CJ Davide’s dissenting in People vs. Salarza (Rape)

Deprivation of reason need not be complete in rape; A woman half asleep cannot give full consent (dissenting opinion of then Associate Justice Hilario G. Davide, Jr. and Associate Justice Florenz Regalado)

People vs. Salarza, Jr.
G.R. No. 117682, August 18, 1997
Bellossillo, J.

Facts: Ari, 30 years old, was a British television and stage actress. One night, during a vacation with her boyfriend and his friends on the beach, she went to her cottage to sleep. At around 2:00 A.M., she felt someone take off her underwear. The room was dark and as she was half-asleep, she did not stop the man from taking off her panties because she thought he was Enrico, her boyfriend. The man removed his briefs, placed himself on top of her, spread her legs, penetrated her and executed push-and-pull movements. Later, the man whispered “[Ari], it’s not Ricky; it’s Jun, I love you.” It was only at that time that she realized that the man was not her boyfriend Enrico but Silvino, Enrico’s friend. She then pushed Silvino aside, cried and became hysterical.
Silvino was charged with rape. Silvino, however, denied the same and claimed that Ari had been flirting with him and was even the one who asked him to make love to her. Silvino averred that he hesitated, thinking of Enrico, but Ari allegedly got mad. Enrico and his friends later ganged up on him and reported him to the police.
The trial court convicted Silvino of rape. The trial court found it unbelievable for Ari to fall for Silvino who was smaller, and not as generously endowed as Enrico.
Decision: The Supreme Court acquitted Silvino. It held that the element of force or intimidation was absent. Silvino’s sexual advances were done with Ari’s consent though she claimed she thought Silvino was her boyfriend. The Supreme Court noted that Silvino did nothing to mislead Ari to think that he was Enrico. He even told her that he was not Enrico.
The Supreme Court blamed Ari for her mistake and her inexcusable imprudence. Ari was not deprived of reason or otherwise unconscious when Silvino had intercourse with her. She was then half-asleep, and not fast asleep. She testified that she woke up to find someone removing her underwear. She knew (hence, she was conscious) when her panties were removed, when her legs were parted, when the man pulled down his pants in preparation for copulation and when the man mounted her.
J. Davide; J. Regalado, dissenting
Chief Justice Davide, then an Associate Justice, and Justice Regalado dissented with the majority and opined that Silvino should be convicted of rape. Chief Justice Davide explained:
“When a woman is ‘deprived of reason’ or is ‘unconscious,’ she is deemed to have ‘no will,’ as distinguished from the first circumstance where force or intimidation is used, in which case her will ‘is nullified or destroyed’, or that it was committed against her will (AQUINO, op. cit., 393). Deprivation of reason need not be complete, as mere mental abnormality or deficiency is enough. (Id., 393-394) The crux of the matter then is the construction and interpretation of the word ‘unconscious.’ I submit that since both ‘being deprived of reason’ and ‘unconscious’ are founded on absence of will to give consent intelligently and freely, the term ‘unconsciousness’, then, should not be tested by a mere physical standard, i.e., whether one is awake or asleep, conscious or alert. Rather, the inquiry should likewise determine whether the victim was fully informed of all considerations so as to make a free and informed decision regarding the grant of consent. It is only through this two-tiered test that a holistic appraisal of consent may be had.”
“In our jurisprudence, carnal knowledge of a sleeping woman is rape (People v. Dayo, 51 Phil. 102 [1927]; People v. Corcino, 53 Phil. 234 [1929]; People v. Caballero, 61 Phil. 900 [1935] and People v. Conde, 322 Phil. 757 [1996]), because in that state the woman is completely unconscious, both physically and mentally. Sleep, being the naturally or artificially induced state of suspension of sensory and motor activity (People v. Conde, supra, at 767), obviously deprives a woman of the ability to consent. However, to repeat, since it is ‘absence or lack of will’ which is the primordial factor in the second circumstance of rape, then I submit that to construe the term ‘unconsciousness’ exclusively in light of physical considerations would be unduly restrictive and fail to heed the gravamen of the offense, i.e., lack of consent.”
Deprivation of reason need not be complete. Mere mental abnormality or deficiency is enough. Justice Davide submits that since both “being deprived of reason” and “unconsciousness” are founded on absence of will to give consent intelligently and freely, the term “unconsciousness” should not be tested by mere physical standards i.e., whether one is awake or asleep, conscious or alert. Rather, the inquiry should likewise determine whether the victim was fully informed of all considerations so as to make a free and informed decision regarding the grant of consent.
Plainly, despite Ari’s awareness of what was being done to her, the question of who was doing it to her was a totally different matter. Her accession to the act was premised on the belief, in good faith, that it was her boyfriend who lay with her in bed. Her failure to ascertain the identity of her partner was a mistake in good faith for which she should not be faulted. Neither should it result in Silvino’s acquittal. It is only when a woman is fully informed that consent may be intelligently given—which was absent in the instant case.

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