G.R. No. 214497. April 18, 2017.*

 
EDUARDO QUIMVEL y BRAGA, petitioner, vs. PEOPLE
OF THE PHILIPPINES, respondent.

Remedial Law; Criminal Procedure; Prosecution of Crimes;

Information; It is fundamental that, in criminal prosecutions,
every element constituting the offense must be alleged in the
Information before an accused can be convicted of the crime
charged. This is to apprise the accused of the nature of the
accusation against him, which is part and parcel of the rights
accorded to an accused enshrined in Article III, Section 14(2) of
the 1987 Constitution.—It is fundamental that, in criminal
prosecutions, every element constituting the offense must be
alleged in the Information before an accused

_______________

*  EN BANC.

 
 
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can be convicted of the crime charged. This is to apprise the

accused of the nature of the accusation against him, which is part
and parcel of the rights accorded to an accused enshrined in
Article III, Section 14(2) of the 1987 Constitution. Section 6, Rule
110 of the Rules of Court, in turn, pertinently provides: Section
6. Sufficiency of complaint or information.—A complaint or
information is sufficient if it states the name of the accused, the
designation of the offense by the statute, the acts or omissions
complained of as constituting the offense; the name of the
offended party; the approximate time of the commission of the
offense, and the place wherein the offense was committed.
(emphasis added) Jurisprudence has already set the standard on
how the requirement is to be satisfied. Case law dictates that the
allegations in the Information must be in such form as is
sufficient to enable a person of common understanding to know
what offense is intended to be charged and enable the court to
know the proper judgment. The Information must allege clearly
and accurately the elements of the crime charged. The facts and
circumstances necessary to be included therein are determined by
reference to the definition and elements of the specific crimes.
Same; Same; Information; The main purpose of requiring the
elements of a crime to be set out in the Information is to enable the
accused to suitably prepare his defense because he is presumed to
have no independent knowledge of the facts that constitute the
offense.—The main purpose of requiring the elements of a crime to
be set out in the Information is to enable the accused to suitably
prepare his defense because he is presumed to have no
independent knowledge of the facts that constitute the offense.
The allegations of facts constituting the offense charged are
substantial matters and the right of an accused to question his
conviction based on facts not alleged in the information cannot be
waived. As further explained in Andaya v. People, 493 SCRA 539
(2006): No matter how conclusive and convincing the evidence of
guilt may be, an accused cannot be convicted of any offense unless
it is charged in the information on which he is tried or is
necessarily included therein. To convict him of a ground not
alleged while he is concentrating his defense against the ground
alleged would plainly be unfair and underhanded. The rule is
that a variance between the allegation in the information
and proof adduced during trial shall be fatal to the
criminal case if it is material and prejudicial to the
accused so much so that it affects his substantial rights.

 
 
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Quimvel vs. People

Same; Same; Same; What determines the real nature and

cause of the accusation against an accused is the actual recital of
facts stated in the Information or Complaint, not the caption or
preamble thereof nor the specification of the provision of law
alleged to have been violated, being conclusions of law.—Indeed,
the Court has consistently put more premium on the facts
embodied in the Information as constituting the offense rather
than on the designation of the offense in the caption. In fact, an
investigating prosecutor is not required to be absolutely accurate
in designating the offense by its formal name in the law. What
determines the real nature and cause of the accusation against an
accused is the actual recital of facts stated in the Information or
Complaint, not the caption or preamble thereof nor the
specification of the provision of law alleged to have been violated,
being conclusions of law. It then behooves this Court to place the
text of the Information under scrutiny.
Criminal Law; Child Abuse; Lascivious Conduct; Before an
accused can be held criminally liable for lascivious conduct under
Sec. 5(b) of Republic Act (RA) No. 7610, the requisites of Acts of
Lasciviousness as penalized under Art. 336 of the Revised Penal
Code (RPC) must be met in addition to the requisites for sexual
abuse under Sec. 5(b) of RA No. 7610.—Before an accused can be
held criminally liable for lascivious conduct under Sec. 5(b) of RA
7610, the requisites of Acts of Lasciviousness as penalized under
Art. 336 of the RPC earlier enumerated must be met in addition
to the requisites for sexual abuse under Sec. 5(b) of RA 7610,
which are as follows: 1. The accused commits the act of sexual
intercourse or lascivious conduct. 2. The said act is performed
with a child exploited in prostitution or subjected to other
sexual abuse. 3. That child, whether male or female, is below 18
years of age.
Same; Same; Sec. 5(a) of Republic Act (RA) No. 7610 punishes
acts pertaining to or connected with child prostitution wherein the
child is abused primarily for profit. On the other hand, paragraph
(b) punishes sexual intercourse or lascivious conduct committed on
a child subjected to other sexual abuse.—To the mind of the Court,
the allegations are sufficient to classify the victim as one
“exploited in prostitution or subject to other sexual abuse.” This is
anchored on the very definition of the phrase in Sec. 5 of RA 7610,
which encompasses children who indulge in sexual intercourse or
lascivious conduct (a) for money, profit, or any other
consideration; or (b) under the coercion or

 
 
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influence of any adult, syndicate or group. Correlatively, Sec.

5(a) of RA 7610 punishes acts pertaining to or connected with
child prostitution wherein the child is abused primarily for profit.
On the other hand, paragraph (b) punishes sexual intercourse or
lascivious conduct committed on a child subjected to other sexual
abuse. It covers not only a situation where a child is abused for
profit but also one in which a child, through coercion, intimidation
or influence, engages in sexual intercourse or lascivious conduct.
Hence, the law punishes not only child prostitution but also other
forms of sexual abuse against children.
Same; Same; Coercion and Influence; The term “coercion and
influence” as appearing in the law is broad enough to cover “force
and intimidation” as used in the Information; The terms are used
almost synonymously.—The term “coercion and influence” as
appearing in the law is broad enough to cover “force and
intimidation” as used in the Information. To be sure, Black’s Law
Dictionary defines “coercion” as “compulsion; force; duress” while
“[undue] influence” is defined as “persuasion carried to the point of
overpowering the will.” On the other hand, “force” refers to
“constraining power, compulsion; strength directed to an end”
while jurisprudence defines “intimidation” as “unlawful coercion;
extortion; duress; putting in fear.” As can be gleaned, the terms
are used almost synonymously. It is then of no moment that the
terminologies employed by RA 7610 and by the Information are
different.
Remedial Law; Criminal Procedure; Information; It is not
necessary that the description of the crime, as worded in the penal
provision allegedly violated, be reproduced verbatim in the
accusatory portion of the Information before the accused can be
convicted thereunder.—It is not necessary that the description of
the crime, as worded in the penal provision allegedly violated, be
reproduced verbatim in the accusatory portion of the Information
before the accused can be convicted thereunder. Sec. 9, Rule 110
of the Rules of Court is relevant on this point: Section 9. Cause of
the accusation.—The acts or omissions complained of as
constituting the offense and the qualifying and aggravating
circumstances must be stated in ordinary and concise
language and not necessarily in the language used in the
statute but in terms sufficient to enable a person of
common understanding to know what offense is being
charged as well as its qualifying and aggravating circumstances
and for the court to pronounce judgment. The Court

 
 

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has held in a catena of cases that the rule is satisfied when

the crime “is described in intelligible terms with such particularity
as to apprise the accused, with reasonable certainty, of the offense
charged.” Furthermore, “[t]he use of derivatives or synonyms
or allegations of basic facts constituting the offense
charged is sufficient.” Hence, the exact phrase “exploited in
prostitution or subjected to other abuse” need not be mentioned in
the Information. Even the words “coercion or influence” need not
specifically appear.
Criminal Law; Child Abuse; The absence of the phrase
“exploited in prostitution or subject to other sexual abuse” or even
the specific mention of “coercion” or “influence” was never a bar for
the Supreme Court (SC) to uphold the finding of guilt against an
accused for violation of Republic Act (RA) 7610.—Conspicuously
enough, the Information in Olivarez v. Court of Appeals, 465
SCRA 465 (2005), is couched in a similar fashion as the
Information in the extant case. The absence of the phrase
“exploited in prostitution or subject to other sexual abuse” or even
the specific mention of “coercion” or “influence” was never a bar
for the Court to uphold the finding of guilt against an accused for
violation of RA 7610. Just as the Court held that it was enough
for the Information in Olivarez to have alleged that the offense
was committed by means of “force and intimidation,” the Court
must also rule that the Information in the case at bench does not
suffer from the alleged infirmity.
Same; Same; A violation of Sec. 5(b) of Republic Act (RA) No.
7610 occurs even though the accused committed sexual abuse
against the child victim only once, even without a prior sexual
affront.—Contrary to the exposition, the very definition of
“child abuse” under Sec. 3(b) of RA 7610 does not require
that the victim suffer a separate and distinct act of sexual
abuse aside from the act complained of. For it refers to the
maltreatment, whether habitual or not, of the child. Thus,
a violation of Sec. 5(b) of RA 7610 occurs even though the
accused committed sexual abuse against the child victim
only once, even without a prior sexual affront.
Same; Same; The intervention by a third person is not
necessary to convict an accused under Sec. 5 of Republic Act (RA)
No. 7610.—The intervention by a third person is not necessary to
convict an accused under Sec. 5 of RA 7610. As regards paragraph
(a), a

 
 
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child may engage in sexual intercourse or lascivious conduct

regardless of whether or not a “bugaw” is present. Although the
presence of an offeror or a pimp is the typical setup in prostitution
rings, this does not foreclose the possibility of a child voluntarily
submitting himself or herself to another’s lewd design for
consideration, monetary or otherwise, without third person
intervention. Needless to say, the child, would still be under the
protection of the law, and the offender, in such a situation, could
still be held criminally liable for violation of Sec. 5(a) of RA 7610.
Remedial Law; Criminal Procedure; Appeals; Well-settled is
the rule that, absent any clear showing of abuse, arbitrariness or
capriciousness committed by the lower court, its findings of facts,
especially when affirmed by the Court of Appeals (CA), are binding
and conclusive upon the Supreme Court (SC).—Well-settled is the
rule that, absent any clear showing of abuse, arbitrariness or
capriciousness committed by the lower court, its findings of facts,
especially when affirmed by the Court of Appeals, are binding and
conclusive upon this Court. This is so because the observance of
the deportment and demeanor of witnesses are within the
exclusive domain of the trial courts. Thus, considering their
unique vantage point, trial courts are in the best position to
assess and evaluate the credibility and truthfulness of witnesses
and their testimonies.
Criminal Law; Child Abuse; The law does not require physical
violence on the person of the victim; moral coercion or ascendancy
is sufficient.—As regards the second additional element, it is
settled that the child is deemed subjected to other sexual abuse
when the child engages in lascivious conduct under the coercion
or influence of any adult. Intimidation need not necessarily be
irresistible. It is sufficient that some compulsion equivalent to
intimidation annuls or subdues the free exercise of the will of the
offended party. The law does not require physical violence on the
person of the victim; moral coercion or ascendancy is sufficient.
The petitioner’s proposition — that there is not even an iota of
proof of force or intimidation as AAA was asleep when the offense
was committed and, hence, he cannot be prosecuted under RA
7610 — is bereft of merit. When the victim of the crime is a child
under twelve (12) years old, mere moral ascendancy will suffice.
Same; Denials; A categorical and consistent positive
identification which is not accompanied by ill motive on the part of
the eyewit-

 
 
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ness prevails over mere denial.—In stark contrast, Quimvel’s

defense — that he did not go to AAA’s house on the alleged time of
the incident as he was busy watching over the ducks of AAA’s
grandmother at the latter’s house — deserves scant consideration.
Jurisprudence is replete of cases holding that denial and alibi are
weak defenses, which cannot prevail against positive
identification. A categorical and consistent positive identification
which is not accompanied by ill motive on the part of the
eyewitness prevails over mere denial. Such denial, if not
substantiated by clear and convincing evidence, is negative and
self-serving evidence undeserving of weight in law. It cannot be
given a greater evidentiary value over the testimony of credible
witnesses who testify on affirmative matters.
Same; Alibi; For his alibi to prosper, it was incumbent upon
petitioner to prove that he was somewhere else when the offense
was committed, and that he was so far away it would have been
impossible for him to be physically present at the place of the crime
or at its immediate vicinity at the time of the commission.—For his
alibi to prosper, it was incumbent upon petitioner to prove that he
was somewhere else when the offense was committed, and that he
was so far away it would have been impossible for him to be
physically present at the place of the crime or at its immediate
vicinity at the time of the commission. But in his version of the
events, petitioner failed to prove the element of physical
impossibility since the house of AAA’s grandmother, where he
claimed to be at that time, is only 150 meters, more or less, from
AAA’s house. His alibi, therefore, cannot be considered
exculpatory.
Same; Rape; Sec. 4 of Republic Act (RA) No. 8353 did not
expressly repeal Article 336 of the Revised Penal Code (RPC) for if
it were the intent of Congress, it would have expressly done so.—
Sec. 4 of RA 8353 did not expressly repeal Article 336 of the RPC
for if it were the intent of Congress, it would have expressly done
so. Rather, the phrase in Sec. 4 states: “deemed amended,
modified, or repealed accordingly” qualifies “Article 335 of Act No.
3815, as amended, and all laws, acts, presidential decrees,
executive orders, administrative orders, rules and regulations
inconsistent with or contrary to the provisions of [RA 8353].” As
can be read, repeal is not the only fate that may befall statutory
provisions that are inconsistent with RA 8353. It may be that
mere amendment or modification would suffice to reconcile the
inconsistencies resulting from the latter law’s enact-

 
 
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ment. In this case, Art. 335 of the RPC, which previously

penalized rape through carnal knowledge, has been replaced by
Art. 266-A. Thus, the reference by Art. 336 of the RPC to any of
the circumstances mentioned on the erstwhile preceding article on
how the crime is perpetrated should now refer to the
circumstances covered by Art. 266-A as introduced by the Anti-
Rape Law.
Statutes; Repeal of Laws; The failure to particularly mention
the law allegedly repealed indicates that the intent was not to
repeal the said law, unless an irreconcilable inconsistency and
repugnancy exists in the terms of the new and old laws.—We are
inclined to abide by the Court’s long-standing policy to disfavor
repeals by implication for laws are presumed to be passed with
deliberation and full knowledge of all laws existing on the subject.
The failure to particularly mention the law allegedly repealed
indicates that the intent was not to repeal the said law, unless an
irreconcilable inconsistency and repugnancy exists in the terms of
the new and old laws. Here, RA 8353 made no specific mention of
any RPC provision other than Art. 335 as having been amended,
modified, or repealed. And as demonstrated, the Anti-Rape Law,
on the one hand, and Art. 336 of the RPC, on the other, are not
irreconcilable. The only construction that can be given to the
phrase “preceding article” is that Art. 336 of the RPC now refers
to Art. 266-A in the place of the repealed Art. 335. It is, therefore,
erroneous to claim that Acts of Lasciviousness can no longer be
prosecuted under the RPC.
Criminal Law; Anti-Violence Against Women and their
Children Act; The Anti-Violence Against Women and their
Children (Anti-VAWC) law limits the victims of sexual abuses
covered by the Republic Act (RA) to a wife, former wife, or any
women with whom the offender has had a dating or sexual
relationship, or against her child.—The decriminalization of Acts
of Lasciviousness under the RPC, as per Justice Leonen’s theory,
would not sufficiently be supplanted by RA 7610 and RA 9262,
otherwise known as the Anti-Violence Against Women and their
Children Law (Anti-VAWC Law). Under RA 7610, only minors
can be considered victims of the enumerated forms of abuses
therein. Meanwhile, the Anti-VAWC law limits the victims of
sexual abuses covered by the RA to a wife, former wife, or any
women with whom the offender has had a dating or sexual
relationship, or against her child. Clearly, these laws do not
provide ample protection against sexual offenders who do not dis-

 
 
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criminate in selecting their victims. One does not have to be a

child before he or she can be victimized by acts of lasciviousness.
Nor does one have to be a woman with an existing or prior
relationship with the offender to fall prey. Anyone can be a victim
of another’s lewd design. And if the Court will subscribe to Justice
Leonen’s position, it will render a large portion of our
demographics (i.e., adult females who had no prior relationship to
the offender, and adult males) vulnerable to sexual abuses.
Same; Penalties; Indeterminate Sentence Law; Sec. 1 of Act
No. 4103, otherwise known as the Indeterminate Sentence Law
(ISL), provides that if the offense is ostensibly punished under a
special law, the minimum and maximum prison term of the
indeterminate sentence shall not be beyond what the special law
prescribed.—Sec. 1 of Act No. 4103, otherwise known as the
Indeterminate Sentence Law (ISL), provides that if the offense is
ostensibly punished under a special law, the minimum and
maximum prison term of the indeterminate sentence shall not be
beyond what the special law prescribed. Be that as it may, the
Court had clarified in the landmark ruling of People v. Simon, 234
SCRA 555 (1994), that the situation is different where although
the offense is defined in a special law, the penalty therefor is
taken from the technical nomenclature in the RPC. Under such
circumstance, the legal effects under the system of penalties
native to the Code would also necessarily apply to the special law.

Carpio, J., Dissenting Opinion:

Criminal Law; Child Abuse; Acts of Lasciviousness; View that

lascivious acts committed against a child under twelve (12) years
old may fall under either Section 5(b) of Republic Act (RA) No.
7610 or Article 336 of the Revised Penal Code (RPC). As both laws
remain to be good and effective.—Lascivious acts committed
against a child under 12 years old may fall under either Section
5(b) of Republic Act No. 7610 (RA 7610) or Article 336 of the
Revised Penal Code (RPC). As both laws remain to be good and
effective, I submit this Separate Opinion to clarify and distinguish
these two seemingly overlapping provisions. I agree with the
majority opinion when it states that Article 336 of the RPC was
never repealed by Republic Act No. 8353 (RA 8353). While the
latter law expressly repealed Article 335, this does not render
Article 336 incomplete or ineffective. As the majority opin-

 
 
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ion explains, it simply means that the “preceding article”

referred to in Article 336 would now refer to Article 266-A, which
replaced Article 335.
Same; Same; Same; View that to be convicted of lascivious
conduct under Section 5(b) of Republic Act (RA) No. 7610 — rather
than acts of lasciviousness under Article 336 of the Revised Penal
Code (RPC) — it is essential to prove that the child against whom
the act was committed is a child exploited in prostitution or
subjected to other sexual abuse.—The majority opinion states that
for an accused to be held criminally liable for lascivious conduct
under Section 5(b) of RA 7610, the requisites under Article 336 of
the RPC must be met in addition to the requisites under Section
5(b) of RA 7610. Moreover, based on the elements of Article 336 of
the RPC and Section 5(b) of RA 7610 enumerated above, it is
evident that both provisions share some similar elements. The
main difference lies in the second element of Section 5(b) of RA
7610 that the act is performed with a child exploited in
prostitution or subjected to other sexual abuse. Thus, to be
convicted of lascivious conduct under Section 5(b) of RA 7610 —
rather than acts of lasciviousness under Article 336 of the RPC —
it is essential to prove that the child against whom the act was
committed is a child exploited in prostitution or subjected to other
sexual abuse.
Same; Same; Other Sexual Abuse; View that being under the
“coercion or influence” of an adult does not, by itself, make the
child automatically subjected to “other sexual abuse.”—Being
under the “coercion or influence” of an adult does not, by itself,
make the child automatically subjected to “other sexual abuse.”
Section 5 of RA 7610 provides in part: 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.
Same; Same; View that the phrase “or any other consideration
or due to the coercion or influence of any adult, syndicate or group”
was added to merely cover situations where a child is abused or
misused for sexual purposes without any monetary gain or profit.
—It is clear that this provision was crafted to cover a situation
where sexual intercourse or lascivious conduct is performed with
a child who is being

 
 
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Quimvel vs. People

abused or misused for sexual purposes. The phrase “or

any other consideration or due to the coercion or influence of any
adult, syndicate or group” was added to merely cover situations
where a child is abused or misused for sexual purposes without
any monetary gain or profit. This was significant because profit or
monetary gain is essential in prostitution. Thus, the lawmakers
intended that in case all the other elements of prostitution are
present, but the monetary gain or profit is missing, the sexually
abused and misused child would still be afforded the same
protection of the law as if he or she were in the same situation as
a child exploited in prostitution.
Same; Same; View that the lawmakers intended to afford
more protection to the sexually misused and abused children
rather than those children who were not.—It is clear that the
lawmakers intended to afford more protection to the sexually
misused and abused children rather than those children who were
not. There simply would have been no need to include the element
that the child is exploited in prostitution or subjected to “other
sexual abuse” if this were not the case. If the intention of the law
was merely to protect children against sexual abuse, without
regard to their circumstance of being exploited in prostitution or
subjected to other sexual abuse, the provision could have simply
omitted the reference to prostitution or other sexual abuse so that
all children would be covered under this provision. However, the
lawmakers expressly included prostitution or being subjected to
“other sexual abuse” as one of the elements of Section 5(b) of RA
7610 because of the greater need to protect such children. And
because of this greater need, a higher penalty is imposed as well.
Same; Same; View that the exploitation of the child in
prostitution or subjection of the child to “other sexual abuse” may
be committed by persons other than the accused.—This is not to
say, however, that the accused himself must have exploited the
child in prostitution or subjected the child to “other sexual abuse.”
The exploitation of the child in prostitution or subjection of the
child to “other sexual abuse” may be committed by persons other
than the accused. I agree with the majority opinion that the
offense under Section 5(b) of RA 7610 can be committed even
though the abuse complained of occurred only once. The sexual
intercourse or lascivious conduct committed by the accused may
have been a singular instance and not a habitual occurrence.
Indeed, the first element merely requires an act. Thus, one single
act of the accused is enough. However, that
  
 
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singular act must have been done against a child who was
already exploited in prostitution or subjected to “other sexual
abuse.” Again, the act of the accused and the circumstance of the
child are two separate and distinct elements.
Same; Same; View that there need not be a third person
subjecting the child to “other sexual abuse.” It could very well
happen that the person who exploited the child in prostitution is
the same person accused of performing the lascivious conduct with
the child.—I also agree with the majority opinion that there need
not be a third person subjecting the child to “other sexual abuse.”
It could very well happen that the person who exploited the child
in prostitution is the same person accused of performing the
lascivious conduct with the child. If the accused has sexually
misused the child on more than one occasion, then that child
becomes a child subjected to “other sexual abuse.” Thus, the
second element would be present — the circumstance of the child
would be that of being subjected to “other sexual abuse” and each
act of the accused will be considered as the first element of
lascivious conduct under Section 5(b) of RA 7610. In this case,
however, it was not alleged or proven that the child victim was
exploited in prostitution or subjected to “other sexual abuse.” As it
is fundamental that every element of the crime must be alleged in
the complaint or information against the accused, there is no
basis to convict Quimvel for violation of Section 5(b) of RA 7610.
Same; Same; Penalties; View that the element that the child
was exploited in prostitution or subjected to other sexual abuse
increases the penalty from prisión correccional to reclusion
temporal in its medium period if the victim is under twelve (12)
years old.—The element that the child was exploited in
prostitution or subjected to other sexual abuse increases the
penalty from prisión correccional to reclusion temporal in its
medium period if the victim is under 12 years old. This element
distinguishes whether the crime would be punishable under RA
7610 or under the RPC. Thus, there is a need to strictly construe
this element. The Court has been consistent in strictly
interpreting elements in criminal cases which would increase the
penalty against the accused. In People v. Orilla, 422 SCRA 620
(2004), the Court stated that “when the law or rules specify
certain circumstances that can aggravate an offense or qualify an
offense to warrant a greater penalty, the information must
allege such circumstances and the prosecution must prove
the same to

 
 
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Quimvel vs. People
justify the imposition of the increased penalty.” In
this case, however, the Information was silent on whether
the victim was exploited in prostitution or was subjected to
other sexual abuse, and it was also not proven by the
prosecution during the trial of the case. However, the
Information is sufficient to charge the accused for acts of
lasciviousness under Article 336 of the RPC, in accordance
with the variance doctrine under the Rules of Court. While
the circumstance of the child as a child exploited in
prostitution or subjected to “other sexual abuse” was not
alleged or proven, all the elements of Article 336 of the
RPC were clearly and accurately alleged in the
Information, and thereafter proven during the course of the
trial. Accused Quimvel put his hand inside the
undergarment of the child while the latter was sleeping,
and rubbed her vagina which is an obvious act of
lasciviousness or lewdness. I note that the words “force and
intimidation” were used in the Information, which is the
same wording as the element in acts of lasciviousness
under Article 336 of the RPC. Moreover, the victim was
only 7 years old when the incident happened. The victim
being a child under 12 years old, all the elements of Article
336 of the RPC were sufficiently alleged in the Information
and subsequently proven beyond reasonable doubt during
the trial of the case.

Peralta, J., Separate Concurring Opinion:

Criminal Law; Child Abuse; View that in a charge for acts of

lasciviousness under Article 336 of the Revised Penal Code (RPC)
in relation to Republic Act (RA) No. 7610, there is no need to allege
that the lascivious conduct was committed with a “child exploited
in prostitution or subject to other sexual abuse.” Such allegation is
pertinent only when the charge is for child prostitution or violation
of the first clause of Section 5(b), Article III of RA No. 7610 against
“those who commit the act of sexual intercourse or lascivious
conduct with a child exploited in prostitution or subjected to other
sexual abuse,” i.e., the customer or patron.—In a charge for acts
of lasciviousness under Article 336 of the RPC in relation to
R.A. 7610, there is no need to allege that the lascivious conduct
was committed with a “child exploited in prostitution or subject to
other sexual abuse.” Such allegation is pertinent only when the
charge is for child prostitution or violation of the first clause
of Section 5(b), Article III of R.A. 7610 against “those who
commit the act of sexual intercourse or lascivious conduct with a
child exploited in prostitution or

 
 
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Quimvel vs. People

subjected to other sexual abuse,” i.e., the customer or patron.

Violation of the first clause of Section 5(b), Article III of R.A. 7610
is separate and distinct from acts of lasciviousness under Article
336 of the RPC. Aside from being dissimilar in the sense that the
former is an offense under special law, while the latter is a felony
under the RPC, they also have different elements. On the one
hand, the elements of violation of the first clause of Section 5(b)
are: (1) accused commits the act of sexual intercourse or lascivious
conduct; (2) the act is performed with a child exploited in
prostitution or subjected to other sexual abuse; and (3) the child,
whether male or female, is below 18 years of age. On the other
hand, the elements of acts of lasciviousness under Article 336 are:
(1) that the offender commits any act of lasciviousness or
lewdness; (2) that it is done under any of the following
circumstances: (a) by using force or intimidation; or (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 (3) that
the offended party is another person of either sex. Thus, the
allegation that the child be “exploited under prostitution or
subjected to other sexual abuse,” need not be alleged in the
information for acts of lasciviousness simply because it is not one
of the elements of such crime as defined by Article 336 of the
RPC.
Same; Same; Children; Words and Phrases; View that while
the first clause of Section 5(b), Article III of Republic Act (RA) No.
7610 is silent with respect to the age of the victim, Section 3,
Article I thereof defines “children” as those 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.—While the first clause of Section 5(b), Article III of
R.A. 7610 is silent with respect to the age of the victim, Section 3,
Article I thereof defines “children” as those 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. Notably, two provisos succeeding the first clause of
Section 5(b) explicitly state a qualification that when the
victims of lascivious conduct is under 12 years of age, the
perpetrator shall be (1) prosecuted under Article 336 of the
RPC, and (2) the penalty shall be reclusion temporal in its
medium period. It is a basic rule in statutory construction that
the office of the proviso qualifies or modifies only the phrase
immediately preced-

 
 
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ing it or restrains of limits the generality of the clause that it

immediately follows. A proviso is to be construed with reference to
the immediately preceding part of the provisions, to which it is
attached, and not to the statute itself or the other sections
thereof. Accordingly, this case falls under the qualifying provisos
of Section 5(b), Article III of R.A. 7610 because the allegations in
the information make out a case for acts of lasciviousness, as
defined under Article 336 of the RPC, and the victim is under 12
years of age.
Same; Same; Penalties; View that to impose upon Quimvel an
indeterminate sentence computed from the penalty of prisión
correccional under Article 336 of the Revised Penal Code (RPC)
would defeat the purpose of Republic Act (RA) No. 7610 to provide
for stronger deterrence and special protection against child abuse,
exploitation and discrimination.—To impose upon Quimvel an
indeterminate sentence computed from the penalty of prisión
correccional under Article 336 of the RPC would defeat the
purpose of R.A. 7610 to provide for stronger deterrence and
special protection against child abuse, exploitation and
discrimination. First, the imposition of such penalty would erase
the substantial distinction between acts of lasciviousness under
Article 336 and acts of lasciviousness with consent of the offended
party under Article 339, which used to be punishable by arresto
mayor, and now by prisión correccional pursuant to Section 10,
Article VI of R.A. 7610. Second, it would inordinately put on
equal footing the acts of lasciviousness committed against a child
and the same crime committed against an adult, because the
imposable penalty for both would still be prisión correccional,
save for the aggravating circumstance of minority that may be
considered against the perpetrator. Third, it would make acts of
lasciviousness against a child an offense a probationable offense,
pursuant to the Probation Law of 1976, as amended by R.A.
10707. Indeed, while the foregoing implications are favorable to
the accused, they are contrary to the State policy and principles
under R.A. 7610 and the Constitution on the special protection to
children.
Remedial Law; Criminal Procedure; Information; View that
based on the legal definitions of “child abuse,” it is also my view
that there is no need to allege that the lascivious conduct be
committed “with a child exploited in other prostitution” or with
habituality, before a person may be held liable for acts of
lasciviousness under Article 336 of the Revised Penal Code (RPC),
in relation to Section

 
 
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5(b), Article III of Republic Act (RA) No. 7610.—Based on the

legal definitions of “child abuse,” it is also my view that there is
no need to allege that the lascivious conduct be committed “with a
child exploited in other prostitution” or with habituality, before a
person may be held liable for acts of lasciviousness under Article
336 of the RPC, in relation to Section 5(b), Article III of R.A. 7610.
Section 3, Article I of R.A. 7610 states that “child abuse” refers
to the 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 by deeds or words 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 attention to an  injured child resulting
in serious impairment of his growth and development or in his
permanent incapacity or death.
Criminal Law; Child Abuse; View that a single lascivious
conduct is enough to penalize Quimvel for acts of lasciviousness
under Article 336 of the Revised Penal Code (RPC), in relation to
Republic Act (RA) No. 7610.—A single lascivious conduct is
enough to penalize Quimvel for acts of lasciviousness under
Article 336 of the RPC, in relation to R.A. 7610. These definitions
negate the necessity to allege in the information a separate and
distinct act of sexual abuse apart from the lascivious act
complained of. R.A. 7610 does not merely cover a situation
wherein a child is being abused for profit as in prostitution, but
also one wherein a child engages in any lascivious conduct
through coercion or intimidation, even if such sexual abuse
occurred only once, as in Quimvel’s case. Also, based on the
definitions above, prostitution — which involves an element of
habituality — is just one of the several other forms of sexual
abuses. Thus, neither habituality nor the fact that the child is
exploited in prostitution, is required to be alleged in the
information for acts of lasciviousness because Article 336 of the
RPC does not so provide.
Same; Same; View that a single act of abuse is enough for a
perpetrator to be considered as having violated the law.—To
construe “other sexual abuse” as referring to any other sexual
abuse other than the acts of lasciviousness complained of is
wrong. The law did not use such phrase in order to cover other
forms of sexual abuse that a child might have previously
experienced, other than being

 
 
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exploited in prostitution for profit, or for any other

consideration. Instead, the law clearly distinguishes those
children who indulged in sexual intercourse or lascivious conduct
for money, profit, or any other consideration, from those children
who, without money, profit, or any other consideration, had
sexual intercourse or lascivious conduct due to the coercion or
influence of any adult, syndicate or group. This is further
bolstered by the use of the disjunctive word “or” in separating the
two contexts contemplated in the law. Thus, it is erroneous to
interpret that R.A. 7610 contemplates situations wherein a child,
who was already subjected to prostitution or other sexual abuse,
is again subjected to another abuse or lascivious conduct. Note
that in the definition of “child abuse,” the phrase “whether
habitual or not” is used to describe the frequency upon which a
maltreatment can be considered as an abuse. Thus, a single act of
abuse is enough for a perpetrator to be considered as having
violated the law. To interpret it otherwise would lead to an
absurdity and ambiguity of the law.
Same; Same; View that the objective of the law, more so the
Constitution, is to provide a special type of protection for children
from all types of abuse.—Clearly, the objective of the law, more so
the Constitution, is to provide a special type of protection for
children from all types of abuse. Hence, it can be rightly inferred
that the title used in Article III, Section 5, “Child Prostitution and
Other Sexual Abuse” does not mean that it is only applicable to
children used as prostitutes as the main offense and the other
sexual abuses as additional offenses, the absence of the former
rendering inapplicable the imposition of the penalty provided
under R.A. 7610 on the other sexual abuses committed by the
offenders on the children concerned.
Same; Same; View that since Section 5, Article III of Republic
Act (RA) No. 7610 already deems to be “children exploited in
prostitution and other sexual abuse” those children, whether male
or female, who indulge in sexual intercourse or lascivious conduct
either (1) for money, profit or any other consideration; or (2) due to
coercion or influence of any adult, syndicate or group, the
aforequoted allegation that the lascivious conduct was done
“through force and intimidation,” suffices to inform the accused of
the second element of sexual abuse.—The application of the
provisions of R.A. 7610, although not specifically stated in the
Information, does not violate the accused’s right to be informed of
the nature and cause of the accusation

 
 
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against him. This is because all the elements of the crime of

“sexual abuse” as contemplated in Section 5, Article III of R.A.
7610, as well as the age of minority of the victim, are all
sufficiently alleged in the same Information in this wise: “the
above named accused [Quimvel], with lewd and unchaste
design, through force and intimidation, did then and there,
willfully, unlawfully, and feloniously, insert his hand inside
the panty of [AAA], a minor of 7 years old and mash her
vagina, against her will and consent, to her damage and
prejudice.” It bears emphasis that since Section 5, Article III of
R.A. 7610 already deems to be “children exploited in prostitution
and other sexual abuse” those children, whether male or female,
who indulge in sexual intercourse or lascivious conduct either (1)
for money, profit or any other consideration; or (2) due to
coercion or influence of any adult, syndicate or group, the
aforequoted allegation that the lascivious conduct was done
“through force and intimidation,” suffices to inform the accused of
the second element of sexual abuse.
Same; Same; View that the accused who commits acts of
lasciviousness under Article 336 of the Revised Penal Code (RPC),
in relation to Section 5(b), Article III of Republic Act (RA) No.
7610, suffers the more severe penalty of reclusion temporal in its
medium period, than the one who commits Rape Through Sexual
Assault, which is merely punishable by prisión mayor.—
Meanwhile, the Court is also not unmindful of the fact that the
accused who commits acts of lasciviousness under Article 336 of
the RPC, in relation to Section 5(b), Article III of R.A. 7610,
suffers the more severe penalty of reclusion temporal in its
medium period, than the one who commits Rape Through Sexual
Assault, which is merely punishable by prisión mayor. In People
v. Chingh, 645 SCRA 573 (2011), the Court noted that the said
fact is undeniably unfair to the child victim, and it was not the
intention of the framers of R.A. 8353 to have disallowed the
applicability of R.A. 7610 to sexual abuses committed to children.
The Court held that despite the passage of R.A. 8353, R.A.
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.”
Same; Same; View that if the victim is at least eighteen (18)
years of age, the offender should be liable under Article 266-A, par.
2

 
 
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of the Revised Penal Code (RPC) and not Republic Act (RA)
No. 7610, unless the victim is at least eighteen (18) years old and
she is unable to fully take care of herself or protect from 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 RA No.
7610.—As the Court stressed in Dimakuta v. People, 773 SCRA
228 (2015), where the lascivious conduct is covered by the
definition under R.A. 7610 where the penalty is reclusion
temporal medium and the said act is likewise covered by sexual
assault under Article 266-A, paragraph 2 of the RPC, which is
punishable by prisión mayor, the offender should be liable for
violation of Section 5(b), Article III of R.A. 7610, where the law
provides the higher penalty of reclusion temporal medium, if the
offended party is a child. But if the victim is at least eighteen (18)
years of age, the offender should be liable under Article 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 from 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. 7610. The reason for the foregoing is
that, aside from the affording special protection and stronger
deterrence against child abuse, R.A. 7610 is a special law which
should clearly prevail over R.A. 8353, which is a mere general law
amending the RPC.

Perlas-Bernabe, J., Concurring Opinion:

Criminal Law; Child Abuse; View that to my mind, the law

does not contemplate a situation where the acts of lasciviousness
are committed on a child priorly exploited in prostitution or
subjected to other sexual abuse.—Petitioner Eduardo Quimvel y
Braga (Quimvel) should be convicted under Section 5(b), Article
III of Republic Act No. (RA) 7610, otherwise known as the
“Special Protection of Children Against Abuse, Exploitation and
Discrimination Act,” in relation to Article 336 of the Revised
Penal Code. As now subscribed to by the ponencia, the said
provision covers a situation wherein a child engages in any
lascivious conduct through coercion or intimidation, even if such
sexual abuse occurred only once, as in Quimvel’s case. To my
mind, the law does not contemplate a situation where the acts of
lasciviousness are committed on a child priorly exploited in
prostitution or subjected to other sexual abuse. This latter
position effec-
  
 
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tively requires allegation and proof of a first act of abuse

committed against the same child victim for a sex offender to be
convicted.
Same; Same; View that if Republic Act (RA) No. 7610 was
directly meant to reinforce the legal framework against the sexual
abuse of minors, it would not make any sense to first require a
preliminary act of sexual abuse against a child before a sex
offender could be punished under the same.—The prevailing
Congressional intent behind RA 7610 was to establish “[a]
national program for protection of children” which needs “not only
the institutional protective mechanisms, but also a mechanism for
strong deterrence against commission of abuse and exploitation.”
In his sponsorship speech for Senate Bill No. 1209, from which RA
7610 originated, Senator Jose D. Lina, Jr. (Senator Lina, Jr.)
mentioned that the law was “intended to provide stiffer penalties
for abuse of children and to facilitate prosecution of perpetrators
of abuse. It is intended to complement the provisions of the
Revised Penal Code [at that time] where the crimes committed
are those which lead children to prostitution and sexual abuse,
trafficking in children and use of the young in pornographic
activities.” Senator Lina, Jr. also presented cases of reported
abuse, none of which imply that the child victims have been
previously exploited. Instead, they are straight-up cases of sexual
abuse of minors. Hence, if RA 7610 was directly meant to
reinforce the legal framework against the sexual abuse of minors,
it would not make any sense to first require a preliminary act of
sexual abuse against a child before a sex offender could be
punished under the same. Indeed, a person’s chastity — much
more a child’s — is undoubtedly sacred and once ravaged, is
forever lost and leaves a scar on his or her well-being. As such,
our lawmakers, in crafting a special legislation precisely to deter
child abuse, would not have thought of such absurdity.
Same; Same; View that it is unclear whether a prior sexual
abuse on the same child victim should be pronounced in an official
court declaration, or whether a mere finding on that matter in the
same case would suffice.—It is difficult — if not, insensible — to
operationalize the application of RA 7610 under the theory that
the commission of a prior act of sexual abuse is required before a
lascivious conduct may be penalized under Section 5(b) of the
same law. For one, no operational parameter was provided by law
to determine the existence of a prior sexual abuse so as to satisfy
the preliminary element of the aforementioned theory. It is
unclear whether a prior

 
 
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Quimvel vs. People
 sexual abuse on the same child victim should be pronounced
in an official court declaration, or whether a mere finding on that
matter in the same case would suffice. The Congressional
deliberations also express nothing on the necessity to determine a
prior sexual abuse to qualify the lascivious conduct. If a prior
sexual abuse was an integral element for prosecution, then it
stands to reason that the language of the law or the deliberations
should have addressed the same.
Same; Same; View that nowhere from the entirety of the law’s
other provisions nor the deliberations on the same could one
discern that the requirement of a prior sexual affront on a child
exists.—Particularly, it is observed that the phrase “a child
exploited in prostitution or subject to other sexual abuse”
in Section 5(b) has been priorly defined in the first paragraph of
the same provision as “[a child], 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[s] in sexual intercourse or lascivious conduct.”
Hence, just by switching this phrase with its equivalent technical
definition in the first paragraph, Section 5(b) may then be
construed as follows: “Those who commit the act of sexual
intercourse or lascivious conduct against [a child],
whether male or female, x  x  x for money, profit, or any
other consideration or due to the coercion or influence of
any adult, syndicate or group.” To my mind, this reading
equally passes grammatical logic, and most importantly, renders
Section 5(b) consistent with the fundamental intent of the law.
Besides, nowhere from the entirety of the law’s other provisions
nor the deliberations on the same could one discern that the
requirement of a prior sexual affront on a child exists.

Leonen, J., Separate Opinion:

Criminal Law; Child Abuse; View that I entertain serious

doubts as to whether he could have been convicted of violation of
Article 336 of the Revised Penal Code (RPC) [Acts of
Lasciviousness] due to a lacuna in Republic Act (RA) No. 8353 or
the Anti-Rape Law.—I concur with the majority. The accused has
been properly charged and convicted for violation of Article III,
Section 5 of Republic Act No. 7610. I add however, that I
entertain serious doubts as to whether he could have been
convicted of violation of Article 336 of the Revised Penal Code
(Acts of Lasciviousness) due to a lacuna in Republic Act No. 8353
or the Anti-Rape Law. That law properly

 
 
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reclassified rape as a crime against persons, thereby leaving

Article 336 in a different title without the provisions it used to
refer to.

CAGUIOA, J., Dissenting Opinion:

Statutes; View that Section 5(b) is a provision of specific and

limited application, and must be applied as worded — a separate
and distinct offense from the “common” or “ordinary” acts of
lasciviousness under Article 336 of the Revised Penal Code (RPC).
—At the outset, I join Justice Carpio’s observation that if the
intention of RA 7610 is to penalize all sexual abuses against
children under its provisions to the exclusion of the RPC, it would
have expressly stated so and would have done away with the
qualification that the child be “exploited in prostitution or
subjected to other sexual abuse.” It did not. When the statute
speaks unequivocally, there is nothing for the courts to do but to
apply it. Section 5(b) is a provision of specific and limited
application, and must be applied as worded — a separate and
distinct offense from the “common” or “ordinary” acts of
lasciviousness under Article 336 of the RPC. Upon the premise
that the language of Section 5(b) is ambiguous and is susceptible
to interpretation, I have conscientiously studied the deliberations
of RA 7610 to ascertain the intent of the law with respect to how
it would interplay with the provisions of the RPC and other laws
that penalize the same or similar acts.
Criminal Law; Child Abuse; View that 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.—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.
Same; Same; View that the person who has sexual intercourse
or performs lascivious acts upon the child, even if this were the
very first act by the child, already makes the person liable under
Section 5(b), because the very fact that someone had procured the
child to be

 
 
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used for another person’s sexual gratification in exchange for

money, profit or other consideration already qualifies the child as
a child exploited in prostitution.—That is not to say that in every
instance, prior sexual affront upon the child must be shown to
characterize the child as one “subjected to other sexual abuse.”
What is only necessary is to show that the child is already a child
exploited in prostitution or subjected to other sexual abuse at the
time the sexual intercourse or lascivious conduct complained of
was committed or that circumstances obtain prior or during the
first instance of abuse that constitutes such first instance of
sexual intercourse or lascivious conduct as having converted the
child into a child “exploited in prostitution or subjected to other
sexual abuse.” I am, therefore, in full agreement with Justice
Bernabe that alleging and proving the second element do not
require a prior sexual affront; precisely, because a prior sexual
affront is not the only way to satisfy the second element. It is in
this light that I had, during the deliberations of this case,
discussed the need to contextualize the operation of Section 5(b)
in reference to Section 5(a) and the other parts of Section 5. I
understand the structure of Section 5 as following the more
common model or progression of child prostitution or other forms
of sexual exploitation: A child is procured, induced, or threatened
to become a prostitute by any person, in violation of Section 5(a).
In this instance, the person who has sexual intercourse or
performs lascivious acts upon the child, even if this were the very
first act by the child, already makes the person liable under
Section 5(b), because the very fact that someone had procured the
child to be used for another person’s sexual gratification in
exchange for money, profit or other consideration already
qualifies the child as a child exploited in prostitution. In this
instance, no requirement of a prior sexual affront is required.
Same; Same; View that in cases where any person, under the
circumstances of Section 5(a), procures, induces, or threatens a
child to engage in any sexual activity with another person, even
without an allegation or showing that the impetus is money, profit
or other consideration, the first sexual affront by the person to
whom the child is offered already triggers Section 5(b) because the
circumstance of the child being offered to another already qualifies
the child as one subjected to other sexual abuse.—In cases where
any person, under the circumstances of Section 5(a), procures,
induces, or threatens a child to engage in any sexual activity with
another person, even without an allegation or showing that the
impetus is money, profit or other

 
 
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consideration, the first sexual affront by the person to whom

the child is offered already triggers Section 5(b) because the
circumstance of the child being offered to another already
qualifies the child as one subjected to other sexual abuse. Similar
to these situations, the first sexual affront upon a child shown to
be performing in obscene publications and indecent shows, or
under circumstances falling under Section 6 is already a violation
of Section 5(b) because these circumstances are sufficient to
qualify the child as one subjected to other sexual abuse.
Same; Same; View that Article 336 remains an operative
provision, and the crime of acts of lasciviousness under the Revised
Penal Code (RPC) remains a distinct and subsisting crime from
Republic Act (RA) No. 7610.—I concur with the majority that
Article 336 remains an operative provision, and the crime of acts
of lasciviousness under the RPC remains a distinct and subsisting
crime from RA 7610. While rape was relocated to the title on
crimes against persons, Article 336 can fairly be read to refer to
the provision that replaced Article 335 (Article 266) to save it
from becoming nonoperational.
Same; Same; View that “common” or “ordinary” acts of
lasciviousness under Article 336 and lascivious conduct under
Article 336 in relation to Section 5(b) are separate offenses, with
distinct essential elements.—“Common” or “ordinary” acts of
lasciviousness under Article 336 and lascivious conduct under
Article 336 in relation to Section 5(b) are separate offenses, with
distinct essential elements. To hold that the allegation and proof
of the existence of an element of one can take the place of what
has been jurisprudentially defined as an element of another
muddles the understanding of these two offenses, and effectively
constitutes judicial legislation as it results in a partial repeal of
Article 336 through a change of its essential elements.
Same; Same; View that it has been argued that neither force
or intimidation nor coercion or influence need be shown if the
offended party is a child under twelve (12) years old.—Even as the
Information alleged the use of force or intimidation, the evidence
established only that AAA was unconscious or asleep; meaning
that Quimvel could not be convicted of Section 5(b) but could be
convicted only of Article 336. It has been argued that neither force
or intimidation nor coercion or influence need be shown if the
offended party is a child

 
 
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Quimvel vs. People

under twelve (12) years old. This proposition is correct IF the

prosecution is for Articles 266-A or 336, as the age of the offended
party is a circumstance that, on its own, already satisfies the
conditions of Articles 266-A and 336. However, I maintain that in
a prosecution under Section 5(b), coercion or influence (or
otherwise, that the child indulged in sexual intercourse or
lascivious conduct for money, profit or other consideration) is a
textually-provided circumstance that must be separately shown
apart from the age of the child victim.

PETITION for review on certiorari of the decision and

resolution of the Court of Appeals.
The facts are stated in the opinion of the Court.
   Public Attorney’s Office for petitioner.
   The Solicitor General for respondent.

VELASCO, JR., J.:

 
The Case
 
Before us is a Petition for Review on Certiorari under
Rule 45 of the Rules of Court assailing the May 29, 2014
Decision1 and September 15, 2014 Resolution2 of the Court
of Appeals (CA) in C.A.-G.R. CR No. 35509.3 The
challenged rulings sustained the petitioner’s conviction4 of
the crime of Acts of Lasciviousness in relation to Sec. 5(b),
Article III of Republic Act (RA) No. 7610.5

_______________

1  Rollo, pp. 29-40. Penned by Associate Justice Japar B. Dimaampao

and concurred in by Associate Justices Elihu A. Ybañez and Carmelita S.
Manahan.
2  Id., at pp. 42-43.
3  Entitled People of the Philippines v. Eduardo Quimvel y Braga a.k.a.
Eduardo/Edward Quimuel y Braga.
 4  With modification as to the amount of damages.
5  AN ACT PROVIDING FOR STRONGER DETERRENCE AND SPECIAL PROTECTION
AGAINST CHILD ABUSE, EXPLOITATION AND DISCRIMINATION, AND FOR OTHER

PURPOSES.

 
 

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The Information reads:6

AMENDED INFORMATION
 
The Undersigned Assistant City Prosecutor of Ligao City
hereby accuses EDUARDO QUIMVEL y BRAGA also known as
EDWARD/EDUARDO QUIMUEL y BRAGA of the crime of Acts
of Lasciviousness in relation to Section 5(b) of R.A. No. 7610,
committed as follows:
That on or about 8 o’clock in the evening of July 18, 2007 at
Palapas, Ligao City, Philippines, and within the jurisdiction of
this Honorable Court, the above named accused, with lewd and
unchaste design, through force and intimidation, did then and
there, willfully, unlawfully and feloniously, insert his hand inside
the panty of [AAA],7 a minor of 7 years old and mash her vagina,
against her will and consent, to her damage and prejudice.
ACTS CONTRARY TO LAW.

_______________

6  Rollo, p. 65.
7   Any information to establish or compromise the identity of the
victim, as well as those of her immediate family or household members,
shall be withheld, and fictitious initials are used, pursuant to RA No.
7610, “AN ACT PROVIDING FOR STRONGER DETERRENCE AND SPECIAL PROTECTION
AGAINST CHILD ABUSE, EXPLOITATION AND DISCRIMINATION, AND FOR OTHER
PURPOSES”; Republic Act No. 9262, “AN ACT DEFINING VIOLENCE AGAINST
WOMEN AND THEIR CHILDREN, PROVIDING FOR PROTECTIVE MEASURES FOR

VICTIMS, PRESCRIBING PENALTIES THEREFOR, AND FOR OTHER PURPOSES”; Section

40 of A.M. No. 04-10-11-SC, known as the “Rule on Violence Against
Women and Their Children,” effective November 15, 2004; and People v.
Cabalquinto, G.R. No. 167693, September 19, 2006, 502 SCRA 419.

 
 
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The Facts
 
The facts of the case, as can be gleaned from the
Decision of the CA, are as follows:8

AAA, who was seven years old at the time of the incident, is
the oldest among the children of XXX and YYY. XXX worked as a
household helper in Batangas while YYY was a Barangay Tanod
who derived income from selling vegetables. AAA and her
siblings, BBB and CCC, were then staying with YYY in Palapas,
Ligao City.
On the other hand, Quimvel, at that time, was the caretaker of
the ducks of AAA’s grandfather. He lived with AAA’s
grandparents whose house was just a few meters away from
YYY’s house.
At around 8 o’clock in the evening of [July 18,] 2007, YYY went
out of the house to buy kerosene since there was no electricity.
While YYY was away, Quimvel arrived bringing a vegetable viand
from AAA’s grandfather. AAA requested Quimvel to stay with
them as she and her siblings were afraid. He agreed and
accompanied them. AAA and her siblings then went to sleep.
However, she was awakened when she felt Quimvel’s right leg on
top of her body. She likewise sensed Quimvel inserting his right
hand inside her panty. In a trice, she felt Quimvel caressing her
private part. She removed his hand.
Quimvel was about to leave when YYY arrived. She asked him
what he was doing in his house. Quimvel replied that he was just
accompanying the children. After he left, YYY and his children
went back to sleep.
On [July 29,] 2007, XXX arrived from Batangas. Later in the
evening while XXX was lying down with her children, she asked
them what they were doing while she was away. BBB told her
that Quimvel touched her Ate. When XXX asked AAA what
Quimvel did to her, she recounted that Quimvel laid down beside
her and touched her vagina.

_______________

8  Rollo, pp. 30-31.

 
 
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Upon hearing this, XXX and YYY went to the Office of the
Barangay Tanod and thereafter to the police station to report the
incident. Afterwards, they brought AAA to a doctor for medical
examination.
As expected, Quimvel denied the imputation hurled against
him. He maintained that he brought the ducks of AAA’s
grandmother to the river at 7 o’clock in the morning, fetched it
and brought it back at AAA’s grandmother’s place at 4 o’clock in
the afternoon of [July 18,] 2007. After that, he rested. He said
that he never went to AAA’s house that evening. When YYY
confronted and accused him of touching AAA, he was totally
surprised. Even if he denied committing the crime, he was still
detained at the Barangay Hall. He was then brought to the police
station for interrogation. Eventually, he was allowed to go home.
He did not return to the house of AAA’s grandmother to avoid any
untoward incidents.

Ruling of the Trial Court

 
Lending credence to AAA’s straightforward and
categorical testimony, the Regional Trial Court (RTC),
Branch 11 in Ligao City, Albay, on January 23, 2013,
rendered its Judgment9 finding petitioner guilty beyond
reasonable doubt of the crime charged. The dispositive
portion of the judgment reads:10

WHEREFORE, in the light of the foregoing, judgment is

hereby rendered:
1. Finding the accused, EDUARDO QUIMVEL y BRAGA
a.k.a. EDWARD/EDUARDO QUIMUEL y BRAGA, GUILTY
beyond reasonable doubt of the crime of Acts of Lasciviousness in
relation to Section 5(b), Article III of R.A. 7610 and thereby
sentenced him to suffer the penalty of imprisonment from
FOURTEEN (14) YEARS, EIGHT (8) MONTHS and ONE (1)
DAY of Reclusion Temporal in its medium period as minimum to

_______________

9   Id., at pp. 65-73. Penned by Judge Amy Ana L. De Villa-Rosero.

10  Id., at p. 73.

 
 
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220 SUPREME COURT REPORTS ANNOTATED

Quimvel vs. People

FIFTEEN (15) YEARS, SIX (6) MONTHS and NINETEEN (19)

DAYS of Reclusion Temporal in its medium period as maximum;
and
2. ORDERING the accused, EDUARDO QUIMVEL y BRAGA
a.k.a. EDWARD/EDUARDO QUIMUEL y BRAGA, to pay the
victim the amount of P30,000.00 as moral damages and to pay a
fine in the amount of P30,000.00.
In the service of his sentence, accused EDUARDO QUIMVEL y
BRAGA a.k.a. EDWARD/EDUARDO QUIMUEL y BRAGA shall
be credited with the period of his preventive detention pursuant
to Article 29 of the Revised Penal Code.
No costs.
SO ORDERED.

Ruling of the Appellate Court

 
Thereafter, petitioner lodged an appeal with the CA but
to no avail. For on May 29, 2014, the CA rendered its
assailed Decision affirming, with modification, the
Judgment of the trial court. The dispositive portion of the
Decision provides:11

WHEREFORE, the Decision dated 23 January 2013 of the

Regional Trial Court, Fifth Judicial Region, Ligao City, Branch II,
in Criminal Case No. 5530, is hereby MODIFIED in that accused-
appellant EDUARDO QUIMVEL y BRAGA also known as
EDUARDO/EDWARD QUIMUEL y BRAGA is ORDERED to pay
the victim, AAA moral damages, exemplary damages and fine in
the amount of P15,000.00 each as well as P20,000.00 as civil
indemnity. All damages shall earn interest at the rate of six
percent (6%) per annum from the date of finality of this judgment.
SO ORDERED.

_______________
 11  Id., at pp. 39-40.

 
 
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The Issues
 
Aggrieved, Quimvel elevated his case to this Court and
raised the following issues for resolution:

I.
 
The CA erred in affirming the decision of the trial court as the
prosecution was not able to prove that he is guilty of the crime
charged beyond reasonable doubt.
II.
 
Assuming without admitting that he is guilty hereof, he may be
convicted only of acts of lasciviousness under Art. 336 of the
Revised Penal Code (RPC) and not in relation to Sec. 5(b) of RA
7610.

The Court’s Ruling

 
We affirm the CA’s Decision finding petitioner guilty
beyond reasonable doubt of the crime of Acts of
Lasciviousness as penalized under Sec. 5(b) of RA 7610.
 
The Information charged the
crime of Acts of Lasciviousness
under Sec. 5(b) of RA 7610
 
Petitioner contends that, granting without admitting
that he is guilty of Acts of Lasciviousness, he should only
be held liable for the crime as penalized under the RPC and
not under RA 7610. According to him, to be held liable
under the latter law, it is necessary that the victim is
involved in or subjected to prostitution or other sexual
abuse, and that the failure to allege such element
constituted a violation of his constitutional right to be
informed of the nature and the cause of accusation against
him.12

_______________

12   Id., at pp. 20-21. Olivarez v. Court of Appeals, 503 Phil. 421; 465
SCRA 465 (2005).

 
 

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222 SUPREME COURT REPORTS ANNOTATED

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His argument fails to persuade.

  
i. The acts constituting the offense must be alleged
in the Information
 
It is fundamental that, in criminal prosecutions, every
element constituting the offense must be alleged in the
Information before an accused can be convicted of the crime
charged. This is to apprise the accused of the nature of the
accusation against him, which is part and parcel of the
rights accorded to an accused enshrined in Article III,
Section 14(2) of the 1987 Constitution.13 Section 6, Rule
110 of the Rules of Court, in turn, pertinently provides:

Section 6. Sufficiency of complaint or information.—A

complaint or information is sufficient if it states the name of the
accused, the designation of the offense by the statute, the acts or
omissions complained of as constituting the offense; the
name of the offended party; the approximate time of the
commission of the offense, and the place wherein the offense was
committed. (Emphasis added)

 
Jurisprudence has already set the standard on how the
requirement is to be satisfied. Case law dictates that the
allegations in the Information must be in such form as is
sufficient

_______________

13  Section 14. x x x
(2) In all criminal prosecutions, the accused shall be presumed
innocent until the contrary is proved, and shall enjoy the right to be heard
by himself and counsel, to be informed of the nature and cause of the
accusation against him, to have a speedy, impartial, and public trial, to
meet the witnesses face to face, and to have compulsory process to secure
the attendance of witnesses and the production of evidence in his behalf.
However, after arraignment, trial may proceed notwithstanding the
absence of the accused provided that he has been duly notified and his
failure to appear is unjustifiable. (emphasis added)

 
 
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to enable a person of common understanding to know what

offense is intended to be charged and enable the court to
know the proper judgment. The Information must allege
clearly and accurately the elements of the crime charged.
The facts and circumstances necessary to be included
therein are determined by reference to the definition and
elements of the specific crimes.14
The main purpose of requiring the elements of a crime to
be set out in the Information is to enable the accused to
suitably prepare his defense because he is presumed to
have no independent knowledge of the facts that constitute
the offense. The allegations of facts constituting the offense
charged are substantial matters and the right of an
accused to question his conviction based on facts not
alleged in the information cannot be waived.15 As further
explained in Andaya v. People:16

No matter how conclusive and convincing the evidence of guilt

may be, an accused cannot be convicted of any offense unless it is
charged in the information on which he is tried or is necessarily
included therein. To convict him of a ground not alleged while he
is concentrating his defense against the ground alleged would
plainly be unfair and underhanded. The rule is that a variance
between the allegation in the information and proof
adduced during trial shall be fatal to the criminal case if it
is material and prejudicial to the accused so much so that
it affects his substantial rights. (emphasis added)

 
Indeed, the Court has consistently put more premium on
the facts embodied in the Information as constituting the
offense rather than on the designation of the offense in

_______________

14  Serapio v. Sandiganbayan, 444 Phil. 499, 522; 396 SCRA 443, 459-
460 (2003).
15  Andaya v. People, 526 Phil. 480; 493 SCRA 539 (2006).
16  Id., at p. 497; p. 558.

 
 
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224 SUPREME COURT REPORTS ANNOTATED

Quimvel vs. People

the caption. In fact, an investigating prosecutor is not

required to be absolutely accurate in designating the
offense by its formal name in the law. What determines the
real nature and cause of the accusation against an accused
is the actual recital of facts stated in the Information or
Complaint, not the caption or preamble thereof nor the
specification of the provision of law alleged to have been
violated, being conclusions of law.17 It then behooves this
Court to place the text of the Information under scrutiny.
 
ii. The elements of the of-
fense penalized under
Sec. 5(b) of RA 7610 were
sufficiently alleged in
the Information
 
In the case at bar, petitioner contends that the
Information is deficient for failure to allege all the
elements necessary in committing Acts of Lasciviousness
under Sec. 5(b) of RA 9160.
His theory is that the Information only charges him of
the crime as punished under Art. 336 of the RPC, which
pertinently reads:

Art. 336. Acts of lasciviousness.—Any person who shall

commit any act of lasciviousness upon other persons of either sex,
under any of the circumstances mentioned on the preceding
article, shall be punished by prisión correccional.
  
Conviction thereunder requires that the prosecution
establish the following elements:

1. That the offender commits any act of lasciviousness or

lewdness;

_______________

17  Espino v. People, 713 Phil. 377; 700 SCRA 570 (2013), citing People
v. Manalili, 355 Phil. 652, 688; 294 SCRA 220, 256 (1998).

 
 
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Quimvel vs. People

2. That it is done under any of the following circumstances:18

a) Through force, threat, or intimidation;
b) When the offended party is deprived of reason or
otherwise unconscious;
c) By means of fraudulent machination or grave abuse of
authority;
d) When the offended party is under twelve (12) years of age
or is demented, even though none of the circumstances
mentioned above be present; and
3. That the offended party is another person of either sex.

 
On the other hand, the prosecution endeavored to prove
petitioner’s guilt beyond reasonable doubt for child abuse
under Sec. 5(b) of RA 7610, which provides:

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:
x x x x
(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
[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

_______________

18  The circumstances under which rape can be committed under Art.

335 of the Revised Penal Code have been modified by Republic Act No.
8353, otherwise known as the Anti-Rape Law.

 
 
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226 SUPREME COURT REPORTS ANNOTATED
Quimvel vs. People

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. x  x  x
(emphasis added)

 
Before an accused can be held criminally liable for
lascivious conduct under Sec. 5(b) of RA 7610, the
requisites of Acts of Lasciviousness as penalized under Art.
336 of the RPC earlier enumerated must be met in addition
to the requisites for sexual abuse under Sec. 5(b) of RA
7610, which are as follows:19

1. The accused commits the act of sexual intercourse or

lascivious conduct.
2. The said act is performed with a child exploited in
prostitution or subjected to other sexual abuse.
3. That child, whether male or female, is below 18 years of age.20
(emphasis supplied)

 
Hypothetically admitting the elements of Art. 336 of the
RPC, as well as the first and third elements under RA 7610
— that a lascivious act was committed against AAA who at
that time was below twelve (12) years old — petitioner
nevertheless contends that the second additional element,
requiring that the victim is a child “exploited in prostitution
or subjected to other sexual abuse,” is absent in this case.
The fault in petitioner’s logic lies in his misapprehension
of how the element that the victim is “exploited in
prostitution or subjected to other sexual abuse” should be
alleged in the Information.

_______________

19  Cabila v. People, G.R. No. 173491, November 23, 2007, 538 SCRA
695.
20  Amployo v. People, G.R. No. 157718, April 26, 2005, 457 SCRA 282.

 
 
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Guilty of reiteration, the accusatory portion of the

Information reads:

AMENDED INFORMATION
The Undersigned Assistant City Prosecutor of Ligao City
hereby accuses EDUARDO QUIMVEL y BRAGA also known as
EDWARD/EDUARDO QUIMUEL y BRAGA of the crime of Acts
of Lasciviousness in relation to Section 5(b) of R.A. No.
7610, committed as follows:
That on or about 8 o’clock in the evening of July 18, 2007 at
Palapas, Ligao City, Philippines, and within the jurisdiction of
this Honorable Court, the above named accused, with lewd and
unchaste design, through force and intimidation, did then and
there, willfully, unlawfully and feloniously, insert his hand inside
the panty of [AAA],21 a minor of 7 years old and mash her vagina,
against her will and consent, to her damage and prejudice.
ACTS CONTRARY TO LAW.22 (emphasis added)

 
To the mind of the Court, the allegations are sufficient
to classify the victim as one “exploited in prostitution or
subject to other sexual abuse.” This is anchored on the very
definition of the phrase in Sec. 5 of RA 7610, which
encompasses children who indulge in sexual intercourse or
lascivious conduct

_______________

21   Any information to establish or compromise the identity of the

victim, as well as those of her immediate family or household members,
shall be withheld, and fictitious initials are used, pursuant to RA No.
7610, “AN ACT PROVIDING FOR STRONGER DETERRENCE AND SPECIAL PROTECTION
AGAINST CHILD ABUSE, EXPLOITATION AND DISCRIMINATION, AND FOR OTHER
PURPOSES”; Republic Act No. 9262, “AN ACT DEFINING VIOLENCE AGAINST
WOMEN AND THEIR CHILDREN, PROVIDING FOR PROTECTIVE MEASURES FOR

VICTIMS, PRESCRIBING PENALTIES THEREFOR, AND FOR OTHER PURPOSES”; Section

40 of A.M. No. 04-10-11-SC, known as the “Rule on Violence Against
Women and Their Children,” effective November 15, 2004; and People v.
Cabalquinto, supra note 7.
22  Rollo, p. 65.

 
 
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228 SUPREME COURT REPORTS ANNOTATED

Quimvel vs. People

(a) for money, profit, or any other consideration; or (b)

under the coercion or influence of any adult, syndicate or
group.23
Correlatively, Sec. 5(a) of RA 7610 punishes acts
pertaining to or connected with child prostitution wherein
the child is abused primarily for profit. On the other hand,
paragraph (b) punishes sexual intercourse or lascivious
conduct committed on a child subjected to other sexual
abuse. It covers not only a situation where a child is abused
for profit but also one in which a child, through coercion,
intimidation or influence, engages in sexual intercourse or
lascivious conduct.24 Hence, the law punishes not only child
prostitution but also other forms of sexual abuse against
children. This is even made clearer by the deliberations of
the Senate, as cited in the landmark ruling of People v.
Larin:25

Senator Angara. I refer to line 9, ‘who for money or profit.’ I

would like to amend this, Mr. President, to cover a situation
where the minor may have been coerced or intimidated into this
lascivious conduct, not necessarily for money or profit, so that we
can cover those situations and not leave loophole in this section.
The proposal I have is something like this: WHO FOR
MONEY, PROFIT, OR ANY OTHER CONSIDERATION OR DUE
TO THE COERCION OR INFLUENCE OF ANY ADULT,
SYNDICATE OR GROUP INDULGE, et cetera.
The President Pro Tempore. I see. That would mean also
changing the subtitle of Section 4. Will it no longer be child
prostitution?
Senator Angara. No, no. Not necessarily, Mr. President,
because we are still talking of the child who is being misused for
sexual purposes either for money or for consideration. What I am
trying to cover is the other consideration. Because, here, it is
limited only to the

_______________

23  People v. Larin, 357 Phil. 987; 297 SCRA 309 (1998).

24  Malto v. People, 560 Phil. 119; 533 SCRA 643 (2007).
25  People v. Larin, supra at pp. 998-999; pp. 319-320.

 
 
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child being abused or misused for sexual purposes, only

for money or profit.
I am contending, Mr. President, that there may be
situations where the child may not have been used for
profit or . . .
The President Pro Tempore. So, it is no longer prostitution.
Because the essence of prostitution is profit.
Senator Angara. Well, the Gentleman is right. Maybe the
heading ought to be expanded. But, still, the President will
agree that that is a form or manner of child abuse.
The President Pro Tempore. What does the Sponsor say? Will
the Gentleman kindly restate the amendment?
ANGARA AMENDMENT
Senator Angara. The new section will read something like this,
Mr. President: MINORS, WHETHER MALE OR FEMALE, WHO
FOR MONEY, PROFIT, OR ANY OTHER CONSIDERATION OR
INFLUENCE OF ANY ADULT, SYNDICATE OR GROUP
INDULGE IN SEXUAL INTERCOURSE, et cetera.
Senator Lina. It is accepted, Mr. President.
The President Pro Tempore. Is there any objection? [Silence]
Hearing none, the amendment is approved.
How about the title, ‘Child Prostitution,’ shall we
change that too?
Senator Angara. Yes, Mr. President, to cover the
expanded scope.
The President Pro Tempore. Is that not what we would call
probable ‘child abuse’?
Senator Angara. Yes, Mr. President.
The President Pro Tempore. Subject to rewording. Is there any
objection? [Silence] Hearing none, the amendment is approved.

 
 

230

230 SUPREME COURT REPORTS ANNOTATED

 Quimvel vs. People

Clear from the records of the deliberation is that the

original wording of Sec. 5 of RA 7610 has been expanded so
as to cover abuses that are not characterized by gain,
monetary or otherwise. In the case at bar, the abuse
suffered by AAA squarely falls under this expanded scope
as there was no allegation of consideration or profit in
exchange for sexual favor. As stated in the Information,
petitioner committed lascivious conduct through the use of
“force” and “intimidation.”
 
iii. “Force and intimidation”
is subsumed under “coer-
cion and influence”
 
The term “coercion and influence” as appearing in the
law is broad enough to cover “force and intimidation” as
used in the Information. To be sure, Black’s Law Dictionary
defines “coercion” as “compulsion; force; duress”26 while
“[undue] influence” is defined as “persuasion carried to the
point of overpowering the will.”27 On the other hand, “force”
refers to “constraining power, compulsion; strength directed
to an end”28 while jurisprudence defines “intimidation” as
“unlawful coercion; extortion; duress; putting in fear.”29 As
can be gleaned, the terms are used almost synonymously.
It is then of no moment that the terminologies employed by
RA 7610 and by the Information are different. And to
dispel any remaining lingering doubt as to their
interchangeability, the Court enunciated in Caballo v.
People30 that:

_______________

26   <http://thelawdictionary.org/coercion/>, last accessed on March 3,

2017.
27   <http://thelawdictionary.org/undue-influence/>, last accessed on
March 3, 2017.
28  <http://thelawdictionary.org/force/>, last accessed on March 4, 2017.
29  Sazon v. Sandiganbayan (Fourth Division), 598 Phil. 35; 578 SCRA
211 (2009).
30  710 Phil. 792, 805-806; 698 SCRA 227, 242-243 (2013).

 
 
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x  x  x sexual intercourse or lascivious conduct under the

coercion or influence of any adult exists when there is
some form of compulsion equivalent to intimidation which
subdues the free exercise of the offended party’s free will.
Corollary thereto, Section 2(g) of the Rules on Child Abuse Cases
conveys that sexual abuse involves the element of influence which
manifests in a variety of forms. It is defined as:
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.
To note, the term “influence” means the “improper use of
power or trust in any way that deprives a person of free
will and substitutes another’s objective.” Meanwhile,
“coercion” is the “improper use of x  x  x power to compel
another to submit to the wishes of one who wields it.”
(emphasis added)

 
With the foregoing, the Court need not burden itself
with nitpicking and splitting hairs by making a distinction
between these similar, if not identical, words employed,
and make a mountain out of a mole hill.
It is not necessary that the description of the crime, as
worded in the penal provision allegedly violated, be
reproduced verbatim in the accusatory portion of the
Information before the accused can be convicted
thereunder. Sec. 9, Rule 110 of the Rules of Court is
relevant on this point:

Section 9. Cause of the accusation.—The acts or omissions

complained of as constituting the offense and the qualifying
and aggravating circumstances must be stated in ordinary
and concise language and not necessarily in the language
used in the statute but in terms sufficient to enable a
person of common understanding to know what offense is

 
 
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232 SUPREME COURT REPORTS ANNOTATED

Quimvel vs. People

being charged as well as its qualifying and aggravating

circumstances and for the court to pronounce judgment.

 
The Court has held in a catena of cases31 that the rule is
satisfied when the crime “is described in intelligible terms
with such particularity as to apprise the accused, with
reasonable certainty, of the offense charged.” Furthermore,
“[t]he use of derivatives or synonyms or allegations of
basic facts constituting the offense charged is
sufficient.” Hence, the exact phrase “exploited in
prostitution or subjected to other abuse” need not be
mentioned in the Information. Even the words “coercion or
influence” need not specifically appear.
Thus, the Court, in Olivarez v. Court of Appeals,32 has
similarly sustained the conviction of therein petitioner
Isidro Olivarez (Olivarez) for violating Sec. 5, RA 7610. The
Information indicting Olivarez of the offense read:

The undersigned 4th Assistant Provincial Prosecution

(sic) of Laguna upon a sworn complaint filed by the private
complainant, [AAA], hereby accuses ISIDRO OLIVAREZ of
the crime of VIOLATION OF RA 7610, committed as
follows:
That on or about July 20, 1997, in the Municipality
of San Pedro, Province of Laguna, within the
 jurisdiction of this Honorable Court, said accused
actuated by lewd design did then and there willfully,
unlawfully and feloniously by means of force and
intimidation commit acts of lasciviousness on the
person of one [AAA], by touching her breasts and
kissing her lips, against her will, to her damage and
prejudice.
CONTRARY TO LAW. (emphasis added)

_______________

31  Lazarte, Jr. v. Sandiganbayan, 600 Phil. 475; 581 SCRA 431 (2009);
Serapio v. Sandiganbayan, supra note 14 at p. 522; p. 460.
32  Olivarez v. Court of Appeals, supra note 12.

 
 

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Conspicuously enough, the Information in Olivarez is

couched in a similar fashion as the Information in the
extant case. The absence of the phrase “exploited in
prostitution or subject to other sexual abuse” or even the
specific mention of “coercion” or “influence” was never a bar
for the Court to uphold the finding of guilt against an
accused for violation of RA 7610. Just as the Court held
that it was enough for the Information in Olivarez to have
alleged that the offense was committed by means of “force
and intimidation,” the Court must also rule that the
Information in the case at bench does not suffer from the
alleged infirmity.
So too did the Court find no impediment in People v.
Abadies,33 Malto v. People,34 People v. Ching,35 People v.
Bona-

_______________

33   433 Phil. 814, 818; 384 SCRA 442, 444 (2002); the Information
reads:
That on or about July 1, 1997, in the Municipality of San Pedro,
Province of Laguna, Philippines, and within the jurisdiction of this
Honorable Court, said accused actuated by lewd design did then and there
willfully, unlawfully and feloniously, with force and intimidation
commit acts of lasciviousness upon the person of his 17-year-old daughter
[AAA] by kissing, mashing her breast and touching her private parts
against her will and consent.
CONTRARY TO LAW.
34  Supra note 24 at p. 126; pp. 647-648; the Information reads:
The undersigned Assistant City Prosecutor accuses MICHAEL JOHN
Z. MALTO of VIOLATION OF SECTION 5(b), ARTICLE III, REPUBLIC
ACT NO. 7610, AS AMENDED, committed as follows:
That on or about and sometime during the month of November 1997 up
to 1998, in Pasay City, Metro Manila, Philippines and within the
jurisdiction of this Honorable Court, the above named accused, Michael
John Z. Malto, a professor, did then and there willfully, unlawfully and
feloniously induce and/or seduce his student at Assumption College,
complainant, AAA, a minor of 17 years old, to indulge in sexual
intercourse for several times with him as in fact said accused had carnal
knowledge.
Contrary to law.

 
 

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234 SUPREME COURT REPORTS ANNOTATED

Quimvel vs. People

agua,36 and Caballo v. People37 to convict the accused

therein for violation of Sec. 5, RA 7610 notwithstanding the
non-

_______________

35  563 Phil. 433, 436; 538 SCRA 117, 121-122 (2007); the Information
reads:
CRIMINAL CASE NO. Q-99-87053
That in or about the month of May, 1998, in XXX, Philippines, the said
accused by means of force and intimidation, to wit: by then and there,
willfully, unlawfully and feloniously drag said AAA, his own daughter, 12
years of age, minor, inside a bedroom and undressed her and put himself
on top of her and thereafter have carnal knowledge with said AAA against
her will and without her consent.
CRIMINAL CASE NO. Q-99-87054
That in or about the month of May, 1998, in XXX, Philippines, the said
accused by means of force and intimidation, to wit: by then and there,
willfully, unlawfully and feloniously drag said AAA, his own daughter, 12
years of age, minor, inside a bedroom and undressed her and put himself
on top of her and thereafter have carnal knowledge with said AAA against
her will and without her consent.
CRIMINAL CASE NO. Q-99-87055
That in or about the year of 1996, in XXX, Philippines, the said accused
by means of force and intimidation, to wit: by then and there, willfully,
unlawfully and feloniously drag said AAA, his own daughter, 12 years of
age, minor, inside a bedroom and undressed her and put himself on top of
her and thereafter have carnal knowledge with said AAA against her will
and without her consent.
36  665 Phil. 750, 755-756; 650 SCRA 620, 626 (2011); the Information
reads:
That on or about the month of December 1998 in the City of Las Piñas
and within the jurisdiction of this Honorable Court, the above named
accused, with abuse of influence and moral ascendancy, by means of
force, threat and intimidation, did then and there willfully, unlawfully
and feloniously insert his tongue and finger into the genital of his
daughter, [AAA], a minor then eight (8) years of age, against her will and
consent.
CONTRARY TO LAW and with the special aggravating/qualifying
circumstance of minority of the private offended party, [AAA], being then
only eight (8) years of age and relationship of the said

 
 
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Quimvel vs. People
mention in the Information of “coercion,” “influence,” or
“exploited in prostitution or subject to other abuse.”
The offense charged can also be elucidated by consulting
the designation of the offense as appearing in the
Information. The designation of the offense is a critical
element required under Sec. 6, Rule 110 of the Rules of
Court for it assists in apprising the accused of the offense
being charged. Its inclusion in the Information is
imperative to avoid surprise on the accused and to afford
him of the opportunity to prepare his defense accordingly.38
Its import is underscored in this case where the preamble
states that the crime charged is of “Acts of Lasciviousness
in relation to Section 5(b) of R.A. No. 7610.”

_______________

private offended party with the accused, Ireno Bonaagua y Berce, the
latter being the biological father of the former.
37   Caballo v. People, supra note 30 at pp. 796-797; pp. 232-233; the
Information reads:
That undersigned Second Assistant City Prosecutor hereby accuses
Christian Caballo of the crime of Violation of Section 10(a) of Republic Act
No. 7610, committed as follows:
That in or about the last week of March 1998, and on different dates
subsequent thereto, until June 1998, in the City of Surigao, Philippines,
and within the jurisdiction of this Honorable Court, the above named
accused, a 23-year-old man, in utter disregard of the prohibition of the
provisions of Republic Act No. 7610 and taking advantage of the innocence
and lack of worldly experience of AAA who was only 17 years old at that
time, having been born on November 3, 1980, did then and there willfully,
unlawfully and feloniously commit sexual abuse upon said AAA, by
persuading and inducing the latter to have sexual intercourse with
him, which ultimately resulted to her untimely pregnancy and delivery of
a baby on March 8, 1999, a condition prejudicial to her development, to
the damage and prejudice of AAA in such amount as may be allowed by
law.
CONTRARY TO LAW.
38  Supra note 24.

 
 
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236 SUPREME COURT REPORTS ANNOTATED

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In Malto v. People,39 therein accused Michael John Z.

Malto (Malto) was charged for violation of RA 7610 in the
following wise:

The undersigned Assistant City Prosecutor accuses MICHAEL

JOHN Z. MALTO of VIOLATION OF SECTION 5[b],
ARTICLE III, REPUBLIC ACT 7610, AS AMENDED,
committed as follows:
That on or about and sometime during the month of November
1997 up to 1998, in Pasay City, Metro Manila, Philippines and
within the jurisdiction of this Honorable Court, the above named
accused, Michael John Z. Malto, a professor, did then and there
willfully, unlawfully and feloniously take advantage and exert
influence, relationship and moral ascendancy and induce and/or
seduce his student at Assumption College, complainant, AAA, a
minor of 17 years old, to indulge in sexual intercourse and
lascivious conduct for several times with him as in fact said
accused has carnal knowledge.
Contrary to law. (emphasis and words in brackets added)

 
Interestingly, the acts constitutive of the offense, as
alleged in the Information, could make out a case for
violation of either Sec. 5(b) of RA 7610 or Rape under the
RPC.40 Nevertheless, the Court affirmed the finding that
Malto is criminally liable for violation of RA 7610, and not
for Rape.
The Court is not unmindful of its pronouncements in
People v. Abello (Abello)41 and Cabila v. People (Cabila)42
that the second element must specifically be alleged in the
Information and thereafter proved. However, these rulings
cannot

_______________

39  Id., at p. 126; pp. 647-648.

40  Rape was still classified as a crime against chastity under the RPC
at the time the offense was committed.
41  601 Phil. 373; 582 SCRA 378 (2009).
42  Supra note 19.

 
 
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support petitioner’s prayer that he be convicted under Art.

336 of the RPC instead of under Sec. 5(b) of RA 7610.
To begin with, the factual milieu of Abello significantly
differs with that in the case at bar. Our refusal to convict
therein accused Heracleo Abello was premised on the fact
that his victim cannot be considered as a “child” within the
purview of RA 7610.43 The victim in Abello, was 21 years of
age when the offense was committed. Although she had
polio, the prosecution failed to substantiate through
evidence that the victim’s physical condition rendered her
incapable of fully taking care of herself or of protecting
herself against sexual abuse.44 Hence, Abello was only
convicted of Acts of Lasciviousness under Art. 336 of the
RPC.
Cabila, on the other hand, is a stray division case that
has seemingly been overturned by the Court’s recent En
Banc ruling in Dimakuta v. People (Dimakuta).45 The latter
case attempted to punctuate the discussion on the issue at
hand, but fell short as the conviction therein for violation of
Art. 336 of the RPC had already attained finality. Instead,
what the Court En Banc was confronted with in Dimakuta,
the bone of contention that remained, was whether or not
an accused is disqualified to apply for probation even if
such appeal resulted in the reduction of the non-
probationable penalty imposed to a probationable one. The
Court, therefore, deems it more appropriate here to
categorically abandon our ruling in Cabila.
_______________

43   Section 3. Definition of Terms.—(a) “Children” refers to

person 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.
44  People v. Abello, supra note 41.
45  G.R. No. 206513, October 20, 2015, 773 SCRA 228.

 
 
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238 SUPREME COURT REPORTS ANNOTATED

Quimvel vs. People

Neither can petitioner buttress his claim by citing the

dissent in the 2005 case of Olivarez v. CA46 wherein it was
expounded thus:

The first element refers to the acts of lasciviousness that the

accused performs on the child. The second element refers to the
special circumstance that the child (is) exploited in prostitution or
subjected to other sexual abuse. This special circumstance already
exists when the accused performs acts of lasciviousness on the
child. In short, the acts of lasciviousness that the accused
performs on the child are separate and different from the child’s
exploitation in prostitution or subjection to “other sexual
abuse.”
Under Article 336 of the RPC, the accused performs the acts of
lasciviousness on a child who is neither exploited in prostitution
nor subjected to “other sexual abuse.” In contrast, under
Section 5 of RA 7610, the accused performs the acts of
lasciviousness on a child who is either exploited in prostitution or
subjected to “other sexual abuse.”
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.”
(emphasis supplied)

 
Contrary to the exposition, the very definition of
“child abuse” under Sec. 3(b) of RA 7610 does not
require that the victim suffer a separate and distinct
act of sexual abuse aside from the act complained of.
For it refers to the maltreatment, whether habitual
or not, of the child. Thus, a violation of Sec. 5(b) of
RA 7610 oc-

_______________

46  Olivarez v. Court of Appeals, supra note 12 at pp. 444-445; p. 487.

 
 
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Quimvel vs. People

curs even though the accused committed sexual

abuse against the child victim only once, even
without a prior sexual affront.
 
iv. There need not be a third
person subjecting the ex-
ploited child to other abuse
 
The intervention by a third person is not necessary to
convict an accused under Sec. 5 of RA 7610. As regards
paragraph (a), a child may engage in sexual intercourse or
lascivious conduct regardless of whether or not a “bugaw”
is present. Although the presence of an offeror or a pimp is
the typical setup in prostitution rings, this does not
foreclose the possibility of a child voluntarily submitting
himself or herself to another’s lewd design for
consideration, monetary or otherwise, without third person
intervention. Needless to say, the child, would still be
under the protection of the law, and the offender, in such a
situation, could still be held criminally liable for violation
of Sec. 5(a) of RA 7610.
The Senate deliberations made clear, though, that other
forms of sexual abuse, not just prostitution, are within the
extended coverage of RA 7610. The offense is even
penalized under the same provision as prostitution — Sec.
5 of the law. Both offenses must then be dealt with under
the same parameters, in spite of the differences in their
elements. Thus, concomitant with the earlier postulation,
just as the participation of a third person is not necessary
to commit the crime of prostitution, so too is the
circumstance unessential in charging one for other sexual
abuse.
It is immaterial whether or not the accused himself
employed the coercion or influence to subdue the will of the
child for the latter to submit to his sexual advances for him
to be convicted under paragraph (b). Sec. 5 of RA 7610 even
provides that the offense can be committed by “any adult,
syn-
 
 

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240 SUPREME COURT REPORTS ANNOTATED

Quimvel vs. People

dicate or group,” without qualification.47 The clear

language of the special law, therefore, does not preclude
the prosecution of lascivious conduct performed by the
same person who subdued the child through coercion or
influence. This is, in fact, the more common scenario of
abuse that reaches this Court and it would be an
embarrassment for us to rule that such instances are
outside the ambit Sec. 5(b) of RA 7610.
It is as my esteemed colleagues Associate Justices
Diosdado M. Peralta and Estela M. Perlas-Bernabe
reminded the Court. Ratio legis est anima. The reason of
the law is the soul of the law. In this case, the law would
have miserably failed in fulfilling its lofty purpose48 of
providing special protection to children from all forms of
abuse if the Court were to interpret its penal provisions so
as to require the additional element of a prior or
contemporaneous abuse that is different from what is
complained of, and if the Court were to require that a third
person act in concert with the accused.

_______________

47   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.
48   RA No. 7610, Section 2. Declaration of State Policy and
Principles.—It is hereby declared to be the policy of the State to provide
special protection to children from all firms of abuse, neglect, cruelty
exploitation and discrimination and other conditions, prejudicial their
development; provide sanctions for their commission and carry out a
program for prevention and deterrence of and crisis intervention in
situations of child abuse, exploitation and discrimination. The State shall
intervene on behalf of the child when the parent, guardian, teacher or
person having care or custody of the child fails or is unable to protect the
child against abuse, exploitation and discrimination or when such acts
against the child are committed by the said parent, guardian, teacher or
person having care and custody of the same.

 
 

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The RTC and CA did not err

in finding petitioner guilty
beyond reasonable doubt
 
Well-settled is the rule that, absent any clear showing of
abuse, arbitrariness or capriciousness committed by the
lower court, its findings of facts, especially when affirmed
by the Court of Appeals, are binding and conclusive upon
this Court.49 This is so because the observance of the
deportment and demeanor of witnesses are within the
exclusive domain of the trial courts. Thus, considering their
unique vantage point, trial courts are in the best position to
assess and evaluate the credibility and truthfulness of
witnesses and their testimonies.50
In the case at bar, the RTC held that the prosecution
duly established petitioner’s guilt beyond reasonable doubt
through AAA’s straightforward testimony. The trial court
observed that when AAA testified, she was able to steadily
recount Quimvel’s immodest acts, as follows:

Q Okay. On the same date, where was your mother, if you know?
A During that time, my mother was in Batangas, she being a
household helper.
Q Alright. How about your father, where was he on July 18, 2007,
at more or less 8:00 o’clock in the evening?
A He was on duty at Palapas, Ligao City.
Q Okay. What was your father’s job?
A He was on duty, since he was a Barangay Tanod.
Q Okay. Now, on that date and time, where were you, if you
recall?
A I was in our house.

_______________

49  Uyboco v. People, G.R. No. 211703, December 10, 2014, 744 SCRA
688.
50  People v. Pareja, 724 Phil. 759; 714 SCRA 131 (2014).

 
 

242

242 SUPREME COURT REPORTS ANNOTATED

Quimvel vs. People

Q Who were with you inside your house?

A I was with my two (2) siblings.
Q Okay. Now, what happened while you and your siblings were
there inside your house on that date and time?
A Eduardo went to our house with a viand vegetable for us.
Q Okay. Who is this Eduardo that you are referring to?
A He is the helper of my grandfather.
Q Okay. If you know, why was he bringing you then a viand?
A He was sent by our Lolo to bring the viand for us.
Q Alright. When he brought the viand to you, what did you say, if
any?
A I told him to accompany us in our house because we are afraid.
Q Okay. What did he say, if any, when you told him that?
A He told me, it’s alright.
Q Okay. So, what did you do after he told you that?
A After that, I went to sleep.
Q How about your brother or sister, what did they do also?
A They too went to sleep.
Q And then what happened, if you recall?
A Since his leg was placed over my body. I was awaken[ed]
because from that, he was also inserting his hand inside my
panty.
Q Alright. Now, could you tell us which leg was it that he placed
on top of your body?
A His right leg(,) ma’am.
Q Okay. Now, you’ve mentioned that he inserted his hand inside
your panty, do you recall what you were wearing at that time?
A I was wearing shorts and panty.

 
 
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Quimvel vs. People

Q Alright. How about on the upper portion of your body, what

were you wearing then?
A I was wearing a blouse, like what I am wearing now. (Witness
pointing to her blouse)
Q Alright. And you mentioned that he inserted his hand on your
panty, which hand did he use?
A His right hand.
Q Alright. And after inserting his hand inside your panty, what
did he do with it?
A After inserting his hand inside my panty, he rubbed my vagina.
(Witness is demonstrating by rubbing her left hand with her
right hand.)
Q Now, could you tell us for how long did Eduardo rubbed or
caressed your vagina? (sic)
A Maybe it took for about five (5) minutes.
Q Do you know how long is a minute?
A I do not know(,) ma’am.
Q Now, if you are going to count one (1) to ten (10), each count
would be equivalent to one (1) second and if you have counted
for ten (10), on what number would you reach to approximate
the time wherein Eduardo caressed your vagina?
A It could be thirty (30) minutes.
COURT
Maybe she did not understand it.
PROS. CRUZ
Q Alright. Now, he (sic) took a long time for the accused to caress
your vagina, is that what you are trying to tell this Honorable
Court?
A Yes(,) ma’am.
Q And what did you do when he was caressing your vagina for
that long?
A I removed his hand from inside my panty.51

_______________

51  TSN, June 23, 2011, pp. 6-9.

 
 
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244 SUPREME COURT REPORTS ANNOTATED

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The foregoing testimonial account demonstrates that all

the elements of the crime of Acts of Lasciviousness under
Sec. 5(b) of RA 7610, as earlier enumerated, are present.
Let us not forget the circumstances of this case, not only
was the offense committed against a child under twelve
(12) years of age, it was committed when the victim was
unconscious, fast asleep in the dead of the night. AAA, then
a minor of seven (7) years, was awoken by the weight of
petitioner’s leg on top of her and of his hand sliding inside
her undergarment. His hand proceeded to caress her
womanhood, which harrowing experience of a traumatic
torment only came to a halt when she managed to prevent
his hand from further touching her private parts.
As regards the second additional element, it is settled
that the child is deemed subjected to other sexual abuse
when the child engages in lascivious conduct under the
coercion or influence of any adult.52 Intimidation need not
necessarily be irresistible. It is sufficient that some
compulsion equivalent to intimidation annuls or subdues
the free exercise of the will of the offended party.53 The law
does not require physical violence on the person of the
victim; moral coercion or ascendancy is sufficient.54
The petitioner’s proposition — that there is not even an
iota of proof of force or intimidation as AAA was asleep
when the offense was committed and, hence, he cannot be
prosecuted under RA 7610 — is bereft of merit. When the
victim of the crime is a child under twelve (12) years old,
mere moral ascendancy will suffice.
Here, AAA was a child at the tender age of seven (7)
when the offense was committed. She was residing with
her father in Palagas, Ligao City, Albay while her mother
works as a household helper in Batangas. Her father,
however, is out of

_______________

52  Garingarao v. People, 669 Phil. 512; 654 SCRA 243 (2011).

53  Caballo v. People, supra note 30.
54  Dimakuta v. People, supra note 45.

 
 
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the house most of the time, working two jobs as a vendor

and barangay tanod. Petitioner, on the other hand, was
known to the victim and her siblings as the caretaker of
their grandmother’s ducks. Thus, when petitioner brought
some vegetable viand to the victim’s house at the day the
crime was committed, he was requested by the children to
stay with them because they were afraid. AAA entrusted to
petitioner her safety and that of her siblings, only to be
betrayed. In this situation, the Court finds that because of
the relative seniority of petitioner and the trust reposed in
him, petitioner abused the full reliance of AAA and
misused his ascendancy over the victim. These
circumstances can be equated with “intimidation” or
“influence” exerted by an adult, covered by Sec. 5(b) of RA
7610. Ergo, the element of being subjected to sexual abuse
is met.
That AAA is a child of tender years does not detract
from the weight and credibility of her testimony. On the
contrary, even more credence is given to witnesses who
were able to candidly relay their testimony before the trial
courts under such circumstance. The child’s willingness to
undergo the trouble and humiliation of a public trial is an
eloquent testament to the truth of her complaint.55
In stark contrast, Quimvel’s defense — that he did not
go to AAA’s house on the alleged time of the incident as he
was busy watching over the ducks of AAA’s grandmother at
the latter’s house56 — deserves scant consideration.
Jurisprudence is replete of cases holding that denial and
alibi are weak defenses, which cannot prevail against
positive identification.57 A categorical and consistent
positive identification which is not accompanied by ill
motive on the part of the eyewitness prevails over mere
denial. Such denial, if not substantiated by
_______________

55  Navarrete v. People, G.R. No. 147913, January 31, 2007, 513 SCRA
509.
56  Rollo, p. 67.
57   People v. Agcanas, G.R. No. 174476, October 11, 2011, 658 SCRA
842.

 
 
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246 SUPREME COURT REPORTS ANNOTATED

Quimvel vs. People

clear and convincing evidence, is negative and self-serving

evidence undeserving of weight in law. It cannot be given a
greater evidentiary value over the testimony of credible
witnesses who testify on affirmative matters.58
For his alibi to prosper, it was incumbent upon
petitioner to prove that he was somewhere else when the
offense was committed, and that he was so far away it
would have been impossible for him to be physically
present at the place of the crime or at its immediate
vicinity at the time of the commission.59 But in his version
of the events, petitioner failed to prove the element of
physical impossibility since the house of AAA’s
grandmother, where he claimed to be at that time, is only
150 meters, more or less, from AAA’s house. His alibi,
therefore, cannot be considered exculpatory.
 
Article 336 of the RPC was
never repealed by RA 8353
 
Associate Justice Marvic M.V.F. Leonen (Justice
Leonen) posits that Art. 336 of the RPC has allegedly been
rendered incomplete and ineffective by RA 8353, otherwise
known as the Anti-Rape law. The good justice brings our
attention to Sec. 460 of the special law, which clause
expressly repealed Art. 335 of the RPC. And since the
second element of Acts of Lasciviousness under Art. 336 of
the RPC is sourced from Art. 335 of the same code,61 it is
then Justice Leonen’s theory that

_______________

58  People v. Gani, G.R. No. 195523, June 5, 2013, 697 SCRA 530.
59  People v. Piosang, G.R. No. 200329, June 5, 2013, 697 SCRA 587.
60   Section 4. Repealing Clause.—Article 335 of Act No. 3815, as
amended, and all laws, acts, presidential decrees, executive orders,
administrative orders, rules and regulations inconsistent with or contrary
to the provisions of this Act are deemed amended, modified or repealed
accordingly.
61   Under Art. 336, the lascivious conduct must be performed under
any of the circumstances mentioned on its “preceding article,” referring to
the previous law penalizing rape. Prior to its repeal, Art.

 
 
247
 VOL. 823, APRIL 18, 2017 247
Quimvel vs. People

Acts of Lasciviousness ceased to be a crime under the RPC

following Art. 335’s express repeal.
We respectfully disagree.
Sec. 4 of RA 8353 did not expressly repeal Article 336 of
the RPC for if it were the intent of Congress, it would have
expressly done so. Rather, the phrase in Sec. 4 states:
“deemed amended, modified, or repealed accordingly”
qualifies “Article 335 of Act No. 3815, as amended, and all
laws, acts, presidential decrees, executive orders,
administrative orders, rules and regulations inconsistent
with or contrary to the provisions of [RA 8353].”
As can be read, repeal is not the only fate that may
befall statutory provisions that are inconsistent with RA
8353. It may be that mere amendment or modification
would suffice to reconcile the inconsistencies resulting from
the latter law’s enactment. In this case, Art. 335 of the
RPC,62 which previously penalized rape through carnal
knowledge, has been replaced by Art. 266-A.63 Thus, the
reference by Art. 336 of the

_______________

335 of the RPC provides that rape may be committed a) by using force or
intimidation; b) when the offended party is deprived of reason or
otherwise unconscious; or c) when the offended party is under 12 years of
age.
62   Article 335. When and how rape is committed.—Rape is
  committed by having carnal knowledge of a woman under any of the
following circumstances:
1. By using force or intimidation;
2. When the woman is deprived of reason or otherwise
unconscious; and
3. When the woman is under twelve years of age, even though
neither of the circumstances mentioned in the two next preceding
paragraphs shall be present.
63   Article 266-A. Rape: When And How Committed.—Rape is
committed:
1) By a man who shall have carnal knowledge of a woman under
any of the following circumstances:
a) Through force, threat, or intimidation;

 
 
248

248 SUPREME COURT REPORTS ANNOTATED

Quimvel vs. People

RPC to any of the circumstances mentioned on the

erstwhile preceding article on how the crime is perpetrated
should now refer to the circumstances covered by Art. 266-
A as introduced by the Anti-Rape Law.
We are inclined to abide by the Court’s long-standing
policy to disfavor repeals by implication for laws are
presumed to be passed with deliberation and full
knowledge of all laws existing on the subject. The failure to
particularly mention the law allegedly repealed indicates
that the intent was not to repeal the said law, unless an
irreconcilable inconsistency and repugnancy exists in the
terms of the new and old laws.64 Here, RA 8353 made no
specific mention of any RPC provision other than Art. 335
as having been amended, modified, or repealed. And as
demonstrated, the Anti-Rape Law, on the one hand, and
Art. 336 of the RPC, on the other, are not irreconcilable.
The only construction that can be given to the phrase
“preceding article” is that Art. 336 of the RPC now refers to
Art. 266-A in the place of the repealed Art. 335. It is,
therefore, erroneous to claim that Acts of Lasciviousness
can no longer be prosecuted under the RPC.
It is likewise incorrect to claim that Art. 336 had been
rendered inoperative by the Anti-Rape Law and argue in
the same breath the applicability of Sec. 5(b) of RA 7610.
The latter provision reads:

_______________

b) When the offended party is deprived of reason or otherwise

unconscious;
c) By means of fraudulent machination or grave abuse of
authority; and
d) When the offended party is under twelve (12) years of age or is
demented, even though none of the circumstances mentioned above
be present. (as amended by RA No. 8353, Sec. 2)
64   Philippine International Trading Corporation v. Commission on
Audit, G.R. No. 183517, June 22, 2010, 621 SCRA 461.

 
 
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Section 5. Child Prostitution and Other Sexual Abuse.

—x x x
x x x x
(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 [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. x x x (emphasis added)

 
If Art. 336 then ceased to be a penal provision in view of
its alleged incompleteness, then so too would Sec. 5(b) of
RA 7610 be ineffective since it defines and punishes the
prohibited act by way of reference to the RPC provision.
The decriminalization of Acts of Lasciviousness under
the RPC, as per Justice Leonen’s theory, would not
sufficiently be supplanted by RA 7610 and RA 9262,65
otherwise known as the Anti-Violence Against Women and
their Children Law (Anti-VAWC Law). Under RA 7610,
only minors can be considered victims of the enumerated
forms of abuses therein. Meanwhile, the Anti-VAWC law
limits the victims of sexual abuses covered by the RA to a
wife, former wife, or any women with whom the offender
has had a dating or sexual relationship, or against her
child.66 Clearly, these laws do not provide ample protection
against sexual offenders who do not discriminate in
selecting their victims. One does not have to be a child
before he or she can be victimized by acts of lascivi-

_______________

65  AN ACT DEFINING VIOLENCE AGAINST WOMEN AND THEIR CHILDREN,

PROVIDING FOR PROTECTIVE MEASURES FOR VICTIMS, PRESCRIBING PENALTIES
THEREFOR, AND FOR OTHER PURPOSES.
66  RA No. 9262, Sec. 3(a).

 
 
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Quimvel vs. People

ousness. Nor does one have to be a woman with an existing

or prior relationship with the offender to fall prey. Anyone
can be a victim of another’s lewd design. And if the Court
will subscribe to Justice Leonen’s position, it will render a
large portion of our demographics (i.e., adult females who
had no prior relationship to the offender, and adult males)
vulnerable to sexual abuses.
 
The RTC and the CA imposed
the proper prison term
 
Anent the proper penalty to be imposed, Sec. 5 of RA
7610 provides that the penalty for lascivious conduct, when
the victim is under twelve (12) years of age, shall be
reclusion temporal in its medium period, which ranges from
14 years, 8 months and 1 day to 17 years and 4 months.67
Meanwhile, Sec. 1 of Act No. 4103,68 otherwise known as
the Indeterminate Sentence Law (ISL), provides that if the
offense is ostensibly punished under a special law, the
minimum and maximum prison term of the indeterminate
sentence shall not be beyond what the special law
prescribed.69

_______________

67  REVISED PENAL CODE, Art. 76.

68  AN ACT TO PROVIDE FOR AN INDETERMINATE SENTENCE AND PAROLE FOR

ALL PERSONS CONVICTED OF CERTAIN CRIMES BY THE COURTS OF THE PHILIPPINE

ISLANDS; TO CREATE A BOARD OF INDETERMINATE SENTENCE AND TO PROVIDE
FUNDS THEREFOR; AND FOR OTHER PURPOSES.
69  Section 1. Hereafter, in imposing a prison sentence for an offense
punished by the Revised Penal Code, or its amendments, the court shall
sentence the accused to an indeterminate sentence the maximum term of
which shall be that which, in view of the attending circumstances, could
be properly imposed under the rules of the said Code, and the minimum
which shall be within the range of the penalty next lower to that
prescribed by the Code for the offense; and if the offense is punished by
any other law, the court shall sentence the accused to an
indeterminate sentence, the maximum term of which shall not
exceed the maximum fixed

 
 
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Be that as it may, the Court had clarified in the landmark

ruling of People v. Simon70 that the situation is different
where although the offense is defined in a special law, the
penalty therefor is taken from the technical nomenclature
in the RPC. Under such circumstance, the legal effects
under the system of penalties native to the Code would also
necessarily apply to the special law.
Thus, in People v. Santos (Santos),71 which similarly
involved charges for Acts of Lasciviousness under Sec. 5(b)
of RA 7610, the Court applied the ISL and adjusted the
prison term meted to the accused-appellant therein. In the
absence of mitigating or aggravating circumstances, the
Court held that the maximum term of the sentence to be
imposed shall be taken from the medium period of
reclusion temporal in its medium period, which ranges from
fifteen (15) years, six (6) months and twenty-one (21) days
to sixteen (16) years, five (5) months and nine (9) days. On
the other hand the minimum term shall be taken from the
penalty next lower to reclusion temporal medium, that is
reclusion temporal minimum, which ranges from twelve
(12) years and one (1) day to fourteen (14) years and eight
(8) months.
From the foregoing, it becomes clear that the prison
term meted to petitioner [i.e., fourteen (14) years, eight (8)
months and one (1) day of reclusion temporal in its medium
period as minimum to fifteen (15) years, six (6) months and
nineteen (19) days of reclusion temporal in its medium
period] must be modified to be in consonance with the
Court’s ruling in Santos. Accordingly, the minimum prison
term shall be reduced to twelve (12) years and one (1) day,
while the maximum term shall be adjusted to fifteen (15)
years, six (6) months and twenty-one (21) days.

_______________

by said law and the minimum shall not be less than the minimum
term prescribed by the same. (emphasis added)
70  G.R. No. 93028, July 29, 1994, 234 SCRA 555
71  G.R. No. 205308, February 11, 2015, 750 SCRA 471.

 
 
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WHEREFORE, the instant petition is hereby

DENIED. The Court of Appeals’ Decision in C.A.-G.R. CR
No. 35509 finding petitioner Eduardo Quimvel y Braga also
known as Eduardo/Edward Quimuel y Braga guilty beyond
reasonable doubt of acts of lasciviousness is hereby
AFFIRMED with MODIFICATION as follows:

WHEREFORE, the Decision dated 23 January 2013 of the

Regional Trial Court, Fifth Judicial Region, Ligao City, Branch
11, in Criminal Case No. 5530, is hereby MODIFIED in that
accused-appellant EDUARDO QUIMVEL y BRAGA also known
as EDUARDO/EDWARD QUIMUEL y BRAGA is SENTENCED
to suffer the indeterminate imprisonment of twelve (12) years and
one (1) day of reclusion temporal in its minimum period as
minimum to fifteen (15) years, six (6) months, and twenty-one (21)
days of reclusion temporal in its medium period as maximum. He
is further ORDERED to pay the victim, AAA, moral damages,
exemplary damages and fine in the amount of P15,000.00 each as
well as P20,000.00 as civil indemnity. All damages shall earn
interest at the rate of six percent (6%) per annum from the date of
finality of this judgment.

 
SO ORDERED.

Sereno (CJ.), Leonardo-De Castro, Bersamin, Mendoza,

Reyes, Martires and Tijam, JJ., concur.
Carpio and Caguioa, JJ., See Dissenting Opinion.
Peralta and Leonen, JJ., See Separate Opinion.
Del Castillo, J., I join J. Carpio’s and J. Caguioa’s
Dissenting Opinion.
Perlas-Bernabe, J., Please see Concurring Opinion.
Jardeleza, J., No part.

 
 

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DISSENTING OPINION
 
CARPIO, J.:
 
Lascivious acts committed against a child under 12
years old may fall under either Section 5(b) of Republic Act
No. 7610 (RA 7610)1 or Article 336 of the Revised Penal
Code (RPC). As both laws remain to be good and effective, I
submit this Separate Opinion to clarify and distinguish
these two seemingly overlapping provisions.
I agree with the majority opinion when it states that
Article 336 of the RPC was never repealed by Republic Act
No. 8353 (RA 8353).2 While the latter law expressly
repealed Article 335, this does not render Article 336
incomplete or ineffective. As the majority opinion explains,
it simply means that the “preceding article” referred to in
Article 336 would now refer to Article 266-A, which
replaced Article 335.
As it now stands, the crime of acts of lasciviousness
under Article 336 of the RPC has the following elements:
1. That the offender commits any act of lasciviousness or
lewdness;
2. That the act of lasciviousness is committed against a
person of either sex;
3. That it is done under any of the following circumstances:
a. By using force or intimidation;
b. When the offended party is deprived of reason or
otherwise unconscious; or

_______________

1  AN ACT PROVIDING FOR STRONGER DETERRENCE AND SPECIAL PROTECTION

AGAINST CHILD ABUSE, EXPLOITATION, AND DISCRIMINATION AND FOR OTHER
PURPOSES.
2  The Anti-Rape Law of 1997.

 
 

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254 SUPREME COURT REPORTS ANNOTATED

Quimvel vs. People

c. When the offended party is under 12 years of age or is

demented.3

 
On the other hand, Section 5(b) of RA 7610 has the
following elements:
1. The accused commits the act of sexual intercourse or
lascivious conduct.
2. The said act is performed with a child exploited in
prostitution or subjected to other sexual abuse.
3. That child, whether male or female, is below 18 years of
age.4
 
The majority opinion states that for an accused to be held
criminally liable for lascivious conduct under Section 5(b)
of RA 7610, the requisites under Article 336 of the RPC
must be met in addition to the requisites under Section
5(b) of RA 7610. Moreover, based on the elements of Article
336 of the RPC and Section 5(b) of RA 7610 enumerated
above, it is evident that both provisions share some similar
elements. The main difference lies in the second element of
Section 5(b) of RA 7610 that the act is performed with a
child exploited in prostitution or subjected to other sexual
abuse. Thus, to be convicted of lascivious conduct under
Section 5(b) of RA 7610 — rather than acts of
lasciviousness under Article 336 of the RPC — it is
essential to prove that the child against whom the act was
committed is a child exploited in prostitution or subjected
to other sexual abuse.
Thus, the difference is clear: under Article 336 of
the RPC, the accused performs the act of
lasciviousness with a child who is neither exploited
in prostitution nor subjected to “other sexual abuse”
while under Sec-

_______________

3  Simbolon, Jr. v. People, 617 Phil. 187; 601 SCRA 405 (2009).
4  Olivarez v. Court of Appeals, 503 Phil. 421; 465 SCRA 465 (2005).
  
 
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tion 5(b) of RA 7610, the act is performed with a

child who is either exploited in prostitution or
subjected to “other sexual abuse.”
In this case, the majority opinion states that the second
element of Section 5(b) of RA 7610 was met because the
lascivious conduct was done under the “coercion or
influence” of an adult. It assumes that if coercion or
influence was used to perform a lascivious act with a child,
such child is subjected to “other sexual abuse.” The
majority opinion goes further to state that “force or
intimidation” (the terms used in the Information against
Quimvel) is subsumed under “coercion or influence,” which
again, it deems as “other sexual abuse.”
The main issue is whether or not the second element of
Section 5(b) of RA 7610 was correctly alleged in the
Information and whether it was sufficiently proven by the
prosecution during the trial. I submit that the second
element — that the child is “exploited in prostitution or
subjected to other sexual abuse” — was neither correctly
alleged nor proven beyond reasonable doubt.
First, I would like to distinguish the first and second
elements of Section 5(b) of RA 7610. The first element —
that the accused commits the act of sexual intercourse or
lascivious conduct — refers to the very act complained of
against the accused. The second element — that the act is
performed with a child exploited in prostitution or
subjected to other sexual abuse — refers to the
circumstance of the child against whom the act was
committed. This second element does not necessarily have
any relation to the act of the accused as this relates to the
child alone. The first and second elements refer to two
entirely different and separate matters. One refers to the
act committed by the accused while the other refers to the
circumstance of the child victim, which may or may not be
related to the act committed by the accused.
Second, being under the “coercion or influence” of an
adult does not, by itself, make the child automatically
subjected to “other sexual abuse.” Section 5 of RA 7610
provides in part:
 
 
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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.

 
To understand this provision, I looked into the
deliberations of the Senate, which are also quoted in the
majority opinion:

Senator Angara. I refer to line 9, “who for money or profit.” I

would like to amend this, Mr. President, to cover a situation
where the minor may have been coerced or intimidated into this
lascivious conduct, not necessarily for money or profit, so that we
can cover those situations and not leave loophole in this section.
The proposal I have is something like this: WHO FOR
MONEY, PROFIT, OR ANY OTHER CONSIDERATION OR DUE
TO THE COERCION OR INFLUENCE OF ANY ADULT,
SYNDICATE OR GROUP INDULGE, et cetera.
The President Pro Tempore. I see. That would mean also
changing the subtitle of Section 4. Will it no longer be child
prostitution?
Senator Angara. No, no. Not necessarily, Mr. President,
because we are still talking of the child who is being
misused for sexual purposes either for money or for
consideration. What I am trying to cover is the other
consideration. Because, here, it is limited only to the child being
abused or misused for sexual purposes, only for money or profit.
I am contending, Mr. President, that there may be situations
where the child may not have been used for profit or . . .
The President Pro Tempore. So it is no longer prostitution.
Because the essence of prostitution is profit.
Senator Angara. Well, the Gentleman is right. Maybe the
heading ought to be expanded. But, still, the

 
 

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President will agree that that is a form or manner of child abuse.

The President Pro Tempore. What does the Sponsor say? Will
the Gentleman kindly restate the amendment?
 
ANGARA AMENDMENT
 
Senator Angara. The new section will read something like this,
Mr. President: MINORS, WHETHER MALE OR FEMALE, WHO
FOR MONEY, PROFIT, OR ANY OTHER CONSIDERATION OR
INFLUENCE OF ANY ADULT, SYNDICATE OR GROUP
INDULGE IN SEXUAL INTERCOURSE, et cetera.
Senator Lina. It is accepted, Mr. President.
The President Pro Tempore. Is there any objection? [Silence]
Hearing none, the amendment is approved.
How about the title, “Child Prostitution,” shall we change that
too?
Senator Angara. Yes, Mr. President, to cover the expanded
scope.
The President Pro Tempore. Is that not what we would call
probable ‘child abuse’?
Senator Angara. Yes, Mr. President.
 The President Pro Tempore. Subject to rewording. Is there any
objection? [Silence] Hearing none, the amendment is approved
x x x.5 (Boldfacing and underscoring supplied)

 
Based on the foregoing, it is clear that this provision was
crafted to cover a situation where sexual intercourse or
lascivious conduct is performed with a child who is being
abused or misused for sexual purposes. The phrase “or
any other consideration or due to the coercion or influence
of any adult, syndicate or group” was added to merely cover

_______________

5  Records of the Senate (Vol. I), No. 7, pp. 261-263, cited in People v.
Larin, 357 Phil. 987; 297 SCRA 309 (1998).

 
 
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258 SUPREME COURT REPORTS ANNOTATED

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situations where a child is abused or misused for sexual

purposes without any monetary gain or profit. This was
significant because profit or monetary gain is essential in
prostitution. Thus, the lawmakers intended that in case all
the other elements of prostitution are present, but the
monetary gain or profit is missing, the sexually abused and
misused child would still be afforded the same protection of
the law as if he or she were in the same situation as a child
exploited in prostitution.
Accordingly, “coercion or influence,” on its own, does not
make the child subjected to “other sexual abuse.” The
“coercion or influence” must have been used to abuse or
misuse the child for sexual purposes, and again, this must
have been the circumstance of the child when the act
complained of — the lascivious conduct of the accused —
was performed against the child. The “coercion or
influence” should refer to the circumstance of the child and
not to the lascivious conduct complained of.
Moreover, if as the majority opinion states, “force or inti-
midation” is subsumed under “coercion or influence” and
being under the “coercion or influence” of an adult is
enough to deem a child already subjected to “other sexual
abuse,” how will Section 5(b) of RA 7610 be any different
from Article 336 of the RPC? It should be noted that
“force or intimidation” is also one of the elements of
acts of lasciviousness under Article 336 of the RPC.
To equate the two terms would result in disregarding the
different crimes and penalties under the two different
provisions of law. To appreciate the difference between
these provisions, “force or intimidation” under Article 336
of the RPC must be understood in relation to the act
complained of, that is, whether the lascivious conduct was
done with force or intimidation against the victim. In
contrast, “coercion or influence” as used in RA 7610 should
be read with reference to the circumstance of the child, that
is, whether “coercion or influence” was used to exploit the
child in prostitution or to subject the child to “other sexual
abuse.”
 
 
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It is clear that the lawmakers intended to afford more

protection to the sexually misused and abused children
rather than those children who were not. There simply
would have been no need to include the element that the
child is exploited in prostitution or subjected to “other
sexual abuse” if this were not the case. If the intention of
the law was merely to protect children against sexual
abuse, without regard to their circumstance of being
exploited in prostitution or subjected to other sexual abuse,
the provision could have simply omitted the reference to
prostitution or other sexual abuse so that all children
would be covered under this provision. However, the
lawmakers expressly included prostitution or being
subjected to “other sexual abuse” as one of the elements of
Section 5(b) of RA 7610 because of the greater need to
protect such children. And because of this greater need, a
higher penalty is imposed as well.
This is not to say, however, that the accused himself
must have exploited the child in prostitution or subjected
the child to “other sexual abuse.” The exploitation of the
child in prostitution or subjection of the child to “other
sexual abuse” may be committed by persons other than the
accused. I agree with the majority opinion that the offense
under Section 5(b) of RA 7610 can be committed even
though the abuse complained of occurred only once. The
sexual intercourse or lascivious conduct committed by the
accused may have been a singular instance and not a
habitual occurrence. Indeed, the first element merely
requires an act. Thus, one single act of the accused is
enough. However, that singular act must have been done
against a child who was already exploited in prostitution or
subjected to “other sexual abuse.” Again, the act of the
accused and the circumstance of the child are two separate
and distinct elements.
I also agree with the majority opinion that there need
not be a third person subjecting the child to “other sexual
abuse.” It could very well happen that the person who
exploited the child in prostitution is the same person
accused of performing
 
 
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260 SUPREME COURT REPORTS ANNOTATED

Quimvel vs. People

the lascivious conduct with the child. If the accused has

sexually misused the child on more than one occasion, then
that child becomes a child subjected to “other sexual
abuse.” Thus, the second element would be present — the
circumstance of the child would be that of being subjected
to “other sexual abuse” and each act of the accused will be
considered as the first element of lascivious conduct under
Section 5(b) of RA 7610.
In this case, however, it was not alleged or proven that
the child victim was exploited in prostitution or subjected
to “other sexual abuse.” As it is fundamental that every
element of the crime must be alleged in the complaint or
information against the accused, there is no basis to convict
Quimvel for violation of Section 5(b) of RA 7610. This Court
has held:

The issue on how the acts or omissions constituting the offense

should be made in order to meet the standard of sufficiency has
long been settled. It is fundamental that every element of which
the offense is composed must be alleged in the information. No
information for a crime will be sufficient if it does not
accurately and clearly allege the elements of the crime
charged. Section 6, Rule 110 of the Revised Rules of Court
requires, inter alia, that the information must state the acts or
omissions so complained of as constitutive of the offense.
Recently, this Court emphasized that the test in determining
whether the information validly charges an offense is whether the
material facts alleged in the complaint or information will
establish the essential elements of the offense charged as defined
in the law. In this examination, matters aliunde are not
considered. The law essentially requires this to enable the
accused suitably to prepare his defense, as he is presumed to have
no independent knowledge of the facts that constitute the
offense.6 (Boldfacing and underscoring supplied)

_______________

6  Dela Chica v. Sandiganbayan, 462 Phil. 712, 719; 417 SCRA 242, 246
(2003). Citations omitted.

 
 
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The second element of Section 5(b) of RA 7610 was not

clearly and accurately alleged against Quimvel, and there
was also no allegation of any material fact that would
establish the element that the child was exploited in
prostitution or subjected to “other sexual abuse.” The
Information reads:

AMENDED INFORMATION
The Undersigned Assistant City Prosecutor of Ligao City
hereby accuses EDUARDO QUIMVEL y BRAGA also known as
EDWARD/EDUARDO QUIMUEL y BRAGA of the crime of Acts
of Lasciviousness in relation to Section 5(b) of R.A. No. 7610,
committed as follows:
That on or about 8 o’clock in the evening of July 18, 2007 at
Palapas, Ligao City, Philippines, and within the jurisdiction of
this Honorable Court, the above named accused, with lewd and
unchaste design, through force and intimidation, did then and
there, willfully, unlawfully and feloniously, insert his hand inside
the panty of [AAA], a minor of 7 years old and mash her vagina,
against her will and consent, to her damage and prejudice.
ACTS CONTRARY TO LAW.

 
Clearly, there is no allegation in the Information
that the victim was exploited in prostitution or
subjected to other sexual abuse.
The element that the child was exploited in prostitution
or subjected to other sexual abuse increases the penalty
from prisión correccional to reclusion temporal in its
medium period if the victim is under 12 years old. This
element distinguishes whether the crime would be
punishable under RA 7610 or under the RPC. Thus, there
is a need to strictly construe this element. The Court has
been consistent in strictly interpreting elements in
criminal cases which would increase the penalty against
the accused. In People v. Orilla, the Court stated that
“when the law or rules specify certain circumstances that
can aggravate an offense or qualify an offense to
 
 

262

262 SUPREME COURT REPORTS ANNOTATED

Quimvel vs. People

warrant a greater penalty, the information must allege

such circumstances and the prosecution must prove
the same to justify the imposition of the increased
penalty.”7 In this case, however, the Information was
silent on whether the victim was exploited in prostitution
or was subjected to other sexual abuse, and it was also not
proven by the prosecution during the trial of the case.
However, the Information is sufficient to charge the
accused for acts of lasciviousness under Article 336 of the
RPC, in accordance with the variance doctrine under the
Rules of Court.8 While the circumstance of the child as a
child exploited in prostitution or subjected to “other sexual
abuse” was not alleged or proven, all the elements of
Article 336 of the RPC were clearly and accurately alleged
in the Information, and thereafter proven during the course
of the trial.
Accused Quimvel put his hand inside the undergarment
of the child while the latter was sleeping, and rubbed her
vagina which is an obvious act of lasciviousness or
lewdness. I note

_______________

7  467 Phil. 253; 422 SCRA 620 (2004), citing People v. Corral, 446 Phil.
652; 398 SCRA 494 (2003).
8  Section 4, in relation to Section 5, Rule 120 of the Rules of Criminal
Procedure, provides:
SEC. 4. Judgment in case of variance between allegation and proof.—
When there is a 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 the offense proved.
SEC. 5. When an offense includes or is included in another.—An offense
charged necessarily includes the offense proved when some of the
essential elements or ingredients of the former, as alleged in the
complaint or information, constitute the latter. And an offense charged is
necessarily included in the offense proved, when the essential ingredients
of the former constitute or form part of those constituting the latter.

 
 

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that the words “force and intimidation” were used in the

Information, which is the same wording as the element in
acts of lasciviousness under Article 336 of the RPC.
Moreover, the victim was only 7 years old when the
incident happened. The victim being a child under 12 years
old, all the elements of Article 336 of the RPC were
sufficiently alleged in the Information and subsequently
proven beyond reasonable doubt during the trial of the
case.
ACCORDINGLY, I vote to GRANT the petition and to
CONVICT Eduardo Quimvel y Braga for acts of
lasciviousness under Article 336 of the Revised Penal Code
and to impose on him the penalty of prisión correccional in
its medium period there being no aggravating or mitigating
circumstances.
 
SEPARATE CONCURRING OPINION
 
PERALTA, J.:
 
I agree with the ponencia in affirming the conviction of
petitioner Eduardo Quimvel y Braga for Acts of
Lasciviousness under Article 336 of the Revised Penal Code
(RPC), in relation to Section 5(b),1 Article III of Republic
Act (R.A.) No.

_______________

1  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:
xxxx
(b) Those who commit the act of sexual intercourse of 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,

 
 
264
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Quimvel vs. People

7610,2 and I have decided to expound more on the

applicable laws and imposable penalties for acts of
lasciviousness committed against minors, as reference for
future legislation and for guidance and information
purposes.
Eduardo Quimvel y Braga was charged with the crime of
acts of lasciviousness in an Information, which reads:

That on or about 8 o’clock in the evening of July 18, 2007 at

Palpas, Ligao City, Philippines, and within the jurisdiction of this
Honorable Court, the above named accused, with lewd and
unchaste design, through force and intimidation, did then and
there, willfully, unlawfully and feloniously, insert his hand inside
the panty of AAA, a minor of 7 years old and mash her vagina,
against her will and consent, to her damage and prejudice.
ACTS CONTRARY TO LAW.

 
The Regional Trial Court (RTC) of Ligao City, Albay,
Branch 11, found Quimvel guilty beyond reasonable doubt
of the crime of Acts of Lasciviousness in relation to Section
5(b), Article III of R.A. 7610.3 The dispositive portion of the
RTC decision reads:

WHEREFORE, in the light of the foregoing, judgment is

hereby rendered:

_______________

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.
xxx
2  AN ACT PROVIDING FOR STRONGER DETERRENCE AND SPECIAL PROTECTION
AGAINST CHILD ABUSE, EXPLOITATION AND DISCRIMINATION, AND FOR OTHER
PURPOSES.
3  Decision dated January 23, 2013; penned by Judge Amy Ana L. De
Villa-Rosero.

 
 
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Quimvel vs. People

1. Finding the accused, EDUARDO QUIMVEL y BRAGA

a.k.a. EDWARD/EDUARDO QUIMUEL y BRAGA, GUILTY
beyond reasonable doubt of the crime of Acts of Lasciviousness in
relation to Section 5(b), Article III of R.A. 7610 and hereby
sentenced him to suffer the penalty of imprisonment from
FOURTEEN (14) YEARS, EIGHT (8) MONTHS and ONE (1) day
of Reclusion Temporal in its medium period as minimum to
FIFTEEN (15) YEARS, SIX (6) MONTHS and NINETEEN (19)
DAYS of Reclusion Temporal in its medium period as maximum;
and
 2. ORDERING the accused, EDUARDO QUIMVEL y BRAGA
a.k.a. EDWARD/EDUARDO QUIMUEL y BRAGA shall be
credited with the period of his preventive detention pursuant to
Article 29 of the Revised Penal Code.
No costs.
SO ORDERED.

 
On appeal, the Court of Appeals (CA) affirmed the RTC
Decision with modification as to the damages, civil
indemnity and interest thereon,4 to wit:

WHEREFORE, the Decision dated 23 January 2013 of the

Regional Trial Court, Fifth Judicial Region, Ligao City, Branch
11, in Criminal Case No. 5530, is hereby MODIFIED in that the
accused appellant EDUARDO QUIMVEL y BRAGA also known as
EDUARDO/EDWARD QUIMVEL y BRAGA is ORDERED TO
PAY THE VICTIM, AAA moral damages, exemplary damages and
fine in the amount of P15,000.00 each as well as P20,000.00 as
civil indemnity. All damages shall earn interest at the rate of six
percent (6%) per annum from the date of finality of judgment.
SO ORDERED.

_______________

4  Decision dated May 29, 2014; penned by Associate Justice Japar B.

Dimaampao, with Associate Justices Elihu A. Ybañez and Carmelita S.
Manahan, concurring.

 
 
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266 SUPREME COURT REPORTS ANNOTATED

Quimvel vs. People

Hence, the present petition for review on certiorari

under Rule 45, raising the following issues:

I.
The CA erred in affirming the decisions of the trial court as the
prosecution was not able to prove that he is guilty of the crime
charged beyond reasonable doubt.
 
II.
Assuming without admitting that he is guilty hereof, he may be
convicted only of Acts of Lasciviousness under Art. 336 of the
Revised Penal Code (RPC) and not in relation to Section 5 of R.A.
7610.

 
I concur with the ponencia in affirming the CA’s decision
finding Quimvel guilty beyond reasonable doubt of the
crime of violation of Section 5(b), Article III of R.A. 7610.
Acts of lasciviousness under Article 336 of the RPC,
together with child prostitution and rape, is dealt with
under Section 5(b) of Article III of R.A. 7610 which reads:

ARTICLE III
Child Prostitution and Other Sexual Abuse
 
 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:

 
 
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(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 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.
(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; and
(c) Those who derive profit or advantage therefrom, whether as
manager or owner of the establishment where the prostitution
takes place, or of the sauna, disco, bar, resort, place of
entertainment or establishment serving as a cover or which
engages in prostitution in addition to the activity for which the
license has been issued to said establishment.5

 
In a charge for acts of lasciviousness under Article
336 of the RPC in relation to R.A. 7610, there is no need
to allege that the lascivious conduct was committed with a
“child exploited in prostitution or subject to other sexual
abuse.” Such

_______________

5  Emphasis added.

 
 
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268 SUPREME COURT REPORTS ANNOTATED
Quimvel vs. People

allegation is pertinent only when the charge is for child

prostitution or violation of the first clause of Section
5(b), Article III of R.A. 7610 against “those who commit
the act of sexual intercourse or lascivious conduct with a
child exploited in prostitution or subjected to other sexual
abuse,” i.e., the customer or patron.
Violation of the first clause of Section 5(b), Article III of
R.A. 7610 is separate and distinct from acts of
lasciviousness under Article 336 of the RPC. Aside from
being dissimilar in the sense that the former is an offense
under special law, while the latter is a felony under the
RPC, they also have different elements. On the one hand,
the elements of violation of the first clause of Section 5(b)
are: (1) accused commits the act of sexual intercourse or
lascivious conduct; (2) the act is performed with a child
exploited in prostitution or subjected to other sexual abuse;
and (3) the child, whether male or female, is below 18 years
of age. On the other hand, the elements of acts of
lasciviousness under Article 336 are: (1) that the offender
commits any act of lasciviousness or lewdness; (2) that it is
done under any of the following circumstances: (a) by using
force or intimidation; or (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 (3) that the
offended party is another person of either sex. Thus, the
allegation that the child be “exploited under prostitution or
subjected to other sexual abuse,” need not be alleged in the
information for acts of lasciviousness simply because it is
not one of the elements of such crime as defined by Article
336 of the RPC.
Moreover, while the first clause of Section 5(b), Article
III of R.A. 7610 is silent with respect to the age of the
victim, Section 3, Article I thereof defines “children” as
those 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.
Notably, two provisos succeed-
 
 
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ing the first clause of Section 5(b) explicitly state a

qualification that when the victims of lascivious
conduct is under 12 years of age, the perpetrator
shall be (1) prosecuted under Article 336 of the RPC,
and (2) the penalty shall be reclusion temporal in its
medium period. It is a basic rule in statutory
construction that the office of the proviso qualifies or
modifies only the phrase immediately preceding it or
restrains of limits the generality of the clause that it
immediately follows. A proviso is to be construed with
reference to the immediately preceding part of the
provisions, to which it is attached, and not to the statute
itself or the other sections thereof.6 Accordingly, this case
falls under the qualifying provisos of Section 5(b), Article
III of R.A. 7610 because the allegations in the information
make out a case for acts of lasciviousness, as defined under
Article 336 of the RPC, and the victim is under 12 years of
age:

That on or about 8 o’clock in the evening of July 18, 2007 at

Palpas, Ligao City, Philippines, and within the jurisdiction of this
Honorable Court, the above named accused, with lewd and
unchaste design, through force and intimidation, did then
and there, willfully, unlawfully and feloniously, insert his hand
inside the panty of AAA, a minor of 7 years old and mash her
vagina, against her will and consent, to her damage and
prejudice.
ACTS CONTRARY TO LAW.7

 
Quimvel should therefore prosecuted under Article 336
of the RPC, and the indeterminate sentence should be
computed based on the imposable penalty of reclusion
temporal in its medium period, pursuant to Section 5(b),
Article III of R.A. 7610.

_______________

6  Chinese Flour Importers Assn. v. Price Stabilization Board, 89 Phil.

439, 451 (1951); Arenas v. City of San Carlos (Pangasinan), 172 Phil. 306,
311; 82 SCRA 318, 323 (1978).
7  Emphasis added.

 
 
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270 SUPREME COURT REPORTS ANNOTATED

Quimvel vs. People

To be sure, Quimvel cannot be merely penalized with

prisión correccional for acts of lasciviousness under Article
336 of the RPC when the victim is a child because it is
contrary to the letter and intent of R.A. 7610 to provide for
stronger deterrence and special protection against child
abuse, exploitation and discrimination. This legislative
intent is expressed under Section 10, Article VI of R.A.
7610 which, among others, increased by one degree the
penalty for certain crimes when the victim is a child under
12 years of age, to wit:

Section 10. Other Acts of Neglect, Abuse, Cruelty or

Exploitation and Other Conditions Prejudicial to the Child’s
Development.—
x x x x
For purposes of this Act, the penalty for the commission of acts
punishable under Articles 248, 249, 262, paragraph 2, and 263,
paragraph 1 of Act No. 3815, as amended, for the crimes of
murder, homicide, other intentional mutilation, and serious
physical injuries, respectively, shall be reclusion perpetua when
the victim is under twelve (12) years of age. The penalty for the
commission of acts punishable under Articles 337, 339, 340
and 341 of Act No. 3815, as amended, the Revised Penal
Code, for the crimes of qualified seduction, acts of
lasciviousness with consent of the offended party,
corruption of minors, and white slave trade, respectively,
shall be one (1) degree higher than that imposed by law
when the victim is under twelve (12) years of age.8

 
To impose upon Quimvel an indeterminate sentence
computed from the penalty of prisión correccional under
Article 336 of the RPC would defeat the purpose of R.A.
7610 to provide for stronger deterrence and special
protection against child abuse, exploitation and
discrimination. First, the imposition of such penalty would
erase the substantial distinction

_______________

8  Emphasis added.

 
 
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between acts of lasciviousness under Article 336 and acts of

lasciviousness with consent of the offended party under
Article 339,9 which used to be punishable by arresto mayor,
and now by prisión correccional pursuant to Section 10,
Article VI of R.A. 7610. Second, it would inordinately put
on equal footing the acts of lasciviousness committed
against a child and the same crime committed against an
adult, because the imposable penalty for both would still be
prisión correccional, save for the aggravating circumstance
of minority that may be considered against the perpetrator.
Third, it would make acts of lasciviousness against a child
an offense a probationable offense, pursuant to the
Probation Law of 1976,10 as amended by R.A. 10707.11
Indeed, while the foregoing implica-

_______________

9  ARTICLE 339. Acts of Lasciviousness with the Consent of the

Offended Party.—The penalty of arresto mayor shall be imposed to punish
any other acts of lasciviousness committed by the same persons and the
same circumstances as those provided in Articles 337 and 338.
ARTICLE 337. Qualified Seduction.—The seduction of a virgin over
twelve years and under eighteen years of age, committed by any person in
public authority, priest, house-servant, domestic, guardian, teacher, or
any person who, in any capacity, shall be entrusted with the education or
custody of the woman seduced, shall be punished by prisión correccional in
its minimum and medium periods.
The penalty next higher in degree shall be imposed upon any person
who shall seduce his sister or descendant, whether or not she be a virgin
or over eighteen years of age.
Under the provisions of this Chapter, seduction is committed when the
offender has carnal knowledge of any of the persons and under the
circumstances described herein.
ARTICLE 338. Simple Seduction.—The seduction of a woman who is
single or a widow of good reputation, over twelve but under eighteen years
of age, committed by means of deceit, shall be punished by arresto mayor.
10  Presidential Decree No. 968.
11  AN ACT AMENDING PRESIDENTIAL DECREE NO. 968, OTHERWISE KNOWN AS

THE “PROBATION LAW OF 1976,” as amended. Approved on

 
 
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272 SUPREME COURT REPORTS ANNOTATED

Quimvel vs. People

tions are favorable to the accused, they are contrary to the

State policy and principles under R.A. 7610 and the
Constitution on the special protection to children.
Based on the legal definitions of “child abuse,” it is also
my view that there is no need to allege that the lascivious
conduct be committed “with a child exploited in other
prostitution” or with habituality, before a person may be
held liable for acts of lasciviousness under Article 336 of
the RPC, in relation to Section 5(b), Article III of R.A. 7610.
Section 3, Article I of R.A. 7610 states that “child
abuse” refers to the 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 by deeds or words 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 attention to an injured
child resulting in serious impairment of his growth and
development or in his permanent incapacity or death.

 
Section 5, Article III of R.A. 7610 deems to be “children
exploited in prostitution and other sexual abuse” those
children, whether male or female, who indulge in sexual
intercourse or lascivious conduct either (1) for money, profit
or any other consideration; or (2) due to coercion or
influence of any adult, syndicate or group.

November 26, 2015. Section 9 of the Decree, as amended, provides

that the benefits thereof shall not be extended to those “(a)
sentenced to serve a maximum term of imprisonment of more
than six (6) years.” Note: The duration of the penalty of prisión
correccional is 6 months and 1 day to 6 years.

 
 

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Corollarily, the Rules and Regulations on the Reporting

and Investigation of Child Abuse Cases define the terms
“child abuse,” “sexual abuse,” and “lascivious conduct” as
follows:

Section 2. Definition of Terms.—As used in these Rules,

unless the context requires otherwise —
x x x x
b) “Child abuse” refers to the infliction of physical or
psychological injury, cruelty to, or neglect, sexual abuse or
exploitation of a child;
x x x x
g) “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;
x x x x
h) “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, masturbation, lascivious exhibition of the genitals or
pubic area of a person. x x x12

 
From the foregoing definitions, it can be deduced that a
single lascivious conduct is enough to penalize Quimvel for
acts of lasciviousness under Article 336 of the RPC, in
relation to R.A. 7610. These definitions negate the
necessity to allege in the information a separate and
distinct act of sexual abuse apart from the lascivious act
complained of. R.A. 7610 does not merely cover a situation
wherein a child is being

_______________

12  Emphasis added.

 
 
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274 SUPREME COURT REPORTS ANNOTATED

Quimvel vs. People

abused for profit as in prostitution, but also one wherein a

child engages in any lascivious conduct through coercion or
intimidation, even if such sexual abuse occurred only once,
as in Quimvel’s case. Also, based on the definitions above,
prostitution — which involves an element of habituality —
is just one of the several other forms of sexual abuses.
Thus, neither habituality nor the fact that the child is
exploited in prostitution, is required to be alleged in the
information for acts of lasciviousness because Article 336 of
the RPC does not so provide.
In the same vein, the title of Article III of R.A. 7610
itself is clear that the subsequent provisions thereof
pertain not only on the subject of “child prostitution” but
also on “other sexual abuse.” Under Section 5 thereof, those
considered to be under child prostitution are “children,
whether male or female, who for money, profit, or any other
consideration” “indulge in sexual intercourse or lascivious
conduct” and those that do not fall under that category are
those children, who, “due to the coercion or influence of any
adult, syndicate or group” “indulge in sexual intercourse or
lascivious conduct.” This case falls under the second
scenario where no money, profit or any other consideration
was involved.
To construe “other sexual abuse” as referring to any
other sexual abuse other than the acts of lasciviousness
complained of is wrong. The law did not use such phrase in
order to cover other forms of sexual abuse that a child
might have previously experienced, other than being
exploited in prostitution for profit, or for any other
consideration. Instead, the law clearly distinguishes those
children who indulged in sexual intercourse or lascivious
conduct for money, profit, or any other consideration, from
those children who, without money, profit, or any other
consideration, had sexual intercourse or lascivious conduct
due to the coercion or influence of any adult, syndicate or
group. This is further bolstered by the use of the
disjunctive word “or” in separating the two contexts
contemplated in the law. Thus, it is erroneous to interpret
 
 
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that R.A. 7610 contemplates situations wherein a child,

who was already subjected to prostitution or other sexual
abuse, is again subjected to another abuse or lascivious
conduct. Note that in the definition of “child abuse,” the
phrase “whether habitual or not” is used to describe the
frequency upon which a maltreatment can be considered as
an abuse. Thus, a single act of abuse is enough for a
perpetrator to be considered as having violated the law. To
interpret it otherwise would lead to an absurdity and
ambiguity of the law.
In Olivarez v. Court of Appeals,13 the Court held that
a child is deemed subjected to other sexual abuse when the
child indulges in lascivious conduct under the coercion or
influence of any adult. The Court found that the 16-year-
old victim in that case was sexually abused because she
was coerced or intimidated by petitioner to indulge in a
lascivious conduct. According to the Court, it is
inconsequential that the sexual abuse occurred only
once because, as expressly provided in Section 3(b) of R.A.
7610, the abuse may be habitual or not. It also observed
that Article III of R.A. 7610 is captioned as “Child
Prostitution and Other Sexual Abuse” because Congress
really intended to cover a situation where the minor may
have been coerced or intimidated into lascivious conduct,
not necessarily for money or profit, hence, the law covers
not only child prostitution but also other forms of sexual
abuse. In support of its ruling in Olivarez, the Court cited
People v. Larin14 which was restated in Amployo v.
People,15 thus:
_______________

13  503 Phil. 421, 432; 465 SCRA 465, 475 (2005). Penned by Associate
Justice Consuelo Ynares-Santiago, with Associate Justices Leonardo A.
Quisumbing and Adolfo S. Azcuna, concurring; and Chief Justice Hilario
G. Davide, Jr. joining the dissent of Associate Justice Antonio T. Carpio.
14  357 Phil. 987, 998; 297 SCRA 309, 318-319 (1998).
15  496 Phil. 747, 758; 457 SCRA 282, 295-296 (2005).

 
 
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276 SUPREME COURT REPORTS ANNOTATED

Quimvel vs. People

A child is deemed exploited in prostitution or subjected to

other sexual abuse, when the child indulges in sexual
intercourse or lascivious conduct (a) for money, profit, or any
other consideration; or (b) under the coercion or influence of
any adult, syndicate or group. x x x.
It must be noted 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 lascivious conduct.16

 
Associate Justice Antonio T. Carpio dissented in
Olivarez where he pointed out that the second element of
acts of lasciviousness, Section 5, Article III of R.A. 7610
requires that the accused performs on the child a lascivious
conduct separate and different from the child’s exploitation
in prostitution or subject to other sexual abuse.
However, in Garingarao v. People,17 the Court, in a
Decision18 penned by Justice Carpio, affirmed the
conviction of petitioner for acts of lasciviousness in relation
to R.A. 7610 in an Information which reads:

That on or about the 29th day of October 2003, at Virgen

Milagrosa University Hospital, San Carlos City, Pangasinan, and
within the jurisdiction of this Honorable Court, the above named
accused, with lewd designs, did then and there, willfully,
unlawfully and feloniously touched the breast of AAA, 16 years of
age, touched her genitalia, and inserted his finger into her vagina,
to the damage and prejudice of said AAA who suffered
psychological and emotional disturbance, anxiety, sleeplessness
and humiliation.

_______________

16  Emphasis added.

17  669 Phil. 512, 516; 654 SCRA 243, 246-247 (2011).
18  Concurred in by Associate Justices Teresita J. Leonardo-De Castro,
Arturo D. Brion, Diosdado M. Peralta and Jose Portugal Perez.

 
 
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Quimvel vs. People
 Contrary to Article 336 of the Revised Penal Code in relation to
RA 7610.

 
Citing Olivarez, the Court held in Garingarao that
petitioner is liable for acts of lasciviousness in relation to
R.A. 7610 even if the crime occurred only once:

The Court has ruled that a child is deemed subject to

other sexual abuse when the child is the victim of
lascivious conduct under the coercion or influence of any
adult. In lascivious conduct under the coercion or influence
of any adult, there must be some form of compulsion
equivalent to intimidation which subdues the free exercise
of the offended party’s free will. In this case, Garingarao
coerced AAA into submitting to his lascivious acts by
pretending that he was examining her.
Garingarao insists that, assuming that the testimonies
of the prosecution witnesses were true, he should not be
convicted of violation of RA 7610 because the incident
happened only once. Garingarao alleges that the single
incident would not suffice to hold him liable under RA
7610.
Garingarao’s argument has no legal basis.
The Court has already ruled that it is
inconsequential that sexual abuse under RA 7610
occurred only once. Section 3(b) of RA 7610 provides
that the abuse may be habitual or not. Hence, the
fact that the offense occurred only once is enough to
hold Garingarao liable for acts of lasciviousness
under RA 7610.19

 
To be sure, if and when there is an absurdity in the
interpretation of the provisions of the law, the proper
recourse is to refer to the objectives or the declaration of
state policy and principles under Section 2 of the R.A. 7610,
as well as Section 3(2), Article XV of the 1987 Constitution:

_______________

19  Emphasis added.

 
 
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278 SUPREME COURT REPORTS ANNOTATED

Quimvel vs. People

[R.A. 7610] Sec. 2. Declaration of State Policy and Principles.

—It is hereby declared to be the policy of the State to provide
special protection to children from all forms of abuse,
neglect, cruelty, exploitation and discrimination, and
other conditions prejudicial to their development including
child labor and its worst forms; provide sanctions for their
commission and carry out a program for prevention and
deterrence of and crisis intervention in situations of child abuse,
exploitation and discrimination. The State shall intervene on
behalf of the child when the parent, guardian, teacher or person
having care or custody of the child fails or is unable to protect the
child against abuse, exploitation and discrimination or when such
acts against the child are committed by the said parent, guardian,
teacher or person having care and custody of the same.
It shall be the policy of the State to protect and rehabilitate
children gravely threatened or endangered by circumstances
which affect or will affect their survival and normal development
and over which they have no control.
The best interests of children shall be the paramount
consideration in all actions concerning them, whether undertaken
by public or private social welfare institutions, courts of law,
administrative authorities, and legislative bodies, consistent with
the principle of First Call for Children as enunciated in the
United Nations Convention on the Rights of the Child. Every
effort shall be exerted to promote the welfare of children and
enhance their opportunities for a useful and happy life.
[Emphasis added]
[Article XV 1987 Constitution] Section 3. The State shall
defend:
x x x
(2) The right of children to assistance, including proper care
and nutrition, and special protection from all forms of
neglect, abuse, cruelty, exploitation,

 
 
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Quimvel vs. People

and other conditions prejudicial to their development.20

 
Clearly, the objective of the law, more so the
Constitution, is to provide a special type of protection for
children from all types of abuse. Hence, it can be rightly
inferred that the title used in Article III, Section 5, “Child
Prostitution and Other Sexual Abuse” does not mean that
it is only applicable to children used as prostitutes as the
main offense and the other sexual abuses as additional
offenses, the absence of the former rendering inapplicable
the imposition of the penalty provided under R.A. 7610 on
the other sexual abuses committed by the offenders on the
children concerned.
Even if the remaining issue in the En Banc decision in
Dimakuta v. People21 was whether or not an accused is
disqualified to apply for probation even if such appeal
resulted in the reduction of the non-probationable penalty
imposed to a probationable one, the majority has
nonetheless discussed at length the matters of sexual
abuse under R.A. 7610 and acts of lasciviousness under the
RPC, thus:

Petitioner was charged and convicted by the trial court with

violation of Section 5(b), Article III of R.A. No. 7610 based on the
complaint of a sixteen (16)-year-old girl for allegedly molesting
her by touching her breast and vagina while she was sleeping.
x x x x
The elements of sexual abuse are as follows:
1. The accused commits the act of sexual intercourse or
lascivious conduct.
 2. The said act is performed with a child exploited in
prostitution or subjected to sexual abuse.

_______________

20  Emphasis added.

21  G.R. No. 206513, October 20, 2015, 773 SCRA 228.

 
 

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280 SUPREME COURT REPORTS ANNOTATED

Quimvel vs. People

3. The child, whether male or female, is below 18 years

of age.
Under Section 5, Article III of R.A. No. 7610, 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. This statutory provision must be
distinguished from Acts of Lasciviousness under Articles 336 and
339 of the RPC. As defined in Article 336 of the RPC, Acts of
Lasciviousness has the following elements:
(1) That the offender commits any act of lasciviousness or
lewdness;
(2) That it is done under any of the following
circumstances:
a. By using force or intimidation; or
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
(3) That the offended party is another person of either sex.
Article 339 of the RPC likewise punishes acts of lasciviousness
committed with the consent of the offended party if done by the
same persons and under the same circumstances mentioned in
Articles 337 and 338 of the RPC, to wit:
1. If committed against a virgin over twelve years and
under eighteen years of age by any person in public
authority, priest, home-servant, domestic, guardian,
teacher, or any person who, in any capacity, shall be
entrusted with the education or custody of the woman; or
2. If committed by means of deceit against a woman who is
single or a widow of good repu-

 
 
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tation, over twelve but under eighteen years of age.

Therefore, if the victim of the lascivious acts or conduct is over
12 years of age and under eighteen (18) years of age, the accused
shall be liable for:
1. Other acts of lasciviousness under Art. 339 of the
RPC, where the victim is a virgin and consents to the
 lascivious acts through abuse of confidence or when the
victim is single or a widow of good reputation and consents
to the lascivious acts through deceit; or
2. Acts of lasciviousness under Art. 336 if the act of
lasciviousness is not covered by lascivious conduct as
defined in R.A. No. 7610. In case the acts of lasciviousness
is covered by lascivious conduct under R.A. No. 7610 and it
is done through coercion or influence, which establishes
absence or lack of consent, then Art. 336 of the RPC is no
longer applicable;
3. Section 5(b), Article III of R.A. No. 7610, where
there was no consent on the part of the victim to the
lascivious conduct, which was done through the
employment of coercion or influence. The offender
may likewise be liable for sexual abuse under R.A.
No. 7610 if the victim is at least eighteen (18) years
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.
Article 226-A, paragraph 2 of the RPC, punishes inserting of
the penis into another person’s mouth or anal orifice, or any
instrument or object, into the genital or anal orifice of another
person if the victim did not consent either it was done through
force, threat or intimida-

 
 

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tion; or when the victim is deprived of reason or is otherwise

unconscious; or by means of fraudulent machination or grave
abuse of authority as sexual assault as a form of rape. However,
in instances where the lascivious conduct is covered by the
definition under R.A. No. 7610, where the penalty is reclusion
temporal medium, and the act is likewise covered by sexual
assault under Article 266-A, paragraph 2 of the RPC, which is
punishable by prisión mayor, the offender should be liable for
violation of Section 5(b), Article III of R.A. 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. No. 7610, unless the victim
is at least eighteen (18) years 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 for sexual abuse under RA. No. 7610.
There could be no other conclusion, a child is presumed by law
to be incapable of giving rational consent to any lascivious act,
taking into account the constitutionally enshrined State policy to
promote the physical, moral, spiritual, intellectual and social well-
being of the youth, as well as, in harmony with the foremost
consideration of the child’s best interests in all actions concerning
him or her. This is equally consistent with the declared policy
of the State to provide special protection to children from
all forms of abuse, neglect, cruelty, exploitation and
discrimination, and other conditions prejudicial to their
development; provide sanctions for their commission and carry
out a program for prevention and deterrence of and crisis
intervention in situations of child abuse, exploitation, and
discrimination. Besides, if it was the intention of the framers
of the law to make child offenders liable only of Article
266-A of the RPC, which provides for a lower penalty than
R.A. No. 7610, the law could have expressly made such
statements.

 
 

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As correctly found by the trial court, all the elements of sexual

abuse under Section 5(b), Article III of R.A. No. 7610 are present
in the case at bar.
First, petitioner’s lewd advances of touching the breasts and
vagina of his hapless victim constitute lascivious conduct as
defined in Section 32, Article XIII of the Implementing Rules and
Regulations (IRR) of R.A. No. 7610:
[T]he 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, masturbation, lascivious exhibition of the
genitals or pubic area of a person.
Second, petitioner clearly has moral ascendancy over the minor
victim not just because of his relative seniority but more
importantly due to the presumed presence of mutual trust and
confidence between them by virtue of an existing employment
relationship, AAA being a domestic helper in petitioner’s
household. Notably, a child is considered as sexually abused
under Section 5(b) of R.A. No. 7610 when he or she is subjected to
lascivious conduct under the coercion or influence of any adult.
Intimidation need not necessarily be irresistible. It is sufficient
that some compulsion equivalent to intimidation annuls or
subdues the free exercise of the will of the offended party. The law
does not require physical violence on the person of the victim;
moral coercion or ascendancy is sufficient. On this point, Caballo
v. People explicated:
As it is presently worded, Section 5, Article III of RA
7610 provides that when a child indulges in sexual
intercourse or any lascivious conduct due to the coercion or
influence of any adult, the child is deemed to be a “child
exploited in prostitution and other

 
 
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Quimvel vs. People
 sexual abuse.” In this manner, the law is able to act as an
effective deterrent to quell all forms of abuse, neglect,
cruelty, exploitation and discrimination against children,
prejudicial as they are to their development.
In this relation, case law further clarifies that sexual
intercourse or lascivious conduct under the coercion or
influence of any adult exists when there is some form of
compulsion equivalent to intimidation which subdues the
free exercise of the offended party’s free will. Corollary
thereto, Section 2(g) of the Rules on Child Abuse Cases
conveys that sexual abuse involves the element of influence
which manifests in a variety of forms. It is defined as:
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.
To note, the term “influence” means the “improper use
of power or trust in any way that deprives a person of
free will and substitutes another’s objective.”
Meanwhile, “coercion” is the “improper use of . . .
power to compel another to submit to the wishes of
one who wields it.”
Finally, the victim is 16 years of age at the time of the
commission of the offense. Under Section 3(a) of R.A. No.
7610, “children” refers to “persons below eighteen (18) years
of age or those over but unable to fully take care of
themselves or protect themselves from abuse, neglect,
cruelty, exploitation or

 
 
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discrimination because of a physical or mental disability or

condition.”22

 
In view of the above discussion in Dimakuta v.
People,23 to which the ponencia appears to subscribe, and
considering that all the elements of acts of lasciviousness
under Article 336 of the RPC, in relation to Section 5(b),
Article III of R.A. 7610,24 have been proven beyond
reasonable doubt, the CA correctly upheld the RTC in
convicting Quimvel of the said crime.
Moreover, the application of the provisions of R.A. 7610,
although not specifically stated in the Information, does
not violate the accused’s right to be informed of the nature
and cause of the accusation against him. This is because all
the elements of the crime of “sexual abuse”25 as
contemplated in Section 5, Article III of R.A. 7610, as well
as the age of minority of the victim, are all sufficiently
alleged in the same Information in this wise: “the above
named accused [Quimvel], with lewd and unchaste
design, through force and intimidation, did then and
there, willfully, unlawfully, and feloniously, insert his
hand inside the panty of [AAA], a minor of 7 years old
and mash her vagina, against her will and consent, to
her damage and prejudice.”26
It bears emphasis that since Section 5, Article III of R.A.
7610 already deems to be “children exploited in
prostitution and other sexual abuse” those children,
whether male or fe-

_______________

22  Id. Emphasis added and citations omitted.

23  Id.
24
1. The accused commits the act of sexual intercourse or lascivious
conduct.
2. The said act is performed with a child exploited in prostitution or
subjected to other sexual abuse.
3. That child, whether male or female, is below 18 years of age.
25  Id.
26  Emphasis added.

 
 

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male, who indulge in sexual intercourse or lascivious

conduct either (1) for money, profit or any other
consideration; or (2) due to coercion or influence of any
adult, syndicate or group, the aforequoted allegation that
the lascivious conduct was done “through force and
intimidation,” suffices to inform the accused of the second
element of sexual abuse.
Having in mind the State policies and principles behind
R.A. 7610 (Special Protection of Children Against Abuse,
Exploitation, and Discrimination Act) and R.A. 835327
(Anti-Rape Law of 1997), as well as the statutory
construction rules that penal laws should be strictly
construed against the state and liberally in favor of the
accused, and that every law should be construed in such a
way that it will harmonize with existing laws on the same
subject matter, I submit that the following are the
applicable laws and imposable penalties for acts of
lasciviousness committed against a child28 under Article
336 of the RPC, in relation to R.A. 7610:
1. Under 12 years old — Section 5(b), Article III of R.A.
7610, in relation to Article 336 of the RPC, as amended by
R.A. 8353, applies and the imposable penalty is reclusion
temporal in its medium period, instead of prisión
correccional. In People v. Fragante,29 Imbo v. People of the
Philippines,30 and People of the Philippines v. Santos,31 the
accused

_______________

27  AN ACT EXPANDING THE DEFINITION OF THE CRIME OF RAPE,

RECLASSIFYING THE SAME AS A CRIME AGAINST PERSONS, AMENDING FOR THE

PURPOSE ACT NO. 3815, AS AMENDED, OTHERWISE KNOWN AS THE REVISED

PENAL CODE, AND FOR OTHER PURPOSES.
 28  Section 3. Definition of Terms.—
(a) “Children” refers to a person below eighteen (18) years of age or those
over but are unable to fully take care of themselves or protect from
themselves from abuse, neglect, cruelty, exploitation or discrimination
because of a physical or mental disability or condition.
29  657 Phil. 577, 601; 642 SCRA 566, 590 (2011).
30  G.R. No. 197712, April 20, 2015, 756 SCRA 196, 210.
31  G.R. No. 205308, February 11, 2015, 750 SCRA 471, 488.

 
 
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were convicted of acts of lasciviousness committed against

victims under 12 years old, and were penalized under
Section 5(b), Article III of R.A. 7610, and not under Article
336 of the RPC, as amended.
2. 12 years old and below 18, or 18 or older under
special circumstances under Section 3(a) of R.A.
761032 — Section 5(b), Article III of R.A. 7610 in relation to
Article 336 of the RPC, as amended, applies and the
penalty is reclusion temporal in its medium period to
reclusion perpetua. This is because the proviso under
Section 5(b) apply only if the victim is under 12 years old,
but silent as to those 12 years old and below 18; hence, the
main clause thereof still applies in the absence of showing
that the legislature intended a wider scope to include those
belonging to the latter age bracket. The said penalty was
applied in People of the Philippines v. Bacus33 and People of
the Philippines v. Baraga34 where the accused were
convicted of acts of lasciviousness committed against
victims 12 years old and below 18, and were penalized
under Section 5(b), Article III of R.A. 7610. But, if the acts
of lasciviousness is not covered by lascivious conduct as
defined in R.A. 7610, such as when the victim is 18 years
old and above, acts of lasciviousness under Article 336 of
the RPC applies and the penalty is prisión correccional.35
Curiously, despite the clear intent of R.A. 7610 to
provide for stronger deterrence and special protection
against child abuse, the penalty [reclusion temporal
medium] when the

_______________

32  Section 3. Definition of Terms.—

(a) “Children” refers to a person below eighteen (18) years of age or
those over but are unable to fully take care of themselves or protect
from themselves from abuse, neglect, cruelty, exploitation or
discrimination because of a physical or mental disability or condition.
33  G.R. No. 208354, August 26, 2015, 768 SCRA 318, 338.
34  G.R. No. 208761, June 4, 2014, 725 SCRA 293, 302.
35  Dimakuta v. People, supra note 21.

 
 
288
288 SUPREME COURT REPORTS ANNOTATED
Quimvel vs. People

victim is under 12 years old is lower compared to the

penalty [reclusion temporal medium to reclusion
perpetua] when the victim is 12 years old and below 18.
The same holds true if the crime of acts of lasciviousness is
attended by an aggravating circumstance or committed by
persons under Section 31,36 Article XII of R.A. 7610, in
which case, the imposable penalty is reclusion perpetua. In
contrast, when no mitigating or aggravating circumstance
attended the crime of acts of lasciviousness, the penalty
therefor when committed against a child under 12 years old
is aptly higher than the penalty when the child is 12 years
old and below 18. This is because, applying the
Indeterminate Sentence Law, the minimum term in the
case of the younger victims shall be taken from reclusion
temporal minimum,37 whereas as the minimum term in the
case of the older victims shall be taken from prisión mayor
medium to reclusion temporal minimum.38 It is a basic rule
in statutory construction that what courts may correct to
reflect the real and apparent intention of the legislature
are only those which are clearly clerical errors or obvious
mistakes, omissions, and misprints,39 but not those due to
oversight, as shown by a review of extraneous
circumstances, where the law is clear, and to correct it
would be to change the meaning of the law.40 To my mind,
a corrective legislation is the proper remedy to address the
noted incon-

_______________

36  Section 31. Common Penal Provisions.—

xxxx
(b) The penalty provided herein shall be imposed in its   maximum
period when the perpetrator is an ascendant, parent, guardian,
stepparent or collateral relative within the second degree of
consanguinity or affinity, or a manager or owner of an establishment
which has no license to operate or its license has expired or has been
revoked. [Emphasis added]
37  Ranging from 12 years and 1 day to 14 years and 8 months.
38  Ranging from 8 years and 1 day to 14 years and 8 months.
39  Lamb v. Phipps, 22 Phil. 456 (1912).
40  People v. De Guzman, et al., 90 Phil. 132 (1951).

 
 

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gruent penalties for acts of lasciviousness committed

against a child.
Too, it bears emphasis that R.A. 8353 did not expressly
repeal Article 336 of the RPC, as amended. Section 4 of
R.A. 8353 only states that Article 336 of the RPC, as
amended, and all laws, rules and regulations inconsistent
with or contrary to the provisions thereof are deemed
amended, modified or repealed, accordingly. There is
nothing inconsistent between the provisions of Article 336
of the RPC, as amended, and R.A. 8353, except in sexual
assault as a form of rape. Hence, when the lascivious act is
not covered by R.A. 8353, then Article 336 of the RPC is
applicable, except when the lascivious conduct is covered by
R.A. 7610.
In fact, R.A. 8353 only modified Article 336 of the RPC,
as follows: (1) by carrying over to acts of lasciviousness the
additional circumstances41 applicable to rape, viz.: threat
and fraudulent machinations or grave abuse of authority;
(2) by retaining the circumstance that the offended party is
under 12 years old, and including dementia as another one,
in order for acts of lasciviousness to be considered as
statutory, wherein evidence of force or intimidation is
immaterial because the offended party who is under 12
years old or demented, is presumed incapable of giving
rational consent; and (3) by removing from the scope of acts
of lasciviousness and placing under the crime of rape by
sexual assault the specific lewd act of inserting the
offender’s penis into another person’s mouth or anal orifice,
or any instrument or object into the genital or anal orifice
of another person. In fine, Article 336 of the RPC, as
amended, is still a good law despite the enactment of R.A.
8353 for there is no irreconcilable inconsistency between
their provisions.
Meanwhile, the Court is also not unmindful of the fact
that the accused who commits acts of lasciviousness under
Article

_______________

41  Aside from use force or intimidation, or when the woman is

deprived of reason or otherwise unconscious.

 
 
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290 SUPREME COURT REPORTS ANNOTATED

Quimvel vs. People

336 of the RPC, in relation to Section 5(b), Article III of

R.A. 7610, suffers the more severe penalty of reclusion
temporal in its medium period, than the one who commits
Rape Through Sexual Assault, which is merely punishable
by prisión mayor. In People v. Chingh,42 the Court noted
that the said fact is undeniably unfair to the child victim,
and it was not the intention of the framers of R.A. 8353 to
have disallowed the applicability of R.A. 7610 to sexual
abuses committed to children. The Court held that despite
the passage of R.A. 8353, R.A. 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.”43
Finally, as the Court stressed in Dimakuta v. People,44
where the lascivious conduct is covered by the definition
under R.A. 7610 where the penalty is reclusion temporal
medium and the said act is likewise covered by sexual
assault under Article 266-A, paragraph 2 of the RPC, which
is punishable by prisión mayor, the offender should be
liable for violation of Section 5(b), Article III of R.A. 7610,
where the law provides the higher penalty of reclusion
temporal medium, if the offended party is a child. But if the
victim is at least eighteen (18) years of age, the offender
should be liable under Article 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 from
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. 7610. The reason for the
foregoing is that, aside from the affording special protection
and stronger deterrence against

_______________

42  661 Phil. 208, 224; 645 SCRA 573, 588 (2011).
43  Section 3(a), Article I of R.A. No. 7610.
44  Dimakuta v. People, supra note 21 at pp. 264-265.

 
 

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child abuse, R.A. 7610 is a special law which should clearly

prevail over R.A. 8353, which is a mere general law
amending the RPC.
 
CONCURRING OPINION
 
PERLAS-BERNABE, J.:
 
I concur.
Petitioner Eduardo Quimvel y Braga (Quimvel) should
be convicted under Section 5(b), Article III of Republic Act
No. (RA) 7610,1 otherwise known as the “Special Protection
of Children Against Abuse, Exploitation and
Discrimination Act,” in relation to Article 336 of the
Revised Penal Code. As now subscribed to by the ponencia,
the said provision covers a situation wherein a child
engages in any lascivious conduct through coercion or
intimidation, even if such sexual abuse occurred only once,
as in Quimvel’s case. To my mind, the law does not
contemplate a situation where the acts of lasciviousness
are committed on a child priorly exploited in prostitution or
subjected to other sexual abuse. This latter position
effectively requires allegation and proof of a first act of
abuse committed against the same child victim for a sex
offender to be convicted.
Section 5(b), Article III of RA 7610 reads:

ARTICLE III
Child Prostitution and Other Sexual Abuse
 
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

_______________

1  Entitled “AN ACT PROVIDING FOR STRONGER DETERRENCE AND SPECIAL

PROTECTION AGAINST CHILD ABUSE, EXPLOITATION AND DISCRIMINATION, AND FOR

OTHER PURPOSES,” approved on June 17, 1992.

 
 
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292 SUPREME COURT REPORTS ANNOTATED

Quimvel vs. People

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 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.
(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.
x x x x (Emphases supplied)

 
For the brief reasons that follow, I deem it enough that a
singular act of sexual abuse be committed against a minor
in order to qualify under the law’s protection:
First, the prevailing Congressional intent behind RA
7610 was to establish “[a] national program for protection
of chil-
 
 

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dren” which needs “not only the institutional protective

mechanisms, but also a mechanism for strong deterrence
against commission of abuse and exploitation.”2 In his
sponsorship speech for Senate Bill No. 1209, from which
RA 7610 originated, Senator Jose D. Lina, Jr. (Senator
Lina, Jr.) mentioned that the law was “intended to provide
stiffer penalties for abuse of children and to facilitate
prosecution of perpetrators of abuse. It is intended to
complement the provisions of the Revised Penal Code [at
that time] where the crimes committed are those which
lead children to prostitution and sexual abuse, trafficking
in children and use of the young in pornographic
activities.”3 Senator Lina, Jr. also presented cases of
reported abuse, none of which imply that the child victims
have been previously exploited. Instead, they are straight-
up cases of sexual abuse of minors.4 Hence, if RA 7610 was
directly meant to reinforce the legal framework against the
sexual abuse of minors, it would not make any sense to
first require a preliminary act of sexual abuse against a
child before a sex offender could be punished under the
same. Indeed, a person’s chastity — much more a child’s —
is undoubtedly sacred and once ravaged, is forever lost and
leaves a scar on his or her well-being. As such, our
lawmakers, in crafting a special legislation precisely to
deter child abuse, would not have thought of such
absurdity.
Second, it is difficult — if not, insensible — to
operationalize the application of RA 7610 under the theory
that the commission of a prior act of sexual abuse is
required before a lascivious conduct may be penalized
under Section 5(b) of the same law. For one, no operational
parameter was provided by law to determine the existence
of a prior sexual abuse so as to satisfy the preliminary
element of the aforementioned theory. It is unclear
whether a prior sexual abuse on the same child

_______________

2  See Deliberations on Senate Bill No. 1209 dated April 29, 1991,
Records of the Senate (Vol. IV) No. 111, p. 191.
3  Id., at pp. 191-192.
4  Id., at p. 192.

 
 

224

224 SUPREME COURT REPORTS ANNOTATED

Quimvel vs. People

victim should be pronounced in an official court

declaration, or whether a mere finding on that matter in
the same case would suffice. The Congressional
deliberations also express nothing on the necessity to
determine a prior sexual abuse to qualify the lascivious
conduct. If a prior sexual abuse was an integral element for
prosecution, then it stands to reason that the language of
the law or the deliberations should have addressed the
same.
And third, while the grammatical structure of Section
5(b) of RA 7610 may, if construed literally, be taken to
mean that the victim should be one who is first “exploited
in prostitution or subjected to other sexual abuse” as
previously intimated during the deliberations on this case,
this interpretation would surely depart from the law’s
purpose based on its policy considerations as
aforediscussed. On the other hand, it is my view that
Section 5(b) can be construed in another way, in order to
give full life and meaning to its avowed purpose, which is to
“provide stiffer penalties for abuse of children and to
facilitate prosecution of perpetrators of abuse.”
Particularly, it is observed that the phrase “a child
exploited in prostitution or subject to other sexual
abuse” in Section 5(b) has been priorly defined in the first
paragraph of the same provision as “[a child], 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[s] in sexual
intercourse or lascivious conduct.” Hence, just by
switching this phrase with its equivalent technical
definition in the first paragraph, Section 5(b) may then be
construed as follows: “Those who commit the act of
sexual intercourse or lascivious conduct against [a
child], whether male or female, x  x  x for money,
profit, or any other consideration or due to the
coercion or influence of any adult, syndicate or
group.”
To my mind, this reading equally passes grammatical
logic, and most importantly, renders Section 5(b) consistent
with the fundamental intent of the law. Besides, nowhere
from the
 
 

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entirety of the law’s other provisions nor the deliberations

on the same could one discern that the requirement of a
prior sexual affront on a child exists. Ultimately, despite
Section 5(b)’s ambiguous wording, it should be remembered
that in the final analysis:=

The legislative intent is not at all times accurately reflected in

the manner in which the resulting law is couched. Thus, applying
a verba legis or strictly literal interpretation of a statute may
render it meaningless and lead to inconvenience, an absurd
situation or injustice. To obviate this aberration, and bearing in
mind the principle that the intent or the spirit of the law is the
law itself, resort should be to the rule that the spirit of the law
controls its letter.5

 
ACCORDINGLY, I vote to DENY the petition. The
conviction of petitioner Eduardo Quimvel y Braga for the
crime of Acts of Lasciviousness in relation to Section 5(b),
Article III of Republic Act No. 7610 should be AFFIRMED
with MODIFICATION anent the proper penalty as held
in the ponencia.6
 
SEPARATE OPINION
 
LEONEN, J.:
 
I concur with the majority. The accused has been
properly charged and convicted for violation of Article III,
Section 5 of Republic Act No. 7610. I add however, that I
entertain serious doubts as to whether he could have been
convicted of violation of Article 336 of the Revised Penal
Code (Acts of Lasciviousness) due to a lacuna in Republic
Act No. 8353 or the Anti-Rape Law. That law properly
reclassified rape as a crime

_______________

5  League of Cities of the Philippines (LCP) v. Commission on Elections,

623 Phil. 531, 564-565; 608 SCRA 636, 663-664 (2009).
6  See ponencia, p. 252.

 
 

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against persons, thereby leaving Article 336 in a different

title without the provisions it used to refer to.
However, in view of the resolution of this case, this issue
need not be considered. It should however, be the subject of
a more serious deliberation in the proper case, where it
becomes salient and is fully argued by the parties.
ACCORDINGLY, I vote to AFFIRM petitioner’s
conviction.
 
DISSENTING OPINION
 
CAGUIOA, J.:
 
The People’s evidence show that: 7-year-old AAA lived
with her father and siblings in a house close to her
grandfather’s; accused Quimvel worked for AAA’s
grandfather as caretaker of ducks and lived in the
grandfather’s house; one evening, AAA was left alone with
her siblings when her father left the house to buy kerosene;
on that night, Quimvel brought a vegetable viand to AAA’s
house; whereupon, AAA asked Quimvel to stay with her
and her siblings because they were afraid; Quimvel
acceded; AAA fell asleep and awakened to Quimvel’s leg
over her body and his hand being inserted into her shorts,
then caressing her vagina; she removed Quimvel’s hand
from inside her shorts; Quimvel left just as AAA’s father
arrived.
Quimvel was indicted for the crime of acts of
lasciviousness in relation to Section 5(b) of Republic Act
No. 7610 (RA 7610).1 He was convicted by the Regional
Trial Court (RTC) and sentenced to fourteen (14) years,
eight (8) months and one (1) day of reclusion temporal in its
medium period as minimum to fifteen (15) years, six (6)
months and nineteen (19) days of reclusion temporal in its
medium period as maximum.2 The Court of Appeals (CA)
affirmed the conviction.3
_______________

1  Ponencia, p. 217.
2  Id., at pp. 219-220.

 
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On petition for review on certiorari before this Court,

Quimvel asserts that the prosecution failed to prove his
guilt beyond reasonable doubt, and that assuming that he
is guilty, he could only be convicted of acts of lasciviousness
under Article 336 of the Revised Penal Code (RPC) and not
in relation to Section 5(b) of RA 7610.4
The ponencia affirms his conviction for acts of
lasciviousness in relation to Section 5(b).
I dissent. The majority opinion’s interpretation of
Section 5(b) of RA 7610 effectively repeals Articles 226-A
and 336 with respect to offended parties who are under
twelve (12) years old. Moreover, its cavalier treatment of
the concepts of “force or intimidation” and “coercion or
influence” muddles the essential elements of what are
otherwise separate and distinct offenses punished under
Article 336 and Section 5(b).
 
The evidence establishes
that no money, profit or
other consideration and no
coercion or influence at-
tended AAA’s sexual abuse.
 
The definition of a child exploited in prostitution or
subjected to other sexual abuse is provided by Section 5 of
RA 7610, namely: as a child, who (a) for money, profit or
other consideration, or (b) due to coercion or influence by
an adult, group, or syndicate, indulges in sexual
intercourse or lascivious conduct.
There is no question that the sexual abuse of AAA was
not for money, profit or other consideration. There is also
no dispute that there was no coercion or influence exerted
on AAA by Quimvel or any other person for the simple
reason that the act of lasciviousness (i.e., caressing her
vagina) was done

_______________

3  With modification as to the amount of damages; Id., at p. 220.

4  Id., at p. 221.

 
 

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while she was asleep. On this score alone, it is easy to see
that AAA does not fall in the definition of a child exploited
in prostitution or subjected to other sexual abuse.
Accordingly, the evidence negates the application of Section
5(b).5
Thus, as far as Quimvel is concerned, he can only be
convicted of acts of lasciviousness under Article 336 in
relation to Article 266-A(d) of the RPC and meted the
penalty only of prisión correccional. Hence, in disposing of
this case, there really is no need to further discuss the
nuances of the proper application of Section 5(b) of RA
7610. Nevertheless, I submit this dissent on the different
issues that have been made a part of the majority decision.
 
RA 7610 was not intended
to cover all sexual abuses
against children.
 
At the outset, I join Justice Carpio’s observation that if
the intention of RA 7610 is to penalize all sexual abuses
against children under its provisions to the exclusion of the
RPC, it would have expressly stated so and would have
done away with the qualification that the child be
“exploited in prostitution or subjected to other sexual
abuse.”6 It did not.
When the statute speaks unequivocally, there is nothing
for the courts to do but to apply it. Section 5(b) is a
provision of specific and limited application, and must be
applied as worded — a separate and distinct offense from
the “common” or “ordinary” acts of lasciviousness under
Article 336 of the RPC.
Upon the premise that the language of Section 5(b) is
ambiguous and is susceptible to interpretation, I have
conscientiously studied the deliberations of RA 7610 to
ascertain the

_______________

5  See People v. Abello, 601 Phil. 373, 393; 582 SCRA 378, 395 (2009);
an extended discussion of Abello is found in pages 393-394.
6  J. Carpio’s Separate Opinion, p. 260.

 
 
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intent of the law with respect to how it would interplay

with the provisions of the RPC and other laws that
penalize the same or similar acts.
While the Senate, in its deliberations, would appear to
equivocate in the protection of children against all or
specific types of abuse, it cannot be escaped that the
overriding impetus for the passage of the law is based on a
certain recurring theme. Senator Rasul, one of RA 7610’s
sponsors, in her speech, stated:

Senator Rasul. x x x

x x x x
 But undoubtedly, the most disturbing, to say the least, is the
persistent report of children being sexually exploited and
molested for purely material gains. Children with ages ranging
from three to 18 years are used and abused. We hear and read
stories of rape, manhandling and sexual molestation in the hands
of cruel sexual perverts, local and foreigners alike. As of October
1990, records show that 50 cases of physical abuse were reported,
with the ratio of six females to four males. x x x
x x x x
x  x  x No less than the Supreme Court, in the recent case of
People v. Ritter, held that we lack criminal laws which will
adequately protect street children from exploitation by
pedophiles. x x x7

 
The case referred to by Senator Rasul, People v. Ritter,8
is a 1991 case which involved an Austrian national who
was charged with rape with homicide for having ultimately
caused the death of Rosario, a street child, by inserting a
foreign object into her vagina during the course of
performing sexual acts with her. Ritter was acquitted
based on reasonable doubt

_______________

7  Records of the Senate (Vol. III), No. 104, March 19, 1991, p. 1204;
emphasis and underscoring supplied.
8  272 Phil. 532; 194 SCRA 690 (1991).

 
 
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on account of, among others, the failure of the prosecution

to (1) establish the age of Rosario to be within the range of
statutory rape, and (2) show force or intimidation as an
essential element of rape in the face of the finding that
Rosario was a child prostitute who willingly engaged in
sexual acts with Ritter.
Constrained to acquit Ritter, the Court made the
following pronouncements:

It is with distressing reluctance that we have to seemingly set

back the efforts of Government to dramatize the death of Rosario
Baluyot as a means of galvanizing the nation to care for its street
children. It would have meant a lot to social workers and
prosecutors alike if one pedophile killer could be brought to justice
so that his example would arouse public concern, sufficient for the
formulation and implementation of meaningful remedies.
However, we cannot convict on anything less than proof beyond
reasonable doubt. The protections of the Bill of Rights and our
criminal justice system are as much, if not more so, for the
perverts and outcasts of society as they are for normal, decent,
and law-abiding people.
x x x x
And finally, the Court deplores the lack of criminal laws
which will adequately protect street children from
exploitation by pedophiles, pimps, and, perhaps, their own
parents or guardians who profit from the sale of young
bodies. The provisions on statutory rape and other related
offenses were never intended for the relatively recent influx of
pedophiles taking advantage of rampant poverty among the
forgotten segments of our society. Newspaper and magazine
articles, media exposes, college dissertations, and other studies
deal at length with this serious social problem but pedophiles like
the appellant will continue to enter the Philippines and foreign
publications catering to them will continue to advertise the
availability of Filipino street children unless the Government acts
and acts

 
 

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soon. We have to acquit the appellant because the Bill of Rights

commands us to do so. We, however, express the Court’s concern
about the problem of street children and the evils committed
against them. Something must be done about it.9

 
That the protection of street children from exploitation
is the thrust of RA 7610 is further confirmed by Senator
Lina’s elucidation on the application of Section 6 following
questions from Senator Enrile:

Senator Enrile. Pareho silang hubad na hubad at naliligo.

Walang ginagawa. Walang touching po, basta naliligo lamang.
Walang akapan, walang touching, naliligo lamang sila. Ano po
ang ibig sabihin noon? Hindi po ba puwedeng sabihin, kagaya ng
standard na ginamit natin, na UNDER CIRCUMSTANCES
WHICH WOULD LEAD A REASONABLE PERSON TO
BELIEVE THAT THE CHILD IS ABOUT TO BE SEXUALLY
EXPLOITED, OR ABUSED.
Senator Lina. Kung mayroon pong balangkas or amendment
to cover that situation, tatanggapin ng Representation na ito.
Baka ang sitwasyong iyon ay hindi na ma-cover nito sapagkat, at
the back of our minds, Mr. President, ang sitwasyong talagang
gusto nating ma-address ay maparusahan iyong tinatawag
na “pedoph[i]lia” or prey on our children. Hindi sila
makakasuhan sapagkat their activities are undertaken or are
committed in the privacy of homes, inns, hotels, motels and
similar establishments.10

 
And when he explained his vote, Senator Lina stated the
following:

_______________

9  Id., at pp. 563-564, 569-570; pp. 717, 723; emphasis and underscoring
supplied.
10  Records of the Senate (Vol. I), No. 7, August 1, 1991, pp. 264-265;
emphasis and underscoring supplied.

 
 
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With this legislation, child traffickers could be easily

prosecuted and penalized. Incestuous abuse and those where
victims are under twelve years of age are penalized gravely,
ranging from reclusion temporal to reclusion perpetua, in its
maximum period. It also imposes the penalty of reclusion
temporal in its medium period to reclusion perpetua,
equivalent to a 14-30-year prison term for those: (a) who promote
or facilitate child prostitution; (b) commit the act of sexual
intercourse or lascivious conduct with a child exploited in
prostitution; (c) derive profit or advantage whether as manager
or owner of an establishment where the prostitution takes place
or of the sauna, disco, bar, resort, place of entertainment or
establishment serving as a cover or which engages in a
prostitution in addition to the activity for which the license has
been issued to said establishment.11

 
The Senate deliberations on RA 7610 is replete with
similar disquisitions tending to show the intendment to
make the law applicable to cases involving child
exploitation through prostitution, sexual abuse, child
trafficking, pornography and other types of abuses; the
passage of the law was the Senate’s act of heeding the call
of the Supreme Court to afford protection to a special class
of children and not to cover any and all crimes against
children that are already covered by other penal laws such
as the RPC and the Child and Youth Welfare Code.
 
The structure of RA 7610
confirms the foregoing
intendment.
 
In this regard, even the structure of RA 7610
demonstrates its intended application.

_______________

11  Records of the Senate (Vol. II), No. 58, December 2, 1991, pp. 793-
794; emphasis and underscoring supplied.

 
 
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Article I lays the preliminaries including state policy

and defines the terms used in the statute. Article II
mandates the creation of a comprehensive program to
protect children from sexual abuse, exploitation, and
discrimination — and thereafter enumerated the headings
of subsequent articles that grouped prohibited acts
according to the classes of abuse that RA 7610 penalizes.
Article III penalizes child prostitution and other sexual
abuse; Article IV, child trafficking; Article V, obscene
publications and indecent shows; Article VI, other acts of
abuse; and Article VII for sanctions for establishments
wherein these prohibited acts are promoted, facilitated or
conducted. The remaining articles cover circumstances
which gravely threaten or endanger the survival and
normal development of children.
By both literal and purposive tests, I find nothing in the
language of the law or in the Senate deliberations that
necessarily leads to the conclusion that RA 7610 subsumes
all instances of sexual abuse against children.
 
The language of Section 5(b)
cannot be read in isolation and
should be read in the context of
the intendment of RA 7610.
 
Section 5(b) reads:

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:
x x x x

 
 

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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.
x x x12

 
Its essential elements are: (1) The accused commits the
act of sexual intercourse or lascivious conduct; (2) The said
act is performed with a child exploited in prostitution or
subjected to other sexual abuse; and (3) The child whether
male or female, is below 18 years of age.13
The unique circumstances of the children exploited in
prostitution or subjected to other sexual abuse for which
the provisions of RA 7610 are intended are highlighted in
this exchange:

The Presiding Officer [Senator Mercado]. Senator Pimentel.

Senator Pimentel. Just this question, Mr. President, if the
Gentleman will allow.
 Will this amendment14 also affect the Revised Penal Code
provisions on seduction?
Senator Lina. No, Mr. President. Article 336 of Act No. 3815
will remain unaffected by this amendment we are introducing
here. As a backgrounder, the difficulty in the prosecution
of so-called “pedophiles” can be traced to this problem of
having to catch

_______________

12  Underscoring supplied.

13  Supra note 5 at p. 392; p. 394.
14  N.B. On the provisions relating to attempt to commit child
prostitution.

 
 
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the malefactor committing the sexual act on the victim.

And those in the law enforcement agencies and in the prosecution
service of the Government have found it difficult to prosecute.
Because if an old person, especially a foreigner, is seen with a
child with whom he has no relation — blood or otherwise — and
they are just seen in a room and there is no way to enter the room
and to see them in flagrante delicto, then it will be very difficult
for the prosecution to charge or to hale to court these pedophiles.
So, we are introducing into this bill, Mr. President, an act that
is considered already an attempt to commit child prostitution.
This, in no way, affects the Revised Penal Code provision
on acts of lasciviousness or qualified seduction.15

 
As to the proviso of Section 5(b), some guidance may be
had as to its import during the period of committee
amendments:

Senator Lina. On page 3, between lines 12 and 13, insert the

following: PROVIDED, THAT WHEN THE VICTIM IS TWELVE
(12) YEARS OR LESS, THE PERPETRATORS SHALL BE
PROSECUTED UNDER ARTICLE 335, PARAGRAPH 3, AND
ARTICLE 336 OF REPUBLIC ACT 3815, AS AMENDED, THE
REVISED PENAL CODE, FOR RAPE OR LASCIVIOUS
CONDUCT AS THE CASE MAY BE.
The Presiding Officer [Senator Mercado]. Is there any
objection? [Silence] Hearing none, the amendment is approved.
x x x x
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 VIC-

_______________

15  Records of the Senate (Vol. IV), No. 116, May 9, 1991, pp. 334-335;
emphasis and underscoring supplied.

 
  
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TIM 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

_______________

16  Id., at pp. 333-334.

 
 
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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.”
 x x x x
Section 5 of RA 7610 penalizes those “who commit the act of
sexual intercourse or lascivious conduct with a child exploited in
prostitution or subjected to other sexual abuse.” The act of sexual
intercourse or lascivious conduct may be committed on a child
already exploited in prostitution, whether the child engages
in prostitution for profit or someone coerces her into prostitution
against her will. The element of profit or coercion refers to the
practice of prostitution, not to the sexual intercourse or lascivious
conduct committed by the accused. A person may commit acts of
lasciviousness even on a prostitute, as when a person mashes the
private parts of a prostitute against her will.
The sexual intercourse or act of lasciviousness may be
committed on a child already subjected to other sexual
abuse. The child may be subjected to such other sexual abuse for
profit or through coercion, as when the child is employed or
coerced into pornography. A complete stranger, through force or
intimidation, may commit acts of lasciviousness on such child in
violation of Section 5 of RA 7610.
The phrase “other sexual abuse” plainly means that the child
is already subjected to sexual abuse other than the crime for
which the accused is charged under Section 5 of RA 7610. The
“other sexual abuse” is an element separate and distinct from
the acts of lascivious-

_______________

17  503 Phil. 421; 465 SCRA 465 (2005).

 
 
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ness that the accused performs on the child. The majority opinion
admits this when it enumerates the second element of the crime
under Section 5 of RA 7610 — that the lascivious “act is
performed with a child x x x subjected to other sexual abuse.”18

 
In its bare essentials, the second element can be met by
allegation and proof of either circumstance;
a) the child is exploited in prostitution; OR
b) the child is subjected to other sexual abuse.
which should already be existing at the time of sexual
intercourse or lascivious conduct complained of.
Otherwise stated, in order to impose the higher penalty
provided in Section 5(b) as compared to Article 336, it must
be alleged and proved that the child — (1) for money,
profit, or any other consideration or (2) due to the coercion
or influence of any adult, syndicate or group — indulges in
sexual intercourse or lascivious conduct.
In People v. Fragante,19 the accused was convicted of
seven (7) counts of acts of lasciviousness and one (1) count
of rape committed against his own minor daughter. The
Court found that the elements of Section 5(b) were present.
Remarkably, the Court meticulously explained the
interplay of the elements of rape and acts of lasciviousness
and Section 5(b).
 It held that actual force or intimidation need not be
employed in incestuous rape of a minor because the moral
and physical dominion of the father is sufficient to cow the
victim into submission.20 The appreciation of how the
sexual intercourse and lascivious conduct in this case fell
within the ambit of Section 5(b) is cogently explained thus;
appellant, as a

_______________

18  Id., at pp. 445-447; pp. 487-490; italics omitted, emphasis supplied.
19  657 Phil. 577; 642 SCRA 566 (2011).
20  Id., at p. 592; pp. 579-580.

 
 

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father having moral ascendancy over his daughter, coerced

AAA to engage in lascivious conduct, which is within the
purview of sexual abuse.21
In People v. Abello,22 one of the reasons the accused was
convicted of rape by sexual assault and acts of
lasciviousness and penalized under the RPC and not under
Section 5(b) was because there was no showing of coercion
or influence required by the second element. The Court
ratiocinated:

In Olivarez v. Court of Appeals, we explained that the phrase,

“other sexual abuse” in the above provision covers not only a child
who is abused for profit, but also one who engages in lascivious
conduct through the coercion or intimidation by an adult. In
the latter case, there must be some form of compulsion equivalent
to intimidation which subdues the free exercise of the offended
party’s will.
In the present case, the prosecution failed to present any
evidence showing that force or coercion attended Abello’s
sexual abuse on AAA; the evidence reveals that she was
asleep at the time these crimes happened and only awoke when
she felt her breasts being fondled. Hence, she could have not
resisted Abello’s advances as she was unconscious at the time it
happened. In the same manner, there was also no evidence
showing that Abello compelled her, or cowed her into silence to
bear his sexual assault, after being roused from sleep. Neither is
there evidence that she had the time to manifest conscious lack of
consent or resistance to Abello’s assault.23

_______________

21  Id., at p. 597; p. 585.

22  Supra note 5.
23  Id., at p. 393; p. 395; additional emphasis and underscoring
supplied.

 
 

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Prior sexual affront is

not always required for
Section 5(b) to apply.
 
That is not to say that in every instance, prior sexual
affront upon the child must be shown to characterize the
child as one “subjected to other sexual abuse.” What is only
necessary is to show that the child is already a child
exploited in prostitution or subjected to other sexual abuse
at the time the sexual intercourse or lascivious conduct
complained of was committed or that circumstances obtain
prior or during the first instance of abuse that constitutes
such first instance of sexual intercourse or lascivious
conduct as having converted the child into a child
“exploited in prostitution or subjected to other sexual
abuse.”
I am, therefore, in full agreement with Justice Bernabe
that alleging and proving the second element do not
require a prior sexual affront;24 precisely, because a prior
sexual affront is not the only way to satisfy the second
element.
It is in this light that I had, during the deliberations of
this case, discussed the need to contextualize the operation
of Section 5(b) in reference to Section 5(a) and the other
parts of Section 5. I understand the structure of Section 5
as following the more common model or progression of child
prostitution or other forms of sexual exploitation:
A child is procured, induced, or threatened to become a
prostitute by any person, in violation of Section 5(a). In this
instance, the person who has sexual intercourse or
performs lascivious acts upon the child, even if this were
the very first act by the child, already makes the person
liable under Section 5(b), because the very fact that
someone had procured the child to be used for another
person’s sexual gratification in exchange for money, profit
or other consideration already qualifies the

_______________

24  J. Perlas-Bernabe’s Concurring Opinion, pp. 294-295.

 
 

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child as a child exploited in prostitution. In this instance,

no requirement of a prior sexual affront is required.
In cases where any person, under the circumstances of
Section 5(a), procures, induces, or threatens a child to
engage in any sexual activity with another person, even
without an allegation or showing that the impetus is
money, profit or other consideration, the first sexual affront
by the person to whom the child is offered already triggers
Section 5(b) because the circumstance of the child being
offered to another already qualifies the child as one
subjected to other sexual abuse. Similar to these situations,
the first sexual affront upon a child shown to be performing
in obscene publications and indecent shows, or under
circumstances falling under Section 6 is already a violation
of Section 5(b) because these circumstances are sufficient to
qualify the child as one subjected to other sexual abuse.
In certain cases, however, it appears that a first sexual
affront, on its own, cannot be considered a violation of
Section 5(b). For example, a person who has moral
ascendancy or influence over a child cannot be
automatically considered to have coerced or influenced the
child into indulging in sexual intercourse or lascivious
conduct with him on account only of his or her ascendancy
over the child, unless there are circumstances that would
allow the inference that the relationship between the
perpetrator and the victim amounts to coercion or influence
(e.g., as when a person who has ascendancy over a child is
later found with the child under the circumstances of
Section 6, any subsequent sexual activity squarely violates
Section 5[b], because the circumstances of Section 6 may be
the basis to infer that the accused conducted his
relationship with the child with the view of inducing him or
her to indulge in sexual intercourse or lascivious conduct,
thus furnishing the element of coercion or influence).
Otherwise, it appears that without the circumstances of
Section 5(a) or independent evidence of coercion or
influence, a single instance of sexual intercourse or
lascivious conduct may not be sufficient to meet
 
 

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the second element of Section 5(b). However, as with the

“discrepancy” in the penalties,25 this state of law should be
addressed by remedial legislation, and not adjusted by the
Court based on its own value judgment.
 
Larin does not support the
extension of Section 5(b) to all
cases of lascivious conduct
against a child.
 
People v. Larin26 has been used as jurisprudential
support for the proposition that Section 5(b) applies to all
instances of lascivious conduct against children because of
the phrase “other consideration.” Larin’s use of this
passage in the deliberations is oft-cited:

Senator Angara. I refer to line 9, ‘who for money or profit.’ I

would like to amend this, Mr. President, to cover a situation where
the minor may have been coerced or intimidated into this
lascivious conduct, not necessarily for money or profit, so that we
can cover those situations and not leave loophole in this section.
The proposal I have is something like this: WHO FOR
MONEY, PROFIT, OR ANY OTHER CONSIDERATION OR DUE
TO THE COERCION OR INFLUENCE OF ANY ADULT,
SYNDICATE OR GROUP INDULGE, et cetera.

_______________

25  The President Pro Tempore noted this discrepancy in penalties

during the deliberations, thus: “The penalty in the case of those who
commit acts of lasciviousness is that they are punished under the Penal
Code with merely prisión correccional. That seems to be rather odd,
because this is if the child, in the Penal Code, is less than 15, the penalty
is higher or heavier. That is reclusion temporal, whereas, if the child is
less than 12, it is only prisión correccional.” (Records of the Senate (Vol.
II), No. 52, August 21, 1991, p. 605)
26  357 Phil. 987; 297 SCRA 309 (1998).

 
 
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The President Pro Tempore. I see. That would mean also

changing the subtitle of Section 4. Will it no longer be child
prostitution?
Senator Angara. No, no. Not necessarily, Mr. President,
because we are still talking of the child who is being misused for
sexual purposes either for money or for consideration. What I am
trying to cover is the other consideration. Because, here, it is
limited only to the child being abused or misused for sexual
purposes, only for money or profit.
I am contending, Mr. President, that there may be situations
where the child may not have been used for profit or . . .
The President Pro Tempore. So, it is no longer prostitution.
Because the essence of prostitution is profit.
Senator Angara. Well, the Gentleman is right. Maybe the
heading ought to be expanded. But, still, the President will agree
that that is a form or manner of child abuse.
The President Pro Tempore. What does the Sponsor say? Will
the Gentleman kindly restate the amendment?
 
ANGARA AMENDMENT
 
Senator Angara. The new section will read something like this,
Mr. President: MINORS, WHETHER MALE OR FEMALE, WHO
FOR MONEY, PROFIT, OR ANY OTHER CONSIDERATION OR
INFLUENCE OF ANY ADULT, SYNDICATE OR GROUP
INDULGE IN SEXUAL INTERCOURSE, et cetera.
Senator Lina. It is accepted, Mr. President.
The President Pro Tempore. Is there any objection? [Silence]
Hearing none, the amendment is approved.
How about the title, ‘Child Prostitution,’ shall we change that
too?
Senator Angara. Yes, Mr. President, to cover the expanded
scope.

 
 

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The President Pro Tempore. Is that not what we would call

probable ‘child abuse’?
Senator Angara. Yes, Mr. President.
The President Pro Tempore. Subject to rewording. Is there any
objection? [Silence] Hearing none, the amendment is approved.
x x x27

 
While this amendment undoubtedly expanded the scope
of Section 5(b) to include non-monetary consideration, this
does not furnish support for the interpretation that all
cases of sexual intercourse or lascivious conduct against a
child should be prosecuted in relation to Section 5(b).
Worthy of note are the following statements of Senator
Angara who proposed the amendment:

The President Pro Tempore. I see. That would mean also

changing the subtitle of Section 4. Will it no longer be child
prostitution?
Senator Angara. No, no. Not necessarily. Mr. President,
because we are still talking of the child who is being
misused for sexual purposes either for money or for
consideration. What I am trying to cover is the other
consideration. Because, here, it is limited only to the child being
abused or misused for sexual purposes, only for money or profit.
I am contending, Mr. President, that there may be situations
where the child may not have been used for profit or . . .
The President Pro Tempore. So, it is no longer prostitution.
Because the essence of prostitution is profit.
Senator Angara. Well, the Gentleman is right. Maybe the
heading ought to be expanded. But, still, the President will agree
that that is a form or manner of child abuse.

_______________

27  Id., at pp. 998-999; pp. 319-320.

 
 

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The President Pro Tempore. What does the Sponsor say?

Will the Gentleman kindly restate the amendment?
ANGARA AMENDMENT
Senator Angara. The new section will read something like
this, Mr. President: MINORS, 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, et cetera.
Senator Lina. It is accepted, Mr. President.
The President Pro Tempore. Is there any objection?
[Silence] Hearing none, the amendment is approved.28

 
 That Larin’s crime is subsumed in Section 5(b) is not
doubted. However, the reliance on this passage in the
Senate deliberations cannot be used to extend the
application of Section 5(b) beyond what is expressly stated
by its provisions.
In Larin, the Court held that the elements of Section
5(b) are present. Larin, being an adult and the swimming
trainor of his 14-year-old victim, had the influence and
ascendancy to cow her into submission. Evidence was
introduced to show that Larin employed psychological
coercion upon his child victim by attacking her self-esteem
and then pretending to be attentive to her needs and
making himself out to be the only one who could accept her
inadequacies.
The independent proof given of psychological coercion,
prior to the first lascivious conduct against the child victim,
coupled with the fact that the lascivious conduct happened
on two separate occasions indubitably proved the second
element —

_______________

28  Records of the Senate (Vol. I), No. 7, August 1, 1991, p. 262;
emphasis and underscoring supplied.

 
 

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that the child victim was coerced or influenced by Larin to

engage in lascivious conduct at the first instance of
lascivious conduct, or, to be sure, on the second instance of
lascivious conduct (as the first was already sufficient to
convert the child victim into a child exploited in
prostitution or subjected to other sexual abuse).
Verily, this factual milieu sufficiently places Larin
within the ambit of Section 5(b) because of coercion and
influence and not because of “other consideration.” The
relationship and the manner of committing the lascivious
conduct in Larin distinguish it from the facts of Quimvel.
 
Understanding the last
proviso of Section 5(b).
 
It has been submitted that the interpretation of the final
proviso of Section 5(b) imposing reclusion temporal in its
medium period if the child is under twelve (12) years old
should be made to depend only on the proviso preceding
it.29 The practical effect of this submission is that whenever
the victim of lascivious conduct is any child under twelve
(12) years of age, the prosecution shall be under Article 336
of the RPC and the penalty automatically becomes
reclusion temporal.
I disagree. True, the office of the proviso is to qualify or
modify only the phrase immediately preceding it or
restrains or limits the generality of the clause that
immediately follows. As applied to Section 5(b), the
understanding of the last proviso should not lose sight of
the fact that what it qualifies is another proviso, which also
operates only within the meaning of the phrase preceding
the latter:

(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,

_______________

29  J. Peralta’s Separate Opinion.

 
 
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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[.]

 
Therefore, I submit that the proper understanding of
Section 5(b) with both provisos in operation would be: in
prosecutions for lascivious conduct under Article 336 when
the victim is (1) a child exploited in prostitution or
subjected to other sexual abuse, AND (2) under twelve (12)
years old, the penalty would be reclusion temporal in its
medium period.
In this context, it cannot be said that the penalty for all
prosecutions for lascivious conduct under Article 336 is
reclusion temporal in its medium period. As it should be,
prosecution for acts of lasciviousness that do not involve a
child exploited in prostitution or subjected to other sexual
abuse even if she were under twelve (12) years old, the
penalty should — as it should be meted on Quimvel — be
the penalty provided in the RPC, which is prisión
correccional.
Section 5(b), as worded and as intended, is a small
subset of the universe of lascivious conduct covered by
Article 336, thereby requiring allegation and proof of the
specific circumstances required for it to operate — which,
put simply, are composed of its essential elements.
 
RA 7610 did not
repeal Article 336.
 
In this light, I concur with the majority that Article 336
remains an operative provision, and the crime of acts of
lasciviousness under the RPC remains a distinct and
subsisting crime from RA 7610. While rape was relocated
to the title on crimes against persons, Article 336 can fairly
be read to refer to the provision that replaced Article 335
(Article 266) to save it from becoming nonoperational.
 
  
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The legislative intent to have the provisions of RA 7610

to operate side by side with the provisions of the RPC —
and a recognition that the latter remain effective — can be
gleaned from Section 10 of the law:

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 to 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 prisión mayor in its minimum period.

 
This is confirmed by Senator Lina in his sponsorship
speech of RA 7610, thus:

Senator Lina. x x x

x x x x
Senate Bill No. 1209, Mr. President, is intended to provide
stiffer penalties for abuse of children and to facilitate prosecution
of perpetrators of abuse. It is intended to complement
provisions of the Revised Penal Code where the crimes
committed are those which lead children to prostitution
and sexual abuse, trafficking in children and use of the
young in pornographic activities.
These are the three areas of concern which are specifically
included in the United Nations Convention o[n] the Rights of the
Child. As a signatory to this Convention, to which the Senate
concurred in 1990, our country is required to pass measures
which protect the child against these forms of abuse.
x x x x

 
 

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Mr. President, this bill on providing higher penalties for

abusers and exploiters, setting up legal presumptions to facilitate
prosecution of perpetrators of abuse, and complementing the
existing penal provisions of crimes which involve children
below 18 years of age is a part of a national program for
protection of children.
x x x x
Mr. President, subject to perfecting amendments, I am hopeful
that the Senate will approve this bill and thereby add to the
growing program for special protection of children and youth. We
need this measure to deter abuse. We need a law to prevent
exploitation. We need a framework for the effective and swift
administration of justice for the violation of the rights of
children.30

 
This same deference to the discreteness and subsistence
of the felonies in the RPC is apparent in this interpellation
with respect to seduction:

Senator Lina. This is qualified seduction. Simple seduction is

seduction of a woman who is single or a widow of good reputation
over 12, but under 18 years of age, committed by means of deceit.
Here the subject is a woman.
In our proposal, it will be both male and female. But that is not
the only difference, Mr. President. The situation that we would
like to cover that will lead to easier prosecution and to overcome
this present problem of government enforcement agencies in
booking or charging an alleged so called “pedophile” is that we
want the fact of being present, say, inside a hotel, sauna, or an
inn, between the presence of a person without any relationship
with a child under 18 years of age and there is no sexual contact.
It is not proved that there is sexual contact. There is no need for
proof of lewd design. The fact that

_______________

30  Records of the Senate (Vol. IV), No. 111, April 29, 1991,pp. 191-193;
emphasis and underscoring supplied.

 
 

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they are there will be considered an attempt to commit
child prostitution.
We are, in effect, advancing a new concept or theory, Mr.
President, to cover this gap in our present statutes, making
it easier or making it difficult for the prosecution to hale to
court this so-called “pedophile.” So, this is different from
consented abduction, qualified seduction or simple
deduction.31
 
Force or intimidation
does not equate to
coercion or influence
 
Since Section 5(b) penalizes a specific class of lascivious
conduct, I cannot concur with the ponencia when it states
that the element of coercion or influence under Section 5(b)
was met by the allegation in the Information of force and
intimidation — an element of Article 336.
“Common” or “ordinary” acts of lasciviousness under
Article 336 and lascivious conduct under Article 336 in
relation to Section 5(b) are separate offenses, with distinct
essential elements. To hold that the allegation and proof of
the existence of an element of one can take the place of
what has been jurisprudentially defined as an element of
another muddles the understanding of these two offenses,
and effectively constitutes judicial legislation as it results
in a partial repeal of Article 336 through a change of its
essential elements.
The essential elements of acts of lasciviousness under
Article 336 of the RPC are as follows:

1. That the offender commits any act of lasciviousness or

lewdness;

_______________

31  Records of the Senate (Vol. IV), No. 116, May 9, 1991, pp. 335-336;
emphasis and underscoring supplied.

 
 
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2. That the act of lasciviousness is committed against a person of

either sex;
3. That it is done under any of the following circumstances:
a. By using force or intimidation; or
b. When the offended party is deprived of reason or otherwise
unconscious; [or]
c. By means of fraudulent machination or grave abuse of
authority; or
d. When the offended party is under 12 years of age or is
demented. (Italics supplied)32

 
On the other hand, Section 5(b)’s essential elements are
as follows:

1. The accused commits the act of sexual intercourse or lascivious

conduct.
2. The said act is performed with a child exploited in prostitution
or subjected to other sexual abuse.
3. The child, whether male or female, is below 18 years of age.33

 
The muddling is made even more inopportune by the
fact that the people’s evidence shows neither force or
intimidation, nor coercion or influence employed by
Quimvel upon AAA. Quimvel took advantage of the fact
that AAA was asleep, committed lascivious conduct upon
her, and forthwith ceased when she awoke and removed his
hand from within her

_______________

32  Dissenting Opinion of J. Carpio in Olivarez v. Court of Appeals,

supra note 17 at pp. 442-443; p. 485.
33  People v. Fragante, supra note 19 at p. 596; p. 584, citing People v.
Abello, supra note 5 at p. 392; p. 394, further citing People v. Larin, supra
note 26 at p. 997; p. 318; Amployo v. People, 496 Phil. 747, 758; 457 SCRA
282, 295 (2005); Olivarez v. Court of Appeals, supra note 17 at pp. 431 and
444; pp. 473 and 487; and Malto v. People, 560 Phil. 119, 134; 533 SCRA
643, 656 (2007).
  
 

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shorts — her being asleep a circumstance properly

belonging to being unconscious.
However, even as the Information alleged the use of
force or intimidation, the evidence established only that
AAA was unconscious or asleep; meaning that Quimvel
could not be convicted of Section 5(b) but could be convicted
only of Article 336.
It has been argued that neither force or intimidation nor
coercion or influence need be shown if the offended party is
a child under twelve (12) years old. This proposition is
correct IF the prosecution is for Articles 266-A or 336, as
the age of the offended party is a circumstance that, on its
own, already satisfies the conditions of Articles 266-A and
336. However, I maintain that in a prosecution under
Section 5(b), coercion or influence (or otherwise, that the
child indulged in sexual intercourse or lascivious conduct
for money, profit or other consideration) is a textually-
provided circumstance that must be separately shown
apart from the age of the child victim.
 
Issues of operationalization
 
A challenge to this interpretation has been articulated
that the requirement of showing what Justice Carpio calls
as the “circumstances of the child” is difficult to
operationalize.34 I disagree. The circumstances of the child
can be proved in any manner allowed by the Rules of Court,
as by testimony of the child himself or herself, or any other
person who has personal knowledge of the child’s
circumstances. Ultimately, if difficulty is encountered in
operationalizing a provision — in terms of evidence
required — it is within the province of the Court to lay
down guidelines in appreciating a fact as an element of the
crime or as a qualifying circumstance, as it had done in
People v. Pruna35 as to the question of proving a victim’s
age.

_______________

34  J. Perlas-Bernabe’s Concurring Opinion.

35  People v. Pruna, 439 Phil. 440; 390 SCRA 577 (2002).

 
 
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In view of the foregoing discussion, Section 5(b), to my

mind, is, as earlier intimated, correctly understood to be a
subset of the universe of acts of lasciviousness covered by
 Article 336, thereby requiring allegation and proof of the
specific circumstances required for it to operate — which,
again, are simply composed of its essential elements.
The Court’s role is to punish the guilty with the penalty
provided by law for the offense proved by the People’s
evidence. While I share the sentiment that the highest
degree of protection must be afforded to children, I am
mindful of the fact that, as far as this protection is equated
to the proper penalty upon persons that offend against
children, the extent of this protection only goes as far as
the law can be reasonably and equitably interpreted to
allow.
It is in this light that I cannot join the majority in
imposing the higher penalty of reclusion temporal as
provided in RA 7610, despite the fact that I stand with the
rest of the members of the Court in absolute condemnation
of the abuse committed against the child victim.
 
Recapitulation
 
A dispassionate evaluation of the evidence shows that
what the prosecution only proved were the essential
elements of Article 336: that (1) Quimvel committed an act
of lasciviousness or lewdness by caressing AAA’s vagina;
(2) he committed the said act against AAA; and (3) the said
act was done while AAA, a 7-year-old, was asleep.
I vote to convict Quimvel only of acts of lasciviousness
and impose upon him the penalty of prisión correccional
under Article 336 of the RPC.

Petition denied, judgment affirmed with modification.

 
 

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Notes.—Article III, Section 5(b) of Republic Act (RA)

No. 7610 provides that “the penalty for lascivious conduct
when the victim is under twelve (12) years of age shall be
reclusion temporal in its medium period.” (People vs.
Pusing, 796 SCRA 279 [2016])
The purpose of alleging all the circumstances attending
a crime is for the accused to be able to adequately prepare
for his or her defense. (People vs. Feliciano, Jr., 799 SCRA
375 [2016])
 
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