2018 SC ruling abandons Abay doctrine (double jeopardy)

In People v. Udang (G.R. No. 210161. January 10, 2018), the Supreme Court held that People v. Abay — insofar as it ruled that charging an accused with both rape, under Article 266-A(1) of the Revised Penal Code, and sexual abuse, under Section 5(b) of Republic Act No. 7610, violates his or her right against double jeopardy— must therefore be abandoned.

As held in Nierras v. Dacuycuy:

[A] single criminal act may give rise to a multiplicity of offenses and where there is variance or differences between the elements of an offense in one law and another law as in the case at bar there will be no double jeopardy because what the rule on double jeopardy prohibits refers to identity of elements in the two (2) offenses. Otherwise stated prosecution for the same act is not prohibited. What is forbidden is prosecution for the same offense. Hence, the mere filing of the two (2) sets of information does not itself give rise to double jeopardy.


Petitioner was charged and convicted for violation of Section 5 (b), Article III of RA 7610, not rape. The offense for which he was convicted is punished by a special law while rape is a felony under the Revised Penal Code. They have different elements. The two are separate and distinct crimes. Thus, petitioner can be held liable for violation of Section 5 (b), Article III of RA 7610 despite a finding that he did not commit rape. (Michael John Z. Malto vs. People of the Philippines. G.R. No. 164733. September 21, 2007)


Petitioner claims that AAA welcomed his kisses and touches and consented to have sexual intercourse with him. They engaged in these acts out of mutual love and affection. But may the "'sweetheart theory" be invoked in cases of child prostitution and other sexual abuse prosecuted under Section 5, Article III of RA 7610? No. (Michael John Z. Malto vs. People of the Philippines. G.R. No. 164733. September 21, 2007)The sweetheart theory applies in acts of lasciviousness and rape, felonies committed against or without the consent of the victim. It operates on the theory that the sexual act was consensual. It requires proof that the accused and the victim were lovers and that she consented to the sexual relations.

For purposes of sexual intercourse and lascivious conduct in child abuse cases under RA 7610, the sweetheart defense is unacceptable. A child exploited in prostitution or subjected to other sexual abuse cannot validly give consent to sexual intercourse with another person.

The language of the law is clear: it seeks to punish [t]hose who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to other sexual abuse. Unlike rape, therefore, consent is immaterial in cases involving violation of Section 5, Article III of RA 7610. The mere act of having sexual intercourse or committing lascivious conduct with a child who is exploited in prostitution or subjected to sexual abuse constitutes the offense. It is a malum prohibitum, an evil that is proscribed.

A child cannot give consent to a contract under our civil laws. This is on the rationale that she can easily be the victim of fraud as she is not capable of fully understanding or knowing the nature or import of her actions. The State, as parens patriae, is under the obligation to minimize the risk of harm to those who, because of their minority, are as yet unable to take care of themselves fully. Those of tender years deserve its protection.

The harm which results from a child's bad decision in a sexual encounter may be infinitely more damaging to her than a bad business deal. Thus, the law should protect her from the harmful consequences of her attempts at adult sexual behavior. For this reason, a child should not be deemed to have validly consented to adult sexual activity and to surrender herself in the act of ultimate physical intimacy under a law which seeks to afford her special protection against abuse, exploitation and discrimination. (Otherwise, sexual predators like petitioner will be justified, or even unwittingly tempted by the law, to view her as fair game and vulnerable prey.) In other words, a child is presumed by law to be incapable of giving rational consent to any lascivious act or sexual intercourse.
This must be so if we are to be true to the constitutionally enshrined State policy to promote the physical, moral, spiritual, intellectual and social well-being of the youth. (Michael John Z. Malto vs. People of the Philippines. G.R. No. 164733. September 21, 2007)

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