Philippine Legal Context

I. Overview

In the Philippines, rape is a public crime. This has huge consequences for any attempt to “withdraw” a case through an Affidavit of Desistance.

A lot of people think: “Kung magpa-affidavit of desistance na ang biktima, tapos na ang kaso.” That is not how the law works.

In Philippine criminal procedure, once the State takes over, the case is generally People of the Philippines vs. [accused], and no longer [victim] vs. [accused]. This is especially true for rape under the current law.

This article explains:

What an Affidavit of Desistance is
When and how it is used in rape cases
Its legal effect at different stages of the case
Why it usually cannot automatically terminate a rape case
Practical and ethical issues (coercion, settlement, family pressure, etc.)

II. Rape as a Public Crime Under Philippine Law

Reclassification by RA 8353 (Anti-Rape Law of 1997)
- Before RA 8353, rape was in the Revised Penal Code as a crime against chastity and treated as a private crime in many respects.
- RA 8353 repealed the old rape provision and inserted Articles 266-A to 266-D, now classifying rape as a crime against persons, not chastity.
- As a result, rape is now treated as a public crime:
  - It may be prosecuted in the name of the People of the Philippines.
  - The State has its own interest beyond that of the offended party.
  - The victim’s “forgiveness” or desistance does not control the criminal action.
Effect on ‘Pardon by the Offended Party’ and Marriage
- Under the old regime (Article 344, Revised Penal Code), certain crimes like seduction, abduction, and acts of lasciviousness depended on a complaint by the offended party and could be extinguished by marriage or pardon.
- After RA 8353, rape is no longer included among those private crimes.
- This means:
  - Marriage between the offender and the victim does not extinguish criminal liability for rape.
  - Pardon or forgiveness by the victim does not automatically terminate the criminal case.

This public-crime nature is the foundation for understanding why an Affidavit of Desistance is often legally weak as a “cancellation tool” for rape complaints.

III. What Is an Affidavit of Desistance?

An Affidavit of Desistance is a sworn written statement by the complainant (or offended party) declaring that they:

No longer wish to pursue the complaint or case, and/or
Desire that the complaint or criminal case be dismissed, withdrawn, or not filed.

Typical contents:

Identification of the affiant (complainant)
Reference to the complaint or case (police blotter entry, NPS docket number, criminal case number)
Statement that the complaint was filed and that the affiant is now desisting
Alleged reasons: misunderstanding, reconciliation, lack of interest, financial settlement, or sometimes outright recantation (“hindi naman talaga nangyari”)
A prayer/request that the prosecutor or court dismiss or drop the case
Signature of affiant, jurat by a notary public or administering officer

Important: An Affidavit of Desistance is not a magical document that automatically erases the criminal case. It is only evidence – a piece of information that the prosecutor or judge may consider, but is not bound to follow.

IV. Stages Where Desistance May Appear – And Its Effects

The impact of an Affidavit of Desistance depends heavily on when it is executed.

1. Before any formal complaint or case is filed

Example: The victim gives a statement to the police, then before it reaches the prosecutor, she signs an affidavit saying she no longer wants to pursue the matter.

Police level only
- The police may be discouraged from forwarding the case if the only evidence is the original statement and the same complainant is now desisting.
- However, the police can still endorse the case to the prosecutor for evaluation, especially in serious offenses like rape.
Effect:
- Practically, many cases die at this stage due to lack of cooperation.
- Legally, however, there is no rule that forbids the State from proceeding based on other evidence (medical, witnesses, admissions), if available.

2. During preliminary investigation (Prosecutor / Office of the City or Provincial Prosecutor)

At this stage, a complaint affidavit may already be filed with the prosecutor, who is determining whether to file an Information in court.

If the complainant submits an Affidavit of Desistance during preliminary investigation:

The prosecutor evaluates:
- Is there still sufficient evidence (e.g., medical reports, other witnesses, admissions, CCTV, etc.) to establish probable cause?
- Is the desistance possibly due to intimidation, pressure, or monetary settlement?
- Does the desistance undermine the credibility of the original complaint?
Possible outcomes:
- Case dismissed at the prosecutor level
  - If the complainant refuses to cooperate, recants, and there is no other independent evidence, the prosecutor may conclude lack of probable cause and issue a Resolution dismissing the complaint.
- Case still filed despite desistance
  - If other evidence is strong (e.g., confession, strong medical and corroborative evidence), the prosecutor may still file an Information for rape, treating the Affidavit of Desistance as unreliable or coerced.

Key point: The prosecutor has discretion. The Affidavit of Desistance is not controlling.

3. After Information is filed in court (Trial stage)

Once the prosecutor finds probable cause and files an Information in the Regional Trial Court, the case title becomes:

People of the Philippines vs. [Accused]

At this point:

The court, not the complainant, controls dismissal.
The prosecution is officially in the hands of the public prosecutor.
The complainant is basically a witness of the People, not the private “owner” of the case.

If an Affidavit of Desistance is filed after the case is already in court:

The prosecutor may or may not move for dismissal based on lack of evidence (for example if the victim refuses to testify).
The judge still has to evaluate:
- Is the Affidavit of Desistance credible?
- Is there enough evidence to continue, e.g., prior testimony, documentary evidence, child’s testimony, etc.?

Courts repeatedly hold that:

Affidavits of desistance, like affidavits of recantation, are viewed with suspicion and disfavor because they:
- Are easily obtained
- May be the result of intimidation, threat, or monetary consideration
Testimony in open court generally prevails over later recantations or desistance unless very strong reasons are shown.

However, practical reality:

If the complaining witness refuses to testify and there is no other strong evidence, the prosecution may be left with no case to prove beyond reasonable doubt, leading to acquittal or dismissal.
That outcome is based on lack of evidence, not because the Affidavit of Desistance has legal power to “cancel” the crime.

4. After conviction (Appeal or execution phase)

If a conviction has already been rendered:

An Affidavit of Desistance after conviction is generally irrelevant to the question of guilt.
At most, it may be cited in:
- Appeal, as “new evidence” – but courts rarely reverse convictions solely on later desistance, absent compelling proof of original falsity or miscarriage of justice.
- Executive clemency or probation considerations, where forgiveness from the victim may be treated as a humanitarian consideration, but not as a legal ground to nullify the conviction.

V. Desistance vs. Recantation

These two are related but not identical:

Affidavit of Desistance – “I don’t want to pursue the case anymore; please dismiss it.”
Affidavit of Recantation – “What I previously said was false or mistaken; I now deny the accusation.”

In rape cases, they often overlap; a desistance affidavit may include recantation.

Courts generally say:

Recantations are unreliable and must be carefully scrutinized.
Recantations do not automatically nullify earlier sworn statements or testimony given in open court.
The court must decide which is more credible:
- The earlier detailed, spontaneous, and consistent testimony; or
- The later recantation/desistance, often executed after contact with the accused’s family or after some form of settlement.

VI. Can Rape Be Settled or Compromised?

In practice, many families attempt:

Monetary settlements
“Amicable settlements” at the barangay or police level
Pressuring the victim to “forgive” and sign an Affidavit of Desistance

Under Philippine law:

Criminal liability for rape is generally not subject to compromise.
Barangay conciliation under the Katarungang Pambarangay Law typically does not cover serious crimes like rape.
A private settlement (bayaran, bayad-danyos, etc.) does not extinguish the criminal action, though it may be used as evidence of:
- Possible intimidation/pressure; or
- Possible acknowledgment of liability for civil damages.

Civil liability:

Even if the criminal case fails or is dismissed, a separate civil action for damages may still be pursued.
Similarly, a private settlement on civil damages doesn’t automatically erase the State’s interest in punishing a serious offense.

VII. Special Issues: Child Victims and RA 7610

In many rape cases, the complainant is a minor, often covered also by RA 7610 (Special Protection of Children Against Abuse, Exploitation and Discrimination Act).

Typical scenario:

The parent or guardian executes the Affidavit of Desistance, sometimes without fully giving the child a voice.
The parent may be pressured by the offender (especially in incest cases where the offender is also a parent, relative, step-parent, or live-in partner) or even financially induced.

Legal points:

The State has a strong interest in protecting children.
Courts and prosecutors are particularly wary of desistance/execution of settlements by relatives of the accused or by caretakers who may not be acting in the best interest of the child.
Desistance by a parent does not automatically terminate a case involving a child victim of rape or sexual abuse.

VIII. The Role of the Prosecutor and the Court

1. Prosecutor’s role

The prosecutor’s primary duty is not to secure convictions at all costs, but to ensure that justice is done.
When faced with an Affidavit of Desistance in a rape case, the prosecutor should:
- Carefully examine whether the desistance appears voluntary and credible.
- Consider whether there is other evidence that can sustain probable cause or conviction.
- Guard against whitewashing serious crimes through coerced settlements.

2. Court’s role

The court is not a mere rubber stamp for settlements or desistance.
Judges must:
- Ensure that dismissals, acquittals, or plea bargains in rape cases have a solid legal basis, not just the convenience of parties.
- Be alert to indications of intimidation or “hush money”.
- Remember that the offended party’s desistance does not erase the statutory prohibition and the public’s interest in punishing rape.

IX. Affidavit of Desistance: When Does It Truly Matter?

Summarizing its practical impact:

At police / pre-prosecutor stage
- Often leads to non-filing due to lack of cooperation.
- Legally: the State could still proceed if other strong evidence exists, but this is rare in practice.
During preliminary investigation
- Can heavily influence the prosecutor’s determination of probable cause when the complainant’s testimony is central and there is little else.
- The case may be dismissed at this stage especially if:
  - The complainant refuses to testify further
  - The original complaint is now being repudiated
  - There is no independent corroboration
During trial
- Does not automatically result in dismissal.
- Can lead to acquittal if the complainant refuses to testify or insists that the original accusation was false and the remaining evidence is weak.
- Courts still assess credibility and may reject the desistance if they find it forced or unbelievable.
Post-conviction
- Usually irrelevant to the finding of guilt.
- May have limited relevance to clemency or humanitarian pleas.

X. Ethical, Social, and Safety Considerations

In rape cases, desistance frequently grows out of:

Threats and intimidation by the accused or the accused’s family
Economic pressure (“Kung hindi mo bawiin, wala nang susuporta sa inyo”)
Family dynamics (especially in incest, where abuser = breadwinner)
Shame and stigma suffered by the victim in her community
Exhaustion and trauma from the court process itself

Because of this, Philippine jurisprudence and prosecutors are urged to treat desistance with extreme caution, especially when:

The accused is a close relative, step-parent, or person in authority
The victim is a child or vulnerable person
There are signs of sudden change in attitude after meetings with the accused’s side

Victims may be directed to support services, including:

Psychological counseling
Shelter, social workers
Witness assistance or protection programs where available

XI. Key Takeaways

Rape is a public crime in the Philippines. The case is between the State and the accused, not just between victim and offender.
An Affidavit of Desistance:
- Does not automatically erase a rape case.
- Is only one piece of evidence that the prosecutor or court may consider.
- Is often viewed with suspicion, especially if executed after possible pressure or settlement.
At the prosecutor level, desistance can lead to dismissal if without the complainant’s cooperation there is no more probable cause.
In court, desistance may influence the outcome but does not bind the judge. Dismissal or acquittal still depends on the strength of the remaining evidence.
Private settlements, money, or “forgiveness” do not legally extinguish criminal liability for rape under the current law.
In cases involving children or incest, desistance (often by parents or guardians) is especially suspect and does not automatically stop the State from prosecuting.

XII. Final Note

This discussion is a general explanation of Philippine legal principles on withdrawing rape complaints via Affidavit of Desistance. Actual outcomes depend on the specific facts, the evidence available, and how prosecutors and courts apply jurisprudence to real cases. For anyone directly involved in such a situation, consulting a qualified Philippine lawyer or a trusted legal aid group is crucial.