When irreversibility of death imposition becomes tragedy

ONE OF the much publicized “platforms” of a “presidentiable”—the extrajudicial execution of criminal elements—reminds me of the controversy over the death penalty. In Leo Echegaray vs Secretary of Justice (297 SCRA 763), the judgment of conviction in GR No. 117427 (1997) against the accused-appellant for rape under Republic Act No. 7659 (the Death Penalty Law) was affirmed and ultimately paved the way for his execution by lethal injection.

As a former regional trial court judge and criminal law professor, it is my humble opinion that in imposing the supreme penalty of death upon Echegaray, the high court, with due respect, may have erred when it found the two qualifying circumstances of minority and relationship in attendance.

The accusatory portion of the complaint alleged, among others, that “the accused xxx have carnal knowledge of the undersigned complainant, his daughter, a minor, 10 years of age, all against her will and without her consent xxx.” In connection hereto it is appropriate to cite the pertinent provision of Section 11, RA 7659, which provides the death penalty for rape:

“1. When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, stepparent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim.”

There was no doubt that the victim then was below 18 years old and therefore she was a minor. However, the findings as to the other circumstance was rather misplaced for being without factual and legal basis. Note that the tribunal brushed aside the assertion of the accused that he was neither father, stepfather or grandfather of the victim by pointing out his admission that he was a “confirmed lover of victim Rodessa’s mother” and thus he “falls squarely under the term common-law spouse of the parent of the victim.”

Further, it was noted that the convict had treated the victim as his real daughter who used the surname of accused. Moreover, it was stated that “the fact that 10-year-old Rodessa referred to accused-appellant as ‘Papa’ is reason enough to conclude that accused-appellant is either the father or stepfather of Rodessa.” Be that as it may, what made the situation appalling is that the complaint did not allege the qualifying circumstance of filial or common-law relationship between Echegaray and the victim.

Therefore, the conclusion upon which the conviction of rape was based runs counter to settled jurisprudence—that where the qualifying circumstance of relationship is not properly pleaded, the accused should be convicted only of statutory rape under the Revised Penal Code, which carries the penalty of reclusion perpetua, and that to be appreciated as special qualifying circumstances, minority and the special relationship must both be pleaded and proven. In other words, the penalty imposable was reclusion perpetua, not death.

Unfortunately, one can only lament that Echegaray can never be released on parole and neither can he be brought to life again. All because of the intervention of a human factor.

—CESAR M. SOLIS, Millora Solis & Associates Law Offices, [email protected]