force, threat, or intimidation; (b) when the offended party is deprived of reason or
otherwise unconscious; (c) by means of fraudulent machination or grave abuse of
authority; and (d) when the offended party is under twelve (12) years of age or is
demented, even though none of the circumstances mentioned above be present;
and (3) that the offended party is another person of either sex.[45]
On the other hand, RA 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."[46] Section 5 (b) thereof provides:
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 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 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[.]
(Emphases supplied)
The requisites for sexual abuse under Section 5 (b) of RA 7610 are as follows: (1)
the accused commits the act of sexual intercourse or lascivious conduct; (2) the
said act is performed with a child exploited in prostitution or subjected to other
sexual abuse; and (3) that the child, whether male or female, is below 18 years of
age.[47] "Lascivious conduct" is defined in Section 32, Article XIII of the
Implementing Rules and Regulations (IRR) of RA 7610, as follows:
[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