What Is Act Of Lasciviousness | Lascivious Conduct
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Children as we all know are the most vulnerable to sexual abuse. In a series of cases about child being sexually abused, it is very alarming and frightening to realize how widespread sexual abuse is in our country. What is act of lasciviousness, therefore, juxtaposed with lascivious conduct?

The worst scenario in crime of sexual abuse is that the victim doesn’t know that they are being victimized. Many children don’t speak up because they are afraid that they might get hurt more. Child sexual abuse may occur both within and outside the home.

The offender can be anyone who takes advantage of the child to satisfy sexual pleasure. It can be a person related to the child including an elder sibling or playfellow, any family member, a teacher, a coach or an instructor, a caretaker, the parent of another child or stranger etc.

Thanks to our Congress for making laws protecting child rights, for differentiating offenses which relate to children and adults. For this reason, in this article the author will discuss the laws providing punishments for offenses relating to child sexual abuse especially those crimes such as acts of lascivious conduct and lascivious conduct and will determine the rules in charging proper offense.

Article 336 of the Revised Penal Code punishes the crime of acts of lasciviousness. On the other hand, Sec. 5(b) of R.A. 7610 penalized the crime of “lascivious conduct”. At first glance, the two crimes look the same, identical and seem interchangeable. However, these two crimes are distinct and separate offenses.

What is the difference between acts of lasciviousness under the R.P.C. and lascivious conduct under R.A. 7610? In terms of penalty, which one has the higher and lower penalty? As to the offended party, what is the age covered by crimes of acts of lasciviousness and lascivious conduct? In this article, the author will answer the above-mentioned questions.

Moreover, to get you interested in this topic, the following cases might encourage you to read this article because the scenarios below may look the same, but they are not.

  1. The offender inserted his finger into the vagina of the victim who is 15 years of age. What crime is committed?
  2. The offender inserted his finger into the vagina of the victim who is 10 years of age. What crime is committed?
  3. The offender touched the breast of the victim who is below 10 years of age. What crime is committed?
  4. The offender touched the breast of the victim who is 15 years of age. What crime is committed?

What is Acts of Lasciviousness under the Revised Penal Code?

Acts of lasciviousness, as defined and penalized under Article 336 of the Revised Penal Code, is committed by any person who shall commit any act of lasciviousness or lewdness upon other person of either sex, under any circumstances mentioned in Article 335, now Art. 266-A or in the definition of the crime of rape.[1]Art. 336, Act. No. 3815 or “The Revised Penal Code”

Lewd, as defined in People vs. Lizada,[2]G.R. Nos. 143468-71, January 24, 2003 is something indecent, obscene, lustful, and lecherous. It signifies that form of immorality which has relation to moral impurity; or that which is carried on in a wanton manner.

Moreover, in Amployo vs. People,[3]G.R. No. 157718, April 26, 2005 lewd is characterized by or intended to excite crude sexual desire. That an accused is entertaining a lewd or unchaste design is necessarily a mental process the existence of which can be inferred by overt acts carrying out such intention, i.e., by conduct that can only be interpreted as lewd or lascivious.

The presence or absence of lewd designs is inferred from the nature of the acts themselves and the environmental circumstances. Hence, what is or what is not lewd conduct, by its very nature, cannot be pigeonholed into a precise definition.

In other words, what constitutes lewd or lascivious conduct must be determined from the circumstances of each case. The definition does not cover acts such as introduction of any object into the genitalia, anus or mouth. To illustrate, embracing, kissing and holding a woman’s breast against her will constitutes the crime of acts of lasciviousness.

However, in People vs. Anonuevo,[4]People vs Anonuevo 36 OG 2018 a 16-year-old girl attending a religious service at a church was forcibly embraced and the offender held her breasts was considered only as unjust vexation punishable under Article 287 of the Revised Penal Code because considering the religious atmosphere and the presence of many persons, the accused cannot be considered lascivious.

On the contrary, when a man kissed and forcibly embraced a woman, fondled her breasts and also touched her genital organ against her will in a theater, the crime of acts of lasciviousness was committed since the lights were out and people’s attention was concentrated on the picture or screen.[5]U.S. vs. Gomez, G.R. No. 10341. March 3, 1915

Lascivious conduct is punished under R.A. No. 7610

Section 5 of R.A. No. 7610 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.[6]Article 3, Sec. 5 of R.A. No. 7610

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

(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;[7]Article 3, Sec. 5 paragraph (b) of R.A. No. 7610

In other words, as stated in Quimvel vs. People,[8]G.R. No. 214497, April 18, 2017 Sec. 5 paragraph (b) of R.A. No. 7610 punishes sexual intercourse or lascivious conduct committed on 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.

What is lascivious conduct?

“Lascivious conduct” is defined under Section 2 (h) of the rules and regulations of RA 7610 as:[9]Sec.2 (h) of the Rules and Regulations of the Reporting and Investigation of Child Abuse Cases

“x x x . . the 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.[10]Ibid.

From the definition, one can determine that lascivious conduct can be committed by touching, i.e., by intentional touching, either directly or through clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks.

Secondly, lascivious conduct can be committed when there is the introduction of any object into the genitalia, anus or mouth, of any person, whether of the same or opposite sex. For instance, when a penis is inserted into the mouth or anus of another or if it is an object like a finger inserted into the genitalia, anus of another person.

Criminal liability for acts of lasciviousness in relation to Sec. 5 (b) of R.A. No. 7610

In Amployo v. People,[11]Supra., G.R. No. 157718, April 26, 2005 the Court declared that pursuant to Section 5 (b) of RA 7610, before an accused can be convicted of child abuse through lascivious conduct on a minor below 12 years of age, the requisites for acts of lasciviousness under Article 336 of the RPC must be met in addition to the requisites for sexual abuse under Section 5 of RA 7610.

The elements of the crime of acts of lasciviousness under Article 336 of the RPC are the following:

(1) The offender commits any act of lasciviousness or lewdness;

(2) It is done under any of the following circumstances:

  • By using force or intimidation; or
  • When the offended party is deprived of reason or otherwise unconscious; or
  • When the offended party is under 12 years of age; and

(3) The offended party is another person of either sex.[12]LB Reyes (2021). The Revised Penal Code. Book Two. Rex Printing Company, Inc. p. 1142-1143

On the other hand, the elements of sexual abuse under Section 5 (b) of RA 7610 that must be proven in addition to the elements of acts of lasciviousness are as follows:

  1. The accused commits the act of sexual intercourse or lascivious conduct.[13]Section 5 (b) of RA 7610
  2. The said act is performed with a child exploited in prostitution or subjected to other sexual abuse.[14]Id.
  3. The child, whether male or female, is below 18 years of age.[15]Id.

In Dimakuta v. People(2015),[16]G.R. No. 206513 October 20, 2015 the Court ruled that in the event that the offended party is a child victim and the crime of lascivious conduct is covered by the definition under RA 7610 and the act is likewise covered by sexual assault under Art. 266-A (2) of the RPC, the offender should be held liable for violation of Sec. 5 (b), Art. 3 of RA 7610, where the law provides for higher penalty of reclusion temporal.[17]Ibid.

However, if the victim is at least 18 years old, the malefactor should be held liable under par. 2, Art. 266-A of the RPC and not R.A. No. 7610.[18]Ibid.

With the exception that even the victim is 18 years old but unable to fully take care of herself or protect herself for abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability or condition, the malefactor must be liable of sexual abuse under R.A. 7610.  It is because the state affords the special protection and stronger deterrence against a child abuse.[19]Ibid.

Proper offense charge in case of lascivious conduct is committed against children under Sec. 5 of R.A. No. 7610

To achieve uniformity in designating the proper offense, the Court in the 2017 case of People vs. Caoili,[20]G.R. No. 196342, August 08, 2017 prescribes guidelines in designating or charging the proper offense in case of lascivious conduct is committed against children under Sec. 5 of R.A. No. 7610, to wit:

1] The age of the victim is taken into consideration in designating or charging the offense, and in determining the imposable penalty.[21]Ibid.

2] If the victim is under 12 years old, the crime is “Acts of Lasciviousness under Article 336, RPC in relation to Section 5 (b) of R.A. No. 7610.” Pursuant to the second proviso in Section 5(b) of R.A. No. 7610, the imposable penalty is reclusion temporal in its medium period.[22]Ibid.

3] If the victim is exactly twelve (12) years of age, or more than twelve (12) but below eighteen (18) years of age, or is eighteen (18) years old or older but is unable to fully take care of herself/himself or protect herself/himself from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability or condition, the crime should be designated as “Lascivious Conduct under Section 5(b) of R.A. No. 7610,” and the imposable penalty is reclusion temporal in its medium period to reclusion perpetua.[23]Ibid.

Based on the Caoili guidelines, it is only when the victim of the lascivious conduct is 18 years old and above that such crime would be designated as “Acts of Lasciviousness under Article 336 of the RPC” with the imposable penalty of prision correccional.

Relevant Jurisprudence

In Capueta vs. People(2020),[24]G.R. No. 240145, September 14, 2020 the petitioner feloniously touched the legs, arms and private organ of a 6-year old minor. The petitioner was convicted for acts of lasciviousness with the penalty of reclusion temporal in its medium period in relation to Sec. 5 (b) of RA 7610.[25]Ibid.

In Ramilo vs. People (2019),[26]G. R. No. 234841 June 3, 2019 a father commit sexual abuse and lascivious conduct upon her daughter, a 12-year-old minor. The accused was convicted of Lascivious conduct under Sec. 5(b), Art. 3 of R.A. No. 7610 and being the father of the victim, this relationship will be considered aggravating circumstance, hence, he was sentenced to suffer the penalty of reclusion perpetua.[27]Ibid.

In People vs. Dagsa(2018),[28]G.R. No. 219889, January 29, 2018the accused fondled and played on the vagina of a minor, 4 years of age. Thus, the accused was guilty beyond reasonable doubt of acts of lasciviousness under Article 336 of the R.P.C. in relation to Section 5 (b) of RA 7610.[29]Ibid.

Sexual Assault under Article 266-A(2) of the RPC in relation to Section 5(b) of R.A. No. 7610

Relevant Jurisprudence:

In People vs. Tulagan,[30]G.R. No. 227363, March 12 2019 the Court held that:

“If the charge against the accused where the victim is 12 years old or below 18 is sexual assault under paragraph 2, Article 266-A of the RPC, then it may happen that the elements thereof are the same as that of lascivious conduct under Section 5(b) of R.A. No. 7610, because the term “lascivious conduct” includes introduction of any object into the genitalia, anus or mouth of any person.[31]Ibid.

“In this regard, where a “lascivious conduct” committed against a child is covered by R.A. No. 7610 and the act is likewise covered by sexual assault under paragraph 2, Article 266-A of the RPC [punishable by prision mayor], the offender should be held liable for violation of Section 5(b) of R.A. No. 7610 [punishable by reclusion temporal medium], consistent with the declared policy of the State to provide special protection to children from all forms of abuse, neglect, cruelty, exploitation and discrimination, and other conditions prejudicial to their development.[32]Ibid.

“But when the offended party is below 12 years of age or is demented, the accused should be prosecuted and penalized under paragraph 2, Article 266-A of the RPC in relation to Section 5(b) of R.A. No. 7610, because the crime of sexual assault is considered statutory, whereby the evidence of force or intimidation is immaterial.”

Final Thoughts

To sum up, the offended party in “lascivious conduct under Sec. 5(b) of RA 7610” is a minor 12 to 17 years of age, while the offended party in “acts of lasciviousness in relation to Sec. 5(b) of RA 7610” is a minor under 12 years of age. As to their penalty, “acts of lasciviousness in relation to Sec. 5(b) of RA 7610” is reclusion temporal in its medium period, while “lascivious conduct under Sec. 5(b) of RA 7610” is reclusion temporal in its medium period to reclusion perpetua.

Answers to the scenarios:

1] The offender inserted his finger into the vagina of the victim who is 15 years of age. What crime is committed?

Answer: Lascivious conduct. RA 7610 applies if the victim is a minor because the act of touching a breast is within the meaning of “lascivious conduct.”

2] The offender inserted his finger into the vagina of the victim who is 10 years of age. What crime is committed?

Answer: The crime committed is “Sexual Assault under paragraph 2, Art. 266-A of the RPC in relation to Section 5 (b) of R.A. No. 7610”. It is no longer “Acts of Lasciviousness under Article 336, RPC in relation to Section 5 (b) of R.A. No. 7610”

Sexual assault as a form of acts of lasciviousness is no longer covered by Article 336 but by Article 266-A (2) of the R.P.C., as amended by R.A. No. 8353. Nevertheless, the imposable penalty is still reclusion temporal in its medium period, and not prision mayor.

3] The offender touched the breast of the victim who is below 10 years of age. What crime is committed?

Answer: The crime committed is Acts of Lasciviousness. Under the proviso of Sec. 5 (b) of RA 7610, it mandates that the crime is governed by Art. 336, R.P.C, in relation to Sec. 5 (b) of RA 7610.

4] The offender touched the breast of the victim who is 15 years of age. What crime is committed?

Answer: Lascivious Conduct is the crime committed. Since the victim is a minor, a person in 12 years old and below 18 years old, the applicable law is RA 7610.

On March 4, 2022, Republic Act No. 11648 [33]RA 11648 effectively amended several provisions of the Philippines Anti-Rape Law and Anti-Child Abuse Law by increasing the age of sexual consent from 12 years old to 16 years old.

As such, Article III, Section 5 (b) of the Republic Act No. 7610 otherwise known as the Special Protection of Children Against Abuse, Exploitation and Discrimination Act are hereby amended as follows:

“(b) Those who commit the act of sexual intercourse of lascivious conduct with a child exploited in prostitution or subject to other sexual abuse; Provided, That when the victims is under twelve (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 twelve (16) years of age shall be reclusion temporal in its medium period.”[34]Article III, Section 5 (b) of the Republic Act No. 7610

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