SECOND DIVISION
|
PEOPLE OF THE Petitioner, - versus - THE
HONORABLE COURT OF APPEALS (Second Division) and GASPAR OLAYON, Respondents. |
G.R. No. 171863 Present: QUISUMBING, J., Chairperson, CARPIO
MORALES, TINGA,
VELASCO,
JR., and BRION,
JJ.
Promulgated: August 20, 2008 |
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D E C I S I O N
CARPIO MORALES, J.:
The then 22-year old herein respondent
Gaspar Olayon was charged with violation of Section 10(a) of Republic Act 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
Criminal Case No. 112571 alleged that
On
or about
Criminal Case No. 112572 alleged that
On
or about
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]
After trial, Branch 158 of the Pasig
City RTC, by Decision of
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 of [AAA]. Although the testimony of [AAA] denies she consented to the sexual liaisons, the evidence did not support it.
The
events that occurred on
x x x x
Although
the sexual liaisons that occurred on
Section 10(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, shall suffer the penalty of prision mayor in its minimum period.
x x x x[6] (Emphasis and underscoring supplied)
Thus the trial court disposed:
WHEREFORE, Gaspar Olayon y Matubis a.k.a Eric Ramirez is found guilty beyond reasonable doubt for 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 (4) months of prision mayor for each count. He is acquitted in Criminal Case No. 116350.
Costs against the accused.
SO ORDERED.[7]
On appeal by respondent,[8]
the Court of Appeals, answering in the negative the issue of whether consensual
sexual intercourse with a minor is classified as child abuse under Section 10
of RA No. 7610, reversed the trial
court’s decision and acquitted respondent,
by Decision[9] of
“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:
Sec. 3. Definition of Terms –
(a) x x x
(b) “Child Abuse” refers to 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 or deeds [sic] or words [sic] 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.
Consensual sexual intercourse between OLAY[O]N and [AAA] does not fall under the “sexual abuse” definition [in Section 5 of R.A. No. 7610] which is a completely distinct and separate offense from “child 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 reads as follows:
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.
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 case at bench, neither coercion nor intimidation were found to have been present, consent having been freely given.[10] (Emphasis, italics and underscoring supplied)
Hence, the present petition for
certiorari[11] of the
People under Rule 65, alleging that the Court of Appeals acted with grave abuse
of discretion amounting to lack or excess of jurisdiction
x x x IN ACQUITTING RESPONDENT OLAYON OF THE TWO (2) COUNTS OF CHILD ABUSE UNDER SECTION 10(A) OF R.A. 7610 DESPITE THE FACT THAT THE SEXUAL ACTS COMMITTED BY RESPONDENT OLAYON ON THE MINOR PRIVATE COMPLAINANT ARE CLEARLY WITHIN THE TERM “OTHER ACTS OF NEGLECT, ABUSE, CRUELTY OR EXPLOITATION AND OTHER CONDITIONS PREJUDICIAL TO THE CHILD’S DEVELOPMENT” DECLARED PUNISHABLE UNDER SECTION 10(A) OF R.A. 7610.[12] (Emphasis and 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 [Republic] Act No. 7610,” hence, its filing of the
above-quoted Informations for violation of Section 10(a).[14]
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 age.”[15]
Section 10(a) of R.A. No. 7610 under which
respondent was charged in each of the two cases provides:
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.
(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.
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 or lascivious conduct with a child exploited in prostitution or subject to other sexual abuse; Provided, That when the victims 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; (Italics in the original, emphasis and underscoring supplied)
As Section 10 refers to acts of child abuse prejudicial to the child’s development other than child prostitution and other sexual abuse[16] under
Section 5, attempt to commit child prostitution,[17]
child trafficking,[18]
attempt to commit child 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 offense from ‘child abuse’ [as defined under Section 10].”
Consensual sexual intercourse or even
acts of lasciviousness with a minor who is 12 years old or older could
constitute a violation of Section 5(b) of R.A. No. 7610. For Section 5(b) punishes sexual intercourse
or lascivious conduct not only with a child exploited in prostitution but also
with a child subjected to other sexual abuse.[21]
Section 2(g) of the Rules and
Regulations on the Reporting and Investigation of Child Abuse Cases,
promulgated to implement R.A. No. 7610, 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.” (Underscoring supplied)
For consensual sexual intercourse or lascivious conduct with a minor,
who is not exploited in prostitution, to thus fall within the purview of
Section 5(b) of R.A. No. 7610, “persuasion, inducement, enticement or coercion”
of the child must be present.
In People v. Larin,[22]
the information alleged that the therein accused took advantage of his
authority, influence, and 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:
It must be noted that [Republic Act No. 7610] 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 any lascivious conduct.[25] (Emphasis and underscoring supplied)
And even in Malto v. People[26]
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.
CONCHITA
CARPIO MORALES
Associate
Justice
WE CONCUR:
LEONARDO A. QUISUMBING
Associate Justice
Chairperson
|
DANTE O. TINGA Associate Justice |
PRESBITERO J. VELASCO, JR. Associate Justice |
ARTURO D.
BRION
Associate
Justice
ATTESTATION
I attest
that the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Court’s
Division.
LEONARDO
A. QUISUMBING
Associate
Justice
Chairperson
CERTIFICATION
Pursuant to
Section 13, Article VIII of the Constitution, and the Division Chairperson’s
Attestation, I certify that the conclusions in the above decision had been
reached in consultation before the case was assigned to the writer of the
opinion of the Court’s Division.
REYNATO
S. PUNO
Chief Justice
[1] Records, p. 1.
[2]
[3]
[4]
[5]
[6]
[7]
[8]
[9] Penned by Court of Appeals Associate
Justice Vicente Q. Roxas, with the concurrence of Associate Justices Godardo A.
Jacinto and Juan Q. Enriquez, Jr.. Rollo,
pp. 33-39.
[10] Rollo, pp. 38-39.
[11]
[12]
[13] Resolution dated
[14]
[15]
[16] Section 5, Republic Act No. 7610.
[17] Section 6, Republic Act No. 7610.
[18]
[19]
[20]
[21] Vide
People v. Larin, 357 Phil.
987, 998 (1998); Malto v. People,
G.R. No. 164733,
[22] Supra.
[23]
[24]
[25]
[26] Vide note 21, Malto v. People.