This is a Petition for Review on Certiorari^[1] assailing the Decision^[2] dated June 28, 2017 of the Court of Appeals finding Rodan Bangayan y Alcaide (Bangayan) guilty beyond reasonable doubt of violation of Section 5(b), Article III of Republic Act No. (R.A) 7610, the dispositive portion of which reads:

FOR THE STATED REASONS, the appeal is DENIED. The assailed Decision of the Regional Trial Court is AFFIRMED with MODIFICATION that the award of damages is increased to Php 75,000.00 each as civil indemnity, moral damages and exemplary damages.

SO ORDERED.^[3]

Antecedents

The Information^[4] against Bangayan alleges:

That sometime in the month of January, [sic] 2012 at Brgy. San Ramos, Municipality of Nagtipunan, Province of Quirino, Philippines,. and within the jurisdiction of this Honorable Court, the above-named Accused, with intent to abuse, harass and degrade AAA^[5], a twelve (12) year old minor at that time, and gratify the sexual desire of said accused, the latter did then and there, willfully, unlawfully and feloniously, had sexual intercourse with said AAA, in her dwelling against her will and consent.^[6]

During trial, the prosecution presented three (3) witnesses, namely: (1) PO2 Rosalita Manilao (PO2 Manilao); (2) BBB;^[7] and (3) Dr. Luis Villar (Dr. Villar). The following documents were likewise submitted in evidence: (1) Malaya at Kusang Loob na Salaysay of AAA;^[8] (2) Malaya at Kusang Loob na Salaysay ni BBB;^[9] (3) Medical Certificate issued by Dr. Villar;^[10] and (4) Certificate of Live Birth of AAA.^[11]

According to the prosecution's witnesses, on January 5, 2012, AAA's brother, BBB, upon arriving home from the farm, saw Bangayan laying on top of AAA. Bangayan and AAA were both naked from the waist down.^[12] BBB shouted at Bangayan and told him that he would report what he did to AAA but the latter allegedly threatened to kill him if he tries to tell anyone.^[13] AAA was born on December 14, 1999 and was more than 12 years old at the time of the incident.^[14]

On April 24, 2012, AAA, accompanied by her aunt, CCC,^[15] reported the incident to the police.^[16] On the same date, Dr. Villar examined AAA. The pertinent portion of the Medico-Legal Report^[17] revealed the following:

Physical Examination Findings:

1. Formed and developed areolar complexes.
   
2. Developed labia majora,
   
3. No recent hymenal injury but the edges are smooth and the opening approximates the size of the index finger of the examiner.^[18]
   

When Dr. Villar testified, he confirmed that AAA admitted to him that she had sexual intercourse with Bangayan on several occasions even prior to January 5, 2012.^[19] He explained that the "opening" noted during his examination, as stated in item no. 3 of the physical findings, is not a normal occurrence. For a young patient like AAA, it should have been closed. He further testified that AAA was already pregnant when she was examined because her fundus is 15 centimeters in height and the presence of 151 beats per minute at the last lower quadrant of her abdomen was observed.^[20] These indicate that, at the time of the examination, she was two (2) to three (3) months pregnant, which could be compatible with the claim that she had sexual intercourse with Bangayan in January 2012, the date stated in the information, or even before said date.^[21]

On October 2, 2012, AAA gave birth to a baby boy.^[22]

Notably, during arraignment on September 4, 2014, the counsel of Bangayan manifested that AAA, who was then 14 years old, executed an Affidavit of Desistance^[23] stating that she has decided not to continue the case against Bangayan because they "are living [together] as husband and wife and was blessed with a healthy baby boy."^[24] Thus, the Regional Trial Court (RTC) ordered that the Office of the Municipal Social Welfare Development Officer conduct a case study on AAA.^[25]

On May 4, 2015, their second child was born.^[26]

Ruling of the Regional Trial Court

After trial, the RTC of Maddela, Quirino, Branch 38 rendered its Decision^[27] dated April 11, 2016, the dispositive portion of which reads:

WHEREFORE, premises considered, judgment is hereby rendered finding RODAN BANGAYAN y ALCAIDE GUILTY beyond reasonable doubt of violation of Section 5 (b), Article III of Republic Act 7610 and sentences him to an imprisonment of 14 years and 8 months of reclusion temporal as minimum to 20 years of reclusion temporal as maximum. However, his preventive imprisonment shall be fully credited to him in the service of sentence pursuant to Article 29 of the Revised Penal Code, as amended.

Accused is ordered to pay [AAA] the amount of 1] PHP 50,000.00 as civil indemnity with interest of 6% per annum from finality of the decision until fully paid.

With the category of the accused as a national prisoner, the Clerk of Court is directed to prepare the corresponding mittimus or commitment order for his immediate transfer to the Bureau of Corrections and Penology, Muntinlupa City, pursuant to SC Circular No. 4- 92-A dated April 20, 1992.

SO ORDERED.^[28] (Emphasis in the original)

In convicting Bangayan, the RTC found that the prosecution was able to establish the elements of Section 5(b), Article III of R.A. 7610. Bangayan had sexual intercourse with AAA who was born on December 14, 1999 and was 12 years, one (1) month, and 14 days old at the time of the incident.^[29] For the RTC, the moral ascendancy or influence of Bangayan over AAA is beyond question due to their age gap of 15 years, and the fact that he is her brother- in-law, he being the brother of the husband of her older sister.^[30] The RTC ruled that it will not matter if AAA consented to her defloration because as a rule, the submissiveness or consent of the child under the influence of an adult is not a defense in sexual abuse.^[31] The RTC also considered the Affidavit of Desistance AAA executed as hearsay evidence because she did not testify regarding its execution. The RTC added that an Affidavit of Desistance is like an Affidavit of Recantation which the court does not look with favor.^[32]

On appeal^[33] Bangayan impugned the findings of the RTC and argued that the trial court gravely erred in finding that the defense failed to prove by clear and convincing evidence that he is not criminally liable for the act complained of.^[34] Bangayan argued that he had proven, by clear and convincing evidence, that he is in a relationship with AAA and that the act complained of was consensual.^[35] Bangayan maintained that their persisting relationship should be taken into account and be considered an absolutory cause.^[36] He averred that this is similar to Article 266-C of R.A. 8353, or the Anti-Rape Law of 1997, on the effect of pardon where the subsequent valid marriage of the offended party to the offender shall extinguish the criminal action or the penalty imposed. While there is no valid marriage to speak of yet, they were clearly living together as husband and wife as evidenced by the birth of their second child. Bangayan asserted that it would be in the best interest of their growing family to acquit him and allow him to help with rearing their children.^[37]

Ruling of the Court of Appeal
In a Decision^[38] dated June 28, 2017, the Court of Appeals denied Bangayan's appeal and affirmed with modification his conviction. The award of civil indemnity, moral damages, and exemplary damages were each increased to P75,000.00.^[39]

In affirming Bangayan's conviction, the Court of Appeals held that the elements of sexual abuse under Section 5, Article III of R.A.7610 were established as follows: (1) BBB positively identified Bangayan as the person who had sexual intercourse with his minor sister and AAA was confirmed to be 2-3 months pregnant at the time of her medical examination; (2) AAA was subjected to sexual abuse under the coercion and influence of Bangayan because he was already 27 years old or 15 years her senior, thus making her vulnerable to the cajolery and deception of adults; and (3) It was proven that, at the time of the incident, she was only 12 years and one (1) month old – a minor not capable of fully understanding or knowing the nature or import of her actions.^[40]

The Court of Appeals emphasized that consent of the child is immaterial in cases involving violation of Section 5, Article III of R.A. 7610. It was held that the Sweetheart Theory is a defense in acts of lasciviousness and rape that are felonies against or without the consent of the victim. It operates on the theory that the sexual act was consensual. However, for purposes of sexual intercourse and lascivious conduct in child abuse cases under R.A. 7610, the Court of Appeals ruled that the Sweetheart Theory defense is unacceptable.

Petitioner's Motion for Reconsideration^[41] was denied in a Resolution^[42] dated October 24, 2017. Hence, this petition for review.

Bangayan filed the instant Petition for Review^[43] on January 5, 2018, assailing the Decision of the Court of Appeals dated June 28, 2017 and its subsequent Resolution dated October 24, 2017. He insists that he was able to prove by clear and convincing evidence that he should not be held criminally liable for the act complained of because they were in a relationship at the time of its commission.^[44] For Bangayan, the fact that they were allowed to be together after the alleged sexual -abuse and that AAA conceived their second child right after the complaint was filed in court negate the claim that AAA was unwilling.^[45] Bangayan posits that his continuing relationship with AAA should be considered an absolutory cause.^[46] Invoking the best interest of their family, Bangayan prays that he be acquitted and be allowed to help raise their family.

Meanwhile, the People of the Philippines, through the Office of the Solicitor General, manifested that it is no longer filing a Comment and is merely adopting its Brief for the Plaintiff-Appellee previously filed with the Court of Appeals.^[47]

Issue

The issue to be resolved in this case is whether Bangayan may use as a defense the consent of AAA and his on-going relationship with her which had already produced two children to exonerate himself from the charge of violation of Section 5(b), Article III of-R.A. 7610.

Ruling of the Court

The petition is meritorious. The records of this case show that the prosecution failed to establish all the elements of sexual abuse contemplated under Section 5(b), Article III of R.A. 7610^[48] which provides:

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

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

(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;^[49]

The following requisites must concur: (1) the accused commits the act of sexual intercourse or lascivious conduct; (2) the act is performed with a child exploited in prostitution or subjected to other sexual abuse; and (3) the child, whether male or female is below eighteen (18) years of age.^[50] This paragraph "punishes sexual intercourse or lascivious conduct not only with a child exploited in prostitution but also with 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.^[51]

Pursuant to the Implementing Rules and Regulations of R.A. 7610, "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.^[52] The present case does not fall under any of the circumstances enumerated. Therefore, not all the elements of the crime were present to justify Bangayan's conviction.

In explicitly stating that children deemed to be exploited in prostitution and other sexual abuse under Section 5 of R.A. 7610, refer to those who engage in sexual intercourse with a child "for money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group,"^[53] it is apparent that the intendment of the law is to consider the condition and capacity of the child to give consent.

Section 5(b) of R.A 7610 qualifies that when the victim of the sexual abuse is under 12 years of age, the perpetrator shall be prosecuted under the Revised Penal Code.^[54] This means that, regardless of the presence of any of the circumstances enumerated and consent of victim under 12 years of age, the perpetrator shall be prosecuted under the Revised Penal Code. On the other hand, the law is noticeably silent with respect to situations where a child is between 12 years old and below 18 years of age and engages in sexual intercourse not -'for money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group." Had it been the intention of the law to absolutely consider as sexual abuse and punish individuals who engage in sexual intercourse with "children" or those under 18 years of age, the qualifying circumstances enumerated would not have been included in Section 5 of R.A. 7610.

Taking into consideration the statutory construction rules that penal laws should be strictly construed against the state and liberally in favor of the accused, and that every law should be construed in such a way that it will harmonize with existing laws on the same subject matter, We reconcile the apparent gap in the law by concluding that the qualifying circumstance cited in Section 5(b) of R.A. 7610, which "punishes sexual intercourse or lascivious conduct not only with a child exploited in prostitution but also with a child subjected to other sexual abuse," leave room for a child between 12 and 17 years of age to give consent to the sexual act. An individual who engages in sexual intercourse with a child, at least 12 and under 18 years of age, and not falling under any of these circumstances, cannot be held liable under the provisions of R.A. 7610. The interpretation that consent is material in cases where victim is between 12 years old and below 18 years of age is favorable to Bangayan. It fills the gap in the law and is consistent with what We have explained in the case of People v. Tulagan,^[55] to wit:

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 aboye 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."

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.^[56] (Emphasis and underscoring supplied; citations omitted)

We are not unmindful that in Tulagan, the accused inserted his finger into a nine-year-old girl's vagina and had sexual intercourse with her. Nevertheless, the vital discussion made by the Court with respect to the capacity of a victim aged between 12 years old and below 18 years of age to give rational consent to engage in sexual activity (sexual consent) cannot simply be disregarded. Though it may be considered obiter dictum, the principle laid down in the majority opinion, speaking through the ponencia of then Associate Justice Diosdado Peralta, now Chief Justice, remains relevant and crucial to the resolution of the present case because it clearly outlined the essential elements of the offense. The discussion of the Court in Tulagan should serve as a guide in resolving situations identified by the Court to be potential sources of conflicting interpretations. The fact that Tulagan did not involve a victim between 12 years old and below 18 years old should not dissuade the Court from applying a principle that aims to clarify and harmonize conflicting provisions due to an apparent gap in the law.

Recently, in Monroy v. People,^[57] We adopted the ruling in Tulagan, to wit:

xxx [I]t bears to point out that "consent of the child is material and may even be a defense in criminal cases" involving the aforesaid violation when the offended party is 12 years old or below 18 years old, as in AAA's case. The concept of consent under Section 5 (b), Article III of RA 7610 peculiarly relates to the second element of the crime - that is, the act of sexual intercourse is performed with a child exploited in prostitution or subjected to other sexual abuse. A child is considered "exploited in prostitution or subjected to other sexual abuse when the child is predisposed to indulge in sexual intercourse or lascivious conduct because of money, profit or any other consideration or due to the coercion of any adult, syndicate, or group.

x x x x^[58] (Emphasis supplied; citations omitted)

Therefore, it is now clear that consent is a material factor in determining the guilt of Bangayan.

In Monroy,^[59] then 28-year-old accused was charged with violation of Section 5 (b) Article III of R.A. 7610 for inserting his penis into the vagina of a 14-year-old. The Court acquitted the accused on reasonable doubt, finding that the sexual intercourse that transpired between the accused and the 14-year-old was consensual and that the case against the accused is based merely on trumped-up allegations meant as retaliation. In Monroy, the accused was 14 years older or twice the age of the alleged victim yet the Court found that she was not subjected to other sexual abuse due to the coercion of an adult as they were in a relationship. Similarly, in the present case, Bangayan was more or less 15 years older than AAA. While difference in age may be an indication of coercion and intimidation and negates the presence of sexual consent, this should not be blindly applied to all instances of alleged sexual abuse cases. Therefore, the Court must not be restricted in identifying the presence of coercion and intimidation by a simple mathematical computation of the age difference.

The sweeping and confusing conclusions in the case of Malto v. People^[60] and the application of contract law in determining the relevance of consent in cases under R.A. 7610 is not proper. We had the opportunity to shed light on this matter in People v. Tulagan^[61] where We observed that:

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 provisions of the said law.^[62]

Accordingly, the Court deems it prudent to rectify the difference between the concept of consent under contract law and sexual consent in criminal law which determines the guilt of an individual engaging in a sexual relationship with one who is between 12 years old or below 18 years of age. These are concepts that are distinct from each other and have differing legal implications.

The law limits, to varying degrees, the capacity of an individual to give consent. While in general, under the civil law concept of consent, in relation to capacity to act, all individuals under 18 years of age have no capacity to act, the same concept cannot be applied to consent within the context of sexual predation. Under civil law, the concept of "capacity to act" or "the power to do acts with legal effects"^[63] limits the capacity to give a valid consent which generally refers to "the meeting of the offer and the acceptance upon the thing and the case which are to constitute the contract."^[64] To apply consent as a concept in civil law to criminal cases is to digress from the essence of sexual consent as contemplated by the Revised Penal Code and R.A. 7610. Capacity to act under civil law cannot be equated to capacity to give sexual consent for individuals between 12 years old and below 18 years of age. Sexual consent does not involve any obligation within the context of civil law and instead refers to a private act or sexual activity that may be covered by the Revised Penal Code and R.A. 610.

More importantly, Our earlier pronouncement regarding consent in Malto failed to reflect teenage psychology and predisposition. We recognize that the sweeping conclusions of the Court in Malto failed to consider a juvenile's maturity and to reflect teenagers' attitude towards sex in this day and age. There is a need to distinguish the difference between a child under 12 years of age and one who is between 12 years old and below 18 years of age due to the incongruent mental capacities and emotional maturity of each age group. It is settled that a victim 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 or a demented person's consent is immaterial because of her presumed incapacity to discern good from evil."^[65] As such, regardless of the willingness of a victim under 12 years old to engage in any sexual activity, the Revised Penal Code punishes statutory rape and statutory acts of lasciviousness. On the other hand, considering teenage psychology and predisposition in this day and age, We cannot completely rule out the capacity of a child between 12 years old and below 18 years of age to give sexual consent.

Consequently, although We declared in Malto that the Sweetheart Theory is unacceptable in violations of R.A. 7610 since "a child exploited in prostitution or subjected to other sexual abuse cannot validly give consent to sexual intercourse with another person,"^[66] We deem it judicious to review the Decision of the court a quo and reiterate Our recent pronouncements in Tulagan and Monroy and clarify the ambiguity created in the Malto case in resolving the case at bar.

Where the age of the child is close to the threshold age of 12 years old, as in the case of AAA who was only 12 years and one month old at the time of the incident, evidence must be strictly scrutinized to determine the presence of sexual consent. The emotional maturity and predisposition of a juvenile, whose age is close to the threshold age of 12, may significantly differ from a child aged between 15-18 who may be expected to be more mature and to act with consciousness of the consequences of sexual intercourse.

In this case, there are special circumstances that reveal the presence consent of AAA. The sexual congress between Bangayan and AAA was not limited to just one incident. They were in a relationship even after the incident alleged in the Information and had even produced two (2) children. To Our mind, these are not acts of a child who is unable to discern good from evil and did not give consent to the sexual act.

We also note that the conclusion of the RTC that:

xxx [T]he moral ascendancy or influence of the accused over the victim is beyond question because of their 15 year age gap, not to mention that the former is also her brother- in-law, he being the brother of the husband of her older sister.^[67]

is erroneous. Contrary to the ruling of the RTC, it cannot be said that Bangayan exercised moral ascendancy over AAA simply because of their 15-year age gap and the fact that he is her "brother-in-law." Following the concept of brother-in-law in its ordinary sense, Bangayan is not AAA's brother-in-law because a brother-in-law refers only to a wife's brother or a sister's husband. It does not include a brother of the husband of AAA's older sister.

We must take into account Bangayan's defense that, at the time of the incident, he and AAA were lovers. The conduct of Bangayan and AAA, which is the subject of the Information against him, is not the sexual abuse punished by the law. While placed in an unusual predicament, We recognize that Bangayan and AAA are in a relationship that had produced not just one (1) offspring but two (2). While AAA was a child, as defined under R.A. 7610, being under 18 years of age at the time she and Bangayan engaged in sexual intercourse, there was no coercion, intimidation or influence of an adult, as contemplated by the law. AAA consented to the sexual act as reflected in her conduct at the time of the commission of the act and her subsequent conduct shown in the records.

AAA did not testify during the trial. Had she testified, the trial court would have been able to confirm the veracity of the allegations in the sworn statement^[68] she executed and the statements she allegedly made to Dr. Villar during her medical examination on April 24, 2012. We cannot simply accept the statement of Dr. Villar that AAA admitted to him that she had sexual intercourse with Bangayan even before 2012.^[69] This statement is hearsay as he has no personal knowledge of, it. Moreover, this is not even alleged in the Information^[70] filed against him.

Furthermore, Section 34 of Rule 132 of the Rules provides:

Section. 34. Offer of evidence. - The court shall consider no evidence which has not been formally offered. The purpose for which the evidence is offered must be specified.

In Gumabon v. Philippine National Bank,^[71] the Court explained that formal offer "means that the offeror shall inform the court of the purpose of introducing its exhibits into evidence." In the absence of a formal offer, courts cannot take notice of the evidence even if this has been previously marked and identified.^[72]

The Social Case Study Report^[73] reflecting the evaluation of Social Welfare Officer III Theresa A. Mauricio (Mauricio) on AAA's social, emotional, and intellectual development cannot be admitted nor be given any credence by the Court. Mauricio made the following recommendations in her report:

Based on the above information, the client suffered multiple emotional crisis that hampered her growth and development. She has the time, knowledge, potentials and abilities that could enhance her total development. However, as early as 7 years old, she had crisis due to role confusion.

Being abused, she was unable to develop her unique values or personality. She was not allowed the opportunities to acquire friends, develop skills and knowledge through formal education.

Living together with the perpetuator [sic] could support her longing for a parental figure. He served as support for her existence but considering his weaknesses such as from abusing her, the lack for sense of responsibility and assertiveness as lack of resources should affect the future of the minor and son. He could not provide the basic needs such as food, shelter and education with his disposition in life.

The minor had the CHANCE to grab the opportunities of the PRESENT and the FUTURE once she is AWAY with her perpetuator [sic]. Support from relatives is highly recommended for direction.

The honored court is then requested for favorable action that will promote the general welfare of the minor- [AAA] and her family.^[74]

A careful study of the records reveals that the RTC received the Social Case Study Report dated September 25, 2014 on October 8, 2014. Although the testimony of the social worker was included in the Pre-Trial Order,^[75] the document was never properly" idehtified, authenticated by the social worker who prepared the report, and included in the formal offer of evidence.^[76] The social worker never testified in open court and the defense was never given an opportunity to test her credibility and verify the correctness and accuracy of her findings. To Our mind, giving credence to evidence which was not formally offered during trial would deprive the other party of due process. Thus, evidence not formally offered has no probative value and must be excluded by the court.

Even assuming that the Social Case Study Report was properly presented and formally offered, it cannot be made the basis for establishing the absence of AAA's sexual consent. The report did not accurately reflect the living condition and the state of her relationship with Bangayan. It did not negate the presence of AAA's sexual consent at the time the alleged offense was committed. Noticeably, she was already pregnant with their second child when she was interviewed for the Social Case Study Report and later gave birth while he was incarcerated.^[77] The contemporaneous and subsequent acts of AAA, which are more consistent with the claim of Bangayan that AAA consented to the sexual encounter, outweigh the contents of the Social Case Study Report which are not yet verified. It is worthy to note that even when Bangayan was presented in the witness stand, AAA was present in court,^[78] presumably to show support for him. AAA conceived a second child with Bangayan despite the charge against him. Both children were conceived before he was incarcerated.^[79] She did not testify against Bangayan even if she was present during the hearings. These acts of AAA, and the Affidavit of Desistance she executed, when taken as a whole, bolsters the claim of Bangayan that they were in a relationship when the act complained of was committed and even lived together without the benefit of marriage after the case against him was filed. Her acts are consistent with the claim of Bangayan that their relationship existed at the time of commission of the act complained, during trial, and even continued after he was convicted by the lower court. To Our mind, these factors are clear manifestations that she was not subjected to any form of abuse, and prove that she consented to the act complained of. Applying the ruling in Tulagan there is no crime committed because AAA freely gave her consent to the sexual intercourse, and no money, profit, consideration, coercion or influence is involved. Due to the prosecution's failure to establish and prove beyond reasonable doubt the requisites for the charge of violation of Section 5(b) of R.A. 7610, Bangayan must be acquitted.

Section 2 of R.A. 7610 states that:

xxx [T]he "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 of the Rights of the Child.

In this exceptional situation, We are not prepared to punish two individuals and deprive their children from having a normal family life simply because of the minority of AAA at the time she began dating Bangayan. The benefits of living in a nuclear family to AAA and their two (2) children outweigh any perceived dangers of the on-going romantic relationship Bangayan has with AAA who is 15 years younger than him. This arrangement is more favorable to the welfare of both parties as they are planning to get married.^[80] We verified from the records that Bangayan was single at the time he gave his personal circumstanced when he testified in court.^[81] This is more consistent with the principle of upholding the best interests of children as it gives Bangayan an opportunity to perform his essential parental obligations and be present for their two (2) children.

WHEREFORE, the appeal is GRANTED. The Decision dated April 11, 2016 of the Regional Trial Court of Maddela, Quirino, Branch 38, in Criminal Case No. 38-510 as well as the Decision dated June 28, 2017 of the Court of Appeals in CA-G.R. CR No. 38723 are hereby REVERSED and SET ASIDE. Petitioner Rodan A. Bangayan is ACQUITTED. He is ORDERED to be IMMEDIATELY RELEASED unless he is being held for some other valid or lawful cause. The Director of the Bureau of Corrections is DIRECTED to inform this Court of the action taken hereon within five (5) days from receipt hereof.

SO ORDERED.

Gesmundo and Gaerlan, JJ., concur.
Leonen, J., I dissent. see separate opinion.
Zalameda, J., please see separate concurring opinion.

Sirs / Mesdames:

Please take notice that on September 16, 2020 a Decision, copy attached hereto, was rendered by the Supreme Court in the above-entitled case, the original of which was received by this Office on December 29, 2020 at 8:59 s.m.

---

ORDER OF RELEASE



TO: The Director
       BUREAU OF CORRECTIONS
       1770 Muntinlupa City

Thru: The Superintendent
          New Bilibid Prison
          BUREAU OF CORRECTIONS
          1770 Muntinlupa City

G R E E T I N G S:

WHEREAS, the Supreme Court on September 16, 2020 promulgated a Decision in the above-entitled case, the dispositive portion of which reads:

"WHEREFORE, the appeal is GRANTED. The Decision dated April 11, 2016 of the Regional Trial Court of Maddela, Quirino, Branch 38, in Criminal Case No. 38-510 as well as the Decision dated June 28, 2017 of the Court of Appeals in CA-G.R. CR No. 38723 are hereby REVERSED and SET ASIDE. Petitioner Rodan A. Bangayan is ACQUITTED. He is ORDERED to be IMMEDIATELY RELEASED unless he is being held for some other valid or lawful cause. The Director of the Bureau of Corrections is DIRECTED to inform this Court of the action taken hereon within five (5) days from receipt hereof.

SO ORDERED."

NOW, THEREFORE, You are hereby ordered to immediately release RODAN A. BANGAYAN unless there are other lawful causes for which he should be further detained, and to return this Order with the certificate of your proceedings within five (5) days from notice hereof.

GIVEN by the Honorable MARVIC MARIO VICTOR F. LEONEN, Chairperson of the Third Division of the Supreme Court of the Philippines, this 16^th day of September 2020.

---

^[1] Rollo, pp. 11-24.

^[2] Penned by Associate Justice Mario V. Lopez (now a Member of this Court), with the concurrence of Associate Justices Remedios A. Salazar-Fernando and Eduardo B. Peralta, Jr.; id. 27-34.

^[3] Id. at 33.

^[4] Records, pp. 2-3.

^[5] As decreed in People v. Cabalquinto, 533 Phil. 709 (2006), complainant's real name is withheld to effectuate the provisions of R.A. 7610 and its implementing rules, R.A. 9262 (Anti Violence Against Women and Their Children Act of 2004) and its implementing rules, and A.M. No. 04-10-11-SC (Rule on Violence Against Women and their Children).

^[6] Records, pp. 2-3.

^[7] Supra note 5.

^[8] Records, pp. 7-8.

^[9] Id. at 9-10.

^[10] Id. at 11.

^[11] Id. at 12

^[12] TSN dated May 21, 2015, p. 14.   

^[13] Id. at 15.

^[14] Records, p. 12.

^[15] Supra note 5.

^[16] Records, p. 6.

^[17] Id. at 11.

^[18] Id.

^[19] TSN dated June 16, 2015, p. 5.

^[20] Id. at 4

^[21] Id. at 5.

^[22] Id. at 41.

^[23] Id. at 24.

^[24] Id.

^[25] Id. at 5-6; records, p. 28.

^[26] TSN dated November 18, 2015, p. 9.

^[27] Penned by Executive Judge Menrado V. Corpuz; records, pp. 103-110.

^[28] Id. at 110.

^[29] Id. at 107.

^[30] Id. at 108.

^[31] Id.

^[32] Id. at 109.

^[33] Rollo, pp. 40-50.

^[34] Id. at 46-49.

^[35] Id. at 47-48.

^[36] Id. at 48.

^[37] Id. at 49.

^[38] Supra note 2.

^[39] Rollo, p. 33.

^[40] Id. at 30-33.

^[41] Id. at 85-88.

^[42] Penned by Associate Justice Mario V. Lopez (now a Member of this Court), with the concurrence of Associate Justices Remedios A. Salazar-Fernando and Eduardo B. Peralta, Jr.; id. at 36-37.

^[43] Id. at 11-24.

^[44] Id. at 19.

^[45] Id. at 20.

^[46] Id.

^[47] Id. at 108.

^[48] R.A. 7610, Sec. 5.

^[49] Id.

^[50] Id.

^[51] People v. Gaduyon, 720 Phil. 750 (2013).

^[52] Section 2(g), 10-1993 Rules and Regulations on the Reporting and Investigation of Child Abuse Cases (R.A. 7610).

^[53] R.A. 7610, Sec. 5.

^[54] R.A. 7610, Sec. 5.

^[55] G.R.No. 227363, March 12, 2019.

^[56] Id.

^[57] G.R. No. 235799, July 29, 2019.

^[58] Monroy v. People, G.R. No. 235799, July 29, 2019.

^[59] G.R. No. 235799, July 29, 2019.

^[60] 560 Phil. 119 (2007).

^[61] G.R. No. 227363, March 12, 2019

^[62] Id.

^[63] CIVIL CODE OF THE PHILIPPINES, Art. 37.

^[64] CIVIL CODE OF THE PHILIPPINES, Art. 1319.

^[65] People v. Tulagan, supra note 55.

^[66] Id.

^[67] Records, p. 108.

^[68] Id. at 7-8.

^[69] TSN dated June 16, 2015, p. 5.

^[70] Id. at 2-3.

^[71] G.R. No. 202514, July 25, 2016.

^[72] Id.

^[73] Records, pp. 30-40.

^[74] Id. at 40.

^[75] Id. at 49.

^[76] TSN dated August 3, 2015, pp. 1-6.

^[77] TSN dated November 18, 2015 p. 9.

^[78] Id. at 8.

^[79] Id. at 9.

^[80] TSN dated November 18, 2015, p. 9.

^[81] Id. at 2-4.

---

DISSENTING OPINION

LEONEN, J.:

With the greatest respect, I cannot accept that our laws can be interpreted so that a 12-year-old girl, barely in the sixth grade, can give her mature consent to sexual intercourse.

Sexual intercourse is a complex act which is not only physical or sensual. Beyond that, it comes with the complexity of intimacy, relationship, and reproductive consequences. I fail to see how a grade six student can understand all of these.

I urge the ponente to re-evaluate the precedent We create to further disempower our young daughters and granddaughters against patriarchy.

This case is an opportunity to clarify the application of Republic Act No. 7610 vis-a-vis Article 336 of the Revised Penal Code, with respect to victims within the ages of 12 to 18 years old. The obiter dictum laid down in People v. Tulagan must be qualified and refined.

I

Rodan Bangayan (Bangayan) was charged with rape under Article 266- A of the Revised Penal Code, in relation to Republic Act No. 7610. The accusatory portion of the Information reads:

That sometime in the month of January 2012 atxxxxxxxxxxx Province of Quirino, Philippines, within the jurisdiction of this Honorable Court, the above-named Accused, with intent to abuse, [harass] and degrade [AAA], a twelve (12) years old minor at that time, and gratify the sexual desire of said accused, the latter did then and there, willfully, unlawfully[,] and feloniously, had sexual intercourse with said [AAA], in her dwelling against her will and consent.^[1]

Upon arraignment, Bangayan pleaded not guilty. His counsel manifested that AAA, then 14 years old, was no longer interested in pursuing the case because she and Bangayan were already living together as husband and wife.^[2] The counsel submitted AAA's Affidavit of Desistance.^[3]

However, due to AAA's minority and the lack of assistance of an elder-relative in the execution of the affidavit, the trial court directed the Municipal Social Welfare and Development Office of Nagtipunan, Quirino (Social Welfare Office) to conduct a case study on AAA.^[4]

The Social Welfare Office found that AAA was abused as a child, and as a result, her longing for a parental figure impelled her to live with Bangayan. The Social Welfare Office then argued against the cohabitation of Bangayan and AAA, considering that Bangayan was abusing AAA and was incapable of providing for her basic needs such as food, shelter, and education. A portion of the findings states:

RECOMMENDATION

Based on the above information, the client suffered multiple emotional [crises] that hampered her growth and development. She has the time, knowledge, potentials, and abilities that could enhance her total development. However, as early as 7 years old, she had crisis due to role confusion.

Being abused, she was unable to develop her unique values or personality. She was not allowed the opportunities to acquire friends, develop skills and knowledge through formal education.

Living together with the perpetrator could support her longing for a parental figure. He served as support for her existence but considering his weaknesses such as abusing her. the lack of sense of responsibility and assertiveness as lack of resources could affect the future of the minor and son. He could not provide the basic needs such as food, shelter, and education with his disposition in life.

The minor had the CHANCE to grab the opportunities of the PRESENT and the FUTURE once she is AWAY from her perpetrator. Support from relatives is highly recommended for direction.

The honored court is then requested for favorable action that will promote the general welfare of the minor-[AAA] and her family.^[5]

Pre-trial and trial then ensued.^[6]

The prosecution presented the following witnesses: (1) Dr. Luis Villar (Dr. Villar); (2) Police Inspector Rosalita Manilao (P/Insp. Manilao); and (3) BBB.^[7]

Dr. Villar, the Municipal Health Officer of Nagtipunan, Quirino, testified as the physician who conducted the physical examination on AAA. He narrated that during his interview with AAA, he noticed that she was avoiding eye contact, "because she was ashamed of what happened to her." AAA allegedly confided to Dr. Villar and told him that Bangayan would kill her if she refused to have sex with him. AAA further disclosed that she had sexual intercourse with Bangayan twice in the past: (1) in the second grade when she was only nine (9) years old; and (2) in the fourth grade when she was just 11 years old.^[8]

Dr. Villar noted that there was no recent hymenal injury and that "the edges are smooth." However, AAA's opening approximates the size of an index finger, which is not normal for a young patient. The tests also showed that AAA was already 2-3 months pregnant, compatible with her claim that she was raped before January 2012.^[9]

P/Insp. Manilao testified that AAA and her aunt came to their station to file a complaint against Bangayan. 'Upon their arrival, she noticed that AAA appeared to be traumatized. She then took AAA's sworn statement and clarified that AAA answered the questions on her own.^[10]

BBB is AAA's brother. He narrated that Bangayan was living with them because the latter was helping him cultivate their cornfield. On January 5, 2012, upon arriving home from the farm, he found Bangayan on top of AAA, both of them naked from the waist down. AAA was crying and Bangayan, though unarmed, threatened to kill BBB if he reports the incident.^[11]

On the other hand, Bangayan is the sole witness for the defense. He denied having raped AAA, claiming that it was consensual sex because they are in a relationship. At the time he testified in court, he claims that they were already living together as husband and wife with two (2) children, despite not being married yet. Furthermore, he claimed that AAA only filed the case due to a misunderstanding that they had.^[12]

The trial court found Bangayan guilty of violation of Section 5(b), Article III of Republic Act No. 7610.^[13] It held that the element of sexual abuse with a child is present, considering that AAA was only 12 years old at the time of the incident. Likewise, the element of coercion or influence is present because Bangayan, who was 27 years old at that time, had sexual intercourse with a minor. The trial court concluded that the age gap between the two (2) indicated Bangayan's moral ascendancy and influence over AAA. Bangayan's father-figure image is reflected in the case study conducted by the Social Welfare Office.^[14]

The trial court ruled that AAA's consent is immaterial because the submission or consent of a child due to the influence of an adult is not a defense in sexual abuse.^[15]

On the issue of AAA's affidavit of desistance, the trial court considered the document as a hearsay evidence because A AA did not testify regarding its execution. Further, affidavits of desistance are frowned upon by courts.^[16]

Upon appeal, the Court of Appeals affirmed the conviction of Bangayan. The appellate court ruled that the sweetheart defense cannot be given credence under Republic Act No. 7610 because "[a] child exploited in prostitution or subjected to other sexual abuse cannot validly give consent to sexual intercourse[.]"^[17]

The Court of Appeals maintained that the elements of sexual abuse are present in this case:

First, Bangayan was identified as the person who had sexual intercourse with AAA, who is a minor.^[18]

Second, AAA was subjected to sexual abuse due to the coercion and influence of Bangayan. Sexual abuse contemplates situations wherein "a child indulges in sexual intercourse or... influence of any adult." Considering that AAA was only 12 years old while Bangayan was already 27 years old at that time, the 15-year age gap between them made AAA vulnerable to the influence and deception of adults.^[19]

Lastly, AAA was a minor at the time of the incident.^[20]

Bangayan then moved for the reconsideration of the decision, but to no avail.^[21]

Petitioner now comes before this Court, asserting that: (1) he proved by clear and convincing evidence that he should not be held criminally liable, because he was in a relationship with the victim at the time of the incident; (2) the victim gave her sexual consent, indicated by the fact that they are now living together with two (2) children; and (3) this continuing relationship is an absolutory cause.^[22]

In acquitting petitioner, the ponencia held that:

1. "[T]he prosecution failed to establish all the elements of sexual abuse contemplated under Section 5(b) of Article III of Republic Act No. 7610[.]"^[23]
   
   
2. Section 5 of Republic Act No. 7610, which requires that sexual intercourse with a child "for money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate['] or group," leaves room for a child between 12 and 18 years old to give his or her sexual consent.^[24]
   
   
3. Citing People v. Tulagan, the ponencia concludes that, since the victim: (1) consented to the sexual intercourse; and (2) there was no coercion, intimidation or influence of an adult, Bangayan is not guilty of sexual abuse under Republic Act No. 7610.^[25]
   
   
4. The victim's consent to the sexual act is indicated by her conduct during and after the commission of the act.^[26]
   

The ponencia primarily draws its conclusion based on the ruling of this Court in People v. Tulagan.^[27] In Tulagan, it was established that Tulagan raped and inserted his finger into a nine-year-old girl's vagina. As a result, the trial court and the appellate court convicted Tulagan. Upon appeal, this Court affirmed that he is guilty of sexual assault and rape under Article 266- A, par. 2 of the Revised Penal Code, in relation to Section 5(b) of Republic Act No. 7610.^[28]

In upholding Tulagan's conviction, this Court discussed the effect of the enactment of Republic Act No. 7610 to Revised Penal Code provisions on rape and lascivious conduct. When Republic Act No. 7610 took effect, special forms of acts of lasciviousness were no longer punished under Article 336 of the Revised Penal Code, but it is now a distinct crime of sexual assault under Article 266-A, paragraph 2 of the Revised Penal Code.^[29]

Unfortunately, much of the discussion in Tulagan, with respect to children between 12 and 18 years old, was only conjectural. Without factual parameters, this Court proceeded to create permutations and possible scenarios on rape cases that were not yet filed. This led to lengthy discussions and guesswork on rape victims within this age range. Now, with the actual facts before us, the application of the law must be refined and clarified.

II

Republic Act No. 7610, otherwise known as The Special Protection of Children Against Abuse, Exploitation and Discrimination Act, sought "to provide special protection to children from all forms of abuse, neglect, cruelty exploitation and discrimination and other conditions, prejudicial their development[.]"^[30]

One of the salient provisions of the law is the criminal liability on "Child Prostitution and Other Sexual Abuse" under Section 5. It states:

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.^[31] (Emphasis in the original)

A plain textual reading shows that the provision penalizes 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[.]" Further, children subjected to other forms of sexual abuse are those who "due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct[.]"^[32]

For sexual intercourse with children below 12 years old or otherwise demented, the crime committed is rape under Article 266-A (1) of the Revised Penal Code. The law refers to the modification introduced by Republic Act No. 8353, thus:

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. (Emphasis supplied)

As Tulagan explained, consent is immaterial in sexual intercourse with children under 12 years of age, because they are presumed to be incapable of giving consent, thus:

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. 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.

. . . .

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. 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[.]^[33] (Citations omitted)

It bears emphasis that the protection under the Revised Penal Code only applies to children below 12 years old, while the age of majority is at 18 years old. This situation presents a lacuna, which Republic Act No. 7610 resolved by providing criminal liability for acts of prostitution or other forms of sexual abuse done with a child between 12 and 18 years old.

Nevertheless, Republic Act No. 7610 takes into consideration that the age of sexual consent remains at 12 years old. This is "one [1] of the lowest globally and the lowest in the Asia-Pacific Region. [While] the average age of consent is 16 years old."^[34] This is despite the fact that under our laws, minors do not have the capacity to enter contracts or marriage. However, a strict reading of the Revised Penal Code keeps the age of sexual consent at 12 years old.

Thus, in sexual intercourse with children between 12 and 18 years of age, as Tulagan concludes, Section 5(b) of Republic Act No. 7610 leaves room for a child to give consent.^[35] But this must be read with the policy espoused by the law, which states that "[t]he best interests of children shall be the paramount consideration[.]"^[36] This obliges the courts to determine how consent to sexual conduct was given by the child, despite reaching an age where they could have reasonable discernment. To have a correct interpretation of the provision, this Court should first turn to the law's chapeau. It 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[.] (Emphasis supplied)

The text of the law mandates that children exploited in prostitution or subject to other forms of sexual abuse (children in EPSOSA) must have consented: (1) due to money, profit, or any other consideration; or (2) due to the coercion or influence of an adult.

In cases of children subjected to sexual abuse, the courts must determine whether coercion or influence was present, which compelled the child to indulge in sexual conduct. The resolution of this issue cannot be formulaic, but it must be based on the unique factual parameters of each case. Considering the range of age which covers children in EPSOSA, the courts must carefully ascertain if the child freely gave sexual consent to the sexual

For example, a 12-year-old child's judgment cannot be equated to that of a 17-year-old's. Moreover, the relationship of the child to the perpetrator must be taken into account. For instance, a 17-year-old, who is still deemed a child, who had sexual intercourse with an 18-year-old, is not comparable to a sexual intercourse of a 12-year-old with an adult twice or thrice his or her age.

Factors such as age difference, the victim and perpetrators' relationship, and the child's psychological disposition must be considered by this Court, having in mind the child's best interest.

III
In this case, it cannot be said that the victim freely consented to having sexual intercourse with petitioner.

This Court has concluded that the age difference between the victim and petitioner indicates coercion and intimidation. In Caballo v. People,^[37] accused Caballo was 23 years old at the time he met AAA, who was then 17 years old. Caballo was able to persuade AAA to have sexual intercourse with him due to promises of marriage and the assurance that he would not get her pregnant. This Court ruled that the element of coercion or influence is present:

[C]ase law further clarifies that sexual intercourse or lascivious conduct under the coercion or influence of any adult exists when there is some form of compulsion equivalent to intimidation which subdues the free exercise of the offended party's free will. Corollary thereto, Section 2 (g) of the Rules on Child Abuse Cases conveys that sexual abuse involves the element of influence which manifests in a variety of forms. It is defined as:

The employment, use, persuasion, inducement, enticement or coercion of a child to engage in or assist another person to engage in, sexual intercourse or lascivious conduct or the molestation, prostitution, or incest with children.

To note, the term "influence'' means the "improper use of power or trust in any way that deprives a person of free will and substitutes another's objective.'' Meanwhile, "coercion" is the "improper use of . . . power to compel another to submit to the wishes of one who wields it."^[38] (Citations omitted)

This Court considered, among other factors, the age difference between AAA and Caballo as an indicium of coercion and influence:

[C]oupled with AAA's minority is Caballo's seniority. Records indicate that Caballo was 23 years old at the time of the commission of the offense and therefore, 6 years older than AAA, more or less. The age disparity between an adult and a minor placed Caballo in a stronger position over AAA so as to enable him to force his will upon the latter.^[39]

In People v. Errojo:^[40]

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. Her failure to disclose the outrage on her person to anybody including her parents is due to the threats on her life and her brothers. Indeed, one cannot expect her to act like an adult or a mature and experienced woman who would have the courage and intelligence to disregard a threat to her life and complain immediately that she had been sexually assaulted. It is not uncommon for young girls to conceal for sometime the assaults on their virtue because of the rapist's threats on their lives.^[41]

Similarly, in People v. Clado:^[42]

It is therefore enough that it produces fear — fear that if the victim does not yield to the bestial demands of the accused, something would happen to heart the moment or thereafter, as when she is threatened with death if she reports the incident. 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.^[43] (Citations omitted)

In these cases, this Court resolved that the victim's minority is an important consideration in determining whether he or she could freely and

rationally give consent to a sexual act with an adult. Moreover, the victim and the adult's age difference could be a sign of coercion and intimidation. This is because a vast age difference can facilitate the assertion of dominance by the perpetrator over the victim.

Here, the 15-year age gap between petitioner and the victim indicates that there is coercion and intimidation in the sexual intercourse. It is difficult to accept how the victim, who just turned 12 years old at that time, could have entered into a relationship with an adult 15 years her senior.

Moreover, the victim's psychological disposition showed that she is vulnerable to petitioner's cajolery. As the Social Welfare Office report showed, the victim suffered multiple emotional crises as a child and that her decision to live with the accused is a result of her longing for a parental figure. This Court should also consider that the victim experienced sexual abuse when she was younger. Further, she was raped twice when she was just nine (9) and 11 years old.^[44]

As the case study noted, the psychological trauma impeded the victim's growth and development. Given her psychological state, the ponencia should have been more cautious in concluding that there was sexual consent. This Court should not tolerate and further cement the abuse and psychological trauma on victims. Considering the wide age difference between petitioner and the victim, and the victim's psychological condition, there is coercion and intimidation. Accused evidently used the victim's minority and vulnerability to compel her to have sexual intercourse with him.

Moreover, petitioner's theory that they were sweethearts at that time is made questionable by the victim's filing of the criminal case against him. Petitioner's self-serving excuse that the victim's filing was only a result of a misunderstanding should not be given credence, considering the distressing process the victim had to go through just to be able file the case. It is incomprehensible why the victim would choose to concoct a false story, to undergo physical examination, and to convince her brother to testify at court if she only wanted to get back at the accused.

While the victim allegedly filed an affidavit of desistance, this affidavit was not testified to by the victim in court. Moreover, it was not executed with the assistance of an older relative.^[45]

Lastly, the ponencia maintains that the victim's cohabitation with petitioner, and the fact that they had another child, signifies her consent.

I disagree.

Subsequent cohabitation cannot act as pardon to the sexual abuse committed against the victim.

In People v. Bongbonga,^[46] the accused was charged with the rape of AAA. As a defense, accused claimed that their sexual intercourse was consensual and that they were now living together as partners. In affirming the accused's guilt, this Court rejected his sweetheart defense and ruled that subsequent cohabitation does not pardon the prior sexual abuses done by the accused:

On this note, Ruben anchors his claim of consensual sexual congress on the fact of his cohabitation with AAA. However, such claim was already addressed by the CA in the questioned Decision, which affirmed the findings of the RTC, that such cohabitation occurred only after the respective dates of the incidents. Here, such fact of cohabitation, by itself, had no bearing on the prior forcible advances committed by Ruben upon AAA. In fact, contrary to Ruben's assertions, any consent implied from the fact of cohabitation is dispelled by AAA's express declarations that she was forced against her will to live with Ruben out of fear of her father.

To be sure, that a man and a woman are living in the same house is not enough to rule out the bestial act of forced sexual intercourse. Here, the fact of cohabitation is immaterial to the charge of rape as it only took place after the alleged incidents. In People v. Bautista, the Court aptly held:

Besides, even if he and the victim were really sweethearts, such a fact would not necessarily establish consent. It has been consistently ruled that "a love affair does not justify rape, for the beloved cannot be sexually violated against her will." The fact that a woman voluntarily goes out on a date with her lover does not give him unbridled license to have sex with her against her will.^[47] (Citations omitted)

Moreover, the ruling of the ponencia is consistent with the idea that rape or sexual abuse may be pardoned. This Court has settled that rape is no longer pardoned through marriage. In People v. Jumawan:^[48]

In 1997, R.A. No. 8353 eradicated the stereotype concept of rape in Article 335 of the RPC. The law reclassified rape as a crime against person and removed it from the ambit of crimes against chastity. More particular to the present case, and perhaps the law's most progressive proviso is the 2nd paragraph of Section 2 thereof recognizing the reality of marital rape and criminalizing its perpetration, viz.:

Article 266-C. Effect of Pardon. — The subsequent valid marriage between the offended party shall extinguish the criminal action or the penalty imposed.

In case it is the legal husband who is the offender, the subsequent forgiveness by the wife as the offended party shall extinguish the criminal action or the penalty: Provided, That the crime shall not be extinguished or the penalty shall not be abated if the marriage is void ab initio.

. . . .

The paradigm shift on marital rape in the Philippine jurisdiction is further affirmed by R.A. No. 92'62, which regards rape within marriage as a form of sexual violence that may be. committed by a man against his wife within or outside the family abode[.]

. . . .

Clearly, it is now acknowledged that rape, as a form of sexual violence, exists within marriage. A man who penetrates her wife without her consent or against her will commits sexual violence upon her, and the Philippines, as a State Party to the CEDAW and its accompanying Declaration, defines and penalizes the act as rape under R.A. No. 8353.

A woman is no longer the chattel-antiquated practices labeled her to be. A husband who has sexual intercourse with his wife is not merely using a property, he is fulfilling a marital consortium with a fellow human being with dignity equal to that he accords himself. He cannot be permitted to violate this dignity by coercing her to engage in a sexual act without her full and free consent. Surely, the Philippines cannot renege on its international commitments and accommodate conservative yet irrational notions on marital activities that have lost their relevance in a progressive society.^[49]

Jumawan considered the enactment of Republic Act No. 8353, which reclassified rape as a crime against person, and no longer a crime against chastity. This reclassification is not only nominal but a crucial shift in understanding the gravity and nature of rape.

Rape, including other forms of sexual abuse, should no longer be viewed as a crime against chastity, which focuses on the dishonor to the victim's father or family. Rape and sexual abuse is a strike against the person of the victim. It is a violation of one's autonomy, a "violation of free will, or the freely made choice to engage in sexual intimacy."^[50]

To reiterate, sexual intercourse is a complex act which is not only physical or sensual. Beyond that, it comes with the complexity of intimacy, relationship, and reproductive consequences.

Sexual intimacy may be primarily done for procreation^[51] or solely for pleasure.^[52] How sexuality and intimacy is expressed, what constitutes sex, and with whom to be intimate with is a person's choice.^[53]

Therefore, consent to sex does not only cover the physical act. Sex does not only involve the body, but it necessarily involves the mind as well. It embraces the moral and psychological dispositions of the persons engaged in the act, along with the socio-cultural expectation and baggage that comes with the act.^[54] For instance, there are observed differences in sexual expectations and behaviors among different genders, and more so, among individuals. The wide range of sexual desire and behavior are not only shaped by biology, but by culture and prevailing norms as well.^[55] Full and genuine consent to sex, therefore, is "preceded by a number of conditions which must exist in order for act of consent to be performed."^[56]

Part and parcel of a valid consent is the ability to have the intellectual resources and capacity to make a choice that reflects his or her judgments and values.^[57] For someone to give sexual consent, he or she must have reached a certain level of maturity.^[58]

This observation becomes more apparent in determining the validity of sexual consent given by adults compared to children. Sexual consent is not a switch, but a spectrum. As a child grows into adolescence, and later to adulthood, the measure of sexual consent shifts from capacity to voluntariness.^[59] Under the law, sexual consent from a child is immaterial, because he or she is deemed incapable of giving an intelligent consent.^[60] However, this presumption is relaxed as the child matures. In our jurisdiction, the gradual scale begins when the child reaches the age of 12 years old. From this age, the law may admit voluntariness on the part of the child.

Nevertheless, voluntariness or informed sexual consent of a child must be determined cautiously. Cases involving younger victims must be resolved through more stringent criteria. Several factors, such as the age of the child, his or her psychological state, intellectual capability, relationship with the accused, their age difference, and other signs of coercion or manipulation must be taken into account in order to protect the child.

In this case, I am not convinced that a 12-year-old girl, who is merely in the sixth grade, can give a mature and informed consent to sexual intercourse with an adult 15 years her senior. Children of her age, generally, are still under the supervision of their parents or guardian, needing guidance and direction as they are only about to enter adolescence.

Considering her tender age, the victim could not have fully comprehended the significance and implications of sexual intimacy with another person. It was neither shown that she was mature enough to understand and express her sexuality nor to enter a relationship with an adult, more so to bear their child at such a young age.

Further, the victim's psychological disposition made her more vulnerable to petitioner's exploitation. This Court should have been warned by the findings of the lower courts, as well as the Social Welfare Office, confirming that the victim is psychologically vulnerable and emotionally abused. Her hampered development and longing for a father figure was taken advantage of by petitioner, manipulating her into relational dependence on him.

Given the circumstances of this case, I am not persuaded that sexual consent was given by the victim, who was only 12 years old at that time. While our laws regrettably contemplate cases of consensual sex with a child, the case before us clearly does not fall within this concession.

ACCORDINGLY, I vote to DENY the Petition.

---

^[1] Rollo, p. 54. Regional Trial Court Decision.

^[2] Id.

^[3] Id.

^[4] Id.

^[5] Id. at 55.

^[6] Id.

^[7] Id. at 56-57.

^[8] Id. at 56.

^[9] Id.

^[10] Id. at 56-57.

^[11] Id. at 57.

^[12] Id. at 57.

^[13] Id. at 54-61. The Decision was penned by Executive Judge Menrado V. Corpuz of Branch 38, Regional Trial Court, Maddela Quirino.

^[14] Id. at 59.    

^[15] Id.

^[16] Id. at 60.

^[17] Id. at 29-30.

^[18] Id. at 30-31.

^[19] Id. at 32.

^[20] Id. at 32.

^[21] Id. at 36-37. Court of Appeals Resolution. The Resolution was penned by Associate Justice Mario V. Lopez, and concurred in by Associate Justices Remedios A. Salazar-Fernando and Eduardo B. Peralta, Jr. of the Former Second Division, Court of Appeals, Manila.

^[22] Id. at 46—49.

^[23] Ponencia, p. 6.

^[24] Id. at 7-8.

^[25] Id. at 8-12.

^[26] Id. at 12.

^[27] G.R. No. 227363, March 12, 2019, < https://elibrary.judiciary.gov.ph/thebookshelf/showdocs/1/65020 > [Per J. Peralta, En Banc].

^[28] Id.

^[29] Id.

^[30] Rep. Act No. 7610 (1992), sec. 2 provides: ,

SECTION 2. Declaration of State Policy and Principles. — It is hereby declared to be the policy of the State to provide special protection to children from all forms of abuse, neglect, cruelty exploitation and discrimination and other conditions, prejudicial their development; provide sanctions for their commission and carry out a program for prevention and deterrence of and crisis intervention in situations of child abuse, exploitation and discrimination. The State shall intervene on behalf of the child when the parent, guardian, teacher or person having care or custody of the child fails or is unable to protect the child against abuse, exploitation and discrimination or when such acts against the child are committed by the said parent, guardian, teacher or person having care and custody of the same.

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 of 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.

^[31] REV. PEN. CODE, art. 335 has been repealed by Republic Act No. 8353 or the Anti-Rape law of 1997. New provisions on rape are found in REV. PEN. CODE, art. 266-A to 266-D under Crimes Against Persons.

^[32] Separate Opinion of J. Leonen in People v. Tulagan, G.R. No. 227363, March 12, 2019, < https://elibrary.judiciary.gov.ph/thebookshelf/showdocs/1/65020 > [Per J. Peralta, En Banc].

^[33] Id.

^[34] Id.

^[35] People v. Tulagan, G.R. No. 227363, March 12, 2019, < https://elibrary.judiciary.gov.ph/thebookshelf/showdocs/1/65020> [Per J. Peralta, En Banc].

^[36] Republic Act No. 7610 (1992), sec. 2.

^[37] 710 Phil. 792 (2013) [Per J. Perlas-Bernabe, Second Division].

^[38] Id. at 805-806.

^[39] Id. at 807.

^[40] 299 Phil. 51 (1994) [Per J. Nocon, Second Division].

^[41] Id. at 60.

^[42] 397 Phil. 813 (2000) [Per J. Gonzaga-Reyes, Third Division].

^[43] Id. at 826.

^[44] Rollo, p. 55.

^[45] Id. at 60.

^[46] 816 Phil. 596 (2017) [Per J. Caguioa, First Division].

^[47] Id. at 608-609.

^[48] 733 Phil. 102 (2014) [Per J. Reyes, First Division].

^[49] Id. at 133-141.

^[50] Rosemary Hunter, et al., Choice and Consent 97 (2007).

^[51] Alan Wertheimer, Consent To Sexual Relations 53-54 (2003).

^[52] Id. at 56.

^[53] See J. Leonen, Dissenting Opinion in People v. Tulagan, G.R. No. 227363, March 12, 2019, < https://elibrary.judiciary.gov.ph/thebookshelf/showdocs/1/65020> [Per J. Peralta, En Banc].

^[54] Alan Wertheimer, Consent To Sexual Relations 37-19 (2003).

^[55] Id.

^[56] Rosemary Hunter, et al., Choice and Consent 98 (2007).

^[57] Alan Wertheimer, Consent To Sexual Relations 126 (2003).

^[58] Franklin Miller, et al., The Ethics of Consent 5 (2009). See also David Archard, Sexual Consent 91 (1997).

^[59] Joseph J. Fischel, Sex and Harm in the Age of Consent 102-103 (2016).

^[60] See People v. Andres, 324 Phil. 124 (1996) [Per J. Puno, Second Division].

---

SEPARATE CONCURRING OPINION


ZALAMEDA, J.:

In the recent case of People v. Tulagan^[1] the Court clarified the significance of consent in sexual abuse cases when the offended party is a child 12 years old and above, but below 18 years old, or when the child is 18 years or older under special circumstances, to wit:

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. 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.

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."

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.^[2] (Emphasis and underscoring supplied)

This notion was reiterated by the Court in Monroy v. People,^[3] viz:

xxx The concept of consent under Section 5 (b), Article III of RA 7610 peculiarly relates to the second element of the crime - that is, the act of sexual intercourse is performed with a child exploited in prostitution or subjected to other sexual abuse. A child is considered "exploited in prostitution or subjected to other sexual abuse" when the child is pre­disposed to indulge in sexual intercourse or lascivious conduct because

of money, profit or any other consideration or due to the coercion of any adult, syndicate, or group, which was not shown in this case; hence, petitioner's conviction for the said crime cannot be sustained.^[4] (Emphasis supplied)

Hence, for the successful prosecution of a violation of Section 5(b) of Republic Act No. (RA) 7610, it must be proven that the child engaged in sexual intercourse or lascivious conduct due to money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group.

To note, the term "other 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. It also includes the molestation or prostitution of children, or committing incestuous acts against children.^[5]

Meanwhile, the term "coercion and influence" broadly covers "force and intimidation." "Coercion" is defined as "compulsion, force or duress," while "[undue] influence" means "persuasion carried to the point of overpowering the will" or "improper use of power or trust in any way that deprives a person of free will and substitutes another's objective." On the other hand, "intimidation" is defined as "unlawful coercion; extortion; duress; putting in fear."^[6]

As enunciated in RA 7610, it is the policy of the State to provide special protection to children against all forms of abuse, neglect, cruelty, exploitation, discrimination, and other conditions prejudicial to their development. The best interest of the child shall be the paramount consideration of the court, which shall exert effort to promote the welfare of children and enhance their opportunities for a useful and happy life.^[7]

The same law defines "children" as persons below 18 years of age, or those over 18 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.^[8] The law looks upon this group as a special class of persons, in varying extents, by recognizing that they are unable to fully take care of or protect themselves from abuse, neglect, cruelty, exploitation or discrimination.

In our jurisdiction, it is conclusively presumed that all children under 12 years old do not have a will of their own due to their tender age, and therefore cannot give intelligent consent to the sexual act. For that reason, the law does not recognize voluntariness on the part of a victim in lascivious conduct or rape cases as a valid defense.^[9] More importantly, it is essential that we examine the reason for adopting the age of 12 as the age of consent.

Before the enactment of RA 8353 or The Anti-Rape Law of 1997, the Senate proposed to increase the age of consent from 12 to 14 years with the intention of providing greater protection to children. In fact, the final version of Senate Bill No. 950 provides for the age of 14 as the threshold. However, during the Bicameral Conference Committee Meetings, the House panel strongly opposed such a change. They pointed out that the age 13 or 14 is usually regarded as the age of discovery, and these children may have been engaging in carnal knowledge only as innocent acts of discovery. Considering that the imposable penalty is death, the House panel felt that the increase in the age for statutory rape may prove to be unduly harsh. In the end, 12 years old remained as the age of consent.^[10]

Critical to this discussion, however, is to underscore that intelligence and understanding to give effective consent is not developed overnight. The wisdom of a child who just turned 12 years old, as opposed to a child who is a few days shy of that age, cannot be considered as vastly different, or fully developed enough to effectively discern good from evil. In the same vein, it cannot be denied that there is a difference in the level of maturity between a 12-year-old from that of a 17-year-old child.

Thus, taking this reality into account, the concept of consent of a child under RA No. 7610 should be viewed as a spectrum where, the closer a child's age is to 12 years, the more vulnerable and susceptible he or she is to abuse, neglect, cruelty, exploitation, or discrimination. In other words, the younger the child, the more likely he or she is to give ineffectual consent, whether direct or implied.

Still, the numerical age of the child should not be the absolute and deciding ground to determine the efficacy of consent. Rather, it should be assessed in conjunction with other factors, such as the age of accused, familial influence, sexual knowledge of the child, power of the accused over the child, trust accorded by the child to accused, and all other dynamics that influence the formation- of a rational decision pertaining to sexual matters. Coercion, intimidation, or influence must be ascertained in light of the victim's perception and judgment at the time of the commission of the crime, and not by any hard and fast rule. These are the elements that should guide the courts in determining whether there was consent to indulge in a sexual act and whether that consent was given due to coercion, intimidation, or influence of the accused.

Hence, while 1 agree with the ponente's discussion on the development in our jurisprudence regarding the consent of a child to sexual activity, the discourse should be broadened to include other relevant factors that influence or inform that consent.

At this point, I would like to emphasize that the prosecution bears the burden to establish the guilt of the accused beyond reasonable doubt.^[11] Accordingly, in order to prove indulgence in sexual intercourse or lascivious conduct due to money, profit, or any other consideration, or due to the coercion or influence of any adult, syndicate, or group, it is the prosecution's duty to likewise show the presence of factors, similar to the ones discussed above, affect that consent.

In the case at bar, I cannot conclude with certainty that AAA engaged in sexual intercourse with accused-appellant due to the latter's coercion or influence. Records are bereft of evidence to support the prosecution's theory mainly because AAA did not testify against accused-appellant. BBB's testimony alone was insufficient to establish the elements of the crime charged because his testimony merely proved the fact of sexual intercourse and not the element of coercion or influence.

In our criminal justice system, the overriding consideration is not whether the courts doubt the innocence of the accused but whether there is reasonable doubt as to his guilt. Where there is reasonable doubt as to the guilt of the accused, he must be acquitted even though there is still a level of doubt as to his innocence. This is demanded by the Constitution itself, which accepts nothing less than proof beyond reasonable doubt to overthrow the presumption of innocence.^[12]

Indeed, even in Monroy v. People,^[13] the recent case cited by the ponente, the Court specifically stated in the dispositive portion that the acquittal of therein accused was on the ground of reasonable doubt. The following pronouncement was also made to clarify the opinion of the Court:

It bears stressing that the Court's finding does not mean absolute certainty that petitioner did not coerce AAA to engage in the sexual act. It is simply that the evidence presented by the prosecution fall short of the quantum of proof required to support a conviction. Jurisprudence has consistently held that "[a] conviction in a criminal case must be supported by proof beyond reasonable doubt, which means a moral certainty that the accused is guilty; the burden of proof rests upon the prosecution." If the prosecution fails to do so, "the presumption of innocence of the accused must be sustained and his exoneration be granted as a matter of right. For the prosecution's evidence must stand or fall on its own merit and cannot be allowed to draw strength from the weakness of the evidence for the defense," as in this case. (Emphasis supplied)

Evaluating the facts of this case with the relevant, factors that may have influenced AAA's perception and judgment at the time of the commission of the crime, I believe the Court should similarly acquit herein accused-appellant on account of reasonable doubt. Compared to Monroy, where the 14-year-old victim professed her love to therein accused through a letter, the supposed "consent" of herein victim, who just barely turned 12 years old when the incident occurred, is less recognizable. Accordingly, rather than absolving accused-appellant because AAA absolutely and undoubtedly "consented" to having sexual intercourse with him, I believe that the Court should, instead, acquit accused-appellant on the ground of reasonable doubt engendered by to the prosecution's failure to present evidence on other factors that may have affected AAA's consent such that it can be considered ineffectual or driven by coercion or influence.

ACCORDINGLY, I vote to ACQUIT accused-appellant on the ground of reasonable doubt.

---

^[1] G R. No. 227363, 12 March 2019.

^[2] Id.

^[3] G.R. No. 235799, July 29. 2019.

^[4] Id.

^[5] Ramilo v. People, G.R. No. 234841, 03 June 2019.

^[6] Quimvel v. People, 808 Phil. 889-1000 (2017); G.R No. 214497, 18 April 2017, 823 SCRA 192, 230.

^[7] Section 2, RA 7610.

^[8] Section 3, RA 7610.

^[9] People v. Andres, 324 Phil. 124-151 (1996); G.R. No. 114936. 20 February 1996, 253 SCRA 751, 757.

^[10] Lique, Venus V. The Anti- Rape Law and the Changing Times: Nature, Issues and Incidents. 43 ATENEO L.J. 141 (1999). See https://drive.google.com/file/d/13FwizXkNFs7Im_bfqpBijpTJWQ2zgqqf/view.

^[11] Patula v. People, 685 Phil. 376-411 (2012); G.R. No. 164457, 11 April 2012, 669 SCRA 135, 150.

^[12] People v. Baulite, 419 Phil. 191-199 (2001); G.R.No. 137599, 08 October 2001, 366 SCRA 732, 737.

^[13] Supra at note 3