Article 266-A of the Revised Penal Code, as amended by Republic Act No. 8353, provides:
Article 266-A. Rape; When And How Committed. ̶ Rape is committed –
1) By a man who 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.
Carnal knowledge of a mental retardate is rape under paragraph 1 of Article 266-A of the Revised Penal Code, as amended by Republic Act No. 8353 because a mental retardate is not capable of giving her consent to a sexual act. Proof of force or intimidation is not necessary, it being sufficient for the State to establish, one, the sexual congress between the accused and the victim, and, two, the mental retardation of the victim.[31] It should no longer be debatable that rape of a mental retardate falls under paragraph 1, b), of Article 266-A, supra, because the provision refers to a rape of a female “deprived of reason,” a phrase that refers to mental abnormality, deficiency or retardation.[32]
Who, then, is a mental retardate within the context of the phrase “deprived of reason” used in the Revised Penal Code?
In People v. Dalandas,[33] the Court renders the following exposition on mental retardation and its various levels, viz:
Mental retardation is a chronic condition present from birth or early childhood and characterized by impaired intellectual functioning measured by standardized tests. It manifests itself in impaired adaptation to the daily demands of the individual’s own social environment. Commonly, a mental retardate exhibits a slow rate of maturation, physical and/or psychological, as well as impaired learning capacity.
Although “mental retardation” is often used interchangeably with “mental deficiency,” the latter term is usually reserved for those without recognizable brain pathology. The degrees of mental retardation according to their level of intellectual function are illustrated, thus:
Mental Retardation
LEVEL DESCRIPTION TERM INTELLIGENCE QUOTIENT
(IQ RANGE)
I Profound Below 20
II Severe 20-35
III Moderate 36-52
IV Mild 53-68
xxxx
The traditional but now obsolescent terms applied to those degrees of mental retardation were (a) idiot, having an IQ of 0 to 19, and a maximum intellectual factor in adult life equivalent to that of the average two-year old child; (b) imbecile by an IQ of 20 to 49 and a maximum intellectual function in adult life equivalent to that of the average seven-year old child; moron or feebleminded, having an IQ of 50 to 69 and a maximum intellectual function in adult life equivalent to that of the average twelve-year old child. Psychiatrists and psychologists apply the term “borderline” intelligence to those with IQ between 70 to 89. In People vs. Palma, we ruled that a person is guilty of rape when he had sexual intercourse with a female who was suffering from a “borderline mental deficiency.” [emphasis supplied]
Considering the findings of psychologist de Guzman to the effect that AAA had the mental age of a six- to seven-year old, an age equated with imbecility under the previous classification, her mental age was even lower than that of a borderline mental deficiency within the context of that term as characterized in People v. Dalandas, supra.[34] As such, Butiong’s carnal knowledge of AAA amounted to rape of a person deprived of reason.
The ability of the female to given rational consent to carnal intercourse determines if carnal knowledge of a mental retardate like AAA is rape. Indeed, the Court has consistently considered carnal knowledge of a female mental retardate with the mental age below 12 years of age as rape of a woman deprived of reason.[35] As the Court aptly stated in People v. Manlapaz,[36] where the victim was a 13-year old girl with the mentality of a five-year-old, that ability to give rational consent was not present, viz:
Sexual intercourse with a woman who is deprived of reason or with a girl who is below twelve years of age is rape because she is incapable of giving rational consent to the carnal intercourse. “Las mujeres privadas de razon, enajenadas, idiotas, imbeciles, son incapaces por su estado mental de apreciar la ofensa que el culpable infiere a su honestidad y, por tanto, incapaces de consentir. Pero no es condicion precisa que la carencia de razon sea completa, basta la abnormalidad o deficiencia mental que solo la disminuye, sin embargo, la jurisprudence es discordante” (II Cuello Calon, Derecho Penal, 14th Ed., 1975, pp. 538-9).
“Comete violacion el que yace mujer que no tiene normalmente desarrolladas sus facultades mentales (19 nov. 1930); aqui esta comprendido el yacimiento con debiles o retrasados mentales (11 mayo 1932, 25 feb. 1948, 27 sept. 1951); constituye este delito el coito con una niña de 15 años enferma de epilepsia genuina que carece de capacidad para conocer el valor de sus actos (2 marzo 1953); el yacimiento con oligofrenicas (mentally deficient persons) 28 abril, 24 octubre, 1956, 19 feb. 1958); xxx” (ibid., note 3).
The same rule prevails in American jurisprudence. “There can be no question but that a copulation with a woman known to be mentally incapable of giving even an imperfect consent is rape” (State vs. Jewett, 192 At. 7).
“An accused is guilty of the crime of rape when it is established that he had sexual intercourse with a female who was mentally incapable of validly consenting to or opposing the carnal act” (65 Am Jur 2nd 766 citing State vs. Prokosch, 152 Minn. 86, 187 NW 971; Cokeley vs. State, 87 Tex. Crim. 256, 220 SW 1099; 31 ALR 3rd 1227, sec. 3).
“In this species of rape neither force upon the part of a man nor resistance upon the part of a woman forms an element of the crime. If, by reason of any mental weakness, she is incapable of legally consenting, resistance is not expected any more than it is in the case of one who has been drugged to unconsciousness, or robbed of judgment by intoxicants. Nor will an apparent consent in such a case avail any more than in the case of a child who may actually consent, but who by law is conclusively held incapable of legal consent. Whether the woman possessed mental capacity sufficient to give legal consent must, saving in exceptional cases, remain a question of fact xxx. It need but be said that legal consent presupposes an intelligence capable of understanding the act, its nature, and possible consequences. This degree of intelligence may exist with an impaired and weakened intellect, or it may not” (People vs. Boggs, 290 Pac. 618 citing People vs. Griffin, 49 Pac. 711 and People vs. Peery, 146 Pac. 44). [emphasis supplied]
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