G.R. No.
193854 September 24, 2012 Appellant met AAA a few days before June 2005 when the latter was introduced to her by her cousin
PEOPLE OF THE PHILIPPINES, Appellee,
vs.
DINA DULAY y PASCUAL, Appellant.
DECISION
PERALTA, J.:
This is to resolve an appeal from the Decision1 dated August 4, 2010 of the Court of Appeals (CA) in
CA-G.R. CR-HC No. 03725 affirming with modification the Decision 2 dated October 8, 2008 of the
Regional Trial Court (RTC), Branch 194, Parañaque City, finding appellant Dina Dulay guilty beyond
reasonable doubt of the crime of Rape under Article 266-A. No. 1 (a) of the Revised Penal Code (RPC)
as amended by Republic Act (R.A.) 8353 as a co-principal by indispensable cooperation.
The records bear the following factual antecedents:
Private complainant AAA3 was 12 years old when the whole incident happened. AAA's sister introduced
the appellant to AAA as someone who is nice. Thereafter, appellant convinced AAA to accompany her
at a wake at GI San Dionisio, Parañaque City. Before going to the said wake, they went to a casino to
look for appellant's boyfriend, but since he was not there, they went to Sto. Niño at Don Galo. However,
appellant's boyfriend was also not there. When they went to Bulungan Fish Port along the coastal road
to ask for some fish, they saw appellant's boyfriend. Afterwards, AAA, appellant and the latter's
boyfriend proceeded to the Kubuhan located at the back of the Bulungan Fish Port. When they reached
the Kubuhan, appellant suddenly pulled AAA inside a room where a man known by the name "Speed"
was waiting. AAA saw "Speed" give money to appellant and heard "Speed" tell appellant to look for a
younger girl. Thereafter, "Speed" wielded a knife and tied AAA's hands to the papag and raped her.
AAA asked for appellant's help when she saw the latter peeping into the room while she was being
raped, but appellant did not do so. After the rape, "Speed" and appellant told AAA not to tell anyone
what had happened or else they would get back at her.
AAA went to San Pedro, Laguna after the incident and told her sister what happened and the latter
informed their mother about it. AAA, her sister and mother, filed a complaint at Barangay San Dionisio.
Thereafter, the barangay officials of San Dionisio referred the complaint to the police station.
The Parañaque City Police Office (Women's and Children Concern Desk) asked the assistance of the
Child Protection Unit of the Philippine General Hospital, upon which the latter assigned the case to Dr.
Merle Tan. Consequently, with the consent of AAA and her mother, and in the presence of a social
worker of the Department of Social Welfare and Development (DSWD), Dr. Tan conducted the requisite
interview and physical examination on AAA. Later on, Dr. Tan issued a Medico-Legal Report4 stating
that there was no evident injury in the body of AAA, but medical evaluation cannot exclude sexual
abuse. During her testimony, Dr. Tan explained that such impression or conclusion pertains to the ano-
genital examination and also stated that she found multiple abrasions on the back portion of the body of
AAA.5
Thus, an Information was filed, which reads as follows:
That on or about the 3rd day of July 2005, in the City of Parañaque, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together
with one alias "Speed," whose true name and identity and present whereabouts is still unknown, and
both of them mutually helping and aiding one another, the herein accused Dina P. Dulay having
delivered and offered for a fee complainant AAA, 12 year old minor, to accused alias "Speed," who with
lewd design and by means of force and intimidation, did then and there willfully, unlawfully and
feloniously have carnal knowledge on said minor complainant AAA against her will and without her
consent, which act is prejudicial to the normal growth and development of the said child.
CONTRARY TO LAW.6
With the assistance of counsel de oficio, on August 3, 2005, appellant entered a plea of not
guilty.7 Therafter, trial on the merits ensued.
To support the above allegations, the prosecution presented the testimonies of AAA and Dr. Merle Tan.
On the other hand, the defense presented the sole testimony of appellant which can be summarized as
follows:
Eglay Akmad during the wake of a relative of AAA at Palanyag. The cousin of appellant was AAA's
neighbor at Palanyag. Around 1 o'clock in the morning of July 3, 2005, appellant averred that she was
at La Huerta, at the Bulungan Fish Port in Parañaque City with her cousin Eglay and stayed there for
about thirty (30) minutes. They then proceeded to the house of appellant's cousin in Palanyag. In the
said house, appellant saw "Speed" and two (2) other male persons. She also saw AAA who was
engaged in a conversation with "Speed" and his two (2) companions. She asked AAA what she was
doing there and the latter said that it was none of her business ("wala kang pakialam sa akin"). Because
of the response of AAA, appellant left the house and went home to General Trias, Cavite.
On October 8, 2008, the RTC found appellant guilty beyond reasonable doubt of the crime of rape as
co-principal by indispensable cooperation. The dispositive portion of the decision reads:
WHEREFORE, finding Accused Danilo guilty beyond reasonable doubt for rape as a co-principal by
indispensable cooperation, she is hereby sentenced to suffer an imprisonment of Reclusion Perpetua
under Article 266-B of the Revised Penal Code and to pay the offended party the amount of ₱
50,000.00 by way of damages.
The period of her detention shall be considered part of the service of her sentence.
SO ORDERED.8
Not satisfied with the judgment of the trial court, the appellant brought the case to the CA. The latter, on
August 4, 2010, promulgated its decision affirming the ruling of the RTC with a modification on the
award of damages, thus:
WHEREFORE, the appealed Decision of the court a quo is AFFIRMED with the MODIFICATION that
the accused-appellant is sentenced to suffer the penalty of reclusion perpetua and ordered to indemnify
the offended party the sum of Fifty Thousand Pesos (₱ 50,000.00) as civil indemnity, Fifty Thousand
Pesos (₱ 50,000.00) as moral damages and Twenty-Five Thousand Pesos (₱ 25,000.00) as exemplary
damages.
SO ORDERED.9
Hence, the present appeal.
In her Brief, appellant assigned the following errors:
I
THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY
OF RAPE AS CO-PRINCIPAL BY INDISPENSABLE COOPERATION.
II
THE TRIAL COURT GRAVELY ERRED IN GIVING FULL WEIGHT AND CREDENCE TO
THE TESTIMONY OF THE PRIVATE COMPLAINANT AAA.10
The Office of the Solicitor General, representing the appellee, refutes the above assignment of errors by
stating the following arguments:
I.
CONSPIRACY WAS CLEARLY ESTABLISHED IN THIS CASE.
II.
THE LOWER COURT DID NOT ERR IN BELIEVING THE TESTIMONY OF PRIVATE
COMPLAINANT.
III.
ACCUSED-APPELLANT'S DEFENSE OF DENIAL CANNOT BE GIVEN GREATER
EVIDENTIARY WEIGHT THAN THE POSITIVE TESTIMONY OF PRIVATE COMPLAINANT.11
An appeal in a criminal case throws the whole case wide open for review and the reviewing tribunal can
correct errors, though unassigned in the appealed judgment, or even reverse the trial court's decision
on the basis of grounds other than those that the parties raised as errors. 12
The appellant in this case was charged in the Information as having committed the crime of Rape under
Article 266-A, No. 1 (a) of the RPC, as amended by R.A. 8353 in relation to Section 5 (b) of R.A. 7610.
She was eventually convicted by the trial court of the crime of rape as a co-principal by indispensable
cooperation and was sentenced to suffer imprisonment of reclusion perpetua as provided under Article
266-B of the RPC.
In sustaining the conviction of the appellant as co-principal by indispensable cooperation, the CA,
ratiocinated:
To cooperate means to desire or wish in common a thing. But that common will or purpose does not
necessarily mean previous understanding, for it can be explained or inferred from the circumstances of
each case. The cooperation must be indispensable, that is, without which the commission of the crime
would not have been accomplished. x x x
xxxx
The proven facts and circumstances obtaining in this case fall squarely on the above-cited example. It
will be noted that the cooperation of the accused-appellant consisted in performing an act which is
different from the act of execution of the crime committed by the rapist. Accused-appellant cooperated
in the perpetration of the crime of rape committed by "Speed" by acts without which the crime would not
have been consummated, since she prepared the way for the perpetration thereof, convinced the victim
to go with her under the guise of looking for her boyfriend and upon arrival at the kubuhan, she pulled
the victim inside a room where "Speed" was waiting, delivered the victim to him, and then after receiving
some amount of money from "Speed" she settled in another room together with her boyfriend so that
"Speed" might freely consummate the rape with violence and intimidation, as he did. 13
However, this Court is of another view and does not subscribe to the findings of the trial court, as
sustained by the CA that appellant is guilty beyond reasonable doubt as co-principal by indispensable
cooperation in the crime of rape.
Under the Revised Penal Code,14 an accused may be considered a principal by direct participation, by
inducement, or by indispensable cooperation. To be a principal by indispensable cooperation, one must
participate in the criminal resolution, a conspiracy or unity in criminal purpose and cooperation in the
commission of the offense by performing another act without which it would not have been
accomplished.15 Nothing in the evidence presented by the prosecution does it show that the acts
committed by appellant are indispensable in the commission of the crime of rape. The events narrated
by the CA, from the time appellant convinced AAA to go with her until appellant received money from
the man who allegedly raped AAA, are not indispensable in the crime of rape. Anyone could have
accompanied AAA and offered the latter's services in exchange for money and AAA could still have
been raped. Even AAA could have offered her own services in exchange for monetary consideration
and still end up being raped. Thus, this disproves the indispensable aspect of the appellant in the crime
of rape. It must be remembered that in the Information, as well as in the testimony of AAA, she was
delivered and offered for a fee by appellant, thereafter, she was raped by "Speed." Thus:
PROS. R. GARCIA: Now, what happened after you met this Dina Dulay?
WITNESS AAA: She invited me to go with her boyfriend, Sir.
xxxx
Q: You went to the bulungan, what happened when you reached the fish port or bulungan, AAA?
A: Pumunta kami sa kubuhan, Sir.
Q: Where is this kubuhan located in relation to the fish port?
A: At the back portion, Sir.
Q: And, when you said pumunta kami, who was then your companion in going to that kubuhan?
A: Dina Dulay and her boyfriend, Sir.
Q: Do you know the name of the boyfriend of Dina Dulay?
A: No, Sir.
xxxx
Q: All right. After reaching the kubuhan, what happened next?
A: Pina-rape po ako, Sir.
Q: What made you say AAA that accused here Dina Dulay had you raped at the kubuhan?
A: Kasi po binayaran siya nung lalaki, Sir.
Q: Now, do you know how much this Dina Dulay was paid by that person who was you said raped you?
A: No, Sir. I just saw them.
Q: And what did you see that was paid to Dina?
A: Pera, Sir.
Q: Aside from seeing a guy giving money to Dina Dulay, did you hear any conversation between this
Dina Dulay and that man who gave money to her?
A: Yes, sir.
Q: Can you tell this Honorable Court AAA, what was that conversation you heard between this Dina
Dulay and the person who gave money to her?
A: He said to look for a younger girl, Sir.16
xxxx
PROS. R. GARCIA:
Q: Okay. After that conversation and the giving of money to Dina Dulay, what happened to you and the
man?
A: He raped me, Sir.
Q: Where were you raped?
A: At the Kubuhan, Sir. Q: Can you describe to this Honorable Court how you were raped by that
person?
A: He tied me up, Sir.
Q: How were you tied up as you said?
A: He tied up both my hands, Sir.
Q: Then after tying your hands what happened next?
A: He raped me and he pointed a knife at me, Sir.
Q: When you said you were raped, are you referring to the insertion of his penis into your sex organ?
A: Yes, Sir.
Q: And, how did you feel at that time when the organ of this man was inserted into your organ?
A: It was painful, Sir.
Q: And, how did you react when as you said you were being raped by this person?
A: I cannot talk. He put clothes in my mouth, Sir.
Q: For how long did you stay in that kubuhan with this man? May isang oras ba kayo doon?
A: Yes, Sir.
Q: Now, tell us how AAA many times did this person insert his penis into your organ?
A: Only one (1) AAA, Sir.17
It must be clear that this Court respects the findings of the trial court that AAA was indeed raped by
considering the credibility of the testimony of AAA. The rule is that factual findings of the trial court and
its evaluation of the credibility of witnesses and their testimonies are entitled to great respect and will
not be disturbed on appeal.18However, the review of a criminal case opens up the case in its entirety.
The totality of the evidence presented by both the prosecution and the defense are weighed, thus,
avoiding general conclusions based on isolated pieces of evidence. 19 In the case of rape, a review
begins with the reality that rape is a very serious accusation that is painful to make; at the same time, it
is a charge that is not hard to lay against another by one with malice in her mind. Because of the private
nature of the crime that justifies the acceptance of the lone testimony of a credible victim to convict, it is
not easy for the accused, although innocent, to disprove his guilt. These realities compel this Court to
approach with great caution and to scrutinize the statements of a victim on whose sole testimony
conviction or acquittal depends.20
In this light, while this Court does not find appellant to have committed the crime of rape as a principal
by indispensable cooperation, she is still guilty of violation of Section 5 (a) of R.A. 7610, or the Special
Protection of Children Against Abuse, Exploitation and Discrimination Act, which states that:
Section 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.
The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the
following:
(a) Those who engage in or promote, facilitate or induce child prostitution which include, but are not
limited to, the following:
 (1) Acting as a procurer of a child prostitute;
(2) Inducing a person to be a client of a child prostitute by means of written or oral
advertisements or other similar means;
(3) Taking advantage of influence or relationship to procure a child as a prostitute;
(4) Threatening or using violence towards a child to engage him as a prostitute; or
(5) Giving monetary consideration goods or other pecuniary benefit to a child with intent to
engage such child in prostitution.21
The elements of paragraph (a) are:
1. the accused engages in, promotes, facilitates or induces child prostitution;
2. the act is done through, but not limited to, the following means:
a. acting as a procurer of a child prostitute;
b. inducing a person to be a client of a child prostitute by means of written or oral
advertisements or other similar means;
c. taking advantage of influence or relationship to procure a child as a prostitute;
d. threatening or using violence towards a child to engage him as a prostitute; or
e. giving monetary consideration, goods or other pecuniary benefit to a child with
intent to engage such child in prostitution;
3. the child is exploited or intended to be exploited in prostitution and
4. the child, whether male or female, is below 18 years of age. 22
Paragraph (a) essentially punishes acts pertaining to or connected with child prostitution. It
contemplates sexual abuse of a child exploited in prostitution. In other words, under paragraph (a), the
child is abused primarily for profit.23
As alleged in the Information and proven through the testimony of AAA, appellant facilitated or induced
child prostitution. 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. 24 Thus,
the act of apellant in convincing AAA, who was 12 years old at that time, to go with her and thereafter,
offer her for sex to a man in exchange for money makes her liable under the above-mentioned law. The
purpose of the law is to provide special protection to children from all forms of abuse, neglect, cruelty,
exploitation and discrimination, and other conditions prejudicial to their development. 25 A child exploited
in prostitution may seem to "consent" to what is being done to her or him and may appear not to
complain. However, we have held that a child who is "a person below eighteen years of age or those
unable to fully take care of themselves or protect themselves from abuse, neglect, cruelty, exploitation
or discrimination because of their age or mental disability or condition" is incapable of giving rational
consent26 to any lascivious act or sexual intercourse.
It must be noted that in the Information, it was alleged that appellant was accused of Rape under Article
266-A, No. 1 (a) of the RPC, as amended by R.A. 8353 in relation to Section 5 (b) of R.A. 7610, and
then went on to enumerate the elements of Section 5 (a) of R.A. 7610 in its body. The Information partly
reads:
x x x the herein accused Dina P. Dulay having delivered and offered for a fee complainant AAA, 12 year
old minor, to accused alias "Speed," who with lewd design and by means of force and intimidation, did
then and there willfully, unlawfully and feloniously have carnal knowledge on said minor complainant
AAA against her will and without her consent x x x 27
Undoubtedly, the above-quoted falls under Section 5 (a) of R.A. 7610, the appellant acting as a
procurer of a child and inducing the latter into prostitution. It must be remembered that the character of
the crime is not determined by the caption or preamble of the information nor from the specification of
the provision of law alleged to have been violated, they may be conclusions of law, but by the recital of
the ultimate facts and circumstances in the complaint or information.28 The sufficiency of an information
is not negated by an incomplete or defective designation of the crime in the caption or other parts of the
information but by the narration of facts and circumstances which adequately depicts a crime and
sufficiently apprises the accused of the nature and cause of the accusation against him. 29 1âwphi1
To dispute the allegation and the evidence presented by the prosecution, appellant merely interposes
the defense of denial. It is well settled that denial is essentially the weakest form of defense and it can
never overcome an affirmative testimony, particularly when it comes from the mouth of a credible
witness.30
Anent the penalty, for violation of the provisions of Section 5, Article III of R.A. 7610, the penalty
prescribed is reclusion temporal in its medium period to reclusion perpetua. Therefore, in the absence
of any mitigating or aggravating circumstance, the proper imposable penalty is reclusion temporal in its
maximum period, the medium of the penalty prescribed by the law. 31 Notwithstanding that R.A. 7610 is
a special law, appellant may enjoy the benefits of the Indeterminate Sentence Law.32 Since the penalty
provided in R.A. 7610 is taken from the range of penalties in the Revised Penal Code, it is covered by
the first clause of Section 1 of the Indeterminate Sentence Law.33 Thus, appellant is entitled to a
maximum term which should be within the range of the proper imposable penalty of reclusion temporal
in its maximum period (ranging from 17 years, 4 months and 1 day to 20 years) and a minimum term to
be taken within the range of the penalty next lower to that prescribed by the law: prision mayor in its
medium period to reclusion temporal in its minimum period (ranging from 8 years and 1 day to 14 years
and 8 months).34
As to the award of damages, the same must be consistent with the objective of R.A. 7610 to afford
children special protection against abuse, exploitation and discrimination and with the principle that
every person who contrary to law, willfully or negligently causes damage to another shall indemnify the
latter for the same.35 Therefore, civil indemnity to the child is proper in a case involving violation of
Section 5 (a), Article III of R.A. 7610. This is also in compliance with Article 100 of the RPC which states
that every person criminally liable is civilly liable. Hence, the amount of ₱ 50,000.00 civil indemnity ex
delicto as awarded in cases of violation of Section 5 (b), Article III of R.A. 761036 shall also be the same
in cases of violation of Section 5 (a), Article III of R.A. 7610.
WHEREFORE, the appeal of appellant Dina Dulay y Pascual is hereby DISMISSED. However, the
Decision of the CA is hereby MODIFIED as appellant is not guilty beyond reasonable doubt of the crime
of rape, but of violating Section 5 (a), Article III R.A. 7610, amended, for which she is sentenced to
fourteen (14) years and eight (8) months of reclusion temporal, as minimum, to twenty (20) years of
reclusion temporal, as maximum. Appellant is also ORDERED to pay AAA the amount of ₱ 50,000.00
as civil indemnity.
SO ORDERED.
 FIRST DIVISION The next day, on October 31, 1995, Dr. Noel Minay, medico-legal officer of the National Bureau of
Investigation, examined BBB. He found that her maidenhead was short, intact and had a narrow opening at 0.3 cm.
CLEMENT JOHN FERDINAND M. G.R. No. 147913 in diameter. He concluded that these findings precluded complete penetration by an average-sized Filipino male
NAVARRETE, organ in full erection.[17]
Petitioner, Present:
Testifying in his own behalf, petitioner denied the accusation against him and claimed that AAA merely
PUNO, J., Chairperson, concocted the charge against him. He alleged that she had ill feelings against his mother who she thought had
SANDOVAL-GUTIERREZ, something to do with the separation of her (AAAs) son from the Philippine Postal Corporation. He also posited that
- v e r s u s - CORONA, she resented the Navarretes refusal to allow her to place a jumper on their electrical connection.[18]
AZCUNA and
GARCIA, JJ. In a decision dated January 16, 1997, the RTC absolved petitioner of statutory rape as there was no clear
and positive proof of the entry of petitioners penis into the labia of the victims vagina. However, it convicted
PEOPLE OF THE PHILIPPINES, petitioner for acts of lasciviousness under Article 336 of the Revised Penal Code (RPC) in relation to Section 5(b),
Respondent. Promulgated: Article III of RA 7610 (Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act):

January 31, 2007 WHEREFORE, [petitioner] Clement John Ferdinand Navarrete is sentenced to suffer
an indeterminate imprisonment of TWELVE (12) YEARS and ONE (1) DAY of RECLUSION
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x TEMPORAL, as minimum to [SIXTEEN] (16) YEARS of RECLUSION TEMPORAL, as
maximum with the accessory penalties prescribed by the law and to pay the costs.

DECISION The accused is hereby ordered to indemnify the victim the amount of P20,000.00 as
moral damages and the amount of P10,000.00 pursuant to Section 31 of the [Act].[19]
CORONA, J.:

This petition for review on certiorari[1] assails the September 29, 2000 decision[2] and May 4, 2001 resolution[3] of
the Court of Appeals (CA) in CA-G.R. CR No. 20531 which affirmed the January 16, 1997 decision of the Regional
Trial Court (RTC), Branch 171, Valenzuela,[4] Metro Manila in Criminal Case No. 5302-V-96.[5]
Petitioner Clement John Ferdinand M. Navarrete was charged with the crime of statutory rape of
BBB[6] under the following information:
On appeal, the CA affirmed the decision of the RTC. Thus, this petition.
Petitioner asserts that he cannot be convicted of acts of lasciviousness in relation to Section 5(b), Article
III of RA 7610, a crime not specifically alleged in the information which charged him with statutory rape. Otherwise,
his constitutional right to be informed of the nature and cause of the accusation against him would be violated. He
likewise contends that his guilt for the said offense was not proven beyond reasonable doubt.
There is no merit in the petition.

That on or about October 30, 1995 in Valenzuela, Metro Manila and within the The Constitution mandates that the accused, in all criminal prosecutions, shall enjoy the right to be
jurisdiction of this Honorable Court, the above-named accused, did then and there [willfully], informed of the nature and cause of the accusation against him.[20] From this fundamental precept proceeds the rule
unlawfully and feloniously have sexual intercourse with one [BBB], age[d] 5 years old. that the accused may be convicted only of the crime with which he is charged. [21]

CONTRARY TO LAW.[7] An exception to this rule is the rule on variance in Section 4, Rule 120 of the Rules of Court:[22]

On arraignment, petitioner pleaded not guilty.
The facts show that BBB, who was at that time five years old, and petitioner were neighbors, their houses
being adjacent to each other.[8] On October 30, 1995, at around past 9:00 in the evening, BBB went to petitioners
house to watch television, which was something she often did.[9]Only petitioner and BBB were there that
night.[10] BBB testified that it was on this occasion that petitioner sexually abused her, placed his penis [in her]
vagina twice, poked her vagina with a stick with cotton [11] and boxed her on the right side of her eye.[12] Then,
petitioner brought her to the comfort room and pointed a knife to her throat.[13] Afterwards, she and petitioner
watched a pornographic movie[14] together.[15]
AAA, BBBs mother, testified that around 10:30 p.m., BBB went out of petitioners house. While trembling
and crying, BBB embraced her mother and told her that Kuya Ferdie sinundot ako.[16]
Judgment in case of variance between allegation and proof. When there is variance between the
offense charged in the complaint or information, and that proved, and the offense as charged is
included in or necessarily includes the offense proved, the accused shall be convicted of the
offense proved which is included in the offense charged, or of the offense charged which is
included in that which is proved.
Petitioner was found guilty of violating Article 336 of the RPC in relation to Section 5(b), Article III of
RA 7610:
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.
 The penalty of reclusion temporal in its medium period to reclusion perpetua shall be Q: Also named Clement John Ferdinand Navarette?
imposed upon the following: A: Yes, sir.

xxx xxx xxx Q: Why do you know Clement John Ferdinand Navarette?
A: Because he is the one who did something to me.

(b) Those who commit the act of sexual intercourse or lascivious conduct with a child Q: What do you mean by umano?
exploited in prostitution or subjected to other sexual abuse: Provided, That when the victim is A. He placed his penis into my vagina. (pekpek)
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, [or] the [RPC], for rape or lascivious
conduct as the case may be: Provided, That the penalty for lascivious conduct when the victim Q: How many times?
is under twelve (12) years of age shall be reclusion temporal in its medium period. A: Two times, sir.

Q: Then he placed his penis to your vagina, what did you feel?
Under this provision, when the victim is under 12 years old, the accused shall be prosecuted under either A: I felt pain, sir.
Article 335 (for rape) or Article 336 (for acts of lasciviousness) of the RPC.Accordingly, although an accused is
charged in the information with the crime of statutory rape (i.e., carnal knowledge of a woman under twelve years xxx xxx xxx
of age[23]), the offender can be convicted of the lesser crime of acts of lasciviousness, which is included in rape. [24]
Q: What else happened after Ferdinand Navarette put his penis twice on your vagina which you
The case of People v. Bon[25] is squarely in point. In that case, the accused was charged with the rape of a told the Court you felt pain?
six-year old girl. The Court ruled that rape was not proved beyond reasonable doubt. We, however, held that the A: He locked me inside the [comfort room] and he took a knife.
accused was liable for the crime of acts of lasciviousness, as defined and penalized under Article 336 of the RPC in
relation to RA 7610[26] since all the elements of this offense were established. Petitioner cannot therefore Q: Now, when you were inside the Comfort Room and you told the Court that he got a knife,
successfully argue that his constitutionally protected right to be informed of the nature and cause of the accusation what happened next, if any?
against him was violated when he was found guilty under Section 5 of RA 7610. A: He stabbed me.
Petitioner next contends that his guilt was not proven beyond reasonable doubt. We disagree.
Q: Where?
In Amployo v. People,[27] we declared that pursuant to Section 5 (b) of RA 7610, before an accused can be A: (Witness pointing the throat.)
convicted of child abuse through lascivious conduct on a minor below 12 years of age, the requisites for acts of
lasciviousness under Article 336 of the RPC must be met in addition to the requisites for sexual abuse under Section Q: And when you said sinaksak on your throat you mean accused only pointed [to] your throat?
5 of RA 7610.[28]
xxx xxx xxx
The elements of the crime of acts of lasciviousness under Article 336 of the RPC are the following:
(1) The offender commits any act of lasciviousness or lewdness; COURT:
(2) It is done under any of the following circumstances:
a. By using force or intimidation; or [All right], witness may answer.
b. When the offended party is deprived of reason or otherwise unconscious; or
c. When the offended party is under 12 years of age; and (Witness pointing to her throat.)
(3) The offended party is another person of either sex. (emphasis supplied)[29]
The general rule is that the factual findings of the trial court deserve a high degree of respect and will not
be disturbed on appeal in the absence of any clear showing that it overlooked, misapprehended or misapplied some Q: And what is the meaning that she wants to convey?
facts or circumstances of weight and substance which can alter the result of the case. [30] We uphold the findings of
fact of the RTC, as affirmed by the CA. ATTY. TENEZA:

The RTC and CA did not find evidence of the entrance of petitioners penis into the labia of the victims Witness holding her throat.
female organ. Nevertheless, BBBs testimony established that petitioner committed lascivious acts on her:
ATTY. PRINCIPE:
BY ATTY. PRINCIPE: (to witness)
Pointing. Very clear.
Q: [BBB], do you know accused Ferdinand Navarette?
A: Yes, sir. Q: When you pointed your throat, what do you want to convey [with] the word stab?
 Q: Did you report to your mother what Ferdinand Navarette did to you?
ATTY. PRINCIPE: A: Yes, sir.

A. Sinaksak. That is, Your Honor. Because this is her interpretation of pointing the Q: How did you tell your mother?
knife. A. I told my mama Binastos ako ni Ferdie.

xxx xxx xxx Q: How did you relate that you were binastos ni Ferdie?
A: I told my mama: Mama, Ferdie [placed] his penis on my vagina and then he placed a stick
ATTY. PRINCIPE: with cotton on my vagina and then he boxed me, on my right side of my eye.

After the accused locked you in the [comfort room] with the knife, according to you, Q: How many times were you boxed by Ferdie, the accused?
what happened next, if any? A: Two (2) times, sir.[31]

xxx xxx xxx

The foregoing shows that all the elements of acts of lasciviousness were proved. That BBB was less than
twelve years old at the time of the commission of the offense was not disputed. The prosecution established that
Witness: petitioner intentionally placed his penis in BBBs vagina but without any indication that he was able to penetrate her:
Victim [BBB] testified that the accused placed his penis into my vagina and [placed]
A: Then I went [out] of the [comfort room] when I heard my mother calling me. a stick with cotton [in] my vagina but the [specific] part of her vagina where the penis was
placed was not indicated.
ATTY. PRINCIPE: (to the witness)
xxx xxx xxx
Q: And where was your mother at that time?
A : She was outside and waiting for my Kuya [XXX]. The Court cannot [assume] without doing violence to the precious jural yardstick but the
prosecution must prove and present clear, positive and conclusive evidence of the act
Q: When you were called by your mother, according to you, did you approach your mother complained of particularly that the penis of the accused gained entrance [in] the labia majora of
when hearing that she was calling you? the organ of the victim. Not even in the medical findings and testimony of the NBI Medico-
Legal Officer Dr. Noel Minay who conducted physical/genital examinations on the victim could
ATTY. TENEZA: [we] find support to justify an inference that there was entrance of the male organ of the accused
within the labia of pudendum.[32]
It was already answered, Your Honor.

ATTY. PRINCIPE : Both lower courts also found that petitioner poked victims vagina with a stick with cotton and watched a
pornographic movie with her.[33] These acts are undoubtedly acts of lasciviousness or lewdness.[34]
No.
The elements of sexual abuse under Section 5 (b) of RA 7610 that must be proven in addition to the
COURT: elements of acts of lasciviousness are as follows:
1. The accused commits the act of sexual intercourse or lascivious conduct.
Witness may answer. 2. The said act is performed with a child exploited in prostitution or subjected to other sexual
abuse.
ATTY. PRINCIPE: (to the witness) 3. The child, whether male or female, is below 18 years of age. (Emphasis supplied)[35]

Q: And what did you tell your mother, if any? Lascivious conduct is defined under Section 2 (h) of the rules and regulations[36] of RA 7610 as:
A: I embraced her.
[T]he intentional touching, either directly or through clothing, of the genitalia, anus, groin,
Q: After embracing your mother, did you tell [her] something if any? breast, inner thigh, or buttocks, or the introduction of any object into the genitalia, anus or
A: She [asked] me [why] I was still watching T.V. when the people of the house were already mouth, of any person, whether of the same or opposite sex, with an intent to abuse, humiliate,
sleeping. 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.
Q: What was your reply to your mama?
A: Because I used to watch T.V. [in] that place. The aforestated acts of petitioner undeniably amounted to lascivious conduct under this law.
 Petitioner insists that Section 5 (b) of RA 7610 refers only to those who commit the act of sexual testimony can in fact be considered as signs of veracity.[52]Aside from the fact that it is very difficult to give a
intercourse or lascivious conduct with a child exploited in prostitution and argues that this does not apply in this mechanical and accurate account of a traumatic and horrifying experience,[53] the victim here was a mere five-year
case since the victim is not a child exploited in prostitution.[37] old girl when she was put on the witness stand. We should not expect a five-year old child to explain with exact
precision the nature of the acts done to her, given her naivet and still undeveloped vocabulary and command of
Petitioners argument is untenable. In People v. Larin (and reiterated in several subsequent cases),[38] we language.[54] Despite this limitation, however, the victim never wavered in her claim that petitioner molested her.
emphasized that the law covers not only a situation in which a child is abused for profit but also one in which a
child, through coercion or intimidation, engages in any lascivious conduct.[39] The very title of Section 5, Article III In sum, we find petitioner guilty beyond reasonable doubt of acts of lasciviousness under Article 336 of
(Child Prostitution and Other Sexual Abuse) of RA 7610 shows that it applies not only to a child subjected to the RPC in relation to Section 5 (b), Article III of RA 7610.
prostitution but also to a child subjected to other sexual abuse. A child is deemed subjected to other sexual abuse
when he or she indulges in lascivious conduct under the coercion or influence of any adult. [40] Here, BBB was WHEREFORE, the petition is hereby DENIED. The September 29, 2000 decision of the Court of
sexually abused because she was coerced or intimidated by petitioner (who poked her neck with a knife) [41] to Appeals affirming the decision of the Regional Trial Court of Valenzuela, Branch 171, in Criminal Case No. 5302-
indulge in lascivious conduct. V-96 finding petitioner guilty beyond reasonable doubt of acts of lasciviousness and sentencing him to suffer
Hence, the prosecution was able to prove beyond reasonable doubt that petitioner committed acts of sexual imprisonment of twelve years and one day of reclusion temporal, as minimum, to sixteen years of reclusion
abuse against BBB. The RTC found BBBs testimony to be clear, candid, and straightforward. Her testimony was temporal, as maximum, as well as to pay P20,000 moral damages and P10,000 fine is AFFIRMED.
worthy of belief since she was young and had no ill-motive to falsely testify and impute a serious crime against the
accused.[42] In cases of acts of lasciviousness, the lone testimony of the offended party, if credible, is sufficient to Costs against petitioner.
establish the guilt of the accused.[43]
SO ORDERED.
Moreover, courts are inclined to lend credence to the testimony of children of tender years. The revelation
of an innocent child whose chastity has been abused deserves full credit, as her willingness to undergo the trouble
and the humiliation of a public trial is an eloquent testament to the truth of her complaint. [44] In so testifying, she
could have only been impelled to tell the truth.[45]
The trial courts evaluation of the testimonies of witnesses is given great respect by the appellate court in
the absence of proof that it was arrived at arbitrarily or that the trial court overlooked material facts.[46] The rationale
behind this rule is that the credibility of a witness can best be determined by the trial court since it has the direct
opportunity to observe the candor and demeanor of the witnesses at the witness stand and detect if they are telling
the truth or not.[47] We will not interfere with the trial courts assessment of the credibility of witnesses.

In the face of the serious accusation against him, petitioner could only interpose denial as defense. Denial
is an inherently weak defense and cannot prevail over the positive and categorical identification provided by the
complainant. Denial, if unsubstantiated by clear and convincing evidence, is a self-serving assertion that deserves
no weight in law.[48] As between the positive declaration of the prosecution witness and the negative statement of
the accused, the former deserves more credence.[49] The lower courts also correctly disbelieved the corroborating
testimonies of petitioners aunt and sister.[50]

Petitioner asserts that the RTC should not have given evidentiary weight to the inconsistent and
contradictory testimonies of the prosecution witnesses. He urges this Court to apply the Latin maxim falsus in unus,
falsus in omnibus (false in part, false in everything).

We disagree. We have stated that:

[T]he maxim or rule falsus in [unus], falsus in omnibus does not lay down a categorical test of
credibility. It is not a positive rule of law or of universal application. It should not be applied to
portions of the testimony corroborated by other evidence, particularly where the false portions
could be innocent mistakes. Moreover, the rule is not mandatory but merely sanctions a
disregard of the testimony of a witness if the circumstances so warrant. To completely disregard
all the testimony of a witness on this ground, his testimony must have been false as to a material
point, and the witness must have a conscious and deliberate intention to falsify a material
point.[51]

Furthermore, it should be borne in mind that even the most candid witness oftentimes makes mistakes and confused
statements. Instead of eroding the effectiveness of the evidence, such imperfections and discrepancies in the

G.R. No. 177752 February 24, 2009
PEOPLE OF THE PHILIPPINES, Appellant,
vs.
ROBERTO ABAY y TRINIDAD, Appellee.
DECISION
CORONA, J.:
On March 8, 2000, appellant Roberto Abay y Trinidad was charged with rape in relation to Section 5(b),
Article III of RA 7610 in the Regional Trial Court (RTC) of Manila, Branch 41 under the following
Information:
That sometime in December 1999, in the City of Manila, Philippines, [appellant] by means of force and
intimidation, did then and there willfully, unlawfully and knowingly commit sexual abuse and lascivious
conduct against [AAA], a minor, 13 years of age, by then and there kissing her breast and whole body,
lying on top of her and inserting his penis into her vagina, thus succeeded in having carnal knowledge
of her, against her will and consent thereafter threatening to kill her should she report the incident,
thereby gravely endangering her survival and normal growth and development, to the damage and
prejudice of [AAA].
CONTRARY TO LAW.
Appellant pleaded not guilty during arraignment.
During trial, the prosecution presented AAA, her mother BBB and expert witness Dr. Stella Guerrero-
Manalo of the Child Protection Unit of the Philippine General Hospital as its witnesses.
AAA testified that appellant, her mother’s live-in partner, had been sexually abusing her since she was
seven years old. Whenever her mother was working or was asleep in the evening, appellant would
threaten her with a bladed instrument2 and force her to undress and engage in sexual intercourse with
him.
BBB corroborated AAA’s testimony. She testified that she knew about appellant’s dastardly acts.
However, because he would beat her up and accuse AAA of lying whenever she confronted him, she
kept her silence. Thus, when she caught appellant in the act of molesting her daughter on December
25, 1999, she immediately proceeded to the police station and reported the incident.
According to Dr. Guerrero-Manalo, AAA confided to her that appellant had been sexually abusing her
for six years. This was confirmed by AAA’s physical examination indicating prior and recent penetration
injuries.
The defense, on the other hand, asserted the incredibility of the charge against appellant. Appellant’s
sister, Nenita Abay, and appellant’s daughter, Rizza, testified that if appellant had really been sexually
abusing AAA, the family would have noticed. The rooms of their house were divided only by ¼-inch
thick plywood "walls" that did not even reach the ceiling. Thus, they should have heard AAA’s cries.
Moreover, Nenita and Rizza claimed that they "often caught" AAA and her boyfriend in intimate
situations.
According to the RTC, one wrongly accused of a crime will staunchly defend his innocence. Here,
appellant kept his silence which was contrary to human nature. On the other hand, AAA
straightforwardly narrated her horrifying experience at the hands of appellant. The RTC concluded that
appellant had indeed sexually abused AAA. A young girl would not have exposed herself to humiliation
and public scandal unless she was impelled by a strong desire to seek justice.3
In a decision dated November 25, 2003,4 the RTC found appellant guilty beyond reasonable doubt of
the crime of rape:
WHEREFORE, finding [appellant] Roberto Abay y Trinidad guilty beyond reasonable doubt of
committing the crime of rape under Article 335 of the Revised Penal Code in relation to Section 5,
Article III of RA 7610 against [AAA], the Court imposes upon him the death penalty, 5 and to pay private
complainant moral damages in the amount of Fifty Thousand (₱50,000) Pesos.
SO ORDERED.
The Court of Appeals (CA), on intermediate appellate review, 6 affirmed the findings of the RTC but
modified the penalty and award of damages.
In view of the enactment of RA 83537 and RA 9346,8 the CA found appellant guilty only of simple rape
and reduced the penalty imposed to reclusion perpetua. Furthermore, in addition to the civil
indemnity ex delicto (which is mandatory once the fact of rape is proved)9 granted by the RTC, it
awarded ₱50,000 as moral damages and ₱25,000 as exemplary damages. Moral damages are
automatically granted in rape cases without need of proof other than the commission of the
crime10 while exemplary damages are awarded by way of example and in order to protect young girls
from sexual abuse and exploitation.11
We affirm the decision of the CA with modifications.
Under Section 5(b), Article III of RA 761012 in relation to RA 8353,13 if the victim of sexual abuse14 is
below 12 years of age, the offender should not be prosecuted for sexual abuse but for statutory rape
under Article 266-A(1)(d) of the Revised Penal Code15 and penalized with reclusion perpetua.16 On the
other hand, if the victim is 12 years or older, the offender should be charged with either sexual
abuse17 under Section 5(b) of RA 7610 or rape under Article 266-A (except paragraph 1[d]) of the
Revised Penal Code. However, the offender cannot be accused of both crimes18 for the same act
because his right against double jeopardy will be prejudiced. A person cannot be subjected twice to
criminal liability for a single criminal act.19 Likewise, rape cannot be complexed with a violation of
Section 5(b) of RA 7610. Under Section 48 of the Revised Penal Code (on complex crimes),20 a felony
under the Revised Penal Code (such as rape) cannot be complexed with an offense penalized by a
special law.21
In this case, the victim was more than 12 years old when the crime was committed against her. The
Information against appellant stated that AAA was 13 years old at the time of the incident. Therefore,
appellant may be prosecuted either for violation of Section 5(b) of RA 7610 or rape under Article 266-A
(except paragraph 1[d]) of the Revised Penal Code. While the Information may have alleged the
elements of both crimes, the prosecution’s evidence only established that appellant sexually violated
the person of AAA through force and intimidation22 by threatening her with a bladed instrument and
forcing her to submit to his bestial designs. Thus, rape was established.23

Indeed, the records are replete with evidence establishing that appellant forced AAA to engage in
sexual intercourse with him on December 25, 1999. Appellant is therefore found guilty of rape under
Article 266-A(1)(a) of the Revised Penal Code and sentenced to reclusion perpetua. Furthermore, to
conform with existing jurisprudence, he is ordered to pay AAA ₱75,000 as civil indemnity ex-
delicto24 and ₱75,000 as moral damages.25

WHEREFORE, the January 18, 2007 decision of the Court of Appeals in CA-G.R. CR-H.C. No. 01365 is
hereby AFFIRMED with modification. Appellant Roberto Abay y Trinidad is hereby found GUIILTY of
simple rape and is sentenced to suffer the penalty of reclusion perpetua. He is further ordered to pay
AAA ₱75,000 as civil indemnity ex-delicto, ₱75,000 as moral damages and ₱25,000 as exemplary
damages.

Costs against appellant.

SO ORDERED.

RENATO C. CORONA
Associate Justice

WE CONCUR:
 [G.R. NO. 171863 : August 20, 2008]
PEOPLE OF THE PHILIPPINES, Petitioner, v. THE HONORABLE COURT OF APPEALS
(Second Division) and GASPAR OLAYON, Respondents.
DECISION
CARPIO MORALES, J.:
The then 22-year old herein respondent Gaspar Olayon was charged with violation
of Section 10(a) of Republic Act No. 7610 (The Special Protection of Children against
Abuse, Exploitation, and Discrimination Act) in two separate Informations filed before the
Regional Trial Court (RTC) of Pasig City, of which the then 14-year old AAA was alleged to
be the victim.
Criminal Case No. 112571 alleged that
On or about 10:00 a.m. of January 27, 1997 in Taguig, Metro Manila and within the
jurisdiction of this Honorable Court, the accused, with lewd designs, did then and there
willfully, unlawfully and feloniously have sexual intercourse with and commit lewd and
lascivious acts upon the person of [AAA], a minor, fourteen (14) years of
age.1(Underscoring supplied)cralawlibrary
Criminal Case No. 112572 alleged that
On or about 2:00 p.m. of January 27, 1997 in Taguig, Metro Manila and within the
jurisdiction of this Honorable Court, the accused, with lewd designs, did then and there
willfully, unlawfully and feloniously have sexual intercourse with and commit lewd and
lascivious acts upon the person of [AAA], a minor, fourteen (14) years of
age.2(Underscoring supplied)cralawlibrary
Respondent was also charged for acts of lasciviousness before the RTC of Taguig,
docketed as Criminal Case No. 116350, of which the same then 14-year old AAA was
alleged to be the victim. The case was transferred to the Pasig City RTC and consolidated
with Criminal Case Nos. 112571-72.3 The three cases were jointly tried.4
After trial, Branch 158 of the Pasig City RTC, by Decision of January 15, 2002, acquitted
respondent in Criminal Case No. 116350 (for acts of lasciviousness).5 It, however,
convicted respondent of violation of Section 10 (a) of Republic Act (R.A.) No. 7610 in
Criminal Case Nos.112571-72 in this wise:
x x x The accused, Olayon admitted his sexual liaisons with [AAA]. His defenses are: 1)
[AAA] is his sweetheart and 2) whatever happened to them in terms of these sexual
liaisons, occurred with the consent of [AAA]. Although the testimony of [AAA] denies she
consented to the sexual liaisons, the evidence did not support it.
The events that occurred on January 27, 1997 at the house of one Duke Espiritu show
that [AAA] went with Olayon to that place voluntarily. First, she was fetched from a
tricycle stand and it took them another ride to go to the house of Espiritu. If indeed she
was forced to board the tricycle, she could have resisted and shouted for help considering
that there were normally people around in a tricycle stand, waiting for rides. If she indeed
resisted and showed any manifestation in this regard, people could have easily helped her
in resisting whatever it was Olayon wanted. Second, at the house of Espiritu she could
have easily shouted for help since it was located near a road and a pathway. x x x
xxx
Although the sexual liaisons that occurred on January 27, 1997 were with the consent of
[AAA] who at that time was only 14 years of age, Olayon cannot escape responsibility
because he took advantage of [AAA's] minority to have these sexual liaisons, even
if they were with her consent. Consent is not an accepted defense in this special law. He
violated then Republic Act No. 7610, Section 10(a) which provides:
Section 10(a) - Any person who shall commit any other acts of child abuse, cruelty or
exploitation or be responsible for other conditions prejudicial to the child's development
including those covered by Article 59 of Presidential Decree No. 603, as amended, shall
suffer the penalty of prision mayor in its minimum period.
x x x x6 (Emphasis and underscoring supplied)cralawlibrary
Thus the trial court disposed:
WHEREFORE, Gaspar Olayon y Matubis a.k.a Eric Ramirez is found guilty beyond
reasonable doubt for having violated Republic Act No. 7610, Section 10 (a) in Criminal
Case Nos. 112571-72 and is sentenced to suffer in prison the penalty of six (6) years,
eight (8) months and one (1) day to seven (7) years and four (4) months of prision mayor
for each count. He is acquitted in Criminal Case No. 116350.
Costs against the accused.
SO ORDERED.7
On appeal by respondent,8 the Court of Appeals, answering in the negative the issue of
whether consensual sexual intercourse with a minor is classified as child abuse under
Section 10 of RA No. 7610, reversed the trial court's decision
and acquitted Respondent , by Decision9 of January 13, 2006, reasoning as follows:
"Acts of child abuse" under Section 10 (a) of R.A. 7610 refers to those acts listed under
Sec. 3(b) of R.A. 7610, which reads as follows:
Sec. 3. Definition of Terms'
(a) x x x
(b) "Child Abuse" refers to maltreatment, whether habitual or not, of the child which
includes any of the following:
1) Psychological and physical abuse, neglect, cruelty, sexual abuse and emotional
maltreatment;
2) Any act or deeds [sic] or words [sic] which debases, degrades or demeans the intrinsic
worth and dignity of a child as a human being;
3) Unreasonable deprivation of his basic needs for survival, such as food and shelter; or
4) Failure to immediately give medical treatment to an injured child resulting in serious
impairment of his growth and development or in his permanent incapacity or death.
Consensual sexual intercourse between OLAY[O]N and [AAA] does not fall under the
"sexual abuse" definition [in Section 5 of R.A. No. 7610] which is a completely distinct and
separate offense from "child abuse," [under Section 10] because "sexual abuse" pertains
to and is associated with "child prostitution" [as defined in Section 5]. "Sexual abuse" is
defined separately under Section 5 of R.A. 7610, which reads as follows:
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.
Moreover, for the act of intercourse between OLAY[O]N and [AAA] to be considered
sexual abuse [under Section 5], such intercourse should have occurred due to coercion
or intimidation. In the case at bench, neither coercion nor intimidation were found to have
been present, consent having been freely given.10 (Emphasis, italics and underscoring
supplied)
Hence, the present petition for certiorari 11 of the People under Rule 65, alleging that the
Court of Appeals acted with grave abuse of discretion amounting to lack or excess of
jurisdiction
x x x IN ACQUITTING RESPONDENT OLAYON OF THE TWO (2) COUNTS OF CHILD ABUSE
UNDER SECTION 10(A) OF R.A. 7610 DESPITE THE FACT THAT THE SEXUAL
ACTSCOMMITTED BY RESPONDENT OLAYON ON THE MINOR PRIVATE COMPLAINANT ARE
CLEARLY WITHIN THE TERM "OTHER ACTS OF NEGLECT, ABUSE, CRUELTY OR
EXPLOITATION AND OTHER CONDITIONS PREJUDICIAL TO THE CHILD'S
DEVELOPMENT" DECLARED PUNISHABLE UNDER SECTION 10(A) OF R.A.
7610.12(Emphasis and underscoring supplied)cralawlibrary
The record shows that the Pasig City Prosecutor's Office found that the acts of respondent
did not amount to rape as they were done with the consent of the 14-year old
AAA.13 Nevertheless, it found the acts constitutive of "violations of [Republic] Act No.
7610," hence, its filing of the above-quoted Informations for violation of Section 10(a).14
The Informations alleged that respondent, "with lewd designs did willfully, unlawfully, and
feloniously have sexual intercourse with and commit lewd and lascivious acts upon the
person of [AAA], a minor, fourteen (14) years of age."15
Section 10(a) of R.A. No. 7610 under which respondent was charged in each of the two
cases provides:
SECTION 10. Other Acts of Neglect, Abuse, Cruelty or Exploitation and Other
Conditions Prejudicial to the Child's Development. -
(a) Any person who shall commit any other acts of child abuse, cruelty or exploitation
or be responsible for other conditions prejudicial to the child's development including those
covered by Article 59 of Presidential Decree No. 603, as amended, but not covered by the
Revised Penal Code, as amended, shall suffer the penalty of prision mayor in its minimum
period. (Underscoring supplied),
Section 5(b), upon the other hand, provides:
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.
The penalty of reclusion temporal in its medium period to reclusion perpetua shall be
imposed upon the following:
xxx
(b) Those who commit the act of sexual intercourse or lascivious conduct with a child
exploited in prostitution or subject to other sexual abuse; Provided, That when the victims
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; (Italics in the original, emphasis and underscoring
supplied)
As Section 10 refers to acts of child abuse prejudicial to the child's
development other than child prostitution and other sexual abuse16 under Section 5,
attempt to commit child prostitution,17 child trafficking,18 attempt to commit child
trafficking,19 and obscene publications and indecent shows,20 the Court of Appeals did not
commit grave abuse of discretion in holding that "x x x 'sexual abuse' [as defined under
Section 5] x x x is a completely distinct and separate offense from 'child abuse' [as
defined under Section 10]."

Consensual sexual intercourse or even acts of lasciviousness with a minor who is 12 years
old or older could constitute a violation of Section 5(b) of R.A. No. 7610. For Section 5(b)
punishes sexual intercourse or lascivious conduct not only with a child exploited in
prostitution but also with a child subjected to other sexual abuse.21

Section 2(g) of the Rules and Regulations on the Reporting and Investigation of Child
Abuse Cases, promulgated to implement R.A. No. 7610, defines "sexual abuse" as
including "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." (Underscoring
supplied)cralawlibrary

For consensual sexual intercourse or lascivious conduct with a minor, who is not exploited
in prostitution, to thus fall within the purview of Section 5(b) of R.A. No. 7610,
"persuasion, inducement, enticement or coercion" of the child must be present.

In People v. Larin,22 the information alleged that the therein accused took advantage of his
authority, influence, and moral ascendancy as trainor/swimming instructor of the minor
victim23 which the Court found constituted "psychological coercion."24 In convicting the
therein accused for lascivious acts, the Court held:

It must be noted that [Republic Act No. 7610] covers not only a situation in which a child
is abused for profit, but also one in which a child, through coercion or intimidation,
engages in any lascivious conduct.25 (Emphasis and underscoring supplied)cralawlibrary

And even in Malto v. People26 wherein the accused was convicted for violation of Section
5(b) of R.A. No. 7610, the information alleged, and the prosecution proved, that the
therein accused who was the minor's professor obtained the minor's consent by taking
advantage of his relationship and moral ascendancy to exert influence on her.

In the case at bar, even if respondent were charged under Section 5(b), instead of Section
10(a), respondent would just the same have been acquitted as there was no allegation
that an element of the offense - coercion or influence or intimidation - attended its
commission.

In light of the foregoing disquisition, the petition is DENIED.

SO ORDERED.