People vs. XXX

When the information charges rape through sexual intercourse but the evidence proves insertion of a finger rather than penile penetration, the accused may be convicted of lascivious conduct under Section 5(b) of RA 7610 as an offense included in the offense charged, pursuant to the rule on variance under Sections 4 and 5 of Rule 120 of the Rules of Court.

Accused-appellant XXX is the cousin of the father of private complainant AAA. In May 2009, AAA and her younger sister BBB went to live with accused-appellant and his family, pursuant to his promise to send the children to school. AAA was thirteen years old at the time, having been born on 29 December 1993. The case involves the prosecution of sexual abuse committed against a minor under the Revised Penal Code provisions on rape, as amended by RA 8353, and Section 5(b) of RA 7610, the Special Protection of Children Against Abuse, Exploitation and Discrimination Act.

In May 2009, AAA, then a thirteen-year-old minor, and her younger sister BBB went to live with accused-appellant XXX, their father's cousin, who had promised to send the children to school. Accused-appellant treated the siblings kindly at first, but merely a week after their arrival, he began to sexually abuse AAA.

The first incident occurred on the first Saturday of June 2009. Accused-appellant called AAA to his room to pluck his gray hair strands. Once inside, he locked the door, made AAA lie down, and ordered her to remove her shirt and shorts. She fearfully obeyed, not crying for help because accused-appellant angrily threatened to kill her and her family. Feeling powerless, she covered her face with a pillow as accused-appellant fondled and sucked her breasts and licked her private part. Still unsatisfied, accused-appellant inserted his finger into AAA's vagina but withdrew it after AAA pleaded that it was painful. Thereafter, AAA dressed and left. The following Saturday, accused-appellant called AAA again, this time for a massage. Upon her entry, he locked the door and kissed her lips. When she protested that he had said she would just massage him, he got angry but did not persist, and allowed her to massage him. She left once he fell asleep. AAA lost count of the instances accused-appellant sexually molested her but recalled that it happened almost every Saturday.

On 2 January 2010, accused-appellant summoned AAA into his store. She fearfully complied. There, accused-appellant kissed her lips, breasts, and vagina, then inserted his penis into her vagina. AAA felt both pain and anger. Moments later, accused-appellant's eighteen-year-old daughter CCC arrived and saw them both naked. When CCC asked her father about what happened, he got a knife and warned her against reporting the incident to anyone. AAA went home and kept the incidents to herself. CCC, however, mentioned the incident to DDD, another cousin of AAA, which information ultimately reached FFF, AAA's mother. FFF immediately fetched her daughters from accused-appellant's house, reported the incident to the barangay officials and police authorities, and had AAA undergo a medical examination. Dr. Angelina Celzo found positive healed lacerations at the 1, 3, 5, and 7 o'clock positions on AAA's hymen and noted that her vagina admitted one finger-breadth with ease, opining that the lacerations were possibly caused by the insertion of a hard, blunt object.

Accused-appellant denied the charges. He admitted that AAA and BBB stayed with him and his family but claimed that AAA was no longer staying with them in June 2009. He also claimed that the alleged rape on 2 January 2010 could not be true because he had a drinking session with friends until 3:00 A.M. that day, and that later that morning AAA woke him up, prepared him coffee, cuddled with him, and sat on his lap when CCC arrived and saw them in that position. The RTC found accused-appellant guilty beyond reasonable doubt of two counts of rape, a finding affirmed by the CA with modifications to the damages awarded.

• Incredible and Inconsistent Testimony: Accused-appellant argued that the RTC and CA erred in convicting him despite the highly incredible and inconsistent testimony of the private complainant, pointing to discrepancies between AAA's sinumpaang salaysay and her testimony in court, as well as internal inconsistencies in her testimony regarding the details of her residence at the time of the first incident, the site of the second incident, and the exact number of times she was allegedly molested.
• Disregard of the Defense: Accused-appellant maintained that the lower courts erred in disregarding his defense, asserting that the alleged rape on 2 January 2010 could not have occurred because he had been drinking with friends until 3:00 A.M. and that AAA had cuddled with him voluntarily.
• Absurdity of AAA's Behavior: Accused-appellant argued that it was absurd for AAA to claim molestation when she failed to escape from his house after the first incident and did not immediately inform her mother.

• Proper Classification of the Offense in Criminal Case No. P-4356: Whether the accused-appellant may be convicted of rape through sexual intercourse when the evidence shows insertion of his finger, not his penis, into the victim's vagina.
• Sufficiency of Evidence for Rape in Criminal Case No. P-4357: Whether the prosecution adequately proved accused-appellant's guilt beyond reasonable doubt for rape through sexual intercourse committed on 2 January 2010.
• Credibility of the Victim's Testimony: Whether the alleged inconsistencies and discrepancies in AAA's sinumpaang salaysay and court testimony impair her credibility and negate the commission of the offenses charged.
• Failure to Resist or Report: Whether AAA's failure to escape or immediately report the incidents to the authorities undermines the truthfulness of her testimony and the prosecution's case.

• Proper Classification of the Offense in Criminal Case No. P-4356: No. Rape through sexual intercourse requires penile penetration of the vagina; since the evidence showed finger insertion, the accused could not be convicted of that crime but was instead convicted of lascivious conduct under Section 5(b) of RA 7610 as an included offense under the variance rule.
• Sufficiency of Evidence for Rape in Criminal Case No. P-4357: Yes. The prosecution adequately established carnal knowledge accomplished through force, threat, and intimidation, as corroborated by the medical findings of healed hymenal lacerations.
• Credibility of the Victim's Testimony: No, the inconsistencies do not impair credibility. The discrepancies refer to trivial matters that neither negate nor disprove the commission of the offenses and, if anything, demonstrate that AAA was not coached or rehearsed.
• Failure to Resist or Report: No. The failure of a thirteen-year-old minor to flee or immediately report the incidents does not impair her credibility, given the moral ascendancy and influence exerted by accused-appellant and his threats of bodily harm against her and her family.

• Proper Classification of the Offense in Criminal Case No. P-4356: Rape via sexual intercourse is committed only by a man through penile penetration of the woman victim's vagina, while sexual assault involves the insertion of any instrument or object into the genital or anal orifice. Because the evidence showed that accused-appellant inserted his finger—not his penis—into AAA's vagina, the act constituted sexual assault, not rape through sexual intercourse. However, sexual assault is not included in rape via sexual intercourse due to the essential difference in the means of commission. Nevertheless, under the rule on variance in Sections 4 and 5 of Rule 120 of the Rules of Court, when the offense charged includes the offense proved, the accused may be convicted of the offense proved. The Information alleged the elements of rape through sexual intercourse, and the prosecution proved lascivious acts—kissing of the minor's lips, mashing of her breasts, and insertion of a finger into her vagina—which constitute lascivious conduct under Section 2(h) of the Rules and Regulations on the Reporting and Investigation of Child Abuse Cases, in relation to Section 5(b) of RA 7610. Since AAA was thirteen years old at the time, the proper designation is lascivious conduct under Section 5(b) of RA 7610, with the penalty of reclusion temporal in its medium period to reclusion perpetua.

• Sufficiency of Evidence for Rape in Criminal Case No. P-4357: To obtain a conviction for rape under Article 266-A(1) of the RPC, as amended by RA 8353, the prosecution must establish that the offender had carnal knowledge of a woman and accomplished the act through force, threat, or intimidation. AAA's testimony, corroborated by Dr. Celzo's medical findings of healed hymenal lacerations, clearly established that accused-appellant had sexual intercourse with AAA without her consent. Having instilled fear of physical harm against AAA and her family, accused-appellant successfully cowed her into submission. The gravamen of rape is sexual intercourse with a woman against her will, and this element was satisfied.

• Credibility of the Victim's Testimony: The claimed discrepancies between AAA's sinumpaang salaysay and her court testimony, and within her testimony itself, referred to trivial matters—the details of her residence, the site of the second incident, and the exact number of times she was molested—which neither negated nor disproved the commission of the offenses. The distance between accused-appellant's house and AAA's house (70 to 100 meters), and between his store and AAA's house (15 meters), did not render it impossible for him to commit the offenses. Discrepancies between an affidavit and testimony do not necessarily impair credibility, as affidavits are taken ex parte and are often incomplete; in case of inconsistency, the testimony prevails. The minor inconsistencies in AAA's testimony actually served as proof that she was not coached or rehearsed.

• Failure to Resist or Report: The failure of a rape victim to shout for help or escape during the incident does not impair credibility and is not fatal to the prosecution's case. No standard form of behavior can be anticipated of a rape victim, particularly a child who cannot be expected to fully comprehend the ways of an adult. AAA was only thirteen years old at the time, and her failure to immediately flee cannot taint her credibility. The delay in reporting was neither unreasonable nor unexplained: AAA did not report the incidents because of the moral ascendancy and influence exerted by accused-appellant, upon whom she relied for educational support, and because of his threats of bodily harm against her and her family.

• Rule on Variance (Sections 4 and 5, Rule 120, Rules of Court) — When there is a variance between the offense charged in the information and that proved, and the offense as charged includes or is necessarily included in the offense proved, the accused shall be convicted of the offense proved which is included in the offense charged, or of the offense charged which is included in the offense proved. An offense charged necessarily includes the offense proved when some of the essential elements of the former, as alleged in the information, constitute the latter. The Court applied this rule to convict accused-appellant of lascivious conduct under Section 5(b) of RA 7610 in Criminal Case No. P-4356, even though the information charged rape through sexual intercourse, because the elements of rape as charged included the lascivious conduct proved.

• Distinction Between Rape Through Sexual Intercourse and Sexual Assault — Rape through sexual intercourse is committed only by a man through penile penetration of the woman victim's vagina. Sexual assault may be committed by either a man or a woman against a man or a woman through the insertion of the penis into another person's mouth or anal orifice, or the insertion of any instrument or object into the genital or anal orifice of another person. Sexual assault is not included in rape via sexual intercourse because of the essential difference in the means of commission (penile penetration vs. object penetration).

• Credibility of Young Rape Victims — When a woman, especially a minor, alleges rape, she says in effect all that is necessary to mean that she has been raped. Youth and immaturity are generally badges of truth and sincerity. A young girl's revelation of rape, coupled with voluntary submission to medical examination and willingness to undergo public trial, cannot be easily dismissed as mere fabrication.

• Effect of Inconsistencies Between Affidavit and Testimony — Discrepancies or inconsistencies between a witness's affidavit and testimony do not necessarily impair the latter's credibility, as affidavits are taken ex parte and are often incomplete or inaccurate for lack of searching inquiries by the investigating officer. In case of inconsistency, the testimony in court prevails.

• Failure to Resist or Delay in Reporting — The failure of a victim to shout for help or escape does not impair credibility. No standard form of behavior can be anticipated of a rape victim, particularly a child. A rape charge becomes doubtful only when the delay in revealing its commission is unreasonable and unexplained. Delay in reporting is excused when attributable to the moral ascendancy and influence of the accused and threats of bodily harm.

• Tulagan Guidelines on Designating the Proper Offense Under RA 7610 — (1) The age of the victim is considered in designating the offense and determining the penalty. (2) If the victim is under twelve, the crime is designated "Acts of Lasciviousness under Article 336 of the RPC in relation to Section 5(b) of RA 7610," with the penalty of reclusion temporal in its medium period. (3) If the victim is twelve or more but below eighteen, or is eighteen or older but unable to fully care for herself, the crime is designated "Lascivious Conduct under Section 5(b) of RA 7610," with the penalty of reclusion temporal in its medium period to reclusion perpetua.

• "Rape via sexual intercourse is committed only by a man through the penile penetration of the woman victim's vagina. On the other hand, sexual assault may be committed by either a man or a woman against a man or a woman through the insertion of the penis into another person's mouth or anal orifice, or the insertion of any instrument or object into the genital or anal orifice of another person." — This passage defines the essential distinction between rape through sexual intercourse and sexual assault, which was the basis for reclassifying the conviction in Criminal Case No. P-4356.

• "The due recognition of the constitutional right of an accused to be informed of the nature and cause of the accusation through the criminal complaint or information is decisive of whether his or her prosecution for a crime stands or not. The right is not transgressed if the information sufficiently alleges facts and omissions constituting an offense that includes the offense established to have been committed by the accused, as in this case." — This articulates the constitutional basis for the variance rule and explains why convicting the accused of lascivious conduct under RA 7610 did not violate his right to be informed of the accusation.

• "When a woman, especially a minor, alleges rape, she says in effect all that is necessary to mean that she has been raped. Further, youth and immaturity are generally badges of truth and sincerity." — This is the canonical formulation of the doctrine on the credibility of young rape victims, frequently cited in Philippine jurisprudence.

• "No standard form of behavior can be anticipated of a rape victim following her defilement, particularly a child who could not be expected to fully comprehend the ways of an adult. People react differently to emotional stress, and rape victims are no different from them." — This passage establishes the principle that failure to resist or flee does not impair a rape victim's credibility, particularly when the victim is a minor.

• People vs. Caoili, 815 Phil. 839-954 (2017); G.R. Nos. 196342 and 196848, 08 August 2017 — Controlling precedent followed. The Court held that an accused may be held guilty of lascivious conduct under Section 5(b) of RA 7610, the offense proved, because it is included in rape, the offense charged. The guidelines set forth in Caoili for designating the proper offense and determining the penalty under RA 7610 were reiterated and applied.

• People vs. Tulagan, G.R. No. 227363, 12 March 2019 — Followed. This case reconciled the provisions on acts of lasciviousness, rape via carnal knowledge, and sexual assault in the RPC, as amended by RA 8353, vis-à-vis RA 7610, and reiterated the Caoili guidelines for designating the proper offense and penalty when lascivious conduct is committed under Section 5(b) of RA 7610.

• People vs. Pareja, 724 Phil. 759-788 (2014); G.R. No. 202122, 15 January 2014 — Followed. Cited for the proposition that sexual assault is not included in rape via sexual intercourse given the essential difference in the means of commission.

• People vs. Manansala, 708 Phil. 66-80 (2013); G.R. No. 175939, 03 April 2013 — Followed. Cited for the principle that the constitutional right of an accused to be informed of the nature and cause of the accusation is not transgressed if the information sufficiently alleges facts constituting an offense that includes the offense established to have been committed.

• People vs. Descartin, Jr., 810 Phil. 881-895 (2017); G.R. No. 215195, 07 June 2017 — Followed. Cited for the doctrine that when a woman, especially a minor, alleges rape, she says all that is necessary to show she has been raped, and that youth and immaturity are badges of truth and sincerity.

• People vs. Nuyte, G.R. No. 219111, 12 March 2018 — Followed. Cited for the principle that the failure of victims to shout for help or escape does not impair their credibility, and that no standard form of behavior can be anticipated of a rape victim.

• People vs. Padlan, 817 Phil. 1008-1029 (2017); G.R. No. 214880, 06 September 2017 — Followed. Cited for the principle that when a crime is defined in a special law but the penalty is taken from the technical nomenclature in the RPC, the legal effects under the system of penalties native to the Code apply, relevant to applying the Indeterminate Sentence Law to lascivious conduct under RA 7610.

• Article 266-A, Revised Penal Code, as amended by RA 8353 — Defines rape through sexual intercourse, requiring carnal knowledge of a woman accomplished through force, threat, or intimidation. Applied to sustain the conviction in Criminal Case No. P-4357, where the evidence established penile penetration accomplished through threats to kill AAA and her family.

• Article 266-B, Revised Penal Code, as amended by RA 8353 — Prescribes the penalty for rape. Applied to impose reclusion perpetua for the rape conviction in Criminal Case No. P-4357.

• Section 5(b), Republic Act No. 7610 — Penalizes lascivious conduct committed against a child. Applied to convict accused-appellant in Criminal Case No. P-4356, where the evidence showed insertion of a finger into the victim's vagina, constituting lascivious conduct rather than rape through sexual intercourse.

• Sections 4 and 5, Rule 120, Rules of Court — The rule on variance between allegation and proof, allowing conviction of an offense proved that is included in the offense charged. Applied to justify convicting accused-appellant of lascivious conduct under RA 7610 despite the information charging rape through sexual intercourse.

• Indeterminate Sentence Law — Applied to determine the indeterminate penalty for lascivious conduct under Section 5(b) of RA 7610, a special law whose penalty is drawn from RPC nomenclature, resulting in a penalty of ten years and one day of prision mayor as minimum to fourteen years, eight months and one day of reclusion temporal as maximum.

Justices Leonen (Chairperson), Gesmundo, Carandang, and Gaerlan concurred.