PERTINENT PROVISIONS for

ACTS OF LASCIVIOUSNESS IN R/T RA 7610

REVISED PENAL CODE

Sec 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 in the preceding article, shall be punished by
prision correccional.

RA 7160
AN ACT PROVIDING FOR STRONGER DETERRENCE AND SPECIAL
PROTECTION AGAINST CHILD ABUSE, EXPLOITATION AND
DISCRIMINATION, PROVIDING PENALTIES FOR ITS VIOLATION, AND FOR
OTHER PURPOSES

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:

(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 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;

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

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

On the distinction between Sec 5 and Section 10

People v. Court of Appeals, G.R. No. 171863,
August 20, 2008, Second Division (14 yo victim)

As Section 10 refers to acts of child abuse prejudicial to the child's

development other than child prostitution and other sexual abuse under
Section 5, attempt to commit child prostitution, child trafficking, attempt to
commit child trafficking, and obscene publications and indecent shows, the
Court of Appeals did not commit grave abuse of discretion in holding that ". . .
'sexual abuse' [as defined under Section 5] . . . is a completely distinct and
separate offense from 'child abuse' [as defined under Section 10]."
Consensual sexual intercourse or even acts of lasciviousness with a minor
who is 12 years old or older could constitute a violation of Section 5 (b)
of R.A. No. 7610. For Section 5 (b) punishes sexual intercourse or lascivious
conduct not only with a child exploited in prostitution but also with a child
subjected to other sexual abuse.

Section 2 (g) of the Rules and Regulations on the Reporting and Investigation of
Child Abuse Cases, promulgated to implement R.A. No. 7610, defines "sexual
abuse" as including "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."

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.

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On the construction of Section 5 (b)

Amployo y Ebalada v. People, G.R. No. 157718,
April 26, 2005, 496 PHIL 747-763 Second Division (8 yo victim)

Thus, pursuant to the foregoing provision, before an accused can be convicted

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

Article 336 of the RPC on Acts of Lasciviousness has for its elements the
following:
 (1) That the offender commits any act of lasciviousness or lewdness;
(2) That it is done under any of the following circumstances:
a. By using force or intimidation; or
b. When the offended party is deprived of reason or otherwise
unconscious; or
c. When the offended party is under 12 years of age; and
(3) That the offended party is another person of either sex.

(no longer quoted from the case)

But although Art 336 of RPC prescribes prision correctional, in application of
RA 7610, the penalty of reclusion temporal in medium was imposed

xxx sentencing him to suffer the penalty of twelve (12) years and one (1) day
of reclusion temporal, as minimum, to fifteen (15) years, six (6) months and
twenty (20) days of reclusion temporal, as maximum

Acts of Lasciviousness to a child above 12yo

Olivarez v. Court of Appeals, G.R. No. 163866,
July 29, 2005, 503 PHIL 421-450; First Division (16yo victim)

Information:
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
CRISTINA B. ELITIONG, [16 yo], by touching her breasts and
kissing her lips, against her will, to her damage and prejudice.

The trial court found Olivarez guilty of violating Section 5 of R.A. 7610 and
sentenced him to suffer an indeterminate penalty of imprisonment from eight
(8) years and one (1) day of prision mayor as minimum to seventeen (17)
years, four (4) months and one (1) day of reclusion temporal as maximum, to
indemnify the minor Cristina Elitiong in the amount of P15,000.00 as moral
damages and to pay the costs. (Applying RPC as minimum (?) and 7610 as
maximum)

Supreme Court:
True, the information herein may not refer to specific section/s of
R.A. 7610 alleged to have been violated by the petitioner, but it is all to evident
that the body of the information contains an averment of the acts alleged to
have been performed by petitioner which unmistakably refers to acts
punishable under Section 5 of R.A. 7610.
AFFIRMED by CA and SC
Acts of Lasciviousness to a child above 12yo
Garingarao v. People, G.R. No. 192760,
July 20, 2011, 669 PHIL 512-525); 2nd Division

Information:
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.

Contrary to Article 336 of the Revised Penal Code in relation

to RA 7610

Trial Court:
WHEREFORE, premises considered, judgment is hereby rendered finding
the accused Jojit Garingarao GUILTY beyond reasonable doubt of the
crime of acts of lasciviousness in relation to Republic Act 7610, and
sentencing him to suffer the penalty of imprisonment ranging from 12
years to 1 day of Reclusion Temporal as minimum to 14 years and 8
months of Reclusion Temporal as maximum. (Applying penalty imposed by
Sec 5 of 7610)

Court of Appeals:
The Court of Appeals ruled that while Garingarao was charged for acts
of lasciviousness in relation to RA 7610, he should be convicted
under RA 7610 because AAA was 16 years old when the crime was
committed. The Court of Appeals ruled that under Section 5 (b)
of RA 7610, the offender shall be charged with rape or lascivious
conduct under the Revised Penal Code (RPC) only if the victim is
below 12 years old; otherwise, the provisions of RA 7610 shall prevail.

Upheld the penalty of imprisonment imposed by RTC

Supreme Court:
The Court finds Jojit Garingarao GUILTY beyond reasonable doubt of acts
of lasciviousness in relation to Republic Act No. 7610. He is sentenced to
suffer the penalty of 14 years and 8 months of reclusion temporal as
minimum to 20 years of reclusion temporal as maximum. (Applying
penalty imposed by Sec 5 of 7610)