5 People v. Tulagan, G.R. No. 227363
5 People v. Tulagan, G.R. No. 227363
5 People v. Tulagan, G.R. No. 227363
DECISION
PERALTA, J.:
This is an appeal from the Decision[1] of the Court of Appeals (CA) dated
August 17, 2015 in CA-G.R. CR-HC No. 06679, which affirmed the Joint
Decision[2] dated February 10, 2014 of the Regional Trial Court (RTC) of San
Carlos City in Criminal Case Nos. SCC-6210 and SCC-6211, finding accused-
appellant Salvador Tulagan (Tulagan) guilty beyond reasonable doubt of the
crimes of sexual assault and statutory rape as defined and penalized under
Article 266-A, paragraphs 2 and 1(d) of the Revised Penal Code (RPC),
respectively, in relation to Article 266-B.
In Criminal Case No. SCC-6210, Tulagan was charged as follows:
Contrary to Article 266-A, par. 1(d) of the Revised Penal Code in relation to
R.A. 7610.
During the trial, BBB, aunt of the victim AAA, testified that around 10:30 a.m.
of October 17, 2011, she noticed a man looking at AAA outside their house.
When AAA asked her permission to go to the bathroom located outside their
house, the man suddenly went near AAA. Out of suspicion, BBB walked to
approach AAA. As BBB came close to AAA, the man left suddenly. After AAA
returned from the bathroom, BBB asked what the man was doing to her. AAA
did not reply. She then told AAA to get inside the house. She asked AAA to
move her panties down, and examined her genitalia. She noticed that her
genitalia was swollen. AAA then confessed to her about the wrong done to
her by appellant whom AAA referred to as Badong or Salvador Tulagan. AAA
cried hard and embraced BBB tightly. AAA asked BBB for her help and even
told her that she wanted Badong to be put in jail.
AAA, nine (9) years old, testified that sometime in September 2011 while she
was peeling corn with her cousin who lived adjacent to her grandmother's
house, Tulagan approached her, spread her legs, and inserted his finger into
her private part. She said that it was painful, but Tulagan just pretended as if
he was just looking for something and went home.
AAA, likewise, testified that at around 11:00 a.m. of October 8, 2011, while
she was playing with her cousin in front of Tulagan's house, he brought her
to his house and told her to keep quiet. He told her to lie down on the floor,
and removed her short pants and panties. He also undressed himself, kissed
AAA's cheeks, and inserted his penis into her vagina. She claimed that it was
painful and that she cried because Tulagan held her hands and pinned them
with his. She did not tell anyone about the incident, until her aunt examined
her private part.
ARGUMENT:
For the defense, Tulagan claimed that he did not know AAA well, but
admitted that he lived barely five (5) meters away from AAA's grandmother's
house where she lived. He added that the whole month of September 2011,
from 8:00 a.m. to 1:00 p.m., he was gathering dried banana leaves to sell
then take a rest after 1:00 p.m. at their terrace, while his mother cut the
banana leaves he gathered at the back of their kitchen. He said that he never
went to AAA's house and that he had not seen AAA during the entire month
of September 2011. Tulagan, likewise, claimed that before the alleged
incidents occurred, his mother had a misunderstanding with AAA's
grandmother, who later on started spreading rumors that he raped her
granddaughter.
RTC’s DECISION:
After trial, the RTC found that the prosecution successfully discharged the
burden of proof in two offenses of rape against AAA. It held that all the
elements of sexual assault and statutory rape was duly established. The trial
court relied on the credible and positive declaration of the victim as against
the alibi and denial of Tulagan.
3. All damages awarded are subject to legal interest at the rate of 6% [ per
annum] from the date of finality of this judgment until fully paid.
SO ORDERED.[5]
Aggrieved, Tulagan invoked the same arguments he raised before the CA in
assailing his conviction. He alleged that the appellate court erred in giving
weight and credence to the inconsistent testimony of AAA, and in sustaining
his conviction despite the prosecution's failure to prove his guilt beyond
reasonable doubt. To support his appeal, he argued that the testimony of
AAA was fraught with inconsistencies and lapses which affected her
credibility.
Our Ruling
In Criminal Case No. SCC-6211 for statutory rape, both the RTC and the CA
also found that the elements thereof were present, to wit: (1) accused had
carnal knowledge of the victim, and (2) said act was accomplished when the
offended party is under twelve (12) years of age. Indubitably, the courts a
quo found that the prosecution was able to prove beyond reasonable doubt
Tulagan's guilt for the crime of rape. We find no reason to deviate from said
findings and conclusions of the courts a quo.
As correctly held by the CA, the fact that some of the details testified to by
AAA did not appear in her Sinumpaang Salaysay does not mean that the
sexual assault did not happen. AAA was still able to narrate all the details of
the sexual assault she suffered in Tulagan's hands. AAA's account of her
ordeal being straightforward and candid and corroborated by the medical
findings of the examining physician, as well as her positive identification of
Tulagan as the perpetrator of the crime, are, thus, sufficient to support a
conviction of rape.
Here, the courts a quo did not give credence to Tulagan's alibi considering
that his house was only 50 meters away from AAA's house, thus, he failed to
establish that it was physically impossible for him to be at the locus
criminis when the rape incidents took place. "Physical impossibility" refers
to distance and the facility of access between the crime scene and the
location of the accused when the crime was committed. There must be a
demonstration that they were so far away and could not have been physically
present at the crime scene and its immediate vicinity when the crime was
committed. In this regard, Tulagan failed to prove that there was physical
impossibility for him to be at the crime scene when the rape was committed.
[11]
Thus, his alibi must fail.
Further, although the rape incidents in the instant case were not immediately
reported to the police, such delay does not affect the truthfulness of the
charge in the absence of other circumstances that show the same to be
mere concoction or impelled by some ill motive.[12]
DISCUSSION:
For the guidance of the Bench and the Bar, We take this opportunity to
reconcile the provisions on Acts of Lasciviousness, Rape and Sexual Assault
under the Revised Penal Code (RPC), as amended by Republic Act (R.A.) No.
8353 vis-a-vis Sexual Intercourse and Lascivious Conduct under Section
5(b) of R.A. No. 7610, to fortify the earlier decisions of the Court and
doctrines laid down on similar issues, and to clarify the nomenclature and
the imposable penalties of said crimes, and damages in line with existing
jurisprudence.[13]
Prior to the effectivity of R.A. No. 8353 or The Anti-Rape Law of 1997 on
October 22, 1997, acts constituting sexual assault under paragraph 2,
[14]
Article 266-A of the RPC, were punished as acts of lasciviousness under
Article No. 336[15] of the RPC or Act No. 3815 which took effect on December
8, 1930.
xxxx
1. Other acts of lasciviousness under Art. 339 of the RPC, where the victim is
a virgin and consents to the lascivious acts through abuse of confidence
or when the victim is single or a widow of good reputation and consents to
the lascivious acts through deceit, or;
2. Acts of lasciviousness under Art. 336 if the act of lasciviousness is not
covered by lascivious conduct as defined in R.A. No. 7610. In case the acts
of lasciviousness [are] covered by lascivious conduct under R.A. No. 7610
and it is done through coercion or influence, which establishes absence or
lack of consent, then Art. 336 of the RPC is no longer applicable
3. Section 5(b), Article III of R.A. No. 7610, where there was no consent on
the part of the victim to the lascivious conduct, which was done through the
employment of coercion or influence. The offender may likewise be liable for
sexual abuse under R.A. No. 7610 if the victim is at least eighteen (18) years
and she is unable to fully take care of herself or protect herself from abuse,
neglect, cruelty, exploitation or discrimination because of a physical or
mental disability or condition.[26]
In People v. Caoili,[27] We prescribed the following guidelines in designating
or charging the proper offense in case lascivious conduct is committed under
Section 5(b) of R.A. No. 7610, and in determining the imposable penalty:
1. The age of the victim is taken into consideration in designating or
charging the offense, and in determining the imposable penalty.
2. If the victim is under twelve (12) years of age, the nomenclature of the
crime should be "Acts of Lasciviousness under Article 336 of the Revised
Penal Code in relation to Section 5(b) of R.A. No. 7610." Pursuant to the
second proviso in Section 5(b) of R.A. No. 7610, the imposable penalty
is reclusion temporal in its medium period.
3. If the victim is exactly twelve (12) years of age, or more than twelve (12)
but below eighteen (18) years of age, or is eighteen (18) years old or older
but is unable to fully take care of herself/himself or protect herself/himself
from abuse, neglect, cruelty, exploitation or discrimination because of a
physical or mental disability or condition, the crime should be designated as
"Lascivious Conduct under Section 5(b) of R.A. No. 7610," and the imposable
penalty is reclusion temporal in its medium period to reclusion perpetua.[28]
Based on the Caoili[29] guidelines, it is only when the victim of the lascivious
conduct is 18 years old and above that such crime would be designated as
"Acts of Lasciviousness under Article 336 of the RPC" with the imposable
penalty of prision correccional.
Considering the development of the crime of sexual assault from a mere
"crime against chastity" in the form of acts of lasciviousness to a "crime
against persons" akin to rape, as well as the rulings
in Dimakuta and Caoili. We hold that if the acts constituting sexual assault
are committed against a victim under 12 years of age or is demented, the
nomenclature of the offense should now be "Sexual Assault under paragraph
2, Article 266-A of the RPC in relation to Section 5(b) of R.A. No. 7610" and no
longer "Acts of Lasciviousness under Article 336 of the RPC in relation to
Section 5(b) of R.A. No. 7610," because sexual assault as a form of acts of
lasciviousness is no longer covered by Article 336 but by Article 266-A(2) of
the RPC, as amended by R.A. No. 8353. Nevertheless, the imposable penalty
is still reclusion temporal in its medium period, and not prision mayor.
Whereas if the victim is 12 years old and under 18 years old, or 18 years old
and above under special circumstances, the nomenclature of the crime
should be "Lascivious Conduct under Section 5(b) of R.A. No. 7610" with the
imposable penalty of reclusion temporal in its medium period to reclusion
perpetua,[30] but it should not make any reference to the provisions of the
RPC. It is only when the victim of the sexual assault is 18 years old and
above, and not demented, that the crime should be called as "Sexual Assault
under paragraph 2, Article 266-A of the RPC" with the imposable penalty
of prision mayor.
Sexual intercourse with a victim who is under 12 years old or is demented is
statutory rape
Under Section 5(b) of R.A. No. 7610, the proper penalty when sexual
intercourse is committed with a victim who is under 12 years of age or is
demented is reclusion perpetua, pursuant to paragraph 1(d),[31]Article 266-A
in relation to Article 266-B of the RPC, as amended by R.A. No. 8353,
[32]
which in turn amended Article 335[33] of the RPC. Thus:
Section 5. Child Prostitution and Other Sexual Abuse. - Children, whether
male or female, who for money, profit, or any other consideration or due to
the coercion or influence of any adult, syndicate or group, indulge in sexual
intercourse or lascivious conduct, are deemed to be children exploited in
prostitution and other sexual abuse.
The penalty of reclusion temporal in its medium period to reclusion
perpetua shall be imposed upon the following:
xxxx
(b) Those who commit the act of sexual intercourse or lascivious conduct
with a child exploited in prostitution or subject to other sexual
abuse; Provided, That when the victim is under twelve (12) years of
age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for
rape [sic] and Article 336 of Act No. 3815, as amended, the Revised Penal
Code, for rape or lascivious conduct, as the case may be: Provided, That the
penalty for lascivious conduct when the victim is under twelve (12) years of
age shall be reclusion temporal in its medium period; x x x.[34]
In Quimvel v. People,[35] it was opined[36] that the two provisos under
Section 5(b) of R.A. No. 7610 will apply only if the victim is under 12 years of
age, but not to those 12 years old and below 18, for the following reason:
"while the first clause of Section 5(b), Article III of R.A. 7610 is silent with
respect to the age of the victim, Section 3, Article I thereof defines
"children" as those below eighteen (18) years of age or those over but are
unable to fully take care of themselves or protect themselves from abuse,
neglect, cruelty, exploitation or discrimination because of a physical or
mental disability. Notably, two provisos succeeding the first clause of
Section 5(b) explicitly state a qualification that when the victim of lascivious
conduct is under 12 years of age, the perpetrator shall be (1) prosecuted
under Article 336 of the RPC, and (2) the penalty shall be reclusion
temporal in its medium period. It is a basic rule in statutory construction
that the office of the proviso qualifies or modifies only the phrase
immediately preceding it or restrains of limits the generality of the clause
that it immediately follows. A proviso is to be construed with reference to
the immediately preceding part of the provisions, to which it is attached, and
not to the statute itself or the other sections thereof. [37] Accordingly, this
case falls under the qualifying provisos of Section 5(b), Article III of R.A.
7610 because the allegations in the information make out a case for acts of
lasciviousness, as defined under Article 336 of the RPC, and the victim is
under 12 years of age x x x."[38]
In view of the foregoing rule in statutory construction, it was
proposed[39] in Quimvel that the penalty for acts of lasciviousness
committed against a child should depend on his/her age: if the victim is under
12 years of age, the penalty is reclusion temporal in its medium period, and
if the victim is 12 years old and below 18, or 18 or older under special
circumstances under Section 3(a)[40] of R.A. No. 7610, the penalty
is reclusion temporal in its medium period to reclusion perpetua.
Applying by analogy the foregoing discussion in Quimvel to the act of sexual
intercourse with a child exploited in prostitution or subject to other sexual
abuse, We rule that when the offended party is under 12 years of age or is
demented, only the first proviso of Section 5(b), Article III of R.A. No. 7610
will apply, to wit: "when the victim is under twelve (12) years of age, the
perpetrators shall be prosecuted under Article 335, paragraph 3, for rape x x
x." The penalty for statutory rape under Article 335 is reclusion perpetua,
which is. still the same as in the current rape law, i.e., paragraph 1(d),
Article 266-A in relation to Article 266-B of the RPC, as amended by R.A. No.
8353, except in cases where the victim is below 7 years of age where the
imposable penalty is death.[41]
Note that the second proviso of Section 5(b) of R.A. No. 7610 will not apply
because it clearly has nothing to do with sexual intercourse, and it only
deals with "lascivious conduct when the victim is under 12 years of age ."
While the terms "lascivious conduct" and "sexual intercourse" are included
in the definition of "sexual abuse" under Section 2(g)[42] of the Rules and
Regulations on the Reporting and Investigation of Child Abuse Cases , note
that the definition of "lascivious conduct"[43] does not include sexual
intercourse. Be it stressed that the purpose of indicating the phrase "under
twelve (12) years of age" is to provide for statutory lascivious conduct or
statutory rape, whereby evidence of force, threat or intimidation is
immaterial because the offended party, who is under 12 years old or is
demented, is presumed incapable of giving rational consent.
Malto ruling clarified
An important distinction between violation of Section 5(b) of R.A. No. 7610
and rape under the RPC was explained in Malto v. People[44] We ruled
in Malto[45] that one may be held liable for violation of Sec. 5(b), Article III of
R.A. No. 7610 despite a finding that the person did not commit rape, because
rape is a felony under the RPC, while sexual abuse against a child is
punished by a special law. Said crimes are separate and distinct, and they
have different elements. Unlike in rape, however, consent is immaterial in
cases involving violation of Sec. 5, Art. III of R.A. No. 7610. The mere fact of
having sexual intercourse or committing lascivious conduct with a child who
is exploited in prostitution or subjected to sexual abuse constitutes the
offense.
In Malto,[46] where the accused professor indulged several times in sexual
intercourse with the 17-year-old private complainant, We also stressed that
since a child cannot give consent to a contract under our civil laws because
she can easily be a victim of fraud as she is not capable of full understanding
or knowing the nature or import of her actions, the harm which results from a
child's bad decision in a sexual encounter may be infinitely more damaging
to her than a bad business deal. Thus, the law should protect her from the
harmful consequences of her attempts at adult sexual behavior. For this
reason, a child should not be deemed to have validly consented to adult
sexual activity and to surrender herself in the act of ultimate physical
intimacy under a law which seeks to afford her special protection against
abuse, exploitation and discrimination. In sum, a child is presumed by law to
be incapable of giving rational consent to any lascivious conduct or sexual
intercourse.
We take exception, however, to the sweeping conclusions in Malto (1) that
"a child is presumed by law to be incapable of giving rational consent to any
lascivious conduct or sexual intercourse" and (2) that "consent of the child is
immaterial in criminal cases involving violation of Section 5, Article III of RA
7610" because they would virtually eradicate the concepts of statutory rape
and statutory acts of lasciviousness, and trample upon the express provision
of the said law.
Recall that in statutory rape, the only subject of inquiry is whether the
woman is below 12 years old or is demented and whether carnal knowledge
took place; whereas force, intimidation and physical evidence of injury are
not relevant considerations. With respect to acts of lasciviousness, R.A. No.
8353 modified Article 336 of the RPC by retaining the circumstance that the
offended party is under 12 years old in order for acts of lasciviousness to be
considered as statutory and by adding the circumstance that the offended
party is demented, thereby rendering the evidence of force or intimidation
immaterial.[47] This is because the law presumes that the victim who is under
12 years old or is demented does not and cannot have a will of her own on
account of her tender years or dementia; thus, a child's or a demented
person's consent is immaterial because of her presumed incapacity to
discern good from evil.[48]
However, considering the definition under Section 3(a) of R.A. No. 7610 of the
term "children" which refers to persons below eighteen (18) years of age or
those over but are unable to fully take care of themselves or protect
themselves from abuse, neglect, cruelty, exploitation or discrimination
because of a physical or mental disability or condition, We find that the
opinion in Malto, that a child is presumed by law to be incapable of giving
rational consent, unduly extends the concept of statutory rape or acts of
lasciviousness to those victims who are within the range of 12 to 17 years
old, and even those 18 years old and above under special circumstances who
are still considered as "children" under Section 3(a) of R.A. No. 7610.
While Malto is correct that consent is immaterial in cases under R.A. No.
7610 where the offended party is below 12 years of age, We clarify that
consent of the child is material and may even be a defense in criminal cases
involving violation of Section 5, Article III of R.A. No. 7610 when the offended
party is 12 years old or below 18, or above 18 under special circumstances.
Such consent may be implied from the failure to prove that the said victim
engaged in sexual intercourse either "due to money, profit or any other
consideration or due to the coercion or influence of any adult, syndicate or
group."
It bears emphasis that violation of the first clause of Section 5(b), Article III
of R.A. No. 7610 on sexual intercourse with a child exploited in prostitution
or subject to other sexual abuse, is separate and distinct from statutory rape
under paragraph 1(d), Article 266-A of the RPC. Aside from being dissimilar in
the sense that the former is an offense under special law, while the latter is
a felony under the RPC, they also have different elements. [49] Nevertheless,
sexual intercourse with a victim who is under 12 years of age or is demented
is always statutory rape, as Section 5(b) of R.A. No. 7610 expressly states
that the perpetrator will be prosecuted under Article 335, paragraph 3 of the
RPC [now paragraph 1(d), Article 266-A of the RPC as amended by R.A. No.
8353].
Even if the girl who is below twelve (12) years old or is demented consents to
the sexual intercourse, it is always a crime of statutory rape under the RPC,
and the offender should no longer be held liable under R.A. No. 7610. For
example, a nine (9)-year-old girl was sold by a pimp to a customer, the crime
committed by the latter if he commits sexual intercourse with the girl is still
statutory rape, because even if the girl consented or is demented, the law
presumes that she is incapable of giving a rational consent. The same reason
holds true with respect to acts of lasciviousness or lascivious conduct when
the offended party is less than 12 years old or is demented. Even if such
party consents to the lascivious conduct, the crime is always statutory acts
of lasciviousness. The offender will be prosecuted under Article 336 [50] of the
RPC, but the penalty is provided for under Section 5(b) of R.A. No. 7610.
Therefore, there is no conflict between rape and acts of lasciviousness under
the RPC, and sexual intercourse and lascivious conduct under R.A. No. 7610.
Meanwhile, if sexual intercourse is committed with a child under 12 years of
age, who is deemed to be "exploited in prostitution and other sexual abuse,"
then those who engage in or promote, facilitate or induce child prostitution
under Section 5(a)[51] of R.A. No. 7610 shall be liable as principal by force or
inducement under Article 17[52] of the RPC in the crime of statutory rape
under Article 266-A(1) of the RPC; whereas those who derive profit or
advantage therefrom under Section 5(c)[53] of R.A. No. 7610 shall be liable as
principal by indispensable cooperation under Article 17 of the RPC. Bearing
in mind the policy of R.A. No. 7610 of providing for stronger deterrence and
special protection against child abuse and exploitation, the following shall
be the nomenclature of the said statutory crimes and the imposable
penalties for principals by force or inducement or by indispensable
cooperation:
1. Acts of Lasciviousness under Article 336 of the RPC, in relation to
Section 5(a) or (c), as the case may be, of R.A. No. 7610, with the
imposable penalty of reclusion temporal in its medium period
to reclusion perpetua;
In Pangilinan, where We were faced with the same dilemma because all the
elements of paragraph 1, Article 266-A of the RPC and Section 5(b) of R.A.
No. 7610 were present, it was ruled that the accused can be charged with
either rape or child abuse and be convicted therefor. However, We observed
that rape was established, since the prosecution's evidence proved that the
accused had carnal knowledge of the victim through force and intimidation
by threatening her with a samurai. Citing the discussion in Abay, We ruled as
follows:
As in the present case, appellant can indeed be charged with either Rape or
Child Abuse and be convicted therefor. The prosecution's evidence
established that appellant had carnal knowledge of AAA through force and
intimidation by threatening her with a samurai. Thus, rape was established.
Considering that in the resolution of the Assistant Provincial Prosecutor, he
resolved the filing of rape under Article 266-A of the Revised Penal Code for
which appellant was convicted by both the RTC and the CA, therefore, we
merely affirm the conviction.[62]
In the recent case of Tubillo where We noted that the Information would
show that the case involves both the elements of paragraph 1, Article 266-A
of the RPC and Section 5(b) of R.A. No. 7610, We likewise examined the
evidence of the prosecution, whether it focused on the specific force or
intimidation employed by the offender or on the broader concept of coercion
or influence to have carnal knowledge with the victim. In ruling that
appellant should be convicted of rape under paragraph 1(a), Article 266-A of
the RPC instead of violation of Section 5(b) of R.A. No. 7610, We explained:
With this decision, We now clarify the principles laid down in Abay,
Pangilinan and Tubillo to the effect that there is a need to examine the
evidence of the prosecution to determine whether the person accused of
rape should be prosecuted under the RPC or R.A. No. 7610 when the offended
party is 12 years old or below 18.
The term "other sexual abuse," on the other hand, is construed in relation to
the definitions of "child abuse" under Section 3, Article I of R.A. No. 7610 and
"sexual abuse" under Section 2(g) of the Rules and Regulations on the
Reporting and Investigation of Child Abuse Cases.[65] In the former provision,
"child abuse" refers to the maltreatment, whether habitual or not, of the child
which includes sexual abuse, among other matters. In the latter provision,
"sexual abuse" includes the employment, use, persuasion, inducement,
enticement or coercion of a child to engage in, or assist another person to
engage in, sexual intercourse or lascivious conduct or the molestation,
prostitution, or incest with children.
In Quimvel, it was held that the term "coercion or influence" is broad enough
to cover or even synonymous with the term "force or intimidation."
Nonetheless, it should be emphasized that "coercion or influence" is used in
Section 5[66] of R.A. No. 7610 to qualify or refer to the means through which
"any adult, syndicate or group" compels a child to indulge in sexual
intercourse. On the other hand, the use of "money, profit or any other
consideration" is the other mode by which a child indulges in sexual
intercourse, without the participation of "any adult, syndicate or group." In
other words, "coercion or influence" of a child to indulge in sexual
intercourse is clearly exerted NOT by the offender whose liability is based on
Section 5(b)[67] of R.A. No. 7610 for committing sexual act with a child
exploited in prostitution or other sexual abuse. Rather, the "coercion or
influence" is exerted upon the child by "any adult, syndicate, or group"
whose liability is found under Section 5(a)[68] for engaging in, promoting,
facilitating or inducing child prostitution, whereby the sexual intercourse is
the necessary consequence of the prostitution.
For a clearer view, a comparison of the elements of rape under the RPC and
sexual intercourse with a child under Section 5(b) of R.A. No. 7610 where the
offended party is between 12 years old and below 18, is in order.
Rape under Article 266-A(1)(a,b,c) under the Section 5(1) of R.A. No. 7610
RPC
1. Offender is a man; 1. Offender is a man;
xxxx
(2) The right of children to assistance, including proper care and nutrition,
and special protection from all forms of neglect, abuse, cruelty, exploitation,
and other conditions prejudicial to their development.[82]
Clearly, the objective of the law, more so the Constitution, is to provide a
special type of protection for children from all types of abuse. Hence, it can
be rightly inferred that the title used in Article III, Section 5, "Child
Prostitution and Other Sexual Abuse" does not mean that it is only applicable
to children used as prostitutes as the main offense and the other sexual
abuses as additional offenses, the absence of the former rendering
inapplicable the imposition of the penalty provided under R.A. No. 7610 on
the other sexual abuses committed by the offenders on the children
concerned.
Justice Caguioa asserts that Section 5(b), Article III of R.A. No. 7610 is clear
- it only punishes those who commit the act of sexual intercourse or
lascivious conduct with a child exploited in prostitution or subjected to other
sexual abuse. There is no ambiguity to speak of that which requires statutory
construction to ascertain the legislature's intent in enacting the law.
We would have agreed with Justice Caguioa if not for Section 5 itself which
provides who are considered as "children exploited in prostitution and other
sexual abuse." Section 5 states that "[c]hildren, whether male or female,
who for money, profit, or any other consideration or due to the coercion or
influence of any adult, syndicate or group, indulge in sexual intercourse or
lascivious conduct, are deemed to be children exploited in prostitution and
other sexual abuse." Contrary to the view of Justice Caguioa, Section 5(b),
Article III of R.A. No. 7610 is not as clear as it appears to be; thus, We
painstakingly sifted through the records of the Congressional deliberations to
discover the legislative intent behind such provision.
Justice Caguioa then asks: (1) if the legislature intended for Section 5(b),
R.A. No. 7610 to cover any and all types of sexual abuse committed against
children, then why would it bother adding language to the effect that the
provision applies to "children exploited in prostitution or subjected to other
sexual abuse?" and (2) why would it also put Section 5 under Article III of the
law, which is entitled "Child Prostitution and Other Sexual Abuse?"
Section 5 originally covers Child Prostitution only, and this can still be
gleaned from Section 6 on Attempt To Commit Child Prostitution, despite the
fact that both Sections fall under Article III on Child Prostitution and Other
Sexual Abuse. Thus:
Section 6. Attempt To Commit Child Prostitution. - There is an attempt to
commit child prostitution under Section 5, paragraph (a) hereof when any
person who, not being a relative of a child, is found alone with the said child
inside the room or cubicle of a house, an inn, hotel, motel, pension house,
apartelle or other similar establishments, vessel, vehicle or any other hidden
or secluded area under circumstances which would lead a reasonable person
to believe that the child is about to be exploited in prostitution and other
sexual abuse.
There is also an attempt to commit child prostitution, under paragraph (b) of
Section 5 hereof when any person is receiving services from a child in a
sauna parlor or bath, massage clinic, health club and other similar
establishments. A penalty lower by two (2) degrees than that prescribed for
the consummated felony under Section 5 hereof shall be imposed upon the
principals of the attempt to commit the crime of child prostitution under this
Act, or, in the proper case, under the Revised Penal Code.
Even Senator Lina, in his explanation of his vote, stated that Senate Bill 1209
also imposes the penalty of reclusion temporal in its medium period
to reclusion perpetua for those who commit the act of sexual intercourse or
lascivious conduct with a child exploited in prostitution. [83] Senator Lina
mentioned nothing about the phrases "subject to other sexual abuse" or
"Other Sexual Abuse" under Section 5(b), Article III of R.A. No. 7610.
However, to cover a situation where the minor may have been coerced or
intimidated into lascivious conduct, not necessarily for money or profit,
Senator Eduardo Angara proposed the insertion of the phrase "WHO FOR
MONEY, PROFIT, OR ANY OTHER CONSIDERATION OR DUE TO THE
COERCION OR INFLUENCE OF ANY ADULT, SYNDICATE OR GROUP,
INDULGE" in sexual intercourse or lascivious conduct, under Section 5(b),
Article III of R.A. No. 7610.[84]
Further amendment of then Article III of R.A. No. 7610 on Child
Prostitution was also proposed by then President Pro Tempore Sotero
Laurel, to which Senator Angara agreed, in order to cover the "expanded
scope" of "child abuse." Thus, Article III was amended and entitled " Child
Prostitution and Other Sexual Abuse."[85] This is the proper context where
the element that a child be "exploited in prostitution and other sexual abuse"
or EPSOSA, came to be, and should be viewed.
We hold that it is under President Pro Tempore Laurel's amendment on
"expanded scope'' of "child abuse" under Section 5(b) and the definition of
"child abuse" under Section 3,[86] Article I of R.A. No. 7610 that should be
relied upon in construing the element of "exploited under prostitution and
other sexual abuse." In understanding the element of "exploited under
prostitution and other sexual abuse", We take into account two provisions of
R.A. No. 7610, namely: (1) Section 5, Article III, which states that "[c]hildren,
whether male or female, who for money, profit, or any other consideration or
due to the coercion or influence of any adult, syndicate or group, indulge in
sexual intercourse or lascivious conduct, are deemed to be exploited in
prostitution and other sexual abuse"; and (2) Section 3, Article I, which
states that "child abuse" refers to the maltreatment, whether habitual or not,
of the child, which includes, sexual abuse.
To clarify, once and for all, the meaning of the element of "exploited in
prostitution" under Section 5(b), Article III of R.A. No. 7610, [87] We rule that it
contemplates 4 scenarios, namely: (a) a child, whether male or female, who
for money, profit or any other consideration, indulges in lascivious conduct;
(b) a child, whether male or female, who due to the coercion or influence of
any adult, syndicate or group, indulges in lascivious conduct; (c) a female
child, who for money, profit or any other consideration, indulges in sexual
intercourse; and (d) a female, due to the coercion or influence of any adult,
syndicate or group, indulges in sexual intercourse.
Note, however, that the element of "exploited in prostitution" does not cover
a male child, who for money, profit or any other consideration, or due to
coercion or influence of any adult, syndicate, or group, indulges in sexual
intercourse. This is because at the time R.A. No. 7610 was enacted in 1992,
the prevailing law on rape was Article 335 of the RPC where rape can only be
committed by having carnal knowledge of a woman under specified
circumstances. Even under R.A. No. 8353 which took effect in 1997, the
concept of rape remains the same — it is committed by a man who shall have
carnal knowledge of a woman under specified circumstances. As can be
gathered from the Senate deliberation on Section 5(b), Article III of R.A. No.
7610, it is only when the victim or the child who was abused is a male that
the offender would be prosecuted thereunder because the crime of rape does
not cover child abuse of males.[88]
The term "other sexual abuse," on the other hand, should be construed in
relation to the definitions of "child abuse" under Section 3, [89] Article I of R.A.
No. 7610 and "sexual abuse" under Section 2(g)[90] of the Rules and
Regulations on the Reporting and Investigation of Child Abuse Cases .[91] In
the former provision, "child abuse" refers to the maltreatment,
whether habitual or not, of the child which includes sexual abuse, among
other matters. In the latter provision, "sexual abuse" includes the
employment, use, persuasion, inducement, enticement or coercion of a child
to engage in, or assist another person to engage in, sexual intercourse or
lascivious conduct or the molestation, prostitution, or incest with children.
Thus, the term "other sexual abuse" is broad enough to include all other acts
of sexual abuse other than prostitution. Accordingly, a single act of
lascivious conduct is punished under Section 5(b), Article III, when the victim
is 12 years old and below 18, or 18 or older under special circumstances. In
contrast, when the victim is under 12 years old, the proviso of Section 5(b)
states that the perpetrator should be prosecuted under Article 336 of the
RPC for acts of lasciviousness, whereby the lascivious conduct itself is the
sole element of the said crime. This is because in statutory acts of
lasciviousness, as in statutory rape, the minor is presumed incapable of
giving consent; hence, the other circumstances pertaining to rape — force,
threat, intimidation, etc. — are immaterial.
Justice Caguioa also posits that the Senate deliberation on R.A. No. 7610 is
replete with similar disquisitions that all show the intent to make the law
applicable to cases involving child exploitation through prostitution, sexual
abuse, child trafficking, pornography and other types of abuses. He stresses
that the passage of the laws was the Senate's act of heeding the call of the
Court to afford protection to a special class of children, and not to cover any
and all crimes against children that are already covered by other penal laws,
such as the RPC and Presidential Decree No. 603, otherwise known as
the Child and Youth Welfare Code. He concludes that it is erroneous for us to
rule that R.A. No. 7610 applies in each and every case where the victim
although he or she was not proved, much less, alleged to be a child
"exploited in prostitution or subjected to other sexual abuse." He invites us
to go back to the ruling in Abello that "since R.A. No. 7610 is a special law
referring to a particular class in society, the prosecution must show that the
victim truly belongs to this particular class to warrant the application of the
statute's provisions. Any doubt in this regard we must resolve in favor of the
accused."
Justice Estela M. Perlas-Bernabe also disagrees that R.A. No. 7610 would be
generally applicable to all cases of sexual abuse involving minors, except
those who are under 12 years of age. Justice Perlas-Bernabe concurs with
Justice Caguioa that Section 5(b), Article III of R.A. No. 7610 only applies in
instances where the child-victim is "exploited in prostitution or subject to
other sexual abuse" (EPSOSA). She asserts that her limited view, as opposed
to the ponencia's expansive view, is not only supported by several textual
indicators both in law and the deliberations, but also squares with practical
logic and reason. She also contends that R.A. No. 7610 was enacted to
protect those who, like the child-victim in People v. Ritter, willingly engaged
in sexual acts, not out of desire to satisfy their own sexual gratification, but
because of their "vulnerable pre-disposition as exploited children. She
submits that, as opposed to the RPC where sexual crimes are largely
predicated on the lack of consent, Section 5(b) fills in the gaps of the RPC by
introducing the EPSOSA element which effectively dispenses with the need
to prove the lack of consent at the time the act of sexual abuse is
committed. Thus, when it comes to a prosecution under Section 5(b),
consent at the time the sexual act is consummated is, unlike in the RPC, not
anymore a defense.
We are unconvinced that R.A. No. 7610 only protects a special class of
children, i.e., those who are "exploited in prostitution or subjected to other
sexual abuse," and does not cover all crimes against them that are already
punished by existing laws. It is hard to understand why the legislature would
enact a penal law on child abuse that would create an unreasonable
classification between those who are considered as "exploited in
prostitution and other sexual abuse" or EPSOSA and those who are not. After
all, the policy is to provide stronger deterrence and special protection to
children from all forms of abuse, neglect, cruelty, exploitation, discrimination
and other conditions prejudicial to their development.
In the extended explanation of his vote on Senate Bill No. 1209, [92] Senator
Lina emphasized that the bill complements the efforts the Senate has
initiated towards the implementation of a national comprehensive program
for the survival and development of Filipino children, in keeping with the
Constitutional mandate that "[t]he State shall defend the right of children to
assistance, including proper care and nutrition; and special protection from
all forms of neglect, abuse, cruelty, exploitation, and other conditions
prejudicial to their development."[93] Senator Lina also stressed that the bill
supplies the inadequacies of the existing laws treating crimes committed
against children, namely, the RPC and the Child and Youth Welfare Code, in
the light of the present situation, i.e., current empirical data on child abuse
indicate that a stronger deterrence is imperative.[94]
In the same vein, Senator Rasul expressed in her Sponsorship Speech the
same view that R.A. No. 7610 intends to protect all children against all forms
of abuse and exploitation, thus:
There are still a lot of abuses and injustices done to our children who suffer
not only from strangers, but sadly, also in the hands of their parents and
relatives. We know for a fact that the present law on the matter, the Child
and Welfare Code (PD No. 603) has very little to offer to abuse children. We
are aware of the numerous cases not reported in media.
Perhaps, more lamentable than the continuing child abuses and exploitation
is the seeming unimportance or the lack of interest in the way we have dealt
with the said problem in the country. No less than the Supreme Court, in the
recent case of People v. Ritter, held that we lack criminal laws which will
adequately protect street children from exploitation of pedophiles. But as we
know, we, at the Senate have not been remiss in our bounden duty to
sponsor bills which will ensure the protection of street children from the
tentacles of sexual exploitation. Mr. President, now is the time to convert
these bills into reality.
In our long quest for solutions to problems regarding children, which
problems are deeply rooted in poverty, I have felt this grave need to sponsor
a bill, together with Senators Lina and Mercado, which would ensure the
children's protection from all forms of abuse and exploitation, to provide
stiffer sanction for their commission and carry out programs for prevention
and deterrence to aid crisis intervention in situations of child abuse and
exploitation.
Senate Bill No. 1209 translates into reality the provision of our 1987
Constitution on "THE FAMILY," and I quote:
xxxx
(2) The right of children to assistance, including proper care and nutrition,
and special protection from all forms of neglect, abuse, cruelty, exploitation,
and other conditions prejudicial to their development.
This is a specific provision peculiar to the Philippines. No other Constitution
in the whole world contains this mandate. Keeping true to this mandate, Mr.
President, and the UN Convention on the Rights of the Child which has been
drafted in the largest global summit, of which we have acceded, we should
waste no time in passing this significant bill into law. This is a commitment;
thus, we should not thrive on mere promises. We, the legislature of this
country, must have that political will to transform this promise into a vibrant
reality.
xxxx
For purposes of this Act, the penalty for the commission of acts punishable
under Articles 248, 249, 262, paragraph 2, and 263, paragraph 1 of Act No.
3815, as amended, for the crimes of murder, homicide, other intentional
mutilation, and serious physical injuries, respectively, shall be reclusion
perpetua when the victim is under twelve (12) years of age. The penalty for
the commission of acts punishable under Article 337, 339, 340 and 341 of Act
No. 3815, as amended, the Revised Penal Code, for the crimes of qualified
seduction, acts of lasciviousness with consent of the offended party,
corruption of minors, and white slave trade, respectively, shall be one (1)
degree higher than that imposed by law when the victim is under twelve (12)
years of age.[96]
The ponente explained that to impose upon Quimvel an indeterminate
sentence computed from the penalty of prision correccional under Article
336 of the RPC would defeat the purpose of R.A. No. 7610 to provide for
stronger deterrence and special protection against child abuse, exploitation
and discrimination. First, the imposition of such penalty would erase the
substantial distinction between acts of lasciviousness under Article 336 and
acts of lasciviousness with consent of the offended party under Article 339,
[97]
which used to be punishable by arresto mayor, and now by prision
correccional pursuant to Section 10, Article VI of R.A. No. 7610. Second, it
would inordinately put on equal footing the acts of lasciviousness committed
against a child and the same crime committed against an adult, because the
imposable penalty for both would still be prision correccional, save for the
aggravating circumstance of minority that may be considered against the
perpetrator. Third, it would make acts of lasciviousness against a child a
probationable offense, pursuant to the Probation Law of 1976, [98] as amended
by R.A. No. 10707.[99] Indeed, while the foregoing implications are favorable
to the accused, they are contrary to the State policy and principles under
R.A. No. 7610 and the Constitution on the special protection to children.
Justice Caguioa also faults that a logical leap was committed when
the ponencia posited that the Section 10, Article VI, R.A. No. 7610
amendment of the penalties under Articles 337, 339, 340 and 341 of the RPC,
also affected Article 336 on acts of lasciviousness. He argues that given the
clear import of Section 10 to the effect that the legislature expressly named
the provisions it sought to amend through R.A. No. 7610, amendment by
implication cannot be insisted on.
We disagree. Articles 337 (Qualified Seduction), 339 (Acts of Lasciviousness
with the Consent of the Offended Party), 340 (Corruption of Minor) and 341
(White Slave Trade) of the RPC, as well as Article 336 (Acts of
Lasciviousness) of the RPC, fall under Title Eleven of the RPC on Crimes
against Chastity. All these crimes can be committed against children. Given
the policy of R.A. No. 7610 to provide stronger deterrence and special
protection against child abuse, We see no reason why the penalty for acts of
lasciviousness committed against children should remain to be prision
correccional when Section 5(b), Article III of R.A. No. 7610 penalizes those
who commit lascivious conduct with a child exploited in prostitution or
subject to other sexual abuse with a penalty of reclusion temporal in its
medium period when the victim is under 12 years of age.
Contrary to the view of Justice Caguioa, there is, likewise, no such thing as a
recurrent practice of relating the crime committed to R.A. No. 7610 in order
to increase the penalty, which violates the accused's constitutionally
protected right to due process of law. In the interpretation of penal statutes,
the rule is to subject it to careful scrutiny and to construe it with such
strictness as to safeguard the rights of the accused, [100] and at the same
time preserve the obvious intention of the legislature. [101] A strict
construction of penal statutes should also not be permitted to defeat the
intent, policy and purpose of the legislature, or the object of the law sought
to be attained.[102] When confronted with apparently conflicting statutes, the
courts should endeavor to harmonize and reconcile them, instead of
declaring the outright invalidity of one against the other, because they are
equally the handiwork of the same legislature.[103] In this case, We are trying
to harmonize the applicability of the provisions of R.A. No. 7610 vis-a-vis
those of the RPC, as amended by R.A. No. 8353, in order to carry out the
legislative intent to provide stronger deterrence and special protection
against all forms of child abuse, exploitation and discrimination.
Pertinent parts of the deliberation in Senate Bill No. 1209 underscoring the
legislative intent to increase the penalties as a deterrent against all forms of
child abuse, including those covered by the RPC and the Child and Youth
Welfare Code, as well as to give special protection to all children, read:
Senator Lina. x x x
For the information and guidance of our Colleagues, the phrase "child abuse"
here is more descriptive than a definition that specifies the particulars of the
acts of child abuse. As can be gleaned from the bill, Mr. President, there is a
reference in Section 10 to the "Other Acts of Neglect, Abuse, Cruelty or
Exploitation and Other Conditions Prejudicial to the Child's Development."
We refer, for example, to the Revised Penal Code. There are already acts
described and punished under the Revised Penal Code and the Child and
Youth Welfare Code. These are all enumerated already, Mr. President. There
are particular acts that are already being punished.
As pointed out by Senator Lina, the other aspect of S.B. No. 1209, is to
increase penalties on acts committed against children; thus, direct reference
was made to the Articles in the RPC and in the Articles in the Child and
Youth Welfare Code that are amended because of the increase in the
penalties. The said legislative intent is consistent with the policy to provide
stronger deterrence and special protection of children against child abuse,
and is now embodied under Section 10, Article VI of R.A. No. 7610, viz.:
For purposes of this Act, the penalty for the commission of acts punishable
under Articles 248, 249, 262, paragraph 2, and 263, paragraph 1 of Act No.
3815, as amended, the Revised Penal Code, for the crimes of murder,
homicide, other intentional mutilation, and serious physical injuries,
respectively, shall be reclusion perpetua when the victim is under twelve
(12) years of age. The penalty for the commission of acts punishable under
Article 337, 339, 340 and 341 of Act No. 3815, as amended, the Revised
Penal Code, for the crimes of qualified seduction, acts of lasciviousness with
the consent of the offended party, corruption of minors, and white slave
trade, respectively, shall be one (1) degree higher than that imposed by law
when the victim is under twelve (12) years age.
Justice Perlas-Bernabe and Justice Caguioa are both correct that R.A. No.
7610 was enacted to fill the gaps in the law, as observed by the Court
in People v. Ritter. However, they may have overlooked that fact that the
Congressional deliberations and the express provisions of R.A. No. 7610 all
point to the intention and policy to systematically address the problems of
children below 15 years of age [later increased to below 18], which Senator
Lina emphasized as a special sector in our society that needs to be given
special protection.[105]
Justice Perlas-Bernabe also noted that a general view on the application of
R.A. No. 7610 would also lead to an unnerving incongruence between the
law's policy objective and certain penalties imposed thereunder. She pointed
out that under Article 335 of the RPC, prior to its amendment by R.A. No.
8353, the crime of rape committed against a minor who is not under 12 and
below 18, is punished with the penalty of reclusion perpetua, while under
Section 5(b), Article III of R.A. No. 7610, the crime of sexual abuse against a
child EPSOSA is punished only with a lower penalty of reclusion temporal in
its medium period to reclusion perpetua. She concluded that it would not
make sense for the Congress to pass a supposedly stronger law against child
abuse if the same carries a lower penalty for the same act of rape under the
old RPC provision.
Justice Perlas-Bernabe's observation on incongruent penalties was similarly
noted by the ponente in his Separate Concurring Opinion in Quimvel, albeit
with respect to the penalties for acts of lasciviousness committed against a
child, but he added that the proper remedy therefor is a corrective
legislation:
Curiously, despite the clear intent of R.A. 7610 to provide for stronger
deterrence and special protection against child abuse, the penalty [ reclusion
temporal medium] when the victim is under 12 years old is lower compared
to the penalty [reclusion temporal medium to reclusion perpetua] when the
victim is 12 years old and below 18. The same holds true if the crime of acts
of lasciviousness is attended by an aggravating circumstance or committed
by persons under Section 31,[106] Article XII of R.A. 7610, in which case, the
imposable penalty is reclusion perpetua. In contrast, when no mitigating or
aggravating circumstance attended the crime of acts of lasciviousness, the
penalty therefor when committed against a child under 12 years old is aptly
higher than the penalty when the child is 12 years old and below 18. This is
because, applying the Indeterminate Sentence Law, the minimum term in the
case of the younger victims shall be taken from reclusion
temporal minimum, whereas as the minimum term in the case of the older
victims shall be taken from prision mayor medium to reclusion
temporal minimum. It is a basic rule in statutory construction that what
courts may correct to reflect the real and apparent intention of the
legislature are only those which are clearly clerical errors or obvious
mistakes, omissions, and misprints, but not those due to oversight, as shown
by a review of extraneous circumstances, where the law is clear, and to
correct it would be to change the meaning of the law. To my mind, a
corrective legislation is the proper remedy to address the noted incongruent
penalties for acts of lasciviousness committed against a child. [107]
To support his theory that the provisions of R.A. No. 7610 are intended only
for those under the unique circumstances of the children being "exploited in
prostitution or subjected to other sexual abuse," Justice Caguioa quoted
pertinent portions of the Senate deliberation on the provision on attempt to
commit child prostitution," which concededly do not affect Article 336 of the
RPC on acts of lasciviousness. Senator Lina provided with a background, not
of the provision of Section 5(b), but of Section 6 of R.A. No. 7610 on attempt
to commit child prostitution, thus:
Senator Lina. xxx Mr. President, Article 336 of Act No. 3815 will remain
unaffected by this amendment we are introducing here. As a backgrounder,
the difficulty in the prosecution of so-called "pedophiles" can be traced to
this problem of having to catch the malefactor committing the sexual act on
the victim. And those in the law enforcement agencies and in the
prosecution service of the Government have found it difficult to prosecute.
Because if an old person, especially foreigner, is seen with a child with
whom he has no relation—blood or otherwise — and they are just seen in a
room and there is no way to enter the room and to see them in flagrante
delicto, then it will be very difficult for the prosecution to charge or to hale to
court these pedophiles.
So we are introducing into this bill, Mr. President, an act that is already
considered an attempt to commit child prostitution. This, in no way, affects
the Revised Penal Code provisions on acts of lasciviousness or qualified
seduction.[108]
Justice Caguioa's reliance on the foregoing statements of Senator Lina is
misplaced. While Senator Lina was referring to the specific provision on
attempt to commit child prostitution under Section 6, Article III of R.A. No.
7610, Senator Aquilino Pimentel Jr.'s questions were directed more on the
general effect of Senate Bill No. 1209 on the existing provisions of the RPC
on child sexual abuse, which elicited from Senator Lina the intent to provide
higher penalties for such crimes, to wit:
For example, we have in our Revised Penal Code, qualified seduction, under
Article 337 of the Revised Penal Code, which provides that the seduction of a
virgin over 12 and under 18 committed by any person in public authority:
priest, house servant, domestic guardian, teacher, or person who in any
capacity shall be entrusted with the education or custody of the woman
seduced, shall be punished by etc. etc. Now, if we make a general definition
of pedophilia then shall that offender, who, under our present law, is guilty of
pedophilia? I understand that the consensus is to consider a woman or a boy
below 15 as a child and therefore a potential victim of pedophilia. And so,
what will happen to our laws and jurisprudence on seduction? The Chairman
earlier mentioned that possible we might just amend our existing provisions
on crimes against chastity, so as to make it stiffer, if the victim or the
offended party is a minor below a certain age, then there is also seduction of
a woman who is single or a widow of good reputation, over 12 but under 18.
Seduction, as understood in law, is committed against a woman, in other
words, a man having sexual intercourse with a woman. That is how the term
is understood in our jurisprudence. So I believe Mr. Chairman, that we should
rather act with caution and circumspection on this matter. Let us hear
everybody because we are about to enact a law which would have very
drastic and transcendental effects on our existing laws. In the first place, we
are not yet very clear on what is pedophilia. We have already existing laws,
which would punish these offenses.
In Quimvel,[124] We stressed that Section 5(a) of R.A. No. 7610 punishes acts
pertaining to or connected with child prostitution wherein the child is abused
primarily for profit. On the other hand, paragraph (b) punishes sexual
intercourse or lascivious conduct committed on a child subjected to other
sexual abuse. It covers not only a situation where a child is abused for profit
but also one in which a child, through coercion, intimidation or influence,
engages in sexual intercourse or lascivious conduct. Hence, the law
punishes not only child prostitution but also other forms of sexual abuse
against children. This is even made clearer by the deliberations of the
Senate, as cited in the landmark ruling of People v. Larin. We also added
that the very definition of "child abuse" under Section 3(b) of R.A. No. 7610
does not require that the victim suffer a separate and distinct act of sexual
abuse aside from the act complained of, for it refers to the maltreatment
whether habitual or not, of the child. Thus, a violation of Section 5(b) of R.A.
No. 7610 occurs even though the accused committed sexual abuse against
the child victim only once, even without a prior sexual offense.
In Caoili,[125] We reiterated that R.A. No. 7610 finds application when the
victims of abuse, exploitation or discrimination are children or those
"persons below 18 years of age or those over but are unable to fully take
care of themselves or protect themselves from abuse, neglect, cruelty,
exploitation or discrimination because of a physical or mental disability or
condition." It has been settled that Section 5(b) of R.A. No. 7610 does not
require a prior or contemporaneous abuse that is different from what is
complained of, or that a third person should act in concert with the accused.
Section 5 of R.A. No. 7610 does not merely cover a situation of a child being
abused for profit, but also one in which a child is coerced to engage in
lascivious conduct.
Meanwhile, Justice Marvic Mario Victor F. Leonen partly agrees with
the ponencia that insertion of a finger into a minor's vagina deserves a
higher penalty than prision mayor under Article 266-A, paragraph 2 in
relation to Article 266-B of the RPC. However, he asserts that non
consensual insertion of a finger in another's genitals is rape by carnal
knowledge under Article 266-A, paragraph 1 of the RPC. He also reiterates
his view in People v. Quimvel that Article 336 of the RPC has already been
rendered ineffective with the passage of R.A. No. 8353.
We stand by our ruling in Caoili that the act of inserting a finger in another's
genitals cannot be considered rape by carnal knowledge, thus:
The language of paragraphs 1 and 2 of Article 266-A of the RPC, as amended
by R.A. No. 8353. provides the elements that substantially differentiate the
two forms of rape, i.e., rape by sexual intercourse and rape by sexual
assault. It is through legislative process that the dichotomy between these
two modes of rape was created. To broaden the scope of rape by sexual
assault, by eliminating its legal distinction from rape through sexual
intercourse, calls for judicial legislation which We cannot traverse without
violating the principle of separation of powers. The Court remains steadfast
in confining its powers within the constitutional sphere of applying the law
as enacted by the Legislature.
In fine, given the material distinctions between the two modes of rape
introduced in R.A. No. 8353, the variance doctrine cannot be applied to
convict an accused of rape by sexual assault if the crime charged is rape
through sexual intercourse, since the former offense cannot be considered
subsumed in the latter.[126]
We also maintain the majority ruling in Quimvel that Sec. 4 of R.A. No. 8353
did not expressly repeal Article 336 of the RPC for if it were the intent of
Congress, it would have expressly done so. Apropos is the following
disquisition in Quimvel:
x x x Rather, the phrase in Sec. 4 states: "deemed amended, modified, or
repealed accordingly" qualifies "Article 335 of Act No. 3815, as amended,
and all laws, acts, presidential decrees, executive orders, administrative
orders, rules and regulations inconsistent with or contrary to the provisions
of [RA 8353]."
As can be read, repeal is not the only fate that may befall statutory
provisions that are inconsistent with RA 8353. It may be that mere
amendment or modification would suffice to reconcile the inconsistencies
resulting from the latter law's enactment. In this case, Art. 335 of the RPC,
which previously penalized rape through carnal knowledge, has been
replaced by Art. 266-A. Thus, the reference by Art. 336 of the RPC to any of
the circumstances mentioned on the erstwhile preceding article on how the
crime is perpetrated should now refer to the circumstances covered by Art.
266-A as introduced by the Anti-Rape Law.
xxxx
Senator Enrile: x x x As I indicated last week, I will support this bill but I
would like to clarify some points just to set the matters into the Record.
Mr. President, the first thing I would like to find out is the status of this bill —
whether this is going to be a statutory crime or a part of the crimes defined
in the Revised Penal Code.
Senator Shahani: Mr. President, we will recall that this was the topic of
prolonged interpellations not only by Senator Enrile, but also by Senator
Sotto. In consultation with Senator Roco - we were not able to get in touch
with Senator Santiago — we felt that the purpose of this bill would be better
served if we limited the bill to amending Article 335 of the Revised Penal
Code, at the same time expanding the definition of rape, reclassifying the
same as a crime against persons, providing evidentiary requirements and
procedures for the effective prosecution of offenders, and institutionalizing
measures for the protection and rehabilitation of rape victims and for other
purposes. In other words, it stays within the Revised Penal Code, and rape is
associated with criminal intent.
Having said this, it means that there will be a new chapter. They are
proposing a new chapter to be known as Chapter III on rape, under Title 8 of
the Revised Penal Code. There it remains as a crime against persons and no
longer as a crime against chastity, but the criminal intent is retained.
Senator Enrile. So, the distinction between rape as a crime, although now
converted from a crime against chastity to a crime against persons, and
seduction and act of lasciviousness would be maintained. Am I correct in
this, Mr. President?
Senator Shahani. That is correct, Mr. President.[128]
In light of the foregoing disquisition, We hold that Tulagan was aptly
prosecuted for sexual assault under paragraph 2, Article 266-A of the RPC in
Criminal Case. No. SCC-6210 because it was alleged and proven that AAA
was nine (9) years old at the time he inserted his finger into her vagina.
Instead of applying the penalty under Article 266-B of the RPC, which
is prision mayor, the proper penalty should be that provided in Section 5(b),
Article III of R.A. No. 7610, which is reclusion temporal in its medium
period. This is because AAA was below twelve (12) years of age at the time
of the commission of the offense, and that the act of inserting his finger in
AAA's private part undeniably amounted to "lascivious conduct." [129] Hence,
the proper nomenclature of the offense should be Sexual Assault under
paragraph 2, Article 266-A of the RPC, in relation to Section 5(b), Article III of
R.A. No. 7610.
Applying the Indeterminate Sentence Law, the maximum term of the
indeterminate penalty shall be that which could be properly imposed under
the law, which is fifteen (15) years, six (6) months and twenty (20) days
of reclusion temporal. On the other hand, the minimum term shall be within
the range of the penalty next lower in degree, which is reclusion
temporal in its minimum period, or twelve (12) years and one (1) day to
fourteen (14) years and eight (8) months. Hence, Tulagan should be meted
the indeterminate sentence of twelve (12) years, ten (10) months and twenty-
one (21) days of reclusion temporal, as minimum, to fifteen (15) years, six (6)
months and twenty (20) days of reclusion temporal, as maximum.
In Criminal Case No. SCC-6211 for statutory rape, We affirm that Tulagan
should suffer the penalty of reclusion perpetua in accordance with
paragraph 1(d), Article 266-A in relation to Article 266-B of the RPC, as
amended by R.A. No. 8353.
Damages
For the sake of consistency and uniformity, We deem it proper to address the
award of damages in cases of Sexual Assault under paragraph 2, Article 266-
A of the RPC in relation to Section 5(b) of R.A. No. 7610, and Acts of
Lasciviousness under Article 336 of the RPC in relation to Section 5(b) of R.A.
No. 7610. Considering that the imposable penalties for the said two crimes
are within the range of reclusion temporal, the award of civil indemnity and
moral damages should now be fixed in the amount of P50,000.00 each. The
said amount is based on People v. Jugueta[130] which awards civil indemnity
and moral damages in the amount of P50,000.00 each in cases of homicide
where the imposable penalty is reclusion temporal. In case exemplary
damages are awarded due to the presence of any aggravating circumstance,
to set a public example, or to deter elders who abuse and corrupt the youth,
then an equal amount of P50,000.00 should likewise be awarded.
The said award of civil indemnity, moral damages and exemplary damages
should be distinguished from those awarded in cases of: (1) Acts of
Lasciviousness under Article 336 of the RPC where the imposable penalty
is prision correccional, the amount of civil indemnity and moral damages
should now be fixed at P20,000.00 while exemplary damages, if warranted,
should also be P20,000.00; (2) Sexual Assault under paragraph 2, Article 266-
A of the RPC where the imposable penalty is prision mayor, the award of
civil indemnity and moral damages should be fixed at P30,000.00 each, while
the award of exemplary damages, if warranted, should also be P30,000.00
pursuant to prevailing jurisprudence;[131] and (3) Lascivious conduct under
Section 5(b) of R.A. No. 7610, when the penalty of reclusion perpetua is
imposed, and the award of civil indemnity, moral damages and exemplary
damages is P75,000.00 each.
The justification for the award of civil indemnity, moral damages and
exemplary damages was discussed in People v. Combate,[132] as follows:
First, civil indemnity ex delicto is the indemnity authorized in our criminal
law for the offended party, in the amount authorized by the prevailing judicial
policy and apart from other proven actual damages, which itself is equivalent
to actual or compensatory damages in civil law. This award stems from
Article 100 of the RPC which states, "Every person criminally liable for a
felony is also civilly liable."
Civil liability ex delicto may come in the form of restitution, reparation, and
indemnification. Restitution is defined as the compensation for loss; it is full
or partial compensation paid by a criminal to a victim ordered as part of a
criminal sentence or as a condition for probation. Likewise, reparation and
indemnification are similarly defined as the compensation for an injury,
wrong, loss, or damage sustained. Clearly, all of these correspond to actual
or compensatory damages defined under the Civil Code.
xxxx
The second type of damages the Court awards are moral damages, which
are also compensatory in nature. Del Mundo v. Court of Appeals expounded
on the nature and purpose of moral damages, viz.:
Moral damages, upon the other hand, may be awarded to compensate one for
manifold injuries such as physical suffering, mental anguish, serious anxiety,
besmirched reputation, wounded feelings and social humiliation. These
damages must be understood to be in the concept of grants, not punitive or
corrective in nature, calculated to compensate the claimant for the injury
suffered. Although incapable of exactness and no proof of pecuniary loss is
necessary in order that moral damages may be awarded, the amount of
indemnity being left to the discretion of the court, it is imperative,
nevertheless, that (1) injury must have been suffered by the claimant, and (2)
such injury must have sprung from any of the cases expressed in Article
2219 and Article 2220 of the Civil Code x x x.
Similarly, in American jurisprudence, moral damages are treated as
"compensatory damages awarded for mental pain and suffering or mental
anguish resulting from a wrong." They may also be considered and allowed
"for resulting pain and suffering, and for humiliation, indignity, and vexation
suffered by the plaintiff as result of his or her assailant's conduct, as well as
the factors of provocation, the reasonableness of the force used, the
attendant humiliating circumstances, the sex of the victim, [and] mental
distress."
The rationale for awarding moral damages has been explained in Lambert
v. Heirs of Rey Castillon: "[T]he award of moral damages is aimed at a
restoration, within the limits possible, of the spiritual status quo ante; and
therefore, it must be proportionate to the suffering inflicted."
Corollarily, moral damages under Article 2220 of the Civil Code also does
not fix the amount of damages that can be awarded. It is discretionary upon
the court, depending on the mental anguish or the suffering of the private
offended party. The amount of moral damages can, in relation to civil
indemnity, be adjusted so long as it does not exceed the award of civil
indemnity.
xxxx
Exemplary
Crime Civil Indemnity Moral Damages
Damages[134]
Acts of Lasciviousness P20,000.00 P20,000.00 P20,000.00
under Article 336 of the
RPC [Victim is of legal
age]
Acts of lasciviousness in P50,000.00 P50,000.00 P50,000.00
relation to Section 5(b)
of R.A. No. 7610
[Victim is a child under
12 years old or is
demented]
Sexual Abuse or P75,000.00 (If penalty P75,000.00 (If penalty P75,000.00 (If penalty
Lascivious Conduct imposed is reclusion imposed is reclusion imposed is reclusion
under Section 5(b) of perpetua) perpetua) perpetua)
R.A. No. 7610 [Victim
P50,000.00 (If penalty P50,000.00 (If penalty P50,000.00 (If penalty
is a child 12 years old
imposed is within the imposed is within the imposed is within the
and below 18, or above
range of reclusion range of reclusion range of reclusion
18 under special
temporal medium) temporal medium) temporal medium)
circumstances]
Sexual Assault under P30,000.00 P30,000.00 P30,000.00
Article 266-A(2) of the
RPC [Victim is of legal
age]
Sexual Assault under P50,000.00 P50,000.00 P50,000.00
Article 266-A(2) of the
RPC in relation to
Section 5(b) of R.A. No.
7610 [Victim is a child
under 12 years old or is
demented]
We are also not unmindful of the fact that the accused who commits acts of
lasciviousness under Article 336 of the RPC, in relation to Section 5 (b) of
R.A. No. 7610, suffers the more severe penalty of reclusion temporal in its
medium period, than the one who commits Rape Through Sexual Assault,
which is merely punishable by prision mayor.
In People v. Chingh,[142] We noted that the said fact is undeniably unfair to
the child victim, and it was not the intention of the framers of R.A. No. 8353
to have disallowed the applicability of R.A. No. 7610 to sexual abuses
committed to children. We held that despite the passage of R.A. No. 8353,
R.A. No. 7610 is still a good law, which must be applied when the victims are
children or those "persons below eighteen (18) years of age or those over but
are unable to fully take care of themselves or protect themselves from
abuse, neglect, cruelty, exploitation or discrimination because of a physical
or mental disability or condition."[143]
In Dimakuta, We added that where the lascivious conduct is covered by the
definition under R.A. No. 7610, where the penalty is reclusion
temporal medium and the said act is, likewise, covered by sexual assault
under Art. 266-A, paragraph 2 of the RPC, which is punishable by prision
mayor, the offender should be liable for violation of Section 5(b), Article III of
R.A. No. 7610, where the law provides the higher penalty of reclusion
temporal medium, if the offended party is a child. But if the victim is at least
eighteen (18) years of age, the offender should be liable under Art. 266-A,
par. 2 of the RPC and not R.A. No. 7610, unless the victim is at least 18 years
old and she is unable to fully take care of herself or protect herself from
abuse, neglect, cruelty, exploitation or discrimination because of a physical
or mental disability or condition, in which case, the offender may still be held
liable of sexual abuse under R.A. No. 7610. The reason for the foregoing is
that with respect to lascivious conduct, R.A. No. 7610 affords special
protection and stronger deterrence against child abuse, as compared to R.A.
No. 83.53 which specifically amended the RPC provisions on rape.
Finally, despite the enactment of R.A. No. 8353 more than 20 years ago in
1997, We had been consistent in our rulings in Larin, Olivarez,
and Garingarao, Quimvel and Caoili, all of which uphold the intent of R.A.
No. 7610 to provide special protection of children and stronger deterrence
against child abuse. Judicial stability compels to stand by, but not to
abandon, our sound rulings: [1] that Section 5(b), Article III of R.A. No. 7610
penalizes not only child prostitution, the essence of which is profit, but also
other forms of sexual abuse wherein a child engages in sexual intercourse or
lascivious conduct through coercion or influence; and [2] that it is
inconsequential that the sexual abuse occurred only once. Our rulings also
find textual anchor on Section 5, Article III of R.A. No. 7610, which explicitly
states that a child is deemed "exploited in prostitution or subjected to other
sexual abuse," when the child indulges in sexual intercourse or lascivious
conduct for money, profit or any other consideration, or under the coercion or
influence of any adult, syndicate or group, as well as on Section 3(b), Article
I thereof, which clearly provides that the term "child abuse" refers to the
maltreatment, whether habitual or not, of the child which includes sexual
abuse.
If the lawmakers disagreed with our interpretation, they could have easily
amended the law, just like what they did when they enacted R.A. No.
10591[144] [Amendment on the provision of use of firearm in the commission
of a crime], R.A. No. 10951[145] [Amendments to certain penalty and fines
under the Revised Penal Code] and R.A. No. 10707[146] [Amendments to the
Probation Law] after We rendered People v. Ladjaalam,[147] Corpuz v. People,
[148]
Colinares v. People and Dimakuta v. People, respectively, and their
silence could only be construed as acquiescence to our rulings.
WHEREFORE, PREMISES CONSIDERED, the appeal is DENIED. The Joint
Decision dated February 10, 2014 of the Regional Trial Court in Criminal Case
Nos. SCC-6210 and SCC-6211, as affirmed by the Court of Appeals Decision
dated August 17, 2015 in CA-G.R. CR-HC No. 06679,
is AFFIRMED with MODIFICATIONS. We find accused-appellant Salvador
Tulagan:
1. Guilty beyond reasonable doubt of Sexual Assault under paragraph 2, Article 266-A of the
Revised Penal Code, in relation to Section 5(b) of Republic Act No. 7610, in Criminal Case No.
SCC-6210, and is sentenced to suffer the indeterminate penalty of twelve (12) years, ten (10) months
and twenty-one (21) days of reclusion temporal, as minimum, to fifteen (15) years, six (6) months and
twenty (20) days of reclusion temporal, as maximum. Appellant is ORDERED to PAY AAA the
amounts of P50,000.00 as civil indemnity, P50,000.00 as moral damages, and P50,000.00 as
exemplary damages.
2. Guilty beyond reasonable doubt of Statutory Rape under Article 266-A(1)(d) and penalized in
Article 266-B of the Revised Penal Code, in Criminal Case No. SCC-6211, and is sentenced to
suffer the penalty of reclusion perpetua with modification as to the award of damages. Appellant
is ORDERED to PAY AAA the amounts of P75,000.00 as civil indemnity, P75,000.00 as moral
damages, and P75,000.00 as exemplary damages.
Legal interest of six percent (6%) per annum is imposed on all damages
awarded from the date of finality of this Decision until fully paid.
Let a copy of this Decision be furnished the Department of Justice, the Office
of the Solicitor General, the Office of the Court Administrator, and the
Presiding Justice of the Court of Appeals, for their guidance and information,
as well as the House of Representatives and the Senate of the Philippines, as
reference for possible statutory amendments on the maximum penalty for
lascivious conduct under Section 5(b), Article III of R.A. No. 7610 when the
victim is under 12 years of age [reclusion temporal medium], and when the
victim is 12 years old and below 18, or 18 or older under special
circumstances [reclusion temporal medium to reclusion perpetua] under
Section 3(a) of R.A. No. 7610.
SO ORDERED.