Facts:
1.
Zareen Smith, British, came to the
Philippines and chose Boracay in Aklan and Port Barton in Palawan for her
vacation retreats. 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.
2.
Enrico
brought Zareen to Mary's Cottage in Sitio Sabang, Bgy. Cabayugan, and
introduced her to his granduncle Rogelio Marañon and grandaunts Nenita Marañon
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.
3.
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.
4.
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 half-asleep. 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
5.
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.
6. 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.
7.
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.
Issue: WON there was force or intimidation
Held:
Under Art. 335 of the Revised Penal Code, as
amended by Sec. 11, RA 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. Thus wise 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, and later in 1935 in People v. Caballero. 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 wassubsequent 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 " . . . 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, 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 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 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.
In People
v.Dayo, 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.
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 accused-appellant SILVINO SALARZA JR. is
ACQUITTED of the crime charged; consequently, he is ordered
immediately RELEASED from confinement unless held for some other lawful cause.
Costs de oficio.
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