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.
1. That the offender commits any act of lasciviousness or lewdness
2. That the act of lasciviousness is committed against a person of either sex
3. That it is done under any of the following circumstances:
a. By using force 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 12 years of age or is demented
Embracing, kissing and holding girl’s breast is act of lasciviousness.
• Taking advantage of the fact that Paula, a young married woman, was alone in the house, the accused went to the house of said woman on the pretext of asking for a glass of water, stealthily approached her and, without giving her an opportunity to defend herself, embraced and kissed her and caught hold of her breasts. When Paula recovered from the shock, she defended herself in spite of the fact that the accused threatened to kill her with a dagger.
• When a man embraces and kisses a woman three times and intentionally fondled her breast at the same time in a theater where the lights were out and the people’s attention was naturally concentrated on the picture, he must be considered as having done so with a feeling of lasciviousness, a mental process of emotion that differs in intensity in different situations and different persons. Being a purely mental process discernible only by overt acts, no inflexible rule can be laid down as an accurate measure.
• Kissing and embracing a woman against her will are acts of lasciviousness when prompted by lust or lewd designs.
Compelling a girl to dance naked before men is an act of lasciviousness
For her failure to pay her debt, the girl, after beating her with a stick, was compelled by the defendant to take off her clothes and dance before himself and may other persons. Held: there was a crime of acts of lasciviousness, even if the dominating motive is revenge, for her failure to pay a debt, for it cannot be believed that there was no admixture of lasciviousness in the thought and purpose of the defendant who could devise such method.
Lover's embrace and kisses, not acts of lasciviousness
• Lover’s embrace and kisses are not acts of lasciviousness, there being no evidence that the lover was actuated by lustful design or purpose, or that his conduct was lewd or lascivious.
Motive of lascivious acts
Motive of lascivious acts is not important because the essence of lewdness is the very act itself. It is not a defense that appellant was motivated not by lewdness but by a desire to avenge the fact that her father committed a criminal attack on appellant's wife during the Japanese occupation.
The act of lasciviousness must be committed under any of the circumstances mentioned in the definition of the crime of rape
1. By using force or intimidation;
2. When the offended party is deprived of reason or otherwise unconscious;
3. By means of fraudulent machination or grave abuse of authority; or
4. The offended party is under 12 years old or is demented.
• It is not necessary that intimidation or physical force be irresistible, it being sufficient that some violence or moral compulsion amounting to intimidation, annuls or subdues the free exercise of the will of the offended party.
In some cases, touching the breast of a woman is considered unjust vexation only.
• Accused, inside a Catholic church and after the service has begun, approached a girl from behind and forcibly embraced and kissed her on the left cheek and at the same time fondled her breast. It was held that the accused was guilty only of unjust vexation. The CA said, “considering the religious atmosphere and the presence of many persons, the conduct of the accused cannot be considered lascivious. He performed the said acts either to spite the girl or to force her to accept him as a lover. (People v. Anonuevo)
• The accused, in the store of the offended girl, kissed her in public view and touched her breast. The crime was unjust vexation because there were no lewd designs. It appeared that the accused had been wooing the girl, but she jilted him.
• The presence or absence of the lewd designs is inferred from the nature of the acts themselves and the environmental circumstances.
Acts of lasciviousness distinguished from unjust vexation
• When the accused merely kissed and embraced the complainant, either out of passion or other motive, touching the girl’s breast as a mere incident to embrace, is unjust vexation.
• But when the accused not only kissed and embraced the complainant, but fondled her breast with the particular design to independently derive vicarious pleasure therefrom, the element of lewd design exists.
• Where the accused touched three times the private parts of the offended woman over her panties, without employing any force or intimidation, he is guilty of unjust vexation, because it might have been committed merely to satisfy a “silly whim.”
• But the act of the accused in forcibly placing his hand between the legs of a 12-year old girl, or without force if she be under that age, constitutes the crime of acts of lasciviousness.
Distinguished from grave coercion
• Where an old woman was taken from her house against her will, slapped and maltreated, her drawers taken off and her hands and feet bound by the accused to compel her to admit that she stole clothes of certain persons. The crime was grave coercion.
Abuses against chastity distinguished from offenses against chastity
• Abuses Against Chastity (Art. 246, RPC)
- is committed by public officer
- mere immoral or indecent proposal made earnestly and persistently is sufficient
• Offenses Against Chastity
- committed in most cases by a private individual
- it is necessary that some actual acts of lasciviousness should have been executed by the offender.
Distinguished from attempted rape
1. The manner of committing the crime is the same – by force or intimidation is employed, by means of fraudulent machinations or grave abuse of authority, or the offended party is deprived of reason or otherwise unconscious, under 12 years of age or is demented.
2. The offended party in both crimes is a person of either sex.
3. The performance of acts of lasciviousness character is common to both crimes.
1. If the acts performed by the offender clearly indicate that his purpose was to lie with the offended woman, it is attempted or frustrated rape
2. In case of attempted rape, the lascivious acts are but the preparatory acts to the commission of rape; whereas, in the other, the lascivious acts are themselves the final objective sought by the offender.
It is not attempted rape, when there is no intent to have sexual intercourse.
Circumstances indicating intention to lie with the offended party
• Slipping his trousers down and tearing the drawers of the girl, as well as kissing her and fondling her breasts, abundantly show an intention to have intercourse with her by force.
• The accused lifted the dress of the woman and placed himself on top of her. The woman awoke and screamed for help. But the accused persisted in his purpose, thereby indicating his intention to ravish her.
Desistance in the commission of attempted rape may constitute acts of lasciviousness
• Desistance does not imply the absolute irresponsibility of the offender with respect to acts already committed. If the acts of lasciviousness were already committed, they are within the nature of the consummated crime of acts of lasciviousness, since actual damage was already done to a lawful right.
No attempted or frustrated crime of acts of lasciviousness
From the moment the offender performs all the elements necessary for the existence of the felony, he actually attains his purpose and, from that moment, all the essential elements of the offense have been accomplished.
Art. 336 vs. Art. 339
Act of lasciviousness under Art. 336 is committed against a male or a female and under circumstances o rape, i.e., without consent.
Acts of lasciviousness with consent of the offended party under Art. 339 is committed against a female under circumstances of seduction.
Under R.A. No. 7610, it is child abuse. Where the child is under 12, the penalty is one degree higher.
Leonor D. Boado, Notes and Cases on the Revised Penal Code, 2004 ed.
Luis B. Reyes, The Revised Penal Code, Book II, 2001 ed.