People vs Abanilla, G.R. Nos.

148673-75

FACTS: On June 1999, Florencio Abanilla, arrived home late and drunk. He laid beside her daughter, touched her
private parts and told her not to create a noise because he will kill her. He removed her undergarments, placed
himself on top of her, placed his organ into hers but he was not able to insert his organ into hers. He made an up and
down movement until ejaculation. On October 1999, two incidents happened where the accused arrived home late
and drunk again, laid down beside her, removed her undergarments, placed himself on top of her, placed his organ
into hers and this time he was able to insert his organ into hers and made an up and down movement. The accused
was charged with three counts of aggravated rape committed against his 17-year old daughter.

ISSUE: Whether or not Florencio Abanilla is liable for three counts of aggravated rape committed against his 17-
year old daughter

RULING: No, the proper charge should be one count of the crime of acts of lasciviousness and two counts of
aggravated rape. The complainant’s description of the first incident cannot be deemed as rape. The complainant’s
testimony shows that accused “was not able to insert his organ.” Accused merely rubbed it against her private part until
ejaculation. Without the penetration, the crime committed is either attempted rape or acts of lasciviousness.
Attempted rape, however, requires that the offender commence the commission of rape directly by overt acts but
does not perform all the acts of execution by reason of some cause or accident other than his own spontaneous
desistance. In the present case, nothing prevented the accused from consummating the act and it would seem that
he was already contented with rubbing his penis against the complainant without actually inserting it into her private
part. Thus, accused cannot be convicted of attempted rape but only of acts of lasciviousness for the June 1999
incident.

As to the 2nd and 3rd incidents, all the required elements of rape are present: 1) the offender had carnal
knowledge; and 2) by using force, threats or intimidation. In this case, the accused was able to insert his organ to
the organ of the complainant and threatened to kill her should she make a noise or tell others what happened.
Being her father, his force or threat was sufficient to create fear in the mind of the complainant compelling her to
submit to his sexual abuse.

Discussion:
These are all factual circumstances. In exams the very important thing you have to look at is the intent to lie. How do
you see if there is intent to lie? Base it on your cases. In your cases, in acts of lasciviousness wala pa nakababa ang
shorts or wala gyud niya force ang iyang sarili sa victim. Gibaba pa siya to acts of lasciviousness because the
prosecution failed to prove the intent to lie with the victim.

Question: When the touching of the penis to the vagina, may condom? Does it affect?
Ma’am: No because it is still a penis even if ther is a condom.

What if accidentally lang pud? Naked si accused tapos naa pa siya’y ginabuhat unya nag dangle dangle lang, still it is
factual. Is it acts of lasciviousness or rape? Acts of Lasciviousness because he was naked and because of his
nakedness while kissing the victim the penis touched the vagina or touched the mons pubis or the external genitalia.
Klaro that there was no intent to lie in that case. Usually ingana.

Question: What if the information it was only rape however during the trial only attempted rape was proven, will he
still be convicted?
Ma’am: Yes we will discuss that in variance. It is like Murder to Homicide. In rape magkaproblema tayo if Acts of
Lasciviusness ang na charge tapos ang na prove rape, patay tayo diyan. Because the elements of Rape is not
enclosed in Acts of Lasciviousness. That’s the general. Kaya mataas muna. Like Serious Physical Injuries isaka nila
nag Attempted Murder or Frustrated Murder because the lesser crimes elements are in the higher crime. In this case
walang problema because all the elements of acts of lasciviousness are in rape. Eclosed siya so pwede natin ibaba.

Now let’s discuss multiple rape.

RULE: One penetration= One count.

We have that one case, in one sitting gi-rape niya ang babae sa table pagkahuman nagbalhin siya’g position. It is in
Crim 1 and you know it is the fact of different criminal intent. Kato different sex position, it was one crime only.
Because isa lang siya ka intent pero gusto lang niya ma-try ang other position. But the general rule is one penetration
one count.

Now another issue. What if there is conspiracy? We have 2 rapists, 1 victim. Gi-rape ni A si C. Gi rape pud ni B si C.
What is the charge of A? How many counts? 2 counts. Because there is conspiracy, the conspirator is liable for the
rape of the others such as the case of People vs Sanchez Jan 25,1999. 7 information filed against Sanchez.
Conviction of 7 counts of Rape with Homicide. Here it is different, isa lang siya but 7 times niya gi-rape. Maski ingon
nimo siya isa lang man siya, isa lang man toh ka-inent. On penetration equals one count of rape. So the court found
him guilty of what? 7 counts because in this case there was conspiracy. 49 counts of rape. There will be as many
counts of homicide as there are rapes with homicide committed.

Here in Rape with Homicide we have the generic definition of Homicide which is killing. Someone is dead. Because
of the rape, someone died. It was in pursuance of the rape. Let’s discuss the case of People vs Laog.

People vs Laog

Facts: In the evening of 2000, A and her friend J were walking along the rice paddies. Suddenly appellant appeard
and was holding an ice pick and waited for them in the grassy area. Without warning, appellant struck AAA in the
head with a lead pipe causing her to feel dizzy and fell down. J sought for help and was also hit on the head with a
lead pipe and fell down. Appellant stabbed J several times with an ice pick and thereafter covered her body with
grass. Appellant then went to A and hit her on the head several times with lead pipe and stabbed her on the face.
While A was in a defenceless position , appellant raped her and after raping her appellant covered her with grass at
that point A passed out. When A regained consciousness it was night and it was raining hard. It was found out that J
died.

Issues: What are the crimes of the offenders in this case?

Held: In so far as A is concerned, the crime is rape only. Why? Because your homicide must be in consonance with
the intent of rape, it is a special complex crime of rape with homicide. The facts established showed that the
constitutive elements of rape with homicide were consummated, and it is immaterial that the person killed in this case
is someone other than the woman victim of the rape. In this case walay problema maski kinsa pa ang gipatay as long
as there is rape. A was never killed only J. So the correct charge is Rape with Homicide. So even if J here was not
raped, only A, but J was killed during the time na naay rape nga nahitabo. It is Rape with Homicide. The same with
your Robbery with Homicide. As long as there is someone was killed as in the case of People vs Mangulabnan.

Whoever the victim is as long as there is homicide, the correct charge is Rape with Homicide. Going back to the case
of People vs Sanchez, 7 sila nag rape so didto pa lang daan 7x7=49 counts plus naay namatay. You have Rape with
Homicde. Thus homicide committed by reason of the rape loses its character as n independent offense and assumes
another character and function as a qualifying circumstance. Each of the accused is not only guilty of the rape that he
committed but also for rapes committed by the other 2.

Now let’s have scenarios. 7 counts depende yan ilang beses ni-rape.
Situation: Si A and si B pumunta sila sa bahay ni C na babae tapos si A ni-rape niya si C without knowing si B pud
nisulod didto and piñata si C. Is that rape with homicide?
Answer: No because in the first place there was no conspiracy. So it is Rape kay A. Kay B is merely Murder of
Homicide.

In the case of People vs Sanchez, it tells us that kung ilang beses ni rape yun din ang number of charges. It is
different if you reach Forcible Abduction with Rape. Because in Forcible Abduction with Rape, gi-kidnap siya with
lewd design tapos gi-rape siya pila ka times, isa lang dyud na siya na charge of Forcible Abduction with Rape. Ma-
absorb niya tanan. It’s different. Ilang penetration, that’s the number of counts as per People vs Sanchez. Just cite
the case of People vs Sanchez when you talk about multiple rapes. If 7 people unya 7 times nila gi-rape so 7x7=49
counts of rape unya gipatay pa dyud. Rape with Homicide.

Situation: Si A and si B gihapon. What if si B tig gunit lang tig cheer. Wala siya ni rape. Is he still liable with rape?
Answer: Yes because maski there is no penetration on his part, there is conspiracy. Masking unsa. Maski accomplice
lang. Dili, apil gyud because there is conspiracy. Except lang atong unique case na gi-change niya ang position.
Although it was different penetration but ingon ang Supreme Court, it was just one lewd design. One design lang
gyud toh niya. One charge of rape. It is the only case na nakita nako and nakita ninyo as discussed by Ma’am
Mamuram.

Question: Ang penetration ba per person lang or pwede siya per thrust?
Ma’am: As long as you prove that the next thrust is a different intent it is another count but nevertheless we’ve had
cases na different penetration na gigawas gisulod, lahi na pud na count. But again it is all in the matter sa pag
appreciate sa Supreme Court as to the criminal intent of rape pero siguro pag successive thrust maingon nato na it is
one intent. There was a case na nag thrust siya tapos nag rest siya kadali tapos nibalik siya. So different counts nato
siya of rape.

Question: Paano kung nagkamali lang pasok?

Ma’am: That is evidentiary.

Question: A and B raped C. How many counts for each? 2 or 4?

Ma’am: 2 only. In People vs Sanchez, in total there were a total of 49 counts but 7 each. So in this case, A will only
be liable for 2, si B pud will only be liable for 2. But the total is 4 as to their liability, as to the rape lang. What is
important is for you to know that the offender is liable for the rape of the other or the co-conspirator.

Let’s go to your qualifying circumstances. When Rape is punished by death?

The penalty of rape should be punished by death in the following cases:
a. When by reason or on the occasion of the rape, homicide is committed.
b. When the victim is under 18 years of age and the offender is the parent, ascendant, stepparent, guardian,
relative by consanguinity or affinity within 3rd civil degree or the common law spouse of the parent of the
victim.
c. When the victim is under the custody of the military or authorities or any law enforcement or penal
institution.
d. When the rape is committed in full view of the husband, parent, any of the children or other relatives within
the 3rd civil degree of consanguinity.
e. When the victim is a religious engaged in a legitimate religious vocation or calling and is personally known
as such to the offender before or at the time of the commission of the crime.
f. When the victim is a child below 7 years old.
g. When the offender knows he is afflicted with HIV or AIDS or any other sexually transmissible disease and
the virus or disease is transmitted to the victim.
 h. When committed by any member of the AFP or any paramilitary units thereof or the PNP or any law
enforcement agency and the offender took advantage of his position.
i. When by reason or occasion of the rape, the victim has suffered permanent physical mutilation or disability.
j. When the offender knew of the pregnancy of the offended party at the time of the commission of the crime.
k. 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.
l.
If it happens here in the Philippines and the priest is personally know to the victim at the time of the crime it qualifies
the penalty to death. As what I have said a while ago as to the effect of age, we have if the victim is a child below 7
years old.

If you remember tong MMK, si Ping Medina, the father ang rapaist didto. The 4 month old ata toh or 2 year old basta
baby gi rape niya. It was found out the baby was raped because the baby and fever and there were discharges from
the vagina and it was found out she had gonorrhoea. So that means she was raped. Remember that is again also a
circumstance for qualifying the penalty to death.

So these circumstances will make the penalty to death. It will increase it to death.

Let’s discuss the Variance Doctrine. Let’s discuss the cases.

People vs Cuaycong, G.R. No. 196051

FACTS: [AAA] is the daughter of [BBB] from a previous relationship. [Appellant] became [BBB]’s partner and their
relationship produced a son, named [DDD]. On July 4, 2002 at about 10:00 o’clock in the evening, [AAA] felt that
[appellant] laid himself beside her and started to remove her shorts. She told him not to remove it but [appellant] did
not listen. Then he inserted his penis to her vagina and kept it inside for a long time. [Appellant] threatened to kill her
mother if she will not keep quiet. The [appellant] was charged of rape by [AAA]. The RTC convicted appellant on two
counts of statutory rape. The Court of Appeals affirmed appellant’s conviction of the felony of statutory rape in
Criminal Case No. 02- 0575. However, it did not uphold the conviction in Criminal Case No. 02-0576 because, while
the Information alleged rape by carnal knowledge, the prosecution was able to prove rape by sexual assault since
the rape incident at issue involved penile penetration of the victim’s anus.

ISSUE: Whether or not the accused may be charged of acts of lasciviousness despite not being included in the
charge

RULING: Yes, the accused may be charged of acts of lasciviousness. Since the charge in the Information in
Criminal Case No. SC-7424 is rape through carnal knowledge, appellant cannot be found guilty of rape by sexual
assault although it was proven, without violating his constitutional right to be informed of the nature and cause of the
accusation against him. However, following the variance doctrine embodied in Section 4, in relation to Section 5,
Rule 120, Rules of Criminal Procedure, appellant can be found guilty of the lesser crime of acts of lasciviousness.
Indeed, acts of lasciviousness or abusos dishonestos are necessarily included in rape.

Discussion:
So in this case di pwede from Rape through Carnal Knowledge ibaba natin to Sexual Assualt because they have
different elements. Lahi ang gisudlan. However when we talk about Rape per se VS Acts of Lasciviousness, if what is
only proven is Acts of Lasciviousness pwede because again if the charge is Rape, the element of Acts of
Lasciviousness are necessarily included in the elements of Rape so therefore it does not violate the constitutional
right of the accused to be informed. The Variance Doctrine is the same lang sa mga cases na pwede nato inaog.
Murder to Homicicide. Murder to Homicide to Physical Injuries. As long as the higher offense is in that charge. Why?
Dili pwede ang lower offense. It would violate the rule of the accused to be informed. If ang kaniyang defense diyan is
Acts of Lasciviousness, Acts of Lasciviousness lang. Paano yung elements of Rape? Hindi niya yan ma present so
hindi talaga yan pwede. Ma-violate mo talaga ang right of the accused to be informed of the rights to know the
charge against him.

Example:
If the charge is Homicide, never talaga yan maging Murder pag conviction. Why? Because if the charge is Homicide,
the defense will only focus on Homicide. It will never talk about the circumstances in Murder. So what if naa diay
Treachery involved and it was proven by the prosecution but the charge is merely for Homicide? The defense of the
accuse is not commensurate with the charge against him. He could not present defenses for treachery because it is
not in the charge. Same with Rape, ang lasciviousness pasok yan siya sa Rape but hindi pwede Rape on the first
Form ibaba mo sa Rape sa Second Form. So definitely these are two different offenses. Ano lang naman ang wala
kay Lasciviousness? INTENT TO LIE.

Now let’s go to Effects of Pardon.

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.

Example:
Ang iyahang defense kay Sweetheart Doctrine so nakulong dyud siya because in one case wala gidawat wala
gidawat ang defense. Now pagabot sa kulungan nag make amends sila. Naka text siya didto kay amigo sila sa
warden. Pagabot didto gikasal sila so the crime or conviction is set aside or distinguish by Article 266-C.

Why do you think this is included? This is primarily to protect children born out of rape. Ngano man? For example
nabuntis tapos nanganak tapos na forgive ng mother. Nagpakasal sila. That’s the rationale of the law. At least the
child will grow up with complete parents.

Now if it is marital rape, dili naman pwede na makasal sila balik. Mag renewal of vows diay sila. Wala na siya’y effect.
But that can be express forgiveness. 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. If void ab initio ang marriage, dili siya
ma-affect. Dili siya ma-extinguish if i-void ab initio ang marriage.

Question: What if na-vitiate ang consent during the marriage? Ma-extinghish?

Ma’am: Hindi because we are talking about void ab initio. If vitiated it is merely voidable.

Question: What if 4 people were in conspiracy sa rape pero is lang ang nagkasal? Ang other 3 ba ma-absolve?
Ma’am: Forgiveness is personal that cannot be shared by others.

Now let’s go to presumption.

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.

So what are these evidences?

a. Any physical overt act manifesting resistance against the rape
b. When the offended party is so satiated as to render him or her capable of giving consent.
Ma-prove nimo na demented siya ato na time. Ma prove nimo na unconscious. Ma prove nimo na idiot siya. So these
are admissible evidence against the accuse.

Now, in total when we talk about rape:

 First: You have to ask whether first form or second form. Deductive what type of rape.
 If in the First Form: If there was penetration – look at the circumstances are present if the
circumstance enumerated in the first paragraph are not present definitively we don’t have rape. So
those are your elements. So tanawon ninyo. Look at the age. Look at the strength or force.
 Next: Consummation or Attempted Rape- apply your knowledge based on the cases.
 Last: If attempted, tanawon na pud if there is intent to lie because if there was no intent to lie, that is Acts of
Lasciviousness.

Steps na siya sa investigation. When you answer rape: a. What type of rape?, b. What stage? No problem if
consummated. If attempted, look at the intent. If coupled with Homicide, derecho complex crime of Rape with
Homicide then apply your counts. Because if the question is what is the conviction of the accused. It is not a
complete answer if imong answer lang kay rape. The complete answer is how many counts of rape for you to get full
points.