G.R. No.
171863 August 20, 2008 (a) x x x
PEOPLE v. CA and OLAYON
The then 22-year old herein respondent Gaspar Olayon was charged with violation of Section 10(a) of Republic Act No.
7610 (The Special Protection of Children against Abuse, Exploitation, and Discrimination Act) in two separate
Informations filed before the Regional Trial Court (RTC) of Pasig City, of which the then 14-year old AAA was alleged to
be the victim.
Criminal Case No. 112571 alleged that
On or about 10:00 a.m. of January 27, 1997 in Taguig, Metro Manila and within the jurisdiction of this Honorable Court,
the accused, with lewd designs, did then and there willfully, unlawfully and feloniously have sexual intercourse with and
commit lewd and lascivious acts upon the person of [AAA], a minor, fourteen (14) years of age.
Criminal Case No. 112572 alleged that
On or about 2:00 p.m. of January 27, 1997 in Taguig, Metro Manila and within the jurisdiction of this Honorable Court,
the accused, with lewd designs, did then and there willfully, unlawfully and feloniously have sexual intercourse with and
commit lewd and lascivious acts upon the person of [AAA], a minor, fourteen (14) years of age.
Respondent was also charged for acts of lasciviousness before the RTC of Taguig, docketed as Criminal Case No.
116350, of which the same then 14-year old AAA was alleged to be the victim. The case was transferred to the Pasig
City RTC and consolidated with Criminal Case Nos. 112571-72. The three cases were jointly tried.
After trial, Branch 158 of the Pasig City RTC, by Decision of January 15, 2002, acquitted respondent in Criminal Case
No. 116350 (for acts of lasciviousness). 5 It, however, convicted respondent of violation of Section 10 (a) of Republic Act
(R.A.) No. 7610 in Criminal Case Nos. 112571-72 in this wise:
x x x The accused, Olayon admitted his sexual liaisons with [AAA]. His defenses are: 1) [AAA] is his sweetheart and 2)
whatever happened to them in terms of these sexual liaisons, occurred with the consent of [AAA]. Although the
testimony of [AAA] denies she consented to the sexual liaisons, the evidence did not support it.
The events that occurred on January 27, 1997 at the house of one Duke Espiritu show that [AAA] went with Olayon to
that place voluntarily. First, she was fetched from a tricycle stand and it took them another ride to go to the house of
Espiritu. If indeed she was forced to board the tricycle, she could have resisted and shouted for help considering that
there were normally people around in a tricycle stand, waiting for rides. If she indeed resisted and showed any
manifestation in this regard, people could have easily helped her in resisting whatever it was Olayon wanted. Second, at
the house of Espiritu she could have easily shouted for help since it was located near a road and a pathway. x x x
xxxx
Although the sexual liaisons that occurred on January 27, 1997 were with the consent of [AAA] who at that time was
only 14 years of age, Olayon cannot escape responsibility because he took advantage of [AAA’s] minority to have these
sexual liaisons, even if they were with her consent. Consent is not an accepted defense in this special law . He violated
then Republic Act No. 7610, Section 10(a) which provides:
Section 10(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, shall suffer the penalty of prision mayor in its minimum period.
6 conditions prejudicial to the child's development including those covered by Article 59 of Presidential Decree No. 603, as
x x x x  (Emphasis and underscoring supplied)
Thus the trial court disposed:
WHEREFORE, Gaspar Olayon y Matubis a.k.a Eric Ramirez is found guilty beyond reasonable doubt for having violated
Republic Act No. 7610, Section 10 (a) in Criminal Case Nos. 112571-72 and is sentenced to suffer in prison the penalty
of six (6) years, eight (8) months and one (1) day to seven (7) years and four (4) months of prision mayor for each count.
He is acquitted in Criminal Case No. 116350.
Costs against the accused.
SO ORDERED.7
On appeal by respondent,8 the Court of Appeals, answering in the negative the issue of whether consensual sexual
intercourse with a minor is classified as child abuse under Section 10 of RA No. 7610,  reversed the trial court’s decision
and acquitted respondent, by Decision9 of January 13, 2006, reasoning as follows:
"Acts of child abuse" under Section 10 (a) of R.A. 7610 refers to those acts listed under Sec. 3(b) of R.A. 7610, which
reads as follows:
Sec. 3. Definition of Terms –
(b) "Child Abuse" refers to 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 or deeds [sic] or words [sic] 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.
Consensual sexual intercourse between OLAY[O]N and [AAA] does not fall under the "sexual abuse" definition [in
Section 5 of R.A. No. 7610] which is a completely distinct and separate offense from "child abuse," [under Section 10]
because "sexual abuse" pertains to and is associated with "child prostitution" [as defined in Section 5]. "Sexual abuse" is
defined separately under Section 5 of R.A. 7610, which reads 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.
Moreover, for the act of intercourse between OLAY[O]N and [AAA]  to be considered sexual abuse [under Section
5], such intercourse should have occurred due to coercion or intimidation. In the case at bench, neither coercion nor
intimidation were found to have been present,  consent having been freely given.10 (Emphasis, italics and underscoring
supplied)
Hence, the present petition for certiorari 11 of the People under Rule 65, alleging that the Court of Appeals acted with
grave abuse of discretion amounting to lack or excess of jurisdiction
x x x IN ACQUITTING RESPONDENT OLAYON OF THE TWO (2) COUNTS OF CHILD ABUSE UNDER SECTION
10(A) OF R.A. 7610 DESPITE THE FACT THAT THE SEXUAL ACTS COMMITTED BY RESPONDENT OLAYON ON
THE MINOR PRIVATE COMPLAINANT ARE CLEARLY  WITHIN THE TERM "OTHER ACTS OF NEGLECT, ABUSE,
CRUELTY OR EXPLOITATION AND OTHER CONDITIONS PREJUDICIAL TO THE CHILD’S
DEVELOPMENT" DECLARED PUNISHABLE UNDER SECTION 10(A) OF R.A. 7610.12 (Emphasis and underscoring
supplied)
The record shows that the Pasig City Prosecutor’s Office found that the acts of respondent did not amount to rape as
they were done with the consent of the 14-year old AAA. 13 Nevertheless, it found the acts constitutive of "violations of
[Republic] Act No. 7610," hence, its filing of the above-quoted Informations for violation of Section 10(a). 14
The Informations alleged that respondent, "with lewd designs did willfully, unlawfully, and feloniously have sexual
intercourse with and commit lewd and lascivious acts upon the person of [AAA], a minor, fourteen (14) years of age." 15
Section 10(a) of R.A. No. 7610 under which respondent was charged in each of the two cases 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
amended, but not covered by the Revised Penal Code, as amended, shall suffer the penalty of prision mayor in its
minimum period. (Underscoring supplied),
Section 5(b), upon the other hand, provides:
SEC. 5. Child Prostitution and Other Sexual Abuse. — Children, whether male or female, who for money, profit, or any
other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or
lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse.
The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following:
xxxx
(b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subject
to other sexual abuse; Provided, That when the victims is under twelve (12) years of age, the perpetrators shall be
prosecuted under Article 335, paragraph 3, for rape and Article 336 of Act No. 3815, as amended, the Revised Penal
Code, for rape or lascivious conduct, as the case may be: Provided, That the penalty for lascivious conduct when the
victim is under twelve (12) years of age shall be reclusion temporal in its medium period; (Italics in the original,
emphasis and underscoring supplied)
As Section 10 refers to acts of child abuse prejudicial to the child’s development  other than child prostitution and other
sexual abuse16 under Section 5, attempt to commit child prostitution, 17 child trafficking,18 attempt to commit child
trafficking,19 and obscene publications and indecent shows,20 the Court of Appeals did not commit grave abuse of
discretion in holding that "x x x ‘sexual abuse’ [as defined under Section 5] x x x is a completely distinct and separate
offense from ‘child abuse’ [as defined under Section 10]."
Consensual sexual intercourse or even acts of lasciviousness with a minor who is 12 years old or older could constitute
a violation of Section 5(b) of R.A. No. 7610. For Section 5(b) punishes sexual intercourse or lascivious conduct not only
with a child exploited in prostitution but also with a child subjected to other sexual abuse.21
Section 2(g) of the Rules and Regulations on the Reporting and Investigation of Child Abuse Cases, promulgated to
implement R.A. No. 7610, defines "sexual abuse" as including "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." (Underscoring supplied)
For consensual sexual intercourse or lascivious conduct with a minor, who is not exploited in prostitution, to thus fall
within the purview of Section 5(b) of R.A. No. 7610, "persuasion, inducement, enticement or coercion" of the child must
be present.
In People v. Larin,22 the information alleged that the therein accused took advantage of his authority, influence, and
moral ascendancy as trainor/swimming instructor of the minor victim 23 which the Court found constituted "psychological
coercion."24 In convicting the therein accused for lascivious acts, the Court held:
It must be noted that [Republic Act No. 7610] covers not only a situation in which a child is abused for profit, but also
one in which a child, through coercion or intimidation, engages in any lascivious conduct .25 (Emphasis and underscoring
supplied)
And even in Malto v. People26 wherein the accused was convicted for violation of Section 5(b) of R.A. No. 7610,   the
information alleged, and the prosecution proved, that the therein accused who was the minor’s professor obtained the
minor’s consent by taking advantage of his relationship and moral ascendancy to exert influence on her.
In the case at bar, even if respondent were charged under Section 5(b), instead of Section 10(a), respondent would just
the same have been acquitted as there was no allegation that an element of the offense – coercion or influence or
intimidation – attended its commission.
In light of the foregoing disquisition, the petition is DENIED.
G.R. No. 177752 February 24, 2009 (except paragraph 1[d]) of the Revised Penal Code. However, the offender cannot be accused of both crimes 18 for the
same act because his right against double jeopardy will be prejudiced. A person cannot be subjected twice to criminal
PEOPLE v. ABAY
liability for a single criminal act.19 Likewise, rape cannot be complexed with a violation of Section 5(b) of RA 7610. Under
On March 8, 2000, appellant Roberto Abay y Trinidad was charged with rape in relation to Section 5(b), Article III of RA Section 48 of the Revised Penal Code (on complex crimes), 20 a felony under the Revised Penal Code (such as rape)
7610 in the Regional Trial Court (RTC) of Manila, Branch 41 under the following Information: cannot be complexed with an offense penalized by a special law.
That sometime in December 1999, in the City of Manila, Philippines, [appellant] by means of force and intimidation, did In this case, the victim was more than 12 years old when the crime was committed against her. The Information against
then and there willfully, unlawfully and knowingly commit sexual abuse and lascivious conduct against [AAA], a minor, appellant stated that AAA was 13 years old at the time of the incident. Therefore, appellant may be prosecuted either for
13 years of age, by then and there kissing her breast and whole body, lying on top of her and inserting his penis into her violation of Section 5(b) of RA 7610 or rape under Article 266-A (except paragraph 1[d]) of the Revised Penal Code.
vagina, thus succeeded in having carnal knowledge of her, against her will and consent thereafter threatening to kill her While the Information may have alleged the elements of both crimes, the prosecution’s evidence only established that
should she report the incident, thereby gravely endangering her survival and normal growth and development, to the appellant sexually violated the person of AAA through force and intimidation by threatening her with a bladed instrument
damage and prejudice of [AAA]. and forcing her to submit to his bestial designs. Thus, rape was established.
CONTRARY TO LAW. Indeed, the records are replete with evidence establishing that appellant forced AAA to engage in sexual intercourse
Appellant pleaded not guilty during arraignment. with him on December 25, 1999. Appellant is therefore found guilty of rape under Article 266-A(1)(a) of the Revised
Penal Code and sentenced to reclusion perpetua. Furthermore, to conform with existing jurisprudence, he is ordered to
During trial, the prosecution presented AAA, her mother BBB and expert witness Dr. Stella Guerrero-Manalo of the Child pay AAA ₱75,000 as civil indemnity ex-delicto24 and ₱75,000 as moral damages.
Protection Unit of the Philippine General Hospital as its witnesses.
WHEREFORE, the January 18, 2007 decision of the Court of Appeals in CA-G.R. CR-H.C. No. 01365 is
AAA testified that appellant, her mother’s live-in partner, had been sexually abusing her since she was seven years old. hereby AFFIRMED with modification. Appellant Roberto Abay y Trinidad is hereby found GUIILTY of simple rape and is
Whenever her mother was working or was asleep in the evening, appellant would threaten her with a bladed sentenced to suffer the penalty of reclusion perpetua. He is further ordered to pay AAA ₱75,000 as civil indemnity ex-
instrument2 and force her to undress and engage in sexual intercourse with him. delicto,  ₱75,000 as moral damages and ₱25,000 as exemplary damages.
BBB corroborated AAA’s testimony. She testified that she knew about appellant’s dastardly acts. However, because he
would beat her up and accuse AAA of lying whenever she confronted him, she kept her silence. Thus, when she caught
appellant in the act of molesting her daughter on December 25, 1999, she immediately proceeded to the police station
and reported the incident.
According to Dr. Guerrero-Manalo, AAA confided to her that appellant had been sexually abusing her for six years. This
was confirmed by AAA’s physical examination indicating prior and recent penetration injuries.
The defense, on the other hand, asserted the incredibility of the charge against appellant. Appellant’s sister, Nenita
Abay, and appellant’s daughter, Rizza, testified that if appellant had really been sexually abusing AAA, the family would
have noticed. The rooms of their house were divided only by ¼-inch thick plywood "walls" that did not even reach the
ceiling. Thus, they should have heard AAA’s cries. Moreover, Nenita and Rizza claimed that they "often caught" AAA
and her boyfriend in intimate situations.
According to the RTC, one wrongly accused of a crime will staunchly defend his innocence. Here, appellant kept his
silence which was contrary to human nature. On the other hand, AAA straightforwardly narrated her horrifying
experience at the hands of appellant. The RTC concluded that appellant had indeed sexually abused AAA. A young girl
would not have exposed herself to humiliation and public scandal unless she was impelled by a strong desire to seek
justice.3
In a decision dated November 25, 2003,4 the RTC found appellant guilty beyond reasonable doubt of the crime of rape:
WHEREFORE, finding [appellant] Roberto Abay y Trinidad guilty beyond reasonable doubt of committing the crime of
rape under Article 335 of the Revised Penal Code in relation to Section 5, Article III of RA 7610 against [AAA], the Court
imposes upon him the death penalty, 5 and to pay private complainant moral damages in the amount of Fifty Thousand
(₱50,000) Pesos.
SO ORDERED.
The Court of Appeals (CA), on intermediate appellate review, 6 affirmed the findings of the RTC but modified the penalty
and award of damages.
In view of the enactment of RA 8353 7 and RA 9346,8 the CA found appellant guilty only of simple rape and reduced the
penalty imposed to reclusion perpetua.  Furthermore, in addition to the civil indemnity ex delicto  (which is mandatory
once the fact of rape is proved) 9 granted by the RTC, it awarded ₱50,000 as moral damages and ₱25,000 as
exemplary damages. Moral damages are automatically granted in rape cases without need of proof other than the
commission of the crime10 while exemplary damages are awarded by way of example and in order to protect young girls
from sexual abuse and exploitation. 11
We affirm the decision of the CA with modifications.
Under Section 5(b), Article III of RA 7610 12 in relation to RA 8353, 13 if the victim of sexual abuse 14 is below 12 years of
age, the offender should not be prosecuted for sexual abuse but for statutory rape under Article 266-A(1)(d) of the
Revised Penal Code15 and penalized with reclusion perpetua.16 On the other hand, if the victim is 12 years or older, the
offender should be charged with either sexual abuse 17 under Section 5(b) of RA 7610 or rape under Article 266-A

G.R. No. 174473 August 17, 2007
PEOPLE v. ABULON
For automatic review is the decision 1 of the Court of Appeals (CA) dated 28 April 2006, affirming with modification the
decision2 of the Regional Trial Court (RTC) of Santa Cruz, Laguna, Branch 28, 3 dated 27 December 2000, finding him
guilty beyond reasonable doubt of two (2) counts of qualified rape and one (1) count of acts of lasciviousness.
In three (3) separate Informations 4 for Criminal Cases No. SC-7422, SC-7423 and SC-7424 all dated 16 June 1999,
appellant was indicted before the RTC for three (3) counts of qualified rape against his minor daughter AAA. 5 The
accusatory portions in all the Informations are identical, except as regards the date of commission of the crime. The
Information in Criminal Case No. SC-7422 reads:
At the instance of the private complainant [AAA] with the conformity of her mother [BBB] 6 in a sworn complaint filed with
the Municipal Circuit Trial Court of Lumban-Kalayaan (Laguna), the undersigned Assistant Provincial Prosecutor of
Laguna hereby accuses ALVIN ABULON Y SALVANIA, of the crime of "RAPE," committed as follows:
"That on or about March 14, 1999, in the Municipality of Kalayaan, Province of Laguna, and within the jurisdiction of this
Honorable Court, the above-named accused, with lewd designs, with grave abuse of confidence or obvious
ungratefulness, and with force and intimidation, did then and there wilfully [sic], unlawfully and feloniously have carnal
knowledge of his legitimate minor daughter, [AAA], who at the [ sic] time was thirteen (13) years of age, against her will
and consent and to her damage and prejudice."
CONTRARY TO LAW.
After appellant pleaded not guilty, trial ensued with AAA herself, as the first prosecution witness, testifying to the
following facts:
AAA is the oldest of five (5) legitimate children born to appellant and BBB. On 14, 15, and 16 March 1999, appellant
raped AAA. The first rape incident occurred at around 1:30 in the morning of 14 March 1999. AAA was home, fast
asleep next to her brother and sister when she suddenly woke up to the noise created by her father who arrived drunk,
but who likewise soon thereafter returned to the wedding festivities he was attending. Abiding by their father’s
instructions, AAA and her siblings went back to sleep.7
AAA was next awakened by the weight of her father lying naked on top of her. Appellant had removed her underwear
while she slept. He poked a knife on AAA’s waist and threatened to kill her and her siblings if she reported the incident
to anyone. She begged him to stop but he proceeded to kiss her mouth, vagina, and breast, and to have carnal
knowledge of her.8 Although they witnessed the ongoing ordeal, AAA’s siblings could do nothing but cry as appellant
likewise poked the knife on them. 9 The following morning, AAA found a whitish substance and blood stains on her
panty.10
On 15 March 1999, at around 10:30 in the evening, AAA and her siblings were awakened as appellant came home
drunk. He told them to eat first as they had not taken their supper yet. After dining together, appellant left and AAA, her
brother, and her sister went back to sleep. 11 As in the previous evening, appellant roused AAA in mid-sleep. This time,
she woke up with her father holding her hand, covering her mouth and lying on top of her. He undressed AAA, then
mounted her. Repeatedly, he inserted his penis into her vagina, and AAA felt pain in her private parts. Appellant also
kissed and fondled AAA on different parts of her body. 12
Again, AAA’s siblings could only cry as they saw appellant rape their sister. AAA’s sister, however, took a pen and wrote
her a note which read: "Ate, let us tell what father was doing to the police officer."  After appellant had raped AAA, the
latter’s sister asked their father why he had done such to AAA. In response, appellant spanked AAA’s sister and
threatened to kill all of them should they report the incidents to the police. 13 The sisters nonetheless related to their
relatives AAA’s misfortune, but the relatives did not take heed as they regarded appellant to be a kind man.14
The third rape episode happened at around 3:30 in the morning of 16 March 1999. Although appellant did not insert his
penis into AAA’s vagina on this occasion, he took off her lower undergarments and kissed her vagina. 15 On cross-
examination, AAA asserted that her father inserted his tongue into the hole of her vagina and she felt pain because of
this.16
To corroborate AAA’s testimony, the prosecution presented BBB and AAA’s 6-year old brother CCC. 17 BBB testified that
she was a stay-in housemaid working in Las Piñas on the dates that her daughter was raped by appellant. On 26 March
1999, she went home and stayed with her family. However, it was only on 4 May 1999 that BBB learned of the rape,
when CCC told her that appellant had raped AAA three (3) times and that he had seen his father on top of his sister
during those occasions. BBB then verified the matter with AAA herself, and the latter affirmed the incidents. BBB thus
took AAA with her to the barangay and police authorities to report the incidents, and later to the provincial hospital for
medical examination.18
CCC testified that on three (3) separate occasions, he saw his father lying naked on top of AAA, who was likewise
naked.19
The prosecution also presented SPO1 Bayani G. Montesur (SPO1 Montesur) and Dr. Gloria Cabael (Dr. Cabael). SPO1
Montesur identified the Police Blotter of 4 May 1999 which recorded the complaints of rape against appellant and the
report of the latter’s arrest. 20 Dr. Cabael, on the other hand, testified that she examined AAA on 4 May 1999 upon the
request of Police Officer Gallarosa. She identified the Rape Case Report she prepared thereafter. 21
Appellant testified as the sole witness on his behalf, proffering denial and alibi as his defenses. According to appellant,
he was hired by his aunt, Raquel Masangkay, to deliver hogs and that at 1:30 in the morning of 14 March 1999, he was
in Calamba, Laguna pursuant to such employment. He averred that he went home at 7:00 in the morning of the
following day and thus could not have raped his daughter as alleged. 22 Likewise denying the second rape charge,
appellant testified that on 15 March 1999, he attended a wedding ceremony in Sityo Kalayaan, San Antonio, Kalayaan,
Laguna. He went home drunk at 6:00 that evening and promptly went to sleep. Similarly, at 3:00 in the morning of 16
March 1999, appellant claimed to have been asleep with his children and could not have thus committed the rape as
charged.
Finding that the prosecution had proven beyond reasonable doubt the guilt of appellant of the crime of qualified rape in
Criminal Case Nos. SC-7422 and SC-7423 and the crime of acts of lasciviousness in Criminal Case No. SC-7424, the
RTC rendered a Consolidated Judgment against appellant and sentenced him accordingly, thus:
WHEREFORE:
Under Criminal Case No. SC-7422, this Court finds the accused ALVIN ABULON y SALVANIA GUILTY BEYOND
REASONABLE DOUBT as PRINCIPAL of CONSUMMATED QUALIFIED RAPE as defined and penalized under Article
335 of the Revised Penal Code, as amended by Rep. Act No. 7639, otherwise known as the DEATH PENALTY LAW,
and hereby sentences him to suffer the SUPREME PENALTY of DEATH.
Under Criminal Case No. SC-7423, this Court finds the accused ALVIN ABULON y SALVANIA GUILTY BEYOND
REASONABLE DOUBT as PRINCIPAL of CONSUMMATED QUALIFIED RAPE as defined and penalized under Article
335 of the Revised Penal Code, as amended by Rep. Act No. 7639, otherwise known as the DEATH PENALTY LAW,
and hereby sentences him to suffer the SUPREME PENALTY of DEATH.
Under Criminal Case No. SC-7424, this Court finds the accused ALVIN ABULON y SALVANIA GUILTY BEYOND
REASONABLE DOUBT as PRINCIPAL of ACTS OF LASCIVIOUSNESS as defined and penalized under Article 336 of
the Revised Penal Code and hereby sentences him to suffer the penalty of imprisonment for SIX (6) MONTHS of
ARRESTO MAYOR as MINIMUM to SIX (6) YEARS of PRISION CORRECCIONAL as MAXIMUM.
With the death penalty imposed on appellant, the case was elevated to this Court on automatic review. However,
pursuant to this Court’s ruling in People v. Mateo,26 the case was transferred to the Court of Appeals. On 28 April 2006,
the appellate court rendered its decision affirming appellant’s conviction, but with modification as to damages awarded
to the victim. The dispositive portion of the decision states:
WHEREFORE, the decision of the Regional Trial Court of Santa Cruz, Laguna, Branch 28, in Criminal Case Nos. SC-
7422 and SC-7423 finding appellant Alvin S. Abulon guilty beyond reasonable doubt of the crimes of qualified rape, and
in Criminal Case No. SC-7424, finding appellant guilty beyond reasonable doubt of the crime of acts of lasciviousness,
are hereby AFFIRMED.
Pursuant to A.M. 00-5-03-SC (Amendments to the Revised Rule of Criminal Procedure to Govern Death Penalty
Cases), which took effect on October 15, 2004, this case is elevated and certified to the Supreme Court for its automatic
review.
SO ORDERED.27
In his Brief,28 appellant assails his conviction and imputes grave error to the trial court for giving weight and credence to
the testimony of AAA. In particular, he makes capital of AAA’s delay in reporting the incidents to her mother. He likewise
impugns the trial court’s alleged bias in propounding inappropriate leading questions to private complainant AAA.
Finally, he maintains that the Informations against him are defective as they failed to allege the key element of force
and/or intimidation.29
We affirm the decision of the Court of Appeals with modifications.
The duty to ascertain the competence and credibility of a witness rests primarily with the trial court, 30 because it has the
unique position of observing the witness’s deportment on the stand while testifying. Absent any compelling reason to
justify the reversal of the evaluations and conclusions of the trial court, the reviewing court is generally bound by the A : Yes, sir.
former’s findings. Q : Please tell us if you know?
A : Something whitish coming out from it, sir.
In rape cases particularly, the conviction or acquittal of the accused most often depends almost entirely on the credibility
Court:
of the complainant’s testimony. By the very nature of this crime, it is generally unwitnessed and usually the victim is left
Q : From where did it come from [sic]? That whitish substance?
to testify for herself. Her testimony is most vital and must be received with the utmost caution. When a rape victim’s
A : From my father’s private part, Your Honor.
testimony, however, is straightforward and marked with consistency despite grueling examination, it deserves full faith
Q : Why, what happened to the private part of your father?
and confidence and cannot be discarded. Once found credible, her lone testimony is sufficient to sustain a conviction.
A : I do not know, Your Honor.
The court a quo found the testimony of AAA in its entirety to be credible, made in a candid, spontaneous, and Q : When you felt pain, what was your father doing then?
straightforward manner and never shaken even under rigid cross-examination. We agree that AAA’s narration of her A : He repeated what he told [sic] previously not to tell to [sic] anybody.
harrowing experience is worthy of credence. Q : At that time, did you see the private part of your father?
Criminal Case No. SC-7422 A : Yes, Your Honor.
Q : When you felt pain. Do you know what is [sic] happening to the private part of your father?
Trial Prosecutor: A : Yes, Your Honor.
Q : Tell us what happened at around 1:30 in the morning of March 11, [sic] 1999 to you? Q : What was happening?
A : My brother and sister and I were already asleep when my father who was drank [sic] came home. We told him to just A : His private part stiffened or hardened (tumirik), Your Honor.
sleep. My father told us that he would still return to the wedding celebration (kasalan). Q : Where was it placed if any?
xxxx A : Into my private part, Your Honor.
Q : What happened next when you continued sleeping? Q : Did the private part of you father actually penetrate your vagina?
A : I was awakened when I felt my father already on top of me, sir. A : Yes, Your Honor.
Q : Tell us exactly what was [sic] your position then at that time you woke up? Q : What did you feel at the time the penis of your father entered your vagina?
A : I was still lying straight down, sir. A : It was painful, Your Honor.
Q : How about your father in relation to you, where was he at the time you woke up? Q : At that time was your father making any movement?
A : He was on top (nakadagan) of me, sir. A : Yes, Your Honor.
Court: Q : Will you describe the movement made by your father?
Q : Was he naked? A : (Witness demonstrating an upward and downward stroke by placing her right palm over her left hand)
A : Already naked, Your Honor. Trial Prosecutor:
Q : How about you, do [sic] you have your clothes on? Q : Did he kiss you?
A : I have [sic] my lady sando on, Your Honor. A : Yes, sir.
Trial Prosecutor: Q : In what part of your body?
Q : Are [sic] you still wearing your panty when you were awakened? A : On my mouth, sir.
A : No more, sir. Q : Aside from your mouth, what other part or parts of your body did he kiss?
xxxx A : On my private part, sir.
Q : What did your father do aside from placing his body on top of you? Q : When did he kiss you private part, before inserting his penis or after?
A : He poked a knife on [sic] me, sir. A : After he inserted his penis, sir.
Court: Q : What other part of your body did he kiss?
Q : Did he say something? A : On my breast, sir.36
A : Yes, Your Honor. xxxx
Q : What did he say?
A : He said that if he [sic] report her [sic] to anybody he would kill us, Your Honor. Criminal Case No. SC-7423
xxxx TP. Arcigal, Jr.:
Trial Prosecutor: Q : Now, you said that the second incident happened [on] March 15, 1999, am I correct?
Q : What else did he do aside from telling you "huag kang magsusumbong"? A : Yes, sir.
A : He also poked the knife on [sic] my brother and sister, sir. Q : And where and what time said [sic] second incident happened?
Q : They were already awakened at that time? A : 10:30 in the evening, sir, also in our house, sir.
A : Yes, sir. xxxx
Q : What else did he do aside from poking a knife on [sic] you and your brother and sister? Q : And what were you doing when your father returned at around 11:00 o’clock in the evening?
A : No more, sir. A : We were all asleep, sir.
Court: Q : And how did you come to know that he returned at around 11:00 P.M.?
Q : While your father according to you is [sic] on top of you, what did he do if any? A : My father suddenly held my hand, sir.
A : "Kinayog na po niya ako." Q : And because of that, you were awakened?
Q : What do you mean by telling [sic] "kinayog na po niya ako"? A : Yes, sir.
A : He was moving, Your Honor. Q : And what happened when you were awakened because your father held your hand?
Q : While your father was moving, what else was happening at that time? A : He covered my mouth, sir.
A : I felt pain, Your Honor. Q : And after covering your mouth, what else did he do?
Trial Prosecutor: A : He removed the lower portion of my clothes. "Hinubuan po niya ako."
Q : From where did you feel that pain? xxxx
A : From my private part, sir. Q : After removing your lady sando, what else did he do?
xxxx A : He laid himself on top of me, sir.
Q : Do you know if you know why you felt the pain on the lower portion of your body? xxxx
Q : Now, what did he do to you when he was already on top of you? xxxx
A : He was "kinakayog niya po ako." TP. Arcigal, Jr.:
Q : Aside from "kinakayog," what else did he do? Q : Now, what did he use in kissing your clitoris?
A : He kissed my breast, sir. A : His tongue, sir.
Q : Aside from that, what else? Q : How did you come to know that it was his tongue that he used?
A : He likewise touched my private part, sir. A : It is because I saw him put out his tongue, sir.
Q : When he was on top of you, do you know where was [sic] his penis at that time?
A : Yes, sir. Verily, it is inconceivable and contrary to human experience for a daughter, who is attached to her father by the natural
Q : Where? bond of love and affection, to accuse him of rape, unless he is the one who raped and defoliated her. As we have
A : Into my vagina, sir. pronounced in People v. Canoy:
Q : How did you come to know that the penis of your father was inside your vagina? It is unthinkable for a daughter to accuse her own father, to submit herself for examination of her most intimate parts, put
A : I felt pain in my private part, sir. her life to public scrutiny and expose herself, along with her family, to shame, pity or even ridicule not just for a simple
Q : And do you know why you felt pain in your private part? offense but for a crime so serious that could mean the death sentence to the very person to whom she owes her life,
A : Yes, sir. had she really not have been aggrieved. Nor do we believe that the victim would fabricate a story of rape simply
Q : Why? because she wanted to exact revenge against her father, appellant herein, for allegedly scolding and maltreating her.
A : His private part …. (Thereafter witness is crying while uttering words: "I am afraid I might be killed by my father.") He
held his penis into my vagina. Thereafter, inserted it repeatedly into mine, sir. In stark contrast with AAA’s convincing recital of facts, supported as it was by the testimonies of BBB and CCC, are
Q : And you were able to actually feel his penis inside your vagina? appellant’s uncorroborated and shaky defenses of denial and alibi. Nothing is more settled in criminal law jurisprudence
A : Yes, sir. 37 than that alibi and denial cannot prevail over the positive and categorical testimony and identification of the
xxxx complainant.42 Alibi is an inherently weak defense, which is viewed with suspicion because it can easily be
fabricated.43 Denial is an intrinsically weak defense which must be buttressed with strong evidence of non-culpability to
Criminal Case No. SC-7424 merit credibility.44
TP. Arcigal, Jr.: The records disclose that not a shred of evidence was adduced by appellant to corroborate his alibi. Alibi must be
Q : Now, you said also that you were raped on March 16, 1999, am I correct? supported by credible corroboration from disinterested witnesses, otherwise, it is fatal to the accused. 45 Further, for alibi
A : Yes, sir. to prosper, it must be demonstrated that it was physically impossible for appellant to be present at the place where the
Q : What time? crime was committed at the time of its commission. 46 By his own testimony, appellant clearly failed to show that it was
A : It was 3:30 o’clock in the morning, sir. physically impossible for him to have been present at the scene of the crime when the rapes were alleged to have
xxxx occurred. Except for the first incident, appellant was within the vicinity of his home and in fact alleged that he was
TP. Arcigal, Jr.: supposedly even sleeping therein on the occasion of the second and third incidents. 1avvphi1
Q Now, how did it happen, that third incident?
A I was able to run downstairs but when I was about to open the door, he was able to hold my dress, sir. Appellant’s contention that AAA’s accusations are clouded by her failure to report the alleged occurrences of rape is
Q : Was your father drunk at that time? unmeritorious. To begin with, AAA categorically testified that she told her father’s niece about the incidents. However,
A : Yes, sir. the latter doubted her, believing instead that appellant was not that kind of man. AAA’s subsequent attempt to report the
Q : How did you come to know? incidents to the barangay turned out to be futile as well as she was only able to speak with the barangay driver, who
A : His eyes were red and he was laughing at me while telling me: "It is your end." (Witness crying while answering the happened to be appellant’s brother-in-law. She was likewise disbelieved by the latter. Her disclosure of the rapes to a
question.) certain Menoy did not yield any positive result either. Fearing for the lives of her grandparents, AAA decided not to tell
Q : Now, what happened when your father was able to hold your dress? them about the incidents.47
A : He carried me upstairs, sir. A child of thirteen years cannot be expected to know how to go about reporting the crime to the authorities. 48 Indeed, We
Q : Was he able to carry you upstairs? see how AAA must have felt absolutely hopeless since the people around her were relatives of her father and her
A : Yes, sir. attempts to solicit help from them were in vain. Thus, AAA’s silence in not reporting the incidents to her mother and filing
Q : What did he do, if any, when you were upstairs? the appropriate case against appellant for over a month is sufficiently explained. The charge of rape is rendered doubtful
A : He removed my panty and shortpants, sir. only if the delay was unreasonable and unexplained. 49 It is not beyond ken that the child, living under threat from
Q : After removing your shorts and panty, what else did he do? appellant and having been turned away by trusted relatives, even accused by them of lying, would simply opt to just
A : No more but he kissed my vagina. suffer in silence thereafter. In People v. Gutierrez,50 we held:
Q : Which part of your vagina did he kiss?
Complainant’s failure to immediately report the rape does not diminish her credibility. The silence of a victim of rape or
A : That part of my vagina with hold [sic].
her failure to disclose her misfortune to the authorities without loss of material time does not prove that her charge is
Court:
baseless and fabricated. It is not uncommon for young girls to conceal for some time the assault on their virtues
Q : What about your upper garments at that time?
because of the rapist’s threat on their lives, more so when the offender is someone whom she knew and who was living
A : He did not remove it, Your Honor.
with her.51
Q : What else did he do, aside from that?
A : Nothing more, just that. Appellant brands the trial judge as partial against him for propounding leading questions to AAA. According to him, were
Q : After kissing your vagina, what else happened, if any? it not for the lower court’s and the prosecution’s biased leading questions, AAA would not have proven the elements of
A : He again poked the knife on us, Your Honor. the crimes charged.52
Q : At that time, was your father naked or not? Appellant’s argument is not well-taken. It is the judge’s prerogative to ask clarificatory queries to ferret out the truth. 53 It
A : Still with his clothes on, Your Honor. cannot be taken against him if the questions he propounds reveal certain truths which, in turn, tend to destroy the theory
xxxx of one party.54 After all, the judge is the arbiter and ought to be satisfied himself as to the respective merits and claims of
Q : For clarification, what else, if any, did your father do after your father kissed your vagina? both parties in accord with the stringent demands of due process. 55 Also, being the arbiter, he may properly intervene in
A : Nothing more, merely that act, Your Honor. the presentation of evidence to expedite proceedings and prevent unnecessary waste of time. 56
Q : You mean your father did not insert his penis to [sic] your vagina anymore?
A : No more, Your Honor.
Besides, jurisprudence explains that allegations of bias on the part of the trial court should be received with caution,
especially when the queries by the judge did not prejudice the accused. The propriety of the judge’s questions is
determined by their quality and not necessarily by their quantity and, in any event, by the test of whether the defendant
was prejudiced by such questioning or not. 57 In the instant case, the Court finds that on the whole, the questions
propounded by the judge a quo were but clarificatory in nature and that, concomitantly, appellant failed to satisfactorily
establish that he was prejudiced by such queries.
The matter of the purportedly defective Informations was properly addressed by the Court of Appeals, pointing out that a
close scrutiny of the Informations would reveal that the words "force and/or intimidation" are specifically alleged
therein.58 Even if these were not so, well-established is the rule that force or intimidation need not be proven in
incestuous cases. The overpowering moral influence of a father over his daughter takes the place of violence and offer
of resistance ordinarily required in rape cases where the accused is unrelated to the victim.59
Now, we turn to the determination of the crime for which appellant under the third charge is liable and the corresponding
penalty therefor. In the Brief for the People, the Office of the Solicitor General (OSG) argues that all three (3) charges of
rape, including the rape committed on 16 March 1999 subject of Criminal Case No. SC-7424, were proved beyond
reasonable doubt. The court a quo held that it was clear from the evidence that appellant merely kissed the vagina of
AAA and made no attempt of penetration, meaning penile penetration, and for that reason found him guilty of acts of
lasciviousness only.60 Yet, in affirming the trial court, the Court of Appeals did not find any categorical testimony on
AAA’s part that appellant had inserted his tongue in her vagina, stressing instead that the mere probability of such
insertion cannot take the place of proof required to establish the guilt of appellant beyond reasonable doubt for rape. 61
The automatic appeal in criminal cases opens the whole case for review, 62 as in this case. Thus, this Court is mandated
to re-examine the vital facts established a quo and to properly apply the law thereto. The two courts below were both
mistaken, as we note that AAA unqualifiedly testified on cross-examination to appellant’s insertion of his tongue into her
vagina, viz:
Court:
Q : On the third time you are [sic] allegedly raped, you said it happened at 3:30 in the morning of March 16, 1999.
A : Yes, sir.
Q : And you said yesterday that he did not insert his pennies [sic] to [sic] your vagina on March 16?
A : Yes, sir.
Q : What he did is he kissed your vagina?
A : Yes, sir.
Q : For how long did he kiss your vagina?
A : Two minutes, sir.
Q : What did he actually do when he kissed your vagina?
A : He kissed my vagina, thereafter he laughed and laughed.
Q : You mean to tell the court when he kissed your vagina he used his lips?
A : His lips and tongue, sir.
Q : What did he do?
A : He put out his tongue thereafter he "inano" the hole of my vagina.
Court:
Q : What did your father do with his tongue?
A : He placed it in the hole of my vagina.
Q : Did you feel pain?
A : Yes, sir.
Q : By just kissing your vagina you felt pain?
A : Yes, Your Honor.63
Notwithstanding the explicit testimony of AAA on the matter, this Court cannot find appellant guilty of rape as proved, but
of acts of lasciviousness only. In reaching this conclusion, we take a route different from the ones respectively taken by
the courts below.
With the enactment of Republic Act No. 8353 (R.A. No. 8353), otherwise known as the Anti-Rape Law of 1997, 64 the
concept of rape was revolutionized with the new recognition that the crime should include sexual violence on the
woman’s sex-related orifices other than her organ, and be expanded as well to cover gender-free rape. 65 The
transformation mainly consisted of the reclassification of rape as a crime against persons and the introduction of rape by
"sexual assault"66 as differentiated from the traditional "rape through carnal knowledge" or "rape through sexual
intercourse."
Section 2 of the law provides:
Sec. 2. Rape as a Crime Against Persons. – The crime of rape shall hereafter be classified as a Crime Against Persons
under Title Eight of Act No. 9815, as amended, otherwise known as the Revised Penal Code. Accordingly, there shall be
incorporated into Title Eight of the same Code a new chapter to be known as Chapter Three on Rape, to read as
follows:
Article 266-A. Rape; When And How Committed. – Rape Is Committed –
1) By a man who shall have carnal knowledge of a woman under any of the following circumstances:
(a) Through force, threat, or intimidation;
(b) When the offended party is deprived of reason or otherwise is unconscious;
(c) By means of fraudulent machination or grave abuse of authority; and
(d) When the offended party is under twelve (12) years of age or is demented, even though none of the circumstances
mentioned above be present.
2) By any person who, under any of the circumstances mentioned in paragraph 1 hereof, shall commit an act of sexual
assault by inserting his penis into another person’s mouth or anal orifice, or any instrument or object, into the genital or
anal orifice of another person.
Paragraph 1 under Section 2 of R.A. No. 8353, which is now Paragraph 1 of the new Article 266-A of the Revised Penal
Code, covers rape through sexual intercourse while paragraph 2 refers to rape by sexual assault. Rape through sexual
intercourse is also denominated as "organ rape" or "penile rape." On the other hand, rape by sexual assault is otherwise
called "instrument or object rape," 67 also "gender-free rape,"68 or the narrower "homosexual rape." 69
In People v. Silvano,70 the Court recognized that the father’s insertion of his tongue and finger into his daughter’s vaginal
orifice would have subjected him to liability for "instrument or object rape" had the new law been in effect already at the
time he committed the acts. Similarly, in People v. Miranda,71 the Court observed that appellant’s insertion of his fingers
into the complainant’s organ would have constituted rape by sexual assault had it been committed when the new law
was already in effect.
The differences between the two modes of committing rape are the following:
(1) In the first mode, the offender is always a man, while in the second, the offender may be a man or a woman;
(2) In the first mode, the offended party is always a woman, while in the second, the offended party may be a man or a
woman;
(3) In the first mode, rape is committed through penile penetration of the vagina, while the second is committed by
inserting the penis into another person’s mouth or anal orifice, or any instrument or object into the genital or anal orifice
of another person; and
(4) The penalty for rape under the first mode is higher than that under the second.
In view of the material differences between the two modes of rape, the first mode is not necessarily included in the
second, and vice-versa. Thus, since the charge in the Information in Criminal Case No. SC-7424 is rape through carnal
knowledge, appellant cannot be found guilty of rape by sexual assault although it was proven, without violating his
constitutional right to be informed of the nature and cause of the accusation against him.
However, following the variance doctrine embodied in Section 4, in relation to Section 5, Rule 120, Rules of Criminal
Procedure, appellant can be found guilty of the lesser crime of acts of lasciviousness. Said provisions read:
Sec. 4. Judgment in case of variance between allegation and proof . – When there is a variance between the offense
charged in the complaint or information and that proved, and the offense as charged is included in or necessarily
includes the offense proved, the accused shall be convicted of the offense proved which is included in the offense
charged, or of the offense charged which is included in the offense proved.
Sec. 5. When an offense includes or is included in another.  – An offense charged necessarily includes the offense
proved when some of the essential elements or ingredients of the former, as alleged in the complaint or information,
constitutes the latter. And an offense charged is necessarily included in the offense proved when the essential
ingredients of the former constitute or form part of those constituting the latter.
Indeed, acts of lasciviousness or abusos dishonestos are necessarily included in rape.72
In light of the passage of R.A. No. 9346, entitled "An Act Prohibiting the Imposition of Death Penalty in the
Philippines,"73 the penalty of death can no longer be imposed. Accordingly, the penalty meted out to appellant for rape
through sexual intercourse in Criminal Cases No. SC-7422 and SC-7423 is reduced in each case from death
to reclusion perpetua without eligibility for parole.74 We affirm the conviction of appellant in Criminal Case No. SC-7424
for acts of lascivousness but modify the penalty imposed by the Court of Appeals instead to an indeterminate sentence
of imprisonment of six (6) months of arresto mayor as minimum to four (4) years and two (2) months of prision
correccional as maximum as neither mitigating nor aggravating circumstances attended the commission of the crime.
With respect to the civil liability of appellant, we modify the award in Criminal Cases No. SC-7422 and SC-7423 in light
of prevailing jurisprudence. Therefore, appellant is ordered to indemnify AAA, for each count of qualified rape, in the
amount of ₱75,000.00 as civil indemnity, ₱75,000.00 as moral damages, and ₱25,000.00 as exemplary
damages.75 The award of damages in Criminal Case No. SC-7424 is affirmed.
WHEREFORE, the Decision of the Court of Appeals in CA G.R. CR-HC No. 01926 is AFFIRMED WITH
MODIFICATIONS. In Criminal Cases No. SC-7422 and SC-7423, appellant is found guilty beyond reasonable doubt of
the crime of qualified rape and sentenced to suffer the penalty of reclusion perpetua without eligibility for parole and to
pay the victim, AAA, in the amounts of ₱75,000.00 as civil indemnity, ₱75,000.00 as moral damages, and ₱25,000.00
as exemplary damages plus costs. In Criminal Case No. SC-7424, appellant is found guilty of the crime of acts of
lasciviousness and sentenced to suffer the indeterminate penalty of imprisonment for six (6) months of  arresto mayor as
minimum to four (4) years and two (2) months of prision correccional as maximum, and to pay AAA moral damages in
the amount of ₱30,000.00 plus costs.
G.R. No. 169533 March 20, 2013
BONGALON v. PEOPLE
Not every instance of the laying of hands on a child constitutes the crime of child abuse under Section 10 (a) of Republic
Act No. 7610.1 Only when the laying of hands is shown beyond reasonable doubt to be intended by the accused to
debase, degrade or demean the intrinsic worth and dignity of the child as a human being should it be punished as child
abuse. Otherwise, it is punished under the Revised Penal Code.
The Case
On June 22, 2005,2 the Court of Appeals (CA) affirmed the conviction of the petitioner for the crime of child abuse under
Section 10 (a) of Republic Act No. 7610.
Antecedents
On June 26, 2000, the Prosecutor’s Office of Legazpi City charged the petitioner in the Regional Trial Court (RTC) in
Legazpi City with child abuse, an act in violation of Section 10(a) of Republic Act No. 7610, alleging as follows:
That on or about the 11th day of May 2000, in the City of Legazpi Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, did then and there wilfully, unlawfully and feloniously commit on the
person of JAYSON DELA CRUZ, a twelve year-old,
Grade VI pupil of MABA Institute, Legazpi City, acts of physical abuse and/or maltreatment by striking said JAYSON
DELA CRUZ with his palm hitting the latter at his back and by slapping said minor hitting his left cheek and uttering
derogatory remarks to the latter’s family to wit: "Mga hayop kamo, para dayo kamo digdi, Iharap mo dito ama mo" (You
all animals, you are all strangers here. Bring your father here), which acts of the accused are prejudicial to the child’s
development and which demean the intrinsic worth and dignity of the said child as a human being.
CONTRARY TO LAW.3
The Prosecution showed that on May 11, 2002, Jayson Dela Cruz (Jayson) and Roldan, his older brother, both minors,
joined the evening procession for the Santo Niño at Oro Site in Legazpi City; that when the procession passed in front of
the petitioner’s house, the latter’s daughter Mary Ann Rose, also a minor, threw stones at Jayson and called him "sissy";
that the petitioner confronted Jayson and Roldan and called them names like "strangers" and "animals"; that the
petitioner struck Jayson at the back with his hand, and slapped Jayson on the face; 4 that the petitioner then went to the
brothers’ house and challenged Rolando dela Cruz, their father, to a fight, but Rolando did not come out of the house to
take on the petitioner; that Rolando later brought Jayson to the Legazpi City Police Station and reported the incident;
that Jayson also underwent medical treatment at the Bicol Regional Training and Teaching Hospital; 5 that the doctors
who examined Jayson issued two medical certificates attesting that Jayson suffered the following contusions, to wit: (1)
contusion .5 x 2.5 scapular area, left; and (2) +1x1 cm. contusion left zygomatic area and contusion .5 x 2.33 cm.
scapular area, left.6
On his part, the petitioner denied having physically abused or maltreated Jayson. He explained that he only talked with
Jayson and Roldan after Mary Ann Rose and Cherrylyn, his minor daughters, had told him about Jayson and Roldan’s
throwing stones at them and about Jayson’s burning Cherrylyn’s hair. He denied shouting invectives at and challenging
Rolando to a fight, insisting that he only told Rolando to restrain his sons from harming his daughters. 7
To corroborate the petitioner’s testimony, Mary Ann Rose testified that her father did not hit or slap but only confronted
Jayson, asking why Jayson had called her daughters "Kimi" and why he had burned Cherrlyn’s hair. Mary Ann Rose
denied throwing stones at Jayson and calling him a "sissy." She insisted that it was instead Jayson who had pelted her
with stones during the procession. She described the petitioner as a loving and protective father. 8
Ruling of the RTC
After trial, the RTC found and declared the petitioner guilty of child abuse as charged, to wit:9
WHEREFORE, in view of the foregoing considerations, judgment is hereby rendered finding the accused GEORGE
BONGALON @ "GI" GUILTY beyond reasonable doubt of Violation of Republic Act No. 7610, and is hereby ordered to
undergo imprisonment of six (6) years and one (1) day to eight (8) years of prision mayor in its minimum period.
SO ORDERED.
Ruling of the CA
On appeal, the petitioner assailed the credibility of the Prosecution witnesses by citing their inconsistencies. He
contended that the RTC overlooked or disregarded material facts and circumstances in the records that would have led
to a favorable judgment for him. He attacked the lack of credibility of the witnesses presented against him, citing the
failure of the complaining brothers to react to the incident, which was unnatural and contrary to human experience.
The CA affirmed the conviction, but modified the penalty,10 viz:
WHEREFORE, premises considered, the decision dated October 20, 2003 of the Regional Trial Court, Branch 9 of
Legazpi City is hereby AFFIRMED with MODIFICATION in that accused-appellant George Bongalon is sentenced to
suffer the indeterminate penalty of (4) years, two (2) months and one (1) day of prision correccional, as minimum term,
to six (6) years, eight (8) months and 1 day of prision mayor as the maximum term.
Further, accused-appellant is ordered to pay the victim, Jayson de la Cruz the additional amount of ₱5,000 as moral
damages.
SO ORDERED.
Issues
The petitioner has come to the Court via a petition for certiorari under Rule 65 of the Rules of Court. 11
The petitioner asserts that he was not guilty of the crime charged; and that even assuming that he was guilty, his liability
should be mitigated because he had merely acted to protect her two minor daughters.
Ruling of the Court
At the outset, we should observe that the petitioner has adopted the wrong remedy in assailing the CA’s affirmance of
his conviction. His proper recourse from the affirmance of his conviction was an appeal taken in due course. Hence, he
should have filed a petition for review on certiorari. Instead, he wrongly brought a petition for certiorari. We explained
why in People v. Court of Appeals: 12
The special civil action for certiorari is intended for the correction of errors of jurisdiction only or grave abuse of
discretion amounting to lack or excess of jurisdiction. Its principal office is only to keep the inferior court within the
parameters of its jurisdiction or to prevent it from committing such a grave abuse of discretion amounting to lack or
excess of jurisdiction. As observed in Land Bank of the Philippines v. Court of Appeals, et al. "the special civil action for
certiorari is a remedy designed for the correction of errors of jurisdiction and not errors of judgment. The raison d’etre for
the rule is when a court exercises its jurisdiction, an error committed while so engaged does not deprived it of the
jurisdiction being exercised when the error is committed. If it did, every error committed by a court would deprive it of its
jurisdiction and every erroneous judgment would be a void judgment. In such a scenario, the administration of justice
would not survive. Hence, where the issue or question involved affects the wisdom or legal soundness of the decision–
not the jurisdiction of the court to render said decision–the same is beyond the province of a special civil action for
certiorari. The proper recourse of the aggrieved party from a decision of the Court of Appeals is a petition for review on
certiorari under Rule 45 of the Revised Rules of Court.
It is of no consequence that the petitioner alleges grave abuse of discretion on the part of the CA in his petition. The
allegation of grave abuse of discretion no more warrants the granting of due course to the petition as one for certiorari if
appeal was available as a proper and adequate remedy. At any rate, a reading of his presentation of the issues in his
petition indicates that he thereby imputes to the CA errors of judgment, not errors of jurisdiction. He mentions instances
attendant during the commission of the crime that he claims were really constitutive of justifying and mitigating
circumstances; and specifies reasons why he believes Republic Act No. 7610 favors his innocence rather than his guilt
for the crime charged.13 The errors he thereby underscores in the petition concerned only the CA’s appreciation and
assessment of the evidence on record, which really are errors of judgment, not of jurisdiction.
Even if we were to treat the petition as one brought under Rule 45 of the Rules of Court, it would still be defective due to Considering that Jayson’s physical injury required five to seven days of medical attention, 19 the petitioner was liable for
its being filed beyond the period provided by law. Section 2 of Rule 45 requires the filing of the petition within 15 days slight physical injuries under Article 266 (1) of the Revised Penal Code, to wit:
from the notice of judgment to be appealed. However, the petitioner received a copy of the CA’s decision on July 15, Article 266. Slight physical injuries and maltreatment. — The crime of slight physical injuries shall be punished:
2005,14 but filed the petition only on September 12, 2005, 15 or well beyond the period prescribed by the Rules of Court.
1. By arresto menor when the offender has inflicted physical injuries which shall incapacitate the offended party for labor
The procedural transgressions of the petitioner notwithstanding, we opt to forego quickly dismissing the petition, and from one to nine days, or shall require medical attendance during the same period.
instead set ourselves upon the task of resolving the issues posed by the petition on their merits. We cannot fairly and
justly ignore his plea about the sentence imposed on him not being commensurate to the wrong he committed. His plea xxxx
is worthy of another long and hard look. If, on the other hand, we were to outrightly dismiss his plea because of the The penalty for slight physical injuries is arresto menor, which ranges from one day to 30 days of imprisonment. 20 In
procedural lapses he has committed, the Court may be seen as an unfeeling tribunal of last resort willing to sacrifice imposing the correct penalty, however, we have to consider the mitigating circumstance of passion or obfuscation under
justice in order to give premium to the rigidity of its rules of procedure. But the Rules of Court has not been intended to Article 13 (6) of the Revised Penal Code, 21 because the petitioner lost his reason and self-control, thereby diminishing
be rigidly enforced at all times. Rather, it has been instituted first and foremost to ensure justice to every litigant. Indeed, the exercise of his will power. 22 Passion or obfuscation may lawfully arise from causes existing only in the honest belief
its announced objective has been to secure a "just, speedy and inexpensive disposition of every action and of the accused.23 It is relevant to mention, too, that in passion or obfuscation, the offender suffers a diminution of
proceeding."16 This objective will be beyond realization here unless the Rules of Court be given liberal construction and intelligence and intent. With his having acted under the belief that Jayson and Roldan had thrown stones at his two
application as the noble ends of justice demand. Thereby, we give primacy to substance over form, which, to a temple of minor daughters, and that Jayson had burned Cherrlyn’s hair, the petitioner was entitled to the mitigating circumstance
justice and equity like the Court, now becomes the ideal ingredient in the dispensation of justice in the case now of passion. Arresto menor is prescribed in its minimum period (i.e., one day to 10 days) in the absence of any
awaiting our consideration. aggravating circumstance that offset the mitigating circumstance of passion. Accordingly, with the Indeterminate
The petitioner’s right to liberty is in jeopardy. He may be entirely deprived of such birthright without due process of law Sentence Law being inapplicable due to the penalty imposed not exceeding one year, 24 the petitioner shall suffer a
unless we shunt aside the rigidity of the rules of procedure and review his case. Hence, we treat this recourse as an straight penalty of 10 days of arresto menor.
appeal timely brought to the Court. Consonant with the basic rule in criminal procedure that an appeal opens the whole The award of moral damages to Jayson is appropriate. Such damages are granted in criminal cases resulting in physical
case for review, we should deem it our duty to correct errors in the appealed judgment, whether assigned or not. 17 injuries.25 The amount of ₱5,000.00 fixed by the lower courts as moral damages is consistent with the current
The law under which the petitioner was charged, tried and found guilty of violating is Section 10 (a), Article VI of jurisprudence.26
Republic Act No. 7610, which relevantly states: WHEREFORE, we SET ASIDE the decision of the Court of Appeals; and ENTER a new judgment: (a) finding petitioner
Section 10. Other Acts of Neglect, Abuse, Cruelty or Exploitation and other Conditions Prejudicial to the Child’s George Bongalon GUlLTY beyond reasonable doubt of the crime of SLIGHT PHYSICAL INJURIES under paragraph 1,
Development. – Article 266, of the Revised Penal Code; (b) sentencing him to suffer the penalty of 10 days of arresto menor; and (c)
ordering him to pay Jayson Dela Cruz the amount of ₱5,000.00 as moral damages, plus the costs of suit.
(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.
xxxx
Child abuse, the crime charged, is defined by Section 3 (b) of Republic Act No. 7610, as follows:
Section 3. Definition of terms. –
xxxx
(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.
xxxx
Although we affirm the factual findings of fact by the RTC and the CA to the effect that the petitioner struck Jayson at the
back with his hand and slapped Jayson on the face, we disagree with their holding that his acts constituted child abuse
within the purview of the above-quoted provisions. The records did not establish beyond reasonable doubt that his
laying of hands on Jayson had been intended to debase the "intrinsic worth and dignity" of Jayson as a human being, or
that he had thereby intended to humiliate or embarrass Jayson. The records showed the laying of hands on Jayson to
have been done at the spur of the moment and in anger, indicative of his being then overwhelmed by his fatherly
concern for the personal safety of his own minor daughters who had just suffered harm at the hands of Jayson and
Roldan. With the loss of his self-control, he lacked that specific intent to debase, degrade or demean the intrinsic worth
and dignity of a child as a human being that was so essential in the crime of child abuse.
It is not trite to remind that under the well-recognized doctrine of pro reo every doubt is resolved in favor of the petitioner
as the accused. Thus, the Court should consider all possible circumstances in his favor. 18
What crime, then, did the petitioner commit?

G.R. No. 198732 CABALLO v. PEOPLE
5
On March 16, 1999, an Information  was filed charging Caballo of violation of Section 10(a), Article VI of RA 7610 which
was later amended on May 28, 1999, to include statements pertaining to the delivery of private complainant
AAA’s6 baby.
The Amended Information7 reads:
That undersigned Second Assistant City Prosecutor hereby accuses Christian Caballo of the crime of Violation of
Section 10 (a) of Republic Act No. 7610, committed as follows:
That in or about the last week of March 1998, and on different dates subsequent thereto, until June 1998, in the City of
Surigao, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, a 23 year old man,
in utter disregard of the prohibition of the provisions of Republic Act No. 7610 and taking advantage of the innocence
and lack of worldly experience of AAA who was only 17 years old at that time, having been born on November 3, 1980,
did then and there willfully, unlawfully and feloniously commit sexual abuse upon said AAA, by persuading and inducing
the latter to have sexual intercourse with him, which ultimately resulted to her untimely pregnancy and delivery of a baby
on March 8, 1999, a condition prejudicial to her development, to the damage and prejudice of AAA in such amount as
may be allowed by law.
CONTRARY TO LAW. Surigao City, Philippines, May 28, 1999.
Upon arraignment, Caballo pleaded not guilty to the aforesaid charges.8
AAA, then 17 years old, met Caballo, then 23 years old, in her uncle’s place in Surigao City. Her uncle was a
choreographer and Caballo was one of his dancers. During that time, AAA was a sophomore college student at the
University of San Carlos and resided at a boarding house in Cebu City. On January 17, 1998, Caballo went to Cebu City
to attend the Sinulog Festival and there, visited AAA. After spending time together, they eventually became
sweethearts.9 Sometime during the third week of March 1998, AAA went home to Surigao City and stayed with her
uncle. In the last week of March of the same year, Caballo persuaded AAA to have sexual intercourse with him. This
was followed by several more of the same in April 1998, in the first and second weeks of May 1998, on August 31, 1998
and in November 1998, all of which happened in Surigao City, except the one in August which occurred in Cebu. 10 In
June 1998, AAA becamepregnant and later gave birth on March 8, 1999. 11
During the trial, the prosecution asserted that Caballo was only able to induce AAA to lose her virginity due to promises
of marriage and his assurance that he would not get her pregnant due to the use of the "withdrawal method." Moreover,
it claimed that Caballo was shocked upon hearing the news of AAA’s pregnancy and consequently, advised her to have
an abortion. She heeded Caballo’s advice; however, her efforts were unsuccessful. Further, the prosecution averred that
when AAA’s mother confronted Caballo to find out what his plans were for AAA, he assured her that he would marry her
daughter.12
Opposed to the foregoing, Caballo claimed that during their first sexual intercourse, AAA was no longer a virgin as he
found it easy to penetrate her and that there was no bleeding. He also maintained that AAA had (3) three boyfriends
prior to him. Further, he posited that he and AAA were sweethearts who lived-in together, for one (1) week in a certain
Litang Hotel and another week in the residence of AAA’s uncle. Eventually, they broke up due to the intervention of
AAA’s parents. At a certain time, AAA’s mother even told Caballo that he was not deserving of AAA because he was
poor. Lastly, he alleged that he repeatedly proposed marriage to AAA but was always rejected because she was still
studying.13
The RTC’s Ruling
In a Decision dated April 1, 2003, the RTC found Caballo guilty beyond reasonable doubt of violation of Section 10(a),
Article VI of RA 7610, in relation to Section 2 of the Rules on Child Abuse Cases. Accordingly, it sentenced Caballo to
suffer imprisonment for an indeterminate period ranging from prision correccional, in its maximum period of four (4)
years, two (2) months and one (1) day, as minimum, to prision mayor in its minimum period of six (6) years, eight (8)
months and one (1) day, as maximum. It also ordered Caballo to pay AAA moral damages in the amount of
₱50,000.00.14
Aggrieved, Caballo elevated the case to the CA.
The CA’s Ruling
In a Decision dated January 28, 2011, 15 the CA dismissed the appeal and affirmed with modification the RTC’s ruling,
finding Caballo guilty of violating Section 5(b), Article III of RA 7610.
It ruled that while the Amended Information denominated the crime charged as violation of Section 10(a), Article VI of
RA 7610, the statements in its body actually support a charge of violation of Section 5(b), Article III of RA 7610. 16
On the merits of the case, it found that the evidence adduced by the prosecution clearly showed that Caballo
persuaded, induced and enticed AAA, then a minor, to have carnal knowledge with him. Towards this end, Caballo
repeatedly assured AAA of his love and even went on to promise marriage to her. He also assured AAA that she would
not get pregnant because he would be using the "withdrawal method." Thus, it was upon these repeated coaxing and
assuring words that AAA succumbed to Caballo’s evil desires which deflowered and got her pregnant. On this score, it
observed that consent is immaterial in child abuse cases involving sexual intercourse and lascivious conduct and
therefore, the sweetheart defense remains unacceptable.17 It also found basis to sustain the award of moral damages.18
The Issue
The core of the present controversy revolves around the interpretation of the phrase "due to the coercion or influence of
any adult" which would thereby classify the victim as a "child exploited in prostitution and other sexual abuse" as found
in Section 5, Article III of RA 7610. Consequently, the interpretation which the Court accords herein would determine
whether or not the CA erred in finding Caballo guilty of violating paragraph (b) of the same proviso.
In his petition, Caballo essentially argues that his promise to marry or his use of the "withdrawal method" should not be
considered as "persuasion" or "inducement" sufficient to convict him for the aforementioned offense, asserting that
these should be coupled with some form of coercion or intimidation to constitute child abuse. He further alleges that he
and AAA were sweethearts which thus, made the sexual intercourse consensual.
In its Comment, respondent advances the argument that there was "sexual abuse" within the purview of RA 7610 as
well as the Rules on Child Abuse Cases since it was only upon Caballo’s repeated assurances and persuasion that AAA
gave in to his worldly desires. Likewise, it points out that the sweetheart theory, as relied on by Caballo, deserves scant
consideration in view of the Court’s ruling in Malto v. People (Malto). 21
The Court’s Ruling
The petition has no merit.
Section 5(b), Article III of RA 7610 pertinently reads:
SEC. 5. Child Prostitution and Other Sexual Abuse. - Children, whether male or female, who for money, profit, or any
other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or
lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse.
The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following: x x x x
(b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subject
to other sexual abuse; Provided, That when the victim is under twelve (12) years of age, the perpetrators shall be
prosecuted under Article 335, paragraph 3 for rape and Article 336 of Act No. 3815, as amended, the Revised Penal
Code, for rape or lascivious conduct, as the case may be; Provided, That the penalty for lascivious conduct when the
victim is under twelve (12) years of age shall be reclusion temporal in its medium period x x x x (Emphasis and
underscoring supplied)
As determined in the case of Olivarez v. CA (Olivarez),22 the elements of the foregoing offense are the following:
(a) The accused commits the act of sexual intercourse or lascivious conduct;
(b) The said act is performed with a child exploited in prostitution or subjected to other sexual abuse; and
(c) The child, whether male or female, is below 18 years of age.
In this case, the existence of the first and third elements remains undisputed. Records disclose that Caballo had
succeeded in repeatedly having sexual intercourse with AAA who, during all those instances, was still a minor. Thus, the
only bone of contention lies in the presence of the second element. On this note, the defense submits that AAA could
not be considered as a "child exploited in prostitution and other sexual abuse" since the incidents to do not point to any
form of "coercion" or "influence" on Caballo’s part.
The argument is untenable.
To put things in proper perspective, it must be pointed out that RA 7610 was meant to advance the state policy of
affording "special protection to children from all forms of abuse, neglect, cruelty, exploitation and discrimination and
other conditions prejudicial to their development" and in such regard, "provide sanctions for their commission." 23 It also
furthers the "best interests of children" and as such, its provisions are guided by this standard. 24
Driven by the foregoing considerations, Congress crafted Article III of the same law in order to penalize child prostitution
and other forms of sexual abuse. Section 5 thereof provides a definition of who is considered a "child exploited in
prostitution and other sexual abuse." As illumined in Olivarez, 25 citing People v. Larin26 and Amployo v. People,27 the
final version of the aforesaid provision was a product of various deliberations to expand its original coverage to cases
where the minor may have been coerced or intimidated into sexual intercourse or lascivious conduct, not necessarily for
money or profit, viz:
The second element, i.e., that the act is performed with a child exploited in prostitution or subjected to other sexual
abuse, is likewise present. As succinctly explained in People v. Larin:
A child is deemed exploited in prostitution or subjected to other sexual abuse, when the child indulges in sexual
intercourse or lascivious conduct (a) for money, profit, or any other consideration; or (b) under the coercion or influence
of any adult, syndicate or group...
It must be noted that the law covers not only a situation in which a child is abused for profit, but also one in which a
child, through coercion or intimidation, engages in lascivious conduct.
We reiterated this ruling in Amployo v. People:
... As we observed in People v. Larin, Section 5 of Rep. Act No. 7610 does not merely cover a situation of a child being
abused for profit, but also one in which a child engages in any lascivious conduct through coercion or intimidation...
Thus, a child is deemed subjected to other sexual abuse when the child indulges in lascivious conduct under the
coercion or influence of any adult. In this case, Cristina was sexually abused because she was coerced or intimidated by
petitioner to indulge in a lascivious conduct. Furthermore, it is inconsequential that the sexual abuse occurred only once.
As expressly provided in Section 3(b) of R.A. 7610, the abuse may be habitual or not. It must be observed that Article III
of R.A. 7610 is captioned as "Child Prostitution and Other Sexual Abuse" because Congress really intended to cover a
situation where the minor may have been coerced or intimidated into lascivious conduct, not necessarily for money or
profit. The law covers not only child prostitution but also other forms of sexual abuse. This is clear from the deliberations
of the Senate:
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 loophole in this section.
The proposal I have is something like this: WHO FOR MONEY, PROFIT, OR ANY OTHER CONSIDERATION OR DUE
TO THE COERCION OR INFLUENCE OF ANY ADULT, SYNDICATE OR GROUP INDULGE, 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 to the child being abused or misused for sexual purposes, only for money or profit.
I am contending, Mr. President, that there may be situations where the child may not have been used for profit or ...
The President Pro Tempore. So, it is no longer prostitution. Because the essence of prostitution is profit.
Senator Angara. Well, the Gentleman is right. Maybe the heading ought to be expanded. But, still, the President will
agree that that is a form or manner of child abuse.
The President Pro Tempore. What does the Sponsor say? Will the Gentleman kindly restate the amendment?
ANGARA AMENDMENT
Senator Angara. The new section will read something like this, Mr. President: MINORS, WHETHER MALE OR
FEMALE, WHO FOR MONEY, PROFIT, OR ANY OTHER CONSIDERATION OR 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 probable ‘child abuse’?
Senator Angara. Yes, Mr. President.
The President Pro Tempore. Subject to rewording. Is there any objection? [Silence] Hearing none, the amendment is
approved. (Emphasis and underscoring supplied)
As it is presently worded, Section 5, Article III of RA 7610 provides that when a child indulges in sexual intercourse or
any lascivious conduct due to the coercion or influence of any adult, the child is deemed to be a "child exploited in
prostitution and other sexual abuse." In this manner, the law is able to act as an effective deterrent to quell all forms of
abuse, neglect, cruelty, exploitation and discrimination against children, prejudicial as they are to their development.
In this relation, case law further clarifies that sexual intercourse or lascivious conduct under the coercion or influence of
any adult exists when there is some form of compulsion equivalent to intimidation which subdues the free exercise of the
offended party’s free will.28 Corollary thereto, Section 2(g) of the Rules on Child Abuse Cases conveys that sexual abuse
involves the element of influence which manifests in a variety of forms. It is defined as:
The employment, use, persuasion, inducement, enticement or coercion of a child to engage in or assist another person
to engage in, sexual intercourse or lascivious conduct or the molestation, prostitution, or incest with children.
To note, the term "influence" means the "improper use of power or trust in any way that deprives a person of free will
and substitutes another’s objective." 29 Meanwhile, "coercion" is the "improper use of x x x power to compel another to
submit to the wishes of one who wields it."30
In view of the foregoing, the Court observes that Caballo’s actuations may be classified as "coercion" and "influence"
within the purview of Section 5, Article III of RA 7610:
First, the most crucial element is AAA’s minority. It is undisputed that AAA was only 17 years old at the time of the
commission of the crime and is hence, considered a child under the law. 31 In this respect, AAA was not capable of fully
understanding or knowing the import of her actions and in consequence, remained vulnerable to the cajolery and
deception of adults, as in this case. Based on this premise, jurisprudence settles that consent is immaterial in cases
involving a violation of Section 5, Article III of RA 7610; as such, the argument that AAA and Caballo were sweethearts
remains irrelevant. The Malto ruling is largely instructive on this point:
For purposes of sexual intercourse and lascivious conduct in child abuse cases under RA 7610, the sweetheart defense
is unacceptable. A child exploited in prostitution or subjected to other sexual abuse cannot validly give consent to sexual
intercourse with another person.
The language of the law is clear: it seeks to punish "those who commit the act of sexual intercourse or lascivious
conduct with a child exploited in prostitution or subjected to other sexual abuse."
Unlike rape, therefore, consent is immaterial in cases involving violation of Section 5, Article III of RA 7610. The mere
act of having sexual intercourse or committing lascivious conduct with a child who is exploited in prostitution or
subjected to sexual abuse constitutes the offense. It is a malum prohibitum, an evil that is proscribed.
A child cannot give consent to a contract under our civil laws. This is on the rationale that she can easily be the victim of
fraud as she is not capable of fully understanding or knowing the nature or import of her actions. The State, as parens
patriae, is under the obligation to minimize the risk of harm to those who, because of their minority, are as yet unable to
take care of themselves fully. Those of tender years deserve its protection.
The harm which results from a child’s bad decision in a sexual encounter may be infinitely more damaging to her than a
bad business deal. Thus, the law should protect her from the harmful consequences of her attempts at adult sexual
behavior. For this reason, a child should not be deemed to have validly consented to adult sexual activity and to
surrender herself in the act of ultimate physical intimacy under a law which seeks to afford her special protection against
abuse, exploitation and discrimination. (Otherwise, sexual predators like petitioner will be justified, or even unwittingly
tempted by the law, to view her as fair game and vulnerable prey.) In other words, a child is presumed by law to be
incapable of giving rational consent to any lascivious act or sexual intercourse. x x x x 32 (Emphasis and underscoring
supplied; citations omitted)
Second, coupled with AAA’s minority is Caballo’s seniority. Records indicate that Caballo was 23 years old at the time of
the commission of the offense and therefore, 6 years older than AAA, more or less. The age disparity between an adult
and a minor placed Caballo in a stronger position over AAA so as to enable him to force his will upon the latter.
Third, Caballo's actions effectively constitute overt acts of coercion and influence.  Records reveal that Caballo
repeatedly assured AAA of his love for her, and even, promised to marry her. In addition, he also guaranteed that she
would not get pregnant since he would be using the "withdrawal method" for safety. Irrefragably, these were meant to
influence AAA to set aside her reservations and eventually give into having sex with him, with which he succeeded.
Fourth, at least, with respect to the parties' first sexual encounter, it is observed that the brash and unexpected manner
in which Caballo pursued AAA to her room and pressed on her to have sex with him, effectively placed her in, to a
certain extent, a position of duress .. An important factor is that AAA refused Caballo's incipient advances and in fact,
asked him to leave. However, AAA eventually yielded. Thus, it stands to reason that she was put in a situation deprived
of the benefit of clear thought and choice. In any case, the Court observes that any other choice would, nonetheless,
remain tarnished due to AAA's minority as above-discussed.
Hence, considering that Caballo's acts constitute "coercion" and "influence" within the context of the law, and that AAA
indulged in sexual intercourse and/or lascivious conduct with Caballo due to the same, she is deemed as a "child
exploited in prostitution and other sexual abuse"; as such, the second element of the subject offense exists.
In fine, finding all elements to be present, the Court hereby sustains Caballo's conviction for violation of Section 5(b),
Article III of RA 7610.
PEOPLE v. PUSING G.R. No. 208009 July 11, 2016
When a female minor alleges rape, "she says in effect all that is necessary to mean that she has been raped." 1
This resolves an appeal of a conviction for two (2) counts of qualified rape and one (1) count of child abuse of a
minor.2 AAA, a minor, is accused-appellant Edilberto Tamor Pusing's (PusingY foster daughter. 3 She, her mother
(Pusing's former live-in partner), and Pusing resided in his house. 4 After AAA's mother's death, Pusing took AAA in his
custody.5 Soon, Pusing had AAA’s aunt, CCC, as his common-law spouse. 6 CCC is the sister of AAA’s mother. 7 They all
lived together.8
On or about April 5, 2004, while they were at home, 9 Pusing allegedly went on top of AAA, put his penis in her mouth,
mashed her breasts, kissed her on the lips, licked her vagina, and inserted his penis into her genital. 10
The next day, AAA’s cousin, BBB (CCC’s son from a previous marriage), came to attend the wake of his brother (CCC’s
other son).11 There, BBB was prodded by Pusing’s neighbor 12 to take AAA in his custody because Pusing allegedly did
something to her.13 Alarmed, BBB took AAA to his house in Manila, where she revealed the rape to BBB and his wife. 14
BBB assisted AAA in filing a complaint before the police. 15 He was referred to the Philippine National Police Crime
Laboratory for AAA’s medical examination. 16 AAA was examined on April 7, 2004. 17
In four (4) separate Informations, Pusing was charged with the rape and abuse of AAA, a 12-year-old 18 minor with the
cognitive ability of a nine-year-old.19 The charging portions in the Informations are as follows:
(a) Criminal Case No. 127823-H charges rape through carnal knowledge of an offended party under 12 years of age or
is demented, under Article 266-A(1)(d),20 in relation to the special qualifying circumstance that the offender knew of the
offended party’s intellectual disability at the time of the commission of the crime, pursuant to Article 266-B(10) 21 of the
Revised Penal Code:
That, on or about the 5th day of April, 2004, in the Municipality of (PPP), Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, taking advantage of his moral authority and influence being the common
law husband of the offended party’s aunt  who acts as the offended party’s guardian, and by means of force, threat and
intimidation, did, then and there willfully, unlawfully and feloniously have sexual intercourse  with one (AAA), a 12 year
old minor, against the latter’s will and consent, the said crime having been attended by the qualifying circumstance that
the offender knew of the mental disability, emotional disorder and/or physical handicap of the offended party at the time
of the commission of the crime, the offended party being a special child with a mental capacity of a 9 year old person ,
aggravated by the circumstances of abuse of superior strength, dwelling and the act having been committed with insult
or in disregard of the respect due the offended party on account of her minority, to the damage and prejudice of said
victim (AAA).22 (Emphasis supplied)
(b) Criminal Case No. 127824-H charges rape through sexual assault by inserting the offender’s penis into the offended
party’s mouth, under Article 266-A(2),23 and the offended party being under 12 years old or demented, under Article 266-
A(1)(d), in relation to the special qualifying circumstance that the offender knew of the offended party’s intellectual
disability at the time of the commission of the crime, pursuant to Article 266-B(10) and (12)24 of the Revised Penal Code:
That, on or about the 5th day of April, 2004, in the Municipality of (PPP), Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, taking advantage of his moral authority and influence being the common
law husband of the offended party’s aunt who acts as the offended party’s guardian, and by means of force, threat and
intimidation, did, then and there willfully, unlawfully and feloniously commit an act of sexual assault by means of
inserting his penis into the mouth  of one (AAA), a 12 year old minor, against the latter’s will and consent, the said crime
having been attended by the qualifying circumstance that the offender knew of the mental disability, emotional disorder
and/or physical handicap of the offended party at the time of the commission of the crime, the offended party being a
special child with a mental capacity of a 9 year old person, aggravated by the circumstances of abuse of superior
strength, dwelling and the act having been committed with insult or in disregard of the respect due the offended party on
account of her minority, to the damage and prejudice of said victim (AAA).25 (Emphasis supplied)
(c) Criminal Case No. 127825-H charges committing lascivious conduct on a victim under 12 years old, pursuant to
Section 5(b)26 of Republic Act No. 7610:
That, on or about the 5th day of April, 2004, in the Municipality of (PPP), Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, actuated by lust, did, then and there willfully, unlawfully and knowing[ly]
commit lascivious act [sic] upon the person of one (AAA), a 12 year old minor with the mental age of a 9 year old child,
by causing (AAA) to masturbate the penis of the accused , against the will and consent of (AAA), thus constituting child
abuse which is an act that is prejudicial to the normal development of said (AAA). 27 (Emphasis supplied)
(d) Criminal Case No. 127826-H charges committing lascivious conduct on a victim under 12 years old, pursuant to
Section 5(b) of Republic Act No. 7610:
That, on or about the 5th day of April, 2004, in the Municipality of (PPP), Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, actuated by lust, did, then and there willfully, unlawfully and knowing[ly]
commit lascivious act [sic] upon the person of one (AAA), a 12 year old minor with the mental age of a 9 year old child,
by mashing the breast[s] and licking the vagina  of the latter against her will and consent, thus constituting child abuse
which is an act that is prejudicial to the normal development of said (AAA).28 (Emphasis supplied)
Five (5) witnesses were presented for the prosecution: AAA, 29 her cousin BBB,30 PCI Joseph Palermo, M.D.,31 Dr. Elma
Tolentino,32 and Police Officer III Dennis B. Salopaguio.33
AAA testified that on the day of the incident, she and Pusing were home when he consummated the act. 34 AAA detailed
what happened:35 Pusing went on top of AAA, inserted his penis into her mouth, mashed her breasts, kissed her on the
lips, licked her vagina, and penetrated her.36
BBB testified that he and his wife found out about what Pusing did after BBB rescued the victim. 37 BBB confirmed that
AAA has been intellectually challenged even before the incident. 38 He added that Pusing was aware of this. 39 According
to BBB, AAA was only 14 years old at the time he discovered the abuse. 40
Dr. Elma Tolentino testified that based on AAA’s October 18, 2006 dental examination, AAA was about 14 years old at
the time of rape.41
On April 16, 2004, Dr. Joseph Palermo issued a Medico-Legal Report finding that AAA had a deep healed laceration,
with "clear evidence of blunt force trauma or penetrating trauma." 42 The Sexual Crime Protocol also concluded that AAA,
being 12 years old but still in Grade 2, is mentally deficient. 43
Two (2) witnesses testified for the defense: Pusing and CCC.44
Pusing testified that when AAA lived with him, he treated her as his adopted daughter; he could not have committed
rape against her.45 He did not know that she was suffering from any intellectual disability. 46 He claimed that the filing of
the case was instigated by BBB, who had ill feelings towards his mother, CCC, and was interested in Pusing’s house
and lot.47 Finally, Pusing alleged that BBB hoped to take over the property, which, by his own admission, was not titled
under his name.48
CCC testified that at the time of the alleged incidents, she and Pusing were busy attending to the wake of her deceased
son, BBB’s sibling.49 She claimed that BBB and Pusing were not in good terms, and BBB caused Pusing’s arrest
because of interest over Pusing’s house. 50 On cross-examination, she admitted that she was not aware how BBB would
benefit in filing the case.51
In the Decision52 dated March 16, 2009, the Regional Trial Court found Pusing guilty beyond reasonable doubt of two (2)
counts of rape and one (1) count of child abuse. The dispositive portion reads:
WHEREFORE, finding accused EDILBERTO PUSING y TAMOR @ EDWIN guilty beyond reasonable doubt, the Court
hereby sentences him as follows:
IN CRIM. CASE No. 127823 for QUALIFIED RAPE – the penalty of Reclusion Perpetua without eligibility for parole; and
to pay AAA the amount of Php50,000.00 as civil indemnity; Php50,000.00 for moral damages and Php25,000.00 for
exemplary damages;
IN CRIM. CASE No. 127824 for QUALIFIED RAPE (of the second kind) – the indeterminate penalty of Six (6) years and
1 day of Prision Mayor as minimum, to Seventeen (17) years and Ten (10) months of Reclusion Temporal, as maximum
and to pay the amount of Php50,000.00 as civil indemnity; Php50,000.00 for moral damages and Php25,000.00 for
exemplary damages;
IN CRIM. CASE No. 127826 for CHILD ABUSE – the indeterminate penalty of Fourteen (14) years and Eight (8) Months
of Reclusion Temporal as minimum to Twenty (20) years of Reclusion Temporal, as maximum and to pay the amount of
Php50,000.00 as civil indemnity; Php50,000.00 for moral damages and Php25,000.00 for exemplary damages.
Meanwhile, accused is ACQUITTED of the crime charged in Crim. Case No. 127825-H for insufficiency of evidence.
SO ORDERED.53 (Emphasis in the original)
In the Decision54 dated August 24, 2012, the Court of Appeals affirmed in toto the Regional Trial Court Decision:
WHEREFORE, premises considered, the appeal is hereby DENIED and the challenged Decision dated 16 March
2009, supra,  is hereby AFFIRMED in toto.
SO ORDERED.55 (Emphasis in the original)
Pusing filed his Notice of Appeal. 56 The Office of the Solicitor General 57 and Pusing58 filed their respective Manifestations
before this Court, noting that they would no longer file supplemental briefs and, instead, adopt their respective
Appellant’s and Appellee’s Briefs.
For resolution is whether accused-appellant Edilberto Tamor Pusing is guilty beyond reasonable doubt of two (2) counts
of qualified rape and one (1) count of child abuse.
Both the Regional Trial Court and the Court of Appeals correctly found accused-appellant guilty beyond reasonable
doubt of:
(a) qualified rape through carnal knowledge under Article 266-A(1)(d) in relation to Article 266-B(6)(10) of the Revised
Penal Code;
(b) qualified rape through sexual assault under Article 266-A(2), in relation to Article 266-A(1)(d) and Article 266-B(6)
(10) and (12) of the Revised Penal Code; and
(c) sexual violence against a minor through the lascivious conduct of mashing her breasts and licking her vagina under
the second and third phrases of Section 5(b) of Republic Act No. 7610, in relation to Article 2(h) of the Implementing
Rules and Regulations of Republic Act No. 7610.
Both the Regional Trial Court and the Court of Appeals likewise correctly dismissed the charge of sexual violence
against a minor by causing the child to masturbate accused-appellant’s penis, as this was never proven in trial.59
For the first charge (rape through carnal knowledge), under the Revised Penal Code, as amended, the first type of rape
is committed as follows:
Article 266-A. Rape: When And How Committed. – Rape is committed:
1) By a man who shall have carnal knowledge  of a woman under any of the following circumstances:
....
d) When the offended party is under twelve (12) years of age  or is demented, even though none of the circumstances
mentioned above be present. (Emphasis supplied)
In People v. Quintos,60 we have defined "‘twelve (12) years of age’ under Article 266-A(1)(d) . . . [as] either the
chronological age of the child if he or she is not suffering from intellectual disability, or the mental age if intellectual
disability is established."61
Rape is qualified for the first charge as accused-appellant committed it with any of the following aggravating/qualifying
circumstances under Article 266-B(6)(1) and (10):62
1) When the victim is under eighteen (18) years of age and the offender is a . . . guardian . . . or the common law spouse
of the parent of the victim;
....
10) When the offender knew of the mental disability . . . of the offended party at the time of the commission of the crime.
For the second charge (rape through sexual assault), under Article 266-A(2), the second type of rape is committed as
follows:
By any person who, under any of the circumstances mentioned in paragraph 1 hereof, shall commit an act of sexual
assault  by inserting his penis into another person’s mouth  or anal orifice, or any instrument or object, into the genital or
anal orifice of another person. (Emphasis supplied)
As accused-appellant committed the act with the qualifying circumstances under Article 266-B(6)(1) and (10), rape is
qualified for the second charge.
For the third charge (sexual violence against a minor through acts of lasciviousness), Republic Act No. 7610 provides
the following elements:
Section 5. Child Prostitution and Other Sexual Abuse.
....
(b) Those who commit the act of . . . lascivious conduct  with a child . . . or subject to other sexual abuse; Provided, That
when the victim is under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335, paragraph 3,
for rape 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[.]63 (Emphasis supplied)
Article 2(h) of the Implementing Rules and Regulations of Republic Act No. 7610 defines lascivious conduct as:
[T]he intentional touching, either directly or through clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks,
or the introduction of any object into the genitalia, anus or mouth, of any person, whether of the same or opposite sex,
with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person, bestiality,
masturbation, lascivious exhibition of the genitals or pubic area of a person[.] 64
A careful examination of the records shows that there is nothing that would warrant a reversal of the Decisions of the
Regional Trial Court and the Court of Appeals. When a woman, especially a minor, 65 alleges rape, "she says in effect all
that is necessary to mean that she has been raped."66
It is settled that "factual findings of the trial court and its evaluation of the credibility of witnesses and their testimonies
are entitled to great respect and will not be disturbed on appeal, unless the trial court is shown to have overlooked,
misapprehended, or misapplied any fact or circumstance of weight and substance."67
The prosecution satisfactorily established the elements to prove that accused-appellant raped and sexually abused
AAA, a 12-year-old minor with the cognitive ability of a nine-year-old. In People v. Dalipe:68
[A] young girl’s revelation that she had been raped, coupled with her voluntary submission to medical examination and
willingness to undergo public trial where she could be compelled to give out the details of an assault on her dignity,
cannot be so easily dismissed as mere concoction.69
As pointed out by the Court of Appeals, several circumstances, which have been duly established from the evidence,
point to the conclusion that accused-appellant is responsible for the crimes charged against him.
On the two (2) charges of rape and one (1) charge of child abuse, AAA clearly and consistently communicated how
accused-appellant forced or intimidated her into having sexual congress with him. 70 He put his penis in her mouth (rape
through sexual assault) and inserted his penis into her vagina (rape through carnal knowledge). 71 He mashed her
breasts and kissed her on the lips and on her vagina (child abuse through acts of lasciviousness). 72
The lacerations sustained by AAA in her vagina, which, as Dr. Joseph Palermo testified, could have been caused by a
penetration, show that carnal knowledge happened. 73 Lacerations, whether fresh or healed, are the best physical
evidence of rape.74
As to the circumstances qualifying rape, the prosecution established that the victim is under 18 years old and that the
offender is her guardian.75 Dr. Elma Tolentino’s testimony and AAA’s dental record prove AAA’s minority. 76 AAA’s
cousin, BBB, also confirmed this on the basis of the birth certificate that BBB obtained from their grandmother, 77 which
the defense never refuted.78 AAA is accused-appellant’s foster daughter. She, her mother (accused-appellant’s former
live-in partner), and accused-appellant resided in his house. After AAA’s mother passed away, accused-appellant took
AAA in his custody. Soon, accused-appellant took AAA’s aunt, CCC, as his common-law spouse. They all lived
together.
The prosecution also established that accused-appellant knew that AAA was intellectually challenged at the time of the
offense. BBB testified that accused-appellant knew that AAA was intellectually challenged "even before the
incident."79 Accused-appellant himself admitted that he considered AAA his "adopted daughter." 80 Thus, he would have
known of her condition.
In addition, the Sexual Crime Protocol and Dr. Joseph Palermo’s testimony show AAA’s mental age to be nine (9) years
old. This makes the victim less than 12 years old, in light of our ruling in Quintos. The act is, therefore, classified as
statutory rape under Article 266-A(1)(d) of the Revised Penal Code.
The Regional Trial Court and the Court of Appeals correctly found that the victim’s testimony is credible. Given her Thus, we impose the indeterminate penalty of 14 years, eight (8) months, and one (1) day of  reclusion temporal  as
cognitive "immaturity and lowly intelligence," she "could not have concocted a tale of pure fantasy out of a mere minimum, to 17 years and four (4) months of reclusion temporal  as maximum.1âwphi1
imagination."81 AAA likewise spontaneously cried during direct examination, a tell-tale sign of her credibility.82 Further, in view of the depravity of the acts committed by accused-appellant against his nine-year-old foster daughter,
As against these details and testimonies, all that accused-appellant offered in defense were denials and alibis, defenses we increase the amounts awarded to AAA, in accordance with jurisprudence:
which jurisprudence has long considered weak and unreliable.83 For qualified rape through carnal knowledge, we modify the award of civil indemnity from ₱50,000.00 to ₱100,000.00;
The Regional Trial Court properly found, as affirmed by the Court of Appeals, 84 that the testimonies of AAA, BBB, and moral damages from ₱50,000.00 to ₱100,000.00; and exemplary damages from ₱25,000.00 to ₱100,000.00.97
the medico-legal officer of the Philippine National Police, among others, were consistent with each other and with the For qualified rape through sexual assault, we modify the award of civil indemnity from ₱50,000.00 to ₱100,000.00;
physical evidence.85 There was no showing that the witnesses for the prosecution had ill motives to testify against moral damages from ₱50,000.00 to ₱100,000.00; and exemplary damages from ₱25,000.00 to ₱100,000.00.98
accused-appellant. Their testimonies are, therefore, accorded full faith and credence. 86
For acts of lasciviousness against AAA, we retain the award of civil indemnity and moral damages of ₱50,000.00, but
In sum, the Regional Trial Court and the Court of Appeals did not err in finding accused-appellant guilty beyond increase the exemplary damages from ₱25,000.00 to ₱30,000.00.99
reasonable doubt of two (2) counts of qualified rape and one (1) count of child abuse.
In addition, interest at the rate of 6% per annum  shall be imposed on all damages awarded from the date of finality of
The Regional Trial Court,87 as affirmed by the Court of Appeals, 88 imposed an indeterminate penalty of six (6) years and this judgment until fully paid.100
one (1) day of prision mayor  as minimum to 17 years and 10 months of reclusion temporal.89 We modify this penalty for
the second charge (rape through sexual assault) under Article 266-A(2) of the Revised Penal Code. WHEREFORE, this Court ADOPTS the findings of fact and conclusions of law of the Court of Appeals Decision dated
August 24, 2012 in CA-G.R. CR.-H.C. No. 04052, with MODIFICATION as follows:
Article 266-B(10) of the Revised Penal Code states that the penalty of reclusion temporal  shall be imposed if the rape
through sexual assault is committed with any of the 10 aggravating/qualifying circumstances  listed in paragraph 6. WHEREFORE, finding accused EDILBERTO PUSING y TAMOR @ EDWIN guilty beyond reasonable doubt, the Court
hereby sentences him as follows:
In this case, the aggravating/qualifying circumstances of relationship and minority (Article 266-B(6)(1)) and the
offender’s knowledge of the victim’s intellectual disability (Article 266-B(6)(10)) are present. The rape was committed by IN CRIM. CASE No. 127823 for QUALIFIED RAPE (through carnal knowledge)  - the penalty of Reclusion Perpetua
a guardian or the common-law spouse of AAA’s mother against the offended party’s foster child, whom he knew had the without eligibility for parole; and to pay AAA the amount of P100,000.00  as civil indemnity; P100,000.00  for moral
cognitive ability of a nine-year-old. damages, and P100,000.00  for exemplary damages;
In view of the aggravating circumstances present, the penalty prescribed by the Revised Penal Code (i.e. reclusion IN CRIM. CASE No. 127824 for QUALIFIED RAPE (through sexual assault)  - the indeterminate penalty of twelve (12)
temporal) under Article 266-B(10) shall be in its maximum period. 90 Therefore, we impose the indeterminate sentence of years  of Prision Mayor as minimwn, to twenty (20) years  of Reclusion Temporal, as maximum, and to pay the amount
12 years of prision mayor  as minimum and 20 years of reclusion temporal  as maximum. of P100,000.00  as civil indemnity; P100,000.00  for moral damages and P100,000.00  for exemplary damages;
Between rape of a minor under the Revised Penal Code and that under Republic Act No. 7610, the higher penalty must IN CRIM. CASE No. 127826 for CHILD ABUSE – the indeterminate penalty of Fourteen (14) years, Eight (8) months
be applied for the minor victim’s benefit. This Court has held that imposing a lower penalty for the offender "is and one (1) day  of Reclusion Temporal as minimum, to Seventeen (17)  years and Four (4) months  of Reclusion
undeniably unfair to the child victim." 91 Thus, in People v. Chingh92 and People v. Ricalde,93 this Court meted the higher Temporal as maximwn, and to pay the amount of P50,000.00 as civil indemnity; P50,000.00 for moral damages,
penalty stated in Republic Act No. 7610 94 (i.e. reclusion temporal  in its medium period) instead of the lower penalty and P30,000.00  for exemplary damages.
stated in the Revised Penal Code (i.e. prision mayor). All awards for damages shall earn interest at the legal rate of 6% per annum from the date of finality of this judgment
In this case, there is no need to apply the penalty under Republic Act No. 7610. The penalty for the crime of rape, being until fully paid.  101
qualified pursuant to Article 266-B(6)(1) and (10) of the Revised Penal Code, is already for the minor victim’s benefit. Meanwhile, accused is ACQUITTED of the crime charged in Crim. Case No. 127825-H for insufficiency of evidence.
Unlike in Chingh  and Ricalde, this case has aggravating circumstances. Applying these aggravating circumstances
qualifies the rape and allows for a higher penalty of reclusion temporal  in its maximum period, instead of
simply reclusion temporal  in the medium period under Republic Act No. 7610.
In People v. Bonaagua:95
It must be clarified . . . that the reasoning expounded by the Court in the recent case of  People v. Armando Chingh y
Parcia,  for imposing upon the accused the higher penalty provided in Section 5 (b), Article III of R.A. No. 7610, has no
application in the case at bar.
....
In the present case, the factual milieu was different since the offender, Ireno [Bonaagua], is the father of the minor
victim. Hence, the offenses were committed with the aggravating/qualifying circumstances of minority and relationship,
attendant circumstances which were not present in the Chingh  case, which in turn, warrants the imposition of the higher
penalty of reclusion temporal  prescribed by Article 266-B of the R[evised] P[enal] C[ode]. Considering that the R[evised]
P[enal] C[ode] already prescribes such penalty, the rationale of unfairness to the child victim that  Chingh  wanted to
correct is absent. Hence, there is no more need to apply the penalty prescribed by R.A. No. 7610. 96 (Emphasis supplied,
citations omitted)
We also modify the penalty for the third charge (sexual violence against a minor through acts of lasciviousness) under
Republic Act 7610. The Court of Appeals imposed the indeterminate penalty of 14 years and eight (8) months
of reclusion temporal  as minimum to 20 years of reclusion temporal.
Article III, Section 5(b) of Republic Act No. 7610 provides that "the penalty for lascivious conduct when the victim is
under twelve (12) years of age shall be reclusion temporal  in its medium period." The penalty of reclusion temporal  in its
medium period is 14 years, eight (8) months, and one (1) day to 17 years and four (4) months.