Affidavit of Desistance in Philippine Law
A comprehensive guide for litigants, counsel, and legal researchers
Disclaimer: This article is for informational purposes only and is not a substitute for individualized legal advice. Always consult a Philippine lawyer for matters affecting your rights or liabilities.
1. What Is an Affidavit of Desistance?
An Affidavit of Desistance (AoD) is a sworn written statement by an offended party (or his/her lawful representative) declaring the intent to stop further criminal (or sometimes civil/administrative) prosecution against an accused. It is formally notarized and typically submitted to:
| Stage | Typical Recipient |
|---|---|
| Pre‑investigation | Office of the Barangay Lupon, or the prosecutor handling an inquest/preliminary investigation |
| Trial | The trial court, through the public prosecutor |
| Execution Stage | Parole & Probation Administration / Board of Pardons & Parole (for clemency or parole proceedings) |
2. Legal Foundations
| Source | Key Provision / Principle |
|---|---|
| Art. 6, Civil Code | Rights may be waived unless the waiver is contrary to law, public order, or public policy. |
| Art. 344, Revised Penal Code (RPC) | Certain “private crimes” (adultery, concubinage, seduction, abduction, Acts of Lasciviousness) require a complaint by the offended spouse/parent; withdrawal of that complaint bars prosecution. |
| Rule 110, Rule 119 & Rule 117, Rules of Court | Crimes are prosecuted in the name of the People; dismissal is subject to judicial discretion even if the complainant desists. |
| Department of Justice (DOJ) Circular 70‑2000 & succeeding circulars | Prosecutors must scrutinize AoDs; private forgiveness does not extinguish public offenses except where specifically allowed by law. |
| Supreme Court Jurisprudence | People v. Salapong (G.R. 206491, 03 Jul 2017); Camara v. People (G.R. 107111, 18 Aug 2000); People v. Ramos (G.R. 253592, 05 Jan 2022) consistently hold that an AoD is merely persuasive evidence, not binding on the court or prosecution. |
3. Purpose & Rationale
- Private Settlement – Encourages amicable resolution and restitution between parties.
- Restorative Justice – Especially in minor offenses, the State recognizes victim autonomy and reconciliation.
- Judicial Economy – Filters truly contestable disputes from those already resolved extrajudicially.
4. Formal Requirements
Title & Caption – “Affidavit of Desistance” + case docket, if any.
Affiant’s Personal Details – Name, age, civil status, address, ID/Tax Identification Number.
Recital of Facts
- Date of alleged offense and complaint.
- Status of the case (e.g., pending PI, under arraignment).
Statement of Voluntary Desistance
- Clear declaration that no intimidation, force, or consideration aside from restitution induced the execution.
Waiver of Claims (optional) – Civil damages, attorney’s fees.
Prayer – Request dismissal or withdrawal of complaint/charges.
Jurat – Notarial acknowledgment in accordance with the 2020 Rules on Notarial Practice.
5. How and Where to File
| Scenario | Filing Point | Notes |
|---|---|---|
| Complaint still in Barangay Katarungang Pambarangay | Punong Barangay/Lupon Secretary | Often attached to Compromise Agreement. |
| Inquest / Preliminary Investigation pending | Office of the City/Provincial Prosecutor | Must be sworn before prosecutor; may lead to dismissal for lack of interest. |
| After Information filed | Trial court via the prosecutor | Court may conduct a clarificatory hearing to test voluntariness. |
| Post‑conviction (probation/parole) | Board of Pardons & Parole | Treated as evidence of post‑crime repentance. |
6. Effects on Criminal Prosecution
| Type of Offense | Weight of AoD | Practical Outcome |
|---|---|---|
| Private Crimes (RPC Art. 344) | Conclusive – withdrawal bars action | Case dismissed for lack of jurisdiction. |
| Crimes settled by law (e.g., BP 22 checks, Estafa w/ restitution) | Strong but not automatic | Dismissal possible under DOJ guidelines; court still exercises discretion. |
| Public Crimes (e.g., Murder, Qualified Theft, Drugs, RA 9165) | Persuasive only | State retains right to prosecute; AoD may mitigate penalty but rarely causes outright dismissal. |
| Special Laws with express non‑compromise clauses (e.g., RA 9262 VAWC, RA 8353 Rape after R.A. 8353 amendments, RA 7610 Child Abuse) | No effect | AoD is disregarded; public policy forbids compromise. |
Key Jurisprudential Doctrines
- State not bound by private forgiveness – Crimes are public wrongs (People v. Labtalon, G.R. 94098).
- Dismissal requires court approval – Rule 119, Sec. 17.
- Checking voluntariness – Courts must guard against coerced or simulated AoDs (People v. Ballesteros, G.R. 138389).
7. Effects on Related Civil Action
- Extinguishment or Waiver: If the AoD expressly waives civil damages, that waiver binds the affiant.
- Reservation Rule: If a separate civil case was not reserved, civil liability is deemed included in the criminal case; an AoD may thus also foreclose civil recovery.
- Exceptions: Independent civil actions (e.g., quasi‑delict under Art. 2176, Civil Code) can proceed regardless of the criminal case’s fate.
8. Limitations & Public‑Policy Safeguards
- Judicial Scrutiny – Trial courts must ascertain voluntariness and absence of vitiated consent.
- Prosecutorial Discretion – The public prosecutor may refuse to move for dismissal if evidence is strong (DOJ Circular 70‑2000).
- Non‑Extinguishment of Criminal Liability by Agreement – Art. 2034 Civil Code voids agreements to stifle prosecution of public crimes.
- No AoD for Crimes Against Minors & Women – Express statutory prohibitions (RA 7610, RA 9262).
- Compounding of Crimes – May constitute Obstruction of Justice under PD 1829 if consideration is to drop charges.
9. Affidavit of Desistance versus Withdrawal/Quashal
| Point of Comparison | Affidavit of Desistance | Motion to Withdraw Complaint/Information | Motion to Quash |
|---|---|---|---|
| Form | Sworn narrative by private complainant | Usually sworn; submitted by complainant or prosecutor | Formal pleading invoking Rule 117 grounds |
| Filed by | Offended party | Offended party / Prosecutor | Accused |
| Grounds | Lack of interest, settlement, forgiveness | Same | Legal/factual infirmities (e.g., no offense, double jeopardy) |
| Effect if granted | May dismiss case, drop accused, or downgrade charge | Dismisses or amends Information | Information annulled; may be re‑filed unless barred |
10. Affidavit of Desistance under Specific Statutes
| Law | Special Rule |
|---|---|
| BP 22 (Bouncing Checks) | Art. 89 RPC doesn’t apply, but restitution + AoD often persuades dismissal in line with SC administrative circulars on mediation. |
| RA 9262 (VAWC) | Non‑extinguishable; State interest in protecting women/children overrides private compromise. |
| RA 8353 (Anti‑Rape) | Rape is now a public crime; AoD has no binding effect, although marriage between offender and victim before final judgment still extinguishes criminal action (Art. 266‑C RPC, but only for traditional rape, not sexual assault). |
| RA 9995 (Anti‑Photo & Video Voyeurism) | Expressly non‑compromisable. |
11. Drafting Best Practices
- Clarity & Completeness – Identify case title, docket number, and specific charges.
- Voluntariness Paragraph – Include statement that affidavit is executed “freely and voluntarily, without undue influence, force, or intimidation.”
- Acknowledgement of Rights – Affiant acknowledges understanding of the consequences.
- Restitution Detail – Describe any payment or settlement to pre‑empt later allegations of coercion.
- Notary Diligence – Personal appearance and competent evidence of identity under the 2020 Rules on Notarial Practice.
12. Sample Template (Condensed)
REPUBLIC OF THE PHILIPPINES )
__________________________ ) S.S.
AFFIDAVIT OF DESISTANCE
I, JUAN DELA CRUZ, of legal age, married, Filipino, and residing
at 123 Mabini St., Manila, under oath depose and state:
1. That I am the complainant in I.S. No. 2025‑‑1234 for
VIOLATION OF B.P. BLG. 22 filed against JOSÉ SANTOS before
the Office of the City Prosecutor of Manila;
2. That after earnest discussion the respondent fully paid the
amount of ₱100,000.00 in restitution and we have amicably
settled our differences to our mutual satisfaction;
3. That I am no longer interested in pursuing the aforesaid case
and hereby DESIST from further prosecuting the same, and I
respectfully request the Honorable Office to DISMISS the
complaint;
4. That this affidavit is executed freely and voluntarily without
force, intimidation, or promise of reward, and with full
knowledge of my rights under the law.
IN WITNESS WHEREOF, I have hereunto set my hand this 28th day of
July 2025 in Manila, Philippines.
(sgd.) _______________________
JUAN DELA CRUZ
Affiant
SUBSCRIBED AND SWORN … (Notarial jurat follows)13. Practical Takeaways
- Not a Magic Wand – Outside a few enumerated crimes, an AoD merely persuades; the court/prosecutor may still proceed.
- Check the Statute – Some laws expressly bar compromise; filing an AoD in such cases is symbolic at best.
- Mind Public Policy – Attempts to “buy” silence in serious public crimes may backfire and lead to additional liability.
- Document Everything – Ensure the settlement agreement and proof of restitution are attached to avoid later disputes.
- Seek Counsel Early – A hastily crafted AoD can inadvertently waive civil damages or expose parties to obstruction charges.
14. Conclusion
The Affidavit of Desistance remains a valuable restorative‑justice mechanism in Philippine procedure, balancing victim autonomy with the State’s duty to prosecute public wrongs. Mastery of its formalities, statutory exceptions, and jurisprudential limits is essential for lawyers and litigants who wish to leverage private settlements without running afoul of public‑policy safeguards.
— End of Article