People v. Abulon: Penetration, Consent, and Rape by Sexual Assault in the Family Home

In People v. Abulon (G.R. No. 174473, August 17, 2007), the Supreme Court reviewed the conviction of a father who raped his thirteen-year-old daughter on three consecutive nights. The case matters because it draws a precise line between two modes of rape created by the Anti-Rape Law of 1997, and because it explains why a child's delay in reporting abuse does not destroy her credibility.

The facts

AAA, the eldest of five children, testified that her father Alvin Abulon raped her on March 14 and 15, 1999, and assaulted her on March 16, 1999. On the first two nights, he lay on top of her, inserted his penis into her vagina, and threatened her with a knife. Her siblings witnessed the acts but could only cry. On the third night, he removed her undergarments and kissed her vagina. On cross-examination, AAA stated that he also placed his tongue inside the hole of her vagina.

The Regional Trial Court convicted Abulon of two counts of qualified rape and one count of acts of lasciviousness. The Court of Appeals affirmed. The case reached the Supreme Court on automatic review.

The two modes of rape

The Anti-Rape Law of 1997, Republic Act No. 8353, reclassified rape as a crime against persons and split it into two modes under Article 266-A of the Revised Penal Code.

The first mode, rape through carnal knowledge, is committed by a man who has carnal knowledge of a woman through force, threat, or intimidation; when the victim is deprived of reason or unconscious; by fraudulent machination or grave abuse of authority; or when the victim is under twelve years old or demented.

The second mode, rape by sexual assault, is committed by inserting the penis into another person's mouth or anal orifice, or any instrument or object into the genital or anal orifice of another person. The Court noted that the two modes differ in who can commit them, who can be victimized, and in their penalties. Because of these differences, one mode is not necessarily included in the other.

Why the third charge was not rape

The trial court and the Court of Appeals treated the March 16 incident as acts of lasciviousness only, because no penile penetration occurred. The Supreme Court disagreed with their reasoning but reached the same result by a different route.

The Court found that AAA had clearly testified that her father inserted his tongue into her vagina. Had the Anti-Rape Law been in force when the act was committed, that insertion could have constituted rape by sexual assault. But the Information charged rape through carnal knowledge. Convicting Abulon of rape by sexual assault would violate his right to be informed of the nature and cause of the accusation against him.

Under the variance doctrine in Rule 120 of the Rules of Criminal Procedure, when the offense proved is included in the offense charged, the accused may be convicted of the lesser offense. Acts of lasciviousness is necessarily included in rape. Abulon was therefore correctly convicted of acts of lasciviousness for the third incident.

Force, intimidation, and the father's influence

Abulon argued that the Informations were defective for failing to allege force or intimidation. The Court found that the Informations did allege these elements. More importantly, it reiterated that in incestuous rape, force or intimidation need not be proven. The overpowering moral influence of a father over his daughter takes the place of violence and resistance required in cases where the accused is a stranger.

Delay in reporting and the trial judge's questions

Abulon attacked AAA's credibility because she waited over a month to report the rapes. The Court rejected this. AAA had tried to tell her father's niece, a barangay driver who was her father's brother-in-law, and another person, but no one believed her. She feared for her grandparents' lives. The Court held that a thirteen-year-old cannot be expected to know how to report such a crime, and that delay is fatal to credibility only when it is unreasonable and unexplained.

The Court also rejected the claim that the trial judge showed bias by asking leading questions. A judge may ask clarificatory questions to ferret out the truth and to expedite proceedings, and bias is measured by whether the accused was prejudiced, not by the number of questions asked.

Penalty and damages

Because of Republic Act No. 9346, which prohibits the imposition of the death penalty, the Court reduced the penalty for the two counts of qualified rape from death to reclusion perpetua without eligibility for parole. For acts of lasciviousness, the Court imposed an indeterminate sentence of six months of arresto mayor as minimum to four years and two months of prision correccional as maximum. Abulon was ordered to pay P75,000 as civil indemnity, P75,000 as moral damages, and P25,000 as exemplary damages for each count of rape, plus P30,000 as moral damages for the lascivious acts.

Practical takeaways

• Rape by sexual assault covers insertion of the penis into the mouth or anal orifice, or any instrument or object into the genital or anal orifice. It is a distinct mode of rape, not a lesser form of rape through carnal knowledge.
• An accused cannot be convicted of rape by sexual assault if the Information charged only rape through carnal knowledge, because that would violate the right to be informed of the accusation.
• In incestuous rape, the father's moral ascendancy substitutes for force and intimidation. These elements need not be separately proven.
• A child's delay in reporting sexual abuse does not automatically destroy credibility, especially when the delay is explained by threats and by relatives who refused to believe her.
• Trial judges may ask clarificatory questions without being deemed biased, as long as the accused is not prejudiced.

This article is general information and not legal advice. For your specific situation, consult a lawyer or ask ASG Legal AI.