G.R. No. 117682 - Dissenting Opinion




G.R. No. 117682, August 18, 1997, ♦ Decision, Bellosillo, [J] ♦ Dissenting Opinion, Davide, [J] ♦ Concurring Opinion, Francisco, [J] ♦ Dissenting Opinion, Regalado, [J] EN BANC [ G.R. No. 117682, August 18, 1997 ] PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. SILVINO (SILVERIO) SALARZA, JR. ACCUSED-APPELLANT. DISSENTING OPINION DAVIDE, JR., J.: After reading the well-crafted ponencia of our colleague, Mr. Justice Bellosillo, the appealed decision and the transcripts of the stenographic notes of the witnesses, I am more than convinced that accused-appellant should not be allowed to go scot-free. He should be convicted of rape. I beg then to dissent The core issues in this case are (a) whether accused Silverio Salarza, Jr. had carnal knowledge of complainant, Zareen Smith; and (b) whether he did so under circumstances which made him liable for rape. Zareen testified that accused had carnal knowledge of her while she was half-sleep and in the belief, in all good faith, that it was her boyfriend Enrico de Jesus (Ricky) who penetrated her. When she found out that it was the accused, she immediately pushed him aside and confronted the accused: “Why? Why did you do it to me? You have ruined everything. You know that Ricky and I are trying to have a baby of our own, what will happen now? I might get impregnated by what you did to me”. Then crying hysterically, she went to the bathroom to wash, with Nenita Maranon, caretaker of Mary’s Cottage, having heard her cries. The trial court gave full faith to her story, holding: The testimony of the complaining witness herein is very credible. It is natural, simple, straightforward, convincing and consisted with human nature and the run of things in this world. It has all the earmarks of truth and verity. (OR, 71). Its summary of Zareen’s testimony and explanation as to its credibility are as follows: The alleged victim and the vital witness presented by the prosecution to prove the heinous crime of Rape charged in this case, Miss Zareen Smith, who is a British stage and TV actress, positively identified and pointed to the accused Silverio Salarza, Jr. alias Jun as the person who “very quickly penetrated” her and had sexual intercourse with her without her consent and against her will which happened at about 2:00 o’clock in the early in the morning of May 1, 1994 in Cottage no. 1, at Sabang, Cabayugan, Purto Princesa City at the time she was half asleep and/or half awoke as she was drank after taking liquor and tired and was merely asleep for about two (2) hours earlier. Someone was removing her underwear and she was half asleep and the room was dark, and so, she assumed he was her boyfriend, Ricky de Jesus. Very quickly the accused Jun Salarza was on top of her and penetrated her or had sexual intercourse with her which happened fast when she was still half asleep. The accused made in-and-out movements on top of her after he entered his penis into her vagina and then told her: “Zareen, it’s not Ricky, it’s Jun, I love you”. These words were uttered by the accused as if he wanted to wake her up. Upon hearing these words, the victim Zareen pushed the accused off her immediately and ran to the bathroom a few meter away to washed herself. While washing at the bathroom, she was screaming at the accused in a loud voice, saying: “Why Jun did you do this to me, you ruined everything. You know Ricky and I wanted to have a baby, why did you do this to me, why? Why?” Then the accused Salarza came to the door of the bathroom and tried to pacify her. He wanted her to be calm because she was hysterical. The accused Jun Salarza then told her/ “It’s alright, I did not finished”. The victim Zareen was crying as she was washing herself and she told him that her boyfriend would kill her to which the accused answered that he knows. The rape victim reported this incident to the policemen at the Police Sub-Station in Sabang, Cabayugan and had herself medically examined by Dr. Jesselito De :Lara at the Sabang medical clinic with the help of Ricky de Jesus and his lola, Nenita Marañon. Then she formalized a complaint against the accused (Exhibits “B”, “B-1”, “B-2” and “B-3”) and executed a sworn statement in support thereof (Exhibits “D”, “D-1” and “D-3”). The alleged rape incident was duly reported to the nearest policemen and accordingly entered in the blotter of the police sub-station of Sabang, Cabayugan, this City. The British victim with the help of her friends in the locality, lost no time in taking appropriate action against the accused after her womanhood and honor were violated and transgressed which is but a natural reaction of any aggrieved party who has a legitimate gripe to address against a felon. It is notably significant that the complaining witness, Zareen Smith made loud cries, shouts and screams immediately after the accused sexually abused her. She angrily rebuked and scolded and sharply reprimanded the accused for his unwarranted act in entering his penis into her private organ. These are proofs enough that show the disapproves, rejects, disagrees, resents, abhors and did not like what the accused did to her. She looks decent enough to be sexually assaulted. (id., 69-70) On the other hand, the trial court found incredulous the defense of the accused that he had no carnal knowledge of Zareen because, despite Zareen’s flirtatious ways, he was not provoked; and despite her vigorous efforts to excite his penis, it did not “harden;” hence, he was unable to insert his penis into Zareen’s private parts. For one, accused’s own witness, PO2 Rosauro Rodillo, testified that accused admitted having had sex with Zareen. On cross-examination Rodillo declared: PROSECUTOR SENA: Q: Is it not a fact that when you confronted Jun Salarza that he raped the victim Zareen Smith he admitted he used Zareen only he justified it that Zareen Smith loves him also? A: yes, Sir. COURT: Q: What did the accused admit to you/ A: That he had sex with Zareen Smith because Zareen Smith loves him, Your Honor. (TSN, 8 June 1994, 22-23) For another, and more specifically as to accused’s claim that he was not sufficiently stimulated to achieve an erection, the trial court, which had the singular advantage of observing accused’s deportment and manner of testifying and taking full use of all aids to arrive at a more accurate assessment of his credibility, declared: The version of the accused on this score is unnatural, abnormal and contrary to human nature and experience. Only inanimate objects do not react. The accused looks normal and not otherwise as a human person. The court saw and observed him to be so. With his young age and status it is unlikely that his penis will not erect or harden if held and played by a woman younger than him but single like him, especially a foreigner. (id. 71) The trial court must have borne in mind the fact that on two previous occasions, accused had carnal knowledge of two foreigners of the opposite sex at the same Mary’s Cottage where Zarren claimed to have been raped by accused. On questions by the trial court, accused volunteered the information that he had sex with two foreigners, thus: COURT: xxx Q: As caretaker of the cottage, have you had even one sexual intercourse with tourists, not necessarily Zareen Smith? A: I have Your Honor. Q: How many foreigners? A: Two times, Your Honor. Q: Both foreigners? A: Yes, Sir. Q: White? A: Yes, Sir. Q: Americans? A: No, Sir. Q: What are they? A: They are from Netherlands, Your Honor. (TSN, 9 June 1994), 29-30). Notably, accused likewise failed to convincingly refute the testimony of Enrico that at one time the accused went inside a cottage where a female foreigner was sleeping; although no rape happened, the latter cried and reported the incident to her sister. (TSN, 2 June 1994, 31-32). The trial court correctly took note of these previous incidents, for under Section 34 of Rule 130 of the Rules of Court, they can be received “to prove a specific intent,…plan…scheme, habit…and the like.” With those incidents as premises, relevant as they are in legal contemplation, the conclusion is inevitable that the accused is a woman molester, with lechery partial to Caucasians. His description of himself then as a “fisherman and public relation officer and a tourist guide at the Mary’s Cottage,” (TSN,9 June 1994, 3) was nothing but a camouflage to conceal a satyr on the prowl. There is, as well, no doubt in my mind that accused intentionally proceeded to Mary’s Cottage to molest Zareen. If he merely wanted to go to the public restroom to wash off the sand on his body, he could have done so without passing by Mary’s Cottage, as the communal restroom. That was more then one hundred meters away from Mary’s Cottage. Moreover, it was not necessary for him to wash off the sand at the public restroom, he could have simply returned to the sea nearby. He went to Mary’s Cottage because he knew Zareen was there, Ricky having gone back to the beach without her. Zareen’s unhesitating admission of nightly sex with her boyfriend Ricky and sexual congress with her previous boyfriends should not have been taken against her, as the ponencia impliedly suggests; in fact, they were even earmarks of her truthfulness. She could have easily hidden those facts, there being no necessity for their revelation. It would then be irrelevant and thus impermissible to consider Zareen’s behavior and conclude that she was sexually indiscriminate as the defense would make her out to be. Clearly, a distinction may be drawn between one who is sexually active, but monogamous, on one hand, and who engages in indiscriminate promiscuity, on the other hand. But even assuming otherwise, it must not be forgotten that even prostitutes may be a victim of rape (people v. Rivera, 242 SCRA 26, 37 1995), and the victim’s unchaste character is neither a defense nor a mitigating circumstance in rape cases (RAMON C. AQUINO, The Revised Penal Code, vol. 3 1988, 405-406). With equal strength, it must not be overlooked that the character assassination employed by accused against Zareen is simply contrived and an afterthought. The accused forgot that his main thesis was that he was under the influence of liquor (Tanduay) or, as testified to by his witness PO2 Rodillo, the accused, was drunk, thus: COURT: Q: When you met Jun Salarza on the beach, Jun Salarza went on his way and proceeded to Mary’s Cottage? A: No, your Honor. Q: What happened? A: We detained him temporarily to rest and that because he was drunk, Your Honor. Q: In your station. A: Yes, Your Honor. Q: So, because he was drunk you detained him not because of the reported rape? A: For both reasons, Your Honor. (TSN, 8 June 1994, 21) If indeed the accused was drunk, it would have been impossible for him to observe vividly, must less accurately recall what transpired. Finally, Zareen’s conduct immediately after discovering that the man who penetrated her was not Ricky, but the accused, further strengthened the credibility of her story that she was penetrated by the accused. She shouted at and confronted the accused, ran to the bathroom to wash, cried and became hysterical. Her cries were in fact heard by Nenita Marañon, caretaker of the Mary’s Cottage, although Nenita was staying at a place which was 500 meters from Mary’s Cottage (TSN, 1 June 1994, 8-9); she reported the incident to the police authorities and submitted herself to an investigation. Then she voluntarily submitted herself to a physical and medical examination by a physician who examined her private parts. These speak eloquently of her sincerity in obtaining justice and seeking redress for a wrong, and of the absence of any ulterior motive on her part. Having thus shown that accused consummated his carnal knowledge of Zareen, the issue that remains to be resolved is whether that act constituted rape under the second circumstance of Article 335 of the Revised Penal Code. This Article pertinently provides as follows: ART. 335. When and how rape is committed.— Rape is committed by having carnal knowledge of a woman under any of the following circumstances: 1. By using force or intimidation; 2. When the woman is deprived of reason or otherwise unconscious; and 3. When the woman is under twelve years of age or is demented.ℒαwρhi৷ The trial court held as it did because Zareen was half-asleep and believed in good faith that the accused was her boyfriend Ricky. The trial court did not use the word unconscious; it only ruled that she was “half-asleep or subconscious (sic)” in one instance (Decision, p. 17 OR, 68) or “half-asleep and semi-conscious” in another instance (id., 21; id., 72). When a woman is “deprived of reason” or is “unconscious”, she is deemed to have "no will," as distinguished from the first circumstance where force or intimidation is used, in which case her will “is nullified or destroyed”, or that it was committed against her will (AQUINO, op. Cit., 393). Deprivation of reason need not be complete, as mere mental abnormality or deficiency is enough. (Id., 393-394) The crux of the matter then is the construction and interpretation of the word “unconscious.” I submit that since both “being deprived of reason” and “unconsciousness” are founded on absence of will to give consent intelligently and freely, the term “unconsciousness”, then, should not be tested by a mere physical standard, i.e., whether one is awake or asleep, conscious or alert. Rather, the inquiry should likewise determine whether the victim was fully informed of all considerations so as to make a free and informed decision regarding the grant of consent. It is only through this two-tiered test that a holistic appraisal of consent may be had. In our jurisprudence, carnal knowledge of a sleeping woman is rape (People v. Dayo, 51 Phil. 102 1927; People v. Corcino, 53 Phil. 234 1929; People v. Caballero, 61 Phil. 900 1935 and People v. Conde, 322 Phil. 757 1996), because in that state the woman is completely unconscious, both physically and mentally. Sleep, being the naturally or artificially induced state of suspension of sensory and motor activity (People v. Conde, supra, at 767), obviously deprives a woman of the ability to consent. However, to repeat, since it is “absence or lack of will” which is the primordial factor in the second circumstance of rape, then I submit that to construe the term “unconsciousness” exclusively in light of physical considerations would be unduly restrictive and fail to heed the gravamen of the offense, i.e., lack of consent. The ponencia makes much of Zareen’s testimony that she was aware that someone pulled off her underwear and spread her legs, then concludes that she must have been fully conscious and could not have been mistaken as to her partner’s identity. However, to take this at face value would not serve the ends of justice. Plainly, despite Zareen’s awareness of what was being done to her, the question of who was doing it to her was a totally different matter. Her accession to the what was premised on the belief, in good faith, that it was her boyfriend who lay with her in bed. Her failure to ascertain the identity of her partner was a mistake in good faith for which she should not be faulted; neither should it result in the acquittal of accused-appellant. In Zareen’s case, she was still “half-asleep” or drowsy when she was penetrated by the accused, having been awakened when he removed her underwear and mounted her, which she acceded to believing, in good faith, that it was her boyfriend Ricky, with whom she had nightly intercourse. When this belief turned out to be erroneous when accused announced, in the midst of the act, that he was not Ricky, but Jun (the accused), that was the only time that Zareen became fully aware of the totality of circumstances – critically, that of her partner’s identity – at which time she intelligently and freely exercised her will by immediately and unequivocally rejecting the accused. I submit that an inquiry into whether or not Zareen was half-asleep does not suffice as regards the determination of an intelligent grant of consent; hence it may be said that in a sense, the grant of consent was likewise not free. Clearly, it is only when a woman is fully informed that consent may be intelligently given – which was absent in the instant case. Further, given that Zareen was newly awakened and still drowsy; that it was 2:30 a..m.; that she was in her cottage; and that she had known only Ricky for the last three weeks, it was then not unreasonable for her to presume that the man who lay with her that night was no one else but Ricky. However, should there by any further debate on the issue of Zareen’s physical condition and consequences thereof, i.e., she was “awake” thus fully conscious, I assert that Zareen’s failure to detect that it was not Ricky who lay with her that night, was not only unreasonable, but perfectly understandable, in light of human nature and as recognized by the medical profession. “Consciousness” has been described by medical practitioners as denoting a state of awareness of one’s self and one’s environment;1 conversely, whether a person is disoriented is measured by one’s degree of alertness and awareness of the environment, considering the circumstances of time, place and person.2 What matters for purpose of this opinion is a that the medical profession recognizes a spectrum of impaired or depressed consciousness and orientation in persons who are nevertheless deemed “awake”. The terms used in this regard are obtundity, somnolence and stupor.3 While we wish not to dabble in areas where we admittedly do not possess the requisite expertise, at bottom, given the circumstances of time and place, Zareen was clearly, in layman’s language: disoriented, drowsy or confused,4 thus cannot be held culpable for her failure to immediately recognize that it was not Ricky, nor her failure to ascertain Jun’s identity, not even her assumption that it was Ricky who lay with her: This orientation as to person, place, and time depends on the ongoing sensory impressions. Have you ever awakened from a deep sleep to find that momentarily you did not know the day, the hour, or even where you were? Weren’t your mental functions impaired until you became oriented, until all the pieces of the puzzle suddenly fell into place? xxx 5 (underscoring supplied) Returning to the legal front, what is material here is that any semblance of consent given was clearly and painfully a mistake in good faith, as Zareen was not fully aware of the totality of the circumstances, thus rendering her, for all legal intents and purposes, unconscious and unable to give consent freely and intelligently. All told, this instance of reverse error in personae, clearly a material factor in the grant of consent by the victim, resulted in total absence which accused-appellant should be held criminally liable for as charged. On a final note, however, the penalty thereof should not be death, as erroneously ruled by the trial court, Under Article 335 of the Revised Penal Code, as amended by R.A. No. 7659, death is imposable only under any of the following circumstances, none of which obtain here: When the crime of rape is committed with the use of deadly weapon or by two or more persons, the penalty shall be reclusion perpetua to death.+3u.7!ydmb7 When by reason or on the occasion of the rape, the victim has become insane, the penalty shall be death. When the rape is attempted or frustrated and a homicide is committed by reason or on the occasion thereof, the penalty shall be reclusion perpetua to death. When by reason or on the occasion of the rape, a homicide is committed, the penalty shall be death. The death penalty shall also be imposed if the crime of rape is committed, with any of the following attendant circumstances: 1. When the victim is under eighteen (18) years old and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law-spouse of the parent of the victim. 2. When the victim is under the custody of the police or military authorities. 3. When the rape is committed in full view of the husband, parent, any of the children or other relatives within the third degree of consanguinity. 4. When the victim is a religious or a child below seven (7) years old. 5. When the offender knows that he is afflicted with Acquired Immune Deficiency Syndrome (AIDS) disease. 6. When committed by any member of the Armed Forces of the Philippines or the Philippine National Police or any law enforcement agency. 7. When by reason or on the occasion of the rape, the victim has suffered permanent physical mutilation. (As amended by Sec. 11, RA 7659).+3u.7!ydmb7 WHEREFORE, I vote to affirm the decision, subject to the modification of the penalty which should be reduced from death to reclusion perpetua. Footnotes 1 Raymond D. Adams, Coma and Related Disturbances of Consciousness, in KURT J. ISSELBACHER, RAYMOND D. ADAMS, EUGENE BRAUNWALD, ROBERT G. PETERSDORF AND JEAN D. WILSON (eds.), HARRISON’S PRINCIPLES OF INTERNAL MEDICINE, AT 114 (Chapter 20, 9d., 1980) (hereinafter Adams); and WILLIAM E. DEMEYER, TECHNIQUE OF THE NEUROLOGIC EXAMINATION, at 383, Chapter 11 (1994) (hereinafter DEMEYER). 2 See JOHN GILROY AND JOHN STIRLING MEYER, MEDICAL NEUROLOGY at 3 (3d., 1979) (hereinafter GILROY AND MEYER). 3 Obtundity is when the subject can be aroused by stimuli and will then respond to question or commands. The subject remains aroused as long as the stimuli are applied. During arousal, the subject responds but may be confused, in GILROY AND MEYER. id. Somnolence is when the person arouses spontaneously at times or after normal stimuli but drifts off inaappropriately. The sensorium functions adequately when aroused, in DEMEYER, at 419. Stupor is when one appears asleep but arouses to vigorous verbal stimuli. May awaken spontaneously for brief periods, but sensorium clouded. Shows some spontaneous movements and follows some brief commands, id. 4 Denoted as the inability to think customary speed and coherence, in Adams, at 115. 5 DEMEYER, at 383. The Lawphil Project - Arellano Law Foundation