By virtue of the rule-making power granted to the Supreme Court emanating from the Constitution together with our

countrys adoption , as the 31st signatory , the United Nations Convention of Human Rights of the Child (Convention) which embodies an all-inclusive affirmation and worldwide recognition of Childrens rights, our Supreme Court promulgated the rule on Examination of the Child Witness (Rule) which acknowledges the special concerns of the Child witnesses that need to be addressed while testifying before the criminal, civil, legislative, or administrative proceeding. (comments from April A. Gerero on the Justice Oscar Herreras book on COMMENTS ON THE RULE ON EXAMINATION OF A CHILD WITNESS) Before the passing the Convention on the Rights of the Child, the same commentator quoted Justice Puno on the the doctrine of Best Interest of the Child enshrined in its reform initiatives for children The standard of best interest of the child in the system of adjudication for youthful offenders can be sustained by doctrine of parens patriae, or the important duty of the government to act for the State as guardian of the rights of the people. The aforementioned author also identified the five important laws that were created in relation with the thrust of the said convention namely: a. Republic Act No. 7610 (Act providing for a strong deterrence and Special Protection against Child Abuse ,Exploitation, And for Other Purposes) b. Presidential Decree No. 603 (Child and Youth Welfare Code) c. Republic Act No. 9262 (VAWC) d.Republic Act No. 9344 (Act establishing A Comprehensive Juvenile Justice and Welfare System ) e. Republic Act No. 8369 (Act establishing Family Courts , Granting them Exclusive Original Jurisdiction Over The Child And Family Cases, Amending Batas Pambansa 129) Rules on the Examination of a Child Witness Our group would like to show the salient and important provision from the Rules on the Examination of a Child Witness and these are the following: DATE OF EFFECTIVITY: Rule shall take effect on December 15, 2000 following its publication in two (2) newspapers of general circulation. Sec.1 APPLICABILITY Unless otherwise provided , this rule shall govern the examination of child witnesses who are: 1. VICTIMS of a Crime 2. ACCUSED of a Crime 3. WITNESS to Crime. Sec.2 OBJECTIVES Applies in ALL criminal proceedings and non-criminal proceedings involving child witnesses.

1. create and maintain an environment that will allow children to give reliable and complete evidence. 2.minimize trauma to children 3. encourage children to testify in legal proceedings 4. facilitate the ascertainment of truth. Sec. 3 CONSTRUCTION OF THE RULE Liberally construed to uphold the best interests of the child and to promote maximum accommodation of the child witness without prejudice to the constitutional rights of the accused. Sec.4 DEFINITIONS A. Child Witness: any person who at the time of giving testimony is below the age of eighteen (18) years *In child abuse cases: a child includes one over eighteen (18) years but is found by the court as unable to fully take care of himself or protect himself from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability or condition. B.Child abuse : physical, psychological or sexual abuse and criminal neglect as defined in Republic Act No. 7610 and other related laws. C. Facilitator: means a person appointed by the court to pose questions to a child. D. Record regarding a child or record: any photograph, videotape, audiotape, film, handwriting, typewriting, printing, electronic recording, computer data or printout, or other memorialization including any court document, pleading, or any copy or reproduction of any of the foregoing, that contains the name, description, address, school or any other personal identifying information about a child or his family and that is produced or maintained by a public agency, private agency or individual. E. Guardian ad litem: a person appointed by the court where the case is pending for a child who is a victim of, accused of, or a witness to a crime to protect the best interests of the said child. F. Support person: a person chosen by the child to accompany him to testify at or attend a judicial proceeding or deposition to provide emotional support for him. G. Best interests of the child: the totality of the circumstances and conditions as are most congenial to the survival, protection, and feelings of security of the child and most encouraging to his physical, psychological, and emotional development. It also means the least detrimental available alternative for safeguarding the growth and development of the child. H. Developmental level: refers to the specific growth phase in which most individuals are expected to behave and function in relation to the advancement of their physical, socio-emotional, cognitive, and moral abilities.

I. In-depth investigative interview or disclosure interview: inquiry or proceeding conducted by duly trained members of a multi-disciplinary team or representatives of law enforcement or child protective services for the purpose of determining whether child abuse has been committed. Sec.5 (a) Guardian ad litem (Who appoints and How appointment is made?) Who? The court may appoint a guardian ad litem for a child who is a victim of, accused of, or a witness to a crime to promote the best interests of the child How? In making the appointment, the court shall consider a. the background of the guardian ad litem b. his familiarity with the judicial process, social service programs, and child development, giving preference to the parents of the child, if qualified. *The guardian ad litem may be a member of the Philippine Bar However, A person who is a witness in any proceeding involving the child cannot be appointed as a guardian ad litem. What shall he do? Sec. 5 (b) (1) shall attend all interviews, depositions, hearings, and trial proceedings in which a child participates; (2) shall make recommendations to the court concerning the welfare of the child; (3) shall have access to all reports, evaluations, and records necessary to effectively advocate for the child, except privileged communications; (4) shall marshal and coordinate the delivery of resources and special services to the child; (5) shall explain, in language understandable to the child, all legal proceedings, including police investigations, in which the child is involved; (6) shall assist the child and his family in coping with the emotional effects of crime and subsequent criminal or non-criminal proceedings in which the child is involved; (7) may remain with the child while the child waits to testify; (8) may interview witnesses; and (9) may request additional examinations by medical or mental health professionals if there is a compelling need therefor. (c ) The guardian ad litem shall be notified of all proceedings but shall not participate in the trial. However, he may file motions pursuant to Sections 9, 10, 25, 26, 27 and 31(c). Sec. 9. Interpreter for child.

Sec. 10. Facilitator to pose questions to child. Sec. 25. Live-link television testimony in criminal cases where the child is a victim or a witness. Sec. 26. Screens, one-way mirrors, and other devices to shield child from accused. Sec. 31. Protection of privacy and safety. (b) Protective order. Any videotape or audiotape of a child that is part of the court record shall be under a protective order that provides as follows: If the guardian ad litem is a lawyer, he may object during trial that questions asked of the child are not appropriate to his developmental level. (d) The guardian ad litem may communicate concerns regarding the child to the court through an officer of the court designated for that purpose. (e) The guardian ad litem shall not testify in any proceeding concerning any information, statement, or opinion received from the child in the course of serving as a guardian ad litem, unless the court finds it necessary to promote the best interests of the child. (f) The guardian ad litem shall be presumed to have acted in good faith in compliance with his duties described in Sub-section (b). Sec. 6. Competency: Every child is presumed qualified to be a witness. However, the court shall conduct a competency examination of a child, motu proprio or on motion of a party, when it finds that substantial doubt exists regarding the ability of the child to perceive, remember, communicate, distinguish truth from falsehood, or appreciate the duty to tell the truth in court. . (a) Proof of necessity: A party seeking a competency examination must present proof of necessity of competency examination. The age of the child by itself is not a sufficient basis for a competency examination. . (b) Burden of proof: To rebut the presumption of competence enjoyed by a child, the burden of proof lies on the party challenging his competence. (c) Persons allowed at competency examination: Only the following are allowed to attend a competency examination: (1) The judge and necessary court personnel; (2) The counsel for the parties; (3) The guardian ad litem; (4) One or more support persons for the child; and (5) The defendant, unless the court determines that competence can be fully evaluated in his absence. (d) Conduct of examination: Examination of a child as to his competence shall be conducted only by the judge. Counsel for the parties, however, can submit questions to the judge that he may, in his discretion, ask the child. (e) Developmentally appropriate questions: The questions asked at the competency examination shall be appropriate to the age and developmental level of the child; shall not be related to the issues at trial; and shall focus on the ability of the child to remember, communicate, distinguish between truth and falsehood, and appreciate the duty to testify truthfully. (f) Continuing duty to assess competence: The court has the duty of continuously assessing the competence of the child throughout his testimony.

Sec. 7. Oath or affirmation: Before testifying, a child shall take an oath or affirmation to tell the truth. Sec. 8. Examination of a child witness. The examination of a child witness presented in a hearing or any proceeding shall be done in open court. Unless the witness is incapacitated to speak, or the question calls for a different mode of answer, the answers of the witness shall be given orally. The party who presents a child witness or the guardian ad litem of such child witness may, however, move the court to allow him to testify in the manner provided in this Rule. Sec. 9. Interpreter for child. (a) When a child does not understand the English or Filipino language or is unable to communicate in said languages due to his developmental level, fear, shyness, disability, or other similar reason, an interpreter whom the child can understand and who understands the child may be appointed by the court, motu proprio or upon motion, to interpret for the child. (b) If a witness or member of the family of the child is the only person who can serve as an interpreter for the child, he shall not be disqualified and may serve as the interpreter of the child. The interpreter, however, who is also a witness, shall testify ahead of the child. (c) An interpreter shall take an oath or affirmation to make a true and accurate interpretation. Sec. 10. Facilitator to pose questions to child. (a) The court may, motu proprio or upon motion, appoint a facilitator if it determines that the child is unable to understand or respond to questions asked. The facilitator may be a child psychologist, psychiatrist, social worker, guidance counselor, teacher, religious leader, parent, or relative. (b) If the court appoints a facilitator, the respective counsels for the parties shall pose questions to the child only through the facilitator. The questions shall either be in the words used by counsel or, if the child is not likely to understand the same, in words that are comprehensible to the child and which convey the meaning intended by counsel. (c) The facilitator shall take an oath or affirmation to pose questions to the child according to the meaning intended by counsel. Sec. 11. Support persons: (a) A child testifying at a judicial proceeding or making a deposition shall have the right to be accompanied by one or two persons of his own choosing to provide him emotional support. (1) Both support persons shall remain within the view of the child during his testimony. (2) One of the support persons may accompany the child to the witness stand, provided the support person does not completely obscure the child from the view of the opposing party, judge, or hearing officer. (3) The court may allow the support person to hold the hand of the child or take other appropriate steps to provide emotional support to the child in the course of the proceedings. (4) The court shall instruct the support persons not to prompt, sway, or influence the child during his testimony. (b) If the support person chosen by the child is also a witness, the court may disapprove the choice if it is sufficiently established that the attendance of the support person during the testimony of the child would pose a substantial risk of influencing or affecting the content of the testimony of the child. (c) If the support person who is also a witness is allowed by the court, his testimony shall be presented ahead of the testimony of the child. Sec. 13. Courtroom environment: To create a more comfortable environment for the child, the court may, in its discretion, direct and supervise the location, movement and deportment of all persons in the courtroom including the parties, their counsel, child, witnesses, support persons, guardian ad litem, facilitator, and court personnel. The child may be allowed to testify from a place other than the witness chair. The witness chair or other place from which the child testifies may be turned to facilitate his testimony but the opposing party and his counsel must have a frontal or profile view of the child during the testimony of the child. The witness chair or other place from

which the child testifies may also be rearranged to allow the child to see the opposing party and his counsel, if he chooses to look at them, without turning his body or leaving the witness stand. The judge need not wear his judicial robe. Nothing in this section or any other provision of law, except official in-court identification provisions, shall be construed to require a child to look at the accused. Accommodations for the child under this section need not be supported by a finding of trauma to the child. Sec. 14. Testimony during appropriate hours: The court may order that the testimony of the child should be taken during a time of day when the child is well-rested. Sec. 15. Recess during testimony: The child may be allowed reasonable periods of relief while undergoing direct, cross, re-direct, and re-cross examinations as often as necessary depending on his developmental level. Sec. 16. Testimonial aids: The court shall permit a child to use dolls, anatomically-correct dolls, puppets, drawings, mannequins, or any other appropriate demonstrative device to assist him in his testimony. Sec. 17. Emotional security item: While testifying, a child shall be allowed to have an item of his own choosing such as a blanket, toy, or doll. Sec. 18. Approaching the witness: The court may prohibit a counsel from approaching a child if it appears that the child is fearful of or intimidated by the counsel. Sec. 19. Mode of questioning: The court shall exercise control over the questioning of children so as to (1) facilitate the ascertainment of the truth; (2) ensure that questions are stated in a form appropriate to the developmental level of the child; (3) protect children from harassment or undue embarrassment; and (4) avoid waste of time. The court may allow the child witness to testify in a narrative form. Sec. 20. Leading questions: The court may allow leading questions in all stages of examination of a child if the same will further the interests of justice. Sec. 21. Objections to questions: Objections to questions should be couched in a manner so as not to mislead, confuse, frighten, or intimidate the child. Sec. 22. Corroboration: Corroboration shall not be required of a testimony of a child. His testimony, if credible by itself, shall be sufficient to support a finding of fact, conclusion, or judgment subject to the standard of proof required in criminal and non-criminal cases. Sec. 23. Excluding the public: When a child testifies, the court may order the exclusion from the courtroom of all persons, including members of the press, who do not have a direct interest in the case. Such an order may be made to protect the right to privacy of the child or if the court determines on the record that requiring the child to testify in open court would cause psychological harm to him, hinder the ascertainment of truth, or result in his inability to effectively communicate due to embarrassment, fear, or timidity. In making its order, the court shall consider the developmental level of the child, the nature of the crime, the nature of his testimony regarding the crime, his relationship to the accused and to persons attending the trial, his desires, and the interests of his parents or legal guardian. The court may, motu proprio, exclude the public from the courtroom if the evidence to be produced during trial is of such character as to be offensive to decency or public morals. The court may also, on motion of the accused, exclude the public from trial, except court personnel and the counsel of the parties. Sec. 28. Hearsay exception in child abuse cases: A statement made by a child describing any act or attempted act of child abuse, not otherwise admissible under the hearsay rule, may be admitted in evidence in any criminal or non-criminal proceeding subject to the following rules:

(a) Before such hearsay statement may be admitted, its proponent shall make known to the adverse party the intention to offer such statement and its particulars to provide him a fair opportunity to object. If the child is available, the court shall, upon motion of the adverse party, require the child to be present at the presentation of the hearsay statement for cross-examination by the adverse party. When the child is unavailable, the fact of such circumstance must be proved by the proponent. (b) In ruling on the admissibility of such hearsay statement, the court shall consider the time, content and circumstances thereof which provide sufficient indicia of reliability. It shall consider the following factors: (1) Whether there is a motive to lie; (2) The general character of the declarant child; (3) Whether more than one person heard the statement; (4) Whether the statement was spontaneous; (5) The timing of the statement and the relationship between the declarant child and witness; (6) Cross-examination could not show the lack of knowledge of the declarant child; (7) The possibility of faulty recollection of the declarant child is remote; and (8) The circumstances surrounding the statement are such that there is no reason to suppose the declarant child misrepresented the involvement of the accused. (c) The child witness shall be considered unavailable under the following situations: (1) Is deceased, suffers from physical infirmity, lack of memory, mental illness, or will be exposed to severe psychological injury; or (2) Is absent from the hearing and the proponent of his statement has been unable to procure his attendance by process or other reasonable means. (d) When the child witness is unavailable, his hearsay testimony shall be admitted only if corroborated by other admissible evidence. Sec. 29. Admissibility of videotaped and audiotaped in-depth investigative or disclosure interviews in child abuse cases: The court may admit videotape and audiotape in-depth investigative or disclosure interviews as evidence, under the following conditions: (a) The child witness is unable to testify in court on grounds and under conditions established under Section 28 (c). (b) The interview of the child was conducted by duly trained members of a multidisciplinary team or representatives of law enforcement or child protective services in situations where child abuse is suspected so as to determine whether child abuse occurred. (c) The party offering the videotape or audiotape must prove that: (1) the videotape or audiotape discloses the identity of all individuals present and at all times includes their images and voices; (2) the statement was not made in response to questioning calculated to lead the child to make a particular statement or is clearly shown to be the statement of the child and not the product of improper suggestion; (3) the videotape and audiotape machine or device was capable of recording testimony; (4) the person operating the device was competent to operate it; (5) the videotape or audiotape is authentic and correct; and (6) it has been duly preserved. The individual conducting the interview of the child shall be available at trial for examination by any party. Before the videotape or audiotape is offered in evidence, all parties shall be afforded an opportunity to view or listen to it and shall be furnished a copy of a written transcript of the proceedings. The fact that an investigative interview is not videotaped or audiotaped as required by this Section shall not by itself constitute a basis to exclude from evidence out-of-court statements or testimony

of the child. It may, however, be considered in determining the reliability of the statements of the child describing abuse. . Sec. 30. Sexual abuse shield rule: (a) Inadmissible evidence. The following evidence is not admissible in any criminal proceeding involving alleged child sexual abuse: (1) Evidence offered to prove that the alleged victim engaged in other sexual behavior; and (2) Evidence offered to prove the sexual predisposition of the alleged victim. (b) Exception. Evidence of specific instances of sexual behavior by the alleged victim to prove that a person other than the accused was the source of semen, injury, or other physical evidence shall be admissible. A party intending to offer such evidence must: (1) File a written motion at least fifteen (15) days before trial, specifically describing the evidence and stating the purpose for which it is offered, unless the court, for good cause, requires a different time for filing or permits filing during trial; and (2) Serve the motion on all parties and the guardian ad litem at least three (3) days before the hearing of the motion. Before admitting such evidence, the court must conduct a hearing in chambers and afford the child, his guardian ad litem, the parties, and their counsel a right to attend and be heard. The motion and the record of the hearing must be sealed and remain under seal and protected by a protective order set forth in Section 31(b). The child shall not be required to testify at the hearing in chambers except with his consent. Sec. 31. Protection of privacy and safety: (a) Confidentiality of records. Any record regarding a child shall be confidential and kept under seal. Except upon written request and order of the court, a record shall only be released to the following: (1) Members of the court staff for administrative use; (2) The prosecuting attorney; (3) Defense counsel; (4) The guardian ad litem; (5) Agents of investigating law enforcement agencies; and (6) Other persons as determined by the court. (b) Protective order. Any videotape or audiotape of a child that is part of the court record shall be under a protective order that provides as follows: (1) Tapes may be viewed only by parties, their counsel, their expert witness, and the guardian ad litem. (2) No tape, or any portion thereof, shall be divulged by any person mentioned in Sub-section (a) to any other person, except as necessary for the trial. (3) No person shall be granted access to the tape, its transcription or any part thereof unless he signs a written affirmation that he has received and read a copy of the protective order; that he submits to the jurisdiction of the court with respect to the protective order; and that in case of violation thereof, he will be subject to the contempt power of the court. (4) Each of the tape cassettes and transcripts thereof made available to the parties, their counsel, and respective agents shall bear the following cautionary notice:

This object or document and the contents thereof are subject to a protective order issued by the court in (case title), (case number). They shall not be examined, inspected, read, viewed, or copied by any person, or disclosed to any person, except as provided in the protective order. No additional copies of the tape or any of its portion shall be made, given, sold, or shown to any person without prior court order. Any person violating such protective order is subject to the contempt power of the court and other penalties prescribed by law. (5) No tape shall be given, loaned, sold, or shown to any person except as ordered by the court. (6) Within thirty (30) days from receipt, all copies of the tape and any transcripts thereof shall be returned to the clerk of court for safekeeping unless the period is extended by the court on motion of a party. (7) This protective order shall remain in full force and effect until further order of the court. (c) Additional protective orders. The court may, motu proprio or on motion of any party, the child, his parents, legal guardian, or the guardianad litem, issue additional orders to protect the privacy of the child. (d) Publication of identity contemptuous. Whoever publishes or causes to be published in any format the name, address, telephone number, school, or other identifying information of a child who is or is alleged to be a victim or accused of a crime or a witness thereof, or an immediate family of the child shall be liable to the contempt power of the court. (e) Physical safety of child; exclusion of evidence. A child has a right at any court proceeding not to testify regarding personal identifying information, including his name, address, telephone number, school, and other information that could endanger his physical safety or his family. The court may, however, require the child to testify regarding personal identifying information in the interest of justice. (f) Destruction of videotapes and audiotapes. Any videotape or audiotape of a child produced under the provisions of this Rule or otherwise made part of the court record shall be destroyed after five (5) years have elapsed from the date of entry of judgment. (g) Records of youthful offender. Where a youthful offender has been charged before any city or provincial prosecutor or before any municipal judge and the charges have been ordered dropped, all the records of the case shall be considered as privileged and may not be disclosed directly or indirectly to anyone for any purpose whatsoever. Where a youthful offender has been charged and the court acquits him, or dismisses the case or commits him to an institution and subsequently releases him pursuant to Chapter 3 of P. D. No. 603, all the records of his case shall also be considered as privileged and may not be disclosed directly or indirectly to anyone except to determine if a defendant may have his sentence suspended under Article 192 of P. D. No. 603 or if he may be granted probation under the provisions of P. D. No. 968 or to enforce his civil liability, if said liability has been imposed in the criminal action. The youthful offender concerned shall not be held under any provision of law to be guilty of perjury or of concealment or misrepresentation by reason of his failure to acknowledge the case or recite any fact related thereto in response to any inquiry made to him for any purpose. Given the rules and procedures to ensure the protection of a child witness and the importance of their role in pursuit of personal and public justice, there is not much statistics that can be gathered regarding the application of the abovementioned rule except from a study entitled An Interdisciplinary Analysis of Philippine Jurisprudence on Child Sexual Abuse, Adhikain Para sa Karapatang Pambata-Ateneo Human Rights Center; United Nations Childrens Fund Philippines. The study looks at decided Philippine Supreme Court cases on child sexual abuse and takes on an interdisciplinary approach.. it examines the changing discourses that have affected the interpretation of the law such as the relationship between the societal mores and the law, the institutional bases for interpreting the law such as the family and the State, and the relationship of the child within the family and the community and from where we gathered data about the

incidents that the court, prosecutor and opposing counsel of the defense exhibited cases of sensitivity for the child witness.

Cases showing trial or proceedings Court exhibited sensitivity Prosecutor exhibited sensitivity Opposing Counsel exhibited sensitivity No indication of sensitivity

Rape 85 10 4 134

Abduction

Seduction

Act of Lasciviousness

*primary source of said study was taken from Supreme court decided cases from 1901 to 1998 on rape, seduction and acts of lasciviousness.Transcripts of court records have not been included; only the final decisions promulgated by said court are made the basis of the study. A total number of 489 cases were surveyed, out of which a representative sampling of cases were chosen for further analysis. We also derived from the same study the possible psychological effects that children victims have suffered and we deem to hold such importance such as: 1. They may become fearful and lose their appetite (People vs. Melivo, G.R. No. 113029, February 8, 1996; People vs. Mangalino G.R. No. 79011, February 15, 1990; People vs. Garcines, G.R. No. L-32321, June 28, 1974) 2. Some may become pensive, stop playing with other children and stop tidying herself (People vs. Garcines)

3. sexually abused children view their experience as overwhelmingly sad and painful, irrevocably damaged by the experience. They felt angry and betrayed. (Carandang study,1996) Additional information from the research paper includes victims reaction to sexual abuse that is also worth noting. (Kendall-Tacket, Williams & Finkhor, 1993 as cited in Papalia & Olds, 1998) Table 1: Developmentally Related Reactions To Sexual Abuse Age Preschool (3-6 yrs.) Most Common Symptoms Anxiety Nightmares

School-age children (7 - 12 yrs.)

Fear Mental illness Aggression Nightmares School problems Hyperactivity Depression Withdrawn, suicidal or self-injurious behaviors Physical complaints Illegal acts Running away Substance abuse

Adolescents (13 - 20 yrs.)