Overview

An Affidavit of Desistance (AoD) is a sworn statement by a complainant or private offended party declaring that they no longer wish to pursue a criminal complaint or testimony. It is commonly used after the parties have “settled” their dispute—often through restitution, apology, or a broader amicable agreement. Because criminal offenses are wrongs against the State, not merely against an individual, an AoD does not automatically bar or terminate a criminal case. Whether it can justify dismissal depends on what stage the case is in, the nature of the offense, and whether a specific law makes the complainant’s will legally dispositive.

This article explains (1) what an AoD is and isn’t, (2) how it interacts with settlement, (3) when it can lead to dismissal, (4) when it cannot, (5) how it affects civil liability, (6) how and where to file it, and (7) strategic and ethical cautions.

What an Affidavit of Desistance Is—and Is Not

A sworn manifestation of lack of interest to prosecute or to testify, sometimes with a narration of compromise or restitution.
Not a magic wand. Standing alone, an AoD has no automatic, self-executing effect on a criminal case. Prosecutors and courts treat it with “utmost caution,” given the risk of coercion, intimidation, or pay-offs.
Not the same as a recantation. A recantation retracts earlier inculpatory statements; an AoD focuses on desistance. Courts generally disfavor recantations and look for independent corroboration before relying on them.

The Controlling Principles

Crimes are public wrongs. The State is the real party in interest in criminal prosecutions. After an Information is filed, control of the case passes to the prosecutor and the court, not the complainant.
Legal basis is required. Dismissal on the basis of desistance/settlement is proper only when a statute or rule makes the offended party’s act legally decisive, or when the prosecution’s evidence has become insufficient (e.g., indispensable witness genuinely refuses and no other evidence remains).
Civil vs criminal aspects. Settlement can extinguish or satisfy civil liability (damages, restitution), but does not erase criminal liability unless the law expressly allows.

Stages of the Case and the AoD’s Possible Effects

1) Before Filing of Information (Prosecutorial Stage)

A complainant may file an AoD with the inquest or investigating prosecutor.
Practically, desistance can lead to dismissal if the only evidence is the complainant’s statement and he or she refuses to cooperate; or if the parties reached a barangay-sanctioned amicable settlement for an offense that is lawfully compromise-able.
However, if independent evidence (e.g., CCTV, physical evidence, third-party witnesses) supports probable cause, the prosecutor may still file an Information despite desistance.

2) After Filing of Information (In Court)

The AoD is typically attached to a Motion to Dismiss, a Motion to Withdraw Information (filed by the prosecutor with leave of court), or a Manifestation with Motion citing settlement.
The court exercises discretion: it may dismiss only if (a) the law makes desistance dispositive (e.g., certain “private crimes”), (b) the prosecutor moves to withdraw for lack of evidence, or (c) a jurisdictional or procedural bar exists (e.g., failure to undergo mandatory barangay conciliation when required).
If neither applies, the case continues. The AoD may then mitigate penalties (as evidence of restitution or remorse) if there is conviction, and it generally settles the civil aspect.

When Settlement/Desistance Can Be a Valid Ground

A. Private Crimes Where the Law Gives the Offended Party Control

Adultery and Concubinage (complaint by offended spouse; pardon rules apply).
Seduction, Abduction, Acts of Lasciviousness (historically requiring a complaint of the offended party or her parents/guardians).
- In these “private crimes,” pardon or lack of complaint can bar or end prosecution. Timing matters: pardon before filing bars prosecution; pardon after filing may not always be effective unless the statute so provides.
Practice tip: Verify the current text of the governing statutes because Congress has amended several provisions over the years (e.g., the reclassification of rape as a public crime and related reforms).

B. Katarungang Pambarangay (Barangay Justice System) Settlements

For covered disputes (generally, parties who reside in the same city/municipality; offenses not among the statutory exceptions; and typically penalties not exceeding one year imprisonment or ₱5,000 fine, subject to current thresholds), an amicable settlement or arbitration award before the Lupon has the force of a final judgment after the reglementary period.
If the case is one that must first pass through barangay conciliation and the parties validly settled, the criminal complaint may be dismissed on that ground—but only for the offenses lawfully compromise-able and subject to public-offense limits.
Exceptions: Cases not covered by barangay conciliation (e.g., where one party is the government, where the offense carries a higher penalty, where parties reside in different cities/municipalities with no adjoining barangays, cases involving corporations as parties, certain offenses against public order, etc.) are not dismissible on barangay settlement alone.

C. Statutes that Expressly Allow Extinguishment by Settlement/Pardon

Some special laws or rules expressly make pardon, restitution, or settlement a basis to extinguish criminal liability or to discontinue prosecution. (These are specific, exception-based and must be consulted on a per-statute basis.)
Practice tip: Do not assume. Check the enabling statute for explicit language making settlement a bar to prosecution.

D. Evidentiary Collapse

If desistance renders the prosecution’s evidence fatally insufficient (e.g., the complainant is the sole eyewitness, no substitute evidence exists, and testimony cannot be compelled effectively), the prosecutor may move to withdraw the Information. The court may dismiss for lack of evidence in the interest of justice.

When Settlement/Desistance is Not a Valid Ground

Public crimes and serious offenses (e.g., homicide, murder, serious physical injuries, robbery, illegal drugs, illegal firearms, corruption, trafficking, terrorism, etc.)—settlement does not erase criminal liability.
Rape is now a public crime; marriage or private settlement does not extinguish criminal liability.
Violence Against Women and Their Children (VAWC) cases and child protection laws explicitly reject settlement as a defense and often prohibit compromise.
Estafa and theft: restitution or payment does not absolve criminal liability, though it may mitigate penalty and settle civil liability.
B.P. Blg. 22 (bouncing checks): payment or settlement generally does not automatically bar criminal prosecution, absent an express statutory allowance or case-specific prosecutorial disposition; courts treat the offense as protecting public interest in banking/commerce.
Administrative or regulatory offenses with public interest (e.g., environmental, tax, customs, banking) usually cannot be compromised to defeat the criminal case unless the law expressly authorizes it.

Interaction with Civil Liability

Under the Revised Penal Code and the Civil Code, a criminal act typically gives rise to both criminal and civil liability.
Settlement can fully satisfy/waive the civil liability (e.g., full restitution, quitclaim).
If the criminal case proceeds, the court may still acquit while awarding civil damages (if the standard of proof for civil liability is met), or convict and consider settlement as mitigating or as partial/total satisfaction of the civil aspect.
Parties often execute a Compromise Agreement (separate from the AoD) that specifies civil terms (payment schedule, waiver, forfeiture on default). The agreement can be submitted for judicial approval in the criminal case as to the civil aspect.

Practical Requirements and Drafting Notes

Core Contents of an AoD

Title/Caption referencing the docket (if filed in court) or the NPS case number (if still with the prosecutor).
Affiant’s identity and capacity (offended party/complainant; relation if a minor).
Clear declaration of desistance from further prosecution and/or testimony.
Narration of facts justifying desistance (e.g., restitution received, absence of coercion, voluntary settlement).
Statement on voluntariness and acknowledgment of legal consequences.
Reservation or waiver of civil claims, as applicable, or reference to a separate Compromise Agreement.
Attestation/Jurat before a notary public (or consular officer, if executed abroad), complying with Rules on Notarial Practice.

Where to File

Pre-filing: Submit to the investigating prosecutor (with a Motion to Dismiss/Withdraw Complaint).
Post-filing: Attach to a Motion to Dismiss, Motion to Withdraw Information (usually by the prosecutor), or Manifestation; serve copies on the prosecutor and accused.
If covered by Katarungang Pambarangay: File or reference the amicable settlement with the Lupon; if already in court, present certified copies to support the motion.

Evidentiary Support

Include proof of settlement (receipts, restitution acknowledgment, compliance reports).
If alleging lack of voluntariness in earlier statements, explain circumstances and provide independent corroboration where possible.

Strategic Considerations for Counsel

Assess the offense class. Determine if the case is a private crime or otherwise statutorily compromise-able. If not, manage expectations: the AoD likely won’t terminate the criminal case.
Evaluate the prosecution’s evidence. If the complainant is indispensable and no substitute exists, an AoD can support a motion to withdraw for insufficiency. If evidence is independent and strong, desistance will have little to no effect on the criminal aspect.
Use AoD to settle the civil aspect. Even where the criminal case proceeds, an AoD plus a judicially-approved compromise can resolve civil liability and mitigate penalties.
Time the filing. Earlier is generally better, especially before the Information is filed. After arraignment, dismissal becomes harder; double jeopardy concerns and the court’s discretion loom larger.
Mind mandatory barangay conciliation. If the dispute is covered and the parties skipped conciliation, that procedural defect can be a ground for dismissal without reaching the merits. Conversely, a valid barangay settlement can be a strong basis for dismissal of compromise-able offenses.
Avoid improper influence. Do not pressure or pay a complainant to execute an AoD in a way that violates anti-tampering or obstruction of justice norms. Ensure voluntariness.
Coordinate with the prosecutor. Since the prosecutor controls the prosecution, secure the prosecution’s conformity to any motion premised on AoD/settlement whenever possible.

Frequently Asked Questions

1) Does an Affidavit of Desistance automatically dismiss the case? No. It is persuasive at best, and only dispositive where law says so (certain private crimes, valid barangay settlements for compromise-able offenses, or statutes expressly allowing extinction).

2) If the complainant already “forgave” the accused, will the court dismiss? Not necessarily. Forgiveness or pardon can settle civil liability and may mitigate penalties, but criminal liability remains for most public offenses.

3) We already paid everything—will that end estafa or theft? Payment/restitution does not automatically bar prosecution. It is mitigating and resolves the civil aspect, but the criminal case may proceed.

4) Can the complainant refuse to testify? A complainant can express desistance, but the court may still compel testimony through subpoena, and the prosecution may rely on other evidence.

5) What about B.P. 22? As a rule, payment alone does not automatically terminate** the criminal case. The public interest character of the offense typically prevails unless a specific legal mechanism or prosecutorial disposition applies.

6) Is barangay settlement always a bar to criminal action? No. Only for covered disputes/offenses and subject to statutory exceptions. Many criminal offenses are outside barangay conciliation’s ambit.

Checklist: Using an AoD Effectively and Ethically

✅ Confirm offense classification and statutory rules on compromise/pardon.
✅ Determine case stage (pre-filing vs. post-filing).
✅ Gather independent documentation of voluntariness and settlement.
✅ Decide whether to target dismissal (law-driven) or to confine the AoD to civil settlement/mitigation.
✅ If barangay settlement applies, comply with procedures and obtain certified copies.
✅ File the appropriate motion and coordinate with the prosecutor.
✅ Avoid any form of coercion or inducement compromising voluntariness.

Bottom Line

An Affidavit of Desistance is not a universal key to dismissal. Settlement is a valid ground to terminate a criminal case only where the law makes the offended party’s will controlling (e.g., certain private crimes, valid barangay settlements for compromise-able offenses, or specific statutes that say so) or where desistance causes the prosecution’s evidence to collapse. In the vast majority of public offenses, settlement affects only the civil aspect and penalty mitigation—the criminal case may—and often does—proceed.