PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. XXX, ACCUSED-APPELLANT.

People versus XXX

The Case

This is a criminal appeal by the accused, known in the record as XXX, against the decision of the Court of Appeals affirming his conviction for lascivious conduct under Section 5(b) of Republic Act Number 7610, the Special Protection of Children Against Abuse, Exploitation and Discrimination Act, committed against his own thirteen-year-old daughter, AAA. The case matters because the Supreme Court, applying its recent ruling in Gramatica versus People, corrects the charge itself: the crime proven is not the special-law offense but the ordinary crime of acts of lasciviousness under Article 336 of the Revised Penal Code. It is a lesson in matching the statute to the victim's actual state of mind, and in the appellate court's power to reclassify an offense on appeal.

Procedural History

XXX was charged by Information dated February 23, 2016 with lascivious conduct under Section 5(b) of Republic Act Number 7610. Upon arraignment he pleaded not guilty. After pre-trial, where the parties stipulated his identity as AAA's biological father and the conditional admission of AAA's certificate of live birth showing she was thirteen, trial on the merits followed before the Regional Trial Court, which in its Judgment dated October 3, 2021 found him guilty beyond reasonable doubt, imposed reclusion perpetua, and awarded compensatory, moral, and exemplary damages.

XXX appealed to the Court of Appeals, arguing that the prosecution's account was improbable, that AAA's behavior deviated from expected human response, and that she made an inconsistent statement about the insertion of a finger. In its Decision dated February 16, 2024, the Court of Appeals denied the appeal and affirmed the conviction with modification, adding a fine of 15,000 pesos under Section 31(f) of Republic Act Number 7610 and adjusting the damages. XXX then filed an appeal before the Supreme Court. The Court directed the parties to file supplemental briefs; both the accused and the Office of the Solicitor General manifested that they would instead adopt their earlier briefs.

Facts

AAA, thirteen years old at the time, is the biological daughter of XXX. On the night of February 21, 2016, she was lying in bed about to sleep, beside her mother, her sister, and her father. She felt her father's hand on her breast, then on her lap, and then he inserted his hand inside her underwear and touched her vagina.

AAA protested in a loud voice, telling him to stop. Her mother was awakened and asked XXX what he was doing to their daughter. XXX answered that AAA had kicked him. AAA said nothing more, because she was afraid of him: he would hurt her whenever she did something wrong, whenever he was drunk, or even when merely tired from work. The following day she disclosed the full extent of the assault to her mother, and they reported the incident to the authorities. The police documented her complaint and arrested XXX.

For his part, XXX denied the charge and claimed it was fabricated. He testified that AAA resented him because he had obtained the cellphone numbers of her classmates, and he alleged that on the same night he saw her embracing a male classmate. The trial court found AAA's testimony credible and convicted him; the Court of Appeals agreed.

Issues

• Whether or not the Court of Appeals correctly affirmed the conviction of XXX for violation of Section 5(b) of Republic Act Number 7610.
• Whether or not the acts proven constitute instead the crime of acts of lasciviousness under Article 336 of the Revised Penal Code, and whether or not XXX may be convicted of that offense under the Information filed.
• Whether or not the elements of acts of lasciviousness were established beyond reasonable doubt.
• Whether or not the penalty and the awards of damages were correctly fixed.

Applicable Provisions

Section 5(b) of Republic Act Number 7610, as amended by Republic Act Number 11648, provides:

Section 5. Child Prostitution and Other Sexual Abuse. — x x x (b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to other forms of sexual abuse: Provided, That when the victim is under sixteen (16) 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 sixteen (16) years of age shall be reclusion temporal in its medium period.

This is the provision under which XXX was charged and convicted below, and which the Court now holds inapplicable because AAA neither consented nor indulged in the act.

Article 336 of the Revised Penal Code provides:

Article 336. Acts of lasciviousness. — Any person who shall commit any act of lasciviousness or lewdness upon another person of either sex, under any of the circumstances mentioned in the preceding article, shall suffer the penalty of prision correccional.

This is the offense the Court holds was actually proven, its circumstances supplied by the intimidation in the preceding article, here replaced by the father's moral ascendancy.

Rule 120, Section 4 of the Rules of Court provides:

Section 4. Judgment in case of variance between allegation and proof. — When there is a variance between the offense charged in the complaint or information and that proved, and the offense as charged is included in or necessarily includes the offense proved, the accused shall be convicted of the offense proved which is included in the offense charged, or of the offense charged which is included in the offense proved.

This authorizes the conviction for the lesser included offense of acts of lasciviousness even though the Information charged the special-law offense.

Ruling

On the first issue, the Court held that the appeal lacked merit as to guilt, but that the courts below erred on the charge. Guided by Gramatica versus People, the Court explained that Section 5(b) of Republic Act Number 7610, as amended by Republic Act Number 11648, applies to minors aged sixteen and above but below eighteen who are subjected to other forms of sexual abuse, where the child consents or indulges, albeit defectively, in sexual activity because of the employment, use, persuasion, inducement, enticement, or coercion exerted by an adult. The law contemplates a minor who actively participates, not a merely passive victim, and it does not apply where the minor is entirely unaware, unconscious, overpowered, or unwilling from the outset.

On the second issue, the Court found that AAA, though not fully unconscious and merely about to fall asleep, did not consent from the outset: she loudly told her father to stop, a plea that awakened her mother. She was a passive victim of a sudden lewd act while at rest. Since she did not engage or indulge in the sexual conduct, XXX must be convicted of acts of lasciviousness under Article 336. Under Rule 120, Section 4, that conviction is proper because the Information sufficiently alleged intimidation, and in incestuous sexual abuse moral ascendancy supplants the element of intimidation.

On the third issue, the Court held that the elements were established: the acts of inserting his hand inside AAA's shirt, touching her breasts and lap, and touching her vagina were lewd, and they were performed through intimidation, XXX taking advantage of his moral ascendancy as her biological father, which AAA's testimony of fear confirmed. The Court deferred to the trial court's credibility findings, affirmed by the Court of Appeals, and found the alleged inconsistency explained: AAA's initial statement referred to a separate incident. It rejected the arguments that the presence of the mother and sister made the act improbable, since lust is no respecter of time and place, and that her silence contradicted human nature, since fear of her father's violence explained it. Denial, being inherently weak, could not prevail over her positive identification.

On the fourth issue, the Court fixed the indeterminate penalty at six months of arresto mayor as minimum to six years of prision correccional as maximum, the aggravating circumstance of relationship being present, and increased the civil indemnity, moral damages, and exemplary damages to 150,000 pesos each, with legal interest at six percent per annum from finality until full payment.

Doctrine

Section 5(b) of Republic Act Number 7610, as amended by Republic Act Number 11648, covers minors aged sixteen and above but below eighteen who are subjected to other forms of sexual abuse, where the minor consents or indulges, albeit defectively, in sexual activity because of the employment, use, persuasion, inducement, enticement, or coercion of an adult. It does not apply where the minor is entirely unaware, unconscious, overpowered, or unwilling from the outset; in that case the proper offense is acts of lasciviousness under Article 336 of the Revised Penal Code. In incestuous sexual abuse, moral ascendancy supplants the element of intimidation. Under Rule 120, Section 4, an accused may be convicted of the offense proved when it is included in the offense charged.

Disposition

The appeal was dismissed, but the judgment was modified: XXX was found guilty beyond reasonable doubt of acts of lasciviousness under Article 336 of the Revised Penal Code, sentenced to an indeterminate penalty of six months of arresto mayor to six years of prision correccional, and ordered to pay AAA 150,000 pesos each as civil indemnity, moral damages, and exemplary damages, with legal interest.

Remember This

Memorize this line: Section 5(b) of Republic Act Number 7610 requires a child who consents or indulges, albeit defectively, in the sexual act; a passive, unwilling victim calls for Article 336 of the Revised Penal Code. Examiners use this case to test the Gramatica reclassification, the rule that moral ascendancy supplants intimidation in incestuous abuse, and the Rule 120, Section 4 variance rule.