Appellant was charged with violation of Article 336 of the Revised Penal Code, as amended, in relation to Section 5(b), Article III of Republic Act No. 7610. These provisions state:
Art. 336. Acts of lasciviousness. — 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.
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.
The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following:
x x x x
(b) Those who commit the act of sexual intercourse of 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
The elements of sexual abuse under Section 5, Article III of Republic Act No. 7610 are as follows:
- The accused commits the act of sexual intercourse or lascivious conduct.
- The said act is performed with a child exploited in prostitution or subjected to sexual abuse.
- The child, whether male or female, is below 18 years of age.31
As correctly found by the Court of Appeals, all the elements of sexual abuse under Section 5, Article III of RA 7610 are present here.
First, appellant’s repeated touching, fondling, and sucking of AAA’s breasts and inserting his finger into AAA’s vagina with lewd designs undoubtedly constitute lascivious conduct under Section 2(h) of the Implementing Rules and Regulations of Republic Act No. 7610, to wit:
(h) “Lascivious conduct” means the 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 public area of a person.
Second, appellant, as a father having moral ascendancy over his daughter, coerced AAA to engage in lascivious conduct, which is within the purview of sexual abuse. In People v. Larin,32 we held:
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.
Third, AAA is below 18 years old at the time of the commission of the offense, based on her testimony which was corroborated by her Birth Certificate33 presented during the trial. Section 3(a), Article I of Republic Act No. 7610 provides:
SECTION 3. Definition of Terms. –
(a) “Children” refers [to] persons below eighteen (18) years of age or those over but are unable to fully take care of themselves or protect themselves from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability or condition;
Since all three elements of the crime were present, the conviction of appellant for acts of lasciviousness was proper.
As to the alleged failure of the prosecution to establish with particularity the date of the commission of the acts of lasciviousness, suffice it to state that the date and time of the commission of the offense are not material ingredients of such crime. Section 11, Rule 110 of the Rules of Court provides:
Sec. 11. Time of the commission of the offense. — It is not necessary to state in the complaint or information the precise time at which the offense was committed except when time is a material ingredient of the offense, but the act may be alleged to have been committed at any time as to the actual date at which the offense was committed as the information or complaint will permit.
In People v. Losano,34 the Court held:
Thus, as early as 1903, this Court has ruled that while the complaint must allege a specific time and place when and where the offense was committed, the proof need not correspond to this allegation, unless the time and place is material and of the essence of the offense as necessary ingredient in its description. Evidence so presented is admissible and sufficient if it shows 1) that the crime was committed at any time within the period of the statute of limitations; and 2) before or after the time stated in the complaint or indictment and before the action is commenced.