Senator Lina. No, Mr. President, as stated in the Committee amendment which
has just been approved but which, of course, can still stand some individual
amendments during the period of individual amendment, it is stated that,
"PROVIDED, THAT WHEN THE VICTIM IS TWELVE (12) YEARS OR LESS, THE
PERPETRATOR SHALL BE PROSECUTED UNDER ARTICLE 335, PAR. 3, AND ARTICLE
336 OF R.A. 3815, AS AMENDED."
Article 335 of the Revised Penal Code, Mr. President, is, precisely, entitled: "When
And How Rape Is Committed." So, prosecution will still be under Article 335, when
the victim is 12 years old or below.
Senator Pimentel. Despite the presence of monetary considerations?
Senator Lina. Yes, Mr. President. It will still be rape. We will follow the concept as
it has been observed under the Revised Penal Code. Regardless of monetary
consideration, regardless of consent, the perpetrator will still be charged with
statutory rape.
Senator Pimentel. So, it is only when the victim or the child who was abused is a
male that the offender would probably be prosecuted under the distinguished
Gentleman's amendment because, obviously, the crime of rape does not cover child
abuse of males.
Senator Lina. Yes, that will be the effect, Mr. President.
Senator Pimentel. Thank you, Mr. President.[16]
Bearing these in mind, there is no disagreement as to the first and third elements
of Section 5(b). The core of the discussion relates to the meaning of the second
element that the said act is performed with a child exploited in prostitution or
subjected to other sexual abuse.
To my mind, a person can only be convicted of violation of Article 336 in relation to
Section 5(b), upon allegation and proof of the unique circumstances of the child that he or she is exploited in prostitution or subject to other sexual abuse. In this
light, I quote in agreement Justice Carpio's dissenting opinion in Olivarez v. Court
of Appeals[17]:
Section 5 of RA 7610 deals with a situation where the acts of lasciviousness are
committed on a child already either exploited in prostitution or subjected to "other
sexual abuse." Clearly, the acts of lasciviousness committed on the child are
separate and distinct from the other circumstance - that the child is either
exploited in prostitution or subjected to "other sexual abuse."
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