SPL (Lex Cervus Notes)

CRIMINAL LAW

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Note: Note: A person who was sentenced to destierrro cannot destierrro cannot apply for probation because such penalty does not involve imprisonment or fine. (PD 1990)

3. When to file.

SPECIAL PENAL LAWS BY: PROF. ROLAND YSRAEL R. ATIENZA Professor; Lecturer; Legal Officer

Probation Law (P.D. Law (P.D. No. 968 as amended by PD 990) 1. Probation – A disposition under which a defendant, after conviction and sentence, is subject to conditions imposed by the Court and under the supervision of a probation officer. 2. Disqualified Offenders. a. b. c.

d. e.

f.

Those sentenced to serve a maximum term of imprisonment of more than six years; Those convicted of subversion or any crime against the national security or public order; Those who have previously been convicted by final judgment of an offense punished by imprisonment of not less than one month and one day and/or fine of not less than two hundred pesos; Those who have been once on probation; Those who are already serving sentence at the time the substantive provisions of this decree became applicable [ 3 Jan. 1978] pursuant to Section 33 hereof. ( Section 9, PD 968)

Those convicted for selling drugs under RA 9165 9165 - Except minors who are first time offenders (Section 24, RA 9165 ); g. Those convicted of violations of election law ; h. Those convicted for malicious reporting reporting under the Anti-Money Laundering Law (Section 14[c], RA 9160 )

The accused must file a Petition for Probation within the period for appeal . If the decision of conviction has become final and executory, the accused is barred from filing a Petition for Probation. ( Pablo Francisco vs. C.A., GR No. 108747, 6 April 1995) 4. Effect of filing of Petition for Probation. Upon filing of petition for probation, the court shall suspend the execution of sentence. ( sentence. (Section 4 of PD 968 as amended by PD 990, 05 October 1985 ) Likewise, the filing of a petition for probation shall be deemed a waiver of the right to appeal and appeal and in case an appeal is made immediately after conviction, a filing of petition for probation, still within the period to appeal, that is within fifteen days from date of promulgation, shall be deemed a withdrawal of the appeal ( Vicoy vs. People, GR No. 138203, 03 July 2002 ). Further, no application for probation shall be entertained or granted if the accused has perfected an appeal from the judgment of conviction (Lagrosa vs. People, GR No.152044, 03 July 2003 ). A judgment of conviction becomes final when the accused files a Petition for Probation. However, the judgment is not executory until the petition for probation is resolved. The filing of the petition for probation is a waiver by the accused of his right to appeal the judgment of conviction . ( Heirs of Francisco Abueg vs. CA, 219 SCRA 78 ) 5. Order denying Probation is not appealable; Although an order denying probation is not appealable, the accused may file a petition for CERTIORARI from CERTIORARI from said order. (Heirs of Francisco Abueg vs. CA; Section 4 of P.D. 1990, 05 October 1985 ) 6. Rules on travel. travel. A probationer who desires to travel outside the jurisdiction of the city or provincial probation officer: Atty. Roland Ysrael R. Atienza | Special Penal Laws

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a. For not more than 30 days, days , the permission of the parole and probation officer must be sought; b. If more than 30 days, days, aside from the permission of the parole and probation officer, the permission of the court must likewise be sought. 7. Mandatory condition of probation. a. To present himself to the probation officer concerned for supervision within 72 hours from from receipt of said order, and; b. To report to the probation officer at least once a month during during the period of probation.

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b. The accused, who is not a principal or accomplice in accomplice in the commission of the crime of robbery of theft, buys, receives, possess, keeps, acquires, conceals, sells, or disposes, or buys and sells, or in any manner deals in any article, item, object or anything of value, which has been derived from the proceeds of the said crime; c. The accused knows or should have known known that the said article, item, or object or anything of value has been derived from the proceeds of the crime of robbery or theft; and d. There is, on the part of the accused, intent to gain for gain for himself or for another. (Tan vs. People, GR No. 1343298, August 1999; Capili vs. CA, 15 August 2000 ) 2. Prima facie evidence of Fencing.

8. Period of probation. a. If the probationer has been sentenced to an imprisonment of not more than one year, the probation shall not exceed two years; years; b. In all other cases, not to exceed six years; years ; c. In case the penalty is fine, the probation shall not be less than the period of subsidiary imprisonment nor more than twice of the subsidiary imprisonment. imprisonment. 9. Court Order required for final discharged (Termination discharged (Termination of Probation). The mere expiration of the period for probation does not ipso facto, terminate the probation. Probation is not co-terminus with its period ; there must be an order from the court of final discharge , terminating the probation. probation. If the accused violates the condition of the probation before the issuance of said order, the probation may be revoked by the Court. ( Manuel Bala vs. Martinez, G.R. 67301, 29 January 1990)

Mere possession possession of any good, article, item, object, or anything of value which has been the subject of robbery or thievery, shall be prima facie evidence of fencing. (Section 5) Note: Presentation of sales invoice or receipt provides proof of a legitimate transaction which is disputable. disputable . In the case of Ong vs. People the Court held that the defense of legitimate transaction is disputable and has in fact been disputed in this case. The validity of the issuance of the receipt was disputed, and the prosecution was able to prove that Gold Link and its address were fictitious. Ong failed to overcome the evidence presented by the prosecution and to prove the legitimacy of the transaction. Thus, he was unable to rebut the prima facie presumption under section 5 of P.D. 1612. ( Jaime Ong y Ong v. People of the Philippines, G.R. No. 190475, 10 April 2013 ) Obstruction of Justice (PD No. 1829) 1. Obstruction of Justice; defined.

Anti-Fencing Law (P.D. No. 1612) 1. Elements of Fencing. a. A crime of robbery or theft has theft has been committed;

It is an act of knowingly or willfully [1] obstructing, [2] impeding, [3] frustrating or [4] delaying the apprehension of suspects and the investigation and prosecution of criminal cases. cases . The term refers to the acts punished under Presidential Decree No. 1829, otherwise known as the Decree Penalizing Obstruction of Apprehension and Prosecution of Criminal Offenders. Atty. Roland Ysrael R. Atienza I Notes in Criminal Law

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a. For not more than 30 days, days , the permission of the parole and probation officer must be sought; b. If more than 30 days, days, aside from the permission of the parole and probation officer, the permission of the court must likewise be sought. 7. Mandatory condition of probation. a. To present himself to the probation officer concerned for supervision within 72 hours from from receipt of said order, and; b. To report to the probation officer at least once a month during during the period of probation.

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b. The accused, who is not a principal or accomplice in accomplice in the commission of the crime of robbery of theft, buys, receives, possess, keeps, acquires, conceals, sells, or disposes, or buys and sells, or in any manner deals in any article, item, object or anything of value, which has been derived from the proceeds of the said crime; c. The accused knows or should have known known that the said article, item, or object or anything of value has been derived from the proceeds of the crime of robbery or theft; and d. There is, on the part of the accused, intent to gain for gain for himself or for another. (Tan vs. People, GR No. 1343298, August 1999; Capili vs. CA, 15 August 2000 ) 2. Prima facie evidence of Fencing.

8. Period of probation. a. If the probationer has been sentenced to an imprisonment of not more than one year, the probation shall not exceed two years; years; b. In all other cases, not to exceed six years; years ; c. In case the penalty is fine, the probation shall not be less than the period of subsidiary imprisonment nor more than twice of the subsidiary imprisonment. imprisonment. 9. Court Order required for final discharged (Termination discharged (Termination of Probation). The mere expiration of the period for probation does not ipso facto, terminate the probation. Probation is not co-terminus with its period ; there must be an order from the court of final discharge , terminating the probation. probation. If the accused violates the condition of the probation before the issuance of said order, the probation may be revoked by the Court. ( Manuel Bala vs. Martinez, G.R. 67301, 29 January 1990)

Mere possession possession of any good, article, item, object, or anything of value which has been the subject of robbery or thievery, shall be prima facie evidence of fencing. (Section 5) Note: Presentation of sales invoice or receipt provides proof of a legitimate transaction which is disputable. disputable . In the case of Ong vs. People the Court held that the defense of legitimate transaction is disputable and has in fact been disputed in this case. The validity of the issuance of the receipt was disputed, and the prosecution was able to prove that Gold Link and its address were fictitious. Ong failed to overcome the evidence presented by the prosecution and to prove the legitimacy of the transaction. Thus, he was unable to rebut the prima facie presumption under section 5 of P.D. 1612. ( Jaime Ong y Ong v. People of the Philippines, G.R. No. 190475, 10 April 2013 ) Obstruction of Justice (PD No. 1829) 1. Obstruction of Justice; defined.

Anti-Fencing Law (P.D. No. 1612) 1. Elements of Fencing. a. A crime of robbery or theft has theft has been committed;

It is an act of knowingly or willfully [1] obstructing, [2] impeding, [3] frustrating or [4] delaying the apprehension of suspects and the investigation and prosecution of criminal cases. cases . The term refers to the acts punished under Presidential Decree No. 1829, otherwise known as the Decree Penalizing Obstruction of Apprehension and Prosecution of Criminal Offenders. Atty. Roland Ysrael R. Atienza I Notes in Criminal Law

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2. Acts punishable. The law [Section 1, par. C] covers the following acts of any person who knowingly or willfully [1] obstructs, [2] impedes, [3] frustrates or [4] delays the apprehension of suspects, and the investigation and prosecution of criminal cases. cases. Note: Failure Failure to comply with the provisions under Chapter IV of the Cybercrime Prevention Act (RA 10175), specifically the orders of the law enforcement authorities to produce data evidence is evidence is considered obstruction of justice and justice and punished by imprisonment of prision correctional, max and/or fine of 100, 000.00 for each and every non-compliance (Section 20, RA 10175 )

“Scintilla Juris Fraternity” by NBI agents. According to the Supreme Court, the police had no ground for the warrantless arrest. The UP Officers, therefore, had a right to prevent the arrest of the students at the time because their attempted arrest was illegal. “The need to enforce the law cannot be justified by sacrificing constitutional rights ”. (Roger Posadas vs. Ombudsman, G.R. No. 131492, 29 September 2000 ) Comprehensive Dangerous Drugs Act of 2002 (RA 2002 (RA No. 9165) 1. Acts punishable (13 acts). A. IMPORTATION OF DANGEROUS DRUGS (Section 4) 1.

3. Obstruction of Justice absorbed in the crime of rebellion. In a case for Obstruction of Justice filed against Sen. Juan Ponce Enrile, he allegedly accommodated Col. Gregorio Honasan by giving him food and comfort on 1 December 1989 in his house. “ Knowing that Colonel Honasan is a fugitive from justice, Sen. Enrile allegedly did not do anything to have Honasan arrested or apprehended.” The Supreme Court ruled that Sen. Enrile could not be separately charged under PD 1829, as this is absorbed in the charge of rebellion already filed against Sen. Enrile. Thus: “x x x the intent or motive is a decisive factor. If Senator Ponce Enrile is not charged with rebellion and he harbored or concealed Colonel Honasan simply because the latter is a friend and former associate, the motive for the act is completely different. But if the act is committed with political or social motives motives that are in furtherance of rebellion, then it should be deemed to form part of the crime of rebellion rebellion instead of being punished separately.” (Sen. Juan Ponce Enrile vs. Judge Omar Amin, GR N o. 93335, 13 September 1990) 4. Safeguarding Constitutional rights is not obstruction of justice. In a case involving the investigation of the death of student, “Dennis Venturina” of Sigma Rho Fra ternity, certain officials of the University of the Philippines (UP) were charged for violating Section 1, par. C of PD 1829. The UP officers objected to the warrantless arrest of the students, “Taparan” and “Narag” of of

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2.

Importation of Importation of any dangerous drug, regardless of the quantity and purity involved, including any and all species of opium poppy or any part thereof or substance derived therefrom even for floral, decorative and culinary purposes; [unless authorized by law] Importation of any controlled precursor and essential chemical; [regulatory powers on importation of dangerous drugs and controlled precursor are transferred from Dangerous Drugs Board (RA 6425) to PDEA under RA 9165]

3. Importation of any dangerous drug and/or controlled precursor and essential chemical through the use of a diplomatic passport, diplomatic facilities or or any other means involving his/her official status intended to facilitate the unlawful entry; 4. Organizing, Organizing, managing or acting as a “financier a “financier” of [importer] or any of the illegal activities penalized [under Section 4 of the law ]; 5. Acting as “ protector/coddler” of any of the illegal activities penalized [ under Section 4 of the law ]. B. SELLING DANGEROUS DRUGS ( Section 5) 1. Sale, Sale , trading, administration, dispensation, distribution, and transportation of any controlled precursor and essential chemical, or acting as broker in broker in such transaction; 2. Use by drug pushers of minors or minors or mentally incapacitated individuals individuals as runners, runners , couriers and messengers, or in any other capacity directly connected to the trade of dangerous drugs and/or controlled precursor and chemicals;

Atty. Roland Ysrael R. Atienza I Notes in Criminal Law

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3. Acting as a protector/coddler of [drug pusher] or any violator of [Section 5 of the law].

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G. MANUFACTURE OR DELIVERY of equipment, instrument, apparatus, and other paraphernalia for dangerous drugs and/or controlled precursor and essential chemicals (Section 10);

The maximum penalty is imposed if selling is done within 100 meters from school.

C. MAINTENANCE OF DRUG DEN (Section 6)

H. POSSESSION OF DANGEROUS DRUGS (Section 11-14) 1. Possession of Drug (Section 11); 2. Possession of equipment, instrument, apparatus, and other paraphernalia for dangerous drugs ( Section 12); [prima facie of evidence of use

1. Maintenance of a Den, Dive or Resort where any dangerous drug is used or sold in any form; 2. Maintenance of a Den, Dive or Resort where any controlled precursors and essential chemicals is used or sold in any form; 3. Acting as “protector/coddler” of a maintainer of a Den, Dive, or Resort.

under section 15]

3. Possession of dangerous drugs during parties, social gatherings or meetings (Section 13); [at least gathering of two persons] 4. Possession of equipment, instrument, apparatus and other paraphernalia for dangerous drugs, during parties, social gathering or meetings ( Section 14); [in the proximate company of at least two persons ]

Den proven to be where drugs or controlled precursor are used or sold can be shut down and declared by the LGU as public nuisance and can be abated under the law (section 52, IRR)

D. WORKING AND VISITING DRUG DEN (Section 7)

I.

the place despite knowing its nature as a den.]

E. MANUFACTURE OF DANGEROUS DRUGS (Section 8) 1. Manufacture of Dangerous Drugs and/or controlled precursors and essential chemicals; 2. Acting as “protector/coddler” of such manufacturer; F. CHEMICAL DIVERSION (Section 9) Illegal chemical diversion of controlled precursor and essential chemicals. [ Acts of repacking, labeling, re-labeling, or concealment of such transaction through fraud, destruction of documents, fraudulent use of permits, mis-declaration, use of front companies or mail fraud, are usually done by manufacturer or importer. Clandestine illegal drugs laboratories are direct product of chemical diversion.]

USE of dangerous drugs (Section 15); [Penalty for the first offense is minimum six (6) months rehabilitation to one year as

recommended by the Board; on the second offense, imprisonment. Under Sec. 58-59, a drug dependent who is not rehabilitated or who escape from treatment and rehabilitation may be prosecuted under Section 15, and suffer imprisonment, but credited with the number of days of rehabilitation/confinement]

Employees and visitors of the foregoing Den, Dive or Resort are penalized. [Employees must be aware of the nature of the place. For non-employees, must knowingly visits J.

CULTIVATION or CULTURE of plants classified as dangerous drugs or are sources thereof (Section 16); [land used may be escheated in favor of the s tate]

K. MAINTENANCE AND KEEPING OF ORIGINAL RECORDS OF TRANSACTION on dangerous drugs and/or controlled precursors and essential chemicals (section 17); [Failure to maintain and keep records of transaction of regulated drugs or controlled precursor entails additional penalty of revocation of license to practice profession, in case of practitioner or of the business, in case of manufacturer, seller, importer, distributor, dealer or retailer]

L. UNNECESSARY prescription AND UNLAWFUL prescription of dangerous drugs (Sections 18-19 ); [In unnecessary, the offender is authorized to make prescription but he made it to a person whose physical or psychological condition does not require such; hence the penalty of revocation of license. In unlawful, the off ender is not authorized to make prescriptions]

M. Conspiracy or attempt (Section 26) to commit the following unlawful acts:


CRIMINAL LAW

1. Importation of any dangerous drugs and/or controlled precursor and essential chemical (Section 4); 2. Sale, trading, administration, dispensation, delivery, distribution, and transportation of any dangerous drug and/or controlled precursor and essential chemical (Section 5 ); 3. Maintenance of a den, dive, or resort where dangerous drugs is used in any form (Section 6); 4. Manufacture of any dangerous drug and/or controlled precursor and essential chemical (Section 8); and 5. Cultivation or culture of plants which are sources of dangerous drugs ( Section 16). N. PLANTING OF EVIDENCE. Planting any dangerous drug and/or controlled precursor and essential chemicals, regardless of quantity and purity, shall suffer the penalty of death [ now reclusion perpetua]. (Section 29 of RA No. 9165 ) O. VIOLATING REGULATIONS issued by Dangerous Drugs Board. ( Section 32) [The Board is empowered to enact quasi-penal rules termed as REGULATIONS, violation of which entails penalty of imprisonment of 6 months to 4 years] P. Issuance of FALSE OR FRAUDULENT DRUG TEST result. (Section [ Additional penalty of revocation of license to professional practitioner who are personnel of testing centers or hospitals]

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The crime is malum prohibitum, hence, lack of criminal intent or good faith does not exempt appellants from criminal liability. Mere possession of a regulated drug without legal authority is punishable under the Dangerous Drugs Act. (People vs. Tiu 405 SCRA 280, 01 July 2003 ) 3. Element in the sale of prohibited drugs; Elements for prosecution. a. the identity of the buyer and the seller, the object and consideration; and b. the delivery of the thing sold and payment therefor. (People vs. Arnel S. Clarite, G.R. No. 187157, 15 February 2012 ) In a prosecution for sale of illicit drugs, any of the following will not exculpate the accused: a. that facilities for the commission of the crime were intentionally placed in his way; or b. that the criminal act was d one at the solicitation of the decoy or poseur-buyer seeking to expose his criminal act; or c. that the police authorities feigning complicity in the act were present and apparently assisted in its commission. (People vs. Simpresueta M. Seraspe, G.R. No. 180919, 9 January 2013 )

drug

2. Elements of illegal possession of dangerous drugs. a. appellants were in possession [actual or constructive] of an item or an object identified to be a prohibited or regulated drug; b. such possession is not authorized by law , and; c. the appellants were freely and consciously aware of being in possession of the drug. (“ Animus possidendi”) In this case, the evidence of the corpus delicti must be established beyond reasonable doubt. ( People vs. Paterno Lorenzo, G.R. No. 184760, 23 April 2010; People vs. Joel Gaspar, G.R. No. 192816, 06 July 2011 )

Note: Presentation of buy-bust money, not required; except when there are material inconsistencies in the testimonies of the prosecution witness and the non-presentation of the buy-bust money raise reasonable doubts about the occurrence of a buy-bust operation. ( People v. Balag-ey) Presentation of a confidential informant, not always required; except when the appellant vehemently denies selling prohibited drugs; and when there are material inconsistencies in the testimonies of the arresting officers (People vs. Zheng Bai Hui, GR No. 127580, 22 August 2000 ). However, where the informant is the only eyewitness to the illegal transaction, his testimony is essential and non-presentation of the informant is fatal to the prosecution’s cause. Only when the testimony of the informant is considered absolutely essential in


CRIMINAL LAW

obtaining the conviction of the culprit should the need to protect his security be disregarded. (People vs. Noel Bartolome y Bajo, G.R. No. 191726, 6 February 2013 ) 4. Mandatory procedure in the seizure and custody of drugs.

or tampering - without regard to whether the same is advertent or otherwise not - dictates the level of strictness in the application of the chain of custody rule”. ( Lopez vs. People, G.R. 172953, 30 April 2008)

5. Venues of the physical inventory and photography of the seized items.

The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the: a. b. c. d.

a. In seizures covered by search warrants, the physical inventory and photograph must be conducted in the place where the search warrant was served;

accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel; a representative from the media; a representative from the Department of Justice (DOJ); and any elected public official,

b. In case of warrantless seizures such as a buy- bust operation, the physical inventory and photograph shall be conducted at the nearest police station or office of the apprehending officer/team, whichever is practicable; however, nothing prevents the apprehending officer/team from immediately conducting the physical inventory and photography of the items at the place where they were seized. ( People vs. Salvador Sanchez, GR No. 175832, 15 October 2008 )

who shall be required to sign the copies of the inventory and be given a copy thereof. (Section 21, par. 1, Article II of R.A. No. 9165; DOJ Circular No. 3, 19 January 2009 ) Physical inventory is a document where the searching officers shall make an [1] entry of the approximate quantity of the drugs and other items seized; the [2] names and positions of witnesses; and the [2] person subject of the search. The conduct of the physical inventory shall likewise be photographed. Note: Chain of Custody Rule or the duly recorded authorized movements and custody of seized drugs or controlled chemicals or plant sources of dangerous drugs or laboratory equipment, from the time of seizure/confiscation until presentation in court for destruction requires the "marking" of the seized items - to truly ensure that they are the same items that enter the chain and are eventually the ones offered in evidence --- should be done [1] in the presence of the apprehended violator [2] immediately upon confiscation. ( Section 1(b) of Dangerous Drugs Board Regulation No. 1, Series of 2002 ).

“While testimony about a perfect chain is not always the standard because it is almost always impossible to obtain; an unbroken chain of custody becomes indispensable and essential [1] when the item of real evidence is not distinctive and is not really identifiable, or [2] when its condition at the time of testing or trial i s critical, or [3] when a witness has failed to observe its uniqueness. The same standard likewise obtains in case the evidence is susceptible to alteration, tampering, contamination and even substitution and exchange. In other words, the exhibit's level of susceptibility to fungibility, alteration

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Comprehensive Firearms and Ammunition Law (RA 10591) 1. Prohibited Acts. a.

Unlawful acquisition or possession of firearms and ammunition ( Section 28);

b.

Use of Loose Firearm in the Commission of a Crime ( Section 29);

c.

Willfully or knowingly allowing any of the firearms owned by juridical entity to be used by any person or persons found guilty of using loose firearm in the commission of the crime (Section 30);

d.

Willfully or knowingly allowing any employees/members of a juridical entity to use unregistered firearm or firearms without any legal authority to be carried outside of their residence in the course of their employment ( Section 30);

e.

Carrying firearms without permit to carry (PTCFOR). Any person who is licensed to own a firearm but who shall carry the registered firearm outside his/her residence without any legal authority shall be liable ( Section 31);


CRIMINAL LAW f.

Unlawfully engaging in the manufacture, importation, sale or disposition of a firearm or ammunition, or a major part of a firearm or ammunition, or machinery, tool or instrument used or intended to be used by the same person in the manufacture of a firearm, ammunition, or a major part thereof ( Section 32);

g.

Engage or participating in arms smuggling (Section 33);

h.

Tampering, obliterating or altering [of firearms identification] without authority the barrel, slide, frame, receiver, cylinder, or bolt assembly, including the name of the maker, model, or serial number of any firearm, OR replacing without authority the barrel, slide, frame, receiver, cylinder, or bolt assembly, including its individual or peculiar identifying characteristics essential in forensic examination of a firearm or light weapon ( Section 34);

'pillbox,' 'molotov cocktail bombs,' 'fire bombs,' or other incendiary devices capable of producing destructive effect on contiguous objects or causing injury or death to any person (Section 3 PD 1866 ); b.

i.

Use of imitation firearm in the commission of a crime [considered as real firearms] (Section 35);

j.

Violating the rule on Custodia Legis for seized firearms during the pendency of the case (Section 36);

k.

Willfully and maliciously inserting; placing, and/or attaching, directly or indirectly, through any overt or covert act, any firearm, or ammunition, or parts thereof in the person, house, effects, or in the immediate vicinity of an innocent individual for the purpose of implicating or incriminating the person, or imputing the commission of any violation of RA 10591 to said individual [Planting of evidence] (Section 37);

l.

Failure to notify lost or stolen firearm or light weapon to PNP-FEO within 30 days from discovery ( Section 40);

m. Transferring possession of any firearm to any person who has not yet obtained or secured the necessary license or permit [ Illegal transfer of firearms] (Section 41); n.

Facilitating the registration of a firearm through fraud, deceit, misrepresentation or submission of falsified documents committed by public officers [Illegal registration of firearms] (Section 41, 3rd par.) Note: Explosives under PD 1866, as amended by RA 8294: a.

Unlawfully manufacture, assemble, deal in, acquire, dispose or possess hand grenade(s), rifle grenade(s), and other explosives, including but not limited to

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Unlawfully repack, alter or modify the composition of any lawfully manufactured explosives (Section 6, PD 1866)

2. New rules in possession and use of loose firearms. a. The use of a loose firearm, when inherent in the commission of a crime punishable under the Revised Penal Code or other special laws, shall be considered as an aggravating circumstance. b. If the crime committed with the use of a loose firearm is penalized by the law with a maximum penalty which is lower than that prescribed in the preceding section for illegal possession of firearm, the penalty for illegal possession of firearm shall be imposed in lieu of the penalty for the crime charged c.

If the crime committed with the use of a loose firearm is penalized by the law with a maximum penalty which is equal to that imposed under the preceding section for illegal possession of firearms, the penalty of prision mayor in its minimum period shall be imposed in addition to the penalty for the crime punishable under the Revised Penal Code or other special laws of which he/she is found guilty.

d. If the use of loose firearm is in furtherance of, or incident to, or in connection with the crime of rebellion of insurrection, or attempted coup d’ etat, such violation shall be absorbed as an element of the crime of rebellion or insurrection, or attempted coup d’ etat . e. If the crime is committed by the person without using the loose firearm, such possession of loose firearm shall be considered as a distinct and separate offense. 3. Illegal Possession; Elements.


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a. b.

The existence of the subject firearm; The fact that the accused who owned or possessed it does not have the license or permit to possess the same. (People vs. Castillo, GR 131592-93, 15 February 2000 )

Note: The essence of the crime of illegal possession is the possession, whether actual or constructive , of the subject firearm, without which there can be no conviction for illegal possession. In People vs. Narvasa, the Court ruled that the firearm itself may not be presented as evidence. Its existence can be established by testimony. ( People vs. Feliscimo Narvasa, et.al., GR No. 128618, 16 November 1998 citing People vs. Arsenio Ferrera, GR L66965, 18 June 1987 )

Ownership is not essential element of illegal possession of firearms and ammunition. What the law requires is merely possession which includes not only actual possession but also constructive possession of the subjection of the thing to one’s control and management. ( People vs. Reynaldo Cruz, GR No. 76728, 03 August 1988 ) 4. Loose firearm; defined. a. b. c. d. e. f.

unregistered firearm; an obliterated or altered firearm; firearm which has been lost or stolen; Illegally manufactured firearms; Registered firearms in the possession of an individual other than the licensee; Those with revoked licenses in accordance with the rules and regulations.

a. b. c. d.

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That there is an actual taking of the vehicle; That the offender intends to gain from the taking of the vehicle; That the vehicle belongs to a person other than the offender himself; That the taking is without the consent of the owner thereof; or the taking was committed by means of violence against or intimidation of persons, or by using force upon things. (People vs. Garcia; GR No. 138470, 01 April 2003 )

3. Qualified carnapping. It becomes qualified when in the course of the commission or on occasion of the carnapping , the owner, driver or occupant of the carnapped vehicle is killed or raped . Penalty: R eclusion perpetua to death. (People vs. Lobitania, GR No. 142380, 05 September 2002 )

Anti-Alias Law (CA No. 142), as amended by RA No. 6085 1. “Alias” defined.

An “Alias” is name or names by a person used by a person or intended to be used by him publicly and habitually usually in business transactions in addition to his real name by which he is registered at birth or baptized the first time or substitute name authorized by a competent authority. A man’s name is simply the sound or sounds by which he is commonly designated by his fellows and by which they distinguish him but sometimes a man is known by several different names and these are known as aliases. ( Cesario Ursua vs. Court of Appeals, G.R. No. 112170, 10 April 1996 )

Anti-Carnapping Law (R.A. No. 6539) 1. Carnapping is the taking, with intent to gain, of a motor vehicle belonging to another without the latter’s consent, or by means of violence against or intimidation of persons, or by using force upon things. (Izon vs. People, GR No. L-51370, 31 August 1981 )

There must be a “sign or indication that the user intends to be known by this name (the alias) in addition to his real name from that day forth for the use of alias to fall within the prohibition contained in C.A. No. 142 as amended.” (People vs. Estrada, G.R. Nos. 164368-69, 2 April 2009 )

2. Elements of Carnapping.

2. Instances when a second name can be used.


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a. As pseudonym solely for literary, cinema television, radio or other entertainment purposes and in athletic events where the use of pseudonym is a normally accepted practice; b. When the use of the second name or alias is judicially authorized and duly recorded in the proper local civil registry ; c.

The use of a fictitious name or a different name belonging to a single person in a single instance without any sign or indication that the user intends to be known by this name in addition to his real name from that day forth. (Cesario Ursua vs. CA, ibid. )

Note: No person having been baptized with a name different from that with which he was registered at birth in the local civil registry, or in case of an alien, registered in the bureau of immigration upon entry, or any person who obtained judicial authority to use an alias, or who uses a pseudonym, shall represent himself in any public or private transaction or shall sign or execute any public or private document without stating or affixing his real or original name and all names or aliases or pseudonym he is or may have been authorized to use . (Section 3)

guaranteed privacy and secrecy effectively negate a conclusion that the transaction was done publicly or with the intent to use the alias publicly” (People vs. Estrada, ibid .). Access Devices Regulation Act (RA No. 8484) 1. Access device - Any card, plate, code, account number, electronic serial number, personal identification number, or other telecommunication service, equipment, or instrumental identifier, or other means of account access that can be used to obtain money, good, service or any other thing of value or to initiate transfer of funds (other than transfer originated solely by paper instrument). 3. Purpose of the law. The law seeks to address the issue of fraud in the issuance and use of access devices, especially credit cards to protect the rights and define the liabilities of parties in such commercial transactions by regulating its issuance and use. (Section 2)

5. Use of alias publicly is essential.

Fraud may be committed by:

In order to be held liable for a violation of CA No. 142, the user of the alias must have held himself out as a person who shall publicly be known under that other name. x x x the use of the alias, to be considered public, must be made openly, or in an open manner or place, or to cause it to become generally known. It follows that the use of alias in private or confidential transactions is not violation of the law as held by SC in the case of Estrada : “x x x We have consistently ruled that bank deposits under R.A. No. 1405 (the Secrecy of Bank Deposits Law) are statutorily protected or recognized zones of privacy. Given the private nature of Estrada’s act of signing the documents as “Jose Velarde” related to the opening of the trust account, the People cannot claim that there was already a public use of alias when Ocampo and Curato witnessed the signing. We need not even consider here the impact of the obligations imposed by R.A. No.1405 on the bank officers; what is essentially significant is the privacy situation that is necessarily implied in these kinds of transactions. This statutorily

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a. The issuer by making false or vague information in the application or solicitation to open credit card accounts; b. The applicant or holder by fraudulently misrepresents himself by giving wrong identity, false profession or employment, or bloated income. 4. Credit Card application and solicitation requirement; Disclosure. An access device issuers or card issuers are required to disclose either in writing or orally in any application or solicitation to open a credit card account, the following: a. b. c. d. e.

Annual percentage rate; Annual and other fees; Balance calculation method; Cash advance fee; and Over the limit fee. (Section 4) Atty. Roland Ysrael R. Atienza I Notes in Criminal Law

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6. Rule in case of loss access device. As an exception, the disclosure requirement may not be applied when the solicitation or application is made trough telephone, provided: a. No annual or periodic fee is imposed; b. No telephone solicitation fee, unless the consumer signifies acceptance by using the card; c. Disclosure of information required in writing within 30 days; d. Consumer is informed of no obligation to accept the card or account, unless the latter accept by using the card. (Section 6) In sum, the above omission is made punishable if the following elements occur: a. b. c.

there is an application or solicitation; such application or solicitation should include the information required by RA 8484; and failure on the part of the issuer to disclose such information.

Failure on the part of the issuer to fulfill the disclosure requirement will result in [1] suspension or [2] cancellation of its authority to issue credit cards, after due notice and hearing, by BSP, the SEC and such other government agencies. (Section 8) 5. Prohibited act of access device holder. An access device holder may be penalized when he/she fraudulently applied for such device. An access device fraudulently applied by means of any access device that was applied for or issued on account of the use of falsified document, false information, fictitious identities and addresses, or any form of false pretense or misrepresentation. In this act element of fraud is indispensible. Thus, the [1] use, [2] trafficking in, [3] possession, and [4] inducing, enticing or in any manner allowing one to use access device fraudulently applied for are considered unlawful.

The holder must notify the issuer of the access device of the details and circumstances of such loss upon knowledge of the loss. Full compliance with such procedure would absolve the access device holder of any financial liability from fraudulent use of the access device from the time the loss or theft is reported to the issuer. (Ermitano vs. C.A., G.R. No. 127246, 21 April 1999; Section 15 RA 8484 ) Hazing Regulation Act (RA No. 8049) 1. Hazing defined; exception. An initiation rite or practice as a prerequisite for admission into membership in a fraternity, sorority or organization by placing the recruit, neophyte or applicant in some embarrassing or humiliating situations such as forcing him/her to do menial, silly, foolish and similar tasks or activities or otherwise subjecting him/her to physical or psychological suffering or injury. The physical, mental and psychological testing and training procedure and practices to determine and enhance the physical, mental and psychological fitness of prospective regular members of the Armed Forces of the Philippines and the Philippine National Police as approved by the secretary of National Defense and the National Police Commission duly recommended by the Chief of Staff, Armed Forces of the Philippines and the Director General of the Philippine National Police shall not be considered as hazing [for purposes of this act]. 2. Who are liable. a. b. c.

d.

The officers and members of the fraternity, sorority or organization who actually participated in the infliction of physical harm shall be liable as principals ; Other person who actually participated in the hazing; The owner of the place where the hazing is conducted shall be liable as an accomplice , when he/she has actual knowledge of the hazing conducted therein but failed to take any action to prevent the same from occurring; If the hazing is held in the home of one of the officers of members of the fraternity, sorority, group, or organization, the parent shall be held liable as Atty. Roland Ysrael R. Atienza I Notes in Criminal Law

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e.

f.

g.

principals when they have actual knowledge of the hazing conducted therein but failed to take any action to prevent the same from occurring; The school authorities including faculty members who consent to the hazing or who have actual knowledge thereof, but failed to take any action to prevent the same from occurring shall be punished as accomplices for the acts of hazing committed by the perpetrators; The officers, former officers or alumni of the organization, group, fraternity or sorority who actually planned the hazing although not present when the acts constituting the hazing were committed shall be liable as principals; Officers or members of an organization, group, fraternity or sorority’s adviser who is present when the acts constituting the hazing were committed and failed to take any action to prevent the same from occurring shall be liable as a principal .

The commission by any person of an act punishable under any of the following provisions of the Revised Penal Code: i. ii. iii. iv. v. vi.

i. ii.

No-hazing or initiation rites in any from or manner by a fraternity, sorority or organization shall be allowed without prior written notice to the school authorities or head of organization seven (7) days before the conduct of such initiations .

iii. iv. v.

a. b. c.

the period of the initiation activities which shall not exceed three (3) days; the names of those to be subjected to such activities; an undertaking that no physical violence be employed by anybody during such initiation rites. (Section 2)

Note: The head of the school or organization or their representatives must assign at least 2 representatives of the school or organization, as the case may be, to be present during the initiation to see to it that no physical harm of any kind shall be inflicted upon a recruit, neophyte or applicant. ( Section 3)

Human Security Act of 2007 (RA No. 9372) 1. Terrorism defined. (Section 3)

Article 122 (Piracy in General and Mutiny in the High Seas or in the Philippine Waters); Article 134 (Rebellion or Insurrection); Article 134-a (Coup d’état), including acts committed by private persons; Article 248 (Murder); Article 267 (Kidnapping and Serious Illegal Detention); Article 324 (Crimes Involving Destruction),

or under

3. Written notice required before the conduct of hazing.

The written notice shall indicate:

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vi.

Presidential Decree No. 1613 ( The Law on Arson ); Republic Act No. 6969 ( Toxic Substances and Hazardous and Nuclear Waste Control Act of 1990); Republic Act No. 5207, ( Atomic Energy Regulatory and Liability Act of 1968); Republic Act No. 6235 ( Anti-Hijacking Law); Presidential Decree No. 532 (Anti-Piracy and Anti-Highway Robbery Law of 1974 ); and, Presidential Decree No. 1866, as amended ( Decree Codifying the Laws on Illegal and Unlawful Possession, Manufacture, Dealing in, Acquisition or Disposition of Firearms, Ammunitions or Explosives),

thereby sowing and creating a condition of widespread and extraordinary fear and panic among the populace, in order to coerce the government to give in to an unlawful demand. (Southern Hemisphere Engagement network Inc., et.al. vs. Anti-Terrorism Council, G.R. No. 178552, 05 October 2010 ) Note: The law punishes conspiracy to commit terrorism. The basic principle in conspiracy is that the act of one is the act of all. 2. Elements of the crime of terrorism. a. The commission of one or more of the crimes specified [in Section 3];


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b. That sows and creates a condition of widespread and extraordinary fear and panic among the populace; c. For the purpose of coercing the government to give in to an unlawful demand. Note: Penalty for the crimes of terrorism and conspiracy to commit terrorism. a. b. c. d.

The penalty for the crime of terrorism is 40 years of imprisonment without benefit of parole. [Note: This is a new penalty not recognized by the Revised Penal Code.]; The penalty for conspiracy to commit terrorism is also 40 years of imprisonment without the benefit of parole. The penalty for accomplices is 17 years, 4 months and 1 day to 20 years of imprisonment. The penalty for accessories is 10 years and 1 day to 12 years of imprisonment.

3. Exception to the anti-wiretapping law. The government can place suspects under surveillance, or tap into their private conversations and communications, if authorized by the authorizing division of the Court of Appeals. Penalty: Imprisonment of between 10 years and 1 day to 12 years. ( Section 7) The subject of surveillance or wiretapping will only be informed of the surveillance or wiretapping if no case is filed against him or her. If the applicant fails to notify the subject of surveillance or wiretapping in writing within 30 days from the expiration of the operation, he or she shall be punished with imprisonment of between 10 years and 1 day to 12 years. 4. Government may examine bank deposits and finances, and seize, sequesters or freeze assets of persons suspected or charged if authorized by CA Note: Any person who knowingly furnishes false testimony, forged document or spurious evidence in any investigation or hearing under the law. (Section 47, RA 9372)

Anti-Graft and Corrupt Practices Act (R.A. No. 3019)

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1. Graft and corrupt acts or practices. (Section 3) a. Persuading, inducing or influencing another public officer to perform an act constituting a violation of rules and regulations duly promulgated by competent authority or an offense in connection with the official duties of the latter, or allowing himself to be persuaded, induced, or influenced to commit such violation or offense; b. Directly or indirectly requesting or receiving any gift , present, share, percentage, or benefit , for himself or for any other person, in connection with any contract or transaction between the Government and any other party, wherein the public officer in his official capacity has to intervene under the law ; c. Directly or indirectly requesting or receiving any gift , present or other pecuniary or material benefit , for himself or for another, from any person for whom the public officer, in any manner or capacity, has secured or obtained, or will secure or obtain, any Government permit or license, in consideration for the help given or to be given; d. Accepting or having any member of his family accept employment in a private enterprise which has pending official business with him during the pendency thereof or within one year after its termination. e. Causing any undue injury to any party, including the Government, [or] giving any private party any unwarranted benefits, advantage or preference in the discharge of his official administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence . This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions; f. Neglecting or refusing , after due demand or request, without sufficient justification, to act within a reasonable time on any matter pending before him for the purpose of obtaining, directly or indirectly, from any person interested in the matter some pecuniary or material benefit or advantage , or for the purpose of favoring his own interest or giving undue advantage in favor of or discriminating against any other interested party;


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g. Entering , on behalf of the Government, into any contract or transaction manifestly and grossly disadvantageous to the same, whether or not the public officer profited or will profit thereby; h. Directly or indirectly having financial or pecuniary interest in any business, contract or transaction in connection with which he intervenes or takes part in his official capacity, or in which he is prohibited by the Constitution or by any law from having any interest; i. Directly or indirectly becoming interested, for personal gain, or having a material interest in any transaction or act requiring the approval of a board, panel or group of which he is a member, and which exercises discretion in such approval, even if he votes against the same or does not participate in the action of the board, committee, panel or group; Interest for personal gain shall be presumed against those public officers responsible for the approval of manifestly unlawful, inequitable, or irregular transaction or acts by the board, panel or group to which they belong; j. Knowingly approving or granting any license, permit, privilege or benefit in favor of any person not qualified for or not legally entitled to such license, permit, privilege or advantage, or of a mere representative or dummy of one who is not so qualified or entitled; k. Divulging valuable information of a confidential character , acquired by his office or by him on account of his official position to unauthorized persons, or releasing such information in advance of its authorized release date. Note: A public officer [as well as a private person in conspiracy] may be charged for violation of RA 3019 in addition to a felony under the RPC for the same delinquent act, subsequently or simultaneously. (Section 3, par.1) The same act constitute violations of Section 7[b] of RA 6713, under the first [1st] paragraph which is accepting employment in a private enterprise and the third [3 rd] paragraph which is recommending other person(relative) for employment in a private enterprise.

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2. Elements of Section 3 [e]; proof of the following facts. A. Two ways to commit violation of Sec. 3[e]. In catena of cases, the Supreme Court has held that there are two (2) ways by which a public official violates section 3(e) of R.A. 3019 in the performance of his functions, namely: a. By causing undue injury to any party, including the government; b. By giving any private party any unwarranted benefits, advantage or preference. (Catindig v. People, GR 183141, 18 September 2009 ) By mode of commission, it may be committed either: a. By dolo, as when the accused acted with evident bad faith or manifest partiality, or b. By culpa, as when the accused committed gross inexcusable negligence. (Jovito C. Plameras v. People, G.R. No. 187268, 4 September 2013 ) Thus, the essential elements of section 3[e] are as follows: a. The accused must be a public officer discharging administrative, judicial or official functions; b. He must acted with [1] manifest partiality, [2] evident bad faith OR [3] gross inexcusable negligence; and c. His action [1] caused any undue injury to any party, including the government, OR [2] gave any private party unwarranted benefits, advantage or preference in the discharge of his functions. (Dr. Roger Posadas and Dr. Rolando Dayco v. Sandiganbayan, G.R. Nos. 168951& 169000, 17 July 2013 ) In the first mode, the undue injury to private complainant [or to the Government] must be established. In Antonio Sanchez case, the SC ruled that the failure of the petitioner, as the city engineer of Cebu, to validate the ownership of the land on which the canal was to be built because of his unfounded belief that it was public land constitutes gross inexcusable negligence which caused damage to private complainant. As a result, complainant lost income from the sale of the palm leaves when the tree was cut and she also lost control


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and use of a part of her land occupied by the constructed canal therein. ( Antonio B. Sanchez v.

1. To preserve the integrity of the prosecution of the accused public officer; 2. Prevent the accused public officer from intimidating or influencing witnesses or tampering with documentary evidence; 3. To avoid further acts of malfeasance in the office ( Gov. Antonio M. Bolastig v. Sandiganbayan, GR 110503, 4 August 1994 )

People, G.R. No. 187340, 14 August 2013 )

“To be found guilty under the second mode, it suffices that the accused has given unjustified favor or benefit to another, in the exercise of his official, administrative and judicial functions.” The element of damage is not required for violation of section 3(e) under the second mode. (Isabelo A. Braza v. Sandiganbayan [1st Division], GR 195032, 20 February 2013 )

B. Violation of Section 3(e) includes all public officers including those that do not issue license, permit or concession. (Buencamino Cruz v. Sandiganbayan, et.al. citing Mejorada doctrine, GR 134493, 16 August 2005 ) In the case of Mejorada the High Court ruled, thus:

“We agree with the view adopted by the Solicitor General that the last inclusion of officers and employees of offices or government corporations which under the ordinary concept of “public Officer” may not come within the term. It is a strained construction of the provision to read it as applying exclusively to public officers charged with the duty of granting license or permits or other concessions” . ( Arturo Mejorada v. Sandiganbayan, GR L-51065-72, 30 June 1987)

3. Elements of Section 3 [g]. a. The offender is a public officer; b. Who enters into a contract or transaction on behalf of the government; c. The contract or transaction is grossly and manifestly disadvantageous to the government. ( Ofelia Caunan vs. People, et al. /Joey Marquez v. Sandiganbayan, et al. GR 181999 &182001-04/182020-24, 2 September 2009 ) Note: The existence of the contract or transaction must be proved. When the contract subject of the complaint was already rescinded when the complaint was filed, there is no longer any contract to speak of. The contract after rescission became in contemplation of law, non-existent, as if no contract was ever executed. ( Duterte v. Sandiganbayan, GR 130191, 27 April 1998)

4. Preventive suspension (Section 13) A. Purposes of preventive suspension.

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B. Preventive suspension of accused public officer is mandatory, but not automatic; courts are allowed to determine the validity of the information. It is settled that once a court determines that the information charging a public officer with an offense under [1] RA No. 3019 or [2] Title 7, Book II of the Revised Penal Code, or any [3] other offense involving fraud upon government or public funds or property is valid, it is bound to issue an order of preventive suspension of the accused public officer as a matter of course. The order of suspension pendente lite, while mandatory in nature, is by no means automatic or self-operative, before such suspension is imposed, a determination as to the validity of the information must first be made in a presuspension hearing. There is no hard and fast rule as to the conduct of such hearing. (Bustillo vs. Sandiganbayan; 496 SCRA 321, 07 April 2006 ) The purpose of a pre-suspension hearing validity of the information and thereby furnish suspend the accused and proceed with the trial on suspension and dismiss the case, or correct any impairs its validity (Segovia v. Sandiganbayan, ibid).

is basically to determine the the court with a basis to either the merits of the case or refuse part of the proceedings which

C. The maximum period of preventive suspension is ninety (90) days . As held in the case of Bolastig vs. Sandiganbayan. However, preventive suspension of local elective officials shall only be for sixty (60) days. (Rios vs. Sandiganbayan, GR No. 129913, 26 September 1997 ) Note: In the event that several administrative cases are filed against an elective official, he

cannot be preventively suspended for more than ninety (90) days within a single year on the same ground or grounds existing and known at the time of the first suspension. (Section 63[b], LGC)


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D. Previous administrative suspension is not a bar for a preventive suspension under a criminal proceedings. ( Villasenor, et.al. v. Sandiganbayan, GR 180700, 4 March 2008 ) E. Approve Leave of Absence not a bar to preventive suspension. (Quintin Doromal vs. Sandiganbayan, GR 85468; 7 September 1989 ) 5. The act of refunding the amount subject of the prosecution does not absolve the offender from criminal liability. (Cruz vs. Sandiganbayan, GR No. 134493, 16 August 2005, 467 SCRA 52 )

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Anti-Plunder Law (R.A. No. 7080 as amended by RA 7659) RA 9346 1. Crime of Plunder. Is the act of amassing, accumulating or acquiring ill-gotten wealth through a combination or series of overt or criminal acts [ as described in Section 1(d) of the law], in the aggregate amount or total value of at least fifty million pesos (P50,000,000.00) Note: Combination refers to at least 2 acts falling under different categories of enumeration (e.g. Raid on public treasury and fraudulent conveyance of assets belonging to the national

6. Statements of assets; other disclosures, and Divestment [RA 6713].

government).

The Code of Conduct and Ethical Standards for Public Officials and Employees, in more detailed manner, requires filing of [1] Statement of Assets, Liabilities and Net worth (SALN); and [2] Disclosure of Business Interest and Financial Connections:

Series requires that there must be two or more overt or criminal acts falling under the same category of enumeration ( e.g. Misappropriation, malversation and raid on public treasury ).

a. Within 30 days after assumption of office; b. On or before April 30 of every year, thereafter; c. Within 30 days after separation from service ( Section 8). Moreover, public officers should [1] resign from his position in a private enterprise, within 30 days from assumption of office or [2] divest from his interest therein, within 60 days, whenever conflict of interest arises (Section 9). Persons who serve the Government in [1] honorary capacity, [2] laborers and [3] casual or temporary workers ARE NOT REQUIRED. (Exempt from filing SALN, Disclosure and Divestment) Note: A public officer who willfully [not by mistake] made false or untruthful statements on any matter required to be stated or declared [therein] under oath, can be charged with PERJURY under Article 183, RPC.

Pattern consist of at least a combination of series of overt or criminal acts directed towards a common purpose or goal which is to enable the public officer to amass, accumulate or acquire ill-gotten wealth ( Estrada v. Sandiganbayan, GR No. 148560, 19 November 2001).

2. Who commit the Crime of Plunder; penalties Any public officer who, by [1] himself or in connivance with members of his [2] family, [3] relatives by affinity or consanguinity, [4] business associates, [5] subordinates or [6] other persons, amasses, accumulates or acquires ill-gotten wealth through a combination or series of overt or criminal acts [as described in Section 1(d) of the law] (Definition of Ill-gotten Wealth), in the aggregate amount or total value of at least fifty million pesos (P50,000,000.00). 3. Elements of the crime of plunder. a.

b.

The offender is public officer acting by himself or in connivance with members of his family, relatives by consanguinity or affinity, business associates, subordinate or other persons; The offender amasses, accumulates or acquires ill-gotten wealth;


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c. d.

The aggregate amount or total value of the ill-gotten wealth must be at least fifty million; Such ill-gotten wealth was acquired by the offender directly or indirectly through dummies, nominees, agents, subordinates and/or business associates by any combination or series of the means or similar schemes provided in Section 1[d], sub-pars. [1] to [6];

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particular persons or special interests; [establishing agricultural, industrial or commercial monopolies] or f. By taking undue advantage of official position, authority, relationship, connection or influence to unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people and the Republic of the Philippines. [Using his position to enrich himself at the expense of the Filipino People]

4. Ill-gotten wealth defined (Section 1[d]). Note: Ill-gotten wealth means any asset, property, business enterprise or material possession of any person [ within the purview of Section Two (2) of the law ], acquired by him directly or indirectly through dummies, nominees, agents, subordinates and/or business associates by any combination or series of the following means or similar schemes: a. Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury; [misappropriating public funds]

The foregoing acts or schemes to acquire ill-gotten wealth are only predicate acts of the crime of plunder and detailed allegations of such schemes in the information, which can also be violations of the RPC and other special penal law, should not be understood as allegations charging separate criminal offenses independent of the crime of plunder. (Serapio v. Sandiganbayan, et.al., GR 148468, 28 January 2003) Anti-Money Laundering Act of 2001 (R.A. No. 9160, as amended)

b. By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or any other form of pecuniary benefit from any person and/or entity in connection with any government contract or project or by reason of the office or position of the public officer concerned; [receiving kickbacks in connection with a government contract]

1. Money Laundering, defined.

c. By the illegal or fraudulent conveyance or disposition of assets belonging to the National Government or any of its subdivisions, agencies or instrumentalities or government-owned or -controlled corporations and their subsidiaries; [ illegal conveyance or disposition of government assets]

Note: The original AMLA, Republic Act (R.A.) No. 9160, was passed in 2001 and was amended by:

d. By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of interest or participation including promise of future employment in any business enterprise or undertaking; [ getting shares of stock, equity or a promise of future employment in a business undertaking] e. By establishing agricultural, industrial or commercial monopolies or other combinations and/or implementation of decrees and orders intended to benefit

Money laundering is “a crime whereby the proceeds of an unlawful activity as [defined in the law] are transacted, thereby making them appear to have originated from legitimate sources.” ( Section 4)

1. 2. 3.

R.A. No. 9194 which took effect on 23 March 2003 R.A. No. 10167 (amending sec. 10 and 11) which took effect on 6 July 2012 R.A. No. 10365 which took effect on 19 April 2013. This amendatory law:

a. b.

expanded the definition of the crime of money laundering; [Included some Designated Non-financial Businesses and Professions (DNFBPs) as covered persons;] [Increased the predicate crimes (unlawful activities) to money laundering;]

c.


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e. f. g. h. i.

[Granted AMLC the authority to require the Land Registration Authority and all its Register of Deeds to submit real estate transactions in excess of Php500,000.00 and related documents;] [Revised freezing mechanism;] Introduced forfeiture of equal value to that of the proceeds of an unlawful activity; Imposed monetary and criminal penalty on covered persons, its directors, officers or personnel who knowingly participate in the commission of money laundering; Prohibited discrimination in the implementation of the law; and Prohibited intervention in the Bureau of Internal Revenue affairs.

2. Modes of committing the crime of money laundering, committed by any person. a. transacts said monetary instrument or property; b. converts, transfers, disposes of, moves, acquires, possesses or uses said monetary instrument or property; c. conceals or disguises the true nature, source, location, disposition, movement or ownership of or rights with respect to said monetary instrument or property; d. attempts or conspires to commit money laundering offenses referred to in paragraphs (a), (b) or (c); e. aids, abets, assists in or counsels the commission of the money laundering offenses referred to in paragraphs (a), (b) or (c) above; and f. Performs or fails to perform any act as a result of which he facilitates the offense of money laundering referred to in paragraph (a), (b) or (c) above. g. Money laundering is also committed by any covered person who, knowing that a covered or suspicious transaction is required under this Act to be reported to the Anti-Money Laundering Council (AMLC), fails to do so. Note: [ ] Items (b), (c), (d), and (e) are new additions to the law. (Section 4, RA 10365 )

3. Covered transaction, defined. It is a transaction in cash or other equivalent monetary instrument involving a total amount in excess of Five hundred thousand pesos (PhP 500,000.00) within one (1) banking day. (Section 1, RA 9194 )

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4. Suspicious transactions (Section 2, RA 9194 ) 5. Unlawful activity (Section 3, RA 9194 ) 6. Other prohibited acts. a. Malicious reporting. It is the reporting or filing completely unwarranted or false information relative to money laundering transaction against any person, done with malice or in bad faith. The offender here is not entitled to probation. ( Section 14[c], RA 9160, as amended by Section 9, RA 9194 ).

b. Breach of confidentiality. In reporting covered and suspicious transactions to the AMLC, covered persons/institutions and their officers, employees, and/or representatives shall not be deemed to have violated RA 1405 ( Bank Secrecy Law), RA 6426 ( Foreign Currency Deposit Act ), RA 8791 (General Banking Law of 2000) and other similar law, but prohibited to communicate any information relative thereto to any other person. The publisher, reporter or writer shall be criminally liable if such information was made through media. (Section 14[d], RA 9160, as amended by Section 9, RA 9194 ) Covered persons as well as their officers and employers are prohibited from communicating to any person or entity including the media the transactions has been reported or about to be reported to the AMLC. (Section 7 amending section 9, RA 10365 ) Note: Covered persons shall exclude lawyers and accountants acting as independent legal professionals in relation to information concerning their clients or where disclosure of information would compromise client confidences or the attorney-client relationship. (Section 1 amending Sec. 3[a], RA 10365 )


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9. Provisional remedies in the enforcement of the AMLA. a.

Freeze order.

It is aimed at preserving monetary instruments or property in any way deemed related to unlawful activities as defined in the AMLA. The owner of such monetary instruments or property would thus be inhibited from utilizing the same for the duration of the freeze order. To make such freeze order anteceded by a judicial proceeding with notice to the account holder would allow for or lead to the dissipation of such funds even before the order could be issued. This provisional remedy may be done ex parte , without notice and hearing before the Court of Appeals. The freeze order shall be effective immediately and the period of the freeze order is dependent on the circumstances of the case, but shall not exceed 6 months. If no case is filed against the owner of the asset frozen within the period determined by the court, the freeze order shall be deemed ipso facto lifted. In any case, the CA should act on the petition to freeze within 24 hours. (Section 6 amending sec. 7, RA 10365 ) The power of the AMLC to apply for a freeze order before the Court of Appeals now includes monetary instruments or properties alleged to be laundered as well as instrumentalities used in or intended for use in any unlawful activity. ( RA 10365 ) b.

Bank inquiry order.

The AMLC may inquire into or examine any particular deposit or investment with any banking institution or non-bank financial institution upon order of any competent court in cases of violation of this Act, when it has been established that there is probable cause that the deposits or investments are related to an unlawful activities as defined in Sec. 3(I) of the law or a money laundering offense under [Sec. 4.] This provisional remedy cannot be done without notice and hearing , except that no court order shall be required in cases involving unlawful activities defined in Sections 3(I)1, (2) and ( 12). (Section 8, RA 9194 )

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Further, to ensure compliance with the law, the Bangko Sentral ng Pilipinas may inquire into or examine any deposit or investment with any banking institution or non-bank financial institution when the examination is made in the course of a periodic or special examination, in accordance with the rules of examination of the BSP. ( As an exception to the Bank Secrecy Law ) The authority to inquire into or examine the main account and the related accounts shall comply with the requirements of Article III, Sections 2 and 3 of the 1987 Constitution. [Section 21, RA 10365 ] ( Republic of the Philippines vs. Eugenio, G.R. No. 174629, 14 February 2008 ) 10. Prohibition against Political Harassment - No case for money laundering may be filed against and no assets shall be frozen, attached or forfeited to the prejudice of a candidate for an electoral office during an election period. ( Section 16, RA 9160 ) 11. Non-intervention in BIR affairs – Nothing in the law nor in related antecedent laws or existing agreements shall be construed to allow the AMLC to participate in any manner in the operations of the BIR . (Section 20, RA 10365 ) Law on Secrecy of Bank Deposits (R.A. No. 1405) 1. Coverage. It covers all deposits in whatever nature in banks or banking institutions in the Philippines including investments bonds issued by the Government, and its political subdivisions and instrumentalities. (Section 2) 3. Prohibited Acts. a.

b.

To examined, inquired, or looked into any bank deposits and/or investment bonds – committed by any person, government official or employee; ( Section 2) To disclose to any person information about a bank deposit or investment bonds – committed by any official or employee of banking institution. (Section 3)


CRIMINAL LAW Penalty: Imprisonment of not more than five (5) years or a fine note exceeding twenty thousand pesos, or both, at the discretion of the court.

Reporting covered transactions to the AMLC, covered institutions and their officers, employees, and/or representatives shall not be deemed to have violated RA 1405 ( Bank Secrecy Law), RA 6426 ( Foreign Currency Deposit Act ), RA 8791 ( General Banking Law of 2000 ) and other similar law, but prohibited to communicate it to any other person. ( Section 9[c] )

4. Four exceptions to Bank Secrecy Law. a. b. c. d.

When there is a written permission of the depositor; In cases of impeachment; or When there is court order in cases of bribery or dereliction of duty; or When the money deposited or invested is the subject matter of litigation.

Other exemptions: a. When there is a court order in cases of plunder. In the case of Jingoy Estrada v. Sandiganbayan the SC expanded the application of exemption under the law to plunder case. In this case where Petitioner Ejercito questioned the examination of his [trust and savings] bank accounts; hence, he move to quash the subpoena duces tecum. The SC ruled that such accounts are no longer protected by RA 1405, there being two exceptions to the said law applicable to his case, namely: [1] in cases of bribery or dereliction of duty and [2] in cases where account is subject matter of litigation. The exception applies because the plunder case against President Estrada is analogous to bribery or dereliction of duty and because the money deposited in petitioner’s account is said to form part of the subject matter of the same plunder case against his father. (Jose Ejercito v. Sandiganbayan, GR 157294-95, 30 November 2006 ) b. In cases filed against unexplained wealth. Cases of unexplained wealth under Section 8 of RA 3019 can be considered as another exemption. The said law provides that in cases of unexplained wealth bank deposits shall be taken into consideration, notwithstanding any provision of the law to the contrary. c.

In cases of reporting of covered transaction to the AMLC under RA 9160.

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5. Secrecy of foreign currency deposits under RA 6426; exception. All foreign currency deposits are considered of an absolutely confidential nature. In no instance shall foreign currency deposits be examined, inquired or looked into by any person, government official, bureau or office whether judicial or administrative or legislative, or any other entity whether public or private, except [only] upon the written permission of the depositor. (Section 8, RA No. 6426 - Foreign Currency Deposit Act ) Foreign currency deposits shall be exempt from attachment, garnishment, or any other order or process of any court, legislative body, government agency or any administrative body whatsoever. ( Section 8, R.A. No. 6426, as amended by PD No. 1035, and further amended by PD No. 1246, prom. Nov. 21, 1977 ) Note: Reading of the provision of the law [ RA 6426], it provides two protection for depositors: [1] foreign currency deposits cannot be examined, inquired or looked into by any person, government official, bureau or office whether judicial or administrative or legislative, or any other entity whether public or private, and [2] it is exempt from attachment, garnishment, or any other order or process of any court, legislative body, government agency or any administrative body. Penalty: Imprisonment of not less than one year nor more than five years or a fine of not less than five thousand pesos nor more than twenty-five thousand pesos, or both such fine and imprisonment at the discretion of the court. ( Section 10, RA No. 6426, as amended )

Anti-Torture Act of 2009 (RA No. 9745) 1. Coverage. The law punishes [1] torture and [2] other cruel, inhuman, and degrading punishment or suffering under any circumstance, committed by person in authority or agent of person in authority. (Section 2) Atty. Roland Ysrael R. Atienza I Notes in Criminal Law

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It also prohibits [1] secret detention places, [2] solitary confinement, [3] incommunicado, and [4] other similar form of detention where torture may be carried out with impunity. ( Section 7 )

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against a person under his custody, which attains a level of severity causing suffering, gross humiliation or debasement to the latter. (Section 3[b] )

Note: One of the most important elements of the offense is that the victim i s under custodial investigation. (See section 12 par.2, Article III of the 1987 Constitution )

The assessment of the level of severity shall depend on all the circumstances of the case, including the duration of the treatment or punishment, its physical and mental effects and, in some cases, the sex, religion, age and state of health of the victim. (Section 5)

2. Torture defined.

3. Forms of torture.

Torture is the intentional infliction of pain or suffering, whether physical, psychological or mental, committed by a person in authority or agent of a person in authority, or at the latter’s instigation or acquiescence. Torture refers to: 1. An ACT by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person [except, pain or suffering arising only from, inherent in or incidental to lawful sanctions]; 2. for PURPOSES of: a. obtaining from the victim information or a confession; b. punishing for an act the victim or a third person has committed or is suspected of having committed; or c. intimidating or coercing the victim or a third person; or d. for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a person in authority or agent of a person in authority 3. The pain or suffering is inflicted by a PERSON IN AUTHORITY OR AGENT OF A PERSON IN AUTHORITY or it was made at the [1] instigation of or with the [2] consent or acquiescence of the latter. (Section 3[a]) Note: Other Cruel, Inhuman And Degrading Treatment Or Punishment (OCIDTOP) refers to a deliberate and aggravated treatment or punishment not enumerated as acts of torture [under section 4], inflicted by a person in authority or agent of a person in authority

1. Physical torture. - It is a form of treatment or punishment inflicted by a person in authority or agent of a person in authority upon another in his/her custody that causes severe pain, exhaustion, disability or dysfunction of one or more parts of the body. ( Section 4[a]) 2. Psychological or mental torture. - It is an act committed by a person in authority or agent of a person in authority which are calculated to affect or confuse the mind and/or undermine a person's dignity and morale. (Section 4[b]) Note: The doctrine of fruit of the poisonous tree does not apply to perpetrator of torture. Any confession, admission or statement obtained as a result of torture shall not be invoked as evidence in any proceedings, EXCEPT against a person accused of torture as evidence that said confession, admission or statement was made. ( Section 7 ) The Doctrine of Command Responsibility makes the immediate commanding officer or senior public official liable to the crime of torture or OCIDTOP for any act or omission, or negligence committed that led, assisted, abetted or allowed, directly or indirectly, the commission of the crime by his subordinates; or if he has knowledge of or, owing to the circumstances at the time, should have known that acts of torture or OCIDTOP shall be committed, is being committed, or has been committed by his subordinates or by others within his area of responsibility and, despite such knowledge, did not take preventive or corrective action either before, during or immediately after its commission, when he has the authority to prevent or investigate allegations of torture or OCIDTOP but failed to prevent or investigate allegations of such act, whether deliberately or due to negligence. ( Section 13 [3])

Anti-Wiretapping Act (RA No.4200)


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1. Prohibited acts. It shall be unlawful for any person, not being authorized BY ALL THE PARTIES to any private communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a “dictaphone” or “dictagraph” or detectaphone or walkie -talkie or tape recorder, or however otherwise described. The mere allegation that an individual made a secret recording of a private communication by means of a tape recorder would suffice to constitute an offense [under Section 1 of the Act ]. It is not required that before one can be regarded as a violator, its substance as well as its communication to a third person should be professed. (Ramirez vs. C.A., GR No. 93833, 28 September 1995 ) 2. “Device or arrangement” defined. It refers to instruments whose installation or presence cannot be presumed by the party or parties being overheard because, by their very nature, they are not of common usage and their purpose is precisely for tapping, intercepting, or recording a telephone conversation. 3. Wiretapping is allowed; when. a. Authorized by a written order of the Court b. In cases involving the crimes of treason, espionage, provoking war and disloyalty in case of war, piracy, mutiny in the high seas, rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, inciting to sedition, kidnapping as defined by the Revised Penal Code, and violations of Commonwealth Act No. 616, punishing espionage and other offenses against national security. Such written order shall only be issued or granted upon written application and the examination under oath or affirmation of the applicant and the witnesses he may produce and a showing:

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a. That there are reasonable grounds to believe that any of the crimes enumerated hereinabove has been committed or is being committed or is about to be committed: Provided, however, That in cases involving the offenses of rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, and inciting to sedition, such authority shall be granted only upon prior proof that a rebellion or acts of sedition, as the case may be, have actually been or are being committed; b. That there are reasonable grounds to believe that the evidence that will be obtained are essential to the conviction of any person for, or to the solution of, or to the prevention of, any of such crimes; and c. That there are no other means readily available for obtaining such evidence. (Section 3, RA No. 4200 ) Note: See Section 7 [Surveillance of suspects and interception and recording of communication] of the Human Security Act of 2007 (R.A. No 9372).

4. Wiretapped evidence; inadmissible in any proceeding. Any communication or spoken word, or the existence, contents, substance, purport, effect, or meaning of the same or any part thereof, or any information therein contained, obtained or secured by any person in violation [of this Act] shall not be admissible in evidence in any judicial, quasi-judicial, legislative or administrative hearing or investigation. (Section 4, RA No. 4200 ) 5. Overhearing through telephone extension; no violation. The Supreme Court held that the use of a telephone extension for the purpose of overhearing a private conversation without authorization did not violate R.A. 4200 because a telephone extension devise was neither among those “device(s) or arrangement(s)” enumerated therein, following the principle that “penal statutes must be construed strictly in favor of the accused”. ( Gaanan vs. IAC, 1986, 145 SCRA 112 ) Anti-Sexual Harassment Act of 1995 (RA No. 7877) 1. Elements of sexual harassment.


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a. The employer, employee, manager, supervisor, agent of the employer, teacher, instructor, professor, coach, trainor, or any other person has authority, influence or moral ascendancy over another ; b. The authority, influence or moral ascendancy exist in a working, education or training environment ; and c. The employer, employee, manager, supervisor, agent of the employer, teacher, instructor, professor, coach, or any other person having authority, influence, or moral ascendancy makes a demand, request or requirement of a sexual favor . 2. Casual buss on the cheek, not s exual harassment. A mere casual buss on the cheek [as a form of greetings during festive or special occasions] is not sexual harassment under R.A. No. 7877. ( Aquino vs. Acosta, A.M. CTA-01-1, 02 April 2002)

Note: The acts of the complainant must be square with the behavior of one who has been sexually harassed, for the normal reaction of a victim of sexual harassment would be to avoid the harasser or decline his invitations after being offended. ( Aquino v. Acosta; See also Digitel Telecom Phils vs. Mariquit Soriano, GR 166039, 26 June 2006 )

Anti-Trafficking in Persons Act of 2003 (RA No. 9208, as amended by RA 10364) 1. Trafficking in persons, defined. It is the recruitment, [obtaining, hiring, providing, offering] transportation, transfer, [maintaining] or harboring, or receipt of persons with or without the victim’s consent or knowledge , within or across national borders by means of threat or use of force, or other forms of coercion, abduction, fraud, deception, abuse of power or of position, taking advantage of the vulnerability of the person, or, the giving or receiving of payments or benefits to achieve the consent of a person having control over another person for the purpose of exploitation which includes at a minimum, the exploitation or the prostitution of others or other forms of sexual exploitation, forced labor or services, slavery, servitude or the removal or sale of organs. ( As amended by Section 3, RA 10364)

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Note: The recruitment, transportation, transfer, harboring or receipt of a child for the purpose of exploitation shall also be considered as “trafficking in persons” even if it does not involve any of the means set forth in the preceding paragraph.

2. Elements of trafficking in persons. a. ACT/S – the single act, series of acts, or a combination of acts of [1] recruitment, [2] obtaining, [3] hiring, [4] providing, [5] offering, [6] transportation, [7 transfer, [8] maintaining or [9] harboring, or [10] receipt of persons [with or without the victim’s consent or knowledge etc. (Complete list under section 4 ); b. MEANS - by means of [1] threat or use of force, or other forms of coercion, [2] abduction, [3] fraud, [4] deception, [5] abuse of power or of position, [6] taking advantage of the vulnerability of the person, or [7] the giving or receiving of payments or benefits to achieve the consent of a person having control over another person. (not required if the trafficked person is a child); c.

EXPLOITIVE PURPOSE – of [1] prostitution, [2] pornography, [3] sex tourism, [4] sexual exploitation, [5] forced labor, [6] slavery, [7] involuntary servitude [8] debt bondage, or [9] removal or sale of organs.

The act must be achieved by one of the means and both must be linked to achieving the exploitive purpose. Note: If anyone of the purpose of the three elements is absent, then the situation may not involve trafficking in person as defined under R.A. No. 9208. However, it may still be a criminal violation that can be prosecuted under the applicable provision of the RPC and other special penal laws.

4. Prohibited acts ( As amended by RA 10364 ). a. Acts of trafficking in persons (Section 4); b. Attempted trafficking in persons (Section 4-A ); c. Accomplice Liability (Section 4-B);


CRIMINAL LAW

d. e. f. g. h. i.

Accessories’ liability (Section 4-C) Acts that promote trafficking in persons (Section 5) Qualified trafficking (Section 6) Violation of confidentiality (Section 7) Use of trafficked persons for prostitution ( Section 11) Urging trafficked victims to abandon their complaint ( Section 17-C, 3 RD par.)

Note: Trafficking in Persons under Sections 3(a) and 4 of RA 9208 is not only limited to transportation of victims, but also includes the act of recruitment of victims for trafficking. In Hadja Lalli case when all the three accused [Aringoy, Lalli and Relampagos] conspired and confederated with one another to illegally recruit Lolita [victim] to become a prostitute in Malaysia, it follows that they are also guilty beyond reasonable doubt of the crime of Qualified Trafficking in Persons committed by a syndicate under RA 9208 because the crime of recruitment for prostitution also constitutes trafficking. When an act or acts violate two or more different laws and constitute two different offenses, a prosecution under one will not bar a prosecution under the other. The constitutional right against double jeopardy only applies to risk of punishment twice for the same offense, or for an act punished by a law and an ordinance. In the case of People vs. Lalli the accused were convicted of both Qualified Trafficking in person and Illegal Recruitment. No double jeopardy as conviction is for different offenses. (People vs. Hadja Lalli, ibid .)

Anti-Violence against Women and their Children Act (RA No. 9262) 1. Violence against women and their children refers to any act or a series of acts committed by any person against a woman who is his wife, former wife, or against a woman with whom the person has or had a sexual or dating relationship , or with whom he has a common child, or against her child whether legitimate or illegitimate, within or without the family abode, which result in or is likely to result in physical, sexual, psychological harm or suffering, or economic abuse including threats of such acts, battery, assault, coercion, harassment or arbitrary deprivation of liberty; (Section 3a) 2. Prohibited Acts.

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B. Sexual violence (Section 3a[B]) C. Psychological violence or those acts or omissions causing or likely to cause mental or emotional suffering of the victim. (Section 3a[C] ) D. Economic abuse that make or attempt to make a woman financially dependent (Section 3a[D]) E. Battering, assault, coercion, harassment or arbitrary deprivation of liberty against women and their children. (Section 5) 3. Elements of violence against women through harassment. (Section 5 (h)[5] ) a. The offender has or had a sexual or dating relationship with the offended woman; b. The offender, by himself or through another, commits an act or series of acts of harassment against the woman; and c. The harassment alarms or causes substantial emotional or psychological distress to her. Note: There is commission of the crime of violence against women through harassment when a former boyfriend sent to the girl a picture of a naked woman, not her, but with her face on it. That one act of sending an offensive picture is considered a form of harassment. Hence, a single act of harassment, which translates into violence, would be enough to violate RA 9262. The object of the law is to protect women and children. (Rustan P. Ang v. CA and Irish Sagud, GR 182835, 20 April 2010 )

Notably, while it is required that the offender has or had a sexual or dating relationship with the offended woman for RA 9262 to be applicable, it is not indispensable that the act of violence be a consequence of such relationship. It is immaterial whether the relationship had ceased for as long as there is sufficient evidence showing the past or present existence of such relationship between the offender and the victim when the physical harm was committed. (Karlo Angelo Dabalos y San Diego v. Regional Trial Court, Branch 59, Angeles City, et al, G.R. No. 193960, 7 January 2013 )

A. Physical violence refers to acts that include bodily or physical harm; (Section 3a[A])

4. Battered woman, defined.


CRIMINAL LAW

It refers to a scientifically defined pattern of psychological and behavioral symptoms found in women living in battering relationships as a result of cumulative abuse. (Section 3c) The battered woman syndrome is characterized by the “cycle of violence” , which has three phases: a. The tension-building phase; b. The acute battering incident; and c. The tranquil, loving (or at least, non-violent) phase.

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a. in writing; b. signed; and c. Verified under oath by the applicant. It may be filed, by the victim or others in her behalf, as an independent action or as incidental relief in any civil or criminal case the subject matter or issues thereof partakes of violence [ as described under the law .] (Section 11) The provisions of the protection order shall be enforced by law enforcement agencies. (Section 8) B. The reliefs granted under a protection order serves the purpose of:

Note: Tension-building phase is where minor battering occurs characterized by verbal, physical abuse or other form of hostile behavior. The woman tries to pacify the batterer but his placatory/passive behavior legitimizes her belief that the man has the right to abuse her. At some point, violence “spiral out of control” and leads to acute battering incident. Acute battering incident is characterized by brutality, destructiveness, and sometimes, death. The battered woman deems this incident as unpredictable, yet also inevitable. At this stage, the woman has a sense of detachment from the attack and the terrible pain. Acute battering incidents are often very savage and out of control, that bystanders or interveners likely to get hurt. The tranquil, loving phase (after acute battering ends) is where the couple experience profound relief. The batterer may show a tender and nurturing behavior towards his partner. Victim-survivors who are found by the courts to be suffering from battered woman syndrome do not incur any criminal and civil liability notwithstanding the absence of any of the elements for justifying circumstances of self-defense under the Revised Penal Code. In the determination of the state of mind of the woman who was suffering from battered woman syndrome at the time of the commission of the crime, the courts shall be assisted by expert psychiatrists/ psychologists. (Section 26, RA 9262 ) (See: People vs. Marivic Genosa, G.R. 135981, 29 September 2000; and GR No. 135982, 15 January 2004 )

5. Protection Order. Petition for protection order must be:

a. safeguarding the victim from further harm; b. minimizing any disruption in the victim's daily life; and c. Facilitating the opportunity and ability of the victim to independently regain control over her life. C. Types of Protection Order. a. Barangay Protection Order (BPO) – issued by the Punong Barangay. Follow the rules on venue under Section 409 of the Local Government Code of 1991. (Section 10) b. Temporary Protection Order (TPO) - order issued by the court on the date of filing of the application after ex parte determination that such order should be issued; c. Permanent Protection Order (PPO) - order issued by the court after notice and hearing. Note: Issuance of a BPO or pendency of its application does not preclude an application for TPO and PPO. (Section 10) An application for a TPO or PPO may be filed in the RTC, MTC, MCTC with territorial jurisdiction over the place of residence of the petitioner: Provided, however, if a family court exists in the place of residence of the petitioner, the application shall be filed with that court. TPO and PPO shall be enforceable anywhere in the Philippines. (Section 12)


CRIMINAL LAW

6. Prohibited defense.

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b. Any act by deeds or words which debases, degrades or demeans the intrinsic worth and dignity of a child as a human being;

The following are not a valid defense for the offender: c. a. Being under the influence of alcohol; b. Being under the influence of any illicit drug, or c. Being under the influence of any other mind-altering substance. Note: The offender is not limited to male gender as long as the victim is a woman or her child because the law speaks of commission of the offense by “ any person ” or “through another if not personally” . In one case the SC applying Art. 10 of RPC upheld the issuance of Protective Order against the parents-in-law [parents of the husband offender] citing allegations of conspiracy of the parents with their child in committing acts of harassment against the offended woman. (Sharica Mari L. Go-Tan vs. Sps. Perfecto C. Tan and Juanita L. Tan, GR 168852, 30 September 2008)

Anti-Child Abuse Law of 1992 (RA No. 7610, as amended) 1. Definition of terms. ( Section 3) A. Children - refers to person 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. (People vs. Optana, GR No. 133922, 12 February 2001 ) Note: In the case where a victim of acts of lasciviousness, who is 21 years old but contracted polio when she was still 7 years old, was not considered a child under RA 7610. In this case there was no proof that the victim’s physical disability prevented her from resisting the offender’s attack. (People vs. Heracleo Abello, GR 151952, 25 March 2009)

B. Child abuse - refers to the maltreatment, whether habitual or not, of the child which includes any of the following: a. Psychological and physical abuse, neglect, cruelty, sexual abuse and emotional maltreatment;

Unreasonable deprivation of his basic needs for survival, such as food and shelter; or

d. Failure to immediately give medical treatment to an injured child resulting in serious impairment of his growth and development or in his permanent incapacity or death. 2. Prohibited acts. A. Exploiting children in prostitution and other sexual abuse; (Section 5) B. Attempt to commit child prostitution under the following circumstances: a. when any person who, not being a relative of a child, is found alone with the said child inside the room or cubicle of a house, an inn, hotel, motel, pension house, apartelle or other similar establishments, vessel, vehicle or any other hidden or secluded area under circumstances which would lead a reasonable person to believe that the child is about to be exploited in prostitution and other sexual abuse; b. when any person is receiving services from a child in a sauna parlor or bath, massage clinic, health club and other similar establishments. (Section 6) C. Child trafficking or engaging in trading and dealing with children including, but not limited to, the act of buying and selling of a child for money, or for any other consideration, or barter; (Section 7) D. Attempt to Commit Child Trafficking under the following circumstances: a. When a child travels alone to a foreign country without valid reason therefor and without clearance issued by the Department of Social Welfare and Development


CRIMINAL LAW

or written permit or justification from the child's parents or legal guardian; b. When a person, agency, establishment or child-caring institution recruits women or couples to bear children for the purpose of child trafficking; or c. When a doctor, hospital or clinic official or employee, nurse, midwife, local civil registrar or any other person simulates birth for the purpose of child trafficking; or d. When a person engages in the act of finding children among low-income families, hospitals, clinics, nurseries, daycare centers, or other child-during institutions who can be offered for the purpose of child trafficking. (Section 8) E. Hiring, employing, using, persuading, inducing or coercing a child to perform in obscene exhibitions and indecent shows, whether live or in video, or to model in obscene publications or pornographic materials or selling or distributing the said materials; (Section 9) F. Committing acts of neglect, abuse, cruelty or exploitation and other Conditions Prejudicial to the Child's Development; ( Section 10) G. Maintaining an establishment promoting or facilitating child prostitution and other sexual abuse, child trafficking, obscene publications and indecent shows, and other acts of abuse. ( Section 11) An establishment shall be deemed to promote or facilitate child prostitution and other sexual abuse, child trafficking, obscene publications and indecent shows, and other acts of abuse if the acts constituting the same occur in the premises of said establishment or in violation of the Revised Penal Code, as amended. An enterprise such as a sauna, travel agency, or recruitment agency which: [1] promotes the aforementioned acts as part of a tour for foreign tourists; [2] exhibits children in a lewd or indecent show; [3] provides child masseurs for adults of the same or opposite sex and said services include any lascivious conduct with the customers; or [4] solicits children or activities constituting the

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aforementioned acts shall be deemed to have committed the acts penalized [under the law]. H. Engaging the child to work without a “work permit” from the DOLE and employment and observance of the requirement provided under Section 12 of R.A. No. 7610, as amended. Note: No person shall employ child models in all commercials or advertisements promoting alcoholic beverages, intoxicating drinks, tobacco and its byproducts and violence. (Section 14)

3. Person liable for Child Prostitution and other sexual abuse. (Section 5) A. Those who engage in or promote, facilitate or induce child prostitution which include, but are not limited to, the following: 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 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. Note: 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. (People vs. Dina Dulay, GR 193854, 24 September 2012 ) B. Those who commit the act of sexual intercourse of lascivious conduct with a child exploited in prostitution or subject to other sexual abuse. ( Section 5b) Note: 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:


CRIMINAL LAW 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;

C. Those who derive profit or advantage [from a child exploited in prostitution or subject to other sexual abuse], whether as manager or owner of the establishment where the prostitution takes place, or of the sauna, disco, bar, resort, place of entertainment or establishment serving as a cover or which engages in prostitution in addition to the activity for which the license has been issued to said establishment. ( Section 5c) Note: Children exploited in prostitution and other sexual abuse are those who for money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulges in sexual intercourse or lascivious conduct. In the case of People vs. Cabalquinto, the Court upheld the rule on confidentiality by refraining from posting in its Internet Web Page the full text of decisions in cases involving child sexual abuse in response to a letter from a mother of a child abuse victim addressed to the Chief Justice expressing anxiety over the posting of full text decisions o f the Supreme Court on its Internet Web Page. The mother submitted that confidentiality and the best interest of the child must prevail over public access to information and pleaded that her daughter’s case, as well as those of a simil ar nature, be excluded from the Web Page. The Court further resolved that they shall withhold the real name of the victimsurvivor and shall use fictitious initials instead to represent her. Likewise, the personal circumstances of the victims-survivors or any other information tending to establish or compromise their identities, as well those of their immediate family or household members, shall not be disclosed. (People vs. Melchor Cabalquinto, GR 167693, 19 September 2006 )

4. Elements of sexual abuse. (Section 5[b], Article III ) a. The accused commits the act of sexual intercourse or lascivious conduct; b. The said act is performed with a child exploited in prostitution or subjected to other sexual abuse; and c. The child, whether male or female, is below 18 years of age. Note: A. Proof of all the elements, necessary for conviction.

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In the case of People v. Fragante the Court ruled that all the elements of sexual abuse are present in that case: First , appellant’s repeated touching, fondling, and sucking of AAA’s breasts and inserting his finger into AAA’s vagina with lewd designs undoubtedly constitute lascivious conduct under Section 2[h] of the Implementing Rules and Regulations of Republic Act No. 7610. 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. Third , AAA was 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.

(People v. Ernesto A. Fragante, G.R. No. 182521, 9 February 2011 ) B. When the victim is not a child exploited in prostitution; Section 5[b] still applies.

Section 5[b], Article III of R.A. 7610 “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.” (People vs. Doney Gaduyon y Tapispisan, G.R. No. 181473, 11 November 2013 )

However, if the victim is under twelve (12) years of age, the perpetrators should not be prosecuted for sexual abuse but for statutory rape under Art. 266-A. Otherwise, the offender should be charged with either sexual abuse under Sec. 3b, RA 7610 or rape under Article 266-A, RPC; but cannot be charged of both crimes for the same act because it may violate his rights against double jeopardy. (People vs. Jover Matias, GR 186469, 13 June 2012)

It follows, therefore, that consensual sexual intercourse or even acts of lasciviousness with a minor who is [12 years old or older] could constitute a violation of Section 5[b] of R.A. No. 7610. For Section 5[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. Moreover, for consensual sexual intercourse or lascivious conduct with a minor, who is not exploited in prostitution, to thus fall within the purview of Section 5(b) of R.A. No. 7610, “[1] persuasion, [2] inducement, [3] enticement or [4] coercion” of th e child must be present. (People vs. CA and Gaspar Olayon, GR 171863, 20 August 2008 ) C. Acts considered as sexual abuse or lascivious conduct.


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A child is deemed subject to other sexual abuse when the child is the victim of lascivious conduct under the coercion or influence of any adult. 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. (People vs. Doney Gaduyon y Tapispisan, ibid. )

Lascivious conduct means the [1] intentional touching, either directly or through clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks, or [2] 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, [3] bestiality, [4] masturbation, [5] lascivious exhibition of the genitals or pubic area of a person. (Section 32, Article XIII, RA 7610 IRR ) In lascivious conduct under the coercion or influence of any adult, there must be some form of compulsion equivalent to intimidation which subdues the free exercise of the offended party’s free will. (Jojit Garingarao vs. People, G.R. No. 192760, 20 July 2011 )

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In People v. Candaza, the Court also affirmed the therein accused’s conviction for acts of lasciviousness under Section 5[b] of R.A. No. 7610 for kissing the lips, mashing the breasts, and licking the vagina of the victim. (People vs. Candaza, 524 Phil. 589 [2006] ) Similarly, in Amployo v. People, the Court found the appellant guilty of violation of Section 5[b] of R.A. No. 7610 for touching the victim’s breasts. ( Amployo vs. People, 496 Phil. 747 [2005] )

5. Other acts of abuse. (Section 10) The following are considered other Acts of Neglect, Abuse, Cruelty or Exploitation and Other Conditions Prejudicial t o the Child's Development: a. Committing any other acts of child abuse, cruelty or exploitation or being responsible for other conditions prejudicial to the child's development including those covered by Article 59 of Presidential Decree No. 603, as amended, but not covered by the Revised Penal Code, as amended;

In People vs. Bonaagua the Court found the accused [Ireno] committed lascivious acts against the victim [her daughter] by touching her breasts and licking her vagina and the lascivious or lewd acts were committed against her, who was 8 years old at the time as established by her birth certificate. Thus, the CA correctly found accused guilty of Acts of Lasciviousness under Section 5 [b] of R.A. No. 7610. (People vs. Ireneo Bonaagua, GR 188897, 6 June 2011)

b. Keeping or having in 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, except: when such person is related within the fourth degree of consanguinity or affinity or any bond recognized by law, local custom and tradition or performing an act of a social, moral or legal duty;

In People vs. Sumingwa, the Court found the appellant therein guilty of four (4) counts of acts of lasciviousness under Section 5[b] of R.A. No. 7610 for rubbing his penis against the victims vagina, fondling her breasts, and forcing her to hold his penis.

c.

(People vs. Sumingwa, G.R.

No. 183619, 13 October 2009 )

In Navarrete vs. People , the Court affirmed the therein accused’s conviction for acts of lasciviousness in relation to Section 5[b] of R.A. No. 7610 for poking the victim’s vagina with a cotton bud. (Clement John Ferdinand M. Navarrete vs. People, GR 147913, 31 January 2007 )

Inducing, delivering or offering a minor to any one prohibited under RA 7610 to keep or have in his company a minor as provided in the preceding paragraph. If the perpetrator is the ascendant, stepparent or guardian of the minor, the penalty is higher including loss of parental authority over the minor;

d. Allowing any person to take along with him any minor to any prohibited places aforementioned. The person liable are the owner, manager or one entrusted with the operation of any public or private place of accommodation, whether for occupancy, food, drink or otherwise, including residential places, with a penalty of imprisonment and fine including loss of license to operate such a place or establishment; Atty. Roland Ysrael R. Atienza I Notes in Criminal Law

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c. e. Using, coercing, forcing or intimidating a street child or any other child to [1] beg or use begging as a means of living; [2] act as conduit or middlemen in drug trafficking or pushing; or [3] Conduct any illegal activities. Note: In People vs. CA and Olayon and People vs. Rayon the Court ruled that Section 10 refers to acts of child abuse prejudicial to the child’s development other than child prostitution and other sexual abuse [under Section 5], attempt to commit child prostitution [under Section 6], child trafficking [under Section 7], attempt to commit child trafficking [under Section 8], and obscene publications and indecent shows [under Section 9]. x x x ‘sexual abuse’ [as defined under Section 5] is a completely distinct and separate offense from ‘child abuse’ [as defined under Section 10]. (People vs. CA and Gaspar Olayon, GR 171863, 20 August

The employer shall formulate and implement, subject to the approval and supervision of competent authorities, a continuing program for traini ng and skill acquisition of the child; d. The employer shall first secure, before engaging such child, a work permit from the DOLE which shall ensure observance of the above requirement. (Section 12, Article VIII of R A 7610, as amended by RA 7658 ) Juvenile Justice and Welfare Act of 2006 (RA No. 9344) A. Child in conflict with the law – refers to a child who is alleged, accused of, or adjudged as, having committed an offense under Philippine Laws.

2008 and People v. Patricio Rayon, Sr. GR 194236, 30 January 2013 )

6. Exceptional cases where a child may be employed; Requirements. A. When a child works directly under the sole responsibility of his parents or legal guardian and where [1] only members of the employer's family are employed: Provided, however, That his [2] employment neither endangers his life, safety and health and morals, nor impairs his normal development: Provided, further, That the [3] parent or legal guardian shall provide the said minor child with the prescribed primary and/or secondary education; or B. When a child's employment or participation in public & entertainment or information through cinema, theater, radio or television is essential: Provided, [1] The employment contract concluded by the child's parent or guardian, with the express agreement of the child concerned, if possible, and the [2] approval of DOLE: Provided, That the following requirements in all instances are strictly complied with: a. The employer shall ensure the protection, health, safety, morals and normal development of the child; b. The employer shall institute measures to prevent the child's exploitation or discrimination taking into account the system and level of remuneration, and the duration and arrangement of working time;

B. Diversion – refers to an alternative, child-appropriate process of determining the responsibility and treatment of a child in conflict with the law on the basis of his/her social, cultural, economic, psychological or educational background without resorting to formal court proceedings. C. Diversion Program – refers to the program that the child in conflict with the law is required to undergo after he/she is found responsible for an offense without resorting to formal court proceedings. D. Intervention – refers to a series of activities which are designed to address issues that caused the child to commit an offense. It may take the form of an individualized treatment program which may include counseling, skills training, education, and other activities that will enhance his/her psychological, emotional, and psycho-social well-being. 2. Minimum Age of Criminal Responsibility; rule. A child fifteen (15) years of age or under at the time of the commission of the offense shall be exempt from criminal liability . However, the child shall be subjected to an intervention program. A child above fifteen (15) years but below eighteen (18) years of age shall likewise be exempt from criminal liability and be subjected to an intervention program, unless he/she has acted with discernmen t. Atty. Roland Ysrael R. Atienza I Notes in Criminal Law

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If the child program/measures.

acted

with discernment,

proceed

with

diversion

The exemption from criminal liability does not include exemption from civil liability . Discernment is the moral capacity to know what is right from what is wrong and the realization of the consequences of his acts. If the child acted without discernment - Not criminally liable but [1] Civilly liable; and [2] will be committed to the custody of his parents, the latter being required to submit progress reports on the development of the minor. Note: The child in conflict with the law shall enjoy the presumption of minority. He/She shall enjoy all the rights of a child in conflict with the law until he/she is proven to be 18 years old or older.

5. System of Diversion (Diversion program/ measures). a. Where the imposable penalty for the crime committed is not more than six (6) years imprisonment: The law enforcement officer or Punong Barangay with the assistance of the local social welfare and development officer or other members of the LCPC shall conduct [1] mediation, [2] family conferencing and conciliation and, [3] where appropriate, adopt indigenous modes of conflict resolution in accordance with the best interest of the child with a view to accomplishing the objectives of restorative justice and the formulation of a diversion program. The child and his/her family shall be present in these activities. b. In victimless crimes where the imposable penalty is not more than six (6) years imprisonment: The local social welfare and development officer shall meet with the child and his/her parents or guardians for the development of the appropriate diversion and rehabilitation program, in coordination with the BCPC.

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c. Where the imposable penalty for the crime committed exceeds six (6) years imprisonment: Diversion measures may be resorted to only by the court. ( Section Where the maximum penalty imposed by law for the offense with which the child in conflict with the law is charged is imprisonment of not more than twelve (12) years, regardless of the fine or fine alone regardless of the amount, and before arraignment of the child in conflict with the law, the court shall determine whether or not diversion is appropriate. (Diversion measures) 23)

3. Contract of Diversion. The diversion program shall be effective and binding if accepted by the parties concerned. The acceptance shall be in writing and signed by the parties concerned and the appropriate authorities. The local social welfare and development officer shall supervise the implementation of the diversion program. The diversion proceedings shall be completed within forty-five (45) days. The period of prescription of the offense shall be suspended until the completion of the diversion proceedings but not to exceed forty-five (45) days. The child shall present himself/herself to the competent authorities that imposed the diversion program at least once a month for reporting and evaluation of the effectiveness of the program. Failure to comply with the terms and conditions of the contract of diversion, as certified by the local social welfare and development officer, shall give the offended party the option to institute the appropriate legal action. 4. Offenses not applicable to children. Persons below eighteen (18) years of age shall be exempt from prosecution for the crime of:


CRIMINAL LAW

c. a. vagrancy and prostitution under Article 202 of the Revised Penal Code; b. mendicancy under Presidential Decree No. 1563; and c. sniffing of rugby under Presidential Decree No. 1619. Prosecution of foregoing offenses is inconsistent with the United Nations Convention on the Rights of the Child; but said offender shall undergo appropriate counseling and treatment program. Note: Vagrancy is no longer punishable under the law, however, prostitutes remains to be defined and penalized under Article 202 of the Revised Penal Code ( Act No. 3815). All pending cases on vagrancy shall be dismissed upon effectivity of RA 10158. ( Act decriminalizing Vagrancy; Signed into law, 27 March 2012 )

Anti-Child Pornography Act of 2009 (RA No. 9775) 1. Definition of terms. (Section 3) a. Child - refers to a person below eighteen (18) years of age or over, but is unable to fully take care of himself/herself from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability or condition. For the purpose of this Act, a child shall also refer to: i. ii.

A person regardless of age who is presented, depicted or portrayed as a child ; and Computer-generated, digitally or manually crafted images or graphics of a person who is represented or who is made to appear to be a child.

b. Child pornography - refers to any representation, whether [1] visual, [2] audio, or [3] written combination thereof, by electronic, mechanical, digital, optical, magnetic or any other means, of child engaged or involved in real or simulated explicit sexual activities.

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Child pornography materials - refers to the means and methods by which child pornography is carried out. As to form: A. Visual depiction - which includes not only images of real children but also digital image, computer image or computer-generated image that is indistinguishable from that of real children engaging in an explicit sexual activity. Visual depiction shall include: a.undeveloped film and videotapes; b.data and/or images stored on a computer disk or by electronic means capable of conversion into a visual image; c. photograph, film, video, picture, digital image or picture, computer image or picture, whether made or produced by electronic, mechanical or other means; d.drawings, cartoons, sculptures or paintings depicting children; e.other analogous visual depiction; B. Audio representation of a person who is or is represented as being a child and who is engaged in or is represented as being engaged in explicit sexual activity, or an audio representation that advocates, encourages or counsels any sexual activity with children. Such representation includes audio recordings and live audio transmission conveyed through whatever medium including real-time internet communications; C. Written text or material that advocates or counsels explicit sexual activity with a child and whose dominant characteristic is the description, for a sexual purpose, of an explicit sexual activity with a child. As to content: It includes representation of a person who is, appears to be, or is represented as being a child, the dominant characteristic of which is the depiction, for a sexual purpose, of:


CRIMINAL LAW

a. the sexual organ or the anal region, or a representation thereof; b. the breasts, or a representation of the breasts, of a female person. d. Explicit sexual activity - refers to actual or simulated: i.

ii. iii. iv. v. vi.

Sexual intercourse or lascivious act including, but not limited to, contact involving genital to genital, oral to genital, anal to genital or oral to anal, whether between persons of the same or opposite sex; Bestiality; Masturbation; Sadistic or masochistic abuse; Exhibition of the genitals, buttocks, breast, pubic area and/or anus; or Use of any object or instrument for lascivious acts.

e. Grooming - refers to the act of preparing a child or someone who the offender believes to be a child for sexual activity or sexual relationship by communicating any form of child pornography. It includes online enticement or enticement through any other means. f.

Luring - refers to the act of communicating, by means of a computer system, with a child or someone who the offender believes to be a child for the purpose of facilitating the commission of sexual activity or production of any form of child pornography.

g. Pandering - refers to the act of offering, advertising, promoting, representing or distributing through any means any material or purported material that is intended to cause another to believe that the material or purported material contains any form of child pornography, regardless of the actual content of the material or purported material. Note: The NTC issued Memorandum Circular Number 01-01-2014, dated 30 January 2014 providing guidelines for Internet Service Providers (ISPs) in the implementation of the Anti-Child Pornography Act of 2009 ( RA 9775). All ISPs are required to install programs or software that will block access or filter websites that carry child pornography materials. They shall submit at least three (3) programs or software to the Inter-Agency

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Council against Child Pornography (IACACP) for evaluation. If the IACACP does not interpose any objection within five (5) days from submission, the ISPs shall acquire any of the programs or software in the list submitted and install the same within 120 days. Further, ISPs are secured from any liability arising from their blocking or filtering of the identified pornographic websites. Commission of the foregoing prohibited acts are punishable under the Cybercrime Prevention Act (RA 10175) if committed online. However, charging the offender under both laws, i.e. ACPA and CCPA, is tantamount to double jeopardy. Section 4[c][2] merely expands the ACPA’s scope so as to include identical activities in cyberspace. ACPA’s definition of child pornography already covers the use of “electronic, mechanical, digital, optical, magnetic or any other means of publication. (Jose Jesus M. Disini, Jr.et.al. v. Secretary of DOJ, GR 203335, et.al, 18 February 2014 )

Anti-Photo and Video Voyeurism Act of 2009 (RA No. 9995) 1. Photo or video voyeurism; defined. It is [1] the act of taking photo or video coverage of a person or group of persons performing sexual act or any similar activity or of capturing an image of the private area of a person or persons without the latter’s consent , under circumstances in which such person/s has/have a reasonable expectation of privacy , or [2] the act of selling, copying, reproducing, broadcasting, sharing, showing or exhibiting the photo or video coverage or recordings of such sexual act or similar activity through VCD/DVD, internet, cellular phones and similar means or device without the written consent of the person/s involved, notwithstanding that consent to record or take photo or video coverage of same was given by such person. (Section 3[d] ) Penalty: Imprisonment of three (3) years to seven (7) years, or a fine of P100, 000 to P500, 000, or both. Public officer can be likewise held administratively liable; and foreigner can be immediately deported after serving sentence. ( Section 5)

2. Prohibited Acts. (Section 4) a. To take photo or video coverage of a person or group of persons performing [1] sexual act or any similar activity or to capture an [2] image of the private


CRIMINAL LAW

area of a person/s such as the naked or undergarment clad genitals, pubic area, buttocks or female breast without the consent of the person/s involved and under circumstances in which the person/s has/have a reasonable expectation of privacy . b. To copy or reproduce, or to cause to be copied or reproduced, such photo or video or recording of sexual act or any similar activity with or without consideration. c.

To sell or distribute, or cause to be sold or distributed, such photo or video or recording of sexual act, whether it be the original copy or reproduction thereof.

d. To publish or broadcast, or cause to be published or broadcast, whether in print or broadcast media, or show or exhibit the photo or video coverage or recordings of such sexual act or any similar activity through VCD/DVD, internet, cellular phones and other similar means or device. Note: In the last three instances [letter b, c, d] it is immaterial if consent to record or take photo or video coverage of the same was given by such person/s; to be held liable what is important is that selling, copying, reproducing, broadcasting, sharing, showing or exhibiting was done without written consent of the person involved.

3. Elements of taking video and photo.

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b. The content of which are videos of sexual act or activity or image of victim’s private area taken under circumstances wherein the victim has reasonable expectation of privacy. c. It was made through VCD/DVD internet, cellular phones and other similar means or device; d. It was made without the victim’s consent; Note: Even if there was consent to the taking of the photo, if there is no consent to the copying, sharing or exhibition , then the offending party would still be liable.

5. Reasonable expectation of privacy means circumstances in which a reasonable person would believe that: a. b.

he/she could disrobe in privacy, without being concerned that an image or a private area of the person was being captured; or a private area of the person would not be visible to the public, regardless of whether that person is in a public or private place.

Private area of a person means the naked or undergarment [1] clad genitals, [2] pubic area, [3] buttocks or [4] female breast of an individual. Even if there’s an undergarment (e.g., brief or panty) covering the private parts, it is still covered by the law.

a. Offender took photo and video; b. What was taken are videos of sexual act or activity or image of victim’s private area; c. The photo or video was taken under the circumstances wherein the victim has reasonable expectation of privacy; d. It was taken without the victim’s consent; 4. Elements of selling, copying, reproducing, broadcasting, sharing, showing or exhibiting the photo or video. a. Offender sell, copy, reproduce, broadcast, share, show or exhibit the photo and video ;


SPL (Lex Cervus Notes)

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