Tuesday, January 3, 2017

abandonment to death

Yesterday, I read Kuya Drew’s blog (click here) where he recounted the death of a PLHIV who was abandoned by his family and taken care of by the hospital staff until his death. The first idea that struck me is how could people, (relatives for that matter, and relatives by blood to underscore) turn their back against their own? Obviously, it was distressing.

I guess part and parcel of my confusion is my own question. I was asking if there's a way, at least legally, for that to not happen again or at least for the people to be reminded that it’s a bad case of familial treachery.

There is nothing in Republic Act 8504 (HIV/AIDS Law) that speaks of penalties as regards abandonment. I turned to my Criminal Law books and remembered the crime of “abandonment,” which is Art. 275, par. 1 of the Revised Penal Code and which provides:

Any one who shall fail to render assistance to any person whom he shall find in an uninhabited place wounded or in danger of dying, when he can render such assistance without detriment to himself, unless such omission shall constitute a more serious offense.

To my appreciation, the case of M cannot be a simple case of abandonment. The elements of the crime do not fit the situation. If Art. 275 will be used, the prosecutors will look at Nurse Ann, because it was she who found M. But she rendered assistance--heroically, I must say--so that takes off Art. 275 from possible crimes that can be charged.

Also, a grand defense that may come to light is, “Is a hospital an ‘uninhabited’ place? How will we define ‘uninhabited’ place?” The wording of the law is clear. “Uninhabited” imports the idea that the place was not dwelled upon permanently or temporarily.

We scratch out Art. 275. How about murder?

This is where the situation becomes sticky because I assume there is no previous case of abandoning a PLHIV has been filed against those who abandoned the person. Meaning, there is no “test case.” There is no precedent. (At least that which I know).

Art. 248 of the RPC is murder. But before a person can file a case of murder, the prosecutor will first “assess” the situation to check if any of the six qualifying circumstances is present, to wit:

1. With treachery, taking advantage of superior strength, with the aid of armed men, or employing means to weaken the defense or of means or persons to insure or afford impunity;
2. In consideration of a price, reward, or promise;
3. By means of inundation, fire, poison, explosion, shipwreck, stranding of a vessel, derailment or assault upon a street car or locomotive, fall of an airship, by means of motor vehicles, or with the use of any other means involving great waste and ruin;
4. On occasion of any of the calamities enumerated in the preceding paragraph, or of an earthquake, eruption of a volcano, destructive cyclone, epidemic or other public calamity;
5. With evident premeditation; or,
6. With cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or outraging or scoffing at his person or corpse.

Any of these six qualifying circumstance must be attendant to the situation before murder can be charged against the person who left M.

Criminal law experts and opinion-makers will tell that “cruelty” is not attendant to the case. Cruelty involves unnecessary physical harm--injuries or wounds to be exact--inflicted against the person which led to his death.

I would say that if a person leaves a PLHIV in a hospital for the latter to die, the complainants can use either “with treachery” (par. 1) or “with evident premeditation” (par. 5). Depending on the situation, I’d see “evident premeditation” more fitting.

“Evident premeditation” has 3 elements which must be fulfilled before prosecutors can use that to qualify the death of a person and to file a murder case against the accused, to wit:
1. The time when the offender determined to commit the crime;
2. An act manifestly indicating that the culprit has clung to his determination; or
3. A sufficient lapse of time between the determination and execution (to allow him to reflect on its consequences).

One by one, let’s do this.
1.      First element: The offenders can be argued to have committed the crime at the time when the PLHIV patient was left in the hospital. For lack of any information about the case, it can be argued that at the moment M was admitted in the hospital, the persons have already known that M’s condition was a situation that the relatives cannot admit; hence, death by intentionally leaving M was the only way for the family. It is at the point when the persons who left M were determined to commit the crime.
2.      Second element: The offenders can be argued that they clung to their determination in leaving M to die (as harsh at that). We can look at hospital records or even have Nurse Ann file an affidavit to show if the hospital truly followed up the situation of M to his parents or relatives after they had him admitted in the hospital. If the relatives never bothered acting upon the hospital’s follow-up, it can signify that they want to abandon him. It is at this stage that the hospital will be instrumental in proving that there was "intention" on the part of those who abandoned to truly say that M was indeed "left to die" despite calls of attention from the medical staff.
3.      Third element: The offenders can be argued to have left M for a sufficient time. Case laws opine that three hours is enough to check if the offender indeed wanted to carry out intention to kill towards fruition. In this case, if hospital records will bear that there was time--sufficient and long enough--for prosecutors to opine that indeed those who abandoned M was acting on an impulse to leave him languishing in his death bed, then it follows that the intention to kill is present.

At present, my position is to use the fullest extent of law to give the death of a PLHIV a semblance of justice here on Earth; and that is to file a murder case against those who recklessly abandoned him. If a murder case will not prosper, the prosecutor can always use homicide as a resort. (Homicide and murder are cognate crimes.) I could be that cold-hearted as well.

One may ask, “Well, the relatives of M do not really want him to die. Why should we file a murder case?” The death of a person under the hands of those who abandoned him (even if there are people, like Nurse Ann, who helped along the way) disregards “intent to kill.” The law provides that only “by means of inundation, fire, poison… (Art. 248, par. 3)” must intent to kill be present. In other qualifying circumstances such as evident premeditation, the intent to kill may not even be an issue for the trial court to explore.

As for who should file the case, it can be argued that under the doctrine of parens patriae, the State (in the case, the People of the Philippines) can initiate the complaint in behalf of M. The parens patriae rule is used in rape cases and child abuse cases. It should be sufficient to argue that it must equally apply in murder cases, especially in the stunning case of M who was abandoned to death.

But the moral question here is will we allow an eye for eye to turn us all blind? For leaving M to die, in what sense do we want those who abandoned M to possibly languish behind bars? The law can be cold, especially criminal law which is frigid. But where do we draw the line between giving the death of the PLHIV justice and correcting the possible maleducation of those who abandoned which also needs equal attention. 

Then again, what really bothers me is (arguably, family dynamics, knowledge of HIV, and knowledge to access of healthcare considered) why do we still have to use the threat of law as a motivation to help? Shouldn't helping a person, who is already in the autumn of his life, a core of our humanity?

I slept at 11 p.m. yesterday partly because of the weight that clung to my chest. I woke up at 3 a.m. still figuring out an evasive answer.