G.R. No.
88582 March 5, 1991 The people's evidence show that on October 10,
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
HEINRICH S. RITTER, accused-appellant,
The Solicitor General for plaintiff-appellee.
Esteban B. Bautista for accused-appellant.
GUTIERREZ, JR., J.:
The appellant challenges his conviction of the crime
involving a young girl of about 12 years old who had been
allegedly raped and who later died because of a foreign
object left inside her vaginal canal.
Heinrich Stefan Ritter was charged with the crime of rape
with homicide under an information which reads:
That on or about the tenth (10th day of October,
1986 in the City of Olongapo, Philippines, and
within the jurisdiction of this Honorable Court,
the above-named accused with lewd design and
with intent to kill one Rosario Baluyot, a woman
under twelve (12) years of age, did then and there
wilfully, unlawfully and feloniously have carnal
knowledge of said Rosario Baluyot and inserted a
foreign object into the vaginal canal of said
Rosario Baluyot which caused her death shortly
thereafter, to the damage and prejudice of her
relatives. (66)
When arraigned, the accused pleaded "Not Guilty".
Thereafter, the case was set for trial on the merits.
To prove the guilt of the accused, the prosecutor presented
the following witnesses, namely: (1) Jessie Ramirez, (2)
Maria Burgos y Turla, (3) P/Cpl. Mariano Victoria, (4)
Policarpio Baluyot, (5) Dr. Reino Rosete, (6) Sumulong
Daniel, (7) Jessica Herrera, (8) Sister Eva Palencia, (9)
Conrado Salonga, (10) Dr. Devonne Loop, (11) Dr. Leo Cruz,
(12) Paul Maclor, (13) Aida Sarmiento, (14) Patricia
Prollamanta (15) Mel Santos, (16) Lorna Limos, (17) Eduard
Lee Bungarner, (18) Ronaldo Marquez, (19) Tom Bonte, (20)
2nd Asst. City Fiscal Nini Alcala, (21) lst Asst. City Fiscal
Dorentino Z. Floresta, (22) Corazon Caber, (23) Rodolfo
Mercurio and (24) Fe Israel.
On the other hand, the defense offered in evidence Exhibits
"1" to "24" and the testimonies of (1) Heinrich S. Ritter, (2)
Father Roque Villanueva, (3) Angelita Amulong (4) Gaspar
Alcantara, (5) Dr. Val Barcinal and (6) Dr. Pedro C. Solis.
The facts of the case upon which the lower court based its
finding of guilt beyond reasonable doubt are summarized in
its decision, as follows:
1986 about midnight, accused Heinrich Stefan
Ritter brought a boy and girl namely: Jessie
Ramirez and Rosario Baluyot inside his hotel
room at MGM Hotel along Magsaysay Drive,
Olongapo City. These two (2) children were
chosen from among a bunch of street children.
Once inside the hotel room accused told them to
take a bath. Jessie Ramirez, alias "Egan", was the
first to take a bath and when he came out Rosario
Baluyot went to the bathroom to do the same.
While Rosario Baluyot was inside the bathroom,
accused Ritter took out some pictures depicting
dressed up young boys, and put them on top of
the table. Other things which were taken out and
placed on top of a table were three (3) other
objects which he described as like that of a vicks
inhaler. One of these objects the accused played
with his hands and placed it on his palms. The
color of which is grayish blue which turned out
later to be the foreign object which was inserted
inside the vagina of Rosario Baluyot. The other
objects were later established to be anti-nasal
inhalers against pollution purchased by the
accused in Bangkok when he went there as a
tourist. While Rosario was in the bathroom,
accused told Ramirez to lay down on bed, and so
did the accused. He then started masturbating
the young boy and also guided the boy's hand for
him to be masturbated, so that they masturbated
each other, while they were both naked, and he
gave Jessie Ramirez an erection. When Rosario
Baluyot came out of the bathroom, she was told
to remove her clothes by accused and to join him
in bed. The accused then placed himself between
the two (2) children and accused started fingering
Rosario.
At this time, Ramirez was already sleepy, but
Rosario touched him to call his attention. He
looked, and he saw accused placing his penis
against the vagina of Rosario and that he was
trying to penetrate the vagina but it would not fit.
After what he saw, Ramirez did not anymore
bother to look because he was sleepy and fell
asleep.
The following morning, the accused, whom the
juveniles described as an "American, paid
Ramirez alias"Egan" P200.00 and Rosario
P300.00. He then left them in the hotel. After the
American left, they went downstairs, and Rosario
told Egan that the American inserted something
in her vagina. But they could not do anything
anymore, because the American had already left,
and neither did they report the matter to the
police. Sometime the following day, Jessie saw
Rosario and he asked her whether the object was
already removed from her body and Rosario said
"Yes". However, Jessie Ramirez claimed that on
the evening of that same date, he saw Rosario
and she was complaining of pain in her vagina and
when Egan asked her, she said that the foreign
object was not yet removed. Then there was
another occasion wherein Jessie was summoned
and when he came he saw Rosario writhing in
pain and when he tried to talk to Rosario she
scolded him with defamatory remarks.
Thereafter, he did not see Rosario anymore
because he already went home to his aunt's
house who resided at Barrio Barretto and
resumed his studies in the primary grades.
On May 14, 1987, Gaspar Alcantara, a defense
witness, while garbage scavenging at Lot 21, near
the gate of the U.S. Naval Base saw Rosario at
Magsaysay Drive near the Happy Bake Shop near
Lot 21, being ogled by people because Rosario's
skirt was bloodied and she was unconscious and
foul smelling. Since nobody helped Rosario, he
took pity on her condition and brought her to the
Olongapo City General Hospital in an unconscious
condition, via jeepney. He went to the
Information desk and he was the one who gave
the personal circumstances of Rosario as to her
name, age, her residence as Nagbakulaw, Lower
Kalaklan, and Gaspar Alcantara signed as
"guardian" of Rosario, while Rosario was already
in the emergency room. Although Gaspar
Alcantara denied that he did not know the name
of Rosario Baluyot when he brought her to the
hospital, this is belied by the testimony of the
Information clerk Lorna Limos, who was then on
duty. Limos testified that it was Alcantara who
supplied the personal circumstances of Rosario.
The Court gives more credence to the testimony
of Miss Limos as against Gaspar Alcantara who
became a defense witness, for the reason that
through his own testimony, Gaspar Alcantara
claimed that even prior to May 14, 1987, he had
already known Rosario Baluyot for more than one
(1) year, because he has seen the said girl go to
the house of his twin brother, Melchor Alcantara,
who is his immediate neighbor. Rosario used to
visit a girl by the name of "Nora" who was then in
the custody of his brother. His brother Melchor
was also living with their mother, brother and
sister-in-law and their two (2) children in his
house. Rosario as per Gaspar's testimony even
stays for one week or a few days at his brother's
house when she visits Nora. So the Court can
safely assume that of all the more than one (1)
year that he had regularly seen Rosario at his
brother's house, he must have already did come
to know the name of Rosario Baluyot including
her age. In his testimony in Court he stated that
he even asked Rosario for movie and softdrinks
money which can safely be concluded that he
knows her very well. It is against normal behavior
especially to a Filipino who have a characteristic
of curiosity not to have found out the real name
of the girl he claims to know only as "Tomboy".
While Rosario Baluyot was confined at the
Olongapo City General Hospital, nobody was
attending to her since she is a street child, having
stowed away from the custody of her
grandmother. Three (3) good samaritans who
belong to religious and civic organizations, in the
persons of Jessica Herrera, Fe Israel and Sr. Eva
Palencia, in one of their missions in the hospital
chanced upon Rosario Baluyot who was all alone
with no relatives attending to her and after
finding out that she was only 12 years old decided
to help her. After a short interview with Rosario,
regarding her name and age only because she
clamped up about her residence and her
relatives, they decided to help her by providing
her the medicine she needed during her
confinement in readiness for an operation. It was
Fe Israel who was able to get the name and age of
Rosario Baluyot from Rosario Baluyot herself
when she saw her for the first time. For Fe Israel,
the age of Rosario Baluyot was an important
factor because their program assisted only
indigent patients from infants up to 13 years old.
Rosario's first ailment at the Olongapo City
General Hospital was loose bowel movement and
vomiting, which was first suspected as gastro-
enteritis, but which came out later as symptoms
of peritonitis due to a massive infection in the
abdominal cavity. Subsequently, on May 17,
1987, after she was examined by the physicians at
the hospital, it was found out that there was a
foreign object lodged in her vaginal canal and she
had vaginal discharge tinged with blood and foul
smelling odor emanating from her body. One of
the doctors who attended to her was Dr. Barcinal,
an OB-GYNE. Dr. Barcinal tried to extract the
foreign object by means of a forceps, but several
attempts proved futile because said object was
deeply embedded in the vaginal canal and was
covered by tissues. Her abdomen was enlarged,
tender and distended, symptoms of peritonitis.
The patient was feverish and incoherent when
she was scheduled for operation on May 19,
1987, after the first attempt for an operation on
May 17 was aborted allegedly because the
consent of Dr. Reino Rosete, the hospital director
was not obtained. The surgeon who operated on
her was Dr. Rosete himself. He testified that
Rosario had to be operated even in that condition
in order to save her life. Her condition was
guarded. This was corroborated by Dr. Leo Cruz,
the anesthesiologist during Rosario's operation. It
was in the evening of May 19 at about 7:00 p.m.
when Dr. Rosete opened her abdomen by making
a 5 inch incision on her stomach. He found out
that the fallopian tubes were congested with pus
and so with the peritonieum, and the pelvic
cavity, and patches of pus in the liver, although
the gallbladder and kidney appeared to have
septicemia, poisoning of the blood. The
peritonitis and septicemia were traced to have
been caused through infection by the foreign
object which has been lodged in the intra-vaginal
canal of Rosario. The foreign object which was
already agreed upon by both parties that it is a
portion of a sexual vibrator was extracted from
the vagina of Rosario while under anesthesia. Said
object was coated with tissues, pus and blood. Dr.
Rosete gave it to the assisting surgical nurse for
safekeeping and gave instructions to release it to
the authorized person. This object was shown by
the nurse to Dr. Leo Cruz. Dr. Rosete considered
the operation successful and the patient was alive
when he left her under Dr. Cruz. Dr. Cruz stayed
with said patient in the ward for about 30 minutes
and thereafter he left. The following day, Rosario
got serious and it was Dr. Leo Cruz who
pronounced her death at 2:00 to 2:15 in the
afternoon of May 20, 1987.
Thereafter, a death certificate was prepared
under the direction of Dr. Cruz which was
indicated therein that the cause of death was
cardio-respiratory arrest, secondary to
septicemia caused by the foreign object lodged in
the intra uteral vaginal canal of Rosario Baluyot.
The foreign object was washed by nurse Obedina,
then placed it in a transparent small jar and
labelled "Rosario Baluyot". Jessica Herrera asked
the nurse for the foreign object, and it was given
to her under proper receipt. Herrera then showed
the same to the persons who helped financially
Rosario's case, and afterwards she gave it to
Sister Eva Palencia. Sis. Palencia was in custody of
the said object until Mr. Salonga came and asked
her for the object.
After Rosario Baluyot died, Sis. Palencia and a
companion went to Gaspar Alcantara to ask him
in locating the relatives of Rosario. They were
able to trace Rosario's grandmother, Mrs. Maria
Burgos Turla, and informed her that her
granddaughter was already dead and lying in
state at St. Martin Funeral Parlor. Mrs. Turla went
there with her son, who shouldered all the burial
expenses for Rosario.
Subsequently, Sis. Palencia, Fr. Cullens and Mr.
Salonga came to her residence at Sta. Rita and
asked her if she was interested in filing a case
against the person who caused the death of her
granddaughter. Of course she agreed. Hence, she
was brought to the Fiscal's (City) Office to file the
same.
After the case was filed against the herein
accused, Atty. Edmundo Legaspi with his
messenger came to her house and told her that
the accused was willing to settle the case, but that
accused Ritter had only P15,000.00. The old
woman did not accept it because she knows that
the accused is liable to pay damages anyway.
After that, she received a letter from Atty. Legaspi
telling her to get a lawyer for her case. By this
time, Mrs. Turla, who wanted to have the case
settled once and for all giving the reason that she
can no longer bear the situation, sent her
nephew, Conrado Marcelo to Atty. Legaspi. Her
nephew obliged and told her that she will be paid
at the office of Atty. Legaspi. On a date not clear
in the records, she went with her nephew
Conrado Marcelo, and Roberto Sundiam, an
assistant barangay tanod of Sta. Rita, and while
they were there, she saw Ritter arrive at the law
office. Ritter and Atty. Legaspi talked at the office
near the bathroom, and thereafter Ritter left.
After he left, Atty. Legaspi told Rosario's
grandmother that they are willing to settle for
P20,000.00, but that Ritter left only P15,000.00,
so she received the money with the
understanding that there was a balance of
P5,000.00 yet. She was made to sign a statement,
and she was asked to change the age of her
granddaughter Rosario. With the document
prepared, she and the lawyer's messenger went
to the Fiscal's office to have it subscribed, and was
subscribed before an assistant city fiscal. But the
balance of P5,000.00 was not paid, because later
on Atty. Legaspi became the OIC of Olongapo City
and he could no longer attend to it. Atty. Legaspi,
during one of the hearings before the Court even
apologized to her.
As to the case, P/Cpl. Marino Victoria, as criminal
investigator of Station "A", was directed by Col.
Daos, Station Commander of the Olongapo Police
Department to make a follow up of the case of
Rosario Baluyot. On the other hand, since the
suspect who inserted the foreign object inside
Rosario's vagina was said to be an American, the
NISRA Subic Naval Base also conducted its
investigation headed by criminal investigator
Agent Conrado Salonga. Coordinating with the
local police and with Sister Eva Palencia, since
Rosario was a street child at Magsaysay Drive,
they rounded up about 43 street children and
from some of them they learned that Rosario
Baluyot was with Jessie Ramirez with an American
at the MGM Hotel when the foreign object was
inserted in her vagina. After finding Jessie
Ramirez, they asked him about Rosario Baluyot.
They found out that indeed he was with Rosario
Baluyot sometime before Christmas of 1986 with
an American, who brought them to the said hotel.
Jessie Ramirez was taken inside the U.S. Naval
Base, Olongapo City and took his statement. Then
he was brought to Mr. Edward Lee Bungarner, a
cartographer, and out of the description supplied
by Ramirez, a composite drawing was
photocopied and copies thereof were distributed
to the local police and to the sentries at the gate
of the U.S. Naval Base. Some American
servicemen who had resemblance to the
composite drawing were photographed and
these were shown to Jessie Ramirez, but the
result was negative. Aside from the physical
description by Ramirez about the appearance of
the suspect, he also described him as having the
mannerisms of a homo-sexual.
After obtaining information that foreign homo-
sexuals frequented Ermita, Manila, and thinking
that the so-called American may be European or
Australian national, the team composed of Agent
Salonga, Mr. Heinsell, P/Cpl. Marino Victoria and
P/Cpl. Andres Montaon, Jessie Ramirez and
Michael Johnson, another juvenile, proceeded to
Manila. They first went to the Manila NISRA
Office, and thereafter checked in a hotel. That
was on September 23, 1987. On the first night,
they went to Luneta Park where foreign homo-
sexuals were said to be frequenting, but the result
was negative. Then on September 25, at about
11:00 p.m., while they were standing at the
corner of A. Mabini and M.H. del Pilar Street, a
male caucasian who looked like a homo-sexual
stopped by admiringly infront of the two (2)
juveniles, Ramirez and Johnson. Jessie Ramirez
then reported to Mr. Salonga that this foreigner
had a similarity with the American suspect, so the
two minors were instructed to follow the
foreigner and to strike a conversation. They did,
and when they returned, Jessie Ramirez told
them that indeed the said foreigner was the one
who brought him and Rosario Baluyot to the
MGM Hotel. Bobby Salonga told Ramirez that this
foreigner had no beard while the one previously
described by Ramirez had a beard. Jessie Ramirez
told them that maybe he have just shaved it off.
The said caucasian then entered a bar, and after
several minutes he came out, and Jessie Ramirez
upon his signal with his thumbs up, as a signal to
confirm that the said foreigner is the suspect,
arrested Ritter and brought him to the Manila
Western Police District. It could be mentioned at
this stage that in this operation they were
accompanied by two (2) policemen from the
Western Police District. The foreigner was hand
cuffed and was told that he was a suspect for
Rape with Homicide. After the arrest, they first
went to the pension house of the suspect in
Ermita, Manila to get his shoulder bag which
contained his personal belongings, and from
there they brought him to the Western Police
Department. At the said police headquarters,
they were allowed a permissive search by the
foreigner of his clutch bag and his small shoulder
bag and confiscated his passport, I.D., 3 inhalers,
money in the form of dollars and travellers checks
amounting about $1,500.00 and about P100.00,
all duly receipted for. From the passport they
learned that the suspect's name was Heinrich
Stefan Ritter, an Austrian national. During the
questioning of Hitter, Salonga and his team
already left the headquarters and went to their
hotel, because at this time Jessie Ramirez was
already shaking with fear after he identified the
accused.
The following day, they brought the accused to
Olongapo and was detained at the Olongapo City
Jail. The case for Rape with Homicide was filed
against him at the City Fiscal of Olongapo. At the
preliminary investigation, accused was assisted
by his own counsel. The private complainant was
Maria Burgos Turla because it was she who had
custody of Rosario Baluyot after her mother Anita
Burgos died on January 12, 1982, and their father
Policarpio Baluyot had left them under her
custody. When this case was filed, the father's
whereabouts was unknown, and he only
appeared when the trial of this case before the
Court was already in progress. And upon his
(Policarpio Baluyot) own admission, he only
learned about the death of his daughter Rosario
Baluyot from the newspaper, long after Rosario
was already gone.
The defense tried to dislodge the case by claiming
that there could be no crime of Rape with
Homicide because the suspect was described as
an American while Ritter is an Austrian. Also
advanced by the defense is that, it is a case of
mistaken identity. That Rosario Baluyot was at
the time of the commission of the offense,
already more than 13 years old, she having been
born on December 26, 1973 as per baptismal
certificate, wherein it appears that Rosario
Baluyot was baptized on December 25, 1974 and
was born on December 26, 1973 as testified to by
Fr. Roque Villanueva of St. James Parish Church
 who issued the Baptismal Certificate, having
custody and possession of the book of baptism for
the year 1975, but admitted that he had no
personal knowledge about the matters or entries
entered therein. Likewise, the defense's stand is
that the accused cannot be liable for Homicide
because a vibrator is not a weapon of death but it
is a thing for the purpose of giving sexual
pleasure, and that the death of Rosario Baluyot
was due to the incompetence of Dr. Rosete, the
surgeon and Director of the Olongapo City
General Hospital, who operated on her. (Rollo,
pp. 109-116)
On March 29, 1989, the trial court rendered its decision.
The dispositive portion of the decision reads as follows:
WHEREFORE, IN VIEW OF ALL THE FOREGOING,
the Court holds, that the prosecution has
established the GUILT of the accused beyond
reasonable doubt for the crime of Rape with
Homicide as defined and penalized in Art. 335 No.
3 of the Revised Penal Code, and hereby
sentences HEINRICH STEFAN RITTER to a penalty
of RECLUSION PERPETUA, to indemnify the heirs
of the deceased in the sum of SIXTY THOUSAND
PESOS (P60,000.00) Philippine Currency, and TEN
THOUSAND PESOS (Pl0,000.00) by way of
attorney's fees to the private prosecutors and to
pay the costs. (Rollo, p. 126)
The accused now comes to this Court on the following
assigned errors allegedly committed by the court:
I testimonies of the victim's grandmother and father who
THE TRIAL COURT GRAVELY ERRED AND ABUSED
ITS DISCRETION IN FINDING THAT THE ALLEGED
OFFENSE WAS COMMITTED ON OCTOBER 10,
1986 AND THAT IT WAS ACCUSED-APPELLANT
WHO COMMITTED IT.
II
THE TRIAL COURT GRAVELY ERRED AND ABUSED
ITS DISCRETION IN FINDING THAT ROSARIO
BALUYOT WAS LESS THAN TWELVE (12) YEARS
OLD WHEN THE ALLEGED OFFENSE WAS
COMMITTED AND IN HOLDING THAT THERE WAS
RAPE WITH HOMICIDE.
III
THE TRIAL COURT GRAVELY ERRED AND ABUSED
ITS DISCRETION IN GIVING CREDENCE TO AND
NOT REJECTING THE PROSECUTION'S EVIDENCE
AND IN NOT UPHOLDING THAT OF THE DEFENSE
AND ACQUITTING THE ACCUSED.
Inasmuch as it is the bounden duty of this Court to affirm a
judgment of conviction only if the guilt of the accused has
been proved beyond reasonable doubt, it behooves us to
exert the most painstaking effort to examine the records in
the light of the arguments of both parties if only to satisfy
judicial conscience that the appellant indeed committed
the criminal act (See People v. Villapaña, 161 SCRA 73
[1988]).
The appellant was convicted by the trial court of the crime
of rape with homicide of a young girl who died after the
rape because of a foreign object, believed to be a sexual
vibrator, left inside her vagina.
As stated by the trial court one crucial issue in this case is
the age of the victim—whether or not Rosario Baluyot was
less than twelve (12) years old at the time the alleged
incident happened on October 10, 1986. The age is
important in determining whether or not there was
statutory rape, Article 335 of the Revised Penal Code
defines the third type of rape as having carnal knowledge of
a woman under 12 years of age, in which case force,
intimidation, deprivation of reason or unconscious state do
not have to be present.
The trial court found that Rosario was below 12 years old
when she was sexually abused by the accused and,
therefore, rape was committed inspite of the absence of
force or intimidation.
In resolving the issue, the trial court put great weight on the
testified that she was born on December 22, 1975. These
oral declarations were admitted pursuant to then Rule 130,
Section 33 of the Rules of Court where, in the absence of a
birth certificate, the act or declaration about pedigree may
be received in evidence on any notable fact in the life of a
member of the family. Since birth is a matter of pedigree
within the rule which permits the admission of hearsay
evidence, oral declarations are therefore admissible as
proof of birth (Decision, p. 54).
The grandmother, Maria Burgos Turla, testified that she
remembered Rosario's birth date because her brother died
in Pampanga and her daughter, Anita (Rosario's mother)
was the only one who failed to attend the funeral because
the latter has just given birth allegedly to Rosario (T.S.N. p.
8, Jan. 13, 1988).
The father likewise testified that as far as he could
remember, Rosario was born on December 22, 1975 (T.S.N.,
p. 4, Jan. 27, 1988) and he was certain that Rosario was
more than one (1) year old when she was baptized (T.S.N.,
p. 45, Jan. 27, 1988).
The trial court further added that their testimony is
supported by the clinical record and the death certificate
indicating that she was 12 years old when she was admitted
at the Olongapo City General Hospital for treatment. The
age was supplied by Rosario's alleged guardian, Gaspar
Alcantara to the hospital's clinical record clerk, Lorna Limos.
Fe Israel, a social worker who interviewed Rosario Baluyot
also testified that she was told by Rosario that she was 12
years old. The trial court accepted this as adequate
evidence of the truth. Moreover, Jessie Ramirez, the
principal witness in this case declared that he was born on
September 5, 1973 and that he was older than Rosario
Baluyot. Therefore, since he was 13 years old in 1986,
Rosario must have been less than 12 yeas old in 1986.
(Decision, p. 55)
The trial court concluded that the oral declarations of the
grandmother and father supported by other independent
evidence such as the clinical record, death certificate and
the testimonies of Fe Israel and Jessie Ramirez, rendered
the baptismal certificate presented by the defense without
any probative or evidentiary value. (Decision, p. 55)
The findings of the trial court with respect to Rosario
Baluyot's age cannot stand the application of evidentiary
rules.
The trial court relied on Section 33, Rule 130 (now Section
40 of Rule 130 of the 1989 Revised Rules of Court).
For oral evidence to be admissible under this Rule, the
requisites are:
(1) That the declarant must be dead or outside of
the Philippines or unable to testify;
(2) That pedigree is in issue;
(3) That the person whose pedigree is in question
must be related to the declarant by birth or
marriage;
(4) That the declaration must be made before the
controversy occurred or ante litem motam; and
(5) That the relationship between the declarant
and the person whose pedigree is in question
must as a general rule be shown by evidence
other than such act or declaration.
These requirements were not satisfied by the evidence for
the prosecution nor do the declarations fall within the
purview of the rule.
The victim's grandmother and father whose declarations
regarding Rosario's age were admitted by the trial court are
both alive, in the Philippines and able to testify as they both
did testify in court. Their declarations were made at the trial
which is certainly not before the controversy arose. The
other witnesses who testified on Rosario's age are not
members of the victim's family. The testimonies of Rosario's
relatives must be weighed according to their own personal
knowledge of what happened and not as hearsay evidence
on matters of family history.
At this point, we find the evidence regarding Rosario's age
of doubtful value.
The trial court justified the admissibility of the
grandmother's testimony pursuant to the ruling laid down
in U.S. v. Bergantino, (3 Phil., 118 [1903]) where the Court
accepted the testimony of the mother that her daughter
was 14 years old and 4 months old. The mother stated that
she knew the age because the child was born about the
time of the cholera epidemic of 1889. This was not hearsay,
but came from one who had direct knowledge of the child's
birth.
It is however, equally true that human memory on dates or
days is frail and unless the day is an extraordinary or
unusual one for the witness, there is no reasonable
assurance of its correctness. (People v. Dasig 93 Phil. 618,
632 [1953])
With respect to the grandmother's testimony, the date of
the brother's death or funeral was never established, which
indicates that the day was rather insignificant to be
remembered. The father's declaration is likewise not
entirely reliable. His testimony in court does not at all show
that he had direct knowledge of his daughter's birth. He was
certain though that she was more than one (1) year old at
the time she was baptized.
The other witnesses are not at all competent to testify on
the victim's age, nor was there any basis shown to establish
their competence for the purpose. The clinical records were
based on Gaspar Alcantara's incompetent information
given when he brought the victim to the hospital. Alcantara
came to know her only about a year before her death. He
had absolutely no knowledge about the circumstances of
Rosario's birth. The death certificate relied upon by the trial
court was merely based on the clinical records. It is even
less reliable as a record of birth.
All the evidence presented by the prosecution showing that
Rosario Baluyot was less than 12 years old at the time of the
alleged incident are not adequate to establish the exact
date of birth, much less offset a documentary record
showing a different date.
The defense presented Rosario Baluyot's baptismal
certificate which the trial court rejected as being hearsay
and of no value. As against the oral declarations made by
interested witnesses establishing Rosario's age to be less
than 12 years old, the evidence on record is more
convincing and worthy of belief. (See Filinvest Land, Inc. v.
Court of Appeals, 183 SCRA 664, 673 [1990]).
By virtue of a subpoena duces tecum and ad testificandum,
issued by the lower court to the St. James Parish Church,
Subic, Zambales, Fr. Roque Villanueva a Roman Catholic
priest testified and stated that he is the head of said parish.
He brought with him Baptismal Register No. 9 entitled
"Liber Baptisnorum", a latin term for baptismal book or
record. On page 151, No. 3 of the said Registry Book, there
appears the name of Rosario Baluyot who was baptized on
December 25, 1974, and born on December 26, 1973.
Parents are Policarpio Baluyot and Anita Burgos, residents
of Subic, Zambales. Edita R. Milan appears as the only
sponsor with Olongapo City as her address.
In the case of Macadangdang v. Court of appeals (100 SCRA
73 [1980]), we held that:
xxx xxx xxx
In our jurisprudence, this Court has been more
definite in its pronouncements on the value of
baptismal certificates. It thus ruled that while
baptismal and marriage certificates may be
considered public documents, they are evidence
only to prove the administration of the
sacraments on the dates therein specified—but
not the veracity of the status or declarations
made therein with respect to his kinsfolk and/or
citizenship (Paa v. Chan, L-25945, Oct. 31, 1967).
Again, in the case of Fortus v. Novero (L-22378, 23
SCRA 1331 [1968]), this Court held that a
baptismal certificate is conclusive proof only of
the baptism administered, in conformity with the
rites of the Catholic Church by the priest who
baptized the child, but it does not prove the
veracity of the declarations and statements
contained in the certificate that concern the
relationship of the person baptized. Such
declarations and statements, in order that their
truth may be admitted, must indispensably be
shown by proof recognized by law. (At pp. 84-85)
In the same light, the entries made in the Registry Book may
be considered as entries made in the course of business
under Section 43 of Rule 130, which is an exception to the
hearsay rule. The baptisms administered by the church are
one of its transactions in the exercise of ecclesiastical duties
and recorded in a book of the church during the course of
its business. (U.S. v. de Vera, 28 Phil. 105 [1914] Hence, the
certificate (Exhibit "22") presented by the defense that
Rosario Baluyot was baptized on December 25, 1974 may
be admitted in evidence as proof of baptism. Policarpio
Baluyot, the victim's father testified that he had in his
possession a baptismal certificate different from the one
presented in court. However, no other baptismal record
was ever presented to prove a date different from that
brought by the official custodian. Since the baptismal
certificate states that Rosario was baptized on December
25, 1974, it is therefore highly improbable that Rosario
could have been born on December 22, 1975. She could not
have been baptized before she was born. Exhibit "22" may
be proof only of baptism but it puts a lie to the declaration
that Rosario was born in 1975. With the father's assertion
that Rosario was more than one (1) year old when she was
baptized, we are then more inclined to agree that Rosario
was born in 1973 as stated in the Baptismal Registry.
In the case of People v. Rebancos (172 SCRA 425 [1989]),
the Court stated:
xxx xxx xxx
. . . Although no birth certificate was presented
because her birth had allegedly not been
registered, her baptismal certificate, coupled by
her mother's testimony, was sufficient to
establish that Mary Rose was below twelve years
old when she was violated by Rebancos. (At. p.
426)
Unfortunately, in the instant case, nobody could
corroborate the date on a more reliable document as to
Rosario's birth which could serve as sufficient proof that she
was born on December 26, 1973. Therefore, she was more
than 12 years old at the time of the alleged incident on
October 10, 1986.
Moreover, it is not incumbent upon the defense to prove
Rosario's age. The burden of proof lies on the prosecution
to prove that Rosario was less than 12 years old at the time
of the alleged incident in a charge of statutory rape. The
prosecution failed in this respect.
Since Rosario was not established to have been under 12
years of age at the time of the alleged sexual violation, it
was necessary to prove that the usual elements of rape
were present; i.e. that there was force of intimidation or
that she was deprived of reason or otherwise unconscious
in accordance with Article 335 of the Revised Penal Code.
We agree with the defense that there was no proof of such
facts. On the contrary, the evidence shows that Rosario
submitted herself to the sexual advances of the appellant.
In fact, she appears to have consented to the act as she was
paid P300.00 the next morning while her companion, Jessie
Ramirez was paid P200.00 (T.S.N. p. 50, January 6, 1988).
The environmental circumstances coupled with the
testimonies and evidence presented in court clearly give
the impression that Rosario Baluyot, a poor street child, was
a prostitute inspite of her tender age. Circumstances in life
may have forced her to submit to sex at such a young age
but the circumstances do not come under the purview of
force or intimidation needed to convict for rape.
In view of these clear facts which the prosecution failed to
refute, no rape was committed. But was Ritter guilty of
homicide?
The trial court justified its ruling by saying that the death of
the victim was a consequence of the insertion of the foreign
object into the victim's vagina by the appellant.
We now ask "Was the appellant responsible for the sexual
vibrator left inside Rosario's vagina which led to her death?
The trial court convicted the accused based on
circumstantial evidence. Unfortunately, the circumstances
are capable of varying interpretations and are not enough
to justify conviction.
Jessie Ramirez, the principal witness did not actually see the
object inserted in Rosario's vagina. Neither could he identify
the object (Exhibit "C-2") taken from Rosario as the same
object which the appellant was holding at that time of the
alleged incident.
In his sworn statement given to the police investigator on
September 4, 1987, he answered that:
xxx xxx xxx
T Habang kayo ay nasa loob ng kuwarto ng otel,
mayroon ka bang napansin na inilabas ng kano sa
kanyang daladalahan kung mayroon man?
S Ang Amerikano ay may dala-dalang shoulder
bag na kulay itim, at napansin ko na may inilabas
siya sa kanyang bag na parang vicks inhaler, na
kanyang inamoy-amoy habang nasa otel kami at
pagkatapos niya ay inilapag niya sa lamiseta.
T Ilarawan mo nga sa akin ang bagay na nakita
mong inilabas ng Amerikano?
S Ito ay may habang tatlong pulgada at ang takip
nito ay may habang dalawang pulgada. Iyong
takip ay bilog na patulis at may tabang mga
kalahating pulgada. Hindi ko napansin ang hugis
ng dulo ng bagay na may takip dahil natatakpan
ng kamay at ilong ng Amerikano.
T Ipinakikita ko sa iyo ang isang larawan. Tignan
mong mabuti ang larawang ito at sabihin mo nga
sa akin kung makikilala mo ang mga bagay na nasa
larawang ito, na may kinalaman sa nakita mong
kinuha ng Amerikano sa kanyang bag?
S Napansin ko na ang kulay asul na bagay sa
larawan ay katulad na katulad noong takip ng
bagay na inilabas ng Amerikano sa kanyang
bag. Kaya lang ay bakit naging kulay asul gayong
ng makita ko ito ay kulay puti? (Exhibit "A", p. 2;
Emphasis Supplied)
Presumably, what Jessie Ramirez saw was merely the Vicks
inhaler which the appellant does not deny having possessed
at that time. He was certain that the object was white.
(T.S.N. p. 91, January 6, 1988)
Later, Ramirez retracted and corrected himself. He said that
it was grayish in color with color blue (Medyo kulay abo na
may kulay na parang blue). (T.S.N. p. 92, January 6, 1988)
The inconsistency of the witness' testimony casts doubt as
to the veracity of the statements made especially when he
answered on additional cross-examination that the reason
why he concluded that Exhibit "C-2" was the same object
being held by Ritter was because it was the only one shown
to him by the prosecution (T.S.N. pp. 109-110, January 6,
1988). Jessie Ramirez was not all certain about the sexual
vibrator because he did not actually see it in the possession
of the appellant.
What he merely remembers is the revelation made by
Rosario the next morning that the foreigner inserted
something inside her vagina. The trial court admitted such
statement as part of the res gestae. In a strained effort to
accept such statement as part of res gestae, the trial court
focused the test of admissibility on the lapse of time
between the event and the utterance. For the average 13
years old, the insertion of a mechanical device or anything
for that matter into the vagina of a young girl is
undoubtedly startling. For Rosario and Jessie, however,
there must be more evidence to show that the statement,
given after a night's sleep had intervened, was given
instinctively because the event was so startling Res
gestae does not apply. (Section 42, Rule 130, Rules of Court)
Even if it were established that the appellant did insert
something inside Rosario's vagina, the evidence is still not
adequate to impute the death of Rosario to the appellant's
alleged act.
Jessie Ramirez testified that Rosario was able to remove the
object inserted in her vagina. We quote:
Q Now, you also stated on direct examination
that later on Rosario even categorically admitted
to you that she was already able to remove the
 object allegedly inserted inside her vagina, is that
correct?
A Yes, sir.
xxx xxx xxx
ATTY. CARAAN:
Q Will you kindly tell to this Honorable Court the
exact words used by Rosario Baluyot later on
when you met her when you asked her and when
she told you that she was already able to remove
that object from her vagina?
A "Oy, Jessie, natanggal na, "she told me that. I
asked her, "Was it already removed?" And she
answered, "Yes, it was removed." But the same
night, she again complained of pain of her
stomach. She sent one of her friends to call for
me. And as a matter of fact, Tomboy was uttering
defamatory words against me as she was
groaning in pain. (TSN, Jan. 6,1988, pp. 72-73)
This encounter happened on the night of the day following
the day after both children were invited by the foreigner to
the hotel. (T.S.N. p. 73, January 6, 1988). Rosario was said
to be groaning in pain so we can just imagine the distress
she was undergoing at this point in time. If the device
inserted by the appellant caused the pain, it is highly
inconceivable how she was able to endure the pain and
discomfort until May, 1987, seven (7) months after the
alleged incident. Evidence must not only proceed from the
mouth of a credible witness but it must be credible in itself
such as the common experience and observation of
mankind can approve as probable under the circumstances.
(People vs. Patog, 144 SCRA 429 [1986]).
At this juncture, we find Dr. Pedro Solis' testimony rather
significant. Dr. Pedro Solis, a witness for the defense is
considered an expert witness. (A Doctor of Medicine and a
graduate of the State University in 1940, a degree of
Bachelor of Laws and member of the Bar 1949, and a
graduate of the Institute of Criminology University. He was
awarded Post Graduate Diploma in Criminology in 1963,
and also a graduate of United Nations Asia and Far East Asia
Institute on the Prevention of Crimes in Tokyo Japan 1965.
He was appointed Medico Legal Officer of the National
Bureau of Investigation in 1940 until 1944. He became Chief
Medico Legal Officer in 1970 and became the Deputy
Director of the NBI up to 1984. He is at present a
Professorial Lecturer on Legal Medicine at the UP, FEU, UE,
and Fatima College of Medicine; a Medico Legal Consultant
of the PGH Medical Center, Makati Medical Center, UERM
Medical Center, MCU Medical Center. He has been with the
NBI for 43 years. He has attended no less than 13
conferences abroad. He is the author of the textbooks
entitled "Legal Medicine" and "Medical Jurisprudence".)
With his impressive legal and medical background, his
testimony is too authoritative to ignore. We quote the
pertinent portions of his testimony:
Q Now Dr. Solis, would you kindly go over this
object marked as Exh. "C-2" which object was
described as a part of a sexual vibrator battery
operated. Now, given this kind of object, would
you kindly tell us what would be the probable
effect upon a 12 years old girl when it is inserted
into her vagina?
A Well, this vibrator must be considered a foreign
body placed into a human being and as such be
considered a foreign object. As a foreign object,
the tendency of the body may be: No. 1—expel
the foreign body—No. 2.—The tendency of the
body is to react to that foreign body. One of the
reactions that maybe manifested by the person
wherein such foreign body is concerned is to
cover the foreign body with human tissue, in a
way to avoid its further injury to the body.
Now, the second reaction is irritation thereby
producing certain manifest symptoms and
changes in the area where the foreign body is
located.
In severe cases, the symptoms manifestation
might not only be localized but may be felt all
over the body, we call it systemic reaction. Now,
considering the fact that this foreign body as
shown to me is already not complete, this shows
exposure of its different parts for the body to
react. If there is mechanism to cause the foreign
body to vibrate, there must be some sort of
power from within and that power must be a dry
cell battery. [The] composition of the battery are,
manganese dioxide ammonium, salts, water and
any substance that will cause current flow. All of
these substances are irritants including areas of
the container and as such, the primary reaction of
the body is to cause irritation on the tissues,
thereby inflammatory changes develop and in all
likelihood, aside from those inflammatory
changes would be a supervening infection in a
way that the whole generative organ of the
woman will suffer from diseased process causing
her the systemic reaction like fever, swelling of
the area, and other systemic symptoms. . . . .
(TSN., pp. 13-15, October 19,1988)
xxx xxx xxx
Q Now, given this object, how long would it take,
Doctor before any reaction such as an infection
 would set in, how many days after the insertion
of this object in the vagina of a 12 year old girl?
A In the example given to me, considering that
one of the ends is exposed, in a way that vaginal
secretion has more chance to get in, well,
liberation of this irritant chemicals would be
enhanced and therefore in a shorter period of
time, there being this vaginal reaction.
Q How many days or weeks would you say would
that follow after the insertion?
A As I said, with my experience at the
NBI, insertion of any foreign body in the vaginal
canal usually developed within, a period of two (2)
weeks . . .
xxx xxx xxx
Q . . . [T]he subject in this case was allegedly
raped, and a sexual vibrator was inserted in her
vagina on October 10, 1986 and she was operated
on, on May 19, 1987 the following year, so it took
more than 7 months before this was extracted,
would you say that it will take that long before
any adverse infection could set in inside the
vagina?
A Infection and inflamatory changes will develop
in a shorter time. (TSN., Oct. 19,1988, p. 18)
xxx xxx xxx
Q When you said shorter, how long would that be,
Doctor?
A As I said, in my personal experience, hair pins,
cottonballs and even this lipstick of women
usually, there are only about two (2) weeks time
that the patient suffer some abnormal symptoms.
Q Now, considering that this is a bigger object to
the object that you mentioned, this object has a
shorter time?
A Yes, Sir shorter time. (TSN., Oct. 19. 1988, p. 20)
The trial court, however, ruled that "there is no hard and
fast rule as to the time frame wherein infection sets in upon
insertion of a foreign body in the vagina canal. For Dr. Solis,
the time frame is not more than 10 months, and this case is
still within the said time frame."
A more generous time interval may be allowed in non-
criminal cases. But where an accused is facing a penalty
of reclusion perpetua, the evidence against him cannot be
based on probabilities which are less likely than those
probabilities which favor him.
It should be clarified that the time frame depends upon the
kind of foreign body lodged inside the body. An
examination of the object gave the following results:
(1) Color: Blue
Size: (a) Circumference—3.031
inches (b) Length—approximately
2.179 inches.
Composition: Showed the general
characteristics of a styrene-butadiene plastic.
(2) The specimen can be electrically operated by
means of a battery as per certification dated 01
June 1988, signed by Mr. Rodolfo D. Mercuric,
Shipboard Electrical Systems Mechanics,
Foreman II, SRF Shop 51, Subic (see attached
certification).
(3) No comparative examination was made on
specimen #1 and vibrator depicted in the catalog
because no actual physical dimensions and/or
mechanical characteristics were shown in the
catalog. (Exhibit "LL")
The vibrator end was further subjected to a macro-
photographic examination on the open end portion which
revealed the following:
Result of Examination
Macro-photographic examination on the open
end portion of specimen #1 shows the following
inscription:
MABUCHI MOTOR JAPAN RE 14 PAT (Exhibit
"MM")
From the above results, the subject object is certainly not
considered as inert and based on Dr. Solis' testimony, it is
more likely that infection should set in much earlier.
Considering also that the object was inserted inside the
vagina which is part of the generative organ of a woman, an
organ which is lined with a very thin layer of membrane
with plenty of blood supply, this part of the body is more
susceptible to infection. (T.S.N. p. 34, October 19, 1988)
The truth of Dr. Solis' testimony is more probable under the
circumstances of the case. We see no reason why his
opinions qualified by training and experience should not be
controlling and binding upon the Court in the determination
of guilt beyond reasonable doubt. (People v. Tolentino, 166
SCRA 469 [1988]).
Dr. Barcinal, another witness for the defense also testified
that he examined Rosario Baluyot on May 17, 1986 as a
referral patient from the Department of Surgery to give an
OB-GYN clearance to the patient prior to operation. (T.S.N.
p. 6, September 28, 1988)
Q And how many times did you examine this
patient Rosario Baluyot on that day?
A I examined her twice on that day.
Q The first time that you examined her, what is
the result of your findings, if any?
A My first examination, I examined the patient
inside the delivery room. The patient was brought
to the delivery room wheel-chaired then from the
wheel chair, the patient was ambigatory (sic). She
was able to walk from the door to the examining
table. On examination, the patient is conscious,
she was fairly nourished, fairly developed, she
had fever, she was uncooperative at that time
and examination deals more on the abdomen
which shows slightly distended abdomen with
muscle guarding with tenderness all over, with
maximum tenderness over the hypogastric area.
(T.S.N. p. 5, September 28, 1988)
xxx xxx xxx
Q What about your second examination to the
patient, what was your findings, if any?
A In my second examination, I repeated the
internal examination wherein I placed my index
finger and middle finger inside the vagina of the
patient and was able to palpate a hard object.
After which, I made a speculum examination
wherein I was able to visualize the inner portion
of the vaginal canal, there I saw purulent foul
smelling, blood tints, discharge in the vaginal
canal and a foreign body invaded on the posterior
part of the vaginal canal.
xxx xxx xxx
A I referred back to Dr. Fernandez about my
findings and he asked me to try to remove the
said foreign object by the use of forceps which I
tried to do so also but I failed to extract the same.
Q All this time that you were examining the
patient Rosario Baluyot both in the first and
second instance, Rosario Baluyot was conscious
and were you able to talk to her when you were
examining her?
A Yes, sir.
Q And did you ask her why there is a foreign
object lodge inside her vagina?
A Yes, Sir I asked her.
Q And what did she tell you, if any?
A She said in her own words that "GINAMIT AKO
NG NEGRO AT SIYA ANG NAGLAGAY NITO."
Q Did she also tell you when, this Negro who used
her and who inserted and placed the foreign
object on her vagina?
A Yes, Sir I asked her and she said he used me
three (3) months ago from the time I examined
her.
Q Now, you said that you referred the patient to
the ward, what happened next with your patient?
A To my knowledge, the patient is already
scheduled on operation on that date.
Q Meaning, May 17, 1987?
A Yes, Sir I was presuming that the patient would
undergo surgery after that?
(TSN, Sept. 28,1988, pp. 8-9; Emphasis supplied)
The trial court debunked Dr. Barcinals testimony
considering Rosario's condition at that time. It ruled that it
is inconceivable that she would be striking a normal
conversation with the doctors and would be sitting on the
examination table since Gaspar Alcantara stated that when
he brought Rosario Baluyot to the hospital, she was
unconscious and writhing in pain.
It was not improbable for Rosario Baluyot to still be
conscious and ambulant at that time because there were
several instances testified to by different witnesses that she
was still able to talk prior to her operation:
(1) Fe Israel, a witness for the prosecution and a member of
the Olongapo Catholic Charismatic Renewal Movement
testified that as a member of this group she visits indigent
children in the hospital every Saturday and after office
hours on working days.
On the Saturday prior to Rosario's death which was May 17,
she was still able to talk to Rosario Baluyot. In fact, one of
her groupmates helped Rosario go to the comfort room to
urinate. (T.S.N., pp. 16-19, May 25, 1988)
(2) Angelita Amulong, a witness for the defense is another
para social worker who worked at Pope John 23rd
Community Center under Sister Eva Palencia. In one of her
hospital visits, she encountered Rosario Baluyot in the
month of May, 1987. She actually saw a child who
happened to be Rosario Baluyot seated on the cement floor
and when she asked why she was seated there, she was told
that it was too hot in the bed. She saw Rosario Baluyot for
about 2 or 3 days successively. (T.S.N. pp. 10-13, September
7, 1988)
(3) Gaspar Alcantara, the person who brought Rosario to
the hospital actually testified that she was conscious (T.S.N.
p. 36, September 14, 1988) but writhing in pain. He took
pity on her so he brought her to the hospital (T.S.N. p. 12,
September 14, 1988)
From the above testimonies, it is clear that Rosario was still
conscious and could still answer questions asked of her
although she was complaining of stomach pains.
Unfortunately, the medical attention given to her failed to
halt the aggravation of her condition. The operation on May
19 was too late.
Rosario died because of septicemia, which in layman's
language is blood poisoning, and peritonitis, which is
massive infection, in the abdominal cavity caused by the
foreign object or the cut sexual vibrator lodged in the vagina
of the victim. This led to the infection from the uterus to the
fallopian tubes and into the peritoneum and the abdominal
cavity.
The trial court convicted the accused citing the rationale of
Article 4 of the RPC
He who is the cause of the cause is the cause of
the evil caused.
But before the conviction is affirmed, we must first follow
the rule as stated in the case of Urbano vs. Intermediate
Appellate Court (157 SCRA 1 [1988]) to wit:
The rule is that the death of the victim must be
the direct, natural and logical consequence of the
wounds inflicted upon him by the accused. And
since we are dealing with a criminal conviction,
the proof that the accused caused the victim's
death must convince a rational mind beyond
reasonable doubt. (Emphasis supplied)
In People v. Tempongko, Jr., (144 SCRA 583, 592 [1986]), we
explained that:
xxx xxx xxx
The basic principle in every criminal prosecution
is that accusation is not synonymous with guilt.
The accused is presumed innocent until the
contrary is proved by the prosecution. If the
prosecution fails, it fails utterly, even if the
defense is weak or, indeed, even if there is no
defense at all. The defendant faces the full
panoply of state authority with all "The People of
the Philippines" arrayed against him. In a manner
of speaking, he goes to bat with all the bases
loaded. The odds are heavily against him. It is
important, therefore, to equalize the positions of
the prosecution and the defense by presuming
the innocence of the accused until the state is
able to refute the presumption by proof of guilt
beyond reasonable doubt. (At. p. 592)
The evidence for the accused maybe numerically less as
against the number of witnesses and preponderance of
evidence presented by the prosecution but there is no
direct and convincing proof that the accused was
responsible for the vibrator left inside the victim's vagina
which caused her death seven (7) months after its insertion.
What the prosecution managed to establish were mere
circumstances which were not sufficient to overcome the
constitutional presumption of innocence. While
circumstantial evidence may suffice to support a conviction
it is imperative, though, that the following requisites should
concur:
(a) There is more than one circumstance;
(b) The facts from which the inferences are
derived are proven; and
(c) The combination of all the circumstances is
such as to produce a conviction beyond
reasonable doubt. (Rule 133, Sec. 4 Revised Rules
of Court)
For the well-entrenched rule in evidence is that "before
conviction can be had upon circumstantial evidence, the
circumstances proved should constitute an unbroken chain
which leads to one fair and reasonable conclusion pointing
to the defendant, to the exclusion of all others, as the
author of the crime (People v. Subano, 73 Phil. 692 [1942];
Emphasis supplied). It must fairly exclude every reasonable
hypothesis of innocence (Dorado v. Court of Appeals, 153
SCRA 420, 433 [1987]). In this case the circumstantial
evidence presented by the prosecution does not
conclusively point to the liability of the appellant for the
crime charged. (People v. Tolentino, supra)
We are aware of the wide publicity given to the plight of
Rosario Baluyot and how her death exemplified starkly the
daily terrors that most street children encounter as they sell
their bodies in order to survive. At an age when innocence
and youthful joys should preponderate in their lives, they
experience life in its most heartless and inhuman form.
Instead of nothing more than gentle disappointments
occupying their young minds, they daily cope with tragedies
that even adults should never be made to carry.
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.
The requirement of proof which produces in an
unprejudiced mind moral certainty or conviction that the
accused did commit the offense has not been satisfied.
By way of emphasis, we reiterate some of the factors
arousing reasonable doubt:
1. The evidence on Rosario Baluyot's baptism
creates reasonable doubt about her being less
than 12 years old when the carnal knowledge
took place. If the evidence for the prosecution is
to be believed, she was not yet born on the date
she was baptized.
2. Since the proof of Rosario's being under 12
years of age is not satisfactory, the prosecution
has to prove force, intimidation, or deprivation of
reason in order to convict for rape. There is no
such proof. In fact, the evidence shows a
willingness to submit to the sexual act for
monetary considerations.
3. The only witness to the fact of Ritter's placing a
vibrator inside the vagina of Rosario was Jessie
Ramirez. This witness did not see Ritter insert the
vibrator. The morning after the insertion, he was
only told by Rosario about it. Two days later, he
allegedly met Rosario who informed him that she
was able to remove the object. And yet, Ramirez
testified that on the night of that second
encounter, he saw Rosario groaning because of
pain in her stomach. She was even hurling
invectives. Ramirez' testimony is not only
hearsay, it is also contradictory.
4. It was improbable, according to expert medical
testimony, for a foreign object with active
properties to cause pain, discomfort, and serious
infection only after seven months inside a young
girl's vaginal canal. Infection would have set in
much earlier. Jessie Ramirez recalled that the
incident happened in December of 1986. (TSN.,
January 6, 1988, pp. 15-17) The evidence,
however shows that the appellant was not here
in the Philippines that December. As per the
Commission on Immigration Arrival and
Departure Report, Heinrich Ritter arrived in the
Philippines on October 7, 1986 and left on
October 12, 1986. He never returned until
September 23, 1987 (Exhibits "DD" and "EE") The
incident could have happened only in October,
but then it would have been highly improbable
for the sexual vibrator to stay inside the vagina for
seven (7) months with the kind of serious
complications it creates.
5. The gynecologist who attended to Rosario
during her hospital confinement testified that she
told him "Ginamit ako ng Negro at siya ang
naglagay nito." The accused is not a black.
Noteworthy is the fact that nothing was mentioned about
Rosario's activities after the hotel incident. Considering Dr.
Barcinal's testimony indicating that she was "used" by a
"Negro" three (3) months prior to admission in the hospital
and Rosario's unfortunate profession, there is always the
possibility that she could have allowed herself to be
violated by this perverse kind of sexual behavior where a
vibrator or vibrators were inserted into her vagina between
October, 1986 and May, 1987.
Moreover, the long delay of seven (7) months after the
incident in reporting the alleged crime renders the evidence
for the prosecution insufficient to establish appellant's
guilty connection with the requisite moral certainty.
(SeePeople v. Mula Cruz, 129 SCRA 156 [1984]).
The established facts do not entirely rule out the possibility
that the appellant could have inserted a foreign object
inside Rosario's vagina. This object may have caused her
death. It is possible that the appellant could be the guilty
person. However, the Court cannot base an affirmance of
conviction upon mere possibilities. Suspicions and
possibilities are not evidence and therefore should not be
taken against the accused. (People v. Tolentino, supra)
Well-established is the rule that every circumstance
favorable to the accused should be duly taken into account.
This rule applies even to hardened criminals or those whose
bizarre behaviour violates the mores of civilized society.
The evidence against the accused must survive the test of
reason. The strongest suspicion must not be allowed to
sway judgment. (See Sacay v. Sandiganbayan, 142 SCRA 593
[1986]). As stated in the case of People v. Ng (142 SCRA 615
[1986]):
. . . [F]rom the earliest years of this Court, it has
emphasized the rule that reasonable doubt in
criminal cases must be resolved in favor of the
accused. The requirement of proof beyond
reasonable doubt calls for moral certainty of guilt.
It has been defined as meaning such proof "to the
satisfaction of the court, keeping in mind the
presumption of innocence, as precludes every
reasonable hypothesis except that which it is
given to support. It is not sufficient for the proof
to establish a probability, even though strong,
that the fact charged is more likely to be true than
the contrary. It must establish the truth of the fact
to a reasonable and moral certainty—a certainty
that convinces and satisfies the reason and the
conscience of those who are to act upon it.
(Moreno, Philippine Law Dictionary, 1972 Edition,
p. 379, citing U.S. v. Reyes, 3 Phil. 3). . . .
In the instant case, since there are circumstances which
prevent our being morally certain of the guilt of the
appellant, he is, therefore, entitled to an acquittal.
This notwithstanding, the Court can not ignore the acts of
the appellant on the children, Jessie Ramirez and Rosario
Baluyot in October, 1986 at the MGM Hotel. Inspite of his
flat denials, we are convinced that he comes to this country
not to look at historical sights, enrich his intellect or indulge
in legitimate pleasures but in order to satisfy the urgings of
a sick mind.
With the positive Identification and testimony by Jessie
Ramirez that it was the appellant who picked him and
Rosario from among the children and invited them to the
hotel; and that in the hotel he was shown pictures of young
boys like him and the two masturbated each other, such
actuations clearly show that the appellant is a pedophile.
When apprehended in Ermita, he was sizing up young
children. Dr. Solis defined pedophilia in his book entitled
Legal Medicine, 1987 edition, as follows:
Pedophilia—A form of sexual perversion wherein
a person has the compulsive desire to have sexual
intercourse with a child of either sex. Children of
various ages participate in sexual activities, like
fellatio, cunnilingus, fondling with sex organs, or
anal sexual intercourse. Usually committed by a
homosexual between a man and a boy the latter
being a passive partner.
Ritter was prosecuted for rape with homicide and not
pedophilia, assuming this is a crime by itself. Pedophilia is
clearly a behavior offensive to public morals and violative of
the declared policy of the state to promote and protect the
physical, moral, spiritual and social well-being of our youth.
(Article II, Section 13, 1987 Constitution) (Harvey v.
Defensor Santiago, 162 SCRA 840, 848 [1989]). Pedophiles,
especially thrill seeking aliens have no place in our country.
In this case, there is reasonable ground to believe that the
appellant committed acts injurious not only to Rosario
Baluyot but also to the public good and domestic tranquility
of the people. The state has expressly committed itself to
defend the right of children to assistance and special
protection from all forms of neglect, abuse, cruelty,
exploitation and other conditions prejudicial to their
development. (Art. XV, Section 3 [2] . . . (Harvey v.
Santiago, supra). The appellant has abused Filipino
children, enticing them with money. The appellant should
be expelled from the country.
Furthermore, it does not necessarily follow that the
appellant is also free from civil liability which is impliedly
instituted with the criminal action. (Rule III, Section 1) The
well-settled doctrine is that a person while not criminally
liable, may still be civilly liable. We reiterate what has been
stated in Urbano v. IAC, supra.
. . . While the guilt of the accused in a criminal
prosecution must be established beyond
reasonable doubt, only a preponderance of
evidence is required in a civil action for damages.
(Article 29, Civil Code). The judgment of acquittal
extinguishes the civil liability of the accused only
when it includes a declaration that the facts from
which the civil liability might arise did not exist.
(Padilla v. Court of Appeals, 129 SCRA 559).
The reason for the provisions of Article 29 of the
Civil Code, which provides that the acquittal of
the accused on the ground that his guilt has not
been proved beyond reasonable doubt does not
necessarily exempt him from civil liability for the
same act or omission, has been explained by the
Code Commission as follows:
The old rule that the acquittal of the
accused in a criminal case also releases
him from civil liability is one of the most
serious flaws in the Philippine legal
system. It has given rise to numberless
instances of miscarriage of justice,
where the acquittal was due to a
reasonable doubt in the mind of the
 court as to the guilt of the accused. The
reasoning followed is that inasmuch as
the civil responsibility is derived from
the criminal offense, when the latter is
not proved, civil liability cannot be
demanded.
This is one of those causes where
confused thinking leads to unfortunate
and deplorable consequences. Such
reasoning fails to draw a clear line of
demarcation between criminal liability
and civil responsibility, and to
determine the logical result of the
distinction. The two liabilities are
separate and distinct from each other.
One affects the social order and the
other, private rights. One is for the
punishment or correction of the
offender while the other is for the
reparation of damages suffered by the
aggrieved party. The two
responsibilities are so different from
each other that article 1813 of the
present (Spanish) Civil Code reads thus:
"There may be a compromise upon the
civil action arising from a crime; but the
public action for the imposition of the
legal penalty shall not thereby be
extinguished." It is just and proper that,
for the purposes of the imprisonment
of or fine upon the accused, the offense
should be proved beyond reasonable
doubt. But for the purpose of
indemnifying the complaining party,
why should the offense also be proved
beyond reasonable doubt? Is not the
invasion or violation of every private
right to be proved only by a
preponderance of evidence? Is the right
of the aggrieved person any less private
because the wrongful act is also
punishable by the criminal law?
For these reasons, the Commission
recommends the adoption of the
reform under discussion. It will correct
a serious defect in our law. It will close
up an inexhaustible source of
injustice—a cause for disillusionment
on the part of the innumerable persons
injured or wronged.
Rosario Baluyot is a street child who ran away from her
grandmother's house.1âwphi1 Circumstances forced her to
succumb and enter this unfortunate profession.
Nonetheless, she has left behind heirs who have certainly
suffered mental anguish, anxiety and moral shock by her
sudden and incredulous death as reflected in the records of
the case. Though we are acquitting the appellant for the
crime of rape with homicide, we emphasize that we are not
ruling that he is innocent or blameless. It is only the
constitutional presumption of innocence and the failure of
the prosecution to build an airtight case for conviction
which saved him, not that the facts of unlawful conduct do
not exist. As earlier stated, there is the likelihood that he
did insert the vibrator whose end was left inside Rosario's
vaginal canal and that the vibrator may have caused her
death. True, we cannot convict on probabilities or
possibilities but civil liability does not require proof beyond
reasonable doubt. The Court can order the payment of
indemnity on the facts found in the records of this case.
The appellant certainly committed acts contrary to morals,
good customs, public order or public policy (see Article 21
Civil Code). As earlier mentioned, the appellant has abused
Filipino children, enticing them with money. We can not
overstress the responsibility for proper behavior of all
adults in the Philippines, including the appellant towards
young children. The sexual exploitation committed by the
appellant should not and can not be condoned. Thus,
considering the circumstances of the case, we are awarding
damages to the heirs of Rosario Baluyot in the amount of
P30,000.00.
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.
WHEREFORE, the appealed judgment is REVERSED and SET
ASIDE. Appellant HEINRICH STEFAN RITTER is ACQUITTED
on grounds of reasonable doubt. The appellant is ordered
to pay the amount of P30,000.00 by way of moral and
exemplary damages to the heirs of Rosario Baluyot. The
Commissioner of Immigration and Deportation is hereby
directed to institute proper deportation proceedings
against the appellant and to immediately expel him
thereafter with prejudice to re-entry into the country.
SO ORDERED.

EN BANC
[G.R. No. 227363, March 12, 2019]
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, V.
SALVADOR TULAGAN, ACCUSED-APPELLANT.
DECISION
PERALTA, J.:
This is an appeal from the Decision[1] of the Court of Appeals
(CA) dated August 17, 2015 in CA-G.R. CR-HC No. 06679,
which affirmed the Joint Decision[2] dated February 10,
2014 of the Regional Trial Court (RTC) of San Carlos City in
Criminal Case Nos. SCC-6210 and SCC-6211, finding
accused-appellant Salvador Tulagan (Tulagan) guilty
beyond reasonable doubt of the crimes of sexual assault
and statutory rape as defined and penalized under Article
266-A, paragraphs 2 and 1(d) of the Revised Penal Code
(RPC), respectively, in relation to Article 266-B.
In Criminal Case No. SCC-6210, Tulagan was charged as
follows:
That sometime in the month of September 2011, at x x x,
and within the jurisdiction of this Honorable Court, the
above-named accused, by means of force, intimidation and
with abuse of superior strength forcibly laid complainant
AAA,[3] a 9-year-old minor in a cemented pavement, and did
then and there, willfully, unlawfully and feloniously inserted
his finger into the vagina of the said AAA, against her will
and consent.
Contrary to Article 266-A, par. 2 of the Revised Penal Code
in relation to R.A. 7610.
In Criminal Case No. SCC-6211, Tulagan was charged as
follows:
That on or about October 8, 2011 at x x x, and within the
jurisdiction of this Honorable Court, the above-named
accused, by means of force, intimidation and with abuse of
superior strength, did then and there, willfully, unlawfully
and feloniously have sexual intercourse with complainant
AAA, a 9-year-old minor against her will and consent to the
damage and prejudice of said AAA, against her will and
consent.
Contrary to Article 266-A, par. 1(d) of the Revised Penal
Code in relation to R.A. 7610.
Upon arraignment, Tulagan pleaded not guilty to the crimes
charged.
During the trial, BBB, aunt of the victim AAA, testified that
around 10:30 a.m. of October 17, 2011, she noticed a man
looking at AAA outside their house. When AAA asked her
permission to go to the bathroom located outside their
house, the man suddenly went near AAA. Out of suspicion,
BBB walked to approach AAA. As BBB came close to AAA,
the man left suddenly. After AAA returned from the
bathroom, BBB asked what the man was doing to her. AAA
did not reply. She then told AAA to get inside the house. She
asked AAA to move her panties down, and examined her
genitalia. She noticed that her genitalia was swollen. AAA
then confessed to her about the wrong done to her by
appellant whom AAA referred to as Badong or Salvador
Tulagan. AAA cried hard and embraced BBB tightly. AAA
asked BBB for her help and even told her that she wanted
Badong to be put in jail.
AAA, nine (9) years old, testified that sometime in
September 2011 while she was peeling corn with her cousin
who lived adjacent to her grandmother's house, Tulagan
approached her, spread her legs, and inserted his finger into
her private part. She said that it was painful, but Tulagan
just pretended as if he was just looking for something and
went home.
AAA, likewise, testified that at around 11:00 a.m. of October
8, 2011, while she was playing with her cousin in front of
Tulagan's house, he brought her to his house and told her
to keep quiet. He told her to lie down on the floor, and
removed her short pants and panties. He also undressed
himself, kissed AAA's cheeks, and inserted his penis into her
vagina. She claimed that it was painful and that she cried
because Tulagan held her hands and pinned them with his.
She did not tell anyone about the incident, until her aunt
examined her private part.
Upon genital examination by Dr. Brenda Tumacder on AAA,
she found a healed laceration at 6 o'clock position in AAA's
hymen, and a dilated or enlarged vaginal opening. She said
that it is not normal for a 9-year-old child to have a dilated
vaginal opening and laceration in the hymen.
For the defense, Tulagan claimed that he did not know AAA
well, but admitted that he lived barely five (5) meters away
from AAA's grandmother's house where she lived. He
added that the whole month of September 2011, from 8:00
a.m. to 1:00 p.m., he was gathering dried banana leaves to
sell then take a rest after 1:00 p.m. at their terrace, while
his mother cut the banana leaves he gathered at the back
of their kitchen. He said that he never went to AAA's house
and that he had not seen AAA during the entire month of
September 2011. Tulagan, likewise, claimed that before the
alleged incidents occurred, his mother had a
misunderstanding with AAA's grandmother, who later on
started spreading rumors that he raped her granddaughter.
After trial, the RTC found that the prosecution successfully
discharged the burden of proof in two offenses of rape
against AAA. It held that all the elements of sexual assault
and statutory rape was duly established. The trial court
relied on the credible and positive declaration of the victim
as against the alibi and denial of Tulagan. The dispositive
portion of the Decision reads:
WHEREFORE, premises considered, the Court finds the
accused GUILTY beyond reasonable doubt [of] the crime of
rape defined and penalized under Article 266-A, paragraph
1 (d), in relation to R.A. 7610 in Criminal Case No. SCC-6211
and is hereby sentenced to suffer the penalty of reclusion
perpetua and to indemnify the victim in the amount of fifty
thousand (Php50,000.00) pesos; moral damages in the
amount of fifty thousand (Php 50,000.00) pesos, and to pay
the cost of the suit. Likewise, this Court finds the accused
GUILTY beyond reasonable doubt in Criminal Case No. SCC-
6210 for the crime of rape defined and penalized under
Article 266-A, paragraph 2 and he is hereby sentenced to
suffer an indeterminate penalty of six (6) years of prision
correccional, as minimum, to twelve (12) years of prision
mayor, as maximum, and to indemnify the victim in the
amount of thirty thousand (Php30,000.00) pesos; and
moral damages in the amount of twenty thousand
(Php20,000.00) pesos, and to pay the cost of suit.
SO ORDERED.[4]
Upon appeal, the CA affirmed with modification Tulagan's
conviction of sexual assault and statutory rape. The
dispositive portion of the Decision reads:
ACCORDINGLY, the Decision dated February 10, 2014
is AFFIRMED, subject to the following MODIFICATIONS:
1. In Criminal Case No. SCC-6210 (Rape by Sexual Assault),
appellant is sentenced to an indeterminate penalty of 12
years of reclusion temporal, as minimum, to 15 years
of reclusion temporal, as maximum. The award of moral
damages is increased to P30,000.00; and P30,000.00 as
exemplary damages, are likewise granted.
2. In Criminal Case No. SCC-6211 (Statutory Rape), the
awards of civil indemnity and moral damages are increased
to P100,000.00 each. Exemplary damages in the amount of
P100,000.00, too, are granted.
3. All damages awarded are subject to legal interest at the
rate of 6% [per annum] from the date of finality of this
judgment until fully paid.
SO ORDERED.[5]
Aggrieved, Tulagan invoked the same arguments he raised
before the CA in assailing his conviction. He alleged that the
appellate court erred in giving weight and credence to the
inconsistent testimony of AAA, and in sustaining his
conviction despite the prosecution's failure to prove his
guilt beyond reasonable doubt. To support his appeal, he
argued that the testimony of AAA was fraught with
inconsistencies and lapses which affected her credibility.
Our Ruling
The instant appeal has no merit. However, a modification of
the nomenclature of the crime, the penalty imposed, and
the damages awarded in Criminal Case No. SCC-6210 for
sexual assault, and a reduction of the damages awarded in
Criminal Case No. SCC-6211 for statutory rape, are in order.
Factual findings of the trial court carry great weight and
respect due to the unique opportunity afforded them to
observe the witnesses when placed on the stand.
Consequently, appellate courts will not overturn the factual
findings of the trial court in the absence of facts or
circumstances of weight and substance that would affect
the result of the case.[6] Said rule finds an even more
stringent application where the said findings are sustained
by the CA, as in the instant case:
Time and again, we have held that when it comes to the
issue of credibility of the victim or the prosecution
witnesses, the findings of the trial courts carry great weight
and respect and, generally, the appellate courts will not
overturn the said findings unless the trial court overlooked,
misunderstood or misapplied some facts or circumstances
of weight and substance which will alter the assailed
decision or affect the result of the case. This is so because
trial courts are in the best position to ascertain and measure
the sincerity and spontaneity of witnesses through their
actual observation of the witnesses' manner of testifying,
their demeanor and behavior in court. Trial judges enjoy the
advantage of observing the witness' deportment and
manner of testifying, her "furtive glance, blush of conscious
shame, hesitation, flippant or sneering tone, calmness, sigh,
or the scant or full realization of an oath" - all of which are
useful aids for an accurate determination of a witness'
honesty and sincerity. Trial judges, therefore, can better
determine if such witnesses are telling the truth, being in
the ideal position to weigh conflicting testimonies. Again,
unless certain facts of substance and value were overlooked
which, if considered, might affect the result of the case, its
assessment must be respected, for it had the opportunity
to observe the conduct and demeanor of the witnesses
while testifying and detect if they were lying. The rule finds
an even more stringent application where the said findings
are sustained by the Court of Appeals.[7]
Here, in Criminal Case No. SCC-6210 for sexual assault, both
the RTC and the CA found AAA's testimony to be credible,
straightforward and unwavering when she testified that
Tulagan forcibly inserted his finger in her vagina. In Criminal
Case No. SCC-6211 for statutory rape, both the RTC and the
CA also found that the elements thereof were present, to
wit: (1) accused had carnal knowledge of the victim, and (2)
said act was accomplished when the offended party is
under twelve (12) years of age. Indubitably, the courts a
quo found that the prosecution was able to prove beyond
reasonable doubt Tulagan's guilt for the crime of rape. We
find no reason to deviate from said findings and conclusions
of the courts a quo.
Jurisprudence tells us that a witness' testimony containing
inconsistencies or discrepancies does not, by such fact
alone, diminish the credibility of such testimony. In fact, the
variance in minor details has the net effect of bolstering
instead of diminishing the witness' credibility because they
discount the possibility of a rehearsed testimony. Instead,
what remains paramount is the witness' consistency in
relating the principal elements of the crime and the positive
and categorical identification of the accused as the
perpetrator of the same.[8]
As correctly held by the CA, the fact that some of the details
testified to by AAA did not appear in her Sinumpaang
Salaysay does not mean that the sexual assault did not
happen. AAA was still able to narrate all the details of the
sexual assault she suffered in Tulagan's hands. AAA's
account of her ordeal being straightforward and candid and
corroborated by the medical findings of the examining
physician, as well as her positive identification of Tulagan as
the perpetrator of the crime, are, thus, sufficient to support
a conviction of rape.
As for Tulagan's imputation of ill motive on the part of AAA's
grandmother, absent any concrete supporting evidence,
said allegation will not convince us that the trial court's
assessment of the credibility of the victim and her
supporting witness was tainted with arbitrariness or
blindness to a fact of consequence. We reiterate the
principle that no young girl, such as AAA, would concoct a
sordid tale, on her own or through the influence of her
grandmother as per Tulagan's intimation, undergo an
invasive medical examination then subject herself to the
stigma and embarrassment of a public trial, if her motive
was other than a fervent desire to seek justice. In People v.
Garcia,[9]we held:
Testimonies of child-victims are normally given full weight
and credit, since when a girl, particularly if she is a minor,
says that she has been raped, she says in effect all that is
necessary to show that rape has in fact been committed.
When the offended party is of tender age and immature,
courts are inclined to give credit to her account of what
transpired, considering not only her relative vulnerability
but also the shame to which she would be exposed if the
matter to which she testified is not true. Youth and
immaturity are generally badges of truth and sincerity. A
young girl's revelation that she had been raped, coupled
with her voluntary submission to medical examination and
willingness to undergo public trial where she could be
compelled to give out the details of an assault on her
dignity, cannot be so easily dismissed as mere
concoction.[10]
We also reject Tulagan's defense of denial. Being a negative
defense, the defense of denial, if not substantiated by clear
and convincing evidence, as in the instant case, deserves no
weight in law and cannot be given greater evidentiary value
than the testimony of credible witnesses, like AAA, who
testified on affirmative matters. Since AAA testified in a
categorical and consistent manner without any ill motive,
her positive identification of Tulagan as the sexual offender
must prevail over his defenses of denial and alibi.
Here, the courts a quo did not give credence to Tulagan's
alibi considering that his house was only 50 meters away
from AAA's house, thus, he failed to establish that it was
physically impossible for him to be at the locus
criminis when the rape incidents took place. "Physical
impossibility" refers to distance and the facility of access
between the crime scene and the location of the accused
when the crime was committed. There must be a
demonstration that they were so far away and could not
have been physically present at the crime scene and its
immediate vicinity when the crime was committed. In this
regard, Tulagan failed to prove that there was physical
impossibility for him to be at the crime scene when the rape
was committed.[11] Thus, his alibi must fail.
Further, although the rape incidents in the instant case
were not immediately reported to the police, such delay
does not affect the truthfulness of the charge in the
absence of other circumstances that show the same to be
mere concoction or impelled by some ill motive.[12]
For the guidance of the Bench and the Bar, We take this
opportunity to reconcile the provisions on Acts of
Lasciviousness, Rape and Sexual Assault under the Revised
Penal Code (RPC), as amended by Republic Act (R.A.) No.
8353 vis-a-vis Sexual Intercourse and Lascivious Conduct
under Section 5(b) of R.A. No. 7610, to fortify the earlier
decisions of the Court and doctrines laid down on similar
issues, and to clarify the nomenclature and the imposable
penalties of said crimes, and damages in line with existing
jurisprudence.[13]
Prior to the effectivity of R.A. No. 8353 or The Anti-Rape
Law of 1997 on October 22, 1997, acts constituting sexual
assault under paragraph 2,[14] Article 266-A of the RPC, were
punished as acts of lasciviousness under Article No.
336[15] of the RPC or Act No. 3815 which took effect on
December 8, 1930. For an accused to be convicted of acts
of lasciviousness, the confluence of the following essential
elements must be proven: (1) that the offender commits
any act of lasciviousness or lewdness; and (2) that it is done
under any of the following circumstances: (a) by using force
or intimidation; (b) when the offended woman is deprived
of reason or otherwise unconscious; or (c) when the
offended party is under twelve (12) years of
age.[16] In Amployo v. People,[17] We expounded on the
broad definition of the term "lewd":
The term lewd is commonly defined as something indecent
or obscene; it is characterized by or intended to excite
crude sexual desire. That an accused is entertaining a lewd
or unchaste design is necessarily a mental process the
existence of which can be inferred by overt acts carrying out
such intention, i.e., by conduct that can only be interpreted
as lewd or lascivious. The presence or absence of lewd
designs is inferred from the nature of the acts themselves
and the environmental circumstances. What is or what is
not lewd conduct, by its very nature, cannot be
pigeonholed into a precise definition. As early as US. v.
Gomez, we had already lamented that
It would be somewhat difficult to lay down any rule
specifically establishing just what conduct makes one
amenable to the provisions of article 439 of the Penal Code.
What constitutes lewd or lascivious conduct must be
determined from the circumstances of each case. It may be
quite easy to determine in a particular case that certain acts
are lewd and lascivious, and it may be extremely difficult in
another case to say just where the line of demarcation lies
between such conduct and the amorous advances of an
ardent lover.[18]
When R.A. No. 7610 or The Special Protection of Children
Against Abuse, Exploitation and Discrimination Act took
effect on June 17, 1992 and its Implementing Rules and
Regulation was promulgated in October 1993, the term
"lascivious conduct" was given a specific definition.
The Rules and Regulations on the Reporting and
Investigation of Child Abuse Cases states that "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."
Upon the effectivity of R.A. No. 8353, specific forms of acts
of lasciviousness were no longer punished under Article 336
of the RPC, but were transferred as a separate crime of
"sexual assault" under paragraph 2, Article 266-A of the
RPC. Committed by "inserting penis into another person's
mouth or anal orifice, or any instrument or object, into the
genital or anal orifice of another person" against the
victim's will, "sexual assault" has also been called "gender-
free rape" or "object rape." However, the term "rape by
sexual assault" is a misnomer, as it goes against the
traditional concept of rape, which is carnal knowledge of a
woman without her consent or against her will. In contrast
to sexual assault which is a broader term that includes acts
that gratify sexual desire (such as cunnilingus, felatio,
sodomy or even rape), the classic rape is particular and its
commission involves only the reproductive organs of a
woman and a man. Compared to sexual assault, rape is
severely penalized because it may lead to unwanted
procreation; or to paraphrase the words of the legislators,
it will put an outsider into the woman who would bear a
child, or to the family, if she is married.[19] The dichotomy
between rape and sexual assault can be gathered from the
deliberation of the House of Representatives on the Bill
entitled "An Act To Amend Article 335 of the Revised Penal
Code, as amended, and Defining and Penalizing the Crime
of Sexual Assault":
INTERPELLATION OF MR. [ERASMO B.] DAMASING:
x x x x
Pointing out his other concerns on the measure, specifically
regarding the proposed amendment to the Revised Penal
Code making rape gender-free, Mr. Damasing asked how
carnal knowledge could be committed in case the sexual act
involved persons of the same sex or involves
unconventional sexual acts.
Mr. [Sergio A. F.] Apostol replied that the Bill is divided into
two classifications: rape and sexual assault. The Committee,
he explained, defines rape as carnal knowledge by a person
with the opposite sex, while sexual assault is defined as
gender-free, meaning it is immaterial whether the person
committing the sexual act is a man or a woman or of the
same sex as the victim.
Subsequently, Mr. Damasing adverted to Section 1 which
seeks to amend Article 335 of the Revised Penal Code as
amended by RA No. 7659, which is amended in the Bill as
follows: "Rape is committed by having carnal knowledge of
a person of the opposite sex under the following
circumstances." He then inquired whether it is the
Committee's intent to make rape gender-free, either by a
man against a woman, by a woman against a man, by man
against a man, or by a woman against a woman. He then
pointed out that the Committee's proposed amendment is
vague as presented in the Bill, unlike the Senate version
which specifically defines in what instances the crime of
rape can be committed by a man or by the opposite sex.
Mr. Apostol replied that under the Bill "carnal knowledge"
presupposes that the offender is of the opposite sex as the
victim. If they are of the same sex, as what Mr. Damasing
has specifically illustrated, such act cannot be considered
rape - it is sexual assault.
Mr. Damasing, at this point, explained that the Committee's
definition of carnal knowledge should be specific since the
phrase "be a person of the opposite sex" connotes that
carnal knowledge can be committed by a person, who can
be either a man or a woman and hence not necessarily of
the opposite sex but may be of the same sex.
Mr. Apostol pointed out that the measure explicitly used
the phrase “carnal knowledge of a person of the opposite
sex" to define that the abuser and the victim are of the
opposite sex; a man cannot commit rape against another
man or a woman against another woman. He pointed out
that the Senate version uses the phrase carnal knowledge
with a woman".
While he acknowledged Mr. Apostol's points, Mr. Damasing
reiterated that the specific provisions need to be clarified
further to avoid confusion, since, earlier in the
interpellation Mr. Apostol admitted that being gender-free,
rape can be committed under four situations or by persons
of the same sex. Whereupon, Mr. Damasing read the
specific provisions of the Senate version of the measure.
In his rejoinder, Mr. Apostol reiterated his previous
contention that the Bill has provided for specific and distinct
definitions regarding rape and sexual assault to
differentiate that rape cannot be totally gender-free as it
must be committed by a person against someone of the
opposite sex.
With regard to Mr. Damasing's query on criminal sexual acts
involving persons of the same sex, Mr. Apostol replied that
Section 2, Article 266(b) of the measure on sexual assault
applies to this particular provision.
Mr. Damasing, at this point, inquired on the particular page
where Section 2 is located.
SUSPENSION OF SESSION
x x x x
INTERPELLATION OF MR. DAMASING
(Continuation)
Upon resumption of session, Mr. Apostol further
expounded on Sections 1 and 2 of the bill and differentiated
rape from sexual assault. Mr. Apostol pointed out that the
main difference between the aforementioned sections is
that carnal knowledge or rape, under Section 1, is always
with the opposite sex. Under Section 2, on sexual assault,
he explained that such assault may be on the genitalia, the
mouth, or the anus; it can be done by a man against a
woman, a man against a man, a woman against a woman or
a woman against a man.[20]
Concededly, R.A. No. 8353 defined specific acts constituting
acts of lasciviousness as a. distinct crime of "sexual assault,"
and increased the penalty thereof from prision
correccional to prision mayor. But it was never the intention
of the legislature to redefine the traditional concept of
rape. The Congress merely upgraded the same from a
"crime against chastity" (a private crime) to a "crime against
persons" (a public crime) as a matter of policy and public
interest in order to allow prosecution of such cases even
without the complaint of the offended party, and to
prevent extinguishment of criminal liability in such cases
through express pardon by the offended party. Thus, other
forms of acts of lasciviousness or lascivious conduct
committed against a child, such as touching of other
delicate parts other than the private organ or kissing a
young girl with malice, are still punished as acts of
lasciviousness under Article 336 of the RPC in relation to
R.A. No. 7610 or lascivious conduct under Section 5 of R.A.
No. 7610.
Records of committee and plenary deliberations of the
House of Representative and of the deliberations of the
Senate, as well as the records of bicameral conference
committee meetings, further reveal no legislative intent for
R.A. No. 8353 to supersede Section 5(b) of R.A. No. 7610.
The only contentious provisions during the bicameral
conference committee meetings to reconcile the bills of the
Senate and House of Representatives which led to the
enactment of R.A. No. 8353, deal with the nature of and
distinction between rape by carnal knowledge and rape by
sexual assault; the threshold age to be considered in
statutory rape [whether Twelve (12) or Fourteen (14)], the
provisions on marital rape and effect of pardon, and the
presumptions of vitiation or lack of consent in rape cases.
While R.A. No. 8353 contains a generic repealing and
amendatory clause, the records of the deliberation of the
legislature are silent with respect to sexual intercourse or
lascivious conduct against children under R.A. No. 7610,
particularly those who are 12 years old or below 18, or
above 18 but are unable to fully take care or protect
themselves from abuse, neglect, cruelty, exploitation or
discrimination because of a physical or mental disability or
condition.
In instances where the lascivious conduct committed
against a child victim is covered by the definition under R.A.
No. 7610, and the act is likewise covered by sexual assault
under paragraph 2,[21] Article 266-A of the RPC, the offender
should be held liable for violation of Section 5(b), Article III
of R.A. No. 7610. The ruling in Dimakuta v. People[22] is
instructive:
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 R.A. No. 7610.[23]
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.[24]
Meanwhile, if acts of lasciviousness or lascivious conduct
are committed with a child who is 12 years old or less than
18 years old, the ruling in Dimakuta[25] is also on point:
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:
(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.
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:
1. 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; or
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.
Therefore, 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:
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;
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
[are] 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.[26]
In People v. Caoili,[27] We prescribed the following
guidelines in designating or charging the proper offense in
case lascivious conduct is committed under Section 5(b) of
R.A. No. 7610, and in determining the imposable penalty:
1. The age of the victim is taken into consideration in
designating or charging the offense, and in determining the
imposable penalty.
2. If the victim is under twelve (12) years of age, the
nomenclature of the crime should be "Acts of
Lasciviousness under Article 336 of the Revised Penal Code
in relation to Section 5(b) of R.A. No. 7610." Pursuant to
the second proviso in Section 5(b) of R.A. No. 7610, the
imposable penalty is reclusion temporalin its medium
period.
3. If the victim is exactly twelve (12) years of age, or more
than twelve (12) but below eighteen (18) years of age, or is
eighteen (18) years old or older but is unable to fully take
care of herself/himself or protect herself/himself from
abuse, neglect, cruelty, exploitation or discrimination
because of a physical or mental disability or condition, the
crime should be designated as "Lascivious Conduct under
Section 5(b) of R.A. No. 7610," and the imposable penalty
is reclusion temporal in its medium period to reclusion
perpetua.[28]
Based on the Caoili[29] guidelines, it is only when the victim
of the lascivious conduct is 18 years old and above that such
crime would be designated as "Acts of Lasciviousness under
Article 336 of the RPC" with the imposable penalty
of prision correccional.
Considering the development of the crime of sexual assault
from a mere "crime against chastity" in the form of acts of
lasciviousness to a "crime against persons" akin to rape, as
well as the rulings in Dimakuta and Caoili. We hold that if
the acts constituting sexual assault are committed against a
victim under 12 years of age or is demented, the
nomenclature of the offense should now be "Sexual Assault
under paragraph 2, Article 266-A of the RPC in relation to
Section 5(b) of R.A. No. 7610" and no longer "Acts of
Lasciviousness under Article 336 of the RPC in relation to
Section 5(b) of R.A. No. 7610," because sexual assault as a
form of acts of lasciviousness is no longer covered by Article
336 but by Article 266-A(2) of the RPC, as amended by R.A.
No. 8353. Nevertheless, the imposable penalty is
still reclusion temporal in its medium period, and
not prision mayor.
Whereas if the victim is 12 years old and under 18 years old,
or 18 years old and above under special circumstances, the
nomenclature of the crime should be "Lascivious Conduct
under Section 5(b) of R.A. No. 7610" with the imposable
penalty of reclusion temporal in its medium period
to reclusion perpetua,[30] but it should not make any
reference to the provisions of the RPC. It is only when the
victim of the sexual assault is 18 years old and above, and
not demented, that the crime should be called as "Sexual
Assault under paragraph 2, Article 266-A of the RPC" with
the imposable penalty of prision mayor.
Sexual intercourse with a victim who is under 12 years old
or is demented is statutory rape
Under Section 5(b) of R.A. No. 7610, the proper penalty
when sexual intercourse is committed with a victim who is
under 12 years of age or is demented is reclusion perpetua,
pursuant to paragraph 1(d),[31]Article 266-A in relation to
Article 266-B of the RPC, as amended by R.A. No.
8353,[32] which in turn amended Article 335[33] of the RPC.
Thus:
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:
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 [sic] 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.[34]
In Quimvel v. People,[35] it was opined[36] that the
two provisos under Section 5(b) of R.A. No. 7610 will apply
only if the victim is under 12 years of age, but not to those
12 years old and below 18, for the following reason:
"while the first clause of Section 5(b), Article III of R.A. 7610
is silent with respect to the age of the victim, Section 3,
Article I thereof defines "children" as those 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. Notably,
two provisos succeeding the first clause of Section 5(b)
explicitly state a qualification that when the victim of
lascivious conduct is under 12 years of age, the perpetrator
shall be (1) prosecuted under Article 336 of the RPC, and (2)
the penalty shall be reclusion temporal in its medium
period. It is a basic rule in statutory construction that the
office of the proviso qualifies or modifies only the phrase
immediately preceding it or restrains of limits the
generality of the clause that it immediately follows. A
proviso is to be construed with reference to the
immediately preceding part of the provisions, to which it
is attached, and not to the statute itself or the other
sections thereof.[37] Accordingly, this case falls under the
qualifying provisos of Section 5(b), Article III of R.A. 7610
because the allegations in the information make out a case
for acts of lasciviousness, as defined under Article 336 of
the RPC, and the victim is under 12 years of age x x x."[38]
In view of the foregoing rule in statutory construction, it
was proposed[39] in Quimvel that the penalty for acts of
lasciviousness committed against a child should depend on
his/her age: if the victim is under 12 years of age, the
penalty is reclusion temporal in its medium period, and if
the victim is 12 years old and below 18, or 18 or older under
special circumstances under Section 3(a)[40] of R.A. No.
7610, the penalty is reclusion temporal in its medium
period to reclusion perpetua.
Applying by analogy the foregoing discussion in Quimvel to
the act of sexual intercourse with a child exploited in
prostitution or subject to other sexual abuse, We rule that
when the offended party is under 12 years of age or is
demented, only the first proviso of Section 5(b), Article III of
R.A. No. 7610 will apply, to wit: "when the victim is under
twelve (12) years of age, the perpetrators shall be
prosecuted under Article 335, paragraph 3, for rape x x x."
The penalty for statutory rape under Article 335 is reclusion
perpetua, which is. still the same as in the current rape
law,i.e., paragraph 1(d), Article 266-A in relation to Article
266-B of the RPC, as amended by R.A. No. 8353, except in
cases where the victim is below 7 years of age where the
imposable penalty is death.[41]
Note that the second proviso of Section 5(b) of R.A. No.
7610 will not apply because it clearly has nothing to do with
sexual intercourse, and it only deals with "lascivious
conduct when the victim is under 12 years of age." While
the terms "lascivious conduct" and "sexual intercourse" are
included in the definition of "sexual abuse" under Section
2(g)[42] of the Rules and Regulations on the Reporting and
Investigation of Child Abuse Cases, note that the definition
of "lascivious conduct"[43] does not include sexual
intercourse. Be it stressed that the purpose of indicating the
phrase "under twelve (12) years of age" is to provide for
statutory lascivious conduct or statutory rape, whereby
evidence of force, threat or intimidation is immaterial
because the offended party, who is under 12 years old or is
demented, is presumed incapable of giving rational
consent.
Malto ruling clarified
An important distinction between violation of Section 5(b)
of R.A. No. 7610 and rape under the RPC was explained
in Malto v. People[44] We ruled in Malto[45] that one may be
held liable for violation of Sec. 5(b), Article III of R.A. No.
7610 despite a finding that the person did not commit rape,
because rape is a felony under the RPC, while sexual abuse
against a child is punished by a special law. Said crimes are
separate and distinct, and they have different elements.
Unlike in rape, however, consent is immaterial in cases
involving violation of Sec. 5, Art. III of R.A. No. 7610. The
mere fact of having sexual intercourse or committing
lascivious conduct with a child who is exploited in
prostitution or subjected to sexual abuse constitutes the
offense.
In Malto,[46] where the accused professor indulged several
times in sexual intercourse with the 17-year-old private
complainant, We also stressed that since a child cannot give
consent to a contract under our civil laws because she can
easily be a victim of fraud as she is not capable of full
understanding or knowing the nature or import of her
actions, the harm which results from a child's bad decision
in a sexual encounter may be infinitely more damaging to
her than a bad business deal. Thus, the law should protect
her from the harmful consequences of her attempts at
adult sexual behavior. For this reason, a child should not be
deemed to have validly consented to adult sexual activity
and to surrender herself in the act of ultimate physical
intimacy under a law which seeks to afford her special
protection against abuse, exploitation and discrimination.
In sum, a child is presumed by law to be incapable of giving
rational consent to any lascivious conduct or sexual
intercourse.
We take exception, however, to the sweeping conclusions
in Malto (1) that "a child is presumed by law to be incapable
of giving rational consent to any lascivious conduct or
sexual intercourse" and (2) that "consent of the child is
immaterial in criminal cases involving violation of Section 5,
Article III of RA 7610" because they would virtually
eradicate the concepts of statutory rape and statutory acts
of lasciviousness, and trample upon the express provision
of the said law.
Recall that in statutory rape, the only subject of inquiry is
whether the woman is below 12 years old or is demented
and whether carnal knowledge took place; whereas force,
intimidation and physical evidence of injury are not relevant
considerations. With respect to acts of lasciviousness, R.A.
No. 8353 modified Article 336 of the RPC by retaining the
circumstance that the offended party is under 12 years old
in order for acts of lasciviousness to be considered as
statutory and by adding the circumstance that the offended
party is demented, thereby rendering the evidence of force
or intimidation immaterial.[47] This is because the law
presumes that the victim who is under 12 years old or is
demented does not and cannot have a will of her own on
account of her tender years or dementia; thus, a child's or
a demented person's consent is immaterial because of her
presumed incapacity to discern good from evil.[48]
However, considering the definition under Section 3(a) of
R.A. No. 7610 of the term "children" which refers to persons
below eighteen (18) years of age or those over but are
unable to fully take care of themselves or protect
themselves from abuse, neglect, cruelty, exploitation or
discrimination because of a physical or mental disability or
condition, We find that the opinion in Malto, that a child is
presumed by law to be incapable of giving rational consent,
unduly extends the concept of statutory rape or acts of
lasciviousness to those victims who are within the range of
12 to 17 years old, and even those 18 years old and above
under special circumstances who are still considered as
"children" under Section 3(a) of R.A. No. 7610.
While Malto is correct that consent is immaterial in cases
under R.A. No. 7610 where the offended party is below 12
years of age, We clarify that consent of the child is material
and may even be a defense in criminal cases involving
violation of Section 5, Article III of R.A. No. 7610 when the
offended party is 12 years old or below 18, or above 18
under special circumstances. Such consent may be implied
from the failure to prove that the said victim engaged in
sexual intercourse either "due to money, profit or any
other consideration or due to the coercion or influence of
any adult, syndicate or group."
It bears emphasis that violation of the first clause of Section
5(b), Article III of R.A. No. 7610 on sexual intercourse with a
child exploited in prostitution or subject to other sexual
abuse, is separate and distinct from statutory rape under
paragraph 1(d), Article 266-A of the RPC. Aside from being
dissimilar in the sense that the former is an offense under
special law, while the latter is a felony under the RPC, they
also have different elements.[49]Nevertheless, sexual
intercourse with a victim who is under 12 years of age or is
demented is always statutory rape, as Section 5(b) of R.A.
No. 7610 expressly states that the perpetrator will be
prosecuted under Article 335, paragraph 3 of the RPC [now
paragraph 1(d), Article 266-A of the RPC as amended by R.A.
No. 8353].
Even if the girl who is below twelve (12) years old or is
demented consents to the sexual intercourse, it is always a
crime of statutory rape under the RPC, and the offender
should no longer be held liable under R.A. No. 7610. For
example, a nine (9)-year-old girl was sold by a pimp to a
customer, the crime committed by the latter if he commits
sexual intercourse with the girl is still statutory rape,
because even if the girl consented or is demented, the law
presumes that she is incapable of giving a rational consent.
The same reason holds true with respect to acts of
lasciviousness or lascivious conduct when the offended
party is less than 12 years old or is demented. Even if such
party consents to the lascivious conduct, the crime is always
statutory acts of lasciviousness. The offender will be
prosecuted under Article 336[50] of the RPC, but the penalty
is provided for under Section 5(b) of R.A. No. 7610.
Therefore, there is no conflict between rape and acts of
lasciviousness under the RPC, and sexual intercourse and
lascivious conduct under R.A. No. 7610.
Meanwhile, if sexual intercourse is committed with a child
under 12 years of age, who is deemed to be "exploited in
prostitution and other sexual abuse," then those who
engage in or promote, facilitate or induce child prostitution
under Section 5(a)[51] of R.A. No. 7610 shall be liable as
principal by force or inducement under Article 17[52] of the
RPC in the crime of statutory rape under Article 266-A(1) of
the RPC; whereas those who derive profit or advantage
therefrom under Section 5(c)[53] of R.A. No. 7610 shall be
liable as principal by indispensable cooperation under
Article 17 of the RPC. Bearing in mind the policy of R.A. No.
7610 of providing for stronger deterrence and special
protection against child abuse and exploitation, the
following shall be the nomenclature of the said statutory
crimes and the imposable penalties for principals by force
or inducement or by indispensable cooperation:
1. Acts of Lasciviousness under Article 336 of the
RPC, in relation to Section 5(a) or (c), as the case
may be, of R.A. No. 7610, with the imposable
penalty of reclusion temporal in its medium
period to reclusion perpetua;
 2. Rape under Article 266-A(1) of the RPC, in relation
to Article 17 of the RPC and Section 5(a) or (c), as
the case may be, of R.A. No. 7610 with the
imposable penalty of reclusion perpetua,
pursuant to Article 266-B of the RPC, except when
the victim is below 7 years old, in which case the
crime is considered as Qualified Rape, for which
the death penalty shall be imposed; and
3. Sexual Assault under Article 266-A(2) of the RPC,
in relation to Section 5(a) or (c), as the case may
be, of R.A. No. 7610 with the imposable penalty
of reclusion temporal in its medium period
to reclusion perpetua.
If the victim who is 12 years old or less than 18 and is
deemed to be a child "exploited in prostitution and other
sexual abuse" because she agreed to indulge in sexual
intercourse "for money, profit or any other consideration or
due to coercion or influence of any adult, syndicate or
group," then the crime could not be rape under the RPC,
because this no longer falls under the concept of statutory
rape, and there was consent. That is why the offender will
now be penalized under Section 5(b), R.A. No. 7610, and not
under Article 335[54] of the RPC [now Article 266-A]. But if
the said victim does not give her consent to sexual
intercourse in the sense that the sexual intercourse was
committed through force, threat or intimidation, the crime
is rape under paragraph 1, Article 266-A of the RPC.
However, if the same victim gave her consent to the sexual
intercourse, and no money, profit, consideration, coercion
or influence is involved, then there is no crime committed,
except in those cases where "force, threat or intimidation"
as an element of rape is substituted by "moral ascendancy
or moral authority,"[55] like in the cases of incestuous rape,
and unless it is punished under the RPC as qualified
seduction under Article 337[56] or simple seduction under
Article 338.[57]
Rulings in Tubillo, Abay and Pangilinan clarified
At this point, it is not amiss to state that the rulings
in People v. Tubillo,[58] People v. Abay[59] and People v.
Pangilinan[60] should be clarified, because there is no need
to examine whether the focus of the prosecution's evidence
is "coercion and influence" or "force and intimidation" for
the purpose of determining which between R.A. No. 7610
or the RPC should the accused be prosecuted under in cases
of acts of lasciviousness or rape where the offended party
is 12 years of age or below 18.
To recap, We explained in Abay[61] that under Section 5 (b),
Article III of R.A. No. 7610 in relation to R.A. No. 8353, 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 paragraph 1(d), Article 266-A of the RPC, and
penalized with reclusion perpetua. On the other hand, if the
victim is 12 years or older, the offender should be charged
with either sexual abuse under Section 5(b) of R.A. No. 7610
or rape under Article 266-A (except paragraph 1 [d]) of the
RPC. However, the offender cannot be accused of both
crimes for the same act because his right against double
jeopardy might be prejudiced. Besides, rape cannot be
complexed with a violation of Section 5(b) of R.A. No. 7610,
because under Section 48 of the RPC (on complex crimes),
a felony under the RPC (such as rape) cannot be complexed
with an offense penalized by a special law.
Considering that the victim in Abay was more than 12 years
old when the crime was committed against her, and the
Information against appellant stated that the child was 13
years old at the time of the incident, We held that appellant
may be prosecuted either for violation of Section 5(b) of
R.A. No. 7610 or rape under Article 266-A (except paragraph
1[d]) of the RPC. We observed that while the Information
may have alleged the elements of both crimes, the
prosecution's evidence only established that appellant
sexually violated the person of the child through force and
intimidation by threatening her with a bladed instrument
and forcing her to submit to his bestial designs. Hence,
appellant was found guilty of rape under paragraph 1(a),
Article 266-A of the RPC.
In Pangilinan, where We were faced with the same
dilemma because all the elements of paragraph 1, Article
266-A of the RPC and Section 5(b) of R.A. No. 7610 were
present, it was ruled that the accused can be charged with
either rape or child abuse and be convicted therefor.
However, We observed that rape was established, since the
prosecution's evidence proved that the accused had carnal
knowledge of the victim through force and intimidation by
threatening her with a samurai. Citing the discussion
in Abay, We ruled as follows:
As in the present case, appellant can indeed be charged
with either Rape or Child Abuse and be convicted therefor.
The prosecution's evidence established that appellant had
carnal knowledge of AAA through force and intimidation by
threatening her with a samurai. Thus, rape was established.
Considering that in the resolution of the Assistant Provincial
Prosecutor, he resolved the filing of rape under Article 266-
A of the Revised Penal Code for which appellant was
convicted by both the RTC and the CA, therefore, we merely
affirm the conviction.[62]
In the recent case of Tubillo where We noted that the
Information would show that the case involves both the
elements of paragraph 1, Article 266-A of the RPC and
Section 5(b) of R.A. No. 7610, We likewise examined the
evidence of the prosecution, whether it focused on the
specific force or intimidation employed by the offender or
on the broader concept of coercion or influence to have
carnal knowledge with the victim. In ruling that appellant
should be convicted of rape under paragraph 1(a), Article
266-A of the RPC instead of violation of Section 5(b) of R.A.
No. 7610, We explained:
Here, the evidence of the prosecution unequivocally
focused on the force or intimidation employed by Tubillo
against HGE under Article 266- A(1)(a) of the RPC. The
prosecution presented the testimony of HGE who narrated
that Tubillo unlawfully entered the house where she was
sleeping by breaking the padlock. Once inside, he forced
himself upon her, pointed a knife at her neck, and inserted
his penis in her vagina. She could not resist the sexual attack
against her because Tubillo poked a bladed weapon at her
neck. Verily, Tubillo employed brash force or intimidation
to carry out his dastardly deeds.[63]
With this decision, We now clarify the principles laid down
in Abay, Pangilinan and Tubillo to the effect that there is a
need to examine the evidence of the prosecution to
determine whether the person accused of rape should be
prosecuted under the RPC or R.A. No. 7610 when the
offended party is 12 years old or below 18.
First, if sexual intercourse is committed with an offended
party who is a child less than 12 years old or is demented,
whether or not exploited in prostitution, it is always a crime
of statutory rape; more so when the child is below 7 years
old, in which case the crime is always qualified rape.
Second, when the offended party is 12 years old or below
18 and the charge against the accused is carnal knowledge
through "force, threat or intimidation," then he will be
prosecuted for rape under Article 266-A(1)(a) of the RPC. In
contrast, in case of sexual intercourse with a child who is 12
years old or below 18 and who is deemed "exploited in
prostitution or other sexual abuse," the crime could not be
rape under the RPC, because this no longer falls under the
concept of statutory rape, and the victim indulged in sexual
intercourse either "for money, profit or any other
consideration or due to coercion or influence of any adult,
syndicate or group," which deemed the child as one
"exploited in prostitution or other sexual abuse."
To avoid further confusion, We dissect the phrase "children
exploited in prostitution" as an element of violation of
Section 5(b) of R.A. No. 7610. As can be gathered from the
text of Section 5 of R.A. No. 7610 and having in mind that
the term "lascivious conduct"[64] has a clear definition which
does not include "sexual intercourse," the phrase "children
exploited in prostitution" contemplates four (4) scenarios:
(a) a child, whether male or female, who for money, profit
or any other consideration, indulges in lascivious conduct;
(b) a female child, who for money, profit or any other
consideration, indulges in sexual intercourse; (c) a child,
whether male or female, who due to the coercion or
influence of any adult, syndicate or group, indulges in
lascivious conduct; and (d) a female, due to the coercion or
influence of any adult, syndicate or group, indulge in sexual
intercourse.
The term "other sexual abuse," on the other hand, is
construed in relation to the definitions of "child abuse"
under Section 3, Article I of R.A. No. 7610 and "sexual
abuse" under Section 2(g) of the Rules and Regulations on
the Reporting and Investigation of Child Abuse Cases.[65] In
the former provision, "child abuse" refers to the
maltreatment, whether habitual or not, of the child which
includes sexual abuse, among other matters. In the latter
provision, "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.
In Quimvel, it was held that the term "coercion or
influence" is broad enough to cover or even synonymous
with the term "force or intimidation." Nonetheless, it
should be emphasized that "coercion or influence" is used
in Section 5[66] of R.A. No. 7610 to qualify or refer to the
means through which "any adult, syndicate or group"
compels a child to indulge in sexual intercourse. On the
other hand, the use of "money, profit or any other
consideration" is the other mode by which a child indulges
in sexual intercourse, without the participation of "any
adult, syndicate or group." In other words, "coercion or
influence" of a child to indulge in sexual intercourse is
clearly exerted NOT by the offender whose liability is based
on Section 5(b)[67] of R.A. No. 7610 for committing sexual
act with a child exploited in prostitution or other sexual
abuse. Rather, the "coercion or influence" is exerted upon
the child by "any adult, syndicate, or group" whose liability
is found under Section 5(a)[68] for engaging in, promoting,
facilitating or inducing child prostitution, whereby the
sexual intercourse is the necessary consequence of the
prostitution.
For a clearer view, a comparison of the elements of rape
under the RPC and sexual intercourse with a child under
Section 5(b) of R.A. No. 7610 where the offended party is
between 12 years old and below 18, is in order.
Rape under Article 266- Section 5(1) of R.A. No. 7610
A(1)(a,b,c) under the RPC
1. Offender is a man; 1. Offender is a man;
2. Carnal knowledge of a 2. Indulges in sexual
woman; intercourse with a female
child exploited in prostitution
or other sexual abuse, who is
12 years old or below 18 or
above 18 under special
circumstances;
3. Through force, threat or 3. Coercion or influence of
intimidation; when the any adult, syndicate or group
offended party is deprived of is employed against the child
reason or otherwise to become a prostitute
unconscious; and by means
of fraudulent machination or
grave abuse of authority
As can be gleaned above, "force, threat or intimidation" is
the element of rape under the RPC, while "due to coercion
or influence of any adult, syndicate or group" is the
operative phrase for a child to be deemed "exploited in
prostitution or other sexual abuse," which is the element of
sexual abuse under Section 5(b) of R.A. No. 7610. The
"coercion or influence" is not the reason why the child
submitted herself to sexual intercourse, but it was utilized – e.g., carnal knowledge or sexual intercourse was due to
in order for the child to become a prostitute. Considering "force or intimidation" with the added phrase of "due to
that the child has become a prostitute, the sexual coercion or influence," one of the elements of Section 5(b)
intercourse becomes voluntary and consensual because of R.A. No. 7610; or in many instances wrongfully designate
that is the logical consequence of prostitution as defined the crime in the Information as violation of "Article 266-A,
under Article 202 of the RPC, as amended by R.A. No. 10158 paragraph 1(a) in relation to Section 5(b) of R.A. No. 7610,"
where the definition of "prostitute" was retained by the although this may be a ground for quashal of the
new law:[69] Information under Section 3(f)[71] of Rule 117 of the Rules
Article 202. Prostitutes; Penalty. - For the purposes of this of Court and proven during the trial in a case where the
article, women who, for money or profit, habitually indulge victim who is 12 years old or under 18 did not consent to
in sexual intercourse or lascivious conduct, are deemed to the sexual intercourse, the accused should still be
be prostitutes. prosecuted pursuant to the RPC, as amended by R.A. No.
Any person found guilty of any of the offenses covered by 8353, which is the more recent and special penal legislation
this article shall be punished by arresto menor or a fine not that is not only consistent, but also strengthens the policies
exceeding 200 pesos, and in case of recidivism, by arresto of R.A. No. 7610. Indeed, while R.A. No. 7610 is a special law
mayor in its medium period to prision correccional in its specifically enacted to provide special protection to
minimum period or a fine ranging from 200 to 2,000 pesos, children from all forms of abuse, neglect, cruelty,
or both, in the discretion of the court. exploitation and discrimination and other conditions
prejudicial to their development, We hold that it is contrary
Therefore, there could be no instance that an Information
to the legislative intent of the same law if the lesser penalty
may charge the same accused with the crime of rape where
(reclusion temporal medium to reclusion perpetua) under
"force, threat or intimidation" is the element of the crime
Section 5(b) thereof would be imposed against the
under the RPC, and at the same time violation of Section
perpetrator of sexual intercourse with a child 12 years of
5(b) of R.A. No. 7610 where the victim indulged in sexual
age or below 18.
intercourse because she is exploited in
prostitution either "for money, profit or any other
Article 266-A, paragraph 1(a) in relation to Article 266-B of
consideration or due to coercion or influence of any adult,
the RPC, as amended by R.A. No. 8353, is not only the more
syndicate or group" — the phrase which qualifies a child to
recent law, but also deals more particularly with all rape
be deemed "exploited in prostitution or other sexual abuse"
cases, hence, its short title "The Anti-Rape Law of 1997."
as an element of violation of Section 5(b) of R.A. No. 7610.
R.A. No. 8353 upholds the policies and principles of R.A. No.
7610, and provides a "stronger deterrence and special
Third, if the charge against the accused where the victim is
protection against child abuse," as it imposes a more severe
12 years old or below 18 is sexual assault under paragraph
penalty of reclusion perpetua under Article 266-B of the
2, Article 266-A of the RPC, then it may happen that the
RPC, or even the death penalty if the victim is (1) under 18
elements thereof are the same as that of lascivious conduct
years of age and the offender is a parent, ascendant, step-
under Section 5(b) of R.A. No. 7610, because the term
parent, guardian, relative by consanguinity or affinity within
"lascivious conduct" includes introduction of any object
the third civil degree, or common-law spouse of the parent
into the genitalia, anus or mouth of any person.[70] In this
of the victim; or (2) when the victim is a child below 7 years
regard, We held in Dimakuta that in instances where a
old.
"lascivious conduct" committed against a child is covered by
R.A. No. 7610 and the act is likewise covered by sexual
It is basic in statutory construction that in case of
assault under paragraph 2, Article 266-A of the RPC
irreconcilable conflict between two laws, the later
[punishable by prision mayor], the offender should be held
enactment must prevail, being the more recent expression
liable for violation of Section 5(b) of R.A. No. 7610
of legislative will.[72] Indeed, statutes must be so construed
[punishable by reclusion temporal medium], consistent
and harmonized with other statutes as to form a uniform
with the declared policy of the State to provide special
system of jurisprudence, and if several laws cannot be
protection to children from all forms of abuse, neglect,
harmonized, the earlier statute must yield to the later
cruelty, exploitation and discrimination, and other
enactment, because the later law is the latest expression of
conditions prejudicial to their development. But when the
the legislative will.[73] Hence, Article 266-B of the RPC must
offended party is below 12 years of age or is demented, the
prevail over Section 5(b) of R.A. No. 7610.
accused should be prosecuted and penalized under
paragraph 2, Article 266-A of the RPC in relation to Section
In sum, the following are the applicable laws and penalty
5(b) of R.A. No. 7610, because the crime of sexual assault is
for the crimes of acts of lasciviousness or lascivious conduct
considered statutory, whereby the evidence of force or
and rape by carnal knowledge or sexual assault, depending
intimidation is immaterial.
on the age of the victim, in view of the provisions of
paragraphs 1 and 2 of Article 266-A and Article 336 of the
Assuming that the elements of both violations of Section
RPC, as amended by R.A. No. 8353, and Section 5(b) of R.A.
5(b) of R.A. No. 7610 and of Article 266-A, paragraph 1(a) of
No. 7610:
the RPC are mistakenly alleged in the same Information
Designation of the Crime & Imposable Penalty the RPC in R.A. No. 266-A(2) of
Age of Under 12 12 years old or 18 years old relation to 7610: reclusion the
Victim: years old or below 18, or 18 and above Section 5(b) of temporal in its RPC: prision
demented under special R.A. No. medium period mayor
Crime circumstances[74 7610: reclusio to reclusion
Committed: ] n temporal in perpetua
Acts of Acts of Lascivious Not its medium
Lasciviousnes Lasciviousnes conduct[75] unde applicable period
s committed s under Article r Section 5(b) of
against 336 of the RPC R.A. No. For the crime of acts of lasciviousness or lascivious conduct,
children in relation to 7610: reclusion the nomenclature of the crime and the imposable penalty
exploited in Section 5(b) of temporal in its are based on the guidelines laid down in Caoili. For the
prostitution R.A. No. medium period crimes of rape by carnal knowledge and sexual assault
or other 7610: reclusio to reclusion under the RPC, as well as sexual intercourse committed
sexual abuse n temporal in perpetua against children under R.A. No. 7610, the designation of the
its medium crime and the imposable penalty are based on the
period discussions in Dimakuta,[78] Quimvel[79] and Caoili, in line
Sexual Sexual Assault Lascivious Not with the policy of R.A. No. 7610 to provide stronger
Assault under Article Conduct under applicable deterrence and special protection to children from all forms
committed 266-A(2) of Section 5(b) of of abuse, neglect, cruelty, exploitation, discrimination, and
against the RPC in R.A. No. other conditions prejudicial to their development. It is not
children relation to 7610: reclusion amiss to stress that the failure to designate the offense by
exploited in Section 5(b) of temporal in its statute, or to mention the specific provision penalizing the
prostitution R.A. No. medium period act, or an erroneous specification of the law violated, does
or other 7610: reclusio to reclusion not vitiate the information if the facts alleged clearly recite
sexual abuse n temporal in perpetua the facts constituting the crime charged, for what controls
its medium is not the title of the information or the designation of the
period offense, but the actual facts recited in the
Sexual Rape under Sexual Not information.[80] Nevertheless, the designation in the
Intercourse Article 266- Abuse[77] under applicable information of the specific statute violated is imperative to
committed A(1) of the Section 5(b) of avoid surprise on the accused and to afford him the
against RPC: reclusion R.A. No. opportunity to prepare his defense accordingly.[81]
children perpetua, 7610: reclusion
exploited in except when temporal in its Justice Caguioa asks us to abandon our rulings in Dimakuta,
prostitution the victim is medium period Quimvel and Caoili, and to consider anew the viewpoint in
or other below 7 years to reclusion his Separate Dissenting Opinion in Quimvel that the
sexual abuse old in which perpetua provisions of R.A. No. 7610 should be understood in its
case death proper context, i.e., that it only applies in the specific and
penalty shall limited instances where the victim is a child "subjected to
be imposed[76] prostitution or other sexual abuse." He asserts that if the
Rape by Rape under Rape under Rape under intention of R.A. No. 7610 is to penalize all sexual abuses
carnal Article 266- Article 266-A(1) Article 266- against children under its provisions to the exclusion of the
knowledge A(1) in in relation to A(1) of the RPC, it would have expressly stated so and would have done
relation to Art. 266-B of the RPC: reclusio away with the qualification that the child be "exploited in
Art. 266-B of RPC: reclusion n perpetua prostitution or subjected to other sexual abuse." He points
the perpetua out that Section 5(b) of R.A. No. 7610 is a provision of
RPC: reclusion specific and limited application, and must be applied as
perpetua, worded — a separate and distinct offense from the
except when "common" or ordinary acts of lasciviousness under Article
the victim is 336 of the RPC. In support of his argument that the main
below 7 years thrust of R.A. No. 7610 is the protection of street children
old in which from exploitation, Justice Caguioa cites parts of the
case death sponsorship speech of Senators Santanina T. Rasul, Juan
penalty shall Ponce Enrile and Jose D. Lina, Jr.
be imposed
Rape by Sexual Assault Lascivious Sexual We find no compelling reason to abandon our ruling
Sexual under Article Conduct under Assault in Dimakuta, Quimvel and Caoili.
Assault 266-A(2) of Section 5(b) of under Article
In his Separate Concurring Opinion in Quimvel,
the ponente aptly explained that 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
R.A. No. 7610, as well as Section 3(2), Article XV of the 1987
Constitution:
[R.A. No. 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; 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.
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 for a useful and happy life. [Emphasis added]
[Article XV 1987 Constitution] Section 3. The State shall
defend:
x 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.[82]
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. No. 7610 on the other sexual
abuses committed by the offenders on the children
concerned.
Justice Caguioa asserts that Section 5(b), Article III of R.A.
No. 7610 is clear - it only punishes those who commit the
act of sexual intercourse or lascivious conduct with a child
exploited in prostitution or subjected to other sexual abuse.
There is no ambiguity to speak of that which requires
statutory construction to ascertain the legislature's intent
in enacting the law.
We would have agreed with Justice Caguioa if not for
Section 5 itself which provides who are considered as
"children exploited in prostitution and other sexual abuse."
Section 5 states that "[c]hildren, 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." Contrary to the view of Justice Caguioa,
Section 5(b), Article III of R.A. No. 7610 is not as clear as it
appears to be; thus, We painstakingly sifted through the
records of the Congressional deliberations to discover the
legislative intent behind such provision.
Justice Caguioa then asks: (1) if the legislature intended for
Section 5(b), R.A. No. 7610 to cover any and all types of
sexual abuse committed against children, then why would
it bother adding language to the effect that the provision
applies to "children exploited in prostitution or subjected to
other sexual abuse?" and (2) why would it also put Section
5 under Article III of the law, which is entitled "Child
Prostitution and Other Sexual Abuse?"
We go back to the record of the Senate deliberation to
explain the history behind the phrase "child exploited in
prostitution or subject to other sexual abuse."
Section 5 originally covers Child Prostitution only, and this
can still be gleaned from Section 6 on Attempt To Commit
Child Prostitution, despite the fact that both Sections fall
under Article III on Child Prostitution and Other Sexual
Abuse. Thus:
Section 6. Attempt To Commit Child Prostitution. - There is
an attempt to commit child prostitution under Section 5,
paragraph (a) hereof when any person who, not being a
relative of a child, is found alone with the said child inside
the room or cubicle of a house, an inn, hotel, motel, pension
house, apartelle or other similar establishments, vessel,
vehicle or any other hidden or secluded area under
circumstances which would lead a reasonable person to
believe that the child is about to be exploited in prostitution
and other sexual abuse.
There is also an attempt to commit child prostitution, under
paragraph (b) of Section 5 hereof when any person is
receiving services from a child in a sauna parlor or bath,
massage clinic, health club and other similar
establishments. A penalty lower by two (2) degrees than
that prescribed for the consummated felony under Section
5 hereof shall be imposed upon the principals of
the attempt to commit the crime of child prostitution under
this Act, or, in the proper case, under the Revised Penal
Code.
Even Senator Lina, in his explanation of his vote, stated that
Senate Bill 1209 also imposes the penalty of reclusion
temporal in its medium period to reclusion perpetua for
those who commit the act of sexual intercourse or
lascivious conduct with a child exploited in
prostitution.[83] Senator Lina mentioned nothing about the
phrases "subject to other sexual abuse" or "Other Sexual
Abuse" under Section 5(b), Article III of R.A. No. 7610.
However, to cover a situation where the minor may have
been coerced or intimidated into lascivious conduct, not
necessarily for money or profit, Senator Eduardo Angara
proposed the insertion of the phrase "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, under Section 5(b), Article III of R.A. No. 7610.[84]
Further amendment of then Article III of R.A. No. 7610
on Child Prostitution was also proposed by then
President Pro Tempore Sotero Laurel, to which Senator
Angara agreed, in order to cover the "expanded scope" of
"child abuse." Thus, Article III was amended and entitled
"Child Prostitution and Other Sexual Abuse."[85] This is the
proper context where the element that a child be
"exploited in prostitution and other sexual abuse" or
EPSOSA, came to be, and should be viewed.
We hold that it is under President Pro Tempore Laurel's
amendment on "expanded scope'' of "child abuse" under
Section 5(b) and the definition of "child abuse" under
Section 3,[86] Article I of R.A. No. 7610 that should be relied
upon in construing the element of "exploited under
prostitution and other sexual abuse." In understanding the
element of "exploited under prostitution and other sexual
abuse", We take into account two provisions of R.A. No.
7610, namely: (1) Section 5, Article III, which states that
"[c]hildren, 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
exploited in prostitution and other sexual abuse"; and (2)
Section 3, Article I, which states that "child abuse" refers to
the maltreatment, whether habitual or not, of the child,
which includes, sexual abuse.
To clarify, once and for all, the meaning of the element of
"exploited in prostitution" under Section 5(b), Article III of
R.A. No. 7610,[87] We rule that it contemplates 4 scenarios,
namely: (a) a child, whether male or female, who for
money, profit or any other consideration, indulges in
lascivious conduct; (b) a child, whether male or female, who
due to the coercion or influence of any adult, syndicate or
group, indulges in lascivious conduct; (c) a female child,
who for money, profit or any other consideration, indulges
in sexual intercourse; and (d) a female, due to the coercion
or influence of any adult, syndicate or group, indulges in
sexual intercourse.
Note, however, that the element of "exploited in
prostitution" does not cover a male child, who for money,
profit or any other consideration, or due to coercion or
influence of any adult, syndicate, or group, indulges in
sexual intercourse. This is because at the time R.A. No. 7610
was enacted in 1992, the prevailing law on rape was Article
335 of the RPC where rape can only be committed by having
carnal knowledge of a woman under specified
circumstances. Even under R.A. No. 8353 which took effect
in 1997, the concept of rape remains the same — it is
committed by a man who shall have carnal knowledge of a
woman under specified circumstances. As can be gathered
from the Senate deliberation on Section 5(b), Article III of
R.A. No. 7610, it is only when the victim or the child who
was abused is a male that the offender would be
prosecuted thereunder because the crime of rape does not
cover child abuse of males.[88]
The term "other sexual abuse," on the other hand, should
be construed in relation to the definitions of "child abuse"
under Section 3,[89] Article I of R.A. No. 7610 and "sexual
abuse" under Section 2(g)[90] of the Rules and Regulations
on the Reporting and Investigation of Child Abuse
Cases.[91] In the former provision, "child abuse" refers to the
maltreatment, whether habitual or not, of the child which
includes sexual abuse, among other matters. In the latter
provision, "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. Thus, the term "other
sexual abuse" is broad enough to include all other acts of
sexual abuse other than prostitution. Accordingly, a single
act of lascivious conduct is punished under Section 5(b),
Article III, when the victim is 12 years old and below 18, or
18 or older under special circumstances. In contrast, when
the victim is under 12 years old, the proviso of Section 5(b)
states that the perpetrator should be prosecuted under
Article 336 of the RPC for acts of lasciviousness, whereby
the lascivious conduct itself is the sole element of the said
crime. This is because in statutory acts of lasciviousness, as
in statutory rape, the minor is presumed incapable of giving
consent; hence, the other circumstances pertaining to rape
— force, threat, intimidation, etc. — are immaterial.
Justice Caguioa also posits that the Senate deliberation on
R.A. No. 7610 is replete with similar disquisitions that all
show the intent to make the law applicable to cases
involving child exploitation through prostitution, sexual
abuse, child trafficking, pornography and other types of
abuses. He stresses that the passage of the laws was the
Senate's act of heeding the call of the 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 Presidential
Decree No. 603, otherwise known as the Child and Youth
Welfare Code. He concludes that it is erroneous for us to
rule that R.A. No. 7610 applies in each and every case where
the victim although he or she was not proved, much less,
alleged to be a child "exploited in prostitution or subjected
to other sexual abuse." He invites us to go back to the ruling
in Abello that "since R.A. No. 7610 is a special law referring
to a particular class in society, the prosecution must show
that the victim truly belongs to this particular class to
warrant the application of the statute's provisions. Any
doubt in this regard we must resolve in favor of the
accused."
Justice Estela M. Perlas-Bernabe also disagrees that R.A. No.
7610 would be generally applicable to all cases of sexual
abuse involving minors, except those who are under 12
years of age. Justice Perlas-Bernabe concurs with Justice
Caguioa that Section 5(b), Article III of R.A. No. 7610 only
applies in instances where the child-victim is "exploited in
prostitution or subject to other sexual abuse" (EPSOSA). She
asserts that her limited view, as opposed to
the ponencia's expansive view, is not only supported by
several textual indicators both in law and the deliberations,
but also squares with practical logic and reason. She also
contends that R.A. No. 7610 was enacted to protect those
who, like the child-victim in People v. Ritter, willingly
engaged in sexual acts, not out of desire to satisfy their own
sexual gratification, but because of their "vulnerable pre-
disposition as exploited children. She submits that, as
opposed to the RPC where sexual crimes are largely
predicated on the lack of consent, Section 5(b) fills in the
gaps of the RPC by introducing the EPSOSA element which
effectively dispenses with the need to prove the lack of
consent at the time the act of sexual abuse is committed.
Thus, when it comes to a prosecution under Section 5(b),
consent at the time the sexual act is consummated is, unlike
in the RPC, not anymore a defense.
We are unconvinced that R.A. No. 7610 only protects a
special class of children, i.e., those who are "exploited in
prostitution or subjected to other sexual abuse," and does
not cover all crimes against them that are already punished
by existing laws. It is hard to understand why the legislature
would enact a penal law on child abuse that would create
an unreasonable classification between those who are
considered as "exploited in prostitution and other sexual
abuse" or EPSOSA and those who are not. After all, the
policy is to provide stronger deterrence and special
protection to children from all forms of abuse, neglect,
cruelty, exploitation, discrimination and other conditions
prejudicial to their development.
In the extended explanation of his vote on Senate Bill No.
1209,[92] Senator Lina emphasized that the bill
complements the efforts the Senate has initiated towards
the implementation of a national comprehensive program
for the survival and development of Filipino children, in
keeping with the Constitutional mandate that "[t]he State
shall defend 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."[93] Senator
Lina also stressed that the bill supplies the inadequacies of
the existing laws treating crimes committed against
children, namely, the RPC and the Child and Youth Welfare
Code, in the light of the present situation, i.e., current
empirical data on child abuse indicate that a stronger
deterrence is imperative.[94]
In the same vein, Senator Rasul expressed in her
Sponsorship Speech the same view that R.A. No. 7610
intends to protect all children against all forms of abuse and
exploitation, thus:
There are still a lot of abuses and injustices done to our
children who suffer not only from strangers, but sadly, also
in the hands of their parents and relatives. We know for a
fact that the present law on the matter, the Child and
Welfare Code (PD No. 603) has very little to offer to abuse
children. We are aware of the numerous cases not reported
in media.
In the Filipino Family structure, a child is powerless; he or
she is not supposed to be heard and seen. Usually, it is the
father or the mother who has a say in family matters, and
children, owing to their limited capability, are not consulted
in most families. Many children may be suffering from
emotional, physical and social abuses in their homes, but
they cannot come out in the open; besides, there is a very
thin line separating discipline from abuse. This becomes
wider when the abuse becomes grave and severe.
Perhaps, more lamentable than the continuing child abuses
and exploitation is the seeming unimportance or the lack of
interest in the way we have dealt with the said problem in
the country. No less than the Supreme Court, in the recent
case of People v. Ritter, held that we lack criminal laws
which will adequately protect street children from
exploitation of pedophiles. But as we know, we, at the
Senate have not been remiss in our bounden duty to
sponsor bills which will ensure the protection of street
children from the tentacles of sexual exploitation. Mr.
President, now is the time to convert these bills into reality.
In our long quest for solutions to problems regarding
children, which problems are deeply rooted in poverty, I
have felt this grave need to sponsor a bill, together with
Senators Lina and Mercado, which would ensure the
children's protection from all forms of abuse and
exploitation, to provide stiffer sanction for their
commission and carry out programs for prevention and
deterrence to aid crisis intervention in situations of child
abuse and exploitation.
Senate Bill No. 1209 translates into reality the provision of
our 1987 Constitution on "THE FAMILY," and I quote:
Sec. 3. The State shall defend:
x 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.
This is a specific provision peculiar to the Philippines. No
other Constitution in the whole world contains this
mandate. Keeping true to this mandate, Mr. President, and
the UN Convention on the Rights of the Child which has
been drafted in the largest global summit, of which we have
acceded, we should waste no time in passing this significant
bill into law. This is a commitment; thus, we should not
thrive on mere promises. We, the legislature of this country,
must have that political will to transform this promise into
a vibrant reality.
Children's normal growth and development, considering
their young minds and fragile bodies, must not be stunted.
We legislators must pave the way for the sustained progress
of our children. Let not a child's opportunity for physical,
spiritual, moral, social and intellectual well-being be
stunted by the creeping cruelty and insanity that sometimes
plague the minds of the adults in the society who, ironically,
are the persons most expected to be the guardians of their
interest and welfare.[95]
Justice Caguioa further submits that Section 5(b) of R.A. No.
7610 cannot be read in isolation in the way that Dimakuta,
Quimvel and Caoili do, but must be read in the whole
context of R.A. No. 7610 which revolves around (1) child
prostitution, (2) other sexual abuse in relation to
prostitution and (3) the specific acts punished under R.A.
No. 7610, namely, child trafficking under Article IV, obscene
publications and indecent shows under Article V, and
sanctions for establishments where these prohibited acts
are promoted, facilitated or conducted under Article VII. He
adds that even an analysis of the structure of R.A. No. 7610
demonstrates its intended application to the said cases of
child exploitation involving children "exploited in
prostitution or subjected to other sexual abuse." Citing the
exchange between Senators Pimentel and Lina during the
second reading of Senate Bill No. 1209 with respect to the
provision on attempt to commit child prostitution, Justice
Caguioa likewise posits that a person can only be convicted
of violation of Article 336 in relation to Section 5(b), upon
allegation and proof of the unique circumstances of the
children "exploited in prostitution or subjected to other
sexual abuse."
We disagree that the whole context in which Section 5(b) of
R.A. No. 7610 must be read revolves only around child
prostitution, other sexual abuse in relation to prostitution,
and the specific acts punished under R.A. No. 7610. In fact,
the provisos of Section 5(b) itself explicitly state that it must
also be read in light of the provisions of the RPC, thus:
"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."
When the first proviso of Section 5(b) states that "when the
victim is under 12 years of age shall be prosecuted under
the RPC," it only means that the elements of rape under
then Article 335, paragraph 3 of the RPC [now Article 266-
A, paragraph 1(d)], and of acts of lasciviousness under
Article 336 of the RPC, have to be considered, alongside the
element of the child being "exploited in prostitution and or
other sexual abuse," in determining whether the
perpetrator can be held liable under R.A. No. 7610. The
second proviso of Section 5(b), on the other hand, merely
increased the penalty for lascivious conduct when the
victim is under 12 years of age, from prision
correccional to reclusion temporal in its medium period, in
recognition of the principle of statutory acts of
lasciviousness, where the consent of the minor is
immaterial.
Significantly, what impels Us to reject Justice Caguioa's view
that acts of lasciviousness committed against children may
be punished under either Article 336 of the RPC
[with prision correccional] or Acts of Lasciviousness under
Article 336 of the RPC, in relation to Section 5(b) of R.A. No.
7610 [with reclusion temporal medium]/Lascivious Conduct
under Section 5(b) of R.A. No. 7610 [with reclusion
temporal medium to reclusion perpetua], is the provision
under Section 10 of R.A. No. 7610.
As pointed out by the ponente in Quimvel, where the victim
of acts of lasciviousness is under 7 years old, Quimvel
cannot be merely penalized with prision correccional for
acts of lasciviousness under Article 336 of the RPC when the
victim is a child because it is contrary to the letter and intent
of R.A. No. 7610 to provide for stronger deterrence and
special protection against child abuse, exploitation and
discrimination. The legislative intent is expressed under
Section 10, Article VI of R.A. No. 7610 which, among others,
increased by one degree the penalty for certain crimes
when the victim is a child under 12 years of age, to wit:
Section 10. Other Acts of Neglect, Abuse, Cruelty or
Exploitation and Other Conditions Prejudicial to the Child's
Development. —
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.[96]
The ponente explained that 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. No. 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,[97] which used to be punishable by arresto
mayor, and now by prision correccional pursuant to Section
10, Article VI of R.A. No. 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 a probationable offense, pursuant to the
Probation Law of 1976,[98] as amended by R.A. No.
10707.[99] Indeed, while the foregoing implications are
favorable to the accused, they are contrary to the State
policy and principles under R.A. No. 7610 and the
Constitution on the special protection to children.
Justice Caguioa also faults that a logical leap was committed
when the ponencia posited that the Section 10, Article VI,
R.A. No. 7610 amendment of the penalties under Articles
337, 339, 340 and 341 of the RPC, also affected Article 336
on acts of lasciviousness. He argues that given the clear
import of Section 10 to the effect that the legislature
expressly named the provisions it sought to amend through
R.A. No. 7610, amendment by implication cannot be
insisted on.
We disagree. Articles 337 (Qualified Seduction), 339 (Acts
of Lasciviousness with the Consent of the Offended Party),
340 (Corruption of Minor) and 341 (White Slave Trade) of
the RPC, as well as Article 336 (Acts of Lasciviousness) of the
RPC, fall under Title Eleven of the RPC on Crimes against
Chastity. All these crimes can be committed against
children. Given the policy of R.A. No. 7610 to provide
stronger deterrence and special protection against child
abuse, We see no reason why the penalty for acts of
lasciviousness committed against children should remain to
be prision correccional when Section 5(b), Article III of R.A.
No. 7610 penalizes those who commit lascivious conduct
with a child exploited in prostitution or subject to other
sexual abuse with a penalty of reclusion temporal in its
medium period when the victim is under 12 years of age.
Contrary to the view of Justice Caguioa, there is, likewise,
no such thing as a recurrent practice of relating the crime
committed to R.A. No. 7610 in order to increase the
penalty, which violates the accused's constitutionally
protected right to due process of law. In the interpretation
of penal statutes, the rule is to subject it to careful scrutiny
and to construe it with such strictness as to safeguard the
rights of the accused,[100] and at the same time preserve the
obvious intention of the legislature.[101] A strict
construction of penal statutes should also not be permitted
to defeat the intent, policy and purpose of the legislature,
or the object of the law sought to be attained.[102] When
confronted with apparently conflicting statutes, the courts
should endeavor to harmonize and reconcile them, instead
of declaring the outright invalidity of one against the other,
because they are equally the handiwork of the same
legislature.[103] In this case, We are trying to harmonize the
applicability of the provisions of R.A. No. 7610 vis-a-vis
those of the RPC, as amended by R.A. No. 8353, in order to
carry out the legislative intent to provide stronger
deterrence and special protection against all forms of child
abuse, exploitation and discrimination.
Pertinent parts of the deliberation in Senate Bill No. 1209
underscoring the legislative intent to increase the penalties
as a deterrent against all forms of child abuse, including
those covered by the RPC and the Child and Youth Welfare
Code, as well as to give special protection to all children,
read:
Senator Lina. x x x
For the information and guidance of our Colleagues, the
phrase "child abuse" here is more descriptive than a
definition that specifies the particulars of the acts of child
abuse. As can be gleaned from the bill, Mr. President, there
is a reference in Section 10 to the "Other Acts of Neglect,
Abuse, Cruelty or Exploitation and Other Conditions
Prejudicial to the Child's Development."
We refer, for example, to the Revised Penal Code. There are
already acts described and punished under the Revised
Penal Code and the Child and Youth Welfare Code. These
are all enumerated already, Mr. President. There are
particular acts that are already being punished.
But we are providing stronger deterrence against child
abuse and exploitation by increasing the penalties when the
victim is a child. That is number one. We define a child as
"one who is 15 years and below." [Later amended to those
below 18, including those above 18 under special
circumstances]
The President Pro Tempore. Would the Sponsor then say
that this bill repeals, by implication or as a consequence,
the law he just cited for the protection of the child as
contained in that Code just mentioned, since this provides
for stronger deterrence against child abuse and we have
now a Code for the protection of the child?
Senator Lina. We specified in the bill, Mr. President,
increase in penalties. That is one. But, of course, that is not
everything included in the bill. There are other aspects like
making it easier to prosecute these cases of pedophilia in
our country. That is another aspect of this bill.
The other aspects of the bill include the increase in the
penalties on acts committed against children; and by
definition, children are those below 15 years of age.
So, it is an amendment to the Child and Youth Welfare
Code, Mr. President. This is not an amendment by
implication. We made direct reference to the Articles in
the Revised Penal Code and in the Articles in the Child and
Youth Welfare Code that are amended because of the
increase in the penalties.
The President Pro Tempore. Would Senator Lina think then
that, probably, it would be more advisable to specify the
amendments and amend the particular provision of the
existing law rather than put up a separate bill like this?
Senator Lina. We did, Mr. President. In Section 10, we
made reference to...
The President Pro Tempore. The Chair is not proposing any
particular amendment. This is just an inquiry for the
purpose of making some suggestions at this stage where we
are now in the period of amendments.
Senator Lina. We deemed it proper to have a separate Act,
Mr. President, that will include all measures to provide
stronger deterrence against child abuse and
exploitation. There are other aspects that are included
here other than increasing the penalties that are already
provided for in the Revised Penal Code and in the Child
and Youth Welfare Code when the victims are children.
Aside from the penalties, there are other measures that
are provided for in this Act. Therefore, to be more
systematic about it, instead of filing several bills, we
thought of having a separate Act that will address the
problems of children below 15 years of age. This is to
emphasize the fact that this is a special sector in our
society that needs to be given special protection. So this
bill is now being presented for consideration by the
Chamber.[104]
The aforequoted parts of the deliberation in Senate Bill No.
1209 likewise negate the contention of Justice Perlas-
Bernabe that "to suppose that R.A. No. 7610 would
generally cover acts already punished under the Revised
Penal Code (RPC) would defy the operational logic behind
the introduction of this special law." They also address the
contention of Justice Caguioa that the passage of the same
law was the Senate's act of heeding the call of the 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, like the RPC and P.D. No. 603.
As pointed out by Senator Lina, the other aspect of S.B. No.
1209, is to increase penalties on acts committed against
children; thus, direct reference was made to the Articles in
the RPC and in the Articles in the Child and Youth Welfare
Code that are amended because of the increase in the
penalties. The said legislative intent is consistent with the
policy to provide stronger deterrence and special
protection of children against child abuse, and is now
embodied under Section 10, Article VI of R.A. No. 7610, viz.:
For purposes of this Act, the penalty for the commission of
acts punishable under Articles 248, 249, 262, paragraph 2,
and 263, paragraph 1 of Act No. 3815, as amended, the
Revised Penal Code, for the crimes of murder, homicide,
other intentional mutilation, and serious physical injuries,
respectively, shall be reclusion perpetua when the victim is
under twelve (12) years of age. The penalty for the
commission of acts punishable under Article 337, 339, 340
and 341 of Act No. 3815, as amended, the Revised Penal
Code, for the crimes of qualified seduction, acts of
lasciviousness with the consent of the offended party,
corruption of minors, and white slave trade, respectively,
shall be one (1) degree higher than that imposed by law
when the victim is under twelve (12) years age.
Justice Perlas-Bernabe and Justice Caguioa are both correct
that R.A. No. 7610 was enacted to fill the gaps in the law, as
observed by the Court in People v. Ritter. However, they
may have overlooked that fact that the Congressional
deliberations and the express provisions of R.A. No. 7610 all
point to the intention and policy to systematically address
the problems of children below 15 years of age [later
increased to below 18], which Senator Lina emphasized as
a special sector in our society that needs to be given special
protection.[105]
Justice Perlas-Bernabe also noted that a general view on the
application of R.A. No. 7610 would also lead to an unnerving
incongruence between the law's policy objective and
certain penalties imposed thereunder. She pointed out that
under Article 335 of the RPC, prior to its amendment by R.A.
No. 8353, the crime of rape committed against a minor who
is not under 12 and below 18, is punished with the penalty
of reclusion perpetua, while under Section 5(b), Article III of
R.A. No. 7610, the crime of sexual abuse against a child
EPSOSA is punished only with a lower penalty of reclusion
temporal in its medium period to reclusion perpetua. She
concluded that it would not make sense for the Congress to
pass a supposedly stronger law against child abuse if the
same carries a lower penalty for the same act of rape under
the old RPC provision.
Justice Perlas-Bernabe's observation on incongruent
penalties was similarly noted by the ponente in his Separate
Concurring Opinion in Quimvel, albeit with respect to the
penalties for acts of lasciviousness committed against a
child, but he added that the proper remedy therefor is a
corrective legislation:
Curiously, despite the clear intent of R.A. 7610 to provide
for stronger deterrence and special protection against child
abuse, the penalty [reclusion temporal medium] when the
victim is under 12 years old is lower compared to the
penalty [reclusion temporal medium to reclusion perpetua]
when the victim is 12 years old and below 18. The same
holds true if the crime of acts of lasciviousness is attended
by an aggravating circumstance or committed by persons
under Section 31,[106] Article XII of R.A. 7610, in which case,
the imposable penalty is reclusion perpetua. In contrast,
when no mitigating or aggravating circumstance attended
the crime of acts of lasciviousness, the penalty therefor
when committed against a child under 12 years old is aptly
higher than the penalty when the child is 12 years old and
below 18. This is because, applying the Indeterminate
Sentence Law, the minimum term in the case of the
younger victims shall be taken from reclusion
temporal minimum, whereas as the minimum term in the
case of the older victims shall be taken from prision
mayor medium to reclusion temporal minimum. It is a basic
rule in statutory construction that what courts may correct
to reflect the real and apparent intention of the legislature
are only those which are clearly clerical errors or obvious
mistakes, omissions, and misprints, but not those due to
oversight, as shown by a review of extraneous
circumstances, where the law is clear, and to correct it
would be to change the meaning of the law. To my mind, a
corrective legislation is the proper remedy to address the
noted incongruent penalties for acts of lasciviousness
committed against a child.[107]
To support his theory that the provisions of R.A. No. 7610
are intended only for those under the unique circumstances
of the children being "exploited in prostitution or subjected
to other sexual abuse," Justice Caguioa quoted pertinent
portions of the Senate deliberation on the provision on
attempt to commit child prostitution," which concededly do
not affect Article 336 of the RPC on acts of lasciviousness.
Senator Lina provided with a background, not of the
provision of Section 5(b), but of Section 6 of R.A. No. 7610
on attempt to commit child prostitution, thus:
Senator Lina. xxx 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 foreigner, is seen with a child with whom
he has no relation—blood 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 already considered an attempt to commit child
prostitution. This, in no way, affects the Revised Penal Code
provisions on acts of lasciviousness or qualified
seduction.[108]
Justice Caguioa's reliance on the foregoing statements of
Senator Lina is misplaced. While Senator Lina was referring
to the specific provision on attempt to commit child
prostitution under Section 6, Article III of R.A. No. 7610,
Senator Aquilino Pimentel Jr.'s questions were directed
more on the general effect of Senate Bill No. 1209 on the
existing provisions of the RPC on child sexual abuse, which
elicited from Senator Lina the intent to provide higher
penalties for such crimes, to wit:
Senator Pimentel. I understand the Gentleman's opinion
on that particular point. But my question really is much
broader. I am sorry that it would seem as if I am trying to be
very meticulous about this.
Senator Lina. It is all right.
Senator Pimentel. But the point is, there are existing laws
that cover the sexual abuse of children already,
particularly female children. What I am trying to say is,
what effect will the distinguished Gentleman's bill have on
these existing laws, particularly provisions of the Revised
Penal Code. That is why I tried to cite the case of rape—
having sexual intercourse with a child below 12 years of
age, seduction instances, qualified abduction, or acts of
lasciviousness, involving minors; meaning to say, female
below 18 years of age. There are already existing laws on
this particular point.
Senator Lina. Mr. President, there will also be a difference
in penalties when the person or the victim is 12 years old or
less. That is another effect. So, there is a difference.
For example, in qualified seduction, the penalty present for
all persons between age of 13 to 17 is prision correccional;
for acts of lasciviousness under the proposal, similar acts
will be prision mayor if the child is 12 years or less.
Under qualified seduction, the present penalty is prision
correccional, minimum and medium. Under the proposal, it
will be prision correccional maximum to prision
mayor minimum, and so on and so forth.
Even in facts of lasciviousness, with consent of the offended
party, there is still a higher penalty. In corruption of minors,
there will be a higher penalty. When murder is committed,
and the victim is under 12 years or less, there will be a
higher penalty from reclusion temporal to reclusion
perpetua. The penalty when the culprit is below 12 years or
less will be reclusion perpetua. The intention is really to
provide a strong deterrence sand special protection against
child abuse and exploitation.
Senator Pimentel. So, the net effect of this amendment,
therefore, is to amend the provisions of the Revised Penal
Code, insofar as they relate to the victims who are females
below the age of 12.
Senator Lina. That will be the net effect, Mr. President.
Senator Pimentel. We probably just have to tighten up our
provisions to make that very explicit. Mr. President.
Senator Lina. Yes. During the period of individual
amendments, Mr. President, that can be well taken care
of.[109]
Quoting the sponsorship speech of Senator Rasul and citing
the case of People v. Ritter,[110] Justice Caguioa asserts that
the enactment of R.A. No. 7610 was a response of the
legislature to the observation of the Court that there was a
gap in the law because of the lack of criminal laws which
adequately protect street children from exploitation of
pedophiles.
Justice Caguioa is partly correct. Section 5(b) of R.A. No.
7610 is separate and distinct from common and ordinary
acts of lasciviousness under Article 336 of the RPC.
However, when the victim of such acts of lasciviousness is a
child, as defined by law, We hold that the penalty is that
provided for under Section 5(b) of R.A. No. 7610
- i.e., reclusion temporal medium in case the victim is under
12 years old, and reclusion temporal medium to reclusion
perpetua when the victim is between 12 years old or under
18 years old or above 18 under special circumstances - and
not merely prision correccional under Article 336 of the
RPC. Our view is consistent with the legislative intent to
provide stronger deterrence against all forms of child
abuse, and the evil sought to be avoided by the enactment
of R.A. No. 7610, which was exhaustively discussed during
the committee deliberations of the House of
Representatives:
HON. [PABLO] P. GARCIA: Thank you, Mr. Chairman. This
problem is also bogging me for quite some time because
there has been so much cry against this evil in our society.
But, then until now, neither the courts nor those in the
medical world have come up with the exact definition of
pedophilia. I have two standard dictionaries—Webster and
another one an English dictionary, Random Dictionary and
the term "pedophilia" is not there. Although, we have read
so much literature, articles about pedophilia and it is
commonly understood as we might say a special
predilection for children. "Pedo" coming from the Greek
word "pedo." But whether this would apply to children of
either sex, say male or female is not also very clear. It is a
sexual desire for its very unusual out of the ordinary desire
or predilection for children. Now, in our country, this has
gain[ed] notoriety because of activities of foreigners in
Pagsanjan and even in Cebu. But most of the victims I have
yet to hear of another victim than male. Of course,
satisfaction of sexual desire on female, young female, we
have instances of adults who are especially attracted to the
young female children, say below the ages of 12 or 15 if you
can still classify these young female children. So our first
problem is whether pedophilia would apply only to male
victims or should it also apply to female victims?
I am trying to make this distinction because we have already
a law in our jurisdiction. I refer to the Revised Penal Code
where sexual intercourse with a child below 12
automatically becomes statutory rape whether with or
without consent. In other words, force or intimidation is not
a necessary element. If a person commits sexual
intercourse with a child below 12, then he automatically has
committed statutory rape and the penalty is stiff. Now, we
have really to also think deeply about our accepted
definition of sexual intercourse. Sexual intercourse is
committed against… or is committed by a man and a
woman. There is no sexual intercourse between persons of
the same sex. The sexual intercourse, as defined in the
standard dictionaries and also as has been defined by our
courts is always committed between a man and a woman.
And so if we pass here a law, which would define pedophilia
and include any sexual contact between persons of
different or the same sexes, in other words, homosexual or
heterosexual, then, we will have to be overhauling our
existing laws and jurisprudence on sexual offenses.
For example, we have in our Revised Penal Code, qualified
seduction, under Article 337 of the Revised Penal Code,
which provides that the seduction of a virgin over 12 and
under 18 committed by any person in public authority:
priest, house servant, domestic guardian, teacher, or
person who in any capacity shall be entrusted with the
education or custody of the woman seduced, shall be
punished by etc. etc. Now, if we make a general definition
of pedophilia then shall that offender, who, under our
present law, is guilty of pedophilia? I understand that the
consensus is to consider a woman or a boy below 15 as a
child and therefore a potential victim of pedophilia. And so,
what will happen to our laws and jurisprudence on
seduction? The Chairman earlier mentioned that possible
we might just amend our existing provisions on crimes
against chastity, so as to make it stiffer, if the victim or the
offended party is a minor below a certain age, then there is
also seduction of a woman who is single or a widow of good
reputation, over 12 but under 18. Seduction, as understood
in law, is committed against a woman, in other words, a
man having sexual intercourse with a woman. That is how
the term is understood in our jurisprudence. So I believe
Mr. Chairman, that we should rather act with caution and
circumspection on this matter. Let us hear everybody
because we are about to enact a law which would have very
drastic and transcendental effects on our existing laws. In
the first place, we are not yet very clear on what is
pedophilia. We have already existing laws, which would
punish these offenses.
As a matter of fact, for the information of this Committee,
in Cebu, I think that it is the first conviction for an offense
which would in our understanding amounts to pedophilia.
A fourteen-year old boy was the victim of certain sexual acts
committed by a German national. The fiscal came up with
an information for acts of lasciviousness under the Revised
Penal Code and that German national was convicted for the
offense charged. Now, the boy was kept in his rented house
and subjected to sexual practices very unusual, tantamount
to perversion but under present laws, these offenses such
as... well, it's too, we might say, too obscene to describe,
cannot be categorized under our existing laws except acts
of lasciviousness because there is no sexual intercourse.
Sexual intercourse in our jurisdiction is as I have stated
earlier, committed by a man and a woman. And it is a sexual
contact of the organ of the man with the organ of the
woman. But in the case of this German national, if there was
any sexual contact it was between persons of the same sex.
So, he was convicted. He's a detention prisoner and there is
also deportation proceeding against him. In fact, he has
applied for voluntary deportation, but he is to serve a
penalty of prision correccional to prision mayor. So, that is
the situation I would say in which we find ourselves. I am
loath to immediately act on this agitation for a definition of
a crime of pedophilia. There is no I think this Committee
should study further the laws in other countries. Whether
there is a distinct crime known as pedophilia and whether
this can be committed against a person of the same sex or
of another sex, or whether this crime is separate and
distinct from the other crimes against honor or against
chastity in their respective jurisdictions. This is a social evil
but it has to be addressed with the tools we have at hand.
If we have to forge another tool or instrument to find to
fight this evil, then I think we should make sure that we are
not doing violence for destroying the other existing tools we
have at hand. And maybe there is a need to sharpen the
tools we have at hand, rather than to make a new tool to
fight this evil. Thank you very much, Mr. Chairman.[111]
Moreover, contrary to the claim of Justice Caguioa, We note
that the Information charging Tulagan with rape by sexual
assault in Criminal Case No. SCC-6210 not only distinctly
stated that the same is "Contrary to Article 266-A, par. 2 of
the Revised Penal Code in relation to R.A. 7610," but it also
sufficiently alleged all the elements of violation of Section
5(b) of R.A. No. 7610, in this wise:
Elements of Section 5(b) of Information in Criminal Case
R.A. No. 7610 No. SCC-6210
1. The accused commits the 1. That sometime in the
act of sexual intercourse or month of September 2011 x x
lascivious conduct. x, the abovenamed accused
[Tulagan] x x x did then and
there, willfully, unlawfully
and feloniously inserted his
finger into the vagina of said
AAA, against her will and
consent.
2. The said act is performed 2. [T]he above-name
with a child exploited in accused, by means of force,
prostitution or other sexual intimidation and with abuse
abuse. Section 5 of R.A. No. of superior strengthforcibly
7610 deems as "children laid complainant AAA, x x x in
exploited in prostitution and a cemented pavement, and x
other sexual abuse" those x x inserted his finger into the
children, whether male or vagina of said AAA, against
female, (1) who for money, her will and consent.
profit or any other
consideration or (2) due to
the coercion or influenceof
any adult, syndicate or group,
indulge in sexual intercourse
or lascivious conduct.
3. The child, whether male or 3. AAA is a 9-year-old minor.
female, is below 18 years of
age.
In Quimvel, We ruled that the Information in Olivarez v.
Court of Appeals[112] is conspicuously couched in a similar
fashion as the Information in the case against Quimvel. We
explained that the absence of the phrase "exploited in
prostitution or subject to other sexual abuse" or even a
specific mention of "coercion" or "influence" was never a
bar for us to uphold the finding of guilt against an accused
for violation of R.A. No. 7610. Just as We held that it was
enough for the Information in Olivarez to have alleged that
the offense was committed by means of ''force and
intimidation," We must also rule that the Information in the
case at bench does not suffer from the alleged infirmity.
We likewise held in Quimvel that the offense charged can
also be elucidated by consulting the designation of the
offense as appearing in the Information. The designation of
the offense is a critical element required under Sec. 6, Rule
110 of the Rules of Court for it assists in apprising the
accused of the offense being charged. Its inclusion in the
Information is imperative to avoid surprise on the accused
and to afford him of opportunity to prepare his defense
accordingly. Its import is underscored in this case where the
preamble states that the crime charged is "Acts of
Lasciviousness in relation to Section 5(b) of R.A. No. 7610."
We held that for purposes of determining the proper
charge, the term "coercion or influence" as appearing in the
law is broad enough to cover "force and intimidation" as
used in the Information; in fact, as these terms are almost
used synonymously, it is then "of no moment that the
terminologies employed by R.A. No. 7610 and by the
Information are different."[113] We also ruled that a child is
considered one "exploited in prostitution or subjected to
other sexual abuse" when the child indulges in sexual
intercourse or lascivious conduct "under the coercion or
influence of any adult."[114] Thus, We rule that the above-
quoted Information in Criminal Case No. SCC-6210
sufficiently informs Tulagan of the nature and cause of
accusation against him, namely: rape by sexual assault
under paragraph 2, Article 266-A of the RPC in relation to
R.A. No. 7610.
We also take this opportunity to address the position of
Justice Caguioa and Justice Perlas-Bernabe, which is based
on dissenting opinions[115] in Olivarez and Quimvel. Citing
the Senate deliberations, the dissenting opinions explained
that the phrase "or any other consideration or due to
coercion or influence of any adult, syndicate or group,"
under Section 5(b) of R.A. No. 7610, was added to merely
cover situations where a child is abused or misused for
sexual purposes without any monetary gain or profit. The
dissenting opinions added that this was significant because
profit or monetary gain is essential in prostitution; thus, the
lawmakers intended that in case all 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.[116]
We partly disagree with the foregoing view. The
amendment introduced by Senator Eduardo Angara not
only covers cases wherein the child is misused for sexual
purposes not because of money or profit, and coercion or
intimidation, but likewise expanded the scope of Section 5
of R.A. No. 7610 to cover not just child prostitution but also
"other sexual abuse" in the broader context of child abuse,"
thus:
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 a loophole in this section.
This 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, etcetera.
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 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.
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
probably "child abuse"?
Senator Angara. Yes, Mr. President.
The President Pro Tempore. Is that not defined on line 2,
page 6?
Senator Angara. Yes, Mr. President. Child prostitution and
other sexual abuse.
The President Pro Tempore. Subject to rewording. Is there
any objection? [Silence]
Hearing none, the amendment is approved. Any other
amendments?[117]
Indeed, the Angara amendment explains not just the
rationale of the body of Section 5(b) of R.A. No. 7610 to
cover a loophole or situation where the minor may have
been coerced or intimidated to indulge in lascivious
conduct. The amendment of President Pro Tempore Laurel,
however, also affects the title of Article III, Section 5 of R.A.
No. 7610, i.e., "Child Prostitution and Other Sexual Abuse."
It is settled that if a chapter and section heading has been
inserted merely for convenience or reference, and not as
integral part of the statute, it should not be allowed to
control interpretation.[118] To our mind, however, the
amendment highlights the intention to expand the scope of
Section 5 to incorporate the broader concept of "child
abuse," which includes acts of lasciviousness under Article
336 of the RPC committed against "children," as defined
under Section 3 of R.A. No. 7610. Records of the Senate
deliberation show that "child prostitution" was originally
defined as "minors, whether male or female, who, for
money or profit, indulge in sexual intercourse or lascivious
conduct are deemed children exploited in
prostitution."[119] With the late addition of the phrase "or
subject to other sexual abuse," which connotes "child
abuse," and in line with the policy of R.A. No. 7610 to
provide stronger deterrence and special protection of
children against child abuse, We take it to mean that
Section 5(b) also intends to cover those crimes of child
sexual abuse already punished under the RPC, and not just
those children exploited in prostitution or subjected to
other sexual abuse, who are coerced or intimidated to
indulge in sexual intercourse or lascivious conduct.
This is the reason why We disagree with the view of Justice
Perlas-Bernabe that the first proviso under Section 5(b) —
which provides that "when the victim is under twelve (12)
years of age, the perpetrators shall be prosecuted under x x
x the Revised Penal Code, for rape or lascivious conduct, as
the case may be" — is a textual indicator that R.A. No. 7610
has a specific application only to children who are pre-
disposed to "consent" to a sexual act because they are
"exploited in prostitution or subject to other sexual abuse,"
thereby negating the ponente's theory of general
applicability.
In People v. Larin,[120] We held that 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. Under R.A. No. 7610, children are
"persons below eighteen years of age or those unable to
fully take care of themselves or protect themselves from
abuse, neglect, cruelty, exploitation or discrimination
because of their age or mental disability or condition."
Noting 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 any lascivious
conduct, We ruled that Section 5(b) of R.A. No. 7610
penalizes not only child prostitution, the essence of which
is profit, but also other forms of sexual abuse of children.
We stressed that this is clear from the deliberations of the
Senate, and that the law does not confine its protective
mantle only to children under twelve (12) years of age.
In Amployo v. People,[121] citing Larin, We observed that
Section 5 of R.A. No. 7610 does not merely cover a situation
of a child being abused for profit, but also one in which a
child engages in any lascivious conduct through coercion or
intimidation. As case law has it, intimidation need not
necessarily be irresistible. It is sufficient that some
compulsion equivalent to intimidation annuls or subdues
the free exercise of the will of the offended party. This is
especially true in the case of young, innocent and immature
girls who could not be expected to act with equanimity of
disposition and with nerves of steel. Young girls cannot be
expected to act like adults under the same circumstances or
to have the courage and intelligence to disregard the threat.
In Olivarez vs. Court of Appeals,[122] We held that a child is
deemed subjected to other sexual abuse when the child
indulges in lascivious conduct under the coercion or
influence of any adult. We found that the 16-year old victim
in that case was sexually abused because she was coerced
or intimidated by petitioner to indulge in a lascivious
conduct. We stated that it is inconsequential that the sexual
abuse occurred only once because, as expressly provided in
Section 3(b) of R.A. 7610, the abuse may be habitual or not.
We also observed that Article III of R.A. 7610 is captioned as
"Child Prostitution and Other Sexual Abuse" because
Congress really intended to cover a situation where the
minor may have been coerced or intimidated into lascivious
conduct, not necessarily for money or profit, hence, the law
covers not only child prostitution but also other forms of
sexual abuse.
In Garingarao v. People,[123] We 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. We further ruled that it is
inconsequential that sexual abuse under R.A. No. 7610
occurred only once. Section 3(b) of R.A. No. 7610 provides
that the abuse may be habitual or not. Hence, the fact that
the offense occurred only once is enough to hold an
accused liable for acts of lasciviousness under R.A. No.
7610.
In Quimvel,[124] We stressed that Section 5(a) of R.A. No.
7610 punishes acts pertaining to or connected with child
prostitution wherein the child is abused primarily for profit.
On the other hand, paragraph (b) punishes sexual
intercourse or lascivious conduct committed on a child
subjected to other sexual abuse. It covers not only a
situation where a child is abused for profit but also one in
which a child, through coercion, intimidation or influence,
engages in sexual intercourse or lascivious conduct. Hence,
the law punishes not only child prostitution but also other
forms of sexual abuse against children. This is even made
clearer by the deliberations of the Senate, as cited in the
landmark ruling of People v. Larin. We also added that the
very definition of "child abuse" under Section 3(b) of R.A.
No. 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 Section 5(b)
of R.A. No. 7610 occurs even though the accused
committed sexual abuse against the child victim only once,
even without a prior sexual offense.
In Caoili,[125] We reiterated that R.A. No. 7610 finds
application when the victims of abuse, exploitation or
discrimination are children or those "persons below 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." It has been settled that
Section 5(b) of R.A. No. 7610 does not require a prior or
contemporaneous abuse that is different from what is
complained of, or that a third person should act in concert
with the accused. Section 5 of R.A. No. 7610 does not
merely cover a situation of a child being abused for profit,
but also one in which a child is coerced to engage in
lascivious conduct.
Meanwhile, Justice Marvic Mario Victor F. Leonen partly
agrees with the ponencia that insertion of a finger into a
minor's vagina deserves a higher penalty than prision
mayor under Article 266-A, paragraph 2 in relation to
Article 266-B of the RPC. However, he asserts that non
consensual insertion of a finger in another's genitals is rape
by carnal knowledge under Article 266-A, paragraph 1 of
the RPC. He also reiterates his view in People v.
Quimvel that Article 336 of the RPC has already been
rendered ineffective with the passage of R.A. No. 8353.
We stand by our ruling in Caoili that the act of inserting a
finger in another's genitals cannot be considered rape by
carnal knowledge, thus:
The language of paragraphs 1 and 2 of Article 266-A of the
RPC, as amended by R.A. No. 8353. provides the elements
that substantially differentiate the two forms of rape, i.e.,
rape by sexual intercourse and rape by sexual assault. It is
through legislative process that the dichotomy between
these two modes of rape was created. To broaden the
scope of rape by sexual assault, by eliminating its legal
distinction from rape through sexual intercourse, calls for
judicial legislation which We cannot traverse without
violating the principle of separation of powers. The Court
remains steadfast in confining its powers within the
constitutional sphere of applying the law as enacted by the
Legislature.
In fine, given the material distinctions between the two
modes of rape introduced in R.A. No. 8353, the variance
doctrine cannot be applied to convict an accused of rape by
sexual assault if the crime charged is rape through sexual
intercourse, since the former offense cannot be considered
subsumed in the latter.[126]
We also maintain the majority ruling in Quimvel that Sec. 4
of R.A. No. 8353 did not expressly repeal Article 336 of the
RPC for if it were the intent of Congress, it would have
expressly done so. Apropos is the following disquisition
in Quimvel:
x x x Rather, the phrase in Sec. 4 states: "deemed amended,
modified, or repealed accordingly" qualifies "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 [RA 8353]."
As can be read, repeal is not the only fate that may befall
statutory provisions that are inconsistent with RA 8353. It
may be that mere amendment or modification would
suffice to reconcile the inconsistencies resulting from the
latter law's enactment. In this case, Art. 335 of the RPC,
which previously penalized rape through carnal knowledge,
has been replaced by Art. 266-A. Thus, the reference by Art.
336 of the RPC to any of the circumstances mentioned on
the erstwhile preceding article on how the crime is
perpetrated should now refer to the circumstances covered
by Art. 266-A as introduced by the Anti-Rape Law.
We are inclined to abide by the Court's long-standing policy
to disfavor repeals by implication for laws are presumed to
be passed with deliberation and full knowledge of all laws
existing on the subject. The failure to particularly mention
the law allegedly repealed indicates that the intent was not
to repeal the said law, unless an irreconcilable
inconsistency and repugnancy exists in the terms of the new
and old laws. Here, RA 8353 made no specific mention of
any RPC provision other than Art. 335 as having been
amended, modified, or repealed. And as demonstrated, the
Anti Rape Law, on the one hand, and Art. 336 of the RPC, on
the other, are not irreconcilable. The only construction that
can be given to the phrase "preceding article" is that Art.
336 of the RPC now refers to Art. 266-A in the place of the
repealed Art. 335. It is, therefore, erroneous to claim that
Acts of Lasciviousness can no longer be prosecuted under
the RPC.
It is likewise incorrect to claim that Art. 336 had been
rendered inoperative by the Anti-Rape Law and argue in the
same breath the applicability of Sec. 5(b) of RA 7610. x x x
xxxx
If 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.
The decriminalization of Acts of Lasciviousness under the
RPC, as per Justice Leonen's theory, would not sufficiently
be supplanted by RA 7610 and RA 9262, otherwise known
as the Anti-Violence Against Women and their Children Law
(Anti-VAWC Law). Under RA 7610, only minors can be
considered victims of the enumerated forms of abuses
therein. Meanwhile, the Anti-VAWC law limits the victims
of sexual abuses covered by the RA to a wife, former wife,
or any women with whom the offender has had a dating or
sexual relationship, or against her child. Clearly, these laws
do not provide ample protection against sexual offenders
who do not discriminate in selecting their victims. One does
not have to be a child before he or she can be victimized by
acts of lasciviousness. Nor does one have to be a woman
with an existing or prior relationship with the offender to
fall prey. Anyone can be a victim of another's lewd design.
And if the Court will subscribe to Justice Leonen's position,
it will render a large portion of our demographics (i.e., adult
females who had no prior relationship to the offender, and
adult males) vulnerable to sexual abuses. [127]
To be sure, deliberation of Senate Bill No. 950 which
became R.A. No. 8353 reveals the legislative intent not to
repeal acts of lasciviousness under Article 336 of the RPC as
a crime against chastity, but only to reclassify rape as a
crime against persons, thus:
Senator Enrile: x x x As I indicated last week, I will support
this bill but I would like to clarify some points just to set the
matters into the Record.
Mr. President, the first thing I would like to find out is the
status of this bill — whether this is going to be a statutory
crime or a part of the crimes defined in the Revised Penal
Code.
There is a big difference between these two concepts, Mr.
President, because all of us who have studied law know in
our course in Criminal Law two of crimes: Crimes which we
call malum prohibitum which are statutory crimes andmala
in se or crimes that would require intent. That is why we
always recite the principle that actus non facit reum, nisi
mens sit rea. Because in every crime defined in the Revised
Penal Code, we required what they call a mens rea,
meaning intent to commit a crime in almost all cases:
attempted, frustrated and consummated.
Now, am I now to understand, Madam Sponsor, that this
type of crime will be taken out of the Revised Penal Code
and shall be covered by a special law making it a statutory
crime rather than a crime that is committed with the
accompaniment of intent.
Senator Shahani: Mr. President, we will recall that this was
the topic of prolonged interpellations not only by Senator
Enrile, but also by Senator Sotto. In consultation with
Senator Roco - we were not able to get in touch with
Senator Santiago — we felt that the purpose of this bill
would be better served if we limited the bill to amending
Article 335 of the Revised Penal Code, at the same time
expanding the definition of rape, reclassifying the same as
a crime against persons, providing evidentiary
requirements and procedures for the effective prosecution
of offenders, and institutionalizing measures for the
protection and rehabilitation of rape victims and for other
purposes. In other words, it stays within the Revised Penal
Code, and rape is associated with criminal intent.
Having said this, it means that there will be a new chapter.
They are proposing a new chapter to be known as Chapter
III on rape, under Title 8 of the Revised Penal Code. There it
remains as a crime against persons and no longer as a crime
against chastity, but the criminal intent is retained.
Senator Enrile. So, the distinction between rape as a
crime, although now converted from a crime against
chastity to a crime against persons, and seduction and act
of lasciviousness would be maintained. Am I correct in
this, Mr. President?
Senator Shahani. That is correct, Mr. President.[128]
In light of the foregoing disquisition, We hold that Tulagan
was aptly prosecuted for sexual assault under paragraph 2,
Article 266-A of the RPC in Criminal Case. No. SCC-6210
because it was alleged and proven that AAA was nine (9)
years old at the time he inserted his finger into her vagina.
Instead of applying the penalty under Article 266-B of the
RPC, which is prision mayor, the proper penalty should be
that provided in Section 5(b), Article III of R.A. No. 7610,
which is reclusion temporal in its medium period. This is
because AAA was below twelve (12) years of age at the time
of the commission of the offense, and that the act of
inserting his finger in AAA's private part undeniably
amounted to "lascivious conduct."[129] Hence, the proper
nomenclature of the offense should be Sexual Assault
under paragraph 2, Article 266-A of the RPC, in relation to
Section 5(b), Article III of R.A. No. 7610.
Applying the Indeterminate Sentence Law, the maximum
term of the indeterminate penalty shall be that which could
be properly imposed under the law, which is fifteen (15)
years, six (6) months and twenty (20) days of reclusion
temporal. On the other hand, the minimum term shall be
within the range of the penalty next lower in degree, which
is reclusion temporal in its minimum period, or twelve (12)
years and one (1) day to fourteen (14) years and eight (8)
months. Hence, Tulagan should be meted the
indeterminate sentence of twelve (12) years, ten (10)
months and twenty-one (21) days of reclusion temporal, as
minimum, to fifteen (15) years, six (6) months and twenty
(20) days of reclusion temporal, as maximum.
In Criminal Case No. SCC-6211 for statutory rape, We affirm
that Tulagan should suffer the penalty of reclusion
perpetua in accordance with paragraph 1(d), Article 266-A
in relation to Article 266-B of the RPC, as amended by R.A.
No. 8353.
Damages
For the sake of consistency and uniformity, We deem it
proper to address the award of damages in cases of Sexual
Assault under paragraph 2, Article 266-A of the RPC in
relation to Section 5(b) of R.A. No. 7610, and Acts of
Lasciviousness under Article 336 of the RPC in relation to
Section 5(b) of R.A. No. 7610. Considering that the
imposable penalties for the said two crimes are within the
range of reclusion temporal, the award of civil indemnity
and moral damages should now be fixed in the amount of
P50,000.00 each. The said amount is based on People v.
Jugueta[130] which awards civil indemnity and moral
damages in the amount of P50,000.00 each in cases of
homicide where the imposable penalty is reclusion
temporal. In case exemplary damages are awarded due to
the presence of any aggravating circumstance, to set a
public example, or to deter elders who abuse and corrupt
the youth, then an equal amount of P50,000.00 should
likewise be awarded.
The said award of civil indemnity, moral damages and
exemplary damages should be distinguished from those
awarded in cases of: (1) Acts of Lasciviousness under Article
336 of the RPC where the imposable penalty is prision
correccional, the amount of civil indemnity and moral
damages should now be fixed at P20,000.00 while
exemplary damages, if warranted, should also be
P20,000.00; (2) Sexual Assault under paragraph 2, Article
266-A of the RPC where the imposable penalty is prision
mayor, the award of civil indemnity and moral damages
should be fixed at P30,000.00 each, while the award of
exemplary damages, if warranted, should also be
P30,000.00 pursuant to prevailing jurisprudence;[131] and
(3) Lascivious conduct under Section 5(b) of R.A. No. 7610,
when the penalty of reclusion perpetua is imposed, and the
award of civil indemnity, moral damages and exemplary
damages is P75,000.00 each.
The justification for the award of civil indemnity, moral
damages and exemplary damages was discussed in People
v. Combate,[132] as follows:
First, civil indemnity ex delicto is the indemnity authorized
in our criminal law for the offended party, in the amount
authorized by the prevailing judicial policy and apart from
other proven actual damages, which itself is equivalent to
actual or compensatory damages in civil law. This award
stems from Article 100 of the RPC which states, "Every
person criminally liable for a felony is also civilly liable."
Civil liability ex delicto may come in the form of restitution,
reparation, and indemnification. Restitution is defined as
the compensation for loss; it is full or partial compensation
paid by a criminal to a victim ordered as part of a criminal
sentence or as a condition for probation. Likewise,
reparation and indemnification are similarly defined as the
compensation for an injury, wrong, loss, or damage
sustained. Clearly, all of these correspond to actual or
compensatory damages defined under the Civil Code.
xxxx
The second type of damages the Court awards are moral
damages, which are also compensatory in nature. Del
Mundo v. Court of Appeals expounded on the nature and
purpose of moral damages, viz.:
Moral damages, upon the other hand, may be awarded to
compensate one for manifold injuries such as physical
suffering, mental anguish, serious anxiety, besmirched
reputation, wounded feelings and social humiliation. These
damages must be understood to be in the concept of
grants, not punitive or corrective in nature, calculated to Section 5(b) of R.A. No. 7610, Sexual Assault under
compensate the claimant for the injury suffered. Although paragraph 2, Article 266-A of the RPC, and Sexual Assault in
incapable of exactness and no proof of pecuniary loss is relation to Section 5(b) of R.A. No. 7610, are as follows:
necessary in order that moral damages may be awarded, Civil Moral Exemplary
Crime
the amount of indemnity being left to the discretion of the Indemnity Damages Damages[134]
court, it is imperative, nevertheless, that (1) injury must Acts of P20,000.00 P20,000.00 P20,000.00
have been suffered by the claimant, and (2) such injury Lasciviousness
must have sprung from any of the cases expressed in Article under Article
2219 and Article 2220 of the Civil Code x x x. 336 of the RPC
Similarly, in American jurisprudence, moral damages are [Victim is of
treated as "compensatory damages awarded for mental legal age]
pain and suffering or mental anguish resulting from a Acts of P50,000.00 P50,000.00 P50,000.00
wrong." They may also be considered and allowed "for lasciviousness
resulting pain and suffering, and for humiliation, indignity, in relation to
and vexation suffered by the plaintiff as result of his or her Section 5(b) of
assailant's conduct, as well as the factors of provocation, R.A. No. 7610
the reasonableness of the force used, the attendant [Victim is a
humiliating circumstances, the sex of the victim, [and] child under 12
mental distress." years old or is
demented]
The rationale for awarding moral damages has been Sexual Abuse P75,000.00 (If P75,000.00 (If P75,000.00 (If
explained in Lambert v. Heirs of Rey Castillon: "[T]he award or Lascivious penalty penalty penalty
of moral damages is aimed at a restoration, within the limits Conduct under imposed imposed imposed
possible, of the spiritual status quo ante; and therefore, it Section 5(b) of is reclusion is reclusion is reclusion
must be proportionate to the suffering inflicted." R.A. No. 7610 perpetua) perpetua) perpetua)
Corollarily, moral damages under Article 2220 of the Civil [Victim is a P50,000.00 (If P50,000.00 (If P50,000.00 (If
Code also does not fix the amount of damages that can be child 12 years penalty penalty penalty
awarded. It is discretionary upon the court, depending on old and below imposed is imposed is imposed is
the mental anguish or the suffering of the private offended 18, or above within the within the within the
party. The amount of moral damages can, in relation to civil 18 under range range range
indemnity, be adjusted so long as it does not exceed the special of reclusion of reclusion of reclusion
award of civil indemnity. circumstances] temporal temporal temporal
medium) medium) medium)
xxxx
Sexual Assault P30,000.00 P30,000.00 P30,000.00
Being corrective in nature, exemplary damages, therefore, under Article
can be awarded, not only due to the presence of an 266-A(2) of the
aggravating circumstance, but also where the RPC [Victim is
circumstances of the case show the highly reprehensible or of legal age]
outrageous conduct of the offender. In much the same way Sexual Assault P50,000.00 P50,000.00 P50,000.00
as Article 2230 prescribes an instance when exemplary under Article
damages may be awarded, Article 2229, the main provision, 266-A(2) of the
lays down the very basis of the award. Thus, in People v. RPC in relation
Matrimonio, the Court imposed exemplary damages to to Section 5(b)
deter other fathers with perverse tendencies or aberrant of R.A. No.
sexual behavior from sexually abusing their own daughters. 7610 [Victim is
Also, in People v. Cristobal, the Court awarded exemplary a child under
damages on account of the moral corruption, perversity 12 years old or
and wickedness of the accused in sexually assaulting a is demented]
pregnant married woman. In People of the Philippines v. It is settled that an award of civil indemnity ex delicto is
Cristino Cañada, People of the Philippines v. Pepito Neverio
mandatory upon a finding of the fact of rape, and moral
and People of the Philippines v. Lorenzo Layco, Sr., the Court damages may be automatically awarded in rape cases
awarded exemplary damages to set a public example, to
without need of proof of mental and physical suffering. The
serve as deterrent to elders who abuse and corrupt the award of exemplary damages is also called for to set a public
youth, and to protect the latter from sexual abuse.[133] example and to protect the young from sexual abuse. As to
In summary, the award of civil indemnity, moral damages the civil liability in Criminal Case No. SCC-6210 for sexual
and exemplary damages in Acts of Lasciviousness under assault under paragraph 2, Article 266-A of the RPC, in
Article 336 of the RPC, Acts of Lasciviousness in relation to relation to Section 5(b) of R.A. No. 7610, Tulagan should,
Section 5(b) of R.A. No. 7610, Lascivious Conduct under therefore, pay AAA the amounts of P50,000.00 as civil
indemnity, P50,000.00 as moral damages, and P50,000.00
as exemplary damages.
Anent the award of damages in Criminal Case No. SCC-6211
for statutory rape, We modify the same in line with the
ruling in People v. Jugueta,[135] where We held that "when
the circumstances surrounding the crime call for the
imposition of reclusion perpetua only, there being no
ordinary aggravating circumstance, the proper amounts
should be P75,000.00 as civil indemnity, P75,000.00 as
moral damages, and P75,000.00 as exemplary damages."
Also in consonance with prevailing jurisprudence, the
amount of damages awarded shall earn interest at the rate
of six percent (6%) per annum from the finality of this
judgment until said amounts are fully paid.
Over and above the foregoing, We observe that despite the
clear intent of R.A. No. 7610 to provide for stronger
deterrence and special protection against child abuse, the
penalty for violation of Section 5(b) of R.A. No. 7610
[reclusion temporal medium] when the victim is under 12
years old is lower compared to the penalty [reclusion
temporal medium to reclusion perpetua] when the victim is
12 years old and below 18. The same holds true if the crime
of acts of lasciviousness is attended by an aggravating
circumstance or committed by persons under Section
31,[136] Article XII of R.A. No. 7610, in which case, the
imposable penalty is reclusion perpetua. In contrast, when
no mitigating or aggravating circumstance attended the
crime of acts of lasciviousness, the penalty therefor when
committed against a child under 12 years old is aptly higher
than the penalty when the child is 12 years old and below
18. This is because, applying the Indeterminate Sentence
Law, the minimum term in the case of the younger victims
shall be taken from reclusion
temporal minimum,[137] whereas as the minimum term in
the case of the older victims shall be taken from prision
mayor medium to reclusion temporal minimum.[138] It is a
basic rule in statutory construction that what courts may
correct to reflect the real and apparent intention of the
legislature are only those which are clearly clerical errors or
obvious mistakes, omissions, and misprints,[139] but not
those due to oversight, as shown by a review of extraneous
circumstances, where the law is clear, and to correct it
would be to change the meaning of the law.[140] Thus, a
corrective legislation is the proper remedy to address the
noted incongruent penalties for acts of lasciviousness
committed against a child.
We further note that R.A. No. 8353 did not expressly repeal
Article 336 of the RPC, as amended. Section 4 of R.A. No.
8353 only states that Article 336 of the RPC, as amended,
and all laws, rules and regulations inconsistent with or
contrary to the provisions thereof are deemed amended,
modified or repealed, accordingly. There is nothing
inconsistent between the provisions of Article 336 of the
RPC, as amended, and R.A. No. 8353, except in sexual
assault as a form of rape. To recall, R.A. No. 8353 only
modified Article 336 of the RPC, as follows: (1) by carrying
over to acts of lasciviousness the additional
circumstances[141] applicable to rape, viz.: threat and
fraudulent machinations or grave abuse of authority; (2) by
retaining the circumstance that the offended party is under
12 years old, and including dementia as another one, in
order for acts of lasciviousness to be considered as
statutory, wherein evidence of force or intimidation is
immaterial because the offended party who is under 12
years old or demented, is presumed incapable of giving
rational consent; and (3) by removing from the scope of acts
of lasciviousness and placing under the crime of rape by
sexual assault the specific lewd act of inserting the
offender's penis into another person's mouth or anal
orifice, or any instrument or object into the genital or anal
orifice of another person. Hence, Article 336 of the RPC, as
amended, is still a good law despite the enactment of R.A.
No. 8353 for there is no irreconcilable inconsistency
between their provisions. When the lascivious act is not
covered by R.A. No. 8353, then Article 336 of the RPC is
applicable, except when the lascivious conduct is covered
by R.A. No. 7610.
We are also not unmindful of the fact that the accused who
commits acts of lasciviousness under Article 336 of the RPC,
in relation to Section 5 (b) of R.A. No. 7610, suffers the more
severe penalty of reclusion temporal in its medium period,
than the one who commits Rape Through Sexual Assault,
which is merely punishable by prision mayor.
In People v. Chingh,[142] We noted that the said fact is
undeniably unfair to the child victim, and it was not the
intention of the framers of R.A. No. 8353 to have disallowed
the applicability of R.A. No. 7610 to sexual abuses
committed to children. We held that despite the passage of
R.A. No. 8353, R.A. No. 7610 is still a good law, which must
be applied when the victims are children or those "persons
below eighteen (18) years of age or those over but are
unable to fully take care of themselves or protect
themselves from abuse, neglect, cruelty, exploitation or
discrimination because of a physical or mental disability or
condition."[143]
In Dimakuta, We added that where the lascivious conduct
is covered by the definition under R.A. No. 7610, where the
penalty is reclusion temporal medium and the said act is,
likewise, covered by sexual assault under Art. 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 the
higher penalty of reclusion temporal medium, if the
offended party is a child. 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 18 years old 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 of sexual abuse under R.A. No. 7610.
The reason for the foregoing is that with respect to
lascivious conduct, R.A. No. 7610 affords special protection
and stronger deterrence against child abuse, as compared
to R.A. No. 83.53 which specifically amended the RPC
provisions on rape.
Finally, despite the enactment of R.A. No. 8353 more than
20 years ago in 1997, We had been consistent in our rulings
in Larin, Olivarez, and Garingarao, Quimvel and Caoili, all of
which uphold the intent of R.A. No. 7610 to provide special
protection of children and stronger deterrence against child
abuse. Judicial stability compels to stand by, but not to
abandon, our sound rulings: [1] that Section 5(b), Article III
of R.A. No. 7610 penalizes not only child prostitution, the
essence of which is profit, but also other forms of sexual
abuse wherein a child engages in sexual intercourse or
lascivious conduct through coercion or influence; and [2]
that it is inconsequential that the sexual abuse occurred
only once. Our rulings also find textual anchor on Section 5,
Article III of R.A. No. 7610, which explicitly states that a child
is deemed "exploited in prostitution or subjected to other
sexual abuse," when the child indulges in sexual intercourse
or lascivious conduct for money, profit or any other
consideration, or under the coercion or influence of any
adult, syndicate or group, as well as on Section 3(b), Article
I thereof, which clearly provides that the term "child abuse"
refers to the maltreatment, whether habitual or not, of the
child which includes sexual abuse.
If the lawmakers disagreed with our interpretation, they
could have easily amended the law, just like what they did
when they enacted R.A. No. 10591[144] [Amendment on the
provision of use of firearm in the commission of a crime],
R.A. No. 10951[145] [Amendments to certain penalty and
fines under the Revised Penal Code] and R.A. No.
10707[146] [Amendments to the Probation Law] after We
rendered People v. Ladjaalam,[147] Corpuz v.
People,[148]Colinares v. People and Dimakuta v. People,
respectively, and their silence could only be construed as
acquiescence to our rulings.
WHEREFORE, PREMISES CONSIDERED, the appeal
is DENIED. The Joint Decision dated February 10, 2014 of
the Regional Trial Court in Criminal Case Nos. SCC-6210 and
SCC-6211, as affirmed by the Court of Appeals Decision
dated August 17, 2015 in CA-G.R. CR-HC No. 06679,
is AFFIRMED with MODIFICATIONS. We find accused-
appellant Salvador Tulagan:
1.Guilty beyond reasonable doubt of Sexual Assault under
paragraph 2, Article 266-A of the Revised Penal Code, in
relation to Section 5(b) of Republic Act No. 7610, in
Criminal Case No. SCC-6210, and is sentenced to suffer
the indeterminate penalty of twelve (12) years, ten (10)
months and twenty-one (21) days of reclusion temporal,
as minimum, to fifteen (15) years, six (6) months and
twenty (20) days of reclusion temporal, as maximum.
Appellant is ORDERED to PAY AAA the amounts of
P50,000.00 as civil indemnity, P50,000.00 as moral
damages, and P50,000.00 as exemplary damages.
2.Guilty beyond reasonable doubt of Statutory Rape under
Article 266-A(1)(d) and penalized in Article 266-B of the
Revised Penal Code, in Criminal Case No. SCC-6211, and
is sentenced to suffer the penalty of reclusion
perpetua with modification as to the award of damages.
Appellant is ORDERED to PAY AAA the amounts of
P75,000.00 as civil indemnity, P75,000.00 as moral
damages, and P75,000.00 as exemplary damages.
Legal interest of six percent (6%) per annum is imposed on
all damages awarded from the date of finality of this
Decision until fully paid.
Let a copy of this Decision be furnished the Department of
Justice, the Office of the Solicitor General, the Office of the
Court Administrator, and the Presiding Justice of the Court
of Appeals, for their guidance and information, as well as
the House of Representatives and the Senate of the
Philippines, as reference for possible statutory
amendments on the maximum penalty for lascivious
conduct under Section 5(b), Article III of R.A. No. 7610 when
the victim is under 12 years of age [reclusion
temporal medium], and when the victim is 12 years old and
below 18, or 18 or older under special circumstances
[reclusion temporal medium to reclusion perpetua] under
Section 3(a) of R.A. No. 7610.
SO ORDERED.
Bersamin, (C.J.), Carpio, Del Castillo, A. Reyes, Jr.,
Gesmundo, J. Reyes, Jr., Hernando, and Carandang, JJ.,
concur.
Perlas-Bernabe, J., please see separate opinion.
Leonen, J., concurring in the result see separate opinion.
Jardeleza, J., I join separate concurring and dissenting
opinion of J. Caguioa.
Caguioa, J., please see separate concurring and dissenting
opinion.
Lazaro-Javier, J., no part.
NOTICE OF JUDGMENT
Sirs/Mesdames:
Please take notice that on March 12, 2019 a Decision, copy
attached herewith, was rendered by the Supreme Court in
the above-entitled case, the original of which was received
by this Office on April 12, 2019 at 11:10 a.m.
Very truly yours,
EDGAR O. ARICHETA
Clerk of Court
By: (SGD.) ANNA-LI R.
PAPA-GOMBIO
 Deputy Clerk of Court En House Bill No. 6265.
Banc [21] Article 266-A. Rape: When And How Committed. - Rape

is committed:
x x x x
[1] Penned by Associate Justice Amy C. Lazaro-Javier (now a 2) By any person who, under any of the circumstances
member of this Court), with Associate Justices Celia C. mentioned in paragraph 1 hereof, shall commit an act of
Librea-Leagogo and Melchor Q.C. Sadang, concurring; rollo, sexual assault by inserting his penis into another person's
pp. 2-38. mouth or anal orifice, or any instrument or object, into the
[2] CA rollo, pp. 38-50. genital or anal orifice of another person.
[3] The identity of the victim or any information to establish
[22] 771 Phil. 641 (2015).
or compromise her identity, as well as those of her [23] Id. at 670.
immediate family or household members, shall be withheld [24] Id. at 670-671.
pursuant to Republic Act No. 7610, "An Act Providing for [25] Supra note 22.
Stronger Deterrence and Special Protection Against Child [26] Id. at 668-669. (Emphasis, underscoring; italics added in
Abuse, Exploitation and Discrimination, and for Other
the original)
Purposes"; Republic Act No. 9262, "An Act Defining [27] G.R. No. 196848, August 8, 2017, 835 SCRA 107; penned
Violence Against Women and Their Children, Providing for
by Associate Justice Noel Gimenez Tijam.
Protective Measures for Victims, Prescribing Penalties [28] Id. at 153-154. (Emphasis added).
Therefor, and for Other Purposes"; Section 40 of A.M. No. [29] Supra note 27.
04-10-11-SC, known as the "Rule on Violence Against [30] Id.
Women and Their Children," effective November 15, [31] Article 266 A. Rape: When And How Committed. - Rape
2004; People v. Cabalquinto, 533 Phil. 703 (2006); and
is committed:
Amended Administrative Circular No. 83-2015 dated
1) By a man who shall have carnal knowledge of a woman
September 5, 2017, Subject: Protocols and Procedures in
under any of the following circumstances:
the Promulgation, Publication, and Posting on the Websites
a) Through force, threat, or intimidation;
of Decisions, Final Resolutions, and Final Orders Using
b) When the offended party is deprived of reason or
Fictitious Names/Personal Circumstances.
[4] CA rollo,
otherwise unconscious;
pp. 49-50.
[5] Rollo,
c) By means of fraudulent machination or grave abuse of
pp. 36-37. (Emphasis in the original)
[6] People
authority; and
v. Gahi, 727 Phil. 642 (2014).
[7] Id. at
d) When the offended party is under twelve (12) years of
658.
[8] People
age or is demented, even though none of the circumstances
v. Appegu, 429 Phil. 467,477 (2002).
[9] 695
mentioned above be present.
Phil. 576 (2012).
[10] Id. at [32] Article 266-8. Penalties. - Rape under paragraph 1 of the
588-589. (Citations omitted).
[11] People v. Barberan, et al., 788 Phil. 103, 113 (2016). next preceding article shall be punished by reclusion
[12] See People v. Ilogon, 788 Phil. 633, 643-644 (2016). perpetua. x x x.
[13] People [33] Art. 335. When and how rape is committed. — Rape is
v. Jugueta, 783 Phil. 806 (2016).
[14] Article 266-A. Rape; When And How Committed. — Rape committed by having carnal knowledge of a woman under
is Committed — any of the following circumstances:
xxxx 1. By using force or intimidation;
2) By any person who, under any of the circumstances 2. When the woman is deprived of reason or otherwise
mentioned in paragraph 1 hereof, shall commit an act of unconscious; and
sexual assault by inserting his penis into another person's 3. When the woman is under twelve years of age, even
mouth or anal orifice, or any instrument or object, into the though neither of the circumstances mentioned in the two
genital or anal orifice of another person. next preceding paragraphs shall be present.
[15]
The crime of rape shall be punished by reclusion perpetua.
Art. 336. Acts of Lasciviousness. - Any person who shall
[34] Underscoring added.
commit any act of lasciviousness upon other persons of
[35] G.R. No. 214497, April 18, 2017, 823 SCRA 192.
either sex, under any of the circumstances mentioned in the
[36] Id. See Separate Concurring Opinion and Majority
preceding article, shall be punished by prision correccional.
[16] PO3 Sombilon, Jr. v. People of the Philippines, 617 Phil. Opinion.
[37] Chinese Flour Importers Association v. Price Stabilization
187, 195-196 (2009).
[17] 496 Phil. 747 (2005). Board, 89 Phil. 439 (1951); Arenas v. City of San Carlos, 172
[18] Id. at 756. (Emphasis added). Phil. 306 (1978).
[19] See Records of the Bicameral Conference Committee on [38] Quimvel v. People, supra note 35, at 268-269. (Emphasis

the Disagreeing Provisions of Senate Bill No. 950 and House added).
[39] See Separate Concurring Opinion and Majority Opinion.
Bill No. 6265 dated February 19, 1997.
[20] Journal of the House of Representatives, Unfinished [40] Section. 3. Definition of Terms.-
Business: Second Reading of Committee Report No. 224 on (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.
[41] Item II (1) of A.M. No. 15-08-02-SC, entitled "Guidelines
for the Proper Use of the Phrase 'Without Eligibility for
Parole' in Indivisible Penaties, "dated August 4, 2015
provides:
(1) In cases where the death penalty is not warranted, there
is no need to use the phrase "without eligibility for parole"
to qualify the penalty of reclusion perpetua; it is understood
that convicted persons penalized with an indivisible penalty
are not eligible for parole; x x x
[42]
Section 2(g) of the Rules and Regulations on the
Reporting and Investigation of Child Abuse Cases states that
"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.
[43] Section 3(h) of the Rules and Regulations on the
Reporting and Investigation of Child Abuse Cases states that
"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.
[44] 560 Phil. 119 (2007); penned by Associate Justice Renato
C. Corona.
[45] Supra,
at 138.
[46] Id. at
139-140.
[47] See Separate Concurring Opinion in Quimvel v. People,
supra note 35.
[48] People
v. Brioso, 788 Phil. 292, 306 (2016).
[49] The elements of violation of the first clause of Section
5(b) of R.A. No. 7610 are: (1) the accused commits the act
of sexual intercourse or lascivious conduct; (2) the act is
performed with a child exploited in prostitution or other
sexual abuse; and (3) the child, whether male or female, is
12 years old or below 18. On the other hand, the elements
of statutory rape under paragraph 1 (d), Article 266-A of the
RPC are: (1) the offender is a man; (2) the offender shall
have carnal knowledge of a woman; and (3) the offended
party is under 12 years of age or is demented.
[50] 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 in the
preceding article, shall be punished by prision correccional.
[51] Section 5. Child Prostitution and Other Sexual Abuse. —
Children, whether male or female, who for money, profit,
or any other consideration, or due to 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.
[52]Article 17. Principals. -The following are considered
principals:
1. Those who take a direct part in the execution of the act;
2. Those who directly force or induce others to commit it;
3. Those who cooperate in the commission of the offense
by another act without which it would not have been
accomplished.
[53] (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.
[54] Art. 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;
2. When the woman is deprived of reason or otherwise
unconscious; and
3. When the whom is under twelve years of age, even
though neither of the circumstances mentioned in the two
next preceding paragraphs shall be present.
The crime of rape shall be punished by reclusion perpetua.
xxx
[55] People v. Bentayo, G.R. No. 216938, June 5, 2017, 825
SCRA 620, 626; People v. Mayola, 802 Phil. 756, 762 (2016).
[56] Art. 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.
[57] Article 338. Simple seduction. — The seduction of a him as a prostitute; or
woman who is single or a widow of good reputation, over (5) Giving monetary consideration goods or other pecuniary
twelve but under eighteen years of age, committed by benefit to a child with intent to engage such child in
means of deceit, shall be punished by arresto mayor. prostitution.
[58] People v. Tubillo, G.R. No. 220718, June 21, 2017, 828
[69] AN ACT DECRIMINALIZING VAGRANCY, AMENDING FOR
SCRA 96; penned by Associate Justice Jose Catral Mendoza.
[59] 599 Phil. 390 (2009); penned by Associate Justice Renato
THIS PURPOSE ARTICLE 202 OF ACT NO. 3815, AS
AMENDED, OTHERWISE KNOWN AS THE REVISED PENAL
C. Corona.
[60] 676 Phil. 16 (2011); penned by Associate Justice
CODE.
[70] Section 3(h) of the Rules and Regulations on the
Diosdado M. Peralta.
[61] Supra note
Reporting and Investigation of Child Abuse Cases states that
59, at 395-396.
[62] People
"lascivious conduct" means the intentional touching, either
v. Pangilinan, supra note 60, at 37.
[63] People
directly or through clothing, of the genitalia, anus, groin,
v. Tubillo, supra note 58, at 107.
[64] "Lascivious conduct" means the intentional touching,
breast, inner thigh, or buttocks, or the introduction of any
object into the genitalia, anus or mouth, of any person,
either directly or through clothing, of the genitalia, anus,
whether of the same or opposite sex, with an intent to
groin, breast, inner thigh, or buttocks, or the introduction
abuse, humiliate, harass, degrade, or arouse or gratify the
of any object into the genitalia, anus or mouth, of any
sexual desire of any person, bestiality, masturbation,
person, whether of the same or opposite sex, with an intent
lascivious exhibition of the genitals or public area of a
to abuse, humiliate, harass, degrade, or arouse or gratify
person.
the sexual desire of any person, bestiality, masturbation, [71] Section 3. Grounds. - The accused may move to quash
lascivious exhibition of the genitals or pubic area of a
the complaint or information on any of the following
person. [Section 2(h) Rules and Regulations on the
grounds:
Reporting and Investigation of Child Abuse Cases]
[65] Issued
x x x x
in October 1993.
[66] Section 5. Child Prostitution and Other Sexual Abuse. -
(f) That more than one offense is charged except when a
single punishment for various offenses is prescribed by law;
Children, whether male or female, who for money, profit,
[72] Republic of the Philippines v. Yahon, 736 Phil. 397, 410
or any other consideration or due to the coercion or
influence of any adult, syndicate or group, indulge in sexual (2014).
[73] Id. at 410-411.
intercourse or lascivious conduct, are deemed to
[74] The "children" refers to a person below eighteen (18)
be children exploited in prostitution and other sexual
abuse. years of age or those over but are unable to fully take care
The penalty of reclusion temporal in its medium period of themselves or protect themselves from abuse, neglect,
to reclusion perpetua shall be imposed upon the following: cruelty, exploitation or discrimination because of a physical
x x x x or mental disability or condition. [Section 3(a), R.A. No.
(b) Those who commit the act of sexual intercourse or 7610]
lascivious conduct with a child exploited in prostitution or "Child" shall refer to a person below eighteen (18) years of
subject to other sexual abuse; Provided, That when the age or one over said age and who, upon evaluation of a
victims is under twelve (12) years of age, the perpetrators qualified physician, psychologist or psychiatrist, is found to
shall be prosecuted under Article 335, paragraph 3, for rape be incapable of taking care of himself fully because of a
and Article 336 of Act No. 3815, as amended, the Revised physical or mental disability or condition or of protecting
Penal Code, for rape or lascivious conduct, as the case may himself from abuse. [Section 2(a), Rules and Regulations on
be: Provided, That the penalty for lascivious conduct when the Reporting and Investigation of Child Abuse Cases]
[75] "Lascivious conduct" means the intentional touching,
the victim is under twelve ( 12) years of age shall
be reclusion temporal in its medium period; x x x. (Emphasis either directly or through clothing, of the genitalia, anus,
supplied) groin, breast, inner thigh, or buttocks, or the introduction
[67]
of any object into the genitalia, anus or mouth, of any
Id.
[68]
person, whether of the same or opposite sex, with an intent
Section 5. Child Prostitution and Other Sexual Abuse. -x
to abuse, humiliate, harass, degrade, or arouse or gratify
x x.
the sexual desire of any person, bestiality, masturbation,
(a) Those who engage in or promote, facilitate or induce
lascivious exhibition of the genitals or pubic area of a
child prostitution which include, but are not limited to, the
person. [Section 2(h), Rules and Regulations on the
following:
Reporting and Investigation of Child Abuse Cases]
(1) Acting as a procurer of a child prostitute; [76] Subject to R.A. No. 9346 entitled "An Act Prohibiting the
(2) Inducing a person to be a client of a child prostitute by
Imposition of Death Penalty in the Philippines."
means of written or oral advertisements or other similar [77] "Sexual abuse" includes the employment, use,
means;
persuasion, inducement, enticement or coercion of a child
(3) Taking advantage of influence or relationship to procure
to engage in or assist another person to engage in, sexual
a child as prostitute;
intercourse or lascivious conduct or the molestation,
(4) Threatening or using violence towards a child to engage
prostitution, or incest with children. [Section 3(g) of the
Rules and Regulations on the Reporting and Investigation of [94] Id.
Child Abuse Cases] [95] Record of the Senate on Senate Bill No. 1209, Volume III,
[78] Supra note 22. No. 104, pp. 1204-1205. (Emphasis added).
[79] Supra note 35; penned by Associate Justice Presbitero J. [96] See Separate Concurring Opinion in Quimvel v.

Velasco, Jr. People, supra note 36. (Emphasis added).

[80] People v. Ursua, G.R. No. 218575, October 4, 2017, 842 [97] ARTICLE 339. Acts of Lasciviousness with the Consent of

SCRA 165, 178; Malto v. People, supra note 44, at 135-136. the Offended Party. — The penalty of arresto mayor shall
[81] Id. be imposed to punish any other acts of lasciviousness
[82] Emphasis supplied. committed by the same persons and the same
[83] Record of the Senate, Vol. II, No. 58, December 2, 1991, circumstances as those provided in Articles 337 and 338.
pp. 793-794. ARTICLE 337. Qualified Seduction. — The seduction of a
[84] Record of the Senate, Vol. I, No. 7, August 1, 1991, p. virgin over twelve years and under eighteen years of age,
262. committed by any person in public authority, priest, house-
[85] Id. servant, domestic, guardian, teacher, or any person who, in
[86] Section 3. Definition of Terms. - any capacity, shall be entrusted with the education or
(b) "Child abuse" refers to the maltreatment, whether custody of the woman seduced, shall be punished by prision
habitual or not, of the child which includes any of the correccional in its minimum and medium periods.
following: The penalty next higher in degree shall be imposed upon
(1) Psychological and physical abuse, neglect, cruelty, any person who shall seduce his sister or descendant,
sexual abuse and emotional maltreatment; whether or not she be a virgin or over eighteen years of age.
(2) Any act by deeds or words which debases, degrades or Under the provisions of this Chapter, seduction is
demeans the intrinsic worth and dignity of a child as a committed when the offender has carnal knowledge of any
human being; of the persons and under the circumstances described
(3) Unreasonable deprivation of his basic needs for survival herein.
, such as food and shelter; or ARTICLE 338. Simple Seduction. — The seduction of a
(4) Failure to immediately give medical treatment to an woman who is single or a widow of good reputation, over
injured child resulting in serious impairment of his growth twelve but under eighteen years of age, committed by
and development or in his permanent incapacity or death. means of deceit, shall be punished by arresto mayor.
[98] Presidential Decree No. 968.
[87] Section 5. Child Prostitution and Other Sexual Abuse. - [99] An Act Amending Presidential Decree No. 968, otherwise
Children, whether male or female, who for money, profit,
known as the "Probation Law of 1976", as amended.
or any other consideration or due to the coercion or
Approved on November 26, 2015. Section 9 of the Decree,
influence of any adult, syndicate or group, indulge in sexual
as amended, provides that the benefits thereof shall not be
intercourse or lascivious conduct, are deemed to be
extended to those "(a) sentenced to serve a maximum term
children exploited in prostitution and other sexual abuse.
of imprisonment of more than six (6) years." Note: The
The penalty of reclusion temporal in its medium period
duration of the penalty of prision correccional is 6 months
to reclusion perpetua shall be imposed upon the following:
and 1 day to 6 years.
x x x x [100] Centeno v. Judge Villalon-Pornillos, 306 Phil. 219, 230
(b) Those who commit the act of sexual intercourse of
(1994).
lascivious conduct with a child exploited in prostitution or [101] U.S. v. Go Chico, 14 Phil. 128, 140 (1909)
subject to other sexual abuse; Provided, That when the [102] People v. Manantan, 115 Phil. 657, 665 (1962)
victims is under twelve (12) years of age, the perpetrators [103] Akbayan-Youth v. Comelec, 407 Phil. 618, 639 (2001).
shall be prosecuted under Article 335, paragraph 3, for rape [104] Record of the Senate, Vol. I , No. 7, August 1, 1991, pp.
and Article 336 of Act No. 3815, as amended, the Revised
258-259. (Emphasis added).
Penal Code, for rape or for lascivious conduct, as the case [105] Id.
may be: Provided, That the penalty for lascivious conduct [106] Section 31. Common Penal Provisions. -
when the victim is under twelve (12) years of age shall
x x x x
be reclusion temporal in its medium period;
[88] Record of the Senate Vol. IV, No. 116, May 9, 1991, pp. (c) The penalty provided herein shall be imposed in
its maximum period when the perpetrator is an ascendant,
333-334.
[89] Supra note parent, guardian, stepparent or collateral relative within
85.
[90] Supra note the second degree of consanguinity or affinity, or a
42.
[91] Issued manager or owner of an establishment which has no license
in October 1993.
[92] AN ACT PROVIDING FOR STRONGER DETERRENCE AND to operate or its license has expired or has been revoked.
[Emphasis added]
SPECIAL PROTECTION AGAINST CHILD ABUSE AND
EXPLOITATION, PROVIDING LEGAL PRESUMPTIONS AND [107] Citations omitted.
PENALTIES FOR ITS VIOLATIONS. [108] Record of the Senate, Vol. IV, No. 116, May 9, 1991, pp.
[93] Record of the Senate, December 2, 1991, Volume II, No. 334-335.
58, pp. 793-794. [109] Id. at 336-337.
[110] 272 Phil. 532 (1991). [139] Lamb v. Phipps, 22 Phil. 456 (1912).
[111] Deliberation of the Committee on Justice, December [140] People v. De Guzman, 90 Phil. 132 (1951).
19, 1989. [141] Aside from the use of force or intimidation, or when the
[112] 503 Phil. 421 (2005). woman is deprived of reason or otherwise unconscious.
[113] People v. Francisco Ejercito, G.R. No. 229861, July 2, [142] 661 Phil. 208 (2011).
2018. [143] R.A. No. 7610, Art. I, Sec. 3(a).
[114] Id. [144] AN ACT PROVIDING FOR A COMPREHENSIVE LAW ON
[115] Penned by Senior Associate Justice Antonio T. Carpio. FIREARMS AND AMMUNITION AND PROVIDING PENALTIES
[116] See Justice Carpio's Dissenting Opinion in Quimvel v. FOR VIOLATIONS THEREOF.
People, supra note 35. [145] AN ACT ADJUSTING THE AMOUNT OR THE VALUE OF
[117] Record of the Senate, Vol. I, No. 7, August 1, 1991, p. PROPERTY A ND DAMAGE ON WHICH A PENALTY IS BASED,
262. AND THE FINES IMPOSED UNDER THE REVISED PENAL
[118] Commissioner of Customs v. Relunia, 105 Phil. 875 CODE, AMENDING FOR THE PURPOSE ACT NO. 3815,
(1959). OTHERWISE KNOWN AS "THE REVISED PENAL CODE," AS
[119] Records of the Senate, Vol. IV, No. 116, May 9, 1991 , p. AMENDED.
33. [146] Supra note 98.
[120] 357 Phil. 987 (1998). [147] 395 Phil. 1 (2005).
[121] Supra note 17. [148] 734 Phil. 353 (2014)
[122] Supra note 111. Penned by Associate Justice Consuela

Ynares-Santiago, with Associate Justices Leonardo A.

Quisumbing and Adolfo S. Azcuna, concurring; and Chief SEPARATE OPINION
Justice Hilario G. Davide, Jr. joining the dissent of Associate PERLAS-BERNABE, J.:
Justice Antonio T. Carpio. While I agree with the resulting verdict against accused-
[123] 669 Phil. 512 (2011). appellant Salvador Tulagan (Tulagan), I tender this Opinion
[124] Supra note 35. to address the relevant points stated in the ponencia anent
[125] Supra note 27, at 144. the proper application of Section 5 (b), Article III of Republic
[126] Supra note 27, at 143. Act No. (RA) 7610[1] in sexual abuse cases involving minors.
[127] Supra note 35, at 247. As will be made evident below, there is a fundamental
[128] Record of the Senate, Bill on Second Reading, S. No. difference between the ponencia's and my underlying
950- Special Law on Rape, July 29, 1996. postulations, which therefore precludes me from
[129] Section 3(h) of R.A. No. 7610 states that "lascivious concurring with the majority.
conduct" means the intentional touching, either directly or At its core, the ponencia propounds an expansive view on
through clothing, of the genitalia, anus, groin, breast, inner the application of Section 5 (b), Article III of RA 7610.
thigh, or buttocks, or the introduction of any object into the Citing Quimvel v. People[2] (Quimvel), the ponencia explains
genitalia, anus or mouth, of any person, whether of the that RA 7610 does not only cover a situation where a child
same or opposite sex, with an intent to abuse, humiliate, is abused for profit but also one in which a child, through
harass, degrade, or arouse or gratify the sexual desire of any coercion or intimidation, engages in sexual intercourse or
person, bestiality, masturbation, lascivious exhibition of the lascivious conduct.[3] To recall, the majority ruling
genitals or pubic area of a person. in Quimvel observed that "[a]lthough the presence of an
[130] Supra note 13. offeror or a pimp is the typical set up in prostitution rings,
[131] People v. Brioso, supra note 48; Ricalde v. People, 751 this does not foreclose the possibility of a child voluntarily
Phil. 793 (2015). submitting himself or herself to another's lewd design for
[132] 653 Phil. 487 (2010). consideration, monetary or otherwise, without third person
[133] Id. at 504-508. (Emphasis added; citations omitted). intervention."[4] As such, "[i]t is immaterial whether or not
[134] If an aggravating circumstance is present or to set as a the accused himself employed the coercion or influence to
public example to deter sexual abuse. subdue the will of the child for the latter to submit to his
[135] Supra note 13. sexual advances for him to be convicted under paragraph
[136] Section 31 . Common Penal Provisions. - (b). [Section 5, Article III] of RA 7610 even provides that the
x x x x offense can be committed by 'any adult, syndicate or
(c) The penalty provided herein shall be imposed in its group,' without qualification."[5] Based on these
maximum period when the perpetrator is an ascendant, pronouncements, the ponencia therefore concludes that
parent, guardian, stepparent or collateral relative within the mere act of sexual abuse against any child qualifies him
the second degree of consanguinity or affinity, or a or her to be "subject to other sexual abuse," and hence,
manager or owner of an establishment which has no license under the coverage of RA 7610.[6]
to operate or its license has expired or has been revoked. In addition, the ponencia points out that the policy of RA
[137] 7610 is "to provide stronger deterrence and special
Ranging from 12 years and 1 day to 14 years and 8
protection to children from all forms of abuse, neglect,
months.
[138] Ranging from 8 years 1 day to 14 years and 8 months. cruelty, exploitation, discrimination and other conditions
prejudicial to their development."[7] It further cites the
sponsorship speeches of Senators Jose Lina (Sen. Lina) and
Santanina Rasul (Sen. Rasul) to explain that the intent of RA
7610 is to protect all children against all forms of
abuse,[8] as well as the amendment introduced by Senator
Edgardo J. Angara (Sen. Angara), i.e., the addition of the
phrase "or other sexual abuse" to "exploited in
prostitution," which supposedly highlights the intention of
Congress to expand the scope of Section 5, Article III of RA
7610 to incorporate the broader concept of "child
abuse."[9] With these in tow, the ponencia thus finds it
"hard to understand why the legislature would enact a
penal law on child abuse that would create an unreasonable
classification between those who are considered ['exploited
in prostitution or subject to other sexual abuse' (EPSOSA for
brevity)] and those who are not."[10] However,
the ponencia qualifies that RA 7610 would not apply if the
minor is under twelve (12) years of age since the accused
would be punished under the provisions on statutory
rape.[11]
With all due respect, I disagree that RA 7610 would be
generally applicable to all cases of sexual abuse involving
minors, except those who are under twelve (12) years of
age. After much reflection, I instead concur with the views
originally advanced by Senior Associate Justice Antonio T.
Carpio (Justice Carpio) and Associate Justice Alfredo
Benjamin S. Caguioa (Justice Caguioa)[12] that Section 5 (b),
Article III of RA 7610 only applies in instances where the
child-victim is "exploited in prostitution or subject to other
sexual abuse." To my mind, this limited view, as opposed to
the ponencia's expansive view, is not only supported by
several textual indicators both in the law and the
deliberations, it also squares with practical logic and
reason, as will be explained below:
(1) As the law's title itself denotes, RA 7610 was intended
to provide stronger deterrence and special
protectionagainst child abuse, exploitation and
discrimination.[13] The idea of providing "stronger
deterrence" and "special protection" connotes that
Congress was not only establishing a more robust form of
penal legislation, it was also creating something new. Thus,
to suppose that RA 7610 would generally cover acts already
punished under the Revised Penal Code (RPC) would defy
the operational logic behind the introduction of this special
law. Notably, the Court can take judicial notice of the fact
that in the past decades of increasing modernity, Congress
has been passing laws to penalize reprehensible acts which
were not contemplated under the RPC. With respect to
children, special penal laws such as the Child and Youth
Welfare Code,[14] the Anti-Child Pornography Act of
2009,[15] and the Anti-Violence Against Women and Their
Children Act of 2004[16] created new havens of protection
which were previously uncharted by the RPC. As I see it, RA
7610, especially with its peculiar signification of children
"exploited in prostitution or subject to other sexual abuse,"
should be similarly regarded as these laws.
To expound, neither the old provisions of the RPC nor
existing jurisprudence at the time RA 7610 was passed ever
mentioned the phrase "exploited in prostitution or subject
to other sexual abuse." Commonsensically therefore, the
concept of EPSOSA should be deemed as a novel
introduction by legislature. The driving force behind this
legislative innovation can be gleaned from the
deliberations. As explicated in her Sponsorship Speech, Sen.
Rasul recognized that one of the reasons for introducing
Senate Bill No. 1209 (which later became RA 7610) was to
address the lack of criminal laws involving abused children
as noted by the Supreme Court in the case of People v.
Ritter (Ritter).[17] Notably, in Ritter, the Court acquitted the
accused of rape on the ground that the child was not proven
to be below the statutory age of twelve (12) years old nor
was it proven that the sexual intercourse was attended with
force or intimidation.[18] Thus, it was observed:
[Sen.] Rasul. x x x
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. 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 street children from exploitation
by pedophiles. x x x.[19]
Borne from this legal hiatus, RA 7610 was enacted to,
practically speaking, protect those who, like the child-victim
in Ritter, "willingly engaged" in sexual acts, not out of a
desire to satisfy their own sexual gratification, but because
of their vulnerable pre-disposition as exploited children.
This vulnerable pre-disposition is embodied in the concept
of EPSOSA, which, as opposed to the RPC, effectively
dispenses with the need to prove the lack of consent at the
time the act of sexual abuse is committed. Accordingly,
when it comes to a prosecution under Section 5 (b), Article
III of RA 7610, consent at the time the sexual act is
consummated is, unlike in the RPC, not anymore a defense.
It is in this light that RA 7610 fills in the gaps of the RPC.
With these in mind, it is thus my view that RA 7610,
specifically with its introduction of the EPSOSA element, is
a lucid recognition by Congress that a child need not be
forced, intimidated or, in any manner prevailed upon, at the
time of the act's commission to be considered sexually
abused or exploited; rather, it is enough that the child is put
under a vulnerable pre-disposition that leads him or her to
"consent" to the sexual deed. This niche situation, whether
based on monetary ("exploited in prostitution") or non-
monetary ("or subject to other sexual abuse")
considerations, is what Section 5 (b), Article III of RA 7610
uniquely punishes. And in so doing, RA 7610 expands the
range of existing child protection laws and effectively
complements (and not redundantly supplants) the RPC. This
intended complementarity is extant in Sen. Lina's
sponsorship speech on RA 7610, viz.:
[Sen.] Lina. 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 the provisions of the Revised Penal
Codewhere the crimes committed are those which lead
children to prostitution and sexual abuse, trafficking in
children and use of the young in pornographic activities.
x x x x[20] (Emphasis and underscoring supplied)
(2) In relation to the first point, it is noteworthy that a
general view on the application of RA 7610 would also lead
to an unnerving incongruence between the law's policy
objective and certain penalties imposed thereunder. For
instance, if we were to subscribe to the ponencia's theory
that RA 7610 would generally apply to all sexual abuse cases
involving minors twelve (12) years of age and above,
then why would RA 7610-which was supposedly intended to
provide stronger deterrence and special protection against
child abuse - provide for a lower penalty for child abuse
committed through sexual intercourse than that provided
under the then existing RPC framework? For context, under
Article 335 of the RPC prior to its amendment by RA 8353
(or the Anti-Rape Law of 1997), the crime of rape
committed against a minor, who is not under twelve (12)
years of age and not falling under the enumerated
qualifying circumstances, is punished with the penalty
of reclusion perpetua to death. On the other hand, under
Section 5 (b), Article III of RA 7610, the crime of sexual
abuse committed through sexual intercourse (or lascivious
conduct) against a child EPSOSA is punished with the
penalty of reclusion temporal in its medium period
to reclusion perpetua. Clearly, it would not make sense for
Congress to pass a supposedly stronger law against child
abuse if the same carries a lower penalty for the same act of
rape already punished under the old RPC provision.
This incongruence is only made possible if one considers
Section 5 (b), Article III of RA 7610 to have overlapped with
an act already punished under the existing penal code.
Verily, this could not have been the intent of our
lawmakers. On the other hand, respecting the
complementarity between RA 7610 and RPC would
cogently subserve the policy objective to provide stronger
deterrence and special protection against child abuse. As
Justice Caguioa astutely remarked, "[RA] 7610 and the RPC
x x x have different spheres of application; they exist to
complement each other such that there would be no gaps
in our criminal laws."[21] Thus, given that the application of
RA 7610 is independent - and in fact, mutually exclusive
from the RPC's rape and acts of lasciviousness provisions,
the penchant of the ponencia[22] to determine which law
would apply based on which law provides the higher
penalty therefor becomes unneccessary. Simply put,
if (a) RA 7610 applies in a scenario where the accused
sexually abuses a child who "consents" to the deed but is
nonetheless EPSOSA, and (b) this case is treated separately
and differently from the RPC scenario wherein the child
does not consent to the sexual act because he is forced,
intimidated, or otherwise prevailed upon by the
accused, then there would be no quandary in choosing
which law to apply based on which provides the higher
penalty therefor. Neither would there be any need for
corrective legislation as the ponencia suggests[23] if only RA
7610's provisions are interpreted correctly. Again, as
originally and meticulously designed by Congress, the laws
on sexual abuse of minors have their own distinct spheres
of application: apply RA 7610 in scenario (a); apply the RPC
in scenario (b). In understanding the intent of Congress to
fill in the gaps in the law, it is my position that Section 5,
Article III of RA 7610 must be treated as a separate and
distinct statutory complement which works side-by-side
with the RPC; it should not, as the ponenciaassumes, be
deemed as a fully comprehensive statute which
substantively subsumes and even supplants the sexual
abuse scenarios already covered by the RPC. If it were so,
then RA 7610 should not have been crafted as a special
penal law but as amendatory statute of the existing penal
code.
(3) The proviso under Section 5 (b), Article III of RA 7610 -
which provides that "when the [victim] is under twelve (12)
years of age, the perpetrators shall be prosecuted under x
x x the Revised Penal Code, for rape or lascivious conduct,
as the case may be" - is a textual indicator that RA 7610 has
a specific application only to children who are pre-disposed
to "consent" to a sexual act because they are "exploited in
prostitution or subject to other sexual abuse." For
reference, Section 5 (b), Article III of RA 7610 reads in full:
Section 5. Child Prostitution and Other Sexual Abuse.- x x x
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
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; x x X
x x x x (Emphasis and underscoring supplied)
While the phrase "shall be prosecuted under" has not been
discussed in existing case law, it is my view that the same is
a clear instruction by the lawmakers to defer any
application of Section 5 (b), Article III of RA 7610,
irrespective of the presence of EPSOSA, when the victim is
under twelve (12). As a consequence, when an accused is
prosecuted under the provisions of the RPC, only the
elements of the crimes defined thereunder must be alleged
and proved. Necessarily too, unless further qualified, as in
the second proviso, i.e., 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, the penalties provided under the RPC would apply.
In this relation, it may thus be ruminated: why did RA 7610
defer application to the RPC, when the victim is under twelve
(12) years of age? After much thought, it is my opinion that
this self-evident deference to the RPC hints on the meaning
of EPSOSA and consequentially, Section 5 (b), Article III of
RA 7610's niche application. As discussed, EPSOSA is a
circumstantial pre-disposition which effectively taints the
child's consent. As a "consent-tainting" element which is
integral and unique to RA 7610, the proviso "shall be
prosecuted under [the RPC]" recognizes that one cannot
prosecute a sex offender under RA 7610 when a child is
under twelve (12) years of age. This is because the concept
of consent is altogether immaterial when a child is below
twelve (12) years of age because the latter is conclusively
presumed to be incapable of giving consent.[24] In other
words, since the question of consent will never be at issue
when the victim is under twelve (12) years of age, then the
application of Section 5 (b), Article III of RA 7610 becomes
technically impossible.
The foregoing analysis, to my mind, reinforces the point
that RA 7610 was meant to apply only to cases where the
consent of the child (insofar as his pre-disposition to
consent [which should be contradistinguished from consent
at the time of the act's consummation which falls under the
RPC]) is at question. To this end, if RA 7610 was intended to
apply to "all forms of sexual abuse" under a general reading
of the law, then why does RA 7610 need to defer to the RPC
provisions on statutory rape or lascivious conduct? If RA
7610 overlapped with and equally covered the acts
punished under the RPC, then why the need of inserting a
qualifying proviso when the child-victim is under twelve (12)
years of age? Surely, if the intendment of RA 7610 was to
generally apply to all forms of sexual abuse, then it could
have very well applied to cases wherein the child is under
twelve (12) years of age. The explicit qualification
contained in the first proviso of Section 5 (b), Article III of
RA 7610 apparently negates the ponencia's theory of
general applicability.
Notably, the ponencia utilizes the fact that the first proviso
of Section 5 (b), Article III of RA 7610 explicitly mentions the
RPC as basis to support its position that Section 5 (b), Article
III of RA 7610 should not only be limited to the unique
context of "child prostitution, other sexual abuse in relation
to prostitution, and the specific acts punished under RA
7610."[25] In other words, the ponencia theorizes that since
Section 5 (b), Article III of RA 7610 mentions the RPC in its
provisos, then ipso facto RA 7610 was meant to generally
cover even acts of sexual abuse previously punished under
the already existing RPC. Accordingly, it submits the
following interpretation: "[w]hen the first proviso of
Section 5 (b) states that 'when the victim is under 12 years
of age[, the perpetrators] shall be prosecuted under the
RPC,' it only means that the elements of rape under then
Article 335, paragraph 3 of the RPC [now Article 266-A,
paragraph 1 (d)], and of acts of lasciviousness under Article
336 of the RPC, have to be considered, alongside the
element of the child being 'exploited in prostitution and or
other sexual abuse."'[26]
I respectfully disagree. The fact that Section 5 (b), Article III
of RA 7610 mentions the RPC does not automatically mean
that it was meant to cover the acts already punished in the
RPC. To properly interpret its sense, the context in which
the RPC is mentioned must be taken into consideration;
after all, words do not simply appear on the face of a statute
without purposive and rational intention. Here, the RPC is
mentioned in a proviso. Jurisprudence dictates that "[t]he
office of a proviso is to limit the application of the law. It is
contrary to the nature of a proviso to enlarge the operation
of the law."[27] Simply stated, a proviso, by nature, is meant
to either be a qualifier or an exception. As afore-discussed,
it is my view that EPSOSA is a special element meant to
address a situation not contemplated under the RPC. The
general rule is that "[t]hose who commit the act of sexual
intercourse of lascivious conduct with a child exploited in
prostitution or subject to other sexual abuse" should be
punished under Section 5 (b) of RA 7610 because this is the
unique situation sought to be covered by the special law.
However, if a child is below 12 the law conclusively
presumes the lack of consent - may it be consent at the time
the crime is consummated or consent as a pre-disposition
to give in into a sexual act. Since consent is lacking in a case
where the child is 12 years old, EPSOSA which is intrinsically
a "consent-element" virtually vanishes from the equation.
Therefore, since there would never be a case of EPSOSA
when the child is less than 12, the proviso -being an
exceptive clause which limits the application of the law, i.e.,
Section 5 (b), Article III of RA 7610 - actually directs that the
prosecution of accused should fall under the RPC where
EPSOSA is not material. In this regard, the proviso serves as
a statutory recognition of Section 5 (b), Article III of RA
7610's own limitations, hence, the need to defer
prosecution under the elements of the RPC. To my mind,
this interpretation, which only becomes possible under the
proposed limited view of Section 5 (b), Article III of RA 7610,
squares with the nature of a proviso.
Besides, the ponencia's above-interpretation of the first
proviso of Section 5 (b), Article III of RA 7610 (i.e., that the
elements of the RPC should be read alongside with the
element of EPSOSA) does not carry any practical value since
the elements of rape and acts of lasciviousness when
considered alongside the element of EPSOSA already
constitute the crime punished under the general clause prior
to the proviso. In particular, the opening phrase of Section
5 (b), Article III of RA 7610 already punishes "[t]hose who
commit the act of sexual intercourse or lascivious conduct
with a child exploited in prostitution or subject to other
sexual abuse." Thus, under the ponencia's interpretation,
the first proviso of Section 5(b) would practically add
nothing to the law since when one is prosecuted under the
opening phrase, the elements of rape and acts of
lasciviousness[28] are already considered. As such, the
opening phrase of Section 5 (b) of RA 7610 would have
served the purpose of punishing a sex offender who has
sexual intercourse or commits acts of lasciviousness against
a child, even without the first proviso.
(4) In the deliberations of RA 7610, Sen. Lina explained that
despite the presence of monetary considerations, the
prosecution of the accused will still be under Article 335 of
the RPC, and the concept of Rape under the RPC shall be
followed, viz.:
Senator Pimentel. At any rate, Mr. President, before a
clean copy is finally made available, perhaps, the
distinguished Gentleman can tell us already what will be
the effect of this particular amendment on the rape
provisions of the Revised Penal Code. Would it mean that
the rape of a female child below 12 years old, whether or
not there is force, but there is no profit motive constitutes
rape? In other words, are we limiting the scope of the crime
of rape of a child below 12 years old to that particular
instance?
[Sen.] 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?
[Sen.] 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.
x x x x[29] (Emphases and underscoring supplied)
Hence, to support the preceding point, there seems to be a
conscious delineation by members of Congress between
the concept of Rape under the RPC and the violation under
Section 5, Article III of RA 7610.
To be sure, the fact that the original phrase "exploited in
prostitution" was later extended to include the phrase "or
subject to other sexual abuse" is not sufficient basis to
break this delineation. As the deliberations further show,
the intent behind the addition is to plug the loophole on
exploitative circumstances that are not based on non-
monetary considerations:
[Sen.] 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.
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, etcetera.
The President Pro Tempore. I see. That would mean also
changing the subtitle of Section 4. Will it no longer be child
prostitution?
[Sen.] 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.
[Sen.] 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
[Sen.] 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."[30] (Emphases supplied)
As Justice Carpio rationalized in Quimvel, "[t]he 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."[31]
Clearly therefore, the phrase "or subject to other sexual
abuse" was meant only to expand the range of
circumstances that are nonetheless, relevant to the child's
circumstantial pre-disposition and hence, should not be
confounded with the act of sexual abuse which is a separate
and distinct element under the law.[32]
(5) Finally, a literal reading of the law itself confirms that the
phrase "exploited in prostitution or subject to other sexual
abuse" was intended to be appreciated separately from the
act of sexual abuse itself. For reference, Section 5, Article III
of RA 7610 states:
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:
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; x x x
x x x x (Emphases and underscoring supplied)
As plainly worded, the law punishes those who commit the less than twelve Section 5 (b),
act of sexual intercourse or lascivious conduct with a (12), EPSOSA is Article III of RA
child "exploited in prostitution or subject to other sexual irrelevant 7610 through
abuse." The word "subject" is a clear qualification of the Lascivious
term "child," which means it is descriptive of the same. Conduct (term
Hence, if Congress intended to equate the term "subject to used in the
other sexual abuse" with the act of sexual intercourse or Implementing
lascivious conduct itself, then it could have easily phrased Rules and
the provision as: "those who commit the act of sexual Regulations
intercourse or lascivious conduct with children." [IRR][38]) and
However, it is fairly evident that with the coining of the new the penalty
phrase "a child exploited in prostitution or subject to other would
sexual abuse," Congress intended to establish a special bereclusion
classification of children, i.e., those EPSOSA, which is temporal in its
further suggested by the term "deemed." It is a cardinal rule medium
in statutory construction that when the law is clear and free period
from any doubt or ambiguity, there is no room for to reclusion
construction or interpretation. There is only room for perpetua.[39]
application.[33] As the statute is clear, plain, and free from Sexual Statutory Sexual If committed Sexual
ambiguity, it must be given its literal meaning and applied Assault Assault under Article against a Assault
without attempted interpretation.[34] 266-A (2) of the RPC, child not under
CONCLUSION as amended by RA EPSOSA, Sexu Article 266-
Based on the foregoing analysis, I therefore submit the 8353 in relation to al A (2) of the
following table of application: the second proviso Assault under RPC.
Acts done Crime committed if Crime Crime of Section 5 (b), Article 266-A Penalty: pri
by the the victim is under committed if committed Article III of RA 7610 (2) of the RPC, sion mayor
accused twelve (12) years old the victim is if victim is Penalty: Reclusion as amended
consist of: or demented twelve (12) eighteen temporalin its by RA 8353
years old or (18) years medium period Penalty: prisio
older but old and NOTE: Based on the n mayor
below above first proviso of If committed
eighteen (18), Section 5 (b), Article against a
or is eighteen III of RA 7610, even if child EPSOSA,
(18) years old the victim is a child the crime
but under EPSOSA, the would
special prosecution shall be be Violation
circumstances[ under the RPC; of Section 5
35]
hence, if the child is (b), Article III
Acts of Statutory[36] Acts of If committed Acts of less than 12, EPSOSA of RA 7610
Lasciviou Lasciviousness against a Lasciviousn is irrelevant through
sness under Article 336 of child not ess under Lascivious
the RPC in relation EPSOSA, the Article 336 Conduct (conc
to[37] the second crime of the RPC ept of "sexual
proviso of Section 5 committed Penalty: Pris assault"
(b), Article III of RA would be Acts ion subsumed
7610 of Correcciona under the
Penalty: Reclusion t Lasciviousnes l term
emporalin its s under Article "Lascivious
medium period 336 of the RPC Conduct" used
NOTE: Based on the Penalty: Prisio in the IRR[40])
first proviso of n Correccional and the
Section 5 (b), Article If committed penalty would
III of RA 7610, even if against a child be reclusion
the victim is a child EPSOSA, the temporal in its
EPSOSA, the crime medium
prosecution shall be committed period
under the RPC; would be to reclusion
hence, if the child is Violation of perpetua[41]
Carnal Statutory Rape If committed Rape under prision correccional under Article 336 of the RPC on Acts of
knowledg under Article 266-A against a Article 266- Lasciviousness; and second, ought to prevail over the
e/ Rape (1) (d) of the RPC, as child not A (1) of the prescribed penalty of prision mayor under Article 266-A,
by Sexual amended by RA EPSOSA, Rape RPC, as par. 2, in relation to Article 266-B, of the RPC, as amended
Intercour 8353 under Article amended by by RA 8353, albeit the latter law is the more recent
se Penalty: reclusion 266-A (1) of RA 8353 statutory enactment. The reasons on this second point are:
perpetua, except the RPC, as Penalty: rec (1) pursuant to its IRR, the concept of lascivious conduct
when the victim is amended by lusion under Section 5, Article III of RA 7610 was already broad
below seven (7) RA 8353 perpetua enough to cover the specific acts prescribed under Article
years old in which Penalty: reclu 266-A, par. 2 of RA 8353[43] and, hence, already subsumes
case death penalty sion perpetua the concept of Sexual Assault; (2) RA 8353 introduced the
shall be imposed If committed concept of "sexual assault" essentially to punish graver
NOTE: Based on the against a forms of acts of lasciviousness which were not accounted
first proviso of child EPSOSA, for in the RPC (not in RA 7610); and (3) at any rate, the
Section 5 (b), Article the crime penalty imposed for Sexual Assault under RA 8353 does not
III of RA 7610, even if would take into account the fact that the act is committed against
the victim is a child be Violation a child-victim under twelve (12) years of age. Accordingly,
EPSOSA, the of Section 5 based on these substantive considerations (and not solely
prosecution shall be (b), Article III on penalty gravity[44]), RA 8353's lesser penalty of prison
under the RPC; of RA 7610 correctional imposed in general cases of Sexual Assault
hence, if the child is through cannot prevail over Section 5 (b), Article III of RA 7610's
less than twelve Sexual penalty of reclusion temporal in its medium period in cases
(12), EPSOSA is Abuse(term where the lascivious conduct, irrespective of kind, is
irrelevant used in the committed against a child-victim under 12.
IRR[42]) and the As a final note, I am well-aware of the ruling in People v.
penalty would Ejercito[45] (Ejercito) wherein the former Second Division of
be reclusion this Court had ruled that RA 8353 (amending the RPC)
temporal in should now be uniformly applied in cases involving sexual
its medium intercourse committed against minors, and not Section 5
period (b), Article III of RA 7610.[46] To recount, the conclusion was
to reclusion largely based on the following premise:
perpetua [T]he x x x provisions of RA 8353 already accounted for the
circumstance of minority under certain peculiar
Notably, as earlier mentioned, when the child-victim is instances. The consequence therefore is a clear overlap
under twelve (12) years of age and, hence, conclusively with minority as an element of the crime of sexual
presumed to be incapable of giving consent, Section 5 (b), intercourse against a minor under Section 5 (b) of RA 7610.
Article III of RA 7610 instructs that the prosecution of the However, as it was earlier intimated, RA 8353 is not only the
accused shall be under the provisions of the RPC and, more recent statutory enactment but more importantly,
hence, making it unnecessary to determine the presence or the more comprehensive law on rape; therefore, the Court
absence of EPSOSA. Accordingly: herein clarifies that in cases where a minor is raped through
Under twelve (12) years old cases sexual intercourse, the provisions of RA 8353 amending the
(1) If done through sexual intercourse, the crime is "Rape" RPC ought to prevail over Section 5 (b) of RA 7610 although
under Article 266-A (1) of the RPC, as amended by RA 8353; the latter also penalizes the act of sexual intercourse
(2) If done through acts classified as sexual assault, the against a minor.[47] (Emphasis and underscoring supplied)
crime is "Sexual Assault" under Article 266-A (2) of the RPC, However, it must now be clarified that the above-stated
as amended by RA 8353; and overlap on the concept of minority in the Ejercito case is an
(3) If done through lascivious conduct not classified as observation only made possible when applying the then-
sexual assault, the crime is "Acts of Lasciviousness" under prevailing Quimvel ruling. Again, Quimvel did not recognize
Article 336 of the RPC. that EPSOSA is a special and unique element that is peculiar
In instances of Rape, the prescribed penalty is reclusion to RA 7610. However, as herein discussed, RA 7610 actually
perpetua, subject to the existence of qualifying introduced the EPSOSA element which was not
circumstances. contemplated under the RPC, as amended by RA 8353. This
However, in cases of Sexual Assault or Acts of means that RA 8353 cannot now overlap with the RA 7610
Lasciviousness, It Is my position that the second proviso in since the latter contains a peculiar element which is unique
Section 5 (b), Article III of RA 7610, which provides that "the to it; hence, applying the principle of lex specialis derogant
penalty for lascivious conduct when the victim is under generali,[48] Section 5 (b), Article III of RA 7610 ought to
twelve (12) years of age shall be reclusion temporal in its prevail when the EPSOSA element is alleged and proven in
medium period”: first, amended the prescribed penalty of a particular case.
To this end, it goes without saying that when the
circumstance of a child EPSOSA is not alleged in the
Information and later, proven during trial, it is erroneous to
prosecute – much more, convict – the accused under
Section 5 (b), Article III of RA 7610, else his constitutional
right to be informed of the nature and cause of the
accusation against him be violated.[49] Insofar as this case is
concerned, the EPSOSA element is missing from both
Informations in Criminal Case Nos. SCC-6210 and SCC-6211.
Nonetheless, EPSOSA is immaterial given that the child-
victim is, in both instances, under twelve (12) years of age.
Hence, same as the result reached by the ponencia albeit
our fundamental differences in reasoning, Tulagan should
be convicted of:
(a) In Criminal Case No. SCC-6210, Statutory Sexual Assault
under Article 266-A (2) of the RPC, as amended by RA 8353,
in relation to the second proviso of Section 5 (b), Article III
of RA 7610, and thereby, meted with the penalty
of reclusion temporal in its medium period; and
(b) In Criminal Case No. SCC-6211, Statutory Rape under
Article 266-A (1) (d) of the RPC, as amended by RA 8353,
and thereby, meted with the penalty of reclusion perpetua.
Meanwhile, anent the damages to be awarded, I fully
support the ponencia's prudent decision to adjust the same
based on the jurisprudential[50] equivalence of the above-
stated penalties. Hence, Tulagan should pay the adjusted
amounts of: (a) in Criminal Case No. SCC0-6210, P50,000.00
as civil indemnity, P50,000.00 as moral damages, and
P50,000.00 as exemplary damages; and (b) in Criminal Case
No. SCC-6211, P75,000.00 as civil indemnity, P75,000.00 as
moral damages, and P75,000.00 as exemplary damages.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 72873 May 28, 1987
CARLOS ALONZO and CASIMIRA ALONZO, petitioners,
vs.
INTERMEDIATE APPELLATE COURT and TECLA
PADUA, respondents.
Perpetuo L.B. Alonzo for petitioners.
Luis R. Reyes for private respondent.
CRUZ, J.:
The question is sometimes asked, in serious inquiry or in
curious conjecture, whether we are a court of law or a court
of justice. Do we apply the law even if it is unjust or do we
administer justice even against the law? Thus queried, we
do not equivocate. The answer is that we do neither
because we are a court both of law and of justice. We apply
the law with justice for that is our mission and purpose in
the scheme of our Republic. This case is an illustration.
Five brothers and sisters inherited in equal pro
indiviso shares a parcel of land registered in 'the name of
their deceased parents under OCT No. 10977 of the Registry
of Deeds of Tarlac. 1
On March 15, 1963, one of them, Celestino Padua,
transferred his undivided share of the herein petitioners for
the sum of P550.00 by way of absolute sale. 2 One year
later, on April 22, 1964, Eustaquia Padua, his sister, sold her
own share to the same vendees, in an instrument
denominated "Con Pacto de Retro Sale," for the sum of P
440.00. 3
By virtue of such agreements, the petitioners occupied,
after the said sales, an area corresponding to two-fifths of
the said lot, representing the portions sold to them. The
vendees subsequently enclosed the same with a fence. In
1975, with their consent, their son Eduardo Alonzo and his
wife built a semi-concrete house on a part of the enclosed
area.4
On February 25, 1976, Mariano Padua, one of the five
coheirs, sought to redeem the area sold to the spouses
Alonzo, but his complaint was dismissed when it appeared
that he was an American citizen .5 On May 27, 1977,
however, Tecla Padua, another co-heir, filed her own
complaint invoking the same right of redemption claimed
by her brother. 6
The trial court * also dismiss this complaint, now on the
ground that the right had lapsed, not having been exercised
within thirty days from notice of the sales in 1963 and 1964.
Although there was no written notice, it was held
that actual knowledge of the sales by the co-heirs satisfied
the requirement of the law. 7
In truth, such actual notice as acquired by the co-heirs
cannot be plausibly denied. The other co-heirs, including
Tecla Padua, lived on the same lot, which consisted of only
604 square meters, including the portions sold to the
petitioners . 8 Eustaquia herself, who had sold her portion,
was staying in the same house with her sister Tecla, who
later claimed redemption petition. 9 Moreover, the
petitioners and the private respondents were close friends
and neighbors whose children went to school together. 10
It is highly improbable that the other co-heirs were unaware
of the sales and that they thought, as they alleged, that the
area occupied by the petitioners had merely been
mortgaged by Celestino and Eustaquia. In the
circumstances just narrated, it was impossible for Tecla not
to know that the area occupied by the petitioners had been
purchased by them from the other. co-heirs. Especially
significant was the erection thereon of the permanent
semi-concrete structure by the petitioners' son, which was
done without objection on her part or of any of the other
co-heirs.
The only real question in this case, therefore, is the correct
interpretation and application of the pertinent law as
invoked, interestingly enough, by both the petitioners and
the private respondents. This is Article 1088 of the Civil
Code, providing as follows:
Art. 1088. Should any of the heirs sell
his hereditary rights to a stranger
before the partition, any or all of the co-
heirs may be subrogated to the rights of
the purchaser by reimbursing him for
the price of the sale, provided they do
so within the period of one month from
the time they were notified in writing of
the sale by the vendor.
In reversing the trial court, the respondent
court ** declared that the notice required by the said
article was written notice and that actual notice would not
suffice as a substitute. Citing the same case of De Conejero
v. Court of Appeals 11 applied by the trial court, the
respondent court held that that decision, interpreting a like
rule in Article 1623, stressed the need for written notice
although no particular form was required.
Thus, according to Justice J.B.L. Reyes, who was
the ponente of the Court, furnishing the co-heirs with a
copy of the deed of sale of the property subject to
redemption would satisfy the requirement for written
notice. "So long, therefore, as the latter (i.e., the
redemptioner) is informed in writing of the sale and the
particulars thereof," he declared, "the thirty days for
redemption start running. "
In the earlier decision of Butte v. UY, 12 " the Court,
speaking through the same learned jurist, emphasized that
the written notice should be given by the vendor and not
the vendees, conformably to a similar requirement under
Article 1623, reading as follows:
Art. 1623. The right of legal pre-
emption or redemption shall not be
exercised except within thirty days
from the notice in writing by the
prospective vendor, or by the vendors,
as the case may be. The deed of sale
shall not be recorded in the Registry of
Property, unless accompanied by an
affidavit of the vendor that he has given
written notice thereof to all possible
redemptioners.
The right of redemption of co-owners
excludes that of the adjoining owners.
As "it is thus apparent that the Philippine legislature in
Article 1623 deliberately selected a particular method of
giving notice, and that notice must be deemed exclusive,"
the Court held that notice given by the vendees and not
the vendor would not toll the running of the 30-day period.
The petition before us appears to be an illustration of the
Holmes dictum that "hard cases make bad laws" as the
petitioners obviously cannot argue against the fact that
there was really no written notice given by the vendors to
their co-heirs. Strictly applied and interpreted, Article 1088
can lead to only one conclusion, to wit, that in view of such
deficiency, the 30 day period for redemption had not begun
to run, much less expired in 1977.
But as has also been aptly observed, we test a law by its
results; and likewise, we may add, by its purposes. It is a
cardinal rule that, in seeking the meaning of the law, the
first concern of the judge should be to discover in its
provisions the in tent of the lawmaker. Unquestionably, the
law should never be interpreted in such a way as to cause
injustice as this is never within the legislative intent. An
indispensable part of that intent, in fact, for we presume
the good motives of the legislature, is to render justice.
Thus, we interpret and apply the law not independently of
but in consonance with justice. Law and justice are
inseparable, and we must keep them so. To be sure, there
are some laws that, while generally valid, may seem
arbitrary when applied in a particular case because of its
peculiar circumstances. In such a situation, we are not
bound, because only of our nature and functions, to apply
them just the same, in slavish obedience to their language.
What we do instead is find a balance between the word and
the will, that justice may be done even as the law is obeyed.
As judges, we are not automatons. We do not and must not
unfeelingly apply the law as it is worded, yielding like robots
to the literal command without regard to its cause and
consequence. "Courts are apt to err by sticking too closely
to the words of a law," so we are warned, by Justice Holmes
again, "where these words import a policy that goes beyond
them." 13 While we admittedly may not legislate, we
nevertheless have the power to interpret the law in such a
way as to reflect the will of the legislature. While we may
not read into the law a purpose that is not there, we
nevertheless have the right to read out of it the reason for
its enactment. In doing so, we defer not to "the letter that
killeth" but to "the spirit that vivifieth," to give effect to the
law maker's will.
The spirit, rather than the letter of a
statute determines its construction,
hence, a statute must be read according
to its spirit or intent. For what is within
the spirit is within the letter but
although it is not within the letter
thereof, and that which is within the
letter but not within the spirit is not
within the statute. Stated differently, a
thing which is within the intent of the
lawmaker is as much within the statute
as if within the letter; and a thing which
is within the letter of the statute is not
within the statute unless within the
intent of the lawmakers. 14
In requiring written notice, Article 1088
seeks to ensure that the redemptioner
is properly notified of the sale and to
indicate the date of such notice as the
starting time of the 30-day period of
redemption. Considering the shortness
of the period, it is really necessary, as a
general rule, to pinpoint the precise
date it is supposed to begin, to obviate
any problem of alleged delays,
sometimes consisting of only a day or
two.
The instant case presents no such problem because the
right of redemption was invoked not days but years after
the sales were made in 1963 and 1964. The complaint was
filed by Tecla Padua in 1977, thirteen years after the first
sale and fourteen years after the second sale. The delay
invoked by the petitioners extends to more than a decade,
assuming of course that there was a valid notice that tolled
the running of the period of redemption.
Was there a valid notice? Granting that the law requires the
notice to be written, would such notice be necessary in this
case? Assuming there was a valid notice although it was not
in writing. would there be any question that the 30-day
period for redemption had expired long before the
complaint was filed in 1977?
In the face of the established facts, we cannot accept the
private respondents' pretense that they were unaware of
the sales made by their brother and sister in 1963 and 1964.
By requiring written proof of such notice, we would be
closing our eyes to the obvious truth in favor of their
palpably false claim of ignorance, thus exalting the letter of
the law over its purpose. The purpose is clear enough: to
make sure that the redemptioners are duly notified. We are
satisfied that in this case the other brothers and sisters
were actually informed, although not in writing, of the sales
made in 1963 and 1964, and that such notice was sufficient.
Now, when did the 30-day period of redemption begin?
While we do not here declare that this period started from
the dates of such sales in 1963 and 1964, we do say that
sometime between those years and 1976, when the first
complaint for redemption was filed, the other co-heirs were
actually informed of the sale and that thereafter the 30-day
period started running and ultimately expired. This could
have happened any time during the interval of thirteen
years, when none of the co-heirs made a move to redeem
the properties sold. By 1977, in other words, when Tecla
Padua filed her complaint, the right of redemption had
already been extinguished because the period for its
exercise had already expired.
The following doctrine is also worth noting:
While the general rule is, that to charge
a party with laches in the assertion of
an alleged right it is essential that he
should have knowledge of the facts
upon which he bases his claim, yet if the
circumstances were such as should
have induced inquiry, and the means of
ascertaining the truth were readily
available upon inquiry, but the party
neglects to make it, he will be
chargeable with laches, the same as if
he had known the facts. 15
It was the perfectly natural thing for the co-heirs to wonder
why the spouses Alonzo, who were not among them,
should enclose a portion of the inherited lot and build
thereon a house of strong materials. This definitely was not
the act of a temporary possessor or a mere mortgagee. This
certainly looked like an act of ownership. Yet, given this
unseemly situation, none of the co-heirs saw fit to object or
at least inquire, to ascertain the facts, which were readily
available. It took all of thirteen years before one of them
chose to claim the right of redemption, but then it was
already too late.
We realize that in arriving at our conclusion today, we are
deviating from the strict letter of the law, which the
respondent court understandably applied pursuant to
existing jurisprudence. The said court acted properly as it
had no competence to reverse the doctrines laid down by
this Court in the above-cited cases. In fact, and this should
be clearly stressed, we ourselves are not abandoning the De
Conejero and Buttle doctrines. What we are doing simply is
adopting an exception to the general rule, in view of the
peculiar circumstances of this case.
The co-heirs in this case were undeniably informed of the
sales although no notice in writing was given them. And
there is no doubt either that the 30-day period began and
ended during the 14 years between the sales in question
and the filing of the complaint for redemption in 1977,
without the co-heirs exercising their right of redemption.
These are the justifications for this exception.

More than twenty centuries ago, Justinian defined justice

"as the constant and perpetual wish to render every one his
due." 16 That wish continues to motivate this Court when it
assesses the facts and the law in every case brought to it for
decision. Justice is always an essential ingredient of its
decisions. Thus when the facts warrants, we interpret the
law in a way that will render justice, presuming that it was
the intention of the lawmaker, to begin with, that the law
be dispensed with justice. So we have done in this case.

WHEREFORE, the petition is granted. The decision of the

respondent court is REVERSED and that of the trial court is
reinstated, without any pronouncement as to costs. It is so
ordered.

Teehankee, C.J., Yap, Narvasa, Melencio-Herrera Gutierrez,

Jr., Paras, Gancayco, Padilla, Bidin, Sarmiento and Cortes,
JJ., concur.

Fernan and Feliciano, JJ., are on leave.