GR 123164; (February, 2000) (Digest)
G.R. No. 123164 February 18, 2000
NICANOR DULLA, petitioner, vs. COURT OF APPEALS and ANDREA ORTEGA, represented by ILUMINADA BELTRAN, respondents.
FACTS
Petitioner Nicanor Dulla was charged with the rape of his three-year-old niece, Andrea Ortega. The information alleged that on February 2, 1993, he willfully had carnal knowledge of the child. The prosecution evidence showed that Andrea came home crying with bruises and told her guardian that her uncle touched her private part, demonstrating a pumping motion. A medical examination revealed physical injuries but an intact hymen. At trial, Andrea testified that petitioner fondled her and showed her his penis while they were both lying down, but she was wearing panties at the time. Petitioner denied the accusations, claiming the child was coached.
ISSUE
Whether the Court of Appeals erred in affirming petitioner’s conviction for acts of lasciviousness instead of rape.
RULING
The Supreme Court affirmed the conviction for acts of lasciviousness but modified the penalty. The trial court correctly held that the evidence did not establish rape, as the child’s intact hymen and the presence of her panty during the incident negated any penetration, an essential element of consummated rape. However, the acts described—fondling, exposing himself, and making pumping motions on top of the child—constituted lascivious conduct under Article 336 of the Revised Penal Code. The Court upheld the competency of the three-year-old victim as a witness, noting her ability to communicate her experience with a child’s simplicity, which lent credibility to her account. The penalty was imposed under Republic Act No. 7610 (Special Protection of Children Against Abuse). The proper penalty for acts of lasciviousness under Section 5(b) when the victim is under twelve is reclusion temporal in its medium period. Applying the Indeterminate Sentence Law, the Supreme Court modified the penalty to an indeterminate sentence of twelve years and one day of reclusion temporal, as minimum, to fifteen years, six months, and twenty days of reclusion temporal, as maximum.