Consented abduction, A343 Revised Penal Code

Consented abduction – refers to the offense of abducting a 13- to 17-year old with her consent and with lewd designs.

1. Concept

Consented abduction – refers to the offense of abducting a 13- to 17-year old with her consent and with lewd designs.

a. Legal basis

Article 343. Consented abduction. – The abduction of a virgin over twelve years and under eighteen years of age, carried out with her consent and with lewd designs, shall be punished by the penalty of prision correccional in its minimum and medium periods.

(NB: If the article has been amended by legislation or has been the subject of a Supreme Court decision which may have impacted how it is interpreted, do let us know so we can consider for the next update of this article. You may send it via: Feedback.)

2. Modes of commission

The following are the modes of committing the offense:

1) To abduct a virgin over 12 but under 18 years of age with her consent and with lewd designs

a. Mode 1: Abduction with consent

Elements of the offense:

1) That the offended party is a virgin;

2) That she must be over twelve (12) and under eighteen (18) years of age;

3) The taking away of the offended party must be with her consent, after solicitation or cajolery from the offender; and

4) The taking away of the offended party must be with lewd designs. (Perez v. CA, G.R. No. L-80838, November 29, 1988, Per Cortes, J.; Valdepeñas v. People, En Banc, G.R. No. L-20687, April 30, 1966, Per Concepcion, J.)

1) Element 1: Virgin

As regards the first element, it is settled that the virginity mentioned in Article 343 of the Revised Penal Code, as an essential ingredient of the crime of abduction with consent, should not be understood in its material sense and does not exclude the idea of abduction of a virtuous woman of good reputation, because the essence of the offense “is not the wrong done to the woman, but the outrage to the family and the alarm produced in it by the disappearance of one of its members.” (Valdepeñas v. People, En Banc, G.R. No. L-20687, April 30, 1966, Per Concepcion, J.)

Thus, that the offended party is a virgin should not be interpreted in its literal sense, i.e., she does not have to be an actual virgin or one who has not have any sexual intercourse. What is penalized under this offense is the outrage or scandal to the family, particularly with respect to the alarm or anxiety that such incident created.

a) Presumption on virginity

Valdepeñas v. People, En Banc, G.R. No. L-20687, April 30, 1966, Per Concepcion, J.:

The complaint in the case at bar alleges, not only that Ester Ulsano is a minor 17 years of age, but also that [the Accused] “willfully, unlawfully and feloniously” took her “by force and violence … against her will and taking advantage of the absence of her mother” from their dwelling and carried “her to a secluded spot to gain carnal intercourse with the offended party against her will, using force, intimidation and violence, with lewd designs.” This allegation implies that Ester is a minor living under patria protestas, and, hence, single, thus leading to the presumption that she is a virgin, apart from being virtuous and having a good reputation, for, as Chief Justice Moran has aptly put it, the presumption of innocence includes, also, that of morality and decency, and, as a consequence, of chastity.

2) Element 2: 13- to 17-year old

The offended party must be over 12 years and under 18 years of age. Otherwise stated, the offended party is 13- to 17-year-old.

a) Age is material to the Complaint

In the following case, there were many reasons for the acquittal of the accused. One of them is the lack of allegation in the Complaint with respect to the age of the offended party.

People v. Sison, G.R. No. L-45857, En Banc, G.R. No. L-45857, October 27, 1983, Per Makasiar, J.:

• Unfortunately, the complaint… does not allege that the offended party was a virgin, over 12 years and under 18 years of age…

• Hence, the appellant should be acquitted of the charge.

3) Element 3: Consent

That the offended party consented to being taken away does not absolve the offender from criminal liability. In fact, consent is an element to the offense.

In ordinary parlance, this is also known as elopement or “tanan”. The elopement itself is not penalized; rather, what is penalized is the elopement of a 13- to 17-year-old woman. Meaning, if the woman is 18 years old and above, the elopement is not covered by this offense. If the woman is below 12 years old and below, it will be covered by another offense, such as kidnapping.

United States v. Rodriguez, G.R. No. 430, January 27, 1902, Per Mapa, J.:

[Notice: This case is decided based on older provisions, which have been superseded/modified.]

• The defendant was on intimate terms with Marcosa Peñalosa, 18 years of age, while the latter lived at the house of her father, Gregorio Peñalosa, who is the private prosecutor in this case and who was opposed to these relations. During the afternoon of May 2, 1901, Marcosa left her house of her own free will and went to that of the defendant for the purpose of demanding from him the fulfillment of the promise of marriage which he had repeatedly made her on previous occasions. Two witnesses were present in the defendant’s house, dealing with him on business matters, when she presented herself there between 1 and 2 of that afternoon. These witnesses were informed that very afternoon that Marcosa would be married to the defendant and were asked by the latter to act as witnesses to the marriage which was celebrated the following day, May 3, as appears from the corresponding certificate which is a part of the record.

• From these facts, which we consider sufficiently proved, it is seen that the departure of Marcosa Peñalosa from her house was, instead of a case of abduction, a real elopement carried out by her as a means for contracting marriage with the defendant against the opposition of her father, inasmuch as she acted upon her own initiative and was not seduced by the said defendant. But whether elopement or abduction, it is evident that the act was not committed with unchaste designs but with matrimonial intentions which were, indeed, well known to certain persons from the very commencement of the affair, and which were realized the following day by the marriage of the accused to the woman alleged to have been abducted.

• The unchaste designs constitute one of the essential elements that characterize the crime of abduction, as well when committed with violence against the will of the woman as when carried out with her consent in case of her minority. This is precisely the point which constitutes one of the principal differences which distinguish this crime from crimes against personal liberty and security. If the removal of a woman from her house, although she be a virgin under the age of 23 [now 13- to 17-] years, is committed for the purpose of murdering her or demanding a ransom, or holding her a prisoner somewhere, it would undoubtedly constitute a crime but would by no means fall under the provisions of the section of the Penal Code which define and punish the crime of abduction, but of other sections quite distinct, although there exists in such case the material fact of the stealing away of a woman. This consideration demonstrates that the unchaste purpose is essential in all cases to the crime of abduction, and this same conclusion is deduced from the fact that the crime is classified in the code among the crimes against chastity. Article 445 [now Article 342 on forcible abduction] of the said code establishes clearly and conclusively the necessity of said circumstance in order that the crime of abduction may exist, and even though section 446 [now Article 343 on consented abduction], invoked by the complainant as applying to the present case, in speaking of the abduction of a virgin under the age of 23 years and over 12 [now 13- to 17-year-old], committed with her consent, does not make express mention of unchaste designs, the provisions of this article should be considered in connection with those of the preceding one, which requires this circumstance as indispensable and essential. Article 445 [now Article 342 on forcible abduction] is the complement of article 446 [now Article 343 on consented abduction], the two forming, as they do, a part of one and the same chapter included in the title which the code devotes to crimes against chastity.

4) Element 4: Lewd designs

[I]n order to constitute the crime of abduction, committed with the consent of the woman abducted, lewd designs on the part of the accused must be shown. The chapter of the Penal Code relating to abduction falls within title 9, which is headed “crimes against chastity.” Under that title there are six chapters, the first of which deals with “adultery;” the second, with “rape and unnatural crimes;” the third, with “crimes of public scandal;” the fourth, with “seduction and corruption of minors;” the fifth, with “abduction;” and the sixth, with “provisions common to the preceding chapters.” From the title and chapter headings it is clear that it was the intention of the code makers, in formulating these five chapters, to deal exclusively with crimes against chastity. If we eliminate lewd designs from the crime of abduction, it ceases to be a crime against chastity and becomes the against personal liberty and should be included within the title of the Penal Code which deals with that class of crime. (The United States v. Santiago, En Banc, G.R. No. L-9893, January 29, 1915)

The United States v. Ysip, G.R. No. L-2695, March 26, 1906, Per Carson, J.:

• The accused in this case is a Macabebe, a native of the Province of Pampanga, and a peddler by trade. In the course of his journeys he reached the town of Bacon, in the Province of Sorsogon, where he made the acquaintance of one Jacinta Dichoso, a damsel some 17 years of age, to whom without delay he proceeded to pay his addresses. After a few weeks’ courtship, he asked her to marry him, and finding that she was not unwilling he sought and obtained the consent of her mother, though for some reason which does not appear of record he did not venture to broach the tender subject to her father.

• On an occasion when the father was absent on a visit to a neighboring town, the girl, with her mother and her two little brothers, left their home with the accused, with the avowed intention of accompanying him to his native province where the young couple were to be married. Two days afterwards the bereaved and enraged father overtook the party at the town of Sorsogon, where they were awaiting the arrival of a streamer to take them to their destination, whereupon he promptly filed a complaint charging the accused with abduction (rapto) and took the wife of his bosom and his three children back to their so lately deserted home.

• A severe penalty is prescribed in article 446 [now Article 342 on  forcible abduction] of the Penal Code for the taking away from her home of a damsel more than 12 and less than 23 years of age without the consent of her father or lawful guardian, and this even though she herself consents thereto. But this court has heretofore held, in line with the decisions of the supreme court of Spain, that it is an essential element of this crime that it be committed for immoral purposes (con miras deshonestas) (United States Enrique Rodriguez, 1 Phil. Rep., 107), and in this case there is not a scintilla of evidence to support the allegation that the girl was taken away con miras deshonestas.

• The trial judge was of opinion that improper motives on the part of the accused must he presumed, in view of the fact that he proposed taking the girl to his native province without having previously assumed the lawful bonds of matrimony. We think, however, that the premises do not justify the conclusion, and we are confirmed in this opinion by the fact that the accused burdened himself in his flight with the impedimenta of a prospective mother-in-law and her two minor children, and also by the exemplary conduct of the young couple on their journey as far as they succeeded in making it, for it was conclusively proven that during their flight the girl never left her mother’s side.

• It does not affirmatively appear why so long a journey was undertaken under such adverse conditions; but the prompt pursuit and capture of the party by the angry father offers a reasonable explanation for the anxiety of the accused to put the sea between himself and his sweetheart’s home without unnecessary delay; and in the limited time at his disposal, and in the neighborhood where his prospective father-in-law was more or less known, it was not likely that he would find any lawful authorized person who would perform the marriage ceremony without full and sufficient proof of the consent of both parents. Similar difficulties would have confronted him had he taken the girl by herself to his native province, though it is easy to understand that he could hope to overcome these difficulties by taking her mother and family with him, as the consent of the mother, in the absence of the father, might be sufficient, in a distant province, to satisfy the scruples of some official with authority to perform the ceremony.

• Both mother and daughter corroborate the accused in every important detail of his… statement, which was a full and frank relation of all that occurred, though they seemed to suggest that in inducing them to leave their home he must have exercised some hypnotic influence or mysterious power of with craft. They say that after performing some feats of legerdemain, such as drawing out a piece of wood to thread as fine as hair, and reading something which they did not understand out of a little book which he carried, he commanded them to go with him, and they at once found that they had to obey as they had lost all control of themselves and had no will of their own. We are inclined to think, however, that so far as the girl was concerned, a sufficient explanation of her conduct is found in “the round, unvarnished tale of the whole course of love” of the accused, which sufficiently explains “by what drugs, what patience, what conjuration, what mighty magic he won the old man’s daughter.” And the willingness of the mother to accompany her daughter is perhaps explained by the fact that she herself is a native of Bulacan, a province adjoining Pampanga, to which the accused proposed to take them, and she may have been glad of the opportunity to visit her old home and friends even at the risk of a temporary or permanent estrangement from her husband.

• The accused should be, and is hereby, acquitted of the crime with which he is charged, and will be set at liberty forthwith.

3. Things to note

The following are some additional things to note about this offense.

a. Common provisions

This offense shares common provisions with other offenses under Title XI of the Revised Penal Code – Crimes Against Chastity. See: Crimes Against Chastity

b. Gender

The provision uses the pronoun “her” under the 1930 Revised Penal Code (emphasis on the year of enactment). It may be argued that this is the basis for saying that the offended party is a female.

On the other hand, considering advancements in modern times and the use of gender-neutral language, there is a case to be made of interpreting the pronoun “her” to be gender-neutral. It is, of course, a different case if the provisions state “woman” to clearly mean a female, as in the case of forcible abduction. However, if it only involves pronouns such as “she” and “her”, then it may be possible to read it as being gender neutral. (NB: This is not a definite statement but only a discussion from the author’s point of view. Until this provision is amended or there is a Supreme Court Decision on the matter, the conventional and traditional way of interpreting this would be to confine “her” to a woman or female.)

c. Moral turpitude

Although no decision can be found which has decided the exact question, it cannot admit of doubt that crimes of this character involve moral turpitude. The inherent nature of the act is such that it is against good morals and the accepted rule of right conduct. (In Re CS Basa, En Banc, December 7, 1920, citing In re Hopkins [1909], 54 Wash., 569; Pollard vs. Lyon [1875], 91 U.S., 225; 5 Ops. Atty.-Gen. P. I., 46, 185; decisions of the Supreme Court of Spain of November 30, 1876 and June 15, 1895.)

4. Distinguish from other offenses

This offense is distinguished from other offenses or crimes below.

a. Consented abduction vs Forcible abduction

The main difference between the two is on consent and the status of the offended party.

In consented abduction, the offended party consents to the abduction or taking away. On the other hand, in forcible abduction, no consent was given by the offended party.

In consented abduction, the offended party is a minor who is 17- to 17-year-old without any specific reference to gender (although the pronoun “her” is used in the provision). For forcible abduction, the offended party is specifically identified as a woman regardless of her age and thus may include minors.

For more information, see: Forcible abduction

b. Consented abduction vs Qualified seduction

Consented Abduction… requires that: (1) the taking away of the offended party must be with her consent, after solicitation or cajolery from the offender, and, (2) the taking away of the offended party must be with lewd designs. On the other hand, an information for Qualified Seduction also requires that: (1) the crime be committed by abuse of authority, confidence or relationship, and, (2) the offender has sexual intercourse with the woman. (Perez v. CA, G.R. No. L-80838, November 29, 1988, Per Cortes, J.)

[As to the nature of the offenses,] the gravamen of the offense of the abduction of a woman with her own consent, who is still under the control of her parents or guardians is “the alarm and perturbance to the parents and family” of the abducted person, and the infringement of the rights of the parent or guardian. But-in cases of seduction, the gravamen of the offense is the wrong done the young woman who is seduced. … (U.S. v. Jayme, 24 Phil. 90, 94 (1913) cited in Perez v. CA, supra.)

For more information, see: Qualified seduction

c. Consented abduction vs Simple seduction

Consented Abduction… requires that: (1) the taking away of the offended party must be with her consent, after solicitation or cajolery from the offender, and (2) the taking away of the offended party must be with lewd designs. (Perez v. CA, G.R. No. L-80838, November 29, 1988, Per Cortes, J.) On the other hand, simple seduction requires that: (1) the crime be committed by means of deceit; and (2) the offender has sexual intercourse with the offended party who is a 16- or 17-year-old minor.

For more information, see: Simple seduction

5. Complex crimes

a. No consented abduction with rape

Consented abduction cannot be complex with rape, because of the element of consent. Meaning, the offended party consented to the abduction. If it proceeds to having sexual intercourse, the offended party may still have given consent.

Of course, it is possible that the offended party consented to the abduction and, later on, refuses to have sexual intercourse. If the offender forcible have sexual intercourse with the offended party without her consent, then there may be rape. This offense will be a separate offense and cannot be complexed with the earlier consent to be abducted.

The following case illustrates the point. Before the trial court, the accused was found guilty of forcible abduction with rape; however, on appeal, the Court of Appeals found him guilty of consented abduction only. This led the accused to file a motion for reconsideration and new trial alleging that he cannot be held guilty for consented abduction if he was charged with forcible abduction.

Valdepeñas v. People, En Banc, G.R. No. L-20687, April 30, 1966, Per Concepcion, J.:

• Petitioner says that the complaint was for forcible abduction, not abduction with consent; but, as already adverted to, the latter is included in the former. Referring particularly to the spirit of said provision of Article 344 of the Revised Penal Code, we believe that the assent of Ester Ulsano and her mother to undergo the scandal of a public trial for forcible abduction necessarily connotes, also, their willingness to face the scandal attendant to a public trial for abduction with consent.

• The complaint in the case at bar alleges, not only that Ester Ulsano is a minor 17 years of age, but also that [the Accused] “willfully, unlawfully and feloniously” took her “by force and violence … against her will and taking advantage of the absence of her mother” from their dwelling and carried “her to a secluded spot to gain carnal intercourse with the offended party against her will, using force, intimidation and violence, with lewd designs.” This allegation implies that Ester is a minor living under patria protestas, and, hence, single, thus leading to the presumption that she is a virgin, apart from being virtuous and having a good reputation, for, as Chief Justice Moran has aptly put it, the presumption of innocence includes, also, that of morality and decency, and, as a consequence, of chastity.

References

• Title XI – Crimes Against Chastity, Act No. 3815, Revised Penal Code

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/Updated: May 20, 2023