G.R. No. 126921 , August 28, 1998.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JOSE MORENO y CASTOR, accused-appellant.

FACTS

The case involves a rape committed on September 29, 1993, governed by Article 335 of the Revised Penal Code prior to its amendment by R.A. No. 7659 . The information charged the accused-appellant with rape under the first circumstance of Article 335 (by using force or intimidation). The evidence established that the victim was an imbecile with the mental age of a six-year-old child. The record does not show that the accused-appellant objected to the presentation of evidence regarding the victim’s mental condition.

ISSUE

Whether the accused-appellant may be validly convicted of rape under either the second (when the woman is deprived of reason or otherwise unconscious) or third (when the woman is under twelve years of age or is demented) circumstance provided in Article 335 of the Revised Penal Code, even though the information charged him only with rape under the first circumstance.

RULING

Yes. The accused-appellant’s failure to object to the presentation of evidence establishing the victim’s mental condition (as an imbecile with a mental age of a six-year-old) constituted a waiver of his constitutional right to be informed of the nature and cause of the accusation. This Court has recognized waivers of constitutional rights in previous cases. Therefore, the accused-appellant can be convicted of the crime charged through either the second or third circumstance of committing rape. It is settled that carnal knowledge of an imbecile or retardate with a mental age below that of a woman less than twelve years old constitutes rape under the second circumstance (as being deprived of reason) or is of the same category as a woman under twelve years of age under the third circumstance. The separate opinion clarifies that reliance on certain cited cases is inapposite and distinguishes the holding in People v. Rosare, noting that the statement therein that the sexual act itself constitutes force in such cases is too sweeping and should be considered obiter. The more acceptable pronouncement is that the victim’s mental condition deprives her of reason to make any effective resistance, making the act possible in the same way as when force overcomes active resistance.