People v.

Tulagan

Facts:
1. The first incident in the case herein occurred in September 2011. AAA, 9 years old, was peeling corn at her grandmother’s
house when Salvador Tulagan approached her, spread her legs and inserted his finger into her private part. Thereafter,
Tulagan just pretended as if he was looking for something and went home.
2. The second incident occurred on October 8, 2011. While AAA was playing in front of Tulagan’s house, he brought her into his
house, removed her clothes and inserted his penis into her vagina. She cried as Tulagan held her hands and pinned them with
his.
3. BBB, AAA’s aunt, noticed Tulagan approach and AAA when AAA was going to the bathroom outside the house. Out of
suspicion, BBB approached AAA and as she came close, Tulagan suddenly left. BBB asked AAA to move her panties down and
examined her genitalia. AAA then confessed to her about what Tulagan had done and asked for help.
4. The RTC found Tulagan guilty of two counts of Rape, as all the elements of sexual assault and statutory rape was duly
established. The CA affirmed the conviction but modified it to Rape by Sexual Assault and Statutory Rape under Art. 266-A, par
1 and 2 of the RPC in relation to Art. 266-B of the RPC.
5. Tulagan appealed his conviction to the SC.

Issue: Whether or not Tulagan was correctly convicted of Rape by Sexual Assault in the first charge and Statutory Rape in the second
charge.

Held: Yes. However, the Court modified the nomenclature of the crime, penalty imposed, and damages awarded for Sexual Assault and
reduced the damages awarded for Statutory Rape.

 It was necessary to reconcile the provisions on Acts of Lasciviousness, Rape and Sexual Assault under Art. 266-A and Art. 336 RPC
as amended by RA 8353 vs. Sexual Intercourse and Lascivious Conduct under Sec. 5(b) of RA 7610. In its discussion, the Court
applied the cases of Caoili, Dimakuta, and Quimvel. The Guidelines under Caoili were used to determine the nomenclature of
crime and imposable penalty of Acts of Lasciviousness or Lascivious Conduct, while discussions in all 3 cases were used to
determine the designation of the crime and imposable penalty of Rape by Carnal Knowledge and Sexual Assault under RPC and
Sexual Intercourse committed against children under RA 7610.
o In sum, the following are the applicable laws and penalty for acts of lasciviousness or lascivious conduct and rape by carnal
knowledge or sexual assault, depending on the age of the victim in view of the aforesaid laws:
A. Acts of Lasciviousness committed against children exploited in prostitution or other sexual abuse
(1) If the child is under 12 years old or demented: Acts of Lasciviousness under RPC 336 in relation to Sec. 5(b) of
RA 7610. Imposable penalty is RT med.
(2) If the child is 12 years and above but below 18, or 18 under special circumstances: Lascivious conduct under
Sec. 5(b) if RA 7610. Imposable penalty of RT med to RP.
B. Sexual Assault committed against children exploited in prostitution or other sexual abuse:
(1) If the child is under 12 years old or demented: Sexual Assault under RPC 266-A(2) in relation to Sec. 5(b) of RA
7610. Imposable penalty is RT med.
(2) If the child is 12 years and above but below 18, or 18 under special circumstances: Lascivious Conduct under
Sec. 5(b) of RA 7610. Imposable penalty is RT med to RP.
C. Sexual Intercourse committed against children exploited in prostitution or other sexual abuse:
(1) If the child is under 12 years old or demented: Rape under RPC 266-A(1). Imposable penalty is RP, except when
the victim is below 7, the penalty of which is death.
(2) If the child is 12 years and above but below 18, or 18 under special circumstances: Sexual Abuse under Sec. 5(b)
of RA 7610. Imposable penalty is RT med to RP.
D. Rape by carnal knowledge:
(1) If the child is under 12 years old or demented: Rape under RPC 266-A(1) in relation to 266-B. Imposable penalty
is RP, except when the victim is below 7, the penalty of which is death.
(2) If the child is 12 years and above but below 18, or 18 under special circumstances: Rape under RPC 266-A(1) in
relation to 266-B. Imposable penalty is RP.
(3) If the victim is 18 and above: Rape under RPC 266-A(1). Imposable penalty is RP.
E. Rape by sexual assault
(1) If the child is under 12 years old or demented: Sexual assault under RPC 266-A(2) in relation to Sec. 5(b) of RA
7610. Imposable penalty is RT med.
(2) If the child is 12 years and above but below 18, or 18 under special circumstances: Lascivious conduct under
Sec. 5(b) of RA 7610. Imposable penalty is RT med to RP.
(3) If the victim is 18 and above: Sexual assault under RPC 266-A(2). Imposable penalty is PM.

o Elements of Section 5(b) of R.A. 7610 are the following:

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 other sexual abuse. Section 5 of R.A. No. 7610
deems as "children exploited in prostitution and other sexual abuse" those children, whether male or female, (1) who
for money, profit or any other consideration or (2) due to the coercion or influence of any adult, syndicate or group,
indulge in sexual intercourse or lascivious conduct; and
3. The child, whether male or female, is below 18 years of age.

o Moreover, Children Exploited in Prostitution, as an element under Sec. 5(b) of RA 7610 contemplate 4 scenarios:
1. Child (male or female), who for money, profit, or any other consideration, indulges in lascivious conduct
2. Female Child, who for money, profit, or any other consideration, indulges in sexual intercourse
3. Child (male or female), who due to coercion or influence of any adult, syndicate or group, indulges in lascivious
conduct
4. Female child, who due to coercion or influence of any adult, syndicate or group, indulges in sexual intercourse
- Note: this does not cover a male child who for money or profit or due to coercion or influence indulges in sexual
intercourse.

 The Court likewise clarified the use of different terms under RA 7610. Citing Quimvel, the use of the term “coercion or influence,”
found under Sec. 5(a) exerted upon a child by any adult, syndicate or group, is broad enough to cover or even synonymous with
the term “force or intimidation.” This term is used as a means by “any adult, syndicate or group” to compel the child to indulge in
sexual intercourse. This is to be distinguished from the use of “money, profit, or any other consideration,” which is the other
mode by which a child indulges in sexual intercourse, without the participation of "any adult, syndicate or group."

 There is no conflict between rape and acts of lasciviousness under the RPC and sexual intercourse and lascivious conduct under
RA 7610. Both crimes are separate and distinct and have different elements. Thus, one may be held liable for Sec. 5(b), Art. 3 of
RA 7610 despite a finding that the person did not commit rape.
o The Court distinguished sexual intercourse under RA 7610 vs. Rape under RPC, by incorporating the decision of Malto v.
People
Sec. 5(b), Art. 3 of RA 7610 Rape under Art. 266-A
Exploitation in prostitution and other sexual abuse is Rape is a felony.
punished by special law.
Offender is a man. Offender is a man.
Indulges in sexual intercourse with a female child exploited in Carnal knowledge of a woman
prostitution or other sexual abuse, who is below 12, above
12 but below 18, or above 18 under special circumstances.
Through coercion or influence of any adult, syndicate or Through force, threat or intimation when victim is
group is employed against the child to become a prostitution. deprived of reason or otherwise unconscious, and by
means of fraudulent machinations or grave abuse of
authority.
If victim is under 12: Consent is material.
 Consent is immaterial and mere fact of having sexual
intercourse or committing lascivious conduct with a
child who is exploited in prostitution or subjected to
sexual abuse constitutes the offense.
 Sexual intercourse with a victim under 12 or is
demented, even if she consents, is always Statutory
Rape. Similarly, even if such party consents to the
lascivious conduct, the crime is always Statutory Acts of
Lasciviousness and offender will be prosecuted under
Art. 336 of RPC but penalty is that under Sec. 5(b) of RA
7610.

But if the victim is 12 and below 18 or above 18 under special

circumstance:
 Consent is material. Consent may be implied from
failure to prove that the said victim engaged in sexual
intercourse either “due to money profit or any other
consideration or due to coercion or influence of any
adult, syndicate, or group.”
 If she consents, the crime cannot be Rape and is
penalized under Sec. 5(b) of RA 7610 and not RPC 335.
 If no consent such that sexual intercourse committed
through force, threat or intimidation, the crime is
 Rape under Art. 266-A, par 1.
 If consented but no money involved, no crime unless
can be punished as qualified seduction or simple
seduction.

 The Court notes that an accused who commits Acts of Lasciviousness under RPC 336 in relation to Sec. 5(b) of RA 7610 suffers
the more severe penalty of reclusion temporal in its medium period than one who commits Rape by Sexual Assault which is
merely punishable by prision mayor. Despite such, RPC 336 as amended is still good law despite enactment of RA 8353, for there
is no irreconcilable inconsistency between the provisions. Thus, when the lascivious act is not covered by RA 8353, the RPC 336
must still be applied, except when the lascivious conduct is covered by RA 7610.

 Merits in the case herein:

o As to the first charge: The Information charging Tulagan with Rape by Sexual Assault not only distinctly stated that the
same is contrary to RPC 266-A, par. 2 in relation to RA 7610, but also sufficiently alleged all the elements of violation of
Sec. 5(b) of RA 7610. Tulagan was correctly prosecuted for sexual assault under RPC 266-A, par. 2 because it was alleged
and proven that AAA was 9 years old at the time he inserted his finger into her vagina. However, instead of applying the
penalty under RPC 266-B which is prision mayor, the Court ruled that the proper penalty should be that provided in Sec.
59b) of RA 7610, which is reclusion temporal in its medium period because AAA was below 12 years old at the time of the
commission of the offense and the act of Tulagan in inserting his finger amounted to “lascivious conduct.” Hence, the
proper nomenclature of the offense should be Sexual Assault under par. 2, Art. 266-A of the RPC, in relation to Sec. 5(b),
Art. 3 of RA 7610.
o As to the second charge: The Court affirmed that Tulagan committed Statutory Rape, the penalty of which is reclusion
perpetua in accordance with par. 1(d), Art. 266-A in relation to Art. 266-B of the RPC, as amended by RA 8353.

Fallo: Appeal is denied. RTC and CA decisions are affirmed with modifications. Tulugan is guilty of Sexual Assault under Art. 266-A, par 2
of the RPC in relation to Sec. 5(b) of RA 7610 and Statutory Rape under Art. 266-A(1)(d) and penalized in Art. 266-B of the RPC.
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