This is an appeal from the Decision^[1] of the Court of Appeals (CA) dated August 17, 2015 in CA-G.R. CR-HC No. 06679, which affirmed the Joint Decision^[2] dated February 10, 2014 of the Regional Trial Court (RTC) of San Carlos City in Criminal Case Nos. SCC-6210 and SCC-6211, finding accused-appellant Salvador Tulagan (Tulagan) guilty beyond reasonable doubt of the crimes of sexual assault and statutory rape as defined and penalized under Article 266-A, paragraphs 2 and 1(d) of the Revised Penal Code (RPC), respectively, in relation to Article 266-B.

In Criminal Case No. SCC-6210, Tulagan was charged as follows:

That sometime in the month of September 2011, at x x x, and within the jurisdiction of this Honorable Court, the above-named accused, by means of force, intimidation and with abuse of superior strength forcibly laid complainant AAA,^[3] a 9-year-old minor in a cemented pavement, and did then and there, willfully, unlawfully and feloniously inserted his finger into the vagina of the said AAA, against her will and consent.

Contrary to Article 266-A, par. 2 of the Revised Penal Code in relation to R.A. 7610.

In Criminal Case No. SCC-6211, Tulagan was charged as follows:

That on or about October 8, 2011 at x x x, and within the jurisdiction of this Honorable Court, the above-named accused, by means of force, intimidation and with abuse of superior strength, did then and there, willfully, unlawfully and feloniously have sexual intercourse with complainant AAA, a 9-year-old minor against her will and consent to the damage and prejudice of said AAA, against her will and consent.

Contrary to Article 266-A, par. 1(d) of the Revised Penal Code in relation to R.A. 7610.

Upon arraignment, Tulagan pleaded not guilty to the crimes charged.

During the trial, BBB, aunt of the victim AAA, testified that around 10:30 a.m. of October 17, 2011, she noticed a man looking at AAA outside their house. When AAA asked her permission to go to the bathroom located outside their house, the man suddenly went near AAA. Out of suspicion, BBB walked to approach AAA. As BBB came close to AAA, the man left suddenly. After AAA returned from the bathroom, BBB asked what the man was doing to her. AAA did not reply. She then told AAA to get inside the house. She asked AAA to move her panties down, and examined her genitalia. She noticed that her genitalia was swollen. AAA then confessed to her about the wrong done to her by appellant whom AAA referred to as Badong or Salvador Tulagan. AAA cried hard and embraced BBB tightly. AAA asked BBB for her help and even told her that she wanted Badong to be put in jail.

AAA, nine (9) years old, testified that sometime in September 2011 while she was peeling corn with her cousin who lived adjacent to her grandmother's house, Tulagan approached her, spread her legs, and inserted his finger into her private part. She said that it was painful, but Tulagan just pretended as if he was just looking for something and went home.

AAA, likewise, testified that at around 11:00 a.m. of October 8, 2011, while she was playing with her cousin in front of Tulagan's house, he brought her to his house and told her to keep quiet. He told her to lie down on the floor, and removed her short pants and panties. He also undressed himself, kissed AAA's cheeks, and inserted his penis into her vagina. She claimed that it was painful and that she cried because Tulagan held her hands and pinned them with his. She did not tell anyone about the incident, until her aunt examined her private part.

Upon genital examination by Dr. Brenda Tumacder on AAA, she found a healed laceration at 6 o'clock position in AAA's hymen, and a dilated or enlarged vaginal opening. She said that it is not normal for a 9-year-old child to have a dilated vaginal opening and laceration in the hymen.

For the defense, Tulagan claimed that he did not know AAA well, but admitted that he lived barely five (5) meters away from AAA's grandmother's house where she lived. He added that the whole month of September 2011, from 8:00 a.m. to 1:00 p.m., he was gathering dried banana leaves to sell then take a rest after 1:00 p.m. at their terrace, while his mother cut the banana leaves he gathered at the back of their kitchen. He said that he never went to AAA's house and that he had not seen AAA during the entire month of September 2011. Tulagan, likewise, claimed that before the alleged incidents occurred, his mother had a misunderstanding with AAA's grandmother, who later on started spreading rumors that he raped her granddaughter.

After trial, the RTC found that the prosecution successfully discharged the burden of proof in two offenses of rape against AAA. It held that all the elements of sexual assault and statutory rape was duly established. The trial court relied on the credible and positive declaration of the victim as against the alibi and denial of Tulagan. The dispositive portion of the Decision reads:

WHEREFORE, premises considered, the Court finds the accused GUILTY beyond reasonable doubt [of] the crime of rape defined and penalized under Article 266-A, paragraph 1 (d), in relation to R.A. 7610 in Criminal Case No. SCC-6211 and is hereby sentenced to suffer the penalty of reclusion perpetua and to indemnify the victim in the amount of fifty thousand (Php50,000.00) pesos; moral damages in the amount of fifty thousand (Php 50,000.00) pesos, and to pay the cost of the suit. Likewise, this Court finds the accused GUILTY beyond reasonable doubt in Criminal Case No. SCC-6210 for the crime of rape defined and penalized under Article 266-A, paragraph 2 and he is hereby sentenced to suffer an indeterminate penalty of six (6) years of prision correccional, as minimum, to twelve (12) years of prision mayor, as maximum, and to indemnify the victim in the amount of thirty thousand (Php30,000.00) pesos; and moral damages in the amount of twenty thousand (Php20,000.00) pesos, and to pay the cost of suit.

SO ORDERED.^[4]

Upon appeal, the CA affirmed with modification Tulagan's conviction of sexual assault and statutory rape. The dispositive portion of the Decision reads:

ACCORDINGLY, the Decision dated February 10, 2014 is AFFIRMED, subject to the following MODIFICATIONS:

1. In Criminal Case No. SCC-6210 (Rape by Sexual Assault), appellant is sentenced to an indeterminate penalty of 12 years of reclusion temporal, as minimum, to 15 years of reclusion temporal, as maximum. The award of moral damages is increased to P30,000.00; and P30,000.00 as exemplary damages, are likewise granted.

2. In Criminal Case No. SCC-6211 (Statutory Rape), the awards of civil indemnity and moral damages are increased to P100,000.00 each. Exemplary damages in the amount of P100,000.00, too, are granted.

3. All damages awarded are subject to legal interest at the rate of 6% [per annum] from the date of finality of this judgment until fully paid.

SO ORDERED.^[5]

Aggrieved, Tulagan invoked the same arguments he raised before the CA in assailing his conviction. He alleged that the appellate court erred in giving weight and credence to the inconsistent testimony of AAA, and in sustaining his conviction despite the prosecution's failure to prove his guilt beyond reasonable doubt. To support his appeal, he argued that the testimony of AAA was fraught with inconsistencies and lapses which affected her credibility.

Our Ruling

The instant appeal has no merit. However, a modification of the nomenclature of the crime, the penalty imposed, and the damages awarded in Criminal Case No. SCC-6210 for sexual assault, and a reduction of the damages awarded in Criminal Case No. SCC-6211 for statutory rape, are in order.

Factual findings of the trial court carry great weight and respect due to the unique opportunity afforded them to observe the witnesses when placed on the stand. Consequently, appellate courts will not overturn the factual findings of the trial court in the absence of facts or circumstances of weight and substance that would affect the result of the case.^[6] Said rule finds an even more stringent application where the said findings are sustained by the CA, as in the instant case:

Time and again, we have held that when it comes to the issue of credibility of the victim or the prosecution witnesses, the findings of the trial courts carry great weight and respect and, generally, the appellate courts will not overturn the said findings unless the trial court overlooked, misunderstood or misapplied some facts or circumstances of weight and substance which will alter the assailed decision or affect the result of the case. This is so because trial courts are in the best position to ascertain and measure the sincerity and spontaneity of witnesses through their actual observation of the witnesses' manner of testifying, their demeanor and behavior in court. Trial judges enjoy the advantage of observing the witness' deportment and manner of testifying, her "furtive glance, blush of conscious shame, hesitation, flippant or sneering tone, calmness, sigh, or the scant or full realization of an oath" - all of which are useful aids for an accurate determination of a witness' honesty and sincerity. Trial judges, therefore, can better determine if such witnesses are telling the truth, being in the ideal position to weigh conflicting testimonies. Again, unless certain facts of substance and value were overlooked which, if considered, might affect the result of the case, its assessment must be respected, for it had the opportunity to observe the conduct and demeanor of the witnesses while testifying and detect if they were lying. The rule finds an even more stringent application where the said findings are sustained by the Court of Appeals.^[7]

Here, in Criminal Case No. SCC-6210 for sexual assault, both the RTC and the CA found AAA's testimony to be credible, straightforward and unwavering when she testified that Tulagan forcibly inserted his finger in her vagina. In Criminal Case No. SCC-6211 for statutory rape, both the RTC and the CA also found that the elements thereof were present, to wit: (1) accused had carnal knowledge of the victim, and (2) said act was accomplished when the offended party is under twelve (12) years of age. Indubitably, the courts a quo found that the prosecution was able to prove beyond reasonable doubt Tulagan's guilt for the crime of rape. We find no reason to deviate from said findings and conclusions of the courts a quo.

Jurisprudence tells us that a witness' testimony containing inconsistencies or discrepancies does not, by such fact alone, diminish the credibility of such testimony. In fact, the variance in minor details has the net effect of bolstering instead of diminishing the witness' credibility because they discount the possibility of a rehearsed testimony. Instead, what remains paramount is the witness' consistency in relating the principal elements of the crime and the positive and categorical identification of the accused as the perpetrator of the same.^[8]

As correctly held by the CA, the fact that some of the details testified to by AAA did not appear in her Sinumpaang Salaysay does not mean that the sexual assault did not happen. AAA was still able to narrate all the details of the sexual assault she suffered in Tulagan's hands. AAA's account of her ordeal being straightforward and candid and corroborated by the medical findings of the examining physician, as well as her positive identification of Tulagan as the perpetrator of the crime, are, thus, sufficient to support a conviction of rape.

As for Tulagan's imputation of ill motive on the part of AAA's grandmother, absent any concrete supporting evidence, said allegation will not convince us that the trial court's assessment of the credibility of the victim and her supporting witness was tainted with arbitrariness or blindness to a fact of consequence. We reiterate the principle that no young girl, such as AAA, would concoct a sordid tale, on her own or through the influence of her grandmother as per Tulagan's intimation, undergo an invasive medical examination then subject herself to the stigma and embarrassment of a public trial, if her motive was other than a fervent desire to seek justice. In People v. Garcia,^[9] we held:

Testimonies of child-victims are normally given full weight and credit, since when a girl, particularly if she is a minor, says that she has been raped, she says in effect all that is necessary to show that rape has in fact been committed. When the offended party is of tender age and immature, courts are inclined to give credit to her account of what transpired, considering not only her relative vulnerability but also the shame to which she would be exposed if the matter to which she testified is not true. Youth and immaturity are generally badges of truth and sincerity. A young girl's revelation that she had been raped, coupled with her voluntary submission to medical examination and willingness to undergo public trial where she could be compelled to give out the details of an assault on her dignity, cannot be so easily dismissed as mere concoction.^[10]

We also reject Tulagan's defense of denial. Being a negative defense, the defense of denial, if not substantiated by clear and convincing evidence, as in the instant case, deserves no weight in law and cannot be given greater evidentiary value than the testimony of credible witnesses, like AAA, who testified on affirmative matters. Since AAA testified in a categorical and consistent manner without any ill motive, her positive identification of Tulagan as the sexual offender must prevail over his defenses of denial and alibi.

Here, the courts a quo did not give credence to Tulagan's alibi considering that his house was only 50 meters away from AAA's house, thus, he failed to establish that it was physically impossible for him to be at the locus criminis when the rape incidents took place. "Physical impossibility" refers to distance and the facility of access between the crime scene and the location of the accused when the crime was committed. There must be a demonstration that they were so far away and could not have been physically present at the crime scene and its immediate vicinity when the crime was committed. In this regard, Tulagan failed to prove that there was physical impossibility for him to be at the crime scene when the rape was committed.^[11] Thus, his alibi must fail.

Further, although the rape incidents in the instant case were not immediately reported to the police, such delay does not affect the truthfulness of the charge in the absence of other circumstances that show the same to be mere concoction or impelled by some ill motive.^[12]

For the guidance of the Bench and the Bar, We take this opportunity to reconcile the provisions on Acts of Lasciviousness, Rape and Sexual Assault under the Revised Penal Code (RPC), as amended by Republic Act (R.A.) No. 8353 vis-a-vis Sexual Intercourse and Lascivious Conduct under Section 5(b) of R.A. No. 7610, to fortify the earlier decisions of the Court and doctrines laid down on similar issues, and to clarify the nomenclature and the imposable penalties of said crimes, and damages in line with existing jurisprudence.^[13]

Prior to the effectivity of R.A. No. 8353 or The Anti-Rape Law of 1997 on October 22, 1997, acts constituting sexual assault under paragraph 2,^[14] Article 266-A of the RPC, were punished as acts of lasciviousness under Article No. 336^[15] of the RPC or Act No. 3815 which took effect on December 8, 1930. For an accused to be convicted of acts of lasciviousness, the confluence of the following essential elements must be proven: (1) that the offender commits any act of lasciviousness or lewdness; and (2) that it is done under any of the following circumstances: (a) by using force or intimidation; (b) when the offended woman is deprived of reason or otherwise unconscious; or (c) when the offended party is under twelve (12) years of age.^[16] In Amployo v. People,^[17] We expounded on the broad definition of the term "lewd":

The term lewd is commonly defined as something indecent or obscene; it is characterized by or intended to excite crude sexual desire. That an accused is entertaining a lewd or unchaste design is necessarily a mental process the existence of which can be inferred by overt acts carrying out such intention, i.e., by conduct that can only be interpreted as lewd or lascivious. The presence or absence of lewd designs is inferred from the nature of the acts themselves and the environmental circumstances. What is or what is not lewd conduct, by its very nature, cannot be pigeonholed into a precise definition. As early as US. v. Gomez, we had already lamented that

It would be somewhat difficult to lay down any rule specifically establishing just what conduct makes one amenable to the provisions of article 439 of the Penal Code. What constitutes lewd or lascivious conduct must be determined from the circumstances of each case. It may be quite easy to determine in a particular case that certain acts are lewd and lascivious, and it may be extremely difficult in another case to say just where the line of demarcation lies between such conduct and the amorous advances of an ardent lover.^[18]

When R.A. No. 7610 or The Special Protection of Children Against Abuse, Exploitation and Discrimination Act took effect on June 17, 1992 and its Implementing Rules and Regulation was promulgated in October 1993, the term "lascivious conduct" was given a specific definition. The Rules and Regulations on the Reporting and Investigation of Child Abuse Cases states that "lascivious conduct means the intentional touching, either directly or through clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks, or the introduction of any object into the genitalia, anus or mouth, of any person, whether of the same or opposite sex, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person, bestiality, masturbation, lascivious exhibition of the genitals or pubic area of a person."

Upon the effectivity of R.A. No. 8353, specific forms of acts of lasciviousness were no longer punished under Article 336 of the RPC, but were transferred as a separate crime of "sexual assault" under paragraph 2, Article 266-A of the RPC. Committed by "inserting penis into another person's mouth or anal orifice, or any instrument or object, into the genital or anal orifice of another person" against the victim's will, "sexual assault" has also been called "gender-free rape" or "object rape." However, the term "rape by sexual assault" is a misnomer, as it goes against the traditional concept of rape, which is carnal knowledge of a woman without her consent or against her will. In contrast to sexual assault which is a broader term that includes acts that gratify sexual desire (such as cunnilingus, felatio, sodomy or even rape), the classic rape is particular and its commission involves only the reproductive organs of a woman and a man. Compared to sexual assault, rape is severely penalized because it may lead to unwanted procreation; or to paraphrase the words of the legislators, it will put an outsider into the woman who would bear a child, or to the family, if she is married.^[19] The dichotomy between rape and sexual assault can be gathered from the deliberation of the House of Representatives on the Bill entitled "An Act To Amend Article 335 of the Revised Penal Code, as amended, and Defining and Penalizing the Crime of Sexual Assault":

INTERPELLATION OF MR. [ERASMO B.] DAMASING:

x x x x

Pointing out his other concerns on the measure, specifically regarding the proposed amendment to the Revised Penal Code making rape gender-free, Mr. Damasing asked how carnal knowledge could be committed in case the sexual act involved persons of the same sex or involves unconventional sexual acts.

Mr. [Sergio A. F.] Apostol replied that the Bill is divided into two classifications: rape and sexual assault. The Committee, he explained, defines rape as carnal knowledge by a person with the opposite sex, while sexual assault is defined as gender-free, meaning it is immaterial whether the person committing the sexual act is a man or a woman or of the same sex as the victim.

Subsequently, Mr. Damasing adverted to Section 1 which seeks to amend Article 335 of the Revised Penal Code as amended by RA No. 7659, which is amended in the Bill as follows: "Rape is committed by having carnal knowledge of a person of the opposite sex under the following circumstances." He then inquired whether it is the Committee's intent to make rape gender-free, either by a man against a woman, by a woman against a man, by man against a man, or by a woman against a woman. He then pointed out that the Committee's proposed amendment is vague as presented in the Bill, unlike the Senate version which specifically defines in what instances the crime of rape can be committed by a man or by the opposite sex.

Mr. Apostol replied that under the Bill "carnal knowledge" presupposes that the offender is of the opposite sex as the victim. If they are of the same sex, as what Mr. Damasing has specifically illustrated, such act cannot be considered rape - it is sexual assault.

Mr. Damasing, at this point, explained that the Committee's definition of carnal knowledge should be specific since the phrase "be a person of the opposite sex" connotes that carnal knowledge can be committed by a person, who can be either a man or a woman and hence not necessarily of the opposite sex but may be of the same sex.

Mr. Apostol pointed out that the measure explicitly used the phrase “carnal knowledge of a person of the opposite sex" to define that the abuser and the victim are of the opposite sex; a man cannot commit rape against another man or a woman against another woman. He pointed out that the Senate version uses the phrase carnal knowledge with a woman".

While he acknowledged Mr. Apostol's points, Mr. Damasing reiterated that the specific provisions need to be clarified further to avoid confusion, since, earlier in the interpellation Mr. Apostol admitted that being gender-free, rape can be committed under four situations or by persons of the same sex. Whereupon, Mr. Damasing read the specific provisions of the Senate version of the measure.

In his rejoinder, Mr. Apostol reiterated his previous contention that the Bill has provided for specific and distinct definitions regarding rape and sexual assault to differentiate that rape cannot be totally gender-free as it must be committed by a person against someone of the opposite sex.

With regard to Mr. Damasing's query on criminal sexual acts involving persons of the same sex, Mr. Apostol replied that Section 2, Article 266(b) of the measure on sexual assault applies to this particular provision.

Mr. Damasing, at this point, inquired on the particular page where Section 2 is located.

SUSPENSION OF SESSION

x x x x

INTERPELLATION OF MR. DAMASING
(Continuation)

Upon resumption of session, Mr. Apostol further expounded on Sections 1 and 2 of the bill and differentiated rape from sexual assault. Mr. Apostol pointed out that the main difference between the aforementioned sections is that carnal knowledge or rape, under Section 1, is always with the opposite sex. Under Section 2, on sexual assault, he explained that such assault may be on the genitalia, the mouth, or the anus; it can be done by a man against a woman, a man against a man, a woman against a woman or a woman against a man.^[20]

Concededly, R.A. No. 8353 defined specific acts constituting acts of lasciviousness as a. distinct crime of "sexual assault," and increased the penalty thereof from prision correccional to prision mayor. But it was never the intention of the legislature to redefine the traditional concept of rape. The Congress merely upgraded the same from a "crime against chastity" (a private crime) to a "crime against persons" (a public crime) as a matter of policy and public interest in order to allow prosecution of such cases even without the complaint of the offended party, and to prevent extinguishment of criminal liability in such cases through express pardon by the offended party. Thus, other forms of acts of lasciviousness or lascivious conduct committed against a child, such as touching of other delicate parts other than the private organ or kissing a young girl with malice, are still punished as acts of lasciviousness under Article 336 of the RPC in relation to R.A. No. 7610 or lascivious conduct under Section 5 of R.A. No. 7610.

Records of committee and plenary deliberations of the House of Representative and of the deliberations of the Senate, as well as the records of bicameral conference committee meetings, further reveal no legislative intent for R.A. No. 8353 to supersede Section 5(b) of R.A. No. 7610. The only contentious provisions during the bicameral conference committee meetings to reconcile the bills of the Senate and House of Representatives which led to the enactment of R.A. No. 8353, deal with the nature of and distinction between rape by carnal knowledge and rape by sexual assault; the threshold age to be considered in statutory rape [whether Twelve (12) or Fourteen (14)], the provisions on marital rape and effect of pardon, and the presumptions of vitiation or lack of consent in rape cases. While R.A. No. 8353 contains a generic repealing and amendatory clause, the records of the deliberation of the legislature are silent with respect to sexual intercourse or lascivious conduct against children under R.A. No. 7610, particularly those who are 12 years old or below 18, or above 18 but are unable to fully take care or protect themselves from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability or condition.

In instances where the lascivious conduct committed against a child victim is covered by the definition under R.A. No. 7610, and the act is likewise covered by sexual assault under paragraph 2,^[21] Article 266-A of the RPC, the offender should be held liable for violation of Section 5(b), Article III of R.A. No. 7610. The ruling in Dimakuta v. People^[22] is instructive:

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 intimidation; 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 prision 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 R.A. No. 7610.^[23]

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.^[24]

Meanwhile, if acts of lasciviousness or lascivious conduct are committed with a child who is 12 years old or less than 18 years old, the ruling in Dimakuta^[25] is also on point:

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 reputation, 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 [are] 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.^[26]

In People v. Caoili,^[27] We prescribed the following guidelines in designating or charging the proper offense in case lascivious conduct is committed under Section 5(b) of R.A. No. 7610, and in determining the imposable penalty:

1. The age of the victim is taken into consideration in designating or charging the offense, and in determining the imposable penalty.

2. If the victim is under twelve (12) years of age, the nomenclature of the crime should be "Acts of Lasciviousness under Article 336 of the Revised Penal Code in relation to Section 5(b) of R.A. No. 7610." Pursuant to the second proviso in Section 5(b) of R.A. No. 7610, the imposable penalty is reclusion temporal in its medium period.

3. If the victim is exactly twelve (12) years of age, or more than twelve (12) but below eighteen (18) years of age, or is eighteen (18) years old or older but is unable to fully take care of herself/himself or protect herself/himself from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability or condition, the crime should be designated as "Lascivious Conduct under Section 5(b) of R.A. No. 7610," and the imposable penalty is reclusion temporal in its medium period to reclusion perpetua.^[28]

Based on the Caoili^[29] guidelines, it is only when the victim of the lascivious conduct is 18 years old and above that such crime would be designated as "Acts of Lasciviousness under Article 336 of the RPC" with the imposable penalty of prision correccional.

Considering the development of the crime of sexual assault from a mere "crime against chastity" in the form of acts of lasciviousness to a "crime against persons" akin to rape, as well as the rulings in Dimakuta and Caoili. We hold that if the acts constituting sexual assault are committed against a victim under 12 years of age or is demented, the nomenclature of the offense should now be "Sexual Assault under paragraph 2, Article 266-A of the RPC in relation to Section 5(b) of R.A. No. 7610" and no longer "Acts of Lasciviousness under Article 336 of the RPC in relation to Section 5(b) of R.A. No. 7610," because sexual assault as a form of acts of lasciviousness is no longer covered by Article 336 but by Article 266-A(2) of the RPC, as amended by R.A. No. 8353. Nevertheless, the imposable penalty is still reclusion temporal in its medium period, and not prision mayor.

Whereas if the victim is 12 years old and under 18 years old, or 18 years old and above under special circumstances, the nomenclature of the crime should be "Lascivious Conduct under Section 5(b) of R.A. No. 7610" with the imposable penalty of reclusion temporal in its medium period to reclusion perpetua,^[30] but it should not make any reference to the provisions of the RPC. It is only when the victim of the sexual assault is 18 years old and above, and not demented, that the crime should be called as "Sexual Assault under paragraph 2, Article 266-A of the RPC" with the imposable penalty of prision mayor.

Sexual intercourse with a victim who is under 12 years old or is demented is statutory rape

Under Section 5(b) of R.A. No. 7610, the proper penalty when sexual intercourse is committed with a victim who is under 12 years of age or is demented is reclusion perpetua, pursuant to paragraph 1(d),^[31]Article 266-A in relation to Article 266-B of the RPC, as amended by R.A. No. 8353,^[32] which in turn amended Article 335^[33] of the RPC. Thus:

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 [sic] 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.^[34]

In Quimvel v. People,^[35] it was opined^[36] that the two provisos under Section 5(b) of R.A. No. 7610 will apply only if the victim is under 12 years of age, but not to those 12 years old and below 18, for the following reason:

"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 victim 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.^[37] 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 x x x."^[38]

In view of the foregoing rule in statutory construction, it was proposed^[39] in Quimvel that the penalty for acts of lasciviousness committed against a child should depend on his/her age: if the victim is under 12 years of age, the penalty is reclusion temporal in its medium period, and if the victim is 12 years old and below 18, or 18 or older under special circumstances under Section 3(a)^[40] of R.A. No. 7610, the penalty is reclusion temporal in its medium period to reclusion perpetua.

Applying by analogy the foregoing discussion in Quimvel to the act of sexual intercourse with a child exploited in prostitution or subject to other sexual abuse, We rule that when the offended party is under 12 years of age or is demented, only the first proviso of Section 5(b), Article III of R.A. No. 7610 will apply, to wit: "when the victim is under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape x x x." The penalty for statutory rape under Article 335 is reclusion perpetua, which is. still the same as in the current rape law, i.e., paragraph 1(d), Article 266-A in relation to Article 266-B of the RPC, as amended by R.A. No. 8353, except in cases where the victim is below 7 years of age where the imposable penalty is death.^[41]

Note that the second proviso of Section 5(b) of R.A. No. 7610 will not apply because it clearly has nothing to do with sexual intercourse, and it only deals with "lascivious conduct when the victim is under 12 years of age." While the terms "lascivious conduct" and "sexual intercourse" are included in the definition of "sexual abuse" under Section 2(g)^[42] of the Rules and Regulations on the Reporting and Investigation of Child Abuse Cases, note that the definition of "lascivious conduct"^[43] does not include sexual intercourse. Be it stressed that the purpose of indicating the phrase "under twelve (12) years of age" is to provide for statutory lascivious conduct or statutory rape, whereby evidence of force, threat or intimidation is immaterial because the offended party, who is under 12 years old or is demented, is presumed incapable of giving rational consent.

Malto ruling clarified

An important distinction between violation of Section 5(b) of R.A. No. 7610 and rape under the RPC was explained in Malto v. People^[44] We ruled in Malto^[45] that one may be held liable for violation of Sec. 5(b), Article III of R.A. No. 7610 despite a finding that the person did not commit rape, because rape is a felony under the RPC, while sexual abuse against a child is punished by a special law. Said crimes are separate and distinct, and they have different elements. Unlike in rape, however, consent is immaterial in cases involving violation of Sec. 5, Art. III of R.A. No. 7610. The mere fact of having sexual intercourse or committing lascivious conduct with a child who is exploited in prostitution or subjected to sexual abuse constitutes the offense.

In Malto,^[46] where the accused professor indulged several times in sexual intercourse with the 17-year-old private complainant, We also stressed that since a child cannot give consent to a contract under our civil laws because she can easily be a victim of fraud as she is not capable of full understanding or knowing the nature or import of her actions, the harm which results from a child's bad decision in a sexual encounter may be infinitely more damaging to her than a bad business deal. Thus, the law should protect her from the harmful consequences of her attempts at adult sexual behavior. For this reason, a child should not be deemed to have validly consented to adult sexual activity and to surrender herself in the act of ultimate physical intimacy under a law which seeks to afford her special protection against abuse, exploitation and discrimination. In sum, a child is presumed by law to be incapable of giving rational consent to any lascivious conduct or sexual intercourse.

We take exception, however, to the sweeping conclusions in Malto (1) that "a child is presumed by law to be incapable of giving rational consent to any lascivious conduct or sexual intercourse" and (2) that "consent of the child is immaterial in criminal cases involving violation of Section 5, Article III of RA 7610" because they would virtually eradicate the concepts of statutory rape and statutory acts of lasciviousness, and trample upon the express provision of the said law.

Recall that in statutory rape, the only subject of inquiry is whether the woman is below 12 years old or is demented and whether carnal knowledge took place; whereas force, intimidation and physical evidence of injury are not relevant considerations. With respect to acts of lasciviousness, R.A. No. 8353 modified Article 336 of the RPC by retaining the circumstance that the offended party is under 12 years old in order for acts of lasciviousness to be considered as statutory and by adding the circumstance that the offended party is demented, thereby rendering the evidence of force or intimidation immaterial.^[47] This is because the law presumes that the victim who is under 12 years old or is demented does not and cannot have a will of her own on account of her tender years or dementia; thus, a child's or a demented person's consent is immaterial because of her presumed incapacity to discern good from evil.^[48]

However, considering the definition under Section 3(a) of R.A. No. 7610 of the term "children" which refers to 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, We find that the opinion in Malto, that a child is presumed by law to be incapable of giving rational consent, unduly extends the concept of statutory rape or acts of lasciviousness to those victims who are within the range of 12 to 17 years old, and even those 18 years old and above under special circumstances who are still considered as "children" under Section 3(a) of R.A. No. 7610. While Malto is correct that consent is immaterial in cases under R.A. No. 7610 where the offended party is below 12 years of age, We clarify that consent of the child is material and may even be a defense in criminal cases involving violation of Section 5, Article III of R.A. No. 7610 when the offended party is 12 years old or below 18, or above 18 under special circumstances. Such consent may be implied from the failure to prove that the said victim engaged in sexual intercourse either "due to money, profit or any other consideration or due to the coercion or influence of any adult, syndicate or group."

It bears emphasis that violation of the first clause of Section 5(b), Article III of R.A. No. 7610 on sexual intercourse with a child exploited in prostitution or subject to other sexual abuse, is separate and distinct from statutory rape under paragraph 1(d), Article 266-A 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.^[49] Nevertheless, sexual intercourse with a victim who is under 12 years of age or is demented is always statutory rape, as Section 5(b) of R.A. No. 7610 expressly states that the perpetrator will be prosecuted under Article 335, paragraph 3 of the RPC [now paragraph 1(d), Article 266-A of the RPC as amended by R.A. No. 8353].

Even if the girl who is below twelve (12) years old or is demented consents to the sexual intercourse, it is always a crime of statutory rape under the RPC, and the offender should no longer be held liable under R.A. No. 7610. For example, a nine (9)-year-old girl was sold by a pimp to a customer, the crime committed by the latter if he commits sexual intercourse with the girl is still statutory rape, because even if the girl consented or is demented, the law presumes that she is incapable of giving a rational consent. The same reason holds true with respect to acts of lasciviousness or lascivious conduct when the offended party is less than 12 years old or is demented. Even if such party consents to the lascivious conduct, the crime is always statutory acts of lasciviousness. The offender will be prosecuted under Article 336^[50] of the RPC, but the penalty is provided for under Section 5(b) of R.A. No. 7610. Therefore, there is no conflict between rape and acts of lasciviousness under the RPC, and sexual intercourse and lascivious conduct under R.A. No. 7610.

Meanwhile, if sexual intercourse is committed with a child under 12 years of age, who is deemed to be "exploited in prostitution and other sexual abuse," then those who engage in or promote, facilitate or induce child prostitution under Section 5(a)^[51] of R.A. No. 7610 shall be liable as principal by force or inducement under Article 17^[52] of the RPC in the crime of statutory rape under Article 266-A(1) of the RPC; whereas those who derive profit or advantage therefrom under Section 5(c)^[53] of R.A. No. 7610 shall be liable as principal by indispensable cooperation under Article 17 of the RPC. Bearing in mind the policy of R.A. No. 7610 of providing for stronger deterrence and special protection against child abuse and exploitation, the following shall be the nomenclature of the said statutory crimes and the imposable penalties for principals by force or inducement or by indispensable cooperation:

1. Acts of Lasciviousness under Article 336 of the RPC, in relation to Section 5(a) or (c), as the case may be, of R.A. No. 7610, with the imposable penalty of reclusion temporal in its medium period to reclusion perpetua;
   
   
2. Rape under Article 266-A(1) of the RPC, in relation to Article 17 of the RPC and Section 5(a) or (c), as the case may be, of R.A. No. 7610 with the imposable penalty of reclusion perpetua, pursuant to Article 266-B of the RPC, except when the victim is below 7 years old, in which case the crime is considered as Qualified Rape, for which the death penalty shall be imposed; and
   
   
3. Sexual Assault under Article 266-A(2) of the RPC, in relation to Section 5(a) or (c), as the case may be, of R.A. No. 7610 with the imposable penalty of reclusion temporal in its medium period to reclusion perpetua.

If the victim who is 12 years old or less than 18 and is deemed to be a child "exploited in prostitution and other sexual abuse" because she agreed to indulge in sexual intercourse "for money, profit or any other consideration or due to coercion or influence of any adult, syndicate or group," then the crime could not be rape under the RPC, because this no longer falls under the concept of statutory rape, and there was consent. That is why the offender will now be penalized under Section 5(b), R.A. No. 7610, and not under Article 335^[54] of the RPC [now Article 266-A]. But if the said victim does not give her consent to sexual intercourse in the sense that the sexual intercourse was committed through force, threat or intimidation, the crime is rape under paragraph 1, Article 266-A of the RPC. However, if the same victim gave her consent to the sexual intercourse, and no money, profit, consideration, coercion or influence is involved, then there is no crime committed, except in those cases where "force, threat or intimidation" as an element of rape is substituted by "moral ascendancy or moral authority,"^[55] like in the cases of incestuous rape, and unless it is punished under the RPC as qualified seduction under Article 337^[56] or simple seduction under Article 338.^[57]

Rulings in Tubillo, Abay and Pangilinan clarified

At this point, it is not amiss to state that the rulings in People v. Tubillo,^[58] People v. Abay^[59] and People v. Pangilinan^[60] should be clarified, because there is no need to examine whether the focus of the prosecution's evidence is "coercion and influence" or "force and intimidation" for the purpose of determining which between R.A. No. 7610 or the RPC should the accused be prosecuted under in cases of acts of lasciviousness or rape where the offended party is 12 years of age or below 18.

To recap, We explained in Abay^[61] that under Section 5 (b), Article III of R.A. No. 7610 in relation to R.A. No. 8353, if the victim of sexual abuse is below 12 years of age, the offender should not be prosecuted for sexual abuse but for statutory rape under paragraph 1(d), Article 266-A of the RPC, and penalized with reclusion perpetua. On the other hand, if the victim is 12 years or older, the offender should be charged with either sexual abuse under Section 5(b) of R.A. No. 7610 or rape under Article 266-A (except paragraph 1 [d]) of the RPC. However, the offender cannot be accused of both crimes for the same act because his right against double jeopardy might be prejudiced. Besides, rape cannot be complexed with a violation of Section 5(b) of R.A. No. 7610, because under Section 48 of the RPC (on complex crimes), a felony under the RPC (such as rape) cannot be complexed with an offense penalized by a special law.

Considering that the victim in Abay was more than 12 years old when the crime was committed against her, and the Information against appellant stated that the child was 13 years old at the time of the incident, We held that appellant may be prosecuted either for violation of Section 5(b) of R.A. No. 7610 or rape under Article 266-A (except paragraph 1[d]) of the RPC. We observed that while the Information may have alleged the elements of both crimes, the prosecution's evidence only established that appellant sexually violated the person of the child through force and intimidation by threatening her with a bladed instrument and forcing her to submit to his bestial designs. Hence, appellant was found guilty of rape under paragraph 1(a), Article 266-A of the RPC.

In Pangilinan, where We were faced with the same dilemma because all the elements of paragraph 1, Article 266-A of the RPC and Section 5(b) of R.A. No. 7610 were present, it was ruled that the accused can be charged with either rape or child abuse and be convicted therefor. However, We observed that rape was established, since the prosecution's evidence proved that the accused had carnal knowledge of the victim through force and intimidation by threatening her with a samurai. Citing the discussion in Abay, We ruled as follows:

As in the present case, appellant can indeed be charged with either Rape or Child Abuse and be convicted therefor. The prosecution's evidence established that appellant had carnal knowledge of AAA through force and intimidation by threatening her with a samurai. Thus, rape was established. Considering that in the resolution of the Assistant Provincial Prosecutor, he resolved the filing of rape under Article 266-A of the Revised Penal Code for which appellant was convicted by both the RTC and the CA, therefore, we merely affirm the conviction.^[62]

In the recent case of Tubillo where We noted that the Information would show that the case involves both the elements of paragraph 1, Article 266-A of the RPC and Section 5(b) of R.A. No. 7610, We likewise examined the evidence of the prosecution, whether it focused on the specific force or intimidation employed by the offender or on the broader concept of coercion or influence to have carnal knowledge with the victim. In ruling that appellant should be convicted of rape under paragraph 1(a), Article 266-A of the RPC instead of violation of Section 5(b) of R.A. No. 7610, We explained:

Here, the evidence of the prosecution unequivocally focused on the force or intimidation employed by Tubillo against HGE under Article 266- A(1)(a) of the RPC. The prosecution presented the testimony of HGE who narrated that Tubillo unlawfully entered the house where she was sleeping by breaking the padlock. Once inside, he forced himself upon her, pointed a knife at her neck, and inserted his penis in her vagina. She could not resist the sexual attack against her because Tubillo poked a bladed weapon at her neck. Verily, Tubillo employed brash force or intimidation to carry out his dastardly deeds.^[63]

With this decision, We now clarify the principles laid down in Abay, Pangilinan and Tubillo to the effect that there is a need to examine the evidence of the prosecution to determine whether the person accused of rape should be prosecuted under the RPC or R.A. No. 7610 when the offended party is 12 years old or below 18.

First, if sexual intercourse is committed with an offended party who is a child less than 12 years old or is demented, whether or not exploited in prostitution, it is always a crime of statutory rape; more so when the child is below 7 years old, in which case the crime is always qualified rape.

Second, when the offended party is 12 years old or below 18 and the charge against the accused is carnal knowledge through "force, threat or intimidation," then he will be prosecuted for rape under Article 266-A(1)(a) of the RPC. In contrast, in case of sexual intercourse with a child who is 12 years old or below 18 and who is deemed "exploited in prostitution or other sexual abuse," the crime could not be rape under the RPC, because this no longer falls under the concept of statutory rape, and the victim indulged in sexual intercourse either "for money, profit or any other consideration or due to coercion or influence of any adult, syndicate or group," which deemed the child as one "exploited in prostitution or other sexual abuse."

To avoid further confusion, We dissect the phrase "children exploited in prostitution" as an element of violation of Section 5(b) of R.A. No. 7610. As can be gathered from the text of Section 5 of R.A. No. 7610 and having in mind that the term "lascivious conduct"^[64] has a clear definition which does not include "sexual intercourse," the phrase "children exploited in prostitution" contemplates four (4) scenarios: (a) a child, whether male or female, who for money, profit or any other consideration, indulges in lascivious conduct; (b) a female child, who for money, profit or any other consideration, indulges in sexual intercourse; (c) a child, whether male or female, who due to the coercion or influence of any adult, syndicate or group, indulges in lascivious conduct; and (d) a female, due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse.

The term "other sexual abuse," on the other hand, is construed in relation to the definitions of "child abuse" under Section 3, Article I of R.A. No. 7610 and "sexual abuse" under Section 2(g) of the Rules and Regulations on the Reporting and Investigation of Child Abuse Cases.^[65] In the former provision, "child abuse" refers to the maltreatment, whether habitual or not, of the child which includes sexual abuse, among other matters. In the latter provision, "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.

In Quimvel, it was held that the term "coercion or influence" is broad enough to cover or even synonymous with the term "force or intimidation." Nonetheless, it should be emphasized that "coercion or influence" is used in Section 5^[66] of R.A. No. 7610 to qualify or refer to the means through which "any adult, syndicate or group" compels a child to indulge in sexual intercourse. On the other hand, the use of "money, profit or any other consideration" is the other mode by which a child indulges in sexual intercourse, without the participation of "any adult, syndicate or group." In other words, "coercion or influence" of a child to indulge in sexual intercourse is clearly exerted NOT by the offender whose liability is based on Section 5(b)^[67] of R.A. No. 7610 for committing sexual act with a child exploited in prostitution or other sexual abuse. Rather, the "coercion or influence" is exerted upon the child by "any adult, syndicate, or group" whose liability is found under Section 5(a)^[68] for engaging in, promoting, facilitating or inducing child prostitution, whereby the sexual intercourse is the necessary consequence of the prostitution.

For a clearer view, a comparison of the elements of rape under the RPC and sexual intercourse with a child under Section 5(b) of R.A. No. 7610 where the offended party is between 12 years old and below 18, is in order.

Rape under Article 266-A(1)(a,b,c) under the RPC	Section 5(1) of R.A. No. 7610
1. Offender is a man;	1. Offender is a man;
2. Carnal knowledge of a woman;	2. Indulges in sexual intercourse with a female child exploited in prostitution or other sexual abuse, who is 12 years old or below 18 or above 18 under special circumstances;
3. Through force, threat or intimidation; when the offended party is deprived of reason or otherwise unconscious; and by means of fraudulent machination or grave abuse of authority	3. Coercion or influence of any adult, syndicate or group is employed against the child to become a prostitute

As can be gleaned above, "force, threat or intimidation" is the element of rape under the RPC, while "due to coercion or influence of any adult, syndicate or group" is the operative phrase for a child to be deemed "exploited in prostitution or other sexual abuse," which is the element of sexual abuse under Section 5(b) of R.A. No. 7610. The "coercion or influence" is not the reason why the child submitted herself to sexual intercourse, but it was utilized in order for the child to become a prostitute. Considering that the child has become a prostitute, the sexual intercourse becomes voluntary and consensual because that is the logical consequence of prostitution as defined under Article 202 of the RPC, as amended by R.A. No. 10158 where the definition of "prostitute" was retained by the new law:^[69]

Article 202. Prostitutes; Penalty. - For the purposes of this article, women who, for money or profit, habitually indulge in sexual intercourse or lascivious conduct, are deemed to be prostitutes.

Any person found guilty of any of the offenses covered by this article shall be punished by arresto menor or a fine not exceeding 200 pesos, and in case of recidivism, by arresto mayor in its medium period to prision correccional in its minimum period or a fine ranging from 200 to 2,000 pesos, or both, in the discretion of the court.

Therefore, there could be no instance that an Information may charge the same accused with the crime of rape where "force, threat or intimidation" is the element of the crime under the RPC, and at the same time violation of Section 5(b) of R.A. No. 7610 where the victim indulged in sexual intercourse because she is exploited in prostitution either "for money, profit or any other consideration or due to coercion or influence of any adult, syndicate or group" — the phrase which qualifies a child to be deemed "exploited in prostitution or other sexual abuse" as an element of violation of Section 5(b) of R.A. No. 7610.

Third, if the charge against the accused where the victim is 12 years old or below 18 is sexual assault under paragraph 2, Article 266-A of the RPC, then it may happen that the elements thereof are the same as that of lascivious conduct under Section 5(b) of R.A. No. 7610, because the term "lascivious conduct" includes introduction of any object into the genitalia, anus or mouth of any person.^[70] In this regard, We held in Dimakuta that in instances where a "lascivious conduct" committed against a child is covered by R.A. No. 7610 and the act is likewise covered by sexual assault under paragraph 2, Article 266-A of the RPC [punishable by prision mayor], the offender should be held liable for violation of Section 5(b) of R.A. No. 7610 [punishable by reclusion temporal medium], 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. But when the offended party is below 12 years of age or is demented, the accused should be prosecuted and penalized under paragraph 2, Article 266-A of the RPC in relation to Section 5(b) of R.A. No. 7610, because the crime of sexual assault is considered statutory, whereby the evidence of force or intimidation is immaterial.

Assuming that the elements of both violations of Section 5(b) of R.A. No. 7610 and of Article 266-A, paragraph 1(a) of the RPC are mistakenly alleged in the same Information – e.g., carnal knowledge or sexual intercourse was due to "force or intimidation" with the added phrase of "due to coercion or influence," one of the elements of Section 5(b) of R.A. No. 7610; or in many instances wrongfully designate the crime in the Information as violation of "Article 266-A, paragraph 1(a) in relation to Section 5(b) of R.A. No. 7610," although this may be a ground for quashal of the Information under Section 3(f)^[71] of Rule 117 of the Rules of Court ­ and proven during the trial in a case where the victim who is 12 years old or under 18 did not consent to the sexual intercourse, the accused should still be prosecuted pursuant to the RPC, as amended by R.A. No. 8353, which is the more recent and special penal legislation that is not only consistent, but also strengthens the policies of R.A. No. 7610. Indeed, while R.A. No. 7610 is a special law specifically enacted to provide special protection to children from all forms of abuse, neglect, cruelty, exploitation and discrimination and other conditions prejudicial to their development, We hold that it is contrary to the legislative intent of the same law if the lesser penalty (reclusion temporal medium to reclusion perpetua) under Section 5(b) thereof would be imposed against the perpetrator of sexual intercourse with a child 12 years of age or below 18.

Article 266-A, paragraph 1(a) in relation to Article 266-B of the RPC, as amended by R.A. No. 8353, is not only the more recent law, but also deals more particularly with all rape cases, hence, its short title "The Anti-Rape Law of 1997." R.A. No. 8353 upholds the policies and principles of R.A. No. 7610, and provides a "stronger deterrence and special protection against child abuse," as it imposes a more severe penalty of reclusion perpetua under Article 266-B of the RPC, or even the death penalty if the victim is (1) under 18 years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or common-law spouse of the parent of the victim; or (2) when the victim is a child below 7 years old.

It is basic in statutory construction that in case of irreconcilable conflict between two laws, the later enactment must prevail, being the more recent expression of legislative will.^[72] Indeed, statutes must be so construed and harmonized with other statutes as to form a uniform system of jurisprudence, and if several laws cannot be harmonized, the earlier statute must yield to the later enactment, because the later law is the latest expression of the legislative will.^[73] Hence, Article 266-B of the RPC must prevail over Section 5(b) of R.A. No. 7610.

In sum, the following are the applicable laws and penalty for the crimes of acts of lasciviousness or lascivious conduct and rape by carnal knowledge or sexual assault, depending on the age of the victim, in view of the provisions of paragraphs 1 and 2 of Article 266-A and Article 336 of the RPC, as amended by R.A. No. 8353, and Section 5(b) of R.A. No. 7610:

Designation of the Crime & Imposable Penalty

Age of Victim:	Under 12 years old or demented	12 years old or below 18, or 18 under special circumstances[74]	18 years old and above
Crime Committed:
Acts of Lasciviousness committed against children exploited in prostitution or other sexual abuse	Acts of Lasciviousness under Article 336 of the RPC in relation to Section 5(b) of R.A. No. 7610: reclusion temporal in its medium period	Lascivious conduct[75] under Section 5(b) of R.A. No. 7610: reclusion temporal in its medium period to reclusion perpetua	Not applicable
Sexual Assault committed against children exploited in prostitution or other sexual abuse	Sexual Assault under Article 266-A(2) of the RPC in relation to Section 5(b) of R.A. No. 7610: reclusion temporal in its medium period	Lascivious Conduct under Section 5(b) of R.A. No. 7610: reclusion temporal in its medium period to reclusion perpetua	Not applicable
Sexual Intercourse committed against children exploited in prostitution or other sexual abuse	Rape under Article 266-A(1) of the RPC: reclusion perpetua, except when the victim is below 7 years old in which case death penalty shall be imposed[76]	Sexual Abuse[77] under Section 5(b) of R.A. No. 7610: reclusion temporal in its medium period to reclusion perpetua	Not applicable
Rape by carnal knowledge	Rape under Article 266-A(1) in relation to Art. 266-B of the RPC: reclusion perpetua, except when the victim is below 7 years old in which case death penalty shall be imposed	Rape under Article 266-A(1) in relation to Art. 266-B of the RPC: reclusion perpetua	Rape under Article 266-A(1) of the RPC: reclusion perpetua
Rape by Sexual Assault	Sexual Assault under Article 266-A(2) of the RPC in relation to Section 5(b) of R.A. No. 7610: reclusion temporal in its medium period	Lascivious Conduct under Section 5(b) of R.A. No. 7610: reclusion temporal in its medium period to reclusion perpetua	Sexual Assault under Article 266-A(2) of the RPC: prision mayor

For the crime of acts of lasciviousness or lascivious conduct, the nomenclature of the crime and the imposable penalty are based on the guidelines laid down in Caoili. For the crimes of rape by carnal knowledge and sexual assault under the RPC, as well as sexual intercourse committed against children under R.A. No. 7610, the designation of the crime and the imposable penalty are based on the discussions in Dimakuta,^[78] Quimvel^[79] and Caoili, in line with the policy of R.A. No. 7610 to provide stronger deterrence and special protection to children from all forms of abuse, neglect, cruelty, exploitation, discrimination, and other conditions prejudicial to their development. It is not amiss to stress that the failure to designate the offense by statute, or to mention the specific provision penalizing the act, or an erroneous specification of the law violated, does not vitiate the information if the facts alleged clearly recite the facts constituting the crime charged, for what controls is not the title of the information or the designation of the offense, but the actual facts recited in the information.^[80] Nevertheless, the designation in the information of the specific statute violated is imperative to avoid surprise on the accused and to afford him the opportunity to prepare his defense accordingly.^[81]

Justice Caguioa asks us to abandon our rulings in Dimakuta, Quimvel and Caoili, and to consider anew the viewpoint in his Separate Dissenting Opinion in Quimvel that the provisions of R.A. No. 7610 should be understood in its proper context, i.e., that it only applies in the specific and limited instances where the victim is a child "subjected to prostitution or other sexual abuse." He asserts that if the intention of R.A. No. 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." He points out that Section 5(b) of R.A. No. 7610 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. In support of his argument that the main thrust of R.A. No. 7610 is the protection of street children from exploitation, Justice Caguioa cites parts of the sponsorship speech of Senators Santanina T. Rasul, Juan Ponce Enrile and Jose D. Lina, Jr.

We find no compelling reason to abandon our ruling in Dimakuta, Quimvel and Caoili.

In his Separate Concurring Opinion in Quimvel, the ponente aptly explained that 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 R.A. No. 7610, as well as Section 3(2), Article XV of the 1987 Constitution:

[R.A. No. 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; 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 x

(2) The right of children to assistance, including proper care and nutrition, and special protection from all forms of neglect, abuse, cruelty, exploitation, and other conditions prejudicial to their development.^[82]

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. No. 7610 on the other sexual abuses committed by the offenders on the children concerned.

Justice Caguioa asserts that Section 5(b), Article III of R.A. No. 7610 is clear - it only punishes those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to other sexual abuse. There is no ambiguity to speak of that which requires statutory construction to ascertain the legislature's intent in enacting the law.

We would have agreed with Justice Caguioa if not for Section 5 itself which provides who are considered as "children exploited in prostitution and other sexual abuse." Section 5 states that "[c]hildren, 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." Contrary to the view of Justice Caguioa, Section 5(b), Article III of R.A. No. 7610 is not as clear as it appears to be; thus, We painstakingly sifted through the records of the Congressional deliberations to discover the legislative intent behind such provision.

Justice Caguioa then asks: (1) if the legislature intended for Section 5(b), R.A. No. 7610 to cover any and all types of sexual abuse committed against children, then why would it bother adding language to the effect that the provision applies to "children exploited in prostitution or subjected to other sexual abuse?" and (2) why would it also put Section 5 under Article III of the law, which is entitled "Child Prostitution and Other Sexual Abuse?"

We go back to the record of the Senate deliberation to explain the history behind the phrase "child exploited in prostitution or subject to other sexual abuse."

Section 5 originally covers Child Prostitution only, and this can still be gleaned from Section 6 on Attempt To Commit Child Prostitution, despite the fact that both Sections fall under Article III on Child Prostitution and Other Sexual Abuse. Thus:

Section 6. Attempt To Commit Child Prostitution. - There is an attempt to commit child prostitution under Section 5, paragraph (a) hereof when any person who, not being a relative of a child, is found alone with the said child inside the room or cubicle of a house, an inn, hotel, motel, pension house, apartelle or other similar establishments, vessel, vehicle or any other hidden or secluded area under circumstances which would lead a reasonable person to believe that the child is about to be exploited in prostitution and other sexual abuse.

There is also an attempt to commit child prostitution, under paragraph (b) of Section 5 hereof when any person is receiving services from a child in a sauna parlor or bath, massage clinic, health club and other similar establishments. A penalty lower by two (2) degrees than that prescribed for the consummated felony under Section 5 hereof shall be imposed upon the principals of the attempt to commit the crime of child prostitution under this Act, or, in the proper case, under the Revised Penal Code.

Even Senator Lina, in his explanation of his vote, stated that Senate Bill 1209 also imposes the penalty of reclusion temporal in its medium period to reclusion perpetua for those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution.^[83] Senator Lina mentioned nothing about the phrases "subject to other sexual abuse" or "Other Sexual Abuse" under Section 5(b), Article III of R.A. No. 7610.

However, to cover a situation where the minor may have been coerced or intimidated into lascivious conduct, not necessarily for money or profit, Senator Eduardo Angara proposed the insertion of the phrase "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, under Section 5(b), Article III of R.A. No. 7610.^[84]

Further amendment of then Article III of R.A. No. 7610 on Child Prostitution was also proposed by then President Pro Tempore Sotero Laurel, to which Senator Angara agreed, in order to cover the "expanded scope" of "child abuse." Thus, Article III was amended and entitled "Child Prostitution and Other Sexual Abuse."^[85] This is the proper context where the element that a child be "exploited in prostitution and other sexual abuse" or EPSOSA, came to be, and should be viewed.

We hold that it is under President Pro Tempore Laurel's amendment on "expanded scope'' of "child abuse" under Section 5(b) and the definition of "child abuse" under Section 3,^[86] Article I of R.A. No. 7610 that should be relied upon in construing the element of "exploited under prostitution and other sexual abuse." In understanding the element of "exploited under prostitution and other sexual abuse", We take into account two provisions of R.A. No. 7610, namely: (1) Section 5, Article III, which states that "[c]hildren, 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 exploited in prostitution and other sexual abuse"; and (2) Section 3, Article I, which states that "child abuse" refers to the maltreatment, whether habitual or not, of the child, which includes, sexual abuse.

To clarify, once and for all, the meaning of the element of "exploited in prostitution" under Section 5(b), Article III of R.A. No. 7610,^[87] We rule that it contemplates 4 scenarios, namely: (a) a child, whether male or female, who for money, profit or any other consideration, indulges in lascivious conduct; (b) a child, whether male or female, who due to the coercion or influence of any adult, syndicate or group, indulges in lascivious conduct; (c) a female child, who for money, profit or any other consideration, indulges in sexual intercourse; and (d) a female, due to the coercion or influence of any adult, syndicate or group, indulges in sexual intercourse.

Note, however, that the element of "exploited in prostitution" does not cover a male child, who for money, profit or any other consideration, or due to coercion or influence of any adult, syndicate, or group, indulges in sexual intercourse. This is because at the time R.A. No. 7610 was enacted in 1992, the prevailing law on rape was Article 335 of the RPC where rape can only be committed by having carnal knowledge of a woman under specified circumstances. Even under R.A. No. 8353 which took effect in 1997, the concept of rape remains the same — it is committed by a man who shall have carnal knowledge of a woman under specified circumstances. As can be gathered from the Senate deliberation on Section 5(b), Article III of R.A. No. 7610, it is only when the victim or the child who was abused is a male that the offender would be prosecuted thereunder because the crime of rape does not cover child abuse of males.^[88]

The term "other sexual abuse," on the other hand, should be construed in relation to the definitions of "child abuse" under Section 3,^[89] Article I of R.A. No. 7610 and "sexual abuse" under Section 2(g)^[90] of the Rules and Regulations on the Reporting and Investigation of Child Abuse Cases.^[91] In the former provision, "child abuse" refers to the maltreatment, whether habitual or not, of the child which includes sexual abuse, among other matters. In the latter provision, "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. Thus, the term "other sexual abuse" is broad enough to include all other acts of sexual abuse other than prostitution. Accordingly, a single act of lascivious conduct is punished under Section 5(b), Article III, when the victim is 12 years old and below 18, or 18 or older under special circumstances. In contrast, when the victim is under 12 years old, the proviso of Section 5(b) states that the perpetrator should be prosecuted under Article 336 of the RPC for acts of lasciviousness, whereby the lascivious conduct itself is the sole element of the said crime. This is because in statutory acts of lasciviousness, as in statutory rape, the minor is presumed incapable of giving consent; hence, the other circumstances pertaining to rape — force, threat, intimidation, etc. — are immaterial.

Justice Caguioa also posits that the Senate deliberation on R.A. No. 7610 is replete with similar disquisitions that all show the intent to make the law applicable to cases involving child exploitation through prostitution, sexual abuse, child trafficking, pornography and other types of abuses. He stresses that the passage of the laws was the Senate's act of heeding the call of the 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 Presidential Decree No. 603, otherwise known as the Child and Youth Welfare Code. He concludes that it is erroneous for us to rule that R.A. No. 7610 applies in each and every case where the victim although he or she was not proved, much less, alleged to be a child "exploited in prostitution or subjected to other sexual abuse." He invites us to go back to the ruling in Abello that "since R.A. No. 7610 is a special law referring to a particular class in society, the prosecution must show that the victim truly belongs to this particular class to warrant the application of the statute's provisions. Any doubt in this regard we must resolve in favor of the accused."

Justice Estela M. Perlas-Bernabe also disagrees that R.A. No. 7610 would be generally applicable to all cases of sexual abuse involving minors, except those who are under 12 years of age. Justice Perlas-Bernabe concurs with Justice Caguioa that Section 5(b), Article III of R.A. No. 7610 only applies in instances where the child-victim is "exploited in prostitution or subject to other sexual abuse" (EPSOSA). She asserts that her limited view, as opposed to the ponencia's expansive view, is not only supported by several textual indicators both in law and the deliberations, but also squares with practical logic and reason. She also contends that R.A. No. 7610 was enacted to protect those who, like the child-victim in People v. Ritter, willingly engaged in sexual acts, not out of desire to satisfy their own sexual gratification, but because of their "vulnerable pre-disposition as exploited children. She submits that, as opposed to the RPC where sexual crimes are largely predicated on the lack of consent, Section 5(b) fills in the gaps of the RPC by introducing the EPSOSA element which effectively dispenses with the need to prove the lack of consent at the time the act of sexual abuse is committed. Thus, when it comes to a prosecution under Section 5(b), consent at the time the sexual act is consummated is, unlike in the RPC, not anymore a defense.

We are unconvinced that R.A. No. 7610 only protects a special class of children, i.e., those who are "exploited in prostitution or subjected to other sexual abuse," and does not cover all crimes against them that are already punished by existing laws. It is hard to understand why the legislature would enact a penal law on child abuse that would create an unreasonable classification between those who are considered as "exploited in prostitution and other sexual abuse" or EPSOSA and those who are not. After all, the policy is to provide stronger deterrence and special protection to children from all forms of abuse, neglect, cruelty, exploitation, discrimination and other conditions prejudicial to their development.

In the extended explanation of his vote on Senate Bill No. 1209,^[92] Senator Lina emphasized that the bill complements the efforts the Senate has initiated towards the implementation of a national comprehensive program for the survival and development of Filipino children, in keeping with the Constitutional mandate that "[t]he State shall defend the right of children to assistance, including proper care and nutrition; and special protection from all forms of neglect, abuse, cruelty, exploitation, and other conditions prejudicial to their development."^[93] Senator Lina also stressed that the bill supplies the inadequacies of the existing laws treating crimes committed against children, namely, the RPC and the Child and Youth Welfare Code, in the light of the present situation, i.e., current empirical data on child abuse indicate that a stronger deterrence is imperative.^[94]

In the same vein, Senator Rasul expressed in her Sponsorship Speech the same view that R.A. No. 7610 intends to protect all children against all forms of abuse and exploitation, thus:

There are still a lot of abuses and injustices done to our children who suffer not only from strangers, but sadly, also in the hands of their parents and relatives. We know for a fact that the present law on the matter, the Child and Welfare Code (PD No. 603) has very little to offer to abuse children. We are aware of the numerous cases not reported in media.

In the Filipino Family structure, a child is powerless; he or she is not supposed to be heard and seen. Usually, it is the father or the mother who has a say in family matters, and children, owing to their limited capability, are not consulted in most families. Many children may be suffering from emotional, physical and social abuses in their homes, but they cannot come out in the open; besides, there is a very thin line separating discipline from abuse. This becomes wider when the abuse becomes grave and severe.

Perhaps, more lamentable than the continuing child abuses and exploitation is the seeming unimportance or the lack of interest in the way we have dealt with the said problem in the country. 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 of pedophiles. But as we know, we, at the Senate have not been remiss in our bounden duty to sponsor bills which will ensure the protection of street children from the tentacles of sexual exploitation. Mr. President, now is the time to convert these bills into reality.

In our long quest for solutions to problems regarding children, which problems are deeply rooted in poverty, I have felt this grave need to sponsor a bill, together with Senators Lina and Mercado, which would ensure the children's protection from all forms of abuse and exploitation, to provide stiffer sanction for their commission and carry out programs for prevention and deterrence to aid crisis intervention in situations of child abuse and exploitation.

Senate Bill No. 1209 translates into reality the provision of our 1987 Constitution on "THE FAMILY," and I quote:

Sec. 3. The State shall defend:

x 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, and other conditions prejudicial to their development.

This is a specific provision peculiar to the Philippines. No other Constitution in the whole world contains this mandate. Keeping true to this mandate, Mr. President, and the UN Convention on the Rights of the Child which has been drafted in the largest global summit, of which we have acceded, we should waste no time in passing this significant bill into law. This is a commitment; thus, we should not thrive on mere promises. We, the legislature of this country, must have that political will to transform this promise into a vibrant reality.

Children's normal growth and development, considering their young minds and fragile bodies, must not be stunted. We legislators must pave the way for the sustained progress of our children. Let not a child's opportunity for physical, spiritual, moral, social and intellectual well-being be stunted by the creeping cruelty and insanity that sometimes plague the minds of the adults in the society who, ironically, are the persons most expected to be the guardians of their interest and welfare.^[95]

Justice Caguioa further submits that Section 5(b) of R.A. No. 7610 cannot be read in isolation in the way that Dimakuta, Quimvel and Caoili do, but must be read in the whole context of R.A. No. 7610 which revolves around (1) child prostitution, (2) other sexual abuse in relation to prostitution and (3) the specific acts punished under R.A. No. 7610, namely, child trafficking under Article IV, obscene publications and indecent shows under Article V, and sanctions for establishments where these prohibited acts are promoted, facilitated or conducted under Article VII. He adds that even an analysis of the structure of R.A. No. 7610 demonstrates its intended application to the said cases of child exploitation involving children "exploited in prostitution or subjected to other sexual abuse." Citing the exchange between Senators Pimentel and Lina during the second reading of Senate Bill No. 1209 with respect to the provision on attempt to commit child prostitution, Justice Caguioa likewise posits 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 children "exploited in prostitution or subjected to other sexual abuse."

We disagree that the whole context in which Section 5(b) of R.A. No. 7610 must be read revolves only around child prostitution, other sexual abuse in relation to prostitution, and the specific acts punished under R.A. No. 7610. In fact, the provisos of Section 5(b) itself explicitly state that it must also be read in light of the provisions of the RPC, thus: "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. "

When the first proviso of Section 5(b) states that "when the victim is under 12 years of age shall be prosecuted under the RPC," it only means that the elements of rape under then Article 335, paragraph 3 of the RPC [now Article 266-A, paragraph 1(d)], and of acts of lasciviousness under Article 336 of the RPC, have to be considered, alongside the element of the child being "exploited in prostitution and or other sexual abuse," in determining whether the perpetrator can be held liable under R.A. No. 7610. The second proviso of Section 5(b), on the other hand, merely increased the penalty for lascivious conduct when the victim is under 12 years of age, from prision correccional to reclusion temporal in its medium period, in recognition of the principle of statutory acts of lasciviousness, where the consent of the minor is immaterial.

Significantly, what impels Us to reject Justice Caguioa's view that acts of lasciviousness committed against children may be punished under either Article 336 of the RPC [with prision correccional] or Acts of Lasciviousness under Article 336 of the RPC, in relation to Section 5(b) of R.A. No. 7610 [with reclusion temporal medium]/Lascivious Conduct under Section 5(b) of R.A. No. 7610 [with reclusion temporal medium to reclusion perpetua], is the provision under Section 10 of R.A. No. 7610.

As pointed out by the ponente in Quimvel, where the victim of acts of lasciviousness is under 7 years old, Quimvel cannot be merely penalized with prision 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. No. 7610 to provide for stronger deterrence and special protection against child abuse, exploitation and discrimination. The legislative intent is expressed under Section 10, Article VI of R.A. No. 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 Article 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.^[96]

The ponente explained that to impose upon Quimvel an indeterminate sentence computed from the penalty of prision correccional under Article 336 of the RPC 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,^[97] which used to be punishable by arresto mayor, and now by prision correccional pursuant to Section 10, Article VI of R.A. No. 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 a probationable offense, pursuant to the Probation Law of 1976,^[98] as amended by R.A. No. 10707.^[99] 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.

Justice Caguioa also faults that a logical leap was committed when the ponencia posited that the Section 10, Article VI, R.A. No. 7610 amendment of the penalties under Articles 337, 339, 340 and 341 of the RPC, also affected Article 336 on acts of lasciviousness. He argues that given the clear import of Section 10 to the effect that the legislature expressly named the provisions it sought to amend through R.A. No. 7610, amendment by implication cannot be insisted on.

We disagree. Articles 337 (Qualified Seduction), 339 (Acts of Lasciviousness with the Consent of the Offended Party), 340 (Corruption of Minor) and 341 (White Slave Trade) of the RPC, as well as Article 336 (Acts of Lasciviousness) of the RPC, fall under Title Eleven of the RPC on Crimes against Chastity. All these crimes can be committed against children. Given the policy of R.A. No. 7610 to provide stronger deterrence and special protection against child abuse, We see no reason why the penalty for acts of lasciviousness committed against children should remain to be prision correccional when Section 5(b), Article III of R.A. No. 7610 penalizes those who commit lascivious conduct with a child exploited in prostitution or subject to other sexual abuse with a penalty of reclusion temporal in its medium period when the victim is under 12 years of age.

Contrary to the view of Justice Caguioa, there is, likewise, no such thing as a recurrent practice of relating the crime committed to R.A. No. 7610 in order to increase the penalty, which violates the accused's constitutionally protected right to due process of law. In the interpretation of penal statutes, the rule is to subject it to careful scrutiny and to construe it with such strictness as to safeguard the rights of the accused,^[100] and at the same time preserve the obvious intention of the legislature.^[101] A strict construction of penal statutes should also not be permitted to defeat the intent, policy and purpose of the legislature, or the object of the law sought to be attained.^[102] When confronted with apparently conflicting statutes, the courts should endeavor to harmonize and reconcile them, instead of declaring the outright invalidity of one against the other, because they are equally the handiwork of the same legislature.^[103] In this case, We are trying to harmonize the applicability of the provisions of R.A. No. 7610 vis-a-vis those of the RPC, as amended by R.A. No. 8353, in order to carry out the legislative intent to provide stronger deterrence and special protection against all forms of child abuse, exploitation and discrimination.

Pertinent parts of the deliberation in Senate Bill No. 1209 underscoring the legislative intent to increase the penalties as a deterrent against all forms of child abuse, including those covered by the RPC and the Child and Youth Welfare Code, as well as to give special protection to all children, read:

Senator Lina. x x x

For the information and guidance of our Colleagues, the phrase "child abuse" here is more descriptive than a definition that specifies the particulars of the acts of child abuse. As can be gleaned from the bill, Mr. President, there is a reference in Section 10 to the "Other Acts of Neglect, Abuse, Cruelty or Exploitation and Other Conditions Prejudicial to the Child's Development."

We refer, for example, to the Revised Penal Code. There are already acts described and punished under the Revised Penal Code and the Child and Youth Welfare Code. These are all enumerated already, Mr. President. There are particular acts that are already being punished.

But we are providing stronger deterrence against child abuse and exploitation by increasing the penalties when the victim is a child. That is number one. We define a child as "one who is 15 years and below." [Later amended to those below 18, including those above 18 under special circumstances]

The President Pro Tempore. Would the Sponsor then say that this bill repeals, by implication or as a consequence, the law he just cited for the protection of the child as contained in that Code just mentioned, since this provides for stronger deterrence against child abuse and we have now a Code for the protection of the child?

Senator Lina. We specified in the bill, Mr. President, increase in penalties. That is one. But, of course, that is not everything included in the bill. There are other aspects like making it easier to prosecute these cases of pedophilia in our country. That is another aspect of this bill.

The other aspects of the bill include the increase in the penalties on acts committed against children; and by definition, children are those below 15 years of age.

So, it is an amendment to the Child and Youth Welfare Code, Mr. President. This is not an amendment by implication. We made direct reference to the Articles in the Revised Penal Code and in the Articles in the Child and Youth Welfare Code that are amended because of the increase in the penalties.

The President Pro Tempore. Would Senator Lina think then that, probably, it would be more advisable to specify the amendments and amend the particular provision of the existing law rather than put up a separate bill like this?

Senator Lina. We did, Mr. President. In Section 10, we made reference to...

The President Pro Tempore. The Chair is not proposing any particular amendment. This is just an inquiry for the purpose of making some suggestions at this stage where we are now in the period of amendments.

Senator Lina. We deemed it proper to have a separate Act, Mr. President, that will include all measures to provide stronger deterrence against child abuse and exploitation. There are other aspects that are included here other than increasing the penalties that are already provided for in the Revised Penal Code and in the Child and Youth Welfare Code when the victims are children.

Aside from the penalties, there are other measures that are provided for in this Act. Therefore, to be more systematic about it, instead of filing several bills, we thought of having a separate Act that will address the problems of children below 15 years of age. This is to emphasize the fact that this is a special sector in our society that needs to be given special protection. So this bill is now being presented for consideration by the Chamber.^[104]

The aforequoted parts of the deliberation in Senate Bill No. 1209 likewise negate the contention of Justice Perlas-Bernabe that "to suppose that R.A. No. 7610 would generally cover acts already punished under the Revised Penal Code (RPC) would defy the operational logic behind the introduction of this special law." They also address the contention of Justice Caguioa that the passage of the same law was the Senate's act of heeding the call of the 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, like the RPC and P.D. No. 603.

As pointed out by Senator Lina, the other aspect of S.B. No. 1209, is to increase penalties on acts committed against children; thus, direct reference was made to the Articles in the RPC and in the Articles in the Child and Youth Welfare Code that are amended because of the increase in the penalties. The said legislative intent is consistent with the policy to provide stronger deterrence and special protection of children against child abuse, and is now embodied under Section 10, Article VI of R.A. No. 7610, viz.:

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, the Revised Penal Code, 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 Article 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 the 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 age.

Justice Perlas-Bernabe and Justice Caguioa are both correct that R.A. No. 7610 was enacted to fill the gaps in the law, as observed by the Court in People v. Ritter. However, they may have overlooked that fact that the Congressional deliberations and the express provisions of R.A. No. 7610 all point to the intention and policy to systematically address the problems of children below 15 years of age [later increased to below 18], which Senator Lina emphasized as a special sector in our society that needs to be given special protection.^[105]

Justice Perlas-Bernabe also noted that a general view on the application of R.A. No. 7610 would also lead to an unnerving incongruence between the law's policy objective and certain penalties imposed thereunder. She pointed out that under Article 335 of the RPC, prior to its amendment by R.A. No. 8353, the crime of rape committed against a minor who is not under 12 and below 18, is punished with the penalty of reclusion perpetua, while under Section 5(b), Article III of R.A. No. 7610, the crime of sexual abuse against a child EPSOSA is punished only with a lower penalty of reclusion temporal in its medium period to reclusion perpetua. She concluded that it would not make sense for the Congress to pass a supposedly stronger law against child abuse if the same carries a lower penalty for the same act of rape under the old RPC provision.

Justice Perlas-Bernabe's observation on incongruent penalties was similarly noted by the ponente in his Separate Concurring Opinion in Quimvel, albeit with respect to the penalties for acts of lasciviousness committed against a child, but he added that the proper remedy therefor is a corrective legislation:

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,^[106] 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, whereas as the minimum term in the case of the older victims shall be taken from prision mayor medium to reclusion temporal minimum. 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, 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. To my mind, a corrective legislation is the proper remedy to address the noted incongruent penalties for acts of lasciviousness committed against a child.^[107]

To support his theory that the provisions of R.A. No. 7610 are intended only for those under the unique circumstances of the children being "exploited in prostitution or subjected to other sexual abuse," Justice Caguioa quoted pertinent portions of the Senate deliberation on the provision on attempt to commit child prostitution," which concededly do not affect Article 336 of the RPC on acts of lasciviousness. Senator Lina provided with a background, not of the provision of Section 5(b), but of Section 6 of R.A. No. 7610 on attempt to commit child prostitution, thus:

Senator Lina. xxx 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 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 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 already considered an attempt to commit child prostitution. This, in no way, affects the Revised Penal Code provisions on acts of lasciviousness or qualified seduction.^[108]

Justice Caguioa's reliance on the foregoing statements of Senator Lina is misplaced. While Senator Lina was referring to the specific provision on attempt to commit child prostitution under Section 6, Article III of R.A. No. 7610, Senator Aquilino Pimentel Jr.'s questions were directed more on the general effect of Senate Bill No. 1209 on the existing provisions of the RPC on child sexual abuse, which elicited from Senator Lina the intent to provide higher penalties for such crimes, to wit:

Senator Pimentel. I understand the Gentleman's opinion on that particular point. But my question really is much broader. I am sorry that it would seem as if I am trying to be very meticulous about this.

Senator Lina. It is all right.

Senator Pimentel. But the point is, there are existing laws that cover the sexual abuse of children already, particularly female children. What I am trying to say is, what effect will the distinguished Gentleman's bill have on these existing laws, particularly provisions of the Revised Penal Code. That is why I tried to cite the case of rape—having sexual intercourse with a child below 12 years of age, seduction instances, qualified abduction, or acts of lasciviousness, involving minors; meaning to say, female below 18 years of age. There are already existing laws on this particular point.

Senator Lina. Mr. President, there will also be a difference in penalties when the person or the victim is 12 years old or less. That is another effect. So, there is a difference.

For example, in qualified seduction, the penalty present for all persons between age of 13 to 17 is prision correccional; for acts of lasciviousness under the proposal, similar acts will be prision mayor if the child is 12 years or less.

Under qualified seduction, the present penalty is prision correccional, minimum and medium. Under the proposal, it will be prision correccional maximum to prision mayor minimum, and so on and so forth.

Even in facts of lasciviousness, with consent of the offended party, there is still a higher penalty. In corruption of minors, there will be a higher penalty. When murder is committed, and the victim is under 12 years or less, there will be a higher penalty from reclusion temporal to reclusion perpetua. The penalty when the culprit is below 12 years or less will be reclusion perpetua. The intention is really to provide a strong deterrence sand special protection against child abuse and exploitation.

Senator Pimentel. So, the net effect of this amendment, therefore, is to amend the provisions of the Revised Penal Code, insofar as they relate to the victims who are females below the age of 12.

Senator Lina. That will be the net effect, Mr. President.

Senator Pimentel. We probably just have to tighten up our provisions to make that very explicit. Mr. President.

Senator Lina. Yes. During the period of individual amendments, Mr. President, that can be well taken care of.^[109]

Quoting the sponsorship speech of Senator Rasul and citing the case of People v. Ritter,^[110] Justice Caguioa asserts that the enactment of R.A. No. 7610 was a response of the legislature to the observation of the Court that there was a gap in the law because of the lack of criminal laws which adequately protect street children from exploitation of pedophiles.

Justice Caguioa is partly correct. Section 5(b) of R.A. No. 7610 is separate and distinct from common and ordinary acts of lasciviousness under Article 336 of the RPC. However, when the victim of such acts of lasciviousness is a child, as defined by law, We hold that the penalty is that provided for under Section 5(b) of R.A. No. 7610 - i.e., reclusion temporal medium in case the victim is under 12 years old, and reclusion temporal medium to reclusion perpetua when the victim is between 12 years old or under 18 years old or above 18 under special circumstances - and not merely prision correccional under Article 336 of the RPC. Our view is consistent with the legislative intent to provide stronger deterrence against all forms of child abuse, and the evil sought to be avoided by the enactment of R.A. No. 7610, which was exhaustively discussed during the committee deliberations of the House of Representatives:

HON. [PABLO] P. GARCIA: Thank you, Mr. Chairman. This problem is also bogging me for quite some time because there has been so much cry against this evil in our society. But, then until now, neither the courts nor those in the medical world have come up with the exact definition of pedophilia. I have two standard dictionaries—Webster and another one an English dictionary, Random Dictionary and the term "pedophilia" is not there. Although, we have read so much literature, articles about pedophilia and it is commonly understood as we might say a special predilection for children. "Pedo" coming from the Greek word "pedo." But whether this would apply to children of either sex, say male or female is not also very clear. It is a sexual desire for its very unusual out of the ordinary desire or predilection for children. Now, in our country, this has gain[ed] notoriety because of activities of foreigners in Pagsanjan and even in Cebu. But most of the victims I have yet to hear of another victim than male. Of course, satisfaction of sexual desire on female, young female, we have instances of adults who are especially attracted to the young female children, say below the ages of 12 or 15 if you can still classify these young female children. So our first problem is whether pedophilia would apply only to male victims or should it also apply to female victims?

I am trying to make this distinction because we have already a law in our jurisdiction. I refer to the Revised Penal Code where sexual intercourse with a child below 12 automatically becomes statutory rape whether with or without consent. In other words, force or intimidation is not a necessary element. If a person commits sexual intercourse with a child below 12, then he automatically has committed statutory rape and the penalty is stiff. Now, we have really to also think deeply about our accepted definition of sexual intercourse. Sexual intercourse is committed against… or is committed by a man and a woman. There is no sexual intercourse between persons of the same sex. The sexual intercourse, as defined in the standard dictionaries and also as has been defined by our courts is always committed between a man and a woman. And so if we pass here a law, which would define pedophilia and include any sexual contact between persons of different or the same sexes, in other words, homosexual or heterosexual, then, we will have to be overhauling our existing laws and jurisprudence on sexual offenses.

For example, we have in our Revised Penal Code, qualified seduction, under Article 337 of the Revised Penal Code, which provides that the seduction of a virgin over 12 and under 18 committed by any person in public authority: priest, house servant, domestic guardian, teacher, or person who in any capacity shall be entrusted with the education or custody of the woman seduced, shall be punished by etc. etc. Now, if we make a general definition of pedophilia then shall that offender, who, under our present law, is guilty of pedophilia? I understand that the consensus is to consider a woman or a boy below 15 as a child and therefore a potential victim of pedophilia. And so, what will happen to our laws and jurisprudence on seduction? The Chairman earlier mentioned that possible we might just amend our existing provisions on crimes against chastity, so as to make it stiffer, if the victim or the offended party is a minor below a certain age, then there is also seduction of a woman who is single or a widow of good reputation, over 12 but under 18. Seduction, as understood in law, is committed against a woman, in other words, a man having sexual intercourse with a woman. That is how the term is understood in our jurisprudence. So I believe Mr. Chairman, that we should rather act with caution and circumspection on this matter. Let us hear everybody because we are about to enact a law which would have very drastic and transcendental effects on our existing laws. In the first place, we are not yet very clear on what is pedophilia. We have already existing laws, which would punish these offenses.

As a matter of fact, for the information of this Committee, in Cebu, I think that it is the first conviction for an offense which would in our understanding amounts to pedophilia. A fourteen-year old boy was the victim of certain sexual acts committed by a German national. The fiscal came up with an information for acts of lasciviousness under the Revised Penal Code and that German national was convicted for the offense charged. Now, the boy was kept in his rented house and subjected to sexual practices very unusual, tantamount to perversion but under present laws, these offenses such as... well, it's too, we might say, too obscene to describe, cannot be categorized under our existing laws except acts of lasciviousness because there is no sexual intercourse. Sexual intercourse in our jurisdiction is as I have stated earlier, committed by a man and a woman. And it is a sexual contact of the organ of the man with the organ of the woman. But in the case of this German national, if there was any sexual contact it was between persons of the same sex. So, he was convicted. He's a detention prisoner and there is also deportation proceeding against him. In fact, he has applied for voluntary deportation, but he is to serve a penalty of prision correccional to prision mayor. So, that is the situation I would say in which we find ourselves. I am loath to immediately act on this agitation for a definition of a crime of pedophilia. There is no I think this Committee should study further the laws in other countries. Whether there is a distinct crime known as pedophilia and whether this can be committed against a person of the same sex or of another sex, or whether this crime is separate and distinct from the other crimes against honor or against chastity in their respective jurisdictions. This is a social evil but it has to be addressed with the tools we have at hand. If we have to forge another tool or instrument to find to fight this evil, then I think we should make sure that we are not doing violence for destroying the other existing tools we have at hand. And maybe there is a need to sharpen the tools we have at hand, rather than to make a new tool to fight this evil. Thank you very much, Mr. Chairman.^[111]

Moreover, contrary to the claim of Justice Caguioa, We note that the Information charging Tulagan with rape by sexual assault in Criminal Case No. SCC-6210 not only distinctly stated that the same is "Contrary to Article 266-A, par. 2 of the Revised Penal Code in relation to R.A. 7610," but it also sufficiently alleged all the elements of violation of Section 5(b) of R.A. No. 7610, in this wise:

Elements of Section 5(b) of R.A. No. 7610	Information in Criminal Case No. SCC-6210
1. The accused commits the act of sexual intercourse or lascivious conduct.	1. That sometime in the month of September 2011 x x x, the above­named accused [Tulagan] x x x did then and there, willfully, unlawfully and feloniously inserted his finger into the vagina of said AAA, against her will and consent.
2. The said act is performed with a child exploited in prostitution or other sexual abuse. Section 5 of R.A. No. 7610 deems as "children exploited in prostitution and other sexual abuse" those children, whether male or female, (1) who for money, profit or any other consideration or (2) due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct.	2. [T]he above-name accused, by means of force, intimidation and with abuse of superior strength forcibly laid complainant AAA, x x x in a cemented pavement, and x x x inserted his finger into the vagina of said AAA, against her will and consent.
3. The child, whether male or female, is below 18 years of age.	3. AAA is a 9-year-old minor.

In Quimvel, We ruled that the Information in Olivarez v. Court of Appeals^[112] is conspicuously couched in a similar fashion as the Information in the case against Quimvel. We explained that the absence of the phrase "exploited in prostitution or subject to other sexual abuse" or even a specific mention of "coercion" or "influence" was never a bar for us to uphold the finding of guilt against an accused for violation of R.A. No. 7610. Just as We held that it was enough for the Information in Olivarez to have alleged that the offense was committed by means of ''force and intimidation," We must also rule that the Information in the case at bench does not suffer from the alleged infirmity.

We likewise held in Quimvel that 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 opportunity to prepare his defense accordingly. Its import is underscored in this case where the preamble states that the crime charged is "Acts of Lasciviousness in relation to Section 5(b) of R.A. No. 7610."

We held that for purposes of determining the proper charge, the term "coercion or influence" as appearing in the law is broad enough to cover "force and intimidation" as used in the Information; in fact, as these terms are almost used synonymously, it is then "of no moment that the terminologies employed by R.A. No. 7610 and by the Information are different."^[113] We also ruled that a child is considered one "exploited in prostitution or subjected to other sexual abuse" when the child indulges in sexual intercourse or lascivious conduct "under the coercion or influence of any adult."^[114] Thus, We rule that the above-quoted Information in Criminal Case No. SCC-6210 sufficiently informs Tulagan of the nature and cause of accusation against him, namely: rape by sexual assault under paragraph 2, Article 266-A of the RPC in relation to R.A. No. 7610.

We also take this opportunity to address the position of Justice Caguioa and Justice Perlas-Bernabe, which is based on dissenting opinions^[115] in Olivarez and Quimvel. Citing the Senate deliberations, the dissenting opinions explained that the phrase "or any other consideration or due to coercion or influence of any adult, syndicate or group," under Section 5(b) of R.A. No. 7610, was added to merely cover situations where a child is abused or misused for sexual purposes without any monetary gain or profit. The dissenting opinions added that this was significant because profit or monetary gain is essential in prostitution; thus, the lawmakers intended that in case all 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.^[116]

We partly disagree with the foregoing view. The amendment introduced by Senator Eduardo Angara not only covers cases wherein the child is misused for sexual purposes not because of money or profit, and coercion or intimidation, but likewise expanded the scope of Section 5 of R.A. No. 7610 to cover not just child prostitution but also "other sexual abuse" in the broader context of child abuse," thus:

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 a loophole in this section.

This 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, etcetera.

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 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.

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 probably "child abuse"?

Senator Angara. Yes, Mr. President.

The President Pro Tempore. Is that not defined on line 2, page 6?

Senator Angara. Yes, Mr. President. Child prostitution and other sexual abuse.

The President Pro Tempore. Subject to rewording. Is there any objection? [Silence] Hearing none, the amendment is approved. Any other amendments?^[117]

Indeed, the Angara amendment explains not just the rationale of the body of Section 5(b) of R.A. No. 7610 to cover a loophole or situation where the minor may have been coerced or intimidated to indulge in lascivious conduct. The amendment of President Pro Tempore Laurel, however, also affects the title of Article III, Section 5 of R.A. No. 7610, i.e., "Child Prostitution and Other Sexual Abuse." It is settled that if a chapter and section heading has been inserted merely for convenience or reference, and not as integral part of the statute, it should not be allowed to control interpretation.^[118] To our mind, however, the amendment highlights the intention to expand the scope of Section 5 to incorporate the broader concept of "child abuse," which includes acts of lasciviousness under Article 336 of the RPC committed against "children," as defined under Section 3 of R.A. No. 7610. Records of the Senate deliberation show that "child prostitution" was originally defined as "minors, whether male or female, who, for money or profit, indulge in sexual intercourse or lascivious conduct are deemed children exploited in prostitution."^[119] With the late addition of the phrase "or subject to other sexual abuse," which connotes "child abuse," and in line with the policy of R.A. No. 7610 to provide stronger deterrence and special protection of children against child abuse, We take it to mean that Section 5(b) also intends to cover those crimes of child sexual abuse already punished under the RPC, and not just those children exploited in prostitution or subjected to other sexual abuse, who are coerced or intimidated to indulge in sexual intercourse or lascivious conduct. This is the reason why We disagree with the view of Justice Perlas-Bernabe that the first proviso under Section 5(b) — which provides that "when the victim is under twelve (12) years of age, the perpetrators shall be prosecuted under x x x the Revised Penal Code, for rape or lascivious conduct, as the case may be" — is a textual indicator that R.A. No. 7610 has a specific application only to children who are pre-disposed to "consent" to a sexual act because they are "exploited in prostitution or subject to other sexual abuse," thereby negating the ponente's theory of general applicability.

In People v. Larin,^[120] We held that 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. Under R.A. No. 7610, children are "persons below eighteen years of age or those unable to fully take care of themselves or protect themselves from abuse, neglect, cruelty, exploitation or discrimination because of their age or mental disability or condition." Noting that the law covers not only a situation in which a child is abused for profit, but also one in which a child, through coercion or intimidation, engages in any lascivious conduct, We ruled that Section 5(b) of R.A. No. 7610 penalizes not only child prostitution, the essence of which is profit, but also other forms of sexual abuse of children. We stressed that this is clear from the deliberations of the Senate, and that the law does not confine its protective mantle only to children under twelve (12) years of age.

In Amployo v. People,^[121] citing Larin, We observed that Section 5 of R.A. No. 7610 does not merely cover a situation of a child being abused for profit, but also one in which a child engages in any lascivious conduct through coercion or intimidation. As case law has it, 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. This is especially true in the case of young, innocent and immature girls who could not be expected to act with equanimity of disposition and with nerves of steel. Young girls cannot be expected to act like adults under the same circumstances or to have the courage and intelligence to disregard the threat.

In Olivarez vs. Court of Appeals,^[122] We 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. We 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. We stated that 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. We 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 Garingarao v. People,^[123] We 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. We further ruled that it is inconsequential that sexual abuse under R.A. No. 7610 occurred only once. Section 3(b) of R.A. No. 7610 provides that the abuse may be habitual or not. Hence, the fact that the offense occurred only once is enough to hold an accused liable for acts of lasciviousness under R.A. No. 7610.

In Quimvel,^[124] We stressed that Section 5(a) of R.A. 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. 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. This is even made clearer by the deliberations of the Senate, as cited in the landmark ruling of People v. Larin. We also added 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) of R.A. No. 7610 occurs even though the accused committed sexual abuse against the child victim only once, even without a prior sexual offense.

In Caoili,^[125] We reiterated that R.A. No. 7610 finds application when the victims of abuse, exploitation or discrimination are children or those "persons below 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." It has been settled that Section 5(b) of R.A. No. 7610 does not require a prior or contemporaneous abuse that is different from what is complained of, or that a third person should act in concert with the accused. Section 5 of R.A. No. 7610 does not merely cover a situation of a child being abused for profit, but also one in which a child is coerced to engage in lascivious conduct.

Meanwhile, Justice Marvic Mario Victor F. Leonen partly agrees with the ponencia that insertion of a finger into a minor's vagina deserves a higher penalty than prision mayor under Article 266-A, paragraph 2 in relation to Article 266-B of the RPC. However, he asserts that non­ consensual insertion of a finger in another's genitals is rape by carnal knowledge under Article 266-A, paragraph 1 of the RPC. He also reiterates his view in People v. Quimvel that Article 336 of the RPC has already been rendered ineffective with the passage of R.A. No. 8353.

We stand by our ruling in Caoili that the act of inserting a finger in another's genitals cannot be considered rape by carnal knowledge, thus:

The language of paragraphs 1 and 2 of Article 266-A of the RPC, as amended by R.A. No. 8353. provides the elements that substantially differentiate the two forms of rape, i.e., rape by sexual intercourse and rape by sexual assault. It is through legislative process that the dichotomy between these two modes of rape was created. To broaden the scope of rape by sexual assault, by eliminating its legal distinction from rape through sexual intercourse, calls for judicial legislation which We cannot traverse without violating the principle of separation of powers. The Court remains steadfast in confining its powers within the constitutional sphere of applying the law as enacted by the Legislature.

In fine, given the material distinctions between the two modes of rape introduced in R.A. No. 8353, the variance doctrine cannot be applied to convict an accused of rape by sexual assault if the crime charged is rape through sexual intercourse, since the former offense cannot be considered subsumed in the latter.^[126]

We also maintain the majority ruling in Quimvel that Sec. 4 of R.A. No. 8353 did not expressly repeal Article 336 of the RPC for if it were the intent of Congress, it would have expressly done so. Apropos is the following disquisition in Quimvel:

x x x 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, 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.

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.

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. x x x

x x x x

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, 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 discriminate 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. ^[127]

To be sure, deliberation of Senate Bill No. 950 which became R.A. No. 8353 reveals the legislative intent not to repeal acts of lasciviousness under Article 336 of the RPC as a crime against chastity, but only to reclassify rape as a crime against persons, thus:

Senator Enrile: x x x As I indicated last week, I will support this bill but I would like to clarify some points just to set the matters into the Record.

Mr. President, the first thing I would like to find out is the status of this bill — whether this is going to be a statutory crime or a part of the crimes defined in the Revised Penal Code.

There is a big difference between these two concepts, Mr. President, because all of us who have studied law know in our course in Criminal Law two of crimes: Crimes which we call malum prohibitum which are statutory crimes and mala in se or crimes that would require intent. That is why we always recite the principle that actus non facit reum, nisi mens sit rea. Because in every crime defined in the Revised Penal Code, we required what they call a mens rea, meaning intent to commit a crime in almost all cases: attempted, frustrated and consummated.

Now, am I now to understand, Madam Sponsor, that this type of crime will be taken out of the Revised Penal Code and shall be covered by a special law making it a statutory crime rather than a crime that is committed with the accompaniment of intent.

Senator Shahani: Mr. President, we will recall that this was the topic of prolonged interpellations not only by Senator Enrile, but also by Senator Sotto. In consultation with Senator Roco - we were not able to get in touch with Senator Santiago — we felt that the purpose of this bill would be better served if we limited the bill to amending Article 335 of the Revised Penal Code, at the same time expanding the definition of rape, reclassifying the same as a crime against persons, providing evidentiary requirements and procedures for the effective prosecution of offenders, and institutionalizing measures for the protection and rehabilitation of rape victims and for other purposes. In other words, it stays within the Revised Penal Code, and rape is associated with criminal intent.

Having said this, it means that there will be a new chapter. They are proposing a new chapter to be known as Chapter III on rape, under Title 8 of the Revised Penal Code. There it remains as a crime against persons and no longer as a crime against chastity, but the criminal intent is retained.

Senator Enrile. So, the distinction between rape as a crime, although now converted from a crime against chastity to a crime against persons, and seduction and act of lasciviousness would be maintained. Am I correct in this, Mr. President?

Senator Shahani. That is correct, Mr. President.^[128]

In light of the foregoing disquisition, We hold that Tulagan was aptly prosecuted for sexual assault under paragraph 2, Article 266-A of the RPC in Criminal Case. No. SCC-6210 because it was alleged and proven that AAA was nine (9) years old at the time he inserted his finger into her vagina. Instead of applying the penalty under Article 266-B of the RPC, which is prision mayor, the proper penalty should be that provided in Section 5(b), Article III of R.A. No. 7610, which is reclusion temporal in its medium period. This is because AAA was below twelve (12) years of age at the time of the commission of the offense, and that the act of inserting his finger in AAA's private part undeniably amounted to "lascivious conduct."^[129] Hence, the proper nomenclature of the offense should be Sexual Assault under paragraph 2, Article 266-A of the RPC, in relation to Section 5(b), Article III of R.A. No. 7610.

Applying the Indeterminate Sentence Law, the maximum term of the indeterminate penalty shall be that which could be properly imposed under the law, which is fifteen (15) years, six (6) months and twenty (20) days of reclusion temporal. On the other hand, the minimum term shall be within the range of the penalty next lower in degree, which is reclusion temporal in its minimum period, or twelve (12) years and one (1) day to fourteen (14) years and eight (8) months. Hence, Tulagan should be meted the indeterminate sentence of twelve (12) years, ten (10) months and twenty-one (21) days of reclusion temporal, as minimum, to fifteen (15) years, six (6) months and twenty (20) days of reclusion temporal, as maximum.

In Criminal Case No. SCC-6211 for statutory rape, We affirm that Tulagan should suffer the penalty of reclusion perpetua in accordance with paragraph 1(d), Article 266-A in relation to Article 266-B of the RPC, as amended by R.A. No. 8353.

Damages

For the sake of consistency and uniformity, We deem it proper to address the award of damages in cases of Sexual Assault under paragraph 2, Article 266-A of the RPC in relation to Section 5(b) of R.A. No. 7610, and Acts of Lasciviousness under Article 336 of the RPC in relation to Section 5(b) of R.A. No. 7610. Considering that the imposable penalties for the said two crimes are within the range of reclusion temporal, the award of civil indemnity and moral damages should now be fixed in the amount of P50,000.00 each. The said amount is based on People v. Jugueta^[130] which awards civil indemnity and moral damages in the amount of P50,000.00 each in cases of homicide where the imposable penalty is reclusion temporal. In case exemplary damages are awarded due to the presence of any aggravating circumstance, to set a public example, or to deter elders who abuse and corrupt the youth, then an equal amount of P50,000.00 should likewise be awarded.

The said award of civil indemnity, moral damages and exemplary damages should be distinguished from those awarded in cases of: (1) Acts of Lasciviousness under Article 336 of the RPC where the imposable penalty is prision correccional, the amount of civil indemnity and moral damages should now be fixed at P20,000.00 while exemplary damages, if warranted, should also be P20,000.00; (2) Sexual Assault under paragraph 2, Article 266-A of the RPC where the imposable penalty is prision mayor, the award of civil indemnity and moral damages should be fixed at P30,000.00 each, while the award of exemplary damages, if warranted, should also be P30,000.00 pursuant to prevailing jurisprudence;^[131] and (3) Lascivious conduct under Section 5(b) of R.A. No. 7610, when the penalty of reclusion perpetua is imposed, and the award of civil indemnity, moral damages and exemplary damages is P75,000.00 each.

The justification for the award of civil indemnity, moral damages and exemplary damages was discussed in People v. Combate,^[132] as follows:

First, civil indemnity ex delicto is the indemnity authorized in our criminal law for the offended party, in the amount authorized by the prevailing judicial policy and apart from other proven actual damages, which itself is equivalent to actual or compensatory damages in civil law. This award stems from Article 100 of the RPC which states, "Every person criminally liable for a felony is also civilly liable."

Civil liability ex delicto may come in the form of restitution, reparation, and indemnification. Restitution is defined as the compensation for loss; it is full or partial compensation paid by a criminal to a victim ordered as part of a criminal sentence or as a condition for probation. Likewise, reparation and indemnification are similarly defined as the compensation for an injury, wrong, loss, or damage sustained. Clearly, all of these correspond to actual or compensatory damages defined under the Civil Code.

x x x x

The second type of damages the Court awards are moral damages, which are also compensatory in nature. Del Mundo v. Court of Appeals expounded on the nature and purpose of moral damages, viz.:

Moral damages, upon the other hand, may be awarded to compensate one for manifold injuries such as physical suffering, mental anguish, serious anxiety, besmirched reputation, wounded feelings and social humiliation. These damages must be understood to be in the concept of grants, not punitive or corrective in nature, calculated to compensate the claimant for the injury suffered. Although incapable of exactness and no proof of pecuniary loss is necessary in order that moral damages may be awarded, the amount of indemnity being left to the discretion of the court, it is imperative, nevertheless, that (1) injury must have been suffered by the claimant, and (2) such injury must have sprung from any of the cases expressed in Article 2219 and Article 2220 of the Civil Code x x x.

Similarly, in American jurisprudence, moral damages are treated as "compensatory damages awarded for mental pain and suffering or mental anguish resulting from a wrong." They may also be considered and allowed "for resulting pain and suffering, and for humiliation, indignity, and vexation suffered by the plaintiff as result of his or her assailant's conduct, as well as the factors of provocation, the reasonableness of the force used, the attendant humiliating circumstances, the sex of the victim, [and] mental distress."

The rationale for awarding moral damages has been explained in Lambert v. Heirs of Rey Castillon: "[T]he award of moral damages is aimed at a restoration, within the limits possible, of the spiritual status quo ante; and therefore, it must be proportionate to the suffering inflicted."

Corollarily, moral damages under Article 2220 of the Civil Code also does not fix the amount of damages that can be awarded. It is discretionary upon the court, depending on the mental anguish or the suffering of the private offended party. The amount of moral damages can, in relation to civil indemnity, be adjusted so long as it does not exceed the award of civil indemnity.

x x x x

Being corrective in nature, exemplary damages, therefore, can be awarded, not only due to the presence of an aggravating circumstance, but also where the circumstances of the case show the highly reprehensible or outrageous conduct of the offender. In much the same way as Article 2230 prescribes an instance when exemplary damages may be awarded, Article 2229, the main provision, lays down the very basis of the award. Thus, in People v. Matrimonio, the Court imposed exemplary damages to deter other fathers with perverse tendencies or aberrant sexual behavior from sexually abusing their own daughters. Also, in People v. Cristobal, the Court awarded exemplary damages on account of the moral corruption, perversity and wickedness of the accused in sexually assaulting a pregnant married woman. In People of the Philippines v. Cristino Cañada, People of the Philippines v. Pepito Neverio and People of the Philippines v. Lorenzo Layco, Sr., the Court awarded exemplary damages to set a public example, to serve as deterrent to elders who abuse and corrupt the youth, and to protect the latter from sexual abuse.^[133]

In summary, the award of civil indemnity, moral damages and exemplary damages in Acts of Lasciviousness under Article 336 of the RPC, Acts of Lasciviousness in relation to Section 5(b) of R.A. No. 7610, Lascivious Conduct under Section 5(b) of R.A. No. 7610, Sexual Assault under paragraph 2, Article 266-A of the RPC, and Sexual Assault in relation to Section 5(b) of R.A. No. 7610, are as follows:

Crime	Civil Indemnity	Moral Damages	Exemplary Damages[134]
Acts of Lasciviousness under Article 336 of the RPC [Victim is of legal age]	P20,000.00	P20,000.00	P20,000.00
Acts of lasciviousness in relation to Section 5(b) of R.A. No. 7610 [Victim is a child under 12 years old or is demented]	P50,000.00	P50,000.00	P50,000.00
Sexual Abuse or Lascivious Conduct under Section 5(b) of R.A. No. 7610 [Victim is a child 12 years old and below 18, or above 18 under special circumstances]	P75,000.00 (If penalty imposed is reclusion perpetua)	P75,000.00 (If penalty imposed is reclusion perpetua)	P75,000.00 (If penalty imposed is reclusion perpetua)
	P50,000.00 (If penalty imposed is within the range of reclusion temporal medium)	P50,000.00 (If penalty imposed is within the range of reclusion temporal medium)	P50,000.00 (If penalty imposed is within the range of reclusion temporal medium)
Sexual Assault under Article 266-A(2) of the RPC [Victim is of legal age]	P30,000.00	P30,000.00	P30,000.00
Sexual Assault under Article 266-A(2) of the RPC in relation to Section 5(b) of R.A. No. 7610 [Victim is a child under 12 years old or is demented]	P50,000.00	P50,000.00	P50,000.00

It is settled that an award of civil indemnity ex delicto is mandatory upon a finding of the fact of rape, and moral damages may be automatically awarded in rape cases without need of proof of mental and physical suffering. The award of exemplary damages is also called for to set a public example and to protect the young from sexual abuse. As to the civil liability in Criminal Case No. SCC-6210 for sexual assault under paragraph 2, Article 266-A of the RPC, in relation to Section 5(b) of R.A. No. 7610, Tulagan should, therefore, pay AAA the amounts of P50,000.00 as civil indemnity, P50,000.00 as moral damages, and P50,000.00 as exemplary damages.

Anent the award of damages in Criminal Case No. SCC-6211 for statutory rape, We modify the same in line with the ruling in People v. Jugueta,^[135] where We held that "when the circumstances surrounding the crime call for the imposition of reclusion perpetua only, there being no ordinary aggravating circumstance, the proper amounts should be P75,000.00 as civil indemnity, P75,000.00 as moral damages, and P75,000.00 as exemplary damages." Also in consonance with prevailing jurisprudence, the amount of damages awarded shall earn interest at the rate of six percent (6%) per annum from the finality of this judgment until said amounts are fully paid.

Over and above the foregoing, We observe that despite the clear intent of R.A. No. 7610 to provide for stronger deterrence and special protection against child abuse, the penalty for violation of Section 5(b) of R.A. No. 7610 [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,^[136] Article XII of R.A. No. 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,^[137] whereas as the minimum term in the case of the older victims shall be taken from prision mayor medium to reclusion temporal minimum.^[138] 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,^[139] 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.^[140] Thus, a corrective legislation is the proper remedy to address the noted incongruent penalties for acts of lasciviousness committed against a child.

We further note that R.A. No. 8353 did not expressly repeal Article 336 of the RPC, as amended. Section 4 of R.A. No. 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. No. 8353, except in sexual assault as a form of rape. To recall, R.A. No. 8353 only modified Article 336 of the RPC, as follows: (1) by carrying over to acts of lasciviousness the additional circumstances^[141] 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. Hence, Article 336 of the RPC, as amended, is still a good law despite the enactment of R.A. No. 8353 for there is no irreconcilable inconsistency between their provisions. When the lascivious act is not covered by R.A. No. 8353, then Article 336 of the RPC is applicable, except when the lascivious conduct is covered by R.A. No. 7610.

We are 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) of R.A. 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 prision mayor.

In People v. Chingh,^[142] We noted that the said fact is undeniably unfair to the child victim, and it was not the intention of the framers of R.A. No. 8353 to have disallowed the applicability of R.A. No. 7610 to sexual abuses committed to children. We held that despite the passage of R.A. No. 8353, R.A. No. 7610 is still a 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."^[143]

In Dimakuta, We added that where the lascivious conduct is covered by the definition under R.A. No. 7610, where the penalty is reclusion temporal medium and the said act is, likewise, covered by sexual assault under Art. 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. No. 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 Art. 266-A, par. 2 of the RPC and not R.A. No. 7610, unless the victim is at least 18 years old 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 of sexual abuse under R.A. No. 7610. The reason for the foregoing is that with respect to lascivious conduct, R.A. No. 7610 affords special protection and stronger deterrence against child abuse, as compared to R.A. No. 83.53 which specifically amended the RPC provisions on rape.

Finally, despite the enactment of R.A. No. 8353 more than 20 years ago in 1997, We had been consistent in our rulings in Larin, Olivarez, and Garingarao, Quimvel and Caoili, all of which uphold the intent of R.A. No. 7610 to provide special protection of children and stronger deterrence against child abuse. Judicial stability compels to stand by, but not to abandon, our sound rulings: [1] that Section 5(b), Article III of R.A. No. 7610 penalizes not only child prostitution, the essence of which is profit, but also other forms of sexual abuse wherein a child engages in sexual intercourse or lascivious conduct through coercion or influence; and [2] that it is inconsequential that the sexual abuse occurred only once. Our rulings also find textual anchor on Section 5, Article III of R.A. No. 7610, which explicitly states that a child is deemed "exploited in prostitution or subjected to other sexual abuse," when the child indulges in sexual intercourse or lascivious conduct for money, profit or any other consideration, or under the coercion or influence of any adult, syndicate or group, as well as on Section 3(b), Article I thereof, which clearly provides that the term "child abuse" refers to the maltreatment, whether habitual or not, of the child which includes sexual abuse.

If the lawmakers disagreed with our interpretation, they could have easily amended the law, just like what they did when they enacted R.A. No. 10591^[144] [Amendment on the provision of use of firearm in the commission of a crime], R.A. No. 10951^[145] [Amendments to certain penalty and fines under the Revised Penal Code] and R.A. No. 10707^[146] [Amendments to the Probation Law] after We rendered People v. Ladjaalam,^[147] Corpuz v. People,^[148] Colinares v. People and Dimakuta v. People, respectively, and their silence could only be construed as acquiescence to our rulings.

WHEREFORE, PREMISES CONSIDERED, the appeal is DENIED. The Joint Decision dated February 10, 2014 of the Regional Trial Court in Criminal Case Nos. SCC-6210 and SCC-6211, as affirmed by the Court of Appeals Decision dated August 17, 2015 in CA-G.R. CR-HC No. 06679, is AFFIRMED with MODIFICATIONS. We find accused-appellant Salvador Tulagan:

1.	Guilty beyond reasonable doubt of Sexual Assault under paragraph 2, Article 266-A of the Revised Penal Code, in relation to Section 5(b) of Republic Act No. 7610, in Criminal Case No. SCC-6210, and is sentenced to suffer the indeterminate penalty of twelve (12) years, ten (10) months and twenty-one (21) days of reclusion temporal, as minimum, to fifteen (15) years, six (6) months and twenty (20) days of reclusion temporal, as maximum. Appellant is ORDERED to PAY AAA the amounts of P50,000.00 as civil indemnity, P50,000.00 as moral damages, and P50,000.00 as exemplary damages.
2.	Guilty beyond reasonable doubt of Statutory Rape under Article 266-A(1)(d) and penalized in Article 266-B of the Revised Penal Code, in Criminal Case No. SCC-6211, and is sentenced to suffer the penalty of reclusion perpetua with modification as to the award of damages. Appellant is ORDERED to PAY AAA the amounts of P75,000.00 as civil indemnity, P75,000.00 as moral damages, and P75,000.00 as exemplary damages.

Legal interest of six percent (6%) per annum is imposed on all damages awarded from the date of finality of this Decision until fully paid.

Let a copy of this Decision be furnished the Department of Justice, the Office of the Solicitor General, the Office of the Court Administrator, and the Presiding Justice of the Court of Appeals, for their guidance and information, as well as the House of Representatives and the Senate of the Philippines, as reference for possible statutory amendments on the maximum penalty for lascivious conduct under Section 5(b), Article III of R.A. No. 7610 when the victim is under 12 years of age [reclusion temporal medium], and when the victim is 12 years old and below 18, or 18 or older under special circumstances [reclusion temporal medium to reclusion perpetua] under Section 3(a) of R.A. No. 7610.

SO ORDERED.

Bersamin, (C.J.), Carpio, Del Castillo, A. Reyes, Jr., Gesmundo, J. Reyes, Jr., Hernando, and Carandang, JJ., concur.
Perlas-Bernabe, J., please see separate opinion.
Leonen, J., concurring in the result see separate opinion.
Jardeleza, J., I join separate concurring and dissenting opinion of J. Caguioa.
Caguioa, J., please see separate concurring and dissenting opinion.
Lazaro-Javier, J., no part.

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NOTICE OF JUDGMENT

Sirs/Mesdames:

Please take notice that on March 12, 2019 a Decision, copy attached herewith, was rendered by the Supreme Court in the above-entitled case, the original of which was received by this Office on April 12, 2019 at 11:10 a.m.

Very truly yours, EDGAR O. ARICHETA Clerk of Court By: (SGD.) ANNA-LI R. PAPA-GOMBIO Deputy Clerk of Court En Banc

 

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^[1] Penned by Associate Justice Amy C. Lazaro-Javier (now a member of this Court), with Associate Justices Celia C. Librea-Leagogo and Melchor Q.C. Sadang, concurring; rollo, pp. 2-38.

^[2] CA rollo, pp. 38-50.

^[3] The identity of the victim or any information to establish or compromise her identity, as well as those of her immediate family or household members, shall be withheld pursuant to Republic Act 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; People v. Cabalquinto, 533 Phil. 703 (2006); and Amended Administrative Circular No. 83-2015 dated September 5, 2017, Subject: Protocols and Procedures in the Promulgation, Publication, and Posting on the Websites of Decisions, Final Resolutions, and Final Orders Using Fictitious Names/Personal Circumstances.

^[4] CA rollo, pp. 49-50.

^[5] Rollo, pp. 36-37. (Emphasis in the original)

^[6] People v. Gahi, 727 Phil. 642 (2014).

^[7] Id. at 658.

^[8] People v. Appegu, 429 Phil. 467,477 (2002).

^[9] 695 Phil. 576 (2012).

^[10] Id. at 588-589. (Citations omitted).

^[11] People v. Barberan, et al., 788 Phil. 103, 113 (2016).

^[12] See People v. Ilogon, 788 Phil. 633, 643-644 (2016).

^[13] People v. Jugueta, 783 Phil. 806 (2016).

^[14] Article 266-A. Rape; When And How Committed. — Rape is Committed —

xxxx

2) By any person who, under any of the circumstances mentioned in paragraph 1 hereof, shall commit an act of sexual assault by inserting his penis into another person's mouth or anal orifice, or any instrument or object, into the genital or anal orifice of another person.

^[15] 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.

^[16] PO3 Sombilon, Jr. v. People of the Philippines, 617 Phil. 187, 195-196 (2009).

^[17] 496 Phil. 747 (2005).

^[18] Id. at 756. (Emphasis added).

^[19] See Records of the Bicameral Conference Committee on the Disagreeing Provisions of Senate Bill No. 950 and House Bill No. 6265 dated February 19, 1997.

^[20] Journal of the House of Representatives, Unfinished Business: Second Reading of Committee Report No. 224 on House Bill No. 6265.

^[21] Article 266-A. Rape: When And How Committed. - Rape is committed:

x x x x

2) By any person who, under any of the circumstances mentioned in paragraph 1 hereof, shall commit an act of sexual assault by inserting his penis into another person's mouth or anal orifice, or any instrument or object, into the genital or anal orifice of another person.

^[22] 771 Phil. 641 (2015).

^[23] Id. at 670.

^[24] Id. at 670-671.

^[25] Supra note 22.

^[26] Id. at 668-669. (Emphasis, underscoring; italics added in the original)

^[27] G.R. No. 196848, August 8, 2017, 835 SCRA 107; penned by Associate Justice Noel Gimenez Tijam.

^[28] Id. at 153-154. (Emphasis added).

^[29] Supra note 27.

^[30] Id.

^[31] 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.

^[32] Article 266-8. Penalties. - Rape under paragraph 1 of the next preceding article shall be punished by reclusion perpetua. x x x.

^[33] 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.

^[34] Underscoring added.

^[35] G.R. No. 214497, April 18, 2017, 823 SCRA 192.

^[36] Id. See Separate Concurring Opinion and Majority Opinion.

^[37] Chinese Flour Importers Association v. Price Stabilization Board, 89 Phil. 439 (1951); Arenas v. City of San Carlos, 172 Phil. 306 (1978).

^[38] Quimvel v. People, supra note 35, at 268-269. (Emphasis added).

^[39] See Separate Concurring Opinion and Majority Opinion.

^[40] 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.

^[41] Item II (1) of A.M. No. 15-08-02-SC, entitled "Guidelines for the Proper Use of the Phrase 'Without Eligibility for Parole' in Indivisible Penaties, "dated August 4, 2015 provides:

(1) In cases where the death penalty is not warranted, there is no need to use the phrase "without eligibility for parole" to qualify the penalty of reclusion perpetua; it is understood that convicted persons penalized with an indivisible penalty are not eligible for parole; x x x

^[42] Section 2(g) of the Rules and Regulations on the Reporting and Investigation of Child Abuse Cases states that "sexual abuse" includes the employment, use, persuasion, inducement, enticement or coercion of a child to engage in or assist another person to engage in, sexual intercourse or lascivious conduct or the molestation, prostitution, or incest with children.

^[43] Section 3(h) of the Rules and Regulations on the Reporting and Investigation of Child Abuse Cases states that "lascivious conduct" means the intentional touching, either directly or through clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks, or the introduction of any object into the genitalia, anus or mouth, of any person, whether of the same or opposite sex, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person, bestiality, masturbation, lascivious exhibition of the genitals or pubic area of a person.

^[44] 560 Phil. 119 (2007); penned by Associate Justice Renato C. Corona.

^[45] Supra, at 138.

^[46] Id. at 139-140.

^[47] See Separate Concurring Opinion in Quimvel v. People, supra note 35.

^[48] People v. Brioso, 788 Phil. 292, 306 (2016).

^[49] The elements of violation of the first clause of Section 5(b) of R.A. No. 7610 are: (1) the accused commits the act of sexual intercourse or lascivious conduct; (2) the act is performed with a child exploited in prostitution or other sexual abuse; and (3) the child, whether male or female, is 12 years old or below 18. On the other hand, the elements of statutory rape under paragraph 1 (d), Article 266-A of the RPC are: (1) the offender is a man; (2) the offender shall have carnal knowledge of a woman; and (3) the offended party is under 12 years of age or is demented.

^[50] 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.

^[51] Section 5. Child Prostitution and Other Sexual Abuse. — Children, whether male or female, who for money, profit, or any other consideration, or due to coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse.

The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following:

(a) Those who engage in or promote, facilitate or induce child prostitution which include, but are not limited to, the following:

(1) Acting as a procurer of a child prostitute;
(2) Inducing a person to be a client of a child prostitute by means of written or oral advertisements or other similar means;
(3) Taking advantage of influence or relationship to procure a child as 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.

^[52] Article 17. Principals. -The following are considered principals:

1. Those who take a direct part in the execution of the act;
2. Those who directly force or induce others to commit it;
3. Those who cooperate in the commission of the offense by another act without which it would not have been accomplished.

^[53] (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.

^[54] 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 whom 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.
x x x

^[55] People v. Bentayo, G.R. No. 216938, June 5, 2017, 825 SCRA 620, 626; People v. Mayola, 802 Phil. 756, 762 (2016).

^[56] Art. 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.

^[57] 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.

^[58] People v. Tubillo, G.R. No. 220718, June 21, 2017, 828 SCRA 96; penned by Associate Justice Jose Catral Mendoza.

^[59] 599 Phil. 390 (2009); penned by Associate Justice Renato C. Corona.

^[60] 676 Phil. 16 (2011); penned by Associate Justice Diosdado M. Peralta.

^[61] Supra note 59, at 395-396.

^[62] People v. Pangilinan, supra note 60, at 37.

^[63] People v. Tubillo, supra note 58, at 107.

^[64] "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. [Section 2(h) Rules and Regulations on the Reporting and Investigation of Child Abuse Cases]

^[65] Issued in October 1993.

^[66] 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 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. (Emphasis supplied)

^[67] Id.

^[68] Section 5. Child Prostitution and Other Sexual Abuse. -x x x.

(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.

^[69] AN ACT DECRIMINALIZING VAGRANCY, AMENDING FOR THIS PURPOSE ARTICLE 202 OF ACT NO. 3815, AS AMENDED, OTHERWISE KNOWN AS THE REVISED PENAL CODE.

^[70] Section 3(h) of the Rules and Regulations on the Reporting and Investigation of Child Abuse Cases states that "lascivious conduct" means the intentional touching, either directly or through clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks, or the introduction of any object into the genitalia, anus or mouth, of any person, whether of the same or opposite sex, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person, bestiality, masturbation, lascivious exhibition of the genitals or public area of a person.

^[71] Section 3. Grounds. - The accused may move to quash the complaint or information on any of the following grounds:

x x x x

(f) That more than one offense is charged except when a single punishment for various offenses is prescribed by law;

^[72] Republic of the Philippines v. Yahon, 736 Phil. 397, 410 (2014).

^[73] Id. at 410-411.

^[74] The "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 themselves from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability or condition. [Section 3(a), R.A. No. 7610]

"Child" shall refer to a person below eighteen (18) years of age or one over said age and who, upon evaluation of a qualified physician, psychologist or psychiatrist, is found to be incapable of taking care of himself fully because of a physical or mental disability or condition or of protecting himself from abuse. [Section 2(a), Rules and Regulations on the Reporting and Investigation of Child Abuse Cases]

^[75] "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. [Section 2(h), Rules and Regulations on the Reporting and Investigation of Child Abuse Cases]

^[76] Subject to R.A. No. 9346 entitled "An Act Prohibiting the Imposition of Death Penalty in the Philippines."

^[77] "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. [Section 3(g) of the Rules and Regulations on the Reporting and Investigation of Child Abuse Cases]

^[78] Supra note 22.

^[79] Supra note 35; penned by Associate Justice Presbitero J. Velasco, Jr.

^[80] People v. Ursua, G.R. No. 218575, October 4, 2017, 842 SCRA 165, 178; Malto v. People, supra note 44, at 135-136.

^[81] Id.

^[82] Emphasis supplied.

^[83] Record of the Senate, Vol. II, No. 58, December 2, 1991, pp. 793-794.

^[84] Record of the Senate, Vol. I, No. 7, August 1, 1991, p. 262.

^[85] Id.

^[86] Section 3. Definition of Terms. -

(b) "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 treatment to an injured child resulting in serious impairment of his growth and development or in his permanent incapacity or death.

^[87] 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 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 for 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;

^[88] Record of the Senate Vol. IV, No. 116, May 9, 1991, pp. 333-334.

^[89] Supra note 85.

^[90] Supra note 42.

^[91] Issued in October 1993.

^[92] AN ACT PROVIDING FOR STRONGER DETERRENCE AND SPECIAL PROTECTION AGAINST CHILD ABUSE AND EXPLOITATION, PROVIDING LEGAL PRESUMPTIONS AND PENALTIES FOR ITS VIOLATIONS.

^[93] Record of the Senate, December 2, 1991, Volume II, No. 58, pp. 793-794.

^[94] Id.

^[95] Record of the Senate on Senate Bill No. 1209, Volume III, No. 104, pp. 1204-1205. (Emphasis added).

^[96] See Separate Concurring Opinion in Quimvel v. People, supra note 36. (Emphasis added).

^[97] 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.

^[98] Presidential Decree No. 968.

^[99] 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.

^[100] Centeno v. Judge Villalon-Pornillos, 306 Phil. 219, 230 (1994).

^[101] U.S. v. Go Chico, 14 Phil. 128, 140 (1909)

^[102] People v. Manantan, 115 Phil. 657, 665 (1962)

^[103] Akbayan-Youth v. Comelec, 407 Phil. 618, 639 (2001).

^[104] Record of the Senate, Vol. I , No. 7, August 1, 1991, pp. 258-259. (Emphasis added).

^[105] Id.

^[106] 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]

^[107] Citations omitted.

^[108] Record of the Senate, Vol. IV, No. 116, May 9, 1991, pp. 334-335.

^[109] Id. at 336-337.

^[110] 272 Phil. 532 (1991).

^[111] Deliberation of the Committee on Justice, December 19, 1989.

^[112] 503 Phil. 421 (2005).

^[113] People v. Francisco Ejercito, G.R. No. 229861, July 2, 2018.

^[114] Id.

^[115] Penned by Senior Associate Justice Antonio T. Carpio.

^[116] See Justice Carpio's Dissenting Opinion in Quimvel v. People, supra note 35.

^[117] Record of the Senate, Vol. I, No. 7, August 1, 1991, p. 262.

^[118] Commissioner of Customs v. Relunia, 105 Phil. 875 (1959).

^[119] Records of the Senate, Vol. IV, No. 116, May 9, 1991 , p. 33.

^[120] 357 Phil. 987 (1998).

^[121] Supra note 17.

^[122] Supra note 111. Penned by Associate Justice Consuela 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.

^[123] 669 Phil. 512 (2011).

^[124] Supra note 35.

^[125] Supra note 27, at 144.

^[126] Supra note 27, at 143.

^[127] Supra note 35, at 247.

^[128] Record of the Senate, Bill on Second Reading, S. No. 950- Special Law on Rape, July 29, 1996.

^[129] Section 3(h) of R.A. No. 7610 states that "lascivious conduct" means the intentional touching, either directly or through clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks, or the introduction of any object into the genitalia, anus or mouth, of any person, whether of the same or opposite sex, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person, bestiality, masturbation, lascivious exhibition of the genitals or pubic area of a person.

^[130] Supra note 13.

^[131] People v. Brioso, supra note 48; Ricalde v. People, 751 Phil. 793 (2015).

^[132] 653 Phil. 487 (2010).

^[133] Id. at 504-508. (Emphasis added; citations omitted).

^[134] If an aggravating circumstance is present or to set as a public example to deter sexual abuse.

^[135] Supra note 13.

^[136] 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.

^[137] Ranging from 12 years and 1 day to 14 years and 8 months.

^[138] Ranging from 8 years 1 day to 14 years and 8 months.

^[139] Lamb v. Phipps, 22 Phil. 456 (1912).

^[140] People v. De Guzman, 90 Phil. 132 (1951).

^[141] Aside from the use of force or intimidation, or when the woman is deprived of reason or otherwise unconscious.

^[142] 661 Phil. 208 (2011).

^[143] R.A. No. 7610, Art. I, Sec. 3(a).

^[144] AN ACT PROVIDING FOR A COMPREHENSIVE LAW ON FIREARMS AND AMMUNITION AND PROVIDING PENALTIES FOR VIOLATIONS THEREOF.

^[145] AN ACT ADJUSTING THE AMOUNT OR THE VALUE OF PROPERTY A ND DAMAGE ON WHICH A PENALTY IS BASED, AND THE FINES IMPOSED UNDER THE REVISED PENAL CODE, AMENDING FOR THE PURPOSE ACT NO. 3815, OTHERWISE KNOWN AS "THE REVISED PENAL CODE," AS AMENDED.

^[146] Supra note 98.

^[147] 395 Phil. 1 (2005).

^[148] 734 Phil. 353 (2014)

---

PERLAS-BERNABE, J.:

While I agree with the resulting verdict against accused-appellant Salvador Tulagan (Tulagan), I tender this Opinion to address the relevant points stated in the ponencia anent the proper application of Section 5 (b), Article III of Republic Act No. (RA) 7610^[1] in sexual abuse cases involving minors. As will be made evident below, there is a fundamental difference between the ponencia's and my underlying postulations, which therefore precludes me from concurring with the majority.

At its core, the ponencia propounds an expansive view on the application of Section 5 (b), Article III of RA 7610. Citing Quimvel v. People^[2] (Quimvel), the ponencia explains that RA 7610 does not only cover a situation where a child is abused for profit but also one in which a child, through coercion or intimidation, engages in sexual intercourse or lascivious conduct.^[3] To recall, the majority ruling in Quimvel observed that "[a]lthough the presence of an offeror or a pimp is the typical set up 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."^[4] As such, "[i]t 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). [Section 5, Article III] of RA 7610 even provides that the offense can be committed by 'any adult, syndicate or group,' without qualification."^[5] Based on these pronouncements, the ponencia therefore concludes that the mere act of sexual abuse against any child qualifies him or her to be "subject to other sexual abuse," and hence, under the coverage of RA 7610.^[6]

In addition, the ponencia points out that the policy of RA 7610 is "to provide stronger deterrence and special protection to children from all forms of abuse, neglect, cruelty, exploitation, discrimination and other conditions prejudicial to their development."^[7] It further cites the sponsorship speeches of Senators Jose Lina (Sen. Lina) and Santanina Rasul (Sen. Rasul) to explain that the intent of RA 7610 is to protect all children against all forms of abuse,^[8] as well as the amendment introduced by Senator Edgardo J. Angara (Sen. Angara), i.e., the addition of the phrase "or other sexual abuse" to "exploited in prostitution," which supposedly highlights the intention of Congress to expand the scope of Section 5, Article III of RA 7610 to incorporate the broader concept of "child abuse."^[9] With these in tow, the ponencia thus finds it "hard to understand why the legislature would enact a penal law on child abuse that would create an unreasonable classification between those who are considered ['exploited in prostitution or subject to other sexual abuse' (EPSOSA for brevity)] and those who are not."^[10] However, the ponencia qualifies that RA 7610 would not apply if the minor is under twelve (12) years of age since the accused would be punished under the provisions on statutory rape.^[11]

With all due respect, I disagree that RA 7610 would be generally applicable to all cases of sexual abuse involving minors, except those who are under twelve (12) years of age. After much reflection, I instead concur with the views originally advanced by Senior Associate Justice Antonio T. Carpio (Justice Carpio) and Associate Justice Alfredo Benjamin S. Caguioa (Justice Caguioa)^[12] that Section 5 (b), Article III of RA 7610 only applies in instances where the child-victim is "exploited in prostitution or subject to other sexual abuse." To my mind, this limited view, as opposed to the ponencia's expansive view, is not only supported by several textual indicators both in the law and the deliberations, it also squares with practical logic and reason, as will be explained below:

(1) As the law's title itself denotes, RA 7610 was intended to provide stronger deterrence and special protection against child abuse, exploitation and discrimination.^[13] The idea of providing "stronger deterrence" and "special protection" connotes that Congress was not only establishing a more robust form of penal legislation, it was also creating something new. Thus, to suppose that RA 7610 would generally cover acts already punished under the Revised Penal Code (RPC) would defy the operational logic behind the introduction of this special law. Notably, the Court can take judicial notice of the fact that in the past decades of increasing modernity, Congress has been passing laws to penalize reprehensible acts which were not contemplated under the RPC. With respect to children, special penal laws such as the Child and Youth Welfare Code,^[14] the Anti-Child Pornography Act of 2009,^[15] and the Anti-Violence Against Women and Their Children Act of 2004^[16] created new havens of protection which were previously uncharted by the RPC. As I see it, RA 7610, especially with its peculiar signification of children "exploited in prostitution or subject to other sexual abuse," should be similarly regarded as these laws.

To expound, neither the old provisions of the RPC nor existing jurisprudence at the time RA 7610 was passed ever mentioned the phrase "exploited in prostitution or subject to other sexual abuse." Commonsensically therefore, the concept of EPSOSA should be deemed as a novel introduction by legislature. The driving force behind this legislative innovation can be gleaned from the deliberations. As explicated in her Sponsorship Speech, Sen. Rasul recognized that one of the reasons for introducing Senate Bill No. 1209 (which later became RA 7610) was to address the lack of criminal laws involving abused children as noted by the Supreme Court in the case of People v. Ritter (Ritter).^[17] Notably, in Ritter, the Court acquitted the accused of rape on the ground that the child was not proven to be below the statutory age of twelve (12) years old nor was it proven that the sexual intercourse was attended with force or intimidation.^[18] Thus, it was observed:

[Sen.] 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. x x x

x x x x

x x x No less than the Supreme Court, in the recent case of People vs. Ritter, held that we lack criminal laws which will adequately protect street children from exploitation by pedophiles. x x x.^[19]

Borne from this legal hiatus, RA 7610 was enacted to, practically speaking, protect those who, like the child-victim in Ritter, "willingly engaged" in sexual acts, not out of a desire to satisfy their own sexual gratification, but because of their vulnerable pre-disposition as exploited children. This vulnerable pre-disposition is embodied in the concept of EPSOSA, which, as opposed to the RPC, effectively dispenses with the need to prove the lack of consent at the time the act of sexual abuse is committed. Accordingly, when it comes to a prosecution under Section 5 (b), Article III of RA 7610, consent at the time the sexual act is consummated is, unlike in the RPC, not anymore a defense. It is in this light that RA 7610 fills in the gaps of the RPC.

With these in mind, it is thus my view that RA 7610, specifically with its introduction of the EPSOSA element, is a lucid recognition by Congress that a child need not be forced, intimidated or, in any manner prevailed upon, at the time of the act's commission to be considered sexually abused or exploited; rather, it is enough that the child is put under a vulnerable pre-disposition that leads him or her to "consent" to the sexual deed. This niche situation, whether based on monetary ("exploited in prostitution") or non-monetary ("or subject to other sexual abuse") considerations, is what Section 5 (b), Article III of RA 7610 uniquely punishes. And in so doing, RA 7610 expands the range of existing child protection laws and effectively complements (and not redundantly supplants) the RPC. This intended complementarity is extant in Sen. Lina's sponsorship speech on RA 7610, viz.:

[Sen.] Lina. 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 the 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.

x x x x^[20] (Emphasis and underscoring supplied)

(2) In relation to the first point, it is noteworthy that a general view on the application of RA 7610 would also lead to an unnerving incongruence between the law's policy objective and certain penalties imposed thereunder. For instance, if we were to subscribe to the ponencia's theory that RA 7610 would generally apply to all sexual abuse cases involving minors twelve (12) years of age and above, then why would RA 7610-which was supposedly intended to provide stronger deterrence and special protection against child abuse - provide for a lower penalty for child abuse committed through sexual intercourse than that provided under the then existing RPC framework? For context, under Article 335 of the RPC prior to its amendment by RA 8353 (or the Anti-Rape Law of 1997), the crime of rape committed against a minor, who is not under twelve (12) years of age and not falling under the enumerated qualifying circumstances, is punished with the penalty of reclusion perpetua to death. On the other hand, under Section 5 (b), Article III of RA 7610, the crime of sexual abuse committed through sexual intercourse (or lascivious conduct) against a child EPSOSA is punished with the penalty of reclusion temporal in its medium period to reclusion perpetua. Clearly, it would not make sense for Congress to pass a supposedly stronger law against child abuse if the same carries a lower penalty for the same act of rape already punished under the old RPC provision.

This incongruence is only made possible if one considers Section 5 (b), Article III of RA 7610 to have overlapped with an act already punished under the existing penal code. Verily, this could not have been the intent of our lawmakers. On the other hand, respecting the complementarity between RA 7610 and RPC would cogently subserve the policy objective to provide stronger deterrence and special protection against child abuse. As Justice Caguioa astutely remarked, "[RA] 7610 and the RPC x x x have different spheres of application; they exist to complement each other such that there would be no gaps in our criminal laws."^[21] Thus, given that the application of RA 7610 is independent - and in fact, mutually exclusive­ from the RPC's rape and acts of lasciviousness provisions, the penchant of the ponencia^[22] to determine which law would apply based on which law provides the higher penalty therefor becomes unneccessary. Simply put, if (a) RA 7610 applies in a scenario where the accused sexually abuses a child who "consents" to the deed but is nonetheless EPSOSA, and (b) this case is treated separately and differently from the RPC scenario wherein the child does not consent to the sexual act because he is forced, intimidated, or otherwise prevailed upon by the accused, then there would be no quandary in choosing which law to apply based on which provides the higher penalty therefor. Neither would there be any need for corrective legislation as the ponencia suggests^[23] if only RA 7610's provisions are interpreted correctly. Again, as originally and meticulously designed by Congress, the laws on sexual abuse of minors have their own distinct spheres of application: apply RA 7610 in scenario (a); apply the RPC in scenario (b). In understanding the intent of Congress to fill in the gaps in the law, it is my position that Section 5, Article III of RA 7610 must be treated as a separate and distinct statutory complement which works side-by-side with the RPC; it should not, as the ponencia assumes, be deemed as a fully comprehensive statute which substantively subsumes and even supplants the sexual abuse scenarios already covered by the RPC. If it were so, then RA 7610 should not have been crafted as a special penal law but as amendatory statute of the existing penal code.

(3) The proviso under Section 5 (b), Article III of RA 7610 - which provides that "when the [victim] is under twelve (12) years of age, the perpetrators shall be prosecuted under x x x the Revised Penal Code, for rape or lascivious conduct, as the case may be" - is a textual indicator that RA 7610 has a specific application only to children who are pre-disposed to "consent" to a sexual act because they are "exploited in prostitution or subject to other sexual abuse." For reference, Section 5 (b), Article III of RA 7610 reads in full:

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 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 x x x (Emphasis and underscoring supplied)

While the phrase "shall be prosecuted under" has not been discussed in existing case law, it is my view that the same is a clear instruction by the lawmakers to defer any application of Section 5 (b), Article III of RA 7610, irrespective of the presence of EPSOSA, when the victim is under twelve (12). As a consequence, when an accused is prosecuted under the provisions of the RPC, only the elements of the crimes defined thereunder must be alleged and proved. Necessarily too, unless further qualified, as in the second proviso, i.e., 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, the penalties provided under the RPC would apply.

In this relation, it may thus be ruminated: why did RA 7610 defer application to the RPC, when the victim is under twelve (12) years of age? After much thought, it is my opinion that this self-evident deference to the RPC hints on the meaning of EPSOSA and consequentially, Section 5 (b), Article III of RA 7610's niche application. As discussed, EPSOSA is a circumstantial pre-disposition which effectively taints the child's consent. As a "consent-tainting" element which is integral and unique to RA 7610, the proviso "shall be prosecuted under [the RPC]" recognizes that one cannot prosecute a sex offender under RA 7610 when a child is under twelve (12) years of age. This is because the concept of consent is altogether immaterial when a child is below twelve (12) years of age because the latter is conclusively presumed to be incapable of giving consent.^[24] In other words, since the question of consent will never be at issue when the victim is under twelve (12) years of age, then the application of Section 5 (b), Article III of RA 7610 becomes technically impossible.

The foregoing analysis, to my mind, reinforces the point that RA 7610 was meant to apply only to cases where the consent of the child (insofar as his pre-disposition to consent [which should be contradistinguished from consent at the time of the act's consummation which falls under the RPC]) is at question. To this end, if RA 7610 was intended to apply to "all forms of sexual abuse" under a general reading of the law, then why does RA 7610 need to defer to the RPC provisions on statutory rape or lascivious conduct? If RA 7610 overlapped with and equally covered the acts punished under the RPC, then why the need of inserting a qualifying proviso when the child-victim is under twelve (12) years of age? Surely, if the intendment of RA 7610 was to generally apply to all forms of sexual abuse, then it could have very well applied to cases wherein the child is under twelve (12) years of age. The explicit qualification contained in the first proviso of Section 5 (b), Article III of RA 7610 apparently negates the ponencia's theory of general applicability.

Notably, the ponencia utilizes the fact that the first proviso of Section 5 (b), Article III of RA 7610 explicitly mentions the RPC as basis to support its position that Section 5 (b), Article III of RA 7610 should not only be limited to the unique context of "child prostitution, other sexual abuse in relation to prostitution, and the specific acts punished under RA 7610."^[25] In other words, the ponencia theorizes that since Section 5 (b), Article III of RA 7610 mentions the RPC in its provisos, then ipso facto RA 7610 was meant to generally cover even acts of sexual abuse previously punished under the already existing RPC. Accordingly, it submits the following interpretation: "[w]hen the first proviso of Section 5 (b) states that 'when the victim is under 12 years of age[, the perpetrators] shall be prosecuted under the RPC,' it only means that the elements of rape under then Article 335, paragraph 3 of the RPC [now Article 266-A, paragraph 1 (d)], and of acts of lasciviousness under Article 336 of the RPC, have to be considered, alongside the element of the child being 'exploited in prostitution and or other sexual abuse."'^[26]

I respectfully disagree. The fact that Section 5 (b), Article III of RA 7610 mentions the RPC does not automatically mean that it was meant to cover the acts already punished in the RPC. To properly interpret its sense, the context in which the RPC is mentioned must be taken into consideration; after all, words do not simply appear on the face of a statute without purposive and rational intention. Here, the RPC is mentioned in a proviso. Jurisprudence dictates that "[t]he office of a proviso is to limit the application of the law. It is contrary to the nature of a proviso to enlarge the operation of the law."^[27] Simply stated, a proviso, by nature, is meant to either be a qualifier or an exception. As afore-discussed, it is my view that EPSOSA is a special element meant to address a situation not contemplated under the RPC. The general rule is that "[t]hose who commit the act of sexual intercourse of lascivious conduct with a child exploited in prostitution or subject to other sexual abuse" should be punished under Section 5 (b) of RA 7610 because this is the unique situation sought to be covered by the special law. However, if a child is below 12 the law conclusively presumes the lack of consent - may it be consent at the time the crime is consummated or consent as a pre-disposition to give in into a sexual act. Since consent is lacking in a case where the child is 12 years old, EPSOSA which is intrinsically a "consent-element" virtually vanishes from the equation. Therefore, since there would never be a case of EPSOSA when the child is less than 12, the proviso -being an exceptive clause which limits the application of the law, i.e., Section 5 (b), Article III of RA 7610 - actually directs that the prosecution of accused should fall under the RPC where EPSOSA is not material. In this regard, the proviso serves as a statutory recognition of Section 5 (b), Article III of RA 7610's own limitations, hence, the need to defer prosecution under the elements of the RPC. To my mind, this interpretation, which only becomes possible under the proposed limited view of Section 5 (b), Article III of RA 7610, squares with the nature of a proviso.

Besides, the ponencia's above-interpretation of the first proviso of Section 5 (b), Article III of RA 7610 (i.e., that the elements of the RPC should be read alongside with the element of EPSOSA) does not carry any practical value since the elements of rape and acts of lasciviousness when considered alongside the element of EPSOSA already constitute the crime punished under the general clause prior to the proviso. In particular, the opening phrase of Section 5 (b), Article III of RA 7610 already punishes "[t]hose who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subject to other sexual abuse." Thus, under the ponencia's interpretation, the first proviso of Section 5(b) would practically add nothing to the law since when one is prosecuted under the opening phrase, the elements of rape and acts of lasciviousness^[28] are already considered. As such, the opening phrase of Section 5 (b) of RA 7610 would have served the purpose of punishing a sex offender who has sexual intercourse or commits acts of lasciviousness against a child, even without the first proviso.

(4) In the deliberations of RA 7610, Sen. Lina explained that despite the presence of monetary considerations, the prosecution of the accused will still be under Article 335 of the RPC, and the concept of Rape under the RPC shall be followed, viz.:

Senator Pimentel. At any rate, Mr. President, before a clean copy is finally made available, perhaps, the distinguished Gentleman can tell us already what will be the effect of this particular amendment on the rape provisions of the Revised Penal Code. Would it mean that the rape of a female child below 12 years old, whether or not there is force, but there is no profit motive constitutes rape? In other words, are we limiting the scope of the crime of rape of a child below 12 years old to that particular instance?

[Sen.] 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 VICTIM 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?

[Sen.] 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.

x x x x^[29] (Emphases and underscoring supplied)

Hence, to support the preceding point, there seems to be a conscious delineation by members of Congress between the concept of Rape under the RPC and the violation under Section 5, Article III of RA 7610.

To be sure, the fact that the original phrase "exploited in prostitution" was later extended to include the phrase "or subject to other sexual abuse" is not sufficient basis to break this delineation. As the deliberations further show, the intent behind the addition is to plug the loophole on exploitative circumstances that are not based on non-monetary considerations:

[Sen.] 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, etcetera.

The President Pro Tempore. I see. That would mean also changing the subtitle of Section 4. Will it no longer be child prostitution?

[Sen.] 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.

[Sen.] 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

[Sen.] 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."^[30] (Emphases supplied)

As Justice Carpio rationalized in Quimvel, "[t]he 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."^[31]

Clearly therefore, the phrase "or subject to other sexual abuse" was meant only to expand the range of circumstances that are nonetheless, relevant to the child's circumstantial pre-disposition and hence, should not be confounded with the act of sexual abuse which is a separate and distinct element under the law.^[32]

(5) Finally, a literal reading of the law itself confirms that the phrase "exploited in prostitution or subject to other sexual abuse" was intended to be appreciated separately from the act of sexual abuse itself. For reference, Section 5, Article III of RA 7610 states:

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; x x x

x x x x (Emphases and underscoring supplied)

As plainly worded, the law punishes those who commit the act of sexual intercourse or lascivious conduct with a child "exploited in prostitution or subject to other sexual abuse." The word "subject" is a clear qualification of the term "child," which means it is descriptive of the same. Hence, if Congress intended to equate the term "subject to other sexual abuse" with the act of sexual intercourse or lascivious conduct itself, then it could have easily phrased the provision as: "those who commit the act of sexual intercourse or lascivious conduct with children."

However, it is fairly evident that with the coining of the new phrase "a child exploited in prostitution or subject to other sexual abuse," Congress intended to establish a special classification of children, i.e., those EPSOSA, which is further suggested by the term "deemed." It is a cardinal rule in statutory construction that when the law is clear and free from any doubt or ambiguity, there is no room for construction or interpretation. There is only room for application.^[33] As the statute is clear, plain, and free from ambiguity, it must be given its literal meaning and applied without attempted interpretation.^[34]

CONCLUSION

Based on the foregoing analysis, I therefore submit the following table of application:

Acts done by the accused consist of:	Crime committed if the victim is under twelve (12) years old or demented	Crime committed if the victim is twelve (12) years old or older but below eighteen (18), or is eighteen (18) years old but under special circumstances[35]	Crime committed if victim is eighteen (18) years old and above
Acts of Lasciviousness	Statutory[36] Acts of Lasciviousness under Article 336 of the RPC in relation to[37] the second proviso of Section 5 (b), Article III of RA 7610 Penalty: Reclusion temporal in its medium period NOTE: Based on the first proviso of Section 5 (b), Article III of RA 7610, even if the victim is a child EPSOSA, the prosecution shall be under the RPC; hence, if the child is less than twelve (12), EPSOSA is irrelevant	If committed against a child not EPSOSA, the crime committed would be Acts of Lasciviousness under Article 336 of the RPC Penalty: Prision Correccional If committed against a child EPSOSA, the crime committed would be Violation of Section 5 (b), Article III of RA 7610 through Lascivious Conduct (term used in the Implementing Rules and Regulations [IRR][38]) and the penalty would be reclusion temporal in its medium period to reclusion perpetua.[39]	Acts of Lasciviousness under Article 336 of the RPC Penalty: Prision Correccional
Sexual Assault	Statutory Sexual Assault under Article 266-A (2) of the RPC, as amended by RA 8353 in relation to the second proviso of Section 5 (b), Article III of RA 7610 Penalty: Reclusion temporal in its medium period NOTE: Based on the first proviso of Section 5 (b), Article III of RA 7610, even if the victim is a child EPSOSA, the prosecution shall be under the RPC; hence, if the child is less than 12, EPSOSA is irrelevant	If committed against a child not EPSOSA, Sexual Assault under Article 266-A (2) of the RPC, as amended by RA 8353 Penalty: prision mayor If committed against a child EPSOSA, the crime would be Violation of Section 5 (b), Article III of RA 7610 through Lascivious Conduct (concept of "sexual assault" subsumed under the term "Lascivious Conduct" used in the IRR[40]) and the penalty would be reclusion temporal in its medium period to reclusion perpetua[41]	Sexual Assault under Article 266- A (2) of the RPC. Penalty: prision mayor
Carnal knowledge/ Rape by Sexual Intercourse	Statutory Rape under Article 266-A (1) (d) of the RPC, as amended by RA 8353 Penalty: reclusion perpetua, except when the victim is below seven (7) years old in which case death penalty shall be imposed NOTE: Based on the first proviso of Section 5 (b), Article III of RA 7610, even if the victim is a child EPSOSA, the prosecution shall be under the RPC; hence, if the child is less than twelve (12), EPSOSA is irrelevant	If committed against a child not EPSOSA, Rape under Article 266-A (1) of the RPC, as amended by RA 8353 Penalty: reclusion perpetua If committed against a child EPSOSA, the crime would be Violation of Section 5 (b), Article III of RA 7610 through Sexual Abuse (term used in the IRR[42]) and the penalty would be reclusion temporal in its medium period to reclusion perpetua	Rape under Article 266-A (1) of the RPC, as amended by RA 8353 Penalty: reclusion perpetua

Notably, as earlier mentioned, when the child-victim is under twelve (12) years of age and, hence, conclusively presumed to be incapable of giving consent, Section 5 (b), Article III of RA 7610 instructs that the prosecution of the accused shall be under the provisions of the RPC and, hence, making it unnecessary to determine the presence or absence of EPSOSA. Accordingly:

Under twelve (12) years old cases

(1) If done through sexual intercourse, the crime is "Rape" under Article 266-A (1) of the RPC, as amended by RA 8353;

(2) If done through acts classified as sexual assault, the crime is "Sexual Assault" under Article 266-A (2) of the RPC, as amended by RA 8353; and

(3) If done through lascivious conduct not classified as sexual assault, the crime is "Acts of Lasciviousness" under Article 336 of the RPC.

In instances of Rape, the prescribed penalty is reclusion perpetua, subject to the existence of qualifying circumstances.

However, in cases of Sexual Assault or Acts of Lasciviousness, It Is my position that the second proviso in Section 5 (b), Article III of RA 7610, which 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”: first, amended the prescribed penalty of prision correccional under Article 336 of the RPC on Acts of Lasciviousness; and second, ought to prevail over the prescribed penalty of prision mayor under Article 266-A, par. 2, in relation to Article 266-B, of the RPC, as amended by RA 8353, albeit the latter law is the more recent statutory enactment. The reasons on this second point are: (1) pursuant to its IRR, the concept of lascivious conduct under Section 5, Article III of RA 7610 was already broad enough to cover the specific acts prescribed under Article 266-A, par. 2 of RA 8353^[43] and, hence, already subsumes the concept of Sexual Assault; (2) RA 8353 introduced the concept of "sexual assault" essentially to punish graver forms of acts of lasciviousness which were not accounted for in the RPC (not in RA 7610); and (3) at any rate, the penalty imposed for Sexual Assault under RA 8353 does not take into account the fact that the act is committed against a child-victim under twelve (12) years of age. Accordingly, based on these substantive considerations (and not solely on penalty gravity^[44]), RA 8353's lesser penalty of prison correctional imposed in general cases of Sexual Assault cannot prevail over Section 5 (b), Article III of RA 7610's penalty of reclusion temporal in its medium period in cases where the lascivious conduct, irrespective of kind, is committed against a child-victim under 12.

As a final note, I am well-aware of the ruling in People v. Ejercito^[45] (Ejercito) wherein the former Second Division of this Court had ruled that RA 8353 (amending the RPC) should now be uniformly applied in cases involving sexual intercourse committed against minors, and not Section 5 (b), Article III of RA 7610.^[46] To recount, the conclusion was largely based on the following premise:

[T]he x x x provisions of RA 8353 already accounted for the circumstance of minority under certain peculiar instances. The consequence therefore is a clear overlap with minority as an element of the crime of sexual intercourse against a minor under Section 5 (b) of RA 7610. However, as it was earlier intimated, RA 8353 is not only the more recent statutory enactment but more importantly, the more comprehensive law on rape; therefore, the Court herein clarifies that in cases where a minor is raped through sexual intercourse, the provisions of RA 8353 amending the RPC ought to prevail over Section 5 (b) of RA 7610 although the latter also penalizes the act of sexual intercourse against a minor.^[47] (Emphasis and underscoring supplied)

However, it must now be clarified that the above-stated overlap on the concept of minority in the Ejercito case is an observation only made possible when applying the then-prevailing Quimvel ruling. Again, Quimvel did not recognize that EPSOSA is a special and unique element that is peculiar to RA 7610. However, as herein discussed, RA 7610 actually introduced the EPSOSA element which was not contemplated under the RPC, as amended by RA 8353. This means that RA 8353 cannot now overlap with the RA 7610 since the latter contains a peculiar element which is unique to it; hence, applying the principle of lex specialis derogant generali,^[48] Section 5 (b), Article III of RA 7610 ought to prevail when the EPSOSA element is alleged and proven in a particular case.

To this end, it goes without saying that when the circumstance of a child EPSOSA is not alleged in the Information and later, proven during trial, it is erroneous to prosecute – much more, convict – the accused under Section 5 (b), Article III of RA 7610, else his constitutional right to be informed of the nature and cause of the accusation against him be violated.^[49] Insofar as this case is concerned, the EPSOSA element is missing from both Informations in Criminal Case Nos. SCC-6210 and SCC-6211. Nonetheless, EPSOSA is immaterial given that the child­-victim is, in both instances, under twelve (12) years of age. Hence, same as the result reached by the ponencia albeit our fundamental differences in reasoning, Tulagan should be convicted of:

(a) In Criminal Case No. SCC-6210, Statutory Sexual Assault under Article 266-A (2) of the RPC, as amended by RA 8353, in relation to the second proviso of Section 5 (b), Article III of RA 7610, and thereby, meted with the penalty of reclusion temporal in its medium period; and

(b) In Criminal Case No. SCC-6211, Statutory Rape under Article 266-A (1) (d) of the RPC, as amended by RA 8353, and thereby, meted with the penalty of reclusion perpetua.

Meanwhile, anent the damages to be awarded, I fully support the ponencia's prudent decision to adjust the same based on the jurisprudential^[50] equivalence of the above-stated penalties. Hence, Tulagan should pay the adjusted amounts of: (a) in Criminal Case No. SCC0-6210, P50,000.00 as civil indemnity, P50,000.00 as moral damages, and P50,000.00 as exemplary damages; and (b) in Criminal Case No. SCC-6211, P75,000.00 as civil indemnity, P75,000.00 as moral damages, and P75,000.00 as exemplary damages.

---

^[1] Entitled "AN ACT PROVIDING FOR STRONGER DETERRENCE AND SPECIAL PROTECTION AGAINST CHILD ABUSE, EXPLOITATION AND DISCRIMINATION, PROVIDING PENALTIES FOR ITS VIOLATION, AND FOR OTHER PURPOSES," approved on June 17, 1992.

^[2] G.R. No. 214497, April 18, 2017, 823 SCRA 192.

^[3] See ponencia, p. 51.

^[4] Quimvel v. People, supra note 2, at 239.

^[5] Id. at 239-240.

^[6] See ponencia, p. 51 -53. See also Concurring Opinion of Associate Justice Diosdado M. Peralta in Quimvel v. People, supra note 2, at 272-285.

^[7] Ponencia, p. 36.

^[8] Id. at 36-37.

^[9] Id. at 50-52.

^[10] Id. at 36.

^[11] See id. at 19-20.

^[12] See Dissenting Opinions of Justice Carpio and Justice Caguioa in Quimvel v. People, supra note 2, at 253-263 and 296-323, respectively.

^[13] See also Section 2 of RA 7610.

^[14] Presidential Decree No. 603 approved on December 10, 1974.

^[15] RA 9775 entitled "AN ACT DEFINING THE CRIME OF CHILD PORNOGRAPHY, PRESCRIBING PENALTIES THEREFOR AND FOR OTHER PURPOSES," approved on November 17, 2009.

^[16] RA 9262 entitled "AN ACT DEFINING VIOLENCE AGAINST WOMEN AND THEIR CHILDREN, PROVIDING FOR PROTECTIVE MEASURES FOR VICTIMS, PRESCRIBING PENALTIES THEREFOR, AND FOR OTHER PURPOSES," approved on March 8, 2004.

^[17] 272 Phil. 532 (1991).

^[18] See id. at 546-570.

^[19] Record of the Senate, Vol. III, No. 104, March 19, 1991, p. 1204.

^[20] Record of the Senate, Vol. IV, No. 111, April 29, 1991, pp. 190-191.

^[21] See Concurring and Dissenting Opinion of Justice Caguioa, p. 33.

^[22] See ponencia, pp. 38-40. See also Dimakuta v. People, 771 Phil. 641, 670-671 (2015).

^[23] See ponencia, pp. 43-44.

^[24] See People v. Manaligod, G.R. No. 218584, April 25, 2018.

^[25] Ponencia, p. 38.

^[26] Id.

^[27] Borromeo v. Mariano, 41 Phil. 322, 326 (1921).

^[28] The elements of rape are: "(1) sexual congress, (2) with a woman, (3) by force and without consent x x x." Meanwhile, "[t]he elements of the crime of acts of lasciviousness are: (1) that the offender commits any act of lasciviousness or lewdness; (2) that it is done (a) by using force or intimidation or (b) when the offended party is under 12 years of age; and (3) that the offended party is another person of either sex." (People v. Dela Cuesta, 430 Phil. 742, 751-752 [2002].)

With the exception of the EPSOSA element, the above-stated elements, when committed against a child, are substantively present in the crime of violation of Section 5 (b), Article III of RA 7610: (a) the accused commits the act of sexual intercourse or lascivious conduct; (b) the said act is performed with a child exploited in prostitution or subjected to other sexual abuse; and (c) the child, whether male or female, is below 18 years of age. (See Olivarez v. Court of Appeals, 503 Phil. 421, 431 [2005].)

^[29] Record of the Senate, Vol. IV, No. 116, May 9, 1991 , pp. 333-334.

^[30] Record of the Senate, Vol. I, No. 7, August 1, 1991, pp. 261-263.

^[31] See Dissenting Opinion of Justice Carpio in Quimvel v. People, supra note 2, at 257-258.

^[32] See id. at 256-260.

^[33] Amores v. House of Representatives Electoral Tribunal, 636 Phil. 600, 608 (2010), citing Twin Ace Holdings Corporation v. Rufina and Company, 523 Phil. 766, 777 (2006).

^[34] Padua v. People, 581 Phil. 489, 501 (2008).

^[35] Or "is 18 years or older but under special circumstances (as defined in RA 7610) and engaged in prostitution or subjected to other sexual abuse."

^[36] The word "Statutory," while not stated in the law, has been used as a matter of practice to indicate that the sexual act is committed against a child below the age of twelve (12), as in its application in its often-used term "Statutory Rape."

^[37] The phrase "in relation to" is used, as a matter of practice, to indicate that a provision of a penal law which defines the crime is related another provision that provides the penalty imposable therefor.

^[38] Section 2 (h) of the IRR (Rules and Regulations on the Reporting and Investigation of Child Abuse Cases) provides:

Section 2. Definition of Terms. x x x

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 x x

^[39] By operation of the second proviso of Section 5 (b), Article III of RA 7610; see discussion on pages 14-15.

^[40] See note 38.

^[41] By operation of the second proviso of Section 5 (b), Article III of RA 7610; see discussion on pages 14-15.

^[42] Section 2 (g) of the IRR (Rules and Regulations on the Reporting and Investigation of Child Abuse Cases) provides:

Section 2. Definition of Terms. x x x

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

^[43] See note 38.

^[44] See People v. Ejercito, G.R. No. 229861, July 2, 2018.

^[45] Id.

^[46] See id.

^[47] See id.

^[48] See Barcelote v. Republic, G.R. No. 222095, August 7, 2017, 834 SCRA 564, 578.

^[49] "It must be stressed that in all criminal prosecutions, the accused shall be informed of the nature and cause of the accusation against him to ensure that his due process rights are observed. Thus, every indictment must embody the essential elements of the crime charged with reasonable particularity as to the name of the accused, the time and place of commission of the offense, and the circumstances thereof. Hence, to consider matters not specifically alleged in the Information, even if proven in trial, would be tantamount to the deprivation of the accused's right to be informed of the charge lodged against him." (People v. Bagamano, 793 Phil. 602, 608-609 [2016]; citations omitted.)

^[50] See People v. Jugueta, 783 Phil. 806, 847-853 (2016).

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SEPARATE CONCURRING OPINION

LEONEN, J.:

I concur in the result.

This case involves a nine (9)-year-old minor who was raped and subjected to sexual assault. The majority and the various separate opinions appear to have used this case as an opportunity to interpret Republic Act No. 7610,^[1] Article III, Section 5(b)^[2] in relation to the sexual abuse of minors aged 12 to below 18 years old.

It is a unanimous Court that will agree that the rape and sexual abuse of a child below 12 years old deserves the full enforcement of the provisions under Article 266-A^[3] of the Revised Penal Code and Republic Act No. 7610.

Several permutations of the penalties have been suggested. Various tables, charts, and diagrams have been submitted to discuss penalties relating to the crime— which Associate Justice Estela Perlas-Bernabe (Associate Justice Perlas-Bernabe) refers to as EPSOSA (or children exploited in prostitution or subject to other sexual abuse)^[4]— committed against victims aged 12 to below 18 years old. Considering, however, that the victim here was below 12 years old, every discussion on victims aged 12 to below 18 years old will be mere obiter dictum.

I wish, however, to offer a few points.

I agree with the majority that the insertion of a finger into a minor's vagina deserves a higher penalty than prision mayor under Article 266-A, Paragraph 2^[5] (sexual assault) in relation to Article 266-B^[6] of the Revised Penal Code. Republic Act No. 7610^[7] was enacted not only to protect children from prostitution, but also to protect them from any sexual abuse due to the coercion or influence of any adult.

I must, however, reiterate my opinion in People v. Caoili.^[8]

The nonconsensual insertion of a finger in another's genitals is rape by carnal knowledge under Article 266-A, Paragraph 1^[9] of the Revised Penal Code.

The finger, when used in a sexual act, is not an instrument or an object. It is as much a part of the human body as a penis. When consensual, it can be used to give sexual pleasure. When forced, it can be used to defile another's body. Equating the finger to a separate instrument or object misunderstands the gravity of the offense.

Likewise, I reiterate my view in Quimvel v. people^[10] on the doubtful effectivity of Article 336 of the Revised Penal Code. Article 336 has already been rendered ineffective with the passage of Republic Act No. 8353, or the Anti-Rape Law of 1997.

The present case involves an appeal from the August 17, 2015 Decision of the Court of Appeals, finding accused-appellant Salvador Tulagan guilty beyond reasonable doubt of sexual assault under Article 266-A, paragraph 2 and statutory rape under Article 266-A, paragraph 1(d) of the Revised Penal Code.^[11]

Accused-appellant was charged in two (2) separate Informations. In Criminal Case No. SCC-6210:

That sometime in the month of September 2011, at . . ., and within the jurisdiction of this Honorable Court, the above-named accused, by means of force, intimidation and with abuse of superior strength forcibly laid complainant AAA, a 9-year-old minor in a cemented pavement, and did then and there, willfully, unlawfully and feloniously inserted his finger into the vagina of the said AAA, against her will and consent.

In Criminal Case No. SCC-6211:

That on or about October 8, 2011 at . . ., and within the jurisdiction of this Honorable Court, the above-named accused, by means of force, intimidation and with abuse of superior strength, did then and there, willfully, unlawfully and feloniously have sexual intercourse with complainant AAA, a 9-year-old minor against her will and consent to the damage and prejudice of said AAA, against her will and consent.^[12]

According to the majority's narration of facts, sometime in September 2011, AAA was peeling corn with her cousin when accused-appellant, a neighbor of AAA's grandmother, approached her, opened her legs, and inserted his finger in her vagina.^[13]

On another occasion, at around 11:00 a.m. on October 8, 2011, AAA was playing with her cousin in front of accused-appellant's house. Accused­ appellant brought her inside his house. He ordered her to keep quiet and lie on the floor while he removed her short pants and underwear. He then undressed himself, kissed her cheeks, and inserted his penis into her vagina. AAA felt pain and cried but accused-appellant held her down. AAA kept quiet about the incident until her aunt examined her and found her genitals swollen.^[14]

Upon examination by Dr. Brenda Tumacder, it was found that AAA had a healed laceration at the 6 o'clock position in her hymen and a dilated and enlarged vaginal opening.^[15]

Both the Regional Trial Court and the Court of Appeals found accused-appellant guilty beyond reasonable doubt of sexual assault and statutory rape.

The majority affirms the convictions but modified the disposition, as follows:

WHEREFORE, PREMISES CONSIDERED, the appeal is DENIED. The Joint Decision dated February 10, 2014 of the Regional Trial Court in Criminal Case Nos. SCC-6210 and SCC-6211, as affirmed by the Court of Appeals Decision dated August 17, 2015 in CA-G.R. CR-­HC No. 06679, is AFFIRMED with MODIFICATIONS. We find the accused-appellant Salvador Tulagan:

1. Guilty beyond reasonable doubt of Sexual Assault under paragraph 2, Article 266-A of the Revised Penal Code, in relation to Section 5(b) of Republic Act No. 7610, in Criminal Case No. SCC-6210, and is sentenced to suffer the indeterminate penalty of twelve (12) years, ten (10) months and twenty-one (21) days of reclusion temporal, as minimum, to fifteen (15) years, six (6) months and twenty (20) days of reclusion temporal, as maximum. Appellant is ORDERED to PAY AAA the amounts of P50,000.00 as civil indemnity, P50,000.00 as moral damages, and P50,000.00 as exemplary damages.
   
   
2. Guilty beyond reasonable doubt of Statutory Rape under Article 266-A(1)(d) and penalized in Article 266-B of the Revised Penal Code, in Criminal Case No. SCC-6211, and is sentenced to suffer the penalty of reclusion perpetua with modification as to the award of damages. Appellant is ORDERED to PAY AAA the amounts of P75,000.00 as civil indemnity, P75,000.00 as moral damages, and P75,000.00 as exemplary damages[.]

Legal interest of six percent (6%) per annum is imposed on all damages awarded from the date of finality of this Decision until fully paid.

Let a copy of this Decision be furnished the Department of Justice, the Office of the Prosecutor General, the Office of the Court Administrator, and the Presiding Justice of the Court of Appeals, for their guidance and information, as well as the House of Representatives and the Senate of the Philippines, as reference for possible statutory amendments in light of the foregoing observations.

SO ORDERED.^[16] (Emphasis supplied)

I take no issue with the majority's findings of fact or conclusion that accused-appellant is guilty of statutory rape. I do, however, wish to address a few points in the Decision and the opinions submitted by Associate Justice Alfredo Benjamin S. Caguioa (Associate Justice Caguioa) and Associate Justice Perlas-Bernabe.

I

Much of the debate here centers on the proper interpretation of Article III, Section 5(b) of Republic Act No. 7610.

Article III, Section 5 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:

(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 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; 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. (Emphasis in the original)

I cannot subscribe to Associate Justice Caguioa's interpretation that Section 5 only refers to children subjected to prostitution. A plain reading of this provision shows two (2) offenses: (1) child prostitution and (2) other sexual abuse.

Children subjected to prostitution are those "who for money, profit, or any other consideration . . . indulge in sexual intercourse or lascivious conduct[.]" Children subjected to other sexual abuse are those who "due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct[.]"

Under the law, the State must "provide special protection to children from all forms of abuse, neglect, cruelty exploitation and discrimination."^[17] Children do not willingly indulge in sexual intercourse or lascivious conduct with an adult. There is always an element of intimidation or coercion involved. Thus, the crime is not merely punishable under the Revised Penal Code, but also under Republic Act No. 7610.

As Associate Justice Diosdado M. Peralta eloquently explained in Dimakuta v. People:^[18]

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 intimidation; 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 prision 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 R.A. 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.^[19]

Consent, within the context of sexual relations, is structured around questions of patriarchy and sexual maturity.

Girls may believe themselves to have consented to sexual intercourse if they thought themselves powerless to refuse. Marital rape is difficult to prosecute if the woman believes that it is her "wifely duty" to always give in to the husband's sexual demands.

The age of sexual consent in the Philippines is 12 years old.^[20] According to United Nations International Children's Emergency Fund, this is "one [1] of the lowest globally and the lowest in the Asia-Pacific region."^[21] The average age of consent is 16 years old.^[22]

The age of majority, however, is 18 years old.^[23] Minors, or those below 18, have no capacity to enter into any contracts^[24] or marriage.^[25] Yet, strictly reading the provisions of the Revised Penal Code, any minor above 12 years old may validly consent to sexual intercourse and lascivious conduct with an adult.

This may have found support in science. According to neurologists, the prefontal cortex and the parietal cortex develop at puberty or around 12 years old.^[26] At this age, children may already be cognitively aware of the concept of consent. Among the policies espoused by Republic Act No. 7610, however, is that the "best interests of children shall be the paramount consideration in all actions concerning them[.]"^[27] This means that despite victims reaching the age where they could have reasonable discernment, courts still need to determine how consent to sexual conduct was obtained.

Article III, Section 5(b) generally applies to those who engage in sexual intercourse or are subjected to other sexual abuse. However, reference must be made to the law's chapeau:

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 law itself requires that children in EPSOSA must have either consented due to money, profit, or other consideration, or must have consented due to the "coercion or influence of any adult[.]"

The difference in age, by itself, is indicative of coercion and intimidation. In People v. Errojo:^[28]

At a tender age of fourteen, innocent of the ways of the world, complainant is no match to the accused-appellant, a forty-one year old married individual who sexually assaulted her. The sheer force and strength of the accused-appellant would have easily overcome any resistance that complainant could have put up. What more if the assault was committed with a deadly knife, the sight of which would have necessarily evoked fear in complainant. Thus, it is understandable if she easily succumbed to the sexual intrusion.^[29]

Similarly, in People v. Clado:^[30]

This Court has noted in several cases that minors could be easily intimidated and cowed into silence even by the mildest threat against their lives. At the time of the commission of the crimes, Salve was a fifteen­ year old girl who had just arrived in town to tend the beauty parlor of her sister. She was left all alone that night and intimidation would explain why she did not put up a determined resistance against her defiler.^[31] (Citation omitted)

In these cases, this Court determined that the minor's age played a major part in whether he or she could rationally give consent to any sexual act with an adult. This Court had to consider that the vast difference in age between the victim and the offender could be indicative of coercion and intimidation. For this reason, Republic Act No. 7610 penalizes sexual offenses against children not covered by the statutory age of consent.

However, there are simply factual situations that cannot be fully encompassed by the permutations suggested.

For example, it is unclear whether a 19-year-old person can be prosecuted for this crime if he or she had sexual intercourse with a minor aged 17 and a half years old. It cannot be determined if that minor was under the "coercion or influence" of the adult if it appears that it was a consensual sexual relationship.

It also cannot be fathomed if a 12-year-old child will willingly engage in sexual conduct with a 25-year-old adult. With age disparity and the moral ascendancy the adult exercises over the child, there may be some form of coercion or intimidation against the child for the child to succumb to the adult's sexual advances.

Hence, this is not the proper time to discuss the permutations of the different penalties to be imposed under Republic Act No. 7610. Any suggested permutations of the penalties should be discussed when the proper factual situations appear before this Court.

II

The majority notes that "[Republic Act] No. 8353 did not expressly repeal Article 336 of the [Revised Penal Code], as amended."^[32]

I disagree.

Republic Act No. 8353^[33] has rendered ineffective the provision on acts of lasciviousness in the Revised Penal Code.

Article 336 defines acts of lasciviousness as:

ARTICLE 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. (Emphasis supplied)

Under this provision, a lascivious act is punishable if it is committed under the circumstances mentioned in Article 335 of the Revised Penal Code, which provides:

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 or is demented.

The crime of rape shall be punished by reclusion perpetua.

Whenever the crime of rape is committed with the use of a deadly weapon or by two or more persons, the penalty shall be reclusion perpetua to death.

When by reason or on occasion of the rape, the victim has become insane, the penalty shall be death.

When the rape is attempted or frustrated and a homicide is committed by reason or on occasion thereof, the penalty shall be reclusion perpetua to death.

The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances:

1. when the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim.
2. when the victim is under the custody of the police or military authorities.
3. when the rape is committed in full view of the husband, parent, any of the children or other relatives within the third degree of consanguinity.
4. when the victim is a religious or a child below seven (7) years old.
5. when the offender knows that he is afflicted with Acquired Immune Deficiency Syndrome (AIDS) disease.
6. when committed by any member of the Armed Forces of the Philippines or the Philippine National Police or any law enforcement agency.
7. when by reason or on the occasion of the rape, the victim has suffered permanent physical mutilation. (As amended by R.A. No. 7659.) (Emphasis in the original)

Article 335, however, has already been repealed by Republic Act No. 8353.^[34] The provisions on rape were transferred from Title Eleven to Title Eight of the Revised Penal Code, reflecting its reconceptualization from being a crime against chastity to being a crime against persons.

In effect, acts of lasciviousness cease to be a crime under Article 336 of the Revised Penal Code. This provision is rendered incomplete and ineffective since its elements can no longer be completed. The acts constituting it no longer exist in the Revised Penal Code.

In any case, the ineffectivity of Article 336 does not preclude acts of lasciviousness from being punishable under different laws such as Republic Act No. 7610 or Republic Act No. 9262.^[35] These laws, likewise, carry more severe penalties^[36] than Article 336,^[37] providing better protection for victims of lascivious acts not constituting rape.

III

I stated in Caoili that "[t]he persistence of an archaic understanding of rape relates to our failure to disabuse ourselves of the notion that carnal knowledge or sexual intercourse is merely a reproductive activity."^[38] That pattern continues here, where the majority states:

[T]he term "rape by sexual assault" is a misnomer, as it goes against the traditional concept of rape, which is carnal knowledge of a woman without her consent or against her will. In contrast to sexual assault which is a broader term that includes acts that gratify sexual desire (such as cunnilingus, felatio, sodomy or even rape), the classic rape is particular and its commission involves only the reproductive organs of a woman and a man. Compared to sexual assault; rape is severely penalized because it may lead to unwanted procreation; or to paraphrase the words of the legislators, it will put an outsider into the woman who would bear a child, or to the family, if she is married.^[39] (Emphasis supplied)

This explanation, however, defies reality. A woman who was raped through insertion of a finger does not suffer less than a woman who was raped by penile penetration. One (1) crime is not less heinous than the other. In People v. Quintos:^[40]

The classifications of rape in Article 266-A of the Revised Penal Code are relevant only insofar as these define the manners of commission of rape. However, it does not mean that one manner is less heinous or wrong than the other. Whether rape is committed by nonconsensual carnal knowledge of a woman or by insertion of the penis into the mouth of another person, the damage to the victim's dignity is incalculable. . . . [O]ne experience of sexual abuse should not be trivialized just because it was committed in a relatively unusual manner.

"The prime purpose of [a] criminal action is to punish the offender in order to deter him and others from committing the same or similar offense, to isolate him from society, reform and rehabilitate him or, in general, to maintain social order." Crimes are punished as retribution so that society would understand that the act punished was wrong.

Imposing different penalties for different manners of committing rape creates a message that one experience of rape is relatively trivial or less serious than another. It attaches different levels of wrongfulness to equally degrading acts. Rape, in whatever manner, is a desecration of a person's will and body. In terms of penalties, treating one manner of committing rape as greater or less in heinousness than another may be of doubtful constitutionality.^[41] (Citations omitted)

The idea that one (1) kind of rape is punished more severely than the other because of "unwanted procreation" only serves to undermine the law's reconceptualization of rape as a crime against persons. It reduces a woman to an untouched hymen that must be protected by the man who will eventually claim her—or worse, as a mere womb for the propagation of that man's seed.

The worth of a woman's dignity is not measured solely by her virtue. This Court cannot continue to convict rapists on the basis that women need to be kept chaste and virginal. Rape is a crime against the victim. It is not a crime against her father's or husband's honor.

This Court has already taken strides to address our prudish views on women's sexuality. People v. Amarela^[42] recognized that the stereotype of a demure and reserved Filipina has no place in a modern society. A Filipina can either be as demure or as promiscuous as she desires. Her sexual proclivities, or lack thereof, has no bearing on whether she can be a victim of rape. The commission of the crime is solely attributable to the rapist, not the victim. Thus:

The "women's honor" doctrine surfaced in our jurisprudence sometime in 1960. In the case of People v. Taño, the Court affirmed the conviction of three (3) armed robbers who took turns raping a person named Herminigilda Domingo. The Court, speaking through Justice Alejo Labrador, said:

It is a well-known fact that women, especially Filipinos, would not admit that they have been abused unless that abuse had actually happened. This is due to their natural instinct to protect their honor. We cannot believe that the offended party would have positively stated that intercourse took place unless it did actually take place.

This opinion borders on the fallacy of non sequit[u]r. And while the factual setting back then would have been appropriate to say it is natural for a woman to be reluctant in disclosing a sexual assault; today, we simply cannot be stuck to the Maria Clara stereotype of a demure and reserved Filipino woman. We, should stay away from such mindset and accept the realities of a woman's dynamic role in society today; she who has over the years transformed into a strong and confidently intelligent and beautiful person, willing to fight for her rights.^[43]

This Court explained further in Perez v. People^[44] that we must be careful in correcting gender stereotypes in rape cases. Despite strides to change long-held misconceptions, we cannot deny the continued existence of a patriarchal dominance in social relationships. We must acknowledge that due to this pervasive cultural norm, it will still take courage for women to come forward and testify against the men who dominate them:

This Court in Amarela, however, did not go as far as denying the existence of patriarchal dominance in many social relationships. Courts must continue to be sensitive to the power relations that come clothed in gender roles. In many instances, it does take courage for girls or women to come forward and testify against the boys or men in their lives who, perhaps due to cultural roles, dominate them. Courts must continue to acknowledge that the dastardly illicit and lustful acts of men are often veiled in either the power of coercive threat or the inconvenience inherent in patriarchy as a culture.

Even if it were true that AAA was infatuated with the accused, it did not justify the indignity done to her. At the tender age of 12, adolescents will normally be misled by their hormones and mistake regard or adoration for love. The aggressive expression of infatuation from a 12-year-old girl is never an invitation for sexual indignities. Certainly, it does not deserve the accused's mashing of her breasts or the insertion of his finger into her vagina.

Consistent with our pronouncement in Amarela, AAA was no Maria Clara. Not being the fictitious and generalized demure girl, it does not make her testimony less credible especially when supported by the other pieces of evidence presented in this case.^[45] (Emphasis in the original)

Thus, providing a lesser punishment for the forceful insertion of a finger into the vagina, solely because it will not result in an unwanted pregnancy, is a step backwards.

Sexual intercourse is more than a means of procreation. It is a powerful expression of intimacy between human beings. It "requires the shedding of all inhibitions and defenses to allow humans to explore each other in their most basic nakedness."^[46] Sexual intercourse may involve penile penetration, or a whole other spectrum of sexual acts that do not require penetration at all. Ultimately, it is the human being's choice whom to be intimate with and what that intimacy may involve.

Rape is the violation of this choice. It is not punished simply because a penis forcefully penetrated a vagina. The crime is vile and heinous because it takes away a victim's fundamental autonomy to choose with whom she would share intimacy. It violates a victim's autonomy over her own body.

This Court's continued refusal to recognize the forceful insertion of a finger into a woman's vagina as rape by sexual intercourse only shows that rape, at least in the eyes of this Court, has remained a crime against chastity. Severe punishment is still reserved only for acts that could potentially embarrass the husband by introducing "an outsider" to his wife's womb. Lesser punishment is meted to acts that do not involve male ejaculation, but nonetheless defile the woman and damage her dignity.

Laws punishing rape should be read from the point of view of the victim. The finger is as much a weapon of forced sexual penetration as the penis. All victims of forced sexual acts suffer the same indignity. Thus, the offender must be charged with the same crime.

Nonetheless, I reiterate that this case is not the right vehicle to fully discuss the permutations of the law for victims aged 12 to below 18 years old. Any discussion will only amount to hypotheticals and an almost advisory opinion on the matter, considering that the victim here is not between those ages. I propose that this Court await the proper case to deal with the factual situations that will arise in the application of the law when the victim is aged 12 to below 18 years old.

Hence, I can only concur in the result.

Accordingly, I vote to DISMISS the appeal. The Regional Trial Court February 10, 2014 Joint Decision, in Criminal Case Nos. SCC-6210 and SCC-6211, and the Court of Appeals August 17, 2015 Decision, in CA-G.R. CR-HC No. 06679, should be AFFIRMED with the necessary modifications.

---

^[1] The Special Protection of Children Against Abuse, Exploitation and Discrimination Act (1992).

^[2] Rep. Act No. 7610, art. III, sec. 5 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.
. . . .
(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[.]

^[3] REV. PEN. CODE, art. 266-A provides:

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.

^[4] See Dissenting Opinion of J. Perlas-Bernabe, p. 2.

^[5] REV. PEN. CODE, Article 266-A provides:

Article 266-A. Rape; When And How Committed. — Rape is committed —

. . . .
2) By any person who, under any of the circumstances mentioned in paragraph 1 hereof, shall commit an act of sexual assault by insetting his penis into another person's mouth or anal orifice, or any instrument or object, into the genital or anal orifice of another person.

^[6] REV. PEN. CODE, Article 266-B. Penalty. —

. . . .
Rape under paragraph 2 of the next preceding article shall be punished by prision mayor.

^[7] The Special Protection of Children Against Abuse, Exploitation and Discrimination Act.

^[8] See J. Leonen, Dissenting Opinion in People v. Caoili, G.R. No. 196342, August 8, 2017, < http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2017/august2017/196342_leonen.pdf > [Per J. Tijam, En Banc].

^[9] REV. PEN. CODE, Article 266-A provides:

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 patty 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.

^[10] See J. Leonen, Dissenting Opinion in Quimvel v. People, G.R. No. 214497, April 18, 2017, < http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2017/april2017/214497_leonen.pdf > [Per J. Velasco, En Banc].

^[11] Ponencia, pp. 1-2.

^[12] Ponencia, p. 2.

^[13] Ponencia, p. 3.

^[14] Id.

^[15] Ponencia, p. 3.

^[16] Ponencia, pp. 66-67.

^[17] Rep. Act No. 7610 (1992), art. I, sec. 2.

^[18] 771 Phil. 641 (2015) [Per J . Peralta, En Banc].

^[19] Id. at 670-671 citing Malto v. People, 560 Phil. 119, 139-142 (2007) [Per J. Corona, First Division] and Rep. Act No. 7610 (1992), art. I, sec. 2.

^[20] See REV. PEN. CODE, art. 266-A (d), as amended.

^[21] UNIVERSITY OF THE PHILIPPINES MANILA, THE UNIVERSITY OF EDINBURGH, CHILD PROTECTION NETWORK FOUNDATION AND UNICEF PHILIPPINES, A SYSTEMATIC REVIEW OF THE DRIVERS OF VIOLENCE AFFECTING CHILDREN IN THE PHILIPPINES. MANILA: UNICEF PHILIPPINES (2016). available at < https://resourcecentre.savethechildren.net/sites/default/files/documents/a_systematic_literature_review_of_the_drivers_of_vac.pdf > 71 (last accessed on March 11, 2019).

^[22] Id.

^[23] FAMILY CODE, art. 234, as amended.

^[24] CIVIL CODE, art. 1327(1).

^[25] FAMILY CODE, art. 35.

^[26] Suparna Choudhury, Sarah-Jayne Blakemore, Tony Charman, Social cognitive development during adolescence, 1 SOCIAL COGNITIVE AND AFFECTIVE NEUROSCIENCE 165-174 (2006). available at < https://doi.org/10.1093/scan/ns1024 > (last visited on March 11, 2019).

^[27] Rep. Act No. 7610 (1992), art. I, sec. 2.

^[28] 299 Phil. 51 (1994) (Per J. Nocon, Second Division].

^[29] Id. at 60.

^[30] 397 Phil. 813 (2000) [Per J. Gonzaga-Reyes, Third Division].

^[31] Id. at 826.

^[32] Ponencia, p. 59.

^[33] The Anti-Rape Law of 1997.

^[34] Rep. Act No. 8353, sec. 4 provides:

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.

^[35] Anti-Violence Against Women and Their Children Act of 2004.

^[36] Rep. Act No. 7610 (1992), art. III, sec. 5 provides:

Section 5. (b) . . . That the penalty for lascivious conduct when the victim is under twelve (12) years of age shall be reclusion temporal in its medium period[.]

Rep. Act No. 9262, sec. 5 and 6 provides:

SECTION 5. Acts of Violence Against Women and Their Children. - The crime of violence against women and their children is committed through any of the following acts:
. . . .
(g) Causing or attempting to cause the woman or her child to engage in any sexual activity which does not constitute rape, by force or threat of force, physical harm, or through intimidation directed against the woman or her child or her/his immediate family[.]

SECTION 6. Penalties. — The crime of violence against women and their children, under Section 5 hereof shall be punished according to the following rules:
. . . .
(e) Acts falling under Section 5(g) shall be punished by prision mayor[.]

^[37] This crime is punishable by prision correccional.

^[38] J. Leonen, Dissenting Opinion in People v. Caoili, G.R. No. 196342, August 8, 2017, < http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2017/august2017/196342_leonen.pdf > 12 [Per J. Tijam, En Banc].

^[39] Ponencia, p. 9.

^[40] 746 Phil. 809 (2014) [Per J. Leonen, Second Division].

^[41] Id. at 832-833.

^[42] G.R. No. 225642-43, January 17, 2018, < http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2018/january2018/225642-43.pdf > [Per J. Martires, Third Division].

^[43] Id. at 7 citing People v. Taño, 109 Phil. 912 (1960) [Per J. Labrador, En Banc].

^[44] G.R. No. 201414, April 18, 2018, < http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2018/april2018/201414.pdf > [Per J. Leonen, Third Division].

^[45] Id. at 11-12.

^[46] J. Leonen, Dissenting Opinion in People v. Caoili, G.R. No. 196342, August 8, 2017, < http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2017/august2017/196342_leonen.pdf > 11 [Per J. Tijam, En Banc].

---

CAGUIOA, J.:

I concur partly in the result, but express my disagreement with some pronouncements in the ponencia.

My view of the relevant laws and their respective applications is straightforward and simple: apply Section 5(b) of Republic Act No. (R.A.) 7610 upon the concurrence of both allegation and proof that the victim is "exploited in prostitution or subjected to other sexual abuse," and in its absence — or in all other cases — apply the provisions of the Revised Penal Code (RPC), as amended by R.A. 8353. To illustrate the simplicity of my position, which I argue is the correct interpretation of the foregoing laws, I took the liberty of presenting it using the flowchart below: (see image)

The ponencia attempts at length to reconcile, for the guidance of the Bench and the Bar, the provisions on Acts of Lasciviousness, Rape and Sexual Assault under the RPC, as amended by R.A. 8353, and the provisions on Sexual Intercourse and Lascivious Conduct under Section 5(b) of R.A. 7610. In the ponencia, the following matrix^[1] is put forth regarding the designation or nomenclature of the crimes and the corresponding imposable penalties, depending on the age and circumstances of the victim:

Crime Committed:	Victim is under 12 years old or demented	Victim is 12 years old or older but below 18, or is 18 years old but under special circumstances[2]	Victim is 18 years old and above
Acts of Lasciviousness committed against children exploited in prostitution or subjected to other sexual abuse	Acts of Lasciviousness under Article 336 of the RPC in relation to Section 5(b) of R.A. No. 7610: reclusion temporal in its medium period	Lascivious conduct under Section 5(b) of R.A. No. 7610: reclusion temporal in its medium period to reclusion perpetua	Not applicable
Sexual Assault committed against children exploited in prostitution or subjected to other sexual abuse	Sexual Assault under Article 266-A(2) of the RPC in relation to Section 5(b) of R.A. No. 7610: reclusion temporal in its medium period	Lascivious Conduct under Section 5(b) of R.A. No. 7610: reclusion temporal in its medium period to reclusion perpetua	Not applicable
Sexual Intercourse committed against children exploited in prostitution or subjected to other sexual abuse	Rape under Article 266-A(1) of the RPC: reclusion perpetua, except when the victim is below 7 years old in which case death penalty shall be imposed	Sexual Abuse under Section 5(b) of R.A. No. 7610: reclusion temporal in its medium period to reclusion perpetua	Not applicable
Rape by carnal knowledge	Rape under Article 266-A(1) in relation to Art. 266-B of the RPC: reclusion perpetua, except when the victim is below 7 years old in which case death penalty shall be imposed	Rape under Article 266-A(1) in relation to Art. 266-B of the RPC: reclusion perpetua	Rape under Article 266-A(1) of the RPC: reclusion perpetua
Rape by Sexual Assault	Sexual Assault under Article 266-A(2) of the RPC in relation to Section 5(b) of R.A. No. 7610: reclusion temporal in its medium period	Lascivious Conduct under Section 5(b) of R.A. No. 7610: reclusion temporal in its medium period to reclusion perpetua	Sexual Assault under Article 266-A(2) of the RPC: prision mayor

The above table is recommended by the ponencia in recognition of the fact that the current state of jurisprudence on the matter is confusing.

I salute this laudable objective of the ponencia.

However, I submit that the said objective could be better achieved by re-examining the landmark cases on the matter, namely the cases of Dimakuta v. People^[3] (Dimakuta), Quimvel v. People^[4] (Quimvel), and People v. Caoili^[5] (Caoili) and recognizing that these were based on misplaced premises.

For one, the rulings in the aforementioned cases were based on the mistaken notion that it is necessary to apply R.A. 7610 to all cases where a child is subjected to sexual abuse because of the higher penalties therein; that is, there was always a need to look at the highest penalty provided by the different laws, and apply the law with the highest penalty because this would then be in line with the State policy "to provide special protection to children from all forms of abuse, neglect, cruelty, exploitation and discrimination, and other conditions prejudicial to their development."^[6] This way of thinking was first implemented in Dimakuta where the Court held:

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 intimidation; 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 prision 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 R.A. 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.^[7] (Additional emphasis and underscoring supplied)

This premise, which I believe should be revisited, was based on another premise, which I also believe to be erroneous and should likewise be revisited: that R.A. 7610 was enacted to cover any and all types of sexual abuse committed against children.

Focusing first on R.A. 7610, I ask the Court to consider anew the viewpoint I first put forth in my Separate Dissenting Opinion in Quimvel, that the provisions of R.A. 7610 should be understood in their proper context, i.e., that they apply only to the specific and limited instances where the victim is a child "exploited in prostitution or subjected to other sexual abuse."

Foremost rule in construing a statute is verba legis; thus, when a statute is clear and free from ambiguity, it must be given its literal meaning and applied without attempted interpretation

As I stated in my dissent in Quimvel, if the intention of R.A. 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." Indeed, it bears to stress that when the statute speaks unequivocally, there is nothing for the courts to do but to apply it: meaning, Section 5(b), R.A. 7610 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.^[8]

The ponencia reasons that "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"^[9] under the law in question.

While I agree that the overall objectives of the law or its declaration of state policies may be consulted in ascertaining the meaning and applicability of its provisions, it must be emphasized that there is no room for statutory construction when the letter of the law is clear. Otherwise stated, a condition sine qua non before the court may construe or interpret a statute is that there be doubt or ambiguity in its language.^[10] In this case, Section 5(b) of R.A. 7610 states:

SEC. 5. Child Prostitution and Other Sexual Abuse. - x x x

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 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[.] (Emphasis and underscoring supplied)

The letter of Section 5(b), R.A. 7610 is clear: it only punishes those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to other sexual abuse. There is no ambiguity to speak of that necessitates the Court's exercise of statutory construction to ascertain the legislature's intent in enacting the law.

Verily, the legislative intent is already made manifest in the letter of the law which, again, states that the person to be punished by Section 5(b) is the one who committed the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to other sexual abuse (or what Justice Estela M. Perlas-Bernabe calls as EPSOSA, for brevity).

Even with the application of the aids to statutory construction, the Court would still arrive at the same conclusion

The ponencia disagrees, and asserts that "[c]ontrary to the view of Justice Caguioa, Section 5(b), Article III of R.A. No. 7610 is not as clear as it appears to be".^[11] This admission alone should have ended the discussion, consistent with the fundamental established principle that penal laws are strictly construed against the State and liberally in favor of the accused, and that any reasonable doubt must be resolved in favor of the accused.^[12]

In addition, even if it is conceded, for the sake of argument, that there is room for statutory construction, the same conclusion would still be reached.

Expressio unius est exclusio alterius. Where a statute, by its terms, is expressly limited to certain matters, it may not, by interpretation or construction, be extended to others.^[13] The rule proceeds from the premise that the legislature would not have made specified enumerations in a statute had the intention been not to restrict its meaning and to confine its terms to those expressly mentioned.^[14] In the present case, if the legislature intended for Section 5(b), R.A. 7610 to cover any and all types of sexual abuse committed against children, then why would it bother adding language to the effect that the provision applies to "children exploited in prostitution or subjected to other sexual abuse"? Relevantly, why would it also put Section 5 under Article III of the law, which is entitled "Child Prostitution and Other Sexual Abuse"?

A closer scrutiny of the structure of Section 5 of R.A. 7610 further demonstrates its intended application: to cover only cases of prostitution, or other related sexual abuse akin to prostitution but may or may not be for consideration or profit. In my considered opinion, the structure of Section 5 follows the more common model or progression of child prostitution or other forms of sexual exploitation. The entire Section 5 of R.A. 7610 provides:

SEC. 5. Child Prostitution and Other Sexual Abuse. — Children, whether male or female, who for money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse.

The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following:

(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 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.

From the above, it is clear that Section 5(a) punishes the procurer of the services of the child, or in layman's parlance, the pimp. Section 5(b), in turn, punishes the person who himself (or herself) commits the sexual abuse on the child. Section 5(c) finally then punishes any other person who derives profit or advantage therefrom, such as, but are not limited to, owners of establishments where the sexual abuse is committed.

This is the reason why I stated in my opinion in Quimvel that no requirement of a prior sexual affront is required to be charged and convicted under Section 5(b) of R.A. 7610. Here, 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.

Thus, 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.

This is also the reason why the definition of "child abuse" adopted by the ponencia — based on Section 3,^[15] R.A. 7610 and Section 2(g) of the Rules and Regulations on the Reporting and Investigation of Child Abuse Cases — does not require the element of habituality to qualify an act as "child abuse" or "sexual abuse".^[16] However, this absence of habituality as an element of the crime punished by Section 5(b), R.A. 7610 does not mean that the law would apply in each and every case of sexual abuse. To the contrary, it only means that the first act of sexual abuse would be punishable by Section 5(b), R.A. 7610 if done under the circumstances of being "exploited in prostitution or subjected to other sexual abuse." For example, if the child-victim was newly recruited by the prostitution den, even the first person who would have sexual intercourse with her under said conditions would be punished under Section 5(b), R.A. 7610.

Moreover, the deliberations of R.A. 7610 support the view that Section 5(b) is limited only to sexual abuses committed against children that are EPSOSA. I thus quote anew Senator Rasul, one of R.A. 7610's sponsors, who, in her sponsorship 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 vs. Ritter, held that we lack criminal laws which will adequately protect street children from exploitation by pedophiles. x x x^[17] (Emphasis and underscoring supplied)

To recall, People v. Ritter^[18] 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 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. While the Court acquitted Ritter, it did make the observation that there was, at that time, a "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."^[19]

The enactment of R.A. 7610 was the response by the legislature to the observation of the Court that there was a gap in the law. Of relevance is the exchange between Senators Enrile and Lina, which I quote anew, that confirms that the protection of street children from exploitation is the foremost thrust of R.A. 7610:

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.^[20] (Emphasis and underscoring supplied)

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

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.^[21] (Emphasis and underscoring supplied)

The Senate deliberations on R.A. 7610 are replete with similar disquisitions that all show the intent to make the law applicable to cases involving child exploitation through prostitution, sexual abuse, child trafficking, pornography and other types of abuses. To repeat, the passage of the law was the Senate's act of heeding the call of the 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 Presidential Decree No. 603, otherwise known as the Child and Youth Welfare Code.

The Angara Amendment, which added the phrase "who for money, profit, or any other consideration or due to coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct" in Section 5(b), relied upon by the ponencia to support its argument that the law applies in each and every case where the victim of the sexual abuse is a child, ^[22] does not actually support its proposition. The deliberations on the said Angara Amendment are quoted in full below if only to understand the whole context of the amendment:

Senator Angara: I see. Then, I move to page 3, Mr. President, Section 4, if it is still in the original bill.

Senator Lina: Yes, Mr. President.

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 a 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, etcetera.

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 DUE TO THE COERCION OR INFLUENCE OF ANY ADULT, SYNDICATE OR GROUP INDULGE IN SEXUAL INTERCOURSE, etcetera.

Senator Lina. It is accepted, Mr. President.^[23] (Emphasis and underscoring supplied)

Clear from the said deliberations is the intent to still limit the application of Section 5(b) to a situation where the child is used for sexual purposes for a consideration, although it need not be monetary. The Angara Amendment, even as it adds the phrase "due to the coercion or influence of any adult, syndicate or group", did not transform the provision into one that has universal application, like the provisions of the RPC. To repeat, Section 5(b) only applies in the specific and limited instances where the child-victim is EPSOSA.

The ponencia further argues that the interpretation of Section 5(b), R.A. 7610 in the cases of Dimakuta, Quimvel, and Caoili is more consistent with the objective of the law,^[24] and of the Constitution,^[25] to provide special protection to children from all forms of abuse, neglect, cruelty, exploitation and discrimination, and other conditions prejudicial to their development. It adds that:

The term "other sexual abuse," on the other hand, should be construed in relation to the definitions of "child abuse" under Section 3, Article I of R.A. No. 7610 and "sexual abuse" under Section 2(g) of the Rules and Regulations on the Reporting and Investigation of Child Abuse Cases. In the former provision, "child abuse" refers to the maltreatment, whether habitual or not, of the child which includes sexual abuse, among other matters. In the latter provision, "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^[26] (Emphasis in the original)

With utmost respect to the distinguished ponente, these arguments unduly extend the letter of the Section 5(b) of R.A. 7610 for the sake of supposedly reaching its objectives. For sure, these arguments violate the well-established rule that penal statutes are to be strictly construed against the government and liberally in favor of the accused.^[27] In the interpretation of a penal statute, the tendency is to give it careful scrutiny, and to construe it with such strictness as to safeguard the rights of the defendant.^[28] As the Court in People v. Garcia^[29] reminds:

x x x "Criminal and penal statutes must be strictly construed, that is, they cannot be enlarged or extended by intendment, implication, or by any equitable considerations. In other words, the language cannot be enlarged beyond the ordinary meaning of its terms in order to carry into effect the general purpose for which the statute was enacted. Only those persons, offenses, and penalties, clearly included, beyond any reasonable doubt, will be considered within the statute's operation. They must come clearly within both the spirit and the letter of the statute, and where there is any reasonable doubt, it must be resolved in favor of the person accused of violating the statute; that is, all questions in doubt will be resolved in favor of those from whom the penalty is sought." x x x^[30] (Emphasis and underscoring supplied)

What is more, the aforementioned objective of R.A. 7610 and the Constitution — that is, to afford special protection to children from all forms of abuse, neglect, cruelty and discrimination, and other conditions prejudicial to their development — is actually achieved, not by the unwarranted expansion of Section 5(b) in particular, but by the law itself read as a whole.

The statements of Senators Lina and Rasul,^[31] relied upon by the ponencia, to the effect that R.A. 7610 was passed in keeping with the Constitutional mandate that "[t]he State shall defend the right of children to assistance, including proper care and nutrition, and special protection from all forms of neglect, abuse, cruelty, exploitation, and other conditions prejudicial to their development" do not support the expanded interpretation of Section 5(b) at all. In fact, the Senators were lauding the enactment into law of R.A. 7610 because it provided a holistic approach in protecting children from various abuses and forms of neglect that were not punished by law before its enactment. To illustrate, the following are the novel areas for the protection of children that are covered through the enactment of R.A. 7610:

1. Protection of children from Child Prostitution and Other Sexual Abuse (Sections 5 and 6, Article III, R.A. 7610);

2. Protection of children against Child Trafficking (Sections 7 and 8, Article IV, R.A. 7610);

3. Protection of children from being used in Obscene Publications and Indecent Shows (Section 9, Article V, R.A. 7610);

4. Other forms of abuse, including the use of children for illegal activities (Section 10, Article VI, R.A. 7610);

5. Protection of children against Child Labor (Section 12, Article VIII, R.A. 7610);

6. Special protection for Children of Indigenous Cultural Communities (Sections 17-21, Article IX, R.A. 7610); and

7. Rights of Children in Situations of Armed Conflict (Sections 22- 26, Article X, R.A. 7610).

The ponencia further uses the extended explanation by Senator Lina of his vote on the bill that became R.A. 7610 to support its position. The ponencia argues:

In the extended explanation of his vote on Senate Bill No. 1209, Senator Lina emphasized that the bill complements the efforts the Senate has initiated towards the implementation of a national comprehensive program for the survival and development of Filipino children, in keeping with the Constitutional mandate that "[t]he State shall defend the right of children to assistance, including proper care and nutrition, and special protection from all forms of neglect, abuse, cruelty, exploitation, and other conditions prejudicial to their development. " Senator Lina also stressed that the bill supplies the inadequacies of the existing laws treating crimes committed against children, namely, the RPC and the Child and Youth Welfare Code, in the light of the present situation, i.e., current empirical data on child abuse indicate that a stronger deterrence is imperative.^[32]

For full context, however, Senator Lina's explanation is quoted in its entirety below:

EXPLANATION OF VOTE OF SENATOR LINA

x x x x

The following is the written Explanation of Vote submitted by Senator Lina:

In voting for this measure, we keep in mind some thirty (30) million children who are below 18 years of age, of which about 25.3 million are children below fifteen years of age. Of these number, it is estimated that at least one percent (1%) are subject to abuse, exploitation, neglect, and of crimes related to trafficking.

These are the vulnerable and sensitive sectors of our society needing our care and protection so that they will grow to become mature adults who are useful members of the society and potential leaders of our Nation.

This bill which is a consolidation of Senate Bill No. 487, (one of the earlier bills I filed), and Senate Bill No. 727 authored by Senator Mercado with amendments introduced by Senators Rasul, Shahani, Tañada and the members of the Committee on Women and Family Relations, complements the efforts we have initiated towards the implementation of a national comprehensive program for the survival and development of Filipino children, in keeping with the Constitutional mandate that "The State shall defend the right of the children to assistance, including proper care and nutrition, and special protection from all forms of neglect, abuse, cruelty, exploitation, and other conditions prejudicial to their development" (Article XV, Section 3, par. 2), and also with the duty we assumed as signatory of the United Nations Convention on the Rights of the Child.

Republic Act No. 6972 (which was approved on November 23, 1990), The Barangay Level Total Development and Protection of Children Act provides the foundation for a network of barangay-level crises intervention and sanctuaries for endangered children up to six years of age who need to be rescued from an unbearable home situation, and RA 7160, The Local Government Code of 1991 (which was approved on November 26, 1991) mandates every barangay, as soon as feasible, to set up such center to serve children up to six years of age. These laws embody the institutional protective mechanisms while this present bill provides a mechanism for strong deterrence against the commission of abuse and exploitation.

This bill which I co-sponsored supplies the inadequacies of our existing laws treating crimes committed against children, namely, the Revised Penal Code and the Child and Youth Welfare Code, in the light of the present situation. Current empirical data on child abuse indicate that a stronger deterrent is imperative.

Child abuse is now clearly defined and more encompassing as to include "the act of unreasonably depriving a child of basic needs for survival, such as food and shelter or a combination of both or a case of an isolated event where the injury is of a degree that if not immediately remedied could seriously impair the child's growth and development or result in permanent incapacity or death."

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.["]

Attempt to commit child prostitution and child trafficking, including the act of inducing or coercing a child to perform in obscene publications or indecent shows whether live or in video, are also penalized. And additional penalties are imposed if the offender is a foreigner, a government official or employee.

For the foregoing reasons, I vote Yes, and I believe that as an elected legislator, this is one of the best legacies that I can leave to our children and youth.^[33] (Emphasis and underscoring supplied)

If read in its entirety – instead of placing emphasis on certain paragraphs – the vote of Senator Lina, therefore, supports the argument that the law applies only to specific and limited instances. Senator Lina even discussed Section 5(b) in particular in the above extended explanation, still within the context of prostitution.

Thus, to emphasize, R.A. 7610 was being lauded for being the response to the Constitutional mandate for the State to provide special protection to children from all forms of neglect, abuse, cruelty or exploitation because it provides for protection of children in special areas where there were gaps in the law prior to its enactment. This is the reason why, as the ponencia itself recognizes, "the enactment of R.A. No. 7610 was a response of the legislature to the observation of the Court [in People v. Ritter] that there was a gap in the law because of the lack of criminal laws which adequately protect street children from exploitation of pedophiles."^[34]

That R.A. 7610 was the legislature's attempt in providing a comprehensive law to adequately protect children from all forms of abuse, neglect, cruelty or exploitation, is best expressed in the law's Section 10(a) (not Section 5(b)), which provides:

SEC. 10. Other Acts of Neglect, Abuse, Cruelty or Exploitation and Other Conditions Prejudicial to the Child's Development. —

(a) Any person who shall commit any other acts of child abuse, cruelty or exploitation or be responsible for other conditions prejudicial to the child's development including those covered by Article 59 of Presidential Decree No. 603, as amended, but not covered by the Revised Penal Code, as amended, shall suffer the penalty of prision mayor in its minimum period. (Emphasis and underscoring supplied)

To stress, R.A. 7610 as a whole tried to cover as many areas where children experience abuse, neglect, cruelty, or exploitation, and where it fails to explicitly provide for one, the catch-all provision in Section 10(a) was crafted to cover it. Again, these — the other provisions of R.A. 7610, complemented by its catch-all provision in Section 10(a) — are the reasons why R.A. 7610 was being lauded for providing protection to children from all forms of abuse, neglect, cruelty, or exploitation. It is definitely not the expanded interpretation of Section 5(b) created by Dimakuta, Quimvel, and Caoili, as reiterated in the ponencia.

Other reasons put forth by the ponencia

In further rebutting the point I and Justice Perlas-Bernabe raised — that a person could be convicted of violation of Article 336 in relation to Section 5(b) only upon allegation and proof of the unique circumstance of being EPSOSA — the ponencia reasons that "the provisos of Section 5(b) itself explicitly state that it must also be read in light of the provisions of the RPC, thus: '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."'^[35]

With due respect, I fail to see how the above provisos supposedly negate the points Justice Perlas-Bernabe and I raised. The provisos only provide that the perpetrators shall be prosecuted under the RPC when the victim is below 12 years old, and then impose the corresponding penalty therefor. The provisos provide for nothing more. To illustrate clearly, the provisos only provide for the following:

General rule: when the child-victim is "exploited in prostitution and other sexual abuse" or EPSOSA, then the perpetrator should be prosecuted under Section 5(b), R.A. 7610. Penalty: reclusion temporal medium period to reclusion perpetua.

1. Effect of first proviso only: if (1) the act constitutes Rape by sexual intercourse and (2) the child-victim, still EPSOSA, is below 12 years old, then the perpetrator should be prosecuted under the Rape provision of the RPC. Penalty: reclusion perpetua.
   
   
2. Effect of the first and second provisos, combined: if (1) the act constitutes Lascivious Conduct^[36] and (2) the child-victim, still EPSOSA, is below 12 years old, then the perpetrator should be prosecuted under the Acts of Lasciviousness or Rape by Sexual Assault provisions of the RPC. Penalty: reclusion temporal in its medium period.

Verily, it is hard to see how the provisos supposedly negate the assertion that Section 5(b) only applies when the child victim is EPSOSA.

At this juncture, I would like to digress and thresh out a point of divergence between my view and Justice Perlas-Bernabe's. According to her, the afore-quoted provisos are "a textual indicator that RA 7610 has a specific application only to children who are pre-disposed to 'consent' to a sexual act because they are 'exploited in prostitution or subject to other sexual abuse."'^[37] She further explains her view:

While the phrase "shall be prosecuted under" has not been discussed in existing case law, it is my view that the same is a clear instruction by the lawmakers to defer any application of Section 5 (b), Article III of RA 7610, irrespective of the presence of EPSOSA, when the victim is under twelve (12). As a consequence, when an accused is prosecuted under the provisions of the RPC, only the elements of the crimes defined thereunder must be alleged and proved. Necessarily too, unless further qualified, as in the second proviso, i.e., 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, the penalties provided under the RPC would apply.^[38] (Emphasis and underscoring supplied)

On her proposed table of penalties, Justice Perlas-Bernabe reiterates her point that the element of being EPSOSA becomes irrelevant when the victim is below 12 years old because of the operation of the provisos under Section 5(b) of R.A. 7610.

I partially disagree.

I concur with Justice Perlas-Bernabe's view only to the extent that when Section 5(b), R.A. 7610 defers to the provisions of the RPC when the victim is below 12 years old, then this means that "only the elements of the crimes defined thereunder must be alleged and proved."^[39] However, I would have to express my disagreement to the sweeping statement that when the victim is below 12 years old, that the element of being EPSOSA becomes irrelevant.

Again, at the risk of being repetitive, Section 5(b) of R.A. 7610 is a penal provision which has a special and limited application that requires the element of being EPSOSA for it to apply. Differently stated, it is the element of being EPSOSA that precisely triggers the application of Section 5(b) of R.A. 7610. Hence, the provisos — both the one referring the prosecution of the case back to the RPC, and the other which increases the penalties for lascivious conduct — would apply only when the victim is both below 12 years old and EPSOSA.

The blanket claim that being EPSOSA is irrelevant when the victim is below 12 years old leads to the exact same evils that this opinion is trying to address, i.e., the across-the-board application of Section 5(b) of R.A. 7610 in each and every case of sexual abuse committed against children, although limited only to the instance that the victim is below 12 years old.

This indiscriminate application of the provisos in Section 5(b) of R.A. 7610 does not seem to matter when the act committed by the accused constitutes rape by sexual intercourse. To illustrate, the direct application of the RPC or its application through the first proviso of Section 5(b) would lead to the exact same result: a punishment or penalty of reclusion perpetua on the accused upon conviction.

The same is not true, however, when the act constitutes only lascivious conduct. I refer to the tables below for ease of reference:

Act committed constitutes Acts of Lasciviousness	Penalty
a. Victim is below 12, not EPSOSA (thus, Article 336 of the RPC is directly applied)	Prision correccional
b. Victim is below 12, but EPSOSA (thus, the provisos of Section 5(b) apply)	Reclusion temporal in its medium period
Act committed constitutes Rape by Sexual Assault	Penalty
a. Victim is below 12, not EPSOSA (thus, Article 226-A(2) of the RPC, as amended by R.A. 8353 is directly applied)	Prision mayor
b. Victim is below 12, but EPSOSA (thus, the provisos of Section 5(b) applies)	Reclusion temporal in its medium period

Thus, as shown by the foregoing table, the element of being EPSOSA is relevant when the victim is below 12 years old as the penalties will be increased to those provided for by R.A. 7610.

The ponencia further points out that "[i]t is hard to understand why the legislature would enact a penal law on child abuse that would create an unreasonable classification between those who are considered as x x x EPSOSA and those who are not."^[40]

On the contrary, the reasons of the legislature are not that hard to understand.

The classification between the children considered as EPSOSA and those who are not is a reasonable one. Children who are EPSOSA may be considered a class of their own, whose victimizers deserve a specific punishment. For instance, the legislature, in enacting R.A. 9262 or the Anti-Violence Against Women and Their Children Act, created a distinction between (1) women who were victimized by persons with whom they have or had a sexual or dating relationship and (2) all other women-victims of abuse. This distinction is valid, and no one argues that R.A. 9262 applies or should apply in each and every case where the victim of abuse is a woman.

The ponencia then insists that a perpetrator of acts of lasciviousness against a child that is not EPSOSA cannot be punished by merely prision correccional for to do so would be "contrary to the letter and intent of R.A. 7610 to provide for stronger deterrence and special protection against child abuse, exploitation and discrimination."^[41] The ponencia makes the foregoing extrapolation from the second to the last paragraph of Section 10 of R.A. 7610, which provides:

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, the Revised Penal Code, 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 the 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. (Emphasis and underscoring supplied)

Again, I submit that a logical leap is committed: since R.A. 7610 increased the penalties under Articles 337, 339, 340 and 341 of the RPC, the ponencia posits that this likewise affected Article 336 of the RPC or the provisions on acts of lasciviousness. However, as the deliberations of R.A. 7610, quoted^[42] by the ponencia itself, show:

Senator Lina. x x x

For the information and guidance of our Colleagues, the phrase "child abuse" here is more descriptive than a definition that specifies the particulars of the acts of child abuse. As can be gleaned from the bill, Mr. President, there is a reference in Section 10 to the "Other Acts of Neglect, Abuse, Cruelty or Exploitation and Other Conditions Prejudicial to the Child's Development."

We refer, for example, to the Revised Penal Code. There are already acts described and punishable under the Revised Penal Code and the Child and Youth Welfare Code. These are all enumerated already, Mr. President. There are particular acts that are already being punished.

But we are providing a stronger deterrence against child abuse and exploitation by increasing the penalties when the victim is a child. That is number one. We define a child as "one who is 15 years and below.

The President Pro Tempore. Would the Sponsor then say that this bill repeals, by implication or as a consequence, the law he just cited for the protection of the child as contained in that Code just mentioned, since this provides for stronger deterrence against child abuse and we have now a Code for the protection of the child? Would that Code be now amended by this Act, if passed?

Senator Lina. We specified in the bill, Mr. President, increase in penalties. That is one. But, of course, that is not everything included in the bill. There are other aspects like making it easier to prosecute these cases of pedophilia in our country. That is another aspect of the bill.

The other aspects of the bill include the increase in the penalties on acts committed against children; and by definition, children are those below 15 years of age.

So, it is an amendment to the Child and Youth Welfare Code, Mr. President. This is not an amendment by implication. We made direct reference to the Articles in the Revised Penal Code and in the Articles in the Child and Youth Welfare Code that are amended because of the increase in penalties. (Emphasis and underscoring supplied)

Given the clear import of the above — that the legislature expressly named the provisions it sought to amend through R.A. 7610 — the ponencia cannot now insist on an amendment by implication. The position that Section 5(b), R.A. 7610 rendered Article 336 of the RPC inoperative when the victim is a child, despite the lack of a manifest intention to the effect as expressed in the letter of the said provision, is unavailing. Differently stated, an implied partial repeal cannot be insisted upon in the face of the express letter of the law. I therefore believe that any continued assertion that Section 5(b) of R.A. 7610 applies to any and all cases of acts of lasciviousness committed against children, whether under the context of being EPSOSA or not, is not in accordance with the law itself.

When Section 5(b), R.A. 7610 applies

As demonstrated above, both literal and purposive tests, therefore, show that there is nothing in the language of the law or in the Senate deliberations that supports the conclusion that Section 5(b), R.A. 7610 subsumes all instances of sexual abuse against children.

Thus, for a person to be convicted of violating Section 5(b), R.A. 7610, the following essential elements need to be proved: (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.^[43]

The unique circumstances of the children "exploited in prostitution or subjected to other sexual abuse" — for which the provisions of R.A. 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 amendment 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 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.^[44] (Emphasis and underscoring supplied)

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 act of sexual intercourse or lascivious conduct 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." In this light, I quote in agreement Justice Carpio's dissenting opinion in Olivarez v. Court of Appeals:^[45]

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 lasciviousness 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."^[46] (Emphasis and underscoring supplied)

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. Abello^[47] (Abello), one of the reasons the accused was convicted of rape by sexual assault and acts of lasciviousness, as 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.^[48] (Emphasis and underscoring supplied)

The point of the foregoing is simply this: Articles 266-A and 336 of the RPC remain as operative provisions, and the crime of rape and acts of lasciviousness continue to be crimes separate and distinct from a violation under Section 5(b), R.A. 7610.

The legislative intent to have the provisions of R.A. 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, which again I quote:

SEC. 10. Other Acts of Neglect, Abuse, Cruelty or Exploitation and Other Conditions Prejudicial to the Child's Development. —

(a) Any person who shall commit any other acts of child abuse, cruelty or exploitation or be responsible for other conditions prejudicial to the child's development including those covered by Article 59 of Presidential Decree No. 603, as amended, but not covered by the Revised Penal Code, as amended, shall suffer the penalty of prision mayor in its minimum period. (Emphasis and underscoring)

This is confirmed by Senator Lina in his sponsorship speech of R.A. 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

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.^[49] (Emphasis and underscoring supplied)

It is thus erroneous to rule that R.A. 7610 applies in each and every case where the victim is a minor although he or she was not proved, much less alleged, to be a child "exploited in prostitution or subjected to other sexual abuse." I invite the members of the Court to go back to the mindset and ruling adopted in Abello where it was held that "since R.A. No. 7610 is a special law referring to a particular class in society, the prosecution must show that the victim truly belongs to this particular class to warrant the application of the statute's provisions. Any doubt in this regard we must resolve in favor of the accused."^[50]

There is no question that, in a desire to bring justice to child victims of sexual abuse, the Court has, in continually applying the principles laid down in Dimakuta, Quimvel, and Caoili, sought the application of a law that imposes a harsher penalty on its violators. However, as noble as this intent is, it is fundamentally unsound to let the penalty determine the crime. To borrow a phrase, this situation is letting the tail wag the dog.

To be sure, it is the acts committed by the accused, and the crime as defined by the legislature — not the concomitant penalty — which determines the applicable law in a particular set of facts. As the former Second Division of the Court in People v. Ejercito,^[51] a case penned by Justice Perlas-Bernabe and concurred in by the ponente, correctly held:

Neither should the conflict between the application of Section 5(b) of RA 7610 and RA 8353 be resolved based on which law provides a higher penalty against the accused. The superseding scope of RA 8353 should be the sole reason of its prevalence over Section 5(b) of RA 7610. The higher penalty provided under RA 8353 should not be the moving consideration, given that penalties are merely accessory to the act being punished by a particular law. The term "'[p]enalty' is defined as '[p]unishment imposed on a wrongdoer usually in the form of imprisonment or fine'; '[p]unishment imposed by lawful authority upon a person who commits a deliberate or negligent act.'" Given its accessory nature, once the proper application of a penal law is determined over another, then the imposition of the penalty attached to that act punished in the prevailing penal law only follows as a matter of course. In the final analysis, it is the determination of the act being punished together with its attending circumstances - and not the gravity of the penalty ancillary to that punished act - which is the key consideration in resolving the conflicting applications of two penal laws.

x x x x

x x x Likewise, it is apt to clarify that if there appears to be any rational dissonance or perceived unfairness in the imposable penalties between two applicable laws (say for instance, that a person who commits rape by sexual assault under Article 266-A in relation to Article 266-B of the RPC, as amended by RA 8353 is punished less than a person who commits lascivious conduct against a minor under Section 5 (b) of RA 7610), then the solution is through remedial legislation and not through judicial interpretation. It is well-settled that the determination of penalties is a policy matter that belongs to the legislative branch of government. Thus, however compelling the dictates of reason might be, our constitutional order proscribes the Judiciary from adjusting the gradations of the penalties which are fixed by Congress through its legislative function. As Associate Justice Diosdado M. Peralta had instructively observed in his opinion in Cao[i]li:

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, 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, whereas as [sic] the minimum term in the case of the older victims shall be taken from prision mayor medium to reclusion temporal minimum. 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, 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. To my mind, a corrective legislation is the proper remedy to address the noted incongruent penalties for acts of lasciviousness committed against a child.^[52] (Additional emphasis and underscoring supplied)

Therefore, while I identify with the Court in its desire to impose a heavier penalty for sex offenders who victimize children — the said crimes being undoubtedly detestable — the Court cannot arrogate unto itself a power it does not have. Again, the Court's continuous application of R.A. 7610 in all cases of sexual abuse committed against minors is, with due respect, an exercise of judicial legislation which it simply cannot do.

At this point, it is important to point out that, as a result of this recurrent practice of relating the crime committed to R.A. 7610 in order to increase the penalty, the accused's constitutionally protected right to due process of law is being violated.

An essential component of the right to due process in criminal proceedings is the right of the accused to be sufficiently informed of the cause of the accusation against him. This is implemented through Rule 110, Section 9 of the Rules of Court, which states:

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.

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.^[53] 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.^[54] From this legal backdrop, it may then be said that convicting an accused and relating the offenses to R.A. 7610 to increase the penalty when the Information does not state that the victim was a child "engaged in prostitution or subjected to sexual abuse" constitutes a violation of an accused's right to due process.

The ponencia counters that "[c]ontrary to the view of Justice Caguioa, there is likewise no such thing as a recurrent practice of relating the crime committed to R.A. No. 7610 in order to increase the penalty, which violates the accused's constitutionally protected right to due process of law."^[55]

Yet, no matter the attempts to deny the existence of such practice, the inconsistencies in the ponencia itself demonstrate that its conclusions are driven by the desire to apply whichever law imposes the heavier penalty in a particular scenario. For instance, when discussing the applicable law when the act done by the accused constitutes "sexual intercourse", the ponencia has this discussion on the difference between the elements of "force or intimidation" in Rape under the RPC, on one hand, and "coercion or influence" under Section 5(b) of R.A. 7610, on the other:

In Quimvel, it was held that the term "coercion or influence" is broad enough to cover or even synonymous with the term "force or intimidation." Nonetheless, it should be emphasized that "coercion or influence" is used in Section 5 of R.A. No. 7610 to qualify or refer to the means through which "any adult, syndicate or group" compels a child to indulge in sexual intercourse. On the other hand, the use of "money, profit or any other consideration" is the other mode by which a child indulges in sexual intercourse, without the participation of "any adult, syndicate or group." In other words, "coercion or influence" of a child to indulge in sexual intercourse is clearly exerted NOT by the offender whose liability is based on Section 5(b) of R.A. No. 7610 for committing sexual act with a child exploited in prostitution or other sexual abuse. Rather, the "coercion or influence" is exerted upon the child by "any adult, syndicate, or group" whose liability is found under Section 5(a) for engaging in, promoting, facilitating, or inducing child prostitution, whereby sexual intercourse is the necessary consequence of the prostitution.

x x x x

As can be gleaned above, "force, threat or intimidation" is the element of rape under the RPC, while "due to coercion or influence of any adult, syndicate or group" is the operative phrase for a child to be deemed "exploited in prostitution or other sexual abuse," which is the element of sexual abuse under Section 5(b) of R.A. No. 7610. The "coercion or influence" is not the reason why the child submitted herself to sexual intercourse, but it was utilized in order for the child to become a prostitute. x x x

x x x x

Therefore, there could be no instance that an Information may charge the same accused with the crime of rape where "force, threat or intimidation" is the element of the crime under the RPC, and at the same time violation of Section 5(b) of R.A. No. 7610 where the victim indulged in sexual intercourse because she is exploited in prostitution either "for money, profit or any other consideration or due to coercion or influence of any adult, syndicate or group" - the phrase which qualifies a child to be deemed "exploited in prostitution or other sexual abuse" as an element of violation of Section 5(b) of R.A. No. 7610.^[56] (Emphasis and underscoring supplied; emphasis in the original omitted)

The ponencia, however, refuses to apply the above analysis when the act constitutes "sexual assault" or "lascivious conduct." It merely reiterates the Dimakuta ruling, and again anchors its conclusion on the policy of the State to provide special protection to children. The ponencia explains:

Third, if the charge against the accused where the victim is 12 years old or below is sexual assault under paragraph 2, Article 266-A of the RPC, then it may happen that the elements thereof are the same as that of lascivious conduct under Section 5(b) of R.A. No. 7610, because the term "lascivious conduct" includes introduction of any object into the genitalia, anus or mouth of any person. In this regard, We held in Dimakuta that in instances where a lascivious conduct" committed against a child is covered by R.A. No. 7610 and the act is likewise covered by sexual assault under paragraph 2, Article 266-A of the RPC [punishable by prision mayor], the offender should be held liable for violation of Section 5(b) of R.A. No. 7610 [punishable by reclusion temporal medium], 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. x x x^[57]

In another part of the ponencia, it partly concedes yet insists on its point, again by invoking the legislative intent behind the law. Thus:

Justice Caguioa is partly correct. Section 5(b) of R.A. No. 7610 is separate and distinct from common and ordinary acts of lasciviousness under Article 336 of the RPC. However, when the victim of such acts of lasciviousness is a child, as defined by law, We hold that the penalty is that provided for under Section 5(b) of R.A. No. 7610 – i.e., reclusion temporal medium in case the victim is under 12 years old, and reclusion temporal medium to reclusion perpetua when the victim is between 12 years old or under 18 years old or above 18 under special circumstances – and not merely prison (sic) correccional under Article 336 of the RPC. Our view is consistent with the legislative intent to provide stronger deterrence against all forms of child abuse, and the evil sought to be avoided by the enactment of R.A. No. 7610, which was exhaustively discussed during the committee deliberations of the House of Representatives[.]^[58]

Clear from the foregoing is that the ponencia is willing to apply the inherent differences between the provisions of the RPC and R.A. 7610 when it comes to rape by sexual intercourse, and it is because the RPC imposes the heavier penalty of reclusion perpetua compared with the reclusion temporal medium to reclusion perpetua of Section 5(b), R.A. 7610. It is unwilling, however, to extend the same understanding of the differences between the provisions of the RPC and R.A. 7610 — and in the process contradicts itself — when the act constitutes "sexual assault", "acts of lasciviousness" or "lascivious conduct" for the reason that the RPC punishes the said acts with only prision correccional^[59] or prision mayor.^[60]

Another instance in the ponencia that reveals that the penalty imposed is the primordial consideration in the choice of applicable law is the discussion on whether R.A. 8353 has superseded R.A. 7610. In the earlier part of the ponencia, it says:

Records of committee and plenary deliberations of the House of Representative (sic) and of the deliberations of the Senate, as well as the records of bicameral conference committee meetings, further reveal no legislative intent for R.A. No. 8353 to supersede Section 5(b) of R.A. No. 7610. x x x While R.A. No. 8353 contains a generic repealing and amendatory clause, the records of the deliberation of the legislature are silent with respect to sexual intercourse or lascivious conduct against children under R.A. No. 7610, particularly those who are 12 years old or below 18, or above 18 but are unable to fully take care or protect themselves from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability or condition.^[61] (Emphasis and underscoring supplied)

Despite the clear pronouncement of the ponencia quoted above that R.A. 8353 did not supersede R.A. 7610, it would later on say:

x x x Indeed, while R.A. No. 7610 is a special law specifically enacted to provide special protection to children from all forms of abuse, neglect, cruelty, exploitation and discrimination and other conditions prejudicial to their development, We hold that it is contrary to the legislative intent of the same law if the lesser penalty (reclusion temporal medium to reclusion perpetua) under Section 5(b) thereof would be imposed against the perpetrator of sexual intercourse with a child 12 years of age or below 18.

Article 266-A, paragraph 1(a) in relation to Article 266-B of the RPC, as amended by R.A. No. 8353, is not only the more recent law, but also deals more particularly with all rape cases, hence, its short title "The Anti-Rape Law of 1997." R.A. No. 8353 upholds the policies and principles of R.A. No. 7610, and provides a "stronger deterrence and special protection against child abuse," as it imposes a more severe penalty of reclusion perpetua under Article 266-B of the RPC, or even the death penalty if the victim is (1) under 18 years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or common-law spouses of the parent of the victim; or (2) when the victim is a child below 7 years old.

It is basic in statutory construction that in case of irreconcilable conflict between two laws, the later enactment must prevail, being the more recent expression of legislative will. Indeed, statutes must be so construed and harmonized with other statutes as to form a uniform system of jurisprudence, and if several laws cannot be harmonized, the earlier statute must yield to the later enactment, because the later law is the latest expression of the legislative will. Hence, Article 266-B of the RPC must prevail over Section 5(b) of R.A. No. 7610.^[62] (Emphasis and underscoring supplied)

It is again plainly evident from the above that the conclusion is heavily influenced by the corresponding penalties contained in the respective laws.

It is apparent, therefore, that the ponencia's choice of applicable law is primarily driven by the penalty imposed, all in the name of the State's policy to provide special protection to children. However, this would be in clear disregard of the right of the accused to be punished only to the extent that the law imposes a specific punishment on him.

This practice, without doubt, violates the rights of the accused in these cases. In Dimakuta, for example, one of the three oft-cited cases of the ponencia in reaching its conclusions, the crime was related to R.A. 7610 to increase the penalty even if the Information in the said case did not even mention the said law nor was there any allegation that the victim was EPSOSA. The Information in Dimakuta states:

That on or about the 24th day of September 2005, in the City of Las Piñas, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with lewd designs, did then and there willfully, unlawfully and feloniously commit a lascivious conduct upon the person of one AAA, who was then a sixteen (16) year old minor, by then and there embracing her, touching her breast and private part against her will and without her consent and the act complained of is prejudicial to the physical and psychological development of the complainant.^[63]

The Information filed in this case likewise did not specify that the victim was "exploited in prostitution or subjected to other sexual abuse," and in fact indicated "force and intimidation" as the mode of committing the crime — which, by the own ponencia's arguments above, triggers the application of the RPC, not Section 5(b) of R.A. 7610. The Information reads:

That sometime in the month of September 2011, at x x x, and within the jurisdiction of this Honorable Court, the above-named accused, by means of force, intimidation and with abuse of superior strength forcibly laid complainant AAA, a 9-year old minor in a cemented pavement, and did then and there willfully, unlawfully and feloniously inserted his finger into the vagina of the said AAA, against her will and consent.^[64] (Emphasis and underscoring supplied)

Again, by the ponencia' s pronouncements — that: (1) "there could be no instance that an Information may charge the same accused with the crime of rape where 'force, threat or intimidation' is the element of the crime under the RPC, and at the same time violation of Section 5(b) of R.A. No. 7610;"^[65] and (2) that '"coercion or influence' of a child to indulge in sexual intercourse is clearly exerted NOT by the offender whose liability is based on Section 5(b) of R.A. No. 7610 for committing sexual act with a child exploited in prostitution or other sexual abuse. Rather, the 'coercion or influence' is exerted upon the child by 'any adult, syndicate, or group' whose liability is found under Section 5(a),"^[66] — then the accused-appellant in this case should be convicted only of Sexual Assault under Article 266-A(2) of the RPC, punishable by prision mayor, instead of Sexual Assault, in relation to Section 5(b), R.A. 7610, punishable by reclusion temporal medium, as the ponencia did.

It is true that because of Dimakuta and other similar cases, many prosecutors have opted to put the phrase "in relation to Republic Act No. 7610" in Informations they file with the courts, just like in this case, concerning rape or sexual abuse. This practice, however, does not mean that the violation of due process has stopped. In Canceran v. People,^[67] the Court stressed:

The Court is not unmindful of the rule that "the real nature of the criminal charge is determined, not from the caption or preamble of the information nor from the specification of the law alleged to have been violated — these being conclusions of law — but by the actual recital of facts in the complaint or information." In the case of Domingo v. Rayala, it was written:

What is controlling is not the title of the complaint, nor the designation of the offense charged or the particular law or part thereof allegedly violated, these being mere conclusions of law made by the prosecutor, but the description of the crime charged and the particular facts therein recited. The acts or omissions complained of must be alleged 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 pronounce proper judgment. No information for a crime will be sufficient if it does not accurately and clearly allege the elements of the crime charged. Every element of the offense must be stated in the information. What facts and circumstances are necessary to be included therein must be determined by reference to the definitions and essentials of the specified crimes. The requirement of alleging the elements of a crime in the information is to inform the accused of the nature of the accusation against him so as to enable him to suitably prepare his defense.^[68] (Additional emphasis and underscoring supplied)

To recall, the test for sufficiency of an Information is that it must state the facts constituting the offense in a manner that would enable a person of common understanding to know what offense was intended to be charged.^[69] Hence, the phrase "in relation to Republic Act No. 7610" in criminal Informations, much like in the one filed in this case, does not cure the defect in the said Informations. Again, it is my view that criminal Informations, to be considered under the purview of Section 5(b), R.A. 7610, must state the child-victim is "exploited in prostitution or subjected to other sexual abuse" and allege the particulars.

In addition, even if it was alleged in the Information that the act is contrary to, or in violation of, R.A. 7610, if, during the trial, it was not proved that the victim was a child engaged in prostitution or subjected to other sexual abuse, it would be error to convict the said accused under Section 5(b), R.A. 7610. This is because it is well-established that the following are the elements of the crime:

(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.^[70] (Emphasis and underscoring supplied; emphasis in the original omitted)

It cannot really be gainsaid that the second element of the crime defined in R.A. 7610 requires that the child-victim be one that is exploited in prostitution or subjected to other sexual abuse — and not just simply any child. In the present case, for instance, the information states that the act committed by the accused was "[c]ontrary to Article 266-A, par. 2 of the Revised Penal Code in relation to R.A. 7610"^[71] and yet, it was not proved, much less alleged, that the victim was engaged in prostitution or was subjected to other sexual abuse. According to the ponencia, the victim AAA was merely peeling corn with her cousin when the accused, who lived adjacent to her grandmother's house, approached her and opened her legs, and inserted his finger into her private part.^[72] There is nothing in the ponencia from which it could be reasonably inferred that AAA was engaged in prostitution or subjected to other sexual abuse — and yet, the accused Salvador Tulagan is being adjudged guilty of "Sexual Assault under paragraph 2, Article 266-A of the Revised Penal Code, in relation to Section 5(b) of Republic Act No. 7610."^[73]

When the statute speaks unequivocally, there is nothing for the courts to do but to apply it. The accused in this case is clearly guilty only of Sexual Assault, defined and penalized under Article 266-A, par. 2 of the RPC, as amended by R.A. 8353 — and not in relation to R.A. 7610.

To reiterate, R.A. 7610 and the RPC, as amended by R.A. 8353, have different spheres of application; they exist to complement each other such that there would be no gaps in our criminal laws. They were not meant to operate simultaneously in each and every case of sexual abuse committed against minors. In this connection, I agree with the ponencia as it lays down the following guidelines in determining which law should apply when the victim is a minor and the sexual act done constitutes rape by sexual intercourse:

Even if the girl who is below twelve (12) years old or is demented consents to the sexual intercourse, it is always a crime of statutory rape under the RPC, and the offender should no longer be held liable under R.A. No. 7610. x x x

x x x x

If the victim who is 12 years old or less than 18 and is deemed to be a child "exploited in prostitution and other sexual abuse" because she agreed to indulge in sexual intercourse "for money, profit or any other consideration or due to coercion or influence of any adult, syndicate or group," then the crime could not be rape under the RPC, because this no longer falls under the concept of statutory rape, and there was consent. That is why the offender will now be penalized under Section 5(b), R.A. No. 7610, and not under Article 335 of the RPC [now Article 266-A]. But if the said victim does not give her consent to sexual intercourse in the sense that the sexual intercourse was committed through force, threat or intimidation, the crime is rape under paragraph 1, Article 266-A of the RPC. However, if the same victim gave her consent to the sexual intercourse, and no money, profit, consideration, coercion or influence is involved, then there is no crime committed, except in those cases where "force, threat or intimidation" as an element of rape is substituted by "moral ascendancy or moral authority," like in the cases of incestuous rape, and unless it is punished under the RPC as qualified seduction under Article 337 or simple seduction under Article 338."^[74]

Verily, in the above guidelines of the ponencia, the Court has already taken the right steps forward in streamlining which law is applicable in a particular set of facts. It is thus my view to extend the same set of guidelines not just in cases where the act done constitutes rape by sexual intercourse, but also in cases where the act done constitutes rape by sexual assault or acts of lasciviousness.

Respectfully, the objective of the ponencia to finally reconcile the seemingly conflicting laws and the resulting confusing state of jurisprudence would better be achieved if the Court adopts the foregoing understanding. To illustrate, if the Court decides to adopt the foregoing, the proposed table by the ponencia would look like this:

Acts done by the accused consist of:	Crime committed if the victim is under 12 years old or demented	Crime committed if the victim is 12 years old or older but below 18, or is 18 years old but under special circumstances[75]	Crime committed if victim is 18 years old and above
Acts of Lasciviousness	Acts of Lasciviousness under Article 336 of the RPC Penalty: Prision Correccional If committed against a child exploited in prostitution or subjected to other sexual abuse, the crime committed would still be Acts of Lasciviousness but the penalty would be reclusion temporal in its medium period in accordance with Section 5(b) of R.A. 7610.	Acts of Lasciviousness under Article 336 of the RPC Penalty: Prision Correccional If committed against a child exploited in prostitution or subjected to other sexual abuse, the crime committed would be Lascivious conduct under Section 5(b) of R.A. 7610 and the penalty would be reclusion temporal in its medium period to reclusion perpetua	Acts of Lasciviousness under Article 336 of the RPC Penalty: Prision correccional
Sexual Assault	Sexual Assault under Article 266-A(2) of the RPC. Penalty: prision mayor If committed against a child exploited in prostitution or subjected to other sexual abuse, it would still be Sexual Assault but the penalty would be reclusion temporal in its medium period in accordance with Section 5(b) of R.A. 7610	Sexual Assault under Article 266-A(2) of the RPC. Penalty: prision mayor If committed against a child exploited in prostitution or subjected to other sexual abuse, the crime would be Lascivious conduct under Section 5(b) of R.A. 7610 and the penalty would be reclusion temporal in its medium period to reclusion perpetua	Sexual Assault under Article 266-A(2) of the RPC. Penalty: prision mayor
Carnal knowledge / Rape by Sexual Intercourse	Rape under Article 266-A(1) of the RPC Penalty: reclusion perpetua, except when the victim is below 7 years old in which case death penalty shall be imposed	Rape under Article 266-A(1) of the RPC Penalty: reclusion perpetua If committed against a child exploited in prostitution or subjected to other sexual abuse, the crime would be Sexual Abuse under Section 5(b) of R.A. 7610 and the penalty would be reclusion temporal in its medium period to reclusion perpetua	Rape under Article 266-A(1) of the RPC Penalty: reclusion perpetua

On the supposed repeal of Article 336 of the Revised Penal Code

I would also like to take this opportunity to offer my point-of-view on the points raised by Justice Marvic M.V.F. Leonen in his separate opinion.

Justice Leonen argues that the enactment of R.A. 8353 rendered ineffective the provision on acts of lasciviousness in the RPC. According to him, Article 336 of the RPC punishes "[a]ny person who shall commit any act of lasciviousness upon other persons of either sex, under any of the circumstances mentioned in the preceding article" and since the preceding article referred to was the old provision on rape supposedly "repealed"^[76] by R.A. 8353, he then concludes that Article 336 of the RPC is no longer operative.

I respectfully disagree with my esteemed colleague.

It is well-settled that repeals by implication are not favored. A law will only be declared impliedly repealed when it is manifest that the legislative authority so intended,^[77] or unless it is convincingly and unambiguously demonstrated that the subject laws or orders are clearly repugnant and patently inconsistent that they cannot co-exist.^[78] In the absence of such showing, every effort must be used to make all acts stand, and the later act will not operate as a repeal of the earlier one, if by any reasonable construction, they can be reconciled.^[79] As the Court said in Mecano v. COA:^[80]

Repeal by implication proceeds on the premise that where a statute of later date clearly reveals an intention on the part of the legislature to abrogate a prior act on the subject, that intention must be given effect. Hence, before there can be a repeal, there must be a clear showing on the part of the lawmaker that the intent in enacting the new law was to abrogate the old one. The intention to repeal must be clear and manifest; otherwise, at least, as a general rule, the later act is to be construed as a continuation of, and not a substitute for, the first act and will continue so far as the two acts are the same from the time of the first enactment.^[81] (Emphasis and underscoring supplied)

In the present case, I do not discern any clear intent on the part of the legislature to repeal the crime of acts of lasciviousness in enacting R.A. 8353.

Justice Leonen's argument is based on the premise that Article 335 was "repealed" by R.A. 8353. I submit that the premise is misplaced because, in fact, the provision penalizing the act of rape was only renumbered to reflect the paradigm shift introduced by R.A. 8353 in treating rape as a crime against persons instead of merely a crime against chastity, and amended to reflect the policy changes with regard to how it is committed and the circumstances which may aggravate the same.

I find nothing in R.A. 8353 to reasonably infer that it meant to affect the crime of acts of lasciviousness apart from the renumbering of Article 335 to Articles 266-A to 266-D. To me, this is not the clear and manifest intention to repeal required by jurisprudence; thus, every effort must be exerted to reconcile the provisions and make all acts stand. Thus, it is my view that Article 336 is not rendered incomplete and ineffective since its elements can still be completed by simply construing the phrase "preceding article" to mean Article 266-A, since the same act remains to be punished. To emphasize, the intention to punish the crime of acts of lasciviousness remains, and a minor modification in article numbers does not operate to revoke the said intention.

In further arguing for the "ineffectivity" of Article 336, Justice Leonen reasons that:

In any case, the ineffectivity of Article 336 does not preclude acts of lasciviousness from being punishable under different laws such as Republic Act No. 7610 [or the Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act] or Republic Act No. 9262 [or the Anti-Violence Against Women and Their Children Act of 2004]. These laws, likewise, carry more severe penalties than Article 336, providing better protection for victims of lascivious acts not constituting rape.^[82]

Again, I differ with my learned colleague. With due respect, I cannot subscribe to the foregoing ratiocination because — to reiterate — R.A. 7610 was enacted only to address a specific set of victims, as it only covers children exploited under prostitution or subjected to other sexual abuse. But even if we accept, for the sake of argument, that R.A. 7610 covers all types of sexual abuse committed against any child, without qualification, I am still unconvinced by the argument for such construction would create a huge gap in our criminal laws that would protect women-victims of acts of lasciviousness who are either (1) no longer minors or (2) were not abused by a person with whom they have or had a sexual or dating relationship. To illustrate, if the Court decides to adopt Justice Leonen's proposed construction, there would be no crime committed in case a random stranger touches a 19-year-old woman's private parts without her consent.

On the distinction between rape by penile penetration and other forms of sexual abuse

Justice Leonen reiterates his view as expressed in Caoili that "[t]he persistence of an archaic understanding of rape relates to our failure to disabuse ourselves of the notion that carnal knowledge or sexual intercourse is merely a reproductive activity."^[83] In driving home his point, he quotes his decision in People v. Quintos,^[84] which states:

The classifications of rape in Article 266-A of the Revised Penal Code are relevant only insofar as these define the manners of commission of rape. However, it does not mean that one manner is less heinous or wrong than the other. Whether rape is committed by nonconsensual carnal knowledge of a woman or by insertion of the penis into the mouth of another person, the damage to the victim's dignity is incalculable. Child sexual abuse in general has been associated with negative psychological impacts such as trauma, sustained fearfulness, anxiety, self-destructive behavior, emotional pain, impaired sense of self, and interpersonal difficulties. Hence, one experience of sexual abuse should not be trivialized just because it was committed in a relatively unusual manner.

"The prime purpose of [a] criminal action is to punish the offender in order to deter him and others from committing the same or similar offense, to isolate him from society, reform and rehabilitate him or, in general, to maintain social order." Crimes are punished as retribution so that society would understand that the act punished was wrong.

Imposing different penalties for different manners of committing rape creates a message that one experience of rape is relatively trivial or less serious than another. It attaches different levels of wrongfulness to equally degrading acts. Rape, in whatever manner, is a desecration of a person's will and body. In terms of penalties, treating one manner of committing rape as greater or less in heinousness than another may be of doubtful constitutionality.^[85]

While I fully understand the underlying considerations of Justice Leonen's viewpoint, I respectfully disagree with his proposed approach.

I agree with Justice Leonen that "[a] woman who was raped through insertion of a finger does not suffer less than a woman who was raped by penile penetration."^[86] I likewise concur with the following statements of Justice Leonen:

Sexual intercourse is more than a means for procreation. It is a powerful expression of intimacy between human beings. It "requires the shedding of all inhibitions and defenses to allow humans to explore each other in their most basic nakedness." Sexual intercourse may involve penile penetration, or a whole other spectrum of sexual acts that do not require penetration at all. Ultimately, it is the human being's choice whom to be intimate with and what that intimacy may involve.

Rape is the violation of this choice. It is not punished simply because a penis forcefully penetrated a vagina. The crime is vile and heinous because it takes away a victim's fundamental autonomy to choose with whom she would share intimacy. It violates a victim's autonomy over her own body.^[87] (Underscoring supplied)

However, despite the truth in the foregoing statements, I cannot agree to Justice Leonen's suggestion that the Court should treat them equally, such that the Court would apply the penalty prescribed by law for rape by sexual intercourse (i.e., reclusion perpetua) to acts of rape by sexual assault. To do so would be an act of judicial legislation which, as I have stressed in this Opinion many times, the Court cannot do.

Indeed, the country has gone far in terms of enacting legislations to provide special protection to women. Due to the enactment of R.A. 8353, the crime of rape has been reclassified from a crime against chastity to a crime against persons, thereby making the said crime a public crime. A new species of crimes called "rape by sexual assault" was also created by R.A. 8353 to expressly acknowledge that rape is nevertheless committed when the sexual acts were done without the victim's consent, even when the acts performed do not involve vaginal penetration by the penis. The acts constituting "rape by sexual assault" — either by (a) inserting the penis into another person's mouth or anal orifice or (b) inserting any instrument or object into the genital or anal orifice of another person, through force, threat or intimidation^[88] — were previously denominated as mere acts of lasciviousness and were thus "upgraded" to rape by the enactment of R.A. 8353. Another important development introduced by R.A. 8353 is the concept of marital rape, thus highlighting the significant paradigm shift in our rape laws to give premium to women's consent to sexual activities and thereby further upholding the autonomy of women.

In recognition also of the fact that women are, more often than not, the victims of domestic violence, the legislature enacted R.A. 9262 to provide protection against women and their children from various forms of abuses committed against them by persons with whom they have or had a sexual or dating relationship. Deviating from the traditional definition of violence which was limited to physical and sexual violence, R.A. 9262 expanded the definition to include other forms of violence, namely psychological and economic abuse.

These legislations, to name a few, reflect an evolving understanding of consent, autonomy of women, and the role of laws in curbing patriarchal structures that perpetuate violence against women. In a similar way, it also reflects a progressive thrust towards protection of women.

In this connection, I take exception to Justice Leonen's statement that "[w]e cannot continue to convict rapists on the basis that women need to be kept chaste and virginal."^[89] As shown above, the legislature had already taken steps in enacting legislation based on society's improving understanding of consent and female sexuality. Moreover, the Court itself, in its numerous decisions, has taken strides in reversing outdated notions about these concepts. Examples of these include the following, where the Court held that:

(1) "[A] love affair does not justify rape, for the beloved cannot be sexually violated against her will. Love is not a license for lust";^[90]

(2) "Husbands do not have property rights over their wives' bodies. Sexual intercourse, albeit within the realm of marriage, if not consensual is rape"^[91]

(3) "A victim should never be faulted for her lack of resistance to any forms of crime particularly as grievous as rape. Failure to shout or offer tenacious resistance does not make voluntary the victim's submission to the perpetrator's lust";^[92] and

(4) "Even a complainant who was a woman of loose morals could still be the victim of rape. Even a prostitute may be a victim of rape."^[93]

Respectfully, it would be inaccurate to claim that the legal framework on rape and sexual abuse — as crafted by the legislature and interpreted by the Court — remains to be based on ancient mindsets and outdated notions. As illustrated by the foregoing, the different branches of government have been active, within the respective scopes of power granted to them by the Constitution, in reversing oppressive structures that perpetrate and perpetuate violence against women, particularly in the area of sexual violence.

Apropos thereto, the legislature, in the exercise of its wisdom, enacted R.A. 8353 with a distinction between rape by penile penetration of the vagina as against acts considered as rape by sexual assault. To my mind, the distinction created by the legislature should be upheld in the absence of a clear and unmistakable showing that it is unconstitutional. It bears to stress that the power to declare something as a criminal act, and to prescribe the corresponding penalty therefor, is a power vested solely by the Constitution on the legislature — not on this Court.

Moreover, it is my considered opinion that the distinction is valid because rape by penile penetration of the vagina may result in an unwanted pregnancy which may subject the woman to a lifelong responsibility of rearing a child as a result of the dastardly act. The same cannot be said, however, for other acts of rape that are not committed through penile penetration of the vagina. In other words, the severity of punishment imposed on the crime of rape by sexual intercourse does not spring from the archaic notion that sexual intercourse is merely a reproductive activity. On the contrary, the distinction is based on the possibility that the victim might incur a perpetual responsibility — one that is not present in acts constituting rape by sexual assault. Thus, while the trauma faced by victims of either forms of abuse are concededly equal, victims of rape by sexual intercourse are subjected to another "residual" and "permanent" form of victimization (i.e., pregnancy) to which victims of other forms of sexual abuse are not subjected.

I thus disagree with Justice Leonen's statements that "[t]he idea that one (1) kind of rape is punished more severely than the other because of 'unwanted procreation' only serves to undermine the law's reconceptualization of rape as a crime against persons"^[94] and that "providing a lesser punishment for the forceful insertion of a finger into the vagina, solely because it will not result in an unwanted pregnancy, is a step backwards."^[95]

To my mind, the difference in treatment is not based on an archaic notion about a woman's virtue, but has more to do with the possibility that, as a result of the act, the victim would be forced to introduce another life in this world — one that the woman-victim would have responsibility over for the rest of her life. To reiterate, it may be true that all types of sexual abuse inflict the same amount of suffering or trauma, but only rape by penile penetration of the vagina could possibly impregnate the victim. This possibility is, to my mind, at the heart of the difference in terms of penalties to be imposed, not the perceived intensity of suffering caused on the victim. Stated differently, the difference in the penalties imposed was not meant to belittle the suffering of victims of rape by sexual assault; rather, it is meant to recognize that victims of rape by penile penetration of the vagina face risks that none of the other victims are subjected to.

Therefore, I disagree with the assertion that "[t]his Court's continued refusal to recognize the forceful insertion of a finger into a woman's vagina as rape by sexual intercourse only shows that rape, at least in the eyes of this Court, has remained a crime against chastity,"^[96] as not only suffering from a lack of factual basis, but also failing to recognize that this policy decision to treat the two crimes differently is within the province of the legislature to decide.

It bears to stress that the power granted to the Court by the Constitution is judicial power or the power to interpret what the law means in a specific set of facts — it is not the power to determine what the law should be. It is immaterial whether we, as individual justices, agree with the wisdom of the law, for our solemn power and duty to apply the same remains so long as the said law is constitutional.

In the matter at hand, R.A. 8353 treats rape by penile penetration of the vagina differently from rape by sexual assault. While I join Justice Leonen on his call to not measure a woman's dignity on the sole basis of her virtue,^[97] and to recognize that all victims of forced sexual acts suffer the same indignity,^[98] it is equally important for the Court to recognize its place in our Constitutional government: that it is but one of only three co-equal branches of the government and it is not its task to set the corresponding penalties to be imposed on certain criminal acts.

This is not to say that there is no merit in his point that our evolving understanding of human sexuality should lead us to treat both types of rape — by sexual intercourse and by sexual assault — equally. Sexual intercourse, indeed, is more than a means for procreation, and I also agree that rape, at its core, is essentially a violation of a person's choice on when and with whom to be physically intimate. The policy decision, however, lies not with the Court but with Congress.

A final note

At this juncture, I would like to again laud the ponencia's efforts to determine the intent of the legislature — including revisiting the Senate's deliberations — in enacting R.A. 7610. However, as our respective study of the deliberations yielded different results, I once again make the point that the language of a penal statute cannot be enlarged beyond the ordinary meaning of its terms in order to carry into effect the general purpose for which the statute was enacted. Only those persons, offenses, and penalties, clearly included, beyond any reasonable doubt, will be considered within the statute's operation. The fact alone that there are different interpretations as to the applicability of Section 5(b) should impel the Court to construe the law strictly; with any reasonable doubt resolved in favor of the person charged.^[99] As the Court reminds in one case:

The statute, then, being penal, must be construed with such strictness as to carefully safeguard the rights of the defendant and at the same time preserve the obvious intention of the legislature. If the language be plain, it will be construed as it reads, and the words of the statute given their full meaning; if ambiguous, the court will lean more strongly in favor of the defendant than it would if the statute were remedial. In both cases it will endeavor to effect substantial justice. x x x^[100]

Lest it be misconstrued, I am not stubbornly arguing for my position in this case in order that a guilty person may go scot-free. As the Court in People v. Purisima^[101] held: "[t]he purpose is not to enable a guilty person to escape punishment through a technicality but to provide a precise definition of forbidden acts."

In the end, this Opinion is only meant to pursue one thing: that is, so that justice can be properly dispensed not just to the minors victimized by sexual predators, but also to the latter who, even though they have violated the law, nevertheless have the right to be punished only to the extent of the specific punishment imposed on them by the law.

Based on these premises, I vote to DENY the instant appeal and AFFIRM with MODIFICATION the Decision of the Court of Appeals dated August 17, 2015, as follows:

"The Court finds accused-appellant Salvador Tulagan:

1. Guilty beyond reasonable doubt of Sexual Assault under paragraph 2, Article 266-A of the Revised Penal Code, in Criminal Case No. SCC-6210, and is sentenced to suffer the indeterminate penalty of four (4) years and two (2) months of prision correccional, as minimum, to ten (10) years of prision mayor, as maximum. He is further ORDERED to PAY AAA the amounts of P50,000.00, as civil indemnity, P50,000.00 as moral damages, and P50,000.00 as exemplary damages.
   
   
2. Guilty beyond reasonable doubt of Statutory Rape under Article 266-A(1)(d) and penalized in Article 266-B of the Revised Penal Code, in Criminal Case No. SCC-6211, and is sentenced to suffer the penalty of reclusion perpetua with modification as to the award of damages. Appellant is ORDERED to PAY AAA the amounts of P75,000.00 as civil indemnity, P75,000.00 as moral damages, and P75,000.00 as exemplary damages.

Legal interest of six percent (6%) per annum is imposed on all damages awarded from the date of finality of this Decision until fully paid.

SO ORDERED."

---

^[1] See Ponencia, pp. 29-30.

^[2] As defined under Section 3(a), R.A. 7610, "Children" refers to 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.

^[3] 771 Phil. 641 (2015).

^[4] G.R. No. 214497, April 18, 2017, 823 SCRA 192.

^[5] G.R. No. 196342, August 8, 2017, 835 SCRA 107.

^[6] R.A. 7610, Sec. 2.

^[7] Supra note 3, at 670-671.

^[8] J. Caguioa, Dissenting Opinion in Quimvel v. People, supra note 4, at 298.

^[9] Ponencia, p. 31. Emphasis supplied.

^[10] United Paracale Mining Co., Inc. v. Dela Rosa, 293 Phil. 117, 123-124 (1993).

^[11] Ponencia, p. 33.

^[12] J. Ynares-Santiago, Dissenting Opinion in People v. Lacson, 459 Phil. 330, 380 (2003).

^[13] Centeno v. Villalon-Pornillos, 306 Phil. 219, 228 (1994).

^[14] Id. at 228.

^[15] (b) "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 treatment to an injured child resulting in serious impairment of his growth and development or in his permanent incapacity or death.

^[16] Ponencia, pp. 34-36.

^[17] RECORD OF THE SENATE, Vol. III, No. 104, March 19, 1991, p. 1204.

^[18] 272 Phil. 532 (1991).

^[19] Id. at 569. Emphasis and underscoring supplied.

^[20] RECORD OF THE SENATE, Vol. I, No. 7, August 1, 1991, pp. 264-265.

^[21] RECORD OF THE SENATE, Vol. II, No. 58, December 2, 1991, pp. 793-794.

^[22] Ponencia, p. 33.

^[23] RECORD OF THE SENATE, Vol. I, No. 7, August 1, 1991, pp. 261-262.

^[24] Expressed in its Declaration of State Policy and Principles (Section 2).

^[25] 1987 CONSTITUTION, Art. XV, Sec. 3(2).

^[26] Ponencia, pp. 35-36.

^[27] People v. Subido, 160-A Phil. 51, 59 (1975).

^[28] Id. at 59.

^[29] 85 Phil. 651 (1950).

^[30] Id. at 656, citing Crawford, Statutory Construction, pp. 460-462.

^[31] See Ponencia, pp. 37-39.

^[32] Id. at 37.

^[33] RECORD OF THE SENATE, Vol. II, No. 58, December 2, 1991, pp. 793-794.

^[34] See Ponencia, p. 47.

^[35] Id. at 39.

^[36] Which includes all other acts not sexual acts not constituting Rape by Sexual Intercourse because the Implementing Rules and Regulations of RA 7610 defines "lascivious conduct" as "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[.]" RULES AND REGULATIONS ON THE REPORTING AND INVESTIGATION OF CHILD ABUSE CASES, Sec. 2(h).

^[37] J. Perlas-Bernabe, Separate Opinion, p. 5.

^[38] Id. at 6.

^[39] Id.

^[40] Ponencia, p. 37.

^[41] Id. at 40.

^[42] See id. at 42-43; RECORD OF THE SENATE, Vol. I, No. 7, August 1, 1991, pp. 258-259.

^[43] People v. Abello, 601 Phil 373, 392 (2009). Decided by the Second Division; penned by Associate Justice Arturo D. Brion, with Associate Justices Dante O. Tinga, Ma. Alicia Austria-Martinez, Renato C. Corona and Presbitero J. Velasco, Jr. concurring.

^[44] RECORD OF THE SENATE, Vol. IV, No. 116, May 9, 1991, pp. 334-335.

^[45] 503 Phil. 421 (2005).

^[46] Id. at 445-447.

^[47] Supra note 43.

^[48] Id. at 393.

^[49] RECORD OF THE SENATE, Vol. IV, No. III, April 29, 1991, pp. 191-193.

^[50] Supra note 43, at 394. Emphasis, italics and underscoring supplied.

^[51] G.R. No. 229861 , July 2, 2018.

^[52] Id. at 15-17.

^[53] Dela Chica v. Sandiganbayan, 462 Phil. 712, 719 (2003).

^[54] Id. at 719.

^[55] Ponencia, p. 42.

^[56] Ponencia, pp. 25-27.

^[57] Ponencia, pp. 27-28.

^[58] Id. at 48.

^[59] In cases of Acts of Lasciviousness under Art. 336, RPC.

^[60] In cases of Sexual Assault under Article 266-A(2), RPC.

^[61] Ponencia, pp. 11-12.

^[62] Id. at 28-29.

^[63] Supra note 3, at 652.

^[64] Ponencia, p. 2.

^[65] Id. at 27.

^[66] Id. at 26.

^[67] 762 Phil. 558 (2015).

^[68] Id . at 568-569.

^[69] See People v. Delector , G.R. No. 200026, October 4, 2017, 841 SCRA 647, 659.

^[70] People v. Caoili, supra note 5, at 145.

^[71] Ponencia, p. 2.

^[72] Id. at 3.

^[73] Id. at 66.

^[74] Id. at 20-22.

^[75] Or is 18 years or older but under special circumstances (as defined in R.A. 7610) and engaged in prostitution or subjected to other sexual abuse.

^[76] J . Leonen, Separate Concurring Opinion, p. 11.

^[77] See United Harbor Pilots' Association of the Philippines, Inc. v. Association of International Shipping Lines, Inc., 440 Phil. 188, 199 (2002).

^[78] Id. at 199.

^[79] Smith, Bell & Co. v. Estate of Maronilla, 41 Phil. 557, 562 (1916).

^[80] 290-A Phil. 272 (1992).

^[81] Id. at 280.

^[82] J. Leonen, Separate Concurring Opinion, p. 11.

^[83] Id. at 12.

^[84] 746 Phil. 809 (2014).

^[85] Id. at 832-833.

^[86] J. Leonen, Separate Concurring Opinion, p. 12.

^[87] Id. at 14-15.

^[88] Because rape may be committed through different means. Article 266-A of the Revised Penal Code, as amended by R.A. 8353, provides:

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.

^[89] J. Leonen, Separate Concurring Opinion, p. 13

^[90] People v. Bisora, G.R. No. 218942, June 5, 2017, 826 SCRA 38, 44-45. Italics in the original omitted.

^[91] People v. Jumawan, 733 Phil. 102, 110 (2014).

^[92] People v. Barberan, 788 Phil. 103, 111-112 (2016).

^[93] People v. Court of Appeals, 755 Phil. 80, 112 (2015).

^[94] J. Leonen, Separate Concurring Opinion, p. 13.

^[95] Id. at 14.

^[96] Id. at 15.

^[97] Id. at 13.

^[98] Id. at 15.

^[99] See People v. Atop, 349 Phil. 825 (1998).

^[100] U.S. v. Go Chico, 14 Phil. 128, 140-141 (1909), citing Bolles v. Outing Co., 175 U.S. 262, 265; U.S. v. Wiltberger, 5 Wheat. 76, 95; U.S. v. Reese, 92 U.S. 214.

^[101] 176 Phil. 186, 208 (1978).