Introduction

In Philippine criminal procedure, desistance refers to the act by which a complaining witness or private complainant formally withdraws the complaint or expresses the intention not to pursue the criminal prosecution further. It is most commonly encountered in private crimes (those prosecuted upon complaint initiated by the offended party) and in certain public crimes where the pardon or desistance of the offended party may affect prosecutorial discretion or result in extinguishment of criminal liability.

While desistance is a recognized institution in Philippine jurisprudence, there is no single statutory “deadline” uniformly applicable to all cases. The allowable period for valid desistance depends on the nature of the offense, the stage of the proceedings, and settled doctrines of the Supreme Court.

I. Classification of Offenses Relevant to Desistance

Private Crimes (Crimes that cannot be prosecuted de oficio)
- Rape (when reclassified as a private crime before the 1997 amendments and in certain transitional cases), seduction, abduction, acts of lasciviousness (prior to RA 11648)
- Adultery and concubinage
- Defamation/imputation of a crime (libel, slander, incriminatory machinations)
Rule: These crimes are extinguished by express pardon or desistance of the offended party even after the filing of the complaint but before judgment becomes final (Art. 89, Revised Penal Code, as interpreted).
Crimes Where Pardon/Desistance Extinguishes Liability Only If Given Before Filing of the Information
- Slight physical injuries (Art. 266, RPC)
- Theft, estafa, malicious mischief when the value does not exceed certain thresholds and the offender is a relative or the offended party pardons (Art. 332, RPC – exemption from liability for relatives is separate but related)
- Intriguing against honor, slander by deed, simple slander
Public Crimes Where Desistance Has Persuasive but Not Extinguishing Effect
- Most felonies (murder, homicide, reckless imprudence resulting in homicide, etc.)
- Desistance is treated merely as a mitigating circumstance or a ground for prosecutorial discretion in inquest or preliminary investigation.

II. Critical Deadlines for Valid Desistance

A. Before the Institution of the Criminal Action (Before Filing of Information in Court)

In private crimes and those crimes where pardon extinguishes liability, desistance executed at any time before the prosecutor files the Information in court is generally valid and binding.
The prosecutor is duty-bound to respect the desistance and recommend dismissal if the desistance is voluntary, unequivocal, and executed with full knowledge of consequences.
Leading cases:
- People v. Inting, G.R. No. 88919, July 25, 1990 – Desistance before filing of Information in seduction cases warrants dismissal.
- People v. Miranda, G.R. No. L-17271, November 29, 1961 – Affidavit of desistance executed before filing of Information extinguishes criminal action in private crimes.

B. After Filing of Information but Before Arraignment

In purely private crimes, Supreme Court has repeatedly held that desistance (coupled with pardon) executed even after the Information has been filed but before arraignment or during trial is still effective to extinguish criminal liability.
Rationale: The State’s penal interest is secondary to the personal nature of the offense.
Key rulings:
- People v. Leaño, G.R. Nos. 138886-89, October 9, 2001 – Affidavit of desistance in acts of lasciviousness filed after Information but before arraignment led to acquittal.
- People v. Jose, G.R. No. L-28232, February 6, 1971 – Pardon in adultery cases valid even after filing of complaint in court.

C. After Arraignment or During Trial

For private crimes: Still valid if the pardon/desistance is express and made personally by the offended party (or legal guardian in case of minors).
The trial court must conduct a searching inquiry to determine voluntariness.
Cases:
- People v. Villarama, G.R. No. 99287, November 25, 1992 – Desistance during trial in private crimes warrants dismissal.

D. After Promulgation of Judgment but Before Finality

In purely private crimes, pardon given after conviction but before the judgment becomes final still extinguishes criminal liability (Art. 89, RPC; People v. Aymat, 68 Phil. 608).
The remedy is a motion to withdraw the case or to set aside the sentence.

E. After Judgment Becomes Final

Desistance or pardon can no longer extinguish criminal liability. Only executive clemency (pardon by the President) remains available.

III. Effect of Recent Laws on Traditional Desistance Rules

RA 8353 (Anti-Rape Law of 1997) – Reclassified rape as a public crime. Affidavit of desistance no longer extinguishes liability; it is treated only as evidence of possible fabrication or lack of interest.
RA 9262 (Anti-VAWC Law of 2004) – Violence against women and children cases are public crimes. Desistance does not bar prosecution (Sec. 25 explicitly prohibits mediation in certain stages and makes the crime public).
RA 11648 (2022) – Further strengthened the public nature of sexual abuse against minors; desistance has minimal effect.
RA 9995 (Anti-Photo and Video Voyeurism Act) and RA 11313 (Safe Spaces Act) – Public crimes; desistance not extinguishing.

IV. Form and Requirements of a Valid Desistance

Must be in writing (affidavit of desistance) and subscribed and sworn to before a notary public or prosecutor.
Must be voluntary, categorical, and with full understanding of consequences.
In cases involving minors or incapacitated offended parties, the legal guardian or the State (through the DSWD or prosecutor) may override private desistance.
Trial courts and prosecutors are required to conduct a “searching inquiry” into the voluntariness (especially in violence against women and rape cases).

V. Evidentiary Value of Desistance in Public Crimes

Even when desistance does not extinguish liability, the Supreme Court consistently holds that a sworn affidavit of desistance is accorded significant weight and may create reasonable doubt leading to acquittal, provided there is no evidence of compulsion. (People v. Nelmida, G.R. No. 202984, September 19, 2012; People v. Alcober, G.R. No. 142988, March 23, 2007).

VI. Summary Table of Deadlines

Stage of Proceedings	Private Crimes (e.g., pre-RA 8353 rape, adultery)	Crimes Extinguished by Pardon Before Filing (e.g., slight physical injuries)	Purely Public Crimes (murder, post-1997 rape, VAWC)
Before filing of Information	Valid & extinguishes liability	Valid & extinguishes liability	No extinguishing effect; persuasive only
After Information but before arraignment	Valid & extinguishes (with pardon)	Generally too late; liability already vested in State	Persuasive only
During trial	Valid if express pardon	Too late	May create reasonable doubt
After conviction but before finality	Still extinguishes (Art. 89 RPC)	Too late	No effect
After finality	No effect (executive clemency only)	No effect	No effect

Conclusion

While there is no single codified “deadline” for desistance in the Rules of Court or the Revised Penal Code, Philippine jurisprudence has clearly delineated the boundaries based on the nature of the offense and the stage of proceedings. In the remaining purely private crimes (essentially adultery, concubinage, and some transitional cases), desistance retains its traditional extinguishing effect even well into the trial stage. In the vast majority of modern criminal cases classified as public crimes, desistance has lost its extinguishing character and now serves primarily as strong exculpatory or mitigating evidence.

Practitioners must therefore always determine first whether the offense is still considered private or has been reclassified as public by subsequent legislation, as this classification ultimately governs the legal effect—and the effective “deadline”—of any affidavit of desistance.