Aug 07, 2024 - 17:12
By manilatimes.net

Elements of lascivious conduct against minors

Dear PAO,

My nephew, who is a 15-year-old boy, came to me last night. He was distressed by what had happened to him. He narrated that a man pulled down his shorts and underwear and began putting the penis of my nephew in his mouth. Luckily, my nephew was able to forcibly open the car door and run home, though he was traumatized. I wanted to know if what happened was rape. If not, what should be filed against his attacker?

Alex

Dear Alex,

In its performance of its mandate to protect the citizenry against abuse, exploitation, and crimes against persons, the State enacted Republic Act (RA) 8353, otherwise known as the Anti-Rape Law of 1997, which amended the Revised Penal Code. The law states that one of the ways to commit the crime of rape is through sexually assaulting another by inserting his penis into another person's mouth. Specifically, the law provides that:

«Article 266-B. Rape: When And How Committed. — Rape is committed:

»1) By any person who, under any of the circumstances mentioned in paragraph 1 hereof, shall commit an act of sexual assault by inserting his penis into another person's mouth or anal orifice, or any instrument or object, into the genital or anal orifice of another person."

The Supreme Court has held in People v. Bagsic (GR 218404, Dec. 13, 2017, Ponente: Associate Justice Samuel Martires; 822 Phil 782, 800 (2017)) that the elements of Rape by Sexual Assault are as follows:

«The following are the elements of rape by sexual assault:

»(1) That the offender commits an act of sexual assault;

"(2) That the act of sexual assault is committed by any of the following means:

"(a) By inserting his penis into another person's mouth or anal orifice; or

"(b) By inserting any instrument or object into the genital or anal orifice of another person;

"(3) That the act of sexual assault is accomplished under any of the following circumstances:

"(a) By using force and intimidation;

"(b) When the woman is deprived of reason or otherwise unconscious; or

"(d) When the woman is under 12 years of age or demented." (Emphasis supplied)

In this situation, your