Remarkably, the Court meticulously explained the interplay of the elements of rape
and acts of lasciviousness and Section 5(b).
It held that actual force or intimidation need not be employed in incestuous rape of
a minor because the moral and physical dominion of the father is sufficient to cow
the victim into submission.[20] The appreciation of how the sexual intercourse and
lascivious conduct in this case fell within the ambit of Section 5(b) is cogently
explained thus; appellant, as a father having moral ascendancy over his daughter,
coerced AAA to engage in lascivious conduct, which is within the purview of sexual
abuse.[21]
In People v. Abello,[22] one of the reasons the accused was convicted of rape by
sexual assault and acts of lasciviousness and penalized under the RPC and not
under Section 5(b) was because there was no showing of coercion or influence
required by the second element. The Court ratiocinated:
In Olivarez v. Court of Appeals, we explained that the phrase, "other sexual abuse"
in the above provision covers not only a child who is abused for profit, but also one
who engages in lascivious conduct through the coercion or intimidation by an
adult. In the latter case, there must be some form of compulsion equivalent to
intimidation which subdues the free exercise of the offended party's will.
In the present case, the prosecution failed to present any evidence showing
that force or coercion attended Abello's sexual abuse on AAA; the evidence
reveals that she was asleep at the time these crimes happened and only awoke
when she felt her breasts being fondled. Hence, she could have not resisted Abello's
advances as she was unconscious at the time it happened. In the same manner,
there was also no evidence showing that Abello compelled her, or cowed her into
silence to bear his sexual assault, after being roused from sleep. Neither is there
evidence that she had the time to manifest conscious lack of consent or resistance
to Abello's assault.[23]
Prior sexual affront is not always required for Section 5(b) to apply.
That is not to say that in every instance, prior sexual affront upon the child must be
shown to characterize the child as one "subjected to other sexual abuse". What is
only necessary is to show that the child is already a child exploited in prostitution or
subjected to other sexual abuse at the time the sexual intercourse or lascivious
conduct complained of was committed or that circumstances obtain prior or during
the first instance of abuse that constitutes such first instance of sexual intercourse
or lascivious conduct as having converted the child into a child "exploited in
prostitution or subjected to other sexual abuse."
I am, therefore, in full agreement with Justice Bernabe that alleging and proving
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