G.R. No.

171863             August 20, 2008 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
PEOPLE OF THE PHILIPPINES, petitioner,
accepted defense in this special law. He violated then Republic Act No. 7610, Section 10(a) which
vs.
provides:
THE HONORABLE COURT OF APPEALS (Second Division) and GASPAR OLAYON, respondents.

Section 10(a) – Any person who shall commit any other acts of child abuse, cruelty or
DECISION
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
CARPIO MORALES, J.: of prision mayor in its minimum period.

The then 22-year old herein respondent Gaspar Olayon was charged with violation of Section 10(a) of Republic Act x x x x6 (Emphasis and underscoring supplied)
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
Thus the trial court disposed:
to be the victim.

WHEREFORE, Gaspar Olayon y Matubis a.k.a Eric Ramirez is found guilty beyond reasonable doubt for
Criminal Case No. 112571 alleged that
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
On or about 10:00 a.m. of January 27, 1997 in Taguig, Metro Manila and within the jurisdiction of this (4) months of prision mayor for each count. He is acquitted in Criminal Case No. 116350.
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
Costs against the accused.
minor, fourteen (14) years of age.1 (Underscoring supplied)

SO ORDERED.7
Criminal Case No. 112572 alleged that

On appeal by respondent,8 the Court of Appeals, answering in the negative the issue of whether consensual sexual
On or about 2:00 p.m. of January 27, 1997 in Taguig, Metro Manila and within the jurisdiction of this
intercourse with a minor is classified as child abuse under Section 10 of RA No. 7610, reversed the trial court’s
Honorable Court, the accused, with lewd designs, did then and there willfully, unlawfully and
decision and acquitted respondent, by Decision9 of January 13, 2006, reasoning as follows:
feloniously have sexual intercourse with and commit lewd and lascivious acts upon the person of [AAA], a
minor, fourteen (14) years of age.2 (Underscoring supplied)
"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:
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. 3 The three cases were jointly tried.4 Sec. 3. Definition of Terms –

After trial, Branch 158 of the Pasig City RTC, by Decision of January 15, 2002, acquitted respondent in Criminal (a) x x x
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:
(b) "Child Abuse" refers to maltreatment, whether habitual or not, of the child which includes any of the
following:
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
1) Psychological and physical abuse, neglect, cruelty, sexual abuse and emotional
of [AAA]. Although the testimony of [AAA] denies she consented to the sexual liaisons, the evidence did
maltreatment;
not support it.

2) Any act or deeds [sic] or words [sic] which debases, degrades or demeans the intrinsic worth
The events that occurred on January 27, 1997 at the house of one Duke Espiritu show that [AAA] went
and dignity of a child as a human being;
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 3) Unreasonable deprivation of his basic needs for survival, such as food and shelter; or
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
4) Failure to immediately give medical treatment to an injured child resulting in serious
shouted for help since it was located near a road and a pathway. x x x
impairment of his growth and development or in his permanent incapacity or death.

xxxx

1
 Consensual sexual intercourse between OLAY[O]N and [AAA] does not fall under the "sexual abuse" The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the
definition [in Section 5 of R.A. No. 7610] which is a completely distinct and separate offense from "child following:
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
xxxx
reads as follows:

(b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in
Sec. 5. Child Prostitution and Other Sexual Abuse – Children, whether male or female, who for
prostitution or subject to other sexual abuse; Provided, That when the victims is under twelve (12) years of
money, profit or any other consideration or due to the coercion or influence of any adult,
age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and Article 336 of Act
syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be
No. 3815, as amended, the Revised Penal Code, for rape or lascivious conduct, as the case may be:
children exploited in prostitution and other sexual abuse.
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)
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
As Section 10 refers to acts of child abuse prejudicial to the child’s development other than child prostitution and
case at bench, neither coercion nor intimidation were found to have been present,  consent having been
other sexual abuse16 under Section 5, attempt to commit child prostitution, 17 child trafficking,18 attempt to commit child
freely given.10 (Emphasis, italics and underscoring supplied)
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
Hence, the present petition for certiorari11 of the People under Rule 65, alleging that the Court of Appeals acted with offense from ‘child abuse’ [as defined under Section 10]."
grave abuse of discretion amounting to lack or excess of jurisdiction
Consensual sexual intercourse or even acts of lasciviousness with a minor who is 12 years old or older could
x x x IN ACQUITTING RESPONDENT OLAYON OF THE TWO (2) COUNTS OF CHILD ABUSE UNDER constitute a violation of Section 5(b) of R.A. No. 7610. For Section 5(b) punishes sexual intercourse or lascivious
SECTION 10(A) OF R.A. 7610 DESPITE THE FACT THAT THE SEXUAL ACTS COMMITTED BY conduct not only with a child exploited in prostitution but also with a child subjected to other sexual abuse.21
RESPONDENT OLAYON ON THE MINOR PRIVATE COMPLAINANT ARE CLEARLY  WITHIN THE
TERM "OTHER ACTS OF NEGLECT, ABUSE, CRUELTY OR EXPLOITATION AND OTHER
Section 2(g) of the Rules and Regulations on the Reporting and Investigation of Child Abuse Cases, promulgated to
CONDITIONS PREJUDICIAL TO THE CHILD’S DEVELOPMENT" DECLARED PUNISHABLE UNDER
implement R.A. No. 7610, defines "sexual abuse" as including "the employment, use, persuasion, inducement,
SECTION 10(A) OF R.A. 7610.12 (Emphasis and underscoring supplied)
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)
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
For consensual sexual intercourse or lascivious conduct with a minor, who is not exploited in prostitution, to thus fall
[Republic] Act No. 7610," hence, its filing of the above-quoted Informations for violation of Section 10(a).14
within the purview of Section 5(b) of R.A. No. 7610, "persuasion, inducement, enticement or coercion" of the child
must be present.
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
In People v. Larin,22 the information alleged that the therein accused took advantage of his authority, influence, and
age."15
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:
Section 10(a) of R.A. No. 7610 under which respondent was charged in each of the two cases provides:
It must be noted that [Republic Act No. 7610] covers not only a situation in which a child is abused for
SECTION 10. Other Acts of Neglect, Abuse, Cruelty or Exploitation and Other Conditions Prejudicial to profit, but also one in which a child, through coercion or intimidation, engages in any lascivious
the Child's Development. — conduct.25 (Emphasis and underscoring supplied)

(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. (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.
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.
SO ORDERED.

2
3
G.R. No. 177752               February 24, 2009
PEOPLE OF THE PHILIPPINES, Appellant,
vs.
ROBERTO ABAY y TRINIDAD, Appellee.
DECISION
CORONA, J.:
On March 8, 2000, appellant Roberto Abay y Trinidad was charged with rape in relation to Section 5(b), Article III of
RA 7610 in the Regional Trial Court (RTC) of Manila, Branch 41 under the following Information:
That sometime in December 1999, in the City of Manila, Philippines, [appellant] by means of force and intimidation,
did then and there willfully, unlawfully and knowingly commit sexual abuse and lascivious conduct against [AAA], a
minor, 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 vagina, thus succeeded in having carnal knowledge of her, against her will and consent thereafter
threatening to kill her should she report the incident, thereby gravely endangering her survival and normal growth
and development, to the damage and prejudice of [AAA].
CONTRARY TO LAW.
Appellant pleaded not guilty during arraignment.
During trial, the prosecution presented AAA, her mother BBB and expert witness Dr. Stella Guerrero-Manalo of the
Child Protection Unit of the Philippine General Hospital as its witnesses.
AAA testified that appellant, her mother’s live-in partner, had been sexually abusing her since she was seven years
old. Whenever her mother was working or was asleep in the evening, appellant would threaten her with a bladed
instrument2 and force her to undress and engage in sexual intercourse with him.
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 761012 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
(except paragraph 1[d]) of the Revised Penal Code. However, the offender cannot be accused of both crimes18 for
the same act because his right against double jeopardy will be prejudiced. A person cannot be subjected twice to
criminal liability for a single criminal act.19 Likewise, rape cannot be complexed with a violation of Section 5(b) of RA
7610. Under Section 48 of the Revised Penal Code (on complex crimes), 20 a felony under the Revised Penal Code
(such as rape) cannot be complexed with an offense penalized by a special law.21
In this case, the victim was more than 12 years old when the crime was committed against her. The Information
against appellant stated that AAA was 13 years old at the time of the incident. Therefore, appellant may be
prosecuted either for violation of Section 5(b) of RA 7610 or rape under Article 266-A (except paragraph 1[d]) of the
Revised Penal Code. While the Information may have alleged the elements of both crimes, the prosecution’s
evidence only established that appellant sexually violated the person of AAA through force and intimidation 22 by
threatening her with a bladed instrument and forcing her to submit to his bestial designs. Thus, rape was
established.23
Indeed, the records are replete with evidence establishing that appellant forced AAA to engage in sexual intercourse
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 pay AAA ₱75,000 as civil indemnity ex-delicto24 and ₱75,000 as moral damages.25
WHEREFORE, the January 18, 2007 decision of the Court of Appeals in CA-G.R. CR-H.C. No. 01365 is
hereby AFFIRMED with modification. Appellant Roberto Abay y Trinidad is hereby found GUIILTY of simple rape
and is sentenced to suffer the penalty of reclusion perpetua. He is further ordered to pay AAA ₱75,000 as civil
indemnity ex-delicto, ₱75,000 as moral damages and ₱25,000 as exemplary damages.
Costs against appellant.
4
SO ORDERED.
G.R. No. 174473               August 17, 2007
THE PEOPLE OF THE PHILIPPINES, Appellee,
vs.
ALVIN ABULON y SALVANIA, Appellant.
DECISION
TINGA, J.:
For automatic review is the decision1 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 Informations4 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.23 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.24
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 and to indemnify the
offended party [AAA] the following sums:
5
 ₱ 75,000.00 - as civil indemnity We affirm the decision of the Court of Appeals with modifications.

50,000.00 - as moral damages; and 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
50,000.00 - as exemplary damages.
reason to justify the reversal of the evaluations and conclusions of the trial court, the reviewing court is generally
bound by the former’s findings.31
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 In rape cases particularly, the conviction or acquittal of the accused most often depends almost entirely on the
Article 335 of the Revised Penal Code, as amended by Rep. Act No. 7639, otherwise known as the DEATH credibility of the complainant’s testimony. By the very nature of this crime, it is generally unwitnessed and usually the
PENALTY LAW, and hereby sentences him to suffer the SUPREME PENALTY of DEATH and to indemnify the victim is left to testify for herself.32 Her testimony is most vital and must be received with the utmost caution. 33 When a
offended party [AAA] the following sums: rape victim’s testimony, however, is straightforward and marked with consistency despite grueling examination, it
deserves full faith and confidence and cannot be discarded. Once found credible, her lone testimony is sufficient to
sustain a conviction.34
₱ 75,000.00 - as civil indemnity

50,000.00 - as moral damages; and The court a quo found the testimony of AAA in its entirety to be credible, made in a candid, spontaneous, and
straightforward manner and never shaken even under rigid cross-examination. 35 We agree that AAA’s narration of
50,000.00 - as exemplary damages. her harrowing experience is worthy of credence, thus:

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.
The accused is further ordered to pay the costs of the instant three (3) cases.
SO ORDERED.25
Criminal Case No. SC-7422
Trial Prosecutor:
Q : Tell us what happened at around 1:30 in the morning of March 11, [sic] 1999 to you?
A : My brother and sister and I were already asleep when my father who was drank [sic] came home. We
told him to just sleep. My father told us that he would still return to the wedding celebration (kasalan).

With the death penalty imposed on appellant, the case was elevated to this Court on automatic review. However, xxxx
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 Q : What happened next when you continued sleeping?
awarded to the victim. The dispositive portion of the decision states: A : I was awakened when I felt my father already on top of me, sir.
Q : Tell us exactly what was [sic] your position then at that time you woke up?
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 A : I was still lying straight down, sir.
rape, and in Criminal Case No. SC-7424, finding appellant guilty beyond reasonable doubt of the crime of acts of Q : How about your father in relation to you, where was he at the time you woke up?
lasciviousness, are hereby AFFIRMED.
A : He was on top (nakadagan) of me, sir.

The civil aspect of the case is MODIFIED to read: In Criminal Case Nos. SC-7422-7423, the award of exemplary Court:
damages in the amount of [₱]50,000.00 is reduced to [₱]25,000.00. In Criminal Case No. SC-7424, appellant is Q : Was he naked?
ordered to pay the victim the amount of [₱]30,000.00 as moral damages. We affirm in all other respects.
A : Already naked, Your Honor.

Pursuant to A.M. 00-5-03-SC (Amendments to the Revised Rule of Criminal Procedure to Govern Death Penalty Q : How about you, do [sic] you have your clothes on?
Cases), which took effect on October 15, 2004, this case is elevated and certified to the Supreme Court for its A : I have [sic] my lady sando on, Your Honor.
automatic review.
Trial Prosecutor:
Q : Are [sic] you still wearing your panty when you were awakened?
SO ORDERED.27
A : No more, sir.
28
In his Brief,  appellant assails his conviction and imputes grave error to the trial court for giving weight and credence xxxx
to the testimony of AAA. In particular, he makes capital of AAA’s delay in reporting the incidents to her mother. He
Q : What did your father do aside from placing his body on top of you?
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 A : He poked a knife on [sic] me, sir.
force and/or intimidation.29
6
Court: Q : What was happening?
Q : Did he say something? A : His private part stiffened or hardened (tumirik), Your Honor.
A : Yes, Your Honor. Q : Where was it placed if any?
Q : What did he say? A : Into my private part, Your Honor.
A : He said that if he [sic] report her [sic] to anybody he would kill us, Your Honor. Q : Did the private part of you father actually penetrate your vagina?
xxxx A : Yes, Your Honor.
Trial Prosecutor: Q : What did you feel at the time the penis of your father entered your vagina?
Q : What else did he do aside from telling you "huag kang magsusumbong"? A : It was painful, Your Honor.
A : He also poked the knife on [sic] my brother and sister, sir. Q : At that time was your father making any movement?
Q : They were already awakened at that time? A : Yes, Your Honor.
A : Yes, sir. Q : Will you describe the movement made by your father?
Q : What else did he do aside from poking a knife on [sic] you and your brother and sister? A : (Witness demonstrating an upward and downward stroke by placing her right palm over her left hand)
A : No more, sir. Trial Prosecutor:
Court: Q : Did he kiss you?
Q : While your father according to you is [sic] on top of you, what did he do if any? A : Yes, sir.
A : "Kinayog na po niya ako." Q : In what part of your body?
Q : What do you mean by telling [sic] "kinayog na po niya ako"? A : On my mouth, sir.
A : He was moving, Your Honor. Q : Aside from your mouth, what other part or parts of your body did he kiss?
Q : While your father was moving, what else was happening at that time? A : On my private part, sir.
A : I felt pain, Your Honor. Q : When did he kiss you private part, before inserting his penis or after?
Trial Prosecutor: A : After he inserted his penis, sir.
Q : From where did you feel that pain? Q : What other part of your body did he kiss?
A : From my private part, sir. A : On my breast, sir.36
xxxx xxxx
Q : Do you know if you know why you felt the pain on the lower portion of your body? Criminal Case No. SC-7423
A : Yes, sir. TP. Arcigal, Jr.:
Q : Please tell us if you know? Q : Now, you said that the second incident happened [on] March 15, 1999, am I correct?
A : Something whitish coming out from it, sir. A : Yes, sir.
Court: Q : And where and what time said [sic] second incident happened?
Q : From where did it come from [sic]? That whitish substance? A : 10:30 in the evening, sir, also in our house, sir.
A : From my father’s private part, Your Honor. xxxx
Q : Why, what happened to the private part of your father? Q : And what were you doing when your father returned at around 11:00 o’clock in the evening?
A : I do not know, Your Honor. A : We were all asleep, sir.
Q : When you felt pain, what was your father doing then? Q : And how did you come to know that he returned at around 11:00 P.M.?
A : He repeated what he told [sic] previously not to tell to [sic] anybody. A : My father suddenly held my hand, sir.
Q : At that time, did you see the private part of your father? Q : And because of that, you were awakened?
A : Yes, Your Honor. A : Yes, sir.
Q : When you felt pain. Do you know what is [sic] happening to the private part of your father? Q : And what happened when you were awakened because your father held your hand?
A : Yes, Your Honor. A : He covered my mouth, sir.

7
Q : And after covering your mouth, what else did he do? A : His eyes were red and he was laughing at me while telling me: "It is your end." (Witness crying while
A : He removed the lower portion of my clothes. "Hinubuan po niya ako." answering the question.)
xxxx Q : Now, what happened when your father was able to hold your dress?
Q : After removing your lady sando, what else did he do? A : He carried me upstairs, sir.
A : He laid himself on top of me, sir. Q : Was he able to carry you upstairs?
xxxx A : Yes, sir.
Q : Now, what did he do to you when he was already on top of you? Q : What did he do, if any, when you were upstairs?
A : He was "kinakayog niya po ako." A : He removed my panty and shortpants, sir.
Q : Aside from "kinakayog," what else did he do? Q : After removing your shorts and panty, what else did he do?
A : He kissed my breast, sir. A : No more but he kissed my vagina.
Q : Aside from that, what else? Q : Which part of your vagina did he kiss?
A : He likewise touched my private part, sir. A : That part of my vagina with hold [sic].
Q : When he was on top of you, do you know where was [sic] his penis at that time? Court:
A : Yes, sir. Q : What about your upper garments at that time?
Q : Where? A : He did not remove it, Your Honor.
A : Into my vagina, sir. Q : What else did he do, aside from that?
Q : How did you come to know that the penis of your father was inside your vagina? A : Nothing more, just that.
A : I felt pain in my private part, sir. Q : After kissing your vagina, what else happened, if any?
Q : And do you know why you felt pain in your private part? A : He again poked the knife on us, Your Honor.
A : Yes, sir. Q : At that time, was your father naked or not?
Q : Why? A : Still with his clothes on, Your Honor.
A : His private part …. (Thereafter witness is crying while uttering words: "I am afraid I might be killed by xxxx
my father.") He held his penis into my vagina. Thereafter, inserted it repeatedly into mine, sir. Q : For clarification, what else, if any, did your father do after your father kissed your vagina?
Q : And you were able to actually feel his penis inside your vagina? A : Nothing more, merely that act, Your Honor.
A : Yes, sir. 37 Q : You mean your father did not insert his penis to [sic] your vagina anymore?
xxxx A : No more, Your Honor.
Criminal Case No. SC-7424 xxxx
TP. Arcigal, Jr.: TP. Arcigal, Jr.:
Q : Now, you said also that you were raped on March 16, 1999, am I correct? Q : Now, what did he use in kissing your clitoris?
A : Yes, sir. A : His tongue, sir.
Q : What time? Q : How did you come to know that it was his tongue that he used?
A : It was 3:30 o’clock in the morning, sir. A : It is because I saw him put out his tongue, sir.38
xxxx
TP. Arcigal, Jr.: Verily, it is inconceivable and contrary to human experience for a daughter, who is attached to her father by the
natural bond of love and affection, to accuse him of rape, unless he is the one who raped and defoliated her.39 As we
Q Now, how did it happen, that third incident?
have pronounced in People v. Canoy:40
A I was able to run downstairs but when I was about to open the door, he was able to hold my dress, sir.
Q : Was your father drunk at that time? It is unthinkable for a daughter to accuse her own father, to submit herself for examination of her most intimate parts,
put her life to public scrutiny and expose herself, along with her family, to shame, pity or even ridicule not just for a
A : Yes, sir.
simple offense but for a crime so serious that could mean the death sentence to the very person to whom she owes
Q : How did you come to know? her life, had she really not have been aggrieved. Nor do we believe that the victim would fabricate a story of rape

8
simply because she wanted to exact revenge against her father, appellant herein, for allegedly scolding and
maltreating her.41
In stark contrast with AAA’s convincing recital of facts, supported as it was by the testimonies of BBB and CCC, are
appellant’s uncorroborated and shaky defenses of denial and alibi. Nothing is more settled in criminal law
jurisprudence than that alibi and denial cannot prevail over the positive and categorical testimony and identification of
the 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 merit credibility.44
The records disclose that not a shred of evidence was adduced by appellant to corroborate his alibi. Alibi must be
supported by credible corroboration from disinterested witnesses, otherwise, it is fatal to the accused. 45 Further, for
alibi to prosper, it must be demonstrated that it was physically impossible for appellant to be present at the place
where the crime was committed at the time of its commission. 46 By his own testimony, appellant clearly failed to show
that it was physically impossible for him to have been present at the scene of the crime when the rapes were alleged
to have occurred. Except for the first incident, appellant was within the vicinity of his home and in fact alleged that he
was supposedly even sleeping therein on the occasion of the second and third incidents.1avvphi1
Appellant’s contention that AAA’s accusations are clouded by her failure to report the alleged occurrences of rape is
unmeritorious. To begin with, AAA categorically testified that she told her father’s niece about the incidents.
However, the latter doubted her, believing instead that appellant was not that kind of man. AAA’s subsequent attempt
to report the incidents to the barangay turned out to be futile as well as she was only able to speak with the barangay
driver, who happened to be appellant’s brother-in-law. She was likewise disbelieved by the latter. Her disclosure of
the rapes to a certain Menoy did not yield any positive result either. Fearing for the lives of her grandparents, AAA
decided not to tell them about the incidents.47
A child of thirteen years cannot be expected to know how to go about reporting the crime to the authorities. 48 Indeed,
We see how AAA must have felt absolutely hopeless since the people around her were relatives of her father and
her attempts to solicit help from them were in vain. Thus, AAA’s silence in not reporting the incidents to her mother
and filing the appropriate case against appellant for over a month is sufficiently explained. The charge of rape is
rendered doubtful only if the delay was unreasonable and unexplained. 49 It is not beyond ken that the child, living
under threat from appellant and having been turned away by trusted relatives, even accused by them of lying, would
simply opt to just suffer in silence thereafter. In People v. Gutierrez,50 we held:
Complainant’s failure to immediately report the rape does not diminish her credibility. The silence of a victim of rape
or her failure to disclose her misfortune to the authorities without loss of material time does not prove that her charge
is baseless and fabricated. It is not uncommon for young girls to conceal for some time the assault on their virtues
because of the rapist’s threat on their lives, more so when the offender is someone whom she knew and who was
living with her.51
Appellant brands the trial judge as partial against him for propounding leading questions to AAA. According to him,
were it not for the lower court’s and the prosecution’s biased leading questions, AAA would not have proven the
elements of the crimes charged.52
Appellant’s argument is not well-taken. It is the judge’s prerogative to ask clarificatory queries to ferret out the
truth.53 It cannot be taken against him if the questions he propounds reveal certain truths which, in turn, tend to
destroy the theory 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 both parties in accord with the stringent demands of due process. 55 Also, being the
arbiter, he may properly intervene in the presentation of evidence to expedite proceedings and prevent unnecessary
waste of time.56
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.
9
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.
SO ORDERED.
10
G.R. No. 169533               March 20, 2013 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
GEORGE BONGALON, Petitioner,
challenging Rolando to a fight, insisting that he only told Rolando to restrain his sons from harming his daughters.7
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
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
DECISION
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
BERSAMIN, J.:
Ruling of the RTC
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
After trial, the RTC found and declared the petitioner guilty of child abuse as charged, to wit:9
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.
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
The Case
to undergo imprisonment of six (6) years and one (1) day to eight (8) years of prision mayor in its minimum period.

On June 22, 2005, 2 the Court of Appeals (CA) affirmed the conviction of the petitioner for the crime of child abuse
SO ORDERED.
under Section 10 (a) of Republic Act No. 7610.

Ruling of the CA
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,
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:

Grade VI pupil of MABA Institute, Legazpi City, acts of physical abuse and/or maltreatment by striking said JAYSON
WHEREFORE, premises considered, the decision dated October 20, 2003 of the Regional Trial Court, Branch 9 of
DELA CRUZ with his palm hitting the latter at his back and by slapping said minor hitting his left cheek and uttering
Legazpi City is hereby AFFIRMED with MODIFICATION in that accused-appellant George Bongalon is sentenced to
derogatory remarks to the latter’s family to wit: "Mga hayop kamo, para dayo kamo digdi, Iharap mo dito ama mo"
suffer the indeterminate penalty of (4) years, two (2) months and one (1) day of prision correccional, as minimum
(You all animals, you are all strangers here. Bring your father here), which acts of the accused are prejudicial to the
term, to six (6) years, eight (8) months and 1 day of prision mayor as the maximum term.
child’s development and which demean the intrinsic worth and dignity of the said child as a human being.

Further, accused-appellant is ordered to pay the victim, Jayson de la Cruz the additional amount of ₱5,000 as moral
CONTRARY TO LAW.3
damages.

The Prosecution showed that on May 11, 2002, Jayson Dela Cruz (Jayson) and Roldan, his older brother, both
SO ORDERED.
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 Issues
"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
The petitioner has come to the Court via a petition for certiorari under Rule 65 of the Rules of Court.11
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 The petitioner asserts that he was not guilty of the crime charged; and that even assuming that he was guilty, his
suffered the following contusions, to wit: (1) contusion .5 x 2.5 scapular area, left; and (2) +1x1 cm. contusion left liability should be mitigated because he had merely acted to protect her two minor daughters.
zygomatic area and contusion .5 x 2.33 cm. scapular area, left.6
Ruling of the Court

11
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 its being filed beyond the period provided by law. Section 2 of Rule 45 requires the filing of the petition within
15 days from the notice of judgment to be appealed. However, the petitioner received a copy of the CA’s decision on
July 15, 2005,14 but filed the petition only on September 12, 2005,15 or well beyond the period prescribed by the
Rules of Court.
The procedural transgressions of the petitioner notwithstanding, we opt to forego quickly dismissing the petition, and
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 is worthy of another long and hard look. If, on the other hand, we were to outrightly dismiss his plea because of
the procedural lapses he has committed, the Court may be seen as an unfeeling tribunal of last resort willing to
sacrifice justice in order to give premium to the rigidity of its rules of procedure. But the Rules of Court has not been
intended to be rigidly enforced at all times. Rather, it has been instituted first and foremost to ensure justice to every
litigant. Indeed, its announced objective has been to secure a "just, speedy and inexpensive disposition of every
action and proceeding."16 This objective will be beyond realization here unless the Rules of Court be given liberal
construction and application as the noble ends of justice demand. Thereby, we give primacy to substance over form,
which, to a temple of justice and equity like the Court, now becomes the ideal ingredient in the dispensation of justice
in the case now awaiting our consideration.
The petitioner’s right to liberty is in jeopardy. He may be entirely deprived of such birthright without due process of
law unless we shunt aside the rigidity of the rules of procedure and review his case. Hence, we treat this recourse as
an appeal timely brought to the Court. Consonant with the basic rule in criminal procedure that an appeal opens the
whole case for review, we should deem it our duty to correct errors in the appealed judgment, whether assigned or
not.17
The law under which the petitioner was charged, tried and found guilty of violating is Section 10 (a), Article VI of
Republic Act No. 7610, which relevantly states:
Section 10. Other Acts of Neglect, Abuse, Cruelty or Exploitation and other Conditions Prejudicial to the Child’s
Development. –
(a) Any person who shall commit any other acts of child abuse, cruelty or exploitation or be responsible for other
conditions prejudicial to the child’s development including those covered by Article 59 of Presidential Decree No.
603, as amended, but not covered by the Revised Penal Code, as amended, shall suffer the penalty of prision mayor
in its minimum period.
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?
Considering that Jayson’s physical injury required five to seven days of medical attention,19 the petitioner was liable
for slight physical injuries under Article 266 (1) of the Revised Penal Code, to wit:
Article 266. Slight physical injuries and maltreatment. — The crime of slight physical injuries shall be punished:
12
1. By arresto menor when the offender has inflicted physical injuries which shall incapacitate the offended party for
labor from one to nine days, or shall require medical attendance during the same period.

xxxx

The penalty for slight physical injuries is arresto menor, which ranges from one day to 30 days of imprisonment. 20 In
imposing the correct penalty, however, we have to consider the mitigating circumstance of passion or obfuscation
under Article 13 (6) of the Revised Penal Code,21 because the petitioner lost his reason and self-control, thereby
diminishing the exercise of his will power. 22 Passion or obfuscation may lawfully arise from causes existing only in the
honest belief of the accused.23 It is relevant to mention, too, that in passion or obfuscation, the offender suffers a
diminution of intelligence and intent. With his having acted under the belief that Jayson and Roldan had thrown
stones at his two minor daughters, and that Jayson had burned Cherrlyn’s hair, the petitioner was entitled to the
mitigating circumstance of passion. Arresto menor is prescribed in its minimum period (i.e., one day to 10 days) in
the absence of any aggravating circumstance that offset the mitigating circumstance of passion. Accordingly, with the
Indeterminate Sentence Law being inapplicable due to the penalty imposed not exceeding one year, 24 the petitioner
shall suffer a straight penalty of 10 days of arresto menor.

The award of moral damages to Jayson is appropriate. Such damages are granted in criminal cases resulting in
physical injuries.25 The amount of ₱5,000.00 fixed by the lower courts as moral damages is consistent with the
current jurisprudence.26

WHEREFORE, we SET ASIDE the decision of the Court of Appeals; and ENTER a new judgment: (a) finding
petitioner George Bongalon GUlLTY beyond reasonable doubt of the crime of SLIGHT PHYSICAL INJURIES under
paragraph 1, 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.

SO ORDERED.

13
G.R. No. 198732               June 10, 2013 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
CHRISTIAN CABALLO, Petitioner,
consequently, advised her to have an abortion. She heeded Caballo’s advice; however, her efforts were
vs.
unsuccessful. Further, the prosecution averred that when AAA’s mother confronted Caballo to find out what his plans
PEOPLE OF THE PHILIPPINES, Respondent.
were for AAA, he assured her that he would marry her daughter.12

Before the Court is a petition for review on certiorari 1 assailing the January 28, 2011 Decision2 and September 26,
Opposed to the foregoing, Caballo claimed that during their first sexual intercourse, AAA was no longer a virgin as he
2011 Resolution3 of the Court of Appeals (CA) in CA-G.R. CR No. 27399-MIN which affirmed with modification the
found it easy to penetrate her and that there was no bleeding. He also maintained that AAA had (3) three boyfriends
April 1, 2003 Decision of the Regional Trial Court of Surigao City, Branch 30 (RTC), finding petitioner Christian
prior to him. Further, he posited that he and AAA were sweethearts who lived-in together, for one (1) week in a
Caballo (Caballo) guilty beyond reasonable doubt of violating Section 10(a), Article VI of Republic Act No. 7610 4 (RA
certain Litang Hotel and another week in the residence of AAA’s uncle. Eventually, they broke up due to the
7610), otherwise known as the "Special Protection of Children Against Child Abuse, Exploitation and Discrimination
intervention of AAA’s parents. At a certain time, AAA’s mother even told Caballo that he was not deserving of AAA
Act," in relation to Section 2 of the Rules and Regulations on the Reporting and Investigation of Child Abuse Cases
because he was poor. Lastly, he alleged that he repeatedly proposed marriage to AAA but was always rejected
(Rules on Child Abuse Cases).
because she was still studying.13

The Facts
The RTC’s Ruling

On March 16, 1999, an Information 5 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:
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

That in or about the last week of March 1998, and on different dates subsequent thereto, until June 1998, in the City Aggrieved, Caballo elevated the case to the CA.
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
The CA’s Ruling
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 In a Decision dated January 28, 2011, 15 the CA dismissed the appeal and affirmed with modification the RTC’s ruling,
pregnancy and delivery of a baby on March 8, 1999, a condition prejudicial to her development, to the damage and finding Caballo guilty of violating Section 5(b), Article III of RA 7610.
prejudice of AAA in such amount as may be allowed by law.
It ruled that while the Amended Information denominated the crime charged as violation of Section 10(a), Article VI of
CONTRARY TO LAW. RA 7610, the statements in its body actually support a charge of violation of Section 5(b), Article III of RA 7610.16

Surigao City, Philippines, May 28, 1999. 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
Upon arraignment, Caballo pleaded not guilty to the aforesaid charges.8
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.
Based on the records, the undisputed facts are as follows: 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
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 Caballo filed a motion for reconsideration which was, however, denied on September 26, 2011.19
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
Hence, the instant petition.
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 The Issue
Cebu.10 In June 1998, AAA becamepregnant and later gave birth on March 8, 1999.11

14
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,20 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
xx
(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.
15
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.1âwphi1 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.
16
WHEREFORE, the petition is DENIED. The January 28, 2011 Decision and September 26, 2011 Resolution of the
Court of Appeals in CAG.R. CR No. 27399-MIN are hereby AFFIRMED.

SO ORDERED .

17
G.R. No. 208009
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee
vs.
EDILBERTO PUSING y TAMOR, Accused-Appellant
RESOLUTION
LEONEN, J.:
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
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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
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:

Pusing testified that when AAA lived with him, he treated her as his adopted daughter; he could not have committed (a) qualified rape through carnal knowledge under Article 266-A(1)(d) in relation to Article 266-B(6)(10) of the
rape against her.45 He did not know that she was suffering from any intellectual disability.46 He claimed that the filing Revised Penal Code;
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
(b) qualified rape through sexual assault under Article 266-A(2), in relation to Article 266-A(1)(d) and Article 266-B(6)
not titled under his name.48
(10) and (12) of the Revised Penal Code; and

CCC testified that at the time of the alleged incidents, she and Pusing were busy attending to the wake of her
(c) sexual violence against a minor through the lascivious conduct of mashing her breasts and licking her vagina
deceased son, BBB’s sibling.49 She claimed that BBB and Pusing were not in good terms, and BBB caused Pusing’s
under the second and third phrases of Section 5(b) of Republic Act No. 7610, in relation to Article 2(h) of the
arrest because of interest over Pusing’s house.50 On cross-examination, she admitted that she was not aware how
Implementing Rules and Regulations of Republic Act No. 7610.
BBB would benefit in filing the case.51

Both the Regional Trial Court and the Court of Appeals likewise correctly dismissed the charge of sexual violence
In the Decision52 dated March 16, 2009, the Regional Trial Court found Pusing guilty beyond reasonable doubt of two
against a minor by causing the child to masturbate accused-appellant’s penis, as this was never proven in trial.59
(2) counts of rape and one (1) count of child abuse. The dispositive portion reads:

For the first charge (rape through carnal knowledge), under the Revised Penal Code, as amended, the first type of
WHEREFORE, finding accused EDILBERTO PUSING y TAMOR @ EDWIN guilty beyond reasonable doubt, the
rape is committed as follows:
Court hereby sentences him as follows:

Article 266-A. Rape: When And How Committed. – Rape is committed:

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; 1) By a man who shall have carnal knowledge of a woman under any of the following circumstances:

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
d) When the offended party is under twelve (12) years of age or is demented, even though none of the
Php25,000.00 for exemplary damages;
circumstances mentioned above be present. (Emphasis supplied)

IN CRIM. CASE No. 127826 for CHILD ABUSE – the indeterminate penalty of Fourteen (14) years and Eight (8)
In People v. Quintos,60 we have defined "‘twelve (12) years of age’ under Article 266-A(1)(d) . . . [as] either the
Months of Reclusion Temporal as minimum to Twenty (20) years of Reclusion Temporal, as maximum and to pay the
chronological age of the child if he or she is not suffering from intellectual disability, or the mental age if intellectual
amount of Php50,000.00 as civil indemnity; Php50,000.00 for moral damages and Php25,000.00 for exemplary
disability is established."61
damages.

Rape is qualified for the first charge as accused-appellant committed it with any of the following
Meanwhile, accused is ACQUITTED of the crime charged in Crim. Case No. 127825-H for insufficiency of evidence.
aggravating/qualifying circumstances under Article 266-B(6)(1) and (10):62

SO ORDERED.53 (Emphasis in the original)

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;
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.
10) When the offender knew of the mental disability . . . of the offended party at the time of the commission of the
crime.
SO ORDERED.55 (Emphasis in the original)
For the second charge (rape through sexual assault), under Article 266-A(2), the second type of rape is committed
Pusing filed his Notice of Appeal.56 The Office of the Solicitor General57 and Pusing58 filed their respective as follows:
Manifestations before this Court, noting that they would no longer file supplemental briefs and, instead, adopt their
respective Appellant’s and Appellee’s Briefs.

19
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
cognitive "immaturity and lowly intelligence," she "could not have concocted a tale of pure fantasy out of a mere
imagination."81 AAA likewise spontaneously cried during direct examination, a tell-tale sign of her credibility.82
As against these details and testimonies, all that accused-appellant offered in defense were denials and alibis,
defenses which jurisprudence has long considered weak and unreliable.83
The Regional Trial Court properly found, as affirmed by the Court of Appeals, 84 that the testimonies of AAA, BBB,
and the medico-legal officer of the Philippine National Police, among others, were consistent with each other and
with the physical evidence.85 There was no showing that the witnesses for the prosecution had ill motives to testify
against accused-appellant. Their testimonies are, therefore, accorded full faith and credence.86
In sum, the Regional Trial Court and the Court of Appeals did not err in finding accused-appellant guilty beyond
reasonable doubt of two (2) counts of qualified rape and one (1) count of child abuse.
The Regional Trial Court,87 as affirmed by the Court of Appeals, 88 imposed an indeterminate penalty of six (6) years
and 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.
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.
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 a guardian or the common-law spouse of AAA’s mother against the offended party’s foster child, whom he knew
had the cognitive ability of a nine-year-old.
In view of the aggravating circumstances present, the penalty prescribed by the Revised Penal Code (i.e. reclusion
temporal) under Article 266-B(10) shall be in its maximum period. 90 Therefore, we impose the indeterminate
sentence of 12 years of prision mayor as minimum and 20 years of reclusion temporal as maximum.
20
Between rape of a minor under the Revised Penal Code and that under Republic Act No. 7610, the higher penalty For acts of lasciviousness against AAA, we retain the award of civil indemnity and moral damages of ₱50,000.00, but
must be applied for the minor victim’s benefit. This Court has held that imposing a lower penalty for the offender "is increase the exemplary damages from ₱25,000.00 to ₱30,000.00.99
undeniably unfair to the child victim."91 Thus, in People v. Chingh92 and People v. Ricalde,93 this Court meted the
higher penalty stated in Republic Act No. 7610 94 (i.e. reclusion temporal in its medium period) instead of the lower
In addition, interest at the rate of 6% per annum shall be imposed on all damages awarded from the date of finality of
penalty stated in the Revised Penal Code (i.e. prision mayor).
this judgment until fully paid.100

In this case, there is no need to apply the penalty under Republic Act No. 7610. The penalty for the crime of rape,
WHEREFORE, this Court ADOPTS the findings of fact and conclusions of law of the Court of Appeals Decision
being qualified pursuant to Article 266-B(6)(1) and (10) of the Revised Penal Code, is already for the minor victim’s
dated August 24, 2012 in CA-G.R. CR.-H.C. No. 04052, with MODIFICATION as follows:
benefit.

WHEREFORE, finding accused EDILBERTO PUSING y TAMOR @ EDWIN guilty beyond reasonable doubt, the
Unlike in Chingh and Ricalde, this case has aggravating circumstances. Applying these aggravating circumstances
Court hereby sentences him as follows:
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 CRIM. CASE No. 127823 for QUALIFIED RAPE (through carnal knowledge) - the penalty of Reclusion Perpetua
without eligibility for parole; and to pay AAA the amount of P100,000.00 as civil indemnity; P100,000.00 for moral
In People v. Bonaagua:95
damages, and P100,000.00 for exemplary damages;

It must be clarified . . . that the reasoning expounded by the Court in the recent case of People v. Armando Chingh y
IN CRIM. CASE No. 127824 for QUALIFIED RAPE (through sexual assault) - the indeterminate penalty of twelve
Parcia, for imposing upon the accused the higher penalty provided in Section 5 (b), Article III of R.A. No. 7610, has
(12) years of Prision Mayor as minimwn, to twenty (20) years of Reclusion Temporal, as maximum, and to pay the
no application in the case at bar.
amount of P100,000.00 as civil indemnity; P100,000.00 for moral damages and P100,000.00 for exemplary
damages;
....
IN CRIM. CASE No. 127826 for CHILD ABUSE – the indeterminate penalty of Fourteen (14) years, Eight (8) months
In the present case, the factual milieu was different since the offender, Ireno [Bonaagua], is the father of the minor and one (1) day of Reclusion Temporal as minimum, to Seventeen (17) years and Four (4) months of Reclusion
victim. Hence, the offenses were committed with the aggravating/qualifying circumstances of minority and Temporal as maximwn, and to pay the amount of P50,000.00 as civil indemnity; P50,000.00 for moral damages,
relationship, attendant circumstances which were not present in the Chingh case, which in turn, warrants the and P30,000.00 for exemplary damages.
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
All awards for damages shall earn interest at the legal rate of 6% per annum from the date of finality of this
victim that Chingh wanted to correct is absent. Hence, there is no more need to apply the penalty prescribed by R.A.
judgment until fully paid.  101
No. 7610.96 (Emphasis supplied, citations omitted)

Meanwhile, accused is ACQUITTED of the crime charged in Crim. Case No. 127825-H for insufficiency of evidence.
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. SO ORDERED.

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.

Thus, we impose the indeterminate penalty of 14 years, eight (8) months, and one (1) day of reclusion temporal as
minimum, to 17 years and four (4) months of reclusion temporal as maximum.1âwphi1

Further, in view of the depravity of the acts committed by accused-appellant against his nine-year-old foster
daughter, we increase the amounts awarded to AAA, in accordance with jurisprudence:

For qualified rape through carnal knowledge, we modify the award of civil indemnity from ₱50,000.00 to
₱100,000.00; moral damages from ₱50,000.00 to ₱100,000.00; and exemplary damages from ₱25,000.00 to
₱100,000.00.97

For qualified rape through sexual assault, we modify the award of civil indemnity from ₱50,000.00 to ₱100,000.00;
moral damages from ₱50,000.00 to ₱100,000.00; and exemplary damages from ₱25,000.00 to ₱100,000.00.98

21