Talisay vs. People of the Philippines

Placing the penis on top of, but not penetrating, the cleft of the labia majora, without proof of intent to lie with the victim, does not constitute consummated or attempted rape; it constitutes lascivious conduct under Section 5(b) of R.A. No. 7610 when committed against a child below 18 through coercion. An express and clear admission of the victim's minority during pre-trial is conclusive proof of age.

Pedro "Pepe" Talisay and AAA were residents of the same locality in Leyte; petitioner and his wife operated a sari-sari store, while AAA was a 15-year-old child. The case is governed by R.A. No. 7610, which penalizes sexual abuse and lascivious conduct against children, and by the Implementing Rules and Regulations definition of lascivious conduct in Section 2(h). The appeal also required the Court to delineate the boundaries between consummated rape, attempted rape, acts of lasciviousness, and lascivious conduct under R.A. No. 7610, and to apply the rules on proof of age and the Indeterminate Sentence Law.

Pedro "Pepe" Talisay was charged in an Information with violation of Section 5(b) of R.A. No. 7610 for acts committed on or about September 29, 2016, in Leyte, against AAA, then 15 years old. The Information alleged that, with deliberate intent and lewd design, taking advantage of AAA's minority and by means of force, threat, and intimidation, petitioner kissed AAA on her cheeks, removed her pants and panty, and satisfied his sexual desire by placing his penis outside her vagina, acts constitutive of sexual abuse that debased, degraded, or demeaned her intrinsic worth and dignity.

According to the prosecution, at around 1:00 o'clock in the afternoon on September 29, 2016, AAA was fetching water from the faucet of "Kapitana" in Leyte when petitioner followed and dragged her to a pigpen. There, petitioner first kissed both her cheeks, causing her to tremble in fear; he then removed all his clothes, exposing his penis and whole body, and removed AAA's clothes, short pants, and panty. While both were standing and naked, petitioner, without AAA's consent and against her will, placed his penis on top/outside her vagina and made push-and-pull movements. AAA resisted, pushed, and shouted for him to stop because her body was shaking due to epilepsy, but petitioner ignored her. Afterwards, petitioner wiped AAA's face and gave her two ₱100 bills, instructing her not to tell her mother; despite the instruction, AAA told her mother what happened.

The defense presented petitioner, his wife, and their son. Petitioner testified that on September 22, 2016, while he and his wife were attending their sari-sari store and their son was watching television, AAA and her younger sister asked for water; after AAA drank, she collapsed due to epilepsy. When she regained consciousness, she asked for food, and because the family had no more food and out of pity, petitioner's wife gave him ₱200 to give to AAA and her sister. On September 28, 2016, petitioner, his wife, and AAA's parents met at the Office of the Punong Barangay because BBB, AAA's mother, had filed a complaint based on her belief that petitioner had done something wrong to AAA, which was why he gave ₱200. During the confrontation, AAA was asked by Barangay Chairman Rubilita Asuero whether petitioner touched and sexually abused her, and AAA answered in the negative. Petitioner explained that they gave money out of pity, and Barangay Chairman Asuero had petitioner sign a "Kasarabutan" committing that he would no longer give money to any child; BBB also signed the document. Petitioner further claimed that on September 29, 2016, at around 1:00 o'clock in the afternoon, he, his wife, and their son were just at home; he and his wife attended their store the whole day from morning until afternoon while their son watched television the whole day, and he never left their house that day or evening, so the allegations of sexual abuse were not true.

AAA's testimony was given in a candid, straightforward, firm, and unwavering manner according to the RTC. The RTC gave more credence to AAA's testimony than petitioner's defenses of denial and alibi, and found that the two-day delay in reporting the incident to her mother and the alleged inconsistencies in AAA's testimony were insufficient to deflate her credibility. The CA likewise found AAA credible because she steadily recounted petitioner's immodest acts, and treated the alleged inconsistencies as to who were present at the place of the incident and the exact date when the money was given as trivial and not affecting the central fact of the crime. The CA found AAA's testimony consistent with the substantial aspects of the crime, namely, the identification of petitioner as the perpetrator and the manner by which the crime was committed.

• Credibility of AAA: Petitioner argued that the testimony of AAA was incredible and tainted with inconsistencies.
• Force or Coercion: Petitioner claimed that the prosecution was not able to prove all the elements of lascivious conduct because the element of force or coercion was lacking, and that AAA did not manifest any resistance at the time of the incident.
• Proof of Age: Petitioner asserted that even if the defense admitted the age of the victim at the time of the commission of the crime, the presentation of the birth certificate is still the best evidence to prove AAA's age; thus, AAA's age was not duly proven by competent evidence due to the non-presentation of her birth certificate.

• Reiterated Arguments: The People of the Philippines, through the Office of the Solicitor General, maintained that the issues raised by petitioner are mere reiterations of his previous arguments.
• Credibility and Inconsistencies: The OSG underscored that the minor inconsistencies in AAA's testimony were due to the misleading questions propounded to her by the defense counsel, and emphasized that AAA was empathic and consistent in her assertion regarding petitioner's molestation of her in the pigpen where she even suffered an epileptic episode.
• Question of Fact: The OSG highlighted that questions of fact cannot be raised by petitioner in a petition for review on certiorari under Rule 45 of the Rules of Court.

• Review of Factual Findings: Whether the CA erred in affirming the RTC's factual findings and credibility assessment of AAA.
• Nature of Offense: Whether petitioner's act of placing his penis on top of AAA's vagina, without penetration, constitutes consummated rape, attempted rape, acts of lasciviousness, or lascivious conduct under Section 5(b) of R.A. No. 7610.
• Force or Coercion: Whether the element of force, threat, or intimidation/coercion was established.
• Proof of Minority: Whether AAA's age was sufficiently proven despite the non-presentation of her birth certificate.
• Penalty and Damages: Whether the penalty and damages imposed were proper.

• Review of Factual Findings: No. The issue is a question of fact, and a Rule 45 petition covers only questions of law; petitioner failed to substantiate any exception. In any event, the petition lacks merit.
• Nature of Offense: Lascivious Conduct under Section 5(b) of R.A. No. 7610. The penis merely touched the external surface of the vagina without penetrating the labia majora, and no intent to lie was shown, so neither consummated nor attempted rape was established.
• Force or Coercion: Yes. There was compulsion equivalent to intimidation that subdued AAA's free will; she did not consent, shouted, pushed, and trembled, yet petitioner continued.
• Proof of Minority: Yes. Petitioner's express and clear admission during pre-trial that AAA was 15 years old is conclusive proof of her age; the birth certificate was not required.
• Penalty and Damages: Modified. The Indeterminate Sentence Law applies despite R.A. No. 7610 being a special law; the minimum is prision mayor medium to reclusion temporal minimum, and the maximum is reclusion temporal maximum. Damages of ₱50,000.00 each and 6% interest are proper.

• Review of Factual Findings: Rule 45 covers only questions of law; findings of fact of the CA are final and conclusive, subject to well-known exceptions. Petitioner failed to substantiate any exception. Even if reviewed, trial courts' evaluation of witness credibility is entitled to the highest respect because the trial court heard the witnesses and observed their deportment and manner of testifying. Both the RTC and the CA found AAA's testimony straightforward and candid; no facts of substance and value were overlooked. Child victims' youth and immaturity are generally badges of truth and sincerity. Thus, the credibility finding stands.

• Nature of Offense: Under People vs. Puertollano, mere touching by the male organ of the labia of the pudendum of the woman's private parts is sufficient to consummate rape; full or deep penetration is not necessary. Under People vs. Campuhan, absent proof of the slightest penetration, the crime may be attempted rape. Under Cruz vs. People, the intent of the offender to lie with the female defines the distinction between attempted rape and acts of lasciviousness; attempted rape requires such intent while acts of lasciviousness does not. Under People vs. Agao, consummated rape occurs when the penis penetrates the cleft of the labia majora, also known as the vulval or pudendal cleft, or the fleshy outer lip of the vulva, even in the slightest degree. If there is no touching by the penis of the vulval cleft of the victim's genitalia, there can be no finding of consummated rape; the crime is only attempted rape or acts of lasciviousness, as the case may be, depending on indications of intent to lie, such as the presence of an erect penis. Here, AAA consistently testified that petitioner placed his penis on top of her vagina, not that it touched either the labia majora or labia minora. No jurisprudential guideposts existed: no pain, bleeding, gaping or discolored labia minora, missing hymenal tags, or other injury. No erect penis or intent to lie was established. Thus, no consummated or attempted rape. The act is 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 said act is performed with a child exploited in prostitution or subjected to other sexual abuse; and (3) the child, whether male or female, is below 18 years of age. Under Section 2(h) of the IRR of R.A. No. 7610, lascivious conduct is the intentional touching, either directly or through clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks, or the introduction of any object into the genitalia, anus, or mouth, of any person, with an intent to abuse, humiliate, harass, degrade, or arouse, or gratify the sexual desire of any person. Petitioner kissed AAA's cheeks, removed their clothes, placed his penis on top of and rubbed it against her vagina, and the victim suffered an epileptic seizure during the ordeal. All elements were established.

• Force or Coercion: Under Caballo vs. People, sexual intercourse or lascivious conduct under the coercion or influence of any adult exists when there is some form of compulsion equivalent to intimidation and it subdues the exercise of the offended party's free will. AAA testified that petitioner dragged her to an unused pigpen, kissed her, and removed her clothes; she was trembling in fear, did not give consent, shouted for petitioner to stop because her body was shaking due to epilepsy, and resisted by pushing him. Petitioner ignored her plea. The lascivious conduct was therefore done through force or coercion. Petitioner's bare denial and alibi cannot be given greater evidentiary weight than AAA's testimony. Denial is self-serving, inherently weak, and looked upon with great disfavor. Alibi requires proof that the accused was present at another place at the time of the crime and that it was physically impossible for him to be at the scene; petitioner failed to show physical impossibility since the crime scene was only a few meters from his home.

• Proof of Minority: Under People vs. XXX, the best evidence to prove age is an original or certified true copy of the certificate of live birth; in its absence, similar authentic documents such as baptismal certificate and school records suffice; if unavailable, the testimony of the victim's mother or a qualified relative may suffice under specified circumstances; in the absence of these, the complainant's testimony will suffice provided that it is expressly and clearly admitted by the accused. The prosecution has the burden of proving age, and the failure of the accused to object to testimonial evidence on age shall not be taken against him. Here, during pre-trial, the defense made an express and clear admission that AAA was only 15 years old at the time of the alleged commission of the crime, and for that reason the presentation of the Local Civil Registrar of Tobango, Leyte was dispensed with. This admission was never raised as an issue during trial and constitutes conclusive proof of AAA's minority and age.

• Penalty and Damages: Section 5(b) of R.A. No. 7610 imposes the penalty of reclusion temporal in its medium period to reclusion perpetua. AAA was 15 years old at the time of the incident, so the prescribed penalty is reclusion temporal in its medium period to reclusion perpetua. In the absence of mitigating or aggravating circumstances, the maximum term shall be taken from the medium period, which is reclusion temporal maximum. Notwithstanding that R.A. No. 7610 is a special law, the Indeterminate Sentence Law applies; the minimum term shall be taken from within the range of the penalty next lower in degree, which is prision mayor in its medium period to reclusion temporal in its minimum period. Thus, petitioner shall suffer the indeterminate sentence of eight (8) years and one (1) day of prision mayor as minimum to seventeen (17) years, four (4) months, and one (1) day of reclusion temporal as maximum. Under People vs. Tulagan, the amount of civil indemnity, moral damages, and exemplary damages awarded for Lascivious Conduct under Section 5(b) of R.A. No. 7610, where the victim is a child below 18 years of age and the penalty imposed is within the range of reclusion temporal medium, is Fifty Thousand Pesos (₱50,000.00) each. Interest at the rate of six percent (6%) per annum on the monetary awards is imposed from the finality of the judgment until fully paid.

• 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 said act is performed with a child exploited in prostitution or subjected to other sexual abuse; and (3) the child, whether male or female, is below 18 years of age. Lascivious conduct is defined under Section 2(h) of the IRR as the intentional touching, either directly or through clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks, or the introduction of any object into the genitalia, anus, or mouth, of any person, with an intent to abuse, humiliate, harass, degrade, or arouse, or gratify the sexual desire of any person. The Court applied this doctrine because petitioner's acts against the 15-year-old AAA through coercion constituted lascivious conduct.

• Agao Doctrine on Penile Penetration — Consummated rape occurs when the penis penetrates the cleft of the labia majora, also known as the vulval or pudendal cleft, or the fleshy outer lip of the vulva, even in the slightest degree. If there is no touching by the penis of the vulval cleft of the victim's genitalia, there can be no finding of consummated rape; the crime is only attempted rape or acts of lasciviousness, as the case may be, depending on indications of intent to lie, such as the presence of an erect penis. The Court applied this doctrine because AAA testified that petitioner placed his penis on top of her vagina, with no showing that it touched or penetrated the labia majora, and no intent to lie was established.

• Credibility of Child Witnesses and Trial Court Findings — The trial court's evaluation of the credibility of witnesses is entitled to the highest respect and will not be disturbed on appeal, considering that the trial court was in a better position to decide the question, having heard the witnesses and observed their deportment and manner of testifying. Child victims' youth and immaturity are generally badges of truth and sincerity. The Court applied this doctrine because both the RTC and the CA found AAA's testimony straightforward and candid, and petitioner failed to show that facts of weight and substance were overlooked.

• Proof of Age in Sexual Abuse Cases — The best evidence to prove age is an original or certified true copy of the certificate of live birth; in its absence, similar authentic documents such as baptismal certificate and school records suffice; if unavailable, the testimony of the victim's mother or a qualified relative may suffice under specified circumstances; in the absence of these, the complainant's testimony will suffice provided that it is expressly and clearly admitted by the accused. The prosecution bears the burden of proving age, and the accused's failure to object to testimonial evidence on age shall not be taken against him. The Court applied this doctrine because the defense expressly and clearly admitted AAA's minority during pre-trial, making the birth certificate unnecessary.

• Coercion or Influence under R.A. No. 7610 — Sexual intercourse or lascivious conduct under the coercion or influence of any adult exists when there is some form of compulsion equivalent to intimidation and it subdues the exercise of the offended party's free will. The Court applied this doctrine because petitioner dragged AAA to an unused pigpen, removed her clothes, ignored her shouts and resistance, and continued despite her fear and epileptic episode.

• Alibi and Denial — Denial is self-serving, inherently weak, and looked upon with great disfavor. Alibi requires proof that the accused was present at another place at the time of the perpetration of the crime and that it was physically impossible for him to be at the scene of the crime during its commission. The Court applied this doctrine because petitioner failed to show physical impossibility, the crime scene being only a few meters from his home.

• Indeterminate Sentence Law in Special Laws — The Indeterminate Sentence Law applies notwithstanding that the offense is punished under a special law. The minimum term shall be taken from within the range of the penalty next lower in degree, and the maximum term shall be taken from the medium period of the prescribed penalty in the absence of mitigating or aggravating circumstances. The Court applied this doctrine to modify the penalty imposed on petitioner.

• "Given the foregoing, for as long as the prosecutorial evidence is able to establish that the penis of the accused penetrated the vulval cleft or the cleft of the labia majora (i.e., the cleft of the fleshy outer lip of the victim's vagina), however slight the introduction may be, the commission of rape already crossed the threshold of the attempted stage and into its consummation." — This passage states the threshold for consummated rape and is central to the Court's distinction between consummated rape and lesser offenses.
• "Further to the instant clarification, in the converse; the Court also clarifies that when there is no touching by the penis of the vulval cleft of the victim's genetalia in a case of rape through penile penetration, there can be no finding of consummated rape but only attempted rape or acts of lasciviousness, as the case may be, with the distinctions determinable based on various indications that may reveal either the absence or presence of "intent to lie" on the part of the accused, which include the presence of an erect penis." — This passage defines the converse rule: absent penetration of the vulval cleft, the offense cannot be consummated rape and must be classified as attempted rape or lascivious conduct depending on intent to lie.
• "Nowhere in the statement of AAA does it show, whether expressly or impliedly, that petitioner's penis, although placed on top of her vagina, touched either the labia majora or the labia minora of the pudendum." — This passage applies the Agao doctrine to the facts and explains why consummated rape was not established.
• "The elements of sexual abuse or lascivious conduct under Sec. 5(b) of R.A. No. 7610 are as follows: (1) The accused commits the act of sexual intercourse or lascivious conduct; (2) The said act is performed with a child exploited in prostitution or subjected to other sexual abuse; and (3) The child, whether male or female, is below 18 years of age." — This passage states the elements of the offense for which petitioner was convicted.

• People vs. Agao, G.R. No. 248049, October 4, 2022 — Controlling precedent; clarified that consummated rape occurs upon the slightest penetration of the cleft of the labia majora, and that absent such touching, the offense is only attempted rape or acts of lasciviousness depending on intent to lie.
• People vs. Puertollano, 367 Phil. 636 (1999) — Cited for the rule that mere touching by the male organ of the labia of the pudendum is sufficient to consummate rape; full penetration is not required.
• People vs. Campuhan, 385 Phil. 912 (2000) — Cited for the rule that absent proof of the slightest penetration, the crime can only be attempted rape.
• Cruz vs. People, 745 Phil. 54 (2014) — Cited for the distinction between attempted rape and acts of lasciviousness, namely, the intent of the offender to lie with the female.
• People vs. Caoili, 815 Phil. 839 (2017) — Cited for the elements of sexual abuse or lascivious conduct under Section 5(b) of R.A. No. 7610 and the definition of lascivious conduct under the IRR.
• Caballo vs. People, 710 Phil. 792 (2013) — Cited for the rule that coercion or influence exists when compulsion equivalent to intimidation subdues the offended party's free will.
• People vs. XXX, G.R. No. 241787, March 15, 2021 — Cited for the guidelines in appreciating age, including that an express and clear admission by the accused during pre-trial can suffice to prove the victim's age.
• People vs. Tulagan, 849 Phil. 197 (2019) — Cited for the amounts of civil indemnity, moral damages, and exemplary damages for Lascivious Conduct under Section 5(b) of R.A. No. 7610.
• People vs. Basa, Jr., 848 Phil. 111 (2019) — Cited for the application of the Indeterminate Sentence Law even to offenses under special laws.
• People vs. Cabiles, 810 Phil. 969 (2017) — Cited for the rule that denial is self-serving, inherently weak, and looked upon with great disfavor.
• People vs. Ramos, 715 Phil. 193 (2013) — Cited for the elements of alibi, including physical impossibility to be at the crime scene.
• Westmont Investment Corporation vs. Francia, Jr., 678 Phil. 180 (2011) — Cited for the rule that a petition for review on certiorari under Rule 45 covers only questions of law.
• Cabigting vs. San Miguel Foods, Inc., 620 Phil. 14 (2009) — Cited for the exceptions to the rule that factual findings of the CA are final and conclusive.

• Section 5(b), Republic Act No. 7610 — Penalizes sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to other sexual abuse, with the penalty of reclusion temporal in its medium period to reclusion perpetua. Applied to convict petitioner.
• Section 2(h), Implementing Rules and Regulations of Republic Act No. 7610 — Defines lascivious conduct as intentional touching, directly or through clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks, or the introduction of any object into the genitalia, anus, or mouth, with intent to abuse, humiliate, harass, degrade, arouse, or gratify sexual desire. Applied to petitioner's acts.
• Article 6, in relation to Article 335, Revised Penal Code — Defines attempted rape as the commencement of the commission of rape directly by overt acts, but the offender does not perform all the acts of execution by reason of some cause or accident other than his own spontaneous desistance. Cited to distinguish attempted rape.
• Article 336, Revised Penal Code — Mentioned in the proviso of Section 5(b) of R.A. No. 7610 for lascivious conduct when the victim is under 12 years of age; not applied because AAA was 15 years old.
• Rule 45, Rules of Court — Provides that a petition for review on certiorari covers only questions of law. Applied to reject petitioner's attempt to raise questions of fact.
• Section 40, Rule 130, Rules on Evidence — Cited in the guidelines on proof of age as the basis for testimony on pedigree, such as the exact age or date of birth of the offended party.
• Indeterminate Sentence Law — Applied notwithstanding that R.A. No. 7610 is a special law; the minimum term was taken from the penalty next lower in degree, and the maximum term from the medium period of the prescribed penalty.

Hernando, Zalameda, Rosario, and Marquez, JJ., concur.