. Decision - 18 - G.R. No. 227363 Note that the second proviso of Section 5(b) ofR.A. No. 7610 will not apply because it clearly has nothing to do with sexual intercourse, and it only deals with "lascivious conduct when the victim is under 12 years of age. " While the terms "lascivious conduct" and "sexual intercourse" are included in the definition of "sexual abuse" under Section 2(g) 42 of the Rules and Regulations on the Reporting and Investigation of Child Abuse Cases, note that the definition of "lascivious conduct" 43 does not include sexual intercourse. Be it stressed that the purpose of indicating the phrase "under twelve ( 12) years of age" is to provide for statutory lascivious conduct or statutory rape, whereby evidence of force, threat or intimidation is immaterial because the offended party, who is under 12 years old or is demented, is presumed incapable of giving rational consent. Ma/to ruling clarified An important distinction between violation of Section 5(b) of R.A. No. 7610 and rape under the RPC was explained in Malta v. People. 44 We ruled in Malto 45 that one may be held liable for violation of Sec. 5(b ), Article III of R.A. No. 7610 despite a finding that the person did not commit rape, because rape is a felony under the RPC, while sexual abuse against a child is punished by a special law. Said crimes are separate and distinct, and they have different elements. Unlike in rape, however, consent is immaterial in cases involving violation of Sec. 5, Art. III of R.A. No. 7610. The mere fact of having sexual intercourse or committing lascivious conduct with a child who is exploited in prostitution or subjected to sexual abuse constitutes the offense. In Malto, 46 where the accused professor indulged several times in sexual intercourse with the 17-year-old private complainant, We also stressed that since a child cannot give consent to a contract under our civil laws because she can easily be a victim of fraud as she is not capable of full understanding or knowing the nature or import of her actions, the harm which results from a child's bad decision in a sexual encounter may be infinitely more damaging to her than a bad business deal. Thus, the law 42 Section 2(g) of the Rules and Regulations on the Reporting and Investigation of Child Abuse Cases states that "sexual abuse" includes the employment, use, persuasion, inducement, enticement or coercion of a child to engage in or assist another person to engage in, sexual intercourse or lascivious conduct or the molestation, prostitution, or incest with children. 43 Section 3(h) of the Rules and Regulations on the Reporting and Investigation of Child Abuse Cases states that "lascivious conduct" means the intentional touching, either directly or through clothing, of the genitalia, 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, masturba~ion, lascivious exhibition of the genitals or pubic area of a person. 41 • 560 Phil. 119 (2007); penned by Associate Justice Renato C. Corona. 45 Supra, at 13 8. 46 Id. at 139-140.