REPUBLIC OF THE PHILIPPINES

Complainants, NPS Docket No.

_____________________
vs.
For:
Respondent. CHILD ABUSE
X----------------------------------X

COUNTER-AFFIDAVIT

I, , of legal age, single, Filipino citizen and a resident of

after having been sworn to in accordance with law hereby
depose and state that:

1. I am the in the above captioned complaint for child

abuse;

2. I am executing this counter-affidavit as a reply to

the Affidavit of Complaint.

COUNTER-STATEMENT OF FACTS

3. I courted_____. She immediately said yes and

became my girlfriend.
4. I added her on Facebook which became our way to
talk every night.

5. Starting ___, complainant regularly visited our

house. Many of our neighbors would notice and if
asked why she was there, she would just say that
she was looking for ___ as an alibi. In reality, she
would always go to our house to ask money from me
because, according to her, she was hungry and did
not have an allowance for school. ______

6. It was also on ____ when we had our first sexual

intercourse. After which, we only communicated
through chat.

7. I did not force nor coerce her and we voluntarily

agreed on the sexual acts that we did.

8. On ____, it came to my knowledge that she was

having sexual affair with another man. I talked to
her about it and later on decided to part ways with
her.

9. ____, we no longer had any communication. Also, it

was only by that time that, ____ knew about our
relationship.

10. On _____, I was informed that the complainant

was pregnant and that the father is my cousin.

11. Upon consultation with my lawyer, I have known

that known as the Special Protection of Children
 Against Child Abuse, Exploitation and Discrimination
Act provides that:

(b) “Child abuse” refers to the

maltreatment, whether habitual
or not, of the child which includes
any of the following:
 
(1) Psychological and physical
abuse, neglect, cruelty, sexual
abuse and emotional
maltreatment;

(2) Any act by deeds or words

which debases, degrades or
demeans the intrinsic worth and
dignity of a child as a human
being;

(3) Unreasonable deprivation of

his basic needs for survival, such
as food and shelter; or

(4) Failure to immediately give

medical treatment to an injured
child resulting in serious
impairment of his growth and
development or in his permanent
incapacity or death.

12. The case of Rodolfo Mendoza vs. People of the

Philippines (G.R. No. 239756, September 14, 2020)
pronounced that:
Section 5 (b), Article III of RA
7610 provides that:

xxxxx

(b) Those who commit the act of

sexual intercourse or lascivious
conduct with a child exploited in
prostitution or subject to other
sexual abuse; Provided, That
when the victims is under twelve
(12) years of age, the
perpetrators shall be prosecuted
under Article 335, paragraph 3,
for rape and Article 336 of Act
No. 3815, as amended, the
Revised Penal Code, for rape or
lascivious conduct, as the case
may be: Provided, That the
penalty for lascivious conduct
when the victim is under twelve
(12) years of age shall
be reclusion temporal in its
medium period[.] (Emphases
supplied)

The elements of the foregoing

offense are the following:

(a) The accused commits the act

of sexual intercourse or lascivious
conduct;
 (b) The said act is performed
with a child exploited in
prostitution or subjected to
other sexual abuse; and

(c) The child, whether male or

female, is below 18 years of age.

12. The case of Christian Caballo vs. People of the

Philippines (G.R. No. 198732, June 10, 2013) also
elaborates that:

In this relation, case law further

clarifies that sexual intercourse
or lascivious conduct under the
coercion or influence of any
adult exists when there is some
form of compulsion equivalent to
intimidation which subdues the
free exercise of the offended
party’s free will.

Corollary thereto, Section 2(g)

of the Rules on Child Abuse
Cases conveys that sexual abuse
involves the element of influence
which manifests in a variety of
forms. It is defined as:

The employment, use,

persuasion, inducement,
enticement or coercion of a child
to engage in or assist another
 person to engage in, sexual
intercourse or lascivious conduct
or the molestation, prostitution,
or incest with children.

To note, the term "influence"

means the "improper use of
power or trust in any way that
deprives a person of free will
and substitutes another’s
objective."

 Meanwhile, "coercion" is the

"improper use of x x x power to
compel another to submit to the
wishes of one who wields it."

Not all elements of child

abuse are present

13. Based from the foregoing, the complainant could

not be considered as a child in prostitution and other
sexual abuse since the incidents do not point to any
form of coercion or influence on my part.

14. The second element that the said act is performed

with a child exploited in prostitution or subjected to
other sexual abuse is absent.

15. It is worth mentioning that it was even the

complainant who frequently and voluntarily visited
our house. Also, she willingly accepted me as a
friend on Facebook where our relationship started.
All of these acts are indicative that there was no
 compulsion or intimidation on my part for any sexual
favor.

16. Having failed to establish the probable cause to

support the charges against me, it is legally accurate
that I should not be prosecuted for the offense of
child abuse under Republic Act 7610 since even from
the complaint filed against me, there was no act of
abuse, force or compulsion to speak of.
17. In the case of Rodan Bangayan vs. People of the
Philippines (G.R. No. 235610, September 16, 2020),
the Supreme Court also explained:

Taking into consideration the

statutory construction rules that
penal laws should be strictly
construed against the state and
liberally in favor of the accused,
and that every law should be
construed in such a way that it
will harmonize with existing laws
on the same subject matter, We
reconcile the apparent gap in
the law by concluding that the
qualifying circumstance cited in
Section 5(b) of R.A. 7610, which
"punishes sexual intercourse or
lascivious conduct not only with
a child exploited in prostitution
but also with a child subjected to
other sexual abuse," leave room
for a child between 12 and 17
years of age to give consent to
the sexual act. An individual who
engages in sexual intercourse
with a child, at least 12 and
under 18 years of age, and not
falling under any of these
circumstances, cannot be held
liable under the provisions of
R.A. 7610. The interpretation
that consent is material in cases
where victim is between 12
years old and below 18 years of
age is favorable to Bangayan. It
fills the gap in the law and is
consistent with what We have
explained in the case of People
v. Tulagan, to wit:

xxx While Malto is correct that

consent is immaterial in cases
under R.A. No. 7610 where the
offended party is below 12 years
of age, We clarify that consent
of the child is material and may
even be a defense in criminal
cases involving violation of
Section 5, Article III of R.A. No.
7610 when the offended party is
12 years old or below 18, or
aboye 18 under special
circumstances. Such consent
 may be implied from the failure
to prove that the said victim
engaged in sexual
intercourse either "due to
money, profit or any other
consideration or due to the
coercion or influence of any
adult, syndicate or group."

18. The complainant was already ____ years old when

we engaged in sexual intercourse. Thus, she can
validly give her consent to the sexual act. Nothing in
the complaint states that I coerced or threatened the
complainant for any sexual favor. It is clear then that
there was no sexual abuse that transpired. The
sexual intercourse that happened between me and
the complainant was purely consensual.

19. It was clear in the complainant’s answer in her

sworn affidavit (T 12) that I did not inflict any
physical nor psychological violence on her. Thus, I
did not commit any unlawful acts against the
complainant.

20. In view of the foregoing, it is respectfully prayed

that the complaint against me for child abuse under
R.A. 7610 be dismissed for lack of merit.

21. I am executing this Counter-Affidavit to attest to

the truth that I did not commit the crime of child
 abuse under R.A. 7610 as erroneously and
maliciously alleged by the complainant.

IN WITNESS WHEREOF, I have hereunto set my

hand this ____ day of April ____ at ____________
City, Philippines.

Affiant

SUBSCRIBED AND SWORN to before me this

___________ in _____________________.

I hereby certify that I have personally examined affiant

and I am satisfied that he voluntarily executed and
understood this counter-affidavit.

Assistant City Prosecutor

Doc No.
Page No.
Book No.
Series 2022.