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Acts of lasciviousness

First Posted 13:47:00 02/27/2008

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For an accused to be convicted of child abuse through lascivious conduct on a minor below 12 years of age, ?the requisites for acts of lasciviousness under Article 336 of the RPC must be met in addition to the requisites for sexual abuse under Section 5 of Rep. Act No. 7610.? Section 5, Article III of RA No. 7610 enumerates the elements of sexual abuse as follows:
(1) The accused commits the act of sexual intercourse or lascivious conduct; (2) The said act is performed with a child exploited in prostitution or subjected to other sexual abuse; and (3) The child, whether male or female, is below 18 years of age.

The earlier-quoted Information filed against petitioner did not allege the presence of the above-listed second element of Section 5, Article III of RA No. 7610 ? that the act is performed with a child exploited in prostitution or subjected to other sexual abuse. In fact no attempt was made to prove that element, for it would have violated petitioner?s right to be informed of his constitutional right to be informed of the nature and cause of the accusation against him.

Petitioner could not thus have been held liable under Section 5(b), Article III of RA No. 7610. No doubt, the information charges petitioner with Acts of Lasciviousness under Article 336 of the Revised Penal Code, the elements of which are as follows: (1) That the offender commits any act of lasciviousness or lewdness; (2) That it is done under any of the following circumstances:
a. By using force or intimidation; or b. When the offended party is deprived of reason or otherwise unconscious; or c. When the offended party is under 12 years of age; and (3) That the offended party is another person of either sex.

Petitioner argues that the failure of the prosecution to present the physician who prepared the medico-legal report renders the report hearsay and violates his constitutional right to confront a witness testifying against him.

The argument does not persuade. The medico-legal report is not essential in establishing guilt in a case for acts of lasciviousness, the sole testimony of the private complainant being sufficient for the purpose.

In cases of acts of lasciviousness, the lone testimony of the offended party, if credible, is sufficient to establish the guilt of the accused. Such is the testimony of victims who are young, immature, and have no motive to falsely testify against the accused?

From a reading of the transcript of AAA?s testimony, she gave her account of the facts attendant to the case in a straightforward, candid, credible, and spontaneous manner.

As stated early on, except for AAA?s claim that petitioner committed the acts complained of which he denied, petitioner either admitted or did not deny the other details of her account.

Petitioner posits that the pain (?mahapdi?) AAA felt in her vagina and the linear erythema on the hymenal area found by the examining physician could have been caused by the bumpy ride and the hard surface of the gasoline tank on which she sat. The pain felt by AAA and the linear erythema are not vital in establishing petitioner?s guilt, however. In fact, a prosecution for acts of lasciviousness under the Revised Penal Code (or for violation of Section 5, Article III of RA No. 7610) does not require any proof of injury in order to prove its commission. Petitioner did not even impute any motive on the part of AAA to falsely charge him.

In fine, petitioner is guilty of acts of lasciviousness penalized, under Article 336 of the Revised Penal Code, with prision correccional. ? Cabila vs. People, G.R. No. 173491, November 23, 2007


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