Mitigating circumstance

Under our laws, children need special attention, care and assistance, particularly those living in exceptionally difficult conditions. Our Constitution itself warrants the right of children to “special protection from all forms of neglect, abuse, cruelty, exploitation and other conditions prejudicial to their development.” Thus, when a child under 12 years of age is sexually violated, the crime committed is already rape, even if she readily consents to it or is fully conscious and not deprived of reason. But in this case of Bella, this special treatment accorded to children was overlooked.

Bella was one of the children often seen roaming around in the streets. She ran away from her grandmother’s house because of poverty. Circumstances forced her to succumb and enter into this kind of profession. During evenings even up to midnight when most children were already fast asleep, Bella was still plying the streets with other street kids.

During one of those evenings at about midnight, a foreigner, later identified as Mr. Gerry, took a fancy to Bella and one of her companions, Alice, 11 years old. They were brought by Mr. Gerry to his hotel room and subjected to sexual abuse. Alice was the first victim, followed by Bella. Gerry asked Bella to remove her clothes and then tried to penetrate her but did not succeed.

The next morning, Gerry paid P300 to Bella and P200 to Alice. After Gerry left, Bella told Alice that the “amerikano” inserted something in her vagina, although the following day Bella informed Alice that the object was already removed.

Thereafter, Bella and Alice continued to ply their trade as street children. About seven months later, Bella was brought to the hospital by Bruno, a garbage scavenger and her supposed guardian, who found her bleeding, unconscious and foul smelling. Upon regaining consciousness Bella complained of abdominal pain. The doctors discovered that a foreign object had been lodged in her intra-vaginal canal, which turned out to be a sexual vibrator. Alice remembered this as the object which Gerry was holding when they were brought to the hotel. She said it looked like an inhaler. After the vibrator was successfully removed, Bella’s condition turned for the worse and she died three days later.

Gerry was prosecuted for the crime of rape with homicide of the young Bella who died because of the foreign object, believed to be a sexual vibrator left inside her vagina.

At the trial, the prosecution tried to prove the age of Bella merely through the testimonies of her grandmother and father, who both declared that she was born on Dec. 22, 1975, so that when the incident happened on Oct. 10, 1986, she was below 12 years of age. The record of admission in the hospital and the death certificate also declared 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 Gerry. So, it convicted him of the crime of rape and homicide.

But the Supreme Court acquitted Gerry. The High Court said the proof of Bella’s age was not sufficient in light of the baptismal certificate, which showed that she was baptized on Dec. 25, 1974; so, she could not have been born subsequent thereto or on Dec. 22, 1975. Since there was a 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, according to the SC.

The SC ruled that “the environmental circumstances coupled with the testimonies and evidence presented in court clearly give the impression that Bella, a poor street child, was a prostitute in spite 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 Gerry inserted the vibrator is only a possibility. But there is also a possibility that Bella could have allowed herself to be violated by this perverse kind of sexual behavior between the hotel incident with Gerry and seven months later when she was hospitalized.

An affirmance of conviction cannot 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).