Olivares VS.

CA
GR 163866
FACTS:
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.
Held: Yes.
The elements of sexual abuse under Section 5, Article III of R.A. 7610 are as follows:

November 1997 up to 1998, in Pasay City, Michael John. Z. Malto, a professor, did then
and there willfully, unlawfully and feloniously take advantage and exert influence,
relationship and moral ascendancy and induce and/or seduce his student at
Assumption College, complainant, AAA, a minor of 17 years old, to indulge in sexual
intercourse and lascivious conduct for several times with him as in fact said accused
has carnal knowledge.

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.

In a decision, the appellate court affirmed his conviction even if it found that his acts
were not covered by paragraph (a) but by paragraph (b) of Section 5, Article III of RA
7610; and thereby sentenced to an indeterminate penalty prision mayor.
ISSUE
Whether or not the CA erred in sustaining petitioners conviction on the grounds
that there was no rape committed since their sexual intercourse was consensual
by reason of their sweetheart relationship
HELD: NEGATIVE. Petitioner is wrong.
Petitioner violated Section 5(b), Article III of RA 7610, as amended. The first element of
Section 5(b), Article III of RA 7610 pertains to the act or acts committed by the accused.
The second element refers to the state or condition of the offended party. The third
element corresponds to the minority or age of the offended party. Since all three
elements of the crime were present, the conviction of petitioner was proper.

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

Facts:
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.
Issues:
WON lewd design was established; WON Amployo violated RA 7610.
Held:
*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;[12] 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. petitioners act of purposely touching Kristine
Joys breasts (sometimes under her shirt) amounts to lascivious conduct.
The second element is likewise present. As we observed in People v. Larin,
[24] 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.
Malto v. People
FACTS
Sometime during the month of November 1997 to 1998, Malto seduced his student,
AAA, a minor, to indulge in sexual intercourse several times with him. Prior to the
incident, petitioner and AAA had a mutual understanding and became sweethearts.
Pressured and afraid of the petitioners threat to end their relationship, AAA succumbed
and both had sexual intercourse.
Upon discovery of what AAA underwent, AAAs mother lodged a complaint in the Office
of the City Prosecutor of Pasay City. Assistant City Prosecutor charged the petitioner in
an Information a violation of Section 5(a), Article III, RA 7610. During the month of

The trial court found the evidence for the prosecution sufficient to sustain petitioners
conviction and rendered a decision finding petitioner guilty beyond reasonable doubt for
violation of Article III, Section 5(a), par. 3 of RA 7610, as amended and sentenced him
to reclusion temporal.

Consent of the child is immaterial in criminal cases involving violation of Sec. 5, Art. III
of RA 7610. Petitioner claims that AAA welcomed his kisses and touches and
consented to have sexual intercourse with him. They engaged in these acts out of
mutual love and affection. The sweetheart theory applies in acts of lasciviousness and
rape, felonies committed against or without the consent of the victim. It operates on the
theory that the sexual act was consensual. It requires proof that the accused and the
victim were lovers and that she consented to the sexual relations.30
For purposes of sexual intercourse and lascivious conduct in child abuse cases under
RA 7610, the sweetheart defense is unacceptable. A child exploited in prostitution or
subjected to other sexual abuse cannot validly give consent to sexual intercourse with
another person.
A child cannot give consent to a contract under our civil laws. This is on the rationale
that she can easily be the victim of fraud as she is not capable of fully understanding or
knowing the nature or import of her actions. The State, as parens patriae, is under the
obligation to minimize the risk of harm to those who, because of their minority, are as
yet unable to take care of themselves fully. Those of tender years deserve its
protection.
The harm which results from a childs bad decision in a sexual encounter may be
infinitely more damaging to her than a bad business deal. Thus, the law should protect
her from the harmful consequences of her attempts at adult sexual behavior. For this
reason, a child should not be deemed to have validly consented to adult sexual activity
and to surrender herself in the act of ultimate physical intimacy under a law which
seeks to afford her special protection against abuse, exploitation and discrimination. In
other words, a child is presumed by law to be incapable of giving rational consent
to any lascivious act or sexual intercourse.
To provide special protection to children from all forms of abuse, neglect,
cruelty, exploitation and discrimination, and other conditions prejudicial to their
development; provide sanctions for their commission and carry out a program for
prevention and deterrence of and crisis intervention in situations of child abuse,
exploitation, and discrimination. [A]s well as to intervene on behalf of the child when the
parents, guardian, teacher or person having care or custody of the child fails or is
unable to protect the child against abuse, exploitation, and discrimination or when such
acts against the child are committed by the said parent, guardian, teacher or person
having care and custody of the same.
The best interest of children shall be the paramount consideration in all actions
concerning them, whether undertaken by public or private social welfare institutions,
courts of law, administrative authorities, and legislative bodies, consistent with the
principles of First Call for Children as enunciated in the United Nations Convention on
the Rights of the Child. Every effort shall be exerted to promote the welfare of
children and enhance their opportunities for a useful and happy life.
PEOPLE V. OLAYON
G.R. No. 171863; August 20, 2008.
FACTS:
-

Gaspar Olayon, who was then 22-years-old at the time, was charged with
violation of Section 10 (a) of RA 7610 in two separate informations where
he allegedly:
o
Had sexual intercourse with and commit lewd and lascivious
acts upon a 14-year-old minor at 10am of January 27, 1997
o
And the same offense at 2pm on the same day.
He was also charged with acts of lasciviousness with the same 14-year-old
victim. The 3 cases were jointly tried.
After trial, Branch 158 acquitted him for acts of lasciviousness. However,
he was convicted for violating Section 10 (a) of RA 7610. The trial court
said, that even if it has been alleged that the accused and the victim were
sweethearts and could conclude that the sexual intercourse was
consensual, consent is not an accepted defense in a special law.
He was given a penalty of 6 years, 8 months, and 1 day to 7 years and 4
months of prision mayor for each count.
The Court of Appeals reversed the ruling of the trial court saying that
consensual sexual intercourse between Olayon and the minor did not fall

under sexual abuse under Section 5 of RA 7610 which is a completely

distinct and separate offense from child abuse under Section 10.
Hence the present petition for certiorari.

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.

Issue: Did the CA commit grave abuse of discretion in acquitting Olayon?

Ruling:
The petition is denied.
The record shows that the acts did not constitute rape as they were with
the consent of the 14-year-old child. However, they were found to be
punishable under Section 10 of RA 7610 which reads:

The penalty of reclusion temporal in its medium period to reclusion

perpetua shall be imposed upon the following:
(b)

Section 10. Other Acts of Neglect, Abuse, Cruelty or Exploitation and Other
Conditions Prejudicial to the Childs 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 childs development including those covered by Article 59 of
Presidential Decree No. 603, as amended, but not covered by the
RPC, as amended, shall suffer the penalty of prision mayor in its
minimum period.
-

However, consensual sexual intercourse or even acts of lasciviousness

with a minor who is 12 years or older could constitute a violation of Section
5 (b) of RA 7610. For Section 5 (b) punishes sexual intercourse or acts of
lasciviousness conduct not only with a child exploited in prostitution but
also with a child subjected to sexual abuse. Section 5 (b) of RA 7610
reads:

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 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; and

Even if respondent were charged under Section 5, he 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.