Download Criminal Penal Law in the PH and more Slides Law in PDF only on Docsity!
Group C
ART 195-196 as repealed by PD 1602 punishing all forms of gambling
Article 195 of the Revised Penal Code (RPC) defines what acts are punishable in gambling. Article 196 pertains to the importation, sale, and possession of lottery tickets or advertisements. However, the Presidential Decree No. 1602 repealed Articles 195-199 [Book 2, Title 6 Crimes Against Public Morals: Betting in sports contests; Illegal betting in horse race; Illegal Cockfighting] of the RPC and prescribed stiffer penalties for illegal gambling.
Gambling is defined as any game or scheme , whether upon chance or skill , wherein wagers consisting of money, articles, or value or representative of value are at stake or made. [Caltex v. Palomar, G.R. No. L-19650 (1966)]
The penalties under P.D. 1602 are as follows: [7 types of offenders]
- Any person who directly or indirectly takes part in illegal or unauthorized activities or games:
(a) Cockfighting, jueteng, jai alai, or horse racing (including bookie operations and game-fixing) (b) Numbers, bingo, and other forms of lotteries (c) Cara y cruz, pompiang, and the like (d) 7-11 and any game using dice (e) Black jack, lucky nine, poker and its derivatives, monte, baccarat, cuajo, pangguingue, and other card games (f) Paik que, high and low, mahjong, domino, and other games using plastic tiles and the like (g) Slot machines, roulette, pinball, and other mechanical contraptions and devices (h) Dog racing, boat racing, car racing, and other forms of races (i) Basketball, boxing, volleyball, bowling, pingpong, and other forms of individual or team contests (including game-fixing, point-shaving, and other machinations) (j) Banking or percentage game, or any other game or scheme, whether upon chance or skill, wherein wagers consisting of money, articles of value, or representative of value are at stake or made
The offender will be punished by Prision correccional in its medium period or a fine ranging from Php 1,000-6,000. In case of recidivism , the penalty of prision mayor in its medium period or a fine ranging from Php 5,000 to 10,
- Any person who knowingly permits any form of gambling referred to above to be carried on in an inhabited or uninhabited place or in any building, vessel, or other means of transportation owned or controlled by him.
(a) If the place where gambling is carried on has a reputation as a gambling place, or (b) that prohibited gambling is frequently carried on there, or (c) the place is a public or government building or barangay hall,
The offender will be punished by prision correccional in its maximum period and a fine of Php 6,
- Any person who maintains or conducts the above gambling schemes, will be punished by prision correccional in its maximum period or a fine of Php 6,
- If the maintainer, conductor, or banker of gambling schemes; player, promoter, referee, umpire, judge, or coach in case of game-fixing, point-shaving, and machination is a government official , will be punished by prision mayor in its medium period with temporary absolute disqualification or a fine of Php 6,
- Any person who knowingly and without lawful purpose possess lottery list, paper, or other matter containing letters, figures, signs, or symbols pertaining to or used in the games of jueteng, jai-alai, or horse racing bookies, and similar games of lotteries and numbers which have taken place or are about to take place, will be punished by prision correccional in its medium period or a fine ranging from Php 400-2,
- Any barangay official who, with knowledge of the existence of a gambling house or place in his jurisdiction, fails to abate the same or take action in connection with it, will be punished by temporary absolute disqualification
- Any security officer , security guard, watchman, private or house detective of hotels, villages, buildings, enclosures, and the like which have the reputation of a gambling or where gambling activities are being held, will be punished by prision correccional in its maximum period or a fine ranging from Php 500-2,
Spectators are Not Liable in Gambling
A mere bystander or spectator in a gambling game is not criminally liable because he does not take part therein [U.S. v. Palma, G.R. No. 2188 (1905)]
Informer’s Reward
Any person who shall disclose information that will lead to the arrest and final conviction of the malefactor shall be rewarded 20% of the cash money or articles of value confiscated or forfeited [Sec. 3, P.D. 1602]
Wagers consisting of money, articles, or representatives of value being at stake or made is an element of gambling. This applies to games or schemes dependent on chance or skill.
(for emphasis) Types of Wagers
Wagers can include money, articles of value, or anything representing value.
Playing for Money is Not an Essential Element
When the law names the games, punishing any person who takes part therein, its purpose is to absolutely prohibit those games regardless whether or not money is involved [U.S. v. Rafael, G.R. No. 7380 (1912)].
Exceptions
The games of domino, bingo, poker are exempted provided that they are played as parlor games or for home entertainment , and provided further, that they are not played in places habitually used for gambling and the betting is not disguised to defeat the intent of PD 1602 [Letter Of Instructions No. 816, Former President Marcos Sr.]
When shall lottery be considered as Illegal Gambling
Lottery is a scheme for the distribution of prizes by chance among persons who have paid, or agreed to pay, a valuable consideration for the chance to obtain a prize. [U.S. v. Filart, G.R. No. 10263, (1915)]
The elements of a Lottery are consideration, chance, and prize or some advantage or inequality in amount or values which is in the nature of a prize [Uy v. Palomar, G.R. No. L-23248 (1969)]
If a lottery game or scheme is not authorized or licensed by the government agency that is empowered by law or its charter to authorize such games, it should be construed pursuant to PD 1602 as illegal. [Del Mar v. PAGCOR, G.R. No. 138298 (2000)]
Grave Scandal Elements
Grave Scandal consists of acts which are offensive to decency and good customs which, having been committed publicly , give rise to public scandal to persons who have accidentally witnessed the acts [U.S. v. Catajay, G.R. No. 278 (1906)].
Elements:
- The offender performs an act/s;
- That such act/s be highly scandalous in terms of offending against decency or good customs;
- That the highly scandalous conduct does not expressly fall within any other article of the RPC; and
- That the act/s complained of be committed in a public place or within the public knowledge or view (U.S. vs. Samaniego, 16 Phil. 663)
Note: There should be consent to do the scandalous act. If the scandalous act was done without consent, the crime committed may be Acts of Lasciviousness under RPC.
If a child is involved, the crime would be a violation of RA 7610 a.k.a “Special Protection of Children Against Abuse, Exploitation and Discrimination Act”
Grave Scandal is a crime of Last Resort
The highly scandalous act should not fall equally to other articles of RPC, such as statutory rape, acts of lasciviousness, etc.
Commission of the Crime in a Private Place
An act offensive to decency, performed in a private place, constitutes grave scandal. However, the act must be open to public view for it to be actionable.
Illustrate a scenario wherein grave scandal is committed
For instance, a man and a woman engaged in a lewd display in a public park in broad daylight, causing outrage and disgust among onlookers would constitute grave scandal.
Trafficking in Persons (RA 9208 as amended by RA 10364) Elements
Elements:
- Recruitment, transportation, transfer or harboring, or receipt of persons;
- With or without the victim’s consent or knowledge;
- Within or across national borders;
- By means of threat or use of force , or other forms of coercion, abduction, fraud , deception, abuse of power or of position , taking advantage of the vulnerability of the person, or, the giving or receiving of payments or benefits to achieve the consent of a person having control over another person; and
- For the purpose of exploitation or the prostitution of others or other forms of sexual exploitation, forced labor or services, slavery , servitude or the removal or sale of organs.
People v. De Dios, [G.R. No. 234018, 06 June 2018, 832 Phil. 1034]
Facts: Evangeline De Dios was convicted by RTC and CA for qualified trafficking in persons under RA 9208 (An Act To Institute Policies To Eliminate Trafficking In Persons Especially Women And Children), as amended by RA 10364 (Expanded Anti-Trafficking in Persons Act of 2012). The accusation stemmed from an incident in 2013, where De Dios was caught in an entrapment operation by the NBI for offering a minor, AAA, for sexual services to an undercover agent. AAA testified that De Dios had been engaging her in prostitution since 2012, arranging sexual encounters with customers for a fee. De Dios, however, claimed that AAA and her companions were already engaged in prostitution and that she merely happened to be present when the entrapment occurred.
Issue: Whether De Dios was guilty beyond reasonable doubt of qualified trafficking in persons under Sec 3(a), in relation to Sec 6(a), of RA 9208, as amended
Ruling: The Supreme Court dismissed De Dios's appeal and affirmed her conviction. The Court held that the prosecution sufficiently established the elements of trafficking in persons. The testimonies of the minor victim, AAA, and the NBI and DOJ agents corroborated each other, demonstrating De Dios's involvement in offering AAA for prostitution in exchange for money. The Court noted that the crime of trafficking in persons could be committed by taking advantage of a person's vulnerability, such as being a minor, and that the offer of financial gain constituted exploitation. The consent of the victim is immaterial, especially when the victim is a minor. The Supreme Court upheld the lower courts' decision, sentencing De Dios to life imprisonment and ordering her to pay a fine of Php 2,000,000 along with moral and exemplary damages.
Doctrines:
- Trafficking in persons can occur even without threat, force, or coercion if the accused takes advantage of the victim's vulnerability, such as being a minor.
- The offer of financial gain to a minor for illicit sexual services constitutes exploitation.
- In cases of trafficking, the victim's consent is immaterial , especially when the victim is a minor.
- Corroborated testimonies of the victim and law enforcement agents can sufficiently establish the elements of trafficking in persons.
- Denials by the defendant , if uncorroborated and weak, cannot outweigh the testimonies of prosecution witnesses, particularly law enforcement officials discharging their duties.
Consent of victim immaterial
In cases of trafficking in persons, the consent of the victim is immaterial when:
- Coercive, abusive, or deceptive means are employed by perpetrators of human trafficking.
- The victim is a minor. In this case, consent is not given out of the minor's own free will.
- The purpose of trafficking includes exploitation or prostitution.
Trafficked persons shall not be penalized for unlawful acts committed as a direct result of being trafficked. Trafficked persons shall be recognized as victims of the act or acts of trafficking and as such, shall not be penalized for unlawful acts committed as a direct result of, or as an incident or in relation to, being trafficked based on the acts of trafficking enumerated in this Act or in obedience to the order made by the trafficker in relation thereto. In this regard, the consent of a trafficked person to the intended exploitation set forth in this Act shall be irrelevant. (Sec. 17, R.A. No. 9208, as amended)
The past sexual behavior or the sexual predisposition of a trafficked person shall be considered inadmissible in evidence for the purpose of proving consent of the victim to engage in sexual behavior, or to prove the predisposition, sexual, or otherwise, of a trafficked person. (Sec. 17-B, R.A. No. 9208 as amended)
Specific Crimes of Trafficking in Person
Republic Act 9208. Section 4. Acts of Trafficking in Persons:
(c) To offer or contract marriage, real or simulated, for the purpose of acquiring, buying, offering, selling, or trading them to engage in prostitution, pornography, sexual exploitation, forced labor or slavery, involuntary servitude or debt bondage;
(d) To undertake or organize tours and travel plans consisting of tourism packages or activities for the purpose of utilizing and offering persons for prostitution, pornography or sexual exploitation;
(e) To maintain or hire a person to engage in prostitution or pornography;
Republic Act 11862. Section 4. Section 4 of Republic Act No. 9208, as amended, is hereby further amended to read as follows:
"Section 4. Acts of Trafficking in Persons. - It shall be unlawful for any person , natural or juridical, to commit by means of a threa t, or use of force , or other forms of coercion , or through abduction, fraud, deception, abuse of power or of position, or through taking advantage of the vulnerability of the person , or by giving or receiving of payment or
(1) All forms of slavery or practices similar to slavery, involuntary servitude, debt bondage, and forced labor, including recruitment of children for use in armed conflict;
(2) The use, procuring or offering of a child for prostitution, for the production of CSAEM or CSAM, or for pornographic performances;
(3) The use, procuring or offering of a child for the production and trafficking of drugs ; and
(4) The use, procuring or offering of a child for illegal activities or work which, by its nature or the circumstances in which it is carried out, is l ikely to harm their health, safety or morals;
(l) To organize, provide financial support, or direct other persons to commit the offenses defined as acts of trafficking under this Act; and
(m) To recruit, transport, obtain, transfer, harbor, maintain, offer, hire, provide, receive, or adopt a child for deployment abroad as migrant worker.
Provided, That when the victim is a child, the means to commit these unlawful acts as enumerated in the first paragraph of this section shall not be necessary : Provided, further, That in the case of overseas domestic work, a 'child' means a person below twenty-four (24) years old. "
Qualified Trafficking in Person
Republic Act No. 9208. Section 6. Qualified Trafficking in Persons. - The following are considered as qualified trafficking:
(a) When the trafficked person is a child;
(b) When the adoption is effected through Republic Act No. 8043, otherwise known as the " Inter-Country Adoption Act of 1995" and said adoption is for the purpose of prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage;
(c) When the crime is committed by a syndicate, or in large scale. Trafficking is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring or confederating with one another. It is deemed committed in large scale if committed against three (3) or more persons, individually or as a group;
(e) When the trafficked person is recruited to engage in prostitution with any member of the military or law enforcement agencies;
Republic Act No. 10364. Section 9. Section 6 of Republic Act No. 9208 is hereby amended to read as follows:
"SEC. 6. Qualified Trafficking in Persons. – Violations of Section 4 of this Act shall be considered as qualified trafficking:
"x x x
"(d) When the offender is a spouse, an ascendant, parent, sibling, guardian or a person who exercises authority over the trafficked person or when the offense is committed by a public officer or employee;
"x x x
"(f) When the offender is a member of the military or law enforcement agencies;
"(g) When by reason or on occasion of the act of trafficking in persons, the offended party dies, becomes insane, suffers mutilation or is afflicted with Human Immunodeficiency Virus (HIV) or the Acquired Immune Deficiency Syndrome (AIDS) ;
"(h) When the offender commits one or more violations of Section 4 over a period of sixty (60) or more days, whether those days are continuous or not; and
"(i) When the offender directs or through another manages the trafficking victim in carrying out the exploitative purpose of trafficking."
Child Trafficking under RA 7610
Republic Act No. 7610. Article IV, Child Trafficking:
Section 7. Child Trafficking. – Any p erson who shall engage in trading and dealing with children including , but not limited to, the act of buying and selling of a child for money , or for any other consideration, or barter, shall suffer the penalty of reclusion temporal to reclusion perpetua. The penalty shall be imposed in its maximum period when the victim is under twelve (12) years of age.
Section 8. Attempt to Commit Child Trafficking. – There is an attempt to commit child trafficking under Section 7 of this Act
(a) When a child travels alone to a foreign country without valid reason therefor and without clearance issued by the Department of Social Welfare and Development or written permit or justification from the child's parents or legal guardian;
(c) When a person, agency, establishment or child-caring institution recruits women or couples to bear children for the purpose of child trafficking; or
What is obscenity?
The word "obscene" and the term "obscenity" may be defined as meaning something offensive to chastity, decency, or delicacy. (U.S. vs. Kottinger, 45 Phil. 352)
Pornography Definition under RA 9208 and RA 9775
Republic Act No. 9208, Section 3. Definition of Terms:
(h) Pornography - refers to any representation, through publication, exhibition, cinematography, indecent shows, information technology, or by whatever means, of a person engaged in real or simulated explicit sexual activities or any representation of the sexual parts of a person for primarily sexual purposes.
Child Pornography under RA 9775: definition, how committed
Republic Act No. 9775, SEC. 3. Definition of Terms:
b. "Child pornography" refers to any representation, whether visual, audio or written combination thereof, by electronic, mechanical, digital, optical, magnetic or any other means, of a child engaged or involved in real or simulated explicit sexual activities.
Republic Act No. 9775, SEC. 4. Unlawful or Prohibited Acts:
(a) To hire, employ, use, persuade, induce or coerce a child to perform in the creation or production of any form of child pornography;
(b) To produce, direct, manufacture or create a ny form of child pornography;
(c) To publish offer, transmit, sell, distribute, broadcast, advertise, promote, export or import any form of child pornography;
(d) To possess any form of child pornography with the intent to sell, distribute, publish, or broadcast: Provided. That possession of three (3) or more articles of child pornography of the same form shall be prima facie evidence of the intent to sell, distribute, publish or broadcast;
(e) To knowingly, willfully and intentionally provide a venue for the commission of prohibited acts as , but not limited to, dens, private rooms, cubicles, cinemas, houses or in establishments purporting to be a legitimate business;
(f) For film distributors, theaters and telecommunication companies , by themselves or in cooperation with other entities, to distribute any form of child pornography;
(g) For a parent, legal guardian or person having custody or control of a child to knowingly permit the child to engage, participate or assist in any form of child pornography;
(h) To engage in the luring or grooming of a child;
(i) To engage in pandering of any form of child pornography;
(j) To willfully access any form of child pornography;
(k) To conspire to commit any of the prohibited acts stated in this section. Conspiracy to commit any form of child pornography shall be committed when two (2) or more persons come to an agreement concerning the commission of any of the said prohibited acts and decide to commit it ; and
(l) To possess any form of child pornography.
Possession of Child pornographic materials
Republic Act No. 9775, Section 4. Unlawful or Prohibited Acts:
(d) To possess any form of child pornography with the intent to sell, distribute, publish, or broadcast: Provided. That possession of three (3) or more articles of child pornography of the same form shall be prima facie evidence of the intent to sell, distribute, publish or broadcast;
Cyber Child Pornography RA 10175: how perpetrated
Republic Act 10175, Chapter 2 Punishable Acts, Section 4. Cybercrime Offenses.
(c) Content-related Offenses:
(2) Child Pornography. — The unlawful or prohibited acts defined and punishable by Republic Act No. 9775 or the Anti-Child Pornography Act of 2009, committed through a computer system : Provided, That the penalty to be imposed shall be (1) one degree higher than that provided for in Republic Act No. 9775.
Trafficking - child pornography - child abuse -
