Olivares VS. CA GR 163866
Isidro Olivares was charged with violation of RA 7610 for touching the breast and kissing the lips of Cristina Elitiong, a 16-year old high school student employed by the former in making sampaguita garlands during weekends. The trial court found him guilty; affirmed by the CA. Petitioner now alleges that his right to be informed of the nature and cause of the accusation against him was violated for failure to allege in the information the essential elements of the offense for which he is being charged.
Issue: WON Olivares can be charged with violation of RA 7610.
The elements of sexual abuse under Section 5, Article III of R.A. 7610 are 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.
3. The child, whether male or female, is below 18 years of age.
The first element obtains in this case. It was established beyond reasonable doubt that petitioner kissed Cristina and touched her breasts with lewd designs as inferred from the nature of the acts themselves and the environmental circumstances. 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.
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.
As to the contention that the minority of Cristina was not properly alleged in the information, the SC ruled that: Petitioner was furnished a copy of the Complaint which was mentioned in the information, hence he was adequately informed of the age of the complainant.
Amployo vs. People GR 157718
Alvin Amployo was charged with violation of RA 7610 for touching, mashing and playing the breasts of Kristine Joy Mosguera, an 8 year old Grade 3 pupil without her consent. Amployo contends that the element of lewd design was not established since: (1) the incident happened at 7am, in a street near the school with people around; (2) the breast of an 8 year old is still very much underdeveloped; and (3) suppose h intentionally touched her breast, it was merely to satisfy a silly whim. He also argues that the resultant crime is only acts of lasciviousness under Art 336 RPC and not child abuse under RA 7610 as the elements thereof had not been proved.
WON lewd design was established; WON Amployo violated RA 7610.
*Before an accused can 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.The first element is lewd design.
The term ‘lewd is commonly defined as something indecent or obscene; it is characterized by or intended to excite crude sexual desire. That an accused is entertaining a lewd or unchaste design is necessarily a mental process the existence of which can be inferred by overt acts carrying out such intention,i.e., by conduct that can only be interpreted as lewd or lascivious. The presence or absence of lewd designs is inferred from the nature of the acts themselves and the environmental circumstances. What is or what is not lewd conduct, by its very nature, cannot be pigeonholed into a precise definition.
Lewd design was established. Amployo cannot take refuge in his version of the story as he has conveniently left out details which indubitably prove the presence of lewd design. It would have been easy to entertain the possibility that what happened was merely an accident if it only happened once. Such is not the case, however, as the very same petitioner did the very same act to the very same victim in the past.
*The first element of RA 7610 obtains. petitioner’s act of purposely touching Kristine Joy’s breasts (sometimes under her shirt) amounts to lascivious conduct.
The second element is likewise present. 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. As case law has it, intimidation need not necessarily be irresistible. As to the third element, there is no dispute that Kristine Joy is a minor, as she was only eight years old at the time of the incident in question.
People vs. Abadies July 11, 2002
Jose Abadies was charged with four counts of violation of RA 7610 for committing acts of lasciviousness upon her 17 year old daughter, Rosalie, by kissing, mashing her breasts and touching her private parts. Trial Court found him guilty. Abadies asserts that he was impliedly pardoned by Rosalie in not immediately telling her mother about the incidents.
Issue: WON ABadies is guilty of violating RA 7610.
Complainant’s failure to disclose about her misfortune to her mother does not destroy her credibility. Complainant explained that she did not tell her mother about her ordeal because she was afraid of the accused. Thus, although accused was not armed nor did he threaten complainant, his moral ascendancy over her is a sufficient substitute for the use of force or intimidation as required by Art336 RPC (elements of acts of lasciviousness).
As to the implied pardon, such will not hold. The supposed pardon cannot be implied from the fact that the complainant did not immediately reveal to her mother her defloration. It was her fear of accused which restrained complainant from reporting the incidents to her mother. Moreover, Article 344 of the RPC and Section 5, Rule 110 of the Revised Rules of Criminal Procedure provide that the pardon must be express and cannot be based on hazy deduction.
People vs. Jimenez GR 137790-91
Jaime Jimenez was charged with two counts of lascivious acts against his 12 year old daughter Joana by inserting his finger to her private part, thereby violating RA 7610. The RTC found Jimenez guilty and sentenced him on each count to reclusion perpetua, among others. Jimenez now argues that the penalty should not have been increasd from reclusion temporal (medium) to reclusion perpetua (maximum) considering that both criminal prosecutions failed to allege the special circumstance of relationship of the victim and the accused.
WON the penalty of reclusion perpetua instead of reclusion temporal is proper.
Under R.A. No. 7610, §31(c), however, relationship is not a qualifying but only an ordinary generic aggravating circumstances and, therefore, although it was not alleged in the information can nevertheless be taken into account in fixing the penalty for the crime because it was proven. Accused-appellant fails to distinguish a generic aggravating circumstance from a qualifying circumstance. A generic aggravating circumstance provides for the imposition of the prescribed penalty in its maximum period, while a qualifying circumstance changes the nature of the crime.
It is clear from the provisions of RA 7610 Sec. 31(c) that the nature of the crime does not change when the circumstance of relationship is present. The law simply provides that the penalty prescribed should be imposed in its maximum period when such circumstance is present, thus making the circumstance of relationship merely a generic aggravating circumstance. The trial court, therefore, correctly sentenced accused-appellant to suffer the penalty of reclusion perpetua for each count of lascivious conduct committed against his daughter.