I was a new lawyer in 1995 when our office was retained to defend an 11 year old boy who was accused of having committed acts of lasciviousness against a 6 year old girl.  The incident happened during a brownout.  The boy accompanied his  mother who was ironing their clothes at the house of the 6 year old girl.  They were next door neighbors and the girl was the godchild of the boy’s mother, so they were “kina-kapatid.”  The 6 year old had two younger sisters and they were playing hide and seek in the house when the lights went out.  The mother of the boy then took the opportunity to bring all the clothes she had pressed back to their house.  She left her 11 year old boy in the house with the 6 year old girl and her sisters.

According to the 6 year old girl, when the boy’s mother stepped out, the boy pulled down her pants after he caught her hiding under the dining room table.  He then touched her private part and after that, he pulled down his own pants and tried to stick his penis inside her but the lights came back on and the little girl wriggled free and went looking for the boy’s mother and told her what the boy did to her.  The mother immediately spanked her son with the wire coat hanger she was holding. .

When I was assigned to defend this case, I was shocked. I could not believe that children could do such a thing. I remember playing piko and patintero well into my high school years.  Although we had a lot of crushes, tuksuhan and ligawan when I was in high school, all that was innocent compared to this case I had to defend.  I remember thinking that I must just be naive but I just couldn’t believe that children would do this. I cannot believe such a thing could happen.

Trial began. The 6 year old girl testified and she seemed sure of herself. When we were preparing for our defense, I interviewed the boy. The boy couldn’t say anything at all.  He looked at the floor the whole time.  He couldn’t look me in the eye.  It was then I knew he had done it.  When I told the mother that I would put the boy on the witness stand so that he can testify,  the mother absolutely refused to allow her son to testify, that was when I knew that she knew he had done it.

There was no question in anyone’s mind that the boy had done all that the 6 year old had accused him of. I told the mother that to spare themselves more humiliation, if the boy had really done it, then he should admit to his misdeed and avail of a lighter punishment.  The mother would not hear of it. We still went to trial. Sordid detail after sordid detail was alleged and testified to. The prosecution had to prove its case and then the defense had the opportunity to raise reasonable doubt. The trial took about a year and a half.  The accused boy was found guilty of acts of lasciviousness.  He was sentenced and then he was put on probation because he qualified for probation.  Last I heard, after the trial, the family simply waited for the boy to finish the school year and they relocated to the province.

Under the Revised Penal Code, a child of nine is exempt from criminal liability. A child over nine and under fifteen is not exempt from criminal liability if it is proved that the child acted with discernment. The criminal exemption was not automatic.  The child will still be arrested, the child has to apply for bail, the child will have to be arraigned, the child has to plead guilty or not guilty to the charges, and then trial will ensue.  At the trial, evidence will be proffered regarding his age and evidence will be presented to prove or disprove discernment (whether the child knew what he was doing at the time of the commission of the offense).  After trial, the court will have to make a finding of guilt or innocence and then, depending on the age of the child and the gravity of the offense, the sentence will either be suspended or the child will be ordered confined to an institution of rehabilitation for child offenders. There will be a periodic report of the social worker and of the head of the institution and if the child has proven himself rehabilitated, then the case shall be dismissed.  If the child had proven himself incorrigible, then his conviction will become final but his sentence will be reduced by the actual amount of time he had already served.

Almost the same procedure is outlined in PD 603 or the Child and Youth Welfare Code of 1974.  The only difference is that a minor is a person under 21 years of age.

Under the Juvenile Justice and Welfare Act of 2006, however, any child under fifteen years of age is not only exempt from criminal liability, that child is totally exempt from criminal prosecution.  A child under fifteen years of age cannot be apprehended, a child cannot be arrested.  If a child under 15 is put in custody for a crime, the child will be immediately released to the DSWD.  There will be no prosecution whatsoever, instead, a child will be brought in for counseling and if he is willing, he may enter a “diversion program” and be released to his parents or guardian.  A child under fifteen is totally exempt from prosecution.

A child between the age of 15-18 when accused of a crime cannot be arrested, he will be placed in temporary custody of the DSWD. Even before court proceedings can be held, if the crime the child had allegedly committed carries a penalty of less than six years,  the child will be automatically placed in a “diversion program” and there will be no court proceedings anymore.  There will be no prosecution.  All that the child needs to do is to finish the diversion program and the criminal charges against him will melt away.

If the child aged 15-18 is not eligible for diversion programs because the child has committed a grave felony, or if the parents of the accused child refuses diversion, then, criminal proceedings will ensue.  However, after trial, when a judge finds that the child is guilty of the charges, the sentence will be automatically suspended and the child will be ordered to undergo diversion measures. The child will not be imprisoned except as a last resort, when after an evaluation of the DSWD, the child has not fulfilled the diversion measures.  And even when this happens and a court pronounces a verdict of guilt, the child may still have a suspended sentence until he is 21 years old and still undergo diversion measures.  If the child is imprisoned, it will be for the shortest time possible.

RA 9344, the Juvenile Justice and Welfare Act has been in force since 2006 and we are reaping the backlash.  Almost every night, we hear gruesome news of crimes committed by children against other children, and those committed by children against adults.

We have heard of the story of a 15 year old student in Caloocan who stabbed his class adviser to death for suspending him for not abiding by the regulation haircut.  This student arrived at the front of the school gate before 6 am, waited for the teacher who arrived a little later on board a tricycle.  He waited for the teacher to get off the tricycle and while she was walking to the school gate, the boy stabbed her numerous times before fleeing the scene on a motorbike. Can anyone say that this “child” did not commit this crime with evident premeditation? Can anyone say that this “child” did not use means to ensure that the victim could not fight back?  The “child” was brazen, for he had the will to come up close to the teacher and stab her repeatedly.  Did this “child” act like a child or did he act like an adult in planning and carrying out this crime?

There is also the story of gangs of teenage “rugby” boys (glue sniffers) who wait for cabs caught in slow moving traffic.  One boy opens the rear backseat door and takes the belongings of the passenger.  Or, in a variation of the modus operandi, when the cab has no passenger, one boy will open the rear backseat door and as the driver reaches over to close the door, another boy opens the cab driver’s door and takes the cab driver’s money or cellphone or whatever valuable thing is within reach. Who can say that those rugy boys did not plan out their moves?  Who can say that those boys did not have perfect timing?  And did they not act brazenly, taking other people’s hard-earned money?

Or how about the two 11 year old boys who at first were just horsing around in the classroom, joking with one another but one of the boys got angry and pushed the other against the chalkboard so that he fell and hit his head?  When the child was getting up, he was holding his head, apparently in pain, but the other child pushed him again and he fell again and hit his head again.  When the child tried to get up still, the classmate got on top of the wounded boy, put his hands around the wounded boy’s neck and literally squeezed the life out of the child.  How can anyone say that that child did not act with treachery?  He used superior force.  He used means so that the other boy could not fight back anymore.  With ferocity, he attacked his classmate again and again and would not stop until the classmate was no longer breathing.

These children could well have committed acts “in conflict with the law” but I doubt if these children will ever be prosecuted criminally.  If they are prosecuted criminally, I doubt if they will ever serve a criminal sentence.

The criminal syndicates have taken notice of this law and they have engaged children in the commission of crimes.  The adults offenders then become mere accessories after the crime has been committed by the children.  The children are willing or unwilling principals because they are exempt from criminal prosecution.  Even if the children are caught, they will not be imprisoned because of the crime they committed.

There have been moves by mayors and judges to recommend an amendment of this law.  I am afraid that in the time it will take to amend the law, more crimes will be committed by children.

This is one perfect example of the proverb which says “the road to hell is paved as with good intentions.”  The intention of the law is to maintain the “dignity” of the child even after the child has committed a crime.  Truth to tell, law enforcers in the past treated child offenders as though they were adult offenders, subjecting them to torture, arbitrary detention and other maltreatment.  In desiring to correct these malpractices of law enforcers, the lawmakers went overboard.  The made children virtually immune from criminal prosecution. This has reinforced the idea that crime does pay and we as a society will pay for it.

The Bible supports the notion that even children can have discernment.  For instance, Proverbs 20:11 says that ‘even a child is known by his doings.”  That is to say, that a child’s actions can give us an idea of a child’s character and capacity to discern. The prophet Samuel was just a child when he was called to be prophet of the Lord.  Although he saw the evil ways of the children of Eli, he did not do as they did.  And then we see “child” kings of Israel who did very wickedly from their youth.  The chronological or biological age of a child cannot be used as a sole indicator of whether or not a child has acted with discernment.  Much less can the chronological age of a child be the sole basis of exemption from criminal liability.