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SEX AND TAKING - Coggle Diagram
SEX AND TAKING
SEXUAL CRIMES
Rape (266-A to D)
Now reclassified as a public crime with the passage of RA 8353:
- thus, the criminal action for rape may now be instituted by ANY PERSON
- pardon no longer extinguishes the criminal action
- there are now cases of MARITAL RAPE (here, pardon will extinguish the criminal liability)
Has carnal knowledge under any of the following circumstances:
- Force or intimidation is employed
- Victim is unconscious or deprived of reason
- Fraudulent machinations or grave abuse of authority
- below 16 years or old or demented
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exempting circumstances:
- child in conflict with the law (acted with discernment) has carnal knowledge of one who is below 16 if the age gap does not exceed 3 years and the sex is consensual and not exploitative
- this exemption does not apply if the victim is below 13 years of age
Special complex crime of rape with homicide:
Homicide is understood in its generic sense (murder or parricide is included in this definition)
Sexual assault
How committed:
- man inserts his penis in the mouth, anal orifice
- any person inserts an instrument or object in the genitals or anal orifice
People v, Talagan G.R. No. 227363. March 12, 2019 - misnomer daw yung "rape through sexual assault"
Adultery
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May also be committed by a man who has sex with a married woman and he is aware that the woman is married to another
Special mitigating circumstance of abandonment without justification by the husband may be appreciated in favor of the wife (principal offender)
Concubinage
A private crime - only the offended spouse has the personality and standing to institute a criminal action
Must implead both the guilty spouse and the paramour/concubine (offended spouse cannot be selective and only file a complaint against the paramour/concubine
PARDON - extinguishes criminal action (applies to spouse and concubine/paramour)
Principal offender is a married man who has carnal knowledge of a woman not his wife under scandalous circumstances, keeps a mistress in the conjugal dwelling or who cohabits with his mistress in some other place/s
NO special mitigating circumstance, unlike in adultery
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Seduction
Qualified seduction
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Offender must have seduced the victim by abusing his authority or relationship with the woman:
- Abuse of authority
- Abuse of confidence
- Abuse of relationship
Example offenders: teachers, priests, public authority, ascendant , one who is entrusted with the care and custody of the girl
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Prostitution (202)
Offender: A woman who, for money or profit, would habitually indulge in sexual intercourse or other acts or lascivious conduct
if iba yung consideration, she cannot be proceeded against for prostitution
it has to be HABITUAL: need not be daily or weekly, as long as it is done regularly
Grave scandal (200)
Any person who performs a highly scandalous act that is offensive to decency and good customs in a public place or within public view or knowledge
Must not be punishable under the RPC -- if yes, then it will be punished under that provision
Included here because: having sex in a public place or within public view is punishable under grave scandal
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TAKING OF PROPERTY
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Theft
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No use of violence, intimidation or force upon things
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Qualified theft
What qualifies theft?
- when committed by a domestic servant
- with grave abuse of confidence
- involves cattle, motor vehicle
- on the occassion of calamities or vehicular incident
Not amended by Anti Carnapping Law (RA 10883)because there are some motor vehicles that, if stolen, would still make them liable for qualified theft (such as bulldozers, backhoes, cranes, and motorized agricultural implements)
There are also special complex crimes in Anti Carnapping Law such as:
- carnapping with homicide
- carnapping with rape
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Qualified theft by abuse of confidence:
- victim must have reposed trust and confidence upon the offender
- offender must have abused such trust --that the trust reposed upon him facilitated the commission of the crime
Penalty is based on the amount of the property or money stolen, but the maximum penalty (for simple theft) is prision mayor but there is an incremental penalty (amount greater than 2.2 million in excess) --- however, should not exceed 20 years
Estafa (315)
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Must be capable of pecuniary estimation
Ratio: Penalty is based on the amount or value of the subject property swindled from the victim
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Distinguished from qualified theft by abuse of confidence (vs estafa by misappropriation or conversion):
LOOK INTO: the nature of possession of the offender
- if the possession over the subject property is merely physical or material -- QUALIFIED THEFT
- if the possession of the offender over the property is not only physical or material, but juridical as well (possession of one over a property not his own which he may defend against the claim of the owner) -- ESTAFA
LOOK INTO: How did the offender receive the property?
- received in trust, commission, administration, under an obligation to return the same: ESTAFA
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BP 22
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Distinguished from estafa by issuing a bounced check:
- estafa is malum inse, bp 22 is malum prohibitum -- thus, good faith and lack of criminal intent is a valid defense in estafa
- one may not be liable for estafa if the subject check is issued in payment of a pre-existing obligation = no fraud or deceit to speak of; but this is immaterial in BP 22
- fraud and deceit is only present in estafa, not BP 22 (if the check is the efficient cause of deprivation or if the check was issued at the time the obligation was contracted)
- Demand prior to the institution of a criminal action for BP 22 is more compelling as an element because if there's no demand, the BP 22 case would be dismissed outright (has to be in writing)
Significance of a demand: One of the elements of BP 22 is that the issuer of the check must be AWARE that the account from which the check is drawn lacks sufficient funds. Since this is based on a state of mind, DEMAND IS REQUIRED prior to instituting action.
this would give rise to the presumption that the offender was aware that the check had no sufficient funds at the time of issuance.
Letter of demand:
- must be in writing
- there must be proof that the letter was sent
- proof that it was received
Is payment a defense for violation of BP 22? YES, if payment was made prior to the filing of the Information in court [Ariel Lim v. People, 2013]
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Vaca, v. Court of Appeals (G.R. No. 131714) imprisonment not imposed to first time offenders of BP 22 and those whose defense is good faith "as much as possible"
ADMINISTRATIVE CIRCULAR NO. 12-2000 February 21, 2001
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