Dear Atty. Nico,

My sister’s house was robbed last night. Based on the footages of the closed-circuit television (CCTV), the perpetrator broke in through the window of her 16-year-old daughter’s room while she and her husband were sound asleep in the other room.

He was able to obtain the 32” flat screen TV as well as the Nintendo Switch 2 console of my niece. As he was about to make his escape, he managed to execute his lewd designs over my niece by pulling down his pants and making her do a felatio. This act woke my sister and she began to scream for help.

Eventually, the perpetrator was apprehended and was turned over to the police authorities.

What criminal action can my sister file against the said person to bring justice to what happened?

Thank you for your time.

Paul

Dear Paul,

I would advise that you file an action for two separate crimes of robbery and sexual assault against the accused.

In the case of People of the Philippines v Glenn Barrera, the Supreme Court explained that the special complex crime of Robbery with Rape, which imposes a harsher penalty, should not be extended to include sexual assault.

The legislature intended to maintain the dichotomy between rape through sexual intercourse and sexual assault; the former should be treated more severely than the latter. Committed by “inserting penis into another person’s mouth or anal orifice, or any instrument or object, into the genital or anal orifice of another person” against the victim’s will, “sexual assault” has also been called “gender-free rape” or “object rape.”

However, the term “rape by sexual assault” is a misnomer, as it goes against the traditional concept of rape, which is carnal knowledge of a woman without her consent or against her will.

Compared to sexual assault, rape is severely penalized because it may lead to unwanted procreation; or to paraphrase the words of the legislators, it will put an outsider into the woman who would bear a child, or to the family, if she is married.

The crime of robbery with rape is a special complex crime penalized by Article 294 of the Revised Penal Code (RPC), as amended by Section 9 of Republic Act (RA) 7659. For a successful prosecution of the said crime, the following elements must be established beyond reasonable doubt: a) the taking of personal property is committed with violence or intimidation against persons; b) the property taken belongs to another; c) the taking is done with intent to gain or animus lucrandi; and d) the robbery is accompanied by rape. In robbery with rape, the true intent of the accused must be to take, with intent to gain, the property of another; rape must be committed only as an accompanying crime.

Article 294 does not distinguish when rape must be committed, for as long as it is contemporaneous with the commission of robbery.

RA 7659, insofar as it imposes the penalty of reclusion perpetua to death for the special complex crime of robbery with rape, is bereft of any statement to suggest that it contemplates any and all forms of rape which may subsequently be defined.

Thus, the law which imposes a harsher penalty should not be extended to include sexual assault, which was recognized as rape only after its passage.

In view of the foregoing jurisprudence as well as facts stated above, the accused may only be charged with two separate crimes of robbery and sexual assault. There is no question that there was an incident of robbery as the perpetrator broke in through the window to nefariously gain the TV unit as well as the video game console of your niece.

On the other hand, the act of felatio can only be considered as a sexual assault, based on the elements stated above.

Atty. Nico A. Antonio