G.R. No.

204061

EDMISAEL C. LUTAP, Petitionervs.PEOPLE OF THE PHILIPPINES, Respondent

D E C I S I O NTIJAM, J.:

Through this petition for review on certiorari1 under Rule 45, petitioner Edmisael C. Lutap seeks the reversal of the Decision 2 dated July 10,
2012 and Resolution3 dated October 25, 2012 of the Court of Appeals (CA)4 in CA-G.R. CR No. 33630 finding petitioner guilty of attempted
rape. The assailed CA Decision modified the Decision dated August 23, 2010 of the Regional Trial Court (RTC) 5 of Quezon City, Branch 94
which, in turn, found petitioner guilty of rape by sexual assault as charged.

The Antecedents

Petitioner was charged in an Information the accusatory portion of which reads:

That on or about the 27th day of April 2004 in Quezon City, Philippines, the said accused by means of force, threats and
intimidation, did then and there willfully, unlawfully and feloniously commit acts of sexual assault upon the person of
[AAA],6 6 year[s] of age, a minor, by then and [there] inserting his finger into complainant's genital organ against her will
and without her consent, to the damage and prejudice of said offended party.

CONTRARY TO LAW.7

Upon petitioner's plea of not guilty, pre-trial and trial on the merits ensued.8

The prosecution presented as witnesses private complainant AAA, her younger brother BBB, her mother DDD and P/SUPT. Ruby Grace
Sabino-Diangson. The evidence for the prosecution tends to establish the following facts:

At the time of the incident, AAA was only six (6) years old having been born on. September 11, 1997. 9 Petitioner, who was also known as
"Egay", frequently visits the house of AAA’s family, being the best friend of AAA's father. Around 6:30 o'clock in the evening of April 27, 2004,
AAA and her younger siblings, BBB and CCC, were watching television in their sala, together with petitioner. Meanwhile, their mother DDD
was cooking dinner in the kitchen separated only by a concrete wall from the sala.10

AAA was then wearing short pants 11 and was sitting on the floor with her legs spread apart while watching television and playing with "text
cards." BBB, on the other hand, was seated on a chair beside CCC, some five steps away from AAA. Petitioner was seated on the sofa which
was one foot away from AAA.12

Petitioner then touched AAA's vagina.13 AAA reacted by swaying off his hand.14

BBB saw petitioner using his middle finger in touching AAA's vagina. 15 Upon seeing this, BBB said "Kuya Egay, bad iyan, wag mong kinikiliti
ang pepe ni Ate."16 BBB then went to where DDD was cooking and told her that petitioner is bad because he is tickling AAA's vagina.17 DDD
then called AAA, brought her inside the room and asked her if it were true that petitioner tickled her vagina. AAA answered, "but I swayed his
hand, Mama." DDD again asked AAA how many times have petitioner tickled her vagina and AAA answered, "many times in [petitioner's]
house" and that he also "let her go on the bed, remove her panty, open her legs and lick her vagina."18

As such, DDD confronted petitioner and asked why he did that to AAA. Petitioner said that it was because AAA's panty was wet and that he
was sorry.19

The next day, or on April 28, 2004, DDD brought AAA to Camp Crame for medical examination but because the doctor was not available, AAA
was examined only on April 30, 2004.20

In defense, petitioner denied the accusations against him. Petitioner testified that he merely pacified AAA and BBB who were quarreling over
the text cards. When petitioner separated the children, BBB then said, "bad yan, bad."21 After which, DDD talked to her two children in the
kitchen and when she came out, she asked petitioner if he touched AAA. Petitioner denied having touched AAA and suggested that AAA be
examined.22

The testimony of Melba Garcia, a Purok Leader, was also presented to the effect that she personally knows petitioner and that the latter
enjoys a good reputation. DDD, on the other hand, was the subject of several complaints from the neighbors.23

The RTC found petitioner guilty as charged. The RTC gave full credit to AAA's and BBB's candid testimonies that petitioner inserted his finger
in the vagina of AAA.24 The RTC emphasized that BBB graphically demonstrated the act committed by petitioner by moving his middle finger
constantly. To prove its point, the RTC cited the following excerpt from BBB's testimony:

As such, the RTC disposed:

WHEREFORE, finding accused EDMISAEL LUTAP y CUSP AO GUILTY beyond reasonable doubt of the crime of Rape
under Article 266-A paragraph 2 in relation to Article 266-B of the Revised Penal Code, taking into consideration the
aggravating circumstance that the victim was only six (6) years old at the time of the commission of the offense, he is
hereby sentenced to an indeterminate penalty of SIX (6) YEARS and ONE (1) DAY of PRISION MAYOR as minimum to
TWELVE YEARS (12) YEARS and ONE (1) DAY of RECLUSION TEMPORAL as maximum and to pay the cost.

Accused is further ordered to pay private complainant [AAA] civil indemnity of ₱50,000.00, moral damages of ₱50,000.00
and exemplary damages of ₱25,000.00.

SO ORDERED.26

From this adverse decision, petitioner appealed.

The Ruling of the CA

Revisiting the testimonies of AAA and BBB, the CA found that there was no insertion of petitioner's finger into AAA's vagina as it was merely
slightly touched27 or touched without too much pressure by petitioner.28 The CA went on to conclude that since petitioner's finger merely
touched AAA's vagina and that there was no penetration, petitioner can only be held liable for attempted rape.

The CA thus disposed:

WHEREFORE, premises considered, the assailed August 23, 2010 Decision of the Regional Trial Court of Quezon City,
Branch 94, is hereby MODIFIED. Accused-appellant Edmisael Lutap y Cuspao is found GUILTY of Attempted Rape, and
is SENTENCED to suffer the indeterminate imprisonment of SIX (6) MONTHS of arresto mayor, as minimum, to FOUR (4)
YEARS and TWO (2) MONTHS of prision correccional medium, as maximum.

Also, the accused-appellant is ordered to indemnify the victim in the sum of ₱30,000.00 as civil indemnity, ₱25,000.00 as
moral damages and ₱l0,000.00 as exemplary damages, and to pay the costs.

SO ORDERED.29

Petitioner's motion for reconsideration was similarly denied by the CA. Hence, the instant recourse.

The Issue

Petitioner questions the CA's finding that the crime of attempted rape was committed considering that there is absolutely no showing in this
case that petitioner's sexual organ had ever touched the victim's vagina nor any part of her body.30 Petitioner likewise argues that there is no
clear, competent, convincing and positive evidence that petitioner touched the vagina of the victim with the intention of forcefully inserting his
finger inside. Petitioner directs the Court's attention to the fact that at the time of the alleged incident, AAA was wel1 clothed, her vagina fully
covered as she was then wearing a panty and a short pants.31

Thus, the core issue tendered in this petition is whether or not the CA erred in convicting petitioner for the crime of attempted rape on the
basis of the evidence thus presented.

Our Ruling

The petition is partly meritorious.

We agree with the CA's ruling that the fact of insertion of petitioner's finger into AAA's sexual organ was not established beyond reasonable
doubt to support petitioner's conviction of rape by sexual assault. We also agree with the CA that there was sexual molestation by petitioner's
established act of touching AAA's vagina. Be that as it may, the act of touching a female's sexual organ, standing alone, is not equivalent to
rape, not even an attempted one.32 At most, therefore, petitioner's act of touching AAA's sexual organ demonstrates his guilt for the crime of
acts of lasciviousness, an offense subsumed in the charge of rape by sexual assault.33

Rape, under Article 266-A of the Revised Penal Code, as amended by Republic Act No. 8353 or the "Anti-Rape Law of 1997" can be
committed in two ways: Article 266-A paragraph 134 refers to rape through sexual intercourse, the central element of which is carnal
knowledge which must be proven beyond reasonable doubt; and Article 266-A paragraph 235 refers to rape by sexual assault which must be
attended by any of the circumstances enumerated in sub-paragraphs (a) to (d) of paragraph I.36

The direct examination of AAA and BBB, as well as the clarificatory questions interposed by the RTC, while convincingly prove that there was
malicious touching of AAA's sexual organ, nevertheless invite doubts as to whether petitioner indeed inserted his finger inside AAA's vagina.

Thus, absent any showing that there was actual insertion of petitioner's finger into AAA's vagina, petitioner cannot be held liable for
consummated rape by sexual assault.

People v. Mendoza,39 explains that for a charge of rape by sexual assault with the use of one's fingers as the assaulting object, as in the
instant case, to prosper, there should be evidence of at least the slightest penetration of the sexual organ and not merely a brush or a graze of
its surface, being that rape by sexual assault requires that the assault be specifically done through the insertion of the assault object into the
genital or anal orifices of the victim.40

Applying by analogy the treatment of "touching" and "entering" m penile rape as explained in People v. Campuhan,41 Mendoza states:

The touching of a female's sexual organ, standing alone, is not equivalent to rape, not even an attempted one. With
regard to penile rape, People v. Campuhan explains:

xxx Thus, touching when applied to rape cases does not simply mean mere epidermal contact,
stroking or grazing of organs, a slight brush or a scrape of the penis on the external layer of the
victim's vagina, or the mons pubis, as in this case. There must be sufficient and convincing proof that
the penis indeed touched the labias or slid into the female organ, and not merely stroked the external
surface thereof, for an accused to be convicted of consummated rape. xxx

xxx Jurisprudence dictates that the labia majora must be entered for rape to be consummated and
not merely for the penis to stroke the surface of the female organ. Thus, a grazing of the surface of
the female organ or touching the mans pubis of the pudendum is not sufficient to constitute
consummated rape. Absent any showing of the slightest penetration of the female
organ, i.e., touching of either labia of the pudendum by the penis, there can be no consummated
rape; at most, it can only be attempted rape, if not acts of lasciviousness. (Italics in the original.)

What was established beyond reasonable doubt in this case was that petitioner touched, using his middle finger, AAA's sexual organ which
was then fully covered by a panty and a short pants. However, such is insufficient to hold petitioner liable for attempted rape by sexual assault.
As above intimated, the mere touching of a female's sexual organ, by itself, does not amount to rape nor does it suffice to convict for rape at
its attempted stage.42

The Court's explanation of attempted penile rape in Cruz v. People43 is instructive:

 In attempted rape, therefore, the concrete felony is rape, but the offender does not perform all the acts of execution of
having carnal knowledge. If the slightest penetration of the female genitalia consummates rape, and rape in its attempted
stage requires the commencement of the commission of the felony directly by overt acts without the offender performing
all the acts of execution that should produce the felony, the only means by which the overt acts performed by the accused
can be shown to have a causal relation to rape as the intended crime is to make a clear showing of his intent to lie with
the female. Accepting that intent, being a mental act, is beyond the sphere of criminal law, that showing must be through
his overt acts directly connected with rape. He cannot be held liable for attempted rape without such overt acts
demonstrating the intent to lie with the female. In short, the State, to establish attempted rape, must show that his overt
acts, should his criminal intent be carried to its complete termination without being thwarted by extraneous matters, would
ripen into rape, for, as succinctly put in People v. Dominguez, Jr.: "The gauge in determining whether the crime of
attempted rape had been committed is the commencement of the act of sexual intercourse, i.e., penetration of the penis
into the vagina, before the interruption." (Italics and citations omitted.)

Applying by analogy the above pronouncements to attempted rape by sexual assault, petitioner's direct overt act of touching AAA's vagina by
constantly moving his middle finger cam1ot convincingly be interpreted as demonstrating an intent to actually insert his finger inside AAA's
sexual organ which, to reiterate, was still then protectively covered, much less an intent to have carnal knowledge with the victim. An inference
of attempted rape by sexual intercourse or attempted rape by sexual assault cannot therefore be successfully reached based on petitioner's
act of touching AAA's genitalia and upon ceasing from doing so when AAA swayed off his hand.

Instead, petitioner's lewd act of fondling AAA's sexual organ consummates the felony of acts of lasciviousness. The slightest penetration into
one's sexual organ distinguishes an act of lasciviousness from the crime of rape. People v. Bonaagua44 discussed this distinction:

It must be emphasized, however, that like in the crime of rape whereby the slightest penetration of the male organ or even
its slightest contact with the outer lip or the labia majora of the vagina already consummates the crime, in like manner, if
the tongue, in an act of cunnilingus, touches the outer lip of the vagina, the act should also be considered as already
consummating the crime of rape through sexual assault, not the crime of acts of lasciviousness. Notwithstanding, in the
present case, such logical interpretation could not be applied. It must be pointed out that the victim testified that Ireno only
touched her private part and licked it, but did not insert his finger in her vagina. This testimony of the victim, however, is
open to various interpretation, since it cannot be identified what specific part of the vagina was defiled by Ireno. Thus, in
conformity with the principle that the guilt of an accused must be proven beyond reasonable doubt, the statement cannot
be the basis for convicting Ireno with the crime of rape through sexual assault.45 (Emphasis supplied)

Since there was neither an insertion nor an attempt to insert petitioner's finger into AAA's genitalia, petitioner can only be held guilty of the
lesser crime of acts of lasciviousness following the variance doctrine enunciated under Section 4 46 in relation to Section 547 of Rule 120 of the
Rules on Criminal Procedure. Acts of lasciviousness, the offense proved, is included in rape, the offense charged.48

Pursuant to Article 336 of the RPC, acts of lasciviousness is consummated when the following essential elements are present: (a) the offender
commits any act of lasciviousness or lewdness upon another person of either sex; and (b) the act of lasciviousness or lewdness is committed
either (i) by using force or intimidation; or (ii) when the offended party is deprived of reason or is otherwise unconscious; or (iii) when the
offended party is under 12 years of age. 49 As thus used, lewd is defined as obscene, lustful, indecent, lecherous; it signifies that form of
immorality that has relation to moral impurity; or that which is carried on a wanton manner. 50 All of these elements are present in the instant
case.

It is likewise undisputed that at the time of the commission of the lascivious act, AAA was six (6) years old which calls for the application of
Section 5(b) of Republic Act No. 7610 defining sexual abuse of children and prescribing the penalty therefor, as follows:

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:

xx xx

(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 [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; xxx

Apropos, Section 2(h) of the rules implementing R.A. 7610 defines lascivious conduct as:

[T]he 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 pubic area of a person. (Emphasis supplied)

In Quimvel v. People51, the Court En Banc pronounced that Section 5(b) covers not only a situation where a child is abused for profit but also
one in which a child, through coercion, intimidation or influence, engages in sexual intercourse or lascivious conduct.
Further, Quimvel instructs that the term "coercion and influence" as appearing under the law is broad enough to cover "force and intimidation".

In this case, the Information specifically stated that: (a) AAA was a 6- year old minor at the time of the commission of the offense; (b) that
petitioner inserted his finger into AAA's genitalia; and (c) petitioner employed force, threats and intimidation. At the trial it was established that
petitioner committed a lewd act by fondling AAA's vagina who, at the time of the incident, was alleged and proved to be only 6 years old. Here,
it was also established that AAA, being of tender age, knew and trusted petitioner who frequents their house being the best friend of her
father, thus, satisfying the element of "influence" exerted by an adult which led AAA to indulge in lascivious conduct. Petitioner's defense of
denial, apart from being inherently weak,52 is demolished by AAA's and BBB's testimonies which the RTC and the CA unanimously regarded
as straightforward and credible.

Conclusively, the elements of acts of lasciviousness under Article 336 of the RPC and of lascivious conduct under R.A. 7610 were established
in the present case. Following People v. Caoili53 , petitioner should be convicted of the offense designated as acts of lasciviousness under
Article 336 of the RPC in relation to Section 5 of R.A. 7610 since the minor victim in this case is below 12 years old and the imposable penalty
is reclusion temporal in its medium period.
Applying the Indeterminate Sentence Law (ISL), and in the absence of mitigating or aggravating circumstances, the minimum term shall be
taken from the penalty next lower to reclusion temporal medium, which is reclusion temporal minimum, which ranges from twelve (12) years
and one (1) day to fourteen (14) years and eight (8) months. The maximum term shall be taken from the medium period of the imposable
penalty, i.e., reclusion temporal in its medium period, which ranges from fifteen (15) years, six (6) months and twenty (20) days to sixteen (16)
years, five (5) months and nine (9) days.54

Accordingly, the prison term is modified to twelve (12) years and one (1) day of reclusion temporal in its minimum period as minimum, to
fifteen (15) years, six (6) months and twenty (20) days of reclusion temporal in its medium period as maximum.

Further, in line with recent jurisprudence, petitioner is ordered to pay AAA moral damages, exemplary damages and fine in the amount of
PhP15,000.00 each and civil indemnity in the amount of PhP20,000.00.55

WHEREFORE, the petition is PARTLY GRANTED. The Decision dated July 10, 2012 and Resolution dated October 25, 2012 of the Court of
Appeals (CA) in CA-G.R. CR No. 33630 finding petitioner Edmisael Lutap guilty of attempted rape is REVERSED. The Court finds herein
petitioner Edmisael Lutap GUILTY beyond reasonable doubt of the crime of acts of lasciviousness under Article 336 of the Revised Penal
Code in relation to Section 5 of R.A. 7610 and hereby sentences him to suffer the indeterminate penalty of twelve (12) years and one (1) day
of reclusion temporal in its minimum period as minimum, to fifteen (15) years, six (6) months and twenty (20) days of reclusion temporal in ·its
medium period as maximum. Petitioner is ORDERED to PAY private complainant moral damages, exemplary damages and fine in the
amount of PhP15,000.00 each and civil indemnity in the amount of PhP20,000.00.

Petitioner is also ORDERED to PAY interest at the rate of six percent (6%) per annum from the finality of this decision until fully paid, to be
imposed on the damages and civil indemnity.56

SO ORDERED.
MICHAEL JOHN Z. MALTO v. PEOPLE OF THE PHILIPPINES (G.R. No. 164733, September 21, 2007)
Narrative:
AAA was a 17-year old, college, while petitioner Michael Malto, then 28, was her professor in her Philosophy II class in the first semester of
the school year 1997 to 1998. Petitioner Michael started to show amorous attention towards AAA.  He would call her on the phone and
paged her romantic messages. Their conversation always started innocently but he had a way of veering the subject to sex. Young, naive and
coming from a broken family, AAA slowly got attracted to him. He was the first person to court her. Soon, they had a “mutual understanding”
and became sweethearts.
Petitioner Michael continued to seduce AAA to indulge in sexual intercourse with him, which they eventually did. Shortly, in July 1999, AAA
ended their relationship, where she eventually realized that she was actually abused by petitioner. Depressed and distressed, she confided all
that happened between her and petitioner to her mother, BBB. BBB then filed an administrative complaint against petitioner. He was later on
found guilty for violating paragraph (b) of Section 5, Article III of RA 7610.
Petitioner contended that the courts erred in sustaining his conviction. He also claims that he and AAA were sweethearts and their sexual
intercourse was consensual.
The Supreme Court found this unmeritorious. It was found that all elements of paragraph (b) was present. To explain, paragraph (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. It covers not only a situation where a child is abused for profit but also one in which a child, through coercion, intimidation or influence,
engages in sexual intercourse or lascivious conduct.
Here, what it charged was that petitioner Michael committed sexual intercourse and lascivious conduct with AAA; AAA was induced and/or
seduced by petitioner who was her professor to indulge in sexual intercourse and lascivious conduct and AAA was a 17-year old minor.
Consent of the child is immaterial in 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, and that they engaged in these acts out of mutual love and affection.
However, the “sweetheart theory” cannot be invoked in cases of child prostitution and other sexual abuse prosecuted under Section
5, Article III of RA 7610.
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 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. (Otherwise, sexual predators like
petitioner will be justified, or even unwittingly tempted by the law, to view her as fair game and vulnerable prey.)  In other words, a child is
presumed by law to be incapable of giving rational consent to any lascivious act or sexual intercourse.
AAA testified that she was “emotionally devastated” and “lost touch of her inner self” as a result of what petitioner did to her. Because of the
mental anxiety and wounded feelings caused by petitioner to her, she had several sessions with the dean for student affairs  and the guidance
counselor of Assumption College as well as with a psychiatrist.
Hence, petitioner Michael Malto is not entitled to acquittal.
G.R. No. 171863             August 20, 2008

PEOPLE OF THE PHILIPPINES, petitioner,vs.THE HONORABLE COURT OF APPEALS (Second Division) and GASPAR
OLAYON, respondents.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 Pasig City, of which the then 14-year old AAA was alleged to be the victim.

Criminal Case No. 112571 alleged that

On or about 10:00 a.m. of January 27, 1997 in Taguig, Metro Manila and within the jurisdiction of this Honorable Court, the accused, with lewd
designs, did then and there 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.1 (Underscoring supplied)

Criminal Case No. 112572 alleged that

On or about 2:00 p.m. of January 27, 1997 in Taguig, Metro Manila and within the jurisdiction of this Honorable Court, the accused, with lewd
designs, did then and there 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.2 (Underscoring supplied)

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 January 15, 2002, acquitted respondent in Criminal Case No. 116350 (for acts of
lasciviousness).5 It, however, convicted respondent of violation of Section 10 (a) of Republic Act (R.A.) No. 7610  in Criminal Case
Nos. 112571-72 in this wise:

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 January 27, 1997 at the house of one Duke Espiritu show that [AAA] went with Olayon to that place voluntarily.
First, she was fetched from a tricycle stand and it took them another ride to go to the house of Espiritu. If indeed she was forced to board the
tricycle, she could have resisted and shouted for help considering that there were normally people around in a tricycle stand, waiting for rides.
If she indeed resisted and showed any manifestation in this regard, people could have easily helped her in resisting whatever it was Olayon
wanted. Second, at the house of Espiritu she could have easily shouted for help since it was located near a road and a pathway. x x x

xxxx

Although the sexual liaisons that occurred on January 27, 1997 were with the consent of [AAA] who at that time was only 14 years of age,
Olayon cannot escape responsibility because he took advantage of [AAA’s] minority to have these sexual liaisons , even if they were with
her consent. Consent is not an accepted defense in this special law. He violated then Republic Act No. 7610, Section 10(a) which provides:

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 x6 (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 Decision9 of
January 13, 2006, reasoning as follows:

"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 certiorari11 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:

xxxx

(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. People26 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.
[ G.R. No. 235610, September 16, 2020 ]

RODAN A. BANGAYAN, PETITIONER, VS. PEOPLE OF THE PHILIPPINES, RESPONDENT.DECISIONCARANDANG, J.:

This is a Petition for Review on Certiorari1 assailing the Decision2 dated June 28, 2017 of the Court of Appeals finding Rodan Bangayan y Alcaide
(Bangayan) guilty beyond reasonable doubt of violation of Section 5(b), Article III of Republic Act No. (R.A) 7610, the dispositive portion of which
reads:FOR THE STATED REASONS, the appeal is DENIED. The assailed Decision of the Regional Trial Court
is AFFIRMED with MODIFICATION that the award of damages is increased to Php 75,000.00 each as civil indemnity, moral damages and exemplary
damages.SO ORDERED.3

Antecedents: The Information4 against Bangayan alleges: That sometime in the month of January, [sic] 2012 at Brgy. San Ramos, Municipality of
Nagtipunan, Province of Quirino, Philippines,. and within the jurisdiction of this Honorable Court, the above-named Accused, with intent to abuse,
harass and degrade AAA5, a twelve (12) year old minor at that time, and gratify the sexual desire of said accused, the latter did then and there, willfully,
unlawfully and feloniously, had sexual intercourse with said AAA, in her dwelling against her will and consent.6

During trial, the prosecution presented three (3) witnesses, namely: (1) PO2 Rosalita Manilao (PO2 Manilao); (2) BBB;7 and (3) Dr. Luis Villar (Dr.
Villar). The following documents were likewise submitted in evidence: (1) Malaya at Kusang Loob na Salaysay of AAA; 8 (2) Malaya at Kusang Loob na
Salaysay ni BBB;9 (3) Medical Certificate issued by Dr. Villar;10 and (4) Certificate of Live Birth of AAA.11

According to the prosecution's witnesses, on January 5, 2012, AAA's brother, BBB, upon arriving home from the farm, saw Bangayan laying on top of
AAA. Bangayan and AAA were both naked from the waist down. 12 BBB shouted at Bangayan and told him that he would report what he did to AAA but
the latter allegedly threatened to kill him if he tries to tell anyone.13 AAA was born on December 14, 1999 and was more than 12 years old at the time of
the incident.14

On April 24, 2012, AAA, accompanied by her aunt, CCC,15 reported the incident to the police.16 On the same date, Dr. Villar examined AAA. The
pertinent portion of the Medico-Legal Report17 revealed the following:

Physical Examination Findings:

1. Formed and developed areolar complexes.

2. Developed labia majora,

3. No recent hymenal injury but the edges are smooth and the opening approximates the size of the index finger of the examiner.18

When Dr. Villar testified, he confirmed that AAA admitted to him that she had sexual intercourse with Bangayan on several occasions even prior to
January 5, 2012.19 He explained that the "opening" noted during his examination, as stated in item no. 3 of the physical findings, is not a normal
occurrence. For a young patient like AAA, it should have been closed. He further testified that AAA was already pregnant when she was examined
because her fundus is 15 centimeters in height and the presence of 151 beats per minute at the last lower quadrant of her abdomen was
observed.20 These indicate that, at the time of the examination, she was two (2) to three (3) months pregnant, which could be compatible with the claim
that she had sexual intercourse with Bangayan in January 2012, the date stated in the information, or even before said date. 21 On October 2, 2012, AAA
gave birth to a baby boy.22

Notably, during arraignment on September 4, 2014, the counsel of Bangayan manifested that AAA, who was then 14 years old, executed an Affidavit of
Desistance23 stating that she has decided not to continue the case against Bangayan because they "are living [together] as husband and wife and was
blessed with a healthy baby boy."24 Thus, the Regional Trial Court (RTC) ordered that the Office of the Municipal Social Welfare Development Officer
conduct a case study on AAA.25

On May 4, 2015, their second child was born.26

Ruling of the Regional Trial Court: After trial, the RTC of Maddela, Quirino, Branch 38 rendered its Decision27 dated April 11, 2016, the dispositive
portion of which reads: WHEREFORE, premises considered, judgment is hereby rendered finding RODAN BANGAYAN y ALCAIDE GUILTY beyond
reasonable doubt of violation of Section 5 (b), Article III of Republic Act 7610 and sentences him to an imprisonment of 14 years and 8 months of
reclusion temporal as minimum to 20 years of reclusion temporal as maximum. However, his preventive imprisonment shall be fully credited to him in
the service of sentence pursuant to Article 29 of the Revised Penal Code, as amended.Accused is ordered to pay [AAA] the amount of 1 PHP
50,000.00 as civil indemnity with interest of 6% per annum from finality of the decision until fully paid.With the category of the accused as a national
prisoner, the Clerk of Court is directed to prepare the corresponding mittimus or commitment order for his immediate transfer to the Bureau of
Corrections and Penology, Muntinlupa City, pursuant to SC Circular No. 4- 92-A dated April 20, 1992.SO ORDERED.28 (Emphasis in the original)

In convicting Bangayan, the RTC found that the prosecution was able to establish the elements of Section 5(b), Article III of R.A. 7610. Bangayan had
sexual intercourse with AAA who was born on December 14, 1999 and was 12 years, one (1) month, and 14 days old at the time of the incident. 29 For
the RTC, the moral ascendancy or influence of Bangayan over AAA is beyond question due to their age gap of 15 years, and the fact that he is her
brother- in-law, he being the brother of the husband of her older sister. 30 The RTC ruled that it will not matter if AAA consented to her defloration
because as a rule, the submissiveness or consent of the child under the influence of an adult is not a defense in sexual abuse.31 The RTC also
considered the Affidavit of Desistance AAA executed as hearsay evidence because she did not testify regarding its execution. The RTC added that an
Affidavit of Desistance is like an Affidavit of Recantation which the court does not look with favor.32

On appeal33 Bangayan impugned the findings of the RTC and argued that the trial court gravely erred in finding that the defense failed to prove by clear
and convincing evidence that he is not criminally liable for the act complained of. 34 Bangayan argued that he had proven, by clear and convincing
evidence, that he is in a relationship with AAA and that the act complained of was consensual. 35 Bangayan maintained that their persisting relationship
should be taken into account and be considered an absolutory cause.36 He averred that this is similar to Article 266-C of R.A. 8353, or the Anti-Rape
Law of 1997, on the effect of pardon where the subsequent valid marriage of the offended party to the offender shall extinguish the criminal action or the
penalty imposed. While there is no valid marriage to speak of yet, they were clearly living together as husband and wife as evidenced by the birth of
their second child. Bangayan asserted that it would be in the best interest of their growing family to acquit him and allow him to help with rearing their
children.37

Ruling of the Court of Appeal: In a Decision38 dated June 28, 2017, the Court of Appeals denied Bangayan's appeal and affirmed with modification his
conviction. The award of civil indemnity, moral damages, and exemplary damages were each increased to P75,000.00.39

In affirming Bangayan's conviction, the Court of Appeals held that the elements of sexual abuse under Section 5, Article III of R.A.7610 were
established as follows: (1) BBB positively identified Bangayan as the person who had sexual intercourse with his minor sister and AAA was confirmed to
be 2-3 months pregnant at the time of her medical examination; (2) AAA was subjected to sexual abuse under the coercion and influence of Bangayan
because he was already 27 years old or 15 years her senior, thus making her vulnerable to the cajolery and deception of adults; and (3) It was proven
that, at the time of the incident, she was only 12 years and one (1) month old – a minor not capable of fully understanding or knowing the nature or
import of her actions.40

The Court of Appeals emphasized that consent of the child is immaterial in cases involving violation of Section 5, Article III of R.A. 7610. It was held that
the Sweetheart Theory is a defense in acts of lasciviousness and rape that are felonies against or without the consent of the victim. It operates on the
theory that the sexual act was consensual. However, for purposes of sexual intercourse and lascivious conduct in child abuse cases under R.A. 7610,
the Court of Appeals ruled that the Sweetheart Theory defense is unacceptable.

Petitioner's Motion for Reconsideration41 was denied in a Resolution42 dated October 24, 2017. Hence, this petition for review.

Bangayan filed the instant Petition for Review43 on January 5, 2018, assailing the Decision of the Court of Appeals dated June 28, 2017 and its
subsequent Resolution dated October 24, 2017. He insists that he was able to prove by clear and convincing evidence that he should not be held
criminally liable for the act complained of because they were in a relationship at the time of its commission. 44 For Bangayan, the fact that they were
allowed to be together after the alleged sexual -abuse and that AAA conceived their second child right after the complaint was filed in court negate the
claim that AAA was unwilling.45 Bangayan posits that his continuing relationship with AAA should be considered an absolutory cause.46 Invoking the best
interest of their family, Bangayan prays that he be acquitted and be allowed to help raise their family.

Meanwhile, the People of the Philippines, through the Office of the Solicitor General, manifested that it is no longer filing a Comment and is merely
adopting its Brief for the Plaintiff-Appellee previously filed with the Court of Appeals.47

Issue: The issue to be resolved in this case is whether Bangayan may use as a defense the consent of AAA and his on-going relationship with her
which had already produced two children to exonerate himself from the charge of violation of Section 5(b), Article III of-R.A. 7610. YES!!!

Ruling of the Court: The petition is meritorious. The records of this case show that the prosecution failed to establish all the elements of sexual abuse
contemplated under Section 5(b), Article III of R.A. 761048 which provides:

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:

(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 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 subjected 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;49

The following requisites must concur: (1) the accused commits the act of sexual intercourse or lascivious conduct; (2) the act is performed with a child
exploited in prostitution or subjected to other sexual abuse; and (3) the child, whether male or female is below eighteen (18) years of age. 50 This
paragraph "punishes sexual intercourse or lascivious conduct not only with a child exploited in prostitution but also with a child subjected to other sexual
abuse. It covers not only a situation where a child is abused for profit but also one in which a child, through coercion, intimidation or influence, engages
in sexual intercourse or lascivious conduct.51

Pursuant to the Implementing Rules and Regulations of R.A. 7610, "sexual abuse" includes 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.52 The present case does not fall under any of the circumstances enumerated. Therefore, not all the elements of the crime were
present to justify Bangayan's conviction.

In explicitly stating that children deemed to be exploited in prostitution and other sexual abuse under Section 5 of R.A. 7610, refer to those who engage
in sexual intercourse with a child "for money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group," 53 it is
apparent that the intendment of the law is to consider the condition and capacity of the child to give consent.

Section 5(b) of R.A 7610 qualifies that when the victim of the sexual abuse is under 12 years of age, the perpetrator shall be prosecuted under the
Revised Penal Code.54 This means that, regardless of the presence of any of the circumstances enumerated and consent of victim under 12 years of
age, the perpetrator shall be prosecuted under the Revised Penal Code. On the other hand, the law is noticeably silent with respect to situations where
a child is between 12 years old and below 18 years of age and engages in sexual intercourse not -'for money, profit, or any other consideration or due
to the coercion or influence of any adult, syndicate or group." Had it been the intention of the law to absolutely consider as sexual abuse and punish
individuals who engage in sexual intercourse with "children" or those under 18 years of age, the qualifying circumstances enumerated would not have
been included in Section 5 of R.A. 7610.

Taking into consideration the statutory construction rules that penal laws should be strictly construed against the state and liberally in favor of the
accused, and that every law should be construed in such a way that it will harmonize with existing laws on the same subject matter, We reconcile the
apparent gap in the law by concluding that the qualifying circumstance cited in Section 5(b) of R.A. 7610, which "punishes sexual intercourse or
lascivious conduct not only with a child exploited in prostitution but also with a child subjected to other sexual abuse," leave room for a child between 12
and 17 years of age to give consent to the sexual act. An individual who engages in sexual intercourse with a child, at least 12 and under 18 years of
age, and not falling under any of these circumstances, cannot be held liable under the provisions of R.A. 7610. The interpretation that consent is
material in cases where victim is between 12 years old and below 18 years of age is favorable to Bangayan. It fills the gap in the law and is consistent
with what We have explained in the case of People v. Tulagan,55 to wit:
However, considering the definition under Section 3(a) of R.A. No. 7610 of the term "children" which 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, We find that the opinion in Malto, that a child is presumed by law to be incapable of giving rational
consent, unduly extends the concept of statutory rape or acts of lasciviousness to those victims who are within the range of 12 to 17 years old, and
even those 18 years old and above under special circumstances who are still considered as "children" under Section 3(a) of R.A. No. 7610. While Malto
is correct that consent is immaterial in cases under R.A. No. 7610 where the offended party is below 12 years of age, We clarify that consent of the
child is material and may even be a defense in criminal cases involving violation of Section 5, Article III of R.A. No. 7610 when the offended party is 12
years old or below 18, or aboye 18 under special circumstances. Such consent may be implied from the failure to prove that the said victim engaged in
sexual intercourse either "due to money, profit or any other consideration or due to the coercion or influence of any adult, syndicate or group."

xxxx

If the victim who is 12 years old or less than 18 and is deemed to be a child "exploited in prostitution and other sexual abuse" because she agreed to
indulge in sexual intercourse "for money, profit or any other consideration or due to coercion or influence of any adult, syndicate or group," then the
crime could not be rape under the RPC, because this no longer falls under the concept of statutory rape, and there was consent. That is why the
offender will now be penalized under Section 5(b), R.A. No. 7610, and not under Article 335 of the RPC [now Article 266-A], But if the said victim does
not give her consent to sexual intercourse in the sense that the sexual intercourse was committed through force, threat or intimidation, the crime Is rape
under paragraph 1, Article 266-A of the RPC. However, if the same victim gave her consent to the sexual intercourse, and no money, profit,
consideration, coercion or influence is involved, then there is no crime committed, except in those cases where "force, threat or intimidation" as an
element of rape is substituted by "moral ascendancy or moral authority," like in the cases of incestuous rape, and unless it is punished under the RPC
as qualified seduction under Article 337 or simple seduction under Article 338.56 (Emphasis and underscoring supplied; citations omitted)

We are not unmindful that in Tulagan, the accused inserted his finger into a nine-year-old girl's vagina and had sexual intercourse with her.
Nevertheless, the vital discussion made by the Court with respect to the capacity of a victim aged between 12 years old and below 18 years of age to
give rational consent to engage in sexual activity (sexual consent) cannot simply be disregarded. Though it may be considered obiter dictum, the
principle laid down in the majority opinion, speaking through the ponencia of then Associate Justice Diosdado Peralta, now Chief Justice, remains
relevant and crucial to the resolution of the present case because it clearly outlined the essential elements of the offense. The discussion of the Court
in Tulagan should serve as a guide in resolving situations identified by the Court to be potential sources of conflicting interpretations. The fact
that Tulagan did not involve a victim between 12 years old and below 18 years old should not dissuade the Court from applying a principle that aims to
clarify and harmonize conflicting provisions due to an apparent gap in the law.

Recently, in Monroy v. People,57 We adopted the ruling in Tulagan, to wit:

xxx [I]t bears to point out that "consent of the child is material and may even be a defense in criminal cases" involving the aforesaid violation when the
offended party is 12 years old or below 18 years old, as in AAA's case. The concept of consent under Section 5 (b), Article III of RA 7610 peculiarly
relates to the second element of the crime - that is, the act of sexual intercourse is performed with a child exploited in prostitution or subjected to other
sexual abuse. A child is considered "exploited in prostitution or subjected to other sexual abuse when the child is predisposed to indulge in sexual
intercourse or lascivious conduct because of money, profit or any other consideration or due to the coercion of any adult, syndicate, or group.

x x x x58 (Emphasis supplied; citations omitted)

Therefore, it is now clear that consent is a material factor in determining the guilt of Bangayan.

In Monroy,59 then 28-year-old accused was charged with violation of Section 5 (b) Article III of R.A. 7610 for inserting his penis into the vagina of a 14-
year-old. The Court acquitted the accused on reasonable doubt, finding that the sexual intercourse that transpired between the accused and the 14-
year-old was consensual and that the case against the accused is based merely on trumped-up allegations meant as retaliation. In Monroy, the
accused was 14 years older or twice the age of the alleged victim yet the Court found that she was not subjected to other sexual abuse due to the
coercion of an adult as they were in a relationship. Similarly, in the present case, Bangayan was more or less 15 years older than AAA. While difference
in age may be an indication of coercion and intimidation and negates the presence of sexual consent, this should not be blindly applied to all instances
of alleged sexual abuse cases. Therefore, the Court must not be restricted in identifying the presence of coercion and intimidation by a simple
mathematical computation of the age difference.

The sweeping and confusing conclusions in the case of Malto v. People60 and the application of contract law in determining the relevance of consent in
cases under R.A. 7610 is not proper. We had the opportunity to shed light on this matter in People v. Tulagan61 where We observed that:

We take exception, however, to the sweeping conclusions in Malto (1) that "a child is presumed by law to be incapable of giving rational consent to any
lascivious conduct or sexual intercourse" and (2) that "consent of the child is immaterial in criminal cases involving violation of Section 5, Article III of RA
7610" because they would virtually eradicate the concepts of statutory rape and statutory acts of lasciviousness, and trample upon the express
provisions of the said law.62

Accordingly, the Court deems it prudent to rectify the difference between the concept of consent under contract law and sexual consent in criminal law
which determines the guilt of an individual engaging in a sexual relationship with one who is between 12 years old or below 18 years of age. These are
concepts that are distinct from each other and have differing legal implications.

The law limits, to varying degrees, the capacity of an individual to give consent. While in general, under the civil law concept of consent, in relation to
capacity to act, all individuals under 18 years of age have no capacity to act, the same concept cannot be applied to consent within the context of
sexual predation. Under civil law, the concept of "capacity to act" or "the power to do acts with legal effects" 63 limits the capacity to give a valid consent
which generally refers to "the meeting of the offer and the acceptance upon the thing and the case which are to constitute the contract." 64 To apply
consent as a concept in civil law to criminal cases is to digress from the essence of sexual consent as contemplated by the Revised Penal Code and
R.A. 7610. Capacity to act under civil law cannot be equated to capacity to give sexual consent for individuals between 12 years old and below 18 years
of age. Sexual consent does not involve any obligation within the context of civil law and instead refers to a private act or sexual activity that may be
covered by the Revised Penal Code and R.A. 610.

More importantly, Our earlier pronouncement regarding consent in Malto failed to reflect teenage psychology and predisposition. We recognize that the
sweeping conclusions of the Court in Malto failed to consider a juvenile's maturity and to reflect teenagers' attitude towards sex in this day and age.
There is a need to distinguish the difference between a child under 12 years of age and one who is between 12 years old and below 18 years of age
due to the incongruent mental capacities and emotional maturity of each age group. It is settled that a victim under 12 years old or is demented "does
not and cannot have a will of her own on account of her tender years or dementia; thus, a child or a demented person's consent is immaterial because
of her presumed incapacity to discern good from evil." 65 As such, regardless of the willingness of a victim under 12 years old to engage in any sexual
activity, the Revised Penal Code punishes statutory rape and statutory acts of lasciviousness. On the other hand, considering teenage psychology and
predisposition in this day and age, We cannot completely rule out the capacity of a child between 12 years old and below 18 years of age to give sexual
consent.

Consequently, although We declared in Malto that the Sweetheart Theory is unacceptable in violations of R.A. 7610 since "a child exploited in
prostitution or subjected to other sexual abuse cannot validly give consent to sexual intercourse with another person,"66 We deem it judicious to review
the Decision of the court a quo and reiterate Our recent pronouncements in Tulagan and Monroy and clarify the ambiguity created in the Malto case in
resolving the case at bar.

Where the age of the child is close to the threshold age of 12 years old, as in the case of AAA who was only 12 years and one month old at the time of
the incident, evidence must be strictly scrutinized to determine the presence of sexual consent. The emotional maturity and predisposition of a juvenile,
whose age is close to the threshold age of 12, may significantly differ from a child aged between 15-18 who may be expected to be more mature and to
act with consciousness of the consequences of sexual intercourse.

In this case, there are special circumstances that reveal the presence consent of AAA. The sexual congress between Bangayan and AAA was not
limited to just one incident. They were in a relationship even after the incident alleged in the Information and had even produced two (2) children. To
Our mind, these are not acts of a child who is unable to discern good from evil and did not give consent to the sexual act.

We also note that the conclusion of the RTC that:

xxx [T]he moral ascendancy or influence of the accused over the victim is beyond question because of their 15 year age gap, not to mention that the
former is also her brother- in-law, he being the brother of the husband of her older sister.67

is erroneous. Contrary to the ruling of the RTC, it cannot be said that Bangayan exercised moral ascendancy over AAA simply because of their 15-year
age gap and the fact that he is her "brother-in-law." Following the concept of brother-in-law in its ordinary sense, Bangayan is not AAA's brother-in-law
because a brother-in-law refers only to a wife's brother or a sister's husband. It does not include a brother of the husband of AAA's older sister.

We must take into account Bangayan's defense that, at the time of the incident, he and AAA were lovers. The conduct of Bangayan and AAA, which is
the subject of the Information against him, is not the sexual abuse punished by the law. While placed in an unusual predicament, We recognize that
Bangayan and AAA are in a relationship that had produced not just one (1) offspring but two (2). While AAA was a child, as defined under R.A. 7610,
being under 18 years of age at the time she and Bangayan engaged in sexual intercourse, there was no coercion, intimidation or influence of an adult,
as contemplated by the law. AAA consented to the sexual act as reflected in her conduct at the time of the commission of the act and her subsequent
conduct shown in the records.

AAA did not testify during the trial. Had she testified, the trial court would have been able to confirm the veracity of the allegations in the sworn
statement68 she executed and the statements she allegedly made to Dr. Villar during her medical examination on April 24, 2012. We cannot simply
accept the statement of Dr. Villar that AAA admitted to him that she had sexual intercourse with Bangayan even before 2012. 69 This statement is
hearsay as he has no personal knowledge of, it. Moreover, this is not even alleged in the Information70 filed against him.

Furthermore, Section 34 of Rule 132 of the Rules provides:

Section. 34. Offer of evidence. - The court shall consider no evidence which has not been formally offered. The purpose for which the evidence is
offered must be specified.

In Gumabon v. Philippine National Bank,71 the Court explained that formal offer "means that the offeror shall inform the court of the purpose of
introducing its exhibits into evidence." In the absence of a formal offer, courts cannot take notice of the evidence even if this has been previously
marked and identified.72

The Social Case Study Report73 reflecting the evaluation of Social Welfare Officer III Theresa A. Mauricio (Mauricio) on AAA's social, emotional, and
intellectual development cannot be admitted nor be given any credence by the Court. Mauricio made the following recommendations in her report:

Based on the above information, the client suffered multiple emotional crisis that hampered her growth and development. She has the time, knowledge,
potentials and abilities that could enhance her total development. However, as early as 7 years old, she had crisis due to role confusion.

Being abused, she was unable to develop her unique values or personality. She was not allowed the opportunities to acquire friends, develop skills and
knowledge through formal education.

Living together with the perpetuator [sic] could support her longing for a parental figure. He served as support for her existence but considering his
weaknesses such as from abusing her, the lack for sense of responsibility and assertiveness as lack of resources should affect the future of the minor
and son. He could not provide the basic needs such as food, shelter and education with his disposition in life.

The minor had the CHANCE to grab the opportunities of the PRESENT and the FUTURE once she is AWAY with her perpetuator [sic]. Support from
relatives is highly recommended for direction.

The honored court is then requested for favorable action that will promote the general welfare of the minor- [AAA] and her family.74

A careful study of the records reveals that the RTC received the Social Case Study Report dated September 25, 2014 on October 8, 2014. Although the
testimony of the social worker was included in the Pre-Trial Order, 75 the document was never properly" idehtified, authenticated by the social worker
who prepared the report, and included in the formal offer of evidence. 76 The social worker never testified in open court and the defense was never given
an opportunity to test her credibility and verify the correctness and accuracy of her findings. To Our mind, giving credence to evidence which was not
formally offered during trial would deprive the other party of due process. Thus, evidence not formally offered has no probative value and must be
excluded by the court.

Even assuming that the Social Case Study Report was properly presented and formally offered, it cannot be made the basis for establishing the
absence of AAA's sexual consent. The report did not accurately reflect the living condition and the state of her relationship with Bangayan. It did not
negate the presence of AAA's sexual consent at the time the alleged offense was committed. Noticeably, she was already pregnant with their second
child when she was interviewed for the Social Case Study Report and later gave birth while he was incarcerated.77 The contemporaneous and
subsequent acts of AAA, which are more consistent with the claim of Bangayan that AAA consented to the sexual encounter, outweigh the contents of
the Social Case Study Report which are not yet verified. It is worthy to note that even when Bangayan was presented in the witness stand, AAA was
present in court,78 presumably to show support for him. AAA conceived a second child with Bangayan despite the charge against him. Both children
were conceived before he was incarcerated. 79 She did not testify against Bangayan even if she was present during the hearings. These acts of AAA,
and the Affidavit of Desistance she executed, when taken as a whole, bolsters the claim of Bangayan that they were in a relationship when the act
complained of was committed and even lived together without the benefit of marriage after the case against him was filed. Her acts are consistent with
the claim of Bangayan that their relationship existed at the time of commission of the act complained, during trial, and even continued after he was
convicted by the lower court. To Our mind, these factors are clear manifestations that she was not subjected to any form of abuse, and prove that she
consented to the act complained of. Applying the ruling in Tulagan there is no crime committed because AAA freely gave her consent to the sexual
intercourse, and no money, profit, consideration, coercion or influence is involved. Due to the prosecution's failure to establish and prove beyond
reasonable doubt the requisites for the charge of violation of Section 5(b) of R.A. 7610, Bangayan must be acquitted.

Section 2 of R.A. 7610 states that:

xxx [T]he "best interests 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 principle of First Call for Children as enunciated
in the United Nations Convention of the Rights of the Child.
In this exceptional situation, We are not prepared to punish two individuals and deprive their children from having a normal family life simply because of
the minority of AAA at the time she began dating Bangayan. The benefits of living in a nuclear family to AAA and their two (2) children outweigh any
perceived dangers of the on-going romantic relationship Bangayan has with AAA who is 15 years younger than him. This arrangement is more
favorable to the welfare of both parties as they are planning to get married.80 We verified from the records that Bangayan was single at the time he gave
his personal circumstanced when he testified in court. 81 This is more consistent with the principle of upholding the best interests of children as it gives
Bangayan an opportunity to perform his essential parental obligations and be present for their two (2) children.

WHEREFORE, the appeal is GRANTED. The Decision dated April 11, 2016 of the Regional Trial Court of Maddela, Quirino, Branch 38, in Criminal
Case No. 38-510 as well as the Decision dated June 28, 2017 of the Court of Appeals in CA-G.R. CR No. 38723 are hereby REVERSED and SET
ASIDE. Petitioner Rodan A. Bangayan is ACQUITTED. He is ORDERED to be IMMEDIATELY RELEASED unless he is being held for some other valid
or lawful cause. The Director of the Bureau of Corrections is DIRECTED to inform this Court of the action taken hereon within five (5) days from receipt
hereof.

SO ORDERED.