A case of sexual abuse under Sec. 5(b) of RA 7610

In People v. Udang (G.R. No. 210161. January 10, 2018), the Informations charged Udang with sexual abuse, under Section 5(b) of Republic Act No. 7610, and not with rape, under Article 266-A(1) of the Revised Penal Code.

Based on the Informations, the charge against Udang was "child abuse," defined in Section 3 of Republic Act No. 7610 as "the maltreatment, whether habitual or not, of [a] child" and includes "any act by deeds or words which debases, degrades or demeans the intrinsic worth and dignity of a child as a human being." The allegations in the Informations stated that Udang "sexually abuse[d]" AAA by having sexual intercourse with her while she was intoxicated, thus, "debas[ing], degrad[ing], or demean[ing] the intrinsic worth of AAA."

While the Informations stated that the acts were "[c]ontrary to and in [v]iolation of Article 266-A in relation to Sec. 5 (b) of R.A. 7610," the factual allegations in the Informations determine the crime being charged.

Given that the charges against Udang were for sexual abuse, the Supreme Court examined whether or not the elements of sexual abuse under Section 5(b) of Republic Act No. 7610 are present in this case. Section 5(b) of Republic Act No. 7610 reads:
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: xxx

(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[.]
The elements of sexual abuse are: first, "the accused commits the act of sexual intercourse or lascivious conduct"; second, "the said act is performed with a child exploited in prostitution"; and, finally, that "the child, whether male or female, is below 18 years of age."All the elements of sexual abuse are present in People v. Udang (G.R. No. 210161. January 10, 2018).

As an adult and the father of AAA's friend, Betty, Udang had influence over AAA, which induced the latter to have drinks and later on have sexual intercourse with him. AAA, born on May 20, 1990, was 12 and 13 years old when the incidents happened. The following transcript of stenographic notes shows AAA's "categorical, convincing and consistent" testimony as to how Udang sexually abused her in September 2002:
Q. In September, 2002 AAA, what unusual incident that happened between you and the accused?
A. Yes.
Q. What is that AAA?
A. We are drinking in their house.

Q. You are saying in the house of Bienvenido Udang, Sr.?
A. Yes.
Q. Where was it located?
A. We are neighbors.
Q. So, in crossing Lumbia, Cagayan de Oro City?
A. Yes.
Q. And you said that you were drinking, what were you drinking in the house of B[ie]nvenido Udang, Sr.?
A. Tanduay.
Q. And who were your companions, if any, at that time?
A. Betty, myself and Bienvenido, Jr.
. . . .
Q. So, how many Tanduay bottles were you really drinking in September, 2002?
A. Five.
Q. What happened next while you were in the house of the accused?
A. They let me drink until I was drunk and carried me to the room.
Q. And when you were carried to the room, what happened next?
A. Then he undressed me.
Q. Let us clarify this, who carried you to the room?
A. Bienvenido Udang, Sr.
Q. When he carried you to the room, you said you were undressed, who undressed you?
A. Bienvenido Udang, Sr.
Q[.] And what happened next?
A. He kissed me and then went on top of me.
Q. And when he was on top of you, what, if any, was your position then?
A. I was lying down.
Q. By the way, you said that you were undressed at that time, AAA, so at that time you had no upper garments?
A. No more.
Q. How about your lower garment?
A. No more.
Q. How about Bienvenido Udang, Sr., what was the state of his dress?
A. I could not remember because it was already night and it was dark.
Q. When he went on top of you, what was the state of his dress at that time?
A. I did not notice.
Q. When Bienvenido Udang[,] Sr. went on top of you while you were lying down, what was Bienvenido Udang, Sr. do[ing]?
A. I am shy.

Pros. Sia-Galvez:

We would like to manifest at this juncture, your honor, that the witness is hesitant in answering [the] question because of the feeling of embarrassment, your honor.

(To witness) AAA, would you want your mother inside this court room or we will have her stay outside this court room?

A. She will stay.
Q. Can we continue, AAA?
A. Yes.
. . . .
Q. Let us go back, when Bienvenido Udang[,] Sr. was on top o[f] you and you were lying down, what happened next?
A. He inserted his penis on my vagina.
Q. So, you felt [his] penis entering your vagina?
A. Yes.
Q. And how many times, if any, did he do that [i]n September, 2002?
A. Only once.
As for the sexual abuse in December 2003, AAA testified:
Q. In December, 2003, AAA, what incident, if any, happened between you and the accused?
A. Yes, there was.
Q. What incident was that?
A. The same thing, we had a drinking session with Bienvenido Udang, Sr., and Jr.
Q. And when was this happened?
A. In the house.
. . . .
Q. You said that you were drinking in the house of the accused, what were you drinking then?
A. Tanduay
Q. And you said it happened again, where did it happened (sic)?
A. In their house, in a room.
. . . .
Q. And when you were inside the room, what happened next?
A. I was lying down and after a while, they went inside.
Q. You are referring to?
A. Bienvenido Udang, Sr.
Q. And when they were inside the room, what happened next?
A. The same thing, he undressed me and inserted his penis into my vagina?
Q. How many times?
A. Until he had an ejaculation.
The High Court found AAA credible not because of the generalization that she was a child of tender years incapable of fabricating a story of defloration but because of her categorical narration of her experience and her straightforward explanation that she was intimidated by Betty to have drinks with her father. Thus, she was compelled to return to the accused's house even after she was raped. AAA testified that Betty, her "friend," "sold" her to Udang; Betty, who was taller than AAA, even threatened to "maul" her had she resisted:
Q. After the September, 2002 incident, did you tell any person about the incident?
A. No, I did not tell it to anyone because if I tell, his child will maul me.
Q. And after the said incident, you still went back to their house, is that correct?
A. Yes, because his child wanted me to go.
Q. And you were drinking Tanduay with the accused.
A. Yes, because if [I] will not drink, his child Betty will maul me. Q. Was (sic) this Betty already mauled you? A. Yes, because whenever she asked me to buy cigarette, she maul (sic) me because she was taller than me before.
To the Court's mind, Betty's threat of violence was enough to induce fear in AAA.

AAA's delay in reporting the incidents did not affect her credibility. Delay is not and should not be an indication of a fabricated charge because, more often than not, victims of rape and sexual abuse choose to suffer alone and "bear the ignominy and pain" of their experience. Here, AAA would not have revealed the incidents had she not been interviewed by the police when she was arrested for sniffing rugby:
Q. To whom for the first time did you reveal these two incidents that happened to you?
A. Only when Bienvenido Udang, Sr. ha[d] me arrested
Q. Why did Bienvenido Udang, Sr. have you arrested?
A. Because his child let me used to sniff "'rugby".
Q. What is the name of that child?
A. Betty Udang.
Q. Do you mean to say that you also use "rugby"?
A. No, I am not using "rugby", but I used it for the first time when his child let me used then (sic).
Q. Were you, in fact, being arrested (sic) at that time when Bienvenido Udang, Sr. have you arrested?
A. Yes.
Q. Who arrested you?
A. I was arrested by the police and I told the police about the incident because I wanted to go out but the police needed a signature in order for me to go out.
Q. Whose signature is needed?
A. Bienvenido Udang, Sr.
Q. How come those two incidents of sexual abuse by Bienvenido Udang, Sr.
A. I reported the incidents to the police because they interviewed me.
With AAA's categorical testimony, the prosecution discharged its burden of proving Udang's guilt beyond reasonable doubt and has made a prima facie case for two (2) counts of sexual abuse against him. In other words, the prosecution presented the "amount of evidence which would be sufficient to counterbalance the general presumption of innocence, and warrant a conviction." The burden of evidence then shifted to the defense to counter the prosecution's prima facie case.

Udang failed to present evidence sufficient to counter the prosecution's prima facie case against him.

To destroy AAA's credibility, Udang capitalizes on the fact that he was charged only after he had AAA arrested for sniffing rugby. However, given AAA's affirmative and credible testimony, Udang's allegation of ill motive is deemed inconsequential.

While prosecution witness Dr. Revelo testified that the lacerations found in AAA's genitalia could have been "introduced by other operation" aside from sexual intercourse, Udang had nothing but denials and alibis as defenses. If, as Udang testified, he was with his mother, siblings, and some barangay tanods during the alleged incidents, he could have presented them as witnesses to corroborate his testimony, but he did not. Neither is Betty's testimony that Udang never had drinks with AAA sufficient to acquit her father. Udang's and Betty's testimonies are "self-serving" and were correctly disregarded by the trial court.

As correctly held by the trial court and by the Court of Appeals, the testimonies of Gandawali and Orcales, AAA's fellow inmates at the Cagayan de Oro City Jail, were hearsay, hence, inadmissible in evidence. This is because Gandawali and Orcales had no personal knowledge of the incidents as they were not there when the incidents happened.

In sum, the Supreme Court was morally convinced that Udang committed two (2) counts of sexual abuse under Section 5(b) of Republic Act No. 7610, with each count punishable by reclusion temporal in its medium period to reclusion perpetua. Applying the Indeterminate Sentence Law and absent any mitigating or aggravating circumstance in the present case, the maximum imposable penalty for each count should be the penalty prescribed by law in its medium period which is reclusion temporal in its maximum period ranging from 17 years, four (4) months, and one (1) day to 20 years. On the other hand, the minimum term of the imposable penalty shall be the next penalty lower in degree than that prescribed by law which is prision mayor in its medium period to reclusion temporal in its minimum period. This minimum term ranges from eight (8) years and one (1) day to 14 years and eight (8) months. Udang shall serve the penalties successively.

Further, AAA is entitled to P50,000.00 as civil indemnity. The award of moral damages is likewise retained at P50,000.00. However, the award of exemplary damages is deleted given the absence of any aggravating circumstance in this case.

ADDITIONAL READINGS:

[1] Malto v. People, 560 Phil. 119, 135-136 (2007) [Per J. Corona, First Division].
[2] Amployo v. People, 496 Phil. 747, 758 (2005) [Per J. Chico-Nazario, Second Division].
[3] People v. Bahuyan, 308 Phil. 346, 358 (1994) [Per J. Romero, Third Division]. See also People v. Errojo, 299 Phil. 51, 61 (1994) [Per J. Nocon, Second Division].
[4] Bautista v. Sarmiento, 223 Phil. 181, 185 (1985) [Per J. Cuevas, Second Division].
[5] RULES OF COURT, Rule 130, sec. 36 provides: Section 36. Testimony generally confined to personal knowledge; hearsay excluded. — A witness can testify only to those facts which he knows of his personal knowledge; that is, which are derived from his own perception, except as otherwise provided in these rules.
[6] Rep. Act No. 4103 (1965), as amended.
[7] REV. PEN. CODE, art. 64(1) provides:

Article 64. Rules for the Application of Penalties Which Contain Three Periods. — In cases in which the penalties prescribed by law contain three periods, whether it be a single divisible penalty or composed of three different penalties, each one of which forms a period in accordance with the provisions of articles 76 and 77, the courts shall observe for the application of the penalty the following rules, according to whether there are or are not mitigating or aggravating circumstances:
  1. When there are neither aggravating nor mitigating circumstances, they shall impose the penalty prescribed by law in its medium period.
[8] People v. Matias, 687 Phil. 386, 391 (2012) [Per J. Perlas-Bernabe, Third Division].
[9] REV. PEN. CODE, art. 70 partly provides:

Article 70. Successive Service of Sentences; Exception. — When the culprit has to serve two or more penalties, he shall serve them simultaneously if the nature of the penalties will so permit; otherwise, said penalties shall be executed successively, following the order of their respective severity, which shall be determined in accordance with the following scale:
Death.
Reclusión perpetua.
Reclusión temporal.
Prisión mayor.
Prisión correccional.
Arresto mayor.
Arresto menor.
[10] CIVIL CODE art. 2230, which provides that "[i]n criminal offenses, exemplary damages as a part of the civil liability may be imposed when the crime was committed with one or more aggravating circumstances. Such damages are separate and distinct from fines and shall be paid to the offended party."

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