Analysis: sexual, physical abuse of ex-gf; attempted rape

Social media personality Xander Ford, also known as Marlou Arizala, was arrested because he allegedly physically and sexually abused his ex-girlfriend, Ysah Cabrejas. In an online post made by Cabrejas, she posted screenshots of her conversations with her ex-boyfriend wherein Xander admitted and apologized for his wrongdoing. Cabrejas also mentioned that Xander forced himself on her, adding that she would get bruises and he would get angry whenever she refused Xander's sexual requests.

The Manila Regional Trial Court Branch 38 issued a warrant of arrest to Xander Ford for violating RA 9262 also known as the Anti-Violence Against Women and Their Children Act of 2004. Xander Ford is now facing charges on the complaint of his ex-girlfriend for physical and sexual violence under said law.

Section 3, Paragraph A, of RA 9262 defines violence against women and their children as "any act or a series of acts committed by any person against a woman who is his wife, former wife, or against a woman with whom the person has or had a sexual or dating relationship, or with whom he has a common child, or against her child whether legitimate or illegitimate, within or without the family abode, which result in or is likely to result in physical, sexual, psychological harm or suffering, or economic abuse including threats of such acts, battery, assault, coercion, harassment or arbitrary deprivation of liberty."

"Physical violence" refers to acts that include bodily or physical harm.

"Sexual violence" refers to an act which is sexual in nature, committed against a woman or her child. It includes, but is not limited to rape, sexual harassment, acts of lasciviousness, treating a woman or her child as a sex object, making demeaning and sexually suggestive remarks, physically attacking the sexual parts of the victim's body, forcing her/him to watch obscene publications and indecent shows or forcing the woman or her child to do indecent acts and/or make films thereof, forcing the wife and mistress/lover to live in the conjugal home or sleep together in the same room with the abuser. Also, sexual violence may refer to acts causing or attempting to cause the victim to engage in any sexual activity by force, threat of force, physical or other harm or threat of physical or other harm or coercion.

In addition to the facts mentioned above, Ms. Cabreja also alleges that there were times she would even beg Xander to stop forcing her to have sexual contact because she has her monthly period. "Pinipilit mo'ko na may mangyari satin kahit na meron ako at kahit na ayaw ko. Kapag hindi ako pumayag magagalit ka kaya nga ako nagka-pasa gawa mo kasi pinilit mo ako! Hindi kaba naawa sa'kin? Umiiyak ako sa harap mo, nag mamakaawa ako sa'yo na tama na, ayaw ko na pero 'di ka nakinig" Ysah Cabrejas.

According to an ABS-CBN News report, Xander's manager Star Image confirmed that this is not the first time that the 22-year-old singer was accused of abuse and attempted rape prior, and would not condone Xander's actions if proven guilty in court. However, it must be pointed out that the prior accusations against Xander are not proof that the current allegations are actually true; he is still entitled to the constitutional presumption of innocence.

However, the court may admit such prior acts as evidence against Xander in today's case against him if there is a scheme or habit of doing the same or similar acts. According to the rule on evidence, "Evidence that one did or did not do a certain thing at one time is not admissible to prove that he did or did not do the same or similar thing at another time; but it may be received to prove a specific intent or knowledge; identity, plan, system, scheme, habit, custom or usage, and the like." (Section 34, Rule 130)

At this juncture, the law on physical and sexual violence against women is now clear. We now proceed with a discussion on rape. It must be recalled that RA 9262 mentions rape as a form of sexual violence.

Is Xander Ford also liable for attempted rape or rape, as the case may be?

Article 266-A of the Revised Penal Code (RPC), as amended by Republic Act (R.A.) No. 8353 (The Anti-Rape Law of 1997), defines the crime of rape as follows:

Rape is committed:

1. 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 is otherwise unconscious;
c) By means of fraudulent machination or grave abuse of authority;
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.

On the other hand, the Supreme Court's explanation for attempted penile rape in Cruz v. People is instructive: 

In attempted rape, therefore, the concrete felony is rape, but the offender does not perform all the acts of execution of having carnal knowledge. If the slightest penetration of the female genitalia consummates rape, and rape in its attempted stage requires the commencement of the commission of the felony directly by overt acts without the offender performing all the acts of execution that should produce the felony, the only means by which the overt acts performed by the accused can be shown to have a causal relation to rape as the intended crime is to make a clear showing of his intent to lie with the female. Accepting that intent, being a mental act, is beyond the sphere of criminal law, that showing must be through his overt acts directly connected with rape. He cannot be held liable for attempted rape without such overt acts demonstrating the intent to lie with the female. In short, the State, to establish attempted rape, must show that his overt acts, should his criminal intent be carried to its complete termination without being thwarted by extraneous matters, would ripen into rape, for, as succinctly put in People v. Dominguez, Jr.: "The gauge in determining whether the crime of attempted rape had been committed is the commencement of the act of sexual intercourse, i.e., penetration of the penis into the vagina, before the interruption."

In short, the offender commences the commission of the crime, i.e., attempts to rape the private complainant but did not succeed to perform all the acts of execution, i.e., penetration. However, in People v. Salinas, the Supreme Court said that even the slightest penetration is sufficient to consummate the crime of rape. Partial penile penetration is as serious as full penetration; the rape is deemed consummated in either case. In a manner of speaking, bombardment of the drawbridge is invasion enough even if the troops do not succeed in entering the castle. (G.R. No. 107204, May 6, 1994)

Perfect penetration, rupture of the hymen or laceration of the vagina are not essential for the offense of consummated rape. Entry, to the least extent, of the labia or lips of the female organ is sufficient. Remaining a virgin does not negate rape (People vs. Castro, 196 SCRA 679, 685)

Assuming all allegations against Xander Ford are true, he may be liable for sexual abuse under RA 9262 or attempted rape (or consummated rape, as the case may be) under the Revised Penal Code. However, he cannot be prosecuted for both because of the constitutional doctrine of double jeopardy.

No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act. (Section 21, Article 3, 1987 Constitution) 

It meant that when a person is charged with an offense and the case is terminated either by acquittal or conviction or in any other manner without the consent of the accused, the latter cannot again be charged with the same or identical offense. This principle is founded upon the law of reason, justice and conscience. It is embodied in the maxim of the civil law non bis in idem, in the common law of England, and undoubtedly in every system of jurisprudence, and, instead of having specific origin, it simply always existed. It found expression in the Spanish Law and in the Constitution of the United States and is now embodied in our own Constitution as one of the fundamental rights of the citizen. (G.R. No. L-3580, March 22, 1950)

It must be noticed that the protection above-mentioned is against a second jeopardy for the same offense. The phrase same offense has always been construed to mean not only the second offense charged is exactly the same as the one alleged in the first information, but also that the two offenses are identical. There is identity between the two offenses when the evidence to support a conviction for one offense would be sufficient to warrant a conviction for the other. This so-called "same-evidence test."

There is identity between two offenses not only when the second offense is exactly the same as the first, but also when the second offense is an attempt to commit the first or a frustration thereof, or when it necessary includes or is necessarily included in the offense charged in the first information. (Rule 113, sec. 9; U.S. vs. Lim Suco, 11 Phil., 484; U. S. vs. Ledesma, 29 Phil., vs. Martinez, 55 Phil., 6) In this connection, an offense may be said to necessarily include another when some of the essential ingredients of the former as alleged in the information constitute the latter. And vice-versa, an offense may be said to be necessarily included in another when all the ingredients of the former constitute a part of the elements constituting the latter. In other words, on who has been charged with an offense cannot be again charged with the same or identical offense though the latter be lesser or greater than the former. "As the Government cannot be, with the highest, and then go down step to step, bringing the man into jeopardy for every dereliction included therein, neither can it begin with the lowest and ascend to the highest with precisely the same result." (People vs. Cox, 107 Mich., 435, quoted with approval in U. S. vs. Lim Suco, 11 Phil., 484; see also U. S. vs. Ledesma, 29 Phil., 431 and People vs. Martinez, 55 Phil., 6, 10)

Moreover, Section 7, Rule 117 of the present Revised Rules of Criminal Procedure, as amended, states that when an accused has been convicted or acquitted, or the case against him dismissed or otherwise terminated without his express consent by a court of competent jurisdiction, upon a valid complaint or information or other formal charge sufficient in form and substance to sustain a conviction and after the accused had pleaded to the charge, the conviction or acquittal of the accused or the dismissal of the case shall be a bar to another prosecution for the offense charged, or for any attempt to commit the same or frustration thereof, or for any offense which necessarily includes or is necessarily included in the offense charged in the former complaint or information.

Simply, all the above means that the Xander Ford cannot be charged for attempted rape because he has already been charged for physical and sexual violence under RA 9262. He cannot twice be put in jeopardy of punishment for the same offense. However, the discussion would take a different turn if he were charged separately for attempted rape and for sexual abuse for (two or more) different acts. (Danica R. Tuliao, contributor)