Republic Act No.

7610             June 17, 1992

AN ACT PROVIDING FOR STRONGER DETERRENCE AND SPECIAL PROTECTION

AGAINST CHILD ABUSE, EXPLOITATION AND DISCRIMINATION, AND FOR OTHER
PURPOSES

Be it enacted by the Senate and House of Representatives of the Philippines in Congress

assembled:

ARTICLE I
Title, Policy, Principles and Definitions of Terms

Section 1. Title. – This Act shall be known as the "Special Protection of Children Against
Abuse, Exploitation and Discrimination Act."

Section 2. Declaration of State Policy and Principles. – It is hereby declared to be the

policy of the State to provide special protection to children from all firms of abuse, neglect,
cruelty exploitation and discrimination and other conditions, prejudicial their development;
provide sanctions for their commission and carry out a program for prevention and deterrence
of and crisis intervention in situations of child abuse, exploitation and discrimination. The
State shall intervene on behalf of the child when the parent, guardian, teacher or person
having care or custody of the child fails or is unable to protect the child against abuse,
exploitation and discrimination or when such acts against the child are committed by the said
parent, guardian, teacher or person having care and custody of the same.1awphi1@alf

It shall be the policy of the State to protect and rehabilitate children gravely threatened or
endangered by circumstances which affect or will affect their survival and normal
development and over which they have no control.

The best interests of children shall be the paramount consideration in all actions concerning
them, whether undertaken by public or private social welfare institutions, courts of law,
administrative authorities, and legislative bodies, consistent with the principle of First Call for
Children as enunciated in the United Nations Convention of the Rights of the Child. Every
effort shall be exerted to promote the welfare of children and enhance their opportunities for a
useful and happy life.

Section 3. Definition of Terms. –

(a) "Children" refers to person below eighteen (18) years of age or those over but are unable
to fully take care of themselves or protect themselves from abuse, neglect, cruelty,
exploitation or discrimination because of a physical or mental disability or condition;

(b) "Child abuse" refers to the maltreatment, whether habitual or not, of the child which
includes any of the following:

(1) Psychological and physical abuse, neglect, cruelty, sexual abuse and emotional
maltreatment;

(2) Any act by deeds or words which debases, degrades or demeans the intrinsic worth and
dignity of a child as a human being;

(3) Unreasonable deprivation of his basic needs for survival, such as food and shelter; or

(4) Failure to immediately give medical treatment to an injured child resulting in serious
impairment of his growth and development or in his permanent incapacity or death.
(c) "Circumstances which gravely threaten or endanger the survival and normal development
of children" include, but are not limited to, the following;

(1) Being in a community where there is armed conflict or being affected by armed conflict-
related activities;

(2) Working under conditions hazardous to life, safety and normal which unduly interfere with
their normal development;

(3) Living in or fending for themselves in the streets of urban or rural areas without the care of
parents or a guardian or basic services needed for a good quality of life;

(4) Being a member of a indigenous cultural community and/or living under conditions of
extreme poverty or in an area which is underdeveloped and/or lacks or has inadequate
access to basic services needed for a good quality of life;

(5) Being a victim of a man-made or natural disaster or calamity; or

(6) Circumstances analogous to those abovestated which endanger the life, safety or normal
development of children.

(d) "Comprehensive program against child abuse, exploitation and discrimination" refers to
the coordinated program of services and facilities to protected children against:

(1) Child Prostitution and other sexual abuse;

(2) Child trafficking;

(3) Obscene publications and indecent shows;

(4) Other acts of abuses; and

(5) Circumstances which threaten or endanger the survival and normal development of
children.1awphi1Ÿ

ARTICLE II
Program on Child Abuse, Exploitation and Discrimination

Section 4. Formulation of the Program. – There shall be a comprehensive program to be

formulated, by the Department of Justice and the Department of Social Welfare and
Development in coordination with other government agencies and private sector concerned,
within one (1) year from the effectivity of this Act, to protect children against child prostitution
and other sexual abuse; child trafficking, obscene publications and indecent shows; other acts
of abuse; and circumstances which endanger child survival and normal development.

ARTICLE III
Child Prostitution and Other Sexual Abuse

Section 5. Child Prostitution and Other Sexual Abuse. – Children, whether male or
female, who for money, profit, or any other consideration or due to the coercion or influence of
any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed
to be children exploited in prostitution and other sexual abuse.

The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed
upon the following:
(a) Those who engage in or promote, facilitate or induce child prostitution which include, but
are not limited to, the following:

(1) Acting as a procurer of a child prostitute;

(2) Inducing a person to be a client of a child prostitute by means of written or oral

advertisements or other similar means;

(3) Taking advantage of influence or relationship to procure a child as prostitute;

(4) Threatening or using violence towards a child to engage him as a prostitute; or

(5) Giving monetary consideration goods or other pecuniary benefit to a child with intent to
engage such child in prostitution.

(b) Those who commit the act of sexual intercourse of lascivious conduct with a child
exploited in prostitution or subject to other sexual abuse; Provided, That when the victims is
under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335,
paragraph 3, for rape and Article 336 of Act No. 3815, as amended, the Revised Penal Code,
for rape or lascivious conduct, as the case may be: Provided, That the penalty for lascivious
conduct when the victim is under twelve (12) years of age shall be reclusion temporal in its
medium period; and

(c) Those who derive profit or advantage therefrom, whether as manager or owner of the
establishment where the prostitution takes place, or of the sauna, disco, bar, resort, place of
entertainment or establishment serving as a cover or which engages in prostitution in addition
to the activity for which the license has been issued to said establishment.

Section 6. Attempt To Commit Child Prostitution. – There is an attempt to commit child

prostitution under Section 5, paragraph (a) hereof when any person who, not being a relative
of a child, is found alone with the said child inside the room or cubicle of a house, an inn,
hotel, motel, pension house, apartelle or other similar establishments, vessel, vehicle or any
other hidden or secluded area under circumstances which would lead a reasonable person to
believe that the child is about to be exploited in prostitution and other sexual abuse.

There is also an attempt to commit child prostitution, under paragraph (b) of Section 5 hereof
when any person is receiving services from a child in a sauna parlor or bath, massage clinic,
health club and other similar establishments. A penalty lower by two (2) degrees than that
prescribed for the consummated felony under Section 5 hereof shall be imposed upon the
principals of the attempt to commit the crime of child prostitution under this Act, or, in the
proper case, under the Revised Penal Code.

ARTICLE IV
Child Trafficking

Section 7. Child Trafficking. – Any person who shall engage in trading and dealing with
children including, but not limited to, the act of buying and selling of a child for money, or for
any other consideration, or barter, shall suffer the penalty of reclusion temporal to reclusion
perpetua. The penalty shall be imposed in its maximum period when the victim is under
twelve (12) years of age.

Section 8. Attempt to Commit Child Trafficking. – There is an attempt to commit child

trafficking under Section 7 of this Act:1awphi1@alf

(a) When a child travels alone to a foreign country without valid reason therefor and without
clearance issued by the Department of Social Welfare and Development or written permit or
justification from the child's parents or legal guardian;
(c) When a person, agency, establishment or child-caring institution recruits women or
couples to bear children for the purpose of child trafficking; or

(d) When a doctor, hospital or clinic official or employee, nurse, midwife, local civil registrar or
any other person simulates birth for the purpose of child trafficking; or

(e) When a person engages in the act of finding children among low-income families,
hospitals, clinics, nurseries, day-care centers, or other child-during institutions who can be
offered for the purpose of child trafficking.

A penalty lower two (2) degrees than that prescribed for the consummated felony under
Section 7 hereof shall be imposed upon the principals of the attempt to commit child
trafficking under this Act.

ARTICLE V
Obscene Publications and Indecent Shows

Section 9. Obscene Publications and Indecent Shows. – Any person who shall hire,
employ, use, persuade, induce or coerce a child to perform in obscene exhibitions and
indecent shows, whether live or in video, or model in obscene publications or pornographic
materials or to sell or distribute the said materials shall suffer the penalty of prision mayor in
its medium period.

If the child used as a performer, subject or seller/distributor is below twelve (12) years of age,
the penalty shall be imposed in its maximum period.

Any ascendant, guardian, or person entrusted in any capacity with the care of a child who
shall cause and/or allow such child to be employed or to participate in an obscene play,
scene, act, movie or show or in any other acts covered by this section shall suffer the penalty
of prision mayor in its medium period.

ARTICLE VI
Other Acts of Abuse

Section 10. Other Acts of Neglect, Abuse, Cruelty or Exploitation and Other Conditions
Prejudicial to the Child's Development. –

(a) Any person who shall commit any other acts of child abuse, cruelty or exploitation or to be
responsible for other conditions prejudicial to the child's development including those covered
by Article 59 of Presidential Decree No. 603, as amended, but not covered by the Revised
Penal Code, as amended, shall suffer the penalty of prision mayor in its minimum period.

(b) Any person who shall keep or have in his company a minor, twelve (12) years or under or
who in ten (10) years or more his junior in any public or private place, hotel, motel, beer joint,
discotheque, cabaret, pension house, sauna or massage parlor, beach and/or other tourist
resort or similar places shall suffer the penalty of prision mayor in its maximum period and a
fine of not less than Fifty thousand pesos (P50,000): Provided, That this provision shall not
apply to any person who is related within the fourth degree of consanguinity or affinity or any
bond recognized by law, local custom and tradition or acts in the performance of a social,
moral or legal duty.

(c) Any person who shall induce, deliver or offer a minor to any one prohibited by this Act to
keep or have in his company a minor as provided in the preceding paragraph shall suffer the
penalty of prision mayor in its medium period and a fine of not less than Forty thousand pesos
(P40,000); Provided, however, That should the perpetrator be an ascendant, stepparent or
guardian of the minor, the penalty to be imposed shall be prision mayor in its maximum
period, a fine of not less than Fifty thousand pesos (P50,000), and the loss of parental
authority over the minor.
(d) Any person, owner, manager or one entrusted with the operation of any public or private
place of accommodation, whether for occupancy, food, drink or otherwise, including
residential places, who allows any person to take along with him to such place or places any
minor herein described shall be imposed a penalty of prision mayor in its medium period and
a fine of not less than Fifty thousand pesos (P50,000), and the loss of the license to operate
such a place or establishment.

(e) Any person who shall use, coerce, force or intimidate a street child or any other child to;

(1) Beg or use begging as a means of living;

(2) Act as conduit or middlemen in drug trafficking or pushing; or

(3) Conduct any illegal activities, shall suffer the penalty of prision correccional in its medium
period to reclusion perpetua.

For purposes of this Act, the penalty for the commission of acts punishable under Articles
248, 249, 262, paragraph 2, and 263, paragraph 1 of Act No. 3815, as amended, the Revised
Penal Code, for the crimes of murder, homicide, other intentional mutilation, and serious
physical injuries, respectively, shall be reclusion perpetua when the victim is under twelve
(12) years of age. The penalty for the commission of acts punishable under Article 337, 339,
340 and 341 of Act No. 3815, as amended, the Revised Penal Code, for the crimes of
qualified seduction, acts of lasciviousness with the consent of the offended party, corruption
of minors, and white slave trade, respectively, shall be one (1) degree higher than that
imposed by law when the victim is under twelve (12) years age.

The victim of the acts committed under this section shall be entrusted to the care of the
Department of Social Welfare and Development.

ARTICLE VII
Sanctions for Establishments or Enterprises

Section 11. Sanctions of Establishments or Enterprises which Promote, Facilitate, or

Conduct Activities Constituting Child Prostitution and Other Sexual Abuse, Child
Trafficking, Obscene Publications and Indecent Shows, and Other Acts of Abuse. – All
establishments and enterprises which promote or facilitate child prostitution and other sexual
abuse, child trafficking, obscene publications and indecent shows, and other acts of abuse
shall be immediately closed and their authority or license to operate cancelled, without
prejudice to the owner or manager thereof being prosecuted under this Act and/or the
Revised Penal Code, as amended, or special laws. A sign with the words "off limits" shall be
conspicuously displayed outside the establishments or enterprises by the Department of
Social Welfare and Development for such period which shall not be less than one (1) year, as
the Department may determine. The unauthorized removal of such sign shall be punishable
by prision correccional.

An establishment shall be deemed to promote or facilitate child prostitution and other sexual
abuse, child trafficking, obscene publications and indecent shows, and other acts of abuse if
the acts constituting the same occur in the premises of said establishment under this Act or in
violation of the Revised Penal Code, as amended. An enterprise such as a sauna, travel
agency, or recruitment agency which: promotes the aforementioned acts as part of a tour for
foreign tourists; exhibits children in a lewd or indecent show; provides child masseurs for
adults of the same or opposite sex and said services include any lascivious conduct with the
customers; or solicits children or activities constituting the aforementioned acts shall be
deemed to have committed the acts penalized herein.
 ARTICLE VIII
Working Children

Section 12. Employment of Children. – Children below fifteen (15) years of age may be
employed except:

(1) When a child works directly under the sole responsibility of his parents or legal guardian
and where only members of the employer's family are employed: Provided, however, That his
employment neither endangers his life, safety and health and morals, nor impairs his normal
development: Provided, further, That the parent or legal guardian shall provide the said minor
child with the prescribed primary and/or secondary education; or

(2) When a child's employment or participation in public & entertainment or information

through cinema, theater, radio or television is essential: Provided, The employment contract
concluded by the child's parent or guardian, with the express agreement of the child
concerned, if possible, and the approval of the Department of Labor and Employment:
Provided, That the following requirements in all instances are strictly complied with:

(a) The employer shall ensure the protection, health, safety and morals of the child;

(b) the employer shall institute measures to prevent the child's exploitation or discrimination
taking into account the system and level of remuneration, and the duration and arrangement
of working time; and;

(c) The employer shall formulate and implement, subject to the approval and supervision of
competent authorities, a continuing program for training and skill acquisition of the child.

In the above exceptional cases where any such child may be employed, the employer shall
first secure, before engaging such child, a work permit from the Department of Labor and
Employment which shall ensure observance of the above requirement.

The Department of Labor Employment shall promulgate rules and regulations necessary for
the effective implementation of this Section.

Section 13. Non-formal Education for Working Children. – The Department of Education,

Culture and Sports shall promulgate a course design under its non-formal education program
aimed at promoting the intellectual, moral and vocational efficiency of working children who
have not undergone or finished elementary or secondary education. Such course design shall
integrate the learning process deemed most effective under given circumstances.

Section 14. Prohibition on the Employment of Children in Certain Advertisements. – No

person shall employ child models in all commercials or advertisements promoting alcoholic
beverages, intoxicating drinks, tobacco and its byproducts and violence.

Section 15. Duty of Employer. – Every employer shall comply with the duties provided for in
Articles 108 and 109 of Presidential Decree No. 603.

Section 16. Penalties. – Any person who shall violate any provision of this Article shall suffer
the penalty of a fine of not less than One thousand pesos (P1,000) but not more than Ten
thousand pesos (P10,000) or imprisonment of not less than three (3) months but not more
than three (3) years, or both at the discretion of the court; Provided, That, in case of repeated
violations of the provisions of this Article, the offender's license to operate shall be revoked.
 ARTICLE IX
Children of Indigenous Cultural Communities

Section 17. Survival, Protection and Development. – In addition to the rights guaranteed to

children under this Act and other existing laws, children of indigenous cultural communities
shall be entitled to protection, survival and development consistent with the customs and
traditions of their respective communities.

Section 18. System of and Access to Education. – The Department of Education, Culture

and Sports shall develop and institute an alternative system of education for children of
indigenous cultural communities which culture-specific and relevant to the needs of and the
existing situation in their communities. The Department of Education, Culture and Sports shall
also accredit and support non-formal but functional indigenous educational programs
conducted by non-government organizations in said communities.

Section 19. Health and Nutrition. – The delivery of basic social services in health and
nutrition to children of indigenous cultural communities shall be given priority by all
government agencies concerned. Hospitals and other health institution shall ensure that
children of indigenous cultural communities are given equal attention. In the provision of
health and nutrition services to children of indigenous cultural communities, indigenous health
practices shall be respected and recognized.

Section 20. Discrimination. – Children of indigenous cultural communities shall not be

subjected to any and all forms of discrimination.

Any person who discriminate against children of indigenous cultural communities shall suffer
a penalty of arresto mayor in its maximum period and a fine of not less than Five thousand
pesos (P5,000) more than Ten thousand pesos (P10,000).

Section 21. Participation. – Indigenous cultural communities, through their duly-designated

or appointed representatives shall be involved in planning, decision-making implementation,
and evaluation of all government programs affecting children of indigenous cultural
communities. Indigenous institution shall also be recognized and respected.

ARTICLE X
Children in Situations of Armed Conflict

Section 22. Children as Zones of Peace. – Children are hereby declared as Zones of

Peace. It shall be the responsibility of the State and all other sectors concerned to resolve
armed conflicts in order to promote the goal of children as zones of peace. To attain this
objective, the following policies shall be observed.

(a) Children shall not be the object of attack and shall be entitled to special respect. They
shall be protected from any form of threat, assault, torture or other cruel, inhumane or
degrading treatment;

(b) Children shall not be recruited to become members of the Armed Forces of the Philippines
of its civilian units or other armed groups, nor be allowed to take part in the fighting, or used
as guides, couriers, or spies;

(c) Delivery of basic social services such as education, primary health and emergency relief
services shall be kept unhampered;

(d) The safety and protection of those who provide services including those involved in fact-
finding missions from both government and non-government institutions shall be ensured.
They shall not be subjected to undue harassment in the performance of their work;
(e) Public infrastructure such as schools, hospitals and rural health units shall not be utilized
for military purposes such as command posts, barracks, detachments, and supply depots;
and

(f) All appropriate steps shall be taken to facilitate the reunion of families temporarily
separated due to armed conflict.

Section 23. Evacuation of Children During Armed Conflict. – Children shall be given

priority during evacuation as a result of armed conflict. Existing community organizations shall
be tapped to look after the safety and well-being of children during evacuation operations.
Measures shall be taken to ensure that children evacuated are accompanied by persons
responsible for their safety and well-being.

Section 24. Family Life and Temporary Shelter. – Whenever possible, members of the
same family shall be housed in the same premises and given separate accommodation from
other evacuees and provided with facilities to lead a normal family life. In places of temporary
shelter, expectant and nursing mothers and children shall be given additional food in
proportion to their physiological needs. Whenever feasible, children shall be given
opportunities for physical exercise, sports and outdoor games.

Section 25. Rights of Children Arrested for Reasons Related to Armed Conflict. – Any
child who has been arrested for reasons related to armed conflict, either as combatant,
courier, guide or spy is entitled to the following rights;

(a) Separate detention from adults except where families are accommodated as family units;

(b) Immediate free legal assistance;

(c) Immediate notice of such arrest to the parents or guardians of the child; and

(d) Release of the child on recognizance within twenty-four (24) hours to the custody of the
Department of Social Welfare and Development or any responsible member of the community
as determined by the court.

If after hearing the evidence in the proper proceedings the court should find that the aforesaid
child committed the acts charged against him, the court shall determine the imposable
penalty, including any civil liability chargeable against him. However, instead of pronouncing
judgment of conviction, the court shall suspend all further proceedings and shall commit such
child to the custody or care of the Department of Social Welfare and Development or to any
training institution operated by the Government, or duly-licensed agencies or any other
responsible person, until he has had reached eighteen (18) years of age or, for a shorter
period as the court may deem proper, after considering the reports and recommendations of
the Department of Social Welfare and Development or the agency or responsible individual
under whose care he has been committed.

The aforesaid child shall subject to visitation and supervision by a representative of the
Department of Social Welfare and Development or any duly-licensed agency or such other
officer as the court may designate subject to such conditions as it may prescribe.

The aforesaid child whose sentence is suspended can appeal from the order of the court in
the same manner as appeals in criminal cases.

Section 26. Monitoring and Reporting of Children in Situations of Armed Conflict. – The

chairman of the barangay affected by the armed conflict shall submit the names of children
residing in said barangay to the municipal social welfare and development officer within
twenty-four (24) hours from the occurrence of the armed conflict.
 ARTICLE XI
Remedial Procedures

Section 27. Who May File a Complaint. – Complaints on cases of unlawful acts committed
against the children as enumerated herein may be filed by the following:

(a) Offended party;

(b) Parents or guardians;

(c) Ascendant or collateral relative within the third degree of consanguinity;1awphi1@ITC

(d) Officer, social worker or representative of a licensed child-caring institution;

(e) Officer or social worker of the Department of Social Welfare and Development;

(f) Barangay chairman; or

(g) At least three (3) concerned responsible citizens where the violation occurred.

Section 28. Protective Custody of the Child. – The offended party shall be immediately
placed under the protective custody of the Department of Social Welfare and Development
pursuant to Executive Order No. 56, series of 1986. In the regular performance of this
function, the officer of the Department of Social Welfare and Development shall be free from
any administrative, civil or criminal liability. Custody proceedings shall be in accordance with
the provisions of Presidential Decree No. 603.

Section 29. Confidentiality. – At the instance of the offended party, his name may be
withheld from the public until the court acquires jurisdiction over the case.

It shall be unlawful for any editor, publisher, and reporter or columnist in case of printed
materials, announcer or producer in case of television and radio broadcasting, producer and
director of the film in case of the movie industry, to cause undue and sensationalized publicity
of any case of violation of this Act which results in the moral degradation and suffering of the
offended party.Lawphi1@alf

Section 30. Special Court Proceedings. – Cases involving violations of this Act shall be
heard in the chambers of the judge of the Regional Trial Court duly designated as Juvenile
and Domestic Court.

Any provision of existing law to the contrary notwithstanding and with the exception of habeas
corpus, election cases, and cases involving detention prisoners and persons covered by
Republic Act No. 4908, all courts shall give preference to the hearing or disposition of cases
involving violations of this Act.

ARTICLE XII
Common Penal Provisions

Section 31. Common Penal Provisions. –

(a) The penalty provided under this Act shall be imposed in its maximum period if the offender
has been previously convicted under this Act;

(b) When the offender is a corporation, partnership or association, the officer or employee
thereof who is responsible for the violation of this Act shall suffer the penalty imposed in its
maximum period;
(c) The penalty provided herein shall be imposed in its maximum period when the perpetrator
is an ascendant, parent guardian, stepparent or collateral relative within the second degree of
consanguinity or affinity, or a manager or owner of an establishment which has no license to
operate or its license has expired or has been revoked;

(d) When the offender is a foreigner, he shall be deported immediately after service of
sentence and forever barred from entry to the country;

(e) The penalty provided for in this Act shall be imposed in its maximum period if the offender
is a public officer or employee: Provided, however, That if the penalty imposed is reclusion
perpetua or reclusion temporal, then the penalty of perpetual or temporary absolute
disqualification shall also be imposed: Provided, finally, That if the penalty imposed is prision
correccional or arresto mayor, the penalty of suspension shall also be imposed; and

(f) A fine to be determined by the court shall be imposed and administered as a cash fund by
the Department of Social Welfare and Development and disbursed for the rehabilitation of
each child victim, or any immediate member of his family if the latter is the perpetrator of the
offense.

ARTICLE XIII
Final Provisions

Section 32. Rules and Regulations. – Unless otherwise provided in this Act, the Department
of Justice, in coordination with the Department of Social Welfare and Development, shall
promulgate rules and regulations of the effective implementation of this Act.

Such rules and regulations shall take effect upon their publication in two (2) national
newspapers of general circulation.

Section 33. Appropriations. – The amount necessary to carry out the provisions of this Act
is hereby authorized to be appropriated in the General Appropriations Act of the year
following its enactment into law and thereafter.

Section 34. Separability Clause. – If any provision of this Act is declared invalid or

unconstitutional, the remaining provisions not affected thereby shall continue in full force and
effect.

Section 35. Repealing Clause. – All laws, decrees, or rules inconsistent with the provisions
of this Acts are hereby repealed or modified accordingly.

Section 36. Effectivity Clause. – This Act shall take effect upon completion of its publication
in at least two (2) national newspapers of general circulation.

Approved: June 17, 1992.lawphi1Ÿ

 CASES

A. STATE POLICIES FOR CHILDREN

G.R. No. 164733               September 21, 2007

MICHAEL JOHN Z. MALTO, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

CORONA, J.:

Whereas, mankind owes to the child the best it has to give. (Final preambular clause of the
Declaration of the Rights of the Child)

At the time of the incident, private complainant AAA was 17 years old.7 She was a college
student at the Assumption College in San Lorenzo Village, Makati City. Petitioner, then 28,
was her professor in her Philosophy II class in the first semester of the school year 1997 to
1998.

On July 18, 1997

 Invited AAA and her friends to watch X-RATED films

 Thereafter, petitioner started to show AAA amorous attention. He called her on the
phone and paged8 her romantic messages at least thrice a day. When semestral break
came, his calls and messages became more frequent. Their conversation always started
innocently but he had a way of veering the subject to sex. Young, naive and coming from
a broken family, AAA was soon overwhelmed by petitioner’s persistence and slowly got
attracted to him. He was the first person to court her. Soon, they had a "mutual
understanding" and became sweethearts.

 When AAA secured her class card in Philosophy II at the start of the second semester,
petitioner told her that he gave her a final grade of "3." She protested, stating that her
mid-term grade was "1.2." He gave her a grade of "1.5" when she promised not to
disclose his intimate messages to her to anyone. He also cautioned her not to tell
anyone about their affair as it could jeopardize his job.

 On November 19, 1997, at around 11:00 a.m., AAA agreed to have lunch with petitioner
outside the premises of the college. Since she was not feeling well at that time, he asked
her to lie down in the backseat of his car. She was surprised when he brought her to
Queensland Lodge9 on Harrison St. in Pasay City. Once inside the motel room, he kissed
her at the back and neck, touched her breasts and placed his hand inside her blouse.
She resisted his advances but he was too strong for her. He stopped only when she got
angry at him.

 On November 26, 1997, petitioner asked AAA to come with him so that they could talk in
private. He again brought her to Queensland Lodge. Where he has carnal knowledge
with the victim.

 In July 1999, AAA ended her relationship with petitioner. She learned that he was either
intimately involved with or was sexually harassing his students in Assumption College
and in other colleges where he taught. In particular, he was dismissed from the De La
Salle University-Aguinaldo for having sexual relations with a student and sexually
 harassing three other students. His employment was also terminated by Assumption
College for sexually harassing two of his students. It was then that AAA realized that she
was actually abused by petitioner. Depressed and distressed, she confided all that
happened between her and petitioner to her mother, BBB.

 On learning what her daughter underwent in the hands of petitioner, BBB filed an
administrative complaint in Assumption College against him. She also lodged a
complaint in the Office of the City Prosecutor of Pasay City which led to the filing of
Criminal Case No. 00-0691.

The trial court found the evidence for the prosecution sufficient to sustain petitioner’s
conviction. On March 7, 2001, it rendered a decision finding petitioner guilty.

CA - the appellate court affirmed his conviction even if it found that his acts were not covered
by paragraph (a) but by paragraph (b) of Section 5, Article III of RA 7610.

Petitioner contends that the CA erred in sustaining his conviction although it found that he
did not rape AAA. For him, he should have been acquitted since there was no rape. He also
claims that he and AAA were sweethearts and their sexual intercourse was consensual.

HELD:

Section 5. Child Prostitution and Other Sexual Abuse. - Children, whether male or female,
who, for money, profit, or any other consideration or due to the coercion or influence of
any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are
deemed to be children exploited in prostitution and other sexual abuse.

The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed
upon the following:

(a) Those who engage in or promote, facilitate or induce child prostitution which include, but
are not limited to, the following:

1. Acting as a procurer of a child prostitute;

2. Inducing a person to be a client of a child prostitute by means of written or oral

advertisements or other similar means;

3. Taking advantage of influence or relationship to procure a child as a prostitute;

4. Threatening or using violence towards a child to engage him as a prostitute; or

5. Giving monetary consideration, goods or other pecuniary benefit to a child with intent to
engage such child in prostitution.

(b) Those who commit the act of sexual intercourse or lascivious conduct with a
child exploited in prostitution or subjected to other sexual abuse: Provided, That when the
victim is under twelve (12) years of age, the perpetrators shall be prosecuted under Article
335, paragraph 3, for rape and Article 336 of Act No. 3815, as amended, the Revised Penal
Code, for rape or lascivious conduct, as the case may be: Provided, that the penalty for
lascivious conduct when the victim is under twelve (12) years of age shall be reclusion
temporal in its medium period; and

x x x           x x x          x x x(emphasis supplied)

The elements of paragraph (a) are:

1. the accused engages in, promotes, facilitates or induces child prostitution;

2. the act is done through, but not limited to, the following means:

a. acting as a procurer of a child prostitute;

b. inducing a person to be a client of a child prostitute by means of written or oral

advertisements or other similar means;

c. taking advantage of influence or relationship to procure a child as a prostitute;

d. threatening or using violence towards a child to engage him as a prostitute or

e. giving monetary consideration, goods or other pecuniary benefit to a child with intent to
engage such child in prostitution;

3. the child is exploited or intended to be exploited in prostitution and

4. the child, whether male or female, is below 18 years of age.

On the other hand, the elements of paragraph (b) are:

1. the accused commits the act of sexual intercourse or lascivious conduct;

2. the act is performed with a child exploited in prostitution or subjected to other sexual abuse
and

3. the child, whether male or female, is below 18 years of age.

Paragraph (a) essentially punishes acts pertaining to or connected with child prostitution. It
contemplates sexual abuse of a child exploited in prostitution. In other words, under
paragraph (a), the child is abused primarily for profit.

On the other hand, paragraph (b) punishes sexual intercourse or lascivious conduct not only
with a child exploited in prostitution but also with a child subjected to other sexual abuse. It
covers not only a situation where a child is abused for profit but also one in which a child,
through coercion, intimidation or influence, engages in sexual intercourse or lascivious
conduct.20

The information against petitioner did not allege anything pertaining to or connected with child
prostitution. It did not aver that AAA was abused for profit. What it charged was that petitioner
had carnal knowledge or committed sexual intercourse and lascivious conduct with AAA; AAA
was induced and/or seduced by petitioner who was her professor to indulge in sexual
intercourse and lascivious conduct and AAA was a 17-year old minor. These allegations
support a charge for violation of paragraph (b), not paragraph (a), of Section 5, Article III, RA
7610.

Petitioner violated Section 5(b), Article III of RA 7610, as amended

The first element of Section 5(b), Article III of RA 7610 pertains to the act or acts committed
by the accused. The second element refers to the state or condition of the offended party.
The third element corresponds to the minority or age of the offended party.

The first element was present in this case. Petitioner committed lascivious conduct against
and had sexual intercourse with AAA in the following instances: (1) on November 19, 1997,
when he kissed her at the back and neck, touched her breasts and placed his hand inside her
blouse to gratify his lust; (2) on November 26, 1997, when, with lewd designs, he dragged her
towards the bed of the motel room and forcibly kissed her on the lips, neck and breasts and
(3) when he exerted moral influence on her and pressured her until she surrendered herself to
him on November 26, 1997. His acts were covered by the definitions of sexual abuse and
lascivious conduct under Section 2(g) and (h) of the Rules and Regulations on the Reporting
and Investigation of Child Abuse Cases promulgated to implement the provisions of RA 7610,
particularly on child abuse:

(g) "Sexual abuse" includes the employment, use, persuasion, inducement, enticement or

coercion of a child to engage in, or assist another person to engage in, sexual intercourse
or lascivious conduct or the molestation, prostitution, or incest with children;

(h) "Lascivious conduct" means the intentional touching, either directly or through

clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks, or the introduction of
any object into the genitalia, anus or mouth, of any person, whether of the same or
opposite sex, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the
sexual desire of any person, bestiality, masturbation, lascivious exhibition of the genitals or
public area of a person. (emphasis supplied)

The second element was likewise present here. The following pronouncement in People v.
Larin27 is significant:

A child is deemed exploited in prostitution or subjected to other sexual abuse, when the

child indulges in sexual intercourse or lascivious conduct (a) for money, profit, or any
other consideration; or (b) under the coercion or influence of any adult, syndicate or group.
(emphasis supplied)

On November 19, 1997, due to the influence of petitioner, AAA indulged in lascivious acts
with or allowed him to commit lascivious acts on her. This was repeated on November 26,
1997 on which date AAA also indulged in sexual intercourse with petitioner as a result of the
latter’s influence and moral ascendancy. Thus, she was deemed to be a "child subjected to
other sexual abuse" as the concept is defined in the opening paragraph of Section 5, Article III
of RA 7610 and in Larin.

The third element of the offense was also satisfied. Section 3 (a), Article I of RA 7610
provides:

SECTION 3. Definition of Terms. –

(a) "Children" refers [to] persons below eighteen (18) years of age or those over but are
unable to fully take care of themselves or protect themselves from abuse, neglect, cruelty,
exploitation or discrimination because of a physical or mental disability or condition;
(emphasis supplied)

On November 19, 2007 and November 26, 2007, AAA was a child as she was below 18 years
of age. She was therefore within the protective mantle of the law.

Since all three elements of the crime were present, the conviction of petitioner was proper.

Violation of Section 5(b), Article III of RA 7610 and Rape are Separate and Distinct
Crimes

Petitioner was charged and convicted for violation of Section 5(b), Article III of RA 7610, not
rape. The offense for which he was convicted is punished by a special law while rape is a
felony under the Revised Penal Code.28 They have different elements.29 The two are separate
and distinct crimes. Thus, petitioner can be held liable for violation of Section 5(b), Article III of
RA 7610 despite a finding that he did not commit rape.
Consent of the Child is Immaterial in Criminal Cases Involving Violation of Section 5,
Article III of RA 7610

Petitioner claims that AAA welcomed his kisses and touches and consented to have sexual
intercourse with him. They engaged in these acts out of mutual love and affection. But may
the "sweetheart theory" be invoked in cases of child prostitution and other sexual abuse
prosecuted under Section 5, Article III of RA 7610? No.

The sweetheart theory applies in acts of lasciviousness and rape, felonies committed against
or without the consent of the victim. It operates on the theory that the sexual act was
consensual. It requires proof that the accused and the victim were lovers and that she
consented to the sexual relations.30

For purposes of sexual intercourse and lascivious conduct in child abuse cases under RA
7610, the sweetheart defense is unacceptable. A child exploited in prostitution or subjected to
other sexual abuse cannot validly give consent to sexual intercourse with another person.

The language of the law is clear: it seeks to punish

[t]hose who commit the act of sexual intercourse or lascivious conduct with a child exploited in
prostitution or subjected to other sexual abuse.

Unlike rape, therefore, consent is immaterial in cases involving violation of Section 5, Article

III of RA 7610. The mere act of having sexual intercourse or committing lascivious conduct
with a child who is exploited in prostitution or subjected to sexual abuse constitutes the
offense. It is a malum prohibitum, an evil that is proscribed.

A child cannot give consent to a contract under our civil laws.31 This is on the rationale that
she can easily be the victim of fraud as she is not capable of fully understanding or knowing
the nature or import of her actions. The State, as parens patriae, is under the obligation to
minimize the risk of harm to those who, because of their minority, are as yet unable to take
care of themselves fully.32 Those of tender years deserve its protection.33

The harm which results from a child’s bad decision in a sexual encounter may be infinitely
more damaging to her than a bad business deal. Thus, the law should protect her from the
harmful consequences34 of her attempts at adult sexual behavior.35 For this reason, a child
should not be deemed to have validly consented to adult sexual activity and to surrender
herself in the act of ultimate physical intimacy under a law which seeks to afford her special
protection against abuse, exploitation and discrimination. (Otherwise, sexual predators like
petitioner will be justified, or even unwittingly tempted by the law, to view her as fair game and
vulnerable prey.) In other words, a child is presumed by law to be incapable of giving rational
consent to any lascivious act or sexual intercourse.361âwphi1

This must be so if we are to be true to the constitutionally enshrined State policy to promote
the physical, moral, spiritual, intellectual and social well-being of the youth. 37 This is
consistent with the declared policy of the State

[T]o provide special protection to children from all forms of abuse, neglect,

cruelty, exploitation and discrimination, and other conditions prejudicial to their
development; provide sanctions for their commission and carry out a program for
prevention and deterrence of and crisis intervention in situations of child abuse, exploitation,
and discrimination.38 (emphasis supplied)

as well as to
intervene on behalf of the child when the parents, guardian, teacher or person having care
or custody of the child fails or is unable to protect the child against abuse, exploitation, and
discrimination or when such acts against the child are committed by the said parent,
guardian, teacher or person having care and custody of the same.39 (emphasis supplied)

This is also in harmony with the foremost consideration of the child’s best interests in all
actions concerning him or her.

The best interest of children shall be the paramount consideration in all actions
concerning them, whether undertaken by public or private social welfare institutions, courts
of law, administrative authorities, and legislative bodies, consistent with the principles of First
Call for Children as enunciated in the United Nations Convention on the Rights of the
Child. Every effort shall be exerted to promote the welfare of children and enhance their
opportunities for a useful and happy life.40 (emphasis supplied)

B. ACTS PUNISHED AND PERSONS LIABLE

Sanchez vs. People

G.R. No. 179090, June 5, 2009

FACTS:

Appellant was charged with the crime of Other Acts of Child Abuse

On September 24, 1997, VVV's father, FFF, started leasing a portion of the fishpond owned
by Escolastico Ronquillo (Escolastico), located at Lajog, Clarin, Bohol. FFF and his family
occupied the house beside the fishpond which was left by the former tenant.9

On September 2, 2000 at around 7:00 in the morning, while VVV was cutting grass in their
yard, appellant arrived looking for FFF who was then at another fishpond owned by Nilda
Parilla located in Boacao, Clarin, Bohol. VVV knew appellant because he is the husband of
Bienvenida Ronquillo (Bienvenida), one of the heirs of Escolastico.10 She noticed that
appellant had a sanggot (sickle) tucked in his waist.

Appellant then went to VVV’s house and inquired from VVV’s younger brother, BBB, the
whereabouts of the latter’s father. BBB did not answer but his mother, MMM, told appellant
that FFF was not around. Right then and there, appellant told them to leave the place and
started destroying the house with the use of his sickle. As a result, appellant destroyed the
roof, the wall and the windows of the house.11 MMM got angry and told appellant that he
could not just drive them away since the contract for the use of the fishpond was not yet
terminated. VVV was then sent by MMM to fetch a barangay tanod. She did as ordered but
barangay tanod Nicolas Patayon refused to oblige because he did not want to interfere in the
problem concerning the fishpond. On her way back to their house, VVV saw appellant coming
from his shop with a gallon of gasoline, headed to their house. Appellant warned VVV to
better pack up her family’s things because he would burn their house.12

Upon reaching their house, VVV saw her brother, BBB, get a piece of wood from the back of
their house to defend themselves and their house from appellant. However, appellant
approached BBB, grabbed the piece of wood from the latter and started beating him with it.13
At the sight, VVV approached appellant and pushed him. Irked by what she did, appellant
turned to her and struck her with the piece of wood three (3) times, twice on the left thigh and
once below her right buttocks. As a result, the wood broke into several pieces. VVV picked up
some of the broken pieces and threw them back at appellant. MMM restrained BBB, telling
him not to fight back. After which, appellant left, bringing with him the gallon of gasoline.14

FFF arrived at about 10:00 in the morning of that day. When he learned about what had
happened, FFF brought his daughter to the Clarin Health Center for medical attention and
treatment.15 Dr. Vicente Manalo (Dr. Manalo) attended to VVV and issued her a medical
certificate16 dated September 2, 2000, stating that VVV sustained the following:

The appellant argues that the injuries inflicted by him were minor in nature that it is not
prejudicial to the child-victim’s development and therefore P.D. No. 603 is not applicable and
he should be charged under the Revised Penal Code for slight physical injuries.

ISSUE:

Whether or not P.D. 603 as amended is applicable to the case at hand.

HELD:

In this case, the applicable laws are Article 59 of P.D. No. 603 and Section 10(a) of R.A. No.
7610.  Section 10(a) of R.A. No. 7610 provides:

SECTION 10. Other Acts of Neglect, Abuse, Cruelty or Exploitation and Other Conditions
Prejudicial to the Child's Development. —

(a)        Any person who shall commit any other acts of child abuse, cruelty or exploitation or
be responsible for other conditions prejudicial to the child's development including those
covered by Article 59 of Presidential Decree No. 603, as amended, but not covered by the
Revised Penal Code, as amended, shall suffer the penalty of  prision mayor in its minimum
period.
As gleaned from the foregoing, the provision punishes not only those enumerated under
Article 59 of Presidential Decree No. 603, but also four distinct acts, i.e., (a) child abuse,  (b)
child cruelty, (c) child exploitation and (d) being responsible for conditions prejudicial to the
child’s development. The Rules and Regulations of the questioned statute distinctly and
separately defined child abuse, cruelty and exploitation just to show that these three acts are
different from one another and from the act prejudicial to the child’s development. Contrary to
petitioner’s assertion, an accused can be prosecuted and be convicted under Section 10(a),
Article VI of Republic Act No. 7610 if he commits any of the four acts therein.  The
prosecution need not prove that the acts of child abuse, child cruelty and child exploitation
have resulted in the prejudice of the child because an act prejudicial to the development of
the child is different from the former acts.

Moreover, it is a rule in statutory construction that the word “or” is a disjunctive term signifying
dissociation and independence of one thing from other things enumerated. It should, as a
rule, be construed in the sense which it ordinarily implies. Hence, the use of “or” in Section
10(a) of Republic Act No. 7610 before the phrase “be responsible for other conditions
prejudicial to the child’s development” supposes that there are four punishable acts therein.
First, the act of child abuse; second, child cruelty; third, child exploitation; and fourth, being
responsible for conditions prejudicial to the child’s development.  The fourth penalized act
cannot be interpreted, as petitioner suggests, as a qualifying condition for the three other
acts, because an analysis of the entire context of the questioned provision does not warrant
such construal.

Appellant contends that, after proof, the act should not be considered as child abuse but
merely as slight physical injuries defined and punishable under Article 266 of the Revised
Penal Code. Appellant conveniently forgets that when the incident happened, VVV was a
child entitled to the protection extended by R.A. No. 7610, as mandated by the Constitution.
As defined in the law, child abuse includes physical abuse of the child, whether the same is
habitual or not.  The act of appellant falls squarely within this definition.  We, therefore, cannot
accept appellant's contention.

Acts committed contrary to the provisions of Section 10(a) in relation to Sections 3(a) and 3(b)
No. 1 of Rep. Act No. 7610 and Sec. 59(8) of PD 603, amended.

George Bongalon vs. People of the Philippines, G.R. No. 169533, March 20, 2013

FACTS:

The Prosecutor’s Office of Legazpi City charged the petitioner in the Regional Trial Court
(RTC) Legazpi City with child abuse, an act in violation of Section 10(a) of Republic Act No.
7610.
 Jayson Dela Cruz (Jayson) and Roldan, his older brother, both minors, joined the
evening procession for the Santo Niño at Oro Site in Legazpi City;

 that when the procession passed in front of the petitioner’s house, the latter’s daughter
Mary Ann Rose, also a minor, threw stones at Jayson and called him “sissy”; that the
petitioner confronted Jayson and Roldan and called them names like “strangers” and
“animals”;

 that the petitioner struck Jayson at the back of his hand, and slapped Jayson on the face;

 that the petitioner then went to the brothers’ house and challenged Rolando dela Cruz,
their father, to a fight, but Rolando did not come out of the house to take on the
petitioner; that Rolando later brought Jayson to the Legazpi City Police Station and
reported the incident; that Jayson also underwent medical treatment at the Bicol
Regional Training and Teaching Hospital; that the doctors who examined Jayson issued
two medical certificates attesting that Jayson suffered the following contusions, to wit: (1)
contusion .5 x 2.5 scapular area, left; and (2) +1×1 cm. contusion left zygomatic area and
contusion .5 x 2.33 cm. scapular area, left.

On his part, the petitioner denied having physically abused or maltreated Jayson. He
explained that he only talked with Jayson and Roldan after Mary Ann Rose and Cherrylyn, his
minor daughters, had told him about Jayson and Roldan’s throwing stones at them and about
Jayson’s burning Cherrylyn’s hair. He denied shouting invectives at and challenging Rolando
to a fight, insisting that he only told Rolando to restrain his sons from harming his daughters.

To corroborate the petitioner’s testimony, Mary Ann Rose testified that her father did not hit or
slap but only confronted Jayson, asking why Jayson had called her daughters “Kimi” and why
he had burned Cherrlyn’s hair. Mary Ann Rose denied throwing stones at Jayson and calling
him a “sissy.” She insisted that it was instead Jayson who had pelted her with stones during
the procession. She described the petitioner as a loving and protective father.

After trial, the RTC found and declared the petitioner guilty of child abuse as charged.

The CA affirmed the conviction but modified the penalty.

Hence, this petition.

ISSUES:

WHETHER OR NOT PETITIONER IS GUILTY OF THE CRIME CHARGED

WHETHER OR NOT THE PENALTY SHOULD BE MITIGATED BECAUSE PETITIONER

MERELY ACTED TO PROTECT HIS TWO MINOR DAUGHTERS

HELD:

Petitioner’s acts did not constitute child abuse

Although we affirm the factual findings of fact by the RTC and the CA to the effect that the
petitioner struck Jayson at the back with his hand and slapped Jayson on the face, we
disagree with their holding that his acts constituted child abuse within the purview of the
above-quoted provisions. The records did not establish beyond reasonable doubt that his
laying of hands on Jayson had been intended to debase the “intrinsic worth and dignity” of
Jayson as a human being, or that he had thereby intended to humiliate or embarrass Jayson.
The records showed the laying of hands on Jayson to have been done at the spur of the
moment and in anger, indicative of his being then overwhelmed by his fatherly concern for the
personal safety of his own minor daughters who had just suffered harm at the hands of
Jayson and Roldan. With the loss of his self-control, he lacked that specific intent to debase,
degrade or demean the intrinsic worth and dignity of a child as a human being that was so
essential in the crime of child abuse.

It is not trite to remind that under the well-recognized doctrine of pro reo every doubt is
resolved in favor of the petitioner as the accused. Thus, the Court should consider all possible
circumstances in his favor.

Petitioner committed Slight Physical Injuries under Art. 266 of the Revised Penal Code

Not every instance of the laying of hands on a child constitutes the crime of child abuse under
Section 10 (a) of the Republic Act No. 7610. Only when the laying of hands is shown beyond
reasonable doubt to be intended by the accused to debase, degrade or demean the intrinsic
worth and dignity of the child as a human being should it be punished as child abuse.
Otherwise, it is punished under the Revised Penal Code.

Considering that Jayson’s physical injury required five to seven days of medical attention, the
petitioner was liable for slight physical injuries under Article 266 (1) of the Revised Penal
Code.

C. PERSON PROTECTED BY LAW

G.R. No. 151952 March 25, 2009

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.

HERACLEO ABELLO Y FORTADA, Accused-Appellant.

The victim in these cases is twenty-one (21) year old AAA. She contracted polio when she
was seven (7) months old. She was not able to study on account of her difficulty in walking.
Hence, she could only read and write her name including that of her friends.

On June 30, 1998 at around 4:00 o’clock (sic) in the early morning, AAA was sleeping in their
house in Kalyeng Impiyerno, Navotas, Metro Manila along with her sister-in-law and nephew.
She was suddenly awakened when Abello … mashed her breast. Come July 2, 1999 at
around 3:00 a.m. Abello again mashed the breast of AAA practically under the same previous
situation while the latter was sleeping. In these two occasions AAA was able to recognize
Abello because of the light coming from outside which illuminated the house. Then on July 8,
1998, at around 2:00 a.m., Abello this time placed his soft penis inside the mouth of AAA. The
latter got awaken when Abello accidentally kneeled on her right hand. AAA exclaimed "Aray"
forcing the accused to hurriedly enter his room. He was nevertheless seen by AAA. The
victim on the same date reported the incident to her sister-in-law and mother.

Amidst the accusation of raping and twice sexually abusing AAA, Abello interposed the
defense of denial. In all of the instances, Abello claimed that he merely stepped on the victim
at the sala on his way to his room after retiring home.

RTC - convicted Abello of one (1) count of violation of paragraph 2, Article 266-A of the
Revised Penal Code (RPC), as amended;3 and two (2) counts of violation of sexual abuse
under Republic Act (R.A.) No. 7610 (Child Abuse Law).

CA- Affirmed
ISSUE: WON GUILTY OFCHILD ABUSE UNDER RA 7610

HELD:

The implementing rules elaborated on this definition when it defined a "child" as one who is
below 18 years of age or over said age who, upon evaluation of a qualified physician,
psychologist or psychiatrist, is found to be incapable of taking care of herself fully because of
a physical or mental disability or condition or of protecting herself from abuse.

While the records show that the RTC, the CA and the investigating prosecutor who filed the
corresponding Informations, considered AAA’s polio as a physical disability that rendered her
incapable of normal function, no evidence was in fact presented showing the prosecution’s
compliance with the implementing rules. Specifically, the prosecution did not present any
evidence, testimonial or documentary, of any medical evaluation or medical finding from a
qualified physician, psychologist or psychiatrist attesting that AAA’s physical condition
rendered her incapable of fully taking care of herself or of protecting herself against sexual
abuse. Under the circumstances, we cannot consider AAA a child under Section 3(a) of R.A.
No. 7610.

In arriving at this conclusion, we consider that since R.A. No. 7610 is a special law referring to
a particular class in society, the prosecution must show that the victim truly belongs to this
particular class to warrant the application of the statute’s provisions. Any doubt in this regard
we must resolve in favor of the accused.

From another perspective, we also note that no evidence has been adduced showing that
AAA’s physical disability prevented her from resisting Abello’s attacks; the evidence only
reveals that Abello took advantage of the opportunity presented to him (i.e., that AAA and her
companions who were then asleep) to commit the sexual abuses; this inference is supported
by the fact that he stopped his sexual assault when AAA started to awaken. It can also be
reasonably deduced from these circumstances that Abello sought to commit the sexual
abuses with impunity -- without AAA’s knowledge and without any interference on her part.

In light of these conclusions, we cannot hold Abello liable under R.A. No. 7610. However, we
still find him liable for acts of lasciviousness under Article 336 of the RPC, as amended.

D. SEXUAL ABUSE AND CHILD ABUSE COMPARED

G.R. No. 171863 August 20, 2008

PEOPLE OF THE PHILIPPINES, petitioner,

vs.
THE HONORABLE COURT OF APPEALS (Second Division) and GASPAR OLAYON,
respondents.

DECISION

CARPIO MORALES, J.:

FACTS:

The events that occurred on January 27, 1997 at the house of one Duke Espiritu show that
[AAA] went with Olayon to that place voluntarily. First, she was fetched from a tricycle stand
and it took them another ride to go to the house of Espiritu. If indeed she was forced to board
the tricycle, she could have resisted and shouted for help considering that there were
normally people around in a tricycle stand, waiting for rides. If she indeed resisted and
showed any manifestation in this regard, people could have easily helped her in resisting
whatever it was Olayon wanted. Second, at the house of Espiritu she could have easily
shouted for help since it was located near a road and a pathway. x x x
Criminal Case No. 112571 alleged that

On or about 10:00 a.m. of January 27, 1997 in Taguig, Metro Manila and within the
jurisdiction of this Honorable Court, the accused, with lewd designs, did then and there
willfully, unlawfully and feloniously have sexual intercourse with and commit lewd and
lascivious acts upon the person of [AAA], a minor, fourteen (14) years of age.

Criminal Case No. 112572 alleged that

On or about 2:00 p.m. of January 27, 1997 in Taguig, Metro Manila and within the jurisdiction
of this Honorable Court, the accused, with lewd designs, did then and there willfully,
unlawfully and feloniously have sexual intercourse with and commit lewd and lascivious acts
upon the person of [AAA], a minor, fourteen (14) years of age.

Criminal Case No. 116350

Acts of lasciviousness before the RTC of Taguig, docketed as , of which the same then 14-
year old AAA was alleged to be the victim. The case was transferred to the Pasig City RTC
and consolidated with Criminal Case Nos. 112571-72. 3 The three cases were jointly tried.

RTC

Acquitted respondent in Criminal Case No. 116350 (for acts of lasciviousness).

Convicted respondent of violation of Section 10 (a) of Republic Act (R.A.) No. 7610 in
Criminal Case Nos. 112571-72 in this wise:

xxxx

Although the sexual liaisons that occurred on January 27, 1997 were with the consent of
[AAA] who at that time was only 14 years of age, Olayon cannot escape responsibility
because he took advantage of [AAA’s] minority to have these sexual liaisons, even if they
were with her consent. Consent is not an accepted defense in this special law. He violated
then Republic Act No. 7610, Section 10(a) which provides:

Section 10(a) – Any person who shall commit any other acts of child abuse, cruelty or
exploitation or be responsible for other conditions prejudicial to the child’s
development including those covered by Article 59 of Presidential Decree No. 603, as
amended, shall suffer the penalty of prision mayor in its minimum period.

x x x x6 (Emphasis and underscoring supplied)

CA- Reversed and Acquitted the accused

Consensual sexual intercourse between OLAY[O]N and [AAA] does not fall under the "sexual
abuse" definition [in Section 5 of R.A. No. 7610] which is a completely distinct and separate
offense from "child abuse," [under Section 10] because

"sexual abuse" pertains to and is associated with "child prostitution" [as defined in Section 5].
"Sexual abuse" is defined separately under Section 5 of R.A. 7610, which reads as follows:

Moreover, for the act of intercourse between OLAY[O]N and [AAA] to be considered sexual
abuse [under Section 5], such intercourse should have occurred due to coercion or
intimidation. In the case at bench, neither coercion nor intimidation were found to have been
present, consent having been freely given.10 (Emphasis, italics and underscoring supplied)

HENCE this petition

ISSUE: whether consensual sexual intercourse with a minor is classified as child abuse under
Section 10 of RA No. 7610,

RULING:

SECTION 10. Other Acts of Neglect, Abuse, Cruelty or Exploitation and Other Conditions
Prejudicial to the Child's Development. —

(a) Any person who shall commit any other acts of child abuse, cruelty or exploitation or be
responsible for other conditions prejudicial to the child's development including those covered
by Article 59 of Presidential Decree No. 603, as amended, but not covered by the Revised
Penal Code, as amended, shall suffer the penalty of prision mayor in its minimum period.
(Underscoring supplied),

Section 5(b), upon the other hand, provides:

SEC. 5. Child Prostitution and Other Sexual Abuse. — Children, whether male or female, who
for money, profit, or any other consideration or due to the coercion or influence of any adult,
syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be
children exploited in prostitution and other sexual abuse.

The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed
upon the following:

xxxx

Consensual sexual intercourse or even acts of lasciviousness with a minor who is 12 years
old or older could constitute a violation of Section 5(b) of R.A. No. 7610. For Section 5(b)
punishes sexual intercourse or lascivious conduct not only with a child exploited in prostitution
but also with a child subjected to other sexual abuse.

For consensual sexual intercourse or lascivious conduct with a minor, who is not exploited in
prostitution, to thus fall within the purview of Section 5(b) of R.A. No. 7610, "persuasion,
inducement, enticement or coercion" of the child must be present.

It must be noted that [Republic Act No. 7610] covers not only a situation in which a child is
abused for profit, but also one in which a child, through coercion or intimidation, engages in
any lascivious conduct.25 (Emphasis and underscoring supplied)

In the case at bar, even if respondent were charged under Section 5(b), instead of Section
10(a), respondent would just the same have been acquitted as there was no allegation that an
element of the offense – coercion or influence or intimidation – attended its commission.

In light of the foregoing disquisition, the petition is DENIED.

SO ORDERED.

E. SEXUAL ABUSE COMPARED WITH RAPE AND ACTS OF LASCIVIOUSNESS

G.R. No. 157718               April 26, 2005

ALVIN AMPLOYO y EBALADA, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES , Respondent.
 DECISION

CHICO-NAZARIO, J.:

petitioner was charged with violation of Section 5(b), Article III of Republic Act No. 7610

 Kristine Joy Mosquera was eight years old

 she was walking to school (which was just a short distance from her house) at
around seven oclock in the morning when she was met by petitioner who emerged
from hiding from a nearby store. Petitioner and Kristine Joy were neighbors.
Petitioner approached Kristine Joy, touched her head, placed his hand on her
shoulder where it then moved down to touch her breast several times. Petitioner
thereafter told Kristine Joy not to report to anybody what he did to her.

TRIAL COURT- Found Amployo GUILTY beyond reasonable doubt of the crime of Child
Abuse defined under Section 5 (b) of Republic Act 7610

The Court of Appeals - affirmed the Decision

Hence, the instant petition, the following issues having been presented for resolution:

ISSUE: WHETHER THE ALLEGED ACT OF HEREIN PETITIONER CONSTITUTES

ACTS OF LASCIVIOUSNESS AS PENALIZED UNDER SEC (5) ARTICLE III OF RA NO.

RULING:

Rep. Act No. 7610, the 'Special Protection of Children Against Child Abuse, Exploitation
and Discrimination Act, defines sexual abuse of children and prescribes the penalty
therefor in its Article III, Section 5:

SEC. 5. Child Prostitution and Other Sexual Abuse. - Children, whether male or female,
who for money, profit, or any other consideration or due to the coercion or influence of
any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are
deemed to be children exploited in prostitution and other sexual abuse.

The penalty of reclusion temporal in its medium period to reclusion perpetua shall be

imposed upon the following;

(a) . . .

(b) Those who commit the act of sexual intercourse or lascivious conduct with a
child exploited in prostitution or subjected to other sexual abuse: Provided, That
when the victim is under twelve (12) years of age, the perpetrators shall be
prosecuted under Article 335, paragraph 3, for rape and Article 336 of Act No. 3815,
as amended, the Revised Penal Code, for rape or lascivious conduct as the case
may be: Provided, That the penalty for lascivious conduct when the victim is under twelve
(12) years of age shall be reclusion temporal in its medium period; . . .

Thus, pursuant to the foregoing provision, before an accused can be convicted of child
abuse through lascivious conduct on a minor below 12 years of age, the requisites for
acts of lasciviousness under Article 336 of the RPC must be met in addition to the
requisites for sexual abuse under Section 5 of Rep. Act No. 7610.

First Issue:
Article 336 of the RPC on Acts of Lasciviousness has for its elements the following:

(1) That the offender commits any act of lasciviousness or lewdness;

(2) That it is done under any of the following circumstances:

a. By using force or intimidation; or

b. When the offended party is deprived of reason or otherwise unconscious; or

c. When the offended party is under 12 years of age; and

(3) That the offended party is another person of either sex.  11

The presence of the second element is not in dispute, that is, Kristine Joy was below 12
years old on the material date set in the information. It is the presence of the first element
which petitioner challenges, claiming that lewd design has not been proved beyond
reasonable doubt.

The term 'lewd is commonly defined as something indecent or obscene;  it is 12 

characterized by or intended to excite crude sexual desire.  That an accused is

13 

entertaining a lewd or unchaste design is necessarily a mental process the existence of

which can be inferred by overt acts carrying out such intention, i.e., by conduct that can
only be interpreted as lewd or lascivious. The presence or absence of lewd designs is
inferred from the nature of the acts themselves and the environmental circumstances.  14 

What is or what is not lewd conduct, by its very nature, cannot be pigeonholed into a
precise definition. As early as U.S. v. Gomez  we had already lamented that '
15 

It would be somewhat difficult to lay down any rule specifically establishing just what
conduct makes one amenable to the provisions of article 439  of the Penal Code. What
16 

constitutes lewd or lascivious conduct must be determined from the circumstances of

each case. It may be quite easy to determine in a particular case that certain acts are
lewd and lascivious, and it may be extremely difficult in another case to say just where
the line of demarcation lies between such conduct and the amorous advances of an
ardent lover.

In herein case, petitioner argues that lewd design cannot be inferred from his conduct
firstly because the alleged act occurred at around seven oclock in the morning, in a street
very near the school where people abound, thus, he could not have been prompted by
lewd design as his hand merely slipped and accidentally touched Kristine Joy's breast.
Furthermore, he could not have been motivated by lewd design as the breast of an eight
year old is still very much undeveloped, which means to say there was nothing to entice
him in the first place. Finally, assuming that he indeed intentionally touch Kristine Joy's
breast, it was merely to satisfy a silly whim following a Court of Appeals ruling.  17

Petitioner's arguments crumble under the weight of overwhelming evidence against him.
Well-settled is the rule that factual findings of the trial court, particularly when affirmed by
the Court of Appeals, are binding on this Court barring arbitrariness and oversight of
some fact or circumstance of weight and substance  for which there are none in this
18 

case. Besides, Kristine Joy's testimony is indeed worthy of full faith and credence as
there is no proof that she was motivated to falsely accuse petitioner. Thus, we stress
anew that no young and decent girl like Kristine Joy would fabricate a story of sexual
abuse, subject herself to medical examination and undergo public trial, with concomitant
ridicule and humiliation, if she is not impelled by a sincere desire to put behind bars the
person who assaulted her.  19
Clearly then, petitioner cannot take refuge in his version of the story as he has
conveniently left out details which indubitably prove the presence of lewd design. It would
have been easy to entertain the possibility that what happened was merely an accident if
it only happened once. Such is not the case, however, as the very same petitioner did the
very same act to the very same victim in the past.  Moreover, the incident could never be
20 

labeled as accidental as petitioner's hand did not just slip from Kristine Joy's shoulder to
her breast as there were times when he would touch her breast from under her shirt.  21 

Finally, the theory that what happened was accidental is belied by petitioner having
threatened Kristine Joy to keep silent and not tell on him. 22

As to petitioner's argument that human experience negates the presence of lewd design
as Kristine Joy had no developed breasts with which to entice him, suffice it to say that
on the contrary, human experience has taught us painfully well that sexual misconduct
defies categorization and what might be an unusual, unlikely or impossible sexual
conduct for most might very well be the norm for some.

Finally, we dismiss for being atrocious the proposition that petitioner was not compelled
by lewd design as he was merely satisfying a 'silly whim. Terrifying an eight-year old
school girl, taking advantage of her tender age with his sheer size, invading her privacy
and intimidating her into silence, in our book, can never be in satisfaction of a mere silly
whim.

Second Issue:

Petitioner contends that assuming he is guilty of lascivious conduct, still he can only be
convicted under the RPC since his conduct does not amount to sexual abuse as defined
under Section 5(b), Article III of Rep. Act No. 7610.

The elements of sexual abuse under Section 5, Article III of Rep. Act No. 7610 that must
be proven in addition to the elements of acts of lasciviousness are the following:

(1) The accused commits the act of sexual intercourse or lascivious conduct;

(2) The said act is performed with a child exploited in prostitution or subjected to other
sexual abuse; and

(3) The child, whether male or female, is below 18 years of age.  23

The first element obtains. Section 32, Article XIII of the Implementing Rules and
Regulations of Rep. Act No. 7610 defines lascivious conduct as follows:

(T)he intentional touching, either directly or through clothing, of the genitalia, anus,

groin, breast, inner thigh, or buttocks, or the introduction of any object into the genitalia,
anus or mouth of any person, whether of the same or opposite sex, with an intent to
abuse, humiliate, harass, degrade or arouse or gratify the sexual desire of any person,
bestiality, masturbation, lascivious exhibition of the genitals or pubic area of a
person. (Emphasis supplied)

Undoubtedly, based on the foregoing definition, petitioner's act of purposely touching

Kristine Joy's breasts (sometimes under her shirt) amounts to lascivious conduct.

The second element is likewise present. As we observed in People v. Larin,  Section 5 of

24 

Rep. Act No. 7610 does not merely cover a situation of a child being abused for profit,
but also one in which a child engages in any lascivious conduct through coercion or
intimidation. As case law has it, intimidation need not necessarily be irresistible.  It is
25 
sufficient that some compulsion equivalent to intimidation annuls or subdues the free
exercise of the will of the offended party.  This is especially true in the case of young,
26 

innocent and immature girls who could not be expected to act with equanimity of
disposition and with nerves of steel.  Young girls cannot be expected to act like adults
27 

under the same circumstances or to have the courage and intelligence to disregard the
threat. 
28 
1âwphi1

In this case, it is not hard to imagine eight-year old Kristine Joy being intimidated by her
neighbor, a full grown adult male, who constantly accosted her while she was alone and
on her way to school and who consistently ordered her not to report what he had been
doing to her. That this child was cowed into silence and submission and was traumatized
in the process is reflected in the psychological report  made by the DSWD psychologist,
29 

Lucrecia Cruz, the latter stating that:

BEHAVIOR OBSERVATION:

Subject appeared kemp, fair complexion, attractive, wearing white T-shirt

and maong short pants. She [was] observed to be cooperative, attentive
and expressive.

In an interview, subject disclosed that since she was in Grade II a certain

Alvin Amployo a.k.a. Tikboy who (sic) sexually molested her. She
narrated that her private part was fondled for many times. The incident
happened every time she went to school in the morning, noontime and in
the afternoon. The abuser hide (sic) along the store way to school. Then
she was threatened not to reveal to anybody especially to her parents.

TEST RESULT AND INTERPRETATION:

Test result revealed that subject manifest anger as she quoted 'gusto ko
makulong si Tikboy ng matagal. Indicate strong fear, anxiety, poor
concentration, nightmare, shame and auditory hallucination. Implies low
self-esteem as she quoted ' madumi na ang sarili ko, nahihiya ako sa
magulang ko at Uncle ko baka tuksuhin akong bobo na hindi ko agad
sinabi.

Indicate that subject disturbed towards past as she quoted

' ang masidhing ala-ala ng aking kamusmusan ay yong panghihipo ni
Tikboy. Thus, subject aiming that Tikboy be put to jail.

CASE SUMMARY AND RECOMMENDATION:

In summary, Kristine Joy Mosquera is a victim of sexual molestation committed by a

certain Alvin Amployo or Tikboy. Subject was greatly affected psychologically and
emotionally. Thus, subject manifest from (sic) anger, anxiety, poor concentration,
nightmare, shame, auditory hallucination and low self-esteem. She is deeply depressed
and suffer from traumatic sexualization. From psychotherapeutic point of view subject
needs constant counseling to overcome her presented (sic) crisis. To assist the subject
to ventilate her ambivalent feeling. To restore moral values, improve her self-esteem and
enhance her emotional and social functioning.

As to the third element, there is no dispute that Kristine Joy is a minor, as she was only
eight years old at the time of the incident in question.
Finally, we note that no award for moral damages was made by both the trial court and
the Court of Appeals despite the fact that the mental anguish suffered by Kristine Joy on
account of her harrowing experience is spread all over the records of the case and has
been well documented by the psychologist who examined her as reflected in her report
quoted above. At the risk of being repetitive, proof of Kristine Joy's mental anguish,
wounded feelings and social humiliation finds an express outlet in her words:
' madumi na ang sarili ko, nahihiya ako sa magulang ko at Uncle ko baka tuksuhin akong
bobo na hindi ko agad sinabi and ' ang masidhing ala-ala ng aking kamusmusan ay yong
panghihipo ni Tikboy. We therefore modify the ruling of the Court of Appeals by awarding
moral damages to Kristine Joy in the amount of Twenty Thousand Pesos (P20,000.00)
pursuant to Article 2219 of the Civil Code. 30

Additionally, we find relevant to discuss here the case of People v. Solmoro  wherein we
31 

declared that upon a finding of guilt of the accused for acts of lasciviousness, the amount
of P30,000.00 as moral damages may be further awarded to the victim in the same way
that moral damages are awarded to victims of rape even without need of proof because it
is assumed that they suffered moral injury. Considering that the crime of acts of
lasciviousness or abusos dishonestos is necessarily included in rape  and both cases
32 

involve sexual assault albeit in different degrees, the rationale for foregoing with proof of
moral damages in rape cases applies with equal force to crimes of acts of lasciviousness,
the rationale being:

One other cognate development in the case law on rape is applicable to the present
disposition. The Court has also resolved that in crimes of rape, such as that under
consideration, moral damages may additionally be awarded to the victim in the criminal
proceeding, in such amount as the Court deems just, without the need for pleading or
proof of the basis thereof as has heretofore been the practice. Indeed, the conventional
requirement of allegata et probate in civil procedure and for essentially civil cases should
be dispensed with in criminal prosecutions for rape with the civil aspect included therein,
since no appropriate pleadings are filed wherein such allegations can be made.

Corollarily, the fact that complainant has suffered the trauma of mental, physical and
psychological sufferings which constitute the bases for moral damages are too obvious to
still require the recital thereof at the trial by the victim, since the Court itself even
assumes and acknowledges such agony on her part as a gauge of her credibility. What
exists by necessary implication as being ineludibly present in the case need not go
through the superfluity of still being proved through a testimonial charade.  33

It does not end there. In People v. Abadies,  and with respect specifically to lascivious
34 

conduct amounting to child abuse under Section 5(b) of Rep. Act No. 7610, we imposed
a fine of P30,000 for each count of lascivious conduct in addition to the award of moral
damages on the justification that '

It will be noted that Section 5, Article II of Republic Act No. 7610 provides for the penalty
of imprisonment. Nevertheless, Section 31(f), Article XII (Common Penal Provisions)
thereof allows the imposition of a fine subject to the discretion of the court, provided that
the same is to be administered as a cash fund by the Department of Social Welfare and
Development and disbursed for the rehabilitation of each child victim, or any immediate
member of his family if the latter is the perpetrator of the offense. This provision is in
accord with Article 39 of the Convention on the Rights of the Child, to which the
Philippines became a party on August 21, 1990, which stresses the duty of states parties
to ensure the physical and psychological recovery and social reintegration of abused and
exploited children in an environment which fosters their self-respect and human dignity.

With the case of Abadies as guidepost, we impose a fine of Fifteen Thousand Pesos
(P15,000.00) on petitioner.
WHEREFORE, premises considered, the Resolution of the Court of Appeals modifying
the Decision of the Regional Trial Court of Olongapo City, Branch 72, finding accused-
petitioner ALVIN AMPLOYO y EBALADA alias 'TIKBOY guilty beyond reasonable doubt
of violation of Republic Act No. 7610, and sentencing him to suffer the penalty of twelve
(12) years and one (1) day of reclusion temporal, as minimum, to fifteen (15) years, six
(6) months and twenty (20) days of reclusion temporal, as maximum is AFFIRMED with
the MODIFICATION that petitioner is hereby ordered to pay a fine of Fifteen Thousand
Pesos (P15,000.00) and moral damages in the amount of Twenty Thousand Pesos
(P20,000.00). No costs.

SO ORDERED.

People v. Ladra
Facts:
AAA was born on Sept 3, 1995. She was the eldest among 5 siblings. She lived with
her family in a remote are in Dumarait, Balingasag, Misamis Oriental. Ladra was a
relative of BBB, AAA’s mother, who allowed him to stay with their family out of
pity. He ran errands for them and attended to the children when BBB was busy
washing clothes and her husband, CCC, was tending to their farm.

It was between 2000 and 2001 when the incident happened. AAA was 5 years old. she
and her siblings were left at home with Ladra. After their meal, he ordered them to
sleep. Suddenly, AAA was awakened when she felt accused-appellant, who was
already naked, on top of her, forced his penis into her vagina, and made push and pull
movements, causing her pain. Accused-appellant threatened to kill her if she told
anyone. Thereafter, he repeatedly molested her, each time bringing his bolo with him
until 2002 when he left their house.

In 2008, AAA was already 12 years old. She was surprised when she saw Ladra in
their kitchen. He squeezed her vagina and told her that they were going to visit his
house. Scared, AAA cried and told her cousin, DDD, about the incident. She also told
DDD about the the incidents committed by Ladra. AAA told BBB about her traumatic
experiences when she was 5 years old. They reported the incident to the barangay and
thereafter, had the incident recorded in the police blotter. Later, AAA filed criminal
cases against Ladra who was subsequently arrested.

It was found in the physical examination that AAA that there was a presence of old
healed lacerations in her genitalia.

Ladra was charged Sec 5(b) of RA 7610 for his acts on AAA was 5yo and Acts of
Lasciviousness for his acts on AAA when she was 12yo.

RTC convicted Ladra with Rape and Unjust Vexation. CA affirmed the decision.
RULING:
"Lascivious conduct" is defined in Section 2 of the Rules and Regulations on
the Reporting and Investigation of Child Abuse Cases, as follows: chanRoblesvirtualLawlibrary

[T]he intentional touching, either directly or through

clothing, of the genitalia, anus, groin, breast, inner thigh, or
buttocks, or the introduction of any object into the genitalia,
anus or mouth, of any person, whether of the same or opposite
sex, with an intent to abuse, humiliate, harass, degrade,
or arouse or gratify the sexual desire of any person,
bestiality, masturbation, lascivious exhibition of the genitals or
pubic area of a person.
In Amployo v. People,42 the Court expounded on the definition of the word
"lewd," to wit:
chanRoblesvirtualLawlibrary

The term "lewd" is commonly defined as something indecent or

obscene; it is characterized by or intended to excite crude
sexual desire. That an accused is entertaining a lewd or
unchaste design is necessarily a mental process the existence of
which can be inferred by overt acts carrying out such
intention, i.e., by conduct that can only be interpreted as lewd
or lascivious. The presence or absence of lewd designs is
inferred from the nature of the acts themselves and the
environmental circumstances. What is or what is not lewd
conduct, by its very nature, cannot be pigeonholed into a
precise definition. As early as U.S. v. Gomez we had already
lamented that -
It would be somewhat difficult to lay down
any rule specifically establishing just what
conduct makes one amenable to the provisions
of article 439 of the Penal Code. What
constitutes lewd or lascivious conduct must
be determined from the circumstances of each
case. It may be quite easy to determine in a
particular case that certain acts are lewd
and lascivious, and it may be extremely
difficult in another case to say just where
the line of demarcation lies between such
conduct and the amorous advances of an ardent
lover.43
After a careful evaluation, the Court finds that the mere fact of "squeezing"
the private part of a child - a young girl 12 years of age - could not have
signified any other intention but one having lewd or indecent design. It must
not be forgotten that several years prior, accused-appellant had raped AAA in
the same house, for which act he was appropriately convicted. Indeed, the
law indicates that the mere touching - more so, "squeezing," in this case,
which strongly suggests that the act was intentional - of AAA's genitalia
clearly constitutes lascivious conduct. It could not have been done merely to
annoy or vex her, as opined by the courts a quo. That AAA was fully clothed
at that time, which led the courts a quo to believe that accused-appellant
could not have intended to lie with her, is inconsequential. "'Lewd' is defined
as obscene, lustful, indecent, and lecherous. It signifies that form of
immorality which has relation to moral impurity; or that which is carried on a
wanton manner."44 As such, accusedappellant's act of squeezing AAA's vagina
was a lewd and lascivious act within the definitions set by law and
jurisprudence.
Under Section 5 (b) of RA 7610, the prescribed penalty for lascivious conduct
is reclusion temporal in its medium period to reclusion perpetua. In the
absence of mitigating or aggravating circumstances, the maximum term of
the sentence shall be taken from the medium period45 thereof. Applying the
Indeterminate Sentence Law, the minimum term shall be taken within the
range of the penalty next lower in degree, which is prision mayor in its
medium and maximum periods to reclusion temporal in its minimum
period.46 Accordingly, accused-appellant is sentenced to suffer an
indeterminate penalty of imprisonment ranging from ten (10) years and one
(1) day of prision mayor, as minimum, to 17 years, four (4) months, and one
(1) day of reclusion temporal, as maximum. In addition, and conformably
with recent jurisprudence, accused-appellant is ordered to pay AAA the
amounts of P20,000.00 as civil indemnity, P15,000.00 as moral damages,
P15,000.00 as exemplary damages, and P15,000.00 as fine, all of which shall
earn interest at the rate of six percent (6%) per annum from the date of
finality of this judgment.47

WHEREFORE, the Decision dated June 30, 2015 of the Court of Appeals in
CA-G.R. CR-HC No. 01160-MIN is hereby AFFIRMED with the
following MODIFICATIONS:

(1) In FC Criminal Case No. 2008-426, accused-appellant Dominador Ladra is

found guilty beyond reasonable doubt of the crime of Rape under Article 266-
A of the Revised Penal Code, as amended, and, accordingly, sentenced to
suffer the penalty of reclusion perpetua and to pay private complainant the
amounts of P75,000.00 as moral damages, P75,000.00 as civil indemnity,
and P75,000.00 as exemplary damages;

(2) In FC Criminal Case No. 2008-427, accused-appellant Dominador Ladra is

found guilty beyond reasonable doubt of the crime of Acts of Lasciviousness
under Article 336 of the Revised Penal Code, as amended, in relation to
Section 5 (b) of Republic Act No. 7610 and, accordingly, sentenced to suffer
the indeterminate prison term of 10 years and one (1) day of prision mayor,
as minimum, to 17 years, four (4), months and one (1) day of reclusion
temporal, as maximum, and to pay private complainant the amounts of
P20,000.00 as civil indemnity, P15,000.00 as moral damages, P15,000.00 as
exemplary damages, and P15,000.00 as fine;

(3) Accused-appellant Dominador Ladra is ordered to pay the private

complainant interest on all monetary awards at the legal rate of six percent
(6%) per annum from the date of finality of this Decision until full payment.

SO ORDERED.
MINORITY OF THE VICTIM

FACTS:
On September 18th, 2000, victim AAA revealed to DDD (her sister), Giselle (friend), and
Teresa (teacher) that she was raped by her brother, the appellant, Elmer Ceredon.

Together, they went to the barangay captain who told them to report to the police.
Policemen were dispatched and brought the appellant to the station.

The victim accused the appellant of raping her 10 times during the second confrontation. The
appellant then admitted that he raped his sister 10 ties and asked for forgiveness. The victim,
however, could no longer forgive him as her heart has hardened like stone.

The appellant was indicted for 10 counts of rape (1995 x5, 1996x2, 1998 x2, 2000 x1). The
trial court convicted appellant on all ten counts of rape, sentencing him to suffer the death
penalty in each of the 10 criminal Informations.

Appellant argues that in Criminal Case No. 08-1305, no evidence was presented as to
the age of the victim, AAA. This is false. On the issue of age of the victim, it is enough
that the victim testified on her age vis-a-vis the time she was raped by appellant.

RULING:

The Court set out guidelines as to the appreciation of age, either as an element of the
crime or as a qualifying circumstance:

that although the best evidence to prove the age of the offended party is an original or
certified true copy of the certificate of live birth of such party, its presentation into
evidence is not a sine qua non requirement to prove her age for the appreciation of
minority, either as an element of the crime or as a qualifying circumstance. The decision
goes on to state that in the absence of (a) certificate of live birth, (b) authentic document,
or (c) testimony of the victim's mother or relatives concerning the victim's
age, complainant's testimony will suffice provided that it is expressly and clearly admitted
by the accused.

In the case at bar, private complainant categorically disclosed that she was only ten (10)
years old at the time of the first rape in 199596 and fifteen (15) years of age when she was
last raped by appellant.97 Appellant Ceredon admitted these in a confrontation between
him and private complainant, witnessed by their mother and other relatives.98