G.R. Nos.

132875-76            November 16, 2001

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

This is an appeal from the decision of the Regional Trial Court of Makati, Branch 62, in Criminal
Case Nos. 96-1985 and 96-1986, convicting accused-appellant Romeo Jalosjos of two (2) counts of
statutory rape, and in Criminal Case Nos. 96-1987, 96-1988, 96-1989, 96-1990, 96-1992, and 96-
1993, for six (6) counts of acts of lasciviousness defined and penalized under Article 336 of the
Revised Penal Code, in relation to Republic Act No. 7610, also known as the Child Abuse Law.

FACTS:

Maria Rosilyn Delantar, who was eleven year old at that time accused Romeo G. Jalosjos of sexual
impropriety against her on the dates of June 18 & 20, 1996.

She was pimped by her homosexual adopted father Simplicio Delantar since the age of 9 and first
met Jalosjos, sometime in February 1996 at his office located near Robinson’s Galleria.."

Allegedly, the accused paid on several thousands of pesos after the alleged sexual abuse to the
victim on different dates . He let her stay nights in his condominium unit and repeatedly kept trying to
have sex with the victim until, on the dates mentioned, he succeeded.

This went on for some months until Rosilyn ran away in August 1996. Rosilyn was thereafter taken
to the custody of the Department of Social Welfare and Development (DSWD). The National Bureau
of Investigation (NBI) conducted an investigation, which eventually led to the filing of criminal
charges against Jalosjos.

Jalosjos claimed that it was his brother Dominador who Rosilyn met and that he was in the province
at the time the sexual advances took place. And tha the issue was allegedly crafted by his political
enemies to destroy his political career and boost their personal agenda. He further argued that
Rosilyn’s court testimonies were incosistent, rehearsed and lacking in candidness.

Issue:

Whether or not the accused-appellant cannot be convicted of statutory rape being charged against
him because of the following arguments:

1. The words “idinikit”, “itinutok” and “idiniin-diin” which Rosilyn used to describe what accused-
appellant did to her vagina with his genitals, do not constitute consummated rape.

2. Assuming arguendo that the acts made by accused appellant were true, Rosilyn at that time,
was engaged in prostitution and thus there is discernment and consent to the sexual acts
being complained of.

Ruling:

The mere touching of the external genitalia by the penis capable of consummating the sexual act is
sufficient to constitute carnal knowledge. It is well-entrenched in this jurisdiction that rape can be
committed even without full penetration of the male organ into the vagina of the woman. It is enough
that there be proof of the entrance of the male organ within the labia of the pudendum of the female
organ

When the accused-appellant brutely mounted between Rosilyn’s wide-spread legs, unfetteredly
touching, poking and pressing his penis against her vagina, which in her position would then be
naturally wide open and ready for copulation, it would require no fertile imagination to belie the
hypocrisy claimed by accused-appellant that his penis or that of someone who looked like him,
would under the circumstances merely touch or brush the external genital of Rosilyn. The inevitable
contact between accused-appellant’s penis, and at the very least, the labia of the pudendum of
Rosilyn, was confirmed when she felt pain inside her vagina when the "idiniin" part of accused
appellant’s sex ritual was performed.

3. It is settled that in cases of statutory rape, the age of the victim may be proved by the
presentation of her birth certificate. However, even assuming the absence of a valid birth certificate,
there is sufficient and ample proof of the complainant’s age in the records.

The birth certificate, or in lieu thereof, any other documentary evidence that can help establish the
age of the victim, such as the baptismal certificate, school records, and documents of similar nature,
can be And even assuming ex gratia argumenti that the birth and baptismal certificates of Rosilyn

With respect, however, to the acts of lasciviousness committed in the morning of June 15 and 22,
1996, and in the evening of June 14, 15, 18, and 21, 1996, as well as the rape perpetrated on June
18, 1996 and July 20, 1996, accused-appellant failed to account for his whereabouts. A careful
review of the pertinent transcript of stenographic notes reveals that accused-appellant did not give
any testimony as to where he was at the time these crimes were committed. Clearly, therefore, the
trial court correctly disregarded his unsubstantiated defense of denial, which cannot prevail over his
positive identification by Rosilyn as the culprit.Article III, Section 5 of Republic Act No. 7610, states:

Child Prostitution and other Sexual Abuse. --- Children, whether male or female, who for
money or profit, or any other consideration or due to the coercion or influence of any adult,
syndicate or group, indulge in sexual intercourse or lascivious conduct are deemed to be
children exploited in prostitution and other sexual abuse.

The penalty of reclusion temporal in its medium period to reclusion perpetua shall be

x x x           x x x           x x x

(b) Those who commit the act of sexual intercourse or lascivious conduct with a child
exploited in prostitution or subjected to other sexual abuse; Provided, That when the victim is
under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335,
paragraphs 3, for rape and Article 336 of Act No. 3815, as amended, the Revised Penal
Code, for rape or lascivious conduct, as the case may be: Provided, That the penalty for
lascivious conduct when the victim is under twelve (12) years of age shall be reclusion
temporal in its medium period; x x x . (Emphasis supplied.)

In People v. Optana,44 the Court, citing the case of People v. Larin,45 explained the elements of the
offense of violation of Section 5 (b) of R.A. 7610, or the Child Abuse Law, as follows:
 1. The accused commits the act of sexual intercourse or lascivious conduct.

2. The said act is performed with a child exploited in prostitution or subjected other sexual
abuse.

3. The child, whether male or female, is below 18 years of age.

A child is deemed exploited in prostitution or subjected to other sexual abuse, when the child
indulges in sexual intercourse or lascivious conduct (a) for money, profit, or any other
consideration; or (b) under the coercion or influence of any adult, syndicate or group. Under
RA 7610, children are "persons below eighteen years of age or those unable to fully take
care of themselves or protect themselves from abuse, neglect, cruelty, exploitation or
discrimination because of their age or mental disability or condition."

"Lascivious conduct" is defined under Article XIII, Section 32 of the Implementing Rules and
Regulation of R.A. 7610, as follows:

[T]he intentional touching, either directly or through clothing, of the genitalia, anus, groin,
breast, inner thigh, or buttocks, or the introduction of any object into the genitalia, anus or
mouth, of any person, whether of the same or opposite sex, with an intent to abuse,
humiliate, harass, degrade, or arouse or gratify the sexual desire of any person, bestiality,
masturbation, lascivious exhibition of the genitals or pubic area of a person.

In the case at bar, accused-appellant’s acts of kissing Rosilyn on the lips, fondling her breast,
inserting his finger into her vagina and placing his penis between her thighs, all constitute lascivious
conduct intended to arouse or gratify his sexual desire. Hence, the trial court correctly convicted
accused-appellant of violation of Section 5 (b) of R.A. 7610, or the Child Abuse Law, in Criminal
Cases Nos. 96-1987, 96-1988, 96-1989, 96-1990, 96-1992, and 96-1993, charging him with the
above-described lascivious acts.

The penalty for violation of Section 5 (b) of R.A. 7610, or the Child Abuse Law, where the victim is
below 12 years of age, is reclusion temporal in its medium period.

The records show that on at least nine (9) separate occasions, the accused-appellant inserted his
finger into the complainant’s vagina. These insertions took place in 1996. A year later, Congress
enacted Republic Act No. 8353, the Anti-Rape law of 1997. It does not apply to this case but it
indicates state policy on rape. The Revised Penal Code is now amended to read as follows:

Article 266-A. Rape; When and How Committed. – Rape is committed –

1. By a man who 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.
(Emphasis supplied.)

Indicative of the continuing state policy towards rape, the Anti-Rape Law of 1997 now classifies the
crime as an offense against persons. Any public prosecutor, not necessarily the victim or her
parents, can prosecute the case.

The penalties for the crime of rape in the light of various circumstances, which are now set forth and
contained in Article 266-B of the Revised Penal Code, have also been increased.

Considering that there are neither mitigating nor aggravating circumstance, the trial court correctly
imposed on accused-appellant the maximum penalty of fifteen (15) years, six (6) months and twenty
(20) days of reclusion temporal, which is within the medium period of reclusion temporal medium,
pursuant to our ruling in Dulla v. Court of Appeals.46 Notwithstanding that R.A. 7610 is a special law,
accused-appellant may enjoy a minimum term of the indeterminate sentence to be taken within the
range of the penalty next lower to that prescribed by the Code.47 However, the trial court erroneously
fixed the minimum term of the indeterminate sentence at eight (8) years, eight (8) months and one
(1) day of prision mayor in its medium period. In the aforesaid case of Dulla,48 we held that the
penalty next lower in degree to reclusion temporal medium is reclusion temporal minimum, the range
of which is from twelve (12) years and one (1) day to fourteen (14) years and eight (8) months.
Hence, for violation of Article III, Section 5 (b) of R.A. 7610, accused-appellant shall suffer the
indeterminate sentence of twelve years (12) and one (1) day of reclusion temporal, as minimum, to
fifteen (15) years, six (6) months and twenty (20) days of reclusion temporal as maximum.

At the time of commission of the crimes complained of herein in 1996, statutory rape was penalized
under Section 11 of R.A. 7659, which amended Article 335 of the Revised Penal Code, to wit:

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 or intimidation;

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

3. When the woman is under twelve years of age or is demented.

The crime of rape shall be punished by reclusion perpetua. xxx.

In statutory rape, mere sexual congress with a woman below twelve years of age consummates the
crime of statutory rape regardless of her consent to the act or lack of it. The law presumes that a
woman of tender age does not possess discernment and is incapable of giving intelligent consent to
the sexual act. Thus, it was held that carnal knowledge of a child below twelve years old even if she
is engaged in prostitution is still considered statutory rape. The application of force and intimidation
or the deprivation of reason of the victim becomes irrelevant. The absence of struggle or outcry of
the victim or even her passive submission to the sexual act will not mitigate nor absolve the accused
from liability.49

In the case at bar, the prosecution established beyond reasonable doubt that accused-appellant had
carnal knowledge of Rosilyn. Moreover, the prosecution successfully proved that Rosilyn was only
eleven years of age at the time she was sexually abused. As such, the absence of proof of any
struggle, or for that matter of consent or passive submission to the sexual advances of accused-
appellant, was of no moment. The fact that accused-appellant had sexual congress with eleven
year-old Rosilyn is sufficient to hold him liable for statutory rape, and sentenced to suffer the penalty
of reclusion perpetua.

As to accused-appellant's civil liability, the amount of moral damages awarded by the trial court for
each count of acts of lasciviousness under Section 5 (b) of R.A. 7610 should be increased from
P20,000.00 to P50,000.00.50 On the other hand, the award of the amount of P50,000.00 as moral
damages for each count of statutory rape was correct.

In People v. Lor,51 citing the cases of People v. Victor,52 and People v. Gementiza,53 we held that the
indemnity authorized by our criminal law as civil indemnity ex delicto for the offended party, in the
amount authorized by the prevailing judicial policy and aside from other proven actual damages, is
itself equivalent to actual or compensatory damages in civil law. Said civil indemnity is mandatory
upon finding of the fact of rape; it is distinct from and should not be denominated as moral damages
which are based on different jural foundations and assessed by the court in the exercise of sound
judicial discretion.54 Hence, accused-appellant should be ordered to pay the offended party another
P50,000.00 as civil indemnity for each count of rape and acts of lasciviousness.

WHEREFORE, the Decision of the Regional Trial Court of Makati, Branch 62, in Criminal Case Nos.
96-1985 and 96-1986 finding accused-appellant Romeo Jalosjos guilty beyond reasonable doubt of
two counts of statutory rape, and sentencing him to suffer the penalty of reclusion perpetua for each
count, is AFFIRMED. Likewise, the appealed Decision of the Regional Trial Court of Makati, Branch
62 in Criminal Case Nos. 96-1987, 96-1988, 96-1989, 96-1990, 96-1992, and 96-1993, finding
accused-appellant guilty beyond reasonable doubt of acts of lasciviousness in six counts, is
AFFIRMED with MODIFICATIONS. As modified, accused-appellant is sentenced to suffer, for each
count of acts of lasciviousness, the indeterminate penalty of twelve years (12) and one (1) day
of reclusion temporal, as minimum, to fifteen (15) years, six (6) months and twenty (20) days
of reclusion temporal as maximum. Further, accused-appellant is ordered to pay the victim, Ma.
Rosilyn Delantar, the additional amount of P50,000.00 as civil indemnity for each count of statutory
rape and acts of lasciviousness. Finally, the award of moral damages for each count of acts of
lasciviousness is increased to P50,000.00.