No. 7610, where the law provides for the higher penalty of reclusion temporal
medium, if the offended party is a child victim. But if the victim is at least eighteen
(18) years of age, the offender should be liable under Art. 266-A, par. 2 of the RPC
and not R.A. 7610, unless the victim is at least 18 years old and she is unable to
fully take care of herself or protect herself from abuse, neglect, cruelty, exploitation
or discrimination because of a physical or mental disability or condition, in which
case, the offender may still be held liable of sexual abuse under R.A. No. 7610. The
reason for the foregoing is that, aside from the affording special protection and
stronger deterrence against child abuse, R.A. No. 7610 is a special law which
should clearly prevail over R.A. 8353, which is a mere general law amending the
RPC.[15]
In People v. Chingh,[16] the Court noted that "it was not the intention of the
framers of R.A. No. 8353 to have disallowed the applicability of R.A. No. 7610 to
sexual abuses committed to children. Despite the passage of R.A. No. 8353, R.A.
No. 7610 is still good law, which must be applied when the victims are children or
those 'persons below eighteen (18) years of age or those over but are unable to
fully take care of themselves or protect themselves from abuse, neglect, cruelty,
exploitation or discrimination because of a physical or mental disability or
condition."'
In People v. Noel Go Caoili,[17] the Court prescribed guidelines in designating or
charging the proper offense in case lascivious conduct is committed under Section
5(b) of R.A. No. 7610, and in determining the imposable penalty. "If the victim of
lascivious conduct is under twelve (12) years of age, the nomenclature of the crime
should be 'Acts of Lasciviousness under Article 336 of the Revised Penal Code in
relation to Section 5(b), Article III of R.A. No. 7610' and pursuant to the second
proviso thereof, the imposable penalty is reclusion temporal in its medium period."
In this case, it was alleged in the information, stipulated during pre-trial and
indicated in her birth certificate[18] that BBB was 11 years old at the time of the
commission of the crime charged in Criminal Case No. RTC-2003-0294.
However, before an accused can be held criminally liable for lascivious conduct
under Section 5(b), Art. III of R.A. No. 7610, the Court held in Quimvel v.
People[19] that the requisites of acts of lasciviousness as penalized under Art. 336
of the RPC must be met in addition to the requisites for sexual abuse under Section
5(b), Art. III of R.A. No. 7610, namely:
1. The offender commits any act of lasciviousness or lewdness;
2. That it be done under any of the following circumstances:
a. Through force, threat, or intimidation;
b. When the offended party is deprived of reason or otherwise unconscious;