FACTS

Rose is 16-year-old girl who is the daughter of Norma and Raul. Rose is the babysitter of
Ray’s only son who is also merely a child. She was employed by Ray in order to help her parents
in her school expenses. Ray instructed Rose to only care and look after his son. Apparently,
Rose’s sister, Claire, was also working as a babysitter in a house nearby Ray’s. Norma and
Raul’s home are not that far from Ray’s. Rose needs were quite met under Ray’s shelter. She
was being paid her monthly salary amounting to four thousand pesos (P4, 000).

One night, at around 11:30 in the evening, Norma made a surprise visit to Rose. Ray was
not informed of this visit because it happened in the middle of the night and so he was startled.
An altercation arose between Norma and Ray. Not knowing that Norma is already suffering from
hypertension, Ray was surprised that Norma fell to the ground. She remained unconscious as her
blood pressure rose. Ray was not prepared for the unexpected turn of events. He did not know
what to do. He froze. As a result, he failed to assist Norma who just lay on there on the ground.
Rose cried for help. When help came, it was Raul who came to the rescue. Norma was then
confined to East Avenue Hospital.

Raul admitted that for some unexplained reason he has Ray’s postal ID. He suggested to Rose
that they should file a complaint against Ray for he did to Norma. It is worthy to note that it is
already public knowledge that Rose, Raul and Norma are predisposed into fabricating untruthful
statements.

Rose then filed a complaint under RA 7610 against Ray. There, she exclaimed that she
was being sexually abused by Ray whenever his wife is not around. Likewise, Raul also filed a
complaint under the Revised Penal Code for frustrated murder against Ray. He asserts that Ray,
with intention and motive to kill, allegedly and intentionally pushed Norma causing her to hit her
head and fall to the ground.

When Ray was served with summons, again, he was surprised. He was about to accept
his fate when Norma’s family contacted him and asked him to answer Norma’s medical
expenses. They wanted him to pay for everything in exchange for recanting the complaint. Raul
agreed to pay them twenty thousand pesos (P20, 000). At that same moment, Raul gave them
twelve thousand pesos (P12, 000). He said that he will pay them the remaining balance
afterwards.

Raul realized that his Postal ID was missing. He immediately went to the police station
and reported the blotter claiming that Rose and Norma stole his Postal ID and that they will not
return it to him unless he pays them the remaining eight thousand (P8,000). Indeed, this was
being urged by Norma’s family. As soon as Raul paid the remaining balance, he discovered that
only Raul’s complaint was recanted. Rose did not recant her complaint under 7610.
 ISSUE

Should the case be dismissed?

ANALYSIS

I believe that the case should be dismissed. Overwhelming evidence suggest that the acts
imputed to Ray were not in fact proved. The verity of the proof submitted by the complainants
lacks proper authentication. This is to be said for the Medical Certificate, Sinumpaang Salaysay,
and the Physician’s record of Norma’s condition. The truth behind these documents were not
properly submitted. Only the signatures of the persons who executed the same were present
without any authentication whatsoever. Add to this, an affidavit of desistance was also submitted
by both Rose and Raul. They even wrote letters begging for Ray to answer the medical fees of
Norma as well as their compassion towards him. Finally, the only witness is Rose. Her testimony
isn not enough for the trial to proceed. The incident report also shows that Raul intended to
pardon Ray so long as he pay the expenses.

This brings me to the next point. Aside from evidence, the conduct of the complainants were also
contrary to their allegations. From the facts, it is clear that they extorted Ray into paying for the
medical expenses of Norma. Ray was only able to give a little amount at that time, but they even
went so far as to steal Ray’s Postal ID just so Ray would pay them what he allegedly owes. If
anything, Raul and Rose merely wanted to extort money from Ray. Their affidavit of Desistance
is proof of all these.

On to the last point, the acts imputed to Ray were also questionable. There are two charges: first,
under Section 5(b) of RA 7610; and second, under the Revised Penal Code for Frustrated
Murder. As to the first charge, none of the facts show that Ray did indeed molest nor sexually
abuse Rose. In fact, Rose’s needs were even met by Ray. This first charge is absolutely foreign
from what actually transpired. The second charge is all the more dubitable because Ray did not
do anything to subject Norma to suffering. None of the facts show that he was the reason Norma
is in hospital. It was even proven that the cause of Norma’s affliction is high blood pressure from
hypertension and not from being pushed or bluntly struck in the head. Norma apparently
collapsed in the heat of the argument and such facts were also evidently admitted by Raul in his
Affidavit of Desistance. Raul does not have the motive to kill as he himself was even surprised
by the appearance of Norma in his own home. Any ordinary person would be surprised by an
unannounced visit from a stranger in the middle of the night.

Thus, from the foregoing, it goes to show that the case should not be pursued. The evidence of
the complainants is weak and there are plenty of loopholes in their arguments, not to mention
inconsistencies. Such arguments forwarded are untenable. Hence, Ray must be released, and the
case must be dismissed.

EVIDENCE PRESENTED

The Non-Existence of Sexual Abuse or Acts of Lasciviousness under RA 7610

In her complaint, Rose narrated how Ray sexually harassed her. She claims that Ray kept on
sexually harassing her and that at the time Norma visited her, her mother caught Ray brushing
his penis against Rose’s bottoms wearing only a pair of boxers.

Section 5(b) of RA7610 provides that the penalty of reclusion temporal in its medium period to
reclusion perpetua shall be imposed o 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.

Two things must be considered: Rose’s complaint-affidavit; and the findings of the medico
legal. According to the affidavit, Rose is 16 years old when the incident happened. She works as
a babysitter of Ray’s son. The law provides that should a child under 12 years of age be victims
of sexual abuse, the crime would be rape under paragraph 3 of Article 335 of the Revised Penal
Code. Here, Rose admitted that she is already 16 years old. This means that provisions of the
Revised Penal Code cannot apply. Thus, the law and the crime that must be applied should be
RA 7610 for lascivious conduct. In People v. Dela Cuesta Y Ramos, the Court discussed the
elements of acts of lasciviousness:

“The elements of the crime of acts of lasciviousness are: (1) that the offender
commits any act of lasciviousness or lewdness; (2) that it is done (a) by using force or
intimidation or (b) when the offended party is under 12 years of age; and (3) that the
offended party is another person of either sex.”

Here, the Sinumpaang Salaysay of Rose – which also served as her testimony as the sole witness
– (“ANNEX C”) gives us a narration of what transpired. She explicitly said that the only contact
was the alleged brushing of Ray’s penis against her back bottoms. Assuming that this event is
true, it was not sufficiently established that Ray has lewd designs. Amployo v. People discusses
the nature of lewd designs:
 “The term 'lewd is commonly defined as something indecent or obscene; it is
characterized by or intended to excite crude sexual desire. That an accused is
entertaining a lewd or unchaste design is necessarily a mental process the existence of
which can be inferred by overt acts carrying out such intention, i.e., by conduct that
can only be interpreted as lewd or lascivious. The presence or absence of lewd
designs is inferred from the nature of the acts themselves and the environmental
circumstances. What is or what is not lewd conduct, by its very nature, cannot be
pigeonholed into a precise definition. As early as U.S. v. Gomez we had already
lamented that '

It would be somewhat difficult to lay down any rule specifically establishing just
what conduct makes one amenable to the provisions of article 439 of the Penal Code.
What constitutes lewd or lascivious conduct must be determined from the
circumstances of each case. It may be quite easy to determine in a particular case that
certain acts are lewd and lascivious, and it may be extremely difficult in another case
to say just where the line of demarcation lies between such conduct and the amorous
advances of an ardent lover.”

The circumstance of this case does not establish with full clarity that it is overridden with lewd
design. In fact, it could even be argued that the brushing of the penis against Rose’s bottoms was
only by accident. ANNEX C can be used to support this since nothing in the document shows
that Ray did what he alleged did out of sexual gratification.

The second elements is also absent because Rose is already 16 years old and not 12. Thus, either
RA 7610 or the RPC cannot be the basis of Rose’s complaint because the elements of acts of
lasciviousness, in general, are absent.

The second evidence is the medico-legal finding.

“In the same way, a medico-legal's findings can raise serious doubt as to the credibility of
the alleged rape victim.

In a study conducted by Radostina D. Miterva, the most common sites for lacerations
were determined, "in rape victims with ring-shaped hymens, lacerations were most
commonly located as followed at dorsal recumbence of the patient: (1) one laceration at 6
o'clock position in 42.02% of cases; (2) two lacerations at 5 and 7 o'clock positions in
24.55% cases; (3) three lacerations at 3, 6 and 9 o'clock positions in 45.36% of cases; and
(4) four lacerations at 3, 5, 6 and 9 o'clock positions in 25% of cases.”1

1
People v. Juvy D. Amarela and Junard G. Racho, G.R. No. 225642-43, January 17, 2018.
The findings of the medico-legal shows that there was only a single laceration which is at 3
o’clock. Add to this, the laceration has already been deeply healed. So, it cannot be just to
find under this sole basis that there was sexual intercourse.

In the absence of lewd design, more so is there an absence of attempted rape. The findings of
the medico-legal and the complaint-affidavit of Rose concretely exhibit this.
The Absence of Frustrated Murder

There are two stages to the commission or generation of a crime: the mental stage and the
external stage. The mental stage involves mental acts.

The general rule is that mental acts such as thoughts, ideas, opinions and beliefs, are not
subject of penal legislations. One may express an idea which is contrary to law, morals or is
unconventional, but as long as he does not act on them or induce others to act on them, such
mental matters are outside the realm of penal law and the person may not be subjected to
criminal prosecution.

The second stage is the external stage. This is the stage where the accused performs
observable acts of crime. There are to phases of this stage: the preparatory phase and the
executions phase. During the preparatory phase, acts which may or may not lead to the
commission of a concrete crime occur. Being equivocal they are not as rule punishable
except when there is an express provision of law punishing specific preparatory acts. The
second phase constitutes the acts of execution which includes the attempted, frustrated, and
consummated stages.

Since the complaint of Raul only focuses on Frustrated Murder, I shall only focus on the
Frustrated stage.

In the frustrated stage, the accused has performed all the acts of execution necessary to
produce the felony, but the crime is not produced by reason of causes independent of the will
of the accused. Here, the accused has passed the subjective phase and is now in the objective
phase, or that portion in the commission of the crime where the accused has performed the
last act necessary to produce the intended crime and where he has no more control over the
results of his acts. The non-production of the crime should not be due to the acts of the
accused himself, for if it were he would be liable not for the frustrated stage of the intended
crime, but possibly for another offense.

There are three doctrines applicable to the case at bar with regard to the difference between
attempted and frustrated.
“The subjective phase doctrine” states that if at that point where the accused has still control over
the results of his actions but is stopped by reason outside of his own desistance and the
subjective phase has not been passed, the offense is attempted. The Mortal Wound or Life
Threatening Injury Doctrine provides that if a mortal wound or life threatening injury had been
inflicted, the offense is frustrated, else it is attempted. The last doctrine is the belief of the
accused should be considered in that if the accused believed he has done all which is necessary
to produce death, then it is frustrated.

Hence, in this case the applicable doctrine is the The Mortal Wound or Life-Threatening-Injury
Doctrine. In the complaint-affidavit of Raul, he claims that Ray pushed Norma. However, he
contradicted himself as soon as he filed his affidavit of Desistance saying that Norma’s blood
pressure merely spiked because of the heated argument between her and Ray. Thus, There can be
no attempted murder as Ray did not have the intention to kill Norma. Even assuming that he did
push Norma, it was not for the purpose of intentionally killing her. It would merely be for the
purpose of shoving her away. Therefore, Ray did not pass the subjective case in actually wanting
to kill Norma. Ray cannot be held liable for Frustrated Murder, especially since the there is also
a letter of receipt stating that he already paid Raul and that Raul received compensation
amounting to fifty thousand pesos (P50,000) from Ray. At best, Ray could only be held liable for
serious physical injuries and not frustrated murder.

Affidavit of Desistance

Affidavits of desistance, especially those extracted from poor, unlettered, young and gullible
witnesses long after the trial is over, are generally frowned upon. Testimony solemnly given
before a court of justice and subjected to the test of cross-examination cannot just be set aside,
and a new trial granted on the basis of perfunctory and pro forma affidavits that obviously were
not prepared directly by the witnesses themselves but by some legally trained individuals. The
credibility of trials and the pursuit of truth cannot be placed at the unilateral disposal of timorous
witnesses or made dependent on one-sided statements prepared by notaries.2

It should be pointed out, however, that the existence of the waiver must be positively
demonstrated. The standard of waiver requires that it "not only must be voluntary, but must be
knowing, intelligent, and done with sufficient awareness of the relevant circumstances and likely
consequences." Mere silence of the holder of the right should not be so construed as a waiver of
right, and the courts must indulge every reasonable presumption against waiver. The Solicitor
General has aptly discerned a few of the deviations from what otherwise should have been the
regular course of trial: (1) Petitioners have not been directed to present evidence to prove their
defenses nor have dates therefor been scheduled for the purpose; (2) the parties have not been
given the opportunity to present rebutting evidence nor have dates been set by respondent Judge

2
People v. Eduardo Garcia Y Dulay, G.R. No, 120387-88, March 31, 1998.
for the purpose; and (3) petitioners have not admitted the act charged in the Information so as to
justify any modification in the order of trial. There can be no short-cut to the legal process, and
there can be no excuse for not affording an accused his full day in court. Due process, rightly
occupying the first and foremost place of honor in our Bill of Rights, is an enshrined and
invaluable right that cannot be denied even to the most undeserving.3

In this case, the Affidavit of Desistance was executed only by Raul. Rose did not formally
execute an Affidavit of Desistance. However, she wrote a letter saying and promising that she
does not anymore want and raucous. She no longer wishes to cause more trouble and so she is
recanting the case. This was evidently signed by Rose. Whereas Raul, executed a formal
Affidavit of Desistance. Aside from this, ANNEX D shows in the incident report that he asks for
Ray to pay for the expenses. This was again reiterated by Raul in his Affidavit of Desistance.
Aside from that, he also executed a letter same as Rose’s saying that he no longer wants to cause
any trouble and so, he only wants Ray to pay for the medical expenses of Norma.

Evidence shows that Raul already received fifty thousand (P50, 000) from Ray. This means that
it has already been settled and there is no longer need for any litigation. All these facts taken
together provided that the need for litigation will only cause more trouble for all parties.

The evidence also suggest (specifically Rose and Raul’s handwritten and signed letters, and
Incident Report) that the Raul and Rose are not in fact beguiled by Ray into recanting the case. It
came from their own volition as they even indicated in said letters that they feel compassion and
pity for Ray. They even asked Ray for medical compensation for Norma. There is no showing
that the said documents were executed by them by force, fraud or undue influence or
intimidation.

The Blotter report of Ray signifies that the complainants even stole his Postal ID from him. If
anything, said complainants can even be charged with theft. Raul and Rose even extorted money
from Ray just so the latter will be able to redeem his ID back.

Thus, the Affidavit of Desistance must be upheld when all of these evidence are taken together
and the case should be dismissed.

3
Concepcion v. Savellano, G.R. No. 131652, March 9, 1998