Art. 336. Acts of lasciviousness. - Any person who shall commit any act of
lasciviousness upon other persons of either sex, under any of the circumstances
mentioned on the preceding article, shall be punished by prision correccional.
Conviction thereunder requires that the prosecution establish the following
elements:
1. That the offender commits any act of lasciviousness or lewdness;
2. That it is done under any of the following circumstances:[18]
a) Through 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;
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.
On the other hand, the prosecution endeavored to prove petitioner's guilt beyond
reasonable doubt for child abuse under Sec. 5(b) of RA 7610, which 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; x
x x (emphasis added)
Before an accused can be held criminally liable for lascivious conduct under Sec.
5(b) of RA 7610, the requisites of Acts of Lasciviousness as penalized under Art.