2014 BAR REVIEWER ON CRIMINAL LAW

UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA

intercourse with another person (Caballo that the force or intimidation employed be
vs. People, GR No. 198732, June 10, 2013). so great or of such character as could not
be resisted. It is only necessary that the
ABDUCTION AND MULTIPLE force or intimidation be sufficient to
RAPES - What is/are the crime/s consummate the purpose which the
committed if the accused forcibly took the accused had in mind. Intimidation must be
victim and raped her on four viewed in the light of the victim's perception
occasions?When the objective of abduction and judgment at the time of the rape and
is to deprive the victim of his liberty, and not by any hard and fast rule. It is
thereafter, she was raped several times, the therefore enough that it produces fear --
crime committed is special complex crime of fear that if the victim does not yield to the
kidnapping with rape. No matter how many bestial demands of the accused, something
rapes had been committed in the special would happen to her at the moment or
complex crime of kidnapping with rape, the thereafter, as when she is threatened with
resultant crime is only one kidnapping with death if she reports the
rape. This is because these composite acts incident. Intimidation would also explain
are regarded as a single indivisible offense why there are no traces of struggle which
as in fact R.A. No. 7659 punishes these would indicate that the victim fought off her
acts with only one single penalty. In a way, attacker (People vs. Leonardo G.R. No.
R.A. 7659 depreciated the seriousness of 181036. July 6, 2010).
rape because no matter how many times
the victim was raped, like in the present TENACIOUS RESISTANCE - Is it
case, there is only one crime committed – necessary in rape through intimidation to
the special complex crime of kidnapping show that the victim offered a “tenacious
with rape (People vs. Mirandilla, Jr., G.R. resistance” against the accused?No. Victim’
No. 186417, July 27, 2011). When the failure to offer tenacious and sufficient
abduction is made with lewd design, the resistance does not imply her submission to
crime committed is complex crime of the bestial demands of the accused. It is
forcible abduction with rape. For the crime not required that she resists his sexual
of kidnapping with rape, the offender advances. All that is necessary is that force
should not have taken the victim with lewd and intimidation were employed by the
designs; otherwise, it would be complex accused against her, which enabled him to
crime of forcible abduction with rape. If the commit the crime. Neither is it necessary
taking was by forcible abduction and the for the victim to sustain physical
woman was raped several times, the crimes injuries. She need not kick, bite, hit or
committed is one complex crime of forcible scratch the appellant with her fingernails to
abduction with rape, in as much as the prove that she had been defensive. It is
forcible abduction was only necessary for sufficient that she yielded because of a real
the first rape; and each of the other counts application of bodily harm (People vs.
of rape constitutes distinct and separate Torres, G.R. No. 134766, January 16,
count of rape (People vs. Mirandilla, Jr., 2004).
G.R. No. 186417, July 27, 2011). Hence, Among the amendments of the law
the accused should be held liable for three on rape introduced under Republic Act No.
counts of rape and forcible abduction with 8353 (The Anti-Rape Act of 1997) is Section
rape. When the objective of the abduction 266-D, which adverts to the degree of
was to commit the rape, the offender cannot resistance that the victim may put up
be held guilty of the complex crime of against the rapist, viz: Article 266-D.
forcible abduction with rape. Under the Presumptions. - Any physical overt act
circumstances, the rape absorbed the manifesting resistance against the act of
forcible abduction (People vs. Sabadlab, rape in any degree from the offended party,
G.R. No. 175924, March 14, 2012). Hence, or where the offended party is so situated
the accused should be held liable for four as to render her/him incapable of giving
counts of rape. valid consent, may be accepted as evidence
in the prosecution of the acts punished
In forcible abduction with rape under Article 266-A (People vs. Sabadlab,
unlike in rape involving abduction, the G.R. No. 175924, March 14, 2012).
victim must be detained for appreciable
length of time. At the Bicameral Conference
Committee Meeting on the disagreeing
INTIMIDATION - It is a well- provisions of S.B. No. 950 and H.B. No.
entrenched law that intimidation in rape 6265, the forerunners of R.A. No. 8353, the
includes the moral kind of intimidation or legislators agreed that Article 266-D is
coercion. Intimidation is a relative term, intended to "soften the jurisprudence of the
depending on the age, size and strength of 1970's" when resistance to rape was
the parties, and their relationship with each required to be tenacious. The lawmakers
other. It can be addressed to the mind as took note of the fact that rape victims
well. For rape to exist it is not necessary cannot mount a physical struggle in cases

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UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA
where they were gripped by overpowering with grave abuse of authority, which is now
fear or subjugated by moral authority. a new mode to commit the crime of rape.
Article 266-D tempered the case law
requirement of physical struggle by the In incestuous rape of a minor,
victim with the victim's fear of the rapist or actual force or intimidation need not even
incapacity to give valid consent. Thus, the be employed where the overpowering moral
law now provides that resistance may be influence of appellant, who is private
proved by any physical overt act in any complainant’s father, would suffice (People
degree from the offended party (People vs. vs. Samandre, G.R. No. 181497, February
Dulay, G.R. Nos. 144344-68, July 23, 2002, 22, 2012) In rape committed by a father,
En banc) his moral ascendancy and influence over
the victim substitute for the requisite force,
In People vs. Abanilla, G.R. Nos. threat, and intimidation, and strengthen
148673-75, October 17, 2003, En Banc - At the fear which compels the victim to
around 10:00 o’clock in the evening he laid conceal her dishonor (People vs. Ortega,
beside her daughter, Lorena, who was G.R. No. 186235, January 25, 2012; People
sleeping. Lorena was then 17 years old for vs. Broca, GR No. 201447, January 09,
[she was] born on October 3, 1982. He 2013). The absence of violence or offer of
touched her private parts, removed her resistance would not affect the outcome of
shorts and pant[y], undressed himself and the case because the overpowering and
laid on top of her. He inserted his penis into overbearing moral influence of the father
her vagina causing her pain. He then made over his daughter takes the place of
the up and down movement and ejected violence and offer of resistance required in
something hot from his penis. He told rape cases committed by an accused who
Lorena not to make any noise since her did not have blood relationship with the
siblings were sleeping in the same room. He victim (People vs. Osma, G.R. No. 187734,
warned her not to tell anyone about the August 29, 2012).
incident because, if she did, he would kill
her. AAA’s failure to shout or to
tenaciously resist appellant should not be
The rule is that resistance may be taken against her since such negative
proved by any physical overt act in any assertion would not ipso facto make
degree from the offended party. Tenacious voluntary her submission to appellant’s
resistance, however, is not required. Neither criminal act. In rape, the force and
is a determined and persistent physical intimidation must be viewed in the light of
struggle on the part of the victim necessary. the victim’s perception and judgment at the
It is true that complainant’s testimony does time of the commission of the crime. As
not indicate that she put up any resistance already settled in our jurisprudence, not all
against the sexual advances of appellant. victims react the same way. Some people
This notwithstanding, proof of resistance is may cry out, some may faint, some may be
not necessary in light of appellant’s moral shocked into insensibility, while others may
ascendancy over the complainant. Being appear to yield to the intrusion. Some may
the father, appellant’s force or threat was offer strong resistance while others may be
sufficient to create fear in the mind of the too intimidated to offer any resistance at
complainant compelling her to submit to all. Moreover,resistance is not an element of
his sexual abuse. rape. A rape victim has no burden to prove
that she did all within her power to resist
Physical resistance need not be the force or intimidation employed upon
established in rape when threats and her. As long as the force or intimidation is
intimidation are employed, and the victim present, whether it was more or less
submits herself to her attackers because of irresistible is beside the point (People vs.
fear. The use of a weapon, by itself, is Rivera, GR No. 200508, September 04,
strongly suggestive of force or at least 2013; see: People vs. Rubio, G.R.
intimidation, and threatening the victim No. 195239, March 7, 2012; People vs.
with a gun is sufficient to bring her into Penilla, GR No. 189324, March 20, 2013).
submission. Thus, the law does not impose
upon the private complainant the burden of
proving resistance (People vs. Tubat, G.R. ACTS OF LASCIVIOUNESS
No. 183093, February 1, 2012; People vs.
Penilla, GR No. 189324, March 20, 2013). The elements of acts of
lasciviousness, punishable under Article
Where the offended party is so 336 of the RPC, are: (1) That the offender
situated as to render her/him incapable of commits any act of lasciviousness or
giving valid consent, may be accepted as lewdness; (2) That it is done under any of
evidence in the prosecution of rape. This the following circumstances: a. By using
happens when the offender committed rape force or intimidation; or b. When the
offended party is deprived of reason or

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UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA
otherwise unconscious; or c. When the
offended party is under 12 years of age; and CHILD PROSTITUION AND SEXUAL
(3) That the offended party is another ABUSE
person of either sex (People vs. Garcia, G.R.
No. 200529, September 19, 2012; (People Sexual abuse under Section 5(b) of
vs. Rellota, GR No. 168103 , August 03, R.A. No. 7610 has three elements: (1) the
2010, Justice Peralta). accused commits an act of sexual
intercourse or lascivious conduct; (2) the
The modes of committing acts of said act is performed with a child exploited
lasciviousness are the same as those of in prostitution or subjected to other sexual
committing rape under the old version. abuse; and (3) the child is below 18 years
old.
CHILD PROSTITUTION
Sexual abuse and lascivious
The elements of paragraph (a) are: 1. conduct - "Sexual abuse" includes the
the accused engages in, promotes, employment, use, persuasion, inducement,
facilitates or induces child prostitution; 2. enticement or coercion of a child to engage
the act is done through, but not limited to, in, or assist another person to engage in,
the following means: a. acting as a procurer sexual intercourse or lascivious conduct or
of a child prostitute; b. inducing a person the molestation, prostitution, or incest with
to be a client of a child prostitute by means children;
of written or oral advertisements or other
similar means; c. taking advantage of "Lascivious conduct" means the
influence or relationship to procure a child intentional touching, either directly or
as a prostitute; d. threatening or using through clothing, of the genitalia, anus,
violence towards a child to engage him as a groin, breast, inner thigh, or buttocks, or
prostitute; or e. giving monetary the introduction of any object into the
consideration, goods or other pecuniary genitalia, anus or mouth, of any person,
benefit to a child with intent to engage such whether of the same or opposite sex, with
child in prostitution; 3. the child is an intent to abuse, humiliate, harass,
exploited or intended to be exploited in degrade, or arouse or gratify the sexual
prostitution and 4. the child, whether male desire of any person, bestiality,
or female, is below 18 years of age (People masturbation, lascivious exhibition of the
vs. Dulay, G.R. No. 193854. September 24, genitals or pubic area of a person (Section
2012). 2(g) and (h) of the Rules and Regulations on
the Reporting and Investigation of Child
In People vs. Dulay, G.R. No. Abuse Cases)
193854. September 24, 2012 - To be a
principal by indispensable cooperation, one Child exploited in prostitution or
must participate in the criminal resolution, subject to other sexual abuse - Children,
a conspiracy or unity in criminal purpose whether male or female, who for money,
and cooperation in the commission of the profit, or any other consideration or due to
offense by performing another act without the coercion or influence of any adult,
which it would not have been syndicate or group, indulge in sexual
accomplished. Nothing in the evidence intercourse or lascivious conduct, are
presented by the prosecution does it show deemed to be children exploited in
that the acts committed by appellant are prostitution and other sexual abuse
indispensable in the commission of the (Section 5 of RA No 7610).
crime of rape. From the time appellant
convinced AAA to go with her until The averments in the information
appellant received money from the man against the accused clearly make out a
who allegedly raped AAA, are not charge for sexual abuse under Section 5(b)
indispensable in the crime of rape. Anyone of RA No. 7610 although the caption
could have accompanied AAA and offered charged him with child abuse under
the latter's services in exchange for money Section 10 (a). However, the character of
and AAA could still have been raped. Even the crime is not determined by the caption
AAA could have offered her own services in or preamble of the information nor from the
exchange for monetary consideration and specification of the provision of law alleged
still end up being raped. Thus, this to have been violated (People vs. Rayon,
disproves the indispensable aspect of the G.R. No. 194236, January 30, 2013)
appellant in the crime of rape. It must be
remembered that in the Information, as well Sexual intercourse or lascivious
as in the testimony of AAA, she was conduct under the coercion or influence of
delivered and offered for a fee by appellant, any adult exists when there is some form of
thereafter, she was raped by “Speed.” compulsion equivalent to intimidation
However, the appellant is liable for child which subdues the free exercise of the
prostitution.

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UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA
offended party’s free will (Caballo vs. (Alberto vs. Hon. Court of Appeals, GR No.
People, GR No. 198732, June 10, 2013). 182130, June 19, 2013). X cannot be
accused of both crimes for the same act
Accused (23 years of age) repeatedly because his right against double jeopardy
assured the victim (17 years) of his love for will be prejudiced. A person cannot be
her, and even, promised to marry her. In subjected twice to criminal liability for a
addition, he also guaranteed that she would single criminal act. Likewise, rape cannot
not get pregnant since he would be using be complexed with a violation of Section
the "withdrawal method" for safety. These 5(b) of RA 7610. Under Section 48 of RPC, a
were meant to influence her to set aside her felony cannot be complexed with an offense
reservations and eventually give into having penalized by a special law (People v. Abay,
sex with accused, with which he succeeded. G.R. No. 177752, February 24, 2009;
The age disparity between an adult and a People vs. Pangilinan, G.R. No. 183090,
minor placed accused in a stronger position Nov. 14, 2011, Justice Peralta, People v.
over the victim so as to enable him to force Dahilig, G.R. No. 187083, June 13, 2011,
his will upon the latter. An important factor People v. Matias, G.R. No. 186469, June
is that the victim refused accused's 13, 2012 and Alberto vs. Hon. Court of
incipient advances and in fact, asked him Appeals, G.R. No. 182130, June 19, 20130.
to leave. However, the victim eventually
yielded. Thus, it stands to reason that she Child under 12 years Those who
was put in a situation deprived of the commit the act of sexual intercourse or
benefit of clear thought and choice. The lascivious conduct with a child exploited in
actuations of the accused may be classified prostitution or subject to other sexual
as "coercion" and "influence" within the abuse; Provided, That when the victims is
purview of Section 5 of RA 7610. Hence, under twelve (12) years of age, the
accused is guilty of sexual abuse (Caballo perpetrators shall be prosecuted for rape
vs. People, GR No. 198732, June 10, 2013). and for rape or lascivious conduct, as the
case may be: Provided, That the penalty for
The Information alleged that lascivious conduct when the victim is under
accused committed acts of lasciviousness twelve (12) years of age shall be reclusion
upon the person of victim, a minor temporal in its medium period (Section 5).
subjected to sexual abuse. Can the accused
be convicted for sexual abuse under Section X taking advantage of his
5 (b) of RA No. 7610? Answer: No. Under ascendancy committed sexual intercourse
the law, committing lascivious conduct with his daughter (9 years of age). What
upon a child under coercion or influence of crime can X be prosecuted for? The child,
an adult or group is sexual abuse. There is who is under the influence of an adult, is
no allegation of coercion or influence, which under 12 years of age. Hence, X should be
is an indispensable ingredient of this crime. prosecuted for statutory rape. Section 5 (b)
It does not contain the essential facts of RA No. 7610 provides that when the
constituting the offense, but a statement victim (child subjected to sexual abuse) is
of a conclusion of law. Thus, accused under 12 years of age, the perpetrators
cannot be convicted of sexual abuse under shall be prosecuted for rape (People vs.
such Information. The information is void Jalosjos, G.R. Nos. 132875-76, November
for being violative of the accused’s 16, 2001).
constitutionally-guaranteed right to be
informed of the nature and cause of the Accused was convicted of rape
accusation against him (People vs. through sexual assault committed against a
Pangilinan, GR No. 183090, November 14, 4 year old child. There is no allegation in
2011, Justice Peralta). the Information that the child is indulged in
lascivious conduct for money, profit, or any
Child 12 years of age or above – X other consideration or due to the coercion
taking advantage of his ascendancy or influence of any adult, syndicate or
committed sexual intercourse with his group. Accused was punished under RPC.
daughter (15 years of age). What crime can In sum, the penalty under RA 7160 was not
X be prosecuted for? The child is under the imposed since the information failed to
influence of an adult. This is sexual abuse allege that the victim is exploited in
under RA No. 7610. The act is committed prostitution or subjected to sexual abuse
with psychological intimidation or grave (Pielago vs. People, GR No. 202020, March
abuse authority. This is rape. Hence, X can 13, 2013)
be prosecuted for either (1) sexual abuse
under violation of Section 5 (b) of RA No. Rape through sexual assault and
7610; or (2) rape. X should not be charged sexual abuse - X forced A, a minor, in an
for Rape in relation to sexual abuse. isolated place and inserted his finger into
Existing jurisprudence, however, proscribes her vagina. (a) For what crimes can X be
charging an accused for both crimes, prosecuted if A is 17 years of age at the
rather, he may be charged only for either time? Answer: X committed rape through

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UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA
sexual assault, or object or instrument rape prescribed by RA No. 7610 for sexual abuse
under RPC since he inserted object, his (People vs. Bonaagua, G.R. No. 188897,
finger, into the vaginal orifice of A by using June 6, 2011, Justice Peralta). The
force. The crime of sexual abuse under penalty under RPC should be imposed.
Section 5 of RA No. 7160 is also committed
since A is indulged in lascivious conduct CONSENT OF THE VICTIM - Is
under coercion of an adult. However, X can consent of the victim a defense in rape, or
only be prosecuted either for rape or sexual child prostitution or sexual abuse? A child
abuse. exploited in prostitution may seem to
"consent" to what is being done to her or
(b) Would your answer be the same him and may appear not to complain.
if the age A is 10 years old? Answer: Since However, a child who is "a person below
A, who is a child indulged in lascivious eighteen years of age or those unable to
conduct under coercion of an adult, is fully take care of themselves or protect
under 12 years of age, X should be themselves from abuse, neglect, cruelty,
prosecuted for rape through sexual assault exploitation or discrimination because of
under RPC. Under Section 5 of RA No. their age or mental disability or condition"
7610, when the child subjected to sexual is incapable of giving rational consent to
abuse is under twelve (12) years of age, the any lascivious act or sexual intercourse
perpetrators shall be prosecuted for rape (People vs. Dulay, GR No. 193854,
under RPC (People vs. Pangilinan, GR No. September 24, 2012, Justice Peralta;
183090, November 14, 2011, Justice People vs. Delantar, G.R. No. 169143,
Peralta). February 2, 2007). Submissiveness of child
under influence or psychological coercion of
(c) The penalty for rape through adult is not likewise a defense in sexual
sexual assault under RPC as amended by abuse (People vs. Larin, G.R. No. 128777,
RA No. 8353 is prision mayor while the October, 7 1998).
penalty under RA No. 7610 for acts of
lasciviousness committed against a child But if the sexual abuse is
subjected to sexual abuse, under 12 years committed as alleged in the information
of age, is reclusion temporal in its medium against a child, who indulges in sexual
period. If the age of A is 10 years old, would intercourse under coercion, the prosecution
you impose the penalty under RA No. 8353 must show lack of consent on the part of
or under RA No. 7610? Answer: One the victim. Showing that the child
who commits acts of lasciviousness in consented to the sexual intercourse will
relation to RA No. 7610 suffers the more negate “coercion” as an element of the
severe penalty of reclusion temporal in its crime (see: People vs. Abello,G.R. No.
medium period than the one who commits 151952, March 25, 2009).
rape through sexual assault, which is
merely punishable by prision mayor. This is CHILD PROSTITUTION
undeniably unfair to the child victim. To be
sure, it was not the intention of the framers The elements of child prostitution are:
of RA No. 8353, to have disallowed the
applicability of RA No. 7610 to sexual (1) The accused engages in, promotes,
abuses committed to children. Despite the facilitates or induces child prostitution;
passage of RA No. 8353, R.A. No. 7610 is (2) The act is done through, but not limited
still good law, which must be applied when to, the following means:
the victims are children (People vs. Chingh,
G.R. No. 178323, March 16, 2011, Justice (a) Acting as a procurer of a child
Peralta). The penalty under RA No. 7160 prostitute;
should be imposed. (b) Inducing a person to be a client
of a child prostitute by means of
(d) The penalty for qualified rape written or oral advertisements or
through sexual assault is reclusion other similar means;
temporal under RPC as amended by RA No. (c) Taking advantage of influence or
8353. If A is the 10 year-old daughter of X, relationship to procure a child as a
would you impose penalty penalty under prostitute;
RA No. 8353 or under RA No. 7610? (d) Threatening or using violence
Answer: Since the crime committed is rape towards a child to engage him as a
through sexual assault with qualifying prostitute; or
circumstance of minority and relationship, (e) giving monetary consideration,
the rationale of unfairness to the child goods or other pecuniary benefit
victim that Chingh case wanted to correct is to a child with intent to engage
absent because RPC as amended by RA No. such child in prostitution;
8353 already prescribes the penalty of
reclusion temporal for this crime. Hence, (3) The child is exploited or intended to be
there is no more need to apply the penalty exploited in prostitution and

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UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA
(4) The child, whether male or female, is Section 10 (a) punishes not only
below 18 years of age (People vs. Dulay, GR those enumerated under Article 59 of PD
No. 193854, September 24, 2012, Justice No. 603, but also four distinct acts, i.e., (a)
Peralta). child abuse, (b) child cruelty, (c) child
exploitation and (d) being responsible for
X convinced A to accompany her. conditions prejudicial to the child's
When they reached Kubuhan, X suddenly development. We stress that Section 10
pulled A inside a room where Y. Y gives refers to acts of child abuse other than
money to X and tells her to look for a child prostitution and other sexual abuse
younger girl. Thereafter, Y wielded a knife under Section 5, attempt to commit child
and tied A’s hands to the papag and raped prostitution under Section 6, child
her. A asked for X's help when she saw the trafficking under Section 7, attempt to
latter peeping into the room while she was commit child trafficking under Section 8,
being raped, but X did not do so. After the and obscene publications and indecent
rape, X and Y told A not to tell anyone what shows under Section 9 (People vs. Rayon,
had happened or else they would get back G.R. No. 194236, January 30, 2013).
at her. What is the crime committed by X?
In Bongalon vs. People, G.R. No.
Answer: X is not liable as principal 169533, March 20, 2013 - Accused struck
by indispensable cooperation. From the minor-victim at the back with his hand and
time X convinced A to go with her until X slapped his face. His acts however are not
received money from Y are not constituted child abuse within the purview
indispensable in the crime of rape. Anyone of the Section 10 (a) of RA No. 7610. The
could have accompanied A and offered the records did not establish beyond reasonable
latter's services in exchange for money and doubt that his laying of hands on victim
A could still have been raped. Note: had been intended to debase his "intrinsic
Conspiracy was not alleged in the worth and dignity" as a human being, or
information. that he had thereby intended to humiliate
or embarrass him. The records showed the
X is liable for child prostitution laying of hands on victim to have been done
under Section 5 of RA No. 7610. X at the spur of the moment and in anger,
facilitated or induced child prostitution. indicative of his being then overwhelmed by
The act of X in convincing A, who was 12 his fatherly concern for the personal safety
years old at that time, to go with her and of his own minor daughters who had just
thereafter, offer her for sex to a man in suffered harm at the hands of victim and
exchange for money makes her liable for his companion. With the loss of his self-
child prostitution (People vs. Dulay, GR No. control, he lacked that specific intent to
193854, September 24, 2012, Justice debase, degrade or demean the intrinsic
Peralta). worth and dignity of a child as a human
being that was so essential in the crime of
CHILD ABUSE - Under Section 10 child abuse. It is not trite to remind that
(a) of RA No. 7610, child abuse or cruelty is under the well-recognized doctrine of pro
committed by any person who shall commit reo every doubt is resolved in favor of the
any other acts of child abuse, cruelty or accused. Thus, the Court should consider
exploitation or be responsible for other all possible circumstances in his favor. The
conditions prejudicial to the child’s accused was convicted of slight physical
development including those covered by injuries.
Article 59 of PD No. 603 but not covered by
the RPC. BIGAMY

Under Section 3 (b), "child abuse" X married A, but during the

refers to the maltreatment, whether subsistence of such marriage X married
habitual or not, of the child which includes B. A filed a complaint for bigamy against
any of the following: (1) Psychological and X. X filed a petition for the annulment of
physical abuse, neglect, cruelty, sexual his first marriage with A on the ground of
abuse and emotional maltreatment; (2) Any psychological incapacity which was
act by deeds or words which debases, granted. X moved for the quashal of the
degrades or demeans the intrinsic worth information and dismissal of the criminal
and dignity of a child as a human being; (3) complaint alleging that his first marriage
Unreasonable deprivation of his basic needs had already been declared void ab initio. (a)
for survival, such as food and shelter; or (4) Is the argument tenable?
Failure to immediately give medical
treatment to an injured child resulting in No. Article 40 of the Family Code
serious impairment of his growth and has settled once and for all the conflicting
development or in his permanent incapacity jurisprudence on the matter. A declaration
or death. of the absolute nullity of a marriage is now
explicitly required either as a cause of

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UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA
action or a ground for defense. It has been rule, no vested right may attach to, nor
held in a number of cases that a judicial arise from, procedural laws (Jarillo vs.
declaration of nullity is required before a People, GR No. 164435, June 29, 2010,
valid subsequent marriage can be Justice Peralta).
contracted; or else, what transpires is a
bigamous marriage, reprehensible and (d) Would your answer be the same
immoral. if the second marriage was the one declared
null and void?
What makes a person criminally
liable for bigamy is when he contracts a Yes. It is a settled rule that the
second or subsequent marriage during the criminal culpability attaches to the offender
subsistence of a valid marriage. Parties to upon the commission of the offense, and
the marriage should not be permitted to from that instant, liability appends to him
judge for themselves its nullity, for the until extinguished as provided by law. It is
same must be submitted to the judgment of clear then that the crime of bigamy was
competent courts and only when the nullity committed by X from the time he contracted
of the marriage is so declared can it be held the second marriage with B. Thus, the
as void, and so long as there is no such finality of the judicial declaration of nullity
declaration, the presumption is that the of X’s second marriage does not impede the
marriage exists. Therefore, he who filing of a criminal charge for bigamy
contracts a second marriage before the against him (Walter vs. People, GR No.
judicial declaration of nullity of the first 183805, July 03, 2013, Justice Peralta).
marriage assumes the risk of being
prosecuted for bigamy. Otherwise, a person (e) Would your answer be the same
who commits bigamy can simply evade if both the first marriage and the second
prosecution by immediately filing a petition marriage are declared null and void?
for the declaration of nullity of his earlier
marriage and hope that a favorable decision Yes. The subsequent judicial
is rendered therein before anyone institutes declaration of nullity of X’s two marriages
a complaint against him (People vs. cannot be considered a valid defense in the
Odtuhan, GR No. 191566, July 17, 2013, crime of bigamy. The moment X contracted
Justice Peralta). a second marriage without the previous one
having been judicially declared null and
(b) Would your answer be the same void, the crime of bigamy was already
if the declaration of nullity of the first consummated because at the time of the
marriage was obtained before the filing of celebration of the second marriage, first
the complaint for bigamy against X? marriage, which had not yet been declared
null and void by a court of competent
Yes. Settled is the rule that criminal jurisdiction, was deemed valid and
culpability attaches to the offender upon subsisting. Neither would a judicial
the commission of the offense and from that declaration of the nullity of second marriage
instant, liability appends to him until make any difference. Since a marriage
extinguished as provided by law and that contracted during the subsistence of a valid
the time of filing of the criminal complaint marriage is automatically void, the nullity
or information is material only for of this second marriage is not per se an
determining prescription (People vs. argument for the avoidance of criminal
Odtuhan, GR No. 191566, July 17, 2013, liability for bigamy. What the law penalizes
Justice Peralta). is the mere act of contracting a second or
subsequent marriage during the subsistence
(c) Would your answer be the same of a valid marriage" (Jarillo vs. People, GR
if the first marriage was contracted prior to No. 164435, September 29, 2009, Justice
the Family Code? Peralta)

Yes. Article 40, which is a rule of DEFAMATION

procedure, should be applied retroactively
because Article 256 of the Family Code Is truthful defamatory imputation
itself provides that said "Code shall have against private individual and government
retroactive effect insofar as it does not employee a defense in libel? Proof of truth
prejudice or impair vested or acquired of defamatory imputation against private
rights." The fact that procedural statutes individual is a defense if it is published with
may somehow affect the litigants' rights good motives and for justifiable ends. Proof
may not preclude their retroactive of the truth of defamatory imputation
application to pending actions. against government employees is a defense:
The retroactive application of procedural (1) if it is published with good motives and
laws is not violative of any right of a person for justifiable ends; or (2) if the act or
who may feel that he is adversely omission imputed constitutes a crime; or (3)
affected. The reason is that as a general if the imputation not constituting a crime is

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 2014 BAR REVIEWER ON CRIMINAL LAW
UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA
related to the discharge of his duties. defamatory imputation is directed against a
Truthfulness of imputation of a crime or a public person in his public capacity, it is
function-related defamatory act against a not necessarily actionable. In order that
public officer is a defense even though he such defamatory imputation to a public
does not prove that the imputation was official may be actionable, it must either be
published with good motives and for a false allegation of fact or a comment
justifiable ends (Vasquez vs. CA, G.R. No. based on a false supposition. If the
118971, September 15, 1999). comment is an expression of opinion, based
on established facts, then it is immaterial
MALICE - What are the different that the opinion happens to be mistaken,
rules on presumption involving malice as as long as it might reasonably be inferred
an element of libel or oral defamation? 1. from the facts (Borjal vs. CA, G.R. No.
Disputable presumption of malice - Every 126466, January 14, 1999).
defamatory imputation is presumed to be
malicious. Presumed malice is also known What is the difference between fair
as “malice in law.” However, the following and true report, and fair comment as a
circumstances negate the presumption of privilege communications? (1) In fair and
malice in a defamatory statement: (1) if true report, the accused makes a report on
there is a good intention and justifiable the function-related acts performed by
motive for making it is shown; (2) if the public officers without any comments or
defamatory statements is a qualified remarks. On the other hand, in fair
privilege communication such (a) A private comment, the accused is making a comment
communication made by any person to on the function-related acts performed by
another in the performance of any legal, public officers. (2) In fair and true report,
moral or social duty; and (b) A fair and true the prosecution must prove actual malice
report, made in good faith, without any i.e., such as the report was made in bad
comments or remarks, of any judicial, faith. In fair comment, the prosecution
legislative or other official proceedings must actual malice i.e., comment was made
which are not of confidential nature, or of with knowledge that comment was false or
any statement, report or speech delivered in with reckless disregard of whether it was
said proceedings, or of any other act false or not (Sulivan vs. Newyork Times
performed by public officers in the exercise doctrine; Guingguing vs. the Honorable
of their functions (Article 354 of RPC). The Court of Appeals, G.R. No. 128959,
enumeration under Article 354 is not an September 30, 2005) Only false statements
exclusive list of qualifiedly privileged made with the high degree of awareness of
communications since fair commentaries on their probable falsity demanded by New
matters of public interest are likewise York Times may be the subject of either civil
privileged (Borjal vs. CA, G.R. No. 126466 or criminal sanctions (Flor vs. People, G.R.
January 14, 1999). 2. Conclusive No. 139987, March 31, 2005). (3) In fair
presumption of lack of malice – If the and true report, the report involving
defamatory statements are an absolute defamatory statement must be true. In fair
privilege communication, lack of malice is comment, the defamatory imputation in the
conclusively presumed. Thus, the person commentary is not true but the accused
making defamatory imputation is not has no knowledge that it is false and has
answerable for libel. Absolutely privileged not recklessly disregarded to know whether
communications are those which are not it is false or not.
actionable even if the author has acted in
bad faith such as speech or debate in the Is error or misstatement in
Congress or in any Committee thereof commentaries on function related acts of
(Philippine Journalists, Inc vs. Thoenen, public officer actionable in a news articles
G.R. No. 143372, December 13, 2005) or for being libelous? Even assuming that the
words uttered or published in the course of contents of the articles are false, mere
judicial proceedings, provided the error, inaccuracy or even falsity alone does
statements are pertinent or relevant to the not prove actual malice. Errors or
case (Malit vs. People, G.R. No. L-58681, misstatements are inevitable in any scheme
May 31, 1982). of truly free expression and debate.
Consistent with good faith and reasonable
FAIR COMMENT DOCTRINE - care, the press should not be held to
What is the doctrine of fair comment? account, to a point of suppression, for
Under this doctrine, fair commentaries on honest mistakes or imperfections in the
matters of public interest are privileged and choice of language. There must be some
constitute a valid defense in an action for room for misstatement of fact as well as for
libel or slander. The doctrine of fair misjudgment. Only by giving them much
comment means that while in general every leeway and tolerance can they courageously
defamatory and public imputation is and effectively function as critical agencies
deemed false, and every false imputation is in our democracy (Borjal vs. CA, G.R. No.
deemed malicious, nevertheless, when the 126466, January 14, 1999).

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 2014 BAR REVIEWER ON CRIMINAL LAW
UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA
not (Erwin Tulfo vs. People, G.R. No.
Brillante implicated Jejomar Binay, 161032, September 16, 2008).
then the OIC Mayor of Makati, and Dr.
Nemesio Prudente, then President of the The article in Bander newspaper
Polytechnic University of the Philippines in details the sexual activities of a certain
a planned assassination of Syjuco as well “Miss S” and one “Philip Henson” who had
as election-related terrorism. Is the doctrine a romantic liaison. The words used in the
of fair comment applicable in this libel article convey that “Miss S” is a sexual
case? The New York Times principle is not libertine with unusually wanton proclivities
applicable since the utterances are in the bedroom. Is the article defamatory
unrelated to a public officer’s performance and malicious? Is the writer liable for libel?
of his duties (Brillante vs. CA, G.R. Nos. Yes. In a society such as ours, where
118757 & 121571, October 19, 2004). modesty is still highly prized among young
Obviously, commission of murder and ladies, the behavior attributed to “Miss S”
terrorism is not related to the performance by the article in question had besmirched
of their duties as public officers. both her character and reputation. Since on
its face the article is defamatory, there is a
Cristy Fermin imputed to Annabelle presumption that the offender acted with
Rama Gutierrez an actress the crime of malice. However, the writer cannot be held
malversation and of vices or defects for liable for libel. The libelous article, while
being fugitives from the law and of being a referring to "Miss S," does not give a
wastrel. Is the doctrine of fair comment sufficient description or other indications
applicable in this libel case? No. It is which identify "Miss S." In short, the article
unrelated to public figure’s work (Fermin vs. fails to show that "Miss S" and complainant
People, G.R. No. 157643, March 28, 2008). are one and the same person. Although the
The defamatory imputation has nothing to article is libelous, complainant could not
do to with works of Annabelle as a as an have been the person defamed therein (Diaz
actress. v. People, G.R. No. 159787, May 25, 2007).

In his series of articles of Erwin INTERNET LIBEL - Under Article

Tulfo, he targeted one Atty. "Ding" So of the 355, a libel committed by means of writing,
Bureau of Customs as being involved in printing, lithography, engraving, radio,
criminal activities, and was using his public phonograph, painting, theatrical exhibition,
position for personal gain. He went even cinematographic exhibition, or any similar
further than that, and called Atty. So an means. Is the internet used to post a
embarrassment to his religion, saying malicious defamatory imputation through
"ikawnayataangpinakagago at facebook within the contemplation of the
magnanakawsamiyembronito." He accused phrase “any similar means” in Article 355?
Atty. So of stealing from the government Yes. Writing, printing, lithography,
with his alleged corrupt activities. And engraving, radio, phonograph, painting,
when Atty. So filed a libel suit against him, theatrical exhibition, cinematographic
Tulfo wrote another article, challenging exhibition has a common characteristic,
Atty. So, saying, "Nagalititongtarantadongsi and that is, their permanent nature as a
Atty. So dahilbinabantayankosiya at in- means of publication, and this explains the
expose angkagaguhanniyasa [Bureau of graver penalty for libel than that prescribed
Customs]." In his testimony, Tulfo admitted for oral defamation (People vs. Santiago,
that he did not personally know Atty. So, G.R. No. L-17663, May 30, 1962). Hence,
and had neither met nor known him prior the phrase “any similar means” should be
to the publication of the subject articles. He understood in the lights of the said
also admitted that he did not conduct a common characteristic of the means to
more in-depth research of his allegations commit libel. Since nature of internet as a
before he published them, and relied only means of publication is likewise permanent,
on his source at the Bureau of Customs. Is it should be considered as a means to
Tulfo liable for Libel? Yes. Journalists bear commit libel.
the burden of writing responsibly when
practicing their profession, even when What is the venue for internet libel
writing about public figures or matters of committed? As a general rule, the venue of
public interest. The report made by Tulfo libel cases where the complainant is a
cannot be considered as "fair" and "true" private individual is limited to only either of
since he did not do research before making two places, namely: 1) where the
his allegations, and it has been shown that complainant actually resides at the time of
these allegations were baseless. The articles the commission of the offense; or 2) where
are not "fair and true reports," but merely the alleged defamatory article was printed
wild accusations. He had written and and first published (Article 360 of
published the subject articles with reckless RPC).However, the place where libelous
disregard of whether the same were false or article was accessed by the offended party
in the internet is not equivalent to the place

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 2014 BAR REVIEWER ON CRIMINAL LAW
UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA
where the libelous article is “printed and The Information failed to allege the
first published”. To rule otherwise is to residence of complainant. While the
allow the evil sought to be prevented by the Information alleges that complainant is a
amendment to Article 360, and that was physician in Iloilo City, such allegation did
the indiscriminate laying of the venue in not clearly and positively indicate that he
libel cases in distant, isolated or far-flung was actually residing in Iloilo City at the
areas, to harass an accused. At any rate, time of the commission of the offense. It is
Article 360 still allow offended party to file possible that complainant was actually
the civil or criminal complaint for internet residing in another place (Foz, Jr., vs.
libel in their respective places of residence People, GR No. 167764, October 09, 2009,
(Bonifacio vs. RTC, Makati, Branch 149, Justice Peralta).
G.R. No. 184800, May 5, 2010).
RECKLESS IMPRUDENCE
Libel is not a constitutionally
protected speech and that the government Following a vehicular collision in
has an obligation to protect private August 2004, Jason Ivler was charged with
individuals from defamation. Indeed, cyber reckless imprudence resulting in slight
libel is actually not a new crime since physical injuries for injuries sustained by
Article 353, in relation to Article 355 of the Maria and reckless imprudence resulting in
penal code, already punishes it. In effect, homicide and damage to property for the
Section 4(c)(4) above merely affirms that death of Nestor and damage to their vehicle.
online defamation constitutes “similar Court convicted Jason for the first charged.
means” for committing libel (Disini vs. Should the information for the second
Secretary of Justice, G.R. No. 20335, charge be quashed on the basis of the rule
February 18. 2014). on double jeopardy? Reckless imprudence
under Article 365 is a single quasi-offense
VENUE - The rules on venue for by itself and not merely a means to commit
libel in Article 360 of RPC are as follows: (1) other crimes; hence conviction or acquittal
Whether the offended party is a public of such quasi-offense bars subsequent
official or a private person, the criminal prosecution for the same quasi-offense,
action may be filed in the Regional Trial regardless of its various consequences. The
Court of the province or city where the essence of the quasi offense of criminal
libelous article is printed and first negligence under article 365 of the Revised
published; (2) If the offended party is a Penal Code lies in the execution of an
private individual, the criminal action may imprudent or negligent act that, if
also be filed in the Regional Trial Court of intentionally done, would be punishable as
the province where he actually resided at a felony. The law penalizes thus the
the time of the commission of the offense. negligent or careless act, not the result
(3) If the offended party is a public officer thereof. The gravity of the consequence is
whose office is in Manila at the time of the only taken into account to determine the
commission of the offense, the action may penalty. It does not qualify the substance of
be filed in the Regional Trial Court of the offense. And, as the careless act is
Manila. (4) If the offended party is a public single, whether the injurious result should
officer holding office outside of Manila, the affect one person or several persons, the
action may be filed in the Regional Trial offense criminal negligence remains one
Court of the province or city where he held and the same, and cannot be split into
office at the time of the commission of the different crimes and prosecutions (Ivler vs.
offense (Foz, Jr., vs. People, GR No. Modesto-San Pedro, G.R. No. 172716,
167764, October 09, 2009, Justice Peralta). November 17, 2010). Note: The principle in
Ivler case has abandoned the principle
Information alleged that the libelous (Ortega view) that culpa is just a modality
writings were published in Panay News, a by which a felony may be committed.
daily publication with a considerable
circulation in the City of Iloilo and that In People vs. Dumayag, G.R. No.
complainant (private individual) is a 172778, 26 November 2012 - The evidence
physician in Iloilo. Is the Information indubitably shows that before the collision,
quashable for improper venue? the passenger bus was cruising along its
rightful lane when the tricycle coming from
Answer: Yes. The allegations in the the opposite direction suddenly swerved
Information that "Panay News, a daily and encroached on its lane. The accident
publication with a considerable circulation would not have happened had Genayas, the
in the City of Iloilo" only showed that Iloilo tricycle driver, stayed on his lane and did
was the place where Panay News was in not recklessly try to overtake another
considerable circulation but did not vehicle while approaching a blind curve.
establish that the said publication was Section 37 of R.A. No. 4136 mandates all
printed and first published in Iloilo City. motorists to drive and operate vehicles on
the right side of the road or highway. When

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