In interpreting Section 5(b) of Republic Act No. 7610 or the Special Protection of Children Against Abuse, Exploitation and Discrimination Act, the bar and the bench had been relying on the jurisprudential teachings in Quimvel and Tulagan. However, the Supreme Court, sitting en banc, in a recent case (G.R. N0. 260233 & 266039), pointed out that its pronouncements in Tulagan that “it is not required to determine whether the prosecution’s evidence focuses on “coercion and influence” or “force and intimidation” in deciding which law applies, further blurred the line or distinction between charges under Republic Act No. 7610 and those under the Revised Penal Code.
Thus, in the same case, the Highest Court decided to revisit its teachings regarding Section 5(b) of Republic Act No. 7610 – and to resolve, once and for all, whether all case of sexual abuse committed against minors must be prosecuted under Republic Act No. 7610.
The laws that were discussed and harmonized in the said case are Section 5(b) of Republic 7610, Act of Lascivious under Article 336 of the Revised Penal Code and Republic Act 8353 as amended by Republic Act 11648.
At the outset, Section 5(b) of RA 7610 reads as follows:
SECTION 5, Child Prostitution and Other Sexual Abuse. – Children, whether male or female, who for money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse.
(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 (16) years of age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and Article 336 of Act No. 3815, as amended, 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 (16) years of age shall be reclusion temporal in its medium period.
Acts of Lasciviousness, under Article 336 of the Revised Penal Code, on the other hand, states:
Any person who shall commit any act of lasciviousness upon other persons of either sex, under any of the circumstances mentioned in the preceding article, shall be punished by prision correccional.
The circumstances mentioned under Article 335 of the Revised Penal Code are as follows: (1) By using force or intimidation; (2) When the woman is deprived of reason or otherwise unconscious; and (3) When the woman is under sixteen (16) years of age even though neither of the circumstance mentioned in the two next preceding paragraphs shall be present.
As the Court explained in the recent case, the term “sexual abuse,” as defined under Republic Act No. 7610, encompasses situations wherein a minor indulges or, put differently, consents, albeit defectively-to engage in sexual intercourse or lascivious conduct as a result of coercion or undue influence exerted by an adult .
The presence-or, at the very least, the semblance-of consent on the part of the minor, which justifies the application of Republic Act No. 7610, is reinforced by Section 2(g) of the law’s Implementing Rules and Regulations. The IRR defines sexual abuse as including the employment, use, persuasion, inducement, enticement, or coercion of a child to engage in, or assist another person to engage .in, sexual intercourse or lascivious conduct or the molestation, prostitution, or incest with children
A review of Section 2(g) leads to the conclusion that the word “engage” suggests active participation by the child, who is not merely a passive victim of sexual abuse but engages in it precisely due to the “employment, use, persuasion, inducement, enticement, or coercion”· exerted by the adult. Indeed, the use of the word “engage” clearly indicates the legislature’s intent for Republic Act No. 7610 to cover situations where a child consents, albeit with the consent being defective. It is not designed to cover acts where the minor is completely unconscious, overpowered, or unwilling from the outset.
Also, if the victim is 16 years old but less than 18 and is deemed to be a child ”exploited to prostitution and other sexual abuse” because she agreed to the sexual intercourse ”for money, profit or any other consideration or due to coercion or influence of any adult, syndicate or group,”. The crime committed is Violation of Section 5(b) of Republic Act No. 7610. The law, in effect, acknowledges that minors subjected to such circumstances may have consented to the act or the transaction. Still, their consent cannot be deemed free, genuine, and fully informed. Accordingly, the law recognizes the child’s inherent vulnerability and the exploitative nature of the situation.
With this it is settled, that if a minor (16) years of age but less than 18) indulges or consents – though defective – to the sexual intercourse or lascivious conduct for money, profit or any other consideration or due to coercion or influence of any adult, syndicate or group, the offender is penalized under Section 5(b) of Republic Act No. 7610.
The provision contemplates a semblance of consent that is defective or vitiated – where the minor allows, yields, or participates in the act not through free will but because of the coercion or influence exerted by an adult. Such coercion or influence is distinct from the concepts of force or intimidation under the Revised Penal Code. Therefore, when the minor’s participation is induced by pressure, manipulation or abuse of authority that does not rise to the level of force or intimidation, Section 5(b) properly applies.
When the lascivious conduct is committed through force or intimidation, or when the victim is deprived of reason, unconscious or otherwise subjected to fraudulent machination or grave abuse of authority, the proper charges is Acts of Lasciviousness under Article 336 of the Revised Penal Code.
Lastly, if the victim is below 16 years old, considering that they are deemed under the law to be incapable of giving consent, the offense committed is either rape or acts of lasciviousness under the Revised Penal Code as the case may be.