each offense, setting out separately the findings of feet and law in each
offense."48 Consequently, since accused-appellant failed to file a motion to quash the
Information, he can be convicted with two counts of rape.
As to the penalty for the rape committed by accused-appellant under paragraph 1 (d),
Article 266-A of the RPC, as amended, Article 266-B of the same Code provides that the
death penalty shall be imposed if the victim is a child below seven years old. However,
following Republic Act No. 9346 (RA 9346),49 the RTC, as affirmed by the CA, correctly
imposed upon accused-appellant the penalty of reclusion perpetua in lieu of death, but
it should be specified that it is without eligibility for parole,50 as the RTC did not state it
in the dispositive portion of its Decision.
With respect to the penalty for rape through sexual assault under paragraph 2, Article
266-A of the RPC, it is undisputed that at the time of the commission of the sexual
abuse, AAA was four (4) years old. This calls for the application of Republic Act No.
7610 (R.A. 7610), or The Special Protection of Children Against Child Abuse,
Exploitation and Discrimination Act, which defines sexual abuse of children and
prescribes the penalty therefor in Section 5 (b), Article 111, to wit:
SEC. 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.
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The penalty of reclusion temporal in its medium period to reclusion perpetua shall be
imposed upon the following:
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(b) Those who commit the act of sexual intercourse or lascivious conduct with a child
exploited in prostitution or subjected 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.51
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The abovequoted paragraph (b) punishes sexual intercourse or lascivious conduct not
only with a child exploited in prostitution, but also with a child subjected to other sexual
abuses. It covers not only a situation where a child is abused for profit, but also where
one - through coercion, intimidation or influence - engages in sexual intercourse or
lascivious conduct with a child.
In connection with the above provision of law, Section 2 (h) of the Rules and
Regulations on the Reporting and Investigation of Child Abuse Cases,52 which was
promulgated pursuant to Section 32 of R.A. No. 7610, defines "Lascivious conduct"
as:
[T]he intentional touching, either directly or through clothing, of the genilalia, 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, masturbation, lascivious exhibition of the genitals or pubic area
of a person.
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