ACTS OF LASCIVIOUSNESS

A. Concept: the act of making a physical contact with the body of another person for the
purpose of obtaining sexual gratification other than, or without intention of, sexual intercourse.
1. The contact may be by the body of the accused such as by the lips, hands, foot; or by
means of any object or instrument. In either case there must be no form of insertion into
the anus, mouth or sex organ amounting to rape through sexual abuse.
2. It is distinguished from Attempted Rape in that there is no intent to have sexual
intercourse with the victim. The intent may be inferred from the circumstances of time,
place, and occasion, or inferred from the nature of the act itself.
3. It is distinguished from Unjust Vexation in that there is no lewd design in unjust
vexation
Example: (i) The acts of an ardent lover such as kissing, embracing arising from
his passion, are unjust vexation merely. (ii). The touching of the private parts of a
woman out of curiosity is unjust vexation.
4. If the acts of lasciviousness (including sexual intercourse) is performed upon a child
exploited in prostitution or other sexual abuse (i.e. abuse other than the acts of
lasciviousness such as when the child is the subject of an obscene publication or
pornography or of indecent shows) whether male or female, the acts would constitute
sexual abuse punished under R.A. 7610 ( The Child Abuse Law) ( Olivarez vs. C.A., July
29, 2006)
B. Kinds:
1. Forcible (Article 336) if made under circumstances of forcible rape, i.e through force,
threat, violation, intimidation.
a. The accused may be any person and the victim may be a male or female
2. Consented: (Article 339) if made under circumstances of seduction whether simple or
qualified i.e.
a) victim is a female of chaste character
b) over 12 years but below 18 years, or a widow
c) there was deceit or abuse of authority, abuse of confidence or abuse of
relationship
[BATASnatin Philippine Law Library, Libayan & Associates]
Acts of lasciviousness defined and its elements enumerated
Appellant was charged with violation of Article 336 of the Revised Penal Code, as amended, in
relation to Section 5(b), Article III of Republic Act No. 7610. These provisions state:

Art. 336. Acts of lasciviousness. 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.
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:
xxxx
(b) Those who commit the act of sexual intercourse of lascivious conduct with a
child exploited in prostitution or subject 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;
xxx
The elements of sexual abuse under Section 5, Article III of Republic Act No. 7610 are as
follows:
1.The accused commits the act of sexual intercourse or lascivious conduct.
2.The said act is performed with a child exploited in prostitution or subjected to sexual
abuse.
3.The child, whether male or female, is below 18 years of age.
As correctly found by the Court of Appeals, all the elements of sexual abuse under Section 5,
Article III of RA 7610 are present here.
First, appellants repeated touching, fondling, and sucking of AAAs breasts and inserting his
finger into AAAs vagina with lewd designs undoubtedly constitute lascivious conduct under
Section 2(h) of the Implementing Rules and Regulations of Republic Act No. 7610, to wit:
(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.
Second, appellant, as a father having moral ascendancy over his daughter, coerced AAA to
engage in lascivious conduct, which is within the purview of sexual abuse. In People v. Larin, we
held:

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.
Third, AAA is below 18 years old at the time of the commission of the offense, based on her
testimony which was corroborated by her Birth Certificate presented during the trial. Section
3(a), Article I of Republic Act No. 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;
Since all three elements of the crime were present, the conviction of appellant for acts of
lasciviousness was proper.
As to the alleged failure of the prosecution to establish with particularity the date of the
commission of the acts of lasciviousness, suffice it to state that the date and time of the
commission of the offense are not material ingredients of such crime. Section 11, Rule 110 of
the Rules of Court provides:
Sec. 11. Time of the commission of the offense. It is not necessary to state in the
complaint or information the precise time at which the offense was committed except
when time is a material ingredient of the offense, but the act may be alleged to have
been committed at any time as to the actual date at which the offense was committed as
the information or complaint will permit.
In People v. Losano,34 the Court held:
Thus, as early as 1903, this Court has ruled that while the complaint must allege a
specific time and place when and where the offense was committed, the proof need not
correspond to this allegation, unless the time and place is material and of the essence of
the offense as necessary ingredient in its description. Evidence so presented is
admissible and sufficient if it shows 1) that the crime was committed at any time within
the period of the statute of limitations; and 2) before or after the time stated in the
complaint or indictment and before the action is commenced.
Definition
Just causes for dismissal of employee may be defined as those lawful or valid grounds for
termination of employment which arise from causes directly attributable to the fault or
negligence of the erring employee. Just causes are usually serious or grave in nature and
attended by willful or wrongful intent or they reflected adversely on the moral character of the
employees.

As opposed to authorized causes under Article 283 wherein the termination of employment is
dictated by necessity of the business, the dismissal under just causes is imposed by the
employer to the erring employee as a punishment for the latters acts or omission.
Just Causes Under the Labor Code
Just causes for termination under the Labor Code is found in Article 282 and enumerated here
as follows:
1.Serious misconduct. Serious misconduct is an improper conduct willful in character
and of such grave nature that transgressed some established and definite rule of action
in relation to the employees work.
2.Willful disobedience to lawful orders. The employees are bound to follow
reasonable and lawful orders of the employer which are in connection with their work.
Failure to do so may be a ground for dismissal or other disciplinary action.
3.Gross and habitual neglect of duties. Gross negligence has been defined as the
want or absence of or failure to exercise slight care or diligence, or the entire absence of
care. It evinces a thoughtless disregard of consequences without exerting any effort to
avoid them.
4.Fraud or willful breach of trust / Loss of confidence. Fraud is any act, omission, or
concealment which involves a breach of legal duty, trust, or confidence justly reposed
and is injurious to another.
5.Commission of a crime or offense. Commission of a crime or offense by the
employee against his employer or any immediate member of his family or his duly
authorized representative, is a just cause for termination of employment.
6.Analogous causes. Other causes analogous to the above grounds may also be a just
cause for termination of employment.
Examples of Analogous Causes
1.Abandonment. Abandonment of job is a form of neglect of duty. There is
abandonment when the employee leave his job or position with a clear and deliberate
intent to discontinue his employment without any intention of returning back.
2.Gross inefficiency. Gross inefficiency is analogous to and closely related to gross
neglect for both involve acts or omissions on the part of the employee resulting in
damage to the employer or to his business. (See Lim vs. NLRC, G.R. No. 118434, July
26, 1996.)
3.Disloyalty/conflict of interest. Disloyalty exists when one asserts an interest, or
performs acts adverse to ones employer, such as secretly engaging in a business which
renders him a competitor and rival of his employer. It constitutes a breach of an implied
condition of the contract of employment. (See Elizalde International vs. Court of Appeals,
G.R. No. L40553 February 26, 1981.)

4.Dishonesty. Acts of dishonesty deemed to be patently inimical to the employer is

analogous to breach of trust and is a valid cause for termination of employment.
No Separation Pay
An employee who is terminated from employment for a just cause is not entitled to payment of
separation benefits. Section 7, Rule I, Book VI, of the Omnibus Rules Implementing the Labor
Code provides:
Sec. 7. Termination of employment by employer. The just causes for terminating
the services of an employee shall be those provided in Article 282 of the Code. The
separation from work of an employee for a just cause does not entitle him to the
termination pay provided in Code, without prejudice, however, to whatever rights,
benefits and privileges he may have under the applicable individual or collective
bargaining agreement with the employer or voluntary employer policy or practice.
Termination of Employment
1. What is the right to security of tenure?
The right to security of tenure means that a regular employee shall remain employed
unless his or her services are terminated for just or authorized cause and after
observance of procedural due process.
2. May an employer dismiss an employee? What are the grounds?
Yes. An employer may dismiss an employee on the following just causes:
a) serious misconduct;
b) willful disobedience;
c) gross and habitual neglect of duty;
d) fraud or breach of trust;
e) commission of a crime or offense against the employer, his family or
representative;
f) other similar causes.
3. Are there other grounds for terminating an employment? What are they?
Yes. The other grounds are authorized causes:
a) installation of labor-saving devices;
b) redundancy;
c) retrenchment to prevent losses;

d) closure and cessation of business; and

e) disease / illness.
4. Before terminating the services of an employee, what procedure should the employer
observe?
An employer shall observe procedural due process before terminating ones
employment.
5. What are the components of procedural due process?
A. In a termination for just cause, due process involves the two-notice rule:
a) A notice of intent to dismiss specifying the ground for termination, and giving
said employee reasonable opportunity within which to explain his or her side;
b) A hearing or conference where the employee is given opportunity to respond
to the charge, present evidence or rebut the evidence presented against him or
her;
c) A notice of dismissal indicating that upon due consideration of all the
circumstances, grounds have been established to justify termination.
B. In a termination for an authorized cause, due process means a written notice of
dismissal to the employee specifying the grounds at least 30 days before the date of
termination. A copy of the notice shall also be furnished the Regional Office of the
Department of Labor and Employment (DOLE) where the employer is located.
6. What is the sanction if the employer failed to observe procedural due process in cases
of legal and authorized termination?
In cases of termination for just causes, the employee is entitled to payment of indemnity
or nominal damages in a sum of not more than 30,000 pesos (Agabon vs. NLRC, 442
SCRA 573); in case of termination for authorized causes, 50,000 pesos (Jaka Food
Processing vs. Darwin Pacot, 454 SCRA 119).
7. May an employee question the legality of his or her dismissal?
Yes. The legality of a dismissal may be questioned before the Labor Arbiter of a
Regional Arbitration Branch of the National Labor Relations Commission (NLRC),
through a complaint for illegal dismissal. In establishments with a collective bargaining
agreement (CBA), the dismissal may be questioned through the grievance machinery
established under the CBA. If the complaint is not resolved at this level, it may be
submitted to voluntary arbitration.
8. In cases of illegal dismissal, who has the duty of proving that the dismissal is valid?
The employer.

9. Suppose the employer denies dismissing the employee, who has the duty to prove that
the dismissal is without valid cause?
The employee must elaborate, support or substantiate his or her complaint that he or
she was dismissed without valid cause (Ledesma, Jr. vs. NLRC, 537 SCRA 358,
October 19, 2007).
10. On what grounds may an employee question his or her dismissal?
An employee may question his or her dismissal based on substantive or procedural
grounds.
The substantive aspect pertains to the absence of a just or authorized cause supporting
the dismissal.
The procedural aspect refers to the failure of the employer to give the employee the
opportunity to explain his or her side.
11. What are the rights afforded to an unjustly dismissed employee?
An employee who is dismissed without just cause is entitled to any or all of the following:
a) reinstatement without loss of seniority rights;
b) in lieu of reinstatement, an employee may be given separation pay of one
month pay for every year of service (Golden Ace Builders, et. al vs. Jose Talde,
May 5, 2010, GR No. 187200);
c) full backwages, inclusive of allowances and other benefits or their monetary
equivalent from the time compensation was withheld up to the time of
reinstatement;
d) damages if the dismissal was done in bad faith (Aurora Land Project Corp. vs
NLRC, 266 SCRA 48).
12. What is reinstatement?
Reinstatement means restoration of the employee to the position from which he or she
has been unjustly removed.
Reinstatement without loss of seniority rights means that the employee, upon
reinstatement, should be treated in matter involving seniority and continuity of
employment as though he or she had not been dismissed from work.
When a Labor Arbiter rules for an illegal dismissal, reinstatement is immediately
executory even pending appeal by the employer (Article 223 of the Labor Code, as
amended).
13. In what forms may reinstatement pending appeal be effected?
Reinstatement pending appeal may be actual or by payroll, at the option of the employer.

14. What is meant by full backwages?

Full backwages refer to all compensations, including allowances and other benefits with
monetary equivalent that should have been earned by the employee but was not
collected by him or her because of unjust dismissal. It includes all the amounts he or she
could have earned starting from the date of dismissal up to the time of reinstatement.
15. What is separation pay?
In termination for authorized causes, separation pay is the amount given to an employee
terminated due to installation of labor-saving devices, redundancy, retrenchment, closure
or cessation of business or incurable disease.
Separation pay may also be granted to an illegally dismissed employee in lieu of
reinstatement.
16. How much is the separation pay?
In cases of installation of labor-saving devices or redundancy, the employee is entitled to
receive the equivalent of one month pay or one month for every year of service,
whichever is higher.
In cases of retrenchment, closure or cessation of business or incurable disease, the
employee is entitled to receive the equivalent of one month pay or one-half month pay
for every year of service, whichever is higher.
In case of separation pay in lieu of reinstatement, the employee is entitled to receive the
equivalent of one month pay for every year of service.
17. Is proof of financial losses necessary to justify retrenchment?
Yes. Proof of actual or imminent financial losses that are substantive in character must
be proven by the employer to justify retrenchment (Lopez Sugar Central vs. NLRC, 189
SCRA 179).
18. Are there other conditions before an employee may be dismissed on the ground of
redundancy?
Yes. It must be shown that there is:
a) Good faith in abolishing redundant position; and
b) Fair and reasonable criteria in selecting employees to be dismissed, such as
but not limited to less preferred status (e.g. temporary employee), efficiency and
seniority (Asian Alcohol Corp. vs. NLRC, 305 SCRA 416);
c) A one-month prior notice is given to the employee and DOLE Regional Office
as prescribed by law.
19. May the services of an employee be terminated due to disease?

Yes. The employer may terminate employment on ground of disease only upon the
issuance of a certification by a competent public health authority that the disease is of
such nature or at such stage that it cannot be cured within a period of six months even
with proper medical treatment.
20. What is constructive dismissal?
Constructive dismissal refers to an involuntary resignation resorted to when continued
employment becomes impossible, unreasonable or unlikely; when there is a demotion in
rank or a diminution in pay; or when a clear discrimination, insensibility or disdain by an
employer becomes unbearable to an employee or an unwarranted transfer or demotion
of a employee, or other unjustified action prejudicial to the employee. The employer has
to prove that such managerial actions do not constitute constructive dismissal (Blue
Dairy Corp. vs. NLRC, 314 SCRA 401)
21. May an employee be placed on floating status?
Yes, provided it is permitted under circumstances for a period of not more than six (6)
months. Beyond this period, floating status becomes constructive dismissal which
entitles the employee to separation pay (Phil. Industrial Security Agency Corp. vs.
Virgilio Dapiton and NLRC, 320 SCRA 124)
22. When an employee resigned voluntarily, is he or she entitled to separation pay?
No. An employee is not entitled to separation pay when he or she resigns voluntarily,
unless it is a company practice or provided in the CBA (Hanford Philippines Inc. vs.
Shirley Joseph, 454 SCRA 786, March 31, 2005).
23. Are quitclaims valid?
Yes, provided that these are voluntarily signed and the consideration is reasonable and
is not against the law or public policy. (More Maritime Agencies vs. NLRC, 307 SCRA
189)
Quitclaims entered into by union officers and some members do not bind those who did
not sign it (Lianas Supermarket vs. NLRC, 257 SCRA 186).
[DOLE Bureau of Labor Relations]
Authorized Causes for Dismissal of Employee
The two most commonly used grounds for termination of employee are the Authorized Causes
under Article 283 and 284 of the Labor Code, and the Just Causes under Article 282. Below are
the authorized causes for termination of employment.
Definition
As maybe broadly defined, authorized causes for dismissal of employee refer to those lawful
grounds for termination which in general do not arise from fault or negligence of the employee.

Authorized causes are distinguished from just causes under Article 282 in that the latter are
always based on acts attributable to the employees own fault or negligence.
Authorized causes
The authorized causes for termination of employee are enumerated under Article 283 and 284
of the Labor Code, as follows:
1.Installation of labor-saving devices. The installation of labor-saving devices
contemplates the installation of machinery to effect economy and efficiency in the
method of production
2.Redundancy. Redundancy exists where the services of an employee are in excess of
what is reasonably demanded by the actual requirements of the enterprise. A position is
redundant where it superfluous, and superfluity of a position or positions may be the
outcome of a number of factors, such as over hiring of workers, decreased of volume
business, or dropping of a particular product line or service activity previously
manufactured or undertaken by the enterprise
3.Retrenchment to prevent losses. Retrenchment is an economic ground to reduce
the number of employees. Retrenchment is the reduction of personnel for the purpose of
cutting down on costs of operations in terms of salaries and wages resorted to by an
employer because of losses in operation of a business occasioned by lack of work and
considerable reduction in the volume of business. It is sometimes also referred to as
downsizing. It is aimed at saving a financially ailing business establishment from
eventually collapsing.
4.Closure or cessation of operation. The closure of a business establishment is a
ground for the termination of the services of an employee unless the closing is for the
purpose of circumventing pertinent provisions of the Labor Code.
5.Disease. An employer may terminate the services of an employee who has been
found to be suffering from any disease and whose continued employment is prohibited
by law or is prejudicial to his health as well as the health of his co-employees.
It should be noted though that the above enumeration is not an exhaustive list of authorized
causes of termination of employment. Valid application of union security clause, relocation of
business, among others, may also considered authorized causes of termination.
Kinds of employees
The foregoing contemplates four (4) kinds of employees: (a) regular employees or those
who have been engaged to perform activities which are usually necessary or desirable in the
usual business or trade of the employer; (b) project employees or those whose employment
has been fixed for a specific project or undertaking[,] the completion or termination of which has
been determined at the time of the engagement of the employee; (c) seasonal employees or
those who work or perform services which are seasonal in nature, and the employment is for the
duration of the season; and (d) casual employees or those who are not regular, project, or
seasonal employees. Jurisprudence has added a fifth kind a fixed-term employee.

ART. 280. Regular and casual employment. - The provisions of written agreement to
the contrary notwithstanding and regardless of the oral agreement of the parties, an
employment shall be deemed to be regular where the employee has been engaged to perform
activities which are usually necessary or desirable in the usual business or trade of the
employer, except where the employment has been fixed for a specific project or undertaking the
completion or termination of which has been determined at the time of the engagement of the
employee or where the work or service to be performed is seasonal in nature and the
employment is for the duration of the season.
An employment shall be deemed to be casual if it is not covered by the preceding
paragraph: Provided, That any employee who has rendered at least one year of service,
whether such service is continuous or broken, shall be considered a regular employee with
respect to the activity in which he is employed and his employment shall continue while such
activity exists.
ART. 281. Probationary employment. - Probationary employment shall not exceed six
(6) months from the date the employee started working, unless it is covered by an
apprenticeship agreement stipulating a longer period. The services of an employee who has
been engaged on a probationary basis may be terminated for a just cause or when he fails to
qualify as a regular employee in accordance with reasonable standards made known by the
employer to the employee at the time of his engagement. An employee who is allowed to work
after a probationary period shall be considered a regular employee.

Art. 559. The possession of movable property acquired in good faith is equivalent to a title.
Nevertheless, one who has lost any movable or has been unlawfully deprived thereof may
recover it from the person in possession of the same.
If the possessor of a movable lost or which the owner has been unlawfully deprived, has
acquired it in good faith at a public sale, the owner cannot obtain its return without reimbursing
the price paid therefor.
For the legal acquisition and transfer of ownership and other property rights, the thing
transferred must be delivered, inasmuch as, according to settled jurisprudence, the tradition of
the thing is a necessary and indispensable requisite in the acquisition of said ownership by
virtue of contract. (Walter Laston v. E. Diaz & Co. & the Provincial Sheriff of Albay, supra.)
So long as property is not delivered, the ownership over it is not transferred by contract merely
but by delivery. Contracts only constitute titles or rights to the transfer or acquisition of
ownership, while delivery or tradition is the method of accomplishing the same, the title and the
method of acquiring it being different in our law. (Gonzales v. Roxas, 16 Phil. 51)
The lower court was correct in applying Article 559 of the Civil Code to the case at bar, for under
it, the rule is to the effect that if the owner has lost a thing, or if he has been unlawfully deprived
of it, he has a right to recover it, not only from the finder, thief or robber, but also from third

persons who may have acquired it in good faith from such finder, thief or robber. The said article
establishes two exceptions to the general rule of irrevindicability, to wit, when the owner (1)
has lost the thing, or (2) has been unlawfully deprived thereof. In these cases, the possessor
cannot retain the thing as against the owner, who may recover it without paying any indemnity,
except when the possessor acquired it in a public sale. (Del Rosario v. Lucena, 8 Phil. 535;
Varela v. Finnick, 9 Phil. 482; Varela v. Matute, 9 Phil. 479; Arenas v. Raymundo, 19 Phil. 46.
Tolentino, id., Vol. II, p. 261.)
Under Article 559 of the new Civil Code, a person illegally deprived of any movable may recover
it from the person in possession of the same and the only defense the latter may have is if he
has acquired it in good faith at a public sale, in which case, the owner cannot obtain its return
without reimbursing the price paid therefor. In the present case, plaintiff has been illegally
deprived of his car through the ingenious scheme of defendant B to enable the latter to dispose
of it as if he were the owner thereof. Plaintiff, therefore, can still recover possession of the car
even if it is in the possession of a third party who had acquired it in good faith from defendant B.
The maxim that "no man can transfer to another a better title than he had himself" obtains in the
civil as well as in the common law