When is there NO double jeopardy?

In People v. Udang (G.R. No. 210161. January 10, 2018), the Supreme Court held that a single act may give rise to multiple offenses. Thus, charging an accused with rape, under the Revised Penal Code, and with sexual abuse, under Republic Act No. 7610, in case the offended party is a child 12 years old and above, will not violate the right of the accused against double jeopardy.

In the Udang case, the Supreme Court disagreed with the trial court's ruling that charging accused Udang 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, would violate his right against double jeopardy.

The right against double jeopardy is provided in Article III, Section 21 of the Constitution:
Section 21. No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act.
The first sentence of the provision speaks of "the same offense," which this Court has interpreted to mean offenses having identical essential elements. Further, the right against double jeopardy serves as a protection:

First, "against a second prosecution for the same offense after acquittal";

Second, "against a second prosecution for the same offense after conviction"; and

Finally, "against multiple punishments for the same offense."Meanwhile, the second sentence of Article III, Section 21 speaks of "the same act," which means that this act, punished by a law and an ordinance, may no longer be prosecuted under either if a conviction or acquittal already resulted from a previous prosecution involving the very same act.

For there to be double jeopardy, "a first jeopardy [must] ha[ve] attached prior to the second; . . . the first jeopardy has been validly terminated; and ... a second jeopardy is for the same offense as that in the first."

A first jeopardy has attached if: first, there was a "valid indictment"; second, this indictment was made "before a competent court"; third, "after [the accused's] arraignment"; fourth, "when a valid plea has been entered"; and lastly, "when the accused was acquitted or convicted, or the case was dismissed or otherwise terminated without his express consent." Lack of express consent is required because the accused's consent to dismiss the case means that he or she actively prevented the court from proceeding to trial based on merits and rendering a judgment of conviction or acquittal. In other words, there would be a waiver of the right against double jeopardy if consent was given by the accused.

To determine the essential elements of both crimes for the purpose of ascertaining whether or not there is double jeopardy in this case, below is a comparison of Article 266-A of the Revised Penal Code punishing rape and Section 5(b) of Republic Act No. 7610 punishing sexual abuse:

Rape under Article 266-A(1) of the Revised Penal Code Sexual abuse under Section 5(b) of Republic Act No. 7610
Article 266-A. Rape; When and How Committed. — Rape is committed —

1) By a man who shall have carnal knowledge of a woman under any of the following circumstances:

a) Through force, threat, or intimidation;

b) When the offended party is deprived of reason or otherwise unconscious;

c) By means of fraudulent machination or grave abuse of authority[.]
SECTION 5. Child Prostitution and Other Sexual Abuse. — Children, whether male or female, who for money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge m sexual intercourse or lascivious conduct, are deemed to be children exploited m prostitution and other sexual abuse.
                         
The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following:

. . . .

(b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to other sexual abuse; Provided, That when the victim is under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and Article 336 of Act No. 3815, as amended, the Revised Penal Code, for rape or lascivious conduct, as the case may be: Provided, That the penalty for lascivious conduct when the victim is under twelve (12) years of age shall be reclusion temporal in its medium period[.]

The provisions show that rape and sexual abuse are two (2) separate crimes with distinct elements. The "force, threat, or intimidation" or deprivation of reason or unconsciousness required in Article 266-A(1) of the Revised Penal Code is not the same as the "coercion or influence" required in Section 5(b) of Republic Act No. 7610. Consent is immaterial in the crime of sexual abuse because "the [mere] act of [having] sexual intercourse . . . with a child exploited in prostitution or subjected to . . . sexual abuse" is already punishable by law. However, consent exonerates an accused from a rape charge as exhaustively explained in Malto v. People.

In People v. Judge Relova: [T]he constitutional protection against double jeopardy is not available where the second prosecution is for an offense that is different from the offense charged in the first or prior prosecution, although both the first and second offenses may be based upon the same act or set of acts.

The only time that double jeopardy arises is when the same act has already been the subject of a previous prosecution under a law or an ordinance. This is not the situation in the case of People v. Udang. Therefore, the trial court erred in ruling that prosecuting an accused both for 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 to double jeopardy.

ADDITIONAL READINGS:

[1] CONST., art. III, sec. 21.
[2] See People v. Judge Relova, 232 Phil. 269, 283 (1987) [Per J. Feliciano, First Division].
[3] People v. Dela Torre, 430 Phil. 420, 430 (2002) [Per J. Panganiban, Third Division].
[4] See People v. Cawaling, 355 Phil. 1, 24 (1998) [Per J. Panganiban, First Division].
[5] See People v. Salico, 84 Phil. 722, 726 (1949) [Per J. Feria, En Banc].
[6] Rep. Act No. 7610, sec. 5(b).
[7] 560 Phil. 119 (2007) [Per J. Corona, First Division].
[8] People v. Abay, 599 Phil. 390 (2009) [Per J. Corona, First Division].
[9] Other cases citing the Abay doctrine are: People v. Dahilig, 667 Phil. 92 (2011) [Per J. Mendoza, Second Division]; and People v. Matias, 687 Phil. 386 (2012) [Per J. Perlas-Bemabe, Third Division].
[10] Nierras v. Dacuycuy, 260 Phil. 6 (1990) [Per J. Paras, En Banc].
[11] Id. at 13, citing People v. Miraflores, 115 SCRA 570 (1982) [Per J. Escolin, Second Division].
[12] People v. Judge Relova, 232 Phil. 269, 283 (1987) [Per J. Feliciano, First Division]

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