RA 7610: Child Protection Act

RA 7610: Special Protection Against Child Abuse, Exploitation, and Discrimination Act

• The State protects children from all forms of abuse, neglect, cruelty, exploitation, discrimination, and conditions harming their development
• The child's best interest is the primary consideration

Definition of Children

• Refers to individuals below 18 years old
• Also includes those older than 18 who cannot fully care for themselves due to physical or mental disabilities

Definition of Child Abuse

• Encompasses habitual or isolated maltreatment, including:
  • Psychological and physical abuse, neglect, cruelty, sexual abuse, and emotional maltreatment
  • Actions or words that degrade a child's dignity
  • Unreasonable denial of basic survival needs like food and shelter
  • Failure to provide prompt medical care for injuries, leading to impaired growth

Circumstances Endangering Children

• Includes situations like:
  • Living in a conflict zone
  • Hazardous working conditions
  • Living on the streets without adult care
  • Being part of an indigenous community or living in poverty
  • Being a victim of disasters

Liability

• To be liable, an offender must commit an abusive act against a child

Article 3, Sec 5, Par a: Child Prostitution

• This section covers those who engage in, promote, facilitate, or induce child prostitution, including:
  • Procurers of child prostitutes: Acting as a procurer is a crime
  • Inducing someone to be a client: Includes written or oral advertisements
  • Giving money for sexual service completes the crime, but any engagement in child prostitution is a crime
  • Abuse of influence: Teachers or instructors abusing their position
  • Threatening or using violence
  • Giving monetary consideration: Goods or benefits to engage a child in prostitution

Par b: Elements of Sexual Abuse

• Accused commits sexual intercourse or lascivious conduct with a child: The child must meet the age definition
• Proving the child's age can be done through:
  • Original or certified birth certificate
  • Baptismal and school records if a birth certificate isn't available
  • Testimony from the victim's mother or family member

Defining Sexual Intercourse and Lascivious Conduct

• Sexual intercourse involves mutual sexual simulation, like the insertion of a man's erect penis into a woman's vagina, ejaculation is usual
• Lascivious conduct involves intentional touching of intimate areas (genitals, anus, groin, breast, inner thigh, or buttocks) or introduction of objects into those areas, with intent to abuse, humiliate, harass, degrade, arouse, or gratify sexual desire

Key Points on Sexual Abuse

• Habitual sexual abuse isn't required
• Each incident of sexual intercourse or lascivious conduct with a child exploited in prostitution is a separate offense
• Sex with a child is not inherently a crime; the punishable act is sexual abuse
• Sexual abuse is more than just sexual intercourse or lascivious conduct

Exploitation Requirement

• It must be demonstrated that the child is exploited in prostitution or subjected to sexual abuse
• Exploitation defined: A child engages in sexual acts for money, profit, or any consideration

Consent is Irrelevant

• Consent isn't a valid defense

Age of the Child

• The child must not be under 12 years old, as it would then constitute statutory rape
• Engaging in prostitution doesn't negate statutory rape for children under 12
• Liability applies under this act if the child is 12 or older; otherwise, it's statutory rape

Par c: Establishment and Profit

• The offender is the manager or owner of an establishment (sauna, bar, resort, etc.) where child prostitution occurs
• The offender profits from child prostitution

Article 3, Sec. 6: Attempted Child Prostitution

• Any non-relative found alone with a child in a secluded establishment may be charged for attempted child prostitution if exploitation is reasonably suspected

Establishing Attempt

• The offender is alone with the child in a secluded area that is not a residence
• The offender is not a relative:
  • Relationship is an exempting circumstance for attempted child prostitution but not a defense for consummated acts
  • Relationship is an aggravating circumstance in some cases
• Circumstances suggest the child is about to be exploited

Article 4, Sec 7: Child Trafficking

• Trading and dealing with children, including buying, selling, or bartering for money or any consideration

Defenses and Presumptions in Trafficking

• Adoption is not a defense
• Custody of two or more children without legal basis creates a presumption of trafficking

Sec 8: Attempted Child Trafficking

• A child travels alone to a foreign country without valid reason or DSWD clearance
• A pregnant mother provides an adoption consent affidavit
• Recruitment of women to bear children for trafficking
• Simulation of a child's birth by medical staff for trafficking
• Act of finding children among low-income families

Article 5, Sec 9: Obscene Publications and Indecent Shows

• Hiring, employing, using, persuading, inducing, or coercing a child to perform in obscene exhibitions, publications, or materials

Defining Obscenity

• Nudity alone is not indecent or obscene
• Obscenity Tests
  • Kottinger Test: Depends on community standards
  • Corrupting Tendency Test: Tendency to deprave or corrupt

Aggravating Circumstances and Liability

• Using a child under 12 as a performer or seller in violation of Sec 9, Par. 1 is an aggravating circumstance
• Parents face PRISION MAYOR if they cause or allow their child's participation in obscene activities
• Trafficked persons are victims and not penalized

Article 6, Sec 10: Other Acts of Abuse

• Prejudicial to a child's development
• Child abuse, whether habitual or not, is liable
  • Elements include psychological, physical, and sexual abuse, neglect, cruelty, emotional maltreatment, acts that demean the child, deprivation of basic needs, and failure to provide medical treatment
• Child cruelty means demeaning acts, threats, stalking, and physical injuries
• Exploitation includes pornography and child labor

RA 9208: Anti-Trafficking in Persons Act of 2003

• Act focuses on preventing and punishing trafficking in persons

Core Definition

• Trafficking in persons involves recruitment, transportation, transfer, harboring, or receipt of persons, with or without consent, through coercion, abduction, fraud, deception, abuse of power, or exploitation, for the purpose of exploitation

Special Consideration for Children

• Trafficking of a child is considered trafficking in persons even without the means mentioned above

Definitions of Forced Labor, Slavery, and Debt Bondage

• Forced labor/slavery: Extraction of work/services through enticement, violence, intimidation, threat, coercion, deprivation of freedom, abuse of authority, debt bondage, or deception
• Debt bondage: Pledging services as security for debt without clear terms or fair valuation

Sex Exploitation, Prostitution, Pornography, and Sex Tourism

• Sexual exploitation: Participation in prostitution or pornography due to threat, deception, coercion, abuse of authority, debt bondage, fraud, or abuse of vulnerability
• Prostitution: Use of a person for sexual acts in exchange for money or other consideration
• Pornography: Representation of explicit sexual activities or sexual parts for sexual purposes, through any means
• Sex tourism: Tourism packages offering sexual services

Prohibited Acts and Penalties

• Includes recruiting, transporting, transferring, harboring, providing, or receiving a person for exploitation: 20 years imprisonment and a fine of P1-2 million
• Introducing/matching for marriage to exploit, offering/contracting marriage for exploitation
• Organizing tours for sexual exploitation, maintaining/hiring for prostitution/pornography, facilitating adoption for exploitation
• Recruiting/abducting for organ removal or recruiting/adopting a child for armed conflict

Acts Promoting Trafficking in Persons

• Knowingly leasing premises, producing fake documents, advertising trafficking, assisting in misrepresentation, facilitating exit/entry with fraudulent documents: 15 years imprisonment and a fine of P500,000-1 million
• Confiscating documents or belongings, benefiting from the labor of trafficked persons

Qualified Trafficking

• Trafficked person is a child, adoption is for exploitation, crime committed by a syndicate or in large scale: Life imprisonment and a fine of P2-5 million
• Offender is an ascendant, public officer, or abuses authority, trafficked person is recruited for prostitution with military or law enforcement, offender is military or law enforcement and if HIV of AIDS occurs
• The offender is a member of the military or law enforcement agencies
• A life-threatening disease as a result of the qualified trafficking

Penalties for Use of Trafficked Persons

• First offense leads to community service and fine, subsequent offenses may lead to imprisonment (1 year) and fine ($100,000)

Confidential Proceedings

• Publicizing trafficking cases tried behind closed doors results in penalties: 6 years imprisonment, fine of P500,000-1 million

Prosecution and Venue

• Anyone with personal knowledge can file a complaint: the trafficked person, parents, spouse, siblings, children, or legal gaurdian can prosecute
• Cases are filed where the offense occurred or where the trafficked person resides, with the first court acquiring jurisdiction

Special Considerations for Foreigners

• Foreign offenders are deported and barred from re-entry
• DOJ, with DFA, works to include trafficking in extradition treaties

Protections for Foreign Nationals Trafficked in the Philippines

• Subject to guidelines from the Council, are entitled to protection, assistance, and services and allowed to remain in the country to prosecute offenders

Statute of Limitations

• Trafficking cases prescribe in 10 years, 20 years for syndicate or large-scale cases, commencing upon release from bondage

Services for Trafficked Persons

• Government agencies provide emergency shelter, counseling, free legal services

Anti-Money Laundering Act (RA 9160), as amended by RA 9194

• Approved on September 29, 2001

Purpose of the Act

• To protect bank account integrity and prevent the Philippines from being used for money laundering
• To cooperate in transnational investigations and prosecutions

What is Money Laundering?

• A crime where proceeds of unlawful activities are transacted, appearing to originate from legitimate sources

Examples of Unlawful Activities

• Kidnapping for ransom
• Violations of the Comprehensive Dangerous Drugs Act of 2002 and the Anti-Graft and Corrupt Practices Act
• Plunder; Robbery and extortion; Jueteng and Masiao; Piracy on the high seas; Qualified theft; Swindling; Smuggling;
• Violations under the E-Commerce Act of 2000, Hijacking and other violations under Republic Act No. 6235, destructive arson and murder;
• Fraudulent practices and other violations under Securities Regulation Code of 2000
• Similar felonies or offenses punishable under foreign laws

Money Laundering Offenses

• Transacting with knowledge of proceeds from unlawful activity
• Failing to perform an act that facilitates money laundering
• Failing to disclose monetary instruments to the AMLC

Competent Court

• Regional Trial Courts have jurisdiction over money laundering
• Sandiganbayan handles cases involving public officers

Prosecution

• A person can be charged and convicted for both money laundering and the unlawful activity

Freeze Order

• The Court of Appeals can issue a freeze order ex parte upon application by the AMLC with probable cause

AMLC Authority

• The AMLC can inquire into deposits/investments with a court order if related to unlawful activities or money laundering

BSP Authority

• The BSP can examine deposits during periodic or special examinations

Prohibitions

• The Act cannot be used for political harassment or to hamper competition
• No money laundering case can be filed against a candidate during an election period

Restitution

• The New Civil Code governs restitution for the aggrieved party

Penalties for Money Laundering

• Section 4(a): 7-14 years imprisonment, fine of P3M to twice the amount laundered
• Section 4(b): 4-7 years imprisonment, fine of P1.5M to P3M
• Section 4(c): 6 months-4 years imprisonment, fine of P100,000 to P500,000

Penalties for Failure to Keep Records

• 6 months-1 year imprisonment, fine of P100,000 to P500,000

Malicious Reporting

• Penalties include imprisonment and fines, with denial of probation

Penalties for Corporation

• Penalties apply to responsible officers; the court may suspend or revoke the license of the entity

Penalties for Government Officials

• Additional penalties include disqualification from office

Breach of Confidentiality

• Punishable by imprisonment and fines

Plunder (RA 7080)

• Approved on July 12, 1991

Who Can Be Guilty of Plunder

• Public officer amassing ill-gotten wealth of at least P50 million, in connivance with family, relatives, associates, subordinates, or other persons
• Any person participating with the public officer in the commission of the crime

What is Ill-Gotten Wealth

• Any asset acquired through criminal means or schemes

How Is Ill-Gotten Wealth Acquired

• Misappropriation of public funds, receiving commissions, illegal conveyance of government assets, receiving shares in business enterprises, establishing monopolies

Total Value

• At least P50 Million

Penalty

• Reclusion perpetua to death

Determination of Penalty

• The degree of participation and mitigating circumstances are considered

Forfeiture

• Ill-gotten wealth is forfeited in favor of the State

Public Officer Definition

• Any person holding public office by appointment, election, or contract

Government Scope

• Includes the National Government, subdivisions, agencies, instrumentalities, and GOCCs

Definition of Person

• Includes any natural or juridical person

Competent Court

• The Sandiganbayan has original jurisdiction

Establishing Plunder

• It's sufficient to establish a pattern of overt criminal acts

Suspension from Office

• A public officer is suspended from office during prosecution

Penalties for Conviction

• The accused will lose retirement or gratuity benefits

Acquittal

• If acquitted, the officer is reinstated with back pay

Prescription

• Plunder prescribes in 20 years

Bouncing Checks Law (Batas Pambansa Blg. 22)

• BP 22 does not cover manager’s and cashier’s checks
• It does cover accommodation or guarantee checks
• It does cover crossed checks since it is a negotiable instrument

Ways to Violate BP 22

• The act of making or issuing a worthless check
• Not the nonpayment of the obligation

Elements of the First Paragraph of Section 1 of BP 22

• The accused makes, draws, or issues any check to apply to account or for value.
• The accused knows at the time of the issuance that he or she does not have sufficient funds in, or credit with, the drawee bank for the payment of the check in full upon its presentment.

Prima Facie Evidence

• There is a prima facie evidence of knowledge of insufficiency of funds when the check was presented within 90 days from the date appearing on the check and was dishonored unless:
  • Such maker or drawer pays the holder thereof the amount due thereon within 5 banking days after receiving notice that such check has not been paid by the drawee
  • makes arrangements for payment in full by the drawee of such check within (5) banking days after receiving notice of non-payment.

Notice of Dishonor

• May be sent to the drawer or maker, by the drawee bank, the holder of the check, or the offended party

Elements of the Second Paragraph of Section 1 of BP

• That at the time the check was issued, the issuer had sufficient funds in or credit with the drawee bank. - The check was dishonored when presented for payment within 90 days from its date for failure to maintain sufficient funds or credit to cover the amount.
  • any person, makes or draws and issues a check
  • such person has sufficient funds in or credit with the drawee bank
  • failure to keep sufficient funds or to maintain a credit to cover the full amount of the check if presented within a period of ninety (90) days from the date appearing thereon
  • for which reason it is dishonored by the drawee bank

Elements of Estafa Under Paragraph 2(d), Article 315 of Revised Penal Code

• postdating or issuance of a check in payment of an obligation contracted at the time the check was issued
• lack of sufficiency of funds to cover the check
• damage to the payee

Comparison of Violation of BP 22 From Estafa

• In BP 22, deceit and damage are not essential or required
• Knowledge on the part of the maker or drawer of the check of the insufficiency of his funds is essential element
• The gravamen of the offense is the issuance of a bad check, not the non-payment of an obligation

Comparison Cont

• BP 22, the mere act of issuing an unfunded check is an offense against public order to stem the harm caused by these bouncing checks to the community
• Article 315, Par (d) is a crime against property because the issuance of the check is used as a means to obtain a valuable consideration from the payee

Failure To Deposit Amount

• Estafa has a 3 day from receipt of notice from the bank and or the payee or holder that said check has been dishonored for lack or insufficiency of funds is prima facie evidence of deceit constituting false pretense or fraudulent act
• As for BP 22, 5 days of receiving notice that the check has been rejected by the drawee bank gives rise to presumption of knowledge of insufficiency of funds or credit

"Simultaneous Obligation" From "Pre-Existing" Obligation

• Simultaneous obligation connotes that the issuance of a check is used as a means to obtain valuable consideration from the payee, whereas, the check is paid for a pre-existing obligation
• Since an obligation has already been contracted, the accused in this case obtain nothing when he issued the check, his debt for the payment thereof had been contracted prior to its issuance.

Defenses in BP 22

• The presentation of the registry card, with an unauthorized signature
• Presumption of knowledge of insufficiency of funds is not conclusive as it may be rebutted by full payment
• The accused was actually notified that the check was dishonored
• Prescription is a proper defense to which the prescriptive period is 4 years

Other Information

• An agreement surrounding the issuance of dishonored checks is irrelevant to the prosecution for violation of Batas Pambansa Blg. 22
• Lack of valuable consideration is not A PROPER DEFENSE in Violation of BP 22