G.R. No. 260233 and G.R. No. 266039, August 12, 2025
JEFFREY GRAMATICA Y LAURISTA, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
G.R. No. 266039
PEOPLE OF THE PHILIPPINES, Plaintiff-appellee,
vs.
XXX266039,** Accused-appellant.
SEPARATE CONCURRING OPINION
LEONEN, SAJ:
I concur in the result.
However, accused-appellant XXX266039 should be convicted of Lascivious Conduct under Section 5(b) of Republic Act No. 7610 or the Special Protection of Children Against Abuse, Exploitation, and Discrimination Act and not Acts of Lasciviousness under Article 336 of the Revised Penal Code. I reiterate my opinion in Quimvel v. People,1 People v. Tulagan,2 and Carbonell v. People3 that Republic Act No. 8353 or The Anti-Rape Law of 1997 has rendered ineffective the provision on Acts of Lasciviousness in the Revised Penal Code.
The consolidated cases present an opportunity for this Court to clarify the definition of the term "exploited under prostitution and other sexual abuse" or EPSOSA under Republic Act No. 7610 and how the presence of such element takes the crime out of the coverage of the Revised Penal Code.
I
In G.R. No. 260233, the Petition for Review on Certiorari assails the March 11, 2021 Decision and March 29, 2022 Resolution of the Court of Appeals in CA-G.R. CR No. 4231, affirming with modification the Decision of the Regional Trial Court, La Trinidad, Benguet in Criminal Case Nos. 15-CR 1 01797 and 10798 finding petitioner Jeffrey Gramatica y Laurista (Gramatica) guilty of violating Sections 5(b) and 10(a) of Republic Act No. 7610.4
Gramatica was charged in four separate Informations.
In Criminal Case No. 15-CR-10794:
That sometime in the second week of June 2015 up to the last week of June 2015, at █████████████████████, Province of Benguet, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, without any authority of law, did then and there willfully, unlawfully and knowingly sell, deliver, or give away methamphetamine hydrochloride, commonly known as "shabu," a dangerous drug to █████████████████████ and █████████████████████, which they thereafter use and consume together inside his room at █████████████████████, Benguet, in violation of the said law.
The commission of the crime is aggravated by the fact that the and victims, █████████████████████ and ██████████████ are minors, they having been born respectively on January 19, 199 and July 18, 2000.
CONTRARY TO LAW.5
In Criminal Case No. 15-CR-10797:
That from the second week of June, 2015 up to the last week of June, 2015 at █████████████████████ Province of Benguet, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and knowingly commit acts of sexual intercourse with █████████████████████, a child who was born on July 18, 2000, and who is deemed under the law to be a child exploited in prostitution or other sexual abuse as she indulged in sexual intercourse or lascivious conduct for some consideration and due to the influence of the accused who is an adult, thereby demeaning her intrinsic worth and dignity as a child, to her great damage and prejudice.
CONTRARY TO LAW.6
In Criminal Case No. 15-CR-10798:
That from the second week of June, 2015 up to the last week of June, 2015 at █████████████████████, Province of Benguet, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and knowingly commit child abuse upon the person of █████████████████████, a minor born on January 19, 1998, by placing or causing her to be in a situation or condition prejudicial to her growth and development as a child, that is, by selling, delivering, or giving away methamphetamine hydrochloride also known as 'shabu,' a dangerous drugs, to her and allowing her to use and consume the drug in his place, to her great damage and prejudice.
CONTRARY TO LAW.7
In Criminal Case No. 15-CR-10799:
That from the second week of June, 2015 up to the last week of June, 2015 at █████████████████████, Province of Benguet, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and knowingly commit child abuse upon the person of █████████████████████, a minor born on July 18, 2000, by placing or causing her to be in a situation or condition prejudicial to her growth and development as a child, that is, by selling, delivering, or giving away methamphetamine hydrochloride also known as 'shabu,' a dangerous drugs, to her and allowing her to use and consume the drug in his place, to her great damage and prejudice.
CONTRARY TO LAW.8
In Criminal Case No. 15-CR-10794, the trial court acquitted Gramatica for the prosecution's failure to establish the elements of Illegal Sale of shabu. It also acquitted Gramatica in Criminal Case No. 15-CR-10799 on the ground of reasonable doubt.9
In Criminal Case Nos. 15-CR-10797 and 15-CR-10798, both the trial court arid the Court of Appeals found Gramatica guilty beyond reasonable doubt of Lascivious Conduct under Section 5(b) and violation of Section 10(a) of Republic Act No. 7610, respectively.10
The ponencia affirmed the convictions but modified the disposition, as follows:
ACCORDINGLY, the Court resolves to:
1. DENY the Petition for Review on Certiorari in G.R. No. 260233. The Decision dated March 11, 2021, and the Resolution dated March 29, 2022, of the Court of Appeals in CA-G.R. CR No. 42318 are AFFIRMED WITH MODIFICATIONS as follows:
a. In Criminal Case No. 15-CR-10797 filed before Branch 9, Regional Trial Court, La Trinidad, Benguet, petitioner Jeffrey Gramatica y Laurista is found GUILTY of Child Prostitution under Section 5 (b) of Republic Act No. 7610. He is sentenced to suffer imprisonment of eight years and one day of prison mayor medium, as minimum, to seventeen years, four months and one day of reclusion temporal minimum, as maximum. Petitioner is likewise ORDERED to pay the victim, █████████████████████, PHP 50,000.00 as civil indemnity, PHP 50,000.00 as moral damages, and PHP 50,000.00 as exemplary damages. In addition, he is ORDERED to pay a FINE of PHP 15,000.00 according to Section 31(f) of Republic Act No. 7610.
b. In Criminal Case No. 15-CR-10798 filed before Branch 9, Regional Trial Court, La Trinidad, Benguet, petitioner Jeffrey Gramatica y Laurista is found guilty of Child Abuse under Section 10 (a) of Republic Act No. 7610. He is sentenced to suffer imprisonment of six years of prison correccional, as minimum, to seven years and four months of prison mayor minimum, as maximum. Further, he is ORDERED to pay the victim █████████████████████ PHP 20,000.00 as moral damages, and PHP 20,000.00 as exemplary damages.
All monetary awards, except the fine, shall earn interest at the rate of 6% per annum from the date of finality of this Resolution until fully paid.
Further, █████████████████████ and █████████████████████ are both REFERRED to the Department of Social Welfare and Development and/or the Department of Health for evaluation, and if deemed necessary, for treatment and rehabilitation.11
In Criminal Case No. 15-CR-10797, I concur with the ponencia that Gramatica is guilty of Child Prostitution under Section 5(b) of Republic Act No. 7610.
Republic Act No. 7610 introduced the term "exploited in prostitution or other sexual abuse," as seen in Article III, Section 5(b) of the law:
SECTION 5. Child Prostitution and Other Sexual Abuse. Children, whether male or female, who for money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse.
The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following:
. . . .
(b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to other sexual abuse; Provided, That when the victim is under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and Article 336 of Act No. 3815, as amended, the Revised Penal Code for rape or lascivious conduct, as the case may be: Provided, That the penalty for lascivious conduct when the victim is under twelve (12) years of age shall be reclusion temporal in its medium period[.] (Emphasis supplied)
In People v. Larin,12 this Court discussed that a child "deemed exploited in prostitution or subjected to other sexual abuse"13 refers to a child who "indulges in sexual intercourse or lascivious conduct[:] (a) for money, profit, or any other consideration; or (b) under the coercion or influence of any adult, syndicate or group."14
There are two offenses punishable under Section 5(b) of the law: (1) child prostitution; and (2) other sexual abuse.15 Child prostitution is committed when children "who for money, profit or any other consideration . . . indulge in sexual intercourse or lascivious conduct."16 Meanwhile, the crime of other sexual abuse is committed when children who, "due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct[.]"17
In these kinds of offenses, it is important to bear in mind that "[C]hildren do not willingly indulge in sexual intercourse or lascivious conduct with an adult. There is always an element of intimidation or coercion involved. Thus, the crime is punishable not merely under the Revised Penal Code, but also under Republic Act No. 7610."18
For a successful prosecution of child prostitution, the prosecution must establish the following elements: "(1) the accused commits the act of sexual intercourse or lascivious conduct;"19 (2) "the said act is performed with a child exploited in prostitution;"20 and (3) "the child, whether male or female, is below 18 years of age."21
Here, all the elements of child prostitution were proven by the prosecution. AAA260233 clearly and categorically testified that she engaged in sexual intercourse with Gramatica in exchange for shabu.22 Consequently, AAA260233 is deemed to be a child exploited in prostitution. It was also proven that AAA260233 was only 14 years old at the time of the incident.
In Criminal Case No. 15-CR-10798, I also concur with the ponencia that Gramatica is guilty of Child Abuse under Section 10(a) of Republic Act No. 7610.
Section 3(b) of Republic Act No. 7610 provides for the definition of child abuse:
SECTION 3. Definition of Terms.
(b) "Child abuse" refers to the maltreatment, whether habitual or not, of the child which includes any of the following:
(1) Psychological and physical abuse, neglect, cruelty, sexual abuse and emotional maltreatment;
(2) Any act by deeds or words which debases, degrades or demeans the intrinsic worth and dignity of a child as a human being;
(3) Unreasonable deprivation of his basic needs for survival, such as food and shelter; or
(4) Failure to immediately give medical treatment to an injured child resulting in serious impairment of his growth and development or in his permanent incapacity or death.
To strengthen the State's protection of children's welfare, the law widened the scope of child abuse to other acts of child abuse23 as found under Section 10 of Republic Act No. 7610.
In this case, Gramatica was charged with violation of Section 10(a) of the law, which provides:
SECTION 10. Other Acts of Neglect, Abuse, Cruelty or Exploitation and Other Conditions Prejudicial to the Child's Development.
(a) Any person who shall commit any other acts of child abuse, cruelty or exploitation or be responsible for other conditions prejudicial to the child's development including those covered by Article 59 of Presidential Decree No. 603, as amended, but not covered by the Revised Penal Code, as amended, shall suffer the penalty of prision mayor in its minimum period.
In Malcampo-Repollo v. People,24 this Court clarified that generally, "intent is not an indispensable element to sustain all convictions under Section 10 (a) of Republic Act No. 7610."25 The exceptions where specific intent becomes relevant in child abuse cases are "when it is alleged in the information or required by a specific provision of law."26
Based on the facts alleged in the Information in Criminal Case No. 15-CR-10798, the prosecution does not have to establish the accused's specific intent to debase, degrade, or demean the child's intrinsic worth and dignity as a human being. The Information specifically charged Gramatica with child abuse by giving shabu to BBB260233 and allowing her to use this in his place:
That from the second week of June, 2015 up to the last week of June, 2015 at █████████████████████, Province of Benguet, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and knowingly commit child abuse upon the person of █████████████████████, a minor born on January 19, 1998, by placing or causing her to be in a situation or condition prejudicial to her growth and development as a child, that is, by selling delivering, or giving away methamphetamine hydrochloride also known as 'shabu,' a dangerous drugs, to her and allowing her to use and consume the drug in his place, to her great damage and prejudice.
CONTRARY TO LAW.27 (Emphasis supplied)
The Information sufficiently described all the elements of child abuse as required under the law. It was alleged and proved that BBB260233 was only a minor at the time of the incident. Gramatica's acts of "selling, delivering, or giving away . . . 'shabu,' a dangerous drug, to [BBB260233 and allowing her to use and consume the drug in his place,"28 constitute child abuse punishable under Section 10(a) of Republic Act No. 7610.
II
G.R. No. 266039 involves an appeal from the October 7, 2021 of the Court of Appeals Decision in CA-G.R. CR No. 44840 affirming with modification the February 19, 2020 Decision of the Regional Trial Court, Lucena City in Criminal Case No. 2018-1383, which found accused-appellant Rodolfo Dizon y Rances (Dizon) guilty beyond reasonable doubt of Lascivious Conduct under Section 5(b) of Republic Act No. 7610.29
In an Information, Dizon was charged with a violation of Section 5(b) of Republic Act No. 7610:
That on or about August 24, 2018, at ██████████████ Quezon Province, Philippines and within the jurisdiction of this Honorable Court, the accused, did then and there knowingly, willfully, and feloniously caress the breasts and vagina of ██████████████, his 17-year old granddaughter, and through his intimidation, coercion, and influence the child indulge[d] in such lascivious conduct, thus subjecting her to sexual abuse.30
According to the ponencia's narration of facts, on August 24, 2018, while CCC266039 was sleeping, her grandfather, Dizon, inserted his hand inside her panties. When CCC266039 woke up, she could not move because of fear. Dizon then proceeded to touch her breasts.31
Both the trial court and the Court of Appeals found Dizon guilty beyond reasonable doubt of Lascivious Conduct under Section 5(b) of Republic Act No. 7610.32
The ponencia affirmed the conviction but found Dizon guilty instead of Acts of Lasciviousness under Article 336 of the Revised Penal Code. The disposition was modified as follows:
ACCORDINGLY, the Court resolves to:
. . .
2. DISMISS the appeal in G.R. No. 266039. The Decision dated October 7, 2021, of the Court of Appeals in CA-G.R. CR No. 44840 is AFFIRMED with MODIFICATION. Accused-appellant Rodolfo Dizon y Rances is found GUILTY of Acts of Lasciviousness under Article 336 of the Revised Penal Code in Criminal Case No. 2018-1383 filed before Branch 15, Regional Trial Court, Lucena City, and he is SENTENCED to suffer the indeterminate penalty of imprisonment of six months of arresto mayo, as .minimum, to six years of prison correccional, as maximum.
In addition, he is ORDERED to PAY █████████████████████ the sum of PHP 150,000.00 as civil indemnity, PHP 150,000.00 as moral damages, and PHP 150,000.00 as exemplary damages, each of which shall earn interest at the rate of 6% per annum from the date of the finality of this Decision until fully paid.33
I concur with the ponencia's conclusion that Dizon should be convicted. However, I respectfully disagree that Dizon should be convicted of Acts of Lasciviousness under Article 336 of the Revised Penal Code. Instead, Dizon should be convicted of the crime of Lascivious Conduct under Section 5(b) of Republic Act No. 7610, as correctly held by the trial court and Court of Appeals.
I wish to reiterate my view as expressed in Quimvel v. People,34 People v. Tulagan,35 and Carbonell v. People36 that Article 366 of the Revised Penal Code has been repealed by Republic Act No. 8353 or the Anti-Rape Law of 1997. In my separate opinion in Carbonell v. People:37
Article 336 of the Revised Penal Code provided:
ARTICLE 336. Acts of Lasciviousness. Any person who shall commit any act of lasciviousness upon ocher persons of either sex, under any of the circumstances mentioned in the preceding article, shall be punished by prision correccional.
The "preceding article" mentioned in Article 336 refers to Article 335, under which the crime of rape had formerly been punished. Both rape and acts of lasciviousness were considered crimes against chastity under Title XI of the Revised Penal Code. With the Anti-Rape Law enacted, rape was reclassified as a crime against person and transferred to Title VIII. Left without the provision it used to refer to, Article 336 was rendered incomplete and ineffective.
However, victims of acts of lasciviousness are not without recourse. These acts may still be punished under different laws, such as Republic Act No. 7610 or Republic Act No. 9262, which impose stricter penalties.38 (Citations omitted)
With the repeal of Article-336 of the Revised Penal Code, Dizon should be convicted of Lascivious Conduct under Section 5(b) of Republic Act No. 7610.
To sustain a conviction for Lascivious Conduct, it is imperative for the prosecution to establish the following elements: "(1) [t]he accused commits the act of sexual intercourse or lascivious conduct; (2) [t]he said act is performed with a child exploited in prostitution or subjected to other sexual abuse; and (3) [t]he child, whether male or female, is below 18 years of age."39
In this case, the ponencia essentially pronounced that Dizon cannot be convicted of the crime of lascivious conduct considering that the second element was not proven. The ponencia ruled that there existed no evidence to conclude that CCC266039 was a child subjected to other sexual abuse as she was not induced, influenced, or persuaded into the lascivious conduct.40 The ponencia's discussion zeroed in on the conclusion that CCC266039 cannot be deemed to have indulged in lascivious conduct, as she was asleep when Dizon touched her vagina and breasts.41 Consequently, the ponencia ruled that "[Republic Act No. 7610 does not apply to cases where the minor is entirely unaware, coerced, or unconscious."42
However, it is my opinion that the ponencia placed too much emphasis on the meaning of the words "indulges" and "engages" in the law as to conclude that there must be active participation by the victim for the crime to fall under Section 5(b) of R.A. No. 7610.43 This kind of interpretation and application of the law seems to shift the focus to the acts of the victim, instead of focusing on the acts of the accused. While it is true that the law requires that a child in EPSOSA must have consented, this consent given by the child must be viewed in the context of the acts of the accused. A child subjected to other sexual abuse must have only consented due to the "coercion or influence of any adult[.]"44
In Caballo v. People,45 this Court explained that "sexual intercourse or lascivious conduct under the coercion or influence of an adult exists when there is some form of compulsion equivalent to intimidation which subdues the free exercise of the offended party's free will."46
In my dissenting opinion in Bangayan v. People,47 I have highlighted the importance of determining whether coercion or influence is present in cases of sexual abuse of children:
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 act.
....
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.48 (Emphasis supplied)
Moreover, the Rules and Regulations on the Reporting and Investigation of Child Abuse Cases defines lascivious conduct as "the intentional touching, either directly or through clothing, of the . . . . breast . . . of any person . . . with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person, bestiality, masturbation, lascivious exhibition of the genitals or pubic area of a person[.]''49
Based on the foregoing, it is evident that Dizon's acts, as alleged in the Information and as found by both the trial court and Court of Appeals, prove that CCC266039 should be deemed a child subjected to other sexual abuse. Contrary to the ponencia's finding that CCC266039 could not have consented to the sexual conduct since she was asleep,50 CCC266039 was already awake when Dizon touched her breasts. This is clear in CCC266039's testimony:
Q: Ang inirereklamo mo dito ay si Rodolfo Dizon Y Rances, kaano ano mo ito?
A: He is my grandfather, ma'am.
Q: Paano mo siya naging lolo?
A: He is my father's father, ma'am.
. . . .
Q: Anong oras ba nangyari itong inirereklamo mo noon?
A: At around 1:00 am, ma'am.
Q: Ala-una ng madaling araw, ano ang ginagawa mo noon?
A: I was sleeping, Ma'am.
Q: You were sleeping, and then you said that may nararamdaman ka?
A: Yes, ma'am.
Q: Can you tell me ano yung nararamdaman mo?
A: I felt that there is (sic) a hand inside my underwear, ma'am. When I opened my eyes, I saw him because there is light in the room.
Q: Pagkatapos mo siyang makita, anong ginawa mo?
A: I wasn't able to move because of fear, ma'am.
Q: Pagkatapos, noong hindi ka makagalaw, ano ang ginawa ng akusado kung mayroon man?
A: After he put his hand inside my underwear, he pulled it out and then he put his hands inside my bra and touch (sic) my left breast ma'am, and then after that, he touched my right breast.51 (Emphasis supplied)
Being only 17 years old at the time of the incident, CCC266039 was a minor. To make things worse, Dizon is CCC266039's grandfather.ℒαwρhi৷ Consequently, Dizon committed these acts with coercion and influence as Dizon's moral ascendancy was enough to intimidate CCC266039. Given that there is no dispute as to the existence of the other two elements, Dizon should be convicted of Lascivious Conduct under Section 5(b) of Republic Act No. 7610.
III
At this juncture, it is important to point out that this is not the first time this Court was confronted with the duty to clarify the application of Republic Act No. 7610 vis-a-vis the Revised Penal Code. This shows the difficulty of having special laws without carefully reviewing the existing provisions in the Revised Penal Code which in turn, reveals the bigger underlying problem: The legislature's inability to consolidate our criminal laws in one book. The lack of consolidation of these accumulated laws may lead to confusion and inconsistency in their interpretation and application, i.e., what approach should be taken when there are conflicting provisions in the said laws.
In line with this, this Court may be guided by the Spanish Framework in resolving Conflict of Criminal Rules.52 This framework is embodied in Article 8 of the Spanish Criminal Code:
Acts liable to be defined pursuant to two or more provisions of this Code and not included in Articles 73 to 77 shall be punishable by observing the following rules:
A special provision shall have preferential application rather than a general one.
A subsidiary provision shall be applied only if the principal one is not, whether such a subsidiary nature is specifically declared or when it may tacitly be deduced.
The most ample or complex penal provision shall absorb those that punish offences committed therein.
Failing the preceding criteria, the most serious criminal provision shall exclude those punishing the act with a minor punishment.
These rules known as the relationships of specialty subsidiarity absorption, and alternativity53 have been adopted in the Philippine Legal System. The challenge then is for us to apply these rules not only in the interpretation and application of the laws, but more significantly, in creating a unified legal framework of existing laws on specific subject matters.
ACCORDINGLY, I vote to:
1. DENY the Petition for Review on Certiorari in G.R. No. 260233; and
2. DISMISS the appeal in G.R. No. 266039 with the modification that accused-appellant Rodolfo Dizon y Rances should be found GUILTY of Lascivious Conduct under Section 5(b) of Republic Act No. 7610.
Footnotes
1 808 Phil. 889 (2017) [Per J. Velasco, Jr., En Banc].
2 849 Phil. 197 (2019) [Per J. Peralta, En Banc].
3 901 Phil. 501 (2021) [Per J. Delos Santos, Third Division].
4 Ponencia, p. 2.
5 Id. at 3.
6 Id. at 3-4.
7 Id. at 4.
8 Id.
9 Id. at 7-8.
10 Id. at 7-10.
11 Id. at 53-54.
12 357 Phil. 987 (1998) [Per J. Panganiban, First Division].
13 Id. at 998.
14 Id.
15 J. Leonen, Concurring Opinion in People v. Tulagan, 849 Phil. 197, 326 (2019) [Per J. Peralta, En Banc].
16 Republic Act No. 7610 (1992), sec. 5.
17 Republic Act No. 7610 (1992), sec. 5.
18 J. Leonen, Concurring Opinion in People v. Tulagan, 849 Phil. 197, 326-327 (2019) [Per J. Peralta, En Banc].
19 People v. Udang, Sr., 823 Phil. 411, 435 (2018) [Per J. Leonen, Third Division], citing Amployo v. People, 496 Phil. 747, 758 (2005) [Per J. Chico-Nazario, Second Division].
20 Id.
21 Id.
22 Ponencia, pp. 26-28.
23 Malcampo-Repollo v. People, 890 Phil. 1166, 1181 (2020) [Per J. Leonen, Third Division].
24 Id.
25 Id. at 1177.
26 Id. at 1166.
27 Ponencia, p. 4.
28 Id.
29 Id. at 2-3.
30 Id. at 5.
31 Id. at 11.
32 Id. at 11-13.
33 Id. at 54.
34 808 Phil. 889 (2017) [Per J. Velasco, Jr., En Banc].
35 849 Phil. 197 (2019) [Per J. Peralta, En Banc].
36 901 Phil. 501 (2021) [Per J. Delos Santos, Third Division].
37 Id.
38 J. Leonen, Concurring Opinion in Carboneli v. People, 901 Phil. 501, 514-515 (2021) [Per J. Delos Santos, Third Division].
39 People v. Villacampa, 823 Phil. 70, 84 (2018) [Per J. Carpio, Second Division].
40 Ponencia, pp. 43-44.
41 Id. at 37.
42 Id. at 21.
43 Id. at 23-24.
44 Republic Act No. 7610 (1992), sec. 5.
45 710 Phil. 792 (2013) [Per J. Perlas-Bernabe, Second Division].
46 Id. at 805.
47 885 Phil. 405 (2020) [Per J. Carandang, Third Division].
48 J. Leonen, Dissenting Opinion in Bangayan v. People, 885 Phil. 405, 459 (2020) [Per J. Carandang, Third Division].
49 Rules and Regulations on the Reporting and Investigation of Child Abuse Cases, sec 2(h).
50 Ponencia, p. 37.
51 Id. at 46-47.
52 See Antonio Obregon Garcia, Key Elements of the Criminal Law Conflict System with Special reference to Spanish Criminal Law, 17 IUS NOVUM 1-8 (2023).
53 Id. at 12-14.
Concurring Opinion
CAGUIOA, J.:
I join the Court in its ruling in the present cases, which finally clarifies and correctly retools the proper application of the various laws governing sexual abuse against children. Indeed, these cases show that dissent must never be curtailed, for the opinion of the minority may indeed become the prevailing understanding in a future where the people are more enlightened.
The past years, even before People v. Tulagan1 was promulgated, saw convictions for Section 5(b)2 of Republic Act No. 76103 even when the facts did not merit conviction under the said law. This is because, prior to Tulagan, the Court (and consequently, the other courts under its jurisdiction) had already been rendering judgments of conviction under the said provision by anchoring its rulings primarily on Quimvel v. People4 and People v. Caoili.5 During these years when Quimvel, Caoili, and Tulagan were the controlling doctrines, hundreds (or probably even thousands) of people were meted with penalties of imprisonment much longer than what they deserved. To be clear, this is not to say that the acts committed in those convictions did not deserve a harsh condemnation, for indeed the perpetrators of the crimes victimized children. Instead, what I am saying is that while they deserved to be punished, due process and the rule of law required that they be punished only to the extent which existing laws allow. In this sense, the Court failed to dispense justice in those instances.
What the Court, through Tulagan and the related cases, failed to take into account is that it is not the sole place for society's expression of condemnation. The mere enactment of laws, for instance, already signals that we, as a society, denounce certain acts. The criminalizationinstead of mere prohibition or regulationof certain conduct is in itself already a message that society condemns a particular conduct. The Court, however, was under the mistaken impression that to strongly condemn meant seeking a longer sentence, even if it also meant taking an unconstitutional shortcut.
The Court's duty under the present constitutional framework is to apply the law. If it were to somehow go against or disregard a law enacted by Congress, it must do so because of a constitutional provision or principle. After all, the interpretation and enforcement of the Constitution is ultimately lodged with the Court under the current framework of our fundamental law.
In Tulagan and the related cases, however, there was no constitutional provision or principle implicated, at least not one which is judicially enforceable. In justifying the rulings it created, the Court in the above cases cited the policy of the State to promote and protect the physical, moral, spiritual, intellectual, and social well-being of the youth.6 While such is indeed a state policy found in the Constitution, it is well-established that provisions found in Article II are generally not self-executing. They are not empty words and promises; but instead of being judicially enforceable rights, provisions found in Article II are understood to be principles which should primarily guide the legislature in enacting laws and creating policies. The Court, however, mistakenly took this guideline to another branch as a license to make lawwith the end in view of imposing longer prison sentencesunder the guise of statutory interpretation. This much is obvious from Tulagan itself which, despite going through all the legal gymnastics just to expand the coverage of Section 5(b) of Republic Act No. 7610, refused to apply the same when the act committed against the minor constituted sexual intercourse. Even if all the supposed elements of Section 5(b) of Republic Act No. 7610 are present, the crime committed would still be rape under the Revised Penal Code as amended by Republic Act No. 8353,7 simply because doing so would result in the imposition of the harshest penalty possible, reclusion perpetua, upon the accused. To echo my unequivocal criticism in my Opinion in Tulagan, "it is fundamentally unsound to let the penalty determine the crime. To borrow a phrase, this situation is letting the tail wag the dog."8
I thus write to express appreciation to the ponencia and the current composition of the Court in finally seeing that the Revised Penal Code and Republic Act No. 7610 do indeed have separate spheres of application, and therefore Republic Act No. 7610 does not apply in all instances where the victim of sexual abuse is a minor.
Having said the foregoing, it is still worth clarifying that unlike the ponencia, I do not share the view that there is a "manifest injustice" brought by the imposition to accused-appellant XXX266039 of a "lower [penalty] than that prescribed under Republic Act No. 7610"9 and that the "punishment imposed does not reflect the full gravity and depravity of the acts committed."10 I am not saying that the acts committed by XXX266039constituting acts of lasciviousness done against his own granddaughterare not serious or depraved. The fault in the Court's statement though is its regurgitation of the fallacy that every crime needs an exceedingly long sentence for it to be considered a serious punishment.
The Court must refrain from contributing to a culture of wanting longer and longer prison sentences. The Court must bear in mind that imprisonment as punishment is itself already very serious and harsh. It is so harsh that the Constitution has dedicated half of its Bill of Rights11 to safeguard its exercise, and the burden of proof before it can impose the same is extremely high: proof beyond reasonable doubt. Imprisonment is the very definition of deprivation of liberty which the Bill of Rights guards against. Imprisonment is in itself an unnatural state of affairs - where an individual is caged, under constant surveillance, prohibited from free contact with loved ones, and generally unable to engage in anything that furthers the pursuit of happiness. Especially in the Philippine context, with underfunded and overcrowded prison cells, imprisonment can and does become a threat to human dignity. It is thus erroneous to imply that XXX266039, who is bound to spend up to six years in prison, would seemingly receive a "slap on the wrist."
For far too long, the Court has encouraged the imposition of longer penalties because it deems it as giving "more justice" to the victim. As a result, more and more penal laws are enacted which impose the penalty of reclusion perpetua, thereby blurring the lines between crimes and affecting the proportionality of the punishment to the crime committed. For instance, rape12 and robbery with rape13 are both punished by reclusion perpetua. Intuitively, robbery with rape should receive a heavier punishment for not just violating the bodily autonomy of the victim but also for taking some personal property of the victim. However, the relative gravity of the offense can no longer be reflected in our laws because rape is already punished by the highest penalty currently possible, which is reclusion perpetua. This is the result when prison sentences are deemed as "light" if they are not "long enough": a failure to reflect the principle that punishment should fit the crime, the continued increase of penalties in the statute books, and an ever growing prison population and congestion. And it does not help when the Court itself adds fuel to the fire of society's thirst for punishmentexpressions of disappointment like the one in the ponencia add to the perception that prison sentences in Philippine statute books are still not enough even though, when compared to other countries, ours is already one of the longest.
I thus join the ponencia and the discussions therein with the hope that it sparks a new way of thinking especially for those in the legal profession. Protection of children does not only mean imposing long terms of imprisonment, and mere length of prison sentences per se does not indicate that the courts are dispensing justice. Protection of children takes so much more than post facto incarceration of those who victimize them, and sending people to cages for a long time will not solve any problem.
To end, I emphasize that never in history has an increase in criminal penalties alone solved any societal problem. Time and again, certainty of punishment, rather than its severity, has proven to be the real deterrent to criminal behavior. The chase to impose the heaviest penalties, instead of solving problems, just created a new one: severe jail congestion. The present decision is, therefore, not just legally correct, but is also a step in the right direction as far as judicial mindsets and policies are concerned.
ACCORDINGLY, I join the ponencia in AFFIRMING with MODIFICATION the convictions of petitioner Jeffrey Gramatica y Laurista and accused-appellant XXX266039.
Footnotes
1 849 Phil. 197 (2019) [Per J. Peralta, En Banc].
2 SECTION 5. Child Prostitution and Other Sexual Abuse. Children, whether male or female, who for money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse.
The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following:
. . . .
(b)
Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to other sexual abuse; Provided, That when the victim is under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and Article 336 of Act No. 3815, as amended, the Revised Penal Code, for rape or lascivious conduct, as the case may be: Provided, That the penalty for lascivious conduct when the victim is under twelve (12) years of age shall be reclusion temporal in its medium period[.]
3 Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act (1992).
4 808 Phil. 889 (2017) [Per J. Velasco, Jr., En Banc].
5 815 Phil. 839 (2017) [Per J. Tijam, En Banc].
6 CONST., art. II, sec. 13.
7 The Anti-Rape Law of 1997 (1997).
8 J. Caguioa, Concurring and Dissenting Opinion in People v. Tulagan, supra note 1, at 370.
9 Ponencia, p. 54.
10 Id.
11 See CONST., art. III, secs. 12 to 22.
12 See Republic Act No. 8353 (1997), sec. 2.
13 See Republic Act No. 7659 (1993), sec. 9.
Separate Concurring Opinion
ZALAMEDA, J.:
The ponencia revisits the ruling in People v. Tulagan1 and lays down guidelines on the proper application of Section 5(b) of Republic Act No. 7610, or the "Special Protection of Children Against Abuse, Exploitation, and Discrimination Act," in relation to acts of lasciviousness under the Revised Penal Code.
While I agree with the ponencia's disposition, I submit that the application of Republic Act No. 7610 must be hinged not only on the fact of the minor indulging or engaging in lascivious conduct. Rather, due consideration must also be given to the status of the child as one exploited in prostitution or subjected to other sexual abuse (EPSOSA). Section 5(b) of Republic Act No. 7610 only applies to children who are considered EPSOSA.
The Court correctly upheld Gramatica's conviction for violation of Section 5(b) of Republic Act No. 7610
In Gramatica v. People,2 the ponencia denied the Petition for Review on Certiorari of petitioner Jeffrey Gramatica (Gramatica) and affirmed with modification his conviction for violation of Sections 5(b) and 10(a) of Republic Act No. 7610.
Complainant BBB, then 17 years old during the relevant period, testified that she met Gramatica and a certain Darwin Santiago (Darwin) through a pimp she called "lolo." BBB claimed that she got shabu from Darwin in exchange for sexual intercourse. Sometimes, she would have sexual intercourse with Darwin in exchange for money to buy illegal drugs from Gramatica.3
Meanwhile, complainant AAA averred that BBB introduced her to Gramatica and Darwin. She disclosed that, similar to BBB, she engaged in sexual intercourse with Darwin multiple times in exchange for shabu. furthermore, AAA claimed that she had sexual encounters with Gramatica after using shabu in his apartment and that he eventually became her boyfriend. However, she emphasized that she would not have engaged in sexual activities with either Gramatica or Darwin had she not been under the influence of drugs. AAA was 14 years old during the relevant period.4
BBB's mother reported her missing after BBB had not returned home for almost a month. Police learned from AAA that BBB was living with Gramatica in his boarding house and was being used as a drug courier. Subsequently, the police coordinated with the Municipal Anti-Illegal Drugs Operatives, which resulted in Gramatica's arrest and BBB's rescue. Following this, the police arrested Darwin at his boarding house.
In his defense, Gramatica denied the charges against him. He alleged that his friend, Denver Estigoy, introduced the victims to him and that he allowed them to stay in his boarding house because they had no place to go. Gramatica also stated that he courted AAA and had a sexual relationship with her. He emphasized that he did not force her to have sexual intercourse and maintained that he was unaware AAA was a minor because she looked mature.5
After trial on the merits, the trial court found Gramatica guilty of lascivious conduct under Section 5(b) of Republic Act No. 7610. The trial court held that Gramatica had sexual relations with AAA, a minor, and the age disparity between them placed Gramatica in a dominant position over AAA which enabled him to force his will upon the latter. The CA affirmed the RTC Decision with modification as to the damages awarded. The CA found that Gramatica, aged 23 years old at the time, engaged in a sexual relationship with AAA, a 14-year-old who was then staying with him in his boarding house. The CA concluded that Gramatica took advantage of AAA's minority and unfortunate situation, and that he caused her to believe and trust him so that he could wield influence upon her to submit to his sexual desires.6
In denying the petition, the ponencia held that Gramatica is guilty of child prostitution under Section 5(b) of Republic Act No. 7610. The law considers any sexual intercourse with a minor for consideration as prostitution, regardless of consent. Gramatica is liable because AAA, the minor, engaged in prostitution at the time of their sexual encounter. The ponencia also found Gramatica guilty of child abuse under Section 10(a) of Republic Act No. 7610 since selling drugs to minors exploits their vulnerability and has harmful developmental effects, degrading their worth, and potentially damaging society.7
I concur with the ponencia's decision to affirm Gramatica's conviction. The prosecution alleged and proved that AAA was EPSOSA. AAA testified that she engaged in sexual intercourse with Gramatica for a consideration. Thus, the situation precisely falls under the definition of prostitution under the law. While AAA may have given her consent to have sexual intercourse, Gramatica is still criminally liable as AAA was a minor and was engaged in prostitution at the time of their sexual congress.
The Court correctly modified XXX266039's conviction from lascivious conduct under Section 5(b) of Republic Act No. 7610 to acts of lasciviousness under the Revised Penal Code
Meanwhile, in People v. XXX266039,8 the ponencia denied the appeal of accused-appellant XXX266039 but modified his conviction to acts of lasciviousness under Article 336 of the Revised Penal Code.
The case was filed by complainant CCC, then 17 years old, against his grandfather XXX266039. According to CCC, at around 1:00 a.m., while she was asleep in her room, she was suddenly awakened by someone inserting his hand inside her panties. When she opened her eyes, she recognized that it was her grandfather. She was so terrified that she could not move or shout. XXX266039 then reached inside her bra and fondled her breasts. Thereafter, XXX266039 stood up and left the room as if nothing happened. On the other hand, XXX266039 denied the allegations against him. He claimed that he merely woke CCC to ask for help with his medication.9
The RTC found XXX266039 guilty of lascivious conduct under Section 5(b) of Republic Act No. 7610. The Court of Appeals (CA) upheld the RTC's ruling, albeit with modifications to the penalty and the amount of damages imposed against XXX266039.10
In modifying XXX266039's conviction, the Court held that the elements required to prove a violation of Republic Act No. 7610 are lacking. According to the ponencia, Section 5(b) of Republic Act No. 7610 applies when children indulge or engage in sexual intercourse or lascivious conduct due to the coercion or influence of an adult. The term "sexual abuse," as defined under Republic Act No. 7610, encompasses situations wherein a minor indulges or, put differently, consents, albeit defectivelyto engage in sexual intercourse or lascivious conduct as a result of coercion or undue influence exerted by an adult.11
The ponencia ruled that CCC cannot be considered to have "indulged" in lascivious conduct as she was asleep when XXX266039 touched her vagina and breasts. There was no semblance of consent. Moreover, XXX266039 did not employ coercion or influence, as he did not compel or persuade CCC to submit to his desires. Thus, XXX266039 should be held liable for acts of lasciviousness under Article 336 of the Revised Penal Code.12
In so ruling, the ponencia summarizes the rules regarding the application of Section 5(b) of Republic Act No. 7610 in relation to acts of lasciviousness under the Revised Penal Code:
| Lascivious conduct committed through force, threat, or intimidation, or where the victim is deprived of reason or otherwise unconscious, or by fraudulent machination or grave abuse of authority | Where the child indulges and engages in lascivious conduct, thus subjected to sexual abuse, through the adult's employment of coercion and influence, or in other words, when the child gives defective"consent" |
| A child below 12 years old | Statutory Acts of Lasciviousness under Article 336 of the Revised Penal Code | Statutory Acts of old Lasciviousness under Article 336 of the Revised Penal Code |
| A child 12 years old or above but below 18 years old | Acts of Lasciviousness under Article 366 of the Revised Penal Code | Sexual abuse under Section 5(b) of Republic Act No. 761013 |
The Tulagan ruling must be revisited
I agree with the ponencia that it is time to revisit the Court's ruling in Tulagan. These cases are the right opportunity to do so since they involve acts not constituting sexual intercourse or sexual assault against victims above 12 but below 18 years old. To recall, Tulagan only involved statutory rape and the sexual assault of a 9-year-old child. Strictly speaking, therefore, Tulagan could have limited its ruling to the application of the provisos in Section 5(b) of Republic Act No. 7610. Yet, Tulagan ruled on the nomenclature and penalty of other offenses, such as acts of lasciviousness or lascivious conduct committed against children above 12 but below 18 years old, or 18 and above under special circumstances.
Moreover, it has been six years since the Court promulgated Tulagan. Thus, the Court is now in a position to examine the ruling's effect and consider other developments in substantive law.
To recall, in Tulagan, the Court discussed the intersection between Republic Act No. 7610 and the related provisions of the Revised Penal Code. We established guidelines for the proper nomenclature of all crimes of sexual abuse against children, their circumstances, and appropriate penalties therefor. Since then, Tulagan has directed the course of prosecuting cases of sexual abuse against minors and has been followed by the courts when applying the provisions of Republic Act No. 7610.
In that case, accused-appellant was charged with two crimes: sexual assault and statutory rape, under Article 266-A(2) and (1)(d) of the Revised Penal Code, respectively. The facts of the case revealed that, sometime in September 2011, accused-appellant abused AAA, then only nine years old, by inserting his finger into her private part. Then on October 8, 2011, AAA was playing with her cousin in front of accused-appellant's house when accused-appellant brought her to his house. Inside the house, he told her to lie down on the floor and be quiet. Afterwards, he removed her short pants and panties and undressed himself. After kissing AAA's cheeks, he inserted his penis into her vagina.
Acting on accused-appellant's appeal, the Court sustained the factual findings of the lower courts and the correctness of his conviction for sexual assault and statutory rape under the Revised Penal Code. However, the Court also decided to reconcile the provisions on acts of lasciviousness, rape, and sexual assault under the Revised Penal Code vis-a-vis sexual intercourse and lascivious conduct under Section 5(b) of Republic Act No. 7610.
The Court juxtaposed the designation of, and imposable penalties for, acts of lasciviousness, lascivious conduct, rape by carnal knowledge, and sexual assaultdepending on the age of the victim, as follows:
| Designation of the Crime and Imposable Penalty |
Age of
victim \ Crime committed | Under 12 years old or
demented |
12 years old or below 18, or
18 under special circumstances | 18 years old
and above |
| Acts of Lasciviousness committed against children exploited in prostitution or other sexual abuse |
Acts of Lasciviousness under Article 336 of the Revised Penal Code, in relation to Section 5 (b) of Republic Act No. 7610: reclusion temporal in its medium period |
Lascivious conduct under Section 5 (b) of Republic Act No. 7610: reclusion temporal in its medium period to reclusion perpetua |
Not applicable |
| Sexual Assault committed against children exploited in rostitution or other sexual abuse |
Sexual Assault under Article 266-A (2) of the Revised Penal Code, in relation to Section 5 (b) of Republic Act No. 7610: reclusion temporal in its medium period |
Lascivious conduct under Section 5 (b) of Republic Act No. 7610: reclusion temporal in its medium period to reclusion perpetua |
Not applicable |
| Sexual intercourse committed against children exploited in prostitution or other sexual abuse |
Rape under Article 266-A (1) of the Revised Penal Code: reclusion perpetua, except when the victim is below 7 years old in which case death penalty shall be imposed14 |
Sexual Abuse under Section 5 (b) of Republic Act No. 7610: reclusion temporal in its medium period to reclusion perpetua |
Not applicable |
| Rape by carnal knowledge |
Rape under Article 266-A (1), in relation to Art. 266-B of the Revised Penal Code: reclusion perpetua, except when the victim is below 7 years old in which case death penalty shall be imposed15 |
Rape under Article 266-A (1) in relation to Article 266-B of the Revised Penal Code: reclusion perpetua |
Rape under Article 266-A (1) of the Revised Penal Code: reclusion perpetua |
| Rape by Sexual Assault |
Sexual Assault under Article 266-A (2) of the Revised Penal Code, in relation to Section 5(b) of Republic Act No. 7610: reclusion temporal in its medium period |
Lascivious Conduct under Section 5 (b) of Republic Act No. 7610: reclusion temporal in its medium period to reclusion perpetua |
Sexual Assault under Article 266-A (2) of the Revised Penal Code: prision mayor |
The Tulagan ruling is primarily motivated by the desire to impose higher penalties and provide stronger deterrence against all forms of child abuse.16 The Court also adopted a broader definition of EPSOSA, covering children indulging in lascivious conduct due to coercion or influence, thus:
To clarify, once and for all, the meaning of the element of "exploited in prostitution" under Section 5 (b), Article III of [Republic Act] No. 7610, We rule that it contemplates [four] 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.
. . . .
The term "other sexual abuse," on the other hand, should be construed in relation to the definitions of "child abuse" under Section 3, Article I of [Republic Act] No. 7610 and "sexual abuse" under Section 2 (g) of the Rules and Regulations on the Reporting and Investigation of Child Abuse Cases. In the former provision, "child abuse" refers to the maltreatment, whether habitual or not, of the child which includes sexual abuse, among other matters. In the latter provision, "sexual abuse" includes the employment, use, persuasion, inducement, enticement or coercion of a child to engage in, or assist another person to engage in, sexual intercourse or lascivious conduct or the molestation, prostitution, or incest with children. 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 rapeforce, threat, intimidation, etc.are immaterial.
. . . .
We are unconvinced that [Republic Act] 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.17 (Emphasis in the original omitted; emphasis supplied)
While Tulagan's objectives are indeed laudable, and while the Court has always striven to uphold the best interests of the child, Tulagan has problematic consequences: (1) the ruling effectively eliminated the EPSOSA element in Section 5(b) of Republic Act No. 7610; and (ii) Tulagan eliminated the application of the Revised Penal Code in cases of acts of lasciviousness where the victim is 12 years old (now 16)18 or below 18, or 18 and above under special circumstances.
First, the EPSOSA element found in Section 5(b) of Republic Act No. 7610 has become insignificant. To recall, the elements of a violation of Section 5(b) are as follows:
1. The accused commits the act of sexual intercourse or lascivious conduct;
2. The said act is performed with a child "exploited in prostitution or subjected to other sexual abuse"; and
3. The child whether male or female, is below 18 years of age.19
The first element refers to the act committed by the accused (sexual intercourse or lascivious conduct), while the second element refers to the status of the child (EPSOSA). However, due to the broad construction in Tulagan, the first and second elements are now conflated. Once the first element is established, the second element is automatically proven because the first element comprises the second. Otherwise put, sexual intercourse with or lascivious conduct upon a minor automatically makes such minor EPSOSA.
As such, sexual intercourse or lascivious conduct serves a dual roleit is the act punished by law (first element) and, at the same, characterizes the child as EPSOSA (second element). The aftermath of Tulagan has rendered the EPSOSA element under Republic Act No. 7610 a hollow requirement.
Second, the Revised Penal Code is no longer applied when acts of lasciviousness are committed against children aged 12 years old but below 18, or 18 and above under special circumstances. All convictions for victims within that age range are made under Republic Act No. 7610; the law is applied so long as the victim is a minor and there is sexual abuse not constituting sexual intercourse. This is evident from the Tulagan table itself, where the focus is on the age of the victim and the act committed (sexual intercourse or otherwise). If there is no sexual intercourse, the conviction is automatically made under, or in relation to, Republic Act No. 7610.
Indeed, a survey of jurisprudence post-Tulagan reveals a pattern: once the victim is established to be a minor aged 12 to below 18, or 18 and above under special circumstances, and the act does not constitute sexual intercourse, conviction is almost automatically based on Republic Act No. 7610. The statutory requirement to establish whether the victim is EPSOSA is routinely bypassed, as the focus shifts to the victim's age and the nature of the act.
For instance, in People v. Fornillos,20 the Court found the accused liable for lascivious conduct under Section 5(b) of Republic Act No. 7610 without passing upon factual circumstances that would make the child have EPSOSA status. This is because the Court simply had to follow Tulagan, which fixes the nomenclature and penalty of the offense primarily based on the age of the victim and the act committed. In that case, the accused sexually abused the victim in five separate incidents, thus:
In particular, the series of sexual abuses were outlined as follows: first, one evening in January 2006, AAA was walking towards a neighborhood store when she passed by Fornillos. Suddenly, Fornillos grabbed AAA and pulled her into a dark area and thereat, kissed and touched AAA's breasts. After some time, AAA managed to escape Fornillos' grip and was able to run away; second, about a month later, or in the evening of February 22, 2006, AAA was supposed to go to a neighbor's house to watch television when Fornillos appeared out of nowhere, grabbed her, and then took her to a dark area, where Fornillos again touched AAA's private parts; third, the next night, or on February 23, 2006, AAA's father and Fornillos were having a drinking session at their house when AAA's parents went out to gather firewood. Fornillos was able to gain access inside the house and while inside, inserted his penis into AAA's mouth until a white substance came out therefrom; fourth, in the afternoon of February 24, 2006, AAA was in school when Fornillos appeared by the school fence and motioned her to come near him. When AAA approached Fornillos, the latter took her to an isolated area where he again inserted his penis into AAA's mouth until a whitish liquid came out; and fifth, in the evening of the same day, Fornillos and AAA's father was then having a drinking spree when the latter ordered AAA to buy food at the neighborhood store. While AAA was on her way to the store, Fornillos caught up with her and started touching her private parts again, only letting her go when he heard AAA's cousin looking for her.21
Upon proof of the commission of the foregoing facts, the Court convicted the accused under Republic Act No. 7610 pursuant to Tulagan.22
Similarly, in People v. Nocido (Nocido),23 the accused was convicted under Republic Act No. 7610 without discussing the factual circumstances that would make the child EPSOSA. The victim therein was walking outside when the accused pointed a fan knife at her and forcibly brought her to a secluded area where she was sexually abused. Upon proof of these facts, the Court convicted the accused for violating Section 5(b) of Republic Act No. 7610 even without allegation and proof that the child was EPSOSA.
Thus, Tulagan has the effect of making Article 336 of the RPC completely inoperative when the victim of acts of lasciviousness is aged 12 years old but below 18, or 18 and above under special circumstances. Republic Act No. 7610 is consistently applied to this age group due to the higher penalties in said law. Ironically, Tulagan denied the existence of this practice, stating that "[c]ontrary to the view of Justice Caguioa, there is, likewise, no such thing as a recurrent practice of relating the crime committed to Republic Act No. 7610 in order to increase the penalty, which violates the accused's constitutionally protected right to due process of law."24 Yet, the ruling in Tulagan solidified said practice of making all convictions under, or relating them to, Republic Act No. 7610 when such law provides for higher penalties.
For these reasons, I agree with the ponencia's decision to reconsider Our ruling in Tulagan and adopt a ruling that is more faithful to the intended scope of Republic Act No. 7610.
Section 5 of Republic Act No. 7610 does not apply to all cases of sexual abuse
I share the position of the ponencia and of Associate Justice Alfredo Benjamin S. Caguioa that Section 5 of Republic Act No. 7610 does not apply to all cases of sexual abuse. This is evident from the text of the law itself.
Specifically, Section 5(b) of Republic Act No. 7610 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:
. . . .
(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 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 12 years of age shall be reclusion temporal in its medium period. (Emphasis supplied)
Thus, to convict an accused of lascivious conduct under Section 5(b) of Republic Act No. 7610, one of the required elements is that the child must be "exploited in prostitution or subjected to other sexual abuse" or EPSOSA.25 As noted by former Senior Associate Justice Estella M. Perlas-Bernabe in her Separate Opinion in Tulagan, "[n]either the old provisions of the Revised Penal Code nor existing jurisprudence at the time Republic Act No. 7610 was passed ever mentioned the phrase "exploited in prostitution or subject to other sexual abuse."'26
Notably, Republic Act No. 7610 was recently amended by Republic Act No. 1164827 which took effect on March 22, 2022. It increased the age for determining statutory rape and other sexual acts from 12 to 16 years old. In addition, it also amended the relevant laws and penalties for crimes of lasciviousness, lascivious conduct, and rape by carnal knowledge or sexual assault.28 Specifically in relation to Section 5(b) of "[Republic Act No. 11648 raised the age of consent to 16 years old. As a result, acts of lasciviousness committed against a child who is less than 16 years old, becomes statutory acts of lasciviousness. In this situation, [Republic Act No. 11648 made it easier to establish the guilt of the accused because it eased the burden of the prosecution to prove the lack of consent on the part of the victim."29
Despite these recent amendments, and even after the Court's Decision in Tulagan, Republic Act No. 11648 retained the element that the child must be EPSOSA, thus:
SECTION 3. Sections 5 (b), 7, 9, and 10 (b) of Republic Act No. 7610, otherwise known as the Special Protection of Children Against Abuse, Exploitation and Discrimination Act are hereby amended to read as follows:
SEC. 5. Child Prostitution and Other Sexual Abuse. Children, whether male or female, who for money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse.
. . . .
(a) . . .
(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 16 years of age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and Article 336 of Act No. 3815, as amended, otherwise known as "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 16 years of age shall be reclusion temporal in its medium period[.]" (Emphasis supplied)
Thus, the text of Republic Act No. 7610 clearly evinces the legislative intent that the child must be EPSOSA to convict one of lascivious conduct under Section 5(b) of the law, and to distinguish it from lascivious conduct under Article 336 of the Revised Penal Code. In other words, the mere fact that the victim is 12 years old (now 16) but below 18 years old does not automatically mean that the accused should be convicted of lascivious conduct under Section 5(b) of Republic Act No. 7610.
When the text of the law is clear, then there is nothing for the Court to do but to apply it: "[t]he elementary rule in statutory construction is that when the words and phrases of the statute are clear and unequivocal, their meaning must be determined from the language employed and the statute must be taken to mean exactly what it says. If a statute is clear, plain and free from ambiguity, it must be given its literal meaning and applied without attempted interpretation. This is what is known as the plain-meaning rule [...]. It is expressed in the maxim, index animi sermo, or speech is the index of intention. Furthermore, there is the maxim verba legis non est recedendum, or from the words of a statute there should be no departure."30
In fact, as pointed out by Associate Justice Alfredo Benjamin S. Caguioa and former Senior Associate Justice Estella M. Perlas-Bernabe in their opinions in Tulagan, even the legislative deliberations on Republic Act No. 7610 reflect the rationale for the specific scope of the law.
Republic Act No. 7610 was enacted to address the alarming prevalence of child abuse, exploitation, and neglect by fortifying the legal mechanisms designed to safeguard children from various forms of violence and exploitation. In her sponsorship speech, Senator Santanina Rasul (Senator Rasul), one of the principal proponents of Republic Act No. 7610, emphasized that the law was conceived to be a response to the "persistent reports of children being sexually exploited and molested for purely material gains," as well as the inadequacy of existing criminal laws to provide sufficient protection for street children against exploitation by pedophiles.31 In her speech, she underscored that no less than the Court, in its ruling in People v. Ritter,32 had acknowledged the glaring absence of specific criminal laws in the Philippines designed to protect street children from exploitation:
Perhaps more lamentable than the continuing child abuse 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 by 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.33 (Emphasis supplied)
To recall, Ritter was a highly publicized case involving Rosario Baluyot, a young street child who was exploited by a pedophile. She died due to the insertion of a foreign object into her vagina while performing sexual acts for which she was paid PHP 300.00. In acquitting the pedophile, the Court found that the prosecution had failed, among others, to show that force or intimidation accompanied the sexual act, as Rosario voluntarily engaged in sexual acts with him as a child prostitute.
In its reluctant acquittal, the Court emphasized the unfortunate reality that the Philippines lacked the necessary laws at the time to address this specific issue effectively, thus:
And finally, the Court deplores the lack of criminal laws which will adequately protect street children from exploitation by pedophiles, pimps, and, perhaps, their own parents or guardians who profit from the sale of young bodies. The provisions on statutory rape and other related offenses were never intended for the relatively recent influx of pedophiles taking advantage of rampant poverty among the forgotten segments of our society. Newspaper and magazine articles, media exposes, college dissertations, and other studies deal at length with this serious social problem but pedophiles like the appellant will continue to enter the Philippines and foreign publications catering to them will continue to advertise the availability of Filipino street children unless the Government acts and acts soon. We have to acquit the appellant because the Bill of Rights commands us to do so. We, however, express the Court's concern about the problem of street children and the evils committed against them. Something must be done about it.34 (Emphasis supplied)
Ritter serves as a prime example that sets the backdrop for the enactment of Republic Act No. 7610. As such, the law must be viewed through the lens and context shaped by the Ritter decision, which underscored the absence of legal safeguards specifically for vulnerable children who consent to perform sexual acts in exchange for money. Ritter states:
Since Rosario was not established to have been under 12 years of age at the time of the alleged sexual violation, it was necessary to prove that the usual elements of rape were present; i.e. that there was force or intimidation or that she was deprived of reason or otherwise unconscious in accordance with Article 335 of the Revised Penal Code.
We agree with the defense that there was no proof of such facts. On the contrary, the evidence shows that Rosario submitted herself to the sexual advances of the appellant. In fact, she appears to have consented to the act as she was paid [PHP] 300.00 the next morning while her companion, Jessie Ramirez was paid [PHP] 200.00 (T.S.N. p. 50, January 6, 1988). The environmental circumstances coupled with the testimonies and evidence presented in court clearly give the impression that Rosario Baluyot, a poor street child, was a prostitute in spite of her tender age. Circumstances in life may have forced her to submit to sex al such a young age but the circumstances do not come under the purview of force or intimidation needed to convict for rape. (Emphasis supplied)
Clearly, the law was enacted to complement the provisions of the Revised Penal Code and to address gaps in existing legislation. Specifically, it aimed to target crimes that led children into prostitution and trafficking.
This specific purpose and intention of the law were articulated by Senator Jose Lina (Senator Lina) in his own sponsorship speech, when he stated that:
Senate Bill No. 1209, Mr. President, is intended to provide stiffer penalties for abuse of children and to facilitate prosecution of perpetrators of abuse. It is intended to complement provisions of the Revised Penal Code where the crimes committed are those which lead children to prostitution and sexual abuse, trafficking in children and use of the young in pornographic activities.35 (Emphasis and underscoring supplied)
To further prove the point of focus of the law, Senator Lina enumerated several reported cases which emphasized the pressing need for the proposed legislation:
Senate Bill No. 1209 directs its attention to individual or group abuse. Recent reported cases attest to the urgency of legislative remedies.
G. Pangulo at mga Kasaman sa Senado, nais kong banggitin ang ibang mga piling kaso nitong mga nakaraang araw tungkol sa mga balitang pang-aabuso sa ating mga kabataan at bata.
Recent Cases of Reported Abuse. In the last two months alone, there have been several reports on individual and group abuse and exploitation.
1. A baby girl, 18 months old, was found positive for a sexually transmitted disease, allegedly from a serviceman who sleeps with the mother of the baby girl. This was reported in Olongapo. (Inquirer, 3-4-91)
2. A father received payment from a 78-year-old pedophile for allowing said pedophile to take pictures of the father raping his own ten-year old daughter and who took pictures of the pedophile raping the ten-year old daughter. (Ngayon, 3-14-91)
3. An American and his Filipino wife "adopted" three minors and raped all three of them with the help and connivance of the wife. The adopted children are now ages 11, 14 and 19. (Malaya, 2-17-91)
4. A street child recounts that her stepfather raped her from the age of seven. She ran away but is now a prostitute plying the trade in the streets. She was also raped by a stranger. (Inquirer, 3-11-91)
5. A set of cases have been reported of minors being rescued from a dance studio, a recruitment agency for domestics, a sauna and massage parlor, and from prostitution dens.
Mr. President, a paper on street children released recently reports that there are about 3,000 child prostitutes of both sexes who can be seen in the streets of Ermita, Makati, Pasay Caloocan, and the shopping districts of Quezon City and Manila.
. . . .
Estimates reported on the number of street children who are high-risk cases of actual and potential child abuse range from 50,000 to 70,000 in the Metro Manila area. Estimates of street children in Olongapo range from 1,000 to 3,000. Street children are becoming visible in other urban areas such as Cebu, Bacolod, Iloilo, Davao, Baguio, and Zamboanga.36
The harrowing reports listed by Senator Lina collectively demonstrate that the immediate legislative intent behind the enactment of the law was to protect children who had been sexually exploited, primarily for profit, and sometimes by their own guardians. Such children, due to their unique and vulnerable circumstances, deserve special treatment and categorization under the law, separate from other children who are not similarly situated.
Section 5(b) of Republic Act No. 7610 applies to children who are considered EPSOSA
With the foregoing, I submit that Section 5(b) of Republic Act No. 7610 applies only to a special class of children, i.e., those who are EPSOSA. The second element of Section 5(b) contemplates sexual intercourse with or lascivious conduct upon a child who already has the status of being EPSOSA. Thus, the child must qualify as an EPSOSA independent of the sexual intercourse or lascivious conduct complained of, which is the first element of the offense. This is the only application of the law that would be faithful to its provisions. To summarize:
| Element | What the element pertains to |
| 1. The accused commits the act of sexual intercourse or lascivious conduct | Accused's act subject of the case |
| 2. The said act is performed with a child "exploited in prostitution or subjected to other sexual abuse" | Status of the child |
| 3. The child, whether male or female, is below 18 years of age | Age of the child |
To reiterate, the prevailing rule as laid down in Tulagan conflates the first and second elements, i.e., the act subject of the case makes the child attain the status of being an EPSOSA. However, this construction renders the EPSOSA element meaningless and eradicates the distinction between the Revised Penal Code and Republic Act No. 7610. To preserve the essence of Republic Act No. 7610, We must bring back the EPSOSA element in our adjudication. This would be accomplished when the first and second elements of the offense are treated separately, as originally intended.
Notably, then Senior Associate Justice Antonio Carpio made a similar observation in his dissenting opinion in Quimvel v. People,37 thus:
First, I would like to distinguish the first and second elements of Section 5 (b) of [Republic Act No.] 7610. The first elementthat the accused commits the act of sexual intercourse or lascivious conductrefers to the very act complained of against the accused. The second elementthat the act is performed with a child exploited in prostitution or subjected to other sexual abuserefers to the circumstance of the child against whom the act was committed. This second element does not necessarily have any relation to the act of the accused as this relates to the child alone. The first and second elements refer to two entirely different and separate matters. One refers to the act committed by the accused while the other refers to the circumstance of the child victim, which may or may not be related to the act committed by the accused.38 (Emphasis supplied)
Previously, in Olivarez v. Court of Appeals,39 then Senior Associate Justice Carpio also opined that the special circumstance of being an EPSOSA "already exists when the accused performs acts of lasciviousness on the child. In short, the acts of lasciviousness that the accused performs on the child are separate and different from the child's exploitation in prostitution or subjection to 'other sexual abuse."'40
The next question that must be asked then is: when is the child considered EPSOSA?
Following the language of Section 5 of Republic Act No. 7610, a child is considered EPSOSA when either of the following circumstances are present:
1. Child exploited in prostitution - the child indulges in sexual intercourse or lascivious conduct for money, profit, or any other consideration; or
2. Child subjected to other sexual abuse - the child indulges in sexual intercourse or lascivious conduct due to the coercion or influence of any adult, syndicate or group
Tulagan interpreted the second classification, i.e., a child subjected to other sexual abuse, to cover all situations where the child may have been coerced or intimidated to indulge in lascivious conduct. The ponencia in Tulagan referred to the amendment introduced by then Senator Edgardo J. Angara, or the Angara Amendment, that added the phrase "who for money, profit, or any other consideration or due to coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct" in Section 5(b).41 The majority construed this to mean that Congress expanded the scope of Section 5 of Republic Act No. 7610 to reflect the broader concept of child abuse, which includes acts of lasciviousness under Article 336 of the Revised Penal Code.42
However, as aptly pointed out by Justice Caguioa and former Senior Associate Justice Perlas-Bernabe in their respective opinions in Tulagan, the Angara Amendment was not intended to eliminate the distinction between prosecution under the Revised Penal Code and Republic Act No. 7610. Instead, the amendment was intended to plug the loophole where there are exploitative circumstances that are not based on money or profit, but other considerations.43 This is evident from the deliberations, thus:
Senator Angara.
I refer to line 9, "who for money or profit." I would like to amend this, Mr. President, to cover a situation where the minor may have been coerced or intimidated into this lascivious conduct, not necessarily for money or profit, so that we can cover those situations and not leave a loophole in this section.
This proposal I have is something like this: WHO FOR MONEY, PROFIT, OR ANY OTHER CONSIDERATION OR DUE TO TI-IE COERCION OR INFLUENCE OF ANY ADULT, SYNDICATE OR GROUP INDULGE, et cetera.
The President Pro Tempore.
I see. That would mean also changing the subtitle of Section 4. Will it no longer be child prostitution?
Senator Angara.
No, no. Not necessarily, Mr. President, because we are still talking of the child who is being misused for sexual purposes either for money or for consideration. What I am trying to cover is the other consideration. Because, here, it is limited only lo the child being abused or misused for sexual purposes, only for money or profit.
I am contending, Mr. President, that there may be situations where the child may not have been used for profit or . . .
The President Pro Tempore.
So, it is no longer prostitution. Because the essence of prostitution is profit.
Senator Angara.
Well, the Gentleman is right. Maybe the heading ought to be expanded. But, still, the President will agree that that is a form or manner of child abuse.
The President Pro Tempore.
What does the Sponsor say? Will the Gentleman kindly restate the amendment?
ANGARA AMENDMENT
Senator Angara.
The new section will read something like this; Mr. President: MINORS, WHETHER MALE OR FEMALE, WHO FOR MONEY, PROFIT OR ANY OTHER CONSIDERATION OR DUE TO THE COERCION OR INFLUENCE OF ANY ADULT, SYNDICATE OR GROUP INDULGE IN SEXUAL INTERCOURSE, et cetera.
Senator Lina.
It is accepted, Mr. President.
The President Pro Tempore.
Is there any objection? [Silence] Hearing none, the amendment is approved.
How about the title, "Child Prostitution," shall we change that too?
Senator Angara.
Yes, Mr. President, to cover the expanded scope.
The President Pro Tempore.
Is that not what we would call probably "child abuse"?
Senator Angara.
Yes, Mr. President.
The President Pro Tempore.
Is that not defined on line 2, page 6?
Senator Angara.
Yes, Mr. President. Child prostitution and other sexual abuse.
The President Pro Tempore.
Subject to rewording. Is there any objection? [Silence] Hearing none, the amendment is approved. Any other amendments?44 (Emphasis supplied)
Clearly, then, the Angara Amendment was intended to cover situations where a child has a certain status, i.e., the child is being abused or misused for sexual purposes, but in lieu of money or profit, the offender employs coercion or influence. The amendment was never intended to be an all-encompassing provision covering all types of sexual abuse, including those already covered by the RPC. The amendment was also not envisioned to cover all situations where acts of lasciviousness are committed upon a child through coercion or influence. The coercion or influence must have been used to sexually abuse or misuse the child.
The dissenting opinion of then Senior Associate Justice Antonio Carpio in Quimvel is illuminating:
Second, being under the "coercion or influence" of an adult does not, by itself, make the child automatically subjected to "other sexual abuse."
. . . .
Based on the foregoing, it is clear that this provision was crafted to cover a situation where sexual intercourse or lascivious conduct is performed with a child who is being abused or misused for sexual purposes. The phrase "or any other consideration or due to the coercion or influence of any adult, syndicate or group" was added to merely cover situations where a child is abused or misused for sexual purposes without any monetary gain or profit. This was significant because profit or monetary gain is essential in prostitution. Thus, the lawmakers intended that in case all the other elements of prostitution are present, but the monetary gain or profit is missing, the sexually abused and misused child would still be afforded the same protection of the law as if [they] were in the same situation as a child exploited in prostitution.
Accordingly, "coercion or influence," on its own, does not make the child subjected to "other sexual abuse." The "coercion or influence" must have been used to abuse or misuse the child for sexual purposes, and again, this must have been the circumstance of the child when the act complained of the lascivious conduct of the accused was performed against the child. The "coercion or influence" should refer to the circumstance of the child and not to the lascivious conduct complained of.45
Indeed, the employment of coercion or influence does not refer to the commission of the lascivious conduct itself (the first element of the offense); it refers to the means used to exploit the child (the second element of the offense). As noted by then Senior Associate Justice Carpio, '" coercion or influence' as used in Republic Act No. 7610 should be read with reference to the circumstance of the child, that is, whether 'coercion or influence' was used to exploit the child in prostitution or to subject the child to 'other sexual abuse."'46
Interestingly, Tulagan arrived at this exact same conclusion. Specifically, in distinguishing the Revised Penal Code provisions on rape and Section 5(b) of Republic Act No. 7610, Tulagan held, thus:
In Quimvel, it was held that the term "coercion or influence" is broad enough to cover or even synonymous with the term "force or intimidation." Nonetheless, it should be emphasized that "coercion or influence" is used in Section 5 of [Republic Act] 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(6) of [Republic Act] No. 7610 for committing sexual act with a child exploited in prostitution or other sexual abuse. Rather, the "coercion or influence" is exerted upon the child by "any adult, syndicate, or group" whose liability is found under Section 5(a) for engaging in, promoting, facilitating, or inducing child prostitution, whereby sexual intercourse is the necessary consequence of the prostitution.
. . . .
As can be gleaned above, "force, threat or intimidation" is the element of rape under the [Revised Penal Code], while "due to coercion or influence of any adult, syndicate or group" is the operative phrase for a child to be deemed "exploited in prostitution or other sexual abuse," which is the element of sexual abuse under Section 5(b) of [Republic Act] No. 7610. The "coercion or influence" is not the reason why the child submitted herself to sexual intercourse, but it was utilized in order for the child to become a prostitute. Considering that the child has become a prostitute, the sexual intercourse becomes voluntary and consensual because that is the logical consequence of prostitution as defined under Article 202 of the [Revised Penal Code], as amended by [Republic Act] No. 10158 where the definition of "prostitute" was retained by the new law:
. . . .
Therefore, there could be no instance that an Information may charge the same accused with the crime of rape where "force, threat or intimidation" is the element of the crime under the [Revised Penal Code], and at the same time violation of Section 5 (b) of [Republic Act] No. 7610 where the victim indulged in sexual intercourse because she is exploited in prostitution either "for money, profit or any other consideration or due to coercion or influence of any adult, syndicate or group"the phrase which qualifies a child to be deemed "exploited in prostitution or other sexual abuse" as an element of violation of Section S(b) of [Republic Act] No. 7610.
However, Tulagan limited this pronouncement to sexual intercourse and did not apply the same reasoning to lascivious conduct, without explaining the basis for making such distinction. This inconsistency in reasoning was also pointed out by Justice Caguioa in his opinion in Tulagan.
The majority in Tulagan held that, for lascivious conduct, coercion or influence is synonymous with force or intimidation; it suffices that force or intimidation was employed to commit the lascivious conduct (referring to the first element of the offense). This varied pronouncement led to the current situation where Article 336 of the Revised Penal Code and Section 5(b) of Republic Act No. 7610 completely overlap when it comes to lascivious conduct committed against children aged 12 years old to below 18, but the distinction between the two offenses is maintained when it comes to sexual intercourse.
Considering the rationale behind the enactment of the law and the adoption of the Angara Amendment, I submit that the child must be abused or misused for sexual purposes for the child to be considered EPSOSA. The means used to abuse or misuse the child can be through money, profit, or any other consideration (as in the case of prostitution) or through coercion or influence of any adult, syndicate, or group (as in the case of other sexual abuse).
For instance, a child who is coerced to perform in obscene exhibitions or indecent shows is considered a child subjected to other sexual abuse because they are abused for sexual purposes. When lascivious conduct is committed upon such a child, the act shall be punishable under Section 5(b) of Republic Act No. 7610 since the child is considered EPSOSA. Similarly, a child who is coaxed into posing for pornographic materials is considered EPSOSA, and lascivious conduct committed upon them is covered by Section 5(b) of Republic Act No. 7610.
Absent factual circumstances showing the child's EPSOSA status, the act must be punished under the Revised Penal Code so long as the requisite elements are present. For example, when the child was forcibly grabbed and harassed by a stranger on the street, similar to the factual milieu in Fornillos and Nocido, the accused must be convicted under the Revised Penal Code absent a showing that the child is EPSOSA.
This specific application of Republic Act No. 7610 is consistent with the legislative intent to have the law complement, and simultaneously operate with, the Revised Penal Code. This intent is further evinced by Republic Act No. 11648, which amended both the Revised Penal Code and Republic Act No. 7610. Clearly, then, Congress intended to maintain the distinction and operation of both laws. To stress, the broad construction in Tulagan runs counter to this-legislative intent as it fails to harmonize the two laws and results in a partial inoperability of the Revised Penal Code.
A precise application of Republic Act No. 7610 would streamline the rules on sexual intercourse and lascivious conduct
If the Court were to observe the limited scope of Republic Act 7610, then the rules would be simple: Republic Act No. 7610 should apply when the child is EPSOSA, applying the principle of lex specialis derogant generali, or specific laws prevailing over general ones.47 If the child is not EPSOSA, then the RPC must apply. Nonetheless, an act punishable under Republic Act No. 7610 may fall within the purview of the Revised Penal Code if it is covered by the provisos in Section 5(b), pertaining to offenses committed against children below 12 (now 16) years old.
Such straightforward application of the two laws would prevent confusion and honor the will of the Legislature. Observance of these guidelines would yield a table that is identical with that proposed by Justice Caguioa in Tulagan:48
| Acts done by the accused consist of: |
Crime committed if the victim is under 12 years old or demented |
Crime committed if the victim is 12 years old or older but below 18, or is 18 years old but under special circumstances |
Crime committed if victim is 18 years old and above |
| Acts of Lasciviousness |
Acts of Lasciviousness under Article 336 of the Revised Penal Code
Penalty: Prision Correccional
If committed against a child exploited in prostitution or subjected to other sexual abuse, the crime committed would still be Acts of Lasciviousness but the penalty would be reclusion temporal in its medium period in accordance with Section 5 (b) of Republic Act No. 7610 |
Acts of Lasciviousness under Article 336 of the Revised Penal Code
Penalty: Prision Correccional
If committed against a child exploited inprostitution or subjected to other sexual abuse, the crime committed would be Lascivious conduct under Republic Act No. 7610 and the penalty would be reclusion temporal in its Section 5 (b) of medium period to reclusion perpetua |
Acts of Lasciviousness under Article 336 of the Revised Penal Code
Penalty: Prision Correccional |
| Sexual Assault |
Sexual Assault under Article 266-A (2) of the Revised Penal Code.
Penalty: prision mayor
If committed against a child exploited in prostitution or subjected to other sexual abuse, it would still be Sexual Assault but the penalty would be reclusion temporal in its medium period in accordance with Section 5 (b) of Republic Act No. 7610 |
Sexual Assault under Article 266-A (2) of the Revised Penal Code.
Penalty: prision mayor
If committed against a child exploited in prostitution or subjected to other sexual abuse, the crime would be Lascivious conduct under Section 5 (b) of Republic Act No. 7610 and the penalty would be reclusion temporal in its medium period to reclusion perpetua |
Sexual Assault under Article 266-A (2) of the Revised Penal Code.
Penalty: prision mayor |
| Carnal knowledge/Rape by Sexual Intercourse |
Rape under Article 266-A (1) of the Revised Penal Code
Penalty: reclusion perpetua, except when the victim is below 7 years old in which case death penalty shall be imposed ℒαwρhi৷ |
Rape under Article 266-A (1) of the Revised Penal Code
Penalty: reclusion perpetua
If committed against a child exploited in prostitution or subjected to other sexual abuse, the crime would be Sexual Abuse under Section 5 (b) of Republic Act No. 7610 and the penalty would be reclusion temporal in its medium period to reclusion perpetua |
Rape under Article 266-A (1) of the Revised Penal Code
Penalty: reclusion perpetua |
I submit that the propriety of imposing harsher penalties should not have been a decisive factor in ascertaining the applicable law. Unless shown to be unconstitutional, the Court must apply the penalty as provided by the Legislature, this being a matter of policy.49 The Court must concern itself with facts and the presence of elements, not the soundness of a particular penalty. Any inequity in penalties must be referred to the Legislature.
Accordingly, I vote to CONCUR in the results.
Footnotes
1 849 Phil. 197 (2019) [Per C.J. Peralta, En Banc].
2 G.R. No. 260233, August 12, 2025, [Per J. Inting, En Banc].
3 Ponencia, p. 6.
4 Id.
5 Id. at 7.
6 Id. at 9-10.
7 Id. at 14-15.
8 G.R. No. 266039, August 12, 2025, [Per J. Inting, En Banc].
9 Ponencia, p. 11.
10 Id. at 12.
11 Id. at 24.
12 Id. at 38.
13 Id. at 53-54.
14 By virtue of Republic Act No. 9346, the death penalty is prohibited. Instead, the penalty shall be reclusion perpetua without the eligibility for parole.
15 Id.
16 People v. Tulagan, 849 Phil. 197, 272 (2019) [Per C.J. Peralta, En Banc]:
However, when the victim of such acts of lasciviousness is a child, as defined by law, We hold that the penalty is that provided for under Section 5 (b) of [Republic Act] No. 7610i.e., reclusion temporal medium in case the victim is under 12 years old, and reclusion temporal medium to reclusion perpetua when the victim is between 12 years old or under 18 years old or above 18 under special circumstancesand not merely prision correccional under Article 336 of the [Revised Penal Code]. Our view is consistent with the legislative intent to provide stronger deterrence against all forms of child abuse, and the evil sought to be avoided by the enactment of [Republic Act] No. 7610, which was exhaustively discussed during the committee deliberations of the House of Representatives[.]
17 Id. at 255-258.
18 Republic Act No. 11648 (2022).
19 Bangayan v. People, 885 Phil. 405, 428 (2020) [Per J. Carandang, Third Division].
20 869 Phil. 448 (2020) [Per J. Perlas-Bernabe, Second Division].
21 Id. at 452-453. (Emphasis in the original)
22 Id. at 456-459.
23 874 Phil. 653 (2020) [Per C.J. Peralta, First Division].
24 People v. Tulagan, 849 Phil. 197, 265 (2019) [Per C.J. Peralta, En Banc].
25 People v. Dalaguet, 926 Phil. 713, 740 (2022) [Per J. J. Lopez, Second Division].
26 J. Perlas-Bernabe, Dissenting Opinion in People v. Tulagan, 849 Phil. 197, 301 [Per C.J. Peralta, En Banc].
27 An Act Providing for Stronger Protection Against Rape and Sexual Exploitation and Abuse, Increasing the Age for Determining the Commission of Statutory Rape, Amending for the Purpose Act No. 3815, as Amended, Otherwise Known as "The Revised Penal Code," Republic Act No. 8353, also known as "The Anti-Rape Law of 1997," and Republic Act No. 7610, as amended, Otherwise Known as the "Special Protection of Children Against Abuse, Exploitation and Discrimination Act" (2022).
28 People v. Dalaguet, 926 Phil. 713, 746-747 (2022) [Per J. J. Lopez, Second Division].
29 Id. at 750.
28 People v. Dalaguet, 926 Phil. 713, 746-747 (2022) [Per J. J. Lopez, Second Division].
29 Id. at 750.
30 Padua v. People, 581 Phil. 489 (2008) [Per J. Quisumbing, Second Division].
31 Record of the Senate, Volume III, No. 104, March 19, 1991, p. 1204.
32 272 Phil. 532 (1991) [Per J. Gutierrez, Jr., Third Division].
33 Record of the Senate, vol. III, no. 104, March 19, 1991, p. 1204.
34 Id.
35 Record of the Senate, vol. VI, no. III, April 29, 1991, p. 191.
36 Id. at 192.
37 808 Phil. 889 (2017) [Per J. Velasco, Jr., En Banc].
38 J. Carpio's Dissenting Opinion in Quimvel v. People, 808 Phil. 889, 969-970 (2017) (Per J. Velasco, Jr., En Banc].
39 503 Phil. 421 (2005) [Per J. Ynares-Santiago, First Division].
40 J. Carpio's Dissenting Opinion in Olivarez v. Court of Appeals, 503 Phil. 421, 444 (2005) [Per J. Ynares-Santiago, First Division].
41 J. Caguioa, Concurring and Dissenting Opinion in People v. Tulagan, 849 Phil. 197,351 [Per C.J. Peralta, En Banc].
42 Tulagan, 849 Phil. 197, 279-280(2019) [Per J. Peralta, En Banc] states:
To our mind, however, the amendment highlights the intention to expand the scope of Section 5 to incorporate the broader concept of "child abuse," which includes acts of lasciviousness under Article 336 of the RPC committed against children," as defined under Section 3 of [Republic Act] No. 7610. Records of the Senate deliberation show that "child prostitution" was originally defined as "minors, whether male or female, who, for money or profit, indulge in sexual intercourse or lascivious conduct are deemed children exploited in prostitution." With the late addition of the phrase "or subject to other sexual abuse," which connotes "child abuse," and in line with the policy of [Republic Act] No. 7610 to provide stronger deterrence and special protection of children against child abuse, We take it to mean that Section 5 (b) also intends to cover those crimes of child sexual abuse already punished under the [Revised Penal Code], and not just those children exploited in prostitution or subjected to other sexual abuse, who are coerced or intimidated to indulge in sexual intercourse or lascivious conduct.
43 J. Perlas-Bernabe, Dissenting Opinion in People v. Tulagan, 849 Phil. 197, 312 (2019) [Per C.J. Peralta, En Banc].
44 Record of the Senate, vol. I, no. 7, August 1, 1991, p. 262.
45 J. Carpio's Dissenting Opinion in Quimvel v. People, 808 Phil. 889, 970-972 (2017) [Per J. Velasco, Jr., En Banc].
46 Id.
47 Disomangcop v. Datumanong, 486 Phil. 398, 448 (2004) [Per J. Tinga, En Banc].
48 Concurring and Dissenting Opinion of J. Caguioa in People v. Tulagan, 849 Phil. 197, 383-385 (2019) [Per C.J. Peralta, En Banc].
49 Cahulogan v. People, 828 Phil. 742, 753 (2018) [Per J. Perlas-Bernabe, Second Division].
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