EN BANC
G.R. No. 214497, April 18, 2017
EDUARDO QUIMVEL Y BRAGA, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.
D E C I S I O N
VELASCO JR., J.:
AMENDED INFORMATION
The Undersigned Assistant City Prosecutor of Ligao City hereby accuses EDUARDO QUIMVEL y BRAGA also known as EDWARD/EDUARDO QUIMUEL y BRAGA of the crime of Acts of Lasciviousness in relation to Section 5(b) of R.A. No. 7610, committed as follows:That on or about 8 o'clock in the evening of July 18, 2007 at Palapas, Ligao City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with lewd and unchaste design, through force and intimidation, did then and there, willfully, unlawfully and feloniously, insert his hand inside the panty of [AAA],7 a minor of 7 years old and mash her vagina, against her will and consent, to her damage and prejudice.ACTS CONTRARY TO LAW.
AAA, who was seven years old at the time of the incident, is the oldest among the children of XXX and YYY. XXX worked as a household helper in Batangas while YYY was a Barangay Tanod who derived income from selling vegetables. AAA and her siblings, BBB and CCC, were then staying with YYY in Palapas, Ligao City.
On the other hand, Quimvel, at that time, was the caretaker of the ducks of AAA's grandfather. He lived with AAA's grandparents whose house was just a few meters away from YYY's house.
At around 8 o'clock in the evening of [July 18,] 2007, YYY went out of the house to buy kerosene since there was no electricity. While YYY was away, Quimvel arrived bringing a vegetable viand from AAA's grandfather. AAA requested Quimvel to stay with them as she and her siblings were afraid. He agreed and accompanied them. AAA and her siblings then went to sleep. However, she was awakened when she felt Quimvel's right leg on top of her body. She likewise sensed Quimvel inserting his right hand inside her panty. In a trice, she felt Quimvel caressing her private part. She removed his hand.
Quimvel was about to leave when YYY arrived. She asked him what he was doing in his house. Quimvel replied that he was just accompanying the children. After he left, YYY and his children went back to sleep.
On [July 29,] 2007, XXX arrived from Batangas. Later in the evening while XXX was lying down with her children, she asked them what they were doing while she was away. BBB told her that Quimvel touched her Ate. When XXX asked AAA what Quimvel did to her, she recounted that Quimvel laid down beside her and touched her vagina.
Upon hearing this, XXX and YYY went to the Office of the Barangay Tanod and thereafter to the police station to report the incident. Afterwards, they brought AAA to a doctor for medical examination.
As expected, Quimvel denied the imputation hurled against him. He maintained that he brought the ducks of AAA's grandmother to the river at 7 o'clock in the morning, fetched it and brought it back at AAA's grandmother's place at 4 o'clock in the afternoon of [July 18,] 2007. After that, he rested. He said that he never went to AAA's house that evening. When YYY confronted and accused him of touching AAA, he was totally surprised. Even if he denied committing the crime, he was still detained at the Barangay Hall. He was then brought to the police station for interrogation. Eventually, he was allowed to go home. He did not return to the house of AAA's grandmother to avoid any untoward incidents.
WHEREFORE, in the light of the foregoing, judgment is hereby rendered:
1. Finding the accused, EDUARDO QUIMVEL Y BRAGA a.k.a. EDWARD/EDUARDO QUIMUEL Y BRAGA, GUILTY beyond reasonable doubt of the crime of Acts of Lasciviousness in relation to Section 5 (b), Article III of R.A. 7610 and thereby sentenced him to suffer the penalty of imprisonment from FOURTEEN (14) YEARS, EIGHT (8) MONTHS and ONE (1) DAY of Reclusion Temporal in its medium period as minimum to FIFTEEN (15) YEARS, SIX (6) MONTHS and NINETEEN (19) DAYS of Reclusion Temporal in its medium period as maximum; and
2. ORDERING the accused, EDUARDO QUIMVEL Y BRAGA a.k.a. EDWARD/EDUARDO QUIMUEL Y BRAGA, to pay the victim the amount of P30,000.00 as moral damages and to pay a fine in the amount of P30,000.00.
In the service of his sentence, accused EDUARDO QUIMVEL Y BRAGA a.k.a. EDWARD/EDUARDO QUIMVEL Y BRAGA shall be credited with the period of his preventive detention pursuant to Article 29 of the Revised Penal Code.
No costs.
SO ORDERED.
WHEREFORE, the Decision dated 23 January 2013 of the Regional Trial Court, Fifth Judicial Region, Ligao City Branch II, in Criminal Case No. 5530, is hereby MODIFIED in that accused-appellant EDUARDO QUIMVEL y BRAGA also known as EDUARDO/EDWARD QUIMUEL y BRAGA is ORDERED to pay the victim, AAA moral damages, exemplary damages and fine in the amount of P15,000.00 each as well as P20,000.00 as civil indemnity. All damages shall earn interest at the rate of six percent (6%) per annum from the date of finality of this judgment.
SO ORDERED.
I.
The CA erred in affirming the decision of the trial court as the prosecution was not able to prove that he is guilty of the crime charged beyond reasonable doubt.II.
Assuming without admitting that he is guilty hereof, he may be convicted only of acts of lasciviousness under Art. 336 of the Revised Penal Code (RPC) and not in relation to Sec. 5(b) of RA 7610.
Section 6. Sufficiency of complaint or information. - A complaint or information is sufficient if it states the name of the accused, the designation of the offense by the statute, the acts or omissions complained of as constituting the offense; the name of the offended party; the approximate time of the commission of the offense, and the place wherein the offense was committed. (emphasis added)Jurisprudence has already set the standard on how the requirement is to be satisfied. Case law dictates that the allegations in the Information must be in such form as is sufficient to enable a person of common understanding to know what offense is intended to be charged and enable the court to know the proper judgment. The Information must allege clearly and accurately the elements of the crime charged. The facts and circumstances necessary to be included therein are determined by reference to the definition and elements of the specific crimes.14
No matter how conclusive and convincing the evidence of guilt may be, an accused cannot be convicted of any offense unless it is charged in the information on which he is tried or is necessarily included therein. To convict him of a ground not alleged while he is concentrating his defense against the ground alleged would plainly be unfair and underhanded. The rule is that a variance between the allegation in the information and proof adduced during trial shall be fatal to the criminal case if it is material and prejudicial to the accused so much so that it affects his substantial rights. (emphasis added)Indeed, the Court has consistently put more premium on the facts embodied in the Information as constituting the offense rather than on the designation of the offense in the caption. In fact, an investigating prosecutor is not required to be absolutely accurate in designating the offense by its formal name in the law. What determines the real nature and cause of the accusation against an accused is the actual recital of facts stated in the Information or Complaint, not the caption or preamble thereof nor the specification of the provision of law alleged to have been violated, being conclusions of law.17 It then behooves this Court to place the text of the Information under scrutiny.
Art. 336. Acts of lasciviousness. - Any person who shall commit any act of lasciviousness upon other persons of either sex, under any of the circumstances mentioned on the preceding article, shall be punished by prision correccional.Conviction thereunder requires that the prosecution establish the following elements:
1. That the offender commits any act of lasciviousness or lewdness;On the other hand, the prosecution endeavored to prove petitioner's guilt beyond reasonable doubt for child abuse under Sec. 5(b) of RA 7610, which provides:
2. That it is done under any of the following circumstances:18a) Through force, threat, or intimidation;
b) When the offended party is deprived of reason or otherwise unconscious;
c) By means of fraudulent machination or grave abuse of authority;
d) When the offended party is under twelve (12) years of age or is demented, even though none of the circumstances mentioned above be present; and
3. That the offended party is another person of either sex.
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.Before an accused can be held criminally liable for lascivious conduct under Sec. 5(b) of RA 7610, the requisites of Acts of Lasciviousness as penalized under Art. 336 of the RPC earlier enumerated must be met in addition to the requisites for sexual abuse under Sec. 5(b) of RA 7610, which are as follows:19
The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following:
x x x x
(b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subject 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; x x x (emphasis added)
1. The accused commits the act of sexual intercourse or lascivious conduct.Hypothetically admitting the elements of Art. 336 of the RPC, as well as the first and third elements under RA 7610 - that a lascivious act was committed against AAA who at that time was below twelve (12) years old petitioner nevertheless contends that the second additional element, requiring that the victim is a child "exploited in prostitution or subjected to other sexual abuse," is absent in this case.
2. The said act is performed with a child exploited in prostitution or subjected to other sexual abuse.
3. That child, whether male or female, is below 18 years of age.20 (emphasis supplied)
To the mind of the Court, the allegations are sufficient to classify the victim as one "exploited in prostitution or subject to other sexual abuse." This is anchored on the very definition of the phrase in Sec. 5 of RA 7610, which encompasses children who indulge 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.23AMENDED INFORMATION
The Undersigned Assistant City Prosecutor of Ligao City hereby accuses EDUARDO QUIMVEL y BRAGA also known as EDWARD/EDUARDO QUIMUEL y BRAGA of the crime of Acts of Lasciviousness in relation to Section 5(b) of R.A. No. 7610, committed as follows:
That on or about 8 o'clock in the evening of July 18, 2007 at Palapas, Ligao City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with lewd and unchaste design, through force and intimidation, did then and there, willfully, unlawfully and feloniously, insert his hand inside the panty of [AAA],21 a minor of 7 years old and mash her vagina, against her will and consent, to her damage and prejudice.
ACTS CONTRARY TO LAW.22 (emphasis added)
Senator Angara. I refer to line 9, 'who for money or profit.' I would like to amend this, Mr. President, to cover a situation where the minor may have been coerced or intimidated into this lascivious conduct, not necessarily for money or profit, so that we can cover those situations and not leave loophole in this section.Clear from the records of the deliberation is that the original wording of Sec. 5 of RA 7610 has been expanded so as to cover abuses that are not characterized by gain, monetary or otherwise. In the case at bar, the abuse suffered by AAA squarely falls under this expanded scope as there was no allegation of consideration or profit in exchange for sexual favor. As stated in the Information, petitioner committed lascivious conduct through the use of "force" and "intimidation."
The proposal I have is something like this: WHO FOR MONEY, PROFIT, OR ANY OTHER CONSIDERATION OR DUE TO THE COERCION OR INFLUENCE OF ANY ADULT, SYNDICATE OR GROUP INDULGE, et cetera.
The President Pro Tempore. I see. That would mean also changing the subtitle of Section 4. Will it no longer be child prostitution?
Senator Angara. No, no. Not necessarily, Mr. President, because we are still talking of the child who is being misused for sexual purposes either for money or for consideration. What I am trying to cover is the other consideration. Because, here, it is limited only to the child being abused or misused for sexual purposes, only for money or profit.
I am contending, Mr. President, that there may be situations where the child may not have been used for profit or...
The President Pro Tempore. So, it is no longer prostitution. Because the essence of prostitution is profit.
Senator Angara. Well, the Gentleman is right. Maybe the heading ought to be expanded. But, still, the President will agree that that is a form or manner of child abuse.
The President Pro Tempore. What does the Sponsor say? Will the Gentleman kindly restate the amendment?ANGARA AMENDMENT
Senator Angara. The new section will read something like this, Mr. President: MINORS, WHETHER MALE OR FEMALE, WHO FOR MONEY, PROFIT, OR ANY OTHER CONSIDERATION OR INFLUENCE OF ANY ADULT, SYNDICATE OR GROUP INDULGE IN SEXUAL INTERCOURSE, et cetera.
Senator Lina. It is accepted, Mr. President.
The President Pro Tempore. Is there any objection? [Silence] Hearing none, the amendment is approved.
How about the title, 'Child Prostitution,' shall we change that too?
Senator Angara. Yes, Mr. President, to cover the expanded scope.
The President Pro Tempore. Is that not what we would call probable 'child abuse'?
Senator Angara. Yes, Mr. President.
The President Pro Tempore. Subject to rewording. Is there any objection? [Silence] Hearing none, the amendment is approved.
x x x sexual intercourse or lascivious conduct under the coercion or influence of any adult exists when there is some form of compulsion equivalent to intimidation which subdues the free exercise of the offended party's free will. Corollary thereto, Section 2(g) of the Rules on Child Abuse Cases conveys that sexual abuse involves the element of influence which manifests in a variety of forms. It is defined as:With the foregoing, the Court need not burden itself with nitpicking and splitting hairs by making a distinction between these similar, if not identical, words employed, and make a mountain out of a mole hill.
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.
To note, the term "influence" means the "improper use of power or trust in any way that deprives a person of free will and substitutes another's objective." Meanwhile, "coercion" is the "improper use of x x x power to compel another to submit to the wishes of one who wields it." (emphasis added)
Section 9. Cause of the accusation. - The acts or omissions complained of as constituting the offense and the qualifying and aggravating circumstances must be stated in ordinary and concise language and not necessarily in the language used in the statute but in terms sufficient to enable a person of common understanding to know what offense is being charged as well as its qualifying and aggravating circumstances and for the court to pronounce judgment.The Court has held in a catena of cases31 that the rule is satisfied when the crime "is described in intelligible terms with such particularity as to apprise the accused, with reasonable certainty, of the offense charged." Furthermore, "[t]he use of derivatives or synonyms or allegations of basic facts constituting the offense charged is sufficient." Hence, the exact phrase "exploited in prostitution or subjected to other abuse" need not be mentioned in the Information. Even the words "coercion or influence" need not specifically appear.
The undersigned 4th Assistant Provincial Prosecution (sic) of Laguna upon a sworn complaint filed by the private complainant, [AAA], hereby accuses ISIDRO OLIVAREZ of the crime of VIOLATION OF RA 7610, committed as follows:Conspicuously enough, the Infonnation in Olivarez is couched in a similar fashion as the Information in the extant case. The absence of the phrase "exploited in prostitution or subject to other sexual abuse" or even the specific mention of "coercion" or "influence" was never a bar for the Court to uphold the finding of guilt against an accused for violation of RA 7610. Just as the Court held that it was enough for the Information in Olivarez to have alleged that the offense was committed by means of "force and intimidation," the Court must also rule that the Information in the case at bench does not suffer from the alleged infirmity.That on or about July 20, 1997, in the Municipality of San Pedro, Province of Laguna, within the jurisdiction of this Honorable Court, said accused actuated by lewd design did then and there wilfully, unlawfully and feloniously by means of force and intimidation commit acts of lasciviousness on the person of one [AAA], by touching her breasts and kissing her lips, against her will, to her damage and prejudice.CONTRARY TO LAW. (emphasis added)
The undersigned Assistant City Prosecutor accuses MICHAEL JOHN Z. MALTO of VIOLATION OF SECTION 5[b], ARTICLE III, REPUBLIC ACT 7610, AS AMENDED, committed as follows:Interestingly, the acts constitutive of the offense, as alleged in the Information, could make out a case for violation of either Sec. 5(b) of RA 7610 or Rape under the RPC.40 Nevertheless, the Court affirmed the finding that Malta is criminally liable for violation of RA 7610, and not for Rape.That on or about and sometime during the month of November 1997 up to 1998, in Pasay City, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, Michael John. Z. Malto, a professor, did then and there willfully, unlawfully and feloniously take advantage and exert influence, relationship and moral ascendancy and induce and/or seduce his student at Assumption College, complainant, AAA, a minor of 17 years old, to indulge in sexual intercourse and lascivious conduct for several times with him as in fact said accused has carnal knowledge.
Contrary to law. (emphasis and words in brackets added)
The first element refers to the acts of lasciviousness that the accused performs on the child. The second element refers to the special circumstance that the child (is) exploited in prostitution.or subjected to other sexual abuse. This special circumstance already exists when the accused performs acts of lasciviousness on the child. In short, the acts of lasciviousness that the accused performs on the child are separate and different from the child's exploitation in prostitution or subjection to "other sexual abuse."Contrary to the exposition, the very definition of "child abuse" under Sec. 3(b) of RA 7610 does not require that the victim suffer a separate and distinct act of sexual abuse aside from the act complained of. For it refers to the maltreatment, whether habitual or not, of the child. Thus, a violation of Sec. 5(b) of RA 7610 occurs even though the accused committed sexual abuse against the child victim only once, even without a prior sexual affront.
Under Article 336 of the RPC, the accused performs the acts of lasciviousness on a child who is neither exploited in prostitution nor subjected to "other sexual abuse." In contrast, under Section 5 of RA 7610, the accused performs the acts of lasciviousness on a child who is either exploited in prostitution or subjected to "other sexual abuse."
Section 5 of RA 7610 deals with a situation where the acts of lasciviousness are committed on a child already either exploited in prostitution or subjected to "other sexual abuse." Clearly, the acts of lasciviousness committed on the child are separate and distinct from the other circumstance that the child is either exploited in prostitution or subjected to "other sexual abuse." (emphasis supplied)
The foregoing testimonial account demonstrates that all the elements of the crime of Acts of Lasciviousness under Sec. 5(b) of RA 7610, as earlier enumerated, are present.
Q Okay. On the same date, where was your mother, if you know? A During that time, my mother was in Batangas, she being a household helper. Q Alright. How about your father, where was he on July 18, 2007, at more or less 8:00 o'clock in the evening? A He was on duty at Palapas, Ligao City. Q Okay. What was your father's job? A He was on duty, since he was a Barangay Tanod. Q Okay. Now, on that date and time, where were you, if you recall? A I was in our house. Q Who were with you inside your house? A I was with my two (2) siblings. Q Okay. Now, what happened while you and your siblings were there inside your house on that date and time? A Eduardo went to our house with a viand vegetable for us. Q Okay. Who is this Eduardo that you are referring to? A He is the helper of my grandfather. Q Okay. If you know, why was he bringing you then a viand? A He was sent by our Lolo to bring the viand for us. Q Alright. When he brought the viand to you, what did you say, if any? A I told him to accompany us in our house because we are afraid. Q Okay. What did he say, if any, when you told him that? A He told me, it's alright. Q Okay. So, what did you do after he told you that? A After that, I went to sleep. Q How about your brother or sister, what did they do also? A They too went to sleep. Q And then what happened, if you recall? A Since his leg was placed over my body. I was awaken[ed] because from that, he was also inserting his hand inside my panty. Q Alright. Now, could you tell us which leg was it that he placed on top of your body? A His right leg(,) ma'am. Q Okay. Now, you've mentioned that he inserted his hand inside your panty, do you recall what you were wearing at that time? A I was wearing shorts and panty. Q Alright. How about on the upper portion of your body, what were you wearing then? A I was wearing a blouse, like what I am wearing now. (Witness pointing to her blouse) Q Alright. And you mentioned that he inserted his hand on your panty, which hand did he use? A His right hand. Q Alright. And after inserting his hand inside your panty, what did he do with it? A After inserting his hand inside my panty, he rubbed my vagina. (Witness is demonstrating by rubbing her left hand with her right hand.) Q Now, could you tell us for how long did Eduardo rubbed or caressed your vagina? (sic) A Maybe it took for about five (5) minutes. Q Do you know how long is a minute? A I do not know(,) ma'am. Q Now, if you are going to count one (1) to ten (10), each count would be equivalent to one (1) second and if you have counted for ten (10), on what number would you reach to approximate the time wherein Eduardo caressed your vagina? A It could be thirty (30) minutes. COURT Maybe she did not understand it. PROS. CRUZ Q Alright. Now, he (sic) took a long time for the accused to caress your vagina, is that what you are trying to tell this Honorable Court? A Yes(,) ma'am. Q And what did you do when he was caressing your vagina for that long? A I removed his hand from inside my panty.51
Section 5. Child Prostitution and Other Sexual Abuse. - x x xIf Art. 336 then ceased to be a penal provision in view of its alleged incompleteness, then so too would Sec. 5(b) of RA 7610 be ineffective since it defines and punishes the prohibited act by way of reference to the RPC provision.
x x x x
(b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subject 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; x x x (emphasis added)
WHEREFORE, the Decision dated 23 January 2013 of the Regional Trial Court, Fifth Judicial Region, Ligao City Branch 11, in Criminal Case No. 5530, is hereby MODIFIED in that accused-appellant EDUARDO QUIMVEL y BRAGA also known as EDUARDO/EDWARD QUIMUEL y BRAGA is SENTENCED to suffer the indeterminate imprisonment of twelve (12) years and one (1) day of reclusion temporal in its minimum period as minimum to fifteen (15) years. six (6) months, and twenty-one (21) days of reclusion temporal in its medium period as maximum. He is further ORDERED to pay the victim, AAA, moral damages, exemplary damages and fine in the amount of P15,000.00 each as well as P20,000.00 as civil indemnity. All damages shall earn interest at the rate of six percent (6%) per annum from the date of finality of this judgment.SO ORDERED.
Endnotes:
1Rollo, pp. 29-40. Penned by Associate Justice Japar B. Dimaampao and concurred in by Associate Justices Elihu A. Ybañez and Cannelita S. Manahan.
2 Id. at 42-43.
3 Entitled People of the Philippines v. Eduardo Quimvel y Braga a.ka. Eduardo/Edward Quimuel y Braga.
4 With modification as to the amount of damages.
5 AN ACT PROVIDING FOR STRONGER DETERRENCE AND SPECIAL PROTECTION AGAINST CHILD ABUSE, EXPLOITATION AND DISCRIMINATION, AND FOR OTHER PURPOSES.
6Rollo, p. 65.
7 Any information to establish or compromise the identity of the victim, as well as those of her immediate family or household members, shall be withheld, and fictitious initials are used, pursuant to RA 7610, "An Act Providing for Stronger Deterrence and Special Protection Against Child Abuse, Exploitation and Discrimination, and for Other Purposes"; Republic Act No. 9262, "An Act Defining Violence Against Women and Their Children, Providing for Protective Measures for Victims, Prescribing Penalties Therefor, and for Other Purposes"; Section 40 of A.M. No. 04-10-11-SC, known as the "Rule on Violence Against Women and Their Children," effective November 15, 2004; and People v. Cabalquinto, G.R. No. 167693, September 19, 2006, 502 SCRA 419.
8Rollo, pp. 30-31.
9 Id. at 65-73. Penned by Judge Amy Ana L. De Villa-Rosero.
10 Id. at 73.
11 Id. at 39-40.
12 Id. at 20-21. Olivarez v. Court of Appeals, 503 Phil. 421 (2005).
13 Section 14. x x x
(2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall el1ioy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustifiable. (emphasis added)
14Serapio v. Sandiganbayan (Third Division), 444 Phil. 499, 522 (2003).
15Andaya v. People, 526 Phil. 480 (2006).
16 Id. at 497.
17Espino v. People, 713 Phil. 377 (2013), citing People v. Manalili, 355 Phil. 652, 688 (1998).
18 The circumstances under which rape can be committed under Art. 335 of the Revised Penal Code have been modified by Republic Act No. 8353, otherwise known as the Anti-Rape Law.
19Cabila v. People, G.R. No. 173491, November 23, 2007, 538 SCRA 695.
20Ebalada v. People, G.R. No. 157718, April 26, 2005, 457 SCRA 282.
21 Any information to establish or compromise the identity of the victim, as well as those of her immediate family or household members, shall be withheld, and fictitious initials are used, pursuant to RA 7610, "An Act Providing for Stronger Deterrence and Special Protection Against Child Abuse, Exploitation and Discrimination, and for Other Purposes"; Republic Act No. 9262, "An Act Defining Violence Against Women and Their Children, Providing for Protective Measures for Victims, Prescribing Penalties Therefor, and for Other Purposes"; Section 40 of A.M. No 04-10-11-SC, known as the "Rule on Violence Against Women and Their Children," effective November 15, 2004; and People v. Cabalquinto, G.R. No. 167693, September 19, 2006, 502 SCRA 419.
22Rollo, p. 65.
23People v. Larin, 357 Phil. 987 (1998).
24Mallo v. People, 560 Phil. 119 (2007).
25 Supra note 23, at 998-999.
26 <http://thelawdictionary.org/coercion/> last accessed on March 3, 2017.
27 <http://thelawdictionary.org/undue-influence/> last accessed on March 3, 2017.
28 <http://thelawdictionary.org/force/> last accessed on March 4, 2017.
29Sazon v. Sandiganbayan, 598 Phil. 35 (2009).
30 710 Phil. 792, 805-806 (2013).
31Lazarte, Jr. v. Sandiganbayan, 600 Phil. 475 (2009); Serapio v. Sandiganbayan (Third Division), 444 Phil. 499, 522 (2003).
32 Supra note 12.
33 433 Phil. 814, 818 (2002); the Information reads:
That on or about July 1, 1997, in the Municipality of San Pedro, Province of Laguna, Philippines, and within the jurisdiction of this Honorable Court, said accused actuated by lewd design did then and there wilfully, unlawfully and feloniously, with force and intimidation commit acts of lasciviousness upon the person of his 17-year old daughter [AAA] by kissing, mashing her breast and touching her private parts against her will and consent.
CONTRARY TO LAW.
34 Supra note 24, at 126; the Information reads:
The undersigned Assistant City Prosecutor accuses MICHAEL JOHN Z. MALTO of VIOLATION OF SECTION 5(b), ARTICLE III, REPUBLIC ACT 7610, AS AMENDED, committed as follows:
That on or about and sometime during the month of November 1997 up to 1998, in Pasay City, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, Michael John. Z. Malto, a professor, did then and there willfully, unlawfully and feloniously induce and/or seduce his student at Assumption College, complainant, AAA, a minor of 17 years old, to indulge in sexual intercourse for several times with him as in fact said accused had carnal knowledge.
Contrary to law.
35 563 Phil. 433, 436 (2007); the Information reads:CRIMINAL CASE NO. Q-99-87053
That in or about the month of May, 1998, in XXX, Philippines, the said accused by means of force and intimidation, to wit: by then and there, willfully, unlawfully and feloniously drag said AAA, his own daughter, 12 years of age, minor, inside a bedroom and undressed her and put himself on top of her and thereafter have carnal knowledge with said AAA against her will and without her consent.CRIMINAL CASE NO. 0-99-87054
That in or about the month of May, 1998, in XXX, Philippines, the said accused by means of force and intimidation, to wit: by then and there, willfully, unlawfully and feloniously drag said AAA, his own daughter, 12 years of age, minor, inside a bedroom and undressed her and put himself on top of her and thereafter have carnal knowledge with said AAA against her will and without her consent.CRIMINAL CASE NO. Q-99-87055
That in or about the year of 1996, in XXX, Philippines, the said accused by means of force and intimidation, to wit: by then and there, willfully, unlawfully and feloniously drag said AAA, his own daughter, 12 years of age, minor, inside a bedroom and undressed her and put himself on top of her and thereafter have carnal knowledge with said AAA against her will and without her consent.
36 665 Phil. 750, 755-756 (2011); the information reads:
That on or about the month of December 1998 in the City of Las Piñas and within the jurisdiction of this Honorable Court, the above-named accused, with abuse of influence and moral ascendancy, by means of force, threat and intimidation, did then and there willfully, unlawfully and feloniously insert his tongue and finger into the genital of his daughter, [AAA], a minor then eight (8) years of age, against her will and consent.
CONTRARY TO LAW and with the special aggravating/qualifying circumstance of minority of the private offended party, [AAA], being then only eight (8) years of age and relationship of the said private offended party with the accused, Ireno Bonaagua y Berce, the latter being the biological father of the former.
37 Supra note 30, at 796-797; the Information reads:
That undersigned Second Assistant City Prosecutor hereby accuses Christian Caballo of the crime of Violation of Section 10 (a) of Republic Act No. 7610, committed as follows:
That in or about the last week of March 1998, and on different dates subsequent thereto, until June 1998, in the City of Surigao, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, a 23-year-old man, in utter disregard of the prohibition of the provisions of Republic Act No. 7610 and taking advantage of the innocence and lack of worldly experience of AAA who was only 17 years old at that time, having been born on November 3, 1980, did then and there willfully, unlawfully and feloniously commit sexual abuse upon said AAA, by persuading and inducing the latter to have sexual intercourse with him, which ultimately resulted to her untimely pregnancy and delivery of a baby on March 8, 1999, a condition prejudicial to her development, to the damage and prejudice of AAA in such amount as may be allowed by law.
CONTRARY TO LAW.
38Malto v. People, supra note 24.
39 Id. at 126.
40 Rape was still classified as a crime against chastity under the RPC at the time the offense was committed.
41 601 Phil 373 (2009).
42 Supra note 19.
43Section 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;
44 Supra note 41.
45 G.R. No. 206513, October 20, 2015, 773 SCRA 228.
46 Supra note 12, at 444445.
47Section 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.
48RA 7610, 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 fmns 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.
49Uyboco v. People, G.R. No. 211703, December 10, 2014, 744 SCRA 688.
50People v. Pareja, 724 Phil. 759 (2014).
51 TSN, June 23, 2011, pp. 6-9.
52Garingarao v. People, 669 Phil. 512 (2011).
53Caballo v. People, supra note 30.
54Dimakuta v. People, supra note 45.
55Navarrete v. People, G.R. No. 147913, January 31, 2007, 513 SCRA 509.
56Rollo, p. 67.
57People v. Agcanas, G.R. No. 174476, October 11, 2011, 658 SCRA 842.
58People v. Gani, G.R. No. 195523, June 5, 2013, 697 SCRA 530.
59People v. Piosang, G.R No. 200329, June 5, 2013, 697 SCRA 587.
60Section 4. Repealing Clause. - Article 335 of Act No. 3815, as amended, and all laws, acts, presidential decrees, executive orders, administrative orders, rules and regulations inconsistent with or contrary to the provisions of this Act are deemed amended, modified or repealed accordingly.
61 Under Art. 336, the lascivious conduct must be performed under any of the circumstances mentioned on its "preceding article," referring to the previous law penalizing rape. Prior to its repeal, Art. 335 of the RPC provides that rape may be committed a) by using force or intimidation; b) when the offended party is deprived of reason or otherwise unconscious; or c) when the offended party is under 12 years of age.
62Article 335. When and how rape is committed. - Rape is committed by having carnal knowledge of a woman under any of the following circumstances:1. By using force or intimidation;63 Article 266-A. Rape: When And How Committed. - Rape is committed:
2. When the woman is deprived of reason or otherwise unconscious; and
3. When the woman is under twelve years of age, even though neither of the circumstances mentioned in the two next preceding paragraphs shall be present.
1) By a man who shall have carnal knowledge of a woman under any of the following circumstances:a) Through force, threat, or intimidation;64Philippine International Trading Corporation v. Commission on Audit, G.R. No. 183517, June 22, 2010, 621 SCRA 461.
b) When the offended party is deprived of reason or otherwise unconscious;
c) By means of fraudulent machination or grave abuse of authority; and
d) When the offended party is under twelve (12) years of age or is demented, even though none of the circumstances mentioned above be present. (as amended by RA 8353, Sec. 2)
65 AN ACT DEFINING VIOLENCE AGAINST WOMEN AND THEIR CHILDREN, PROVIDING FOR PROTECTIVE MEASURES FOR VICTIMS, PRESCRIBING PENALTIES THEREFORE, AND FOR OTHER PURPOSES.
66 RA 9262, Sec. 3(a).
67 REVISED PENAL CODE, Art. 76.
68 AN ACT TO PROVIDE FOR AN INDETERMINATE SENTENCE AND PAROLE FOR ALL PERSONS CONVICTED OF CERTAIN CRIMES BY THE COURTS OF THE PHILIPPINE ISLANDS; TO CREATE A BOARD OF INDETERMINATE SENTENCE AND TO PROVIDE FUNDS THEREFOR; AND FOR OTHER PURPOSES.
69 Section 1. Hereafter, in imposing a prison sentence for an offense punished by the Revised Penal Code, or its amendments, the court shall sentence the accused to an indeterminate sentence the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the rules of the said Code, and the minimum which shall be within the range of the penalty next lower to that prescribed by the Code for the offense; and if the offense is punished by any other law. the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the same. (emphasis added)
70 G.R. No. 93028, July 29, 1994, 234 SCRA 555.
71 G.R. No. 205308, February 11, 2015, 750 SCRA 471.
CARPIO, J.:
On the other hand, Section 5(b) of RA 7610 has the following elements:
- That the offender commits any act of lasciviousness or lewdness;
- That the act of lasciviousness is committed against a person of either sex;
- That it is done under any of the following circumstances:
- By using force or intimidation;
- When the offended party is deprived of reason or otherwise unconscious; or
- When the offended party is under 12 years of age or is demented.3
The majority opinion states that for an accused to be held criminally liable for lascivious conduct under Section 5(b) of RA 7610, the requisites under Article 336 of the RPC must be met in addition to the requisites under Section 5(b) of RA 7610. Moreover, based on the elements of Article 336 of the RPC and Section 5(b) of RA 7610 enumerated above, it is evident that both provisions share some similar elements. The main difference lies in the second element of Section 5(b) of RA 7610 that the act is performed with a child exploited in prostitution or subjected to other sexual abuse. Thus, to he convicted of lascivious conduct under Section 5(b) of RA 7610 - rather than acts of lasciviousness under Article 336 of the RPC - it is essential to prove that the child against whom the act was committed is a child exploited in prostitution or subjected to other sexual abuse.
- The accused commits the act of sexual intercourse or lascivious conduct.
- The said act is performed with a child exploited in prostitution or subjected to other sexual abuse.
- That child, whether male or female, is below 18 years of age.4
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.To understand this provision, I looked into the deliberations of the Senate, which are also quoted in the majority opinion:
Senator Angara. I refer to line 9, "who for money or profit." I would like to amend this, Mr. President, to cover a situation where the minor may have been coerced or intimidated into this lascivious conduct, not necessarily for money or profit, so that we can cover those situations and not leave loophole in this section.Based on the foregoing, it is clear that this provision was crafted to cover a situation where sexual intercourse or lascivious conduct is performed with a child who is being abused or misused for sexual purposes. The phrase "or any other consideration or due to the coercion or influence of any adult, syndicate or group" was added to merely cover situations where a child is abused or misused for sexual purposes without any monetary gain or profit. This was significant because profit or monetary gain is essential in prostitution. Thus, the lawmakers intended that in case all the other elements of prostitution are present, but the monetary gain or profit is missing, the sexually abused and misused child would still be afforded the same protection of the law as if he or she were in the same situation as a child exploited in prostitution.
The proposal I have is something like this: WHO FOR MONEY, PROFIT, OR ANY OTHER CONSIDERATION OR DUE TO THE COERCION OR INFLUENCE OF ANY ADULT, SYNDICATE OR GROUP INDULGE, et cetera.
The President Pro Tempore. I see. That would mean also changing the subtitle of Section 4. Will it no longer be child prostitution?
Senator Angara. No, no. Not necessarily, Mr. President, because we are still talking of the child who is being misused for sexual purposes either for money or for consideration. What I am trying to cover is the other consideration. Because, here, it is limited only to the child being abused or misused for sexual purposes, only for money or profit.
I am contending, Mr. President, that there may be situations where the child may not have been used for profit or ...
The President Pro Tempore. So it is no longer prostitution. Because the essence of prostitution is profit.
Senator Angara. Well, the Gentleman is right. Maybe the heading ought to be expanded. But, still, the President will agree that that is a form or manner of child abuse.
The President Pro Tempore. What does the Sponsor say? Will the Gentleman kindly restate the amendment?ANGARA AMENDMENT
Senator Angara. The new section will read something like this, Mr. President: MINORS, WHETHER MALE OR FEMALE, WHO FOR MONEY, PROFIT, OR ANY OTHER CONSIDERATION OR INFLUENCE OF ANY ADULT, SYNDICATE OR GROUP INDULGE IN SEXUAL INTERCOURSE, et cetera.
Senator Lina. It is accepted, Mr. President.
The President Pro Tempore. Is there any objection? [Silence] Hearing none, the amendment is approved.
How about the title, "Child Prostitution", shall we change that too? Senator Angara. Yes, Mr. President, to cover the expanded scope.
The President Pro Tempore. Is that not what we would call probable 'child abuse'?
Senator Angara. Yes, Mr. President.
The President Pro Tempore. Subject to rewording. Is there any objection? [Silence] Hearing none, the amendment is approved x x x.5 (Boldfacing and underscoring supplied)
The issue on how the acts or omissions constituting the offense should be made in order to meet the standard of sufficiency has long been settled. It is fundamental that every element of which the offense is composed must be alleged in the information. No information for a crime will be sufficient if it does not accurately and clearly allege the elements of the crime charged. Section 6, Rule 110 of the Revised Rules of Court requires, inter alia, that the information must state the acts or omissions so complained of as constitutive of the offense. Recently, this Court emphasized that the test in determining whether the information validly charges an offense is whether the material facts alleged in the complaint or information will establish the essential elements of the offense charged as defined in the law. In this examination, matters aliunde are not considered. The law essentially requires this to enable the accused suitably to prepare his defense, as he is presumed to have no independent knowledge of the facts that constitute the offense.6 (Boldfacing and underscoring supplied)The second element of Section 5(b) of RA 7610 was not clearly and accurately alleged against Quimvel, and there was also no allegation of any , material fact that would establish the element that the child was exploited in prostitution or subjected to "other sexual abuse." The Information reads:
Clearly, there is no allegation in the Information that the victim was exploited in prostitution or subjected to other sexual abuse.AMENDED INFORMATION
The Undersigned Assistant City Prosecutor of Ligao City hereby accuses EDUARDO QUIMVEL y BRAGA also known as EDWARD/EDUARDO QUIMVEL y BRAGA of the crime of Acts of Lasciviousness in relation to Section 5(b) of R.A. No. 7610, committed as follows:
That on or about 8 o'clock in the evening of July 18, 2007 at Palapas, Ligao City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with lewd and unchaste design, through force and intimidation, did then and there, willfully, unlawfully and feloniously, insert his hand inside the panty of [AAA], a minor of 7 years old and mash her vagina, against her will and consent, to her damage and prejudice.
ACTS CONTRARY TO LAW.
Endnotes:
1 An Act Providing for Stronger Deterrence and Special Protection against Child Abust, Exploitation, and Discrimination and for Other Purposes.
2 The Anti-Rape Law of 1997.
3PO3 Sombilon, Jr. v. People of the Philippines, 617 Phil. 187 (2009).
4Olivarez v. Court of Appeals, 503 Phil. 421 (2005).
5 Record of the Senate, Vol. 1, No.7, pp. 261-263, cited in People v. Larin, 357 Phil. 987 (1998).
6 Dela Chica v. Sandiganbayan, 462 Phil. 712, 719 (2003). Citations omitted.
7 467 Phil. 253 (2004), citing People v. Corral, 446 Phil. 652 (2003).
8 Section 4, in relation to Section 5, Rule 120 of the Rules of Criminal Procedure, provides:
SEC. 4. Judgment in case of variance between allegation and proof. - When there is a variance between the offense charged in the complaint or information and that proved, and the offense as charged is included in or necessarily includes the offense proved, the accused shall be convicted of the offensed proved which is included in the offense charged, or of the offense charged which is included in the offense proved.
SEC. 5. When an offense includes or is included in another. - An offense charged necessarily includes the offense proved when some of the essential elements or ingredients of the former, as alleged in the complaint or information, constitute the latter. And an offense charged is necessarily included in the offense proved, when the essential ingredients of the former constitute or form part of those constituting the latter.
PERALTA, J.:
That on or about 8 o'clock in the evening of July 18, 2007 at Palpas, Ligao City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with lewd and unchaste design, through force and intimidation, did then and there, willfully, unlawfully and feloniously, insert his hand inside the panty of AAA, a minor of 7 years old and mash her vagina, against her will and consent, to her damage and prejudice.
WHEREFORE, in the light of the foregoing, judgment is hereby rendered:On appeal, the Court of Appeals (CA) affirmed the RTC Decision with modification as to the damages, civil indemnity and interest thereon,4 to wit:
1. Finding the accused, EDUARDO QUIMVEL Y BRAGA a.k.a. EDWARD/EDUARDO QUIMVEL Y BRAGA, GUILTY beyond reasonable doubt of the crime of Acts of Lasciviousness in relation to Section 5 (b), Article III of R.A. 7610 and hereby sentenced him to suffer the penalty of imprisonment from FOURTEEN (14) YEARS, EIGHT (8) MONTHS and ONE (1) day of Reclusion Temporal in its medium period as minimum to FIFTEEN (15) YEARS, SIX (6) MONTHS and NINETEEN (19) DAYS of Reclusion Temporal in its medium period as maximum; and
2. ORDERING the accused, EDUARDO QUIMVEL Y BRAGA a.k.a. EDWARD/EDUARDO QUIMVEL Y BRAGA shall be credited with the period of his preventive detention pursuant to Article 29 of the Revised Penal Code.
No costs.
SO ORDERED.
WHEREFORE, the Decision dated 23 January 2013 of the Regional Trial Court, Fifth Judicial Region, Ligao City Branch 11, in Criminal Case No. 5530, is hereby MODIFIED in that the accused appellant EDUARDO QUIMVEL y BRAGA also known as EDUARDO/EDWARD QUIMVEL y BRAGA is ORDERED TO PAY THE VICTIM, AAA moral damages, exemplary damages and fine in the amount of P15,000.00 each as well as P20,000.00 as civil indemnity. All damages shall earn interest at the rate of six percent (6%) per annum from the date of finality of judgment.Hence, the present petition for review on certiorari under Rule 45, raising the following issues:
SO ORDERED.
I concur with the ponencia in affirming the CA's decision finding Quimvel guilty beyond reasonable doubt of the crime of violation of Section 5(b), Article III of R.A. 7610.I.
The CA erred in affirming the decisions of the trial court as the prosecution was not able to prove that he is guilty of the crime charged beyond reasonable doubt.II.
Assuming without admitting that he is guilty hereof, he may be convicted only of Acts of Lasciviousness under Art. 336 of the Revised Penal Code (RPC) and not in relation to Section 5 of R.A. 7610.
In a charge for acts of lasciviousness under Article 336 of the RPC in relation to R.A. 7610, there is no need to allege that the lascivious conduct was committed with a "child exploited in prostitution or subject to other sexual abuse." Such allegation is pertinent only when the charge is for child prostitution or violation of the first clause of Section 5(b), Article III of R.A. 7610 against "those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to other sexual abuse," i.e., the customer or patron.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;(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
(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.
(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.5
That on or about 8 o'clock in the evening of July 18, 2007 at Palpas, Ligao City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with lewd and unchaste design, through force and intimidation, did then and there, willfully, unlawfully and feloniously, insert his hand inside the panty of AAA, a minor of 7 years old and mash her vagina, against her will and consent, to her damage and prejudice.Quimvel should therefore prosecuted under Article 336 of the RPC, and the indeterminate sentence should be computed based on the imposable penalty of reclusion temporal in its medium period, pursuant to Section 5(b), Article III of R.A. 7610.
ACTS CONTRARY TO LAW.7
Section 10. Other Acts of Neglect, Abuse, Cruelty or Exploitation and Other Conditions Prejudicial to the Child's Development. -To impose upon Quimvel an indeterminate sentence computed from the penalty of prision correccional under Article 336 of the RPC would defeat the purpose of R.A. 7610 to provide for stronger deterrence and special protection against child abuse, exploitation and discrimination. First, the imposition of such penalty would erase the substantial distinction between acts of lasciviousness under Article 336 and acts of lasciviousness with consent of the offended party under Article 339,9 which used to be punishable by arresto mayor, and now by prision correccional pursuant to Section 10, Article VI of R.A. 7610. Second, it would inordinately put on equal footing the acts of lasciviousness committed against a child and the same crime committed against an adult, because the imposable penalty for both would still be prision correccional, save for the aggravating circumstance of minority that may be considered against the perpetrator. Third, it would make acts of lasciviousness against a child an offense a probationable offense, pursuant to the Probation Law of 1976,10 as amended by R.A. 10707.11 Indeed, while the foregoing implications are favorable to the accused, they are contrary to the State policy and principles under R.A. 7610 and the Constitution on the special protection to children.
x x x x
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, 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 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 of age.8
Section 5, Article III of R.A. 7610 deems to be "children exploited in prostitution and other sexual abuse" those children, whether male or female, who indulge in sexual intercourse or lascivious conduct either (1) for money, profit or any other consideration; or (2) due to coercion or influence of any adult, syndicate or group.
(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 attention to an injured child resulting in serious impairment of his growth and development or in his permanent incapacity or death.
Section 2. Definition of Terms. - As used in these Rules, unless the context requires otherwise -From the foregoing definitions, it can be deduced that a single lascivious conduct is enough to penalize Quimvel for acts of lasciviousness under Article 336 of the RPC, in relation to R.A. 7610. These definitions negate the necessity to allege in the information a separate and distinct act of sexual abuse apart from the lascivious act complained of. R.A. 7610 does not merely cover a situation wherein a child is being abused for profit as in prostitution, but also one wherein a child engages in any lascivious conduct through coercion or intimidation, even if such sexual abuse occurred only once, as in Quimvel's case. Also, based on the definitions above, prostitution which involves an element of habituality - is just one of the several other forms of sexual abuses. Thus, neither habituality nor the fact that the child is exploited in prostitution, is required to be alleged in the information for acts of lasciviousness because Article 336 of the RPC does not so provide.
x x x x
b) "Child abuse" refers to the infliction of physical or psychological injury, cruelty to, or neglect, sexual abuse or exploitation of a child;
x x x x
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;
x x x x
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 pubic area of a person; x x x12
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. x x x.Associate Justice Antonio T. Carpio dissented in Olivarez where he pointed out that the second element of acts of lasciviousness, Section 5, Article III of R.A. 7610 requires that the accused performs on the child a lascivious conduct separate and different from the child's exploitation in prostitution or subject to other sexual abuse.
It must be noted that the law 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 lascivious conduct.16
That on or about the 29th day of October 2003, at Virgen Milagrosa University Hospital, San Carlos City, Pangasinan, and within the jurisdiction of this Honorable Court, the above-named accused, with lewd designs, did then and there, willfully, unlawfully and feloniously touched the breast of AAA, 16 years of age, touched her genitalia, and inserted his finger into her vagina, to the damage and prejudice of said AAA who suffered psychological and emotional disturbance, anxiety, sleeplessness and humiliation.Citing Olivarez, the Court held in Garingarao that petitioner is liable for acts of lasciviousness in relation to R.A. 7610 even if the crime occurred only once:
Contrary to Article 336 of the Revised Penal Code in relation to RA 7610.
The Court has ruled that a child is deemed subject to other sexual abuse when the child is the victim of lascivious conduct under the coercion or influence of any adult. In lascivious conduct under the coercion or influence of any adult, there must be some form of compulsion equivalent to intimidation which subdues the free exercise of the offended party's free will. In this case, Garingarao coerced AAA into submitting to his lascivious acts by pretending that he was examining her.To be sure, if and when there is an absurdity in the interpretation of the provisions of the law, the proper recourse is to refer to the objectives or the declaration of state policy and principles under Section 2 of the R.A. 7610, as well as Section 3(2), Article XV of the 1987 Constitution:
Garingarao insists that, assuming that the testimonies of the prosecution witnesses were true, he should not be convicted of violation of RA 7610 because the incident happened only once. Garingarao alleges that the single incident would not suffice to hold him liable under RA 7610.
Garingarao's argument has no legal basis.
The Court has already ruled that it is inconsequential that sexual abuse under RA 7610 occurred only once. Section 3 (b) of RA 7610 provides that the abuse may be habitual or not. Hence, the fact that the offense occurred only once is enough to hold Garingarao liable for acts of lasciviousness under RA 7610.19
[R.A. 7610] Sec. 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 forms of abuse, neglect, cruelty, exploitation and discrimination, and other conditions prejudicial to their development including child labor and its worst forms; 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.Clearly, the objective of the law, more so the Constitution, is to provide a special type of protection for children from all types of abuse. Hence, it can be rightly inferred that the title used in Article III, Section 5, "Child Prostitution and Other Sexual Abuse" does not mean that it is only applicable to children used as prostitutes as the main offense and the other sexual abuses as additional offenses, the absence of the former rendering inapplicable the imposition of the penalty provided under R.A. 7610 on the other sexmil abuses committed by the offenders on the children concerned.
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 on the Rights of the Child. Every effort shall be exerted to promote the welfare of children and enhance their opportunities foe a useful and happy life. [Emphasis added]
[Article XV 1987 Constitution] Section 3. The State shall defend:
x x x
(2) The right of children to assistance, including proper care and nutrition, and special protection from all forms of neglect, abuse, cruelty, exploitation, and other conditions prejudicial to their development.20
Petitioner was charged and convicted by the trial court with violation of Section 5 (b), Article III of R.A. No. 7610 based on the complaint of a sixteen (16)-year-old girl for allegedly molesting her by touching her breast and vagina while she was sleeping.In view of the above discussion in Dimakuta v. People,23 to which the ponencia appears to subscribe, and considering that all the elements of acts of lasciviousness under Article 336 of the RPC, in relation to Section 5(b), Article III of R.A. 7610,24 have been proven beyond reasonable doubt, the CA correctly upheld the RTC in convicting Quimvel of the said crime.x x x x
The elements of sexual abuse are as follows:1. The accused commits the act of sexual intercourse or lascivious conduct.Under Section 5, Article III of R.A. No. 7610, a child is deemed subjected to other sexual abuse when he or she indulges in lascivious conduct under the coercion or influence of any adult. This statutory provision must be distinguished from Acts of Lasciviousness under Articles 336 and 339 of the RPC. As defined in Article 336 of the RPC, Acts of Lasciviousness has the following elements:
2. The said act is performed with a child exploited in prostitution or subjected to sexual abuse.
3. The child, whether male or female, is below 18 years of age.(1) That the offender commits any act of lasciviousness or lewdness;Article 339 of the RPC likewise punishes acts of lasciviousness committed with the consent of the offended party if done by the same persons and under the same circumstances mentioned in Articles 337 and 338 of the RPC, to wit:
(2) That it is done under any of the following circumstances:a. By using force or intimidation; or(3) That the offended party is another person of either sex.
b. When the offended party is deprived of reason or otherwise unconscious; or
c. When the offended party is under 12 years of age; and1. if committed against a virgin over twelve years and under eighteen years of age by any person in public authority, priest, home-servant, domestic, guardian, teacher, or any person who, in any capacity, shall be entrusted with the education or custody of the woman; orTherefore, if the victim of the lascivious acts or conduct is over 12 years of age and under eighteen (18) years of age, the accused shall be liable for:
2. if committed by means of deceit against a woman who is single or a widow of good reputation, over twelve but under eighteen years of age.1. Other acts of lasciviousness under Art. 339 of the RPC, where the victim is a virgin and consents to the lascivious acts through abuse of confidence or when the victim is single or a widow of good reputation and consents to the lascivious acts through deceit, or;Article 226-A, paragraph 2 of the RPC, punishes inserting of the penis into another person's mouth or anal orifice, or any instrument or object, into the genital or anal orifice of another person if the victim did not consent either it was done through force, threat or intimidation; or when the victim is deprived of reason or is otherwise unconscious; or by means of fraudulent machination or grave abuse of authority as sexual assault as a form of rape. However, in instances where the lascivious conduct is covered by the definition under R.A. No. 7610, where the penalty is reclusion temporal medium, and the act is likewise covered by sexual assault under Article 266-A, paragraph 2 of the RPC, which is punishable by prision mayor, the offender should be liable for violation of Section 5 (b), Article III of R.A. No. 7610, where the law provides for the higher penalty of reclusion temporal medium, if the offended party is a child victim. But if the victim is at least eighteen (18) years of age, the offender should be liable under Art. 266-A, par. 2 of the RPC and not R.A. No. 7610, unless the victim is at least eighteen (18) years and she is unable to fully take care of herself or protect herself from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability or condition, in which case, the offender may still be held liable for sexual abuse under RA. No. 7610.
2. Acts of lasciviousness under Art. 336 if the act of lasciviousness is not covered by lascivious conduct as defined in R.A. No. 7610. In case the acts of lasciviousness is covered by lascivious conduct under R.A. No. 7610 and it is done through coercion or influence, which establishes absence or lack of consent, then Art. 336 of the RPC is no longer applicable
3. Section 5(b), Article III of R.A. No. 7610, where there was no consent on the part of the victim to the lascivious conduct, which was done through the employment of coercion or influence. The offender may likewise be liable for sexual abuse under R.A. No. 7610 if the victim is at least eighteen (18) years and she is unable to fully take care of herself or protect herself from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability or condition.
There could be no other conclusion, a child is presumed by law to be incapable of giving rational consent to any lascivious act, taking into account the constitutionally enshrined State policy to promote the physical, moral, spiritual, intellectual and social well-being of the youth, as well as, in harmony with the foremost consideration of the child's best interests in all actions concerning him or her. This is equally consistent with the declared policy of the State to 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. Besides, if it was the intention of the framers of the law to make child offenders liable only of Article 266-A of the RPC, which provides for a lower penalty than R.A. No. 7610, the law could have expressly made such statements.
As correctly found by the trial court, all the elements of sexual abuse under Section 5 (b), Article III of R.A. No. 7610 are present in the case at bar.
First, petitioner's lewd advances of touching the breasts and vagina of his hapless victim constitute lascivious conduct as defined in Section 32, Article XIII of the Implementing Rules and Regulations (IRR) of R.A. No. 7610:[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.Second, petitioner clearly has moral ascendancy over the minor victim not just because of his relative seniority but more importantly due to the presumed presence of mutual trust and confidence between them by virtue of an existing employment relationship, AAA being a domestic helper in petitioner's household. Notably, a child is considered as sexually abused under Section 5 (b) of R.A. No. 7610 when he or she is subjected to lascivious conduct under the coercion or influence of any adult. Intimidation need not necessarily be irresistible. It is sufficient that some compulsion equivalent to intimidation annuls or subdues the free exercise of the will of the offended party. The law does not require physical violence on the person of the victim; moral coercion or ascendancy is sufficient. On this point, Caballo v. People explicated:As it is presently worded, Section 5, Article III of RA 7610 provides that when a child indulges in sexual intercourse or any lascivious conduct due to the coercion or influence of any adult, the child is deemed to be a "child exploited in prostitution and other sexual abuse." In this manner, the law is able to act as an effective deterrent to quell all forms of abuse, neglect, cruelty, exploitation and discrimination against children, prejudicial as they are to their development.
In this relation, case law further clarifies that sexual intercourse or lascivious conduct under the coercion or influence of any adult exists when there is some fonn of compulsion equivalent to intimidation which subdues the free exercise of the offended party's free will. Corollary thereto, Section 2(g) of the Rules on Child Abuse Cases conveys that sexual abuse involves the element of influence which manifests in a variety of forms. It is defined as: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.Finally, the victim is 16 years of age at the time of the commission of the offense. Under Section 3 (a) of R.A. No. 7610, "children" refers to "persons below eighteen (18) years of age or those over but 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."22
To note, the term "influence" means the "improper use of power or trust in any way that deprives a person of free will and substitutes another's objective." Meanwhile, "coercion" is the "improper use of ... power to compel another to submit to the wishes of one who wields it."
Endnotes:
1 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 hall be imposed upon the following:
x x x x
(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
x x x
2An Act Providing For Stronger Deterrence and Special Protection Against Child Abuse, Exploitation and Discrimination, and For Other Purposes.
3 Decision dated January 23, 2013; penned by Judge Amy Ana L. De Villa-Rosero.
4 Decision dated May 29, 2014; penned by Associate Justice Japar B. Dimaampao, with Associate Justices Elihu A. Ybañez and Carmelita S. Manahan, concurring.
5 Emphasis added.
6Chinese Flour Importers Association v. Price Stabilization Board, 89 Phil. 439, 451 (1951); Arenas v. City of San Carlos (Pangasinan), 172 Phil. 306, 311 (1978).
7 Emphasis added.
8 Emphasis added.
9 ARTICLE 339. Acts of Lasciviousness with the Consent of the Offended Party. - The penalty of arresto mayor shall be imposed to punish any other acts of lasciviousness committed by the same persons and the same circumstances as those provided in articles 337 and 338.
ARTICLE 337. Qualified Seduction. - The seduction of a virgin over twelve years and under eighteen years of age, committed by any person in public authority, priest, house-servant, domestic, guardian, teacher, or any person who, in any capacity, shall be entrusted with the education or custody of the woman seduced, shall be punished by prision correccional in its minimum and medium periods.
The penalty next higher in degree shall be imposed upon any person who shall seduce his sister or descendant, whether or not she be a virgin or over eighteen years of age.
Under the provisions of this Chapter, seduction is committed when the offender has carnal knowledge of any of the persons and under the circumstances described herein.
ARTICLE 338. Simple Seduction. - The seduction of a woman who is single or a widow of good reputation, over twelve but under eighteen years of age, committed by means of deceit, shall be punished by arresto mayor.
10 Presidential Decree No. 968.
11An Act Amending Presidential Decree No. 968, otherwise known as the "Probation Law of 1976", as amended. Approved on November 26, 2015. Section 9 of the Decree, as amended, provides that the benefits thereof shall not be extended to those "(a) sentenced to serve a maximum term of imprisonment of more than six (6) years." Note: The duration of the penalty of prision correccional is 6 months and 1 day to 6 years.
12 Emphasis added.
13 503 Phil. 421, 432 (2005). Penned by Associate Justice Consuelo Yñares-Santiago, with Associate Justices Leonardo A. Quisumbing and Adolfo S. Azcuna, concurring; and Chief Justice Hilario G. Davide, Jr. joining the dissent of Associate Justice Antonio T. Carpio.
14 357 Phil. 987, 998 (1998).
15 496 Phil. 747, 758 (2005).
16 Emphasis added.
17 669 Phil. 512, 516 (2011).
18 Concurred in by Associate Justices Teresita J. Leonardo-de Castro, Arturo D. Brion, Diosdado M. Peralta and Jose Portugal Perez.
19 Emphasis added.
20 Emphasis added.
21 G.R. No. 206513, October 20, 2015, 773 SCRA 228.
22 Emphasis added and citations omitted.
23Supra.
24 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.
3. That child, whether male or female, is below 18 years of age.
25Id.
26 Emphasis added.
27An Act Expanding the Definition of the Crime of Rape, Reclassifying the Same as a Crime against Persons, Amending for the Purpose Act No. 3815, As Amended, Otherwise Known as the Revised Penal Code, and For Other Purposes.
28 Section. 3. Definition of Terms.
(a) "Children" refers to a person below eighteen (18) years of age or those over but are unable to fully take care of themselves or protect from themselves from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability or condition.
29 657 Phil. 577, 601 (2011)
30 G.R. No. 197712, April 20, 2015, 756 SCRA 196, 210.
31 G.R. No. 205308, February 11, 2015, 750 SCRA 471, 488.
32 Section. 3. Definition of Terms. -
(a) "Children" refers to a person below eighteen (18) years of age or those over but are unable to fully take care of themselves or protect from themselves from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability or condition.
33 G.R. No. 208354, August 26, 2015, 768 SCRA 318, 341.
34 G.R. No. 208761, June 4, 2014, 725 SCRA 293, 303.
35Dimakuta v. People, supra note 18.
36 Section 31. Common Penal Provisions. -
x x x x (b) 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. [Emphasis added]
37 Ranging from 12 years and 1 day to 14 years and 8 months.
38 Ranging from 8 years and 1 day to 14 years and 8 months.
39Lamb v. Phipps, 22 Phil. 456 (1912).
40People v. De Guzman, et al., 90 Phil. 132 (1951).
41 Aside from use force or intimidation, or when the woman is deprived of reason or otherwise unconscious.
42 661 Phil. 208, 224 (2011).
43 Section 3 (a), Article I of R.A. 7610
44Supra note 18, at 264-265.
PERLAS-BERNABE, J.:
For the brief reasons that follow, I deem it enough that a singular act of sexual abuse be committed against a minor in order to qualify under the law's protection: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 or 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
x x x x (Emphases supplied)
The legislative intent is not at all times accurately reflected in the manner in which the resulting law is couched. Thus, applying a verba legis or strictly literal interpretation of a statute may render it meaningless and lead to inconvenience, an absurd situation or injustice. To obviate this aberration, and bearing in mind the principle that the intent or the spirit of the law is the law itself, resort should be to the rule that the spirit of the law controls its letter.5ACCORDINGLY, I vote to DENY the petition. The conviction of petitioner Eduardo Quimvel y Braga for the crime of Acts of Lasciviousness in relation to Section 5 (b), Article III of Republic Act No. 7610 should be AFFIRMED with MODIFICATION anent the proper penalty as held in the ponencia.6
Endnotes:
1 Entitled "AN ACT PROVIDING FOR STRONGER DETERRENCE AND SPECIAL PROTECTION AGAINST CHILD ABUSE, EXPLOITATION AND DISCRIMINATION, AND FOR OTHER PURPOSES," approved on June 17, 1992.
2 See deliberations on Senate Bill No. 1209 dated April 29, 1991, Records of the Senate, Vol. IV, No. 111, p. 191.
3 See deliberations on Senate Bill No. 1209 dated April 29, 1991, Records of the Senate, Vol. IV, No. 111, pp. 191-192.
4 See deliberations on Senate Bill No. 1209 dated April 29, 1991, Records of the Senate, Vol. IV, No. 111, p. 192.
5League of Cities of the Philippines v. COMELEC, 623 Phil. 531, 564-565 (2009).
6 See ponencia, pp. 22-23.
LEONEN, J.:
CAGUIOA, J.:
Senator Rasul. x x xThe case referred to by Senator Rasul, People v. Ritter,8 is a 1991 case which involved an Austrian national who was charged with rape with homicide for having ultimately caused the death of Rosario, a street child, by inserting a foreign object into her vagina during the course of performing sexual acts with her. Ritter was acquitted based on reasonable doubt on account of, among others, the failure of the prosecution to (1) establish the age of Rosario to be within the range of statutory rape, and (2) show force or intimidation as an essential element of rape in the face of the finding that Rosario was a child prostitute who willingly engaged in sexual acts with Ritter.
x x x x
But undoubtedly, the most disturbing, to say the least, is the persistent report of children being sexually exploited and molested for purely material gains. Children with ages ranging from three to 18 years are used and abused. We hear and read stories of rape, manhandling and sexual molestation in the hands of cruel sexual perverts, local and foreigners alike. As of October 1990, records show that 50 cases of physical abuse were reported, with the ratio of six females to four males. x x x
x x x x
x x x No less than the Supreme Court, in the recent case of People vs. Ritter, held that we lack criminal laws which will adequately protect streetchildren from exploitation by pedophiles. x x x7
It is with distressing reluctance that we have to seemingly set back the efforts of Government to dramatize the death of Rosario Baluyot as a means of galvanizing the nation to care for its street children. It would have meant a lot to social workers and prosecutors alike if one pedophile killer could be brought to justice so that his example would arouse public concern, sufficient for the formulation and implementation of meaningful remedies. However, we cannot convict on anything less than proof beyond reasonable doubt. The protections of the Bill of Rights and our criminal justice system are as much, if not more so, for the perverts and outcasts of society as they are for normal, decent, and law-abiding people.That the protection of street children from exploitation is the thrust of RA 7610 is further confirmed by Senator Lina's elucidation on the application of Section 6 following questions from Senator Enrile:
x x x x
And finally, the Court deplores the lack of criminal laws which will adequately protect street children from exploitation by pedophiles, pimps, and, perhaps, their own parents or guardians who profit from the sale of young bodies. The provisions on statutory rape and other related offenses were never intended for the relatively recent influx of pedophiles taking advantage of rampant poverty among the forgotten segments of our society. Newspaper and magazine articles, media exposes, college dissertations, and other studies deal at length with this serious social problem but pedophiles like the appellant will continue to enter the Philippines and foreign publications catering to them will continue to advertise the availability of Filipino street children unless the Government acts and acts soon. We have to acquit the appellant because the Bill of Rights commands us to do so. We, however, express the Court's concern about the problem of street children and the evils committed against them. Something must be done about it.9
Senator Enrile. Pareho silang hubad na hubad at naliligo. Walang ginagawa. Walang touching po, basta naliligo lamang. Walang akapan, walang touching, naliligo lamang sila. Ano po ang ibig sabihin noon? Hindi po ba puwedeng sabihin, kagaya ng standard na ginamit natin, na UNDER CIRCUMSTANCES WHICH WOULD LEAD A REASONABLE PERSON TO BELIEVE THAT THE CHILD IS ABOUT TO BE SEXUALLY EXPLOITED, OR ABUSED.And when he explained his vote, Senator Lina stated the following:
Senator Lina. Kung mayroon pong balangkas or amendment to cover that situation, tatanggapin ng Representation na ito. Baka ang sitwasyong iyon ay hindi na ma-cover nito sapagkat, at the back of our minds, Mr. President, ang sitwasyong talagang gusto nating ma-address ay maparusahan iyong tinatawag na "pedoph[i]lia" or prey on our children. Hindi sila makakasuhan sapagkat their activities are undertaken or are committed in the privacy of homes, inns, hotels, motels and similar establishments.10
With this legislation, child traffickers could be easily prosecuted and penalized. Incestuous abuse and those where victims are under twelve years of age are penalized gravely, ranging from reclusion temporal to reclusion perpetua, in its maximum period. It also imposes the penalty of reclusion temporal in its medium period to reclusion perpetua, equivalent to a 14-30 year prison term for those: (a) who promote or facilitate child prostitution; (b) commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution; (c) derive profit or advantage whether as manager or owner of an 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 a prostitution in addition to the activity for which the license has been issued to said establishment.11The Senate deliberations on RA 7610 is replete with similar disquisitions tending to show the intendment to make the law applicable to cases involving child exploitation through prostitution, sexual abuse, child trafficking, pornography and other types of abuses; the passage of the law was the Senate's act of heeding the call of the Supreme Court to afford protection to a special class of children and not to cover any and all crimes against children that are already covered by other penal laws such as the RPC and the Child and Youth Welfare Code.
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.Its essential elements are: (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.13
The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following:
x x x x
(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 x x x.12
The Presiding Officer [Senator Mercado]. Senator Pimentel.As to the proviso of Section 5(b), some guidance may be had as to its import during the period of committee amendments:
Senator Pimentel. Just this question, Mr. President, if the Gentleman will allow.
Will this amendment14 also affect the Revised Penal Code provisions on seduction?
Senator Lina. No, Mr. President. Article 336 of Act No. 3815 will remain unaffected by this amendment we are introducing here. As a backgrounder, the difficulty in the prosecution of so-called "pedophiles" can be traced to this problem of having to catch the malefactor committing the sexual act on the victim. And those in the law enforcement agencies and in the prosecution service of the Government have found it difficult to prosecute. Because if an old person, especially a foreigner, is seen with a child with whom he has no relationblood or otherwise-and they are just seen in a room and there is no way to enter the room and to see them in flagrante delicto, then it will be very difficult for the prosecution to charge or to hale to court these pedophiles.
So, we are introducing into this bill, Mr. President, an act that is considered already an attempt to commit child prostitution. This, in no way, affects the Revised Penal Code provision on acts of lasciviousness or qualified seduction.15
Senator Lina. On page 3, between lines 12 and 13, insert the following: PROVIDED THAT WHEN THE VICTIM IS TWELVE (12) YEARS OR LESS, THE PERPETRATORS SHALL BE PROSECUTED UNDER ARTICLE 335, PARAGRAPH 3, AND ARTICLE 336 OF REPUBLIC ACT 3815, AS AMENDED, THE REVISED PENAL CODE, FOR RAPE OR LASCIVIOUS CONDUCT AS THE CASE MAY BE.Bearing these in mind, there is no disagreement as to the first and third elements of Section 5(b). The core of the discussion relates to the meaning of the second element that the said act is performed with a child exploited in prostitution or subjected to other sexual abuse.
The Presiding Officer [Senator Mercado]. Is there any objection? [Silence] Hearing none, the amendment is approved.
x x x x
Senator Lina. No, Mr. President, as stated in the Committee amendment which has just been approved but which, of course, can still stand some individual amendments during the period of individual amendment, it is stated that, "PROVIDED, THAT WHEN THE VICTIM IS TWELVE (12) YEARS OR LESS, THE PERPETRATOR SHALL BE PROSECUTED UNDER ARTICLE 335, PAR. 3, AND ARTICLE 336 OF R.A. 3815, AS AMENDED."
Article 335 of the Revised Penal Code, Mr. President, is, precisely, entitled: "When And How Rape Is Committed." So, prosecution will still be under Article 335, when the victim is 12 years old or below.
Senator Pimentel. Despite the presence of monetary considerations?
Senator Lina. Yes, Mr. President. It will still be rape. We will follow the concept as it has been observed under the Revised Penal Code. Regardless of monetary consideration, regardless of consent, the perpetrator will still be charged with statutory rape.
Senator Pimentel. So, it is only when the victim or the child who was abused is a male that the offender would probably be prosecuted under the distinguished Gentleman's amendment because, obviously, the crime of rape does not cover child abuse of males.
Senator Lina. Yes, that will be the effect, Mr. President.
Senator Pimentel. Thank you, Mr. President.16
Section 5 of RA 7610 deals with a situation where the acts of lasciviousness are committed on a child already either exploited in prostitution or subjected to "other sexual abuse." Clearly, the acts of lasciviousness committed on the child are separate and distinct from the other circumstance - that the child is either exploited in prostitution or subjected to "other sexual abuse."In its bare essentials, the second element can be met by allegation and proof of either circumstance;
x x x x
Section 5 of RA 7610 penalizes those "who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to other sexual abuse." The act of sexual intercourse or lascivious conduct may be committed on a child already exploited in prostitution, whether the child engages in prostitution for profit or someone coerces her into prostitution against her will. The element of profit or coercion refers to the practice of prostitution, not to the sexual intercourse or lascivious conduct committed by the accused. A person may commit acts of lasciviousness even on a prostitute, as when a person mashes the private parts of a prostitute against her will.
The sexual intercourse or act of lasciviousness may be committed on a child already subjected to other sexual abuse. The child may be subjected to such other sexual abuse for profit or through coercion, as when the child is employed or coerced into pornography. A complete stranger, through force or intimidation, may commit acts of lasciviousness on such child in violation of Section 5 of RA 7610.
The phrase "other sexual abuse" plainly means that the child is already subjected to sexual abuse other than the crime for which the accused is charged under Section 5 of RA 7610. The "other sexual abuse" is an element separate and distinct from the acts of lasciviousness that the accused performs on the child. The majority opinion admits this when it enumerates the second element of the crime under Section 5 of RA 7610 - that the lascivious "act is performed with a child x x x subjected to other sexual abuse."18
a) the child is exploited in prostitution; ORwhich should already be existing at the time of sexual intercourse or lascivious conduct complained of.
b) the child is subjected to other sexual abuse.
In Olivarez v. Court of Appeals, we explained that the phrase, "other sexual abuse" in the above provision covers not only a child who is abused for profit, but also one who engages in lascivious conduct through the coercion or intimidation by an adult. In the latter case, there must be some form of compulsion equivalent to intimidation which subdues the free exercise of the offended party's will.Prior sexual affront is not always required for Section 5(b) to apply.
In the present case, the prosecution failed to present any evidence showing that force or coercion attended Abello's sexual abuse on AAA; the evidence reveals that she was asleep at the time these crimes happened and only awoke when she felt her breasts being fondled. Hence, she could have not resisted Abello's advances as she was unconscious at the time it happened. In the same manner, there was also no evidence showing that Abello compelled her, or cowed her into silence to bear his sexual assault, after being roused from sleep. Neither is there evidence that she had the time to manifest conscious lack of consent or resistance to Abello's assault.23
Senator Angara. I refer to line 9, 'who for money or profit'. I would like to amend this, Mr. President, to cover a situation where the minor may have been coerced or intimidated into this lascivious conduct, not necessarily for money or profit, so that we can cover those situations and not leave loophole in this section.While this amendment undoubtedly expanded the scope of Section 5(b) to include non-monetary consideration, this does not furnish support for the interpretation that all cases of sexual intercourse or lascivious conduct against a child should be prosecuted in relation to Section 5(b). Worthy of note are the following statements of Senator Angara who proposed the amendment:
The proposal I have is something like this: WHO FOR MONEY, PROFIT, OR ANY OTHER CONSIDERATION OR DUE TO THE COERCION OR INFLUENCE OF ANY ADULT, SYNDICATE OR GROUP INDULGE, et cetera.
The President Pro Tempore. I see. That would mean also changing the subtitle of Section 4. Will it no longer be child prostitution?
Senator Angara. No, no. Not necessarily, Mr. President, because we are still talking of the child who is being misused for sexual purposes either for money or for consideration. What Iam trying to cover is the other consideration. Because, here, it is limited only to the child being abused or misused for sexual purposes, only for money or profit.
I am contending, Mr. President, that there may be situations where the child may not have been used for profit or ...
The President Pro Tempore. So, it is no longer prostitution. Because the essence of prostitution is profit.
Senator Angara. Well, the Gentleman is right. Maybe the heading ought to be expanded. But, still, the President will agree that that is a form or manner of child abuse.
The President Pro Tempore. What does the Sponsor say? Will the Gentleman kindly restate the amendment?ANGARA AMENDMENT
Senator Angara. The new section will read something like this, Mr. President: MINORS, WHETHER MALE OR FEMALE, WHO FOR MONEY, PROFIT, OR ANY OTHER CONSIDERATION OR INFLUENCE OF ANY ADULT, SYNDICATE OR GROUP INDULGE IN SEXUAL INTERCOURSE, et cetera.
Senator Lina. It is accepted, Mr. President.
The President Pro Tempore. Is there any objection? [Silence] Hearing none, the amendment is approved.
How about the title, 'Child Prostitution,' shall we change that too?
Senator Angara. Yes, Mr. President, to cover the expanded scope.
The President Pro Tempore. Is that not what we would call probable 'child abuse'?
Senator Angara. Yes, Mr. President.
The President Pro Tempore. Subject to rewording. Is there any objection? [Silence] Hearing none, the amendment is approved. x x x27
The President Pro Tempore. I see. That would mean also changing the subtitle of Section 4. Will it no longer be child prostitution?That Larin's crime is subsumed in Section 5(b) is not doubted. However, the reliance on this passage in the Senate deliberations cannot be used to extend the application of Section 5(b) beyond what is expressly stated by its provisions.
Senator Angara. No, no. Not necessarily. Mr. President, because we are still talking of the child who is being misused for sexual purposes either for money or for consideration. What I am trying to cover is the other consideration. Because, here, it is limited only to the child being abused or misused for sexual purposes, only for money or profit.
I am contending, Mr. President, that there may be situations where the child may not have been used for profit or ...
The President Pro Tempore. So, it is no longer prostitution. Because the essence of prostitution is profit.
Senator Angara. Well, the Gentleman is right. Maybe the heading ought to be expanded. But, still, the President will agree that that is a form or manner of child abuse.
The President Pro Tempore. What does the Sponsor say? Will the Gentleman kindly restate the amendment?ANGARA AMENDMENT
Senator Angara. The new section will read something like this, Mr. President: MINORS, 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, et cetera.
Senator Lina. It is accepted, Mr. President.
The President Pro Tempore. Is there any objection? [Silence] Hearing none, the amendment is approved.28
(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[.]Therefore, I submit that the proper understanding of Section 5(b) with both provisos in operation would be: in prosecutions for lascivious conduct under Article 336 when the victim is (1) a child exploited in prostitution or subjected to other sexual abuse, AND (2) under twelve (12) years old, the penalty would be reclusion temporal in its medium period.
Section 10. Other Acts of Neglect, Abuse, Cruelty or Exploitation and Other Conditions Prejudicial to the Child's Development. -This is confirmed by Senator Lina in his sponsorship speech of RA 7610, thus:
(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.
Senator Lina. x x xThis same deference to the discreteness and subsistence of the felonies in the RPC is apparent in this interpellation with respect to seduction:
x x x x
Senate Bill No. 1209, Mr. President, is intended to provide stiffer penalties for abuse of children and to facilitate prosecution of perpetrators of abuse. It is intended to complement provisions of the Revised Penal Code where the crimes committed are those which lead children to prostitution and sexual abuse, trafficking in children and use of the young in pornographic activities.
These are the three areas of concern which are specifically included in the United Nations Convention o[n] the Rights of the Child. As a signatory to this Convention, to which the Senate concurred in 1990, our country is required to pass measures which protect the child against these forms of abuse.
x x x x
Mr. President, this bill on providing higher penalties for abusers and exploiters, setting up legal presumptions to facilitate prosecution of perpetrators of abuse, and complementing the existing penal provisions of crimes which involve children below 18 years of age is a part of a national program for protection of children.
x x x x
Mr. President, subject to perfecting amendments, I am hopeful that the Senate will approve this bill and thereby add to the growing program for special protection of children and youth. We need this measure to deter abuse. We need a law to prevent exploitation. We need a framework for the effective and swift administration of justice for the violation of the rights of children.30
Senator Lina. This is qualified seduction. Simple seduction is seduction of a woman who is single or a widow of good reputation over 12, but under 18 years of age, committed by means of deceit. Here the subject is a woman.Force or intimidation does not equate to coercion or influence.
In our proposal, it will be both male and female. But that is not the only difference, Mr. President. The situation that we would like to cover that will lead to easier prosecution and to overcome this present problem of government enforcement agencies in booking or charging an alleged so called "pedophile" is that we want the fact of being present, say, inside a hotel, sauna, or an inn, between the presence of a person without any relationship with a child under 18 years of age and there is no sexual contact. It is not proved that there is sexual contact. There is no need for proof of lewd design. The fact that they are there will be considered an attempt to commit child prostitution.
We are, in effect, advancing a new concept or theory, Mr. President, to cover this gap in our present statutes, making it easier or making it difficult for the prosecution to hale to court this so-called "pedophile." So, this is different from consented abduction, qualified seduction or simple deduction.31
On the other hand, Section 5(b)'s essential elements are as follows:
- That the offender commits any act of lasciviousness or lewdness;
- That the act of lasciviousness is committed against a person of either sex;
- That it is done under any of the following circumstances:
- By using force or intimidation; or
- When the offended party is deprived of reason or otherwise unconscious; [or]
- By means of fraudulent machination or grave abuse of authority; or
- When the offended party is under 12 years of age or is demented. (Italics supplied)32
The muddling is made even more inopportune by the fact that the people's evidence shows neither force or intimidation, nor coercion or influence employed by Quimvel upon AAA. Quimvel took advantage of the fact that AAA was asleep, committed lascivious conduct upon her, and forthwith ceased when she awoke and removed his hand from within her shorts - her being asleep a circumstance properly belonging to being unconscious.
- The accused commits the act of sexual intercourse or lascivious conduct.
- The said act is performed with a child exploited in prostitution or subjected to other sexual abuse.
- The child, whether male or female, is below 18 years of age.33
Endnotes:
1 Decision, p. 2.
2 Decision, p. 3.
3 With modification as to the amount of damages; Decision, p. 4.
4 Decision, p. 4.
5 See People v. Abello, 601 Phil. 373, 393 (2009); an extended discussion of Abello is found in pages 9-10.
6 J. Carpio Separate Opinion, p. 5.
7 Record of the Senate, Vol. III, No. 104, March 19, 1991, p. 1204; emphasis and underscoring supplied.
8 272 Phil. 532 (1991).
9 Id. at 563-564, 569-570; emphasis and underscoring supplied.
10 Record of the Senate, Vol. I, No. 7, August 1, 1991, pp. 264-265; emphasis and underscoring supplied.
11 Record of the Senate, Vol. II, No. 58, December 2, 1991, pp. 793-794; emphasis and underscoring supplied.
12 Underscoring supplied.
13People v. Abello, supra note 5, at 392.
14 N.B. On the provisions relating to attempt to commit child prostitution.
15 Record of the Senate, Vol. IV, No. 116, May 9, 1991, pp. 334-335; emphasis and underscoring supplied.
16 Id. at 333-334.
17 503 Phil. 421 (2005).
18 Id. at 445-447; italics omitted, emphasis supplied.
19 657 Phil. 577 (2011).
20 Id. at 592.
21 Id. at 597.
22 Supra note 5.
23 Id. at 393; additional emphasis and underscoring supplied.
24 J. Bernabe Concurring Opinion, p. 3.
25 The President Pro Tempore noted this discrepancy in penalties during the deliberations, thus: "The penalty in the case of those who commit acts of lasciviousness is that they are punished under the Penal Code with merely prision correccional. That seems to be rather odd, because this is if the child, in the Penal Code, is less than 15, the penalty is higher or heavier. That is reclusion temporal, whereas, if the child is less than 12, it is only prision correccional." (Record of the Senate, Vol. II, No. 52, August 21, 199l, p. 605.)
26 357 Phil. 987 (1998).
27 Id. at 998-999.
28 Record of the Senate, Vol. I, No.7, August 1, 1991, p. 262; emphasis and underscoring supplied.
29 J. Peralta Separate Opinion.
30 Record of the Senate, Vol. IV, No. 111, April 29, 1991, pp. 191-193; emphasis and underscoring supplied.
31 Record of the Senate, Vol. IV, No. 116, May 9, 1991, pp. 335-336; emphasis and underscoring supplied.
32 Dissenting Opinion of J. Carpio in Olivarez v. Court of Appeals, supra note 17, at 442-443.
33People v. Fragante, supra note 19, at 596, citing People v. Abello, supra note 5, at 392, further citing People v. Larin, supra note 26, at 997; Amployo v. People, 496 Phil. 747, 758 (2005); Olivarez v. Court of Appeals, supra note 17, at 431 and 444; and Mallo v. People, 560 Phil. 119, 134 (2007).
34 J. Bernabe Concurring Opinion.
35People v. Pruna, 439 Phil. 440 (2002).