G.R. No. 163866 – ISIDRO OLIVAREZ, Petitioner, versus COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, Respondents.

 

                                                                        Promulgated:

                                                                July 29, 2005

x---------------------------------------------------------------------x

 

 

DISSENTING OPINION

 

Carpio, J.:

 

 

          I dissent from the majority opinion. 

 

I vote to declare petitioner Isidro Olivarez (“Olivarez”) guilty of acts of lasciviousness under Article 336 of the Revised Penal Code (“RPC”), and not of acts of lasciviousness under Section 5 of Republic Act No. 7610 (“RA 7610”).[1]   The penalty under Article 336 of the RPC is prision correccional, while the penalty under Section 5 of RA 7610 is reclusion temporal in its medium period to reclusion perpetua.

 

I anchor my dissent on two grounds.  First, the Information only charged Olivarez with acts of lasciviousness under Article 336 of the RPC
and not with acts of lasciviousness under Section 5 of RA 7610.  Second, the prosecution proved that Olivarez committed acts of lasciviousness under Article 336 of the RPC and not acts of lasciviousness under Section 5 of RA 7610.

 

Article 336 of the RPC provides as follows:

 

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

 

 

 

The essential elements of acts of lasciviousness under Article 336 of the RPC are as follows:

 

  1.   That the offender commits any act of lasciviousness or lewdness;

   2.   That the act of lasciviousness is committed against a person of either sex;

   3.   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.    By means of fraudulent machination or grave abuse of authority; or

 d.    When the offended party is under 12 years of age or is demented.[2] (Emphasis supplied)

 

 

 

          On the other hand, Section 5 of RA 7610 provides 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.

 

The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following:

 

(a)        Those who engage in or promote, facilitate or induce child prostitution which include, but are not limited to, the following:

(1)        Acting as a procurer of a child prostitute;

(2)        Inducing a person to be a client of a child prostitute by means of written or oral advertisements or other similar means;

(3)        Taking advantage of influence or relationship to procure a child as prostitute;

(4)        Threatening or using violence towards a child to engage him as a prostitute; or

(5)        Giving monetary consideration, goods or other pecuniary benefit to a child with the intent to engage such child in prostitution.

 

(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; and

 

(c)        Those who derive profit or advantage therefrom, whether as manager or owner of the establishment where the prostitution takes place, or of the sauna, disco, bar, resort, place of entertainment or establishment serving as a cover or which engages in prostitution in addition to the activity for which the license has been issued to said establishment.  (Emphasis supplied)

 

 

The majority opinion correctly enumerates the essential elements of the crime of acts of lasciviousness under Section 5 of RA 7610.  The majority opinion states:

 

          The elements of sexual abuse under Section 5, Article III of R.A. 7610 are as follows:

 

1.   The accused commits the acts 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.[3]                 

       (Emphasis supplied)

 

 

The majority opinion correctly distinguishes the first element from the second element.  The first element refers to the acts of lasciviousness that the accused performs on the child.  The second element refers to the special circumstance that the “child (is) exploited in prostitution or subjected to other sexual abuse.”  This special circumstance already exists when the accused performs acts of lasciviousness on the child. In short, the acts of lasciviousness that the accused performs on the child are separate and different from the child’s exploitation in prostitution or subjection to “other sexual abuse.”

 

          Under Article 336 of the RPC, the accused performs the acts of lasciviousness on a child who is neither exploited in prostitution nor subjected to “other sexual abuse.”   In contrast, under Section 5 of RA 7610, the accused performs the acts of lasciviousness on a child who is either exploited in prostitution or subjected to “other sexual abuse.”  

 

Section 5 of RA 7610 deals with a situation where the acts of lasciviousness are committed on a child already either exploited in prostitution or subjected to “other sexual abuse.”   Clearly, the acts of lasciviousness committed on the child are separate and distinct from the other circumstance — that the child is either exploited in prostitution or subjected to “other sexual abuse.”  

 

The phrase “other sexual abuse” refers to any sexual abuse other than the acts of lasciviousness complained of and other than exploitation in prostitution.   Such “other sexual abuse” could fall under acts encompassing “[O]bscene publications and indecent shows” mentioned in Section 3(d)(3) of RA 7610.[4] 

Thus, a child performing in indecent shows in a cabaret is a child subjected to “other sexual abuse.”   A customer in such cabaret who commits acts of lasciviousness on the child is liable for violation of Section 5 of RA 7610.   Also, a photographer who commits acts of lasciviousness on a child he is shooting for an obscene publication is liable for violation of Section 5 of RA 7610.    The penalty for such acts of lasciviousness is more severe than if the acts are committed without the special circumstances of the child’s subjection to “other sexual abuse.”

 

          Section 5 of RA 7610 penalizes those “who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to other sexual abuse.” The act of sexual intercourse or lascivious conduct may be committed on a child already exploited in prostitution, whether the child engages in prostitution for profit or someone coerces her into prostitution against her will.   The element of profit or coercion refers to the practice of prostitution, not to the sexual intercourse or lascivious conduct committed by the accused. A person may commit acts of lasciviousness even on a prostitute, as when a person mashes the private parts of a prostitute against her will.

 

The sexual intercourse or act of lasciviousness may be committed on a child already subjected to other sexual abuse.  The child may be subjected to such other sexual abuse for profit or through coercion, as when the child is employed or coerced into pornography.   A complete stranger, through force or intimidation, may commit acts of lasciviousness on such child in violation of Section 5 of RA 7610.  

 

The phrase “other sexual abuse” plainly means that the child is already subjected to sexual abuse other than the crime for which the accused is charged under Section 5 of RA 7610.   The “other sexual abuse” is an element separate and distinct from the acts of lasciviousness that the accused performs on the child.   The majority opinion admits this when it enumerates the second element of the crime under Section 5 of RA 7610  —  that the  lascivious “act is performed with a child x x x subjected to other sexual abuse.”

 

The Information filed against Olivarez for violation of RA 7610 states as follows:

 

The undersigned 4th Assistant Provincial Prosecution (sic) of Laguna upon a sworn complaint filed by the private complainant, CRISTINA B. ELITIONG, hereby accuses ISIDRO OLIVAREZ of the crime of “VIOLATION OF RA 7610”, committed as follows:

That on or about July 20, 1997, in the Municipality of San Pedro, Province of Laguna, within the jurisdiction of this Honorable Court, said accused actuated by lewd design did then and there wilfully, unlawfully and feloniously by means of force and intimidation commit acts of lasciviousness on the person of one CRISTINA B. ELITIONG, by touching her breasts and kissing her lips, against her will, to her damage and prejudice.

 

                   CONTRARY TO LAW. 

 

 

 

          There is nothing in the Information that alleges that the child Cristina B. Elitiong (“Cristina”) was exploited in prostitution or subjected to “other sexual abuse” when the accused performed the acts of lasciviousness on her.   

 

Even the Complaint signed by Cristina does not state that she was a child exploited in prostitution or subjected to “other sexual abuse.”   The Complaint alleges as follows:

 

COMPLAINT 

The undersigned complainant, accuses ISIDRO OLIVAREZ, of the crime of VIOLATION OF RA 7610, committed as follows:

 

That on or about 11:30 A.M. of July 20, 1997 at Brgy. San Vicente, San Pedro, Laguna, Philippines and within the jurisdiction of this Honorable Court the said accused with lewd design did then and there wilfully, unlawfully and feloniously commit an act of lasciviousness against one CRISTINA ELITIONG Y BALDONO, 16 years old, by kissing and touching her private parts and embracing her against her will.

 

CONTRARY TO LAW.

 

 

Even assuming that the Complaint can cure the defects in the Information, the Complaint does not state that Cristina is a child subjected to “other sexual abuse.”  

 

In short, the Information does not specifically allege the second essential element of the crime of acts of lasciviousness under Section 5 of RA 7610.    The majority opinion states that the second element of the crime is that “[T]he said act is performed with a child exploited in prostitution or subjected to other sexual abuse.”    This special circumstance, warranting the imposition of a much heavier penalty for acts of lasciviousness, is not alleged either in the Information or in the Complaint.

 

The fundamental rule is that the Information must allege all the elements of the crime.  Sections 6[5] and 9,[6] Rule 110 of the Rules of Court mandate that the Information must allege all essential elements of the crime.  Section 6 of Rule 110 provides that the “information is sufficient if it states x x x the acts or omissions complained of as constituting the offense.”    Section 9 of Rule 110 further provides that the “acts or omissions complained of as constituting the offense x x x must be stated in ordinary and concise language.”

 

Thus, in Balitaan v. Court of First Instance of Batangas,[7] the Court held:

 

It is fundamental that every element of which the offense is composed must be alleged in the complaint or information. What facts and circumstances are necessary to be stated must be determined by reference to the definitions and the essentials of the specific crimes.

 

x x x x

 

The main purpose of requiring the various elements of a crime to be set out in an information is to enable the accused to suitably prepare his defense. He is presumed to have no independent knowledge of the facts  that constitute the offense.  (Emphasis supplied)

         

The Court has reiterated this ruling in subsequent cases.[8]

 

          In the present case, since the Information failed to allege the second essential element of the crime as defined in Section 5 of RA 7610, Olivarez cannot be convicted for violation of RA 7610.    The Information is void to charge Olivarez for violation of Section 5 of RA 7610. Otherwise, Olivarez’s would be deprived of his constitutional right to be informed of the charge against him.

 

          However, the Information is sufficient to charge Olivarez for violation of Article 336 of the RPC.   The special circumstance that the child is “subjected to other sexual abuse” is not an element in the crime of acts of lasciviousness under Article 336 of the RPC.   Thus, the Information remains valid to charge Olivarez with acts of lasciviousness, not under Section 5 of RA 7610, but under Article 336 of the RPC.

         

During trial, the prosecution proved that Olivarez used force on Cristina when Olivarez “pulled her to the kitchen and, closing the kitchen door, kissed her on the lips.”[9]   Olivarez also “embraced (Cristina) and held her breast.”[10] Clearly, Olivarez committed acts of lasciviousness using force on the complainant.   This is sufficient to convict Olivarez for violation of Article 336 of the RPC.

 

          The records, however, are bereft of any shred of evidence showing that Cristina was “subjected to other sexual abuse” when Olivarez committed the acts of lasciviousness on her.  Olivarez employed Cristina, with her two brothers, to stitch sampaguita flowers.   This was gainful and decent employment.   

 

If a child works as a nude model for an obscene magazine, then any act of lasciviousness committed on such a child would warrant imposition of the heavier penalty under Section 5 of RA 7610.   However, the Information must allege the special circumstance that the child is “subjected to other sexual abuse,” which circumstance the prosecution must prove during trial. 

 

In the present case, the special circumstance that the complainant was “subjected to other sexual abuse” was neither alleged in the Information nor proved during the trial. 

 

Accordingly, I vote to convict Olivarez for violation of Article 336 of the RPC and to impose on him the penalty of prision correccional in its medium period, there being no aggravating or mitigating circumstances. 

 

                                                                  

ANTONIO T. CARPIO

                                                                             Associate Justice

   

                                                                  



[1]  Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act.

[2]   Luis B. Reyes, Revised Penal Code, Book Two, p. 862 (2001).

 

[3]   Majority Opinion, p. 5.

[4]   Section 3 of RA 7610 provides as follows:  “SEC. 3. Definition of Terms. —

(a)           “Children” refers to person 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;

(b) “Child abuse” refers to the 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 by deeds or words 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.

(c) “Circumstances which gravely threaten or endanger the survival and normal development of children” include, but are not limited to, the following;

(1) Being in a community where there is armed conflict or being affected by armed conflict-related activities;

(2) Working under conditions hazardous to life, safety and morals which unduly interfere with their normal development;

(3) Living in or fending for themselves in the streets of urban or rural areas without the care of parents or a guardian or any adult supervision needed for their welfare;

(4) Being a member of a indigenous cultural community and/or living under conditions of extreme poverty or in an area which is underdeveloped and/or lacks or has inadequate access to basic services needed for a good quality of life;

(5) Being a victim of a man-made or natural disaster or calamity; or

(6) Circumstances analogous to those abovestated which endanger the life, safety or normal development of children.

(d) “Comprehensive program against child abuse, exploitation and discrimination” refers to the coordinated program of services and facilities to protect children against:

(1) Child Prostitution and other sexual abuse;

(2) Child trafficking;

(3) Obscene publications and indecent shows;

(4) Other acts of abuses; and

(5) Circumstances which threaten or endanger the survival and normal development of children.  (Emphasis supplied)

 

 

[5]      Section 6 of Rule 110 provides  as follows:   “Sufficiency of complaint or information.  — A complaint or information is sufficient if it states the name of the accused; the designation of the offense by the statute; the acts or omissions complained of as constituting the offense; the name of the offended party; the approximate time of the commission of the offense, and the place wherein the offense was committed. 

When an offense is committed by more than one person, all of them shall be included in the complaint or information.”

[6]      Section 9 of Rule 110 provides as follows: “Cause of accusation. — The acts or omissions complained of as constituting the offense must be stated in ordinary and concise language without repetition, not necessarily in the terms of the statute defining the offense, but in such form as is sufficient to enable a person of common understanding to know what offense is intended to be charged and enable the court to pronounce proper judgment.”

[7]      201 Phil. 311 (1982). Reported as Balitaan v. CFI of Batangas, Branch II, et al.

[8]    Garcia v. People, G.R. No. 144785, 11 September 2003, 410 SCRA 582; People v. Bernas, 427 Phil. 649 (2002);  Bautista v. Court of Appeals,  413 Phil. 159 (2001);  People v. Larena, 368 Phil. 614 (1999); People v. Ramos,  357 Phil. 559 (1998).

[9]     Rollo, p. 11.

[10]    Ibid.