offender commits any act of lasciviousness or lewdness; (b) the lascivious act is
done under any of the following circumstances: (i) by using force or intimidation; (ii)
when the offended party is deprived of reason or otherwise unconscious; or (iii) when
the offended party is under twelve (12) years of age; and (c) the offended party
is another person of either sex.30 On the other hand, sexual abuse, as defined under
Section 5 (b), Article III of RA 7610 has three (3) elements: (a) the accused commits
an act of sexual intercourse or lascivious conduct; (b) the said act is performed with
a child exploited in prostitution or subjected to other sexual abuse; and (c) the child
is below eighteen (18) years old.31
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. Hence, whether or not a particular conduct is lewd,
by its very nature, cannot be pigeonholed into a precise definition.32
Lascivious conduct, on the other hand, is defined under Section 2 (h) of the Rules
and Regulations on the Reporting and Investigation of Child Abuse Cases (Rules on
Child Abuse Cases) as:
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[T]he intentional touching, either directly or through clothing, of the genitalia, anus,
groin, breast, inner thigh, or buttocks, or the introduction of any object into the
genitalia, anus, or mouth, of any person, whether of the same or opposite sex, with an
intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of
any person, bestiality, masturbation, lascivious exhibition of the genitals or pubic area
of a person;
In the present case, the existence of all the elements of Acts of Lasciviousness under
Article 336 of the RPC, as well as the first and third elements of sexual abuse under
Section 5 (b), Article III of RA 7610, remains undisputed. Records disclose that on two
(2) occasions in July 2010 and on November 30, 2010, Fianza induced AAA, an 11year-old minor, to hold his penis and masturbate him. The only point of dispute is with