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LYCEUM OF THE PHILIPPINES UNIVERSITY

COLLEGE OF LAW
A.Y. 2017-2018

STRANGER DANGER!
The Feasibility of a Sex Offender Registry in the Republic of the Philippines

Submitted by:

Agramon, Krizia Anne


Baclao, Rosa Maria
Licup, Kimberley
Peñalosa, Gianna Maree D.

Submitted to:
Atty. Gil Anthony Aquino

December 23, 2017


INTRODUCTION

The history of sex offenders’ registration started in 1994 as a quick response to the brutal

rape and murder of 7-year-old Megan Kanka from New Jersey. In the aftermath, her parents said

they never would have let her play outside unsupervised if they had known that their neighbor —

who had lured Megan to his house by saying he wanted her to meet his new puppy — was a sex

offender who had already gone to jail for other violence and sex-related crimes. This statement

sparked a nationwide outcry that led the United States government to pass “Megan’s Laws,”

requiring communities to be notified when sex offenders moved into their neighborhoods.

Sex offender registration laws are a kind of criminal legislation that require sex offenders

to provide information about themselves to some division of government and are intended to aid

law enforcement in the monitoring and apprehending of offenders & known recidivists.1 They

are different from Notification laws as these mandate the dissemination of information about sex

offenders to the public and its aim to reduce crime through greater public awareness of nearby

offenders.2

Twenty-three years and countless Megan Kankas later, the Philippines is slowly but

surely modernizing its views on sensitive social issues - especially and particularly with regard to

the treatment of women and children. While the language used by some of the older laws and

Codes remain archaic and reflective of the patriarchal culture in the country, the idea of creating

a Registry of Sex Offenders could be a step toward ensuring that the vulnerable are protected.

However, the creation of such a registry is not without hurdles. As early as July 2007,

former Senator Miriam Defensor Santiago filed Senate Bill No. 17873 which introduced the idea

of the creation of a system of registration and notification for sex offenders and providing a

penalty for non-compliance. Years later, another bill was introduced in the Sixteenth Congress

by ACT-CIS party-list Representative Samuel Pagdilao that will require all convicted sex

                                                                                               
1
Prescott, J.J., Do Sex Offender Registries Make Us Less Safe?, University of Michigan School of Law School Scholarship Repository,
available at https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1078&context=articl (last accessed Dec. 22, 2017)
2
Ibid.
3
An Act to Create a System of Registration and Notification for Sex Offenders and Providing a Penalty for Non-Compliance [Sex Offender
Registration of 2007], S.B. No. 1787, 14th Cong., 3d Reg. Sess. (2007)
offenders, both local and foreign nationals to register to give sufficient information to law

enforcement agencies of the possible threat that these sex offenders might present.4

The Constitution provides that the State values the dignity of every human person and

guarantees full respect for human rights.5 At the same time, the State recognizes the vital role of

the youth in nation-building and shall promote and protect their physical, moral, spiritual,

intellectual, and social well-being6 as well as the role of women in nation-building, and shall

ensure the fundamental equality before the law of women and men7. However, the Bill of Rights

requires that a person’s right to privacy to be respected but the same also requires that the people

be informed of matters that are of public concern8.

That said, a look at the feasibility of the creation of a sex offender registry in the

Philippines must be carefully studied as its passage into law, though possibly effective in curbing

recidivism risk in offenders after release, may be deemed unconstitutional for clashing with

numerous constitutional provisions particularly with the equal protection clause.

COUNTRIES WITH SEX OFFENDER


REGISTRATION LAWS AND
THEIR RESPECTIVE ISSUES

United States of America

Title 1 of the Adam Walsh Child Protection and Safety Act of 2006 established a

comprehensive, national sex offender registration system called the Sex Offender Registration

and Notification Act (SORNA). SORNA defines “sex offender” to mean an individual who is

convicted of a sex offense and sex offenses covered by the same are divided into five (5) classes,

namely: (1) Specified offenses against minors; (2) Specified federal offenses; (3) Sexual acts and

sexual contact offenses; (4) Specified military offenses; and (5) Attempts and conspiracies.

                                                                                               
4
Solon Seeks Creation of a National Sex Offender Registry System, Press and Public Affairs Bureau, House of Representatives (Dec. 27, 2015)
5
PHIL. CONST., Art. II, § 12
6
Ibid., § 13
7
Ibid., § 14
8
Ibid., § 7
The rights being touted by the protesting side of the fence are the right to gainful

employment and from facing discrimination by reason of one’s past.

David Millard, a registered offender from Denver Colorado, pleaded guilty to second-

degree sexual assault on a minor in 1999 and was sentenced to 90 days in a jail work release

program and 8 years of probation. In 2003, he lost his job at a supermarket chain after a customer

saw his name and photo on a sex offender website.

Millard was forced to move repeatedly after his status as a registered sex offender was

revealed, once by police and once by a local TV station. The second time, he had to fill out about

200 rental applications before finding an apartment he could rent. Millard later bought a house in

Denver, which is periodically visited by police officers seeking to verify his address. “If he is not

home when they visit,” Matsch notes, “they leave prominent, brightly colored ‘registered sex

offender’ tags on his front door notifying him that he must contact the DPD.”

Millard was one of the three plaintiffs who filed a lawsuit in 2013 against the Colorado

Bureau of Investigation’s director, Michael Rankin, which was brought to trial in December

2016.9 Their attorneys argued that since the three men had completed their court sentences for

various sex crimes, and had completed probation and sex offender rehabilitation, that they should

no longer be subject to being on the registry and should be able to be removed.

The federal judge ruled that the state’s Sex Offender Registration Act violates the U.S.

Constitution when applied to three men because it constitutes further punishment beyond their

initial jail time and probation.

Unfortunately for them, the U.S. Supreme Court has upheld the sex offender registry on

the theory that it does not constitute punishment at all but, rather, serves an administrative public

safety function, similar to involuntary commitment of the dangerously mentally ill.10

                                                                                               
9
Millard v. Rankin, Case 1:13-cv-02406-RPM (Col. 2013).
10
Smith v Doe, 538 U.S. 84 (2003).
Canada

Canada’s approach has been somewhat more moderate. Under the original incarnation of

the Sex Offender Information Registration Act (SOIRA), sex offenders subject to a judicial order

were required to report within 15 days of the order and provide information for collection in a

database, intended to “help police investigate crimes of a sexual nature.” Unlike the publicly

available FBI database, in SOIRA, only authorized specific law enforcement personnel to access

this information for use in their investigations. (Sheley, 2016)11

In an October 24, 2017 ruling, Court of Queen's Bench Justice Andrea Moen said that

SOIRA violates section seven of the Canadian Constitution which guarantees life, liberty and

security of person.

The ruling is in regards to a 2015 case where 19-year-old Eugen Ndhlovu12 pleaded

guilty to two counts of sexual assault at a Jersey Shore-themed party where two women said that

Ndhlovu sexually touched them without their consent throughout the night. For his actions,

Ndhlovu pleaded guilty to two accounts of sexual assault - blaming his actions on alcohol saying

he could not remember the night. He was sentenced to six months in jail followed by three years

of probation.

Judge Moen found that he was "was unlikely to reoffend" because of his lack of criminal

history, took responsibility, showed remorse and has stopped drinking. But, even though Moen

doesn't think Ndhlovu will offend again, it is mandatory he be placed on the sex offender registry

for life.

Ndhlovu challenged the mandatory inclusion, saying it is "arbitrary, overbroad and

grossly disproportionate," Judge Moen agreed and went on to write that including offenders

"who have little to no chance of reoffending" does nothing to protect the public and subjecting

them to the rigours of being on the sex offender registry is, again, "overbroad."

Because the ruling is at a provincial level, it won't have the power to make changes

nationally but could most likely prove to be influential.

                                                                                               
11
Sheley, E. (2016, November 30). The Constitutional Limits of the Sex Offender Registry. Retrieved from https://ablawg.ca/2016/11/30/the-
constitutional-limits-of-the-sex-offender-registry/
12
R v Ndhlovu, 2016 ABQB 595 (CanLII 2016)
United Kingdom

In 2015, the Office of the Prime Minister issued a guideline stating offenders should be

removed from the registry if it is no longer necessary for them to be registered to protect the

public from sexual harm.

Prime Minister Theresa May Theresa brought in these new rules against her personal

comfort after the Supreme Court declared that, with no right of review, requiring sex offenders to

register their address with police and inform them of travel plans was disproportionate and

incompatible with the right to privacy.

United Kingdom’s Sexual Offences Act of 2003 made all sex offenders sentenced to more

than 30 months in prison subject to sex offenders registration, without an opportunity for review.

But in 2010, the UK Supreme Court ruled that under human rights laws, offenders should have

the opportunity to prove they had reformed.

MOVEMENT FOR SEX OFFENDER


REGISTRATION IN THE PHILIPPINES

Senate Bill No. 1787

In her explanatory note, Senator Santiago explained that the purpose of registration and

restrictions is to encourage the protection of children and society by increasing the awareness of

the community about the recidivism risk that some offenders may present on release. Supporters

of this measure also hope that community awareness will assist in preventing future crimes.13

The Bill defines a “sex offender” as a person who:

(1) Is a resident of the Philippines who is convicted of a sex offense in the


Philippines;
(2) Changes his residence to the Philippines, when that person has been
convicted of a sex offense in another country pursuant to the law of that country;
(3) Is a citizen of another country and who has been convicted of a sex offense
pursuant to the law of that country, but who is:

                                                                                               
13
Ibid.
(a) Employed full time or part time in the Philippines for a period of time
exceeding fourteen days or for an aggregate period of time exceeding thirty days
during any calendar year; or
(b) Enrolled on a full-time or part-time basis in a school in the Philippines,
including a secondary school, a trade school, a professional institution or an
institution of higher education.14

At the same time, what falls under the term “Sex offense” are the following:

(1) Rape, as defined in Article 266-A of the Penal Code;


(2) Acts of lasciviousness, as defined Article 336 of the Penal Code;
(3) Qualified seduction, as defined in Article 337 of the Penal Code;
(4) Simple seduction, as defined in Article 338 of the Penal Code;
(5) Acts of lasciviousness with the consent of the offended party as defined in
Article 339 of the Penal Code;
(6) Corruption of minors as defined in Article 340 of the Penal Code; and
(7) White slave trade as defined in Article 341 of the Penal Code.15

A purview of this proposed legislation would mean that sex offenders are those who have

been convicted by final judgment of the above-mentioned crimes; and that they have already

served their sentence and are released from the custody of the Bureau of Jail Management and

Penology or being placed on probation or parole are required to register with the office of the

mayor of the city or municipality of the place where he resides. Following his initial registration,

a sex offender would then be required to register shall renew his registration not less than once in

each ninety (90) day period following the date of the sex offender's initial registration for a

period of twenty (20) years.

Any person who then wants to obtain information regarding sex offenders may request

the same from the office of the mayor where the sex offender resides and after providing such

information, the office of the mayor would then alert every licensed daycare center, elementary

school and high school within a two kilometer radius of the sex offender's residence and provide

them with the sex offender's registration information.16

House Bill No. 6301

                                                                                               
14
§  2(a),  S.B.  No.  1787  (2007)  
15
Ibid., § 2(b)
16
 Ibid., § 5  
House Bill No. 630117 was filed on December 2015 that aims to ensure public safety,

particularly the safety of women and children who are often vulnerable to such individuals.

Some of the provisions being proposed are that every convicted sex offender, prior to their

release from prison, be required to register in the province or municipality in which he resides, is

employed in, or is a student.

Each offender would be required to update their registration regularly, as well as register

any changes in their address, or other pertinent information as required by law. Sensitive

information such as contact numbers and addresses of these convicted sex offenders will not be

detailed in the website that the bill wishes to establish. The public will have access, however, to

the names, recent photos, and sexual crime that the person had been convicted of upon request.

Under the bill, the Department of Justice will be mandated to create and maintain the

necessary database, computer system, and software that will establish the National Sex Offender

Registry System which shall allow immediate information-sharing not just among local

jurisdictions but also with international authorities law enforcement agencies. The database,

computer system, and software created shall be shared and distributed to Local Government

Units (LGUs) where every LGU will be required to maintain its own online registry.

Any sex offender who shall knowingly and willfully fail to register or update his

information shall suffer the penalty of one to five-year imprisonment. In the event said

unregistered sex offender commits a crime, regardless of its nature, the penalty of five to 10

years imprisonment shall be imposed, which shall be in addition to penalty imposed by reason of

the crime committed.

The following are considered as “sex offenders” under this proposed Bill:

Any person convicted by final judgment of:


(1)  Rape under Article 266 of the Revised Penal Code;
(2)  Crimes committed against Chastity as defined under Title XI, Book 2 of
the Revised Penal Code; and
                                                                                               
17
  An  Act  Establishing  a  National  Sex  Offender  Registry  System  and  Providing  Funds  Therefore    [Sex  Offender  Registration  Act  of  
2015],  H.B  No.  6301,  16  Cong.,  3d  Reg.  Sess.  (2015).  
th
(3)  Violations of Sec. 5(g) of Republic Act No. 9262, as amended as well as
other forms of Sexual Violence as defined therein.

This term shall include persons convicted by final judgment before foreign courts
for the crimes of rape, sexual assault, acts of lasciviousness, or other similar
crimes involving sexual violence or activity.18

The duration of the registration is classified into three levels depending on the severity of

the offense committed. The least serious offenders are required to appear in person once a year

and shall remain in the registry for fifteen (15) years; the serious offenders must appear in person

every six (6) months and shall remain on the registry for twenty-five (25) years; and the most

serious offenders shall remain on the registry for life and shall be required to appear in person

every three (3) months.19

The severity of the offense is to be determined solely by the court that convicted the

offender. However, for those convicted of foreign courts or when the court fails to determine the

severity of the offense, the severity shall be deemed as the most serious and the sex offender

shall remain on the registry for life and shall be required to appear in person every three (3)

months.20

The following are emphasized to better compare S.B. No. 1787 and H.B. No. 6301

S.B. No. 1787 H.B. No. 6301


(2007) (2015)

Crimes Included (1) Rape, as defined in Article Rape under Article 266, RPC;
266-A, RPC;
(2) Acts of lasciviousness, as Crimes committed against
defined Art. 336, RPC; Chastity as defined under
(3) Qualified seduction, as Title XI, Book 2, RPC; and
defined in Art. 337, RPC;
(4) Simple seduction, as Violations of Sec. 5(g) of
defined in Art. 338, RPC; Republic Act No. 9262, as
(5) Acts of lasciviousness amended as well as other
with the consent of the forms of Sexual Violence as
offended party as defined in defined therein.
Art. 339, RPC;
(6) Corruption of minors as
defined in Art. 340, RPC; and
(7) White slave trade as
defined in Art. 341, RPC.

                                                                                               
18
Ibid., § 3
19
 Ibid., § 6
20
 Ibid.  
Time of Registration No later than ten (10) days Prior to being released from
after being released from the prison
custody of BJMP or being
placed on probation or parole

Renewal of Registration Not less than once in each 90- N/A


day period following the date
of the sex offender's initial
registration for a period of 20
years

Duration of Registration in N/A For least serious offenders -


the Registry 15 years;
Serious offenders - 25 years;
Most serious offenders - life

Accessibility of the Registry Request information from the Website available to the
office of the mayor of the city public that includes relevant
or municipality where information on the offender;
offender resides LGU

Penalties Prision correcional in its 1-5 years of imprisonment for


maximum period for failure to knowingly or wilfully fails to
comply with registration register or update
requirement information;

5-10 years of imprisonment in


addition to the penalty to be
imposed if an unregistered
sex offender commits a crime.

The duration of registration under H.B. No. 6301 is lifted from U.S. law with the same

duration for three classifications of sex offenders. Unlike U.S. law however, Rep. Pagdilao

leaves it up to the court’s discretion to classify the offense committed by the accused upon

conviction.

IMPLICATIONS OF SEX OFFENDER


REGISTRATION

The bill appears as a source of protection, but human rights are universal, and while those

that have committed a crime must face the consequences of their actions, they too have rights

that must be protected.

The convicted offenders may view the registration as wholly discriminatory. The express

implication of their sentencing and conviction is that they have already been subjected to the

punitive measures that accompany the crime that they have committed. To require them to

essentially out themselves to the public for their crimes would lead to a situation wherein they

are then vulnerable to retaliation from the families of their victims, and the general public.
Registration also seeks to affect foreign nationals. Those convicted of sexual offenses in

their respective countries would no longer be allowed entry into the Philippines.21 This is in

response to the spate of the growing ‘sex tourism’ incidents, which have resulted in the abuse of

countless women and children over time.22 In 2015, an Australian man who allegedly ran an

underground pedophile ring was arrested in the country.23 The man in question, one Peter Scully,

had been a fugitive in Australia, and had managed to enter the Philippines with little problem.

The man had spent the last ten years in hiding in the country and was engaged in the

dissemination of not just child pornography, but also snuff films that featured minors which were

distributed via the Dark Web.

The question of whether or not the establishment of this registry will be sufficient to

combat the rising instances of human trafficking, exploitation, and prostitution of women and

children remains. Are ex-felons that have been charged with sexual offenses so likely to become

recidivists that they require close monitoring at any given time? Is there good reason to believe

that these individuals are more likely to pursue criminal action compared to others?

If one were to look at foreign incidents concerning repeat violations of sexual offenses,

recidivism rates for offenders are actually quite low.24 In the United States, there majority of

these offenders are not likely to be recidivists, though there exists a very small portion of the

demographic that is responsible for most of the ‘repeat’ crimes. This sort of study has not yet

been reliably conducted here in the Philippines, which in turn, leaves the holes in our

perspective.

Furthermore, there is evidence that a good majority of sexual crimes are not reported,

even in the United States, which certainly affects the validity of the study on recidivism as a

                                                                                               
21
Id.
22
Margaret Simons, The Innocent Victims Abandoned in Sin City: Inside the Red-Light Slum Filled with Children Father by Australian Sex
Trade Tourists who get Young Women Pregnant Before Disappearing, Daily Mail UK., Jul. 18, 2015, available at
http://www.dailymail.co.uk/news/article-3164917/The-red-light-city-Philippines-filled-children-fathered-Australian-sex-trade-tourists-women-
pregnant-abandoning-nothing.html (last accessed July 11, 2016).
23
Agence France-Press, Australian Man Peter Scully Pleads Not Guilty to Child Rape in Philippines, The Guardian, Jun. 16, 2015, available at
https://www.theguardian.com/world/2015/jun/16/australian-man-peter-scully-pleads-not-guilty-to-child-in-philippines(last accessed July 12,
2016).
24
U.S. Department of Justice, Recidivism of Adult Sexual Offenders, available at
http://www.smart.gov/pdfs/RecidivismofAdultSexualOffenders.pdf (last accessed July 11, 2016).
measuring stick. Many rape cases are still regarded as private matters that remain unreported in

order to keep families from ‘losing face.’25

Nevertheless, it is important to take similar, precedent foreign policies into consideration.

Megan’s Laws26 is highly criticized by a number of civil rights groups in the United States.

Many claim that the lifetime ‘branding’ of these offenders would be tantamount to irreparable

damage not just to the convicted individual, but also their families.

Leaving aside any reservations toward the upcoming shift in enforcement of laws by the

current president of the Philippines, the passage of the House Bill as it is currently written would

appear to violate the rights of the offender. Everyone is entitled to be treated as though innocent

prior to a conviction, and to monitor these offenders as the Bill suggests, leaves too much to

private interpretation.

The United States, Canada, and the United Kingdom are three of the most socially and

politically developed countries in the world. Yet, after more than a decade of enactment,

registrants are still challenging the constitutionality of such registry: garnering polar rulings from

different judicial levels and rooted in so many different facts and circumstances.

To follow these countries’ footsteps is a double-edged sword. What makes this topic a

somewhat contested issue is the presence of two sets of rights that run against each other, with

convincing arguments being used by both sides. On one hand, you have the safety and peace of

mind of women and children or whatever demographic the offender had once targeted. On the

other hand, the offender may be ostracized and discriminated upon if his status as a sex offender

is made known, even after complete and sincere rehabilitation.

SEX OFFENDER REGISTRATION vis-a-vis


THE EQUAL PROTECTION CLAUSE

One who seeks to question the validity of this proposed legislation, once passed, may

argue that it violates the equal protection clause of the Constitution. Under the Constitution, no

                                                                                               
25
Id.
26
Smith v. Doe, 538 U.S. 84 (2003).
person shall be deprived of life, liberty, or property without due process of law, nor shall any

person be denied the equal protection of the laws27. However, the Supreme Court has held in

several cases that the equal protection clause of the Constitution is not absolute.

In the case of Garcia v. Hon. Drilon28, the petitioner husband came to the Court to assail

the validity of R.A. No. 9262 as it violated the equal protection and due process clauses of the

Constitution. The Court upheld the validity of the law, saying that it does not violate the guaranty

of equal protection of the laws as equal protection simply requires that all persons or things

similarly situated should be treated alike, both as to rights conferred and responsibilities

imposed.

The ruling in Victoriano v. Elizalde Rope Workers’ Union29 is informative:

The guaranty of equal protection of the laws is not a


guaranty of equality in the application of the laws upon all
citizens of the state. It is not, therefore, a requirement, in
order to avoid the constitutional prohibition against
inequality, that every man, woman and child should be
affected alike by a statute. Equality of operation of statutes
does not mean indiscriminate operation on persons merely
as such, but on persons according to the circumstances
surrounding them. It guarantees equality, not identity of
rights. The Constitution does not require that things which
are different in fact be treated in law as though they were
the same. The equal protection clause does not forbid
discrimination as to things that are different. It does not
prohibit legislation which is limited either in the object to
which it is directed or by the territory within which it is to
operate.

The equal protection of the laws clause of the Constitution


allows classification. Classification in law, as in the other
departments of knowledge or practice, is the grouping of
things in speculation or practice because they agree with
one another in certain particulars. A law is not invalid
because of simple inequality. The very idea of
classification is that of inequality, so that it goes without
saying that the mere fact of inequality in no manner
determines the matter of constitutionality. All that is
required of a valid classification is that it be reasonable,
which means that the classification should be based on
substantial distinctions which make for real differences;
that it must be germane to the purpose of the law; that it
must not be limited to existing conditions only; and that it
must apply equally to each member of the class. This Court
has held that the standard is satisfied if the classification or

                                                                                               
27
 PHIL. CONST. Art. III, § 1.
28
 G.R. No. 179267,
29
 G.R. No.
distinction is based on a reasonable foundation or rational
basis and is not palpably arbitrary.30

In sum, the following must be present in order for classification to be valid so that the

equal protection clause is not violated: (1) it must be based on substantial distinctions; (2) it must

be germane to the purposes of the law; (3) it must not be limited to existing conditions only; and

(4) it must apply equally to all members of the class.

At present, the proposed legislation should be refined insofar as substantial distinctions

are concerned so that it can apply equally to all members of the class (offenders). Per

observation, the classification of the gravity of the offenses are left to the discretion of the courts

so it is suggested that such classification be based on the penalty imposable by law in order for

the same to be clear and concise. Likewise, if the purpose of the Bill is to be fully served then

other special penal laws involving sexual abuses should be included in order for all possible

victims to be given the justice that they deserve.

JURISPRUDENTIAL ANTECEDENTS

In the case of People of the Philippines vs. Mervin Gahi31, the victim, AAA, is sixteen

years old and a resident of Leyte. She knows accused Mervin Gahi, the latter being the husband

of her aunt DDD. AAA was raped twice by the perpetrator. In both instances, Mervin was

holding a knife, poking it at AAA. Fearful for her life, AAA did not resist Mervin’s initial

advances. Mervin warned AAA to keep secret what transpired or else he would kill her. The

Supreme Court declared that no ill motive on the part of AAA to falsely accuse appellant was

ever brought up by the defense during trial. This only serves to further strengthen AAA’s case

since we have consistently held that a rape victim’s testimony as to who abused her is credible

where she has absolutely no motive to incriminate and testify against the accused. It is also

equally important to highlight AAA’s young age when she decided to accuse her kin of rape and

go through the ordeal of trial. In fact, when she painfully recounted her tribulation in court, she

was just at the tender age of sixteen (16) years old. Jurisprudence instructs us that no young

woman, especially of tender age, would concoct a story of defloration, allow an examination of

her private parts, and thereafter pervert herself by being subjected to public trial, if she was not

                                                                                               
30
 Ibid.
31
 G.R. No. 202976, February 19, 2011
motivated solely by the desire to obtain justice for the wrong committed against her. Thus,

Mervin should suffer the penalty of reclusion perpetua for each conviction of simple rape.

In People of the Philippines vs. Ogarte32, the victim, AAA filed the two complaints for

rape against her own father Ogarte, whom she identified in open court. Ogarte was convicted of

two counts of rape by using force and intimidation, qualified by the concurrent circumstances of

AAAs minority and Ogartes relationship with AAA. The qualifying circumstances of age and

relationship were not only properly alleged in the information but were also duly established by

the prosecution during the trial of the cases against Ogarte.

In People of the Philippines vs. Dominguez33, accused-appellant was indicted for four

counts of rape and one count of attempted rape, all qualified by his relationship with and the

minority of the private offended party. The Supreme Court in this case defined the term lewdness

as an obscene, lustful, indecent, and lecherous act which signifies that form of immorality carried

on a wanton manner. Thus, it is morally inappropriate, indecent, and lustful for accused-

appellant to undress himself and his own daughter who was completely capable of dressing or

undressing herself, while his wife was away and his other children were asleep; or doing the

same acts in an isolated coconut farm where only the two of them were present. No standard

form of behavior can be anticipated of a rape victim following her defilement, particularly a

child who could not be expected to fully comprehend the ways of an adult. More importantly, in

incestuous rape cases, the father’s abuse of the moral ascendancy and influence over his daughter

can subjugate the latter’s will thereby forcing her to do whatever he wants. Otherwise stated, the

moral and physical dominion of the father is sufficient to cow the victim into submission to his

beastly desires

In People of the Philippines vs. Abay34, the victim was more than 12 years old when the

crime was committed against her. The Information against appellant stated that AAA was 13

years old at the time of the incident. Therefore, appellant may be prosecuted either for violation

of Section 5(b) of RA 7610 or rape under Article 266-A (except paragraph 1[d]) of the Revised

                                                                                               
32
  G.R. No. 182690, May 30, 2011
33
 G.R. No. 180914, November 24, 2010
34
 G.R. No. 177752, February 24, 2009
Penal Code. While the Information may have alleged the elements of both crimes, the

prosecution’s evidence only established that appellant sexually violated the person of AAA

through force and intimidation by threatening her with a bladed instrument and forcing her to

submit to his bestial designs. Thus, rape was established The Supreme Court in this case made a

distinction with regard the penalty to be imposed upon the accused depending on the age of the

victim. Hence, if the victim of sexual abuse is below 12 years of age, the offender should not be

prosecuted for sexual abuse but for statutory rape under Article 266-A(1)(d) of the Revised Penal

Code and penalized with reclusion perpetua. On the other hand, if the victim is 12 years or older,

the offender should be charged with either sexual abuse under Section 5(b) of RA 7610 or rape

under Article 266-A (except paragraph 1[d]) of the Revised Penal Code.

In People of the Philippines vs. Elister Basmayor35, Elister was charged with statutory

rape. The first element was proved by the testimony of the victim herself, while the second

element was established by AAA’s Certificate of Live Birth showing that she was born on 4

February 1990. AAA was eleven (11) years old when the crime was committed on 12 November

2001. The Supreme Court held that even though there were inconsistencies in the testimony of

AAA regarding the alleged rape committed on 9 November 2001, those said discrepancies did

not affect her credibility when she testified on the rape committed on her on 12 November 2001.

Furthermore, the qualifying circumstance of relationship has been sufficiently proved. The

victim declared that the appellant was her mother’s live-in partner. Her mother, BBB, also

testified and pointed to appellant as her live-in partner.

In People of the Philippines vs. Pedro Nogpo36, the Supreme Court held that a

sweetheart cannot be forced to have sex against her will – love is not a license for lust. Even

assuming arguendo that they were lovers, rape could still have been committed if he had carnal

knowledge with private complainant against her will. This Court has consistently ruled that a

"love affair" does not justify rape, for the beloved cannot be sexually violated against her will.

Moreover, it was inappropriate for the defense to blame private complainant for not duly

resisting accused-appellant, considering that she was an adult woman of 33 years while accused-

appellant was only 22, drunk and unarmed. Suffice it to say that in rape cases, the law does not

                                                                                               
35
 G.R. No. 182791 February 10, 2009
36
 G.R. No. 184791 April 16, 2009
impose a burden on the private complainant to prove resistance. The degree of force and

resistance is relative, depending on the circumstances of each case and on the physical

capabilities of each party. It is well settled that the force or violence required in rape cases is

relative; when applied, it need not be overpowering or irresistible. When force is an element of

the crime of rape, it need not be irresistible; it need but be present, and so long as it brings about

the desired result, all consideration of whether it was more or less irresistible is beside the point.

The Supreme Court took note of the fact that evil in man has no conscience. The beast in him

bears no respect for time and place; it drives him to commit rape anywhere -- even in places

where people congregate such as in parks, along the roadside, within school premises, and inside

a house where there are other occupants. The crime of rape may be committed even when the

rapist and the private complainant are not alone. Rape may take only a short time to

consummate, given the anxiety of its discovery, especially when committed near sleeping

persons, the court has held that rape is not impossible even if committed in the same room while

the rapist’s spouse is sleeping or in a small room where other family members also sleep. It was

not impossible or incredible for the members of the complainant’s family to be in deep slumber

and not to be awakened while the brutish sexual assault on her was being committed.

In People of the Philippines vs. Mario Martin37, it is undisputed that AAA is a mental

retardate. This was shown in the psychological evaluation report wherein she was found to have

an IQ of 41.8. Even appellant admitted his daughter’s "handicap" in his testimony. However,

despite her age and retardation, she was still able to communicate her experience in a sufficiently

coherent and detailed manner. She clearly stated that appellant touched her breasts, removed her

clothes and underwear, touched her vagina and inserted his penis in her vagina. Her narration

was as natural and straightforward as could be, considering her mental deficiency. If there were

instances when her answers were inaccurate or unresponsive, these did not make her testimony

any less credible. Even children of normal intelligence cannot be expected to give a precise

account of events considering their naiveté and still undeveloped vocabulary and command of

language. Yet, despite her limitations, AAA never wavered in her testimony.

                                                                                               
37
 G.R. No. 172069, January 30, 2008.
In People of the Philippines vs. Nido Garte38, accused-appellant's reliance on the alleged

discrepancies between AAA's Sinumpaang Salaysay and handwritten sworn affidavit on the

number of times she was raped is untenable. We take note of the steadfast doctrine prevailing in

our criminal justice system that inconsistencies found in the ex parte affidavits do not necessarily

downgrade the credibility of a witness. In the same manner, the Supreme Court ruled that the

alleged inconsistency with respect to the weapons used in the commission of the rapes is

likewise unavailing since it is a mere extraneous matter and does not remove the fact that the

crime of rape was repeatedly committed by the accused-appellant against the victim through the

use of force and intimidation. It bears emphasizing that in a rape committed by a father against

his own daughter, the former's moral ascendancy and influence sufficiently takes the place of

violence or intimidation. Under the same circumstances, proof of force and violence is not even

essential, because the moral and physical ascendancy of the father over his daughter is sufficient

to cow her into submission to his bestial desires.

In People of the Philippines vs. Jimmy Tabio39, AAA never wavered in her assertion that

appellant raped her. AAA’s testimony is distinctively clear, frank and definite without any

pretension or hint of a concocted story despite her low intelligence as can be gleaned from her

answers in the direct examination. The fact of her mental retardation does not impair the

credibility of her unequivocal testimony. AAA’s mental deficiency lends greater credence to her

testimony for someone as feeble-minded and guileless as her could not speak so tenaciously and

explicitly on the details of the rape if she has not in fact suffered such crime at the hands of the

appellant.

In People of the Philippines vs. Conrado Diocado40,The victim remained steadfast in

her narration and her identification of Diocado as the perpetrator despite the rigorous cross-

examination she underwent. Her credibility was strengthened when she cried at certain points of

her testimony as she related the details of the rape. It was further reinforced by its marked

compatibility with the physical evidence reflected in Dr. Capellan's findings. The testimonial

evidence of rape, supported by convincing physical evidence, cannot be defeated by her own

                                                                                               
38
 G.R. No. 176152, November 25, 2008
39
 G.R. No. 179477, February 6, 2008
40
 G.R. No. 170567, November 14, 2008
mother's contrary testimony. That the mother was in fact at home in the afternoon of February 7,

1998 does not negate the commission of the rape. Time and again, we have declared that lust is

no respecter of time and place. It is a master that does not recognize decency or morality but

cares only for the fulfillment of its selfish desires. The Supreme Court cannot give credit to what

CCC, as mother, said with respect to her daughter's charge of sexual abuse in the hands of her

stepfather.

CONCLUSION

As the bill is currently still being discussed in the Congress, the public has no knowledge

yet on how it would look like if it is finalized. The Bill appears to have rallied a strong backing,

with many groups viewing it as the stepping stone to the formation of distinctive preventive

measures. It is of the author’s considered option, however, that more details be added in order to

make the law represented within in order to protect both the public and the offender.

Looking to precedents set by laws established in other countries, the bare registration and

insufficient depiction of what will be done in the event of a registered sex offender’s residence

being near ‘sensitive’ areas such as nurseries, elementary schools, can lead to undesirable

situations. The proactive approach to identifying all sexual offenders may lead to trial by

publicity and ‘manhunts’ that infringe on the right to privacy of these individuals.

The days of organizing lynch mobs are long past, and yet, they remain a possibility when

emotions run high.

The local government units will have to be very active in the maintenance of the sex

offender registry, as well as in the performance of the duties imposed on them by the pending

legislation. If the Bill is to be passed as is, the City or Municipal mayor must, within seven days

of receiving the registration information of the former sex offender, inform every licensed

daycare center, nursery school, elementary and high school within a two kilometer radius of the

offender’s residence.
Communities must be responsible for the protection of vulnerable individuals,

particularly of children. The call must be for prevention by positive action, by fostering an

environment where the offender would be made reluctant or outright unable to perform any acts

which might constitute a sex offense. While this method may seem like a case of shifting

methods toward the control of the object of ‘temptation’ to the offender, this is not so. This is

simply in line with the State’s police power, allowing it to function in a manner that does not

intrude pervasively into the lives of its constituents while simultaneously keeping peace and

order.41

While the State is the one that acts as a peacekeeper, the individuals that make up a

society cannot avoid their duty to actually take part in the acts which would be for the

community’s betterment. The same can be said in this situation. Society can condemn a person

as easily as it could come around to protect. In the age of social media, all it takes to start the ball

rolling is a single post shared in the right kind of website.

Another sentiment that has been bandied by civil rights activists in the United States is

that the indiscriminate labeling of these sexual offenders can actually be detrimental to the

efforts of these offenders from rehabilitating themselves, particularly those who have ‘lesser’

offenses. This can be rectified by a careful control over the degree of care to be undertaken with

the corresponding repercussions of each tier. Society must be responsible too, for keeping an eye

on legislation for anything that may infringe on the rights of all and any of its citizens.

The rights of both the offender, and the women and children must be respected. It is not a

choice between one and the other, but rather, a community effort leaning toward both reform and

protection. Society must be friendly to both reform and prevention, the safety of all despite their

past wrongdoings, and the means to keep people from committing the mistake again on their own

volition.

Law cannot exist in a state wherein selective application is taken to an extreme. When

being mindful of the rights of women and children, and society’s well-being as a whole, one

                                                                                               
41
PHIL. CONST. Art. II, § 5.
cannot deprive offenders of their most basic of rights. The dignity of a human being is

entrenched not only in the way we live, but also the way that law treats us.

Offenders should not be condemned to a lifetime of ridicule, even as steps are taken to

ensure that they do not pose a threat to their victims again. A delicate balance must be

maintained in order to ensure that the State is able to look after all under its domain in a human

and humane manner. Sexual offenses are no small matter, and most of even the hardened

criminals regard those who prey on women and children as the lowest of the low.

Although many may argue that there is no erasing what has happened for the victims,

what must be done is to provide the infrastructure necessary to aid these same people with their

trauma. Simultaneously, their assailants must be made to face the justice that must be faced by

those who commit the same crime.

The law is not absolute, and must adapt to attending circumstances. But it is there, and

even in our outrage, we cannot and should not allow emotion to carry through into equally unjust

acts against those that have wronged us.