Third Division (G.R. No. 235610, September 16, 2020) Rodan A. Bangayan, Petitioner, vs. People of The Philippines, Respondent. Decision Carandang, J.

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THIRD DIVISION

[ G.R. No. 235610, September 16, 2020 ]

RODAN A. BANGAYAN, PETITIONER, VS. PEOPLE OF THE PHILIPPINES, RESPONDENT.

DECISION

CARANDANG, J.:

This is a Petition for Review on Certiorari1 assailing the Decision2 dated June 28, 2017 of the Court
of Appeals finding Rodan Bangayan y Alcaide (Bangayan) guilty beyond reasonable doubt of
violation of Section 5(b), Article III of Republic Act No. (R.A) 7610, the dispositive portion of which
reads:

FOR THE STATED REASONS, the appeal is DENIED. The assailed Decision of the Regional Trial
Court is AFFIRMED with MODIFICATION that the award of damages is increased to Php 75,000.00
each as civil indemnity, moral damages and exemplary damages.

SO ORDERED.3

Antecedents

The Information4 against Bangayan alleges:

That sometime in the month of January, [sic] 2012 at Brgy. San Ramos, Municipality of Nagtipunan,
Province of Quirino, Philippines,. and within the jurisdiction of this Honorable Court, the above-
named Accused, with intent to abuse, harass and degrade AAA5, a twelve (12) year old minor at
that time, and gratify the sexual desire of said accused, the latter did then and there, willfully,
unlawfully and feloniously, had sexual intercourse with said AAA, in her dwelling against her will and
consent.6

During trial, the prosecution presented three (3) witnesses, namely: (1) PO2 Rosalita Manilao (PO2
Manilao); (2) BBB;7 and (3) Dr. Luis Villar (Dr. Villar). The following documents were likewise
submitted in evidence: (1) Malaya at Kusang Loob na Salaysay of AAA;8 (2) Malaya at Kusang Loob
na Salaysay ni BBB;9 (3) Medical Certificate issued by Dr. Villar;10 and (4) Certificate of Live Birth of
AAA.11

According to the prosecution's witnesses, on January 5, 2012, AAA's brother, BBB, upon arriving
home from the farm, saw Bangayan laying on top of AAA. Bangayan and AAA were both naked from
the waist down.12 BBB shouted at Bangayan and told him that he would report what he did to AAA
but the latter allegedly threatened to kill him if he tries to tell anyone.13 AAA was born on December
14, 1999 and was more than 12 years old at the time of the incident.14

On April 24, 2012, AAA, accompanied by her aunt, CCC,15 reported the incident to the police.16 On
the same date, Dr. Villar examined AAA. The pertinent portion of the Medico-Legal
Report17 revealed the following:

Physical Examination Findings:

1. Formed and developed areolar complexes.

2. Developed labia majora,

3. No recent hymenal injury but the edges are smooth and the opening approximates the
size of the index finger of the examiner.18

When Dr. Villar testified, he confirmed that AAA admitted to him that she had sexual intercourse with
Bangayan on several occasions even prior to January 5, 2012.19 He explained that the "opening"
noted during his examination, as stated in item no. 3 of the physical findings, is not a normal
occurrence. For a young patient like AAA, it should have been closed. He further testified that AAA
was already pregnant when she was examined because her fundus is 15 centimeters in height and
the presence of 151 beats per minute at the last lower quadrant of her abdomen was
observed.20 These indicate that, at the time of the examination, she was two (2) to three (3) months
pregnant, which could be compatible with the claim that she had sexual intercourse with Bangayan
in January 2012, the date stated in the information, or even before said date.21

On October 2, 2012, AAA gave birth to a baby boy.22

Notably, during arraignment on September 4, 2014, the counsel of Bangayan manifested that AAA,
who was then 14 years old, executed an Affidavit of Desistance23 stating that she has decided not
to continue the case against Bangayan because they "are living [together] as husband and wife and
was blessed with a healthy baby boy."24 Thus, the Regional Trial Court (RTC) ordered that the
Office of the Municipal Social Welfare Development Officer conduct a case study on AAA.25

On May 4, 2015, their second child was born.26

Ruling of the Regional Trial Court

After trial, the RTC of Maddela, Quirino, Branch 38 rendered its Decision27 dated April 11, 2016, the
dispositive portion of which reads:

WHEREFORE, premises considered, judgment is hereby rendered finding RODAN BANGAYAN y


ALCAIDE GUILTY beyond reasonable doubt of violation of Section 5 (b), Article III of Republic Act
7610 and sentences him to an imprisonment of 14 years and 8 months of reclusion temporal as
minimum to 20 years of reclusion temporal as maximum. However, his preventive imprisonment
shall be fully credited to him in the service of sentence pursuant to Article 29 of the Revised Penal
Code, as amended.

Accused is ordered to pay [AAA] the amount of 1 PHP 50,000.00 as civil indemnity with interest of
6% per annum from finality of the decision until fully paid.

With the category of the accused as a national prisoner, the Clerk of Court is directed to prepare the
corresponding mittimus or commitment order for his immediate transfer to the Bureau of Corrections
and Penology, Muntinlupa City, pursuant to SC Circular No. 4- 92-A dated April 20, 1992.

SO ORDERED.28 (Emphasis in the original)

In convicting Bangayan, the RTC found that the prosecution was able to establish the elements of
Section 5(b), Article III of R.A. 7610. Bangayan had sexual intercourse with AAA who was born on
December 14, 1999 and was 12 years, one (1) month, and 14 days old at the time of the
incident.29 For the RTC, the moral ascendancy or influence of Bangayan over AAA is beyond
question due to their age gap of 15 years, and the fact that he is her brother- in-law, he being the
brother of the husband of her older sister.30 The RTC ruled that it will not matter if AAA consented to
her defloration because as a rule, the submissiveness or consent of the child under the influence of
an adult is not a defense in sexual abuse.31 The RTC also considered the Affidavit of Desistance
AAA executed as hearsay evidence because she did not testify regarding its execution. The RTC
added that an Affidavit of Desistance is like an Affidavit of Recantation which the court does not look
with favor.32

On appeal33 Bangayan impugned the findings of the RTC and argued that the trial court gravely
erred in finding that the defense failed to prove by clear and convincing evidence that he is not
criminally liable for the act complained of.34 Bangayan argued that he had proven, by clear and
convincing evidence, that he is in a relationship with AAA and that the act complained of was
consensual.35 Bangayan maintained that their persisting relationship should be taken into account
and be considered an absolutory cause.36 He averred that this is similar to Article 266-C of R.A.
8353, or the Anti-Rape Law of 1997, on the effect of pardon where the subsequent valid marriage of
the offended party to the offender shall extinguish the criminal action or the penalty imposed. While
there is no valid marriage to speak of yet, they were clearly living together as husband and wife as
evidenced by the birth of their second child. Bangayan asserted that it would be in the best interest
of their growing family to acquit him and allow him to help with rearing their children.37

Ruling of the Court of Appeal


In a Decision38 dated June 28, 2017, the Court of Appeals denied Bangayan's appeal and affirmed
with modification his conviction. The award of civil indemnity, moral damages, and exemplary
damages were each increased to P75,000.00.39

In affirming Bangayan's conviction, the Court of Appeals held that the elements of sexual abuse
under Section 5, Article III of R.A.7610 were established as follows: (1) BBB positively identified
Bangayan as the person who had sexual intercourse with his minor sister and AAA was confirmed to
be 2-3 months pregnant at the time of her medical examination; (2) AAA was subjected to sexual
abuse under the coercion and influence of Bangayan because he was already 27 years old or 15
years her senior, thus making her vulnerable to the cajolery and deception of adults; and (3) It was
proven that, at the time of the incident, she was only 12 years and one (1) month old – a minor not
capable of fully understanding or knowing the nature or import of her actions.40

The Court of Appeals emphasized that consent of the child is immaterial in cases involving violation
of Section 5, Article III of R.A. 7610. It was held that the Sweetheart Theory is a defense in acts of
lasciviousness and rape that are felonies against or without the consent of the victim. It operates on
the theory that the sexual act was consensual. However, for purposes of sexual intercourse and
lascivious conduct in child abuse cases under R.A. 7610, the Court of Appeals ruled that the
Sweetheart Theory defense is unacceptable.

Petitioner's Motion for Reconsideration41 was denied in a Resolution42 dated October 24, 2017.


Hence, this petition for review.

Bangayan filed the instant Petition for Review43 on January 5, 2018, assailing the Decision of the
Court of Appeals dated June 28, 2017 and its subsequent Resolution dated October 24, 2017. He
insists that he was able to prove by clear and convincing evidence that he should not be held
criminally liable for the act complained of because they were in a relationship at the time of its
commission.44 For Bangayan, the fact that they were allowed to be together after the alleged sexual
-abuse and that AAA conceived their second child right after the complaint was filed in court negate
the claim that AAA was unwilling.45 Bangayan posits that his continuing relationship with AAA
should be considered an absolutory cause.46 Invoking the best interest of their family, Bangayan
prays that he be acquitted and be allowed to help raise their family.

Meanwhile, the People of the Philippines, through the Office of the Solicitor General, manifested that
it is no longer filing a Comment and is merely adopting its Brief for the Plaintiff-Appellee previously
filed with the Court of Appeals.47

Issue

The issue to be resolved in this case is whether Bangayan may use as a defense the consent of
AAA and his on-going relationship with her which had already produced two children to exonerate
himself from the charge of violation of Section 5(b), Article III of-R.A. 7610.

Ruling of the Court

The petition is meritorious. The records of this case show that the prosecution failed to establish all
the elements of sexual abuse contemplated under Section 5(b), Article III of R.A. 761048 which
provides:

Section 5. Child Prostitution and Other Sexual Abuse. - Children, whether male or female, who for
money, 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 imposed upon
the following:

(a)    Those who engage in or promote, facilitate or induce child prostitution which'include,
but are not limited to, the following:

(1) Acting as a procurer of a child prostitute;


(2) Inducing a person to be a client of a child prostitute by means of written or oral
advertisements or other similar means;

(3) Taking advantage of influence or relationship to procure a child as prostitute;

(4) Threatening or using violence towards a child to engage him as a prostitute; or

(5) Giving monetary consideration, goods or other pecuniary benefit to a child with
intent to engage such child in prostitution.

(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,
paragraph 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;49

The following requisites must concur: (1) the accused commits the act of sexual intercourse or
lascivious conduct; (2) the act is performed with a child exploited in prostitution or subjected to other
sexual abuse; and (3) the child, whether male or female is below eighteen (18) years of age.50 This
paragraph "punishes sexual intercourse or lascivious conduct not only with a child exploited in
prostitution but also with a child subjected to other sexual abuse. It covers not only a situation where
a child is abused for profit but also one in which a child, through coercion, intimidation or influence,
engages in sexual intercourse or lascivious conduct.51

Pursuant to the Implementing Rules and Regulations of R.A. 7610, "sexual abuse" includes the
employment, use, persuasion, inducement, enticement or coercion of a child to engage in, or assist
another person to engage in, sexual intercourse or lascivious conduct or the molestation,
prostitution, or incest with children.52 The present case does not fall under any of the circumstances
enumerated. Therefore, not all the elements of the crime were present to justify Bangayan's
conviction.

In explicitly stating that children deemed to be exploited in prostitution and other sexual abuse under
Section 5 of R.A. 7610, refer to those who engage in sexual intercourse with a child "for money,
profit, or any other consideration or due to the coercion or influence of any adult, syndicate or
group,"53 it is apparent that the intendment of the law is to consider the condition and capacity of the
child to give consent.

Section 5(b) of R.A 7610 qualifies that when the victim of the sexual abuse is under 12 years of age,
the perpetrator shall be prosecuted under the Revised Penal Code.54 This means that, regardless of
the presence of any of the circumstances enumerated and consent of victim under 12 years of age,
the perpetrator shall be prosecuted under the Revised Penal Code. On the other hand, the law is
noticeably silent with respect to situations where a child is between 12 years old and below 18 years
of age and engages in sexual intercourse not -'for money, profit, or any other consideration or due to
the coercion or influence of any adult, syndicate or group." Had it been the intention of the law to
absolutely consider as sexual abuse and punish individuals who engage in sexual intercourse with
"children" or those under 18 years of age, the qualifying circumstances enumerated would not have
been included in Section 5 of R.A. 7610.

Taking into consideration the statutory construction rules that penal laws should be strictly construed
against the state and liberally in favor of the accused, and that every law should be construed in
such a way that it will harmonize with existing laws on the same subject matter, We reconcile the
apparent gap in the law by concluding that the qualifying circumstance cited in Section 5(b) of R.A.
7610, which "punishes sexual intercourse or lascivious conduct not only with a child exploited in
prostitution but also with a child subjected to other sexual abuse," leave room for a child between 12
and 17 years of age to give consent to the sexual act. An individual who engages in sexual
intercourse with a child, at least 12 and under 18 years of age, and not falling under any of these
circumstances, cannot be held liable under the provisions of R.A. 7610. The interpretation that
consent is material in cases where victim is between 12 years old and below 18 years of age is
favorable to Bangayan. It fills the gap in the law and is consistent with what We have explained in
the case of People v. Tulagan,55 to wit:
However, considering the definition under Section 3(a) of R.A. No. 7610 of the term "children" which
refers to persons below eighteen (18) years of age or those over but are unable to fully take care of
themselves or protect themselves from abuse, neglect, cruelty, exploitation or discrimination
because of a physical or mental disability or condition, We find that the opinion in Malto, that a child
is presumed by law to be incapable of giving rational consent, unduly extends the concept of
statutory rape or acts of lasciviousness to those victims who are within the range of 12 to 17 years
old, and even those 18 years old and above under special circumstances who are still considered as
"children" under Section 3(a) of R.A. No. 7610. While Malto is correct that consent is immaterial in
cases under R.A. No. 7610 where the offended party is below 12 years of age, We clarify that
consent of the child is material and may even be a defense in criminal cases involving violation of
Section 5, Article III of R.A. No. 7610 when the offended party is 12 years old or below 18, or aboye
18 under special circumstances. Such consent may be implied from the failure to prove that the said
victim engaged in sexual intercourse either "due to money, profit or any other consideration or due to
the coercion or influence of any adult, syndicate or group."

xxxx

If the victim who is 12 years old or less than 18 and is deemed to be a child "exploited in prostitution
and other sexual abuse" because she agreed to indulge in sexual intercourse "for money, profit or
any other consideration or due to coercion or influence of any adult, syndicate or group," then the
crime could not be rape under the RPC, because this no longer falls under the concept of statutory
rape, and there was consent. That is why the offender will now be penalized under Section 5(b),
R.A. No. 7610, and not under Article 335 of the RPC [now Article 266-A], But if the said victim does
not give her consent to sexual intercourse in the sense that the sexual intercourse was committed
through force, threat or intimidation, the crime Is rape under paragraph 1, Article 266-A of the RPC.
However, if the same victim gave her consent to the sexual intercourse, and no money, profit,
consideration, coercion or influence is involved, then there is no crime committed, except in those
cases where "force, threat or intimidation" as an element of rape is substituted by "moral
ascendancy or moral authority," like in the cases of incestuous rape, and unless it is punished under
the RPC as qualified seduction under Article 337 or simple seduction under Article
338.56 (Emphasis and underscoring supplied; citations omitted)

We are not unmindful that in Tulagan, the accused inserted his finger into a nine-year-old girl's
vagina and had sexual intercourse with her. Nevertheless, the vital discussion made by the Court
with respect to the capacity of a victim aged between 12 years old and below 18 years of age to give
rational consent to engage in sexual activity (sexual consent) cannot simply be disregarded. Though
it may be considered obiter dictum, the principle laid down in the majority opinion, speaking through
the ponencia of then Associate Justice Diosdado Peralta, now Chief Justice, remains relevant and
crucial to the resolution of the present case because it clearly outlined the essential elements of the
offense. The discussion of the Court in Tulagan should serve as a guide in resolving situations
identified by the Court to be potential sources of conflicting interpretations. The fact that Tulagan did
not involve a victim between 12 years old and below 18 years old should not dissuade the Court
from applying a principle that aims to clarify and harmonize conflicting provisions due to an apparent
gap in the law.

Recently, in Monroy v. People,57 We adopted the ruling in Tulagan, to wit:

xxx [I]t bears to point out that "consent of the child is material and may even be a defense in criminal
cases" involving the aforesaid violation when the offended party is 12 years old or below 18 years
old, as in AAA's case. The concept of consent under Section 5 (b), Article III of RA 7610 peculiarly
relates to the second element of the crime - that is, the act of sexual intercourse is performed with a
child exploited in prostitution or subjected to other sexual abuse. A child is considered "exploited in
prostitution or subjected to other sexual abuse when the child is predisposed to indulge in sexual
intercourse or lascivious conduct because of money, profit or any other consideration or due to the
coercion of any adult, syndicate, or group.

x x x x58 (Emphasis supplied; citations omitted)

Therefore, it is now clear that consent is a material factor in determining the guilt of Bangayan.

In Monroy,59 then 28-year-old accused was charged with violation of Section 5 (b) Article III of R.A.
7610 for inserting his penis into the vagina of a 14-year-old. The Court acquitted the accused on
reasonable doubt, finding that the sexual intercourse that transpired between the accused and the
14-year-old was consensual and that the case against the accused is based merely on trumped-up
allegations meant as retaliation. In Monroy, the accused was 14 years older or twice the age of the
alleged victim yet the Court found that she was not subjected to other sexual abuse due to the
coercion of an adult as they were in a relationship. Similarly, in the present case, Bangayan was
more or less 15 years older than AAA. While difference in age may be an indication of coercion and
intimidation and negates the presence of sexual consent, this should not be blindly applied to all
instances of alleged sexual abuse cases. Therefore, the Court must not be restricted in identifying
the presence of coercion and intimidation by a simple mathematical computation of the age
difference.

The sweeping and confusing conclusions in the case of Malto v. People60 and the application of
contract law in determining the relevance of consent in cases under R.A. 7610 is not proper. We had
the opportunity to shed light on this matter in People v. Tulagan61 where We observed that:

We take exception, however, to the sweeping conclusions in Malto (1) that "a child is presumed by
law to be incapable of giving rational consent to any lascivious conduct or sexual intercourse" and
(2) that "consent of the child is immaterial in criminal cases involving violation of Section 5, Article III
of RA 7610" because they would virtually eradicate the concepts of statutory rape and statutory acts
of lasciviousness, and trample upon the express provisions of the said law.62

Accordingly, the Court deems it prudent to rectify the difference between the concept of consent
under contract law and sexual consent in criminal law which determines the guilt of an individual
engaging in a sexual relationship with one who is between 12 years old or below 18 years of age.
These are concepts that are distinct from each other and have differing legal implications.

The law limits, to varying degrees, the capacity of an individual to give consent. While in general,
under the civil law concept of consent, in relation to capacity to act, all individuals under 18 years of
age have no capacity to act, the same concept cannot be applied to consent within the context of
sexual predation. Under civil law, the concept of "capacity to act" or "the power to do acts with legal
effects"63 limits the capacity to give a valid consent which generally refers to "the meeting of the
offer and the acceptance upon the thing and the case which are to constitute the contract."64 To
apply consent as a concept in civil law to criminal cases is to digress from the essence of sexual
consent as contemplated by the Revised Penal Code and R.A. 7610. Capacity to act under civil law
cannot be equated to capacity to give sexual consent for individuals between 12 years old and below
18 years of age. Sexual consent does not involve any obligation within the context of civil law and
instead refers to a private act or sexual activity that may be covered by the Revised Penal Code and
R.A. 610.

More importantly, Our earlier pronouncement regarding consent in Malto failed to reflect teenage
psychology and predisposition. We recognize that the sweeping conclusions of the Court
in Malto failed to consider a juvenile's maturity and to reflect teenagers' attitude towards sex in this
day and age. There is a need to distinguish the difference between a child under 12 years of age
and one who is between 12 years old and below 18 years of age due to the incongruent mental
capacities and emotional maturity of each age group. It is settled that a victim under 12 years old or
is demented "does not and cannot have a will of her own on account of her tender years or
dementia; thus, a child or a demented person's consent is immaterial because of her presumed
incapacity to discern good from evil."65 As such, regardless of the willingness of a victim under 12
years old to engage in any sexual activity, the Revised Penal Code punishes statutory rape and
statutory acts of lasciviousness. On the other hand, considering teenage psychology and
predisposition in this day and age, We cannot completely rule out the capacity of a child between 12
years old and below 18 years of age to give sexual consent.

Consequently, although We declared in Malto that the Sweetheart Theory is unacceptable in


violations of R.A. 7610 since "a child exploited in prostitution or subjected to other sexual abuse
cannot validly give consent to sexual intercourse with another person,"66 We deem it judicious to
review the Decision of the court a quo and reiterate Our recent pronouncements
in Tulagan and Monroy and clarify the ambiguity created in the Malto case in resolving the case at
bar.

Where the age of the child is close to the threshold age of 12 years old, as in the case of AAA who
was only 12 years and one month old at the time of the incident, evidence must be strictly
scrutinized to determine the presence of sexual consent. The emotional maturity and predisposition
of a juvenile, whose age is close to the threshold age of 12, may significantly differ from a child aged
between 15-18 who may be expected to be more mature and to act with consciousness of the
consequences of sexual intercourse.
In this case, there are special circumstances that reveal the presence consent of AAA. The sexual
congress between Bangayan and AAA was not limited to just one incident. They were in a
relationship even after the incident alleged in the Information and had even produced two (2)
children. To Our mind, these are not acts of a child who is unable to discern good from evil and did
not give consent to the sexual act.

We also note that the conclusion of the RTC that:

xxx [T]he moral ascendancy or influence of the accused over the victim is beyond question because
of their 15 year age gap, not to mention that the former is also her brother- in-law, he being the
brother of the husband of her older sister.67

is erroneous. Contrary to the ruling of the RTC, it cannot be said that Bangayan exercised moral
ascendancy over AAA simply because of their 15-year age gap and the fact that he is her "brother-
in-law." Following the concept of brother-in-law in its ordinary sense, Bangayan is not AAA's brother-
in-law because a brother-in-law refers only to a wife's brother or a sister's husband. It does not
include a brother of the husband of AAA's older sister.

We must take into account Bangayan's defense that, at the time of the incident, he and AAA were
lovers. The conduct of Bangayan and AAA, which is the subject of the Information against him, is not
the sexual abuse punished by the law. While placed in an unusual predicament, We recognize that
Bangayan and AAA are in a relationship that had produced not just one (1) offspring but two (2).
While AAA was a child, as defined under R.A. 7610, being under 18 years of age at the time she and
Bangayan engaged in sexual intercourse, there was no coercion, intimidation or influence of an
adult, as contemplated by the law. AAA consented to the sexual act as reflected in her conduct at
the time of the commission of the act and her subsequent conduct shown in the records.

AAA did not testify during the trial. Had she testified, the trial court would have been able to confirm
the veracity of the allegations in the sworn statement68 she executed and the statements she
allegedly made to Dr. Villar during her medical examination on April 24, 2012. We cannot simply
accept the statement of Dr. Villar that AAA admitted to him that she had sexual intercourse with
Bangayan even before 2012.69 This statement is hearsay as he has no personal knowledge of, it.
Moreover, this is not even alleged in the Information70 filed against him.

Furthermore, Section 34 of Rule 132 of the Rules provides:

Section. 34. Offer of evidence. - The court shall consider no evidence which has not been formally
offered. The purpose for which the evidence is offered must be specified.

In Gumabon v. Philippine National Bank,71 the Court explained that formal offer "means that the
offeror shall inform the court of the purpose of introducing its exhibits into evidence." In the absence
of a formal offer, courts cannot take notice of the evidence even if this has been previously marked
and identified.72

The Social Case Study Report73 reflecting the evaluation of Social Welfare Officer III Theresa A.
Mauricio (Mauricio) on AAA's social, emotional, and intellectual development cannot be admitted nor
be given any credence by the Court. Mauricio made the following recommendations in her report:

Based on the above information, the client suffered multiple emotional crisis that hampered her
growth and development. She has the time, knowledge, potentials and abilities that could enhance
her total development. However, as early as 7 years old, she had crisis due to role confusion.

Being abused, she was unable to develop her unique values or personality. She was not allowed the
opportunities to acquire friends, develop skills and knowledge through formal education.

Living together with the perpetuator [sic] could support her longing for a parental figure. He served
as support for her existence but considering his weaknesses such as from abusing her, the lack for
sense of responsibility and assertiveness as lack of resources should affect the future of the minor
and son. He could not provide the basic needs such as food, shelter and education with his
disposition in life.

The minor had the CHANCE to grab the opportunities of the PRESENT and the FUTURE once she
is AWAY with her perpetuator [sic]. Support from relatives is highly recommended for direction.
The honored court is then requested for favorable action that will promote the general welfare of the
minor- [AAA] and her family.74

A careful study of the records reveals that the RTC received the Social Case Study Report dated
September 25, 2014 on October 8, 2014. Although the testimony of the social worker was included
in the Pre-Trial Order,75 the document was never properly" idehtified, authenticated by the social
worker who prepared the report, and included in the formal offer of evidence.76 The social worker
never testified in open court and the defense was never given an opportunity to test her credibility
and verify the correctness and accuracy of her findings. To Our mind, giving credence to evidence
which was not formally offered during trial would deprive the other party of due process. Thus,
evidence not formally offered has no probative value and must be excluded by the court.

Even assuming that the Social Case Study Report was properly presented and formally offered, it
cannot be made the basis for establishing the absence of AAA's sexual consent. The report did not
accurately reflect the living condition and the state of her relationship with Bangayan. It did not
negate the presence of AAA's sexual consent at the time the alleged offense was committed.
Noticeably, she was already pregnant with their second child when she was interviewed for the
Social Case Study Report and later gave birth while he was incarcerated.77 The contemporaneous
and subsequent acts of AAA, which are more consistent with the claim of Bangayan that AAA
consented to the sexual encounter, outweigh the contents of the Social Case Study Report which
are not yet verified. It is worthy to note that even when Bangayan was presented in the witness
stand, AAA was present in court,78 presumably to show support for him. AAA conceived a second
child with Bangayan despite the charge against him. Both children were conceived before he was
incarcerated.79 She did not testify against Bangayan even if she was present during the hearings.
These acts of AAA, and the Affidavit of Desistance she executed, when taken as a whole, bolsters
the claim of Bangayan that they were in a relationship when the act complained of was committed
and even lived together without the benefit of marriage after the case against him was filed. Her acts
are consistent with the claim of Bangayan that their relationship existed at the time of commission of
the act complained, during trial, and even continued after he was convicted by the lower court. To
Our mind, these factors are clear manifestations that she was not subjected to any form of abuse,
and prove that she consented to the act complained of. Applying the ruling in Tulagan there is no
crime committed because AAA freely gave her consent to the sexual intercourse, and no money,
profit, consideration, coercion or influence is involved. Due to the prosecution's failure to establish
and prove beyond reasonable doubt the requisites for the charge of violation of Section 5(b) of R.A.
7610, Bangayan must be acquitted.

Section 2 of R.A. 7610 states that:

xxx [T]he "best interests of children shall be the paramount consideration in all actions concerning
them, whether undertaken by public or private social welfare institutions, courts of law, administrative
authorities, and legislative bodies, consistent with the principle of First Call for Children as
enunciated in the United Nations Convention of the Rights of the Child.

In this exceptional situation, We are not prepared to punish two individuals and deprive their children
from having a normal family life simply because of the minority of AAA at the time she began dating
Bangayan. The benefits of living in a nuclear family to AAA and their two (2) children outweigh any
perceived dangers of the on-going romantic relationship Bangayan has with AAA who is 15 years
younger than him. This arrangement is more favorable to the welfare of both parties as they are
planning to get married.80 We verified from the records that Bangayan was single at the time he
gave his personal circumstanced when he testified in court.81 This is more consistent with the
principle of upholding the best interests of children as it gives Bangayan an opportunity to perform
his essential parental obligations and be present for their two (2) children.

WHEREFORE, the appeal is GRANTED. The Decision dated April 11, 2016 of the Regional Trial
Court of Maddela, Quirino, Branch 38, in Criminal Case No. 38-510 as well as the Decision dated
June 28, 2017 of the Court of Appeals in CA-G.R. CR No. 38723 are hereby REVERSED and SET
ASIDE. Petitioner Rodan A. Bangayan is ACQUITTED. He is ORDERED to be IMMEDIATELY
RELEASED unless he is being held for some other valid or lawful cause. The Director of the Bureau
of Corrections is DIRECTED to inform this Court of the action taken hereon within five (5) days from
receipt hereof.

SO ORDERED.

Gesmundo and Gaerlan, JJ., concur.


Leonen, J., I dissent. see separate opinion.

Zalameda, J., please see separate concurring opinion.

December 29, 2020

NOTICE OF JUDGEMENT

Sirs / Mesdames:

Please take notice that on September 16, 2020 a Decision, copy attached hereto, was rendered by
the Supreme Court in the above-entitled case, the original of which was received by this Office on
December 29, 2020 at 8:59 s.m.

Very truly yours,

(Sgd.) MISAEL DOMINGO C. BATTUNG III


Division Clerk of Court

ORDER OF RELEASE

TO: The Director

       BUREAU OF CORRECTIONS


       1770 Muntinlupa City

Thru: The Superintendent
          New Bilibid Prison
          BUREAU OF CORRECTIONS
          1770 Muntinlupa City

G R E E T I N G S:

WHEREAS, the Supreme Court on September 16, 2020 promulgated a Decision in the above-
entitled case, the dispositive portion of which reads:

"WHEREFORE, the appeal is GRANTED. The Decision dated April 11, 2016 of the Regional Trial
Court of Maddela, Quirino, Branch 38, in Criminal Case No. 38-510 as well as the Decision dated
June 28, 2017 of the Court of Appeals in CA-G.R. CR No. 38723 are hereby REVERSED and SET
ASIDE. Petitioner Rodan A. Bangayan is ACQUITTED. He is ORDERED to be IMMEDIATELY
RELEASED unless he is being held for some other valid or lawful cause. The Director of the Bureau
of Corrections is DIRECTED to inform this Court of the action taken hereon within five (5) days from
receipt hereof.

SO ORDERED."

NOW, THEREFORE, You are hereby ordered to immediately release RODAN A.


BANGAYAN unless there are other lawful causes for which he should be further detained, and to
return this Order with the certificate of your proceedings within five (5) days from notice hereof.

GIVEN by the Honorable MARVIC MARIO VICTOR F. LEONEN, Chairperson of the Third Division of
the Supreme Court of the Philippines, this 16th day of September 2020.

Very truly yours,

(Sgd.) MISAEL DOMINGO C. BATTUNG III


Division Clerk of Court
Footnotes

1 Rollo, pp. 11-24.

2 Penned by Associate Justice Mario V. Lopez (now a Member of this Court), with the
concurrence of Associate Justices Remedios A. Salazar-Fernando and Eduardo B. Peralta,
Jr.; id. 27-34.

3 Id. at 33.

4 Records, pp. 2-3.

5 As decreed in People v. Cabalquinto, 533 Phil. 709 (2006), complainant's real name is
withheld to effectuate the provisions of R.A. 7610 and its implementing rules, R.A. 9262 (Anti
Violence Against Women and Their Children Act of 2004) and its implementing rules, and
A.M. No. 04-10-11-SC (Rule on Violence Against Women and their Children).

6 Records, pp. 2-3.

7 Supra note 5.

8 Records, pp. 7-8.

9 Id. at 9-10.

10 Id. at 11.

11 Id. at 12

12 TSN dated May 21, 2015, p. 14.   

13 Id. at 15.

14 Records, p. 12.

15 Supra note 5.

16 Records, p. 6.

17 Id. at 11.

18 Id.

19 TSN dated June 16, 2015, p. 5.

20 Id. at 4

21 Id. at 5.

22 Id. at 41.

23 Id. at 24.

24 Id.

25 Id. at 5-6; records, p. 28.


26 TSN dated November 18, 2015, p. 9.

27 Penned by Executive Judge Menrado V. Corpuz; records, pp. 103-110.

28 Id. at 110.

29 Id. at 107.

30 Id. at 108.

31 Id.

32 Id. at 109.

33 Rollo, pp. 40-50.

34 Id. at 46-49.

35 Id. at 47-48.

36 Id. at 48.

37 Id. at 49.

38 Supra note 2.

39 Rollo, p. 33.

40 Id. at 30-33.

41 Id. at 85-88.

42 Penned by Associate Justice Mario V. Lopez (now a Member of this Court), with the
concurrence of Associate Justices Remedios A. Salazar-Fernando and Eduardo B. Peralta,
Jr.; id. at 36-37.

43 Id. at 11-24.

44 Id. at 19.

45 Id. at 20.

46 Id.

47 Id. at 108.

48 R.A. 7610, Sec. 5.

49 Id.

50 Id.

51 People v. Gaduyon, 720 Phil. 750 (2013).

52 Section 2(g), 10-1993 Rules and Regulations on the Reporting and Investigation of Child
Abuse Cases (R.A. 7610).

53 R.A. 7610, Sec. 5.

54 R.A. 7610, Sec. 5.


55 G.R.No. 227363, March 12, 2019.

56 Id.

57 G.R. No. 235799, July 29, 2019.

58 Monroy v. People, G.R. No. 235799, July 29, 2019.

59 G.R. No. 235799, July 29, 2019.

60 560 Phil. 119 (2007).

61 G.R. No. 227363, March 12, 2019

62 Id.

63 CIVIL CODE OF THE PHILIPPINES, Art. 37.

64 CIVIL CODE OF THE PHILIPPINES, Art. 1319.

65 People v. Tulagan, supra note 55.

66 Id.

67 Records, p. 108.

68 Id. at 7-8.

69 TSN dated June 16, 2015, p. 5.

70 Id. at 2-3.

71 G.R. No. 202514, July 25, 2016.

72 Id.

73 Records, pp. 30-40.

74 Id. at 40.

75 Id. at 49.

76 TSN dated August 3, 2015, pp. 1-6.

77 TSN dated November 18, 2015 p. 9.

78 Id. at 8.

79 Id. at 9.

80 TSN dated November 18, 2015, p. 9.

81 Id. at 2-4.

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