Under our laws, for example, when a child under 12 years of age is sexually violated, the crime committed is already considered rape. But if she is slightly more than 12 years or it has not been proven beyond reasonable doubt that she is below 12 years although strictly speaking she is still very much a child because she is undoubtedly well below eighteen years of age, it is already imperative to prove that the usual elements of rape are present as in a sexual assault committed on a woman or adult 18 years of age or older. In other words, it must be shown clearly and convincingly that there is force or intimidation or that she was deprived of reason or otherwise unconscious. If any of these elements is not so proven as when a child slightly over 12 years old submits herself to the sexual advances because of dire need due to poverty, the offender can not be held guilty of rape. The victim being still a child under the law is no longer given special consideration. Like in this case of Roberta.
Roberta is a street child who ran away from her grandmother’s house. Circumstances forced her to succumb and enter this kind of profession. Late one evening at about midnight when most children are already past asleep, Roberta was still plying the streets of Olongapo in the company of other street kids, a foreigner later identified as Mr. Rancy, took fancy at Roberta and one of her companions, Boysie, eleven years old. They were chosen by Rancy who brought them to his hotel room. Rancy first committed sexual abuse on Boysie and then he asked Roberta to remove her clothes and tried to penetrate Roberta but could not completely go in as his organ would not fit. The next morning Rancy paid P300 to Roberta and P200 to Boysie. After Rancy left, Roberta told Boysie that the "amerikano" inserted something in her vagina although the following day Roberta informed Boysie that the object was already removed.
Thereafter, Roberta and Boysie continued to ply their trade as street children. About seven months later Roberta was brought to the hospital by her supposed guardian, Maximo a garbage scavenger who found her bleeding, unconscious and foul smelling. Upon regaining consciousness Roberta complained of abdominal pain. The doctors discovered that a foreign object had been lodged in the intra-vaginal canal of Roberta which turned out to be a sexual vibrator. Boysie remembered this as the object which Rancy was holding when they were brought to the hotel. He said it looked like a Vicks Inhaler. After the vibrator was successfully removed, Roberta’s condition turned for the worse until he died three days later.
Rancy was prosecuted for the crime of rape with homicide of the young Roberta who died because of a foreign object, believed to be a sexual vibrator left inside her vagina. At the trial the prosecution tried to prove the age of Roberta merely through the testimonies of her grand mother and father who both declared that she was born on December 22, 1975, so that when the incident happened on October 10, 1986, she was below 12 years of age. The record of admission in the hospital and the death certificate also declared that she was 12 years old. The lower court considered this evidence as sufficient to show her age. Said court also found that the vibrator was inserted by Rancy. So it convicted Rancy of the crime of rape with homicide.
But the Supreme Court acquitted Rancy. The court said that the proof of Roberta’s age was not sufficient in the light of the Baptismal Certificate which showed that she was baptized on December 25,1974; so she could not have been born subsequent thereto or on December 22, 1975. Since there was doubt that she was below 12 years at the time of the sexual assault, and since she submitted to the intercourse, there can be no rape committed on her. Said the SC: "the environmental circumstances coupled with the testimonies and evidence presented in court clearly give the impression that Roberta, a poor street child, was a prostitute inspite of her tender age. Circumstances in life may have forced her to submit to sex at such a young age but the circumstances do not come under the purview of force or intimidation needed to convict for rape".
Neither was the homicide proven beyond reasonable doubt, according to the SC. That Rancy inserted the vibrator is only a possibility. But there is also a possibility that Roberta could have allowed herself to be violated by this perverse kind of sexual behavior between the hotel incident with Rancy and seven months later when she was hospitalized.
An affirmance of conviction can not be based on mere possibilities. Suspicions and possibilities are not evidence and therefore should not be taken against the accused. Every circumstance favorable to the accused should be duly taken into account. This rule applies even to hardened criminals, concluded the SC (Pp. vs Ritter 194 SCRA 690).
Poor Roberta. Her extremely difficult situation in life was even used to favor her victimizer in a decision rendered by the SC with "distressing reluctance" .Maybe this case triggered the enactment of R.A. 7160 known as the "Special Protection of Children Against Child Abuse, Exploitation and Discrimination" which took effect in August 1992. Under this law Rancy’s acts are already punishable with grave penalties. But a law should likewise be passed amending the age when the sexual acts against a child should be considered rape even without force or intimidation.
E-mail: josesison@edsamail.com.ph