GR 227363 Leonen PDF
GR 227363 Leonen PDF
Promulgated: ft~
March 12, 2019 };.}
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LEONEN,J.:
This case involves a nine (9)-year-old minor who was raped and
subjected to sexual assault. The majority and the various separate opinions
appear to have used this case as an opportunity to interpret Republic Act No.
7610, 1 Article III, Section 5(b)2 in relation to the sexual abuse of minors
aged 12 to below 18 years old.
It is a unanimous Court that will agree that the rape and sexual abuse
of a child below 12 years old deserves the full enforcement of the provisions
under Article 266-A 3 of the Revised Penal Code and Republic Act No. 7610.
(b) Those who commit the act of sexual intercourse of lascivious conduct with a child exploited in
prostitution or subject to other sexual abuse; Provided, That when the victims 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[.]
REV. PEN. CODE, art. 266-A provides:
Article 266-A. Rape: When And How Committed. - Rape is committed:
I) By a man who shall have carnal knowledge ofa woman under any of the following circumstances:
a) Through force, threat, or intimidation;
b) When the offended party is deprived ofreason 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.
'
I agree with the majority that the insertion of a finger into a minor's
vagina deserves a higher penalty than prision mayor under Article 266-A,
Paragraph 2 5 (sexual assault) in relation to Article 266-B 6 of the Revised
Penal Code. Republic Act No. 7610 7 was enacted not only to protect
children from prostitution, but also to protect them from any sexual abuse
due to the coercion or influence of any adult.
Rape under paragraph 2 of the next preceding article shall be punished by prision mayor.
The Special Protection of Children Against Abuse, Exploitation and Discrimination Act.
See J. Leonen, Dissenting Opinion in People v. Caoili, G.R. No. 196342, August 8, 2017,
<http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2017/august20171196342_leonen.
pdf> [Per J. Tijam, En Banc].
REV. PEN. CODE, Article 266-A provides:
Article 266-A. Rape; When And How Committed. - Rape is committed -
I) 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.
10
See J. Leonen, Dissenting Opinion in Quimvel v. People, G.R. No. 214497, April 18, 2017,
Separate Concurring Opinion 3 G.R. No. 227363
effectivity of Article 336 of the Revised Penal Code. Article 336 has already
been rendered ineffective with the passage of Republic Act No. 8353, or the
Anti-Rape Law of 1997.
The present case involves an appeal from the August 17, 2015
Decision of the Court of Appeals, finding accused-appellant Salvador
Tulagan guilty beyond reasonable doubt of sexual assault under Article 266-
A, paragraph 2 and statutory rape under Article 266-A, paragraph 1(d) of the
Revised Penal Code. 11
swollen. 14
Both the Regional Trial Court and the Court of Appeals found
accused-appellant guilty beyond reasonable doubt of sexual assault and
statutory rape.
ARTICLE III
Child Prostitution and Other Sexual Abuse
Under the law, the State must "provide special protection to children
from all forms of abuse, neglect, cruelty exploitation and discrimination." 17
Children do not willingly indulge in sexual intercourse or lascivious conduct
with an adult. There is always an element of intimidation or coercion
involved. Thus, the crime is not merely punishable under the Revised Penal
Code, but also under Republic Act No. 7610.
17
Rep. Act No. 7610 (1992), art. I, sec. 2.
18
771 Phil. 641 (2015) [Per J. Peralta, En Banc].
Separate Concurring Opinion 7 G.R. No. 227363
Section 5(b), Article III of R.A. No. 7610, where the law provides for the
higher penalty of reclusion temporal medium, if the offended party is a
child victim. But if the victim is at least eighteen (18) years of age, the
offender should be liable under Art. 266-A, par. 2 of the RPC and not R.A.
No. 7610, unless the victim is at least eighteen (18) years and she is unable
to fully take care of herself or protect herself from abuse, neglect, cruelty,
exploitation or discrimination because of a physical or mental disability or
condition, in which case, the offender may still be held liable for sexual
abuse under R.A. No. 7610.
19
Id. at 670-671 citing Ma/to v. People, 560 Phil. I 19, 139-142 (2007) [Per J. Corona, First Division]
and Rep. Act No. 7610 (I 992), art. I, sec. 2.
I
20
See REV. PEN. CODE, art. 266-A (d), as amended.
21 UNIVERSITY 01' THE PHILIPPINES MANILA, THE UNIVERSITY OF EDINBURGH, CHILD PROTECTION
NETWORK FOUNDATION AND UNICEF PHILIPPINES, A SYSTEMATIC REVIEW OF THE DRIVERS OF
VIOLENCE AFFECTING CHILDREN IN THE PHILIPPINES. MANILA: UNICEF PHILIPPINES (20 I 6). available
at
<https ://resourcecentre.savethechi ldren. net/sites/default/ti Jes/documents/a_systematic_Iiterature_re vie
w_of_the_drivers_of_vac.pdt> 71 (last accessed on March I 1, 2019).
22 Id.
23
FAMILY CODE, art. 234, as amended.
. '
below 18, have no capacity to enter into any contracts 24 or marriage. 25 Yet,
strictly reading the provisions of the Revised Penal Code, any minor above
12 years old may validly consent to sexual intercourse and lascivious
conduct with an adult.
The law itself requires that children in EPSOSA must have either
consented due to money, profit, or other consideration, or must have
consented due to the "coercion or influence of any adult[.]"
24
f
CIVIL CODE, art. 1327(1 ).
25 FAMILY CODE, art. 35.
26 Suparna Choudhury, Sarah-Jayne Blakemore, Tony Charman, Social cognitive development during
adolescence, l SOCIAL COGN!TlVE AND AFFECTIVE NEUROSCIENCE I 65-174 (2006). available at
<https://doi.org/ JO. I 093/scan/nsl024> (last visited on March 11, 2019).
27
Rep. Act No. 7610 (1992), art. I, sec. 2.
28
299 Phil. 51 (1994) (Per J. Nocon, Second Division].
29
Id. at 60.
\
This Court has noted in several cases that minors could be easily
intimidated and cowed into silence even by the mildest threat against their
lives. At the time of the commission of the crimes, Salve was a fifteen-
year old girl who had just arrived in town to tend the beauty parlor of her
sister. She was left all alone that night and intimidation would explain
why she did not put up a determined resistance against her defiler. 31
(Citation omitted)
In these cases, this Court determined that the minor's age played a
major part in whether he or she could rationally give consent to any sexual
act with an adult. This Court had to consider that the vast difference in age
between the victim and the offender could be indicative of coercion and
intimidation. For this reason, Republic Act No. 7610 penalizes sexual
offenses against children not covered by the statutory age of consent.
Hence, this is not the proper time to discuss the permutations of the
different penalties to be imposed under Republic Act No. 7610. Any
suggested permutations of the penalties should be discussed when the proper
factual situations appear before this Court.
II
The majority notes that "[Republic Act] No. 8353 did not expressly
repeal Article 336 of the [Revised Penal Code], as amended." 32
I
30
397 Phil. 813 (2000) [Per J. Gonzaga-Reyes, Third Division].
31
Id. at 826.
32
Ponencia, p. 59.
Separate Concurring Opinion 10 G.R. No. 227363
I disagree.
1. 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. I
33
The Anti-Rape Law of 1997.
Separate Concurring Opinion 11 G.R. No. 227363
Article 335, however, has already been repealed by Republic Act No.
34
8353. The provisions on rape were transferred from Title Eleven to Title
Eight of the Revised Penal Code, reflecting its reconceptualization from
being a crime against chastity to being a crime against persons.
In any case, the ineffectivity of Article 336 does not preclude acts of
lasciviousness from being punishable under different laws such as Republic
Act No. 7610 or Republic Act No. 9262. 35 These laws, likewise, carry more
severe penalties36 than Article 336, 37 providing better protection for victims
of lascivious acts not constituting rape.
34
Rep. Act No. 8353, sec. 4 provides:
~
SECTION 4. Repealing Clause. -Article 335 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.
35
Anti-Violence Against Women and Their Children Act of2004.
36
Rep. Act No. 7610 (1992), art. III, sec. 5 provides:
Section 5. (b) ... That the penalty for lascivious conduct when the victim is under twelve (12) years of
age shall be reclusion temporal in its medium period[.]
Rep. Act No. 9262, sec. 5 and 6 provides:
SECTION 5. Acts of Violence Against Women and Their Children. - The crime of violence
against women and their children is committed through any of the following acts:
(g) Causing or attempting to cause the woman or her child to engage in any sexual activity which
does not constitute rape, by force or threat of force, physical harm, or through intimidation
directed against the woman or her child or her/his immediate family[.]
SECTION 6. Penalties. -The crime of violence against women and their children, under Section
5 hereof shall be punished according to the following rules:
(e) Acts falling under Section 5(g) shall be punished by prision mayor[.]
37
This crime is punishable by prision correccional.
Separate Concurring Opinion 12 G.R. No. 227363
III
38
J. Leonen, Dissenting Opinion in People v. Caoili, G.R. No. 196342, August 8, 2017, <
f
http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2017/august2017 /196342 _leonen.pd
f> 12 [Per J. Tijam, En Banc].
39
Ponencia, p. 9.
40
746 Phil. 809 (2014) [Per J. Leonen, Second Division].
41
Id. at 832-833.
Separate Concurring Opinion 13 G.R. No. 227363
The idea that one ( 1) kind of rape is punished more severely than the
other because of "unwanted procreation" only serves to undermine the law's
reconceptualization of rape as a crime against persons. It reduces a woman
to an untouched hymen that must be protected by the man who will
eventually claim her---or worse, as a mere womb for the propagation of that
man's seed.
This Court has already taken strides to address our prudish views on
women's sexuality. People v. Amarela42 recognized that the stereotype of a
demure and reserved Filipina has no place in a modem society. A Filipina
can either be as demure or as promiscuous as she desires. Her sexual
proclivities, or lack thereof, has no bearing on whether she can be a victim
of rape. The commission of the crime is solely attributable to the rapist, not
the victim. Thus:
Even if it were true that AAA was infatuated with the accused, it
did not justify the indignity done to her. At the tender age of 12,
adolescents will normally be misled by their hormones and mistake regard
or adoration for love. The aggressive expression of infatuation from a 12-
year-old girl is never an invitation for sexual indignities. Certainly, it does
not deserve the accused's mashing of her breasts or the insertion of his
finger into her vagina.
http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2018/april2018/201414.pdt> [Per J.
Leonen, Third Division].
f
45
Id. at 11-12.
46
J. Leonen, Dissenting Opinion in People v. Caoili, G.R. No. 196342, August 8, 2017, <
http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2017/august2017/196342 _leonen.pd
t> 11 [Per J. Tijam, En Banc].
Separate Concurring Opinion 15 G.R. No. 227363
Laws punishing rape should be read from the point of view of the
victim. The finger is as much a weapon of forced sexual penetration as the
penis. All victims of forced sexual acts suffer the same indignity. Thus, the
offender must be charged with the same crime.
Nonetheless, I reiterate that this case is not the right vehicle to fully
discuss the permutations of the law for victims aged 12 to below 18 years
old. Any discussion will only amount to hypotheticals and an almost
advisory opinion on the matter, considering that the victim here is not
between those ages. I propose that this Court await the proper case to deal
with the factual situations that will arise in the application of the law when
the victim is aged 12 to below 18 years old.
'
1 Associate Justice
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