Suggested Answers
- Mr. O touched the buttock of a 20-year-old girl on an escalator with lewd intent. What is the crime? “Acts of lasciviousness” are acts that include the intentional touching of the buttocks with an intent to arouse or gratify sexual desire or with lewd design. According to these definitions, Mr. O’s act of touching the buttock with lewd intent falls squarely within this definition
- Husband and wife executed a notarized agreement allowing each to have new partners. Will a case of adultery against the other prosper? No, the case will not prosper because such an agreement can be considered consent by the offended spouse. The law stipulates that a criminal proceeding for adultery cannot be instituted if the offended spouse has consented to the infidelity. Article 344 of the Revised Penal Code indicates that prosecution cannot occur “in any case, if he shall have consented or pardoned the offenders.” A notarized document can be considered competent evidence to explain the husband’s inaction and can be seen as him having consented to the infidelity.
- Braulio touching his 11-year-old stepdaughter’s chest and genitals. What is the crime? Acts of lasciviousness under the RPC and child abuse under RA 7610. The act of touching the stepdaughter’s chest and genitals can be seen as using this moral ascendancy as a substitute for intimidation to commit lascivious conduct, thus constituting sexual abuse under Section 5(b) of RA 7610. Under the law, if the victims are under 12 or 16 years old, Braulio shall be prosecuted for acts of lasciviousness under the Revised Penal Code, but the penalty imposable is that prescribed by RA No. 7610.
- Wife hired an investigator and submitted a video of the husband having sex with another woman in a private hotel. Will concubinage prosper? (2010s Bar) The case for concubinage would not prosper because the act does not constitute having sex with her in a scandalous manner, which is a mode of committing concubinage. While having sexual intercourse with someone other than one’s spouse is generally frowned upon, the act occurring in the privacy of a hotel room may not necessarily be considered as happening under “scandalous circumstances” as contemplated by law. “Scandalous circumstances” often involve more public displays or living arrangements that offend community standards. Scandal occurs when the husband and mistress appear together in public and perform acts in sight of the community which give rise to criticism.
- A person born male underwent sex reassignment and married another man in a country where same-sex marriage is valid. He was then caught by his male partner having sex with another male. Is there a crime? (2012 Bar Exam) No, crime. Adultery is generally considered a gender crime, where the principal offender must be a married woman, and the secondary offender must be a man. A man who underwent sex reassignment cannot be a principal offender in adultery since he is not a woman. Their marriage, though valid abroad, is invalid here as both are males and such is contrary to public policy. Crimes against chastity punish violations of marriage vows, and there can be no violations if there is no valid marriage in the first place.
- Phil kissed a 19-year-old on the cheek and stroked her pubic hair during a movie date. What crime? Unjust vexation, as the elements of force, intimidation, and a minor victim are absent. Acts of lasciviousness include acts with lewd designs aimed to gratify the offender’s sexual desires. These acts must be committed with force or intimidation or if the victim is a minor. Here, stroking the pubic hair is considered a touching of a specified body part and it could be argued that Phil acted with lewd design. But even if an act is committed with lewd design, if there is no force, threat, or the offended party is not a minor or incapacitated, the crime may only be unjust vexation.
- The relatives of the husband filed adultery against the cheating wife. Will it prosper? No, as only the offended spouse can initiate a criminal action for adultery. The law specifically provides that in prosecutions for adultery, the person who can legally file the complaint should be the offended spouse, and nobody else. Unlike offenses like seduction, abduction, rape, and acts of lasciviousness, there is no provision in the law that allows the parents, grandparents, or guardian of the offended party to prosecute the crimes of adultery and concubinage.
- Is there an impossible crime of adultery? No. One of the requisites of an impossible crime is that the act performed would have been an offense against persons or property. Adultery is a crime against chastity, not against persons or property.
- The husband found a sex video of his wife with another man. During the trial, it was found that his wife was a former male. (They got married in the USA) Will adultery prosper? (2010s Bar) No. The principal offender in adultery must be a married woman, and the co-offender must be a man. Case law explicitly states that a man who underwent sex reassignment cannot be considered a woman under Philippine law (Silverio vs. Republic). Here, the principal offender is a man, and therefore adultery will not prosper.
- Husband found his wife having homosexual intercourse with another woman (2016 Bar Exam). What is the crime? No crime. Adultery will also not prosper because the secondary offender is a woman, not a man. Adultery is committed by a married woman who shall have sexual intercourse with a man not her husband. The law also specifies that the man involved must know that the woman is married. While the wife’s act is considered infidelity and a violation of her marital vows, under the strict definition of adultery in the Revised Penal Code, the elements of the crime are not met when she engages in sexual relations with another woman.
- Victim was abducted but the main objective is to rape. What is the crime or crimes? Is it a complex crime? If a victim is abducted and the main objective of the accused is to rape the victim, the crime committed is rape, and the forcible abduction is absorbed in the crime of rape. The doctrine of absorption, rather than Article 48 of the Revised Penal Code (which governs complex crimes), is applicable in such cases because the forcible abduction is considered an indispensable means to commit rape.
- The accused persons abducted and raped without knowing the victim was a transgender woman. After they discovered he was a male, they killed him. What is/are the crime(s)? (2016 Bar) The crime committed by the accused is the special complex crime of kidnapping with homicide, with the rape being considered a component of this graver offense.
(a) There is no forcible abduction because the victim is not a woman. There is only kidnapping or illegal detention.
(b) When the original intention is to illegally detained and the killing happens in the course of such detention, the crime committed is the special complex crime of kidnapping with homicide.
(b) There is no rape through carnal knowledge if the victim is biologically male, even if perceived as a woman; however, there is rape through sexual assault when an object is inserted into the victim’s anal orifice through force or intimidation;
(d) When rape is committed in the course of a kidnapping where the victim is also killed, the rape is not treated as a separate crime or an aggravating circumstance. Instead, the rape is considered a component of the graver crime in the special complex crime of kidnapping with homicide. Case law also states that it can be denominated as “special complex crime of kidnapping with homicide and rape.” (People vs. Larranaga)
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