Acts of lasciviousness, A336 Revised Penal Code

Acts of lasciviousness – refers to the offense of illegally touching another person’s private parts with the intent of sexual gratification.

1. Concept

Acts of lasciviousness – refers to the offense of illegally touching another person’s private parts with the intent of sexual gratification.

a. Legal basis

Article 336. Acts of lasciviousness. – Any person who shall commit any act of lasciviousness upon other persons of either sex, under any of the circumstances mentioned in the preceding article, shall be punished by prision correccional.

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2. Modes of commission

The following are the modes of committing the offense:

1) Commission of acts of lasciviousness or lewdness

a. Mode 1: Lasciviousness or lewdness

Elements of the offense:

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

2) That it is done under any of the following circumstances: (a) through force, threat, or intimidation; (b) when the offended party is deprived of reason or otherwise unconscious; (c) by means of fraudulent machination or grave abuse of authority; and (d) when the offended party is under 12 years of age or is demented, even though none of the circumstances mentioned above be present; and

3) That the offended party is another person of either sex. (Carbonell v. People, G.R. No. 246702, April 28, 2021, Per Delos Santos, J.)

1) Element 1: Lasciviousness or lewdness

As to the first element, “lascivious conduct” is defined under paragraph (h), Section 2 of the Implementing Rules and Regulations of R.A. No. 7610 as “a crime committed through the intentional touching, either directly or through the clothing of the genitalia, anus, groin, breast, inner thigh or buttocks with the intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person, among others.”(Dela Cruz v. People. G.R. No. 245516, June 14, 2021)

The term “lewd” is commonly defined as something indecent or obscene: it is characterized by or intended to excite crude sexual desire. That an accused is entertaining a lewd or unchaste design is necessarily a mental process the existence of which can be inferred by overt acts carrying out such intention. i.e., by conduct that can only be interpreted as lewd or lascivious. The presence or absence of lewd designs is inferred from the nature of the acts themselves and the environmental circumstances. What is or what is not lewd conduct, by its very nature, cannot be pigeonholed into a precise definition. (Amployo v People, G.R. No. 157718, G.R. No. 157718, Per Chico-Nazario, J.)

2) Element 2: Unlawful circumstances

The act of lasciviousness is committed via any of the following circumstances:

1) Through force, threat, or intimidation;

2) When the offended party is deprived of reason or otherwise unconscious;

3) By means of fraudulent machination or grave abuse of authority; and

4) When the offended party is under 12 years of age or is demented, even though none of the circumstances mentioned above be present.

a) Through force, threat, or intimidation

The term “coercion an dinfluence” as appearing in the law is broad enough to cover “force and intimidation” as used in the Information. To be sure, Black’s Law Dictionary defines “coercion” as “compulsion; force; duress” while “[undue] influence” is defined as “’persuasion carried to the point of overpowering the will.” On the other hand, “force” refers to “constraining power, compulsion; strength directed to an end” while jurisprudence defines “intimidation” as “unlawful coercion; extortion; duress; putting in fear.” 29 As can be gleaned, the terms are used almost synonymously. (Quimvel v. People, En Banc, G.R. No. 214497, April 18, 2017)

For intimidation, it should be emphasized that it does not have to be irresistible. What suffices is that there is “some compulsion equivalent to intimidation annuls or subdues the free exercise of the will of the offended party”, particularly involving children, as observed in the case below.

Amployo v People, G.R. No. 157718, G.R. No. 157718, Per Chico-Nazario, J.:

• Records indicate that AAA was 13 years old at the time of the incident. The courts a quo found the testimony of AAA to be straightforward, categorical, and convincing when she testified that petitioner forcibly kissed her while touching her breasts, tantamount to lascivious conduct as defined under the law. It must be borne in mind that this Court has consistently given full weight and credence to a child’s testimonies as youth and immaturity are badges of truth and sincerity. Worthy to mention is that the RTC observed that AAA was crying while testifying. Crying is but a natural display of emotion indicating the pain that the victim feels when asked to recount a traumatic experience; the tears indicate truth and sincerity.

• Further, a child is deemed subjected to “other sexual abuse” under Section 5(b) of R.A. No. 7610 when the child is subjected to lascivious conduct under the coercion and influence of any adult. Case law clarifies that intimidation need not necessarily be irresistible. It is sufficient that some compulsion equivalent to intimidation annuls or subdues the free exercise of the will of the offended party. This is especially true in the case of young, innocent, and immature girls who could not be expected to act with equanimity of disposition and with nerves of steel. Young girls cannot be expected to act like adults under the same circumstances to have the courage and intelligence to disregard the threat.

• It cannot be denied that the presence of coercion and intimidation is attendant in this case. As aptly found by the RTC and the CA, the fact that the accused is the subject teacher of AAA played a great role for the latter to satisfy his dastardly desires. As laid down in People v. Errojo and People v. Clado, the Court has determined that the vast difference in age between the victim and the offender is indicative of coercion and intimidation. Clearly, AAA, a minor, was vulnerable and would have been easily intimidated by an attacker who is not only a grown man, but is also someone exercising moral influence or ascendancy over her. It is doctrinal that moral influence or ascendancy takes the place of violence and intimidation.

• The facts before the Court is nowhere near novel. In People v. Malto, the accused, a professor, was convicted of violating Section 5(b), R.A. No. 7610 for having abused his position and influence, thus allowing his minor victim to indulge in lascivious acts. Similarly, in Orsos v. People, petitioner, as complainant’s teacher and CAT Commandant in her school, exercised influence and coercion upon the latter in order to commit the crime against her, thereby satisfying the element of force and intimidation. Although petitioner was not armed nor did he threaten his victim, his moral ascendancy over her is a sufficient substitute for the use of force or intimidation.

b) When the offended party is deprived of reason or otherwise unconscious

The offended party is deprived of reason or otherwise unconscious refers to their state of mind at the time when the offense took place.

A person may be deprived of reason if they have been given something that could have made them lose their ability to think, such as recreational drugs or liquids which have been laced with a drug (e.g., roofied drinks). While they may be conscious, they are not capable of reasoning.

On the other hand, an unconscious person may be someone who is asleep or who has been knocked out unconscious by force (e.g., hit on the head) or be poisoned (e.g., chloroformed or drinks laced with sleeping drugs).

c) By means of fraudulent machination or grave abuse of authority

Valenzona v. People, G.R. No. 203785, January 20, 2021, Per Inting, J.:

• All of the aforementioned elements were sufficiently established by the prosecution. AAA’s minority had been sufficiently established with the presentation of her Certificate of Live Birth showing that she was born on November 15, 1986. Thus, it is undisputed that AAA was only 11 years old during the commission of the crimes against her person. Evidence likewise reveals that [the Accused] was then the Grade VI teacher of AAA in FCIC, and therefore, a person who exercised moral ascendancy and influence upon her. Finally, AAA clearly testified how the separate counts of Acts of Lasciviousness under Article 336 of the RPC in relation to Section 5(b) of RA 7610 were committed. She categorically stated that [the Accused] kissed her, touched her private parts while she was lying on top of the table in the computer room, and that he repeatedly made pumping motions after he removed his pants and lifted her skirt until he ejaculated. The prosecution had likewise emphasized that [the Accused]’s penis never penetrated AAA’s vagina in any of the sexual incidents. These established facts show that [the Accused] committed the acts with lewd desires and that his lascivious conduct subjected AAA to sexual abuse. Because there was neither an insertion nor an attempt to insert [the Accused]’s penis or any object into AAA’s vagina, [the Accused]’s conviction of Acts of Lasciviousness under Article 336 of the RPC in relation to Section 5(b) of RA 7610 and not Attempted Rape is in order. Even the Informations alleged that “accused’s male organ was not able to penetrate nor touch the labia of the pudendum.”

d) When the offended party is under 12 years of age or is demented, even though none of the circumstances mentioned above be present

People v. Ladra, G.R. No. 221443, July 17, 2017, Per Perlas-Bernabe, J.:

• After a careful evaluation, the Court finds that the mere fact of “squeezing” the private part of a child – a young girl 12 years of age – could not have signified any other intention but one having lewd or indecent design. It must not be forgotten that several years prior, accused-appellant had raped AAA in the same house, for which act he was appropriately convicted. Indeed, the law indicates that the mere touching – more so, “squeezing,” in this case, which strongly suggests that the act was intentional – of AAA’s genitalia clearly constitutes lascivious conduct. It could not have been done merely to annoy or vex her, as opined by the courts a quo. That AAA was fully clothed at that time, which led the courts a quo to believe that accused-appellant could not have intended to lie with her, is inconsequential. “’Lewd’ is defined as obscene, lustful, indecent, and lecherous. It signifies that form of immorality which has relation to moral impurity; or that which is carried on a wanton manner.” As such, accused-appellant’s act of squeezing AAA’s vagina was a lewd and lascivious act within the definitions set by law and jurisprudence.

3) Element 3: Offended party as another person

The offended party is another person of either sex. Meaning, the offended party can be of the opposite or same sex as the offender.

3. Things to note

The following are some additional things to note about this offense.

a. Common provisions

This offense shares common provisions with other offenses under Title XI of the Revised Penal Code – Crimes Against Chastity. See: Crimes Against Chastity

b. Necessarily included in rape

The crime of Acts of Lasciviousness is necessarily included in the offense of rape, thus, [the Accused] can be convicted of a lesser crime. This is in accordance with the variance doctrine enunciated under Section 438 in relation to Section 539 of Rule 120 of the Rules on Criminal Procedure. (Valenzona v. People, G.R. No. 203785, January 20, 2021, Per Inting, J.)

4. Distinguish from other offenses

This offense is distinguished from other offenses or crimes below.

a. Lasciviousness vs Consented acts of lasciviousness with consent

The main difference is on the consent. In acts of lasciviousness, the offended party did not give such consent. On the other hand, in consented acts of lasciviousness, the offended party gave consent, whether expressly or impliedly.

b. Acts of lasciviousness vs Rape

The slightest penetration into one’s sexual organ distinguishes an act of lasciviousness from the crime of rape. (Lutap v. People, G.R. No. 204061, February 5, 2018, Per Tijam, J.)

People v. Ramos, En Banc, G.R. Nos. 138545-46, April 16, 2002, Per Puno, J.:

• In Criminal Case No. 98-0094, accused-appellant was charged with qualified rape for allegedly having carnal knowledge of her eleven-year-old niece… The evidence for the prosecution, however, does not support a judgment of conviction for the crime of rape. To convict the accused of the offense, the prosecution must allege and prove the ordinary elements of (1) sexual congress, (2) with a woman, (3) by force and without consent, and in order to warrant the imposition of death penalty, the additional elements that (4) the victim is under eighteen years of age at the time of the rape, and (5) the offender is a parent (whether legitimate, illegitimate or adopted), ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim.

• The prosecution in this case failed to prove the first element of sexual congress. To prove the charge, it presented the testimony of private complainant. She testified that on January 3, 1998, while she was sleeping, she felt somebody was kissing her private part. It turned out to be accused-appellant, her uncle. The prosecution also presented her sworn statement executed before the Pasay City Police Station where she averred that on said date, her Uncle Joey carried her to the room, kissed her vagina, spread her legs, and then inserted his organ into her organ. Prosecution witness [J.] Atibola testified that around 1:00 in the morning of January 3, 1998, the alleged time of the commission of the offense, he and his friends were watching a movie on VHS tape at the house of his friend who is a neighbor of the Dela Cuestas. From where he stood, he could see the area where private complainant and accused-appellant slept. He saw accused-appellant position himself near the foot of private complainant. Then he noticed that accused-appellant placed his hands under the blanket of private complainant and touched her private part. Atibola did not mention anything about the rape, although he said that he occasionally looked to private complainant’s place throughout the duration of the movie. In addition, the medico-legal report shows that the hymen of private complainant is still intact. While it is true that a torn hymen is not an essential element of the crime of rape, such finding would be material to this case since the testimony of another prosecution witness clouds the veracity of complainant’s assertion that she was raped. In reviewing rape cases, the Court is guided by four well-established principles: (1) an accusation for rape can be made with facility; (2) it is difficult to prove but more difficult for the person accused, though innocent, to disprove; (3) in view of the intrinsic nature of the crime of rape where only two persons are usually involved, the testimony of the complainant must be scrutinized with extreme caution; (4) the evidence for the prosecution must stand or fall on its own merits and cannot be allowed to draw strength from the weakness of the evidence for the defense. The Court has thoroughly examined the prosecution evidence and we find it insufficient to prove the element of carnal knowledge. The totality of the evidence does not satisfy the quantum of proof required in criminal cases which is proof beyond reasonable doubt. We cannot convict accused-appellant for the crime of rape.

• Nonetheless, although it was not established that accused-appellant had carnal knowledge of private complainant, the evidence showed that he touched private complainant’s private parts while the latter was deep in sleep. Such act constitutes acts of lasciviousness penalized under Article 366 of the Revised Penal Code. The elements of the crime of acts of lasciviousness are: (1) that the offender commits any act of lasciviousness or lewdness; (2) that it is done (a) by using force or intimidation or (b) when the offended party is under 12 years of age; and (3) that the offended party is another person of either sex. All the elements of the offense are present in this case.

As regards the second charge in Criminal Case No. 98-0095 for acts of lasciviousness, we find that the prosecution sufficiently proved the same. [I.] Dela Cuesta, accused-appellant’s sister, testified that on January 13, 1998, she caught accused-appellant kneeling in front of complainant who was then sleeping. His head was bowed down toward complainant’s private part. The defense has not shown any evil motive on Imelda’s part to fabricate such story against her own brother and expose her own niece and her own family to public scandal were it not her intention to seek redress for her young niece. Although accused-appellant averred that he and his sister had constant disagreements, such is not sufficient reason for her to falsely charge him with a criminal offense which would send him to prison. Furthermore, we respect the trial court’s conclusions regarding the credibility of the witnesses who testified before the court as it is in a better position to observe their demeanor on the witness stand. Accused-appellant has not shown that the trial court committed any grave error in evaluating the credibility of the witnesses.

4A. In relation to other crimes

a. R.A. 7610

R.A. No. 7610 finds application when the victims of abuse, exploitation or discrimination are children or those “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.” (Dela Cruz v. People. Supra.)

[W]hen the victim is under twelve (12) years of age at the time the offense was committed, the offense shall be designated as “Acts of Lasciviousness under Article 336 of the RPC in relation to

Section 5 of RA 7610.” Thus, before an accused can be convicted of child abuse through lascivious conduct on a minor below twelve (12) years of age, the requisites of acts of lasciviousness under Article 336 of the RPC must be present in addition to the requisites of sexual abuse under Section 5(b) of RA 7610. (Tizon v. People, G.R. No. 251328, September 8, 2020)

Concomitantly, pursuant to Section 5(b) of RA 7610, when the victim is under 12 years of age, the perpetrator shall be prosecuted under Article 336 of the RPC for lascivious conduct… (Capueta v. People, G.R. No. 240145, September 14, 2020)

Tizon v. People, G.R. No. 251328, September 8, 2020

• The elements of acts of lasciviousness under Article 336 of the RPC are: (a) the offender commits any act of lasciviousness or lewdness; (b) the lascivious act is done under any of the following circumstances: (i) by using force or intimidation; (ii) when the offended party is deprived of reason or otherwise unconscious; or (iii) when the offended party is under twelve (12) years of age; and (c) the offended party is another person of either sex.

• On the other hand, sexual abuse under Section 5(b), Article III of RA 7610 has three (3) elements: (a) the accused commits an act of sexual intercourse or lascivious conduct; (b) the said act is performed with a child exploited in prostitution or subjected to other sexual abuse; and (c) the child is below eighteen (18) years old.

• We agree with the uniform findings of the trial court and Court of Appeals that all the elements of acts of lasciviousness under Article 336 of the RPC29 and lascivious conduct under Section 5(6), Article III of RA 7610 are present here. Records bear AAA’s straightforward narration on how [the Accused] sexually abused her when he placed his hand on top of her panty, groped and fondled her vagina by doing circular motions for ten (10) minutes, and kissed her on the neck. AAA got so scared that she cried and shouted catching the attention of her aunt FFF who lived in the adjacent house…

• All told, [the Accused]’s intentional touching of AAA’s vagina over her panty to gratify his sexual desires clearly constitutes “lascivious conduct” under Section 2 of the rules and regulations of RA 7610, viz.:

(h) “Lascivious conduct” means 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.

• In Awas v. People, the Court found the accused guilty of Acts of Lasciviousness under Article 336 of the RPC in relation to Section 5(b), Article III of RA 7610 when he asked the child victim to lie down beside him and thereafter repeatedly touched her vagina against her will even though she was wearing panty and leggings.

• Clearly, therefore, [the Accused]’s conviction for Acts of Lasciviousness under Article 336 of the RPC in relation to Section 5(b), Article III of RA 7610 stands.

References

• Title XI – Crimes Against Chastity, Act No. 3815, Revised Penal Code

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/Updated: May 20, 2023