Dear Atty. Kathy,

D, the minor daughter of B, my best friend, was sexually abused by E, from their extended family. D was able to give her statement to the police and was examined by a medico legal doctor. However, when it was time to file the criminal case against E, D was nowhere to be found. B received a letter from D through the mail, saying that she is safe but cannot be home yet because of what happened. B is determined to file the case against E and get justice for D. Is this still possible even without D who is the victim?

Ridley

Dear Ridley,

Section 28 of A.M. No. 004-07-SC or the Rule on Examination of a Child Witness expressly allows the admission of hearsay testimony of a child describing any act or attempted act of child abuse when: (1) the child is unavailable due to death, physical infirmity, lack of memory, mental illness, or they will be exposed to psychological injury, or they are absent from the hearing and the proponent of their statement is unable to procure their attendance by process or other reasonable means; and (2) their hearsay testimony is corroborated by other admissible evidence.

The foregoing is an exception to the general rule that hearsay evidence is not admissible. This doctrine of unavailable child considers the best interest of the child, as child abuse cases can still be tried and child victims can attain justice, even if the child cannot testify in court. In this regard, the State has a responsibility to safeguard children from all kinds of abuse and exploitation, particularly since children are especially vulnerable and at risk.

However, as state in A.M. No. 004-07-SC, other admissible evidence must be presented that would corroborate the child’s hearsay testimony. Further, the prosecution still has to prove the accused’s guilt beyond reasonable doubt. This ensures fairness to the accused.

In sum, based solely on your narration, the child victim is nowhere to be found as she cannot be home because of what happened. Thus, the doctrine of the unavailable child under the Rule on Examination of a Child Witness may be applicable, subject to confirmation of the child’s unavailability and compliance with the requirement on corroborating evidence. B may therefore proceed with the case subject to compliance with the Rule on the Examination of a Child Witness.

(People of the Philippines versus XXX258054, G.R. No. 258054, 25 October 2023)

Atty. Kathy Larios