G.R. No. 211002. January 21, 2015. Richard Ricalde, Petitioner, vs. People of The PHILIPPINES, Respondent

SUPREME COURT REPORTS ANNOTATED VOLUME 747 2/9/20, 5:56 PM
G.R. No. 211002. January 21, 2015.*
RICHARD RICALDE, petitioner, vs. PEOPLE OF THE

PHILIPPINES, respondent.
Criminal Law; Rape; Rape Through Sexual Assault; Anti-Rape

Law of 1997; The Anti-Rape Law of 1997 classified rape as a crime
against persons and amended the Revised Penal Code (RPC) to
include Article 266-A on rape through sexual assault.·The issue
before us for resolution is whether the prosecution proved beyond
reasonable doubt petitioner Richard RicaldeÊs guilt for the crime of
rape through sexual assault. We affirm petitionerÊs conviction with
modification on the penalty imposed. The Anti-Rape Law of 1997
classified rape as a crime against persons and amended the Revised
Penal Code to include Article 266-A on rape through sexual assault:
Article 266-A. Rape; When and How Committed.·Rape is
Committed · 1) By a man who shall have carnal knowledge of a
woman under any of the following circumstances: a) Through force,
threat, or intimidation; b) When the offended party is deprived of
reason or otherwise
_______________
* SECOND DIVISION.
543
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Ricalde vs. People
unconscious; c) By means of fraudulent machination or grave

abuse of authority; and d) When the offended party is under twelve
(12) years of age or is demented, even though none of the
circumstances mentioned above be present; 2) By any person who,
under any of the circumstances mentioned in paragraph 1
http://www.central.com.ph/sfsreader/session/000001702958fcd7ec7cfddf003600fb002c009e/p/ASK456/?username=Guest Page 1 of 36
hereof, shall commit an act of sexual assault by inserting his

penis into another personÊs mouth or anal orifice, or any
instrument or object, into the genital or anal orifice of
another person.
Same; Same; Same; Instrument or Object Rape; Gender-Free
Rape; Homosexual Rape; The gravamen of rape through sexual
assault is „the insertion of the penis into another personÊs mouth or
anal orifice, or any instrument or object, into another personÊs
genital or anal orifice.‰·Rape under the second paragraph of
Article 266-A is also known as „instrument or object rape,‰ „gender-
free rape,‰ or „homosexual rape.‰ The gravamen of rape through
sexual assault is „the insertion of the penis into another personÊs
mouth or anal orifice, or any instrument or object, into another
personÊs genital or anal orifice.‰
Remedial Law; Criminal Procedure; Appeals; Jurisprudence
holds that „the findings of the trial court, its calibration of the
testimonies of the witnesses, and its assessment of the probative
weight thereof, as well as its conclusions anchored on said findings
are accorded respect if not conclusive effect.‰·Jurisprudence holds
that „the findings of the trial court, its calibration of the testimonies
of the witnesses, and its assessment of the probative weight thereof,
as well as its conclusions anchored on said findings are accorded
respect if not conclusive effect.‰ The trial court found that XXXÊs
„straightforward, unequivocal and convincing testimony‰
sufficiently proved that petitioner committed an act of sexual
assault by inserting his penis into XXXÊs anal orifice. There was no
showing of ill motive on the part of XXX to falsely accuse petitioner.
The Court of Appeals accorded great weight to the trial courtÊs
findings and affirmed petitionerÊs conviction.
Same; Evidence; Witnesses; Child-Witnesses; In a long line of
cases, the Supreme Court (SC) has given full weight and credit to the
testimonies of child victims.·In a long line of cases, this court has
given full weight and credit to the testimonies of child victims.
Their „[y]outh and immaturity are generally badges of truth and
sincerity.‰
544
544 SUPREME COURT REPORTS ANNOTATED

Ricalde vs. People
XXX, then only 10 years old, had no reason to concoct lies

against petitioner. This court has also held that „[l]eeway should be
given to witnesses who are minors, especially when they are
relating past incidents of abuse.‰ Petitioner contends that XXX did
not categorically say that a penis was inserted into his anal orifice,
or that he saw a penis or any object being inserted into his anal
orifice. This contradicts petitionerÊs earlier statement in his
appellantÊs brief that „[a]lthough it is true that the Supreme Court,
in a long line of cases, did not rule out the possibility of rape in
cases where the victim remained physically intact at the time she or
he was physically examined, still, it bears stressing that in the
instant case, the private complainant testified that the accused-
appellantÊs penis fully penetrated his anus.‰
Criminal Law; Rape; Rape Through Sexual Assault; In People

v. Soria, 685 SCRA 483 (2012), the Supreme Court (SC) discussed
that a victim need not identify what was inserted into his or her
genital or anal orifice for the court to find that rape through sexual
assault was committed.·In People v. Soria, 685 SCRA 483 (2012),
this court discussed that a victim need not identify what was
inserted into his or her genital or anal orifice for the court to find
that rape through sexual assault was committed: We find it
inconsequential that „AAA‰ could not specifically identify the
particular instrument or object that was inserted into her genital.
What is important and relevant is that indeed something was
inserted into her vagina. To require „AAA‰ to identify the
instrument or object that was inserted into her vagina would be
contrary to the fundamental tenets of due process. Second,
petitionerÊs reliance on the medico-legalÊs finding of no recent
trauma in XXXÊs anal orifice, or any trace of spermatozoa, lacks
merit. The absence of spermatozoa in XXXÊs anal orifice does not
negate the possibility of an erection and penetration. This result
does not contradict the positive testimony of XXX that the lower
courts found credible, natural, and consistent with human nature.
Same; Same; Same; People v. Bonaagua, 650 SCRA 620 (2011),
considers a womanÊs private organ since most if not all existing
jurisprudence on rape involves a woman victim. Nevertheless, this
interpretation can apply by analogy when the victim is a man in that
the slightest penetration to the victimÊs anal orifice consummates the
crime of rape through sexual assault.·People v. Bonaagua, 650
545
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Ricalde vs. People
SCRA 620 (2011), considers a womanÊs private organ since most

if not all existing jurisprudence on rape involves a woman victim.
Nevertheless, this interpretation can apply by analogy when the
victim is a man in that the slightest penetration to the victimÊs anal
orifice consummates the crime of rape through sexual assault. The
gravamen of the crime is the violation of the victimÊs dignity. The
degree of penetration is not important. Rape is an „assault on
human dignity.‰
Same; Same; Same; Penalties; In enacting Republic Act (RA)
No. 7610, the legislature intended to impose a higher penalty when
the victim is a child.·Thus, „for Rape Through Sexual Assault
under paragraph 2, Article 266-A, [the accused Chingh was]
sentenced to suffer the indeterminate penalty of twelve (12) years,
ten (10) months and twenty-one (21) days of reclusion temporal, as
minimum, to fifteen (15) years, six (6) months, and twenty (20) days
of reclusion temporal, as maximum.‰ The imposable penalty under
Republic Act No. 7610, Section 5(b) „for lascivious conduct when the
victim is under twelve (12) years of age shall be reclusion temporal
in its medium period.‰ This penalty is higher than the imposable
penalty of prisión correccional for acts of lasciviousness under
Article 336 of the Revised Penal Code. In enacting Republic Act No.
7610, the legislature intended to impose a higher penalty when the
victim is a child.
Same; Same; Same; Child Abuse Law; Having sex with a ten
(10)-year-old is child abuse and is punished by a special law
(Republic Act [RA] No. 7610).·Having sex with a 10-year-old is
child abuse and is punished by a special law (Republic Act No.
7610). It is a progression from the Revised Penal Code to provide
greater protection for children. Justice Velasco suggests that this is
not so. He anchors his view on his interpretation that Republic Act
No. 7610 requires a showing that apart from the actual coerced
sexual act on the 10-year-old, the child must also be exploited by
prostitution or by other sexual acts. This view is inaccurate on
grounds of verba legis and ratione legis.
Same; Same; Same; Men can also become victims of rape
through sexual assault, and this can involve penile insertion.·This

statement considered the prevailing situation in our jurisprudence
where victims of rape are all women. However, as in this case, men
546

Ricalde vs. People
can also become victims of rape through sexual assault, and

this can involve penile insertion.
VELASCO, JR., J., Concurring and Dissenting Opinion:
Remedial Law; Criminal Procedure; Information; View that the
Supreme Court (SC) had long held that each and every element of
the offense must be alleged in the Information.·While the
Information stated that the petitioner „[inserted] his penis in the
anus of XXX‰ and that the victim „was then 10 years of age,‰ which
satisfies the first and third elements of child abuse under Sec. 5(b)
of R.A. No. 7610, nowhere is it stated that the said act was
performed with a child exploited in prostitution or subjected to
other sexual abuse ·the second element of the offense. Therefore,
even assuming that such element was proven during trial, the
accused can nevertheless claim constitutional protection, and his
conviction will not stand in light of the constitutionally protected
rights of the accused to due process, as well as his right to be
informed of the nature and cause of the accusation against him.
This Court had long held that each and every element of the offense
must be alleged in the Information.
Constitutional Law; Criminal Procedure; Right to be Heard;

View that the ponencia did not discuss whether the issue of the
applicability of Republic Act (RA) No. 7610 was ever put in issue in
the lower court before or during trial; The Supreme Court (SC)
cannot now suddenly determine that the proper offense is RA No.
7610 and not the Revised Penal Code (RPC), without giving the
petitioner the chance to be heard and defend himself, especially
considering that RA No. 7610 is not only a separate and distinct
offense from rape under the RPC, but also that the former imposes a
stiffer penalty than the latter.·A final note I wish to make is the
fact that the ponencia did not discuss whether the issue of the
applicability of R.A. No. 7610 was ever put in issue in the lower
court before or during trial. It seems to me that it is only now, and

only the Court, on its own initiative, deemed that R.A. No. 7610 is
applicable to the case at bar. It appears to me that in the lower
court, as well as in the Court of Appeals, the only main issue
resolved is whether or not the petitioner is guilty of rape. Thus, the
petitioner was never given the opportunity to defend himself
against a charge of violation of R.A. No. 7610, because, in the first
place, it was never put in issue. The Court cannot now suddenly
determine that the proper offense is R.A. No. 7610
547
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Ricalde vs. People
and not the Revised Penal Code, without giving the petitioner
the chance to be heard and defend himself, especially considering
that R.A. No. 7610 is not only a separate and distinct offense from
rape under the Revised Penal Code, but also that the former
imposes a stiffer penalty than the latter.
PETITION for review on certiorari of the decision and

resolution of the Court of Appeals.
The facts are stated in the opinion of the Court.
Public AttorneyÊs Office for petitioner.
Office of the Solicitor General for respondent.
LEONEN, J.:
Even men can become victims of rape.

Before us is a criminal case for rape through sexual
assault committed against a 10-year-old boy. Accused
Richard Ricalde (Ricalde) was charged with rape as
described under the second paragraph of Section 266-A of
the Revised Penal Code, committed „[b]y any person who,
under any of the circumstances mentioned in paragraph 1
hereof, shall commit an act of sexual assault by inserting
his penis into another personÊs mouth or anal orifice, or any
instrument or object, into the genital or anal orifice of
another person.‰1
This is a Petition for Review2 assailing the Court of
AppealsÊ August 28, 2013 Decision3 affirming RicaldeÊs

convic-
_______________
1 Rep. Act No. 8353 (1997) introduced this new provision.

2 Rollo, pp. 10-24. The Petition was filed pursuant to Rule 45 of the
Rules of Court.
3 Id., at pp. 31-40. The Decision was penned by Associate Justice
Rodil V. Zalameda and concurred in by Presiding Justice Andres B.
Reyes, Jr. and Associate Justice Ramon M. Bato, Jr. of the First Division.
548

Ricalde vs. People
tion for rape through sexual assault and January 15,

2014 Resolution4 denying reconsideration.
The Provincial Prosecutor of Biñan, Laguna filed an
Information charging Ricalde of rape through sexual
assault:
That on or about January 31, 2002, in the Municipality of Sta.

Rosa, Province of Laguna, Philippines, and within the jurisdiction
of this Honorable Court, accused Richard Ricalde, prompted with
lewd design, did then and there willfully, unlawfully and feloniously
inserting [sic] his penis into the anus of XXX who was then ten (10)
years of age against his will and consent, to his damage and
prejudice.
CONTRARY TO LAW.5
Ricalde pleaded not guilty during his arraignment on

August 21, 2002.6 The prosecution presented the victim
(XXX),7 his mother, and the medico-legal as witnesses,
while the defense presented Ricalde as its sole witness.8
_______________
4 Id., at pp. 42-43. The Resolution was penned by Associate Justice

Rodil V. Zalameda and concurred in by Presiding Justice Andres B.
Reyes, Jr. and Associate Justice Ramon M. Bato, Jr.

5 Id., at pp. 32 and 54.
6 Id.
7 The fictitious initials „XXX‰ represent the victim-survivorÊs real
name. In People v. Cabalquinto (533 Phil. 703; 502 SCRA 419 [2006] [Per
J. Tinga, En Banc]), this court discussed the need to withhold the
victimÊs real name and other information that would compromise the
victimÊs identity, applying the confidentiality provisions of: (1) Republic
Act No. 7610 (Special Protection of Children Against Child Abuse,
Exploitation and Discrimination Act) and its implementing rules; (2)
Republic Act No. 9262 (Anti-Violence Against Women and Their Children
Act of 2004) and its implementing rules; and (3) this courtÊs October 19,
2004 Resolution in A.M. No. 04-10-11-SC (Rule on Violence Against
Women and their Children).
8 Rollo, pp. 32 and 55.
549
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Ricalde vs. People
The facts as found by the lower courts follow.

On January 30, 2002, XXX requested his mother to pick
up Ricalde at McDonaldÊs Bel-Air, Sta. Rosa at past 8:00
p.m.9 Ricalde, then 31 years old,10 is a distant relative and
textmate of XXX, then 10 years old.11
After dinner, XXXÊs mother told Ricalde to spend the
night at their house as it was late.12 He slept on the sofa
while XXX slept on the living room floor.13
It was around 2:00 a.m. when XXX awoke as „he felt
pain in his anus and stomach and something inserted in
his anus.‰14 He saw that Ricalde „fondled his penis.‰15
When Ricalde returned to the sofa, XXX ran toward his
motherÊs room to tell her what happened.16 He also told his
mother that Ricalde played with his sexual organ.17
XXXÊs mother armed herself with a knife for self-defense
when she confronted Ricalde about the incident, but he
remained silent.18 She asked him to leave.19
XXXÊs mother then accompanied XXX to the barangay
hall where they were directed to report the incident to the
Sta. Rosa police station.20 The police referred them to the
municipal health center for medical examination.21 Dr. Roy
Cama-
_______________
9 Id., at pp. 33 and 55.

10 Id., at p. 20.
11 Id., at p. 12.
12 Id., at pp. 33 and 55.
13 Id.
14 Id., at p. 55.
15 Id.
16 Id., at pp. 33 and 55.
17 Id., at p. 33.
18 Id., at pp. 33 and 55.
19 Id.
20 Id.
21 Id., at p. 33.
550

Ricalde vs. People
rillo examined22 XXX and found no signs of recent

trauma in his anal orifice23 that was also „NEGATIVE for
[s]permatozoa.‰24
On February 4, 2002, XXX and his mother executed
their sworn statements at the Sta. Rosa police station,
leading to the criminal complaint filed against Ricalde.25
Ricalde denied the accusations.26 He testified that he
met XXX during the 2001 town fiesta of Calaca, Batangas
and learned that XXXÊs mother is the cousin of his cousin
Arlan Ricalde.27 He and XXX became textmates, and XXX
invited him to his house.28 On January 30, 2002, XXXÊs
mother picked him up to sleep at their house.29 He slept at
10:00 p.m. on the living room sofa while XXX slept on the
floor.30 He denied the alleged rape through sexual
assault.31
The Regional Trial Court in its Decision32 dated June 20,
2011 found Ricalde guilty beyond reasonable doubt of rape
through sexual assault:
WHEREFORE, this Court finds accused Richard Ricalde guilty

beyond reasonable doubt of the crime of rape by sexual assault
and, accordingly, sentences him to suffer the penalty of
imprisonment ranging from four (4) years, two (2) months and one
(1) day of prisión cor-
_______________
22 Id., at p. 55. Dr. Camarillo examined XXX at the Regional Crime

Laboratory in Camp Vicente Lim, Calamba, Laguna.
23 Id., at pp. 33 and 57.
24 Id., at p. 33.
25 Id., at pp. 33 and 55.
26 Id., at p. 34.
27 Id., at pp. 34 and 57.
28 Id.
29 Id., at pp. 34 and 58.
30 Id., at pp. 33 and 55.
31 Id., at p. 34.
32 Id., at pp. 54-64. The Decision was penned by Presiding Judge
Wilhelmina B. Jorge-Wagan, Branch 34, Regional Trial Court, Calamba,
Laguna.
551
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Ricalde vs. People
reccional as minimum, to eight (8) years of prisión mayor as

maximum. Accused is ordered to pay [XXX] the sums of P50,000.00
as moral damages and P50,000.00 as civil indemnity.
SO ORDERED.33
The Court of Appeals in its Decision34 dated August 28,

2013 affirmed the conviction with the modification of
lowering the amounts of damages awarded:
WHEREFORE, the Decision dated 20 June 2011 of Branch 34 of

the Regional Trial Court of Calamba, Laguna, in Crim. Case No.
11906-B, is AFFIRMED but with MODIFICATION as to the
award of damages. Accused-appellant RICHARD RICALDE is
ordered to pay the victim civil indemnity in the amount of Thirty

Thousand (P30,000.00) Pesos and moral damages likewise in the
amount of Thirty Thousand (P30,000.00) Pesos, both with interest
at the legal rate of six (6%) percent per annum from the date of
finality of this judgment until fully paid.35
Ricalde filed this Petition praying for his acquittal.36

Petitioner argues the existence of reasonable doubt in
his favor. First, the medico-legal testified that he found „no
physical signs or external signs of recent trauma [in XXXÊs]
anus,‰37 or any trace of spermatozoa.38 He contends that
physi-
_______________
33 Id., at p. 64.
34 Id., at pp. 31-40.
35 Id., at pp. 39-40.
36 Id., at p. 23.
37 Id., at p. 16.
38 Id.
552

Ricalde vs. People
cal evidence „ranks high in [the courtÊs] hierarchy of

trustworthy evidence.‰39
Second, XXX did not categorically say that a penis was
inserted into his anal orifice, or that he saw a penis or any
object being inserted into his anal orifice.40 XXX was also
able to immediately push him away.41 Thus, no push and
pull movement happened that would explain XXXÊs alleged
stomachache.42 Petitioner submits that the alleged
stomachache was an attempt to aggravate the charge
against him.43
Petitioner argues that XXXÊs inconsistent testimony
raises reasonable doubt on his guilt.44 XXX claimed that he
immediately pushed petitioner away, but in another
instance, he testified as follows: „I felt that he was
inserting his penis inside my anus because I was even able

to hold his penis. He was also playing with my penis.‰45
XXX also stated in his salaysay that „the penis reached
only the periphery of his anal orifice.‰46
Third, XXX testified that after he had pushed petitioner
away, he saw that petitioner was wearing pants with the
zipper open.47 Petitioner submits that performing anal
coitus while wearing pants with an open zipper poses a
challenge · the risk of injuring the sexual organ or having
pubic hair entangled in the zipper.48 Petitioner argues that
the court
_______________
39 Id., at p. 17, quoting Bank of the Philippine Islands v. Reyes, 568

Phil. 188, 204; 544 SCRA 206, 223 (2008) [Per J. Austria-Martinez, Third
Division].
40 Id., at p. 17.
41 Id.
42 Id.
43 Id.
44 Id., at p. 21.
45 Id., at p. 60, citing TSN, September 11, 2003.
46 Id., at p. 21.
47 Id., at p. 18.
48 Id.
553
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Ricalde vs. People
must consider every circumstance favoring the

innocence of an accused.49
Assuming he committed an offense, petitioner contends
that the court should have applied the „variance doctrine‰
in People v. Sumingwa,50 and the court would have found
him guilty for the lesser offense of acts of lasciviousness
under Article 336 of the Revised Penal Code.51 The petition
then enumerated circumstances showing possible affections
between petitioner and XXX.52 These include the fact that
they were textmates and that petitioner played with XXXÊs
penis.53
Petitioner argues that this masturbation could have
caused an irritation that XXX mistook as penetration.54
XXX could also have mistaken the „overreaching fingers as
a male organ trying to enter his [anus].‰55 Assuming these
acts took place, these would only be considered as acts of
lasciviousness.56
The People of the Philippines counters that the
prosecution proved beyond reasonable doubt all elements of
the crime charged.
The Comment57 discussed that it is neither improbable
nor contrary to human experience that XXXÊs mother
allowed her son to be left alone with a stranger.58 Petitioner
was not a complete stranger, and she could not have
foreseen such abuse since „rape by sexual assault or any
form of sexual
_______________
49 Id.
50 618 Phil. 650, 668; 603 SCRA 638, 655 (2009) [Per J. Nachura,
Third Division].
51 Rollo, p. 19.
52 Id., at pp. 20-21.
53 Id., at p. 20.
54 Id., at p. 21.
55 Id.
56 Id.
57 Id., at pp. 124-138.
58 Id., at p. 129.
554

Ricalde vs. People
abuse of a boy by a grown man is fairly uncommon in

our culture.‰59
PetitionerÊs reliance on the medico-legalÊs findings
deserves scant consideration.60 The Comment quoted
People v. Penilla61 in that „[a] medical examination of the
victim is not indispensable in a prosecution for rape
inasmuch as the victimÊs testimony alone, if credible, is

sufficient to convict the accused of the crime.‰62 In any
case, the medico-legal testified on the sphincterÊs flexibility
and how an insertion into the anal orifice would not
necessarily cause injury.63
Lastly, the prosecution established all elements of rape
through sexual assault based on XXXÊs clear and
categorical testimony.64 PetitionerÊs defense of mere denial
cannot outweigh positive testimony.65 Consequently,
petitionerÊs contention that the incident only amounts to
acts of lasciviousness lacks merit.66
The issue before us for resolution is whether the
prosecution proved beyond reasonable doubt petitioner
Richard RicaldeÊs guilt for the crime of rape through sexual
assault.
We affirm petitionerÊs conviction with modification on
the penalty imposed.
The Anti-Rape Law of 199767 classified rape as a crime
against persons68 and amended the Revised Penal Code to
include Article 266-A on rape through sexual assault:
_______________
59 Id., at p. 128.
60 Id., at p. 129.
61 G.R. No. 189324, March 20, 2013, 694 SCRA 141, 166 [Per J.
Perez, Second Division].
62 Id., at p. 130.
63 Id., at pp. 38 and 130.
64 Id., at pp. 131-132.
65 Id., at p. 135.
66 Id., at pp. 131-132.
67 Rep. Act No. 8353 (1997).
68 Id., Sec. 2.
555
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Ricalde vs. People
Article 266-A. Rape; When and How Committed.·Rape is

Committed ·
1) By a man who shall have carnal knowledge of a woman

under any of the following circumstances:
a) Through force, threat, or intimidation;
b) When the offended party is deprived of reason or otherwise
unconscious;
c) By means of fraudulent machination or grave abuse of
authority; and
d) When the offended party is under twelve (12) years of age or
is demented, even though none of the circumstances mentioned
above be present;
2) By any person who, under any of the circumstances
mentioned in paragraph 1 hereof, shall commit an act of
sexual assault by inserting his penis into another personÊs
mouth or anal orifice, or any instrument or object, into the
genital or anal orifice of another person. (Emphasis supplied)
Rape under the second paragraph of Article 266-A is also

known as „instrument or object rape,‰69 „gender-free
rape,‰70 or „homosexual rape.‰71 The gravamen of rape
through sexual assault is „the insertion of the penis into
another personÊs
_______________
69 People v. Abulon, 557 Phil. 428, 454; 530 SCRA 675, 702 (2007)
[Per J. Tinga, En Banc], citing People v. Silvano, 368 Phil. 676, 696; 309
SCRA 362, 383 (1999) [Per Curiam, En Banc].
70 People v. Abulon, id., citing Deliberations of the Senate on Senate
Bill No. 950, Special Law on Rape, August 6, 1996, pp. 12-15;
Deliberations of the House of Representatives, Committee on Revision of
Laws and Committee on Women on House Bill No. 6265 entitled „An Act
to Amend Article 335 of the Revised Penal Code, as amended, and
Defining and Penalizing the Crime of Sexual Assault,‰ August 27, 1996,
pp. 44-50; See also People v. Garcia, G.R. No. 206095, November 25,
2013, 710 SCRA 571, 580 [Per J. Mendoza, Third Division].
71 People v. Abulon, id., citing Deliberations of the Senate on Senate
Bill No. 950, Special Law on Rape, August 6, 1996, pp. 12-15.
556
Ricalde vs. People
mouth or anal orifice, or any instrument or object, into

another personÊs genital or anal orifice.‰72
Jurisprudence holds that „the findings of the trial court,
its calibration of the testimonies of the witnesses, and its
assessment of the probative weight thereof, as well as its
conclusions anchored on said findings are accorded respect
if not conclusive effect.‰73
The trial court found that XXXÊs „straightforward,
unequivocal and convincing testimony‰74 sufficiently
proved that petitioner committed an act of sexual assault
by inserting his penis into XXXÊs anal orifice.75 There was
no showing of ill motive on the part of XXX to falsely accuse
petitioner.76 The Court of Appeals accorded great weight to
the trial courtÊs findings and affirmed petitionerÊs
conviction.77
No cogent reason exists for this court to overturn the
lower courtsÊ findings.
First, petitionerÊs argument highlighting alleged
inconsistencies in XXXÊs testimony fails to convince.
In a long line of cases,78 this court has given full weight
and credit to the testimonies of child victims. Their „[y]outh
and
_______________
72 Pielago v. People, G.R. No. 202020, March 13, 2013, 693 SCRA 476,
488 [Per J. Reyes, First Division].
73 People v. Vitero, G.R. No. 175327, April 3, 2013, 695 SCRA 54, 64-
65 [Per J. Leonardo-De Castro, First Division].
74 Rollo, p. 59.
75 Id.
76 Id., at p. 62.
77 Id., at pp. 36-37.
78 See Pielago v. People, supra; Campos v. People, 569 Phil. 658, 671;
546 SCRA 334, 348-349 (2008) [Per J. Ynares-Santiago, Third Division],
quoting People v. Capareda, 473 Phil. 301, 330; 429 SCRA 301, 323
(2004) [Per J. Callejo, Sr., Second Division]; People v. Galigao, 443 Phil.
246, 260; 395 SCRA 195, 203 (2003) [Per J. Ynares-Santiago, En Banc].
557
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Ricalde vs. People
immaturity are generally badges of truth and

sincerity.‰79 XXX, then only 10 years old, had no reason to
concoct lies against petitioner.80
This court has also held that „[l]eeway should be given
to witnesses who are minors, especially when they are
relating past incidents of abuse.‰81
Petitioner contends that XXX did not categorically say
that a penis was inserted into his anal orifice, or that he
saw a penis or any object being inserted into his anal
orifice.
This contradicts petitionerÊs earlier statement in his
appellantÊs brief82 that „[a]lthough it is true that the
Supreme Court, in a long line of cases, did not rule out the
possibility of rape in cases where the victim remained
physically intact at the time she or he was physically
examined, still, it bears stressing that in the instant case,
the private complainant testified that the accused-
appellantÊs penis fully penetrated his anus.‰83
The trial court also quoted portions of the transcript of
XXXÊs testimony in that he „felt something was inserted in
[his] anus.‰84
Q: That early morning of January 31, 2002, while you were

sleeping at your house, do you recall any unusual incident that
happened to you?
A: Yes sir, I felt something was inserted in my anus.
....
_______________
79 People v. Oliva, 616 Phil. 786, 792; 600 SCRA 834, 839 (2009) [Per
J. Nachura, Third Division], citing People v. De Guzman, 423 Phil. 313,
331; 372 SCRA 95, 111 (2001) [Per Curiam, En Banc].
80 Rollo, pp. 37 and 62.
81 People v. Dominguez, G.R. No. 191065, June 13, 2011, 651 SCRA
791, 802 [Per J. Sereno (now CJ.), Third Division].
82 Rollo, pp. 44-53.
83 Id., at pp. 50-51.
84 Id., at p. 59, citing TSN, September 11, 2003.
558

Ricalde vs. People
Q: When you said that you felt something was inserted in your
anus, what did you do?
A: I felt that he was inserting his penis inside my anus because I
was even able to hold his penis. He was also playing with my penis.
Q: So when you said he was inserting his penis to your anus and
he was even playing with your private part, who is this person you
are referring to as „he?‰
A: Richard, sir.85
In People v. Soria,86 this court discussed that a victim

need not identify what was inserted into his or her genital
or anal orifice for the court to find that rape through sexual
assault was committed:
We find it inconsequential that „AAA‰ could not specifically

identify the particular instrument or object that was inserted into
her genital. What is important and relevant is that indeed
something was inserted into her vagina. To require „AAA‰ to
identify the instrument or object that was inserted into her vagina
would be contrary to the fundamental tenets of due process.87
Second, petitionerÊs reliance on the medico-legalÊs

finding of no recent trauma in XXXÊs anal orifice, or any
trace of spermatozoa, lacks merit. The absence of
spermatozoa in XXXÊs anal orifice does not negate the
possibility of an erection and penetration. This result does
not contradict the positive testimony of XXX that the lower
courts found credible, natural, and consistent with human
nature.
_______________
85 Id., at pp. 59-60, citing TSN, September 11, 2003.

86 G.R. No. 179031, November 14, 2012, 685 SCRA 483 [Per J. Del
Castillo, Second Division]. Justice Brion penned a Dissenting Opinion.
87 Id., at pp. 504-505.
559
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Ricalde vs. People
This court has explained the merely corroborative

character of expert testimony and the possibility of
convictions for rape based on the victimÊs credible lone
testimony.88
In any case, the medico-legal explained that his negative
finding of trauma in the anal orifice does not remove the
possibility of an insertion considering the flexibility of the
sphincter:
Q: Now, a while ago you testified that he was sodomized and

your findings states [sic] that you did not find any congestion or
abrasion, can you explain to this court why you stated in your
findings that you did not find any congestion or abrasion?
A: Again, based on my examination[,] there were no external
signs of recent trauma to the anus. It should be realized that the
sphincter, that is the particular portion of the anus controlling the
bowel movement, it exhibits a certain flexibility such that it can
resist any objected [sic] inserted and that area is very vascular,
meaning to say, it is rich in blood supply, such that any injuries
would be healed in 24 hours or less than 24 hours, sir?89
Lastly, we address petitionerÊs invocation of the

„variance doctrine‰ citing People v. Sumingwa.90
Section 4 in relation to Section 5 of Rule 120 of the Rules
on Criminal Procedure provides for the „variance doctrine‰:
_______________
88 People v. Colorado, G.R. No. 200792, November 14, 2012, 685

SCRA 660, 673 [Per J. Reyes, First Division], citing People v. Balonzo,
560 Phil. 244, 259-260; 533 SCRA 760, 774 (2007) [Per J. Chico-Nazario,
Third Division]; See also People v. De Guzman, G.R. No. 188352,
September 1, 2010, 629 SCRA 784, 799 [Per J. Mendoza, Second
Division].
89 Rollo, p. 38, citing TSN, January 22, 2003, p. 9.

90 Supra note 50.
560

Ricalde vs. People
SEC. 4. Judgment in case of variance between allegation

and proof.·When there is variance between the offense charged in
the complaint or information and that proved, and the offense as
charged is included in or necessarily includes 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.
SEC. 5. When an offense includes or is included in
another.·An offense charged necessarily includes the offense
proved when some of the essential elements or ingredients of the
former, as alleged in the complaint or information, constitute the
latter. And an offense charged is necessarily included in the offense
proved, when the essential ingredients of the former continue or
form part of those constituting the latter.
In Sumingwa, the accused in Criminal Case Nos. 1649

and 1654 was charged with qualified rape but was
convicted for the lesser offense of acts of lasciviousness
committed against a child under Article III, Section 5(b) of
Republic Act No. 761091 since „there was no penetration, or
even an attempt to insert [the accusedÊs] penis into [the
victimÊs] vagina.‰92
In the instant case, no variance exists between what was
charged and what was proven during trial. The prosecution
established beyond reasonable doubt all elements of the
crime of rape through sexual assault.
XXX testified that he „felt something was inserted [into
his] anus.‰93 The slightest penetration into oneÊs sexual
organ distinguishes an act of lasciviousness from the crime
of rape. People v. Bonaagua94 discussed this distinction:
_______________
91 Id., at p. 666; p. 654.

92 Id., at p. 667; p. 654.
93 Rollo, p. 59, citing TSN, September 11, 2003.
94 G.R. No. 188897, June 6, 2011, 650 SCRA 620 [Per J. Peralta,
Second Division].
561
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Ricalde vs. People
It must be emphasized, however, that like in the crime of rape

whereby the slightest penetration of the male organ or even its
slightest contact with the outer lip or the labia majora of the vagina
already consummates the crime, in like manner, if the tongue, in an
act of cunnilingus, touches the outer lip of the vagina, the act should
also be considered as already consummating the crime of rape
through sexual assault, not the crime of acts of lasciviousness.
Notwithstanding, in the present case, such logical interpretation
could not be applied. It must be pointed out that the victim testified
that Ireno only touched her private part and licked it, but did not
insert his finger in her vagina. This testimony of the victim,
however, is open to various interpretation, since it cannot be
identified what specific part of the vagina was defiled by Ireno.
Thus, in conformity with the principle that the guilt of an accused
must be proven beyond reasonable doubt, the statement cannot be
the basis for convicting Ireno with the crime of rape through sexual
assault.95 (Emphasis supplied)
People v. Bonaagua considers a womanÊs private organ

since most if not all existing jurisprudence on rape involves
a woman victim. Nevertheless, this interpretation can
apply by analogy when the victim is a man in that the
slightest penetration to the victimÊs anal orifice
consummates the crime of rape through sexual assault.
The gravamen of the crime is the violation of the victimÊs
dignity. The degree of penetration is not important. Rape is
an „assault on human dignity.‰96
People v. Quintos97 discussed how rape causes
incalculable damage on a victimÊs dignity, regardless of the
manner of its commission:
_______________
95 Id., at p. 640.
96 People v. Jalosjos, 421 Phil. 43, 54; 369 SCRA 179, 182 (2001) [Per
J. Ynares-Santiago, En Banc].
562

Ricalde vs. People
The classifications of rape in Article 266-A of the Revised Penal

Code are relevant only insofar as these define the manners of
commission of rape. However, it does not mean that one manner is
less heinous or wrong than the other. Whether rape is committed by
nonconsensual carnal knowledge of a woman or by insertion of the
penis into the mouth of another person, the damage to the victimÊs
dignity is incalculable. Child sexual abuse in general has been
associated with negative psychological impacts such as trauma,
sustained fearfulness, anxiety, self-destructive behavior, emotional
pain, impaired sense of self, and interpersonal difficulties. Hence,
one experience of sexual abuse should not be trivialized just
because it was committed in a relatively unusual manner.
„The prime purpose of [a] criminal action is to punish the
offender in order to deter him and others from committing the same
or similar offense, to isolate him from society, reform and
rehabilitate him or, in general, to maintain social order.‰ Crimes are
punished as retribution so that society would understand that the
act punished was wrong.
Imposing different penalties for different manners of committing
rape creates a message that one experience of rape is relatively
trivial or less serious than another. It attaches different levels of
wrongfulness to equally degrading acts. Rape, in whatever manner,
is a desecration of a personÊs will and body. In terms of penalties,
treating one manner of committing rape as greater or less in
heinousness than another may be of doubtful constitutionality.
However, the discriminatory treatment of these two acts with the
same result was not raised in this case. Acknowledging that every
presumption must be accorded in favor of accused in criminal cases,
we have no choice but to impose a lesser penalty for rape committed
by insert-
_______________
97 G.R. No. 199402, November 12, 2014, 740 SCRA 179 [Per J.
Leonen, Second Division].
563
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Ricalde vs. People
ing the penis into the mouth of the victim.98 (Citations omitted)
We affirm petitionerÊs conviction but modify the penalty

imposed by the lower court to the penalty under Article III,
Section 5(b) of Republic Act No. 7610 known as the „Special
Protection of Children Against Child Abuse, Exploitation
and Discrimination Act‰:99
SEC. 5. Child Prostitution and Other Sexual Abuse.·

Children, whether male or female, who for money, profit, or any
other consideration or due to the coercion or influence of any
adult, syndicate or group, indulge in sexual intercourse or
lascivious conduct, are deemed to be children exploited in
prostitution and other sexual abuse.
The penalty of reclusion temporal in its medium period to
reclusion perpetua shall be imposed upon the following:
....
(b) Those who commit the act of sexual intercourse or lascivious
conduct with a child exploited in prostitution or subjected to other
sexual abuse: Provided, That when the victim is under twelve (12)
years of age, the perpetrators shall be prosecuted under Article 335,
paragraph 3, for rape and Article 336 of Act No. 3815, as amended,
the Revised Penal Code, for rape or lascivious conduct, as the case
maybe: Provided, That the penalty for lascivious conduct when
the victim is under twelve (12) years of age shall be reclusion
temporal in its medium period. (Emphasis supplied)
The Implementing Rules and Regulations of Republic

Act No. 7610 defines „lascivious conduct‰:
_______________
98 Id.
99 Rep. Act No. 7610 was approved on June 17, 1992.
564

Ricalde vs. People
[T]he 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, whether of the same or opposite sex, with an intent to
abuse, humiliate, harass, degrade, or arouse or gratify the sexual
desire of any person, bestiality, masturbation, lascivious exhibition
of the genitals or pubic area of a person.100
In People v. Chingh,101 the accused was charged with

rape „for inserting his fingers and afterwards his penis into
the private part of his minor victim[.]‰102 The Court of
Appeals found the accused guilty of two counts of rape:
statutory rape and rape through sexual assault.103 This
court modified the penalty imposed for rape through sexual
assault to the penalty provided in Article III, Section 5(b) of
Republic Act No. 7610, discussing as follows:
It is undisputed that at the time of the commission of the sexual

abuse, VVV was ten (10) years old. This calls for the application of
R.A. No. 7610, or „The Special Protection of Children Against Child
Abuse, Exploitation and Discrimination Act,‰ which defines sexual
abuse of children and prescribes the penalty therefor in Section
5(b), Article III, to wit:
....
In this case, the offended party was ten years old at the time of
the commission of the offense. Pursuant to the above quoted
provision of law, Armando was aptly prosecuted under paragraph 2,
Article 266-A of the Revised Penal Code, as amended by R.A. No.
8353, for Rape
_______________
100 See Garingarao v. People, G.R. No. 192760, July 20, 2011, 654
SCRA 243, 254 [Per J. Carpio, Second Division]; See also People v.
Chingh, G.R. No. 178323, March 16, 2011, 645 SCRA 573, 587 [Per J.
Peralta, Second Division].
101 People v. Chingh, id.
102 Id., at p. 577.
103 Id., at p. 580.
565
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Ricalde vs. People
Through Sexual Assault. However, instead of applying the

penalty prescribed therein, which is prisión mayor, considering that
VVV was below 12 years of age, and considering further that
ArmandoÊs act of inserting his finger in VVVÊs private part
undeniably amounted to lascivious conduct, the appropriate
imposable penalty should be that provided in Section 5(b), Article
III of R.A. No. 7610, which is reclusion temporal in its medium
period.
The Court is not unmindful to the fact that the accused
who commits acts of lasciviousness under Article 366, in
relation to Section 5(b), Article III of R.A. No. 7610, suffers
the more severe penalty of reclusion temporal in its medium
period than the one who commits Rape Through Sexual
Assault, which is merely punishable by prisión mayor. This is
undeniably unfair to the child victim. To be sure, it was not the
intention of the framers of R.A. No. 8353 to have disallowed the
applicability of R.A. No. 7610 to sexual abuses committed to
children. Despite the passage of R.A. No. 8353, R.A. No. 7610 is still
good law, which must be applied when the victims are children or
those „persons below eighteen (18) years of age or those over but are
unable to fully take care of themselves or protect themselves from
abuse, neglect, cruelty, exploitation or discrimination because of a
physical or mental disability or condition.‰104 (Emphasis supplied,
citations omitted)
Thus, „for Rape Through Sexual Assault under

paragraph 2, Article 266-A, [the accused Chingh was]
sentenced to suffer the indeterminate penalty of twelve (12)
years, ten (10) months and twenty-one (21) days of
reclusion temporal, as minimum, to fifteen (15) years, six

(6) months, and twenty (20) days of reclusion temporal, as
maximum.‰105
The imposable penalty under Republic Act No. 7610,
Section 5(b) „for lascivious conduct when the victim is
under
_______________
104 Id., at pp. 586-588.

105 Id., at p. 589.
566

Ricalde vs. People
twelve (12) years of age shall be reclusion temporal in its

medium period.‰ This penalty is higher than the imposable
penalty of prisión correccional for acts of lasciviousness
under Article 336 of the Revised Penal Code.
In enacting Republic Act No. 7610, the legislature
intended to impose a higher penalty when the victim is a
child.
The fact that XXX was only 10 years old when the
incident happened was established by his birth certificate,
and this was admitted by the defense.106 His age of 10
years old was alleged in the Information.107 The higher
penalty under Republic Act No. 7610, as discussed in
People v. Chingh, applies in this case.
Having sex with a 10-year-old is child abuse and is
punished by a special law (Republic Act No. 7610). It is a
progression from the Revised Penal Code to provide greater
protection for children. Justice Velasco suggests that this is
not so. He anchors his view on his interpretation that
Republic Act No. 7610 requires a showing that apart from
the actual coerced sexual act on the 10-year-old, the child
must also be exploited by prostitution or by other sexual
acts. This view is inaccurate on grounds of verba legis and
ratione legis.
The first paragraph of Article III, Section 5 of Republic
Act No. 7610 clearly provides that „children . . . who . . .
due to the coercion . . . of any adult . . . indulge in sexual

intercourse . . . are deemed to be children exploited in
prostitution and other sexual abuse.‰ The label „children
exploited in . . . other sexual abuse‰ inheres in a child who
has been the subject of coercion and sexual intercourse.
Thus, paragraph (b) refers to a specification only as to
who is liable and the penalty to be imposed. The person
who engages in sexual intercourse with a child already
coerced is liable.
_______________
106 Rollo, p. 62.

107 Id., at p. 54.
567
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Ricalde vs. People
It does not make sense for the law not to consider rape of
a child as child abuse. The proposal of Justice Velasco
implies that there has to be other acts of a sexual nature
other than the rape itself that will characterize rape as
child abuse. One count of rape is not enough. Child abuse,
in his view, is not yet present with one count of rape.
This is a dangerous calculus which borders on judicial
insensitivity to the purpose of the law. If we adopt his view,
it would amount to our collective official sanction to the
idea that a single act of rape is not debilitating to a child.
That a single act of rape is not a tormenting memory that
will sear into a childÊs memory, frame his or her view of the
world, rob him or her of the trust that will enable him or
her to have full and diverse meaningful interactions with
other human beings. In my view, a single act of sexual
abuse to a child, by law, is already reprehensible. Our
society has expressed that this is conduct which should be
punishable. The purpose and text of the law already punish
that single act as child abuse.
Rape is rape. Rape of a child is clearly, definitely, and
universally child abuse.
Justice Velasco further observes that the right to due
process of the accused will be violated should we impose

the penalty under Republic Act No. 7610. I disagree.
The Information was clear about the facts constitutive of
the offense. The facts constitutive of the offense will
suggest the crime punishable by law. The principle is that
ignorantia legis non excusat. With the facts clearly laid out
in the Information, the law which punishes the offense
should already be clear and the accused put on notice of the
charges against him.
Additionally, there is no argument that the accused was
not represented by counsel. Clear from the records is the
entry and active participation of his lawyer up to and
including this appeal.
568

Ricalde vs. People
On the award of damages, we maintain the amount of

P30,000.00 in favor of XXX as a victim of rape through
sexual assault, consistent with jurisprudence.108
This court has stated that „jurisprudence from 2001 up
to the present yields the information that the prevailing
amount awarded as civil indemnity to victims of simple
rape committed by means other than penile insertion is
P30,000.‰109
This statement considered the prevailing situation in
our jurisprudence where victims of rape are all women.
However, as in this case, men can also become victims of
rape through sexual assault, and this can involve penile
insertion.
WHEREFORE, the Court of AppealsÊ Decision in C.A.-
G.R. CR No. 34387 dated August 28, 2013 is AFFIRMED
with MODIFICATION in that for rape through sexual
assault under Article 266-A, paragraph 2, accused-
appellant Richard Ricalde is sentenced to suffer the
indeterminate penalty of twelve (12) years, ten (10) months
and twenty-one (21) days of reclusion temporal, as
minimum, to fifteen (15) years,
_______________
108 See People v. Garcia, supra note 70 at p. 588; People v. Lomaque,

G.R. No. 189297, June 3, 2013, 697 SCRA 383, 410 [Per J. Del Castillo,
Second Division]; Pielago v. People, supra note 72 at pp. 488 and 489;
People v. Soria, supra note 86 at p. 508.
109 People v. Dominguez, supra note 81 at p. 806, citing People v.
Soriano, 436 Phil. 719, 757; 383 SCRA 676, 699 (2002) [Per Curiam, En
Banc], People v. Palma, 463 Phil. 767, 784; 418 SCRA 365, 378 (2003)
[Per J. Vitug, En Banc], People v. Olaybar, 459 Phil. 114, 129; 412 SCRA
490, 502 (2003) [Per J. Vitug, En Banc], People v. Suyu, 530 Phil. 569,
597; 499 SCRA 177, 204 (2006) [Per J. Callejo, Sr., First Division], People
v. Hermocilla, 554 Phil. 189, 212; 527 SCRA 296, 305 (2007) [Per J.
Ynares-Santiago, Third Division], People v. Fetalino, 552 Phil. 254, 279;
525 SCRA 170, 196 (2007) [Per J. Chico-Nazario, Third Division], People
v. Senieres, 547 Phil. 674, 689; 519 SCRA 13, 29 (2007) [Per J. Tinga,
Second Division], Flordeliz v. People, 628 Phil. 124, 143; 614 SCRA 225
237-238 (2010) [Per J. Nachura, Third Division], People v. Alfonso, G.R.
No. 182094, August 18, 2010, 628 SCRA 431, 452 [Per J. Del Castillo,
First Division].
569
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Ricalde vs. People
six (6) months and twenty (20) days of reclusion

temporal, as maximum. He is ordered to pay the victim
civil indemnity in the amount of P30,000.00 and moral
damages likewise in the amount of P30,000.00, both with
interest at the legal rate of 6% per annum from the date of
finality of this judgment until fully paid.
SO ORDERED.
Carpio (Chairperson), Del Castillo and Mendoza, JJ.,

concur.
Velasco, Jr.,** J., Please see Concurring & Dissenting
Opinion.
CONCURRING AND DISSENTING OPINION
VELASCO, JR., J.:
I fully agree with the ponencia in affirming the finding

of guilt of the accused-petitioner Richard Ricalde (Ricalde)
for rape through sexual assault. However, I also wish to
express my disagreement over the ponenciaÊs holding
regarding the penalty to be imposed on him, as well as its
ruling on which law governs the conviction of the
petitioner.
To recall, the accused was charged with an Information
which reads:
That on or about January 31, 2002, in the Municipality of Sta.

Rosa, Province of Laguna, Philippines, and within the jurisdiction
of this Honorable Court, accused Richard Ricalde, prompted with
lewd design, did then and there willfully, unlawfully, and
feloniously inserting [sic] his penis into the anus of XXX who was
then ten (10)
_______________
* * Designated acting member per S.O. No. 1910 dated January 12,
2015.
570

Ricalde vs. People
years of age against his will and consent, to his damage and
prejudice.
CONTRARY TO LAW.1
An examination of the evidence presented by both

prosecution and accused would show that, indeed, the trial
court correctly convicted the petitioner of the offense
charged. The ponenciaÊs application of Article III, Section
5(b) of Republic Act No. 7610 (R.A. No. 7610),2 however, I
believe, is misplaced. In the first place, such a charge is not
embodied in the Information filed against the accused, and
his conviction for such an offense would result in a
violation of his right to due process and his right to be

informed of the nature and cause of the accusations against
him. The Information plainly alleges rape through sexual
assault, which is a violation of Article 226-A(2) of the
Revised Penal Code. Rightfully then, the petitioner can be
convicted of rape, the following elements of which having
been stated in the Information and proven during trial:
(1) That the offender commits an act of sexual assault;

(2) That the act of sexual assault is committed by any of the
following means:
(a) By inserting his penis into another personÊs mouth or anal
orifice; or
xxxx
(3) That the act of sexual assault is accomplished under any of
the following circumstances:
(a) By using force or intimidation;
(b) When a woman is deprived of reason or otherwise
unconscious.3
_______________
1 Rollo, pp. 32, 54.

2 „Special Protection of Children Against Child Abuse, Exploitation
and Discrimination Act.‰
3 People v. Abello, G.R. No. 151952, March 25, 2009, 582 SCRA 378.
571
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Ricalde vs. People
A violation of R.A. No. 7610, on the other hand, is not

specifically stated in the Information. The Court had, in
previous cases, stated the following elements of child abuse
under Sec. 5(b) of R.A. No. 7610:
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.
3. The child whether male or female, is below 18 years of age.4
While the Information stated that the petitioner

„[inserted] his penis in the anus of XXX‰ and that the
victim „was then 10 years of age,‰ which satisfies the first
and third elements of child abuse under Sec. 5(b) of R.A.
No. 7610, nowhere is it stated that the said act was
performed with a child exploited in prostitution or
subjected to other sexual abuse · the second element of
the offense.
Therefore, even assuming that such element was proven
during trial, the accused can nevertheless claim
constitutional protection, and his conviction will not stand
in light of the constitutionally protected rights of the
accused to due process,5 as well as his right to be informed
of the nature and cause of the accusation against him.6
This Court had long held that each and every element of
the offense must be alleged in the Information. As the
Court reasoned in Noe S. Andaya v. People:
It is fundamental that every element constituting the offense

must be alleged in the information. The main purpose of requiring
the various elements of a crime to be set out in the information is to
enable the accused to
_______________
4 Id.
5 Sec. 1, Article III, 1987 Philippine Constitution.
6 Sec. 14(2), Article III, 1987 Philippine Constitution.
572

Ricalde vs. People
suitably prepare his defense because he is presumed to have no

independent knowledge of the facts that constitute the offense. The
allegations of facts constituting the offense charged are substantial
matters and an accusedÊs right to question his conviction based on
facts not alleged in the information cannot be waived. No matter
how conclusive and convincing the evidence of guilt may be, an

accused cannot be convicted of any offense unless it is charged in
the information on which he is tried or is necessarily included
therein. To convict him of a ground not alleged while he is
concentrating his defense against the ground alleged would plainly
be unfair and underhanded. The rule is that a variance between the
allegation in the information and proof adduced during trial shall
be fatal to the criminal case if it is material and prejudicial to the
accused so much so that it affects his substantial rights.7
I am fully aware that, in the past, the Court had upheld

the convictions of those charged with similarly-worded
Informations under Sec. 5(b) of R.A. No. 7610. In 2005, in
the case of Olivarez v. Court of Appeals,8 this Court said
that „a child is deemed subjected to other sexual abuse
when the child indulges in lascivious conduct under the
coercion or influence of any adult.‰
I believe, however, that the said interpretation is
incorrect, and the Court must reexamine the same. What I
find most enlightening regarding the controversy is the
dissenting opinion offered by our colleague, Justice Antonio
T. Carpio, in Olivarez, where he makes sense of the phrase
„other sexual abuse‰ mentioned in Section 5(b) of R.A. No.
7610. He discussed:
The majority opinion correctly enumerates the essential

elements of the crimes of acts of lasciviousness under Section 5 of
RA 7610. The majority opinion states:
_______________
7 G.R. No. 168486, June 27, 2006, 493 SCRA 539.

8 G.R. No. 163866, July 29, 2005, 465 SCRA 465.
573
VOL. 747, JANUARY 21, 2015 573

Ricalde vs. People
The elements of sexual abuse under Section 5, Article III of R.A.

7610 are as follows:
1. The accused commits the acts of sexual intercourse or

lascivious conduct.
2. The said act is performed with a child exploited in prostitution
or subjected to other sexual abuse.
3. The child, whether male or female, is below 18 years of age.
The majority opinion correctly distinguishes the first element
from the second element. The first element refers to acts of
lasciviousness that the accused performs on the child. The second
element refers to the special circumstance that the „child (is)
exploited in prostitution or subjected to other sexual abuse.‰ This
special circumstance already exists when the accused performs acts
of lasciviousness on the child. In short, the acts of lasciviousness
that the accused performs on the child are separate from the childÊs
exploitation in prostitution or subjection to „other sexual abuse.‰
Under Article 336 of the RPC, the accused performs the acts of
lasciviousness on a child who is neither exploited in prostitution nor
subjected to „other sexual abuse.‰ In contrast, under Section 5 of RA
7610, the accused performs the acts of lasciviousness on a child who
is either exploited in prostitution or subjected to „other sexual
abuse.‰
Section 5 of RA 7610 deals with a situation where the acts of
lasciviousness are committed on a child already either exploited in
prostitution or subjected to „other sexual abuse.‰ Clearly, the acts of
lasciviousness committed on the child are separate and distinct
from the other circumstance · that the child is either exploited in
prostitution or subjected to „other sexual abuse.‰
The phrase „other sexual abuse‰ refers to any sexual abuse other
than the acts of lasciviousness complained of and other than
exploitation in prostitution. Such „other sexual abuse‰ could fall
under acts encom-
574

Ricalde vs. People
passing „[O]bscene publications and indecent shows‰ mentioned

in Section 3(d)(3) of RA 7610.9
I fully subscribe to this reasoning and logic employed by

Justice Carpio in Olivarez. While now, as then, his opinion
remains to be in the minority, as the Court continues to

uphold the convictions under R.A. No. 7610 whenever the
victim is underage or below 18 years of age, I believe it is
high time for the Court to reexamine this doctrine, and,
perhaps, give way to a more level-headed interpretation of
the law, as offered by Justice Carpio in Olivarez.
Given this doubtful interpretation of Sec. 5(b) of R.A.
No. 7610, the Court must uphold the interpretation which
is more beneficial to the accused. Thus, instead of imposing
the higher penalty imposable under R.A. No. 7610, he must
instead be made to suffer the penalty imposable under Art.
266-A of the Revised Penal Code.
A final note I wish to make is the fact that the ponencia
did not discuss whether the issue of the applicability of
R.A. No. 7610 was ever put in issue in the lower court
before or during trial. It seems to me that it is only now,
and only the Court, on its own initiative, deemed that R.A.
No. 7610 is applicable to the case at bar. It appears to me
that in the lower court, as well as in the Court of Appeals,
the only main issue resolved is whether or not the
petitioner is guilty of rape. Thus, the petitioner was never
given the opportunity to defend himself against a charge of
violation of R.A. No. 7610, because, in the first place, it was
never put in issue. The Court cannot now suddenly
determine that the proper offense is R.A. No. 7610 and not
the Revised Penal Code, without giving the petitioner the
chance to be heard and defend himself, especially
considering that R.A. No. 7610 is not only a separate and
distinct offense from rape under the Revised Penal Code,
but also that the former imposes a stiffer penalty than the
latter.
_______________
9 Id., at pp. 487-488.
575
VOL. 747, JANUARY 21, 2015 575

Ricalde vs. People
WHEREFORE, in view of the foregoing, I vote that the
decision of the Court of Appeals dated August 8, 2013 be

affirmed in toto, finding the petitioner guilty of rape
punishable under Article 266-A, paragraph 2 of the Revised
Penal Code.
Judgment affirmed with modification.
Notes.·The gravamen of the crime of rape by sexual

assault is the insertion of the penis into another personÊs
mouth or anal orifice, or any instrument or object, into
another personÊs genital or anal orifice. (People vs.
Crisostomo, 715 SCRA 99 [2014])
Under Article 266-B of the Revised Penal Code, the
penalty for rape by sexual assault is reclusion temporal
when any of the aggravating or qualifying circumstances is
mentioned in said Article is present. (Raga vs. People, 717
SCRA 193 [2014])
··o0o··
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G.R. No. 211002. January 21, 2015. Richard Ricalde, Petitioner, vs. People of The PHILIPPINES, Respondent

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SUPREME COURT REPORTS ANNOTATED VOLUME 747 2/9/20, 5:56 PM

G.R. No. 211002. January 21, 2015.*

RICHARD RICALDE, petitioner, vs. PEOPLE OF THE

Criminal Law; Rape; Rape Through Sexual Assault; Anti-Rape

VOL. 747, JANUARY 21, 2015 543

unconscious; c) By means of fraudulent machination or grave

hereof, shall commit an act of sexual assault by inserting his

544 SUPREME COURT REPORTS ANNOTATED

XXX, then only 10 years old, had no reason to concoct lies

Criminal Law; Rape; Rape Through Sexual Assault; In People

VOL. 747, JANUARY 21, 2015 545

SCRA 620 (2011), considers a womanÊs private organ since most

through sexual assault, and this can involve penile insertion.·This

546 SUPREME COURT REPORTS ANNOTATED

can also become victims of rape through sexual assault, and

Constitutional Law; Criminal Procedure; Right to be Heard;

court before or during trial. It seems to me that it is only now, and

VOL. 747, JANUARY 21, 2015 547

PETITION for review on certiorari of the decision and

Even men can become victims of rape.

AppealsÊ August 28, 2013 Decision3 affirming RicaldeÊs

1 Rep. Act No. 8353 (1997) introduced this new provision.

548 SUPREME COURT REPORTS ANNOTATED

tion for rape through sexual assault and January 15,

That on or about January 31, 2002, in the Municipality of Sta.

Ricalde pleaded not guilty during his arraignment on

4 Id., at pp. 42-43. The Resolution was penned by Associate Justice

Reyes, Jr. and Associate Justice Ramon M. Bato, Jr.

VOL. 747, JANUARY 21, 2015 549

The facts as found by the lower courts follow.

9 Id., at pp. 33 and 55.

550 SUPREME COURT REPORTS ANNOTATED

rillo examined22 XXX and found no signs of recent

WHEREFORE, this Court finds accused Richard Ricalde guilty

22 Id., at p. 55. Dr. Camarillo examined XXX at the Regional Crime

VOL. 747, JANUARY 21, 2015 551

reccional as minimum, to eight (8) years of prisión mayor as

The Court of Appeals in its Decision34 dated August 28,

WHEREFORE, the Decision dated 20 June 2011 of Branch 34 of

ordered to pay the victim civil indemnity in the amount of Thirty

Ricalde filed this Petition praying for his acquittal.36

552 SUPREME COURT REPORTS ANNOTATED

cal evidence „ranks high in [the courtÊs] hierarchy of

inserting his penis inside my anus because I was even able

39 Id., at p. 17, quoting Bank of the Philippine Islands v. Reyes, 568

VOL. 747, JANUARY 21, 2015 553

must consider every circumstance favoring the

554 SUPREME COURT REPORTS ANNOTATED

abuse of a boy by a grown man is fairly uncommon in

inasmuch as the victimÊs testimony alone, if credible, is

VOL. 747, JANUARY 21, 2015 555

Article 266-A. Rape; When and How Committed.·Rape is

1) By a man who shall have carnal knowledge of a woman

Rape under the second paragraph of Article 266-A is also

556 SUPREME COURT REPORTS ANNOTATED

Ricalde vs. People

mouth or anal orifice, or any instrument or object, into

VOL. 747, JANUARY 21, 2015 557

immaturity are generally badges of truth and