Failure to Provide Financial Support

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Dear PAO,

My friend’s husband failed again and again with his child support obligations. Aside from a civil case for alimony, can my friend’s husband be held criminally liable under Republic Act 9262 for failing to pay alimony?

jonbel

Dear Jonbel,

The answer to your question depends on the consistency of the action and intent behind the alleged omission.

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For your information, reads the offenses under Republic Act (RA) 9262, also known as the Anti-Violence Against Women and Their Children Act of 2004, where the act or actus reus speaks of a man’s failure to provide assistance as follows:

“Section 5. Acts of violence against women and their children. – The crime of violence against women and their children is committed by one of the following acts: X xx

e) Attempting to coerce or coercing the woman or her child to do anything that the woman or her child is obligated not to do, or failing to do anything to which the woman or her child has a right, or attempting to restricting or restricting the woman’s or her child’s freedom of movement or conduct through violence or threats of violence, physical or other harm or threats of physical or other harm or intimidation directed at the woman or child. This includes, but is not limited to, the following acts committed with the aim or effect of controlling or restricting the movement or behavior of the woman or her child: xxx

(2) withhold or threaten to provide the woman or her children with any financial support to which she or her family is legally entitled, or willfully provide insufficient financial support to the woman’s children; xxx

(4) Prevent the woman from engaging in any lawful profession, employment, business or activity, or from controlling the victim’s own money or property, or controlling only the marital or common money or property; xxx

(i) Causing psychological or emotional distress, public ridicule, or humiliation to the woman or her child, including but not limited to repeated verbal and emotional abuse, and denial of financial support or custody of minor children of contact with the woman’s child / Children. (Highlighting and underlining are provided).

In connection with the foregoing, in the recent Acharon vs. People case (GR 224946, November 9, 2021) penned by Associate Justice Alfredo Benjamin Caguioa, the Supreme Court clarifies that the actions referred to in Sections 5(e) and 5(i) ) of RA 9262 are mala in se, not mala prohibita, although RA 9262 is a special criminal law. The actions penalized therein are inherently wrong or depraved, and the penal law referred to requires a mental element. As such, both actus reus and mens rea must coincide to constitute the crime. For both regulations, it is not sufficient that no financial support is provided, namely:

In conclusion, the Court clarifies that in either case, whether the defendant is prosecuted under Section 5(e) or Section 5(i), mere failure to provide financial assistance is not sufficient. In other words, neither Section 5(e) nor 5(i) shall be construed to mean that mere failure or inability to provide assistance is sufficient for a conviction. Dependents who are not granted maintenance have the opportunity to bring a civil action for maintenance against the defaulting person in accordance with the provisions of the Civil Code and the Family Code. Therefore, in order to be liable under the criminal provisions of RA 9262 it is necessary to allege and prove the existence of the facts which switch the refusal or withdrawal of financial assistance from an act in which mere civil liability may arise to a another qualify a person can be criminally liable.

The Court sees the need for this clarification as RA 9262 was not intended to criminalize women’s partners simply because they fail or are unable to care for them. Of course, courts cannot send people to prison simply because, without malice or malicious intent, they are unable to provide for their respective families. In a developing country like ours, where poverty and unemployment are particularly widespread, courts would inevitably imprison scores of people, mainly fathers, were it to be interpreted that mere failure or inability to provide financial assistance was sufficient to qualify under Section 5(e) to condemn. and 5(i). As Deputy Judge Rodil Zalameda put it simply during deliberations in this case: “Poverty is not a crime xx x [and] failure or inability to readily provide assistance should not be the reason for a man’s imprisonment.” (emphasis and underlining added).

Consistent with the above, it is essential for liability under RA 9262 that the intent behind the failure to provide assistance falls within the circumstances set out in paragraphs 5(e) and (i). Mere failure to provide support is not a crime.

We hope that we were able to answer your questions. This advice is based solely on the facts you have reported and our appreciation of them. Our opinion may differ if other facts are changed or supplemented.

Editor’s note: Dear PAO is a daily column for the prosecution. Questions for Chief Acosta can be sent to [email protected]

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