.
Decision
- 18 -
G.R. No. 227363
Note that the second proviso of Section 5(b) ofR.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.
Ma/to ruling clarified
An important distinction between violation of Section 5(b) of R.A.
No. 7610 and rape under the RPC was explained in Malta 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
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, masturba~ion,
lascivious exhibition of the genitals or pubic area of a person.
41
•
560 Phil. 119 (2007); penned by Associate Justice Renato C. Corona.
45
Supra, at 13 8.
46
Id. at 139-140.
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