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PERALTA, J.:

I concur with the ponencia in finding accused Noel Go Caoili alias "Boy Tagalog" guilty beyond reasonable doubt of sexual abuse under Section 5(b),^[1] Article III of Republic Act (R.A.) No. 7610, or the "Special Protection of Children Against Abuse, Exploitation and Discrimination Act," and not the crime of acts of lasciviousness under Article 336^[2] of the Revised Penal Code (RPC) in relation to Section 5(b) of R.A. No. 7610.

First. While there is a variance between the offense charged [rape by sexual intercourse] and those offenses proved [sexual abuse under Section 5(b), Article III of R.A. No. 7610 and rape by sexual assault], Caoili can be convicted of sexual abuse under R.A. No. 7610 because it was the offense proved during trial, and it is necessarily included in the crime of acts of lasciviousness under Article 336 of the RPC which, under settled jurisprudence, is necessarily included in rape. However, due to the material differences between the two modes of committing rape, settled jurisprudence holds that rape by sexual intercourse is not necessarily included in rape by sexual assault, vice-versa, and that an accused cannot be found guilty of rape by sexual assault even though it was proved, if the charge is rape by sexual intercourse.

Second. Exception must be taken as to the applicability to this case of People v. Nazareno^[3] where it was held that rape by sexual assault committed at the time when the Anti-Rape Law of 1997 (R.A. No. 8353) was already in effect, although proven, should not have been considered by the trial and appellate courts for lack of a proper allegation in the information, which only charged the accused with rape by sexual intercourse.

Third. Sexual abuse under Section 5(b), Article III of R.A. No. 7610 and acts of lasciviousness under Article 336 of the RPC are separate and distinct from each other, despite the fact that the essential elements or ingredients of both crimes barely have material or substantial differences.

Fourth. The penalty for sexual abuse under Section 5(b), Article III of R.A. No. 7610 varies if the age of the child victim is either below 12 years of age or between Twelve (12) to Seventeen (17) years of age, as well as Eighteen (18) and above but under special circumstances.^[4] Also, the crime of acts of lasciviousness under Article 336 of the RPC, in relation to Section 5(b) of R.A. No. 7610, can only be committed against a victim who is less than 12 years old or one who cannot give intelligent consent.

Fifth. In view of possible different opinions between and among the crimes of rape through carnal knowledge under Article 266, paragraph 1 of the RPC, rape by sexual assault under Article 266-A, paragraph 2, acts of lasciviousness under Article 336 of the RPC, and sexual abuse under Section 5(b), Article III of R.A. No. 7610, a copy of this Decision, including the Separate Opinions, should be furnished the President of the Republic of the Philippines, through the Department of Justice, as well as the President of the Senate and the Speaker of the House of Representatives, to enable them to review the said laws for possible amendments.

The antecedents are as follows:

On July 7, 2006, Caoili was indicted for rape by sexual intercourse committed against his fifteen (15)-year-old daughter, AAA. During trial, AAA testified that Caoili kissed her lips, touched and mashed her breasts, inserted the forefinger of his left hand into her vagina, then made a push-and-pull movement inside her for about thirty (30) minutes. The accusatory portion of the Information reads:

That, on or about the 23^rd day of October 2005, at 7:00 o'clock in the evening, more or less, in Purok [III], Barangay [JJJ], [KKK], [LLL], Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with full freedom and intelligence, with lewd design, did then and there, willfully, unlawfully and feloniously had sexual intercourse with one [AAA], a minor, fifteen (15) years of age and the daughter of herein accused, through force, threat and intimidation and against her will, to her damage and prejudice in the amount as may be allowed by law.

CONTRARY TO Article 266-A, in relation to Article 266-B of R.A. 8353, with the aggravating circumstance that the accused is the father of the victim and R.A. 7610.^[5]

After trial, the Regional Trial Court of Surigao City, Branch 30,^[6] found Caoili guilty of rape by sexual assault. On appeal, the Court of Appeals^[7] set aside the decision, and ordered the immediate remand of the case for further proceedings, pursuant to Section 14, Rule 110, in relation to Section 19, Rule 119 of the Rules of Court.

Before us, the ponencia opined that even if the elements of rape by sexual assault have been proven by the prosecution, Caoili could not be held guilty of the crime proved during trial. Citing People v. Pareja^[8] and People v. Abulon,^[9] the ponencia held that due to the material differences and substantial distinctions between the two modes of committing rape, rape by sexual intercourse is not necessarily included in rape by sexual assault, and vice-versa. Nonetheless, under the variance doctrine embodied under Sections 4 and 5, Rule 120 of the Rules of Court, sufficient evidence exists to convict Caoili of the crime of acts of lasciviousness under Article 336 of the RPC, in relation to Section 5(b), Article III of R.A. No. 7610. The ponencia sentenced Caoili to suffer reclusion perpetua, and to pay the victim a fine of P15,000.00, as well as civil indemnity, moral damages, and exemplary damages, in the amount of P75,000.00 each, plus interest rate of six percent (6%) per annum from finality of the judgment until fully paid.

I explain my concurrence with the ponencia.

To be sure, Caoili cannot be merely convicted of the lesser crime of acts of lasciviousness under Article 336 of the RPC in an information charging rape by sexual intercourse, because what were proved during trial are sexual abuse under Section 5(b), Article III of R.A. No. 7610 and rape by sexual assault under Article 266-A, paragraph 2 of the RPC. Conviction for such lesser crime is not only unfair to the victim who is no less than his minor daughter, but also violates the declaration of state policy and principles under Section 2 of R.A. No. 7610 and Section 3(2), Article XV of the 1987 Constitution, which provide for special protection to children from all forms of abuse, neglect, cruelty, exploitation and other conditions prejudicial to their development.

I fully agree with the doctrine in Abulon^[10] and Pareja^[11] to the effect that an accused cannot be found guilty of rape by sexual assault although it was proven, if the charge in the information is rape by carnal knowledge in view of the material differences^[12] between rape by sexual intercourse and rape by sexual assault, as well as the constitutional right to be informed of the nature and cause of the accusation against him. I also do not dispute the well-settled principles in the cases^[13] cited by the ponencia that a charge of acts of lasciviousness is necessarily included in a complaint for rape, and that an accused charged with rape by carnal knowledge or sexual intercourse, can still be convicted of the lesser crime of acts of lasciviousness, pursuant to the variance doctrine under Section 4, in relation to Section 5, Rule 120^[14] of the Rules of Court.

After a careful review of the relevant laws and jurisprudence, however, I find that Caoili should be convicted instead of sexual abuse under Section 5(b) of Article III of R.A. No. 7610, pursuant to the variance doctrine because it was the crime proved during trial, and it is necessarily included in acts of lasciviousness under Article 336 of the RPC which, under settled jurisprudence, is necessarily included in the crime of rape.

The 1987 Constitution mandates that in all criminal prosecutions, the accused shall enjoy the right to be informed of the nature and cause of the accusation against him.^[15] From this fundamental law stems the rule that an accused can only be convicted of a crime charged in the information, and proved beyond reasonable doubt during trial.^[16] To convict the accused of an offense other than that charged in the information would violate the Constitutional right to be informed of the nature and cause of the accusation, unless the crime is alleged or necessarily included in the information filed against him.^[17]

For the variance doctrine to apply, it is required that (1) there is a variance between an offense charged and that proved, and (2) the offense as charged is included in or necessarily includes the offense proved. Under the variance doctrine, the accused shall either be convicted (1) of the offense proved which is included in the offense charged, or (2) of the offense charged which is included in the offense proved.

While there is a variance between the offense charged [rape by sexual intercourse] and that proved [sexual abuse under R.A. No. 7610 and rape by sexual assault], Caoili should be convicted of sexual abuse under Section 5(b), Article III of R.A. No. 7610 because it was the offense proved during trial, and it is necessarily included in the crime of acts of lasciviousness under Article 336 of the RPC which, under settled jurisprudence, is necessarily included in rape.

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, whereas 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.^[18]

The elements of acts of lasciviousness under Article 336 of the RPC, on the one hand, are:

1. 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.

As correctly noted by the ponencia, lewdness is defined as an obscene, lustful, indecent, and lecherous act which signifies that form of immorality which has relation to moral impurity; or that which is carried in a wanton manner. Moreover, the presence or absence of lewd designs is inferred from the nature of the acts themselves and the environmental circumstances.

The elements of sexual abuse under Section 5(b), Article III of R.A. No. 7610, on the other hand, are:

1. The accused commits a sexual intercourse or lascivious conduct;
2. The said act was performed with a child exploited in prostitution or subjected to sexual abuse; and
3. The child, whether male or female, is below 18 years of age.

Promulgated in relation to Section 32 of R.A. No. 7610 are the Rules and Regulations (IRR) on the Reporting and Investigation of Child Abuse Cases which define the terms "sexual abuse" and "lascivious conduct":

Section 2. Definition of Terms. - As used in these Rules, unless the context requires otherwise -

xxxx

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;

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 x^[19]

A comparison of the essential elements or ingredients of sexual abuse under Section 5(b), Article III of R.A. No. 7610 and acts lasciviousness under Article 336 of the RPC barely reveals any material or substantial difference between them. The first element of sexual abuse under R.A. No. 7610, which includes lascivious conduct, lists the particular acts subsumed under the broad term "act of lasciviousness or lewdness" under Article 336. The second element of "coercion and influence" as appearing under R.A. No 7610 is likewise broad enough to cover ''force and intimidation'' as one of the circumstances under Article 336.^[20] Anent the third element, the offended party under R.A. No. 7610 and Article 336 may be of either sex, save for the fact that the victim in the former must be a child. I, therefore, posit that the sexual abuse under Section 5(b), Article III of R.A. No. 7610 is necessarily included in the crime of acts of lasciviousness under Article 336 of the RPC.

Applying the variance doctrine in this case where the crime charged is rape by sexual intercourse, Caoili can still be convicted of sexual abuse under Section 5(b), Article III of R.A No. 7610. This is because the same crime was proved during trial and is necessarily included in the crime of acts of lasciviousness under Article 336 of the RPC which, under settled jurisprudence, is necessarily included in a complaint for rape. For the same reason, the CA erred in applying Section 14,^[21] Rule 110, in relation to Section 19,^[22] Rule 119 of the Rules of Court, and ordering the remand of the case for further proceedings. Suffice it to stress that the provisions on substitution of information applies only when (1) there is a mistake in charging the proper offense, and (2) the accused cannot be convicted of the offense charged or any other offense necessarily included in the offense charged. The second requisite is absent in this case.

As held in Dimakuta v. People,^[23] if the victim of lascivious acts or conduct is over 12 years of age and under eighteen (18) years of age, the accused may be held liable for:

xxxx

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. x x x^[24]

Before an accused can be held criminally liable of lascivious conduct, which is included in sexual abuse under Section 5(b), Article III of R.A. No. 7610, the requisites of acts of lasciviousness under Article 336 of the RPC must be met in addition to the requisites of sexual abuse under the said Section 5(b), namely: (1) the accused commits the act of sexual intercourse or lascivious conduct; (2) the said act was performed with a child exploited in prostitution or subjected to sexual abuse; and (3) the child, whether male or female, is below 18 years of age.^[25] All these requisites are present in this case.

First. Caoili's lewd acts of kissing the victim's lips, mashing her breasts, inserting his finger into her vagina and making a push-and-pull movement inside her for thirty (30) minutes, constitute lascivious conduct as defined in the Rules and Regulations on the Reporting and Investigation of Child Abuse Cases:

Section 2. Definition of Terms. - As used in these Rules. unless the context requires otherwise—

xxxx

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 x^[26]

Second. Caoili clearly has moral ascendancy over the victim who is his minor daughter. It is settled that in cases where rape is committed by a relative, such as a father, stepfather, uncle, or common law spouse, moral influence or ascendancy takes the place of violence. It bears emphasis that a child is considered as sexually abused under Section 5(b), Article III of R.A. No. 7610 when he or she is subjected to lascivious conduct under the coercion or influence of any adult, and that moral ascendancy is equivalent to intimidation, which annuls or subdues the free exercise of the will by the offended party. Apropos is Caballo v. People:^[27]

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 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."

Third. The victim was admitted and proved to be 14 years old 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 discrimination because of a physical or mental disability or condition."

Accordingly, Caoili should be convicted of sexual abuse under Section 5(b), Article III of R.A. No. 7610, and not just acts of lasciviousness under Article 336 of the RPC, in relation to the same provision of R.A. No. 7610.

In Quimvel v. People,^[28] (Quimvel) the Court held that Section 5(b), Article III of R.A. No. 7610 punishes sexual intercourse or lascivious conduct committed on a child subjected to other sexual abuse, and 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. The Court noted that the very definition of "child abuse" under Section 3(b) of R.A. No. 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 Section 5(b) occurs even though the accused committed sexual abuse against the child victim only once, even without a prior sexual affront. Moreover, the Court pointed out that 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). As can be gleaned from Section 5, Article III of R.A. No. 7610, the offense can be committed against "any adult, syndicate or group," without qualification. 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.

It may not be amiss to state that the absence of the phrase "exploited in prostitution or subject to other sexual abuse" or even the specific mention of "coercion" or "influence" in the Information filed against Caoili, is not a bar to uphold the finding of guilt against an accused for violation of Section 5(b), Article III of R.A. No. 7610. As held in Quimvel:

x x x 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, Malto v. People, People v. Ching, People v. Bonaagua, and Caballo v. People to convict the accused therein for violation of Sec. 5, RA 7610 notwithstanding the non-mention in the information of "coercion", influence", or "exploited in prostitution or subject to other abuse."^[29]

In seeking his acquittal, Caoili cites People v. Nazareno^[30] and argues that he cannot be convicted of rape by sexual assault because even if it was proved during trial, the crime specifically alleged in the information is sexual intercourse, which is a separate and distinct crime. The accusatory portion of the said Information docketed as Criminal Case No. 2638 for violation of Article 266-A of the RPC, reads:

That from sometime in January 1990 up to December 1998 in Barangay Codon, Municipality of San Andres, Catanduanes, and within the jurisdiction of the Honorable Court, the said accused, being the father of the complainant, did then and there willfully, feloniously and criminally repeatedly had sexual intercourse with her daughter AAA, then five years old up to the time when she was 15 years old against her will.

CONTRARY TO LAW.

The Court ruled in Nazareno that considering that the Anti-Rape Law of 1997 (R.A. No. 8353) was already in force at the time of the insertion of appellant's finger in BBB's vagina on December 6, 1998, he should have been prosecuted and tried for rape by sexual assault and not under the traditional definition of rape. This is because under the Revised Rules of Criminal Procedure, the information must state the designation of the offense given by the statute and specify its qualifying and generic aggravating circumstances.^[31] Stated otherwise, the accused cannot be convicted for the offense proved during trial if it was not properly alleged in the information. The Court, thus, held that in Criminal Case No. 2638, appellant should have been convicted only of qualified rape of BBB in January 1992, while the rape by sexual assault committed on December 6, 1998, although proven, should not have been considered by the trial and appellate courts for lack of a proper allegation in the information.

Contrary to Caoili's argument, Nazareno is inapplicable to this case for the simple reason that there is no allegation in the afore-quoted information docketed as Criminal Case No. 2638, which even remotely refers to acts constituting a violation of R.A. No. 7610. Caoili was sufficiently apprised of the offense being charged against him, and afforded opportunity to prepare his defense, because the designation of the offense appears in the Information filed against him, to wit:

That, on or about the 23^rd day of October 2005m at 7:00 o'clock in the evening, more or less, in Purok [III], Barangay [JJJ], [KKK], [LLL], Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with full freedom and intelligence, with lewd design, did then and there, willfully, unlawfully and feloniously had sexual intercourse with one [AAA], a minor, fifteen (15) years of age and the daughter of herein accused, through force, threat and intimidation and against her will, to her damage and prejudice in the amount as may be allowed by law.

CONTRARY TO Article 266-A, in relation to Art. 266-B of R.A. 8353, with aggravating circumstance that the accused is the father of the victim and R.A. 7610.^[32]

In particular, Section 5, Article III of R.A. No. 7610 deals with sexual intercourse committed against a child exploited in prostitution and other sexual abuse:

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:

(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;^[33]

Significantly, while Nazareno is silent on the application of the variance doctrine, I have discussed that applying the same doctrine in this case where the crime charged is rape by sexual intercourse, Caoili can still be convicted of sexual abuse committed against a child under Section 5(b), Article III of R.A No. 7610. This is because the latter crime was proved during trial and is necessarily included in the crime of acts of lasciviousness under Article 336 of the RPC which, under settled jurisprudence, is necessarily included in a complaint for rape.

Since Caoili should be convicted of sexual abuse under R.A. No. 7610, the proper imposable penalty should be taken from reclusion temporal in its medium period to reclusion perpetua under Section 5(b), Article III thereof, and not prision correccional under Article 336 of the RPC, because the victim was alleged [15 years old] and proved [14 years old] to be a child.

It bears stressing that sexual abuse under Section 5(b), Article III of R.A. No. 7610 and acts of lasciviousness under Article 336 of the RPC are separate and distinct from each other. With due indulgence, may I refer to my Separate Concurring Opinion in Quimvel where I discussed the difference between the two crimes:

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. x x x

I likewise opined that the penalty for sexual abuse under Section 5(b), Article III of R.A. No. 7610 varies if the age of the child victim is either below 12 years of age or between 12 to 17 years of age, as well as 18 and above but under special circumstances:

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 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 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.^[34]

In light of my foregoing, I found it necessary to restate in my Separate Concurring Opinion in Quimvel the applicable laws and imposable penalties for acts of lasciviousness committed against a child under Article 336 of the RPC, in relation to R.A. No. 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 prision correccional. x x x

2. 12 years old and below 18, or 18 or older under special circumstances under Section 3(a) of R.A. 7610^[35] - 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. xxx^[36]

I further submit that the crime of acts of lasciviousness under Article 336 of the RPC, in relation to Section 5(b), Article III of R.A. No. 7610 can only be committed against a victim who is less than 12 years old or one who cannot give intelligent consent. This theory is supported by the provisions of Section 5(b), in relation to Article 335(3), on rape and Article 336 on acts of lasciviousness of the RPC, which deal with statutory rape and statutory acts of lasciviousness, thus:

Art. 336, RPC, Act No. 3815 (December 8, 1930)	R.A. 7610 (June 17, 1992)
Chapter Two	ARTICLE III
RAPE AND ACTS OF LASCIVIOUSNESS Art. 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. The crime of rape shall be punished by reclusion perpetua. xxx 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 in the preceding article, shall be punished by prision correccional.	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: xxx (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, 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

As can be gleaned from the foregoing provisions, if the victim of a lascivious conduct is from 12 to 17 years old, like in the case at bar, the crime should not be considered as "in relation to Article 336 of the RPC" because the circumstances of absence of consent of the victim, her being deprived of reason or consciousness, and the use of force or intimidation, should already be established in order to hold the accused liable. Thus, if the victim is from 12 years old to 17, or 18 years old, or over but under special circumstances,^[37] the crime is sexual abuse under Section 5(b), Article III of R.A. No. 7610, which carries the penalty of reclusion temporal medium to reclusion perpetua. Note that it is only when the victim is under 12 years old that the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape, and Article 336 of the RPC, for rape or lascivious conduct, as the case may be. Equally noteworthy is the fact that Article 335, paragraph 3 and Article 336 have been amended by R.A. No. 8353, thus:

Chapter Three
Rape

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;
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.
xxx

Section 4. Repealing Clause. - Article 336 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.^[38]

There being no mitigating circumstance to offset the alternative aggravating circumstance of (paternal) relationship^[39] as alleged in the Information and proved during trial, I therefore concur that Caoili should be sentenced to suffer the maximum period of the penalty, i.e., reclusion perpetua.^[40] I also agree with the ponencia that Caoili should also be ordered to pay the victim civil indemnity, moral damages and exemplary damages in the amount of P75,000.00 each, pursuant to People v. Jugueta,^[41] and a fine in the amount of P15,000.00, pursuant to Section 31(f),^[42] Article XII of R.A. No. 7610, with interest at the rate of six percent (6%) per annum from the date of finality of judgment until fully paid.

Needless to state, Caoili cannot be meted indeterminate sentence computed from the penalty of prision correccional under Article 336 of the RPC, as it would defeat the purpose of R.A. No. 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,^[43] which used to be punishable by arresto mayor, and now by prision 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 prision 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 a probationable offense, pursuant to the Probation Law of 1976,^[44] as amended by R.A. No. 10707.^[45] Indeed, while the foregoing implications are favorable to the accused, they are contrary to the State policy and principles under R.A. No. 7610 and the Constitution on the special protection to children.

As reference for future corrective legislation and for guidance and information purposes, I find it necessary to reiterate the applicable laws and imposable penalties for acts of lasciviousness committed against a child under Article 336 of the RPC, in relation to R.A. No. 7610, as stated in my Separate Concurring Opinion in Quimvel:

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 prision correccional. In People v. Fragante,^[46] Nonito Imbo y Gamores v. People of the Philippines,^[47] and People of the Philippines v. Oscar Santos y Encinas,^[48] the accused were convicted of acts of lasciviousness committed against victims under 12 years old, and were penalized under Section 5(b), Artcile 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. 7610^[49] - 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. Ricardo Bacus^[50] and People of the Philippines v. Rolando Baraga y Arcilla^[51] 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 prision correccional.

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 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,^[52] 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,^[53] whereas as the minimum term in the case of the older victims shall be taken from prision mayor medium to reclusion temporal minimum.^[54] 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,^[55] 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.^[56] To my mind, a corrective legislation is the proper remedy to address the noted incongruent 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 circumstances^[57] 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 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 prision mayor. In People v. Chingh y Parcia,^[58] 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."^[59]

Finally, as the Court stressed in Mustapha Dimakuta Maruhom v. People,^[60] 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 prision 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.

Let a copy of this Decision and the Separate Opinions be furnished the President of the Republic of the Philippines, through the Department of Justice, pursuant to Article 5^[61] of the RPC, the President of the Senate of the Philippines and the Speaker of the House of Representatives, as reference for possible amendments in light of the foregoing observations.

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^[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: xxx
(b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subject to other sexual abuse; Provided, That when the victims is under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and Article 336 of Act No. 3815, as amended, the Revised Penal Code, for rape or lascivious conduct, as the case may be: Provided, That the penalty for lascivious conduct when the victim is under twelve (12) years of age shall be reclusion temporal in its medium period; xxx

^[2] 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 in the preceding article, shall be punished by prision correccional.

^[3] 574 Phil. 175, 206 (2008).

^[4] R.A. No. 7610, Section. 3. Definition of Terms. -

(a) "Children" refers to a person below eighteen (18) years of age or those over but are unable to themselves or protect from themselves from abuse, neglect, cruelty, exploitation or discrimination beccause of a physical or mental disability or condition.

^[5] Records, p. 1.

^[6] Penned by Presiding Judge Floripinas C. Buyser.

^[7] Penned by Associate Justice Edgardo A. Camello, with Associate Justices Leoncia R. Dimagiba and Nina G. Antonio-Valenzuela, concurring.

^[8] 724 Phil. 759 (2014).

^[9] 557 Phil. 428 (2007).

^[10] Supra note 9.

^[11] Supra note 8.

^[12] The differences between the two modes of committing rape are the following:

(1) In the first mode, the offender is always a man, while in the second, the offended may be a man or a woman;
(2) In the first mode, the offended party is always a woman, while in the second, the offended party may be a man or a woman;
(3) In the first mode, rape is committed through penile penetration of the vagina, while the second is committed by inserting the penis into another person's mouth or anal orifice, or any instrument or object into the genital or anal orifice of another person; and
(4) The penalty for rape under the first mode is higher than that under the second.

^[13] People v. Poras, 626 Phil. 526 (2010); People v. Rellota, 640 Phil. 471 (2010); and People v. Garcia, 695 Phil. 576 (2012).

^[14] SEC. 4. Judgment in case of variance between allegation and proof.— When there is variance between the offense charge 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 ofthe 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.

^[15] Article III, Section 14 (2).

^[16] Parungao v. Sandiganbayan, et al., 274 Phil. 451, 459 (1991).

^[17] Patula v. People of the Philippines, 685 Phil. 376, 388 (2012).

^[18] Sec. 5, Rule 120, Rules of Court.

^[19] Emphasis added.

^[20] Quimvel v. People, G.R. No. 214497, April 18, 2017.

^[21] SEC. 14. Amendment or substitution. — A complaint or information may be amended, in form or in substance, without leave of court, at any time before the accused enters his plea. After the plea and during the trial, a formal amendment may only be made with leave of court and when it can be done without causing prejudice to the rights of the accused.
xxxx
If it appears at any time before judgment that a mistake has been made in charging the proper offense, the court shall dismiss the original complaint or information upon the filing of a new one charging the proper offense in accordance with section 19, Rule 119, provided the accused shall not be placed in double jeopardy. The court may require the witnesses to give bail for their appearance at the trial.

^[22] SEC. 19. When mistake has been made in charging the proper offense. - When it becomes manifest at any time before judgment that a mistake has been made in charging the proper offense and the accused cannot be convicted of the offense charged or any other offense necessarily included therein, the accused shall not be discharged if there appears good cause to detain him. In such case, the court shall commit the accused to answer for the proper offense and dismiss the original case upon the filing of the proper information.

^[23] G.R. No. 206513, October 20, 2015, 773 SCRA 228.

^[24] Dimakuta v. People, supra, at 264. (Emphasis added).

^[25] Quimvel v. People, supra note 20.

^[26] Emphasis added.

^[27] 710 Phil. 792, 805-806 (2013).

^[28] Supra note 20.

^[29] Citations omitted.

^[30] Supra note 3.

^[31] Rule 110, SEC. 8. Designation of the offense.—The complaint or information shall state the designation of the offense given by the statute, aver the acts or omissions constituting the offense, and specify its qualifying and aggravating circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it.

SEC. 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.

^[32] Emphasis added.

^[33] Id.

^[34] Id.

^[35] 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.

^[36] Quimvel v. People, supra note 20. (Emphasis added.)

^[37] R.A. No. 7610, 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.

^[38] Emphasis added on amended parts and underscoring added.

^[39] Article 15 of the Revised Penal Code:

Art. 15. Their concept. — Alternative circumstances are those which must be taken into consideration as aggravating or mitigating according to the nature and effects of the crime and the other conditions attending its commission. They are the relationship, intoxication and the degree of instruction and education of the offender.
The alternative circumstance of relationship shall be taken into consideration when the offended party in the spouse, ascendant, descendant, legitimate, natural, or adopted brother or sister, or relative by affinity in the same degrees of the offender.
x x x

^[40] See People v. Sumingwa, 618 Phil. 650 (2009).

^[41] G.R. No. 202124, April 5, 2016.

^[42] Section. 31. Common Penal Provisions. -
x x x x
(f) A fine to be imposed by the court shall be imposed and administered as a cash fund by the Department of Social Welfare and Development and disbursed for the rehabilitation of each child victim, or any Immediate member of his family if the latter Is the perpetrator of the offense.

^[43] 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 prision 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.

^[44] Presidential Decree No. 968.

^[45] An Act Amending Presidential Decree No. 968, otherwise known as the "Probation Law of 1976", as amended. Approved on 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 prision correccional is 6 months and 1 day to 6 years.

^[46] 657 Phil. 577, 601 (2011).

^[47] G.R. No. 197712, April 20, 2015, 756 SCRA 196.

^[48] 753 Phil. 637 (2015).

^[49] Section. 3. Definition of Terms.-

(b) "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.

^[50] G.R. No. 208354, August 26, 2015, 768 SCRA 318.

^[51] 735 Phil. 466 (2014).

^[52] Section 31. Common Penal Provisions. -
x x x x

(c) 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)

^[53] Ranging from 12 years and 1 day to 14 years and 8 months.

^[54] Ranging from 8 years 1 day to 14 years and 8 months.

^[55] Lamb v. Phipps, 22 Phil. 456 (1912).

^[56] People v. De Guzman, 90 Phil. 132 (1951).

^[57] Aside from use force or intimidation, or when the woman is deprived of reason or otherwise unconscious.

^[58] 661 Phil. 208, 224 (2011).

^[59] Section 3 (a), Article 1 of R.A. 7610

^[60] Supra note 23.

^[61] ARTICLE 5. Duty of the Court in Connection with Acts Which Should Be Repressed but Which are Not Covered by the Law, and in Cases of Excessive Penalties. — Whenever a court has knowledge of any act which it may deem proper to repress and which is not punishable by law, it shall render the proper decision, and shall report to the Chief Executive, through the Department of Justice, the reasons which induce the court to believe that said act should be made the subject of penal legislation.
In the same way, the court shall submit to the Chief Executive, through the Department of Justice, such statement as may be deemed proper, without suspending the execution of the sentence, when a strict enforcement of the provisions of this Code would result in the imposition of a clearly excessive penalty, taking into consideration the degree of malice and the injury caused by the offense.