2022 January Bar Exam Modified Pre Week Materials PDF
2022 January Bar Exam Modified Pre Week Materials PDF
2022 January Bar Exam Modified Pre Week Materials PDF
One-day Lecture: Jan 10, 11, 13, 15 & 19. 3-hour Speed Lecture: Jan 21 & 22
I. BASIC PRINCIPLES
CONSTRUCTION OF PENAL LAWS - In dubio pro reo means “when
in doubt, for the accused.” Intimately related to the in dubio pro reo
principle is the Rule of Lenity. The rule applies when the court is
faced with two possible interpretations of a penal statute –– one that
is prejudicial to the accused and another that is favorable to him.
The rule calls for the adoption of an interpretation which is more
lenient to the accused. (Intestate Estate of Gonzales v. People, G.R.
No. 181409, February 11, 2010)
The Revised Penal Code is patterned after the Spanish Penal
Code. The Revised Penal Code was written in Spanish when it was
submitted to the Legislature for approval. The English text of the
Revised Penal Code is just a translation of the Spanish text. What
was approved by the Philippine Legislature is the Spanish text of
the Revised Penal Code. Thus, in interpreting the provisions of the
Revised Penal Code, the Spanish text of the said Code is controlling
as this was the text approved by the Legislature. (People v.
Mangulabnan, G.R. No. L-8919, September 28, 1956; People v. Escote,
Jr., G.R. No. 140756, April 4, 2003) Furthermore, Spanish
jurisprudence may also aid the court in interpreting the provisions
of the Revised Penal Code. (People v. Nocum, G.R. No. L-482, February
25, 1947)
TERRITORIALITY - For purpose of venue under the Rules of
Criminal Procedure and territoriality principle in Article 2 of the
Revised Penal Code, the place of commission of the criminal act and
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said for the vice president.” Fr Joaquin Bernas SJ, one of the framers
of the 1987 Constitution, also categorically said that Binay is not
covered by executive immunity. “No, the vice president is not
immune…The Constitution doesn’t say he is immune”. (See: Rappler
article entitled Vice-president does not enjoy immunity published
on June 5, 2015)
REPEAL - There are two kinds of repeal of criminal law, to wit: (1)
absolute repeal, which includes repeal without reenactment; and (2)
partial repeal or repeal with reenactment.
1. Absolute Repeal — Repeal of a penal law deprives the courts
of jurisdiction to punish persons charged with a violation of the old
penal law prior to its repeal. (Arizala v. Court of Appeals, G.R. No.
43633, September 14, 1990) The intention of the new law in totally
repealing the old law is to decriminalize an act punishable under the
latter. In sum, under the present law, the subject act is not a crime
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First view - The first view is that if the offense is punishable under
special law, it will be treated as malum prohibitum.
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vs. People, G.R. No. 212942, June 17, 2020 declares it as malum
prohibitum.
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distinguish
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For purpose of the bar exam, if the crime is sexual abuse under
Section 5 of RA No. 7610, fencing, hazing, or sexual harassment the
first view must be followed because the Supreme Court says so. Thus,
they are mala prohibita since they are punishable under special laws.
On the other hand, if the crime is child abuse under Section 10 of RA
No. 7610, plunder, carnapping, piracy or highway
robbery/brigandage under PD No. 532, trafficking in person or
terrorism, second view must be observed. Thus, they are mala in se
since they are wrong in nature.
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1. If the bullet that killed the target victim is different from the
bullet that killed the third person, who was hit by reason of aberratio
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ictus (People v. Flora, G.R. No. 125909, June 23, 2000; People v.
Adriano, G.R. No. 205228, July 15, 2015; Cruz vs. People, G.R. No.
216642, September 8, 2020);
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intentional felony. Hence, he is not liable for the direct, natural and
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is factually
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impossible for the accused in firing his gun at the room to hit him.
Hence, shooting at the room to kill the victim is an impossible crime
because of the factual impossibility of committing it. On the other
hand, if the target victim is already dead, it is not factually
impossible for the accused in firing his gun to hit him; but it is
legally impossible for the accused to kill a person, who is already
dead. Hence, shooting at a dead person to kill him is an impossible
crime because of legal impossibility of committing it.
Putting the hand inside an empty pocket with the intention to
steal a wallet therein is an impossible crime because of factual
impossibility of committing it. (Intod v. Court of Appeals, supra; 1947
and 1962 Bar Exams)
The penalty for impossible crime is arresto mayor or a fine from
P200 to P500 (Article 59 of the Revised Penal Code), while the penalty
for light felony is arresto menor or a fine not exceeding P200 or both.
Article 59 should not be made applicable to one who attempts to
commit a light felony of impossible materialization since the penalty
for the impossible crime is graver than that for the consummated
light crime. It would be unfair to punish a person, who failed to
commit a light felony since it is impossible to accomplish it, for a
graver penalty than that for a person who was able to commit it.
In impossible crime and attempted or frustrated felony, the
offender did not complete the commission of the crime. But the
difference between the two lies on the external cause that prevents
the consummation of the crime.
If the external cause of non-commission of the crime is the
impossibility of accomplishing the crime or the employment of
ineffectual or inadequate means, the offender is liable for an
impossible crime.
If the external cause of non-performance of all acts of execution
is some cause or accident other than his own spontaneous desistance,
the offender is liable for attempted felony. In attempted felony, it is
possible to commit the crime, but the offender fails to perform all acts
of execution due to some cause or accident other than his own
spontaneous desistance.
If the external cause of non-production of the crime despite the
performance of all acts of execution is a cause independent of his
will, offender is liable for frustrated felony. In frustrated felony, it is
possible to commit the crime, and in fact, the offender has already
performed all acts of execution, but the crime was not produced due
to cause independent of his will.
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The offender with intent to kill pulled the trigger of a gun with a
dud bullet (defective bullet) at the victim. The act constitutes
impossible crime because of the impossibility of killing a person with
a dud bullet or the employment of ineffectual means. (2014 Bar
Exam)
The offender with intent to kill pulled the trigger of a gun with
live bullets at the victim, and as a consequence, he sustained non-
mortal wounds. The offender failed to shoot further shot the victim
to inflict a mortal wound since he was arrested by a police officer.
This is not impossible crime since there is a possibility of killing the
victim with a gun loaded with live bullets. The crime committed is
attempted homicide, since he failed perform all acts necessary to
execute his criminal design to kill him because of his timely
apprehension. His apprehension and not his spontaneous
desistance prevented him from inflicting a mortal wound on the
victim.
The offender with intent to kill pulled the trigger of a gun with
live bullets at the victim, and as a consequence, he sustained mortal
wounds. However, the victim survived due to medical intervention.
This is not impossible crime since there is a possibility of killing the
victim. In fact, the offender already performed all acts necessary to
kill him by inflicting mortal wounds. With mortal wounds, the
victim was already dying. The crime committed is frustrated
homicide since the victim survived due to medical intervention.
This medical intervention, which is not dependent on the will of the
offender, prevented the completion of the crime.
Offender with intent to kill thought that the salt, which he mixed
with the coffee of the victim, is arsenic powder. Victim drank the
coffee. Murder was not committed due to the employment of
ineffectual means. Offender is liable for impossible crime.
Offender with intent to kill mixed arsenic with the coffee of the
victim. Victim drank the coffee. The victim did not die by reason of
the inadequate quantity of the poison. Murder was not committed
due to the employment of inadequate means. Offender is liable for
impossible crime.
Offender with intent to kill mixed arsenic with the coffee of victim.
Victim drank the coffee. The quantity of the poison is adequate to
kill the victim. But the victim did not die due to timely medical
intervention. Offender is liable for frustrated murder.
If the crime is not committed, the accused can be held liable
either for frustrated felony or for impossible crime; but he cannot
be held liable for frustrated impossible crime. Article 4 of the
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Revised Penal
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facts
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the
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causes are not external, the accused will be absolved from criminal
liability.
In attempted homicide, the accused in order to kill the victim
inflicted non-mortal wound upon him but a policeman immediately
arrested him. His timely apprehension is the cause other than his
spontaneous desistance, which prevented him from performing all
acts of execution or from inflicting a mortal wound upon the victim.
In frustrated homicide, the accused in order to kill the victim
inflicted mortal wound upon him but the latter did not die due to
timely medical intervention. The medical intervention is the cause
independent of the exclusive will of the accused, which prevented
the consummation of the crime.
In attempted felony, if the cause of the failure to perform all acts
of execution is the spontaneous desistance of the accused, that is a
defense.
In frustrated felony, if the failure to produce the crime despite
the performance of all acts of execution is not independent on the
will of the accused, that is a defense.
a. Spontaneous Desistance — In the attempted stage,
offender has not yet performed all the acts of execution. Hence,
to be absolved from criminal liability, he must spontaneously
desist from performing all acts of execution.
In attempted homicide, the accused will be absolved from
criminal liability by spontaneously desisting from inflicting mortal
wound upon the victim. However, he is liable for the crime that
he already completed such as physical injuries, threat or
discharge of firearm.
The term spontaneous is not equivalent to voluntary. Even if
the desistance is voluntary, the same could not exempt the
offender from liability for attempted felony if there is an
external constraint. The term “spontaneous” means proceeding
from natural feeling or native tendency without external
constraint; it is synonymous with impulsive, automatic, and
mechanical. (People v. Lizada, G.R. Nos. 143468-71, January 24,
2003, En Banc)
Accused had previously raped the victim several times. During
the subject incident, accused was wearing a pair of short pants
but naked from waist up. He entered the bedroom of victim,
went on top of her, held her hands, removed her panty, mashed
her breasts and touched her sex organ. However, accused saw
Rossel
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Belief
Under the old rule, it is not required that the accused actually
commits all the acts of execution necessary to produce the death of
his victim. It is sufficient that he believes that he has committed all
the acts of execution to make him liable for frustrated felony. (People
v. Dagman, G.R. No. L-23133, August 20, 1925; People v. Borinaga,
G.R. No. 33463, December 18, 1930; People v. Dela Cruz, G.R. No. L-
39552, November 24, 1933; People v. Pio, G.R. No. L-5848, April 30,
1954) However, according to Justice Florenz Regalado, the belief of
the accused as to whether he had already performed all the acts of
execution is immaterial. To be held liable for frustrated homicide or
murder, the accused must have performed all the acts of execution
which would produce the felony as a consequence (and not as a
matter of belief). In People v. Paddayuman, G.R. No. 120344, January
23, 2002, People v. Maguikay, G.R. Nos. 103226-28, October 14,
1994, and People v. Bacalto, G.R. Nos. 116307-10, August 14, 1997,
the Supreme Court did not consider the belief of the accused in
determining the stage of execution of the crime.
That the victim sustains mortal wounds is an important element
of frustrated homicide. (Miranda v. People, G.R. No. 234528, January
23, 2019) Believing that the victim is already dying after stabbing
him twice on the chest, accused left. Despite the belief of the
accused that the wounds sustained by the victim is mortal, he was
convicted of attempted homicide, and not frustrated homicide
because his wounds are not mortal. (People v. Paddayuman, supra)
Under Article 6 of the Revised Penal Code, the offender must
“perform all the acts of execution” to be held liable of frustrated
felony. Belief of the offender that he already performs all acts of
execution is not mentioned in Article 6 as an element of frustrated
felony.
The victim survived the attack perpetrated by the accused
because he pretended to be dead. Despite the belief of the accused
that the victim is dead, they will not be convicted of consummated
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murder. They will be held liable for frustrated murder if the wounds
sustained by the victim are mortal (People v. Bacalto, supra); or
attempted murder if they are non-mortal. (People v. Maguikay,
supra) Article 249 of the Revised Penal Code penalizes the act of
killing a person as homicide and not the belief that one killed a
person.
Arson
1. Attempted Arson — When a person had poured gasoline
under the house of another and was about to strike the match to set
the house on fire when he was apprehended, he is guilty of
attempted arson. He committed an over act to execute his criminal
design to burn the house. However, he did not perform all acts of
execution since pouring gasoline and attempting to strike the match
will not burn the house as a matter of consequence. (People v. Go
Kay, CA, 54 O.G. 2225; 2019 Bar Exam)
Carrying gasoline to the place where a house is to be burned is
not attempted arson. Such act is considered as preparatory to arson.
It is not punishable as attempted arson because the intent to burn is
not yet clear.
Accused manifested before his intention to burn the house of the
victim to his friends. He then performed the act of pouring gasoline
around the walls of the house to execute his criminal design to
commit arson. This is not just a preparatory act because it already
revealed a clear intention to burn the house. He even manifested his
intention prior to the commission of the crime. In this case, he
already commenced the commission of the crime of arson directly
by overt act. But he did not perform all the acts to execute his
criminal design to commit arson by setting the house on fire due to
cause other than his spontaneous desistance, and that is, having
been caught by the police.
2. Frustrated Arson — In US v. Valdes, G.R. No. 14128,
December 10, 1918, accused soaked a jute sack and a rag with
kerosene oil, set them on fire and placed them beside an upright of
the house. However, the fire had been put out on time. The offense
committed is not consummated arson because no part of the
building had been burned. He is liable for frustrated arson. The
accused performed all the acts to execute his criminal design to
burn the house. The house would have been burned as a matter of
consequence because the fire without an intervening factor would
have spread to the house. But the house was not burned due to the
timely intervention of others, who put out the fire on time. (1949
and 1967 Bar Exams)
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Stages of Rape
1. Consummated Rape — Touching of either labia majora or
labia minora of the victim’s pudendum by an erect penis capable of
penetration consummates the crime. (People v. Campuhan, G.R. No.
129433, March 30, 2000; People v. Butiong, G.R. No. 168932, October
19, 2011) If there is no touching of the labia, the crime is either
attempted rape or acts of lasciviousness depending upon the
intention of the offender. If his intention is to have sexual
intercourse with the victim, the crime is attempted rape; otherwise,
it is acts of lasciviousness.
In People v. Nuyok, G.R. No. 195424, June 15, 2015, the
commission of rape can be established by circumstantial evidence
even if the victim, being the sole witness, was rendered unconscious
during its commission. Accused slapped victim and punched her in
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victim, the look-out and driver of the get-way vehicle are collectively
liable for murder.
On the other hand, if conspiracy to commit a crime is
punishable, but the conspirators committed the crime agreed upon,
they shall be held liable for the crime committed, and not for
conspiracy to commit it. In this situation, conspiracy will be
considered not as a crime but as a mode of incurring collective
criminal liability. In sum, if the crime agreed upon was committed,
conspiracy as a crime will be converted into conspiracy as mode of
incurring collective criminal liability. For example, conspiracy to
commit rebellion is punishable. Article 136 of the Revised Penal
Code prescribes a penalty for conspiring to commit rebellion. But if
the conspirators committed rebellion, they shall be punished for
rebellion under Article 134, and not for conspiracy to commit
rebellion under Article 136. However, conspiracy shall not be
considered as a crime but a mere mode of incurring collective
criminal liability.
There are three requisites of conspiracy as a mode of incurring
collective responsibility, to wit: (1) there must be conspiracy to
commit a crime; (2) the crime agreed upon has been committed;
and
(3) the conspirators to apply the collective responsibility rule to them
must perform an act in furtherance of conspiracy e.g., stabbing the
victim or acting as a lookout. However, the third requisite can be
dispensed with if the conspirator is the mastermind of the crime.
1. Act in Furtherance of Conspiracy — To make a conspirator
collectively responsible with others, it must also be established that
he performed an act in furtherance of conspiracy. A conspirator who
did not perform an act in furtherance of conspiracy to kidnap the
victim for ransom is not liable for conspiracy to commit kidnapping
for ransom since there is no law prescribing a penalty for it. Neither
is he liable for kidnapping on the basis of collective responsibility rule
because he did not perform an act in furtherance of conspiracy.
(People v. Supt. Berroya, G.R. No. 122487, December 12, 1997)
2. Mastermind — To be held liable as conspirator based on the
collective responsibility rule, it must also be shown that the accused
performed an overt act in furtherance of conspiracy except in the case
of the mastermind of a crime. (People v. Vera, G.R. No. 128966, August
18, 1999; 1987 Bar Exam) One who plans the commission of a crime
is liable as conspirator and principal by inducement. (People v.
Comiling, G.R. No. 140405, March 4, 2004, En banc) Evidence proved
that accused was the mastermind of the criminal act or the principal
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Multiple Conspiracies
There are two structures of multiple conspiracies, namely:
wheel or circle conspiracy and chain conspiracy.
Under the wheel or circle conspiracy, there is a single person or
group (the “hub”) dealing individually with two or more other persons
or groups (the “spokes”). An illustration of wheel conspiracy
wherein there is only one conspiracy involved was the conspiracy
alleged in the Information for plunder filed against former
President Estrada and his co-conspirators. Former President
Estrada was the hub while the spokes were all the other accused
individuals. The rim that enclosed the spokes was the common goal
in the overall conspiracy, i.e., the amassing, accumulation and
acquisition of ill-gotten wealth. (GMA v. People, G.R. No. 220598, July
19, 2016)
Under the chain conspiracy, usually involving the distribution of
narcotics or other contraband, in which there is successive
communication and cooperation in much the same way as with
legitimate business operations between manufacturer and
wholesaler, then wholesaler and retailer, and then retailer and
consumer. (Fernan, Jr. v. People, G.R. No. 145927, August 24, 2007;
2016 and 2017 Bar Exams)
DELITO CONTINUADO
In order that continued crime or delito continuado may exist, there
should be: (1) plurality of acts performed separately during a
period of time; (2) unity of criminal intent and purpose; and (3) unity
of penal provision infringed upon or violated. (Santiago v.
Garchitorena, G.R. No. 109266, December 2, 1993) In sum, delito
continuado is composed of several acts committed under a single
criminal impulse in violation of a single penal provision.
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“B” demanding P4,000 under threat of death. “B” sent P4,000 to “A.”
This
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crime on the first occasion is different from that when the same was
replicated on a second occasion. In Dinamling v. People, G.R. No.
199522, June 22, 2015, psychological violence committed by the
husband against his wife on two different occasions constitutes two
counts of violence against women under R.A. No. 9262. (2015 Bar
Exam on Remedial Law)
5. Foreknowledge Principle - In Gamboa v. Court of Appeals,
G.R. No. L-41054, November 28, 1975, accused cannot be held to
have entertained continuously the same criminal intent in making
the first abstraction on October 2, 1972 for the subsequent
abstractions on the following days and months until December 30,
1972, for the simple reason that he has no foreknowledge of any
deposit by any customer on any day or occasion and which would
pass on to his possession and control. At most, his intent to
misappropriate may arise only when he comes in possession of the
deposits on each business day but not in the future, since petitioner
company operates only on a day-to-day transaction. As a result, there
could be as many acts of misappropriation as there are times the
private respondent abstracted and/or diverted the deposits to his
own personal use and benefit. (People v. Dichupa, G.R. No. L-16943,
October 28, 1961)
If the accused committed the first criminal act without
foreknowledge that he will commit the second, the acts are not
constitutive of a continued crime since the criminal acts could not
be said to have been committed under a single criminal intent or
impulse.
The series of acts committed against the seven lot buyers was not
the product of a single criminal intent. The misrepresentation or
deceit was employed against each lot buyer on different dates and in
separate places, hence they originated from separate criminal intents
and consequently resulted in separate felonies. Moreover, after the
commission of one estafa, the accused could not have had the
foreknowledge as to when or whether they could replicate the same
felony against another victim. (Ilagan v. Hon. Court of Appeals, G.R.
No. 110617, December 29, 1994)
X as punong barangay was angered when he discovered a tap
from the main line of the public water tank. On separate occasions,
X threatened to kill and crack the skulls of three suspects, A, B, and
C. There is no continued crime of grave threat since the three crimes
were not committed under a single criminal impulse. X has no
foreknowledge that he will chance upon the second and third
victims
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at the time he was committing the first threat. Several threats can
only be considered as continued crime if the offender threatened
three individuals at the same place and at the same time. (Paera v.
People, G.R. No. 181626, May 30, 2011)
COMPOUND CRIME
Compound crime is composed of two or more grave or less grave
felonies produced by a single act.
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The single act of running over the victims with a van constitutes
compound crime of multiple murders. (People v. Punzalan, Jr., G.R.
No. 199892, December 10, 2012)
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for robbery in an
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their guns at the victims, they shall be held liable for compound
crime of multiple murders.
Under Lawas case, several acts in killing several victims under a
single criminal impulse shall be considered as a single act. Hence, it
is a compound crime. However, the Lawas doctrine is more of an
exception than a general rule. (People v. Remollino, G.R. No. L-14008,
September 30, 1960) To apply Article 48 on compound crime, there
must be singularity of criminal act; singularity of criminal impulse is
not written into the law. (People v. Pineda, G.R. No. L-26222, July 21,
1967)
In Lawas case, the Supreme Court was merely forced to convict
the accused of a compound crime because of the impossibility of
ascertaining the number of persons killed by each accused. (People
v. Nelmida, G.R. No. 184500, September 11, 2012) Hence, to apply the
single criminal impulse rule, the circumstance of a case must be
similar to that in Lawas case. The Lawas principle should only be
applied in a case where: (1) it is impossible to ascertain the number
of deaths caused by each accused and (2) there is no conspiracy.
(People v. Hon. Pineda, G.R. No. L-26222, July 21, 1967)
When one fires his firearm in succession, killing and wounding
several persons, the different acts must be considered as distinct
crimes. The Lawas is not applicable because there is only one
accused, who killed the victims. In sum, the circumstance of
“impossibility of ascertaining the number of persons killed by each
accused” on which the application of the Lawas is based is not
obtaining in this case. (People v. Remollino, G.R. No. L-14008,
September 30, 1960)
The Lawas doctrine should not also be applied if there is
conspiracy since the number of victims actually killed by each
conspirator is not anymore material. (People v. Elarcosa, G.R. No.
186539, June 29, 2010)
The Emit principle should not be confused with the Lawas
principle. In Emit, several acts of killing under the single criminal
impulse to kill were treated as delito continuado. In Lawas, several
acts of killing under a single criminal impulse to obey the order of
their commander were treated as a single act constituting a
compound crime. As discussed above, Emit is already an abandoned
principle. On the other hand, Lawas is still controlling rule provided
there is no conspiracy and it is impossible to ascertain the number
of deaths caused by each accused.
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homicide
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injuries.
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If the accused abducted the victim to kill him and in fact the
victim is killed, the former is liable for special complex crime of
kidnapping with homicide. (People v. Mercado, G.R. No. 116239,
November 29, 2000; People v. Elizalde, G.R. No. 210434, December 5,
2016) If the accused kidnapped the victim to kill him, and in the
course of the detention, shot the victim, who survived despite of the
mortal wound that he sustained, the accused cannot be convicted of
a special complex crime of kidnapping with frustrated murder.
There exists no such crime under Article 267 of the Revised Penal
Code. However, since kidnapping is a necessary means to commit
frustrated murder, the accused is liable for a complex crime proper
of frustrated murder through kidnapping. (People v. Roxas, G.R. No.
172604, August 17, 2010)
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In People v. Acosta, G.R. No. 40903, April 28, 1934, the accused
raped the victim and infected her with sexually transmitted disease
(STD). As a consequence, she died. Accused was convicted of a
compound crime of rape with homicide under Article 48 of the
Revised Penal Code. Under Article 335 of the Code, there was no
special complex crime of rape with homicide.
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absorbs the former. (People v. Apiado, G.R. No. 31075, August 12,
1929) Moreover, slight physical injuries for being a light felony cannot
be made a component of a compound crime since Article 48 speaks
of single act constituting two or more grave or less grave felonies.
In People v. Isla, G.R. No. 199875, November 21, 2012, with
respect to the stabbings, it appears that the accused committed two
acts. The first was while he was ravishing AAA. The Court considers
this and the rape as one continuous act, the stabbing being
necessary, as far as he was concerned, for the successful
perpetration of the crime. When the accused testified, he claimed that
he had to use the knife so he could have sexual intercourse with her.
The second stabbing took place after consummation of the rape act.
According to AAA, after her defilement, she noticed the knife
bloodied and she tried to wrest it from him. In their struggle, she
was stabbed under her lower left breast but she was able to force
the accused to drop the knife. This second stabbing is a separate
and distinct offense (frustrated homicide) as it was not a necessary
means to commit the rape. It was intended to do away with her life.
PARTICIPATION
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age”
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If the actual age of the accused is 18 years old and mental age
is 9 years old, the exempting circumstance of minority and
imbecility shall not be appreciated because he is neither a minor
nor an imbecile (People vs. Roxas, G.R. No. 200793, June 04, 2014).
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Under Article 63, par. 2 (3), when there are some mitigating
circumstances and there is no aggravating circumstance, the lesser
penalty (of reclusion perpetua) shall be applied. The title of Article
63 is rules for the application of indivisible penalties. Death and
reclusion perpetua are indivisible penalties. Article 63, par. 2 (3) is
only applicable cases in which the law prescribes a penalty
composed of two indivisible penalties. There is only one penalty
composed to two individual penalties, and that is, reclusion
perpetua to death.
V. AGGRVATING CIRCUMSTANCE
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RECIDIVISM - A recidivist is one who, at the time of his trial for one
crime, shall have been previously convicted by final judgment of
another crime embraced in the same title of this Code. (Article 14 of
the Revised Penal Code; 1965 Bar Exam) The phrase “at the time of
his trial for an offense” employed in defining recidivism includes
everything that is done in the course of the trial, from arraignment
until after sentence is announced by the judge in open court. (People
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v. Lagarto, G.R. No. 65833, May 6, 1991) However, recidivism can still
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be appreciated even if before his trial for the present crime, he was
convicted by final judgment of his previous crime. (People v. Bernal,
G.R. No. 44988, October 31, 1936; People v. Colocar, G.R. No. 40871,
November 10, 1934)
REITERACION - There is reiteracion when the offender has been
previously punished for an offense to which the law attaches an equal
or greater penalty or for two or more crimes to which it attaches a
lighter penalty. (Article 14 of the Revised Penal Code)
1. Previously Punished — The phrase “previously punished”
employed in defining reiteracion means that the accused has served
out the sentence for his previous crime.
2. Previous Crime and Present Crime — If there is only one
prior offense, it must be punishable by a penalty equal or greater
than that for the present crime. The penalty for the previous crime
of homicide, which has been served out, is reclusion temporal while
that for simple rape is reclusion perpetua. There is no reiteracion
because the penalty for the previous crime of homicide is lesser
than that for simple rape. (People v. Race, Jr., G.R. No. 93143, August
4, 1992)
If there is more than one prior crime, reiteracion is present even
if previous crimes are punishable by a penalty lesser than that for
present crime. Thus, there is reiteracion even if the penalties for grave
slander, qualified trespass to dwelling and robbery, which have
been served out, are lesser than that for the crime of murder.
(People v. Molo, G.R. No. L-44680, January 11, 1979)
In appreciating reiteracion, what is controlling is the penalty
prescribed by law for the previous and present crimes and not the
penalty actually imposed by the court after trial.
3. Recidivism and Reiteracion — If the crimes are embraced in
the same Title such as homicide and maltreatment, the aggravating
circumstance to be appreciated against him is recidivism rather
than reiteracion. There is no reiteracion because that circumstance
requires that the previous offenses should not be embraced in the
same Title of the Code. In reiteracion, the offender commits a crime
different from that for which he was previously convicted. (People v.
Real, G.R. No. 93436, March 24, 1995)
Accused was previously convicted of adultery and served the
penalty for it, and was charged of physical injuries. He was found
guilty of homicide. His liability for homicide shall not be aggravated
by recidivism or reiteracion. He is not a recidivist because homicide
and adultery are not embraced in same Title of the Revised Penal
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SERVICE OF SENTENCE
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“If the defendant violates the terms of the community service, the
court shall order his/her re-arrest and the defendant shall serve the
full term of the penalty, as the case may be, in jail, or in the house of
the defendant as provided under Article 88. However, if the defendant
has fully complied with the terms of the community service, the court
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shall order the release of the defendant unless detained for some
other reason.
When the death of the offender occurs after final judgment, only
his criminal liability is extinguished. However, his civil liability is
not affected by his death. Hence, despite the death of a convict after
finality of conviction for theft, his heirs are obligated to return to
the offended party the stolen properties.
When the death of the offender occurs before final judgment, his
liability as to the personal penalties and pecuniary penalties is
extinguished under Article 89 of the Revised Penal Code.
In People v. Bayotas, G.R. No. 102007, September 2, 1994,
pecuniary penalties include not only fine and cost but also civil
liability arising from crime. (2000, 2004, 2013, and 2015 Bar Exams).
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v. Bayotas, supra)
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intercourse with the victim. When they noticed the accused, the
wife
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pushed her paramour who got his revolver. The accused who was
then peeping above the built-in cabinet in their room jumped and
ran away. Immediately, thereafter, the accused went to look for a
firearm at Tacloban City. Thereafter, he went back to his house with
a firearm but he was not able to find his wife and victim. He
proceeded to the mahjong session where he found the victim
playing. Accused fired at the victim three times with his rifle. The
victim died. This is death under exceptional circumstance although
about one hour had passed between the time of discovery of
infidelity and killing. Article 247, in requiring that the accused “shall
kill any of them or both of them... immediately” after surprising his
spouse in the act of intercourse, does not say that he should commit
the killing instantly thereafter. It only requires that the death
caused be the proximate result of the outrage overwhelming the
accused after chancing upon his spouse in the act of infidelity. But
the killing should have been actually motivated by the same blind
impulse, and must not have been influenced by external factors. The
killing must be the direct by- product of the accused’s rage. (1988
Bar Exam)
Promoting prostitution or consenting to infidelity (e.g., execution
of a notarized document allowing his wife to get a new partner as her
husband) will negate the benefit of death or physical injuries under
exceptional circumstance. (2018 Bar Exam)
In case of slight physical injuries or less serious physical injuries
under exceptional circumstance, the accused shall be exempt from
punishment. (1970 Bar Exam) In case of serious physical injuries or
death under exceptional circumstance, the accused shall suffer the
penalty of destierro. (Article 247)
Frustrated murder or frustrated parricide is within the
contemplation of the words “serious physical injuries” in Article 247
of the Revised Penal Code. (2018 Bar Exam)
Death under exceptional circumstance is a not crime but a
defense (People v. Puedan, G.R. No. 139576, September 2, 2002), or
an absolutory cause. (People v. Talisic, G.R. No. 97961, September 5,
1997) If the accused caught his wife in the act of having sexual
intercourse with another man, and as a consequence, he killed the
paramour of his wife, he shall be charged of homicide (or murder),
and not death under exceptional circumstance. Article 247 does not
define a crime but merely provides a privilege or benefit amounting
practically to an exemption from an adequate punishment. (People
v. Araquel, G.R. No. L-12629, December 9, 1959)
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RAPE – There are two kinds of rape: (1) rape through sexual
intercourse; and (2) rape through sexual assault. However, the
Supreme Court in People vs. Tulugan, G.R. No. 227363, March 12,
2019 said that rape through sexual intercourse should be called as
“rape” while rape through sexual assault should be called as “sexual
assault.”
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evidence (People vs. Quintos, G.R. No. 199402, November 12, 2014;
Justice Leonen; People vs. Gilles, G.R. No. 229860, March 21,
2018). Having sexual intercourse with a mentally retarded person is
equivalent to having sexual intercourse with a person through
intimidation. If the Information alleged intimidation as a mode of
raping the victim, but the evidence merely proves her mental
retardation, the accused can be convicted of rape through
intimidation. (People v. Balatazo, G.R. No. 118027, January 29,
2004)
10. Marital rape - Husband can be held liable for marital rape.
Article 266-A of RPC uses the term “man” in defining rape without
regard to the rapist’s legal relationship with his victim. Under
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Article 266-C of RPC, in case it is the legal husband who is the
offender, the
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In People vs. Perez, G.R. No. 201414, April 18, 2018, and
People vs. ZZZ, G.R. No. 229209, February 12, 2020, the Supreme
Court through Justice Leonen affirmed the Amarela principle,
which abandoned the Maria Clara principle. Justice Leonen also
cited the Amarela principle in People vs. Tulugan. For purpose of
the 2021 Bar Exam, it is advisable that the Amarela principle should
be followed.
13. Variance rule - If the crime charged is rape, but the crime
proven is acts of lasciviousness, the accused will be convicted of the
latter because of the variance rule. Acts of lasciviousness is a lesser
crime, which is necessarily included in the charge of rape.
or during the commission itself of the rape, where the victim of the
homicide may be a person other than the rape victim. (People vs.
Villaflores, G.R. No. 184926, April 11, 2012; People vs. Laog, G.R.
No. 178321, October 5, 2011)
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For the crime of robbery with rape, the law does not
distinguish whether the rape was committed before, during, or after
the robbery, but only that it punishes robbery that was
accompanied by rape. (People vs. Salen, G.R. No. 231013, January 29,
2020, Justice Leonen)
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graver crime of less serious physical injuries (Lacson vs. People, G.R.
No. 243805, September 16, 2020)
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In Osorio vs. People, G.R. No. 207711, July 02, 2018 (Justice
Leonen), Accused as an agent of Philam Life was authorized to
solicit money for investment purposes. However, he
misrepresented to private complainant that the latter's money
would be invested in Philam Life Fund Management and that its
proceeds may be utilized to pay for private complainant's insurance
premiums. Private complainant parted with her funds because of
the representation that her investment's earnings would be
conveniently channeled to the payment of her insurance premiums.
The false representations committed by accused is not within the
contemplation of the words “other similar deceits" in Article 315 of
RPC on estafa. Same as the case of Guinhawa, the misrepresentation
is not similar to imaginary transaction. However, he is criminally
liable for the crime of other deceit under Article 318 of RPC. Article
318 is broad in scope intended to cover all other kinds of deceit not
falling under Articles 315, 316, and 317.
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In Orbe vs. Miaral, G.R. No. 217777, August 16, 2017, the
Supreme Court ruled that said the OCP erred gravely when it
dismissed the case based on the Clarin case, which has already been
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In Ibanez vs. People, G.R. No. 198932, October 09, 2019, With
the transaction entered into by the parties being a sale, the accused
as the vendee did not receive the property subject of the sale in
trust or under an obligation to return. The parties' agreement to
transfer the title upon payment of the purchase price rather placed
the accused in the position of an owner and made him liable to the
transferor as a debtor for the agreed price; he was not merely an
agent who must account for the proceeds of a resale. The failure on
the part of the accused to pay the consideration in full only resulted
to the complainants being unpaid vendors. The former did not
thereby incur criminal liability for estafa, for the right of the
complainants as unpaid vendors was only to demand the fulfilment
or the cancellation of the obligation.
The facts in these three cases are the same. In these cases, the
Supreme Court acquitted the accused of estafa. But their treatments
on convicting the accused for theft are different. In Chua-Burce case,
the accused was not held liable for qualified theft. In sum, the Court
did not apply the variance rule. However, in Reside case, the
Supreme Court applied the variance rule and convicted the accused
of qualified theft. It was held it is proper to hold accused guilty of
qualified theft because the latter crime was necessarily included in
the crime charged in the information. Qualifying circumstance of
abuse of confidence, which is alleged in the information, was
appreciated. In Linunao case, the accused was convicted of simple
theft since the Information filed against her sufficiently alleged all
the elements of theft. Qualifying circumstance of abuse of
confidence was not appreciated since the same was not alleged in
the information.
are not separate crimes. Note: Single, special and indivisible crime
can also be called as special complex crime.
Article 312 is also penalizing a single, special and indivisible
crime. If occupation of real property is also accompanied with rape,
the offender shall be punished for single, special and indivisible crime
of occupation of real property with rape. Occupation of property
and rape are not separate crimes.
However, there is a single penalty for robbery with rape; while the
penalties for occupation of real property with rape are that prescribed
for rape plus fine.
If by reason or on occasion of occupation of real property,
homicide is committed, the offender shall be prosecuted for single,
special and indivisible crime of occupation of real property with
homicide. Accused can neither be charged with separate crimes of
homicide and occupation of property nor complex crime under Article
48.
In Ablaza v. People, G.R. No. 217722, September 26, 2018, the
Supreme Court affirmed the Alfeche principle.
218702,
October 17, 2018)
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The victim was shot while accused was robbing the passengers
of a jeepney. Even if victim's bag was not taken, accused are liable
for special complex crime of robbery with homicide. In this special
complex crime, it is immaterial that the victim of homicide is other
than the victim of robbery, as long as homicide occurs by reason of
the robbery or on the occasion thereof. (People vs. Madrelejos, G.R.
No. 225328, March 21, 2018)
G.R. No. 227698, January 31, 2018; People vs. Casabuena, G.R. No.
246580, June 23, 2020)
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detention. The civil court and not military court has jurisdiction
over the case since this crime is not service connected. Kidnapping
should never be part of the functions of a soldier. It cannot be done
in a soldier's official capacity.
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Applying
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addict, and thus, placing his son under her custody is detrimental to
him. In support of this allegation, he attached a picture depicting
Maria injecting cocaine in her body. However, the truth is that Maria
was injecting glutathione in her body, and that it was Pedro, who
bought that substance. Although the allegation that “Maria is a drug”
is defamatory, Pedro cannot be held liable for libel since he has the
absolute privilege to communicate to the court all matters, which are
relevant to the case. As stated in Choa v. People, G.R. No. 142011,
March 14, 2003, the purpose of the privileged communication rule is
to ensure that witnesses may speak their minds freely and exercise
their respective functions without incurring the risk of a criminal
prosecution or an action for the recovery of damages. However, Pedro
can be held liable for perjury. The rules require that a petition for
custody of child must be verified to ensure that the petitioner shall
always allege truthful matters. If the petitioner shall not be subject
to criminal action for perjury for asserting falsehood in the petition,
then the requirement of verification will be rendered useless. In sum,
while the petitioner has an absolute privilege to communicate to the
court all relevant matters, even if the same are defamatory, he has
no privilege to allege untruthful matters therein. As stated in the case
of Choa, certainly, petitioner (who is charged with perjury) cannot seek
refuge under the absolutely privileged communication rule since the
false statements he made in his petition for naturalization has instead
made a mockery of the administration of justice.
Pedro filed a verified complaint for collection of money against
Maria. Pedro alleged in the complaint that Maria, a drug addict,
borrowed money from him; but she failed to pay him. In support of
this allegation, he attached contract of loan, and a picture depicting
Maria injecting cocaine in her body. However, the truth is that Maria
was injecting glutathione in her body, and that it was Pedro, who
sold that substance to her. Pedro cannot be held liable for perjury
since the untruthful allegation that Maria is a drug addict is not
material to his cause of action. Whether Maria is a drug addict or
not, she has the obligation to pay Pedro. Moreover, the law does not
require a complaint for collection of money to be verified. However,
Pedro is liable for libel since his allegation is defamatory. He cannot
invoke the principle of absolute privileged communication since the
defamatory statement that Maria is a drug addict is not material to
the case. Pedro has no privilege to communicate to the court
immaterial matters.
4. Subornation of Perjury - Under Act No. 1697, any person
who causes or procures another person to commit perjury is guilty of
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RA NO. 9262
VIOLENCE AGAINST WOMEN AND THEIR CHILDREN
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suffering, jurisprudence
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In AAA v. BBB, G.R. No. 212448, January 11, 2018, the accused
was prosecuted for psychological violence against woman under
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RA NO. 7610
CHILD ABUSE LAW
In Cruz vs. People, G.R. No. 216642, September 08, 2020, the
accused was convicted of homicide committed against a 9-year-old
child. He was sentenced to suffer a maximum penalty of 12 years
and 1 day of reclusion temporal. With due respect to the Supreme
Court, under Section 10 of RA No. 7610, the penalty for homicide
where the victim is under 12-years of age is reclusion perpetua.
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to degrade the dignity of minors, accused is only liable for other light
threats.
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Under the Civil Code, all individuals under 18 years of age have
no capacity to act or the power to do acts with legal effects. The law
limits, to varying degrees, the capacity of an individual to give
consent. While in general, under the civil law concept of consent, in
relation to capacity to act, the same concept cannot be applied to
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consent within the context of sexual predation. Under civil law, the
concept of "capacity to act" under civil law limits the capacity to
give a valid consent which generally refers to the meeting of the
offer and the acceptance upon the thing and the case which are to
constitute the contract. Capacity to act under civil law cannot be
equated to capacity to give sexual consent for individuals between
12 years old and below 18 years old. Sexual consent does not
involve any obligation within the context of civil law and instead
refers to a private act or sexual activity that may be covered by the
Revised Penal Code and R.A. 7610. (People vs. Tulugan, supra)
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for sexual assault with rape is graver than that prescribes by RA No.
7610.
a. rape - Under Section 5 (b) of RA No. 7610, that when the child
exploited in prostitution or sexual abuse is under 12 years of age (or
demented), the perpetrators shall be prosecuted for statutory rape.
Even if the girl who is below twelve (12) years old or is demented
consents to the sexual intercourse, it is always a crime of statutory
rape under the Revised Penal Code, and the offender should no longer
be held liable under R.A. No. 7610. For example, a nine (9)-year-old
girl was sold by a pimp to a customer, the crime committed by the
latter if he commits sexual intercourse with the girl is still statutory
rape (and not child prostitution), because even if the girl consented
or is demented, the law presumes that she is incapable of giving a
rational consent. (People vs. Tulugan, supra)
Leonen, and People vs. Adajar, G.R. No. 231306, June 17, 2019;
Miranda vs. People, G.R. No. 232192, June 22, 2020, Justice
Leonen; People vs. Sumayod, G.R. No. 230626, March 09, 2020,
Justice Leonen)
Accused inserted his penis into the mouth of his foster child,
whose actual age is above 12 years old, but her mental age is 9 years
old. The crime committed is statutory sexual assault. The qualifying
circumstances of minority and guardianship, and mental disability
are present. Since the mental age of the victim is under 12 years,
first proviso Section 5 (b) of RA No. 7610 is applicable. Under this
provision, if the perpetrator had lascivious conduct with a child
exploited in sexual abuse, who is under 12 years old, the former
shall be prosecuted for rape under RPC, which includes qualified
sexual assault. (People v. Pusing, G.R. No. 208009, July 11, 2016,
Justice Leonen)
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Other view: In People vs. Udang, G.R. No. 210161, January 10,
2018, the Supreme Court, Third Division, through Justice Leonen
ruled that offender can be liable for rape and sexual abuse because
they are separate crimes with distinct elements. It seems that
Udang case is a stray decision. The Abay principle is controlling since
it was affirmed by the Supreme Court in several cases such as
People vs. Dahilig, G.R. No. 187083, June 13, 2011; People vs. Matias,
G.R. No. 186469, June 18, 2012; Alberto vs. Hon. Court of Appeals,
G.R. No. 182130, June 19, 2013; People vs. Ejercito, G.R. No.
229861, July
02, 2018; People vs. Jaime, G.R. No. 225332, July 23, 2018; People
vs. Mabalo, G.R. No. 238839, February 27, 2019 and People vs.
Tulugan, supra.
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where the penalty is higher than that prescribed under R.A. No.
11313.
Second: Harassment must be gender-based and sexual in
nature. The streets and public spaces harassment under Safe
Spaces Act must be gender-based and sexual in nature; otherwise,
the harasser is liable for unjust vexation, oral defamation, or any
other crime. For example, Pedro uttered to Jose, who farted while
walking in Jupiter Street, “Putang ina mo, utotero ka, sukdulan ang
kapangitan mo.” This harassment is not sexual and gender-based.
Hence, the crime committed is unjust vexation, and not violation of
the Safe Spaces Act.
Third: Gender based sexual harassment must be committed
in street and public spaces, in the work place, in educational
and training institution or through online. Public spaces refer to
streets and alleys, public parks, schools, buildings, malls, bars,
restaurants, transportation terminals, public markets, spaces used
as evacuation centers, government offices, public utility vehicles as
well as private vehicles covered by app-based transport network
services( e.g., Grab transportation services) and other recreational
spaces such as, but not limited to, cinema halls, theaters and spas.
(Section 3 of R.A. No. 11312)
Sexual harassment in a private place is not punishable under
the Safe Spaces Act. For example, Pedro inside his house uttered to
Maria, his cousin, “Palaki ng palaki wetpu mo, papisil naman.” Since
a private house is not within the contemplation of the word “public
spaces” under R.A. No. 11313, the crime committed is unjust
vexation, and not gender-based streets and public spaces sexual
harassment.
The offender in sexual harassment under RA No. 7877has
authority, influence or moral ascendancy over victim in a work,
training, or education environment. If an employee sexually
harasses another employee, but the former has no authority,
influence or ascendency over the latter, this is not sexual
harassment under RA No. 7877. But the harassment constitutes
gender-based public spaces or online sexual harassment under R.A.
No. 11313 (Safe Spaces Act) or any other crime. Under R.A. No.
11313, the crime of gender-based sexual harassment may also be
committed between peers and those committed to a superior officer
by a subordinate, or to a teacher by a student, or to a trainer by a
trainee.
Inadmissible evidence - Any record, photo or video, or copy
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cases laid down in law may be stored for longer periods: Provided,
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PERSONAL INFORMATION
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