People vs. Dalaguet

Where the prosecution fails to prove penile penetration, an essential element of rape through sexual intercourse, but the evidence establishes intentional lascivious acts against a child below 18 years of age committed through coercion or influence, the accused may be convicted of lascivious conduct under Section 5(b) of R.A. No. 7610 pursuant to the variance doctrine.

Accused-appellant Benny Dalaguet was charged with two counts of rape under Article 266-A of the Revised Penal Code for alleged incidents occurring in December 2009 and March 2010 against a 15-year-old neighbor, AAA. The prosecution's evidence showed that on both occasions, Dalaguet used force and intimidation to undress AAA and himself and engage in sexual acts, but AAA consistently stated that his penis did not penetrate her vagina. The Regional Trial Court convicted Dalaguet of two counts of rape. On appeal, the Court of Appeals modified the conviction to two counts of lascivious conduct under R.A. No. 7610, finding that while rape was not proven, the elements of lascivious conduct were established.

• Nature of the Case: Two separate Informations charged accused-appellant Benny Dalaguet with rape through sexual intercourse under Article 266-A of the Revised Penal Code for incidents in December 2009 and March 2010 against AAA, who was 15 years old at the time.
• First Incident (December 2009): AAA testified that while pasturing livestock, Dalaguet followed her, carried her to a hut, undressed her, and had "sexual intercourse" with her. She struggled and shouted but could not escape. She stated Dalaguet's penis did not penetrate her vagina but was "only outside."
• Second Incident (March 9, 2010): Dalaguet went to AAA's house, sent her younger sister away, then held AAA's hand, made her lie down, and undressed her while he also undressed. AAA's grandfather caught them in the act. AAA again stated Dalaguet's penis did not penetrate her vagina.
• Medical Evidence: A medical examination revealed healed lacerations on AAA's hymen, but no fresh lacerations were noted after the March 2010 incident.
• Defense: Dalaguet denied the December 2009 incident and claimed the March 2010 incident involved only an attempt to retrieve his cellphone from AAA. He alleged his arrest was illegal.
• RTC Ruling: Convicted Dalaguet of two counts of rape, giving credence to AAA's testimony and the medical findings.
• CA Ruling: Modified the conviction to two counts of lascivious conduct under R.A. No. 7610, finding that while rape (requiring penetration) was not proven, the acts constituted lascivious conduct against a child.

• Credibility of the Victim: Petitioner (People, through the Office of the Solicitor General) argued that AAA's testimony was credible, straightforward, and consistent on the essential fact of sexual molestation, despite the lack of penetration.
• Sufficiency of Intimidation: Petitioner maintained that the force and intimidation employed by Dalaguet, coupled with AAA's minority, satisfied the coercion element for lascivious conduct under R.A. No. 7610.
• Variance Doctrine: Petitioner contended that the conviction for lascivious conduct was proper as it is necessarily included in the crime of rape charged in the Informations.

• Lack of Penetration: Respondent (accused-appellant) argued that AAA's consistent testimony that there was no penetration negated the essential element of carnal knowledge for rape.
• Inconsistencies in Testimony: Respondent pointed to alleged discrepancies between AAA's testimony (no penetration) and the medical certificate (healed lacerations) to discredit her credibility.
• Lack of Resistance: Respondent maintained that AAA's failure to vigorously resist or immediately report the incident indicated consent, negating the force or intimidation element.

• Variance and Sufficiency of Evidence: Whether the accused-appellant may be convicted of lascivious conduct under Section 5(b) of R.A. No. 7610 when the Information charged rape, but the evidence failed to prove penetration.
• Elements of Lascivious Conduct: Whether the prosecution proved beyond reasonable doubt all the elements of lascivious conduct under Section 5(b) of R.A. No. 7610.

• Variance and Sufficiency of Evidence: The conviction for lascivious conduct is proper. The variance doctrine under Sections 4 and 5, Rule 120 of the Rules of Court allows conviction for an offense proved which is necessarily included in the offense charged. Rape through sexual intercourse necessarily includes lascivious conduct. Since the prosecution failed to prove penetration (an essential element of rape) but proved lascivious acts, conviction for the lesser offense is warranted.
• Elements of Lascivious Conduct: All elements were proven beyond reasonable doubt. (1) Lascivious conduct was established by AAA's testimony that Dalaguet undressed her and himself and performed push-and-pull movements. (2) The acts were performed with a child subjected to sexual abuse, as AAA was 15 years old and was subjected to coercion and influence—Dalaguet used force, intimidation, and psychological threats. (3) AAA's minority was proven by her birth certificate.

• Variance Doctrine — Under Sections 4 and 5, Rule 120 of the Rules of Court, when there is a variance between the offense charged and the offense proved, and the offense charged necessarily includes the offense proved, the accused shall be convicted of the lesser offense proved. Here, rape necessarily includes lascivious conduct.
• Elements of Lascivious Conduct under Section 5(b) of R.A. No. 7610 — The elements are: (1) The accused commits the act of sexual intercourse or lascivious conduct; (2) The act is performed with a child exploited in prostitution or subjected to sexual abuse; (3) The child is below 18 years of age. A child is deemed subjected to sexual abuse when the act is performed under the coercion or influence of any adult.

• "Carnal knowledge has been defined as the act of a man having sexual bodily connections with a woman; sexual intercourse. Carnal knowledge requires the penetration of the female sexual organ by the male's sexual organ." — This underscores the high threshold for proving consummated rape.
• "The failure to shout or offer tenacious resistance does not make voluntary the rape survivor's submission to the perpetrator's lust." — This reinforces that physical resistance is not an element and victim behavior varies.
• "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." — This clarifies the distinction between attempted rape and lascivious conduct.

• People v. Campuhan, 385 Phil. 912 (2000) — Controlling precedent defining the "touching" required for consummated rape as penetration of the labia or lips of the female organ, not merely stroking the external surface.
• People v. Dominguez, Jr., 650 Phil. 492 (2010) — Followed for its ruling that where evidence only shows undressing without proof of penetration, the proper conviction is for acts of lasciviousness, not attempted rape.
• CICL XXX v. People, 819 Phil. 467 (2017) — Applied for its holding that acts of kissing, mashing breasts, and removing garments constitute lascivious conduct under R.A. No. 7610 when the victim is 15 years old.
• Quimvel v. People, 808 Phil. 889 (2017) — Relied upon for the definition of "coercion" and "influence" in the context of lascivious conduct under R.A. No. 7610.

• Article 266-A, Revised Penal Code — Defines rape through sexual intercourse, requiring carnal knowledge (penetration) as an essential element.
• Section 5(b), Republic Act No. 7610 (Special Protection of Children Against Abuse, Exploitation and Discrimination Act) — Penalizes those who commit lascivious conduct with a child exploited in prostitution or subjected to other sexual abuse.
• Sections 4 and 5, Rule 120, Rules of Court — Provide the variance doctrine, allowing conviction for an offense proved which is necessarily included in the offense charged.
• Article 22, Revised Penal Code — Provides for the retroactive effect of penal laws if favorable to the accused, except for habitual criminals.

• Alfredo Benjamin S. Caguioa, J. (Ponente)
• Marvic M.V.F. Leonen, SAJ. (Chairperson)
• Henri Jean Paul B. Inting
• Rodil V. Zalameda
• Samuel H. Gaerlan