Dear PAO, Sherna accused me for acts of lasciviousness when I allegedly grabbed the buttocks of her minor daughter while the latter was playing at their backyard. According to her, this is already considered as child abuse. The incident happened when I slipped while walking on a wet floor and accidentally touched the buttocks of the girl. Am I really liable under the circumstances? Hasula

Dear Hasula, Sherna may be basing her complaint under the following provisions of law:

Article 336 of the Revised Penal Code (RPC) of the Philippines, which provides that:

"Any person who shall commit any act of lasciviousness upon other persons of either sex, under any of the circumstances mentioned in the preceding article, shall be punished by prision correccional"; and

"Section 10. Other Acts of Neglect, Abuse, Cruelty or Exploitation and Other Conditions Prejudicial to the Child's Development. –

(b) Any person who shall keep or have in his company a minor, twelve (12) years or under or who in ten (10) years or more his junior in any public or private place, hotel, motel, beer joint, discotheque, cabaret, pension house, sauna or massage parlor, beach and/or other tourist resort or similar places shall suffer the penalty of prision mayor in its maximum period and a fine of not less than Fifty thousand pesos (P50,000): Provided, That this provision shall not apply to any person who is related within the fourth degree of consanguinity or affinity or any bond recognized by law, local custom and tradition or acts in the performance of a social, moral or legal duty."

Please take note of the elements of the above-mentioned crimes that were enumerated and explained in the case of Arquillo vs People of the Philippines (GR 244570, Feb. 17, 2021), where the Supreme Court, speaking through Associate Justice Rosmari Carandang, stated that:

"The elements of acts of lasciviousness under Article 336 of the RPC in relation to Section 5(b) of Republic Act (RA) 7610 are:

1. That the offender commits any act of lasciviousness or lewdness;

2. That it is done under any of the following circumstances:

a. Through force, threat, or intimidation;

b. When the offended party is deprived of reason or otherwise unconscious;

c. By means of fraudulent machination or grave abuse of authority;

d. When the offended party is under twelve (12) years of age or is demented, even though none of the circumstances mentioned above be present; x x X

3. That said act is performed with a child exploited in prostitution or subjected to other sexual abuse; and

4. That the offended party is a child, whether male or female, below 18 years of age.

Lascivious conduct is defined as 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."

Applying the above-quoted decision in your situation, the touching of the buttocks of the minor was not intentional because this happened when you slipped on a wet floor. Thus, without intention to abuse, humiliate, harass, degrade or arouse or gratify sexual desire, bestiality, masturbation, lascivious exhibition of the genitals or public area of a person, the accusation against you may not prosper. It is important to emphasize that not every touch to a minor's body is an abuse especially when the same was merely accidental.

We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

Editor's note: Dear PAO is a daily column of the Public Attorney's Office. Questions for Chief Acosta may be sent to [email protected]