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Paralegal Manual for Child Abuse Cases.rtf

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					                                   Paralegal Manual for Child Abuse Cases
          Children’s Legal Bureau; Children and Youth Foundation of the Philippines;
                                     Terre des Hommes
                                 E-mail: clbphils@gslink.com


I. Developmental Legal Aid

The concept of Development Legal Aid (DLA) was developed by the late Senator Jose W. Diokno
during the martial law period where human rights violations were rampant. Human rights lawyers
violations were rampant. Human rights lawyers have been practicing DLA since then even after the
martial law years. DLA is still applicable at the present time because violations of human rights
particularly child’s rights are still happening. DLA is a way of looking at the law and the legal system.

Law, in general, exists because it is a necessity. It was necessary for public peace and order. Due to
the intricacies of human life a guiding set of rules, standards and system became necessary in order
to give a semblance of civilization to society. Human life and human relations is not static, it is
dynamic and always developing into something, whatever it is.

    A. Developmental Legal aid and Traditional Legal Aid

DLA is a concept opposed to the traditional legal aid practice of law.

Traditional Legal Aid Beliefs and Concepts are as follows:

    1. Law is neutral
    2. Law is objective. Law is based on relevant facts and the evidence presented and settled
       doctrines are used to resolve [problems (e.g. stare decisis.)
    3. Law is just and fair.

Because of these traditional views, the law has the following effects:

    1. Legitimization of the law. Because law is viewed as objective, neutral, just and fair, the law is
       believed to be always lawful, genuine and conforming to an accepted standard.

    2. Autonomy of the law. Because the law is viewed as objective, neutral, just and fair, the law
       should be autonomous from any form of influence from the society, culture and traditions.

    3. Defining realities and concerns. Because law is viewed as objective, neutral, just and fair, it is
       deemed a true and valid depiction of reality.


However, developmental advocates have criticized these assumptions and believe that:

    1. Law is not neutral. Only the text is neutral. Laws do not take into consideration the context
       (e.g. class, gender, ethnicity, age, etc.) The law does not ask whether the law is proper based
       on the context. Therefore, single standard rule is not equal to neutrality.


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    2. Law is not objective. Who determines the relevant facts? There is no one solution to the
       dame problem.
    3. Law is not always just and fair. But who defines what is ‘just and fair’? the basic sectors
       affected should have a say in what is just and fair.

Developmental Legal Beliefs and Concepts of the Law are therefore:

    1. The law exists. it is an objective reality.
    2. Law is man-made. It is a cultural reality, not a God-given fact.
    3. Laws, therefore, are not neutral. They are not all just.
    4. The present political system cannot by itself secure the basic rights or secure changes in
       favor of the oppressed and marginalized.
    5. Laws evolve; they are a dynamic reality.
    6. Control and use of legal resources may be instruments for change as well as preserving the
       status quo.

    B. Child’s Rights Legal Aid Framework

         Helping children with the legal needs has been a big issue to lawyers who have a soft heart
and a rich pocket. With so many of their cases having paying clients, they could very well afford to
assist two or ten cases pro bono. But most of these cases do not involve children. It is different. It is
difficult. It demands more time and testing the patience of the lawyer. In most instances, they don’t
have both.

       What distinguishes Children’s Legal Bureau from all other law groups or non-government
organization assisting children is the “child rights legal aid framework.”


What is a framework?

        A framework is a guide or foundation. As child’s rights advocates, the framework that we
will use is the UN Convention on the Rights of the child.

How should we view the law?

The law should be viewed with “healthy disrespect.” While we realize that the law is made for the
good of al human beings, we should continue to be critical as to whether or not the law is actually
serving the function which is suppose to serve.

Child rights advocate believe that the law’s text and context should be analyzed vis-à-vis the child’s
inherent characteristics, rights and issues. Thus, the substance, methodology of the law and its
effects on children should be taken into consideration.

Children’s situation and status considered

Giving legal aid to children should be seen in the context of the children’s situation in the
Philippines and around the world. The causes and reasons for the sad state of the children should be

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identified and analyzed for an effective legal aid intervention. Children’s rights should be seen in the
context of the poverty issue of the Philippines. But poverty should not be a justification for neglect
or inaction on children’s issues. In implementing interventions and programs, holistic approach is
needed.

The environmental situation of the child should not be the only consideration. The children’s
psychology, physical state and the physiological capacity must also be considered and evaluated once
they enter into the judicial process.

Children are different from adults because they cannot articulate the injustice committed against
them. Filipino children are taught not to talk back (meaning, to reason out and express their feelings)
against adults. They are submissive by nature thus they are the ones hired by exploitive employers.
They are innocent and “clean” which makes them a prey for sex perverts and molesters.

These traits of children should be considered because these are the same traits they have when they
undergo the judicial proceedings. Contrary to their culture and training, children witnesses are taught
to articulate and “talk back” against adverse counsel’s manipulative ways during the cross-
examination. Their submissive nature oftentimes results in non-filing of cases due to the prodding of
their mothers not to pursue a case against their abusive fathers. Their innocent ways are big
obstacles in winning the case.


Critical Evaluation of the law and the Judicial Process

With the children’s views and needs in mind, an evaluation of the judicial process is a must
considering that the views, sentiments and needs of children are not considered when it was
conceptualized and enacted b the adults.

Thus, rendering legal aid is not simply wining the case in behalf of the children but also advocating
for change in whole judicial process to make it more sensitive to the conditions of children.

More importantly, the law that governs and effects children should also be assessed based on the
scientific findings conducted by the researchers around the world. Even if the judicial process is
child sensitive but the substantive law is inappropriate and ineffective, injustice would still be
committed.

The Legal Aid Framework advocated by the Children’s Legal Bureau is rendering legal services to
the needy pro bono with advocacy component in making the law and its remedies sensitive and
appropriate for children. Winning the case is not enough but a child friendly remedial process is also
half of the battle which child’s rights advocates care to wage.

Situational Analysis of Children and the Legal System

Society has always treated children as inferior. Their views are seldom heard in decision-making
processes and their needs are at times ignored. Children are physically vulnerable because they are
small and weak and thus, are often abused. Because of the recognition that children have different
needs from the adults, the United Nations adopted the Convention on the Rights of the Child in
1989. however, until the present, children’s rights continue to be violated. Child abuse cases are
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increasing and this range from physical, sexual to psychological abuses. The problem of child labor,
prostitution, trafficking and street children are still very present. Many of the youthful offenders are
not provided with adequate rehabilitation facilities.

In the Philippines, the political, legal and cultural system is generally not protective of the rights of
the child. The present laws are inadequate in meeting the special needs of children given their
physical, mental and psychological state. Although there have been recent laws enacted to
implement the Convention on the Rights of the Child, such as R.A. 7610 or the Special Protection
Act for Filipino Children, Children’s Television Act and the Family Courts Law, these laws are still
inadequate and their implementation is weak. One of the gaps in legislations is a comprehensive law
on juvenile justice.

Aside from the laws, the government structure itself is not designed to be child sensitive. Personnel
from the local government to the national government including the courts treat children as second
class citizens. The community and sometimes even the family itself are not aware of the rights of
children and do not provide the right environment for their growth. The Filipino culture itself is
violative of the rights of children such as in child labor cases that mostly arise out of the Filipino
value of work.

Because of this situation, there is a need to change the present child insensitive system to a child-
sensitive one.

Basic Principles of Child’s Rights Legal Aid Framework

    1. CRLAF realizes that children should be treated as a basic sector of society that is also
       oppressed by the present conditions and systems of society.
    2. CRLAF is a political activity because it involves the process of addressing children’s
       concerns brought about by a system of government (including Government principles and
       policies) that is insensitive to children’s real situation. It is not limited to traditional law
       practice.
    3. CRLAF seeks to bring the law closer to children’s situations. In rendering legal aid the
       inherent characteristics of children and the way children are actually situated should be taken
       into consideration. The law is powerful instrument for effecting change. Thus, the law
       should be maximized and criticized and used to improve the situation of children.
    4. CRLAF is not lawyer or court-oriented. CRLAF seeks to empower the client, but it is not
       only client-oriented. There is a partnership between the lawyers and the client-oriented.
       There is primarily intended to benefit both parties in the relationships. Children’s voices
       should be heard and given due weight in matters concerning them.
    5. CRLAF disagrees with the autonomous concept of the law and adheres to a multi-
       disciplinary approach to address children’s concerns.
    6. CRLAF believes that collective action is more powerful and effective. Thus, NGO’s, GOs,
       Pos and other basic sectors should also be involved and integrate children’s issues in their
       activities.

Effective Intervention

Based on these principles, every form of legal aid must have an ADVOCACY function. Rendering
legal assistance, filing cases and representing children in cases are not enough. Advocacy seeks,
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recommends or urges something, e.g. a certain reform, method, etc. and in this case the CRLAF
advocates for a child sensitive approach in dealing with children and children’s issues.

A child rights advocate analyzes and understands that the children’s sector is one of the basic sectors
of society that is actually being oppressed. With this realization is the accompanying resolution and
action to change the condition.

The nature of the problem of children is systematic, and is actually perpetuated by different
institutions of society, from the family to the State.

Since the problem is systematic, advocacy that is needed to address children’s concerns should be
holistic in nature. Thus, preventive, reactionary and rehabilitative measures should be employed to
address the problem.

Rendering legal aid should therefore not only involve litigation of cases, but also counseling,
paralegalism, legislative/policy advocacy, legal research, legal education and training, public
information and campaign and metalegal remedies.

Litigation of cases is merely reactionary and will only assist a particular child involved in the case. In
order to prevent more abuses, there is a need for advocacy using a particular case as an example to
other abusers. There is also a need to educate the communities where these abuses are happening to
prevent further abuses.

CRLAF adheres to the need to empower children and the community through EDUCATION
AND TRAINING. This includes training them not only on the rights of the child, but also the skills
on how to enforce these rights including prevention of juvenile delinquency. With these knowledge
and skills, the community itself will protect and promote the rights of children by preventing abuses
from happening and preventing delinquency. Aside from this, the community itself will help in the
rehabilitation of the abused child including those children in conflict with the law.

C. Child Abuse Framework

In cases of child abuse, there is also a need to analyze the situation of abused children and identify
effective intervention measures.

Situationer

Child abuse covers a wide scope including child labor, commercial and ordinary sexual exploitation,
child pornography and physical abuse. In the Philippines, child abuse cases have been increasing.
According to DSWD, child abuse cases in the Philippines rose by more than 200 percent in the past
five years with sexual abuse topping the list. Research studies conducted by the Centre for the
Prevention and Treatment of Child Sexual Abuse (CPTCSA) in schools in Metro Manila show that
for every 3 Filipino children, one experiences abuse (Manila Bulletin, 11 February 1996).

Of the 1.5 Million street children, 60,000 are prostituted (ECPAT 96). DSWD that the annual
average increase of prostituted children is 3,266. It also reports a more than 100 percent increase in
cases of sexually abused and exploited children. Of these cases, 36% were rape cases. Child


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prostitution and pedophilia accounted for 12 percent. ( An Overview of Child Rights in the
Philippines, Save the Children UK)

According to a study conducted by the Program on Psychosocial Trauma and Human Rights of the
University of the Philippines Center for Integrative and Development Studies in 1997, the above
data could be underestimated. It cited that some cases of child abuse are sadly not included in
government and non-government monitoring work or are grossly underreported which could be
attributed to the hidden or invisible nature of the abuse. In child labor, for example, children victims
of “trafficking” recruited from disadvantaged regions in the country were just recently “discovered”.
Child domestic workers are another group of child workers that are hidden and invisible as it is an
accepted practice.

The same study states that some cases of child abuse remain hidden under the protective mantle of
social institutions where they occur such as the family, church and the school. Exposing the abuse
that lurks in these social institutions may rock the very foundations of civilized society. Thus, the
abuse remains hidden, or if reported, remain unheeded, until it is investigated and exposed as a
social problem of alarming proportions.

Programs

With these problems, there is a need to help children in a comprehensive and holistic manner. This
is done through preventive, protective and rehabilitative approaches. In rendering legal assistance
for child abuse victims, the interventions are as follows:

   1. Preventive

           a. Education and Training. Giving education and training to the communities and children
              on the laws on child abuse will serve as a preventive program. once people are aware
              of the laws, they can prevent child abuse from happening. They will not also abuse
              their children.

           b. Filing cases. Filing a case for child abuse prevents the offender from abusing around
              200 other victims. It has been found that a single abuser can abuse as many as 200
              children in their lifetime. Thus, filing a case against them and having them
              imprisoned will prevent her/him from further abusing other children.

           c. Case Advocacy. A case will also serve as an example to other abusers and potential
              abusers and it would hopefully deter them from doing such acts. Thus, cases should
              be high profile for advocacy purposes.

           d. Policy advocacy. The existing laws on child abuse are not perfect. Some provisions are
              difficult to implement. Child abuse cases are still difficult to prosecute because the
              system is not child sensitive. That is why there is a need for advocacting changes in
              the laws and policies, even while the case is ongoing.




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   2. Protective

          a. Rescue. Rescue of abused children is basically to take the child away from the abuser
             and the abusive environment to protect her from further abuse.

          b. Litigation. Filing and litigation of cases for involuntary commitment will ensure that
             the child will not go back to the abusive environment.

          c. Referral for Medical and other Services. The child abuse victim is referred to a doctor (at
             the VSMMC Pink Room in Cebu) for medical check-up and assistance. This is also
             for issuance of the appropriate medical certificate.

          d. Referral to Temporary Shelter. Once the child is rescued, there is a need to refer
             him/her to the temporary shelter to provide him with his basic needs while the case
             is pending. The shelter is temporary because it is best that the child be placed in a
             family environment.

   3. Rehabilitative

          a. Family Planning. Even if the parents are the abusers but they are willing to undergo
             counseling, it is to the best interest of the child that s/he be returned to his family. It
             is recognized that the action of the parents may be because they were abused
             themselves. Thus, continuous family counseling is needed to reconcile the child to
             her/his family.

          b. Referral to Psychiatrist. The abused child is referred to a psychiatrist for psychiatric
             evaluation will also determine whether the child is ready to face a case and will be
             used as evidence for the case.

          c. Referral to a Center. If family counseling is not viable or it is for the best interest of the
             child to be away from the family environment, referral to a center is done. It is in the
             center where the child undergoes rehabilitation after which she will be reintegrated
             into the community.

          d. Filing a case. The filing of a case and winning it has a rehabilitative effect to the
             abused child. In a way s/he is vindicated once the abuser is sentenced or imprisoned.
             The process involved in the case like telling her/his story also has a healing effect. It
             gives her/him a chance to confront the incident and to come to an acceptance of
             what happened.




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                                CHILD ABUSE FRAMEWORK

 ASPECTS                                 PROGRAMS/INTERVENTIONS

 Preventive            Education and Training on child abuse laws
                       Filing cases to prevent the offender from abusing more children
                       Case advocacy to deter other abusers and potential abusers
                       Policy advocacy to change laws, policies and procedure to be child sensitive

 Protective            Rescue of abused children to take her/him away from the abusive
                        environment
                       Filing and litigation of cases to ensure that abuser will not abuse the child
                        again
                       Referral to Medical Services
                       Referral to Temporary Shelter
Rehabilitative         Family Counseling
                       Referral to Psychiatrist
                       Referral to a Center for Rehabilitation
                       Filing a case as a manner of rehabilitation



II. PARALEGAL AND HER/HIS ROLE IN CHILD ABUSE CASES

   A.   The Work of a Paralegal

               Definition of Par-legal

                             Para – from Romantic language meaning resembling or relating to
                             Legal – from Latin word lex (law)

              Role of Para-legal
                             To substitute for lawyer – primary
                             To assist a lawyer
                             To make law accessible and understandable

              Significance
                             Lack of Lawyers

              Individual Case Management

                             Data Gathering
                                Interview
                                Site visitation



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                                Document gathering
                                Looking for witnesses

                        Documentation
                             Notes
                             Photographs
                             Memoranda
                             Tape recording, video

                Book research
                       Applicable Laws
                       Jurisprudence

                Analysis/Assessment of Case
                       Prognosis – will it prosper if initiated
                       Setting strategy
                       Tacticizing

                Writing pleading and legal documents
                Remedial measures/problem solving
                Negotiations
                Trial/procedural actions

                OFFICE MANAGEMENT

                Establishing a system of work
                        Tasking
                        Work Flow
                        If a client comes in
                        If a pleading is received
                        If a pleading is sent
                        If a call is received
                Reception
                Correspondence
                        Billing
                        Receivable pleadings/documents/notices
                        Sending pleading/documents/notices
                Office physical maintenance
                Calendar
                        Deadlines
                        Hearings
                                  Motions
                                  Trial
                Follow-up/Monitoring/Reminding
                Library Maintenance
                        Updating of laws
                        Current events/news
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B. Orientation of a Paralegal

What is a paralegal?

A paralegal is a person who is

        a. Knowledgeable and skilled in the law although he did not take the traditional law course;
        b. Able to act in behalf of the child and the community in many instances even without a
   lawyer;
        c. Able to act as a partner of the child and the community for lawyers to prepare and
   follow-up cases.

What basic legal attitudes, knowledge and skills are necessary for paralegals?

       a. Attitudes

The paralegal must understand his role in helping the child and the community and must identify
with their needs and aspirations. He/she must work with the children and community.

S/He must have a clear conviction of the rights of the children and the community s/he represents.
S/He must be sincere and responsible in his work.

S/He must confidently approach gray areas with a willingness to ask and to learn. S/He must be
critical and analytical of the laws that affect the children and the community. S/He must work at
demystifying the law and make it more easily understandable to children and the community.

The paralegal must foster self-reliance and empowerment rather than dependence on lawyers.

       b. Knowledge

The paralegal is expected to have a basic grasp of the relevant laws pertaining to children’s rights,
human rights and to her/his specific fields of interests. These are usually included in paralegal
training. While a paralegal may initially feel inadequate in his mastery of laws, constant study and
exposure will improve his confidence.

       c. Skills

       1.    Investigation and documentation
       2.    Evidence gathering
       3.    Following up of cases
       4.    Articulate in conveying ideas and sharing information
       5.    Gathering community support for important issues
       6.    Drafting basic legal documents – affidavits
       7.    Negotiation and arbitration
       8.    Counseling
       9.    Networking
       10.   How to rescue a child

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However, aside from these legal skills, the paralegal should be able to share knowledge with the
children and community about their legal rights and obligations. S/He must unite with the children
and community so that together, they may look for solutions to their problems.

How can the paralegal advance the interest of the children and the community?

       a. The paralegal can perform many of the roles that were traditionally assigned only to
   lawyers such as the preparation of basic legal documents, like affidavits and attending hearings in
   administrative agencies.

       b. The paralegal can also work with the community to employ metalegal tactics in bringing
   about a favorable answer to their needs and problems.

What are metalegal tactics?

Metalegal tactics are popular tactics or activities which are not illegal but do not fall within the
traditional framework of legal procedures.

Metalegal tactics are a form of collective action employed by the basic sectors to further their
interest when the remedy afforded by law is either too slow or nonexistent. These are an integral
part of developmental legal assistance because through these the strength and the power of the
community are made manifest.

Moreover, because the success of metalegal tactics depends on the unity of the community and the
support of all concerned sectors, metalegal tactics serve to build this strength and power.

Is there any legal basis for metalegal tactics?

Although metalegal tactics are not prescribed by law, these are not illegal and they are derived from
basic human rights such as the right to life and property.

Specifically, the following laws may serve as legal basis for metalegal tactics:

a. Right to participate in policy-making and to be consulted by legislators
      Art. II Sec. 1 and 5

b. Right to information
        Art. II Sec. 28 and 7, Exe. Order No. 89 except if the information is libelous and reasons of
national security

c. Freedom of expression
        Art. III sec. 4, exceptions: if the statement is libelous and clear and present danger to security
of the public and the nation

d. Right to be secure
      Art. II sec. 5 and 9 Art. III Sec. 4


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e. Revised Penal Code (RPC)

        Art. 11 Justifying circumstances which exempts a person from criminal liability:

1. Requisites
       Unlawful aggression
       Reasonable necessity of the means employed to prevent or repel it
       Lack of sufficient provocation on the part of the person defending himself

2. Anyone who acts in defense of the person or rights of his spouse, ascendants, descendants, or
legitimate, natural or adopted brothers or sisters or of his relatives by affinity in the same degree, and
those by consanguinity within the fourth civil degree, provided that the first and second requisites
prescribed in the next preceding circumstances are present and the further requisites, in case the
further provocation was given by the person attacked, that the one making the defense had no part
therein.

3. Anyone who acts in defense of the persons or rights of stranger, provided that the first and the
second requisites mentioned in the first circumstance of this article and that the person defending be
not induced by revenge, resentment or other evil motive.

f. Rules of Court

Art. 113
        Arrest- is the taking of the person into custody in order that he may be bound to answer for
the commission of an offense. It maybe with a warrant or without a warrant.

Sec. 5 lawful warrant less arrest:

   When, in his presence, the person to be arrested has committed, is committing, or is attempting
    to commit an offense;
   When an offense has in fact just committed, and he has personal knowledge of facts indicating
    that the person to be arrested has committed it; and
   In cases falling under paragraphs a and b hereof, the person arrested without a warrant shall
    forthwith delivered to the nearest police station or jail, and he shall proceeded against in
    accordance with Rule 112 Section 7. (6a, 17 a)


What are the important considerations in the use of metalegal tactics?

    a. There should be an in-depth knowledge and information about issue based on thorough
       research and investigation.
    b. Objectives should be clearly defined, grounded on reality and indicators should be drawn up
       beforehand to measure success.
    c. The unity of the group should be taken into account. The group should be in complete
       agreement on the issue, the analysis of the issue, the demands to be made and the activities
       to be undertaken. Everyone should agree that the demands to be made are just, concrete and
       realizable.

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     d. The strength of the group should be objectively assessed. Its resources and capability should
        be measured against the task at hand.
     e. Support should be available from other groups and individuals through coordination with
        other NGO’s and the media.
     f. Plans and their implementation should be carefully laid out.
     g. The security of the participants should be an important consideration. The tactic should be
        legal, effective and should not result in extreme violence against the participants.
     h. The group should at all times use creativity, timeliness and relevance for the duration of the
        activity.

D. Child Abuse Investigation/Interviewer

S/he is responsible for interviewing children and families; assisting child protective service and law
enforcement with interviews; conducting other aspects of the investigation; attending weekly case
review sessions to provide information regarding the interview and investigation; networking with
other law enforcement and center personnel to avoid duplication; providing training to other law
enforcement jurisdictions.

The following should be considered when selecting a special investigator/interviewer:

           Knowledge of child sexual abuse dynamics
           Knowledge of special investigative techniques
           Ability to interview children, particularly those who are difficult to interview
           Good interpersonal skills.
           Knowledge of criminal law, the elements of crimes and the criminal system

E.   Volunteers

The volunteers can greatly enhance the capacity of NGO’s. it is essential to carefully screen, select,
train, and supervise volunteers.

NGO’s should develop screening and selection procedures and provide a volunteer coordinator or
designated staff member to provide ongoing support and training. Volunteers may select from
various program areas and sign up for varying amounts of time. They can assist in answering
telephones, hostessing, providing therapeutic child care during parent group sessions, planning
special activities for the children (Christmas parties, summer camp, art classes, etc.), typing and
copying notices for special events, fundraising, and providing transportation to and from the center.


III. The Law on Child Abuse, Prostitution and Trafficking (R.A. 7610)

R.A. 7610 also known as the Special Protection of Children Against Child Abuse , Exploitation, and
Discrimination Act was enacted sometime in 1991. the Act declares it the policy of the state to
provide special protection to children from all forms of abuse, neglect, cruelty, exploitation and
discrimination and other forms prejudicial to their development consistent with the provisions of
the child to be the paramount consideration in all actions concerning them pursuant to the
principles of the UNCRC.

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The Special Protection Act provide legislative measures to protect the child from abuse.

CHILD ABUSE

A. Definitions

        Child. There are two instances when one is considered a child:
                 (1)   Must below 18 years old, or
                 (2)   Above 18 years old but must not be able to fully take care and protect
                       themselves because of physical or mental disability or condition.

 If a person is normal both physically and mentally, he is not anymore a child when he reaches the
age of 18. However, a person 18 years old or over may still under the definition if he or she is
mentally and physically incapacitated to take care of himself or herself. It is not necessary that one is
a mentally retarded or of unsound mind as long as he is not able to defend and protect himself from
abuse. Thus, this would include physical disabilities.

This provisions of the law is an expansion of the definition of the child under CRC as it includes
even those above 18 years of age but incapacitated.

Child Abuse. This refers to the maltreatment, whether habitual or not, of the child. If the
maltreatment was done only once or is only done very seldom, this is still child abuse.

The following forms of maltreatment are considered child abuse:

1. Psychological and physical abuse, neglect, cruelty, sexual abuse and emotional
maltreatment

Physical abuse includes beating, boxing, kicking, pinching the ears, groins, placing the child in a sack,
making the child kneel on salt, mongo or sand, burning the heel of the child so s/he will not go out
of the house and other acts resulting in lacerations, fractured bones, burns, internal injuries, severe
injury or serious bodily harm.

But child abuse is not limited to physical or sexual abuse as commonly received. It also includes
psychological and emotional abuse. Physically abuse could also result in psychological injury.

Psychological abuse is inflicting harm to a child’s psychological or intellectual functioning which may
be exhibited by severe anxiety, depression, withdrawal or outward aggressive behavior, or a
combination of said behaviors, which may be demonstrated by a change in behavior, emotional
response or cognition.

Threatening to inflict harm on the child, neglecting or being just indifferent to the child are acts that
cause psychological injury to the child. Other acts causing psychological injury are also mentioned in
the next paragraphs.




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2. Any act by deeds or words which debases, degrades or demeans the intrinsic worth and
dignity of child as a human being

Acts, deed and words can be psychologically and emotionally disturbing to a child. Verbal abuse like
shouting to a child and calling him bad names “bogo” (dumb), “danghag” (careless), “buang”
(insane), “mayo pang gipatay ka” (I should have killed you), “tanga” (stupid) is child abuse. Shaming
the child in the presence of his friends debases and demeans his dignity and can be considered as
child abuse. Other acts which debases a child is having his hair shaved off, letting him go around
and telling everyone that he is thief. Some children would refused to go to school if the abuse is
done by a teacher.

However, discipline administered by a parent or legal guardian to a child does not constitute cruelty
provided it is reasonable in manner and moderate in degree and does not constitute physical or
psychological injury as defined.


3. Unreasonable deprivation of his basic needs for survival such as food and shelter

This can be considered as neglect under the first paragraph. Neglect is failure to provide, for reasons
other than poverty, adequate food, clothing, shelter, basic education or medical care so as to
seriously endanger the physical, mental, social and emotional growth and development of the child.
This includes fathers who fail to give support to their illegitimate children.

Parents who neglect and abandon their children, leaving them without any means of survival, selling
their children, leaving them in the streets can be criminally liable for child abuse under this
paragraph. Demolition of houses depriving children of shelter and the delay in delivery of relief
goods may also fall under this paragraph.


4. Failure to immediately give medical treatment to an injured child resulting in serious
impairment of his growth and development or in his permanent incapacity or death

This may refer to doctors or those in the medical profession who refuses to give medical treatment
to an injured child. It may also refer to neighbors or witnesses of a child being abused and injured
and yet refuses to give first aid or treatment. The owners of hospitals who fail to give medical
assistance to children can also be held liable under this provision.


B. Child Prostitution and other Sexual Abuse

According to Dr. Bernadette Madrid of the U.P. Philippines General Hospital, child sexual abuse
may be in the form of a sexual assault, incest, or exploitation. A sexual assault refers to rape,
attempted rape, acts of lasciviousness done by a stranger. Incest is any sexual contact between
members of the family in which an adult or older person seeks or gains sexual gratification through a
child. Sexual exploitation or encouraging a child to engage in prostitution and pornography.




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Children exploited in prostitution and other sexual abuse

The following circumstances must be present to be considered as children exploited in prostitution
and other sexual abuse:

1.   They must be below 18 or over 18 as long as they are incapacitated to protect themselves
2.   They may be male or female
3.   they indulge in sexual intercourse or lascivious conduct
4.   The purpose of sexual intercourse or lascivious conduct is either
             a. Money or profit or other consideration or
             b. By reason of coercion or influence of any adult, syndicate or group.


Lascivious conduct means the intentional touching, either directly or through clothing, of the
genitalia, anus, groin, breast, inner thigh, or buttocks, or the introduction of any object into the
genitalia, anus or mouth, of any person, whether of the same or opposite sex, with an intent to abuse,
humiliate, harass, degrade, or arouse or gratify the sexual desire of any person, bestiality,
masturbation, lascivious exhibition of the genitals or public area of a person.

This definition differs from the definition of “prostitution” under Article 202 of the Revised Penal
Code which provides that:

1. The person must be a women,
2. She habitually indulges in sexual intercourse or lascivious conduct, and
3. The purpose of such behavior is for money or profit.

DIFFERENCE BETWEEN PROSTITUTED CHILD AND PROSTITUTE

            Aspect              Prostituted Child                               Prostitute
Applicable Law           R.A.7610                                     RPC Art. 202
Sex                      Male or Female                               Female
                         Not necessarily habitual, may
Frequency of sexual activity                                          Habitual
                         be once
Purpose/Reason of sexual Money,        profit,      other             Money profit
activity                 consideration, coercion or
                         influence of any adult, syndicate
                         or group
Whether or not penalized Not      penalized       because             Penalized because considered
                         considered as victim                         as criminal

R.A. 7610 is deemed to have amended article 202 of the Revised Penal Code as far as children are
concerned. Girls below 18 years old who are engaged in prostitution are considered as the victims.
Thus, they cannot be prosecuted as “prostitutes” under the Revised Penal Code. Before R.A. 7610
was enacted, girls below 18 years old can be prosecuted for prostitution because the age of criminal
responsibility under the Revised Penal Code is 9 years old.



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R.A. 7610 also amends if not repealed Article 340 of the Revised Penal Code on corruption of
minors.

Child Sexual Abuse

Sexual abuse includes employment, use, persuasion, inducement, enticement or coercion of a child
to engage in, or assist another person to engage in , sexual intercourse or lascivious conduct or the
molestation, prostitution, or incest with children.

Sexual abuse which does not fall under child prostitution or obscene publications such as incest,
sexual assault and child rape cases are not defined as separate criminal offenses under R.A. 7610 but
is include in child prostitution and other sexual abuse.

However, these cases of incest, sexual assault and child rape cases may be prosecuted under the
Revised Penal Code for rape (Art. 335) or acts of lasciviousness (Art. 336) as amended by the Anti-
Rape Law (R.A. 8353)

In order to prosecute for rape, it is required that any of the following circumstances be present:

   1.   force, intimidate, threat;
   2.   offended party is deprived of reason or otherwise unconscious;
   3.   fraudulent machination or grave abuse of authority or
   4.   that the victim is below 12 years old or is demented even with consent.

Some of the inadequacies of the law have been covered by the Anti-Rape Law. Fraudulent
machination and grave abuse of authority are now included in the circumstances for a sexual
intercourse to be considered as rape. This covers cases as incest or in cases when the authority of the
offender would be enough reason for the offended party to consent to the will of the latter.

Higher penalties are provided for incest cases or where the offender is the father under the Anti-
Rape law.


Persons to be Prosecuted for Child Prostitution and other sexual abuse

The following persons are to be punished:

a. Those who engage in or promote, facilitate or include child prostitution
b. Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in
   prostitution or subjected to other sexual abuse
c. Those who derive profit or advantage from the prostitution whether as manager or owner of the
   establishment where prostitution takes place.

The essence of penalizing child prostitution is to stop the exploitation of children in prostitution of
children in prostitution. This can only be done by penalizing all those who take advantage of the
vulnerability of these children. It includes not only the one who engages in the “business” of child
prostitution but also the “customer” who does the sexual act and the other persons who derive
profit there from such as the bar owners of establishments which serve as cover for prostitution.
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Paragraph (b) is not limited to the “customer” in a child prostitution business but includes persons
who commit the act of sexual intercourse and lascivious conduct with a child through coercion or
influence. However, if the circumstances of rape are present, it is better to prosecute under the
Anti-rape law because the penalty is higher


Attempt to Commit Prostitution

There are two instances when there is an attempt to commit child prostitution, as follows:

 (1)     Attempt to engage, promote or facilitate child prostitution
 (2)     Attempt to commit act of sexual intercourse or lascivious conduct


 For the first instance, the following circumstances must be present:

 (1)      Offender is any person not a relative of a child
 (2)      He is found with the said in any of the following places:
               a. Inside the room or cubicle of a house, an inn, hotel, motel, pension house, apartelle
                   or other similar establishment,
               b. Vessels, vehicle or secluded area
               c. Any other hidden or secluded area

 (3)       The circumstances which would lead a reasonable person to believe that the child is about
           to be exploited in prostitution and other sexual abuse

For the second instance, the following circumstances must be present:

1.     Offender is any person receiving services from a child
2.     the services are done in a sauna parlor or bath, massage clinic, health club and other similar
       establishments.

C. Child Trafficking

Child trafficking is becoming a problem in the country. Children from the rural areas and far-flung
provinces in the country are recruited to work in the cities where they are promised decent wages.
However, they end up in prostitution dens or as laborers in factories.

Definition

The definition of child trafficking under Section 7 of R.A. 7610 is when a person engages in trading
with children including but not limited to the following:

              1. the act of buying and selling of a child for money
              2. buying and selling a child for any other consideration
              3. barter


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Sale of children involves the actual transfer and delivery of custody or “ownership” of children by
the person who has actual custody over the children into the hands of another person and that the
other person obligates to pay, in exchange, a certain sum of money. Child trafficking on the other
hand, involves a more habitual trading of children, whereby the buying and selling becomes more of
a business venture. The trafficker is actually a middleman facilitating the barter and exchange of
children. (The Convention on the Rights of the Child and the Philippine Legal System, Adhikain para sa Karapatang Pambata
(AKAP) Ateneo Human Rights Center)

When the trafficking is for the purpose of prostitution, the offender shall be prosecuted under child
prostitution as one who acts as procurer for child prostitution.

When trafficking is for the purpose of enslaving the child such as in bonded labor, the offender may
be prosecuted under this article as well as for the crime of slavery under Article 272 of the Revised
Penal Code. Obliging a person to render service to one to whom he is indebted without
remuneration and to remain there as long as the debt is paid constitutes slavery (Reyes vs. Alojando,
16 Phil. 499), but if the minor is employed with the consent of his parents or guardians even though
against his will, involuntary servitude is not committed (U.S. vs. Cabanag, 8 Phil. 64). In this case,
the offenders can be sued for child trafficking only.


Presumption

There is a presumption of child trafficking if a person, whether natural or juridical, has under his
custody two or more children without any legal basis or without being licensed to act as a foster
parent or child placement agency.


D. Attempt to commit child trafficking

Instances when there is an attempt to commit child trafficking are as follows:

    1. When a child travels alone to a foreign country

    The following circumstances should be present:
            (a) The child travels alone
            (b) His destination is a foreign country
            (c) He has no valid reason
            (d) The child does not have either:

                  (i) clearance issued by DSWD, or
                  (ii) written permit or justification from the child’s parents of guardians.

Under the rules, a child is not allowed to travel alone to a foreign country without a travel clearance
issued by DSWD or a written permit issued under oath by both natural or adoptive parents, or the
legal guardian or other person having legal custody of the child. If the child is accompanied by one
of the natural or adoptive parents, the permit shall be signed by the parent who will stay behind in
the Philippines. The requirements for travel clearance are indicated in the IRR. All forms are
prescribed by DSWD.

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An unaccompanied child should not be allowed by the Bureau of Immigration personnel at the port
of embarkation to depart for a foreign destination except upon presentation of the Department
travel clearance or parental travel permit, as the case may be, duly stamped having been received by
the department.

The mere fact that the child does not have a clearance from DSWD or written permit or justification
from his parents or guardians would be enough. It is parent or other person responsible for the
travel of the child who will be liable.

    2. Pregnant mother executes an affidavit of consent for adoption

The following circumstances must be present:
       a. The offender is a pregnant women
       b. She executes as affidavit of consent for adoption
       c. The execution is for a consideration

The execution of the affidavit must be for a consideration and is executed while she is pregnant.

    3. A person, agency, establishment or child-caring institution recruits women

The following circumstances must be present:
        a. The offender is a person, agency, establishment or child caring institution
        b. The offender recruits women or couples
        c. The purpose of recruiting is for them to bear children
        d. The purpose of which is child trafficking

It must be established that the purpose of the offender is for child trafficking. If the offender is an
agency, establishment of child-caring institution, its head will be liable.


    4. Doctor, hospital or clinic official or civil registrar

The following circumstances must be present:
       a. The offender is a doctor, hospital or clinic official or employee, nurse, midwife, local
             civil registrar or other person
       b. The offender simulates birth
       c. The purpose is for child trafficking
       Again, it must be established that the purpose is for trafficking. If it is no for the purpose of
   child trafficking, simulation of birth is punishable under Article 347 of the Revised Penal Code.

5. Person engaged in the act of finding children

The following circumstances must be present:
    a. The offender is a person engaged in the act of finding children
    b. These children are found among low-income families, hospitals, clinics, nurseries, day-care,
    or other child caring institutions
    c. These children can be offered for the purpose of child trafficking
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The presumption that if a person has under his custody two or more children without any legal basis
or without being licensed to act as foster parent or a child placement agency will apply in this case.


Rules on Abandonment of children

The rules include the duty of the institution or private individual to report to DSWD wherever the
parents has left the child in the hospital, clinic or child-caring and placement agency or private
individual for seven (7) days without any valid reason. Upon the receipt of DSWD of the report, it
shall immediately take custody of the child or arrange for immediate transfer to a duly accredited
child-caring institution. The DSWD shall then file a petition for involuntary commitment of
abandoned child in favor of the child-caring institution. This is pursuant to the procedure provided
under P.D. 603.

DSWD shall also file a criminal case for abandonment against the parent. There is presumption on
the part of the parent of intent to abandon a child when:

1.   There is failure to provide for the care and support of a child for at least six (6) continuous
     months for no valid reason unless said failure is due to reasons beyond the control of the parent
     or is due to financial reasons, or
2.   There is failure to report to a law enforcement agency or to the Department that the child is
     missing within seventy two hours after his disappearance in discovered.

A hospital, clinic, duly accredited child placement agency or person is prohibited from delivering an
abandoned child under his custody to a public institution or private individual without written
consent of the parent or person who entrusted the child to his care or in the absence of the latter, of
the Department.

E. Obscene Publication and Indecent Shows

Under Section 9 of R.A. 7610 for obscene publications and indecent shows, the offender hires,
employs, uses, persuades, induces or coerces a child for any of the following:

1.  to perform in obscene exhibitions and indecent shows whether live or in video
2.  to pose or model in obscene publications or pornographic materials
3.  to sell or distribute the said materials
       The authors of the obscene publication, operators of establishment selling the same and
those who exhibit indecent shows are also liable under Article 201 of the revised Penal Code.

F. Other Acts of Abuse

Article VI Section 10 of R.A. 7610 enumerates other acts of abuse and their respective penalties.
They are as follows:

1. Any person who shall commit any other acts of child abuse, cruelty or exploitation or be
   responsible for other conditions prejudicial to the child’s development including Article 59 of
   P.D. 603 but not covered under the Revised Penal Code.
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     Article 59 of P.D. 603 states that criminal liability shall attach to any parent who:
                 1. Conceals or abandons the child with intent to make such child lose his civil status.
                 2. Abandons the child under such circumstances as to deprive him of love, care and
                     protection he needs.
                 3. Sells or abandons the child to another person for valuable consideration.
                 4. Neglects the child by not giving him the education which the family’s station in life
                     and financial support permit.
                 5. Fails or refuses, without justifiable grounds, to enroll the child as required by Article
                     72.
                 6. Causes, abates, or permits the truancy of the child from the school where he is
                     enrolled. “Truancy” as here used means absence without cause for more than twenty
                     schooldays, not necessarily consecutive.
                 7. Improperly exploits the child by using him, directly or indirectly, such as for
                     purposes of begging and other acts which are inimical to his interest and welfare.
                 8. Inflicts cruel and unusual punishment upon the child or deliberately subjects him to
                     indignations and other excessive chastisement that embarrass or humiliate him.
                 9. Causes or encourages the child to lead an immoral or dissolute life.
                 10. Permits the child to possess, handle or carry a deadly weapon, regardless of its
                     ownership.
                 11. Allows or requires the child to drive without a license or with a license which the
                     parent knows to have been illegally procured. If the motor vehicle driven by the child
                     belongs to the parent, it shall be presumed that he permitted or ordered the child to
                     drive.

2.      Any person who shall keep or have in his company a minor

     The following circumstances must be present:

               a. The offender must keep or have in his company a minor
               b. The minor is either twelve years under or ten years or more his junior
               c. That this happens in any public or private place, hotel, motel, beer joint,
                   discotheque, cabaret, pension house, sauna or massage parlor, beach and/or other
                   tourist resort or similar places
  d.      That the person is not related within the fourth degree of consanguinity or affinity or any
  bond recognized by law, local custom and tradition, or acts in the performance of a social, moral or
  legal duty.
3. Any person who shall induce, deliver or offer a minor to a person prohibited to have a minor
     under in his company (under paragraph 2).

        If the perpetrator is an ascendant, stepparent or guardian of the minor, the penalty to be imposed
        is higher and he losses parental authority over the minor.

4.      Any person, owner, manager or one entrusted with the operation of any public or private place of
        accommodation

     The following circumstances must be present:


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     a. That the offender is the owner, manager one entrusted with the operation of public or private
        place of accommodation whether for occupancy, food, drink, or otherwise, including residential
        places
     b. He allows any person to take along with him to such place or places any minor herein described
        (ten years his junior or below 12 years old)

5.      Any person who shall use, coerce, force, or intimidate a street child or any other child to:

              1. Beg or use begging as means of living;
              2. Act as conduit or middleman in drug trafficking or pushing; or
              3. Conduct any illegal activities.

6.      Crimes punishable under the Revised Penal Code

             Some acts of abuse against a child are punishable under the Revised Penal Code. These
     crimes are prescribed a higher penalty under R.A. 7610 if the victim is a child below 12 years old.
     These crimes include:

                 a. Murder (Article 248), homicide (Article 249), other intentional mutilation (Article
                    262 par 2), and serious physical injuries (Article 263 par.1)
                 b. Qualified seduction (Article 337), acts of lasciviousness with the consent of the
                    offended party (Article 339), corruption of minors (Article 340), and white slave
                    trade (Article 241)


                           Offense                                              Penalty
     Section 5, par. (a) and (c):                               Reclusion temporal in its medium period
                                                                 to reclusion perpetua
              Engage in or promote, facilitate or
                 induce child prostitution
              Derive profit or advantage from the
                 prostitution whether as manager or
                 owner of the establishment where
                 prostitution takes place
     Section 5, par. (b):                                       Reclusion temporal in its medium period
              Commit the act of sexual intercourse              to reclusion perpetua
                 or lascivious conduct with a child
                 twelve years and above exploited in
                 prostitution or subjected to other
                 sexual abuse
              Commit the act of sexual intercourse             Same as statutory rape under Anti Rape
                 with a child below twelve years old             Law – reclusion perpetua to death,
                 exploited in prostitution or subjected          depending on the circumstances
                 to the other sexual abuse
              Commit lascivious conduct (except if             Reclusion temporal in its medium period.
                 it falls under sexual assault under the
                 Anti-rape law) with a child below
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          twelve years old exploited in
          prostitution or subjected to other
          sexual abuse
         Commit sexual assault under the            Prision mayor to reclusion perpetua
          Anti-rape Law (a) penis to anus or          depending on the circumstances.
          mouth or (b) any object or
          instrument to vagina or anus
Section 6
         Attempt to commit child prostitution       Prision correccional medium period to
          if child twelve years and above              prision mayor minimum period
                                                    (NOTE: two degrees lower than the
                                                       consummated)
        Attempt to commit child prostitution        Can reach prision mayor maximum
         if child is below twelve years old            period
                                                    (NOTE: two degrees lower than the
                                                       consummated)

Section 7
             Child trafficking                      Reclusion temporal to reclusion perpetua
                                                     Reclusion perpetua if child below 12
             Trafficking is for the purpose of      Reclusion temporal in its medium period
              prostitution                             to reclusion perpetua
             Trafficking is for the purpose of      Both R.A. 7610 and Art. 272 of RPC
              enslaving the child such as in        (NOTE: if with parents consent, only child
              bonded labor                             trafficking under R.A. 7610

Section 8
         Attempt to commit child trafficking        Prision correccional to prision mayor

Section 7, Rules and Regulations on Trafficking      Arresto mayor and payment of fine not
of Children                                           exceeding P500.00
         Abandonment by the parent of a
            child under seven (7) years of age
            for six (6) continuous months
         If the child dies as a result of the       Prision correccional in its medium and
            abandonment                               maximum periods
         If the child is merely exposed to          Prision correccional in its minimum and
            danger                                    medium periods

Section 6, Rules and Regulations on trafficking      Arresto mayor and payment of fine not
of Children                                           exceeding five hundred pesos
         Hospital, clinic, duly accredited child
            placement agency or person delivers
            an abandoned child under his
            custody to a public institution or
            private individual without written

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               consent of the parent or person who
               entrusted the child to his care or in
               the absence of the latter, of the
               DSWD
Section 9                                               Prision mayor in its medium period
         Obscene publications and indecent             Penalty is imposed in the maximum
            shows                                        period if the child is below 12
         Ascendant, guardian or person                 Prision mayor in its medium period.
            entrusted in any capacity with the
            custody of the child who causes or
            allows the child to participate in
            obscene shows and publication
         Authors of the obscene publication,           Both R.A. 7610 and Article 201 of the
            operators of establishment selling           Revised Penal Code
            the same and those who exhibit
            indecent shows
Section 10                                              Prision mayor in its minimum period
         (a) Other acts of child abuse, cruelty or
             exploitation or be responsible for
             other conditions prejudicial to the
             child’s development including
             Article 59 of P.D. 603

         (b)    Keep or have in his company a           Prision mayor in its medium period and
                minor either twelve years under or       a fine of not less than fifty thousand
                ten years or more his junior with        pesos (P50.000.00(
                qualifications

         (c)    Induce, deliver or offer a minor to     Prision mayor in its medium period and
                a person prohibited to have a            a fine of not less than Forty thousand
                minor under in his company under         pesos (P40.000.00)
                preceding offense

         If perpetrator in the above be an
                                                        Prision mayor in its maximum period, a
         ascendant, stepparent or guardian of
                                                         fine of not less than fifty thousand pesos
         the minor
                                                         (P50.000.00), and the loss of parental
         (d) Person, owner, manager or one
                                                         authority over the minor
              entrusted with the operation of any
              public or private place of
              accommodation who allows this
         (e) Use, coerce, force, or intimidate
                                                         Prision correccional in its medium period
              street child or any other child to:         to reclusion perpetua
              (1) Beg use or use begging as
              means of living; (2) Act as conduit
              or middlemen in drug trafficking
              or pushing; or (3) Conduct any
              illegal activities

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             Murder (Article 248), homicide               Reclusion perpetua
              (Article 249), other intentional
              mutilation (Article 262 par 2), and
              serious physical injuries (Article
              263 par.1) if victim is below 12
             Qualified seduction (Article 337),           One (1) degree higher than that imposed
              acts or lasciviousness with the               by law
              consent of the offended party
              (Article 339), corruption of minors
              (Article 340), and white slave trade
              (Article 241) if victim below 12



When Penalty Impose Is Maximum

The acts punishable under R.A. 7610 such as child prostitution, child trafficking, indecent shows and
other acts of child abuse are provided with penalties. However, under the following circumstances,
the penalties are imposed to its maximum:

a.   If the offender has been previously convicted under this Act;
b.   When the offender is a corporation, partnership or association, the officer or employee thereof
     who is responsible for the violation of this act
c.   When the perpetrator is an ascendant, parent, guardian, stepparent or collateral relative within
     the second degree of consanguinity or affinity or a manager or owner of an establishment whish
     has no license to operate or its license has expired or has been revoked.
d.   If the offender is a public officer or employee: Provided, however, that if the penalty imposed is
     reclusion temporal, then the penalty of perpetual or temporary absolute disqualification shall
     also be imposed: Provided, finally, That if the penalty imposed is prision correccional or arresto
     mayor, the penalty of suspension shall also be imposed.

When the offender is a foreigner, he shall be deported immediately after service of sentence and
forever barred from entry to the country.

A fine to be determined by the court shall be imposed and administered as a cash fund by the
Department of social Welfare and Development and disbursed fro the rehabilitation of each child
victim, or any immediate member of his family if the latter is the perpetrator of the offense.


Remedial Procedures

A. Reporting

Even before a child abuse case is filed, reporting of such cases should be done. The following
should report the incidence of child abuse:



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a. A person who learns of facts or circumstances that give rise to a belief that a child has suffered
   abuse may report the same, either orally or in writing to the DSWD, to the police or other law
   enforcement agency or to the Barangay Council for the Protection of Children.

   This is not mandatory because there is no sanction if the person does not report the case.

b. The head of any public or private hospital, medical clinic and similar institution, as well as the
   attending physician and nurse shall to report either orally or in writing to the DSWD the
   examination or treatment of a child who appears to have within forty-eight (48) hours.

   This is mandatory because there is a penalty for failure to report which is a fine of not more than
   two thousand pesos (P2,000.00)

c. All teachers and administrators of public schools, probation officers, government lawyers, law
   enforcement officers, barangay officials, corrections officers and other government officials and
   employees whose work involves dealing with children shall report all incidents of possible child
   abuse to DSWD.

   This is again not mandatory because there is no penalty for failure to report.

Those who report a case of child abuse in good faith is free from any civil or administrative liability
there from. There is a presumption that nay such person acted in good faith. This means that if such
who reports a case of child abuse is sued for civil liabilities such as damages, the case will not
prosper. One who files liabilities such as damages, the case will not prosper. One who files the case
will have to prove that the person was acting in bad faith.


B. Investigation

Not later than forty-eight (48) hours after receipt of a report on a possible incident of child abuse,
the DSWD shall immediately proceed to the home or establishment where the alleged child victim is
found and interview said child to determine the following:

       (a) whether an abuse was committed
       (b) the identity of the operator, and
       (c) the need of removing child from his home or the establishment where he may be found
           or placing him under protective custody.

Wherever practicable, the Department shall conduct the interviews jointly with the police and/or a
barangay official. Also, to minimize the number of interviews of the child victim, his statement shall
be transcribed or recorded on voice or video tape.


A. Protective Custody

The DSWD or the duly authorized officer or social worker shall place the child under protective
custody to ensure his safety if the investigation discloses

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    (1) sexual abuse,
    (2) serious physical injury or
    (3) life-threatening neglect of the child

The duly authorized officer or social worker of the DSWD and the assisting police office or
Barangay official, if any shall take a child under protective custody shall be exempt from civil,
criminal and administrative liability therefore.

Protective custody refers to physical custody of the child. There is no need to file a case custody
before the court.

The duties of DSWD upon taking protective custody are:

(1) To inform the police or other law enforcement agency
(2) To refer the child who is placed under protective custody to a government medical or health
    officer for a physical/mental examination and/or medical treatment.
(3) To determine the rehabilitation or treatment program which the child may require and
(4) To gather data relevant to the filing of criminal charges against the abuser.



D. Cases to be filed

The following are the case that DSWD may file if there is child abuse:

1. Petition for the involuntary commitment of the child victim under the provision of Presidential
   Decree No. 603 , as amended, if the investigation confirms the commission of child abuse.
2. Suspension or Deprivation of Parental Authority of the parent/lawful guardian who abused the
   child victim, Provided, that in case of sexual abuse, the Department shall ask for the permanent
   deprivation of parental authority of the offending parent of lawful guardian.
3. Transfer of Parental Authority. In case of suspension or deprivation of parental authority and if
   the child victim cannot be placed under the care of a next of kin, the DSWD will ask the proper
   Court to transfer said authority over the child victim to the Department or to the head of the
   duly accredited children’s home, orphanage, or similar institution.
4. criminal case of child abuse. The investigation report of the Department and/or of the police or
   other law enforcement agency on the abuse of a child, together with the results of the
   physical/mental examination and/or medical treatment and other relevant evidence, shall be
   immediately forwarded to the provincial or city prosecutor concerned for the preparation and
   filing of the appropriate criminal charge against the person who allegedly committed the abuse.

Filing of the case

The following persons who may file complaints on cases of unlawful acts committed against
children as provided under the law:

a. Offended party;
b. Parents or guardians;

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c.   Ascendant or collateral relative within the third degree of consanguinity;
d.   Officer, social worker or representative of a licensed child-caring institution;
e.   Officer or social worker of the Department of Social Welfare and Development;
f.   Barangay Chairman; or
g.   At least three (3) concerned, responsible citizens where the violations occurred.

There are now several people who may file cases for violation of R.A. 7610. this will make it easier
to report cases of child abuse. Cases of child abuse are left unreported particularly those perpetrated
by parents or members of the family. The child and of course his parents who are abusing him or
her, will not report or complain. With this section, social workers, barangay chairman and even three
(3) concerned citizens can now file the case in behalf of the child.

The case of child abuse shall be filed with the office of the provincial or city prosecutor. The case
will be assigned to special prosecutors assigned to investigate child abuse cases.

Guardian Ad Litem

Upon the filing of the criminal complaint to child abuse, the DSWD shall ask the appropriate court
to appoint a guardian ad litem (guardian while the case is pending) to represent the best interest of
the child. The guardian ad litem shall:

              a. Explain to the child the legal proceedings in which the child will be involved;
     b. Advise the judge, when appropriate, and as a friend of the court, regarding the child’s ability to
        understand the proceedings and questions propounded therein;
     c. Advise the prosecutor concerning the ability of the child to cooperate as a witness for the
        prosecution;
     d. Attend all investigations, hearings and trial proceedings in which the child is participant; and
     e. Monitor and coordinate concurrent administrative and court actions

Confidentiality

To protect the child from undue publicity, the name o the child shall be withheld by the DSWD
until the court has acquired jurisdiction over his case.

The prosecutor shall taken necessary steps to execute the public during the giving of testimony of
the child victim to (a) limit the publication of information, photographs or artistic rendering that
may identify the victim; and (b) prevent the undue and sensationalized publicity of the case, taking
the following into consideration:

     a. the age, psychological maturity and understanding of the child victim,
     b. the nature of the unlawful acts committed,
     c. the desire of the victim and the interest of the child’s family

Once the court acquires jurisdiction, it will be at the discretion of the court because the trial is open
to the public. However, all records pertaining to cases of sexual abuse shall be strictly confidential
and no information relating thereto shall be disclosed except in connection with any court or official
proceeding based thereon.


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The unauthorized disclosure of the records shall be punishable by a fine of not more Two thousand
pesos (P2,000.00) or by imprisonment of not more than one (1) year or such fine and imprisonment.

Speedy Trial of Child Abuse Cases

The trial of child abuse cases shall take precedence over all other cases before the courts, except
election and habeas corpus cases. The trial in said cases shall commence within three (3) days from
the date the accused is arraigned and no postponement of the initial hearing shall be granted except
on account of the illness of the accused or the grounds beyond his control.

Sanctions for Establishments or Enterprises

Sanctions for all establishments and enterprises which promote or facilitate child prostitution and
other sexual abuse, child trafficking, obscene publications and indecent shows, and other acts of
abuse shall include:

             a) Immediate closure

A sign with the words “off limits” shall be conspicuously displayed outside the establishments or
enterprises by the DSWD for such period which shall not be less than one (1) year, as the DSWD
may determine. The unauthorized removal of such sign shall be punishable by prision correccional.

The DSWD shall seek the assistance of the local government unit concerned or the police or other
law enforcement agency in the closure of an offending establishment or enterprise.

The DSWD shall file the appropriate criminal complaint against the owner or manager of the closed
establishment or enterprise under the provisions of R.A. 7610, the Revised Penal Code, as amended
or special laws.

             b) Cancellation of their authority or license to operate

These sanctions are without prejudice to the owner or manager thereof being prosecuted under the
law and/or the Revised Penal Code, as amended, or special law.

An establishment shall be deemed to promote or facilitate child prostitution and other sexual abuse,
child trafficking, obscene publications and indecent shows, and acts of abuse if the acts constituting
the same occur in the premises of said establishment.

An enterprise such as sauna, travel agency, or recruitment agency shall be deemed to have
committed the acts penalized if it:

a) Promotes the aforementioned acts as part of a tour for foreign tourists;
b) Exhibits children in a lewd or indecent shows:
c) Provides child masseurs for adults of the same or opposite sex and said services include any
   lascivious conduct with the customer;
d) Solicits children for activities constituting the aforementioned acts.



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