Men Can Now File Rape Case

            R.A. 8353 (The Anti-Rape Law of 1997) has made essential amendments to  the provisions of the Revised Penal Code, to wit: 

1. The crime of Rape is no longer a crime against chastity but is now a crime against persons like Murder, Homicide, Physical Injuries where anybody can  initiate the  criminal action  in behalf of the offended party.

2. The crime of Rape can now be committed by a male or a female.  But when and how???

            The said law was incorporated to the Revised Penal Code as Article 266-A & 266-B (homosexual should be aware of this):
  

1.)    An act of  sexual assault  by inserting his penis into ANOTHER person’s mouth or anal orifice; or

2.)    An act of  sexual assault by inserting any instrument or object into the genital or anal orifice of  ANOTHER person.

    

    under any of the following circumstances:

 a)     Through force, threat, or intimidation;

      b)    When the offended party is deprived of reason or otherwise  unconscious;

      c)     By means of fraudulent machination or grave abuse of authority;

RELATED ARTICLE:

Statutory Rape

Sexual Harrasment    

      

  

Do you fear imprisonment for non-payment of Credit Card?

Thank God I have never had a credit card. Spending with cash motivates me strongly to budget my money wisely and to abide by “No Debt” rule (well of course every rule has an exception).

Two persons asked me this morning if they can be imprisoned for non-payment of their balance in the credit card.

It depends.

The outstanding balance on credit cards is considered debt since the relationship between a credit card provider and its card holders is that of creditor-debtor, with the card company as the creditor extending loans and credit to the card holder, who as debtor is obliged to repay the creditor (Polo S. Pantaleon vs. American Express International, Inc.; G.R. No. 174269). In case of non-payment, the debtor generally incurs only civil liability. Further, every credit card holder is entitled to the provision of Bill of rights that “No person shall be imprisoned for debt or non-payment of a poll tax.”

The non-payment however would give rise to criminal liability if there is “deceit with intent to defraud” on the part of the delinquent credit card holder. Consequently, he can be held liable for estafa which carries the penalty of imprisonment. It is stemmed from the provisions of R.A NO. 8484 – Access Devices Regulation Act of 1998 (Sec. 14 (f ) par. 2) that:

“A cardholder who abandons or surreptitiously leaves the place of employment, business or residence stated in his application or credit card, without informing the credit card company of the place where he could actually be found, if at the time of such abandonment or surreptitious leaving, the outstanding and unpaid balance is past due for at least ninety (90) days and is more than Ten thousand pesos (P10,000.00), shall be prima facie presumed to have used his credit card with intent to defraud.”

Non-payment of debt will also establish a bad credit reputation. Chances are, you may find it difficult to acquire a loan that is an absolute necessity such as car loan, housing loan, etc.

So you better pay off your debts to save you from anxieties, harassing phone calls, court litigation and unnecessary inconvenience, stress and expenses.

The way of the superior person is threefold;
VIRTUOUS, they are free from anxieties;
WISE, they are free from perplexities; and
BOLD, they are free from fear’

- Confucius -

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Warren Buffet's (and Lorille’s) Advice to Young People

Bouncing Checks Law (B.P. 22)

Is Money-Saving tantamount to the love of money?

Abortion vs. Infanticide

please don't kill me....

Under articles 40 and 41 of the New Civil Code, birth determines personality but the fetus shall be considered born for all purposes that are FAVORABLE to it, provided it is alive at the time the umbilical cord is cut. However, if the fetus had an intra-uterine life of LESS than 7 months, it is not deemed born if it dies within 24 hours after its complete delivery from the maternal womb.

When the fetus is killed in the uterus or expelled from the womb by any person through the use of violence or administering drugs/beverages, the crime of Abortion under the Revised Penal Code is committed.

The woman shall be liable when she shall practice it upon herself or she consented to the abortion caused on her to conceal her dishonor.

Whereas Infanticide is the killing of any child LESS than three (3) DAYS of age. If the accused happens to be the father or mother or legitimate grandparents, the penalty corresponding to parricide (Art. 246) which is reclusion perpetua to DEATH shall be imposed upon him or her. But since the death penalty was abolished under R.A. 9346 pursuant to the mandate of the 1987 Constitution, thus the applicable penalty is only reclusion perpetua and not death. However, if the crime is committed by the mother or maternal grandparents for the purpose of concealing her dishonor, the penalty is mitigated to reclusion temporal.

If the infanticide is committed by other person, he shall suffer the penalty for murder (Art. 248) which is reclusion perpetua – 20 years and 1 day to 40 years.

RELATED ARTICLE:

Mary and Elizabeth: The Christmas Story and the Value of Human Life

Bouncing Checks Law (B.P. 22)

Psalm 5:6

“You destroy those who tell lies; 

bloodthirsty and deceitful men the LORD abhors.”

Psalm 101:7

“No one who practices deceit will dwell in my house; 

no one who speaks falsely will stand in my presence.”

        A check bounces either because there is not enough money or credit in a bank to cover its amount, as in DAIF (drawn against insufficient funds check), NSF (non-sufficient funds check) and closed account.

         Batas Pambasa Blg. 22 punishes any person who, KNOWING at the time he issues a check in payment of obligation that he does not have sufficient funds or credit with the drawee bank. The gravamen of this special penal law is the issuance of check, not the non-payment of the obligation. (Lozano vs. Martinez, 146 SCRA 323). Checks form part of the banking system for being substitutes for money. Hence, BP Blg. 22 is neither violative of the constitutional provision against imprisonment of non-payment of debt nor the non-impairment clause.

 

        In the case of Que vs. People, the Supreme Court settled that B.P.22 applies even in cases where the dishonored checks were issued merely in the form of a DEPOSIT or a GUARANTY and not as actual payment. The law does not make any distinction. Criminal liability attaches to the drawer of the check whether it was issued in payment of an obligation or merely to guarantee the said obligation.  PRESCRIPTION, which is the termination of the right to prosecute is a defense in B.P. 22. The lapse of four (4) years AFTER the expiration of the five (5) banking days from notice of dishonor is the prescriptive period for filing bounced check case.

 

            Whereas, if a person, at the time the check was issued, had the intention of stopping payment of check, shall be guilty of estafa under the Revised Penal Code. In estafa, the issuance of a post-dated or check without funds is intended to defraud and to cause damage to the payee.

 

            Deceit is an element of estafa while the same is not required in BP Blg. 22.  A person therefore, who issues a check in payment of an obligation can be held liable at the same time for violation of B.P. 22 and estafa under Article 315, par. 2 (d) of the Revised Penal Code.  Foreign checks, provided either they are drawn and issued in the Philippines, though payable outside, are within the coverage of the law. (De Villa vs. CA, 195 SCRA 722).

 

            The signatory/ies are the ones liable under the law whether the bounced check is issued by natural or juridical person because the corporation cannot be subject to arrest and criminal liability.

Theft vs. Robbery

Living (by myself most of the time) in the hustling and bustling Metro Manila for 20 years now can become tiresome yet still a very good place in the Philippines to pursue my career in law.

There are 2 crime incidences I have personally encountered here. Both are crimes against property which are rampant nowadays. First is when my bag containing ten thousand cash intended for my tuition fee was snatched five years ago.

Then, last Saturday, a holdup man pointed a gun at me inside the jeepney at 2 o’clock in the afternoon and took away my bag. Good thing, my wallet had 7 coins only because I was supposed to withdraw yet from an ATM Machine and my cell phone was just a cheap, camera-less Nokia phone. When I had gotten home, I remembered the scripture: “Give thanks in all circumstances……” (1 Thessalonians 5:18)

The first incidence is a crime of THEFT (Art. 308, Revised Penal Code). It is committed by any person who, with intent to gain but WITHOUT violence against, or intimidation of persons or force upon things, shall take personal property of another without the latter’s consent. Theft is consummated when the offender had full possession of the thing, even if he did not have an opportunity to dispose of the same.

The second one is a crime of ROBBERY (Art. 293, RPC). What distinguishes Robbery from theft is that in robbery, the taking of personal property is by means of violence against, or intimidation of any person just like the pointing of a gun at me or force upon things.

If REAL property is occupied or REAL right is usurped by means of violence against, or intimidation of person, the crime is USURPATION. (Art. 312)

Related Article:

Who are the Persons Criminally Liable?

Statutory Rape

Law school memories flash through my mind whenever I encounter a statutory rape case. My group mates persuaded me to play the role of a victim of a statutory rape in our Trial Practice course because of my youthful look.  Way back in college, nene (child) is my usual role in most theater production. Sometimes, I try to figure out whether it is a compliment or simply a sarcasm.   It reminds me to ponder Psalm 139:

¹³ For you created my inmost being;
you knit me together in my mother's womb.

¹⁴ I praise you because I am fearfully and wonderfully made;
your works are wonderful,
I know that full well.

My heart is inundated with lavish gratitude to God at this moment for sparing me from experiencing such kind of heinous crime in real life and for protecting me from committing sexual immorality throughout my entire life.

So what is a Statutory Rape?

A statutory rape is committed by a man who shall have carnal knowledge (sexual intercourse) with a woman who is younger than that statutory age of consent. In the Philippines, UNDER twelve (12) years old is considered to be below the age required to legally consent to the behavior as provided for by Article 266-A of the Revised Penal Code (as amended by R.A. No. 8353) (so now you understand me as to whether it is a compliment or a sarcasm ^_^)

When the offended party is UNDER twelve (12) years of age or demented, Rape is committed even though NONE of the following circumstances are present:

1. through force, threat or intimidation;

2. when the offended party is deprived of reason or is otherwise unconscious;

3. by means of fraudulent machination or grave abuse of authority.

Accordingly, Rape is committed even if the girl UNDER twelve (12) years old is a prostitute.  Further, it is committed although she consented to the sexual act.  The law does not consider that kind of consent voluntary, as the offended party under 12 years old cannot have a will of her own.

  

People of the Philippines vs. Juan dela Cruz

Maybe some of you who are not engaged in the legal world are curious why every criminal case is entitled People of the Philippines vs. Juan dela Cruz or so-and-so. Because an accused does not only offend his victim and the latter’s loved ones but he actually offends the state and its individual. For this reason, the State has the authority, under its police power:

1. to define and punish crimes; and

2. to lay down the rules of criminal procedure.

The accused, being an individual of the state whose interests are to be guarded and protected, is however, afforded the constitutional and statutory rights guaranteed by Article III, Bill of Rights of the 1987 Constitution and section 1, Rule 115 of the Rules of Court.

Constitutional Rights of the Accused: (Article III of the 1987 Constitution)

1. the Right to be Presumed Innocent until proven guilty; (Section 14)

2. the Right to Due Process of Law:

- the right to be heard.

- the right to have a competent and independent counsel/lawyer preferably of his own choice.

3. the Right to be informed of the nature and cause of the accusation against him;

- to have a speedy, impartial and public trial.

4. the Right to meet the witness face to face

5. the Right to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf;

6. Free access to the courts and other quasi-judicial bodies and adequate legal assistance; (section 11)

7. the Right against torture, violence, threat, intimidation or any other means which vitiate his free will; (section 12)

8. the Right to Bail; (Section 13)

9. the Right to a Writ of Habeas Corpus; (Section 15);

10.the Right to a speedy disposition of his case; (Section 16)

11.the Right Against Self-incrimination; (Section 17);

- to exempt from being a witness against himself.

12.the Right Against Excessive Fines/Penalties; (section 19) and

13.the Right Against Double Jeopardy; (section 21)

Satutory Rights: (Section 1, Rule 115 of the Rules of Court)

1. to be Presumed Innocent until the contrary is proved beyond reasonable doubt;

2. to be present and defend himself in person and by counsel at every stage of the proceedings;

3. to be informed of the nature and cause of the accusation against him;

4. to testify as a witness in his own behalf;

5. to exempt from being a witness against himself (the Right Against Self-incrimination;)

6. to confront and cross-examine the witnesses against himself;

7. to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf;

8. to have a speedy and public trial; and

9. to have the right to appeal in all cases authorized by law.

A right which may be waived is the right of the accused to confront and cross-examine the witnesses against himself because it is a personal right. While the right to be informed of the nature and cause of the accusation against him may NOT be waived because it involves public interest which may be affected.

Who are the Persons Criminally Liable?

Sad but true, the victims, his loved ones and society find it impossible to forgive culprits or criminals. That is, of course, the human natural inclination. But God is the God of impossible. He has exhibited his abundant mercy at the cross of Calvary. One of the criminals who hung there with Jesus received the forgiveness and the gift of salvation by believing Him (Luke 23:39-43). Christ has not only paid the price for our own sin but also the sins committed against us. This is the wonder of the cross! So if we desire to have a heart that is ready to forgive, we must begin to look at the cross.

Now putting spirituality aside, under the Revised Penal Code of the Philippines, a person must act with malice/intent or negligence/imprudence to be criminally liable. Suffice it to say, that only natural person can be active subject of crime because of the highly personal nature of criminal responsibility. Therefore, the officers, not the corporation, are the persons who may be held criminally liable.

However, a different degree of responsibility is imposed upon every person criminally liable particularly if a crime is committed by many. In the latter case, they are criminally liable either as: (Art. 16, RPC)

1. Principals;

2. Accomplices;

3. Accessories.

1. Principals

- 3 types of Principals:

a.) Principal by Direct Participation;

b.) Principal by Induction; or

c.) Principal by Indispensable Cooperation.

2. Accomplices

- Persons who cooperate in the execution of the offense by previous or simultaneous acts with the intention of supplying material or moral aid in the execution of the crime. There is however, NO previous agreement or NO conspiracy, only community of design is required, that is, KNOWING the criminal design of the Principal by Direct Participation. Examples:

a.) by previous acts

- lending of a dagger or pistol to the murderer, knowing the latter’s criminal intent.

- the pharmacist, knowing the criminal purpose of the accused in the crime of rape, furnishes him the drug that will put his victim to sleep in order to rape her.

b.) by simultaneous acts

- a person who held the hands of the victim while the Principal by Direct Participation was attacking the victim. Provided, he cooperated without previous agreement or understanding with the principal.

3. Accessories

- Those who, having knowledge of the commission of the crime, he took part subsequent to its commission in any of the following manners:

a.) by profiting themselves or assisting the offender to profit by the effects of the crime.

- a person who received a property from another, and used it, knowing that the same had been stolen.

- In murder, one who shared in the reward given for the commission of the crime.

b.) by concealing or destroying the body of the crime, or the effects or instruments thereof, in order to prevent its discovery.

c.) by harboring, concealing or assisting in the escape of the principal of the crime, provided that:

i) if the accessory is a Public officer:

- with abuse of public functions

- any crime

ii) if Private person;

- the crime committed by the principal is either:

1.) treason,

2.) parricide,

3.) murder,

4.) an attempt to take the life of the President; or

5.) the principal is known to be habitually guilty of some other crime.

If any of said crimes was not committed by the principal, such private person may be held liable for obstruction of justice under P.D. No. 1829.