Defining the Boundaries of Lascivious Conduct: No Penetration, No Rape

G.R. No. 258257, August 09, 2023

Imagine a scenario: a minor is subjected to unwanted sexual advances, but those advances stop short of actual penetration. Is this attempted rape? Or is it a different, but equally serious, crime? This question lies at the heart of many cases involving the Special Protection of Children Against Abuse, Exploitation and Discrimination Act, also known as R.A. 7610. The Supreme Court, in this case, clarifies the distinction between consummated rape, attempted rape, and lascivious conduct, providing essential guidance for legal professionals and the public alike.

Understanding R.A. 7610 and Lascivious Conduct

R.A. 7610, a landmark piece of legislation in the Philippines, aims to provide stronger deterrence and special protection against child abuse, exploitation, and discrimination. Section 5(b) of this Act specifically addresses child prostitution and other forms of sexual abuse, imposing penalties on those who engage in sexual intercourse or lascivious conduct with a child.

But what exactly constitutes “lascivious conduct”? The Implementing Rules and Regulations (IRR) of R.A. No. 7610, Sec. 2(h) defines it as:

“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.”

This definition is crucial because it broadens the scope of protection for children, encompassing acts that may not amount to rape but are nonetheless harmful and exploitative. It includes acts performed with the intent to abuse, humiliate, harass, degrade, or arouse, or gratify the sexual desire of any person.

For example, if an adult intentionally touches a child’s genitals over their clothing with the intent to arouse themselves, that would constitute lascivious conduct under R.A. 7610, even if there is no further physical contact.

The Case of Pedro “Pepe” Talisay

Pedro “Pepe” Talisay was accused of violating Section 5(b) of R.A. No. 7610 after allegedly committing acts of lasciviousness against a 15-year-old girl, AAA. According to AAA’s testimony, Talisay dragged her to a pig pen, kissed her, removed his and her clothes, and placed his penis on top of her vagina, making push and pull movements. The Regional Trial Court (RTC) found Talisay guilty. The Court of Appeals (CA) affirmed the RTC’s decision but modified the nomenclature of the crime to “Lascivious Conduct” and increased the damages awarded.

The case made its way to the Supreme Court, where the central legal question was whether the CA erred in affirming the RTC’s decision, specifically concerning the nature of the crime committed. Talisay argued that the prosecution failed to prove all the elements of lascivious conduct, particularly the element of force or coercion, and questioned AAA’s credibility.

The Supreme Court’s decision hinged on a crucial distinction: the difference between placing the penis *on* the vagina versus penetration *of* the vagina. The Court emphasized that for consummated rape to occur, there must be at least slight penetration of the vulval cleft or the cleft of the labia majora. Here, the victim’s testimony only indicated that the accused placed his penis on top of her vagina, without any mention of penetration.

As the Court stated:

“In other words, when the penis of the offender merely strokes the external surface of the victim’s vagina, the same cannot be considered as consummated rape. Rather, it can be classified only as either attempted rape or acts of lasciviousness.”

The Court further clarified that the act could not be considered attempted rape because there was no evidence of intent to penetrate. As such, the Court affirmed the CA’s ruling that the crime committed was indeed lascivious conduct.

• RTC Ruling: Found Talisay guilty of acts of lasciviousness.
• CA Ruling: Affirmed the RTC’s decision but modified the nomenclature to “Lascivious Conduct”.
• Supreme Court Ruling: Affirmed the CA’s decision, clarifying the distinction between consummated rape, attempted rape, and lascivious conduct.

The Supreme Court quoted the victim’s testimony:

“He followed me that (sic) he removed his clothes and placed his pennis (sic) on my vagina and made [push and pull] movement.”

The Supreme Court also emphasized the importance of the victim’s age, noting that Talisay’s admission of AAA’s minority during the pre-trial conference was conclusive proof of her age. The Court also found that Talisay employed intimidation or coercion, further solidifying the conviction for lascivious conduct.

Practical Implications of the Ruling

This case offers important guidance for future cases involving sexual offenses against children. It underscores that the absence of penetration does not negate the possibility of a crime being committed. Instead, it highlights the importance of considering other factors, such as intent, the nature of the physical contact, and the presence of coercion, to determine the appropriate charge.

This ruling can affect similar cases going forward by emphasizing the importance of precise testimony and medical evidence in distinguishing between different sexual offenses. It also serves as a reminder that even acts that fall short of penetration can still constitute serious crimes under R.A. 7610.

Key Lessons:

• The absence of penetration does not automatically mean no crime was committed.
• Lascivious conduct encompasses a wide range of acts intended to abuse, humiliate, or gratify sexual desires.
• Coercion and intimidation are key factors in determining the severity of the offense.
• An admission of the victim’s age during pre-trial is conclusive proof of age.

Frequently Asked Questions

Q: What is the difference between rape and lascivious conduct?

A: Rape requires penetration, however slight, of the female genitalia. Lascivious conduct, on the other hand, involves intentional touching of specific body parts with the intent to abuse, humiliate, or gratify sexual desires, without requiring penetration.

Q: What is the penalty for lascivious conduct under R.A. 7610?

A: The penalty depends on the age of the victim. If the victim is below 12 years of age, the perpetrator may be prosecuted for rape or lascivious conduct under the Revised Penal Code. If the victim is below 18 years of age, the penalty is reclusion temporal in its medium period to reclusion perpetua.

Q: What evidence is needed to prove lascivious conduct?

A: The prosecution must prove that the accused committed the act of sexual intercourse or lascivious conduct, that the act was performed with a child exploited in prostitution or subjected to other sexual abuse, and that the child was below 18 years of age.

Q: What should I do if I suspect a child is being subjected to lascivious conduct?

A: Report your suspicions to the proper authorities, such as the police, social services, or a child protection agency. It is crucial to protect children from abuse and exploitation.

Q: Can a person be convicted of both rape and lascivious conduct for the same act?

A: No, a person cannot be convicted of both rape and lascivious conduct for the same act. The acts are mutually exclusive. If there is penetration, the crime is rape. If there is no penetration, the crime may be lascivious conduct, depending on the circumstances.

Q: What are the possible defenses against a charge of lascivious conduct?

A: Possible defenses may include mistaken identity, lack of intent, or consent (although consent is not a valid defense if the victim is a minor). However, these defenses must be supported by credible evidence.

Q: How does this case affect the prosecution of child abuse cases in the Philippines?

A: This case provides clarity on the elements of lascivious conduct and the distinction between different sexual offenses, which can help prosecutors build stronger cases and ensure that perpetrators are held accountable for their actions.

ASG Law specializes in criminal law and child protection. Contact us or email hello@asglawpartners.com to schedule a consultation.