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In PP vs. Olayon, G.R. No.

171863 August 20, 2008 The accused who was 22 years old who admitted having sexual relation with a 12 year old girl was acquitted. Here there is no allegation that accused applied coercion or taken advantage of his relationship and moral ascendancy to exert influence on the victim.
For consensual sexual intercourse or lascivious conduct with a minor, who is not exploited in prostitution, to thus fall within the purview of Section 5(b) of R.A. No. 7610, "persuasion, inducement, enticement or coercion" of the child must be present. In People v. Larin, the information alleged and the prosecutin proved that the accused took advantage of his authority, influence, and moral ascendancy as trainor/swimming instructor of the minor victim which the Court found constituted "psychological coercion. In Malto v. Peole, the accused was convicted for violation of Section 5(b) of R.A. No. 7610. The information alleged, and the prosecution proved, that the accused who was the minor's professor obtained the minor's consent by taking advantage of his relationship and moral ascendancy to exert influence on her. The elements of sexual abuse under Section 5, Article III of Republic Act No. 7610 are as follows:

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 sexual abuse. 3. The child, whether male or female, is below 18 years of age. Read: Colinares vs. PP GR. No. 182748 Dec. 13, 2011. Accused was convicted of frustrated homicide. Penalty is more than 6 years, hence, non-probationble. Accused appealed his judgment of conviction. SC finds him guilty of the lesser offense of attempted homicide and eligible to apply for probation. General rule is probation and appeal are mutually exclusive remedies. Application for probation shall be filed within the period for perfecting appeal. If one files application for probation, he forecloses his right to appeal. And vice versa. If accused appeals, he forecloses his right to apply for probation. Contrast Colinares case to Francisco vs. CA, GR No. 108747, April 6, 1995 Rape vs. child Abuse


Pp vs. Matias[G.R. No. 186469, June 18, 2012]

if the victim of sexual abuse is below 12 years of age, the offender should not be prosecuted for sexual abuse but for statutory rape under Article 266-A(1)(d) of the Revised Penal Code and penalized with reclusion perpetua. If the victim is 12 years or older, the offender should be charged with either sexual abuse under Section 5(b) of RA 7610 or rape under Article 266-A (except paragraph 1[d]) of the Revised Penal Code. However, the offender cannot be accused of both crimes for the same act because his right against double jeopardy will be prejudiced. A person cannot be subjected twice to criminal liability for a single criminal act. Likewise, rape cannot be complexed with a violation of Section 5(b) of RA 7610. Under Section 48 of the Revised Penal Code (on complex crimes), a felony under the Revised Penal Code (such as rape) cannot be complexed with an offense penalized by a special law.



G.R. No. 164733

The Sweetheart theory applies only in rape and acts of lasciviousness cases committed against a victim over 12 years old. It is not defense in offenses involving child abuse. Unlike rape, therefore, consent is immaterial in cases involving violation of Section 5, Article III of RA 7610. The mere act of having sexual intercourse or committing lascivious conduct with a child who is exploited in prostitution or subjected to sexual abuse constitutes the offense. It is a malum prohibitum, an evil that is proscribed.