Pa 2d 580), the degree of force manifested
(People v. MenU, 104 Cal. Pa 2d 257), the fear instilled in the victim (Jazel v.
State, 221 Hid 364), and all other circumstances dependent upon the facts of the
case (State v. Dizon, 47 Hawaii 444). But it is important that her resistance must
be in good faith, and not feigned (Kidd v. State, 97 Olda Crim 455, 266 P 2d
992).

Merely trying to resist the alleged sexual assault is not a basis for conviction.
Mere attempt without actual resistance would not be sufficient basis for a finding
of rape (People vs. Lacuna, 7 SCRA 364).

It must be noted from the foregoing that complainant did not offer any resistance
or shout for help against the alleged sexual assaults. She merely tried to resist.
Since complainant did not offer any resistance or vocal protestations, there can
be no basis or support for a conviction for rape (People vs. Castro, 58 SCRA
473). If there was any resistance, it was alleged in general terms which likewise
cannot suffice to sustain a conviction (People vs. Ching Suy Siong, L-6174, Feb.
28, 1955). Where the offense charged is rape through force, the element of
voluntaries must be lacking. If there is an indication of willingness even if half-
hearted, the complaint must be dismissed. (People vs. Joven, L-36022, May 22,
1975; 64 SCRA 126).

When some degree of hesitation is shown by the woman or that she had
contributed in some way to the realization of the act, there is no rape (Viada as
quoted in U.S. vs. de Dios, 8 Phil. 279; People vs. Castro, 84 Phil. 118).

CHAPTER III
PERSONS LIABLE FOR RAPE

General Statement

The crime of rape can be committed directly only by a male person who has
sufficient mental capacity and physically capable of doing it (75 CJS 466). It
camiot be committed directly by a woman, although she can be held liable for it
(State v. Fisherty, 146 A, 7, 128 Mo 141).

The Husband

A husband cannot be guilty of actual rape upon his wife (People vs. Pizzura, 211
Mich 71, 178 SW 235, 10 ALR 403), nor of an attempt to have sexual intercourse
with her forcibly and against her will. The reason is that when the woman
assumed the marriage relations she gave her body and irrevocable consent to
sex with the husband under all circumstances which the law will not permit her to
retract in order to charge her husband with the offense (Frazier vs. State, 48 Tex
Crim 142, 86 SW 754). This rule applies even where the marriage is voidable as
when the girl is under age (People vs. Pizzura, supra).
Where there is legal separation, however, the husband who forces his wife to
submit to carnal act can be guilty of rape. This is so because legal separation
entitles the spouses to live separately from each other, although their marriage
bonds are not severed (Art. 63, Family Code of the Philippines).

The rule of no-rape in marriage has been declared anachronistic and offensive
fiction and quite unacceptable in these modern times by the House of Lords, the
highest court of appeals of London.

Where the husband forces his wife to have intercourse with another man, he can
be guilty of rape (State v. Blackwell, 241 or 528, 407 P2d 617). The other man
may be acquitted (State v. Haines, 51 Le Ann 731, 25 So 372).

Plainly, where it appears that the intercourse with the wife was accomplished by
a man other than the husband, and that the latter procured it to be done, or
assisted the man in its execution, the husband can be guilty of rape. (People vs.
Damien, 28 Iii 2d 464, 193 NE 2d 25; Cody v, State (Okia Cri) 361).

The view is that a husband is guilty of rape on his wife as a principal where to
secure evidence for a divorce he makes an agreement with another person that
the latter shall be caught in the act of sexual intercourse with her and he is
present and witnesses a rape on her by such person and does nothing to prevent
it. It has been said the he would be guilty of the crime in such case even if he
Were not 1)reseut and intended that the intercourse should be accomplished by
consent and not by force (People vs. Chapman, 62 Mich. 280, 20 SW 896).

The Wife

The wife can be guilty of rape, although she cannot commit the offense directly
(State v. Fisherty, supra). If she procures that rape be done, or assists in its
execution, she can be liable either as co-principal, accessory or accomplice,
depending on her participation.

Participation in Rape

The general rule is, all persons present, aiding and abetting another in the
commission of rape are guilty as principals and punishable equally with the
actual perpetrator of the crime (Lacewell v. Hiatt, CA Ga 173 F. 2d 889). Thus, a
driver of a motor vehicle in which a rape is committed, although not directly
participating in the offense, may, by his act or conduct, be guilty as a principal
(People v. Marx, 125 NE. 719, 291).

One who assists, procures or counsels another to commit rape and is absent
when it is committed, is guilty as an accessory before the fact (Clayton v. State,
13 So. 2d 420).
A husband who aids, abets, procures or counsels another to commit rape on his
wife may be convicted as principal or accessory before the fact depending on the
circumstances (Ex-parte Crawfourd, 120 P. 2d 202, 61 Nev. 152). Likewise, a
woman may be guilty of rape if she procures, counsels or aids a man to commit
rape on another (State v. Carter, 182 P. 2d 90, 66 Ariz. 52).

To be an aider or abetter, it is immaterial whether a person is disqualified from

being the principal actor by reason of age, sex, condition, or class (65 AmJur 2d
776).

Thus, a woman or the husband of the female victim,. who aids, abets,
encourages or assists in the commission of the crime may be convicted as a
principal (Ibid).

Ones presence at the scene of the crime may be considered in connection with
the surrounding facts in determining whether he or she assists, aids or abets in
the commission of the crime (People vs. Marx, supra).

A driver who drives an automobile several miles out of the way in a city while his
companions forcibly have sexual relations with the prosecutrix at the back of the
car, may be sufficient to render him criminally responsible for the act (Ibid).

One who, according to the testimony of the prosecutrix, a girl of 15, held her
while another criminally assaulted her,may be convicted of being accessory to
the crime of carnal abuse (Warford v. State, 214 Ark 423, 216 Subd. 781 ALR2d
996).

Conspiracy in Rape

In rape, the general rule is that once conspiracy is established, all persons who
participate in the crime are coprincipals. All those who coordinate in a rape in an
organized band, are guilty for each and all violations (People vs. Toledo, 83 Phi.
777).

If there was conspiracy, where each of the accused cooperated with one another
in abusing the victim, each is guilty as principal not only of the rape committed by
him but also of that committed by his co-defendants (People vs. Villa, 81 Phil.
193; People vs. Alfara, 91 Phil. 404; People vs. Soriano, 35 SCRA 633).

Where two persons are involved in the commission of a crime, such as robbery,
and in the course of which one of them rapes a woman and the other does not
make any attempt to prevent the rape, but stands guard while it is going on, the
latter may be held liable for the rape to the extent as the one who actually
commits the rape (People vs. Galamiton, L-6302, August 25, 1954; U.s. vs.
Santos, 17 Phil. 618).
Where a girl was forcibly taken by a group of men, two of whom raped her, the
offense was abduction with rape. The defendant who did not himself have
intercourse with the girl is guilty of abduction with rape by reason of his taking
part in the affair and his conduct in assisting the accomplishment of the rape
(People vs. Ching Suy Siong, L-6174, February 28, 1955). Where it is shown,
however, that he never encouraged or took part directly or indirectly in the acts
complained of, although he was present with the other, he cannot be held liable
(Ibid).
Where each of the several defendants had sexual intercourse, through force,
with the offended woman whom they had conspired to rape, each of them was
held responsible not only for the rape committed personally by him, but also for
that committed by the others (People vs. Villa, supra; People vs. Quitain, 99 Phil.
226).

Plainly, there is collective responsibility among the conspirators. Because of this,

the crime is viewed as the act of a band (U.S. vs. Bandal, 3 Phil. 89, cited in
People vs. Peralta, 25 SCRA 719).

Thus, where one of the accused tore the victims panty and lay on top of her,
while the other two accused, one held her legs and the other held her shoulders,
all of them are guilty as principals (People vs. Amit, 87 SCRA 793).

Where each of the three accused helped one another in raping the victim, each
accused is guilty of the commission of three rapes by conspiracy and three
separate penalties shall be imposed (People vs. Babasa, 89 SCRA 672).

In People vs. Reglos, 118 SCRA 344, only one crime of rape was committed. The
Court, however, found the three accused guilty of three rapes as co-conspirators,
because they helped one another in raping the victim.

CHAPTER IV: STAGES OF EXECUTION

The crime of rape, like other felonies, used to have three stages of execution,
namely: attempted, frustrated and consummated. Philippine jurisprudence,
however, has long abandoned the frustrated stage in the crime of rape. Thus, to
date, only the Erinia case (50 Phil 998) stands as the first and only decision in
this jurisdiction on frustrated rape.

(No. 26298. January 20, 1927)

THE PEOPLE OF THE PHilIPPINES ISJANDS, plaintiff and appellee, vs. Julia
Erinia Y. Vinolla, defendant and appellant.
This is an appeal from a judgement of the Court of First Instance of Manila
finding the defendant guilty of the crime of consummated rape and sentencing
him to suffer seventeen years, four month and one day of reclusion temporal,
with the accessory penalties provided by law and to pay the costs.

The victim of the crime was a child of 3 years and 11 month and the evidence is
conclusive that the defendant endeavored to have carnal intercourse with her,
but there may be some doubt whether he succeeded in penetrating the vagina
before being disturbed by the timely intervention of the mother and the sister of
the child. The physician who examined the genital organ of the child a few hours
after the commission of the crime found a slight inflammation of the exterior parts
of the organ, indicating that an effort had been made to enter the vagina, but in
testifying before the court he expressed doubts as to whether the entry had been
effected. The mother of the child testified that she found its genital orgun covered
with a sticky substance, but that cannot be considered conclusive evidence of
penetration.

It has been suggested that the child was of such tender age that penetration was
impossible; that the crime of rape consequently was impossible of consummation
and that therefore, the offense committed should be treated only as abusos
deshonestos. We do not think so. It is probably true that a complete penetration
was impossible, but such penetration is not essential to the commission of the
crime; it is sufficient if there is a penetration of the labia. In the case of Kenney
vs. State (Tex. Crim. App.), 79 S.W., 81r65 LR.A., 316) where the offended party
was a child of the age of 3 years and 8 months, the testimony of several
physicians was to the effect that the labia of the privates of a child of that age can
be entered by a mans male organ to the hymen and the defendant was found
guilty of the consummated crime of rape.

There being no conclusive evidence of penetration of the genital organ of the

offended party, the defendant is entitled to the benefit of the doubt and can only
be found guilty of frustrated rape, but in view of the fact that he was living in the
house of the parents of the child as their guest, the aggravating circumstance of
abuse of confidence existed and the penalty must therefore be imposed in its
maximum degree.

The judgement appealed from is modified and the defendant-appellant is hereby

found guilty of the crime of frustrated rape and is sentenced to suffer twelve
years of prison mayor, with the accessory penalties prescribed by law, and with
the costs in both instances. So ordered. Johnson, Street, Villamor, Romualdez,
and Villa- Real., concur. MALCOM, J., dissenting:

In my opinion, the accused is guilty of raping a child 3 years and 11 month of

age. It is consammated rape according to the evidence of record, the findings of
the trial judge, and our decisions. (People vs. Hernandez (1925), 49 Phil., 980;
People vs. Oscar (1925), 48 Phil., 527). The instant case is on all forms with the
case of Kenney vs. State (65 L.R.A., 316), cited in the majority decision. In the
Kenney case, the penalty was death, and here for this horrible crime, should be
placed in the maximum degree, or seventeen years, four months, and one day
inaprisoaunent, as imposed by the trial court. Accordingly, my vote is for
affirmance of the judgement.

Judgement modified.

The above decision has not been reiterated in subsequent decisions. Hence, the
Supreme Court has considered it strayTaking into account the nature,
elements and maimer of execution of the crime of rape and jurisprudence on the
matter, it is hardly conceivable how the frustrated stage in rape can be
committed. (People vs. Orita, 184 SCRA 105).

In abandoning the frustrated stage in the crime of rape, ;he Supreme Court
explained:

ART. 335. When and how rape is committed. - Rape is committed by having
carnal knowledge of a woman under any of the following circumstances:

1. By using force of intimidation;

2. When the woman is deprived of reason or otherwise unconscious; and

3. When the woman is under twelve years of age, even though neither of the
circumstances mentioned in the next preceding paragraphs shall be present.

"xxx".

Carnal knowledge is defined as the act of a man in having sexual bodily

connection with a woman (Blacks Law Dictionary, Fifth Edition, p. 193).
On the other hand, Article 6 of the same Code Provides:

ART. 6. Consummated, frustrated, and attempted felonies. Consummated

felonies as well as those which are frustrated and attempted, are punishable.

A felony is consummated when all the elements necessary for its execution and
accomplishment are present and it is frustrated when the offender performs all
the acts of execution which would produce the felony as a consequence but
which, nevertheless, do not produce it by reason of causes independent of the
will of the perpetrator.

There is an attempt when the offender commences the commission of a felony

directly by overt acts, and does not perform all the acts of execution which should
produce the felony by reason of some cause or accident other than his own
spontaneous desistance.
Correlating these two provisions, there is no debate that the attempted and
consummated stages apply to the crime of rape. Our concern now is whether or
not the frustrated stage applies to the crime of rape.

The requisites of a frustrated felony are: (1) that the offender has performed all
the acts of execution which would produce the felony and (2) that the felony is
not produced due to causes independent of the perpetrators will. In the leading
case of United States v. Eduave, 36 Phil 209, 212, Justice Moreland set a
distinction between attempted and frustrated felonies which is readily understood
even by law students: Vxxx A crime cannot be held to be attempted unless the
offender, after beginning the commission of the crime by overt acts, is prevented,
against his will, by some outside cause from performing all of the acts which
should produce the crime. In other words, to be an attempted crime the purpose
of the offender must be thwarted by a foreign force or agency which intervenes
and compels him to stop prior to the moment when he has performed all the acts
which should produce the crime as a consequence, which acts it is his intention
to perform. If he has performed all of the acts which should result in the
consummation of the crime and voluntarily desists from proceeding further, it can
not be an attempt. The essential element which distinguishes attempted from
frustrated felony is that, in the latter, there is no intervention of a foreign or
extraneous cause or agency between the beginning of the commission of the
crime and the moment when all of the acts have been performed which should
result in the consummated crime; while in the former there is such intervention
and the offender does not arrive at the point of performing all of the acts which
should produce the crime. He is stopped short of that point by some cause apart
from his voluntary desistance.

CHAPTER V: PROSECUTION

The Complaint: Who Shall File It

The offenses of seduction, abduction, rape or acts of lasciviousness,

shall not be prosecuted except upon a complaint filed by the offended
party or by her parents, grandparents, or guardian, nor in any case, if
the offender has been expressly pardoned by the above named
persons, as the case may be. In case the offended party dies or
becomes incapacitated before he could file the complaint and has no
known parents, grandparents or guardian, the State shall initiate the
criminal action in her behalf. (Par. 3, Sec. 5, Rule 110, Rules of
Court).

Under the above provision of law, the right to institute a criminal

action for the offenses of seduction, abduction, rape or acts of
lasciviousness is reposed exclusively and successively on the persons
enumerated in the order they are named. This means,no one has the
authority to proceed if there is some other person previously
mentioned with legal capacity to appear and institute the action. Thus,
a father cannot file a complaint for any of the above named crimes
committed against his daughter if the latter has the legal capacity to
appear and institute the action (People vs. De los Santos, 172 SCRA
547; U.S. vs. De la Santa, 9 Phil. 22).

The preferential right of the offended party to file the complaint will
not however apply where she is otherwise physically or legally
incapacitated to do so. In other words, even if she were a minor, she
has the right to institute the prosecution for the above offenses
independently of her parents, grandparents or guardian, unless she is
incompetent or incapable of doing so upon grounds other than her
minority (Par. 4, Sec. 5, Rule 110, Rules of Court).

A complaint for the crime of rape signed by the offended party, despite
minority, confers jurisdiction upon the court (U.S. vs. Bautista, 40 Phil.
35); People vs. Medina, 45 OG 338). However, when the offended
party who is a minor fails to file the complaint, her parents,
grandparents or guardian may file the same (Tolentino vs. Dela Costa,
66 Phil. 100; Par. 4, Sec 5, Rule 110, Rules of Court). The same rule
applies if the minor refuses to file the complaint (People vs. Bangalao,
94 Phil. 354; People vs. Pastores, L-29800, Aug. 31, 1971).

It is well-settled that when the offended party is a minor, the father

may file a complaint under Art. 344of the Revised Penal Code. The
father has the custody of the person of the minor and owes to her all
the legal obligations of maintenance, care and protection growing out
of the relationship. The omission of relationship in the complaint is, if
at all, a formal, not jurisdictional, defect. (People vs. Copro, 126 SCRA
403).

Specially, when the offended party is a minor and she does not file the
complaint, this may be done by her parents, grandparents or guardian,
in the order named. If she is already of age and is in complete
possession of her mental and physical faculties, the complaint should
be filed by her exclusively. This is so because it is her paramount right
to avenge the wrong done to the exclusion of her parents and other
relatives mentioned in the law (People vs. Imas, 64 Phil. 412; People
vs. Bautista, supra).

The Rationale of Article 344

Article 344 requires a complaint of the offended party in crimes against
chastity out of consideration for the offended woman and her family
who might prefer to suffer the outrage in silence rather than go
through with the scandal of a public trial (Samilin vs. CFI of
Pangasinan, 57 Phil. 298; Dario Teves, et al. vs. Vamenta, et al., 133
SCRA 616; Valdepenas vs. People, 16 SCRA 871; People vs. Taada,
166 SCRA 361). The law deems it the wiser policy to let the aggrieved
woman and her family decide whether to expose to public view or to
heated controversies in court the vices, faults and disgraceful acts
occuring in the family (U.S. vs. Bautista, supra).

Article 344 was not enacted for the specific purpose of benefiting the
accused. When it is said that the requirement in Article 344 (that there
should be a complaint of the offended party or her relatives) is
jurisdictional, what is meant is that it is the complaint that starts the
prosecutory proceedings. It is not the complaint which confers
jurisdiction on the court to try the case. The courts jurisdiction is
vested in it by the Judiciary Law (Valdepenas vs. People, supra).

The complaint required in Art. 344 is merely a condition precedent to

the exercise by the proper authorities of the power to prosecute the
guilty parties. And such condition has been imposed out of
consideration for the offended woman and her family who might prefer
to suffer the outrage in silence rather than go through with the scandal
of a public trial. (Samilio vs. CFI of Pangasinan, supra, cited in
Valdepeas vs. People, supra People vs. Estrebella, 164 SCRA 114).

Requirement in Filing Complaint for Rape is Jurisdictional

A complaint for rape shall be filed by the offended party, or her

parents, grandparents or guardian. Such requirement is jurisdictional
and not procedural (People vs. Santos, No. L-8520, June 29, 1952). It
is mandatory. (Tolentino vs. Dela Cruz, 66 Phil. 97; People vs.
Ocampo, 150 SCRA 607; People vs. Mandia, 60 Phil. 372). Failure to
comply with it would be proper basis for a motion to quash under
paragraph (b), Section 3, Rule 117 of the Rules of Court, on the
ground of lack of jurisdiction over the person of the defendant.

The Supreme Court has invariably maintained strict compliance with

the jurisdictional requirement of filing a complaint by the offended
party as defined in Article 344 of the Revised Penal Code and Section 5
of Rule 110 of the Rules of Court (People vs. Engreso, 49 OG 1505)
Meaning of the Term Parents

The term parents refers to both father and mother (U.S. vs.
Garibosa, 25 Phil. 171). Either has no preferential right over each
other This means one can file a complaint even in the presence of the
other (People vs. Mariano, L47437, Sept. 29, 1983). They jointly
exercise parental authority over the legitimate children who are not
emancipated. It is their duty to represent their emancipated children in
actions which may redound to their benefit (Arts. 311 and 316, New
Civil Code).

It is contended that the trial court did not acquire jurisdiction over the
case because the complaint for rape was filed by the mother of the
eleven-year old offended girl and not by the father. It is argued that
the father had the exclusive authority to file the complaint. Held: The
contention is untenable. It is based on a dubious technicality. If
sustained, it might defeat the ends of justice. It is not sanctioned by
Section 4 of Rule 110, nor by Article 344 of the Revised Penal Code
whose provisions do not categorically specify that father has the
preferential right to file the complaint for seduction, abduction, rape or
abuso deshonestos. It is noteworthy that the father and mother jointly
exercise parental authority of their legitimate children who are not
emancipated. It is their duty to represent their emancipated children in
allactions which may redound to their benefit (People vs. De Ia Cruz,
56 SCRA 84).

In the same manner, neither the grandparents grandmother or

grandfather has preferential right over the other in the filing of the
complaint for and on behalf of their grandchildren.

Guardian Explained

The term guardian pertains to one legally appointed by the court, or

that the guardian must be a legal or juridical guardian (People vs. De
la Cruz, 59 Phil. 531). Thus, an aunt who has the mere temporary
custody of a minor during the absence of her father is not a guardian
within the meaning of the word as used in Article 344 of the Revised
Penal Code. Accordingly, a complaint filed by her confers no
jurisdiction upon the court (People vs. De la Cruz, supra).

In People vs. Formento, et al, 60 Phil. 484, it was held that when a
person affirms under oath that he is the guardian of a minor, and this
fact was not denied, his affirmation under such circumstances
constituted sufficient evidence that he is the guardian in the legal
sense.

Purpose of Preferential Rule

The purpose of the preferential rule is to give the offended party a

preferential right in the filing of the complaint despite her incapacity by
reason of nonage if not otherwise incapacitated. In other words, the
law places the offended party in the first rank for the filing of the
complaint irrespective of her age, except where she is suffering from
some legal or physical impediments determinative of the restriction of
juridical personality and civil capacity to appear at the trial (Moran,
Comments on the Rules of Court, 1957 ed., citing U.S. vs. Bautista, 48
Phil, 735).

Sufficient Compliance with Jurisdictional Requirement

When a criminal prosecution for rape was commenced by the filing of a

complaint not by the offended party who was a minor, but by her
father, it was held that the filing of the complaint was sufficient
compliance with the requirement of the law (Tolentino vs. De la Costa,
65 Phil. 97; People vs. Varela, 64 Phil 1066; People vs. Imas, 64 Phil.
419). In other words, the court must have jurisdiction over the case
that the complaint be made by the offended party or her
representative legally designed (U.S. vs. Gomez, 12 Phil. 279; Samilin
vs. CFI of Pangasinan, supra; U.S. vs. Castaneres, 18 Phil. 218; People
vs. Palabas, L-8027, August 31, 1954).

The filing of a complaint by the offended party is the one that confers
jurisdiction over the case (U.S. vs. Garcia, 27 Phil. 254; People vs.
Pingul, G.R. No. 40829, July 31, 1934 People vs. Co-Hiok, 62 Phil.
581). Thus, if an information for rape is filed by the fiscal without a
complaint first being filed and signed by the offended party, no
jurisdiction is conferred upon the court to try the case.

In People vs. Manaba, 58 Phil. 665, it was ruled that when the first
complaint filed against the defendant was signed and sworn to by the
chief of police, it was not the complaint of the offended party.
Therefore, it was not a valid complaint in accordance with the law.
Accordingly, the judgment of the court was void for lack of jurisdiction
over the subject matter, and the defendant was never in jeopardy.

Validity of Complaint
When a complaint for rape that is sufficient in form is filed by the
injured party through the investigating Fiscal after the latter had found
a prima facie case against the respondent (in a preliminary
investigation), the filing of said complaint, though unaccompanied by
an information, is sufficient to start the criminal proceedings. This is in
accord with Article 344 of the Revised Penal code which decrees that
the filing of a complaint for rape by the persons named therein is
jurisdictional. In other words, the mere filing of a complaint is
sufficient to initiate a valid prosecution, and no information must be
filed any longer by the fiscal (People vs. Surbano, 37 SCRA 565).

On his own, the fiscal cannot file an information for rape. Neither can
he be required to file one, because that would be doing an act that is
unnecessary and ineffectual (U.S. vs. Narvas, 14 Phil. 410).

The crime of rape being one which is required by Article 344 of the
Revised Penal Code and by Section 5, Rule 110 of the Rules of Court,
to be prosecuted upon a complaint filed by the offended party xxx the
filing with the court of first instance of a sworn complaint charging
such offense, is sufficient to initiate criminal prosecution. As we said in
U.S. vs. Narvas, 14 Phil. 410, the action cannot be prosecuted upon
the information of the fiscal.

A foi-tiori, to require the fiscal to file an information would be to call

for the doing of an act which the law and the rule themselves consider
unnecessary, superfious and ineffectual. (People vs. Surbano, supra).

Defective Complaint

Complaint for rape not signed by the offended party is defective, and
such fatal defect is not cured by lack of objection interposed thereto.
Mere silence or acquiescence of the accused cannot confer jurisdiction
on the court to hear and determine the charge of rape in an
information not signed by the offended party (People vs. Ose, 62 Phil.
271; People vs. Manaba, supra; People vs. Trinidad, 58 Phil. 163;
People vs. Engreso, 49 OG 1505).

Defective complaint in crimes against chastity can be cured only by

making the proper correction in the complaint filed by the offended
party (People vs. Gila, 18 SCRA 753).

Information which Charges Two Separate Offenses is Defective

An information that charges two separate offenses is defective.

That on or about January 17, 1985, in the City of Iligan, Philippines,

and within the jurisdiction of this Honorable Court, accused Dick
Ocapan conspiring and confederating with his common-law wife,
Jocelyn 0. Ocapan, did then and there wilfully, unlawfully and
feloniously and by meaiis of force and intimidation, have carnal
knowledge with one Arlene Yapo, a minor and who was working as
househelper, of the said accused; that thereafter, iii order to prevent
the said Arlen Yapo from reporting to the proper authorities, detained
and deprive her of her liberty for more than five (5) days.

The foregoing information charges rape and serious illegal detention.

Hence, it is defective.
Where two or more offenses are charged in a single information and
the accused failed to object to it before trial, the court may convict him
of as many offenses as are charged and impose on him the penalty for
each and every one of them setting out separately the findings of fact
and law in each case. (People vs. Catan, 205 SCRA 235)

Change in the Allegations Does Not Divest the Court of

Jurisdiction

The right and power of the court to try the accused for the crime of
rape attaches upon the filing of the complaint, and a change in the
allegations thereof as to the manner of committing the crime should
not operate to divest the court of jurisdiction. Thus
We find that His Honor did not correctly apply our ruling in the case of
People vs. Oso. In that case the complaint filed was for forcible
abduction, while the information filed by the Fiscal was for rape.
Inasmuch as the crime of rape is different from the crime of forcible
abduction alleged in the complaint, said complaint could not serve as a
basis for the court to acquire jurisdiction over the crime actually
committed rape. In the case at bar, however, the complaint was for
rape, and this gave the court jurisdiction to try that case. The power of
jurisdiction of the court is not over the crime of rape when committed
on a minor and demented girl, but over rape, irrespective of the
manner in which the same may have been committed (People vs.
Bangalao, 94 Phil. 355)

Information Must Sufficiently Describe the Crime of Rape

The information must sufficiently describe the rape in any of its forms
to warrant conviction, namely: that it is committed by the use of force
or intimidation, that the woman is deprived of reason or otherwise
unconscious, or that she is under twelve years of age, even though
neither of the first two circumstances would be present. Thus, an
amended information filed by the prosecuting attorney, alleging among
other things that the accused voluntarily maliciously, illegally and
criminally succeeded in having carnal knowledge of her several times,
all against her will, does not sufficiently describe the crime of rape
(People vs. Oso, 62 Phil. 271).

The allegation that the accused cohabited with the complainant

without her consent, was held to be insufficient to warrant conviction
of the accused for rape under Article 335 of the Revised Penal Code,
for the simple reason that such allegation does not correctly describe
the crime of rape in any of its forms (People vs. Oso, supra). The
rationale is that an accused should be informed of the nature of the
accusation against him (People vs. Quitalig, 49 OG 5456; see 480
People vs. Race, G.R. No. 93143, August 4, 1992)

Insufficient Information

Where the provincial fiscal filed an information charging the defendant

with the crime of rape at the instance of the offended party, signed
by the offended party at the bottom thereof, the Supreme Court held
the information was insufficient (People vs. Palabaro, L-8027, August
31, 1954).

In People vs. Manaba, 58 Phil 665, the complaint was held not valid
because it was not filed by the offended party, nor by any of the
persons authorized by law. The judgment was held void for lack of
jurisdiction.
Where the defendant was convicted for rape in an information filed by
the provincial fiscal, but not signed by the offended party, the
information was held insufficient to confer jurisdiction on the court to
hear and determine the case (People vs. Trinidad, 58 Phil. 163).

Moreover, the complex crime of rape with homicide may be prosecuted

on the basis of an information of the fiscal. The complaint of the
victims parents or guardian is not essential (People vs. Yu, 1 SCRA
199).
In cases of complex crimes where one of the corn. ponent offenses is a
public crime, the criminal prosecution may be instituted by the fiscaL
The reason therefor is that since one of the component offenses is a
public crime, the latter should prevail; public interest being always
paramount to private interest. Thus under the provisions of Republic
Act No. 2632, amending Art. 355 of the Revised Penal Code, if on the
occasion or by reason of the commission of the crime of rape, whether
consummated or attempted, homicide is committed, the criminal
action may be instituted at the initiative of the prosecuting fiscal
(ICapunan, Criminal Procedure, 1960 ed, pp. 47).

In a complaint for rape, it is not necessary to allege lewd design or

unchaste motive. To require such averment is to demand a patent
superfluity. Lascivious intent inheres in rape and the unchaste design
is manifest in the very act itself the carnal knowledge of a woman
through force or intimidation, or when the woman is deprived of
reason or otherwise unconscious, or when the woman is under twelve
years of age (People vs. Obsenia 23 SCRA 1249; Art. 125, Revised
Penal Code).

Lust or lewd design is an element that characterizes all crimes against

chastity, apart from the felonious intent of the offender and such
element must be always present in order that they maybe so
considered in contemplation of law (People vs. Gito, 10 SCRA 753). In
the crime of rape, however, the Supreme Court had ruled:

We hold in no uncertain terms that in a complaint of rape, it is not

necessary to allege lewd design or unchaste motive, for to allege
such averment is to demand in patent superfluity. Lascivious intent
inheres in rape and the unchaste design is manifest in the very act
itself the carnal knowledge of a woman through force or
intimidation, or where the woman is deprived of reason or otherwise
unconscious or where the woman is under twelve years of age (People
vs. Obsamia, L-24447, June 29, 1968; 23 SCRA 1249).

Illustration

COMPLAINT

THE UNDERSIGNED offended party, after having been duly sworn to

an oath in accordance with law, hereby accuses JOSEPH LEONES Y
DUCUSIN, alias Jessie, of the crime of RAPE committed as follows:

That on or about the 2nd day of April, 1973, in the Municipality of San
Fernando, Province of La Union, Philippines, and within the jurisdiction
of this Honorable Court, said accused Joseph Leones y Ducusin,, alias
Jessie, by means of violence and use of force compelled the offended
party to swallow tablets and consequently thereafter while she fell into
semiconsciousness, the said accused wilfully and feloniously have
carnal knowledge of the complainant Irene Dulay against her will in the
house of the accused.
Contrary to law, with the aggravating circumstance of abuse of
confidence.
San Fernando, La Union, May 8, 1973.

(SGD.) IRENE DULAY

Offended Party
With my conformity:
(SGD.) GAUDENCIO DULAY
Father of Offended Party

INFORMATION

The undersigned Provincial Fiscal, upon sworn complaint originally

filed with the Municipal Court, accuses, Gerardo Avelino of the crime of
rape, defined arid penalized under Art. 335 of the Revised Penal Code,
committed as follows:

That on or about the 12th day of October, 1967, in the municipality of

Sta. Maria, Province of Ilocos Sur, Philippines, and within the
jurisdiction of this Honorable Court, the abovenamed accused, Gerardo
Avelino, did- then and there wilfully, unlawfully and feloniously have
carnal knowledge of one Milagros Degracia by means of force and
violence and intimidation by pointing a sharp pointed bob at her breast
and against the latters will and consent. Contrary to law.

Vigan, Ilocos Sur, December 6, 1967.

(SGD.) JESUS F. GUERRERO

Provincial Fiscal

Who Shall Prosecute The Crime of Rape

The right to prosecute the offense of rape rests exclusively on the

offended party unless she is incompetent or incapable of doing so upon
grounds other than her minority (Section 5, Rule 110, Rules of Court;
Art. 344, Revised Penal Code; Fernandez vs. Lantin, L-44757,
December 17, 1979; People vs. Blanco, 70 Phil. 735; People vs.
Santos, 98 Phil. 111). The right, however, to activvely prosecute the
action belongs to, and is under the direction and control of, the fiscal
(now public prosecutor) (Section 4, Rule 110, Rules of Court; Talusan
vs. Ofiana, 45 SCRA 467).
In other words, the public prosecutor must be present during the
prosecution of the case. He can, however, turn over the active conduct
of the trial to a private prosecutor (People vs. Beriales, 70 SCRA 361;
People vs. Hernandez, 69 Phil. 673), who will not, however, be allowed
to intervene in the prosecution of the case where the offended party
has instituted a separate civil action or has reserved to file an
independent civil action (Section 16, Rule 110, Rules of Court).