THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
HERACLEO ABELLO Y FORTADA, Accused-Appellant.
G.R. No. 151952 | March 25, 2009
Ponente: Brion, J.

Art. 15 Par 2 Relationship as an Alternative Circumstance

Article 15 Par. 2 – The alternative circumstance of relationship shall be taken into

consideration when the offended party is the spouse, ascendant, descendant,
legitimate, natural, or adopted brother or sister, or relative by affinity in the same
degrees of the offender.

FACTS:

This is an appeal of accused Heracleo Abello on the decision of the RTC and CA
convicting him of one (1) count of rape by sexual assault under Article 266-A of the
RPC, as amended; and two (2) counts of violation of sexual abuse under Republic Act
(R.A.) No. 7610 (Child Abuse Law).

The victim on these cases is the 21-year old step-daughter of the accused. Due
to polio, the victim was not able to study on account of her difficulty in walking.

On June 30, 1998 at around 4:00 o’clock in the early morning, the victim was
sleeping in their house in Kalyeng Impiyerno, Navotas, Metro Manila along with her
sister-in-law and nephew. She was suddenly awakened when Abello mashed her
breast.

On July 2, 1999 at around 3:00 a.m. Abello again mashed the breast of the victim
while she was sleeping.

In these two occasions, the victim was able to recognize Abello because of the
light coming from outside which illuminated the house.

Then on July 8, 1998, at around 2:00 a.m., Abello this time placed his soft penis
inside the mouth of the victim. The latter got awaken when Abello accidentally kneeled
on her right hand. The victim exclaimed "Aray" forcing the accused to hurriedly enter his
room. He was nevertheless seen by the victim. The victim on the same date reported
the incident to her sister-in-law and mother.

Abello denied these allegations.

ISSUES:

1. Whether or not accused is guilty of the crimes charged against him.

2. Whether or not the alternative circumstance of relationship can be appreciated.

RULING:

1. The Supreme Court affirmed Abello’s conviction on all three charges.

On the first charge, all elements of rape by sexual assault are present, which are as
follows:

1) That the offender commits an act of sexual assault;

(2) That the act of sexual assault is committed by any of the following means:
(a) By inserting his penis into another person’s mouth or anal orifice; or
(3) That the act of sexual assault is accomplished under any of the following
circumstances:
(a) By using force or intimidation;
(b) When a woman is deprived of reason or otherwise unconscious;

The victim’s testimony on the commission of the sexual assault through the insertion of
Abello’s male organ into her mouth while she was sleeping and her consistent
identification of Abello as the perpetrator of the sexual assault satisfy these three
elements.

On the second and third charges, the Supreme Court held that Abello cannot be held
liable under R.A. No. 7610. Instead, he is found liable for acts of lasciviousness under
Article 336 of the RPC, as amended.

He cannot be held liable under R.A. No. 760 since not all elements for this provision are
met. First, the prosecution failed to prove that there is force or coercion attending
Abello’s sexual abuse on the victim. Also, the victim cannot be considered as a child
since she is not under 18 years old and was not found to be an adult incapable of taking
care of herself fully because of a physical or mental disability or condition.

He can nevertheless be liable for acts of lasciviousness since all requisites were met.

1. That the offender commits any act of lasciviousness;

2. That the offended party is another person of either sex; and
3. That it is done under any of the following circumstances:
a. By using force or intimidation; or
b. When the offended party is deprived of reason or otherwise
unconscious; or
c. When the offended party is under 12 years of age or is demented.
2. The alternative circumstance of relationship cannot be appreciated in this case.

It was not duly proven due to the prosecution’s failure to present the marriage
contract between Abello and the victim’s mother. Although Abello admitted his marriage
to the victim’s mother, this admission is inconclusive evidence only, since the marriage
contract still remains the best evidence to prove the fact of marriage.

This stricter requirement is only proper as relationship is an aggravating

circumstance that increases the imposable penalty, and hence must be proven by
competent evidence.

WHEREFORE, the Supreme Court affirmed with modifications the decision of the CA,
finding accused GUILTY of rape by sexual assault and of acts of lasciviousness.