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Decision
- 59 -
G.R. No. 227363
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
ofR.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 l(d), Article 266-A in relation to Article 266-B of the RPC, as
amended by R.A. No. 8353.
128
Record of the Senate, Bill on Second Reading, S. No. 950 - Special Law on Rape, July 29, 1996.
Section 3(h) of R.A No. 7610 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,
be"faHty, m""Mbafon, lasdviou' exhibition of the genital' or pu bk area of a pe,.,on.
~
129
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