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Diversion vs Intervention

"Diversion" refers to an alternative, child-appropriate process of determining the responsibility and treatment of
a child in conflict with the law on the basis of his/her social, cultural, economic, psychological or educational
background without resorting to formal court proceedings.

(j) "Diversion Program" refers to the program that the child in conflict with the law is required to undergo after
he/she is found responsible for an offense without resorting to formal court proceedings.

(I) "Intervention" refers to a series of activities which are designed to address issues that caused the child to
commit an offense. It may take the form of an individualized treatment program which may include counseling,
skills training, education, and other activities that will enhance his/her psychological, emotional and psycho-
social well-being.

Child under Juvenile Justice and Welfare Act of 2006

SEC. 5. Rights of the Child in Conflict with the Law. - Every child in conflict with the law shall have the
following rights, including but not limited to:

(a) the right not to be subjected to torture or other cruel, inhuman or degrading treatment or
punishment;

(b) the right not to be imposed a sentence of capital punishment or life imprisonment, without the
possibility of release;

(c) the right not to be deprived, unlawfully or arbitrarily, of his/her liberty; detention or imprisonment
being a disposition of last resort, and which shall be for the shortest appropriate period of time;

(d) the right to be treated with humanity and respect, for the inherent dignity of the person, and in a
manner which takes into account the needs of a person of his/her age. In particular, a child deprived of
liberty shall be separated from adult offenders at all times. No child shall be detained together with adult
offenders. He/She shall be conveyed separately to or from court. He/She shall await hearing of his/her
own case in a separate holding area. A child in conflict with the law shall have the right to maintain
contact with his/her family through correspondence and visits, save in exceptional circumstances;

(e) the right to prompt access to legal and other appropriate assistance, as well as the right to
challenge the legality of the deprivation of his/her liberty before a court or other competent, independent
and impartial authority, and to a prompt decision on such action;

(f) the right to bail and recognizance, in appropriate cases;

(g) the right to testify as a witness in hid/her own behalf under the rule on examination of a child
witness;

(h) the right to have his/her privacy respected fully at all stages of the proceedings;

(i) the right to diversion if he/she is qualified and voluntarily avails of the same;

(j) the right to be imposed a judgment in proportion to the gravity of the offense where his/her best
interest, the rights of the victim and the needs of society are all taken into consideration by the court,
under the principle of restorative justice;

(k) the right to have restrictions on his/her personal liberty limited to the minimum, and where discretion
is given by law to the judge to determine whether to impose fine or imprisonment, the imposition of fine
being preferred as the more appropriate penalty;

(I) in general, the right to automatic suspension of sentence;

(m) the right to probation as an alternative to imprisonment, if qualified under the Probation Law;

(n) the right to be free from liability for perjury, concealment or misrepresentation; and

(o) other rights as provided for under existing laws, rules and regulations.
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The State further adopts the provisions of the United Nations Standard Minimum Rules for the Administration
of Juvenile Justice or "Beijing Rules", United Nations Guidelines for the Prevention of Juvenile Delinquency or
the "Riyadh Guidelines", and the United Nations Rules for the Protection of Juveniles Deprived of Liberty.

SEC. 6. Minimum Age of Criminal Responsibility. - A child fifteen (15) years of age or under at the time of
the commission of the offense shall be exempt from criminal liability. However, the child shall be subjected to
an intervention program pursuant to Section 20 of this Act.

A child above fifteen (15) years but below eighteen (18) years of age shall likewise be exempt from criminal
liability and be subjected to an intervention program, unless he/she has acted with discernment, in which case,
such child shall be subjected to the appropriate proceedings in accordance with this Act.

The exemption from criminal liability herein established does not include exemption from civil liability, which
shall be enforced in accordance with existing laws.

SEC. 7. Determination ofAge. - The child in conflict with the law shall enjoy the presumption of minority.
He/She shall enjoy all the rights of a child in conflict with the law until he/she is proven to be eighteen (18)
years old or older. The age of a child may be determined from the child's birth certificate, baptismal certificate
or any other pertinent documents. In the absence of these documents, age may be based on information from
the child himself/herself, testimonies of other persons, the physical appearance of the child and other relevant
evidence. In case of doubt as to the age of the child, it shall be resolved in his/her favor.

Any person contesting the age of the child in conflict with the law prior to the filing of the information in any
appropriate court may file a case in a summary proceeding for the determination of age before the Family
Court which shall decide the case within twenty-four (24) hours from receipt of the appropriate pleadings of all
interested parties.

If a case has been fiied against the child in conflict with the law and is pending in the appropriate court, the
person shall file a motion to determine the age of the child in the same court where the case is pending.
Pending hearing on the said motion, proceedings on the main case shall be suspended.

In all proceedings, law enforcement officers, prosecutors, judges and other government officials concerned
shall exert all efforts at determining the age of the child in conflict with the law.

Probation vs Parole

Probation and parole are both alternatives to incarceration. However, probation occurs prior to and often
instead of jail or prison time, while parole is an early release from prison. In both probation and parole, the
party is supervised and expected to follow certain rules and guidelines. These guidelines are called conditions
of parole, or probation conditions, and in both circumstances, the party is expected to submit to warrantless
searches, without probable cause.

Probation refers to a period of time before a person is actually sent to prison or jail. When defendants receive
probation, instead of pronouncing the sentence and sending them straight to prison or jail, the judge gives
them an opportunity to show that they want to rehabilitate themselves. In this case, either the party is given
probation without a pre-determined sentence, or the judge will find the defendant guilty, and temporarily
suspend the sentence while the defendant is on probation. If defendants do everything the judge instructs them
to do, then they will not be sent to prison to finish their sentence or given a new sentence based on the
probation violation and initial crime.

Conditions of Probation
Even though the person is not in jail, they may be subject to many of the same conditions of serving time in jail
including curfew rules, requirements to participate in rehab programs, and monthly or more frequent drug
testing by urinalysis. While on probation, a defendant can be ordered to pay a fine, court costs, restitution, and
any court appointed attorney fees.
The length of time that a person is on probation can range from one year to up to ten years. Many states will
cap the length of time that a person can remain on probation.

Probation is managed by a probation officer. The probation officer monitors a defendants progress and file
reports with the judge, advising them of any failure to abide by probation terms or conditions. If the judge is not
happy with a defendants performance, the judge can order a capias to be issued and require a defendant to
be returned to his court for final sentencing. After sentencing, a defendant is ordered to serve actual time in
prison. If the defendant had a suspended prison term, he is usually sent straight to prison to serve his time.

Parole
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Parole refers to the period of time after a defendant is released from prison. A defendant on parole will face
many of the same controls or safeguards as probation. Conditions of parole may include requiring a defendant
to stay in a halfway house and continuing with payments on fines and other financial obligations.

Instead of a probation officer, a defendant on parole usually reports to a parole officer. The parole
officer explains the rules of parole and expectations of a party on parole to the defendant and monitors his
progress. As with a regular probation, if a defendant fails to comply with his parole conditions, then the parole
officer could file a report with the parole board. The parole board may, based on the defendant's behavior while
on parole, order the defendant returned to prison to finish the balance of his sentence.

Probation and Parole Differences


The functions of the probation and parole process tend to be very similar. Both are concerned with a defendant
breaking the bad habits or behaviors that caused them to break the law. Even though both probation and
parole have a strong rehabilitation component, each process has the additional goal of protecting the
community.

Parole has the additional function of trying to reintegrate a defendant into society. Depending on the nature of
a defendants offense, a defendants conditions of probation or parole can be amended or changed. For
example, if a defendant is convicted of molesting a child, a defendant may be ordered to stay away from parks
and playgrounds where children frequent.

The conditions of both parole and probation must somehow relate to a defendants rehabilitation or underlying
offense. How conditions are set depend on whether a defendant is on probation or parole. A defendant on
probation is usually still subject to the jurisdiction of the court. This means the judge has the right to amend or
modify a defendants conditions of probation. Any changes usually come in the form of an order that modifies a
defendants conditions.

Parole changes are not usually the result of a court order. Instead, parole conditions are usually set by the
parole board, and they are for all defendants. For example, all defendants are banned from committing new
offenses. Changes in conditions or procedures related to those conditions do not come from the original judge,
but instead come from the parole officer or parole board. Instead of criminal proceeding, these changes are
referred to as administrative proceedings. This is an important distinction, because a defendant is afforded
more state and constitutional protections in a criminal case than an administrative hearing.

Consequences of a Parole Violation


If a defendant fails to comply with his parole conditions, he could be brought before the parole board to decide
on appropriate consequences. The Board can revoke a defendants parole and order the defendant returned to
prison to finish his sentence. The Board can also reinstate a defendant on parole and then allow him to
continue on parole. A defendant doesnt have the option of a jury trial. Unlike probation, the cap on parole
tends to follow the sentence. For example, if a defendant is sentenced to thirty years in prison, then a
defendant can be on and off parole for up to thirty years.

Departments that Handle Parole and Probation


A defendant on probation or parole should maintain a good relationship with his probation or parole officer.
Some states will divide their functions into separate divisions including the Parole Department and the
Probation Department. Other states will combine the functions into one office. In Louisiana, for example, a
defendant could be on probation, get revoked, go to prison, get released and potentially have the same person
who managed his probation managing his parole. On the other hand, in the state of Texas, the agencies are
split and a defendant will have one officer while on probation, and report to a completely different officer for
parole.

Protecting Your Rights


Most people are very concerned about having good representation when they are first facing a criminal charge.
This is a valid concern. However, most states provide several state and constitutional protections to ensure
that a defendant receives due process. Defendants should use as much diligence in procuring good counsel to
assist with parole issues as they did with the initial crime. Part of the reason for this is that the constitutional
procedures and protections tend to be much lower in parole revocation situations because they are more
administrative in nature. When there are less built in protections, a defendant needs external protections the
most.

Probation
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- As system of tutelage under the supervision and control of the court which has jurisdiction over the
convicted defendant, has the record of his conviction and sentence, the records and reports as to his
compliance with the conditions of his probation, and the aid of the local probation officer, under whose
supervision the defendant is placed. It consists of the conditional suspenmsion of punishment while the
offender is place under personal supervison and is given individual guidance or treatment.
- A disposition under which a defendant after conviction and sentence, si released subject ot conditions
imposed by the court and to the supervison of a probation officer.

Nature of Granting of Probation

- An order placing defendant on probation is not a sentence but rather in effect a suspension of the imposition of
sentence. It is not a final judgment but rather an interlocutory judgment in the nature of a conditional order
placing the convicted defendant under the supervision of the court for his reformation, to be followed by a final
judgment of discharge, if the conditions of the probation are complied with, or by a final judgment of sentence if
the conditions are violated

RA 7610: Special Protection of Children Against Abuse, Exploitation and Discrimination Act."

(a) "Children" refers to person below eighteen (18) years of age or those over but are unable to fully take care
of themselves or protect themselves from abuse, neglect, cruelty, exploitation or discrimination because of a
physical or mental disability or condition;

(b) "Child abuse" refers to the maltreatment, whether habitual or not, of the child which includes any of the
following:

(1) Psychological and physical abuse, neglect, cruelty, sexual abuse and emotional maltreatment;

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

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

(4) Failure to immediately give medical treatment to an injured child resulting in serious impairment of
his growth and development or in his permanent incapacity or death.

(c) "Circumstances which gravely threaten or endanger the survival and normal development of children"
include, but are not limited to, the following;

(1) Being in a community where there is armed conflict or being affected by armed conflict-related
activities;

(2) Working under conditions hazardous to life, safety and normal which unduly interfere with their
normal development;

(3) Living in or fending for themselves in the streets of urban or rural areas without the care of parents
or a guardian or basic services needed for a good quality of life;

(4) Being a member of a indigenous cultural community and/or living under conditions of extreme
poverty or in an area which is underdeveloped and/or lacks or has inadequate access to basic services
needed for a good quality of life;

(5) Being a victim of a man-made or natural disaster or calamity; or

(6) Circumstances analogous to those abovestated which endanger the life, safety or normal
development of children.

(d) "Comprehensive program against child abuse, exploitation and discrimination" refers to the coordinated
program of services and facilities to protected children against:

(1) Child Prostitution and other sexual abuse;


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(2) Child trafficking;

(3) Obscene publications and indecent shows;

(4) Other acts of abuses; and

(5) Circumstances which threaten or endanger the survival and normal development of
children.1awphi1

Sweetheart defense

In rape, the "sweetheart" defense must be proven by compelling evidence: first, that the accused and the
victim were lovers; and, second, that she consented to the alleged sexual relations. The second is as important
as the first, because this Court has held often enough that love is not a license for lust. (G.R. No. 140278 June
3, 2004 PEOPLE OF THE PHILIPPINES vs.SONNY BAUTISTA y LACANILAO)

REPUBLIC ACT No. 10364 (AN ACT EXPANDING REPUBLIC ACT NO. 9208) "AN ACT TO INSTITUTE
POLICIES TO ELIMINATE TRAFFICKING IN PERSONS ESPECIALLY WOMEN AND CHILDREN,
ESTABLISHING THE NECESSARY INSTITUTIONAL MECHANISMS FOR THE PROTECTION AND
SUPPORT OF TRAFFICKED PERSONS, PROVIDING PENALTIES FOR ITS VIOLATIONS AND FOR
OTHER PURPOSES"

"(a) Trafficking in Persons refers to the recruitment, obtaining, hiring, providing, offering, transportation,
transfer, maintaining, harboring, or receipt of persons with or without the victims consent or knowledge, within
or across national borders by means of threat, or use of force, or other forms of coercion, abduction, fraud,
deception, abuse of power or of position, taking advantage of the vulnerability of the person, or, the giving or
receiving of payments or benefits to achieve the consent of a person having control over another person for the
purpose of exploitation which includes at a minimum, the exploitation or the prostitution of others or other forms
of sexual exploitation, forced labor or services, slavery, servitude or the removal or sale of organs.

"The recruitment, transportation, transfer, harboring, adoption or receipt of a child for the purpose of
exploitation or when the adoption is induced by any form of consideration for exploitative purposes shall also
be considered as trafficking in persons even if it does not involve any of the means set forth in the preceding
paragraph.

"(b) Child refers to a person below eighteen (18) years of age or one who is over eighteen (18) but is unable
to fully take care of or protect himself/herself from abuse, neglect, cruelty, exploitation, or discrimination
because of a physical or mental disability or condition.

Republic Act No. 9775 AN ACT DEFINING THE CRIME OF CHILD PORNOGRAPHY, PRESCRIBING
PENALTIES THEREFOR AND FOR OTHER PURPOSES

(a) "Child" refers to a person below eighteen (18) years of age or over, but is unable to fully take care of
himself/herself from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental
disability or condition.

For the purpose of this Act, a child shall also refer to:

(1) a person regardless of age who is presented, depicted or portrayed as a child as defined herein;
and

(2) computer-generated, digitally or manually crafted images or graphics of a person who is


represented or who is made to appear to be a child as defined herein.

(b) "Child pornography" refers to any representation, whether visual, audio, or written combination thereof, by
electronic, mechanical, digital, optical, magnetic or any other means, of child engaged or involved in real or
simulated explicit sexual activities.

(c) "Explicit Sexual Activity" includes actual or simulated -

(1) As to form:

(i) sexual intercourse or lascivious act including, but not limited to, contact involving genital to genital,
oral to genital, anal to genital, or oral to anal, whether between persons of the same or opposite sex;
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(2) bestiality;

(3) masturbation;

(4) sadistic or masochistic abuse;

(5) lascivious exhibition of the genitals, buttocks, breasts, pubic area and/or anus; or

(6) use of any object or instrument for lascivious acts

(d) "Internet address" refers to a website, bulletin board service, internet chat room or news group, or any other
internet or shared network protocol address.

(e) "Internet cafe or kiosk" refers to an establishment that offers or proposes to offer services to the public for
the use of its computer/s or computer system for the purpose of accessing the internet, computer games or
related services.

(f) "Internet content host" refers to a person who hosts or who proposes to host internet content in the
Philippines.

(g) "Internet service provider (ISP)" refers to a person or entity that supplies or proposes to supply, an internet
carriage service to the public.

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

(i) "Luring" refers to the act of communicating, by means of a computer system, with a child or someone who
the offender believes to be a child for the purpose of facilitating the commission of sexual activity or production
of any form of child pornography.(2) Bestiality;

(j) "Pandering" refers to the act of offering, advertising, promoting, representing or distributing through any
means any material or purported material that is intended to cause another to believe that the material or
purported material contains any form of child pornography, regardless of the actual content of the material or
purported material.

(k) "Person" refers to any natural or juridical entity.

Elements of Child Pornography:

1. There must be representation of a child


2. That the child is engaged or involved in real or simulated explicit sexual activities;
3. That the representation of the child maybe visual, audio or written form or combination thereof; and
4. That the representation of the chil is by electronic, mechanical, digital, optical, magnetic or any other means

Presumption when an legal aged man enter a hotel with a minor:

The 2003 AntiTrafficking in Persons Act (the 2003 Act) defines trafficking as acts of recruitment, harbouring,
transporting, transferring or receipt of persons for the purpose of exploitation. Where the victim is a child (a person
under eighteen) there is no need for means of force or deceit to be used by offenders for the offence to be considered
as trafficking and the consent Thailand, Cambodia, Philippines, Gambia and Dominican Republic 29 of the child is
irrelevant to criminal liability. The 2003 Act also targets those who buy or engage the services of a trafficked person for
prostitution. While it is clear that the Philippines has in place strong anti-trafficking legislation, the enforcement of the
legislation remains problematic. The government has convicted only 108 individuals for sex trafficking offences since the
passage of the 2003 Act.

Republic Act No. 9995: AN ACT DEFINING AND PENALIZING THE CRIME OF PHOTO AND VIDEO
VOYEURISM, PRESCRIBING PENALTIES THEREFOR, AND FOR OTHER PURPOSES

Section 3. Definition of Terms. - For purposes of this Act, the term:

(a) "Broadcast" means to make public, by any means, a visual image with the intent that it be viewed by
a person or persons.
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(b) "Capture" with respect to an image, means to videotape, photograph, film, record by any means, or
broadcast.

(c) "Female breast" means any portion of the female breast.

(d) "Photo or video voyeurism" means the act of taking photo or video coverage of a person or group of
persons performing sexual act or any similar activity or of capturing an image of the private area of a
person or persons without the latter's consent, under circumstances in which such person/s has/have a
reasonable expectation of privacy, or the act of selling, copying, reproducing, broadcasting, sharing,
showing or exhibiting the photo or video coverage or recordings of such sexual act or similar activity
through VCD/DVD, internet, cellular phones and similar means or device without the written consent of
the person/s involved, notwithstanding that consent to record or take photo or video coverage of same
was given by such person's.

(e) "Private area of a person" means the naked or undergarment clad genitals, public area, buttocks or
female breast of an individual.

(f) "Under circumstances in which a person has a reasonable expectation of privacy" means believe
that he/she could disrobe in privacy, without being concerned that an image or a private area of the
person was being captured; or circumstances in which a reasonable person would believe that a private
area of the person would not be visible to the public, regardless of whether that person is in a public or
private place.

Section 4. Prohibited Acts. - It is hereby prohibited and declared unlawful for any person:

(a) To take photo or video coverage of a person or group of persons performing sexual act or any
similar activity or to capture an image of the private area of a person/s such as the naked or
undergarment clad genitals, public area, buttocks or female breast without the consent of the person/s
involved and under circumstances in which the person/s has/have a reasonable expectation of privacy;

(b) To copy or reproduce, or to cause to be copied or reproduced, such photo or video or recording of
sexual act or any similar activity with or without consideration;

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

(d) To publish or broadcast, or cause to be published or broadcast, whether in print or broadcast media,
or show or exhibit the photo or video coverage or recordings of such sexual act or any similar activity
through VCD/DVD, internet, cellular phones and other similar means or device.

The prohibition under paragraphs (b), (c) and (d) shall apply notwithstanding that consent to record or take
photo or video coverage of the same was given by such person/s. Any person who violates this provision shall
be liable for photo or video voyeurism as defined herein.

HAZING

Contrary to popular belief, hazing per se is not prohibited but merely regulated. What is absolutely prohibited is the
employment of physical violence in hazing. This is in view of the fact that hazing is broadly defined by RA 8049 as an
initiation rite or practice as a prerequisite for admission into membership in a fraternity, sorority or organization by
placing the recruit, neophyte or applicant in some embarrassing or humiliating situations such as forcing him to do
menial, silly, foolish and other similar tasks or activities or otherwise subjecting him to physical or psychological suffering
or injury.

Under RA 8049, in order for hazing to be valid, the following conditions must be complied with:

1. Prior written notice to the school authorities or head of organization seven (7) days before the conduct of such
initiation

2. The written notice shall indicate the period of the initiation activities which shall not exceed three (3) days, shall
include the names of those to be subjected to such activities.

3. The written notice shall contain an undertaking that no physical violence be employed by anybody during such
initiation rites.

4. At least two (2) representatives of the school or organization should be present during the initiation. It is the duty of
such representative to see to it that no physical harm of any kind shall be inflicted upon a recruit, neophyte or applicant.
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The officers and members of the fraternity, sorority or organization who actually participated in the infliction of physical
harm shall be liable as principals. The presence of any person during the hazing is prima facie evidence of participation
therein as principal unless he prevented the commission of the acts.

Furthermore, the officers, former officers, or alumni of the organization, group, fraternity or sorority who actually
planned the hazing although not present when the acts constituting the hazing were committed shall also be liable as
principals. A fraternity or sororitys adviser who is present and failed to take action to prevent the same from occurring
shall likewise be liable.

Third parties are also punished by RA 8049. In fact, the owner of the place where hazing is conducted shall be liable as
an accomplice, when he has actual knowledge of the hazing conducted therein but failed to take any action to prevent
the same from occurring. If the hazing is held in the home of one of the officers or members of the fraternity, group, or
organization, the parents shall be held liable as principals when they have actual knowledge of the hazing conducted
therein but failed to take any action to prevent the same from occurring. The same goes for the school authorities who
consent to the hazing or who have actual knowledge thereof, but failed to take any action to prevent the same from
occurring.

"Battered Woman Syndrome" defined and as a defense in criminal cases

Please take note that Republic Act 9262 or the Anti-Violence Against Women and their Children Act of
2004 became law after the Genosa decision. RA 9262 defines BWS as a scientifically defined pattern of
psychological and behavioral symptoms found in women living in battering relationships as a result of
cumulative abuse.

Section 26 of RA 9262 discusses the Battered Woman Syndrome as a defense, to wit,

Victim-survivors who are found by the courts to be suffering from battered woman syndrome do not incur any
criminal and civil liability notwithstanding the absence of any of the elements for justifying circumstances of
self-defense under the Revised Penal Code.

In the determination of the state of mind of the woman who was suffering from battered woman syndrome at
the time of the commission of the crime, the courts shall be assisted by expert psychiatrists/ psychologists.

In laymans terms, now, under RA 9262, if an abused woman kills or inflict physical injuries on her
abusive husband or live-in partner, once the trial court determines that she is suffering from the
Battered Woman Syndrome, the court will declare her not guilty.(As I mentioned above, the Court
stated that BWS was not proven in Genosas case and that the provisions of the Revised Penal Code on the
elements of justifying circumstances on self-defense thus had to be followed.)

Characteristics of a battered woman

During the re-hearing at the Leyte trial court, expert witnesses Dra. Natividad Dayan and Dr. Pajarillo testified
on what the Battered Woman Syndrome was. The Supreme Court decision states in detail what BWS is. For
the sake of clarity, I have numbered the paragraphs of this portion of the Courts decision.

[1] In claiming self-defense, Genosa raises the novel theory of the battered woman syndrome. While new in
Philippine jurisprudence, the concept has been recognized in foreign jurisdictions as a form of self-defense or,
at the least, incomplete self-defense. By appreciating evidence that a victim or defendant is afflicted with the
syndrome, foreign courts convey their understanding of the justifiably fearful state of mind of a person who
has been cyclically abused and controlled over a period of time.

[2] A battered woman has been defined as a woman who is repeatedly subjected to any forceful physical or
psychological behavior by a man in order to coerce her to do something he wants her to do without concern for
her rights. Battered women include wives or women in any form of intimate relationship with men. Furthermore,
in order to be classified as a battered woman, the couple must go through the battering cycle at least twice.
Any woman may find herself in an abusive relationship with a man once. If it occurs a second time, and she
remains in the situation, she is defined as a battered woman.

[3] Battered women exhibit common personality traits, such as low self-esteem, traditional beliefs about the
home, the family and the female sex role; emotional dependence upon the dominant male; the tendency to
accept responsibility for the batterers actions; and false hopes that the relationship will improve.

[4] More graphically, the battered woman syndrome is characterized by the so-called cycle of violence, which
has three phases: (1) the tension-building phase; (2) the acute battering incident; and (3) the tranquil, loving
(or, at least, nonviolent) phase.
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[5] During the tension-building phase, minor battering occurs - it could be verbal or slight physical abuse or
another form of hostile behavior. The woman usually tries to pacify the batterer through a show of kind,
nurturing behavior; or by simply staying out of his way. What actually happens is that she allows herself to be
abused in ways that, to her, are comparatively minor. All she wants is to prevent the escalation of the violence
exhibited by the batterer. This wish, however, proves to be double-edged, because her placatory and passive
behavior legitimizes his belief that he has the right to abuse her in the first place.

[6] However, the techniques adopted by the woman in her effort to placate him are not usually successful, and
the verbal and/or physical abuse worsens. Each partner senses the imminent loss of control and the growing
tension and despair. Exhausted from the persistent stress, the battered woman soon withdraws emotionally.
But the more she becomes emotionally unavailable, the more the batterer becomes angry, oppressive and
abusive. Often, at some unpredictable point, the violence spirals out of control and leads to an acute battering
incident.

[7] The acute battering incident is said to be characterized by brutality, destructiveness and, sometimes, death.
The battered woman deems this incident as unpredictable, yet also inevitable. During this phase, she has no
control; only the batterer may put an end to the violence. Its nature can be as unpredictable as the time of its
explosion, and so are his reasons for ending it. The battered woman usually realizes that she cannot reason
with him, and that resistance would only exacerbate her condition.

[8] At this stage, she has a sense of detachment from the attack and the terrible pain, although she may later
clearly remember every detail. Her apparent passivity in the face of acute violence may be rationalized thus:
the batterer is almost always much stronger physically, and she knows from her past painful experience that it
is futile to fight back. Acute battering incidents are often very savage and out of control, such that innocent
bystanders or intervenors are likely to get hurt.

[9] The final phase of the cycle of violence begins when the acute battering incident ends. During this tranquil
period, the couple experience profound relief. On the one hand, the batterer may show a tender and nurturing
behavior towards his partner. He knows that he has been viciously cruel and tries to make up for it, begging for
her forgiveness and promising never to beat her again. On the other hand, the battered woman also tries to
convince herself that the battery will never happen again; that her partner will change for the better; and that
this good, gentle and caring man is the real person whom she loves.

[10] A battered woman usually believes that she is the sole anchor of the emotional stability of the batterer.
Sensing his isolation and despair, she feels responsible for his well-being. The truth, though, is that the
chances of his reforming, or seeking or receiving professional help, are very slim, especially if she remains with
him. Generally, only after she leaves him does he seek professional help as a way of getting her back. Yet, it is
in this phase of remorseful reconciliation that she is most thoroughly tormented psychologically.

[11] The illusion of absolute interdependency is well-entrenched in a battered womans psyche. In this phase,
she and her batterer are indeed emotionally dependent on each other -- she for his nurturant behavior, he for
her forgiveness. Underneath this miserable cycle of tension, violence and forgiveness, each partner may
believe that it is better to die than to be separated. Neither one may really feel independent, capable of
functioning without the other.
Effects of battering

The Supreme Court, based on the testimonies of the expert witnesses presented in Genosas defense,
summarized the effects when a woman is abused over a period of time. Again, for the sake of clarity, I have
numbered the paragraphs of this particular portion of the Courts decision.

[1] Because of the recurring cycles of violence experienced by the abused woman, her state of mind
metamorphoses. In determining her state of mind, we cannot rely merely on the judgment of an ordinary,
reasonable person who is evaluating the events immediately surrounding the incident. A Canadian court has
aptly pointed out that expert evidence on the psychological effect of battering on wives and common law
partners are both relevant and necessary. How can the mental state of the appellant be appreciated without
it? The average member of the public may ask: Why would a woman put up with this kind of treatment? Why
should she continue to live with such a man? How could she love a partner who beat her to the point of
requiring hospitalization? We would expect the woman to pack her bags and go. Where is her self-respect?
Why does she not cut loose and make a new life for herself? Such is the reaction of the average person
confronted with the so-called battered wife syndrome.

[2] To understand the syndrome properly, however, ones viewpoint should not be drawn from that of an
ordinary, reasonable person. What goes on in the mind of a person who has been subjected to repeated,
severe beatings may not be consistent with -- nay, comprehensible to -- those who have not been through a
similar experience. Expert opinion is essential to clarify and refute common myths and misconceptions about
battered women.
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[3] The theory of BWS formulated by Lenore Walker, as well as her research on domestic violence, has had a
significant impact in the United States and the United Kingdom on the treatment and prosecution of cases, in
which a battered woman is charged with the killing of her violent partner. The psychologist explains that the
cyclical nature of the violence inflicted upon the battered woman immobilizes the latters ability to act
decisively in her own interests, making her feel trapped in the relationship with no means of escape. In her
years of research, Dr. Walker found that the abuse often escalates at the point of separation and battered
women are in greater danger of dying then.

[4] Corroborating these research findings, Dra. Dayan said that the battered woman usually has a very low
opinion of herself. She has self-defeating and self-sacrificing characteristics. When the violence would
happen, they usually think that they provoked it, that they were the ones who precipitated the violence; that
they provoked their spouse to be physically, verbally and even sexually abusive to them.
As I pointed out in the introductory portion of this article, the Supreme Court decided the Genosa case several
months before RA 9262 was promulgated. Now RA 9262, specifically Section 26, expressly provides for the
Battered Woman Syndrome as a defense, even in the absence of any of the elements for justifying
circumstances of self-defense under the Revised Penal Code.

RA 7887

Republic Act No. 7877, or the Anti-Sexual Harassment Act of 1995 (RA 7877), is the governing law for work,
education or training-related sexual harassment. RA 7877 states that work, education or training-related
sexual harassment is committed by an employer, employee, manager, supervisor, agent of the employer,
teacher, instructor, professor, coach, trainor, or any other person who, having authority, influence or moral
ascendancy over another in a work or training or education environment, demands, requests or otherwise
requires any sexual favor from the other, regardless of whether the demand, request or requirement for
submission is accepted by the object of said act.

It must be emphasized that the demand of a sexual favor need not be explicit or stated. Although it is true that
RA 7877 calls for a demand, request or requirement of a sexual favor, it is not necessary that the demand,
request, or requirement of a sexual favor be articulated in a categorical oral or written statement. In one case,
the Supreme Court considered the offenders act of mashing the breast of his student sufficient to constitute
sexual harassment.

Specifically, in a work-related or employment environment, sexual harassment is committed when:

(1) The sexual favor is made as a condition in the hiring or in the employment, re-employment or continued
employment of said individual, or in granting said individual favorable compensation, terms of conditions,
promotions, or privileges; or the refusal to grant the sexual favor results in limiting, segregating or classifying
the employee which in any way would discriminate, deprive or diminish employment opportunities or otherwise
adversely affect said employee;

(2) The above acts would impair the employee's rights or privileges under existing labor laws; or

(3) The above acts would result in an intimidating, hostile, or offensive environment for the employee.

On the other hand, in an education or training environment, sexual harassment is committed:

(1) Against one who is under the care, custody or supervision of the offender;

(2) Against one whose education, training, apprenticeship or tutorship is entrusted to the offender;

(3) When the sexual favor is made a condition to the giving of a passing grade, or the granting of honors and
scholarships, or the payment of a stipend, allowance or other benefits, privileges, or consideration; or

(4) When the sexual advances result in an intimidating, hostile or offensive environment for the student, trainee
or apprentice.

RA 4200: Anti-wiretapping Law

The "Wiretap Act" (the "Act") is a federal law that is aimed at protecting your privacy in your communications with other
persons. Typically, when you think of a "wiretap," the first thing that comes to mind is someone listening to your
telephone calls. But, the Act protects more than that.
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Under the Act, it is illegal to:

Intentionally, or purposefully,
Intercept, disclose, or use the contents of
1. Any wire, oral, or electronic communication
2. Through the use of a "device"
The Act provides criminal and civil penalties for violations, and it has various exceptions to when interceptions and
disclosures are not illegal.

Although the Act defines most of these terms, federal cases that interpret the Act play a large role in understanding their
meaning and how they apply to any particular case or situation. In addition, most states have laws similar to or based on
the Act.

What Is "Intentional" Wiretapping

"Intentional" means that you intercepted a communication deliberately or on purpose. A mistake of law or "ignorance of
the law" will not be a defense. So, for example, if you misunderstand the Act and think that it's not illegal for you to
intercept another person's telephone call, but the tap was in fact illegal, you can be liable under the Act because you
intentionally intercepted the call.

Interception, Disclosure, and Use

"Interception" is the acquisition of the contents of a communication, or, in other words, listening to another person's
telephone conversation or reading another person's e-mail messages.

Generally, to be in violation of the Act, the interception has to take place at the same time the communication is made.
So, for example, listening-in on a live telephone conversation is an "interception," but accessing stored e-mail messages is
not.

"Disclosing" includes telling another person the contents of the communication, as well telling the general nature or "gist"
of it. Disclosure is illegal if you know, or if you suspect, that the communication was intercepted in violation of the Act.
So, if you illegally intercept a telephone communication in which the participants discuss their involvement in a crime,
and you give that information to a newspaper reporter, you can be liable for violating the Act.

"Use" requires more than disclosure. The idea here is that the communication is being "used" for some type of gain. For
example, if you illegally record a conversation by your ex-wife and later use it to help your case in a child-custody
dispute, you can be liable under the Act.

Wire, Oral or Electronic Communication


"Wire" communications are made through the use of wire, cable or similar connection between the point of origin and the
point of reception: it's the classic telephone call. In order for a communication to be by "wire," it must contain a human
voice. So, an e-mail message doesn't qualify.

"Oral" communications are uttered or spoken, and the speaker has an expectation that it's private and will not be
intercepted. For example, there is no violation of the Act when agents intercept and record a prisoner's conversations with
other inmates because the prisoner has no reasonable expectation of privacy in prison.

An "electronic" communication is one that does not contain the human voice, but contains things like words or pictures.
E-mail messages are the best example of such communications.

Under the Electronic Communications Privacy Act (ECPA), which protects e-mail messages from interception and
disclosure to third parties, an exception allows employers to monitor employee email in the ordinary course of business.
Although the meaning of that exception is not yet settled, it may permit an employer to monitor "business-related," but not
personal, communications, or courts may look to whether the employer had a legitimate business reason for monitoring
employee communications.

Use of a "Device"
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The communication has to be intercepted by use of a "device," that is, some mechanical or electrical tool or apparatus,
such as a tape recorder.

There are two exceptions for "devices" that can be used without violating the Act:

Telephones and related equipment that are used by a subscriber in the ordinary course of business, including
"extension" telephones. The idea here is to allow employers to listen-in on employee conversations with
customers, and
Hearing aids used to correct or improve subnormal hearing, but not to the point where one's hearing becomes
better than normal. So, if your hearing is normal, you can't use a hearing aid for the purpose of intercepting
communications
Exceptions to Liability under the Act
There are two primary exceptions that allow communications to be intercepted without violating the Act:

The "provider" exception allows telephone service providers to listen to or monitor your telephone calls when
they are directed to by law enforcement officers with a valid court order ("search warrant") or when it's necessary
to provide you with service, to inspect the equipment, or to protect the provider's property or rights, such as when
its network is being used without being paid for, and
Law enforcement officials can intercept communications when one party consents to it, so, if you're suspected in
illegal activities and a government informant consents, agents can listen to and record your conversations with the
informant
Many state laws allow one-party consent to record telephone conversations, but some states require the consent of
everyone on the telephone. So, if you're thinking of recording phone calls - even your own - be sure to check the laws
in your area before you do so.

HUMAN TRAFFICKING

What is the Anti-Trafficking in Persons Act of 2003?

The Anti-Trafficking in Persons Act of 2003, also known as Republic Act 9208, institutes government policies to eliminate
trafficking in persons, especially women and children. It establishes the necessary mechanisms to protect and support
trafficked persons, and provides penalties for violators.

What is Trafficking in Persons? Trafficking in persons is an illegal act and is considered a violation of human rights and
inimical to human dignity and national development.

It consists of the following elements:

1. It involves the recruitment, transportation, transfer, harboring or receipt of a person or persons;

2. It is committed with or without the victims consent or knowledge;

3. It is done within or across national boundaries;

4. It is committed by means of threat or use of force, or other forms of coercion, abduction, fraud, deception, abuse of
power or position, giving or receiving of payments or benefits to achieve the consent of a person having actual control
over another person; and

5. It is done for the purpose of exploitation such as sexual exploitation, forced labor or services, slavery, and removal or
sale of organs or other similar acts.
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The Mail Order Bride Law

Republic Act No. 6955, also known as the Mail Order Bride Law, makes it unlawful for anybody to match up Filipino
women for marriage to foreign nationals on a mail-order basis or through personal introduction.
This includes inviting Filipino women to become members of clubs whose objective is to match them up with foreigners
for marriage for a fee.
The use of postal service and the advertisement, publication, printing or distribution of materials promoting such practices
are also punishable.
Violators face jail terms of six to eight years and fines ranging from P8,000 to P20,000.
If the offender is a foreigner, he shall be immediately deported and barred forever from entering the country after serving
his sentence and payment of fine. Almi Ilagan-Atienza, Inquirer Research

Illegal recruitment

Illegal Recruitment (Migrant Workers Act)


Illegal recruitment shall mean any act of canvassing, enlisting, contracting, transporting, utilizing, hiring, or
procuring workers and includes referring, contract services, promising or advertising for employment abroad, whether
for profit or not, when undertaken by non-licensee or non-holder of authority contemplated under Article 13(f) of
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Presidential Decree No. 442, as amended, otherwise known as the Labor Code of the Philippines: Provided, That any
such non-licensee or non-holder who, in any manner, offers or promises for a fee employment abroad to two or more
persons shall be deemed so engaged.
Elements of Illegal Recruitment
The crime of illegal recruitment is committed when two elements concur, namely:
(1) the offender has no valid license or authority required by law to enable one to lawfully engage in recruitment
and placement of workers; and
(2) the undertakes either any activity within the meaning of "recruitment and placement" defined under Article 13
(b), or any prohibited practices enumerated under Article 34 of the Labor Code.
--Romero vs People
Elements of Illegal Recruitment by A Syndicate
The crime of illegal recruitment is committed by a syndicate if illegal recruitment is carried out by a group of three (3) or
more persons conspiring or confederating with one another.

Elements of Illegal Recruitment in Large Scale


Thus for illegal recruitment in large scale to prosper, the prosecution has to prove three essential elements, to wit:
(3) the accused undertook a recruitment activity under Article 13(b) or any prohibited practice under Article 34 of
the Labor Code;
(4) the accused did not have the license or the authority to lawfully engage in the recruitment and placement of
workers; and
(5) the accused committed such illegal activity against three or more persons individually or as a group
Human Security Act of 2007/ Anti-terrorism law

R.A. 9372 provides for three elements or requisites for an act to be considered as terrorism. The 3
elements are:

1. An act sows and creates a condition of widespread and extraordinary fear and panic among the
populace;
2. The purpose is to coerce the government to give in to an unlawful demand; and
3. The act is punishable under any of the following provisions of the Revised Penal Code:

1. Article 122 (Piracy in General and Mutiny in the High Seas or in the Philippine Waters);
2. Article 134 (Rebellion or Insurrection);
3. Article 134-a (Coup dEtat), including acts committed by private persons;
4. Article 248 (Murder);
5. Article 267 (Kidnapping and Serious Illegal Detention);
6. Article 324 (Crimes Involving Destruction, or under

1. Presidential Decree No. 1613 (The Law on Arson);


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

Now, lets consider the settled rule that criminal laws are strictly construed in favor of the accused.
Lets say someone bombs a building or a bus, but doesnt give any demand whatsoever. We could
even go further and say that theres a demand, but the demand is directed against a bus company,
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for it to pay protection money so that its buses wont be targeted. If you go by the definition under
RA 9372, could you say that the act is NOT terrorism because the purpose is NOT to coerce the
government to give in to an unlawful demand?

If someone is charged under this law, but is acquitted after trial (most probably on the absense of
the element discussed above), that person is entitled to the payment of damages in the amount of
Five Hundred Thousand Pesos (PhP 500,000.00) for every day that he or she has been detained or
deprived of liberty or arrested without a warrant as a result of such an accusation. With the high
level of unemployment in our country, that may seem very interesting to some.

Anyway, there appears to be a widespread apprehension on abuses brought about by the impending
effectivity of the law. The fear is not on the law itself, but seems to arise from the level of [dis]trust
on the ones who are tasked to implement it. However, with the apparent loophole discussed above,
are you still afraid of the Human Security Act of 2007?

Illegal Detention in Torture

REPUBLIC ACT N0. 9745: AN ACT PENALIZING TORTURE AND OTHER CRUEL, INHUMAN AND
DEGRADING TREATMENT OR PUNISHMENT AND PRESCRIBING PENALTIES THEREFOR

Section 7. Prohibited Detention. - Secret detention places, solitary confinement, incommunicado or other
similar forms of detention, where torture may be carried out with impunity. Are hereby prohibited.

Def. of terms:

(a) "Torture" refers to an act by which severe pain or suffering, whether physical or mental, is intentionally
inflicted on a person for such purposes as obtaining from him/her or a third person information or a confession;
punishing him/her for an act he/she or a third person has committed or is suspected of having committed; or
intimidating or coercing him/her or a third person; or for any reason based on discrimination of any kind, when
such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a person in
authority or agent of a person in authority. It does not include pain or Buffering arising only from, inherent in or
incidental to lawful sanctions.

(b) "Other cruel, inhuman and degrading treatment or punishment" refers to a deliberate and aggravated
treatment or punishment not enumerated under Section 4 of this Act, inflicted by a person in authority or agent
of a person in authority against a person under his/her custody, which attains a level of severity causing
suffering, gross humiliation or debasement to the latter.

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Indeterminate Sentence Law (ISLAW): How to determine maximum and minimum penalties
(Act no 4103 as amended)

The Indeterminate Sentence Law is mandatory in all cases, EXCEPT if the accused will fall in any of the
following exceptions:

1. if sentenced with a penalty of death or life imprisonment


2. if convicted of treason, conspiracy, proposal to commit treason
3. if convicted of misprision of treason, sedition, rebellion or espionage
4. if convicted of piracy
5. if the offender is a habitual delinquent
6. those who escaped from prison or evaded sentence
7. those who violated the terms of conditional pardon of the chief executive
8. where the maximum term of imprisonment does not exceed 1 year (important!)
9. if convicted by final judgement at the time of the effectivity of Act No. 4103
10. if penalized with suspension or distierro

If accused fall in any of the foregoing exceptions. DO NOT APPLY ISLAW!

ISLAW applies to offenses punished by Special Law and Revised Penal Code.

Why is ISLAW mandatory?

In the application of the Indeterminate Sentence Law the judge will get the maximum penalty and likewise the
minimum penalty. If the accused was already able to serve the minimum term of his indeterminate sentence
and upon the approval of the Board, the accused now becomes eligible for parole. ISLAW is favorable to the
accused.

If the accused was granted parole and violated some conditions of the parole, What will happen?

A warrant of arrest will be issued by the court and the accused will be made to serve the rest of the remaining
or unexpired portion of his sentence. (But in probation you go back to number 1, serving of sentence will be
from the beginning)

Application of ISLAW:

How to get maximum and minimum penalty in Special Law:


1. The maximum penalty should NOT exceed the maximum provided for by that law.
2. The minimum penalty should NOT fall below the minimum provided by the law.

How to get maximum and minimum penalty in Revised Penal Code:


Example: In the crime of homicide, under the Revised Penal Code, the offender is sentenced to reclusion
temporal.

The maximum penalty under the Indeterminate Sentence Law is reclusion temporal. But reclusion temporal is
a divisible penalty consisting of maximum, medium and minimum periods. Which period will we place the
maximum term of the Indeterminate Sentence?

Guide for determining the maximum penalty:


1. Determine the entire range of the penalty
2. Determine if there is mitigating or aggravating circumstance

Which period will the maximum penalty be placed?

In pursuant to art 64, when there is no mitigating and no aggravating circumstance, it should be placed at the
medium period. Thus, the maximum penalty for the example above is reclusion temporal in the medium period.

What is the minimum penalty now?

In getting the minimum penalty, the rule is to simply get the penalty one (1) degree lower from the maximum
penalty without taking into account the mitigating and aggravating circumstance. Thus, the penalty one degree
lower from reclusion temporal, without taking into account any mitigating or aggravating circumstance, is
prision mayor. Prision mayor is now the minimum penalty for our example.

Important: If your maximum penalty is wrong, it follows that the minimum penalty will also be wrong.
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Again, prision mayor is a divisible penalty. Which period can it be placed?
Under the Indeterminate Sentence Law, it would depend upon the discretion of the court on which period to
place it. Thus, the minimum penalty is prision mayor in any of its period.

Factors that could affect the imposition of minimum penalty:


1. Age
2. Conduct during trial
3. Mental or physical condition

Suppose in the example above, 1 aggravating circumstance was proven. What is now the maximum penalty?
It would still be reclusion temporal, but it shall be placed in the maximum period because of the presence of 1
aggravating circumstance.

How about the minimum penalty?


It would still be 1 degree lower from reclusion temporal, which is prision mayor. In which period? It shall be
discretionary upon the court.

(More examples)

1 mitigating but NO aggravating


maximum penalty: reclusion temporal in the minimum period
minimum penalty: prision mayor in any period

2 mitigating, NO aggravating (privileged mitigating)


maximum penalty: prision mayor in the medium period
minimum penalty: prision correctional any period

The preceding example is an exception to the rule. If there is a privileged mitigating circumstance, we take it
into account first in order to obtain the proper maximum penalty. Then, from that maximum penalty, we obtain
the proper minimum penalty by getting the penalty 1 degree lower. Same rule applies as to the period of the
minimum penalty.

Remember: It will never become a privileged mitigating circumstance if there is an aggravating circumstance
present. 8 mitigating and 1 aggravating will never become privileged mitigating circumstance.

3 mitigating, NO aggravating
maximum penalty: prision mayor in the minimum period
minimum penalty: prision correctional any period

In the preceding example, there are 3 mitigating circumstance present and no aggravating circumstance. The
first two mitigating circumstance shall be a privileged mitigating circumstance. Thus, the penalty will be
reduced by 1 degree from reclusion temporal to prision mayor. The 3rd mitigating circumstance shall place the
penalty in the minimum period.

4 mitigating, NO aggravating
maximum penalty: prision correctional in the medium period (2 privileged circumstance. Thus we lower by 2
degrees)
minimum penalty: arresto mayor any period

5 mitigating, NO aggravating
maximum penalty: prision correctional in the minimum period
minimum penalty: arresto mayor any period

At most we can only lower by 2 degrees. Thus, if there are 6 mitigating circumstance and NO aggravating:
maximum penalty: prision correctional in the minimum period
minimum penalty: arresto mayor any period

How is Indeterminate Sentence Law applied in complex crimes (Article 48)?


A complex crime is punished by the most serious offense and shall be imposed in its maximum period.

Example: Estafa through falsification of public documents.

Under the Revised Penal Code, falsification of public documents (Article 171) is a more serious offense
punished by prision mayor than estafa (Article 315), punished only by prision correctional.
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Thus, applying the Indeterminate Sentence Law, the maximum penalty for estafa through falsification of public
documents shall be prision mayor in the maximum period. Minimum penalty shall be prision correctional, any
period.

Suppose there was 1 mitigating circumstance proven. Maximum penalty would still be prision mayor in the
maximum period. In pursuant to Article 48, even if there is a mitigating circumstance present, it should still be
imposed at the maximum period.

How about if there are 2 mitigating circumstance and no aggravating?


The rule is, if it is a privileged mitigating circumstance, we lower by the penalty by one degree but still place it
at the maximum period. Thus, the maximum penalty shall be prision correctional in the maximum period.

4 mitigating, NO aggravating
maximum penalty: arresto mayor in its maximum period

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