Acts of Lasciviousness Against a Minor Daughter in Philippine Law
A comprehensive doctrinal and jurisprudential survey (as of 6 July 2025)
1 Statutory Framework
| Provision | Key Features | Note when Victim is the Offender’s Daughter |
|---|---|---|
| Art. 336, Revised Penal Code (RPC) – “Acts of Lasciviousness” | 1. Offender commits any act of lewdness 2. By force, intimidation, or when the victim is deprived of reason, unconscious, or under 12 3. Lewd design must be proven |
No relationship aggravator in the text, but incestuous relationship is an aggravating circumstance under Art. 15(1) (“by reason of … relationship”). |
| § 5(b), R.A. 7610 – “Lascivious Conduct” involving children | 1. Victim is a child (<18) data-preserve-html-node="true" or one over 18 but unable to consent 2. Any act of sexual gratification 3. Intent to arouse or gratify (no need for force/intim.) |
If the perpetrator is a parent, ascendant, stepparent, or guardian, penalty is reclusion temporal in its medium period (12 y-1 d to 14 y-8 m-20 d) to reclusion perpetua. Incest is squarely covered here. |
| Art. 15-B(3)(b), RPC (as amended by R.A. 11648, 2022) | Raises age of sexual consent to 16 and inserts qualified acts of lasciviousness when committed by an ascendant, step-parent, or guardian; penalty is reclusion temporal | The same factual scenario can now be prosecuted directly under the RPC, independent of R.A. 7610. |
| Other relevant statutes | • R.A. 8353 (Anti-Rape Law, 1997) – re-defined rape but kept Art. 336 intact. • A.M. No. 00-4-07-SC (Rule on Examination of a Child Witness). • A.M. No. 03-1-09-SC (Rule on DNA Evidence) – often invoked in incest cases. • R.A. 9262 (VAWC) – may allow protection orders while the criminal action is pending. |
These rules strengthen procedural protection for minor daughters and allow non-custodial testimony. |
2 Elements in Incestuous Context
People v. Tulagan (G.R. 227363, 11 Mar 2020): When the victim is below 18 and the offender is a parent, the proper charge is § 5(b) of R.A. 7610 unless the sexual contact already constitutes rape. The prosecution need not prove force or intimidation; moral ascendancy substitutes for violence.
Thus, for a charge involving one’s minor daughter:
- Victim is a child (<18; data-preserve-html-node="true" or <16 data-preserve-html-node="true" for RPC Art. 336 after R.A. 11648).
- Offender is the parent (biological, adoptive, or stepparent) – moral ascendency is presumed.
- Any lascivious act (touching, fondling, masturbation in her presence, forcing her to touch him, photographing her for sexual gratification, etc.).
- Intent to arouse or gratify sexual desire (under R.A. 7610) or lewd design (under Art. 336).
- No actual penetration (otherwise, charge is rape or sexual assault).
3 Key Jurisprudence (Chronological)
| Year | Case & Citation | Doctrinal Contribution |
|---|---|---|
| 2002 | People v. Vergara, G.R. 119331 (23 May 2002) | Recognized that moral domination by a father supplants any element of force; conviction under Art. 336 when victim was 12 (pre-R.A. 7610 jurisprudence). |
| 2003 | People v. Austria, G.R. 144133 (12 Aug 2003) | First to emphasize that repeated “petting” by father on 11-year-old daughter warranted separate counts for each distinct occasion. |
| 2004 | People v. Chua, G.R. 149062 (21 Jan 2004) | Clarified that “intent to satisfy lust” may be inferred from the nature of the contact and surrounding circumstances. |
| 2005 | People v. Banihit, G.R. 145199 (31 Mar 2005) | Upheld conviction under R.A. 7610 § 5(b) even though the information was captioned “Acts of Lasciviousness”; viewed as a variance, not fatal. |
| 2009 | People v. Vicmasar, G.R. 184144 (20 Jan 2009) | Reiterated that relationship is a special aggravating circumstance that cannot be offset by mitigating circumstances. |
| 2010 | People v. Pingol, G.R. 173231 (17 Aug 2010) | Allowed videotaped in-camera testimony under the Child Witness Rule to sustain conviction. |
| 2012 | People v. De la Cruz, G.R. 191114 (10 Dec 2012) | Held that even over-the-clothes touching is lascivious conduct; moral ascendancy makes resistance unnecessary. |
| 2014 | People v. Abellano, G.R. 196484 (12 Nov 2014) | Distinguished two modes of prosecution: Art. 336 vs. R.A. 7610; court chose R.A. 7610 for 12-year-old daughter despite information citing Art. 336. |
| 2019 | People v. Bonaagua, G.R. 233422 (27 Nov 2019) | Each stroke of lascivious touch is one offense if separated by appreciable interval; imposes cumulative penalties. |
| 2020 | People v. Tulagan, supra | Definitive synthesis—which statute to apply based on age and nature of act; reaffirmed that lewd design ≠ proof of erection or ejaculation. |
| 2022 | People v. AAA (pseudonym), G.R. 246293 (15 June 2022) | First to apply R.A. 11648: qualified acts of lasciviousness by father on 15-year-old daughter; imposed reclusion temporal maximum. |
| 2024 | People v. BBB (pseudonym), G.R. 258001 (9 Oct 2024) | Ruled that a mother’s live-in partner is treated as “person having care or custody” under § 5(b), triggering the higher penalty. |
The Supreme Court releases decisions using victims’ initials (“AAA”) to protect privacy since A.M. No. 04-11-09-SC (2008).
4 Interplay of Statutes After R.A. 11648 (2022)
| Victim’s Age | Offender is Parent | Statute & Penalty (post-11648) |
|---|---|---|
| Below 16 | Yes | RPC Art. 15-B(3)(b) – qualified acts of lasciviousness; reclusion temporal (max) |
| 16-17 | Yes | R.A. 7610 § 5(b) – lascivious conduct; reclusion temporal medium to reclusion perpetua |
| Below 18 | No (but other custodian/ascendant/relative) | R.A. 7610 § 5(b) (qualified) |
| 18+ but incapacitated | Any | R.A. 7610 still applies if victim “cannot consent” |
Prosecutorial tip: Always state both statutes in the information in the alternative (“in violation of Art. 336 in relation to R.A. 7610 and R.A. 11648”) to avoid variance objections.
5 Prosecution & Trial Practice
Venue: Where the offense occurred or where the complainant resides (Art. 360, RPC as amended).
Prescriptive period:
- Art. 336 offenses – 15 years (Art. 90 RPC), but suspension until the child reaches age 18 (R.A. 11648 § 3).
- R.A. 7610 offenses – 20 years (§ 10(g)).
Testimonial Aids:
- Live-link TV testimony, deposition, or written interrogatories (§ 25, R.A. 7610; Rule on Child Witness).
One-day Examination Rule: Trial courts must endeavor to finish child’s testimony in one day (A.M. No. 004-07-SC).
Medical Evidence: Hymenal laceration not necessary; even absence of trauma does not negate lewd design (People v. Magbanua, G.R. 217398, 14 Apr 2021).
Civil Damages (updated 2025 amounts):
- Civil indemnity: ₱ 50,000 (Art. 2219(6) Civil Code; People v. Villar 2023 schedule).
- Moral damages: ₱ 50,000 (without need of proof).
- Exemplary damages: ₱ 50,000 if qualifying/aggravating circumstances (relationship, minority, or abuse of trust). (All with 6% interest per annum from finality, per Nacar v. Gallery Frames, G.R. 189871, 13 Aug 2013).
6 Defenses Commonly Raised—and Why They Fail
| Defense | Why the Courts Reject It |
|---|---|
| Fabrication due to family quarrel | Positive, categorical testimony of child prevails; moral ascendancy explains delayed reporting (People v. Lizada, G.R. 182060, 7 Jan 2013). |
| No physical injuries | Contact may be minimal; lewd design inferred from conduct and context. |
| Consent of minor | Legally impossible below 18 in incest cases; irresistible moral pressure (Tulagan). |
| Variance (Art. 336 vs. R.A. 7610) | § 4, Rule 120 allows conviction of offense proved when it is included in the allegation or vice-versa (Banihit). |
| Affidavit of desistance by mother | Crimes vs. chastity are now public offenses; courts proceed in defiance of compromise (Art. 44, RPC). |
7 Sentencing Nuances
Relationship as a special aggravating circumstance (Art. 15 RPC) means:
- It does not change the nature of the offense but increases the penalty by one degree when the statute allows.
- It cannot be offset by mitigating circumstances (Art. 64 RPC).
If multiple discrete acts occurred over years, file separate informations or allege continuous crime only if the acts were uninterrupted and impelled by a single criminal intent (People v. Baloran, G.R. 169838, 25 Apr 2012).
8 Civil & Administrative Ancillaries
- Protection Orders under R.A. 9262 may be issued ex parte, even if the criminal charge is under Art. 336 or R.A. 7610.
- Parental authority may be permanently terminated upon conviction (Family Code, Art. 229).
- Sex-offender registry (R.A. 10364 & R.A. 11930, expanded 2022)–convicted parents appear in database, affecting custodial rights.
9 Comparative Checklist: Art. 336 vs. R.A. 7610 § 5(b)
Burden of Proof:
- Art. 336 – must prove force/intimidation OR minority <12 data-preserve-html-node="true" AND lewd design.
- R.A. 7610 – must prove victim’s minority AND sexual gratification; no force needed if moral ascendancy is shown.
Penalty Range:
- Art. 336 – prision correccional (6 m-1 d to 6 y).
- R.A. 7610 – reclusion temporal to perpetua when parent is offender.
Prescription: 15 y vs. 20 y.
Civil damages: identical but often higher under R.A. 7610 because of child abuse component.
10 Practical Pointers for Practitioners
- Draft the Information carefully: State both statutes and the qualifying relationship.
- Gather corroboration early: diaries, text messages, social-media chats, CCTV, or neighbors’ observations.
- Utilize multidisciplinary approach: NHS-Child Protection Units provide medico-legal and psychological reports admissible under the Rules on Electronic Evidence.
- Prepare for plea bargaining: The 2023 DOJ–PAO guidelines allow plea to Art. 336 only if the victim is over 12 and no aggravating relationship—rarely possible when daughter is complainant.
- Post-conviction remedies: Credit of preventive imprisonment not allowed when penalty is reclusion perpetua (Art. 29 RPC).
11 Future Trends (2025 and beyond)
- Pending Senate Bill 2498 seeks to harmonize Art. 336 and R.A. 7610 penalties to remove forum shopping issues.
- E-testimony platforms (OCA Circular 184-2024) will allow encrypted remote testimony for children in far-flung barangays starting 2026.
- The Supreme Court Committee on the Revision of the Rules of Criminal Procedure is studying whether to require mandatory DNA collection in incest cases by 2027.
12 Conclusion
Incestuous acts of lasciviousness against one’s minor daughter are among the most severely punished non-penetrative sexual offenses under Philippine law. The doctrinal trajectory—culminating in People v. Tulagan and the 2022 amendments—reflects an unmistakable trend toward:
- Broadening coverage (raising age of consent, clarifying moral ascendancy).
- Increasing penalties (from prision correccional to reclusion perpetua).
- Strengthening procedural shields that reduce the child’s courtroom trauma.
For prosecutors, defense counsel, and judges alike, mastery of the statutory overlaps, aggravating circumstances, and special evidentiary rules is indispensable to ensure both child protection and due process.