RA 7610. 1.

Malto
Information: MICHAEL JOHN Z. MALTO is charged for VIOLATION OF SECTION 5(a), ARTICLE III, REPUBLIC
ACT 7610, AS AMENDED, committed as follows:
That on or about and sometime during the month of November 1997 up to 1998, in
Pasay City, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, Michael John. Z. Malto, a professor, did then and there willfully, unlawfully
and feloniously take advantage and exert influence, relationship and moral ascendancy and
induce and/or seduce his student at Assumption College, complainant, AAA, a minor of 17 years
old, to indulge in sexual intercourse and lascivious conduct for several times with him as in fact
said accused has carnal knowledge.
Doctrine: The sweetheart theory cannot be invoked for purposes of sexual intercourse and lascivious conduct in
child abuse cases under RA 7610. Consent is immaterial because the mere act of having sexual intercourse or
committing lascivious conduct with a child who is subjected to sexual abuse constitutes the offense. Moreover, a
child is presumed by law to be incapable of giving rational consent to any lascivious act or sexual intercourse.
Facts: Sometime during the month of November 1997 to 1998, Malto seduced his student, AAA, a minor, to indulge
in sexual intercourse several times with him. Prior to the incident, petitioner and AAA had a mutual understanding
and became sweethearts. Pressured and afraid of the petitioners threat to end their relationship, AAA succumbed
and both had sexual intercourse. Upon discovery of what AAA underwent, BBB, AAAs mother lodged a complaint in
the Office of the City Prosecutor of Pasay City which led to the filing of Criminal Case No. 00-0691.
The petitioner did not make a plea when arraigned. Hence, the trial court entered for him a plea of not guilty. The
trial court found the evidence for the prosecution sufficient to sustain petitioners conviction. The trail court
rendered a decision finding petitioner guilty and sentenced him to reclusion temporal and to pay an indemnity of
Php. 75,000 and damages of Php. 50,000.
Petitioner questioned the trial courts decision in the CA. The CA modified the decision of the trial court. The
appellate court affirmed his conviction and ruled that the trial court erred in awarding Php. 75,000 civil indemnity in
favor of AAA as it was proper only in a conviction for rape committed under the circumstances under which the
death penalty was authorized by law.
Issue: Whether the CA erred in sustaining petitioners conviction on the grounds that there was no rape committed
since their sexual intercourse was consensual by reason of their sweetheart relationship.
Ruling: No.
THE OFFENSE STATED IN THE INFORMATION WAS WRONGLY DESIGNATED
The designation of the offense in the information against petitioner was changed from violation of Section 5(b),
Article III of RA 7610 to violation of Section 5(a), Article III thereof. Paragraphs (a) and (b) of Section 5, Article III
of RA 7610 provide:
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 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:
(a)
Those who engage in or promote, facilitate or induce child prostitution which include, but
are not limited to, the following:
1. Acting as a procurer of a child prostitute;
2. Inducing a person to be a client of a child prostitute by means of written or oral
advertisements or other similar means;
3. Taking advantage of influence or relationship to procure a child as a prostitute;
4. Threatening or using violence towards a child to engage him as a prostitute; or
5. Giving monetary consideration, goods or other pecuniary benefit to a child with intent
to engage such child in prostitution.
(b)
Those who commit the act of sexual intercourse or lascivious conduct with a
child exploited in prostitution orsubjected 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 paragraph (a) are:
1. the accused engages in, promotes, facilitates or induces child prostitution;
2. the act is done through, but not limited to, the following means:
a. acting as a procurer of a child prostitute;
b. inducing a person to be a client of a child prostitute by means of written or oral
advertisements or other similar means;

c. taking advantage of influence or relationship to procure a child as a prostitute;

d. threatening or using violence towards a child to engage him as a prostitute or
e. giving monetary consideration, goods or other pecuniary benefit to a child with intent to
engage such child in prostitution;
3. the child is exploited or intended to be exploited in prostitution and
4. the child, whether male or female, is below 18 years of age.
On the other hand, the elements of paragraph (b) are:
1. the accused commits the act of sexual intercourse or lascivious conduct;
2. the act is performed with a child exploited in prostitution or subjected to other sexual abuse and
3. the child, whether male or female, is below 18 years of age.
Paragraph (a) essentially punishes acts pertaining to or connected with child prostitution. It contemplates sexual
abuse of a child exploited in prostitution. In other words, under paragraph (a), the child is abused primarily for
profit.
On the other hand, paragraph (b) punishes sexual intercourse or lascivious conduct not only with a child exploited
in prostitution but also with a child subjected to other sexual abuse. It covers not only a situation where a child is
abused for profit but also one in which a child, through coercion, intimidation or influence, engages in sexual
intercourse or lascivious conduct.[20]
THE REAL NATURE OF THE OFFENSE IS DETERMINED BY FACTS ALLEGED IN THE INFORMATION, NOT BY
THE DESIGNATION
The designation in the information of the specific statute violated is imperative to avoid surprise on the accused
and to afford him the opportunity to prepare his defense accordingly. However, the failure to designate the offense
by statute, or to mention the specific provision penalizing the act, or an erroneous specification of the law
violated does not vitiate the information if the facts alleged clearly recite the facts constituting the crime
charged, What controls is not the title of the information or the designation of the offense but the actual facts
recited in the information. In other words, it is the recital of facts of the commission of the offense, not the
nomenclature of the offense, that determines the crime being charged in the information.
The facts stated in the amended information against petitioner correctly made out a charge for violation of Section
5(b), Article III, RA 7610. Thus, even if the trial and appellate courts followed the wrong designation of the offense,
petitioner could be convicted of the offense on the basis of the facts recited in the information and duly proven
during trial.
PETITIONER VIOLATED SECTION 5(B), ARTICLE III OF RA 7610, AS AMENDED
The first element of Section 5(b), Article III of RA 7610 pertains to the act or acts committed by the accused. The
second element refers to the state or condition of the offended party. The third element corresponds to the minority
or age of the offended party. The first element was present in this case. Petitioner committed lascivious conduct
against and had sexual intercourse with AAA. His acts were covered by the definitions of sexual abuse and
lascivious conduct under Section 2(g) and (h) of the Rules and Regulations on the Reporting and Investigation of
Child Abuse Cases promulgated to implement the provisions of RA 7610, particularly on child abuse:
(g) Sexual
abuse includes
the
employment,
use, persuasion,
inducement,
enticement or coercion of a child to engage in, or assist another person to engage
in, sexual intercourse or lascivious conduct or the molestation, prostitution, or incest with
children;
(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
public area of a person.
The second element was likewise present here. A child is deemed exploited in prostitution or subjected
to other sexual abuse, when the child indulges in sexual intercourse or lascivious conduct (a)
for money, profit, or any other consideration; or (b) under the coercion or influence of any adult,
syndicate or group.
The third element of the offense was also satisfied. Section 3 (a), Article I of RA 7610 provides:
SECTION 3. Definition of Terms.
(a) Children refers [to] 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
VIOLATION OF SECTION 5(B), ARTICLE III OF RA 7610 AND RAPE ARE SEPARATE AND DISTINCT CRIMES
Petitioner was charged and convicted for violation of Section 5(b), Article III of RA 7610, not rape. The offense for
which he was convicted is punished by a special law while rape is a felony under the Revised Penal Code. [28] They
have different elements. [29] The two are separate and distinct crimes. Thus, petitioner can be held liable for violation
of Section 5(b), Article III of RA 7610 despite a finding that he did not commit rape.

CONSENT OF THE CHILD IS IMMATERIAL IN CRIMINAL CASES INVOLVING VIOLATION OF SECTION 5,

ARTICLE III OF RA 7610
For purposes of sexual intercourse and lascivious conduct in child abuse cases under RA 7610, the sweetheart
defense is unacceptable. A child exploited in prostitution or subjected to other sexual abuse cannot validly give
consent to sexual intercourse with another person. The mere act of having sexual intercourse or committing
lascivious conduct with a child who is exploited in prostitution or subjected to sexual abuse constitutes the offense.
It is a malum prohibitum, an evil that is proscribed.
PETITIONER MAY ENJOY THE BENEFITS OF THE INDETERMINATE SENTENCE LAW
Notwithstanding that RA 7610 is a special law, petitioner may enjoy the benefits of the Indeterminate Sentence
Law
THE AWARD OF DAMAGES SHOULD BE MODIFIED
P50,000 civil indemnity ex delicto shall be awarded in cases of violation of Section 5(b), Article III of RA 7610.
Petitioner Michael John Z. Malto is hereby found guilty of violating Section 5(b), Article III of RA 7610, as amended,
for which he is sentenced to 14 years and 8 months of reclusion temporalas minimum to 20 years of reclusion
temporal as maximum. He is further ordered to pay AAA P50,000 as civil indemnity and P50,000 for moral
damages.