Affidavit of Desistance, Plea Bargaining, and Prosecution Rules — A Practical Legal Guide

Short answer: No, rape is not a “settle-able” crime in the Philippines. Private forgiveness, payoffs, or “amicable settlements” do not extinguish criminal liability. An affidavit of desistance may affect proof but does not bind the court or the prosecutor. Plea bargaining is possible only to a necessarily included lesser offense and only with stringent judicial control and consents required by the Rules of Court. The State remains the offended party once a criminal case is filed.

1) Legal Foundations

Definition and penalties. Rape is defined and penalized under Articles 266-A and 266-B of the Revised Penal Code (RPC), as amended by the Anti-Rape Law of 1997 (R.A. 8353). Penalties range from reclusion temporal to reclusion perpetua (life imprisonment), depending on qualifying circumstances (e.g., use of a deadly weapon, minority/relationship, etc.).
Public crime with a private-complaint trigger. Traditionally, rape was a “private crime” only in the sense that a complaint by the offended party (or authorized relatives/guardian in specific cases) is required to commence prosecution. Once initiated, the case becomes a public prosecution: the People of the Philippines is the plaintiff; the State, not the victim, controls continuation of the case.
No more “forgiveness by marriage.” Any notion that marriage between accused and victim erases the criminal case has been eliminated by subsequent reforms. Marriage no longer extinguishes criminal liability for rape or related offenses.

2) Can the Parties “Settle” a Rape Case?

A) Criminal liability cannot be compromised

Criminal liability is not subject to compromise. Parties cannot validly “settle” the criminal aspect of rape by payment, affidavit, or private agreement. Courts are duty-bound to proceed with prosecution where evidence exists.

B) Barangay conciliation does not apply

The Katarungang Pambarangay (barangay conciliation) system excludes serious offenses and those punishable by more than one year of imprisonment or fines over ₱5,000—rape is far beyond these thresholds. A barangay “settlement” of rape is legally meaningless.

C) Civil aspect may be compromised—but does not erase the crime

The civil aspect (damages) may be waived or compromised by the victim. However, such private agreements do not bar the criminal case, and courts routinely impose civil indemnity and moral damages as a matter of law upon conviction, regardless of desistance or waiver. Collection (or waiver) is a separate private matter that does not bind the State.

3) Affidavit of Desistance

What it is

A sworn statement by the complainant (or sometimes relatives) expressing disinterest in pursuing the case, or recanting prior accusations.

Legal effect

Not binding on the prosecutor or the court. Prosecutors and judges treat such affidavits with extreme caution due to the risk of intimidation, pressure, or inducements.
Does not automatically dismiss the case. The prosecutor may—and often will—continue if there is independent evidence (e.g., medical findings, eyewitnesses, admissions, contemporaneous statements, DNA, digital evidence).
Practical impact on proof. In many rape cases, the complainant’s testimony is central. If the victim refuses to testify or turns hostile, the prosecution may be hampered, but the case is not automatically lost. The court may admit prior statements in specific circumstances, and the State can rely on other evidence.

Timing matters

Before filing in court: A desistance filed during preliminary investigation may lead the prosecutor to dismiss for insufficiency of evidence—but only if, after evaluation, the remaining evidence is inadequate.
After filing in court: Dismissal requires a judicial act (e.g., demurrer to evidence, motion to dismiss by prosecutor for lack of evidence, or acquittal after trial). A bare affidavit of desistance is insufficient by itself.

4) Plea Bargaining in Rape Cases

General rule (Rule 116, Rules of Court)

The accused may be allowed to plead guilty to a lesser offense necessarily included in the offense charged, with the consent of the prosecutor and the offended party (subject to recognized exceptions when the offended party, after due notice, is not present). The court must independently determine that the lesser offense is necessarily included and that there is factual basis.

What counts as a “lesser included” offense?

Examples depend on the allegations in the Information and the evidence, but commonly discussed lesser offenses include:
- Attempted rape (when the consummated elements are not fully established);
- Acts of lasciviousness (Art. 336 RPC) or lascivious conduct (when touching with lewd intent is shown but not the elements of rape);
- In cases involving minors, certain child abuse provisions (e.g., sexual exploitation or lascivious conduct under special laws) may sometimes be considered, if and only if they are necessarily included and consistent with the Information’s allegations.

Limits and cautions

Not a right. Plea bargaining is discretionary with the court.
Victim’s voice matters. Courts generally require the victim’s informed consent for a plea to a lesser offense because of the personal and dignitary interests at stake, even if the case is public in nature.
No “charge-shopping.” The lesser offense must be necessarily included; the court will reject pleas that do not match the factual and legal elements alleged and proved.
Sentencing follows the lesser offense once the plea is accepted.

5) How Rape Cases Proceed (Lifecycle)

Initial report & medical/legal exam. Ideally, prompt reporting and medico-legal examination (rape kit) secure time-sensitive evidence. Preservation of clothing, messages, location data, and witnesses is crucial.
Complaint & preliminary investigation. The offended party (or legally authorized person) files a complaint-affidavit with the prosecutor. The prosecutor evaluates evidence and may conduct clarificatory hearings.
Filing of Information. If probable cause exists, the prosecutor files an Information in court. From this point, it’s People of the Philippines vs. Accused.
Arrest & bail. Rape (especially qualified rape) is often non-bailable if the evidence of guilt is strong. The court holds a bail hearing to determine this. If evidence is not strong, bail may be granted as a matter of right.
Arraignment & pre-trial. Accused is formally informed of the charge and enters a plea. Plea bargaining—if any—usually arises here or before judgment, subject to the rules above.
Trial. The prosecution presents evidence first. The defense follows. Child-sensitive measures and protective rules apply when the victim is a minor (see below).
Judgment. Conviction or acquittal. On conviction, the court imposes the penalty and civil liabilities (civil indemnity, moral—and, in qualifying circumstances, exemplary—damages).
Appeal & post-judgment remedies. Parties may elevate issues to appellate courts. Desistance after conviction does not erase liability.

6) Evidence in Rape Prosecutions

Victim’s testimony. Often the most critical evidence. Philippine courts recognize that rape commonly happens without eyewitnesses and may accept the victim’s credible testimony as sufficient to convict if it meets the standard of proof beyond reasonable doubt.
Medical evidence. Genital/anal injuries, presence or absence of spermatozoa, DNA results, trauma indicators. Absence of injuries does not conclusively negate rape (e.g., psychological coercion, threats).
Forensic & digital evidence. DNA, device data, geolocation, messages, call logs, CCTVs, and contemporaneous utterances or behavior.
Corroborative witnesses. First-responders, examining physicians, confidants told shortly after the incident, and other circumstantial evidence.
Character evidence & rape shield rules. Courts restrict evidence on the victim’s past sexual conduct; consent is assessed on the specific event, not character stereotypes.

7) Special Protections for Children

Raised age of sexual consent. Sexual acts with children below the statutory threshold (and other defined circumstances) constitute statutory rape or cognate offenses; consent is legally irrelevant in such cases.
Child-sensitive procedures. The Rule on Examination of a Child Witness allows measures such as live-link or CCTV testimony, screens, support persons, and closed-court hearings. Courts must minimize secondary victimization.
Anyone may report under child-protection laws. Beyond the RPC, special laws allow broader standing to file/assist and mandate inter-agency protocols.
No extinguishment by marriage or forgiveness. Child-related sexual offenses cannot be cured by private acts.

8) Prescription (Statutes of Limitation)

For rape under the RPC, prescription typically runs up to 20 years (depending on the precise penalty and circumstances), subject to rules on tolling, minority, and special laws. For child-protection statutes, longer or discovery-based periods may apply. Always compute using the specific charge and dates alleged in the Information.

9) Bail, Custody, and Protective Orders

Bail: For charges punishable by reclusion perpetua, bail is not a matter of right if the evidence of guilt is strong; the court must conduct a summary hearing.
No-contact or protective orders: Courts may impose stay-away conditions, confidentiality measures (e.g., in camera proceedings), and protective directives to shield the complainant, especially minors.
Witness protection: Victims and material witnesses may be covered by the Witness Protection, Security and Benefit Program (WPSBP).

10) Civil Liabilities and Damages

Upon conviction, courts award civil indemnity and moral damages as mandatory consequences of the crime; exemplary damages may be added for qualifying circumstances. Interest may be imposed from finality of judgment. These awards are separate from any administrative or restorative services.

11) Practical Takeaways

No legal “settlement” of the crime. Rape cannot be erased by private agreements, payments, or affidavits.
Affidavit of desistance is weak medicine. It may influence the strength of proof but does not compel dismissal. Prosecutors and courts look to all the evidence.
Plea bargaining is tightly controlled. It requires prosecutor and offended-party consent, judicial scrutiny, and a necessarily included lesser offense with factual basis.
Victim protections are robust. Child-sensitive rules, privacy safeguards, and state services are built into the system.
Early evidence preservation is crucial. Seek medical care and legal assistance as soon as possible; document communications, locations, and witnesses.
Civil compromises don’t bind the State. Even if the civil aspect is settled or waived, the criminal case proceeds.
Consult counsel promptly. Case strategy (including whether a plea to a lesser offense is feasible) depends on the Information’s allegations, available evidence, and procedural posture.

12) Services and Referrals (Philippine Context)

Public Attorney’s Office (PAO): Free legal assistance for qualified indigent parties (victims or accused).
DOH/PNP/WCPC/DSWD: Medico-legal exams, investigation, child-friendly spaces.
Rape Crisis Centers & Hospitals: Multidisciplinary care (medical, psychological, legal coordination).
Witness Protection Program (DOJ): Security and benefits for qualified witnesses.

Final Note

This article provides a general legal overview in the Philippine setting. The facts of each case and the exact charge (wording of the Information) are decisive. For concrete action—whether you are a complainant, guardian, or the accused—consult a Philippine lawyer immediately to tailor strategy, preserve rights, and access protective measures.