The Court's Ruling
At the outset, the Court deems it appropriate to correct the appellation of the crime
with which Fianza was charged to Acts of Lasciviousness under Article 336 of the RPC
considering that the victim, AAA, was only 11 years old at the time of the incidents. In
instances where the child subjected to sexual abuse through lascivious conduct is below
twelve (12) years of age, the offender should be prosecuted under Article 336 of the
RPC, but suffer the higher penalty of reclusion temporal in its medium period in
accordance with Section 5 (b), Article III of RA 7610, which pertinently reads:
chanRoblesvi rtual Lawli bra ry
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:
xxxx
(b) Those who commit the act of sexual intercourse or lascivious conduct with a
child exploited in prostitution or subjected to other sexual abuse; Provided, That
when the victims [sic] is under twelve (12) years of age, the perpetrators
shall be prosecuted under Article 335, paragraph 3, for rape and Article 336 of Act
No. 3815, as amended, the Revised Penal Code, for rape or lascivious conduct, as
the case may be; Provided, That the penalty for lascivious conduct when the
victim is under twelve (12) years of age shall be reclusion temporal in its
medium period x x x. (Emphasis and underscoring supplied)
Pursuant to the foregoing provision, before an accused can be convicted of child abuse
through lascivious conduct on a minor below 12 years of age, the requisites for Acts of
Lasciviousness under Article 336 of the RPC must be met in addition to the requisites
for sexual abuse thereunder.29
The elements of Acts of Lasciviousness under Article 336 of the RPC are: (a) the