SC: Adult jailed for sucking 15yo’s breast


The Case

We resolve this petition for review on certiorari filed by petitioner Roberto Alvarez assailing the October 1, 2013 decision and January 23, 2014 resolution of the Court of Appeals in CA-G.R. CR No. 34174.

At around 4 p.m. of October 22, 2004, AAA was on her way to school when the petitioner - who was the driver of the school jeepney - offered her a ride. AAA initially turned down the offer, but the petitioner was able to persuade her. The petitioner then asked AAA to sit in front. On their way to school, the petitioner told AAA of stories of his sexual encounters with different women. When the jeep reached Barangay Tambo in Parañaque City, the petitioner unexpectedly touched AAA's thigh. AAA tried to alight from the jeep when it reached Baclaran, but the petitioner prevented her from doing so; he told her that he had other stories to tell. AAA gave the petitioner five minutes to finish his story, and then told him that her (AAA's) aunt was already waiting for her at school. The petitioner at that point lifted AAA's bra, and sucked her breast. Done with this act, the petitioner told AAA, "sa susunod, mas masarap pa ang gagawin ko sa iyo."

The prosecution charged the petitioner with violation of Section 5(b) of Republic Act No. 7610 (Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act) before the Regional Trial Court, Branch 194, Parañaque City. In its decision dated February 23, 2011, the RTC found the petitioner guilty beyond reasonable doubt of the crime charged, and sentenced him to suffer the indeterminate penalty of ten years and one day of prision mayor, as minimum, to 20 years of reclusion temporal, as maximum.

On appeal, the CA affirmed the RTC decision in toto. The CA held that all the elements of violation of Section 5(b) of R.A. No. 7610 had been established: the petitioner touched and sucked AAA's breast for his sexual gratification; there was compulsion, equivalent to intimidation, that practically denied the victim of the free exercise of her free will. The CA also found unmeritorious the petitioner's claim that it was improbable for him to have abused AAA at 4 o'clock in the afternoon.The petitioner moved to reconsider the CA decision, but the appellate court denied his motion in its resolution of January 23, 2014.

The Petition for Review on Certiorari

In the present petition, the petitioner essentially claimed that the prosecution failed to prove all the elements of violation of Section 5(b) of R.A. No. 7610.

Our Ruling

Section 5(b), Article III of RA 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.

The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following: x x x x
(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
The elements of this offense are: (a) the commission by the accused of the act of sexual intercourse or lascivious conduct; (b) the act is performed on a child exploited in prostitution or subjected to other sexual abuse; and (c) the child, whether male or female, is below 18 years of age.

Corrolarily, Section 2 (h) of the Rules and Regulations on the Reporting and Investigation of Child Abuse Cases reads:
(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.
Jurisprudence holds that a child is deemed subjected to other sexual abuse when the child indulges in lascivious conduct under the coercion or influence of an adult.[1]

In the present case, the first and third elements of violation of Section 5(b), Article III of R.A. 7610 are indisputably present: the petitioner touched AAA's thigh and sucked her breast; and AAA was below 15 years of age at the time of the incident.

To prove the second element, the presented evidence showed that (a) the petitioner lured AAA to ride the jeep under the pretense that he would bring her to school; (b) he unexpectedly touched AAA's thigh while they were inside the jeep; and (c) he lifted AAA's bra and sucked her breast when they arrived at Baclaran. Notably, AAA also testified on cross examination that she treated the petitioner like her father. These circumstances, coupled with AAA's minority, leads to the conclusion that there had been persuasion, inducement, enticement or coercion of a child to lead her to engage in lascivious conduct.

WHEREFORE, premises considered, we found that the Court of Appeals did not commit any reversible error in ruling on the case and thus fully AFFIRM its decision dated October 1, 2013 and its resolution dated January 23, 2014 in CA-G.R. CR No. 34174.


[1] See Caballo v. People, G.R. No. 198732, June 10, 2013; See also People v. Rayon, Sr. G.R. No. 194236, January 30, 2013.