Comparison between rape and sexual abuse

To determine the essential elements of both crimes for the purpose of ascertaining whether or not there is double jeopardy in this case, below is a comparison of Article 266-A of the Revised Penal Code punishing rape and Section 5(b) of Republic Act No. 7610 punishing sexual abuse:

Rape under Article 266-A(1) of the Revised Penal Code Sexual abuse under Section 5(b) of Republic Act No. 7610
Article 266-A. Rape; When and How Committed. — Rape is committed —
                 
1) By a man who shall have carnal knowledge of a woman 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[.]
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 m sexual intercourse or lascivious conduct, are deemed to be children exploited m prostitution and other sexual abuse.
               
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 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[.]
The provisions show that rape and sexual abuse are two (2) separate crimes with distinct elements. The "force, threat, or intimidation" or deprivation of reason or unconsciousness required in Article 266-A(1) of the Revised Penal Code is not the same as the "coercion or influence" required in Section 5(b) of Republic Act No. 7610. Consent is immaterial in the crime of sexual abuse because "the [mere] act of [having] sexual intercourse . . . with a child exploited in prostitution or subjected to . . . sexual abuse" is already punishable by law. However, consent exonerates an accused from a rape charge as exhaustively explained in Malto v. People.

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