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The following are crimes that cannot be prosecuted de oficio:
1. Adultery and concubinage
2. Seduction, abduction, acts of lasciviousness
3. Defamation which consists in the imputation of an offense mentioned above
The above offenses fall under the category of “private crimes”. They can only be prosecuted at the instance of or upon complaint of the offended or aggrieved party.
Article 344 of the Revised Penal Code expressly provides that no prosecution for the above offenses can be had unless there is a complaint executed by the aggrieved party. Such execution of the complaint is a condition precedent. Non-compliance with the condition precedent is jurisdictional. It is the complaint of the offended party that starts the prosecutor proceeding.
The mere filing of the sworn statement of the complainant upon which information is filed after conduct of preliminary investigation is sufficient compliance with the law and the rules.
NOTE: The death of the offended party during the pendency of the case does not extinguish the criminal liability of the accused.
Adultery and Concubinage
The crimes of adultery and concubinage can only be prosecuted at the instance of the offended spouse.
If the guilty parties are both alive, the criminal complaint must be instituted against both.
A pardon extended by the offended party in favor of one should be applied to the other party.
In the prosecution of this kind of offenses, the complainant must have the status, capacity, and legal representation at the time of the filing of the complaint. In short, the complainant must have legal capacity to sue locus standi.
An alleged offended spouse obtained a decree of divorce against the alleged offending spouse. The divorce decree was obtained abroad. After obtaining said decree, the alleged offended spouse discovered his spouse with someone else.
Can he still file a criminal action against the offending spouse for adultery?
No more. By obtaining the divorce decree, he has lost the legal status or legal capacity to sue. He cannot now be considered as an offended spouse.
What if the offended spouse died after filing the complaint?
In adultery and concubinage cases, the death of the offended party is not a ground for the extinguishment of the criminal liability, whether partial or total, of the offending spouse. The participation of the offended party is essential not for the maintenance of the criminal action but solely for the initiation thereof. The moment the offended party initiates the action, the law will be applied in full force beyond the control of, and in spite of the complainant, his death notwithstanding.
What if one of the accused died in adultery or concubinage cases?
The death of one of the accused after a complaint for concubinage or adultery has been filed by the offended spouse does not affect the prosecution against the surviving accused.
Seduction, Abduction, Acts of Lasciviousness
The crimes of seduction, abduction, and acts of lasciviousness may be prosecuted upon complaint of the offended party or her parents, grandparent, or guardian.
The principle applicable here is parens patriae. Note that this principle is not applicable to adultery and concubinage cases because in the latter cases, they can only be prosecuted at the instance of the offended spouse.
NOTE: If the offended party is already of age, she has the exclusive right to file the complaint unless she becomes incapacitated. The parents, grandparents, and guardian only have exclusive, successive authority to file the case if the offended party is still a minor.
What if the offended party is a minor?
In cases of seduction, abduction, and acts of lasciviousness where the victim is a minor, the rule is that the minor may still initiate the prosecution of the case independent of her parents, grandparents, or guardian.
Where the offended party who is a minor cannot file the complaint by reason of her incapacity other than her minority, the parents, grandparents or guardian may file the complaint. In such case, the right to file the complaint shall be successively and exclusively exercised by said relatives.
In criminal actions where the civil liability includes support for the offspring, the application for support pendente lite may be filed successively by the offended party, her parents, grandparents, or guardian, and even the State in the corresponding criminal case during its pendency.
What if the offended party is incapacitated or incompetent?
In cases of seduction, abduction, and acts of lasciviousness where the victim is incapacitated or otherwise incompetent, the complaint may be filed in her behalf by her parents, grandparents, or guardian.
If the offended party dies or becomes incapacitated before she could file the necessary complaint, and she has no known parents, grandparents, or guardian, the State shall initiate the criminal action in her behalf.
Defamation involving the imputation of adultery, concubinage, abduction, seduction, or acts of lasciviousness
This may only be prosecuted at the instance of the offended party. There is no successive or exclusive initiation of criminal complaint in this instance unlike in the other private crimes. The offended party must initiate the complaint herself or himself.