MEMORANDUM FOR THE CLIENT

TO: MR. ELMO GARCIA and PETER HERNANDEZ

FROM: HERNANDEZ, JACALNE AND TOMAS LAW FIRM

SUBJECT: DEFENSE FOR COMPLEX CRIME OF FORCIBLE ABDUCTION

WITH RAPE UNDER GIVEN CIRCUMSTANCES

DATE: SEPTEMBER 30, 2017

Statements of Facts

On August 1, 2017 at around 5 o’clock Ms. Adarna texted Mr. Garcia to

pick him up at Masinop St. near the school, the latter agreed

Upon arrival, the latter asked where is his newest boyfriend and Ms.
Adarna replied he went home, he was fetched by his mother and she also said
she is bad trip because they supposed to have sex but Johnny’s mother kept
fetching him at school because her mother think she is bad influence, because
she is a well known slut in their area. Mr. Garcia joke around and said, if you
want let the two of us do it. I knew a place where we can do it. Ms. Adarna
smiled and agreed to Mr. Garcia’s suggestion.

The two had sex in an empty jeepney, and when they are done. Mr.
Tonyo came along in the place and asked if he can also score and without
hesitation Ms. Adarna agreed again.

After having sex with Mr. Garcia and Mr. Tonyo, Ms. Adarna asked the
two for some amount of money that she can used for her jeepney fare, Mr.
Garcia handed a fifty pesos and drop Ms. Adarna in a jeepney stop where she
ride a jeepney on her way home.

Issue

Whether or not, under the above facts, Mr. Garcia and Mr. Hernandez
may be held liable for rape under Republic Act 8353.

Argument

No, Base on the above facts, this is a weak case, shall Ms. Adarna decide
to file a case of rape against Mr. Garcia and Mr. Hernandez because she
does not have sufficient evidence to prove that she was raped and Ms.
Adarna’s credibility is also questionable since she did not reported it or even
told her boyfriend and family, right after the commission of the alleged rape.

In addition, base on the facts, she is a well known slut in the area. And
do sex with different man.

Discussions
 In Revised Penal code of 1930, which is amended by the Anti-Rape Law
of 1997, the rape is defined as follows;

Article 226-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 person’s mouth or anal orifice, or any
instrument or object, into the genital or anal orifice of another person.

In this case there is no force, threat, or intimidation. Therefore there is

no crime of rape. Mr. Garcia and Mr. Hernandez may not be held liable for the
crime of rape.

In People vs. Felimon Patentes G.R. No. 190178 dated February

12,2014. Court states “A conviction in a criminal case must be supported by
proof beyond reasonable doubt, which means a moral certainty that the
accused is guilty; the burden of proof rests upon the prosecution”.

In the case at bar, Ms. Adarna has failed to discharge its burden of
establishing with moral certainty the truthfulness of the charge that Mr. Garcia
and Mr. Hernandez had carnal knowledge of Adarna against her will using
threats, force or intimidation. In the facts given in this case, there is no proof
that Ms. Adarna was rape and this will be the defense of Mr. Garcia in case Ms.
Adarna files a case. Denial and alibi will be the best defense of Mr. Garcia, if
Ms. Adarna doesn’t have any strong evidence to show that Mr. Garcia and Mr.
Tonyo raped her.

In the case of People vs. Judy Salidaga G.R. No. 172323 dated
January 29, 2007, “It is inherent in the crime of rape that the conviction of
an accused invariably depends upon the credibility of the victim as she is
oftentimes the sole witness to the dastardly act. Thus, the rule is that when a
woman claims that she has been raped, she says in effect all that is necessary
to show that rape has been committed and that if her testimony meets the
crucible test of credibility, the accused may be convicted on the basis
thereof. However, the courts are not bound to treat the testimony of the victim
as gospel truth. Judges are duty-bound to subject her testimony to the most
rigid and careful scrutiny lest vital details which could affect the outcome of
the case be overlooked or cast aside”.

Additionally, in People of the Philippines vs. Carlito M. Claro (G.R.

No. 199894, April 5, 2017), penned by Associate Justice Lucas P. Bersamin,
it is further stressed that:

“[I]t is not fair and just too quickly rejects the defense of consensual
sexual intercourse interposed by the accused. To be noted first and foremost is
that he and AAA were adults capable of consenting to the sexual intercourse.
The established circumstances—their having agreed to go on a lovers’ date;
their travelling together a long way from their meeting place on board the
jeepney; their alighting on Rizal Avenue to take a meal together; their walking
together to the motel, and checking in together at the motel without the
complainant manifesting resistance; and their entering the designated room
without protest from her—indicated beyond all doubt that they had consented
to culminate their lovers’ date in bed inside the motel. Although she claimed
that he had held her by the hand and pulled her upstairs, there is no evidence
showing that she resisted in that whole time, or exhibited a reluctance to enter
the motel with him. Instead, she appeared to have walked with him towards
the motel, and to have entered it without hesitation. What she did not do was
eloquent proof of her consent.”

Ms. Adarna is fully aware of what she is doing, she even agreed when she
was asked to have sex with her, she gave her full consent to Mr. Garcia and
Mr, Hernandez without any hesitation like in the case above.

Recommendation

Our defense, in this case is very strong. We recommend that we answer

the complaint that will Ms. Adarna will file.

Closing statement

If you will avail our legal service as your legal adviser and lawyer in this
case, we will be glad to assist you and personally meet you to discuss all the
details regarding your case, as well as the legal fees.

Atty. Del Mark Hernandez

Atty. Jessy Ruth S. Jacalne

Atty. Amalia V. Tomas