CHAPTER
I
INTRODUCTION
Prior to the 1980s, the
general societal response to juveniles who had committed sexual offenses was
based on viewing the behavior as curiosity and experimentation, minimizing the
severity of the behavior with a “boys will be boys” attitude (Becker,
Cunningham-Rathner, & Kaplan, 1986; Ryan Miyoshi, Metzner, Krugman, &
Fryer, 1996). Common perceptions were that these juveniles were not normal,
mainstream youth, but had either some sort of cognitive disability or mental
health impairment, or were the products of some parental deficiency such as an
unfit environment, poverty, or broken homes (Burt, 1994; Doshay, 1943; Kanner,
1948; Maclay, 1960; Wagonner & Boyd, 1941). In addition, many of the
juveniles identified as sexual offenders prior to the 1980s were what would
today be described as status offenders, who were charged with immorality
offenses related to homosexuality, promiscuity, or sexual contact with adults
(Atcheson & Williams, 1954; Markey, 1950). Given this paradigm for
juveniles who commit sexual offenses, the earliest recommended policy responses
were one of two extremes: either institutionalize the juvenile, or do nothing,
believing the problem would self-correct (Atcheson & Williams, 1954;
Markey, 1950).
Historical responses to juvenile who committed sexual offenses were
inextricably altered by retrospective research on adult sex offenders in the
1980s that indicated as many half adult sex offenders reported that the onset
of their sexual offending began when they were adolescents (Abel, Mittelman,
& Becker, 1985; Freeman-Longo, 1978; Longo & Groth, 1983). This finding
led to professionals in the field to raise the alarm about juveniles who
committed sexual offenses, and encouraged a stronger systematic response and
new policies including legal accountability, prosecution, mandatory treatment,
and increased supervision (Leversee & Pearson, 2001). Many treating adults
advocated for earlier intervention in adolescence, believing youth would be
more “changebly” (Knopp, 1984). Professionals believed that court supervision
and treatment were necessary to prevent subsequent adult sexual offending.
Community pressures to “get tough on” juvenile violence and crime as a
whole, which followed several highly publicized atrocities committed by
juveniles in the 1900s, have become increasingly focused on juvenile justice
system and the juvenile courts’ founding premise that most juvenile delinquency
is not inevitably predictive of adult criminality (Empey, 1982; Gendreau &
Ross, 1987; National Council of Juvenile and Family Court Judges, 1984), the
community’s belief that there is “no cure” for sexual offending has led to
public identification of these youth.
At the beginning of the
21st century, women and children are the focus of the legislations
in changing dynamics of law and modernity. As Jose Rizal, our national hero
once said that, “The children are the future our nation”. In consonance with
this ideal of good society, our national legislations provide measures and acts
relevant to the protection of the rights of Filipino children. In observance of
State policies, the State recognizes the vital role of children and youth in
nation building and shall promote and protect their physical, moral spiritual,
intellectual and social well-being. It shall inculcate in the youth patriotism
and nationalism and encourage their involvement in public and civic affairs.
The State shall protect the best interest of the child through measures that
will ensure the observance on international standards of child protection.
Statement
of the Problem
The objective of this
paper is to present the impact of providing overprotection to children through
the manifestations of voluminous legislative enactmentthat is already too much
that needs to be reviewed again the Republic Act 9344 “An Act Establishing A
Comprehensive Juvenile Justice And Welfare System, Creating The Juvenile
Justice And Welfare Council Under The Department of Justice, Appropriating
Funds Therefor And For Other Purposes” because its essence and its purpose were
not materialized.
Specifically, the paper
sought to answer the following questions:
1. What is the
radical shift of legislative enactments or historical background that leads to
the creation of RA 9344?
2. What is RA
9344?
3. What are
the things that need to be changed in the said law?
a. through
lowering the minimum age of criminal responsibility of the child,
b. through
empowering the parental involvement, and
c. through
foreseeing future risk of habituated through repetition.
CHAPTER
II
RADICAL
SHIFT OF LEGISLATIVE ENACTMENTS
The 1987 Philippine
Constitution has mandated the State, based on Section 3 Article XV “the
obligation to defend the Rights of children to assistance, including proper
care and nutrition and special protection from all forms of neglect, abuse, cruelty,
exploitation and other conditions prejudicial to their development”.
Furthermore, Section 13 Article XV affirms the recognition of the State of “the
vital role of the Youth in nation-building and shall promote and protect their
physical, moral, spiritual, intellectual and social well-being.” On this solid
ground, several laws concerning children were enacted as well as served to
implement the provisions of the Convention on the Rights of the Child and other
international instruments the country is a State Party to.
Republic Act 3815 or the
‘Philippine Criminal Code’, also known as ‘Revised Penal Code’ contains
statutes applicable to commercial sexual exploitation of children. In
particular, Article 201 imposed a general banon immoral doctrines, obscene
publications, exhibitions and indecent shows. It prohibited and provided
penalties for publishing, distributing, exhibiting through various media and
selling of films, prints, engravings, sculpture or literature offensive to
public morals. Adult and child pornography are treated equally. Currently,
though, there is a gap with regard to pornography using information
communication technology such as the computers, Internet and cell phones. Articles 267 to 274
of Chapter 1 and Section 2 entitled Crimes against Liberty and
Kidnapping of Minors respectively, penalizes abduction, illegal or forcible
detention, inducing a minor to abandon her/his home and or kidnapping of minors
for purposes of trade in human beings regardless of their age and sex, slavery,
payment of ascendant’s debts, and for labor or services. Included are specific
provisions against abduction of girls below 18 years of age for the purpose of
indecent acts. Except for the latter, the use of the word “Minor” was not
defined explicitly in the Code. Thus,
the appropriate application of the provisions will be dependent on definitions
indicated in laws that will refer to this Code.
Presidential Decree 603of 1977as amended or the ‘Child
and Youth Welfare Code’, spelled out the intent of the Constitution to
protect and promote the interest and welfare of one of the nation’s most
important assets – children and Youth. This Code made clear that ‘the best
interest of children shall be the paramount consideration’ in all actions in
their behalf by everyone concerned. As it outlines the rights and
responsibilities of the children, the Code asserted that the State should exert
all efforts necessary to promote and enhance the welfare of children in the
Philippines.
Republic Act 6972 of 1990or the ‘Barangay
Level Total Development and Protection of Children Act’ provided for a
community-based implementation of the State’s policy ‘to defend the rights of
children to assistance, including proper care and nutrition and to provide
special protection against all forms of neglect, abuse, cruelty, exploitation
and other conditions’ that will harm their development’ as stated in the
Declaration of Policy (Section 2) of the Act. Through the implementation and
establishment of day-care programs and centers in the Barangay, early and
immediate interventions can be provided to the children. Section 3 (e) made
clear that these day-care program and centers shall also serve as “sanctuary
for abused, neglected or exploited children either in one child institution in
the Barangay and or network of sanctuary homes which will take in children in
urgent need of protection due to a situation which endangers the child or which
exposed the child to cruelty and abuse.”
Moreover, as a State
Party to the Convention on the Rights of the Child, the Philippines enacted the
following legislations as expression of its commitment to protect the Rights of
Children, prevent all forms of abuses on them to include sexual abuse,
abduction, commercial sexual exploitation, trafficking, pornography, and
provide for the recovery, healing and reintegration of child victims. These set
the environment for coordinated country effort to protect and promote the
Rights of Filipino Children that were crucial in the implementation of the
provisions in the Protocol to this day.
Republic Act 7610 of 1992 or the
Act Providing for Stronger Deterrence and Special Protection against Child
Abuse, Exploitation and Discrimination moved on from the Child and Youth
Welfare Code by defining further child abuse and specific acts such as
child prostitution, child trafficking, child pornography and other acts of
abuses. It provides sanctions for the commission of these on the child and
mandated the State to carry out a comprehensive program for ‘prevention and
deterrence of and crisis intervention to protect children against child
prostitution and other sexual abuses; child trafficking, obscene publications
and indecent shows, other acts of abuse and circumstances which endanger survival
and normal development’ as prescribed in Section 2 and Section 4
of the Law. Although the Revised Penal Code contains statutes applicable
to Commercial Exploitation of Children (CSEC), the principal legislative act is
Republic Act 7610 that awarded children extensive protection against CSEC and
later amendments have further strengthened this protection.
Republic Act 7658 of 1993 or the Act Prohibiting the
Employment of Children below 15 years of Age in Public and Private Undertaking,
Amending Section 12 of Republic Act 7610.
This law provided general prohibition of employment of children
below 15 years of age in any public or private establishments in the
Philippines except when: a) the child works directly under the sole
responsibility of her/his parents or legal guardian and where only members of
the employer’s family are employed; b) the child’s employment or participation
in public entertainment or information through cinema, theater, radio or
television is essential. In these exceptional cases where a child may be
employed, the employer must secure a work permit from the Department of Labor
and Employment. This Act made more explicit the provisions in Republic Act
7610 pertaining to protection of working children.
Republic Act 8043 of 1995 or the
Act Establishing the Rules to Govern Inter-country Adoption of Filipino
Children, and other Purposes, defined how best the State will ensure the
protection and promotion of the rights of every neglected and abandoned child
with opportunities for growth and development. Section 2 of the law mandates
the State “to take measures to make sure that inter-country adoptions are
allowed when the same shall prove beneficial to the child’s best interest, and
shall serve and protect his/her fundamental rights.” This Act also serves the
purpose of preventing and deterring the sale, trafficking of and further abuse
of children overseas in the guise of adoption.
Republic Act 8353 of 1997 or the
Anti-Rape Law expanded the definition of the crime of rape, and
reclassifies the same as a crime against persons. The law amended relevant
provisions in the Revised Penal Code. Article 266-A described ‘when and
how rape is committed’ by any person to another including children regardless
of sex. Studies on the lives of children who have been rescued from
prostitution and trafficking have strongly indicated experiences of sexual
violence prior and or during victimization. Although the law has been invoked
successfully for a number of children, others have rescinded while many other children
remain to be silent.
Republic Act 8369 of 1997 or the Act Establishing Family
Courts, Granting Exclusive Original Jurisdiction over Child and Family Cases mandated
the State ’to establish a Family Court in every province and city in the
country and a system of adjudication of cases where children maybe the victim
or offenders that takes into account their peculiar circumstances, Section 2
and 3. Section 5 of the law states the that family courts shall have exclusive
jurisdiction to hear and decide cases affecting children and families,
including violations of the Special Protection of Children Against Child
Abuse, Exploitation and Discrimination Act (Republic Act 7610) as amended
and cases of domestic violence against women and children.
Republic Act 8552 of 1998 or the Domestic Adoption Law provided
a ‘waiting period’ for cases of children who went through “simulation of birth”
to be legally adopted. However, the extent of dissemination on this Law, and
the socio-cultural effects of disclosure on the ‘adopted child’ and adoptive
parents continue to challenge the efficacy of this measure. Said legal measure
tightens protection of children particularly in cases of adoption for purposes
of using ‘adopted’ children as workers in the farm or properties for sale for
whatever purpose, sex slaves and many other possible violent and abusive acts
that are often far from the reach of the law.
Republic Act 8980 of 2000 or the Early
Childhood Care and Development (ECCD) Act institutionalized a National
System for ECCD that is comprehensive, integrative and sustainable and has
mandated the engagement of various sectors and inter-agency collaboration at
all levels. This measure enhanced the areas of responsibilities and structural
mechanisms of the Council for the Welfare of Children (CWC) and provided
funds therefore.
Republic Act 9208 of May 2003 or ‘An Act to Institute
Policies to Eliminate Trafficking in Persons Especially Women and Children,
Establishing Women and Children, Establishing the Necessary Institutional
Mechanism for the Protection and Support of Trafficked Persons, Providing
Penalties for its Violations, and for Other Purposes’ instituted policies
and mechanisms to eliminate trafficking, protect and support the victims and
penalize all those who violate this Act. This law was also part of the
country’s commitment to the two Protocols to the UN Convention on Transnational
Crimes in harmony with the UN CRC and the Optional Protocol on the Sale of
Children, Child Prostitution and Child Pornography.
Republic Act 9231 of December 2003 or ‘An Act
Providing for the Elimination of the Worst Forms of Child Labor and Affording
Stronger Protection for the Working Child, Amending for this Purpose Republic
Act No. 7610’was based on
the provisions of ILO Convention 182. This law enhanced relevant provisions of
Republic Act 7610 or the ‘Child Protection Act of 1992’ and included those
amended by Republic Act 7658 or the “Act Prohibiting the Employment of Children
Below 15 Years in Public and Private Undertakings of 1993 and provided for
tighter measures to protect working children.
Republic Act 9262 of 2004 or ‘Act Defining Violence
against Women and their Children Providing for Protective Measures for Victims,
Prescribing Penalties Therefore and for Other Purposes’ was enacted on 08
March 2004 instituted and established policies and a mechanism to protect women
and children from all forms of abuses to include economic abuse and penalizes
men found to have committed these acts of violence to their wives, partners and
girlfriends. Under Section 3, the definition of ‘forms of sexual violence’
included ‘prostitution of the woman or her child’. Furthermore, the definition
of ‘child’ includes ‘not only the biological children of the victim, but also,
the children under her care below 18 years old’. Cases found have shown that
many children who were rescued from prostitution, trafficking, and child labor
came or ran away from homes were domestic and family violence was the norm.
CHAPTER III
THE REPUBLIC ACT 9344
The Republic Act No.
9344 also known as the Juvenile Justice and Welfare Act of 2006 of the
Philippines was being implemented last July 25, 2005. The author of this law is
Senator Francis “Kiko” Pangilinan, and it was approved by the congress, senate
and the former President Gloria Macapagal-Arroyo during her term on April 28,
2006. Juvenile Justice and Welfare Act of 2006 shall cover the different stages
involving children at risk and children in conflict with the law from
prevention to rehabilitation and reintegration. Thus, this law battled a lot of
controversies from the people and government officials because of the negative
impact to the society in terms of criminality rate. Mostof the minor criminals
were being involved due to the empowerment of the oldies andcriminal as they
choose to use the minors that boils down to child labor, humantrafficking,
killings, thief, drugs and other crimes in which children were being involved.
Republic Act 9344 of 2006 or ‘An Act Establishing a
Comprehensive Juvenile Justice System, Creating the Juvenile Justice and
Welfare Council under the Department of Justice, Appropriating Funds Therefore
and For Other Purposes’ raised the minimum age of criminal responsibility
from nine (9) to fifteen (15) years of age; provided for measures to
appropriately handle and manage the child’s offensive behavior through the
application of Restorative Justice that also prohibits inhumane or degrading
treatment or punishment and detention of children below 15 in jails; and,
mandated the establishment of diversion programs for children in conflict with
the law. Cases found showed that many children who have been in these said
situations have also been trafficked for the purpose of engaging into
activities that are against the law, such as courier for drugs, laborer for
manufacture of illegal substances, look-outs, robbery and theft among others.
Minimum Age of Criminal Responsibility
Section
6 of RA 9344 provides for the minimum age of criminal responsibility. It states
that 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 the
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 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.
Child in Conflict with the Law
Under
Sec. 4 of RA No. 9344, a “Child” is defined as a “person under eighteen (18)
years” while a “Child in Conflict with the Law” refers to “a child who is
alleged as, accused of, or adjudges as, having committed an offense under the
Philippines Laws”.
Under
P.D. No. 603, a youthful offender is a “child, minor, or youth, including one
who is emancipated in accordance with law, who is over nine years but under
eighteen years of age at the time of the commission of the offense.” (Article
189, par.1)
Republic
Act No. 9344 repealed P.D. No. 603 on the matter although both cover children
who are under 18 years of age.
Intervention Program
If
it has been determined that the child taken into custody is fifteen (15) years
old or below, the authority which will have an initial contact wit hthe child
has the duty to immediately release the child to the custody of his/her parents
or guardian, or in the absence therof, the child’s nearest relative.
Said
authority shall give notice to the local social welfare and development officer
who will determine the appropriate programs in consultation with the child and
to the person having custody over the child. If the parents, guardians, or
nearest relatives cannot be located, or if they refuse to take custody, the
child may be released to any of the following: a duly registered
nongovernmental or religious organization; a barangay official or a member of
the Barangay Council for the Protection of Children – (BCPC); a local social
welfare and development officer, or when and where appropriate, the DSWD.
If
the child referred to herein has been found by the Local Social Welfare and
Development Office to be abandoned, neglected or abused by his parents, or in
the event that the parents will not comply with the prevention program, the
proper petition for involuntary commitment shall be filed by the DSWD or the
Local Social Welfare and Development Office pursuant to Presidential Decree No.
603, otherwise known as “The Child and Youth Welfare Code.” (Sec. 20, R.A. No.
9344).
Diversion Program
Once
the child is under eighteen (18) years of age at the time of the commission of
the offense is found guilty of the offense charged, the court shall determine
and ascertain any civil liability which may have resulted from the offense
committed. However, instead of pronouncing the judgment of conviction, the
court shall place the child in conflict with the law under suspended sentence,
without need of application: Provided, however, That suspension of sentence
shall be applied even if the juvenile is already eighteen (18) years of age or
more at the time of the pronouncement of his/her guilt. (Sec. 38, R.A, No.
9344)
CHAPTER IV
THINGS TO BE CHANGED IN
THE REPUBLIC ACT 9344
A.
Lowering the Minimum Age of
Criminal Responsibility of the Child
This paper suggests that there is a need to lower the age of criminal
responsibility of the child from fifteen (15) years old to nine (9) years old.
That is should be that a child nine (9) years of age or under at the time
of the commission of the offense shall be exempt from criminal responsibility.
However, the child shall be subjected to an intervention program pursuant to
Section 20 of the Act.
A child above nine (9) years but below 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.
Through the presentations of jurisprudence, we could say that those
children who committed an offense below and above fifteen (15) years of age have
acted with discernment.
In the case of People of the
Philippines vs. Allen Udtojan Mantalaba, G.R. No. 186227, July 20, 2011,
the facts of the case was that:
The Task Force Regional
Anti-Crime Emergency Response (RACER) in Butuan City received a report from an
informer that a certain Allen Mantalaba, who was seventeen (17) years old at
the time, was selling shabu at Purok 4, Barangay 3, Agao District,
Butuan City. Thus, a buy-bust team was organized, composed of PO1 Randy Pajo,
PO1 Eric Simon and two (2) poseur-buyers who were provided with two (2) pieces
of P100 marked bills to be used in the purchase.
Around 7 o'clock in the
evening of October 1, 2003, the team, armed with the marked money, proceeded to
Purok 4, Barangay 3, Agao District, Butuan City for the buy-bust operation. The
two poseur-buyers approached Allen who was sitting at a corner and said to be
in the act of sellingshabu. PO1 Pajo saw the poseur-buyers and appellant
talking to each other. Afterwards, the appellant handed a sachet of shabu to
one of the poseur-buyers and the latter gave the marked money to the appellant.
The poseur-buyers went back to the police officers and told them that the
transaction has been completed. Police officers Pajo and Simon rushed to the
place and handcuffed the appellant as he was leaving the place.
The police officers,
still in the area of operation and in the presence of barangay officials
Richard S. Tandoy and Gresilda B. Tumala, searched the appellant and found a
big sachet of shabu. PO1 Simon also pointed to the barangay officials
the marked money, two pieces of P100 bill, thrown by the appellant on the
ground.
In this case
the Supreme Court ruled on the determining minority of the child that:
The appellant was
seventeen (17) years old when the buy-bust operation took place or when the
said offense was committed, but was no longer a minor at the time of the
promulgation of the RTC's Decision.
It must be noted that RA
9344 took effect on May 20, 2006, while the RTC promulgated its decision on
this case on September 14, 2005, when said appellant was no longer a minor. The
RTC did not suspend the sentence in accordance with Article 192 of P.D. 603,
The Child and Youth Welfare Codeand Section 32 of A.M. No. 02-1-18-SC, the
Rule on Juveniles in Conflict with the Law,the laws that were applicable at
the time of the promulgation of judgment, because the imposable penalty for
violation of Section 5 of RA 9165 is life imprisonment to death.
It may be argued that
the appellant should have been entitled to a suspension of his sentence under
Sections 38 and 68 of RA 9344 which provide for its retroactive application,
thus:
SEC. 38.Automatic
Suspension of Sentence. — Once the child who is under eighteen (18) years
of age at the time of the commission of the offense is found guilty of the
offense charged, the court shall determine and ascertain any civil liability
which may have resulted from the offense committed. However, instead of
pronouncing the judgment of conviction, the court shall place the child in
conflict with the law under suspended sentence, without need of application:
Provided, however, That suspension of sentence shall still be applied even
if the juvenile is already eighteen years (18) of age or more at the time of
the pronouncement of his/her guilt.
Upon suspension of
sentence and after considering the various circumstances of the child, the
court shall impose the appropriate disposition measures as provided in the
Supreme Court [Rule] on Juveniles in Conflict with the Law.
Sec. 68.Children Who
Have Been Convicted and are Serving Sentence. — Persons who have been
convicted and are serving sentence at the time of the effectivity of this Act,
and who were below the age of eighteen (18) years at the time of the commission
of the offense for which they were convicted and are serving sentence, shall
likewise benefit from the retroactive application of this Act. . . .
Hence, the appellant, who is now beyond the age
of twenty-one (21) years can no longer avail of the provisions of Sections 38
and 40 of RA 9344 as to his suspension of sentence, because such is already
moot and academic. It is highly noted that this would not have happened if the
CA, when this case was under its jurisdiction, suspended the sentence of the
appellant. The records show that the appellant filed his notice of appeal at
the age of 19 (2005), hence, when RA 9344 became effective in 2006, appellant
was 20 years old, and the case having been elevated to the CA, the latter
should have suspended the sentence of the appellant because he was already
entitled to the provisions of Section 38 of the same law, which now allows the
suspension of sentence of minors regardless of the penalty imposed as opposed
to the provisions of Article 192 of P.D. 603.
In
the case of People of the Philippines vs. Robert Sierra y Caneda, G.R. No.
182941, July 3, 2009, the facts of the case was that:
In August 2000,
thirteen-year-old AA was playing with her friend BBB in the second floor of her
family's house in Palatiw, Pasig. The petitioner arrived holding a knife and
told AAA and BBB that he wanted to play with them. The petitioner then
undressed BBB and had sexual intercourse with her. Afterwards, he turned to
AAA, undressed her, and also had sexual intercourse with her by inserting his
male organ into hers. The petitioner warned AAA not to tell anybody of what
they did.
AAA subsequently
disclosed the incident to Elena Gallano (her teacher) and to Dolores Mangantula
(the parent of a classmate), who both accompanied AAA to the barangay office.
AAA was later subjected to physical examination that revealed a laceration on
her hymen consistent with her claim of sexual abuse. On the basis of the
complaint and the physical findings, the petitioner was charged with rape.
The
Supreme Court ruled on the dismissal of the case and the retroactivity of RA
9344 that:
That the petitioner
committed the rape before R.A. No. 9344 took effect and that he is no longer a
minor (he was already 20 years old when he took the stand) will not bar him
from enjoying the benefit of total exemption that Section 6 of R.A. No. 9344
grants. As we explained in discussing Sections 64 and 68 of R.A. No. 9344 in
the recent case of Ortega v. People:
Section 64 of the law
categorically provides that cases of children 15 years old and below, at the time of the commission of the crime,
shall immediately be dismissed and the child shall be referred to the
appropriate local social welfare and development officers (LSWDO). What is controlling, therefore, with respect
to the exemption from criminal liability of the CICL, is not the CICL's age at
the time of the promulgation of judgment but the CICL's age at the time of the
commission of the offense. In short, by virtue of R.A. No. 9344, the age
of criminal irresponsibility has been raised from 9 to 15 years old.
Moreover,
in the case of People of the Philippines
vs. Joemar Ortega, G.R. No. 151085, August 20, 2008, the facts of the case
was that:
Petitioner, then about
14 years old, was charged with the crime of Rape in two separate informations
both dated April 20, 1998, for allegedly raping AAA,then about eight (8) years
of age.
The first occasion happened
sometime in August 1996. MMM left her daughter AAA, then 6 years old and son
BBB, then 10 years old, in the care of Luzviminda Ortega (Luzviminda), mother
of petitioner, for two (2) nights because MMM had to stay in a hospital to
attend to her other son who was sick. During the first night at petitioner's
residence, petitioner entered the room where AAA slept together with Luzviminda
and her daughter. Petitioner woke AAA up and led her to the sala. There
petitioner raped AAA. The second occasion occurred the following day, again at
the petitioner's residence. Observing that nobody was around, petitioner
brought AAA to their comfort room and raped her there. AAA testified that
petitioner inserted his penis into her vagina and she felt pain. In all of
these instances, petitioner warned AAA not to tell her parents, otherwise, he
would spank her. AAA did not tell her parents about her ordeal.
The third and last
occasion happened in the evening of December 1, 1996. Petitioner went to the
house of AAA and joined her and her siblings in watching a battery-powered
television. At that time, Luzviminda was conversing with MMM. While AAA's
siblings were busy watching, petitioner called AAA to come to the room of CCC
and BBB. AAA obeyed. While inside the said room which was lighted by a kerosene
lamp, petitioner pulled AAA behind the door, removed his pants and brief,
removed AAA's shorts and panty, and in a standing position inserted his penis
into the vagina of AAA. AAA described petitioner's penis as about five (5)
inches long and the size of two (2) ballpens. She, likewise, narrated that she
saw pubic hair on the base of his penis.
This last incident was
corroborated by BBB in his testimony. When BBB was about to drink water in
their kitchen, as he was passing by his room, BBB was shocked to see petitioner
and AAA both naked from their waist down in the act of sexual intercourse. BBB
saw petitioner holding AAA and making a pumping motion. Immediately, BBB told
petitioner to stop; the latter, in turn, hurriedly left. Thereafter, BBB
reported the incident to his mother, MMM.
In this case the Supreme
Court ruled dismissal and on the retroactivity of the RA 9344 that:
Section 6 of R.A. No.
9344 clearly and explicitly provides:
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.
Likewise, Section 64 of
the law categorically provides that cases of children 15 years old and below,
at the time of the commission of the crime, shall immediately be dismissed and
the child shall be referred to the appropriate local social welfare and
development officer (LSWDO). What is controlling, therefore, with respect to
the exemption from criminal liabilityof the CICL, is not the CICL's age at the
time of the promulgation of judgment but the CICL's age at the time of the
commission of the offense. In short, by virtue of R.A. No. 9344, the age of
criminal irresponsibility has been raised from 9 to 15 years old.
Given this precise
statutory declaration, it is imperative that this Court accord retroactive
application to the aforequoted provisions of R.A. No. 9344 pursuant to the
well-entrenched principle in criminal law — favorabilia sunt amplianda
adiosa restrigenda. Penal laws which are favorable to the accused are given
retroactive effect. This principle is embodied in Article 22 of the Revised
Penal Code, which provides:
Art. 22. Retroactive
effect of penal laws. — Penal laws shall have a retroactive effect insofar
as they favor the persons guilty of a felony, who is not a habitual criminal,
as this term is defined in Rule 5 of Article 62 of this Code, although at the
time of the publication of such laws, a final sentence has been pronounced and
the convict is serving the same.
The Court is fully
cognizant that our decision in the instant case effectively exonerates
petitioner of rape, a heinous crime committed against AAA who was only a child
at the tender age of six (6) when she was raped by the petitioner, and one who
deserves the law's greater protection. However, this consequence is inevitable
because of the language of R.A. No. 9344, the wisdom of which is not subject to
review by this Court. Any perception that the result reached herein appears
unjust or unwise should be addressed to Congress. Indeed, the Court has no
discretion to give statutes a meaning detached from the manifest intendment and
language of the law. Our task is constitutionally confined only to applying the
law and jurisprudence to the proven facts, and we have done so in this case.
From the presentation of the jurisprudence that deals with the
application of RA 9344, we could say that the discernment plays an important
role in the commission of the offense. Discernment means as the capacity of the
child at the time of the commission of the offense to understand the
differences between right and wrong and the consequences of the wrongful act.
Thus, it connotes that there is a need to lower down the minimum age of
criminal responsibility of the child from fifteen (15) to nine (9) years old.
B.
Empowering the Parental
Involvement
In
October of 2011, the proposal of lowering the age of criminal responsibility
ofchildren from fifteen (15) years old down to nine (9) years old was not
approved andagreed by the Department of Justice (DOJ) and Department of Social
Welfare andDevelopment (DSWD). DOJ and DSWD believed that the children in
conflict with thelaw are those who are neglected and lacked parental love and
guidance; those whocome from impoverished and dysfunctional families; whose
parents are jobless orseparated; whose environment is filled with air of
violence; or whose community istolerant of offending crimes as their normal way
of living. These are reality bites thatconquer their motivations for survival.
This kind of finding regarding the reason set forth by the DOJ and DSWD entails
that it is not their problem whether the child below fifteen (15) or above
because it has something to do with the problem of family. Thus this paper
would like to strengthen and empower the importance of the family in rectifying
the behavior or acts committed by the child during the rehabilitation and
reintegration of the child. According to Title III Chapter 1 of Republic Act
9344, the family shall be responsible for the primary nurturing and rearing of
children which is critical in delinquency prevention. As far as practicable and
in accordance with the procedure of this Act, a child in conflict with the law
shall be maintained in his/her family.
The imperative thing the juvenile
needs from their parents is supervision. It is not reasonable for the youth to
remain in the community without adult supervision. The need to remove juveniles
from the home during treatment and their subsequent return is sometimes
dependent on the family’s ability or inability to provide adequate supervision.
The National Task Force on Juvenile Sexual Offending (1998, 1993) stressed that
intrafamilial sexual abuse should always result in some period of removal of
the abusive child in order to provide physical and psychological safety for any
victim(s) in the home and to avoid assigning a watchdog role ot the parents,
which can further erode existing levels of trust within the family. Therapist,
teachers and probation and parole officers cannot fully monitor the juvenile’s
activities in the community. Parents have the maximum opportunity to supervise
and monitor their child.
The family’s inability to recognize
the juvenile’s behavior is often the first obstacle to adequate supervision
(Thomas, 1988). The juvenile’s abusive patterns have often developed in an
environment that failed to acknowledge problem behaviors at all or perceived
the patterns to be normal. Lack of definition and denial of coercive and
abusive patterns is a common characteristics, although families sometimes
report underlying concerns of long-standing duration. Even in families that
have recognize early behaviors as problematic, minimization or ineffective
interventions have often characterized parental responses. Just as victims
should not be expected to believe that disclosure and entry into treatment will
protect them from further abuse (Ryan, 1989), therapists must not assume
adequate supervision will be forthcoming in the home following disclosure.
Some families are unable to support
treatment at all, and if they completely deny the need for or sabotage the
juvenile’s participation, legal intervention or out-of-home placement may be
necessary. However, families who can acknowledge the juvenile’s need to get
help and make changes, even minimal ones, can be educated in specific and
nonthreatening ways to encourage the juvenile’s participation in treatment and
to help maintain the changes that are made.
Finally, some families will
participate in family treatment with the juvenile in order to be actively
involved in changes within the family structure and function that support the
juvenile’s treatment, decrease stress, and moderate risk factors within the
home environment. The parents’ willingness to take responsibility for their own
issues and to do whatever is indicated to meet the needs of their child sets an
example for the youth and supports the goals of enhanced communication,
emphatic interactions, and personal responsibility.
C. Foreseeing
Future Risk of Habituated through Repetition
The Republic Act 9344 is mindful on the minimum age of the criminal responsibility
but it has not given the future risk that there will be possibility of the
child to a habituated through repetitions. This is clear and evident on the
jurisprudence provide above that that child is charged with two (2) counts of
rape. A person is habitual delinquent if within a period of ten years from the
date of his (last) release or last conviction of the crimes of (1) serious or
less serious physical injuries, (2) robo, (3) hurto, (4) estafa, or (5)
falsification, he is bound guilty of any of said crimes a third time or
oftener.
Over the past century, the response to juveniles who have committed
sexual offenses has swung from one extreme to the other in a pendulum-like
effect (Leversee & Pearson, 2001; Ryan 1997). Early systematic responses to
this problem alternated between marginalizing some as not like other youth
(deviant) and removing them from society to institutions, or viewing them as
normal boys in need of no response. Over the past 25 years, the systematic
response has evolved to viewing these juveniles as the same as adult sex
offenders and the line between the response to adults and juveniles has largely
disappeared. Sex offenders are currently viewed as “compulsive, progressive,
and incurable” regardless of age (Chaffin, Letourneau, & Silovsky, 2002, p.
205). The punitive nature of the public and policymakers’ response has been
based on three beliefs that have been based on three beliefs that have been
shown to be untrue (Letourneau & Miners, 2005):
·
There is an epidemic of juvenile
sexual offending.
·
Juveniles have more in common with
adult sex offenders than other juvenile delinquents.
·
Juveniles have a high risk of
reoffending.
Research also shows
that most juveniles do not go on to be charged with or convicted of other
sexual offenses, with rates of
recidivism typically between 4-20% (Alexander, 1999; Epperson, Ralston, Fowers,
Dewitt, & Gore, 2006; Reitzel & Carbonell, 2006; Vandiver, 2006;
Worling & Curwwen, 2000). In addition, as has been already noted, most
juveniles who are rearrested later have engaged in nonsexual delinquency, with
rates of nonsexual recidivism typically ranging from 20-50% (Reitzel &
Carbonell, 2006; Vandiver, 2006; Worling & Curwen, 2000). The bosy of
research to date about juveniles who have committed sexual offenses clearly
contradicts the beliefs that have driven legislation and policy (Letourneau
& Miner, 2005; Zimring, 2004).
References
Abel,
G. G., Mittelman, M. S., & Becker, J. V. (1985).Sexua offenders: Results of
assessment and recommendations for treatment. In M. H. Ben-Aron, S. J. Hucker,
& C. D. Webster (Eds.), Clinical criminology: The assessment and treatment of criminal behavior (pp. 191-206).
Toronto: M and M Graphics.
Alexander,
M. (1999). Sex offender treatment efficacy revisited. Sexual Abuse: A Journal of Research and Treatment, 11(2),
101-116.
Atcheson,
J. D., & Williams, D. C. (1954).A. study of juvenile sexual offenders.American Journal of Psychiatry, III,
3666-370.
Becker,
J. V., Cunningham-Rathner, J., & Kaplan, M.F. (1986). Adolescent sexual
offenders: Demographics, criminal sexual histories, and recommendations for
reducing future offenses. International
Journal of Interpersonal Violence, 4, 431-445.
Burt,
Sir C. L. (1944). The young delinquent (4thed.).
Bickley: University of London Press.
Doshay,
L. J. (1943). The boy sex offender and
his later career. New York: Grune and Stratton.
Empey,
L. T. (1982). American delinquency: Its
meaning and construction. Florence, KY: Dorsey Press.
Epperson,
D.L., Ralston, C. A., Fowers, D., Dewitt, J., & Gore, K. S. (2006).
Actuarial risk assessment with juveniles who offend sexually: Development of
the juvenile sexual offense recidivism risk assessment tool –II. In D. S.
Prescott (Ed.), Risk assessment of youth
who have sexually abused: Theory, controvery, and emerging strategies (pp.
118-169). Oklahoma City, OK: Wood’N’Barnes.
Freeman-Longo,
R. E. (1978). Child molestation: The
offender and the assault. 112th Annual Congress of Correction,
Toronto, Canada.
Gendreau,
P., & Ross, R. (1987).Revivication of rehabilitation: Evidence from the
1980s. Justice Quarterly, 4(3),
349-407.
Kanner,
L. (1948). Child psychiatry. Oxford:
Blackwell Publications.
Knopp,
F. H. (1984). Retraining adult sex
offenders: Methods and models. Orwell, VT: Safer Society Press.
Letourneau,
E.J., & Miner, M.H. (2005). Juvenile sex offenders: A case against the
legal and clinical status quo. Sexual
Abuse: A Journal of Research and Treatment, 17(3), 293-312.
Leversee,
T., & Pearson, C. (2001).Eliminating the pendulum effect: A balance
approach to the assessment, treatment, and management of sexually abusive
youth.Journal of the Center for Families,
Children, and the Courts, 3, 45-57.
Longo,
R. E., &Groth, A. N. (1983).Juvenile sexual offenses in the histories of
adult rapists and child molesters.International
Journal of Offender Therapy and Comparative Criminology, 27(2), 150-155.
Maclay,
D. T. (1960). Boys who commit sexual
misdemeanors.British Medical Journal, 16 (January),
186-190.
Markey,
O. B. (1950). A. study of aggressive sex behavior in adolescent brought to
juvenile court. American Journal of
Orthopsyciatry, 20, 719-731.
National
Council of Juvenile and Family Court Judges. (1984). The juvenile court and
serious offenders (special issue).
Juvenile and Family Court Journal, 44(4), 1-121.
Reitzel,
L. R., &Carbonell, J. L. (2006).The effectiveness of sexual offender
treatment for juveniles as measured by recidivism.A meta-analysis.Sexual Abuse: A Journal of Research and
Treatment, 18(4), 401-421.
Ryan,
G., Miyoshi, T. J., Metzner, J. L., Krugman, R.D., & Fryer, G. E.
(1996).Trends in a national sample of sexually abusive youth. Journal of American Academy of Child and
Adolescent Psyciatry, 35(1), 17-25.
Vandiver,
D. M. (2006). A prospective analysis of juvenile male sex offenders:
Characteristics and recidivism rates as adults. Journal of Interpersonal Violence, 21, 673-688.
Wagonner,
R. W., & Boyd, D. A. (1941).Juvenile aberrant sexual behavior.American Journal of Orthopsyciatry, 11,
275-292.
Worling,
J. R., & Curwen, T. (2000). Adolescent sexual offender recidivism: Success
of specialized treatment and implications for risk prediction. Child Abuse and Neglect, 24(7),
965-982.
Zimring,
F. E., Piquero, A. R., & Jennings, W. G. (2007). Sexual delinquency in
Racine: Does early sex offending predict later sex offending in youth and young
childhood? Criminology and public policy.
