PEOPLE OF THE PHILIPPINES vs.

SALVADOR TULAGAN
G.R. No. 227363 March 12, 2019
Facts:
The information charging Salvador Tulagan alleged that sometime in September 2011
Tulagan, by means of force, intimidation and with abuse of superior strength inserted
his finger into the vagina of AAA, against her will and consent. In another information it
was alleged that on or about October 8, 2011, Tulagan by means of force, intimidation
and with abuse of superior strength had sexual intercourse with AAA, a nine-year-old
minor against her will and consent. The Regional Trial Court convicted Tulagan of the
crimes of sexual assault and statutory rape as defined and penalized under Article 266-
A, paragraphs 2 and 1(d) of the Revised Penal Code, respectively, in relation to Article
266-B. The Regional Trial Court found that the prosecution successfully discharged the
burden of proof in two offenses of rape against the nine-year-old victim, AAA. It held
that all the elements of sexual assault and statutory rape was duly established. The trial
court relied on the credible and positive declaration of AAA as against the alibi and
denial of Tulagan. Tulagan was sentenced to suffer the penalty of reclusion perpetua for
statutory rape and six years of prision correccional, as minimum, to twelve years of
prision mayor, as maximum for sexual assault. Upon appeal, the CA affirmed with
modification Tulagan’s conviction of sexual assault and statutory rape.
Issue: Whether or not the Tulagan was convicted of the correct crime and whether or
not the proper penalty was imposed.
Held:
No. Both the RTC and the CA found AAA’s testimony to be credible, straightforward and
unwavering when she testified that Tulagan forcibly inserted his finger in her vagina.
Furthermore, both the RTC and CA found that the elements of statutory rape were
present, to wit: (1) accused has carnal knowledge of the victim, and (2) said act was
accomplished when the offended party is under twelve years of age. Indubitably, the
courts a quo found that the prosecution was able to prove beyond reasonable doubt
Tulagan’s guilt for the crime of rape.
In instances where the lascivious conduct committed against a child victim is covered by
the definition under RA 7610, and the act is likewise covered by sexual assault under
Article 266-A paragraph 2 of the RPC, the offender should be held liable for violation of
Section 5(b), Article III of RA 7610.
If the acts constituting sexual assault are committed against a victim under twelve years
of age or is demented, the nomenclature of the offense should now be “Sexual Assault
under paragraph 2, Article 266-A of the RPC in relation to Section 5(b) of RA 7610” and
no longer “Acts of Lasciviousness under Article 336 of the RPC in relation to Section
5(b) of RA 7610,” because sexual assault as a form of acts of lasciviousness is no
longer covered by Article 336 but by Article 266-A(2) of the RPC, as amended.
If the victim is twelve years old and under eighteen years old, or eighteen years old and
above but is unable to fully take care of herself/himself or protect herself/himself from
abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental
disability or condition, the nomenclature of the crime should be “Lascivious Conduct
under Section 5(b) of RA 7610” with the imposable penalty of reclusion temporal in its
medium to reclusion perpetua, but it should not make any reference to the provisions of
the RPC. It is only when the victim of the sexual assault is eighteen years old and
above, and not demented, that the crime should be called as “Sexual Assault under
paragraph 2, Article 266-A of the RPC.”
Under Section 5(b) of RA 7610, the proper penalty when sexual intercourse is
committed with a victim who is under 12 years of age or is demented is reclusion
perpetua, pursuant to paragraph 1(d), Article 266-A in relation to Article 266-B of the
RPC, as amended by RA 8353.
We rule that the act of sexual intercourse with a child exploited in prostitution or subject
to other sexual abuse, when the offended party is under twelve years of age or is
demented, the perpetrators shall be prosecuted under Article 335, paragraph 3 for rape.
We find that the opinion in Malto, that a child is presumed by law to be incapable of
giving rational consent, unduly extends the concept of statutory rape or acts of
lasciviousness to those victims who are within the range of 12 to 17 years old, and even
those 18 years old and above under special circumstances who are still considered as
“children” under Section 3(a) of RA 7610. While Malto is correct that consent is
immaterial in cases under RA 7610 where the offended party is below 12 years of age,
We clarify that consent of the child is material and may even be a defense in criminal
cases involving violations of Section 5, Article III of RA 7610 when the offended party is
12 years old or below 18, or above 18 under special circumstances. Such consent may
be implied from the failure to prove that said victim engaged in sexual intercourse either
“due to money, profit or any other consideration or due to coercion or influence of any
adult, syndicate or group.”
Violation of the first clause of Section 5(b), Article III of RA 7610 on sexual intercourse
with a child exploited in prostitution or subject to other sexual abuse, is separate and
distinct from statutory rape under paragraph 1(d), Article 266-A of the RPC. Aside from
being dissimilar in the sense that the former is an offense under special law, while the
latter is a felony under the RPC, they also have different elements. Nevertheless, sexual
intercourse with a victim who is under 12 years of age or is demented is always
statutory rape, as Section 5(b) of RA 7610 expressly states that the perpetrator will be
prosecuted under Article 335, paragraph of the RPC (now paragraph 1(d), Article 266-A
of the RPC as amended by RA 8353). The same reason holds true with respect to acts
of lasciviousness or lascivious conduct when the offended party is less than 12 years
old or is demented. Even if such party consents to the lascivious conduct, the crime is
always statutory acts of lasciviousness. The offender will be prosecuted under Article
336 of the RPC, but the penalty is provided for under Section 5(b) of RA 7610.
Meanwhile, if the sexual intercourse is committed with a child under 12 years of age,
who is deemed to be “exploited in prostitution and other sexual abuse,” then those
engaged in or promote, facilitate or induce child prostitution under Section 5(a) of RA
7610 shall be liable as principal by force or inducement under Article 17 of the RPC in
the crime of statutory rape under Article 266-A(1) of the RPC; whereas those who
derive profit or advantage therefrom under Section 5(c) of RA 7610 shall be liable as
principal by indispensable cooperation under Article 17 of the RPC.
If the victim who is 12 years old or less than 18 and is deemed to be a child “exploited in
prostitution and other sexual abuse” but she agreed to indulge in sexual intercourse “for
money, profit or any other consideration or due to coercion or influence of any adult,
syndicate or group,” then the crime could not be rape under the RPC as it no longer falls
under the concept of statutory rape, and there was consent. That is why the offender
will now be penalized under Section 5(b), RA 7610. But if the victim does not give her
consent to sexual intercourse in the sense that the sexual intercourse was committed
through force, threat or intimidation, the crime is rape under paragraph 1, Article 266-A
of the RPC. However, if the same victim gave her consent to the sexual intercourse,
and no money, profit, consideration, coercion or influence is involved, then there is no
crime committed, except in those cases where “force, threat or intimidation” as an
element of rape is substituted by “moral ascendancy or moral authority,” unless it is
punished as qualified seduction or simple seduction.
Tulagan was correctly prosecuted for sexual assault under paragraph 2, Article 266-A of
the RPC because it was alleged and proven that AAA was nine years old at the time he
inserted his finger into her vagina. Instead of applying the penalty under Article 266-B of
the RPC, which is prision mayor, the proper penalty should be that provided in Section
5(b), Article III of RA 7610, which is reclusion temporal in its medium period. This is
because AAA was below 12 years old at the time of the commission of the offense, and
that the act of inserting his finger in AAA’s private part undeniably amounted to
“lascivious conduct.” Hence, the proper nomenclature of the offense should be Sexual
Assault under paragraph 2, Article 266-A of the RPC, in relation to Section 5(b), Article
III of RA 7610. For statutory rape, We affirm that Tulagan should suffer the penalty of
reclusion perpetua in accordance with paragraph 1(d), Article 266-A in relation to Article
266-B of the RPC, as amended by RA 8353.