Intention different from discernment to kill

A month ago, our nation grieved over two young athletes whose lives were claimed by the unforgiving waves of Dipaculao, Aurora. In contrast, two weeks ago, our grief took a darker turn, as two young boys claimed the lives of many others in Tacloban, Leyte. Amid the shock, anger, and shouting over this horrific shooting, I noticed how the legal concepts of discernment and criminal intent are so easily mixed up. Can a child intend to shoot (and actually shoot), yet lack the discernment to be held criminally liable?

TO ANSWER THIS QUESTION, LET ME QUOTE Section 6 of Republic Act No. 9344 (Juvenile Justice and Welfare Act of 2006), as amended by RA 10630, “A child fifteen (15) years of age or under at the time of the commission of the offense shall be exempt from criminal liability.”

Conversely, “[a] child above fifteen (15) years but below eighteen (18) years of age shall likewise be exempt from criminal liability and be subjected to an intervention program, unless he/she has acted with discernment, in which case, such child shall be subjected to appropriate proceedings…”

To be precise, children are deemed to be 15 years of age at midnight of their birth date. Once they pass the next midnight, they are considered more than 15 years old. Consequently, they cross to the next age bracket that requires a determination of discernment. A child’s perception of right and wrong is frequently, yet mistakenly, confused with the intent to commit an act; thus, let us define both.

The Court—in CICL XXX v. People (March 14, 2023, per J Rodil V. Zalameda, en banc)—defined discernment as “… the capacity of the child at the time of the commission of the offense to understand the difference between right and wrong and the consequences of the wrongful act.”

On the other hand, in Guevarra v. Almodovar (Jan. 26, 1989, per J Edgardo L. Paras, Second Division), the Court clarified that while discernment and intent are “ … products of mental processes … [intent] refers to the desire of one’s act while [discernment] relates to the moral significance that person ascribes to the said act.”

The Court further explained that intelligence, which includes discernment, is “necessary to determine the morality of human acts to distinguish a licit from an illicit act.” Without it, no crime can exist. Therefore, a child may have the intent to pull a trigger and cause harm but still lacks the discernment to grasp the profound moral and legal gravity of ending a human life. In such circumstances, the law exempts the child from criminal liability.

For this reason, the rationale behind Section 6 of the Juvenile Justice and Welfare Act rests on discernment, not on criminal intent.

BY APPLYING THESE RULES TO THE TACLOBAN SHOOTING, we are able to distinguish the differing treatment of the two boys who are legally considered “children in conflict with the law.”

First, 14-year-old “Nash” is exempt from criminal liability; the law conclusively presumes his lack of discernment due to his “complete absence of intelligence.” Regardless of how deliberate or calculated his intent to shoot may have been, he is deemed to lack the intelligence to make him criminally liable, though he is subject to an “intervention program.”

As to 15-year-old “Rod,” the Department of Social Welfare and Development has ascertained that he acted with discernment. Normally, under the law, he is subject to either “diversion” or a preliminary investigation. However, since the imposable penalty for the offense allegedly committed exceeds six years of imprisonment, resort to diversion in nonjudicial agencies like the barangay will not apply.

Consequently, “Rod” is now under preliminary investigation, following the inquest proceedings on three counts of murder and other charges.

THE DIFFERING TREATMENT OF JUVENILE OFFENDERS has inevitably revived discussions on lowering the age of criminal liability to 10 or 12. With due respect, I believe we must first address a factor the framers of RA 9344 could not have fully anticipated: the impact of technology and social media on a child’s capacity to discern.

Verily, the environment in which children grow up substantially alters how they process right from wrong. To my mind, unregulated online exposure is inextricably woven into that environment, especially online nihilistic and violent extremist groups like “764.” These digital influences gradually distort a child’s capacity to distinguish good from bad, blurring the lines almost entirely between discernment and criminal intent. The virtual world equips them with the mechanical intent to replicate what they see, while simultaneously stunting the moral discernment to understand the gravity of their actions.

As we look past the public shock of the Tacloban shooting, we must recognize the fact that the paramount responsibility to guide our youth lies squarely on our institutions. Even before these children commit tragic acts, they are, in many ways, victims of a society that failed to protect them.

Ultimately, true justice is found not merely in punishing the young, but in building an environment where our children are nurtured to hold pens, books, and digital devices, not guns.

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