RUSTAN ANG y PASCUA, Petitioner,


vs.

THE HONORABLE COURT OF APPEALS and IRISH SAGUD, Respondents.

DECISION

ABAD, J.:

This case concerns a claim of commission of the crime of violence against

women when a former boyfriend sent to the girl the picture of a naked
woman, not her, but with her face on it.

The Indictment

The public prosecutor charged petitioner-accused Rustan Ang (Rustan)

before the Regional Trial Court (RTC) of Baler, Aurora, of violation of the
Anti-Violence Against Women and Their Children Act or Republic Act (R.A.)
9262 in an information that reads:

That on or about June 5, 2005, in the Municipality of Maria Aurora, Province

of Aurora, Philippines and within the jurisdiction of this Honorable Court, the
said accused willfully, unlawfully and feloniously, in a purposeful and reckless
conduct, sent through the Short Messaging Service (SMS) using his mobile
phone, a pornographic picture to one Irish Sagud, who was his former
girlfriend, whereby the face of the latter was attached to a completely naked
body of another woman making it to appear that it was said Irish Sagud who
is depicted in the said obscene and pornographic picture thereby causing
substantial emotional anguish, psychological distress and humiliation to the
said Irish Sagud.1

The Facts and the Case

The evidence for the prosecution shows that complainant Irish Sagud (Irish)
and accused Rustan were classmates at Wesleyan University in Aurora
Province. Rustan courted Irish and they became "on-and-off" sweethearts
towards the end of 2004. When Irish learned afterwards that Rustan had
taken a live-in partner (now his wife), whom he had gotten pregnant, Irish
broke up with him.

Before Rustan got married, however, he got in touch with Irish and tried to
convince her to elope with him, saying that he did not love the woman he
was about to marry. Irish rejected the proposal and told Rustan to take on
his responsibility to the other woman and their child. Irish changed her
cellphone number but Rustan somehow managed to get hold of it and sent
her text messages. Rustan used two cellphone numbers for sending his
messages, namely, 0920-4769301 and 0921-8084768. Irish replied to his
text messages but it was to ask him to leave her alone.

In the early morning of June 5, 2005, Irish received through multimedia

message service (MMS) a picture of a naked woman with spread legs and
with Irish’s face superimposed on the figure (Exhibit A).2 The sender’s
cellphone number, stated in the message, was 0921-8084768, one of the
numbers that Rustan used. Irish surmised that he copied the picture of her
face from a shot he took when they were in Baguio in 2003 (Exhibit B).3

After she got the obscene picture, Irish got other text messages from
Rustan. He boasted that it would be easy for him to create similarly
scandalous pictures of her. And he threatened to spread the picture he sent
through the internet. One of the messages he sent to Irish, written in text
messaging shorthand, read: "Madali lang ikalat yun, my chatrum ang tarlac
rayt pwede ring send sa lahat ng chatter."4

Irish sought the help of the vice mayor of Maria Aurora who referred her to
the police. Under police supervision, Irish contacted Rustan through the
cellphone numbers he used in sending the picture and his text messages.
Irish asked Rustan to meet her at the Lorentess Resort in Brgy. Ramada,
Maria Aurora, and he did. He came in a motorcycle. After parking it, he
walked towards Irish but the waiting police officers intercepted and arrested
him. They searched him and seized his Sony Ericsson P900 cellphone and
several SIM cards. While Rustan was being questioned at the police station,
he shouted at Irish: "Malandi ka kasi!"

Joseph Gonzales, an instructor at the Aurora State College of Technology,

testified as an expert in information technology and computer graphics. He
said that it was very much possible for one to lift the face of a woman from a
picture and superimpose it on the body of another woman in another
picture. Pictures can be manipulated and enhanced by computer to make it
appear that the face and the body belonged to just one person.

Gonzales testified that the picture in question (Exhibit A) had two distinct
irregularities: the face was not proportionate to the body and the face had a
lighter color. In his opinion, the picture was fake and the face on it had been
copied from the picture of Irish in Exhibit B. Finally, Gonzales explained how
this could be done, transferring a picture from a computer to a cellphone like
the Sony Ericsson P900 seized from Rustan.

For his part, Rustan admitted having courted Irish. He began visiting her in
Tarlac in October 2003 and their relation lasted until December of that year.
He claimed that after their relation ended, Irish wanted reconciliation. They
met in December 2004 but, after he told her that his girlfriend at that time
(later his wife) was already pregnant, Irish walked out on him.

Sometime later, Rustan got a text message from Irish, asking him to meet
her at Lorentess Resort as she needed his help in selling her cellphone.
When he arrived at the place, two police officers approached him, seized his
cellphone and the contents of his pockets, and brought him to the police
station.

Rustan further claims that he also went to Lorentess because Irish asked
him to help her identify a prankster who was sending her malicious text
messages. Rustan got the sender’s number and, pretending to be Irish,
contacted the person. Rustan claims that he got back obscene messages
from the prankster, which he forwarded to Irish from his cellphone. This
explained, he said, why the obscene messages appeared to have originated
from his cellphone number. Rustan claims that it was Irish herself who sent
the obscene picture (Exhibit A) to him. He presented six pictures of a woman
whom he identified as Irish (Exhibits 2 to 7).5

Michelle Ang (Michelle), Rustan’s wife, testified that she was sure Irish sent
the six pictures. Michelle claims that she received the pictures and hid the
memory card (Exhibit 8) that contained them because she was jealous and
angry. She did not want to see anything of Irish. But, while the woman in
the pictures posed in sexy clothing, in none did she appear naked as in
Exhibit A. Further, the face of the woman in Exhibits 2, 4, 5 and 6 could not
be seen. Irish denied that she was the woman in those four pictures. As for
Exhibits 3 and 7, the woman in the picture was fully dressed.

After trial, the RTC found Irish’s testimony completely credible, given in an
honest and spontaneous manner. The RTC observed that she wept while
recounting her experience, prompting the court to comment: "Her tears
were tangible expression of pain and anguish for the acts of violence she
suffered in the hands of her former sweetheart. The crying of the victim
during her testimony is evidence of the credibility of her charges with the
verity borne out of human nature and experience."6 Thus, in its Decision
dated August 1, 2001, the RTC found Rustan guilty of the violation of Section
5(h) of R.A. 9262.

On Rustan’s appeal to the Court of Appeals (CA),7 the latter rendered a

decision dated January 31, 2008,8 affirming the RTC decision. The CA denied
Rustan’s motion for reconsideration in a resolution dated April 25, 2008.
Thus, Rustan filed the present for review on certiorari.

The Issues Presented

The principal issue in this case is whether or not accused Rustan sent Irish
by cellphone message the picture with her face pasted on the body of a nude
woman, inflicting anguish, psychological distress, and humiliation on her in
violation of Section 5(h) of R.A. 9262.

The subordinate issues are:

1. Whether or not a "dating relationship" existed between Rustan and Irish

as this term is defined in R.A. 9262;

2. Whether or not a single act of harassment, like the sending of the nude
picture in this case, already constitutes a violation of Section 5(h) of R.A.
9262;

3. Whether or not the evidence used to convict Rustan was obtained from
him in violation of his constitutional rights; and

4. Whether or not the RTC properly admitted in evidence the obscene picture
presented in the case.

The Court’s Rulings

Section 3(a) of R.A. 9262 provides that violence against women includes an
act or acts of a person against a woman with whom he has or had a sexual
or dating relationship. Thus:

SEC. 3. Definition of Terms. – As used in this Act,

(a) "Violence against women and their children" refers to any act or a series
of acts committed by any person against a woman who is his wife, former
wife, or against a woman with whom the person has or had a sexual or
dating relationship, or with whom he has a common child, or against her
child whether legitimate or illegitimate, within or without the family abode,
which result in or is likely to result in physical, sexual, psychological harm or
suffering, or economic abuse including threats of such acts, battery, assault,
coercion, harassment or arbitrary deprivation of liberty.

xxxx

Section 5 identifies the act or acts that constitute violence against women
and these include any form of harassment that causes substantial emotional
or psychological distress to a woman. Thus:

SEC. 5. Acts of Violence Against Women and Their Children. – The crime of
violence against women and their children is committed through any of the
following acts:

xxxx

h. Engaging in purposeful, knowing, or reckless conduct, personally or

through another, that alarms or causes substantial emotional or
psychological distress to the woman or her child. This shall include, but not
be limited to, the following acts:

xxxx

5. Engaging in any form of harassment or violence;

The above provisions, taken together, indicate that the elements of the crime
of violence against women through harassment are:

1. The offender has or had a sexual or dating relationship with the offended
woman;

2. The offender, by himself or through another, commits an act or series of

acts of harassment against the woman; and

3. The harassment alarms or causes substantial emotional or psychological

distress to her.

One. The parties to this case agree that the prosecution needed to prove
that accused Rustan had a "dating relationship" with Irish. Section 3(e)
provides that a "dating relationship" includes a situation where the parties
are romantically involved over time and on a continuing basis during the
course of the relationship. Thus:

(e) "Dating relationship" refers to a situation wherein the parties live as

husband and wife without the benefit of marriage or are romantically
involved over time and on a continuing basis during the course of the
relationship. A casual acquaintance or ordinary socialization between two
individuals in a business or social context is not a dating relationship.
(Underscoring supplied.)

Here, Rustan claims that, being "romantically involved," implies that the
offender and the offended woman have or had sexual relations. According to
him, "romance" implies a sexual act. He cites Webster’s Comprehensive
Dictionary Encyclopedia Edition which provides a colloquial or informal
meaning to the word "romance" used as a verb, i.e., "to make love; to make
love to" as in "He romanced her."

But it seems clear that the law did not use in its provisions the
colloquial verb "romance" that implies a sexual act. It did not say that the
offender must have "romanced" the offended woman. Rather, it used the
noun "romance" to describe a couple’s relationship, i.e., "a love affair."9

R.A. 9262 provides in Section 3 that "violence against women x x x refers to

any act or a series of acts committed by any person against a woman x x x
with whom the person has or had a sexual or dating relationship." Clearly,
the law itself distinguishes a sexual relationship from a dating relationship.
Indeed, Section 3(e) above defines "dating relationship" while Section 3(f)
defines "sexual relations." The latter "refers to a single sexual act which may
or may not result in the bearing of a common child." The dating relationship
that the law contemplates can, therefore, exist even without a sexual
intercourse taking place between those involved.

Rustan also claims that since the relationship between Irish and him was of
the "on-and-off" variety (away-bati), their romance cannot be regarded as
having developed "over time and on a continuing basis." But the two of them
were romantically involved, as Rustan himself admits, from October to
December of 2003. That would be time enough for nurturing a relationship
of mutual trust and love.

An "away-bati" or a fight-and-kiss thing between two lovers is a common

occurrence. Their taking place does not mean that the romantic relation
between the two should be deemed broken up during periods of
misunderstanding. Explaining what "away-bati" meant, Irish explained that
at times, when she could not reply to Rustan’s messages, he would get
angry at her. That was all. Indeed, she characterized their three-month
romantic relation as continuous.10

Two. Rustan argues that the one act of sending an offensive picture should
not be considered a form of harassment. He claims that such would unduly
ruin him personally and set a very dangerous precedent. But Section 3(a) of
R.A. 9262 punishes "any act or series of acts" that constitutes violence
against women. This means that a single act of harassment, which translates
into violence, would be enough. The object of the law is to protect women
and children. Punishing only violence that is repeatedly committed would
license isolated ones.

Rustan alleges that today’s women, like Irish, are so used to obscene
communications that her getting one could not possibly have produced alarm
in her or caused her substantial emotional or psychological distress. He
claims having previously exchanged obscene pictures with Irish such that
she was already desensitized by them.

But, firstly, the RTC which saw and heard Rustan and his wife give their
testimonies was not impressed with their claim that it was Irish who sent the
obscene pictures of herself (Exhibits 2-7). It is doubtful if the woman in the
picture was Irish since her face did not clearly show on them.

Michelle, Rustan’s wife, claimed that she deleted several other pictures that
Irish sent, except Exhibits 2 to 7. But her testimony did not make sense. She
said that she did not know that Exhibits 2 to 7 had remained saved after she
deleted the pictures. Later, however, she said that she did not have time to
delete them.11 And, if she thought that she had deleted all the pictures from
the memory card, then she had no reason at all to keep and hide such
memory card. There would have been nothing to hide. Finally, if she knew
that some pictures remained in the card, there was no reason for her to
keep it for several years, given that as she said she was too jealous to want
to see anything connected to Irish. Thus, the RTC was correct in not giving
credence to her testimony.1avvphi1

Secondly, the Court cannot measure the trauma that Irish experienced based
on Rustan’s low regard for the alleged moral sensibilities of today’s youth.
What is obscene and injurious to an offended woman can of course only be
determined based on the circumstances of each case. Here, the naked
woman on the picture, her legs spread open and bearing Irish’s head and
face, was clearly an obscene picture and, to Irish a revolting and offensive
one. Surely, any woman like Irish, who is not in the pornography trade,
would be scandalized and pained if she sees herself in such a picture. What
makes it further terrifying is that, as Irish testified, Rustan sent the picture
with a threat to post it in the internet for all to see. That must have given
her a nightmare.

Three. Rustan argues that, since he was arrested and certain items were
seized from him without any warrant, the evidence presented against him
should be deemed inadmissible. But the fact is that the prosecution did not
present in evidence either the cellphone or the SIM cards that the police
officers seized from him at the time of his arrest. The prosecution did not
need such items to prove its case. Exhibit C for the prosecution was but a
photograph depicting the Sony Ericsson P900 cellphone that was used, which
cellphone Rustan admitted owning during the pre-trial conference.

Actually, though, the bulk of the evidence against him consisted in Irish’s
testimony that she received the obscene picture and malicious text
messages that the sender’s cellphone numbers belonged to Rustan with
whom she had been previously in communication. Indeed, to prove that the
cellphone numbers belonged to Rustan, Irish and the police used such
numbers to summon him to come to Lorentess Resort and he did.
12 Consequently, the prosecution did not have to present the confiscated

cellphone and SIM cards to prove that Rustan sent those messages.

Moreover, Rustan admitted having sent the malicious text messages to Irish.
13 His defense was that he himself received those messages from an

unidentified person who was harassing Irish and he merely forwarded the
same to her, using his cellphone. But Rustan never presented the cellphone
number of the unidentified person who sent the messages to him to
authenticate the same. The RTC did not give credence to such version and
neither will this Court. Besides, it was most unlikely for Irish to pin the
things on Rustan if he had merely tried to help her identify the sender.

Four. Rustan claims that the obscene picture sent to Irish through a text
message constitutes an electronic document. Thus, it should be
authenticated by means of an electronic signature, as provided under
Section 1, Rule 5 of the Rules on Electronic Evidence (A.M. 01-7-01-SC).
But, firstly, Rustan is raising this objection to the admissibility of the obscene
picture, Exhibit A, for the first time before this Court. The objection is too
late since he should have objected to the admission of the picture on such
ground at the time it was offered in evidence. He should be deemed to have
already waived such ground for objection.14

Besides, the rules he cites do not apply to the present criminal action. The
Rules on Electronic Evidence applies only to civil actions, quasi-judicial
proceedings, and administrative proceedings.15

In conclusion, this Court finds that the prosecution has proved each and
every element of the crime charged beyond reasonable doubt.

WHEREFORE, the Court DENIES the petition and AFFIRMS the decision of the
Court of Appeals in CA-G.R. CR 30567 dated January 31, 2008 and its
resolution dated April 25, 2008.

SO ORDERED.
PEOPLE OF THE PHILIPPINES, appellee,

vs.

MARIVIC GENOSA, appellant.

DECISION

PANGANIBAN, J.:

Admitting she killed her husband, appellant anchors her prayer for acquittal
on a novel theory -- the "battered woman syndrome" (BWS), which allegedly
constitutes self-defense. Under the proven facts, however, she is not entitled
to complete exoneration because there was no unlawful aggression -- no
immediate and unexpected attack on her by her batterer-husband at the
time she shot him.

Absent unlawful aggression, there can be no self-defense, complete or

incomplete.

But all is not lost. The severe beatings repeatedly inflicted on appellant
constituted a form of cumulative provocation that broke down her
psychological resistance and self-control. This "psychological paralysis" she
suffered diminished her will power, thereby entitling her to the mitigating
factor under paragraphs 9 and 10 of Article 13 of the Revised Penal Code.

In addition, appellant should also be credited with the extenuating

circumstance of having acted upon an impulse so powerful as to have
naturally produced passion and obfuscation. The acute battering she suffered
that fatal night in the hands of her batterer-spouse, in spite of the fact that
she was eight months pregnant with their child, overwhelmed her and put
her in the aforesaid emotional and mental state, which overcame her reason
and impelled her to vindicate her life and her unborn child's.

Considering the presence of these two mitigating circumstances arising from

BWS, as well as the benefits of the Indeterminate Sentence Law, she may
now apply for and be released from custody on parole, because she has
already served the minimum period of her penalty while under detention
during the pendency of this case.

The Case
For automatic review before this Court is the September 25, 1998
Decision1 of the Regional Trial Court (RTC) of Ormoc City (Branch 35) in
Criminal Case No. 5016-0, finding Marivic Genosa guilty beyond reasonable
doubt of parricide. The decretal portion of the Decision reads:

"WHEREFORE, after all the foregoing being duly considered, the Court finds
the accused, Marivic Genosa y Isidro, GUILTY beyond reasonable doubt of
the crime of Parricide as provided under Article 246 of the Revised Penal
Code as restored by Sec. 5, RA No. 7659, and after finding treachery as a
generic aggravating circumstance and none of mitigating circumstance,
hereby sentences the accused with the penalty of DEATH.

"The Court likewise penalizes the accused to pay the heirs of the deceased
the sum of fifty thousand pesos (P50,000.00), Philippine currency as
indemnity and another sum of fifty thousand pesos (P50,000.00), Philippine
currency as moral damages."2

The Information3 charged appellant with parricide as follows:

"That on or about the 15th day of November 1995, at Barangay Bilwang,

Municipality of Isabel, Province of Leyte, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, with intent to
kill, with treachery and evident premeditation, did then and there wilfully,
unlawfully and feloniously attack, assault, hit and wound one BEN GENOSA,
her legitimate husband, with the use of a hard deadly weapon, which the
accused had provided herself for the purpose, [causing] the following
wounds, to wit:

'Cadaveric spasm.

'Body on the 2nd stage of decomposition.

'Face, black, blownup & swollen w/ evident post-mortem lividity. Eyes

protruding from its sockets and tongue slightly protrudes out of the mouth.

'Fracture, open, depressed, circular located at the occipital bone of the head,
resulting [in] laceration of the brain, spontaneous rupture of the blood
vessels on the posterior surface of the brain, laceration of the dura and
meningeal vessels producing severe intracranial hemorrhage.
'Blisters at both extrem[i]ties, anterior chest, posterior chest, trunk w/
shedding of the epidermis.

'Abdomen distended w/ gas. Trunk bloated.'

which caused his death."4

With the assistance of her counsel,5 appellant pleaded not guilty during her
arraignment on March 3, 1997.6 In due course, she was tried for and
convicted of parricide.

The Facts

Version of the Prosecution

The Office of the Solicitor General (OSG) summarizes the prosecution's

version of the facts in this wise:

"Appellant and Ben Genosa were united in marriage on November 19, 1983
in Ormoc City. Thereafter, they lived with the parents of Ben in their house
at Isabel, Leyte. For a time, Ben's younger brother, Alex, and his wife lived
with them too. Sometime in 1995, however, appellant and Ben rented from
Steban Matiga a house at Barangay Bilwang, Isabel, Leyte where they lived
with their two children, namely: John Marben and Earl Pierre.

"On November 15, 1995, Ben and Arturo Basobas went to a cockfight after
receiving their salary. They each had two (2) bottles of beer before heading
home. Arturo would pass Ben's house before reaching his. When they
arrived at the house of Ben, he found out that appellant had gone to Isabel,
Leyte to look for him. Ben went inside his house, while Arturo went to a
store across it, waiting until 9:00 in the evening for the masiao runner to
place a bet. Arturo did not see appellant arrive but on his way home passing
the side of the Genosas' rented house, he heard her say 'I won't hesitate to
kill you' to which Ben replied 'Why kill me when I am innocent?' That was
the last time Arturo saw Ben alive. Arturo also noticed that since then, the
Genosas' rented house appeared uninhabited and was always closed.

"On November 16, 1995, appellant asked Erlinda Paderog, her close friend
and neighbor living about fifty (50) meters from her house, to look after her
pig because she was going to Cebu for a pregnancy check-up. Appellant
likewise asked Erlinda to sell her motorcycle to their neighbor Ronnie
Dayandayan who unfortunately had no money to buy it.

"That same day, about 12:15 in the afternoon, Joseph Valida was waiting for
a bus going to Ormoc when he saw appellant going out of their house with
her two kids in tow, each one carrying a bag, locking the gate and taking her
children to the waiting area where he was. Joseph lived about fifty (50)
meters behind the Genosas' rented house. Joseph, appellant and her
children rode the same bus to Ormoc. They had no conversation as Joseph
noticed that appellant did not want to talk to him.

"On November 18, 1995, the neighbors of Steban Matiga told him about the
foul odor emanating from his house being rented by Ben and appellant.
Steban went there to find out the cause of the stench but the house was
locked from the inside. Since he did not have a duplicate key with him,
Steban destroyed the gate padlock with a borrowed steel saw. He was able
to get inside through the kitchen door but only after destroying a window to
reach a hook that locked it. Alone, Steban went inside the unlocked bedroom
where the offensive smell was coming from. There, he saw the lifeless body
of Ben lying on his side on the bed covered with a blanket. He was only in
his briefs with injuries at the back of his head. Seeing this, Steban went out
of the house and sent word to the mother of Ben about his son's misfortune.
Later that day, Iluminada Genosa, the mother of Ben, identified the dead
body as that of [her] son.

"Meanwhile, in the morning of the same day, SPO3 Leo Acodesin, then
assigned at the police station at Isabel, Leyte, received a report regarding
the foul smell at the Genosas' rented house. Together with SPO1 Millares,
SPO1 Colon, and Dr. Refelina Cerillo, SPO3 Acodesin proceeded to the house
and went inside the bedroom where they found the dead body of Ben lying
on his side wrapped with a bedsheet. There was blood at the nape of Ben
who only had his briefs on. SPO3 Acodesin found in one corner at the side of
an aparador a metal pipe about two (2) meters from where Ben was, leaning
against a wall. The metal pipe measured three (3) feet and six (6) inches
long with a diameter of one and half (1 1/2) inches. It had an open end
without a stop valve with a red stain at one end. The bedroom was not in
disarray.

"About 10:00 that same morning, the cadaver of Ben, because of its stench,
had to be taken outside at the back of the house before the postmortem
examination was conducted by Dr. Cerillo in the presence of the police. A
municipal health officer at Isabel, Leyte responsible for medico-legal cases,
Dr. Cerillo found that Ben had been dead for two to three days and his body
was already decomposing. The postmortem examination of Dr. Cerillo
yielded the findings quoted in the Information for parricide later filed against
a p p e l l a n t . S h e c o n c l u d e d t h a t t h e c a u s e o f B e n ' s d e a t h wa s
'cardiopulmonary arrest secondary to severe intracranial hemorrhage due to
a depressed fracture of the occipital [bone].'

"Appellant admitted killing Ben. She testified that going home after work
on November 15, 1995, she got worried that her husband who was not
home yet might have gone gambling since it was a payday. With her cousin
Ecel Araño, appellant went to look for Ben at the marketplace and taverns at
Isabel, Leyte but did not find him there. They found Ben drunk upon their
return at the Genosas' house. Ecel went home despite appellant's request for
her to sleep in their house.

"Then, Ben purportedly nagged appellant for following him, even challenging
her to a fight. She allegedly ignored him and instead attended to their
children who were doing their homework. Apparently disappointed with her
reaction, Ben switched off the light and, with the use of a chopping knife, cut
the television antenna or wire to keep her from watching television.
According to appellant, Ben was about to attack her so she ran to the
bedroom, but he got hold of her hands and whirled her around. She fell on
the side of the bed and screamed for help. Ben left. At this point, appellant
packed his clothes because she wanted him to leave. Seeing his packed
clothes upon his return home, Ben allegedly flew into a rage, dragged
appellant outside of the bedroom towards a drawer holding her by the neck,
and told her 'You might as well be killed so nobody would nag me.' Appellant
testified that she was aware that there was a gun inside the drawer but since
Ben did not have the key to it, he got a three-inch long blade cutter from his
wallet. She however, 'smashed' the arm of Ben with a pipe, causing him to
drop the blade and his wallet. Appellant then 'smashed' Ben at his nape with
the pipe as he was about to pick up the blade and his wallet. She thereafter
ran inside the bedroom.

"Appellant, however, insisted that she ended the life of her husband by
shooting him. She supposedly 'distorted' the drawer where the gun was and
shot Ben. He did not die on the spot, though, but in the
bedroom."7 (Citations omitted)

Version of the Defense

Appellant relates her version of the facts in this manner:

"1. Marivic and Ben Genosa were allegedly married on November 19, 1983.
Prior to her marriage, Marivic had graduated from San Carlos, Cebu City,
obtaining a degree of Bachelor of Science in Business Administration, and
was working, at the time of her husband's death, as a Secretary to the Port
Managers in Ormoc City. The couple had three (3) children: John Marben,
Earl Pierre and Marie Bianca.

"2. Marivic and Ben had known each other since elementary school; they
were neighbors in Bilwang; they were classmates; and they were third
degree cousins. Both sets of parents were against their relationship, but Ben
was persistent and tried to stop other suitors from courting her. Their
closeness developed as he was her constant partner at fiestas.

"3. After their marriage, they lived first in the home of Ben's parents,
together with Ben's brother, Alex, in Isabel, Leyte. In the first year of
marriage, Marivic and Ben 'lived happily'. But apparently, soon thereafter,
the couple would quarrel often and their fights would become violent.

"4. Ben's brother, Alex, testified for the prosecution that he could not
remember when Ben and Marivic married. He said that when Ben and
Marivic quarreled, generally when Ben would come home drunk, Marivic
would inflict injuries on him. He said that in one incident in 1993 he saw
Marivic holding a kitchen knife after Ben had shouted for help as his left
hand was covered with blood. Marivic left the house but after a week, she
returned apparently having asked for Ben's forgiveness. In another incident
in May 22, 1994, early morning, Alex and his father apparently rushed to
Ben's aid again and saw blood from Ben's forehead and Marivic holding an
empty bottle. Ben and Marivic reconciled after Marivic had apparently again
asked for Ben's forgiveness.

"Mrs. Iluminada Genosa, Marivic's mother-in-law, testified too, saying that

Ben and Marivic married in '1986 or 1985 more or less here in Fatima,
Ormoc City.' She said as the marriage went along, Marivic became 'already
very demanding. Mrs. Iluminada Genosa said that after the birth of Marivic's
two sons, there were 'three (3) misunderstandings.' The first was when
Marivic stabbed Ben with a table knife through his left arm; the second
incident was on November 15, 1994, when Marivic struck Ben on the
forehead 'using a sharp instrument until the eye was also affected. It was
wounded and also the ear' and her husband went to Ben to help; and the
third incident was in 1995 when the couple had already transferred to the
house in Bilwang and she saw that Ben's hand was plastered as 'the bone
cracked.'

"Both mother and son claimed they brought Ben to a Pasar clinic for medical
intervention.

"5. Arturo Basobas, a co-worker of Ben, testified that on November 15, 1995
'After we collected our salary, we went to the cock-fighting place of ISCO.'
They stayed there for three (3) hours, after which they went to 'Uniloks' and
drank beer – allegedly only two (2) bottles each. After drinking they bought
barbeque and went to the Genosa residence. Marivic was not there. He
stayed a while talking with Ben, after which he went across the road to wait
'for the runner and the usher of the masiao game because during that time,
the hearing on masiao numbers was rampant. I was waiting for the ushers
and runners so that I can place my bet.' On his way home at about 9:00 in
the evening, he heard the Genosas arguing. They were quarreling loudly.
Outside their house was one 'Fredo' who is used by Ben to feed his fighting
cocks. Basobas' testimony on the root of the quarrel, conveniently overheard
by him was Marivic saying 'I will never hesitate to kill you', whilst Ben replied
'Why kill me when I am innocent.' Basobas thought they were joking.

"He did not hear them quarreling while he was across the road from the
Genosa residence. Basobas admitted that he and Ben were always at the
cockpits every Saturday and Sunday. He claims that he once told Ben 'before
when he was stricken with a bottle by Marivic Genosa' that he should leave
her and that Ben would always take her back after she would leave him 'so
many times'.

"Basobas could not remember when Marivic had hit Ben, but it was a long
time that they had been quarreling. He said Ben 'even had a wound' on the
right forehead. He had known the couple for only one (1) year.

"6. Marivic testified that after the first year of marriage, Ben became cruel to
her and was a habitual drinker. She said he provoked her, he would slap her,
sometimes he would pin her down on the bed, and sometimes beat her.

"These incidents happened several times and she would often run home to
her parents, but Ben would follow her and seek her out, promising to change
and would ask for her forgiveness. She said after she would be beaten, she
would seek medical help from Dr. Dino Caing, Dr. Lucero and Dra. Cerillo.
These doctors would enter the injuries inflicted upon her by Ben into their
reports. Marivic said Ben would beat her or quarrel with her every time he
was drunk, at least three times a week.

"7. In her defense, witnesses who were not so closely related to Marivic,
testified as to the abuse and violence she received at the hands of Ben.

'7.1. Mr. Joe Barrientos, a fisherman, who was a [neighbor] of the Genosas,
testified that on November 15, 1995, he overheard a quarrel between Ben
and Marivic. Marivic was shouting for help and through the open jalousies,
he saw the spouses 'grappling with each other'. Ben had Marivic in a choke
hold. He did not do anything, but had come voluntarily to testify. (Please
note this was the same night as that testified to by Arturo Busabos.8 )

'7.2. Mr. Junnie Barrientos, also a fisherman, and the brother of Mr. Joe
Barrientos, testified that he heard his neighbor Marivic shouting on the night
of November 15, 1995. He peeped through the window of his hut which is
located beside the Genosa house and saw 'the spouses grappling with each
other then Ben Genosa was holding with his both hands the neck of the
accused, Marivic Genosa'. He said after a while, Marivic was able to extricate
he[r]self and enter the room of the children. After that, he went back to
work as he was to go fishing that evening. He returned at 8:00 the next
morning. (Again, please note that this was the same night as that testified to
by Arturo Basobas).

'7.3. Mr. Teodoro Sarabia was a former neighbor of the Genosas while they
were living in Isabel, Leyte. His house was located about fifty (50) meters
from theirs. Marivic is his niece and he knew them to be living together for
13 or 14 years. He said the couple was always quarreling. Marivic confided in
him that Ben would pawn items and then would use the money to gamble.
One time, he went to their house and they were quarreling. Ben was so
angry, but would be pacified 'if somebody would come.' He testified that
while Ben was alive 'he used to gamble and when he became drunk, he
would go to our house and he will say, 'Teody' because that was what he
used to call me, 'mokimas ta,' which means 'let's go and look for a whore.'
Mr. Sarabia further testified that Ben 'would box his wife and I would see
bruises and one time she ran to me, I noticed a wound (the witness pointed
to his right breast) as according to her a knife was stricken to her.' Mr.
Sarabia also said that once he saw Ben had been injured too. He said he
voluntarily testified only that morning.
'7.4. Miss Ecel Arano, an 18-year old student, who is a cousin of Marivic,
testified that in the afternoon of November 15, 1995, Marivic went to her
house and asked her help to look for Ben. They searched in the market
place, several taverns and some other places, but could not find him. She
accompanied Marivic home. Marivic wanted her to sleep with her in the
Genosa house 'because she might be battered by her husband.' When they
got to the Genosa house at about 7:00 in the evening, Miss Arano said that
'her husband was already there and was drunk.' Miss Arano knew he was
drunk 'because of his staggering walking and I can also detect his face.'
Marivic entered the house and she heard them quarrel noisily. (Again, please
note that this is the same night as that testified to by Arturo Basobas) Miss
Arano testified that this was not the first time Marivic had asked her to sleep
in the house as Marivic would be afraid every time her husband would come
home drunk. At one time when she did sleep over, she was awakened at
10:00 in the evening when Ben arrived because the couple 'were very noisy
in the sala and I had heard something was broken like a vase.' She said
Marivic ran into her room and they locked the door. When Ben couldn't get in
he got a chair and a knife and 'showed us the knife through the window grill
and he scared us.' She said that Marivic shouted for help, but no one came.
On cross-examination, she said that when she left Marivic's house on
November 15, 1995, the couple were still quarreling.

'7.5. Dr. Dino Caing, a physician testified that he and Marivic were co-
employees at PHILPHOS, Isabel, Leyte. Marivic was his patient 'many times'
and had also received treatment from other doctors. Dr. Caing testified that
from July 6, 1989 until November 9, 1995, there were six (6) episodes of
physical injuries inflicted upon Marivic. These injuries were reported in his
Out-Patient Chart at the PHILPHOS Hospital. The prosecution admitted the
qualifications of Dr. Caing and considered him an expert witness.'

xxx xxx xxx

'Dr. Caing's clinical history of the tension headache and hypertention of

Marivic on twenty-three (23) separate occasions was marked at Exhibits '2'
and '2-B.' The OPD Chart of Marivic at the Philphos Clinic which reflected all
the consultations made by Marivic and the six (6) incidents of physical
injuries reported was marked as Exhibit '3.'

"On cross-examination, Dr. Caing said that he is not a psychiatrist, he could

not say whether the injuries were directly related to the crime
committed. He said it is only a psychiatrist who is qualified to examine the
psychological make-up of the patient, 'whether she is capable of committing
a crime or not.'

'7.6 Mr. Panfilo Tero, the barangay captain in the place where the Genosas
resided, testified that about two (2) months before Ben died, Marivic went to
his office past 8:00 in the evening. She sought his help to settle or confront
the Genosa couple who were experiencing 'family troubles'. He told Marivic
to return in the morning, but he did not hear from her again and assumed
'that they might have settled with each other or they might have forgiven
with each other.'

xxx xxx xxx

"Marivic said she did not provoke her husband when she got home that night
it was her husband who began the provocation. Marivic said she was
frightened that her husband would hurt her and she wanted to make sure
she would deliver her baby safely. In fact, Marivic had to be admitted later at
the Rizal Medical Centre as she was suffering from eclampsia and
hypertension, and the baby was born prematurely on December 1, 1995.

"Marivic testified that during her marriage she had tried to leave her
husband at least five (5) times, but that Ben would always follow her and
they would reconcile. Marivic said that the reason why Ben was violent and
abusive towards her that night was because 'he was crazy about his recent
girlfriend, Lulu x x x Rubillos.'

"On cross-examination, Marivic insisted she shot Ben with a gun; she said
that he died in the bedroom; that their quarrels could be heard by anyone
passing their house; that Basobas lied in his testimony; that she left for
Manila the next day, November 16, 1995; that she did not bother anyone in
Manila, rented herself a room, and got herself a job as a field researcher
under the alias 'Marvelous Isidro'; she did not tell anyone that she was
leaving Leyte, she just wanted to have a safe delivery of her baby; and that
she was arrested in San Pablo, Laguna.

'Answering questions from the Court, Marivic said that she threw the gun
away; that she did not know what happened to the pipe she used to 'smash
him once'; that she was wounded by Ben on her wrist with the bolo; and
that two (2) hours after she was 'whirled' by Ben, he kicked her 'ass' and
dragged her towards the drawer when he saw that she had packed his
things.'
"9. The body of Ben Genosa was found on November 18, 1995 after an
investigation was made of the foul odor emitting from the Genosa residence.
This fact was testified to by all the prosecution witnesses and some defense
witnesses during the trial.

"10. Dra. Refelina Y. Cerillo, a physician, was the Municipal Health Officer of
Isabel, Leyte at the time of the incident, and among her responsibilities as
such was to take charge of all medico-legal cases, such as the examination
of cadavers and the autopsy of cadavers. Dra. Cerillo is not a forensic
pathologist. She merely took the medical board exams and passed in 1986.
She was called by the police to go to the Genosa residence and when she
got there, she saw 'some police officer and neighbor around.' She saw Ben
Genosa, covered by a blanket, lying in a semi-prone position with his back to
the door. He was wearing only a brief.

xxxxxxxxx

"Dra. Cerillo said that 'there is only one injury and that is the injury involving
the skeletal area of the head' which she described as a 'fracture'. And that
based on her examination, Ben had been dead 2 or 3 days. Dra. Cerillo did
not testify as to what caused his death.

"Dra. Cerillo was not cross-examined by defense counsel.

"11. The Information, dated November 14, 1996, filed against Marivic
Genosa charged her with the crime of PARRICIDE committed 'with intent to
kill, with treachery and evidence premeditation, x x x wilfully, unlawfully and
feloniously attack, assault, hit and wound x x x her legitimate husband, with
the use of a hard deadly weapon x x x which caused his death.'

"12. Trial took place on 7 and 14 April 1997, 14 May 1997, 21 July 1997, 17,
22 and 23 September 1997, 12 November 1997, 15 and 16 December 1997,
22 May 1998, and 5 and 6 August 1998.

"13. On 23 September 1998, or only fifty (50) days from the day of the last
trial date, the Hon. Fortunito L. Madrona, Presiding Judge, RTC-Branch 35,
Ormoc City, rendered a JUDGMENT finding Marivic guilty 'beyond reasonable
doubt' of the crime of parricide, and further found treachery as an
aggravating circumstance, thus sentencing her to the ultimate penalty of
DEATH.
"14. The case was elevated to this Honorable Court upon automatic review
and, under date of 24 January 2000, Marivic's trial lawyer, Atty. Gil Marvel P.
Tabucanon, filed a Motion to Withdraw as counsel, attaching thereto, as a
precautionary measure, two (2) drafts of Appellant's Briefs he had prepared
for Marivic which, for reasons of her own, were not conformed to by her.

"The Honorable Court allowed the withdrawal of Atty. Tabucanon and

permitted the entry of appearance of undersigned counsel.

"15. Without the knowledge of counsel, Marivic Genosa wrote a letter dated
20 January 2000, to the Chief Justice, coursing the same through Atty.
Teresita G. Dimaisip, Deputy Clerk of Court of Chief Judicial Records Office,
wherein she submitted her 'Brief without counsels' to the Court.

"This letter was stamp-received by the Honorable Court on 4 February 2000.

"16. In the meantime, under date of 17 February 2000, and stamp-received

by the Honorable Court on 19 February 2000, undersigned counsel filed an
URGENT OMNIBUS MOTION praying that the Honorable Court allow the
exhumation of Ben Genosa and the re-examination of the cause of his
death; allow the examination of Marivic Genosa by qualified psychologists
and psychiatrists to determine her state of mind at the time she killed her
husband; and finally, to allow a partial re-opening of the case a quo to take
the testimony of said psychologists and psychiatrists.

"Attached to the URGENT OMNIBUS MOTION was a letter of Dr. Raquel

Fortun, then the only qualified forensic pathologist in the country, who
opined that the description of the death wound (as culled from the post-
mortem findings, Exhibit 'A') is more akin to a gunshot wound than a beating
with a lead pipe.

"17. In a RESOLUTION dated 29 September 2000, the Honorable Court

partly granted Marivic's URGENT OMNIBUS MOTION and remanded the case
'to the trial court for the reception of expert psychological and/or psychiatric
opinion on the 'battered woman syndrome' plea, within ninety (90) days
from notice, and, thereafter to forthwith report to this Court the proceedings
taken, together with the copies of the TSN and relevant documentary
evidence, if any, submitted.'

"18. On 15 January 2001, Dra. Natividad A. Dayan appeared and testified

before the Hon. Fortunito L. Madrona, RTC-Branch 35, Ormoc City.
"Immediately before Dra. Dayan was sworn, the Court a quo asked if she
had interviewed Marivic Genosa. Dra. Dayan informed the Court that
interviews were done at the Penal Institution in 1999, but that the clinical
interviews and psychological assessment were done at her clinic.

"Dra. Dayan testified that she has been a clinical psychologist for twenty
(20) years with her own private clinic and connected presently to the De La
Salle University as a professor. Before this, she was the Head of the
Psychology Department of the Assumption College; a member of the faculty
of Psychology at the Ateneo de Manila University and St. Joseph's College;
and was the counseling psychologist of the National Defense College. She
has an AB in Psychology from the University of the Philippines, a Master of
Arts in Clinical [Counseling], Psychology from the Ateneo, and a PhD from
the U.P. She was the past president of the Psychological Association of the
Philippines and is a member of the American Psychological Association. She
is the secretary of the International Council of Psychologists from about 68
countries; a member of the Forensic Psychology Association; and a member
of the ASEAN [Counseling] Association. She is actively involved with the
Philippine Judicial Academy, recently lecturing on the socio-demographic and
psychological profile of families involved in domestic violence and nullity
cases. She was with the Davide Commission doing research about Military
P s y c h o l o g y. S h e h a s w r i t t e n a b o o k e n t i t l e d ' E n e r g y G l o b a l
Psychology' (together with Drs. Allan Tan and Allan Bernardo). The Genosa
case is the first time she has testified as an expert on battered women as
this is the first case of that nature.

"Dra. Dayan testified that for the research she conducted, on the socio-
demographic and psychological profile of families involved in domestic
violence, and nullity cases, she looked at about 500 cases over a period of
ten (10) years and discovered that 'there are lots of variables that cause all
of this marital conflicts, from domestic violence to infidelity, to psychiatric
disorder.'

"Dra. Dayan described domestic violence to comprise of 'a lot of incidents of

psychological abuse, verbal abuse, and emotional abuse to physical abuse
and also sexual abuse.'

xxx xxx xxx

"Dra. Dayan testified that in her studies, 'the battered woman usually has a
very low opinion of herself. She has a self-defeating and self-sacrificing
characteristics. x x x they usually think very lowly of themselves and so
when the violence would happen, they usually think that they provoke it,
that they were the one who precipitated the violence, they provoke their
spouse to be physically, verbally and even sexually abusive to them.' Dra.
Dayan said that usually a battered x x x comes from a dysfunctional family
or from 'broken homes.'

"Dra. Dayan said that the batterer, just like the battered woman, 'also has a
very low opinion of himself. But then emerges to have superiority complex
and it comes out as being very arrogant, very hostile, very aggressive and
very angry. They also had (sic) a very low tolerance for frustrations. A lot of
times they are involved in vices like gambling, drinking and drugs. And they
become violent.' The batterer also usually comes from a dysfunctional family
which over-pampers them and makes them feel entitled to do anything.
Also, they see often how their parents abused each other so 'there is a lot of
modeling of aggression in the family.'

"Dra. Dayan testified that there are a lot of reasons why a battered woman
does not leave her husband: poverty, self-blame and guilt that she provoked
the violence, the cycle itself which makes her hope her husband will change,
the belief in her obligations to keep the family intact at all costs for the sake
of the children.

xxx xxx xxx

"Dra. Dayan said that abused wives react differently to the violence: some
leave the house, or lock themselves in another room, or sometimes try to
fight back triggering 'physical violence on both of them.' She said that in a
'normal marital relationship,' abuses also happen, but these are 'not
consistent, not chronic, are not happening day in [and] day out.' In an
'abnormal marital relationship,' the abuse occurs day in and day out, is long
lasting and 'even would cause hospitalization on the victim and even death
on the victim.'

xxx xxx xxx

"Dra. Dayan said that as a result of the battery of psychological tests she
administered, it was her opinion that Marivic fits the profile of a battered
woman because 'inspite of her feeling of self-confidence which we can see at
times there are really feeling (sic) of loss, such feelings of humiliation which
she sees herself as damaged and as a broken person. And at the same time
she still has the imprint of all the abuses that she had experienced in the
past.'

xxx xxx xxx

"Dra. Dayan said Marivic thought of herself as a loving wife and did not even
consider filing for nullity or legal separation inspite of the abuses. It was at
the time of the tragedy that Marivic then thought of herself as a victim.

xxx xxx xxx

"19. On 9 February 2001, Dr. Alfredo Pajarillo, a physician, who has since
passed away, appeared and testified before RTC-Branch 35, Ormoc City.

"Dr. Pajarillo was a Diplomate of the Philippine Board of Psychiatry; a Fellow

of the Philippine Board of Psychiatry and a Fellow of the Philippine Psychiatry
Association. He was in the practice of psychiatry for thirty-eight (38) years.
Prior to being in private practice, he was connected with the Veterans
Memorial Medical Centre where he gained his training on psychiatry and
neurology. After that, he was called to active duty in the Armed Forces of the
Philippines, assigned to the V. Luna Medical Center for twenty six (26) years.
Prior to his retirement from government service, he obtained the rank of
Brigadier General. He obtained his medical degree from the University of
Santo Tomas. He was also a member of the World Association of Military
Surgeons; the Quezon City Medical Society; the Cagayan Medical Society;
and the Philippine Association of Military Surgeons.

"He authored 'The Comparative Analysis of Nervous Breakdown in the

Philippine Military Academy from the Period 1954 – 1978' which was
presented twice in international congresses. He also authored 'The Mental
Health of the Armed Forces of the Philippines 2000', which was likewise
published internationally and locally. He had a medical textbook published on
the use of Prasepam on a Parke-Davis grant; was the first to use Enanthate
(siquiline), on an E.R. Squibb grant; and he published the use of the drug
Zopiclom in 1985-86.

"Dr. Pajarillo explained that psychiatry deals with the functional disorder of
the mind and neurology deals with the ailment of the brain and spinal cord
enlarged. Psychology, on the other hand, is a bachelor degree and a
doctorate degree; while one has to finish medicine to become a specialist in
psychiatry.
"Even only in his 7th year as a resident in V. Luna Medical Centre, Dr.
Pajarillo had already encountered a suit involving violent family relations,
and testified in a case in 1964. In the Armed Forces of the Philippines,
violent family disputes abound, and he has seen probably ten to twenty
thousand cases. In those days, the primordial intention of therapy was
reconciliation. As a result of his experience with domestic violence cases, he
became a consultant of the Battered Woman Office in Quezon City under
Atty. Nenita Deproza.

"As such consultant, he had seen around forty (40) cases of severe domestic
violence, where there is physical abuse: such as slapping, pushing, verbal
abuse, battering and boxing a woman even to an unconscious state such
that the woman is sometimes confined. The affliction of Post-Traumatic
Stress Disorder 'depends on the vulnerability of the victim.' Dr. Pajarillo said
that if the victim is not very healthy, perhaps one episode of violence may
induce the disorder; if the psychological stamina and physiologic
constitutional stamina of the victim is stronger, 'it will take more repetitive
trauma to precipitate the post-traumatic stress disorder and this x x x is
very dangerous.'

"In psychiatry, the post-traumatic stress disorder is incorporated under the

'anxiety neurosis or neurologic anxcietism.' It is produced by 'overwhelming
brutality, trauma.'

xxx xxx xxx

"Dr. Pajarillo explained that with 'neurotic anxiety', the victim relives the
beating or trauma as if it were real, although she is not actually being
beaten at that time. She thinks 'of nothing but the suffering.'

xxx xxx xxx

"A woman who suffers battery has a tendency to become neurotic, her
emotional tone is unstable, and she is irritable and restless. She tends to
become hard-headed and persistent. She has higher sensitivity and her 'self-
world' is damaged.

"Dr. Pajarillo said that an abnormal family background relates to an

individual's illness, such as the deprivation of the continuous care and love of
the parents. As to the batterer, he normally 'internalizes what is around him
within the environment.' And it becomes his own personality. He is very
competitive; he is aiming high all the time; he is so macho; he shows his
strong façade 'but in it there are doubts in himself and prone to act without
thinking.'

xxx xxx xxx

"Dr. Pajarillo emphasized that 'even though without the presence of the
precipator (sic) or the one who administered the battering, that re-
experiencing of the trauma occurred (sic) because the individual cannot
control it. It will just come up in her mind or in his mind.'

xxx xxx xxx

"Dr. Pajarillo said that a woman suffering post traumatic stress disorder try
to defend themselves, and 'primarily with knives. Usually pointed weapons
or any weapon that is available in the immediate surrounding or in a hospital
x x x because that abound in the household.' He said a victim resorts to
weapons when she has 'reached the lowest rock bottom of her life and there
is no other recourse left on her but to act decisively.'

xxx xxx xxx

"Dr. Pajarillo testified that he met Marivic Genosa in his office in an interview
he conducted for two (2) hours and seventeen (17) minutes. He used the
psychological evaluation and social case studies as a help in forming his
diagnosis. He came out with a Psychiatric Report, dated 22 January 2001.

xxx xxx xxx

"On cross-examination by the private prosecutor, Dr. Pajarillo said that at the
time she killed her husband Marivic'c mental condition was that she was 're-
experiencing the trauma.' He said 'that we are trying to explain scientifically
that the re-experiencing of the trauma is not controlled by Marivic. It will
just come in flashes and probably at that point in time that things happened
when the re-experiencing of the trauma flashed in her mind.' At the time he
interviewed Marivic 'she was more subdued, she was not super alert
anymore x x x she is mentally stress (sic) because of the predicament she is
involved.'

xxx xxx xxx

"20. No rebuttal evidence or testimony was presented by either the private
or the public prosecutor. Thus, in accord with the Resolution of this
Honorable Court, the records of the partially re-opened trial a quo were
elevated."9

Ruling of the Trial Court

Finding the proffered theory of self-defense untenable, the RTC gave

credence to the prosecution evidence that appellant had killed the deceased
while he was in bed sleeping. Further, the trial court appreciated the generic
aggravating circumstance of treachery, because Ben Genosa was supposedly
defenseless when he was killed -- lying in bed asleep when Marivic smashed
him with a pipe at the back of his head.

The capital penalty having been imposed, the case was elevated to this
Court for automatic review.

Supervening Circumstances

On February 19, 2000, appellant filed an Urgent Omnibus Motion praying

that this Court allow (1) the exhumation of Ben Genosa and the
reexamination of the cause of his death; (2) the examination of appellant by
qualified psychologists and psychiatrists to determine her state of mind at
the time she had killed her spouse; and (3) the inclusion of the said experts'
reports in the records of the case for purposes of the automatic review or, in
the alternative, a partial reopening of the case for the lower court to admit
the experts' testimonies.

On September 29, 2000, this Court issued a Resolution granting in part

appellant's Motion, remanding the case to the trial court for the reception of
expert psychological and/or psychiatric opinion on the "battered woman
syndrome" plea; and requiring the lower court to report thereafter to this
Court the proceedings taken as well as to submit copies of the TSN and
additional evidence, if any.

Acting on the Court's Resolution, the trial judge authorized the examination
of Marivic by two clinical psychologists, Drs. Natividad Dayan10 and Alfredo
Pajarillo,11 supposedly experts on domestic violence. Their testimonies, along
with their documentary evidence, were then presented to and admitted by
the lower court before finally being submitted to this Court to form part of
the records of the case.12
 The Issues

Appellant assigns the following alleged errors of the trial court for this
Court's consideration:

"1. The trial court gravely erred in promulgating an obviously hasty decision
without reflecting on the evidence adduced as to self-defense.

"2. The trial court gravely erred in finding as a fact that Ben and Marivic
Genosa were legally married and that she was therefore liable for parricide.

"3. The trial court gravely erred finding the cause of death to be by beating
with a pipe.

"4. The trial court gravely erred in ignoring and disregarding evidence
adduced from impartial and unbiased witnesses that Ben Genosa was a
drunk, a gambler, a womanizer and wife-beater; and further gravely erred in
concluding that Ben Genosa was a battered husband.

"5. The trial court gravely erred in not requiring testimony from the children
of Marivic Genosa.

"6. The trial court gravely erred in concluding that Marivic's flight to Manila
and her subsequent apologies were indicia of guilt, instead of a clear attempt
to save the life of her unborn child.

"7. The trial court gravely erred in concluding that there was an aggravating
circumstance of treachery.

"8. The trial court gravely erred in refusing to re-evaluate the traditional
elements in determining the existence of self-defense and defense of foetus
in this case, thereby erroneously convicting Marivic Genosa of the crime of
parricide and condemning her to the ultimate penalty of death."13

In the main, the following are the essential legal issues: (1) whether
appellant acted in self-defense and in defense of her fetus; and (2) whether
treachery attended the killing of Ben Genosa.

The Court's Ruling

The appeal is partly meritorious.

 Collateral Factual Issues

The first six assigned errors raised by appellant are factual in nature, if not
collateral to the resolution of the principal issues. As consistently held by this
Court, the findings of the trial court on the credibility of witnesses and their
testimonies are entitled to a high degree of respect and will not be disturbed
on appeal in the absence of any showing that the trial judge gravely abused
his discretion or overlooked, misunderstood or misapplied material facts or
circumstances of weight and substance that could affect the outcome of the
case.14

In appellant's first six assigned items, we find no grave abuse of discretion,

reversible error or misappreciation of material facts that would reverse or
modify the trial court's disposition of the case. In any event, we will now
briefly dispose of these alleged errors of the trial court.

First, we do not agree that the lower court promulgated "an obviously hasty
decision without reflecting on the evidence adduced as to self-defense." We
note that in his 17-page Decision, Judge Fortunito L. Madrona summarized
the testimonies of both the prosecution and the defense witnesses and -- on
the basis of those and of the documentary evidence on record -- made his
evaluation, findings and conclusions. He wrote a 3-page discourse assessing
the testimony and the self-defense theory of the accused. While she, or even
this Court, may not agree with the trial judge's conclusions, we cannot
peremptorily conclude, absent substantial evidence, that he failed to
reflect on the evidence presented.

Neither do we find the appealed Decision to have been made in an

"obviously hasty" manner. The Information had been filed with the lower
court on November 14, 1996. Thereafter, trial began and at least 13
hearings were held for over a year. It took the trial judge about two months
from the conclusion of trial to promulgate his judgment. That he conducted
the trial and resolved the case with dispatch should not be taken against
him, much less used to condemn him for being unduly hasty. If at all, the
dispatch with which he handled the case should be lauded. In any case, we
find his actions in substantial compliance with his constitutional obligation.15

Second, the lower court did not err in finding as a fact that Ben Genosa and
appellant had been legally married, despite the non-presentation of their
marriage contract. In People v. Malabago,16 this Court held:
"The key element in parricide is the relationship of the offender with the
victim. In the case of parricide of a spouse, the best proof of the relationship
between the accused and the deceased is the marriage certificate. In the
absence of a marriage certificate, however, oral evidence of the fact of
marriage may be considered by the trial court if such proof is not objected
to."

Two of the prosecution witnesses -- namely, the mother and the brother of
appellant's deceased spouse -- attested in court that Ben had been married
to Marivic.17 The defense raised no objection to these testimonies. Moreover,
during her direct examination, appellant herself made a judicial admission of
her marriage to Ben.18 Axiomatic is the rule that a judicial admission is
conclusive upon the party making it, except only when there is a showing
that (1) the admission was made through a palpable mistake, or (2) no
admission was in fact made.19 Other than merely attacking the non-
presentation of the marriage contract, the defense offered no proof that the
admission made by appellant in court as to the fact of her marriage to the
deceased was made through a palpable mistake.

Third, under the circumstances of this case, the specific or direct cause of
Ben's death -- whether by a gunshot or by beating with a pipe -- has no
legal consequence. As the Court elucidated in its September 29, 2000
Resolution, "[c]onsidering that the appellant has admitted the fact of killing
her husband and the acts of hitting his nape with a metal pipe and of
shooting him at the back of his head, the Court believes that exhumation is
unnecessary, if not immaterial, to determine which of said acts actually
caused the victim's death." Determining which of these admitted acts caused
the death is not dispositive of the guilt or defense of appellant.

Fourth, we cannot fault the trial court for not fully appreciating evidence that
Ben was a drunk, gambler, womanizer and wife-beater. Until this case came
to us for automatic review, appellant had not raised the novel defense of
"battered woman syndrome," for which such evidence may have been
relevant. Her theory of self-defense was then the crucial issue before the
trial court. As will be discussed shortly, the legal requisites of self-defense
under prevailing jurisprudence ostensibly appear inconsistent with the
surrounding facts that led to the death of the victim. Hence, his personal
character, especially his past behavior, did not constitute vital evidence at
the time.
Fifth, the trial court surely committed no error in not requiring testimony
from appellant's children. As correctly elucidated by the solicitor general, all
criminal actions are prosecuted under the direction and control of the public
prosecutor, in whom lies the discretion to determine which witnesses and
evidence are necessary to present.20 As the former further points out,
neither the trial court nor the prosecution prevented appellant from
presenting her children as witnesses. Thus, she cannot now fault the lower
court for not requiring them to testify.

Finally, merely collateral or corroborative is the matter of whether the flight

of Marivic to Manila and her subsequent apologies to her brother-in-law are
indicia of her guilt or are attempts to save the life of her unborn child. Any
reversible error as to the trial court's appreciation of these circumstances
has little bearing on the final resolution of the case.

First Legal Issue:

Self-Defense and Defense of a Fetus

Appellant admits killing Ben Genosa but, to avoid criminal liability, invokes
self-defense and/or defense of her unborn child. When the accused admits
killing the victim, it is incumbent upon her to prove any claimed justifying
circumstance by clear and convincing evidence.21 Well-settled is the rule that
in criminal cases, self-defense (and similarly, defense of a stranger or third
person) shifts the burden of proof from the prosecution to the defense.22

The Battered Woman Syndrome

In claiming self-defense, appellant raises the novel theory of the battered

woman syndrome. While new in Philippine jurisprudence, the concept has
been recognized in foreign jurisdictions as a form of self-defense or, at the
least, incomplete self-defense.23 By appreciating evidence that a victim or
defendant is afflicted with the syndrome, foreign courts convey their
"understanding of the justifiably fearful state of mind of a person who has
been cyclically abused and controlled over a period of time."24

A battered woman has been defined as a woman "who is repeatedly

subjected to any forceful physical or psychological behavior by a man in
order to coerce her to do something he wants her to do without concern for
her rights. Battered women include wives or women in any form of intimate
relationship with men. Furthermore, in order to be classified as a battered
woman, the couple must go through the battering cycle at least twice. Any
woman may find herself in an abusive relationship with a man once. If it
occurs a second time, and she remains in the situation, she is defined as a
battered woman."25

Battered women exhibit common personality traits, such as low self-esteem,

traditional beliefs about the home, the family and the female sex role;
emotional dependence upon the dominant male; the tendency to accept
responsibility for the batterer's actions; and false hopes that the relationship
will improve.26

More graphically, the battered woman syndrome is characterized by the so-

called "cycle of violence,"27 which has three phases: (1) the tension-building
phase; (2) the acute battering incident; and (3) the tranquil, loving (or, at
least, nonviolent) phase.28

During the tension-building phase, minor battering occurs -- it could be

verbal or slight physical abuse or another form of hostile behavior. The
woman usually tries to pacify the batterer through a show of kind, nurturing
behavior; or by simply staying out of his way. What actually happens is that
she allows herself to be abused in ways that, to her, are comparatively
minor. All she wants is to prevent the escalation of the violence exhibited by
the batterer. This wish, however, proves to be double-edged, because her
"placatory" and passive behavior legitimizes his belief that he has the right
to abuse her in the first place.

However, the techniques adopted by the woman in her effort to placate him
are not usually successful, and the verbal and/or physical abuse worsens.
Each partner senses the imminent loss of control and the growing tension
and despair. Exhausted from the persistent stress, the battered woman soon
withdraws emotionally. But the more she becomes emotionally unavailable,
the more the batterer becomes angry, oppressive and abusive. Often, at
some unpredictable point, the violence "spirals out of control" and leads to
an acute battering incident.29

The acute battering incident is said to be characterized by brutality,

destructiveness and, sometimes, death. The battered woman deems this
incident as unpredictable, yet also inevitable. During this phase, she has no
control; only the batterer may put an end to the violence. Its nature can be
as unpredictable as the time of its explosion, and so are his reasons for
ending it. The battered woman usually realizes that she cannot reason with
him, and that resistance would only exacerbate her condition.

At this stage, she has a sense of detachment from the attack and the terrible
pain, although she may later clearly remember every detail. Her apparent
passivity in the face of acute violence may be rationalized thus: the batterer
is almost always much stronger physically, and she knows from her past
painful experience that it is futile to fight back. Acute battering incidents are
often very savage and out of control, such that innocent bystanders or
intervenors are likely to get hurt.30

The final phase of the cycle of violence begins when the acute battering
incident ends. During this tranquil period, the couple experience profound
relief. On the one hand, the batterer may show a tender and nurturing
behavior towards his partner. He knows that he has been viciously cruel and
tries to make up for it, begging for her forgiveness and promising never to
beat her again. On the other hand, the battered woman also tries to
convince herself that the battery will never happen again; that her partner
will change for the better; and that this "good, gentle and caring man" is the
real person whom she loves.

A battered woman usually believes that she is the sole anchor of the
emotional stability of the batterer. Sensing his isolation and despair, she
feels responsible for his well-being. The truth, though, is that the chances of
his reforming, or seeking or receiving professional help, are very slim,
especially if she remains with him. Generally, only after she leaves him does
he seek professional help as a way of getting her back. Yet, it is in this phase
of remorseful reconciliation that she is most thoroughly tormented
psychologically.

The illusion of absolute interdependency is well-entrenched in a battered

woman's psyche. In this phase, she and her batterer are indeed emotionally
dependent on each other -- she for his nurturant behavior, he for her
forgiveness. Underneath this miserable cycle of "tension, violence and
forgiveness," each partner may believe that it is better to die than to be
separated. Neither one may really feel independent, capable of functioning
without the other.31

History of Abuse

in the Present Case
To show the history of violence inflicted upon appellant, the defense
presented several witnesses. She herself described her heart-rending
experience as follows:

"ATTY. TABUCANON

Q How did you describe your marriage with Ben Genosa?

A In the first year, I lived with him happily but in the subsequent year he
was cruel to me and a behavior of habitual drinker.

Q You said that in the subsequent year of your marriage, your husband was
abusive to you and cruel. In what way was this abusive and cruelty
manifested to you?

A He always provoke me in everything, he always slap me and sometimes he

pinned me down on the bed and sometimes beat me.

Q How many times did this happen?

A Several times already.

Q What did you do when these things happen to you?

A I went away to my mother and I ran to my father and we separate each

other.

Q What was the action of Ben Genosa towards you leaving home?

A He is following me, after that he sought after me.

Q What will happen when he follow you?

A He said he changed, he asked for forgiveness and I was convinced and

after that I go to him and he said 'sorry'.

Q During those times that you were the recipient of such cruelty and abusive
behavior by your husband, were you able to see a doctor?

A Yes, sir.

Q Who are these doctors?

A The company physician, Dr. Dino Caing, Dr. Lucero and Dra. Cerillo.

xxx xxx xxx

Q You said that you saw a doctor in relation to your injuries?

A Yes, sir.

Q Who inflicted these injuries?

A Of course my husband.

Q You mean Ben Genosa?

A Yes, sir.

xxx xxx xxx

[Court] /to the witness

Q How frequent was the alleged cruelty that you said?

A Everytime he got drunk.

Q No, from the time that you said the cruelty or the infliction of injury
inflicted on your occurred, after your marriage, from that time on, how
frequent was the occurrence?

A Everytime he got drunk.

Q Is it daily, weekly, monthly or how many times in a month or in a week?

A Three times a week.

Q Do you mean three times a week he would beat you?

A Not necessarily that he would beat me but sometimes he will just quarrel
me." 32

Referring to his "Out-Patient Chart"33 on Marivic Genosa at the Philphos

Hospital, Dr. Dino D. Caing bolstered her foregoing testimony on chronic
battery in this manner:
"Q So, do you have a summary of those six (6) incidents which are found in
the chart of your clinic?

A Yes, sir.

Q Who prepared the list of six (6) incidents, Doctor?

A I did.

Q Will you please read the physical findings together with the dates for the
record.

A 1. May 12, 1990 - physical findings are as follows: Hematoma (R) lower
eyelid and redness of eye. Attending physician: Dr. Lucero;

2. March 10, 1992 - Contusion-Hematoma (L) lower arbital area, pain and
contusion (R) breast. Attending physician: Dr. Canora;

3. March 26, 1993 - Abrasion, Furuncle (L) Axilla;

4. August 1, 1994 - Pain, mastitis (L) breast, 2o to trauma. Attending

physician: Dr. Caing;

5. April 17, 1995 - Trauma, tenderness (R) Shoulder. Attending physician:

Dr. Canora; and

6. June 5, 1995 - Swelling Abrasion (L) leg, multiple contusion Pregnancy.

Attending physician: Dr. Canora.

Q Among the findings, there were two (2) incidents wherein you were the
attending physician, is that correct?

A Yes, sir.

Q Did you actually physical examine the accused?

A Yes, sir.

Q Now, going to your finding no. 3 where you were the one who attended
the patient. What do you mean by abrasion furuncle left axilla?
A Abrasion is a skin wound usually when it comes in contact with something
rough substance if force is applied.

Q What is meant by furuncle axilla?

A It is secondary of the light infection over the abrasion.

Q What is meant by pain mastitis secondary to trauma?

A So, in this 4th episode of physical injuries there is an inflammation of left

breast. So, [pain] meaning there is tenderness. When your breast is
traumatized, there is tenderness pain.

Q So, these are objective physical injuries. Doctor?

xxx xxx xxx

Q Were you able to talk with the patient?

A Yes, sir.

Q What did she tell you?

A As a doctor-patient relationship, we need to know the cause of these

injuries. And she told me that it was done to her by her husband.

Q You mean, Ben Genosa?

A Yes, sir.

xxx xxx xxx

ATTY. TABUCANON:

Q By the way Doctor, were you able to physical examine the accused
sometime in the month of November, 1995 when this incident happened?

A As per record, yes.

Q What was the date?

A It was on November 6, 1995.

Q So, did you actually see the accused physically?

A Yes, sir.

Q On November 6, 1995, will you please tell this Honorable Court, was the
patient pregnant?

A Yes, sir.

Q Being a doctor, can you more engage at what stage of pregnancy was she?

A Eight (8) months pregnant.

Q So in other words, it was an advance stage of pregnancy?

A Yes, sir.

Q What was your November 6, 1995 examination, was it an examination

about her pregnancy or for some other findings?

A No, she was admitted for hypertension headache which complicates her
pregnancy.

Q When you said admitted, meaning she was confined?

A Yes, sir.

Q For how many days?

A One day.

Q Where?

A At PHILPHOS Hospital.

xxx xxx xxx

Q Lets go back to the clinical history of Marivic Genosa. You said that you
were able to examine her personally on November 6, 1995 and she was 8
months pregnant.

What is this all about?

A Because she has this problem of tension headache secondary to
hypertension and I think I have a record here, also the same period from
1989 to 1995, she had a consultation for twenty-three (23) times.

Q For what?

A Tension headache.

Q Can we say that specially during the latter consultation, that the patient
had hypertension?

A The patient definitely had hypertension. It was refractory to our treatment.

She does not response when the medication was given to her, because
tension headache is more or less stress related and emotional in nature.

Q What did you deduce of tension headache when you said is emotional in
nature?

A From what I deduced as part of our physical examination of the patient is

the family history in line of giving the root cause of what is causing this
disease. So, from the moment you ask to the patient all comes from the
domestic problem.

Q You mean problem in her household?

A Probably.

Q Can family trouble cause elevation of blood pressure, Doctor?

A Yes, if it is emotionally related and stressful it can cause increases in

hypertension which is unfortunately does not response to the medication.

Q In November 6, 1995, the date of the incident, did you take the blood
pressure of the accused?

A On November 6, 1995 consultation, the blood pressure was 180/120.

Q Is this considered hypertension?

A Yes, sir, severe.

Q Considering that she was 8 months pregnant, you mean this is dangerous
level of blood pressure?

A It was dangerous to the child or to the fetus." 34

Another defense witness, Teodoro Sarabia, a former neighbor of the Genosas

in Isabel, Leyte, testified that he had seen the couple quarreling several
times; and that on some occasions Marivic would run to him with bruises,
confiding that the injuries were inflicted upon her by Ben.35

Ecel Arano also testified36 that for a number of times she had been asked by
Marivic to sleep at the Genosa house, because the latter feared that Ben
would come home drunk and hurt her. On one occasion that Ecel did sleep
over, she was awakened about ten o'clock at night, because the couple
"were very noisy … and I heard something was broken like a vase." Then
Marivic came running into Ecel's room and locked the door. Ben showed up
by the window grill atop a chair, scaring them with a knife.

On the afternoon of November 15, 1995, Marivic again asked her help -- this
time to find Ben -- but they were unable to. They returned to the Genosa
home, where they found him already drunk. Again afraid that he might hurt
her, Marivic asked her to sleep at their house. Seeing his state of
drunkenness, Ecel hesitated; and when she heard the couple start arguing,
she decided to leave.

On that same night that culminated in the death of Ben Genosa, at least
three other witnesses saw or heard the couple quarreling.37 Marivic relates in
detail the following backdrop of the fateful night when life was snuffed out of
him, showing in the process a vivid picture of his cruelty towards her:

"ATTY. TABUCANON:

Q Please tell this Court, can you recall the incident in November 15, 1995 in
the evening?

A Whole morning and in the afternoon, I was in the office working then after
office hours, I boarded the service bus and went to Bilwang. When I reached
Bilwang, I immediately asked my son, where was his father, then my second
child said, 'he was not home yet'. I was worried because that was payday, I
was anticipating that he was gambling. So while waiting for him, my eldest
son arrived from school, I prepared dinner for my children.
Q This is evening of November 15, 1995?

A Yes, sir.

Q What time did Ben Genosa arrive?

A When he arrived, I was not there, I was in Isabel looking for him.

Q So when he arrived you were in Isabel looking for him?

A Yes, sir.

Q Did you come back to your house?

A Yes, sir.

Q By the way, where was your conjugal residence situated this time?

A Bilwang.

Q Is this your house or you are renting?

A Renting.

Q What time were you able to come back in your residence at Bilwang?

A I went back around almost 8:00 o'clock.

Q What happened when you arrived in your residence?

A When I arrived home with my cousin Ecel whom I requested to sleep with
me at that time because I had fears that he was again drunk and I was
worried that he would again beat me so I requested my cousin to sleep with
me, but she resisted because she had fears that the same thing will happen
again last year.

Q Who was this cousin of yours who you requested to sleep with you?

A Ecel Araño, the one who testified.

Q Did Ecel sleep with you in your house on that evening?

A No, because she expressed fears, she said her father would not allow her
because of Ben.

Q During this period November 15, 1995, were you pregnant?

A Yes, 8 months.

Q How advance was your pregnancy?

A Eight (8) months.

Q Was the baby subsequently born?

A Yes, sir.

Q What's the name of the baby you were carrying at that time?

A Marie Bianca.

Q What time were you able to meet personally your husband?

A Yes, sir.

Q What time?

A When I arrived home, he was there already in his usual behavior.

Q Will you tell this Court what was his disposition?

A He was drunk again, he was yelling in his usual unruly behavior.

Q What was he yelling all about?

A His usual attitude when he got drunk.

Q You said that when you arrived, he was drunk and yelling at you? What
else did he do if any?

A He is nagging at me for following him and he dared me to quarrel him.

Q What was the cause of his nagging or quarreling at you if you know?
A He was angry at me because I was following x x x him, looking for him. I
was just worried he might be overly drunk and he would beat me again.

Q You said that he was yelling at you, what else, did he do to you if any?

A He was nagging at me at that time and I just ignore him because I want to
avoid trouble for fear that he will beat me again. Perhaps he was
disappointed because I just ignore him of his provocation and he switch off
the light and I said to him, 'why did you switch off the light when the
children were there.' At that time I was also attending to my children who
were doing their assignments. He was angry with me for not answering his
challenge, so he went to the kitchen and [got] a bolo and cut the antenna
wire to stop me from watching television.

Q What did he do with the bolo?

A He cut the antenna wire to keep me from watching T.V.

Q What else happened after he cut the wire?

A He switch off the light and the children were shouting because they were
scared and he was already holding the bolo.

Q How do you described this bolo?

A 1 1/2 feet.

Q What was the bolo used for usually?

A For chopping meat.

Q You said the children were scared, what else happened as Ben was
carrying that bolo?

A He was about to attack me so I run to the room.

Q What do you mean that he was about to attack you?

A When I attempt to run he held my hands and he whirled me and I fell to

the bedside.

Q So when he whirled you, what happened to you?

A I screamed for help and then he left.

Q You said earlier that he whirled you and you fell on the bedside?

A Yes, sir.

Q You screamed for help and he left, do you know where he was going?

A Outside perhaps to drink more.

Q When he left what did you do in that particular time?

A I packed all his clothes.

Q What was your reason in packing his clothes?

A I wanted him to leave us.

Q During this time, where were your children, what were their reactions?

A After a couple of hours, he went back again and he got angry with me for
packing his clothes, then he dragged me again of the bedroom holding my
neck.

Q You said that when Ben came back to your house, he dragged you? How
did he drag you?

COURT INTERPRETER:

The witness demonstrated to the Court by using her right hand flexed
forcibly in her front neck)

A And he dragged me towards the door backward.

ATTY. TABUCANON:

Q Where did he bring you?

A Outside the bedroom and he wanted to get something and then he kept on
shouting at me that 'you might as well be killed so there will be nobody to
nag me.'
Q So you said that he dragged you towards the drawer?

A Yes, sir.

Q What is there in the drawer?

A I was aware that it was a gun.

COURT INTERPRETER:

(At this juncture the witness started crying).

ATTY. TABUCANON:

Q Were you actually brought to the drawer?

A Yes, sir.

Q What happened when you were brought to that drawer?

A He dragged me towards the drawer and he was about to open the drawer
but he could not open it because he did not have the key then he pulled his
wallet which contained a blade about 3 inches long and I was aware that he
was going to kill me and I smashed his arm and then the wallet and the
blade fell. The one he used to open the drawer I saw, it was a pipe about
that long, and when he was about to pick-up the wallet and the blade, I
smashed him then I ran to the other room, and on that very moment
everything on my mind was to pity on myself, then the feeling I had on that
very moment was the same when I was admitted in PHILPHOS Clinic, I was
about to vomit.

COURT INTERPRETER:

(The witness at this juncture is crying intensely).

xxx xxx xxx

ATTY. TABUCANON:

Q Talking of drawer, is this drawer outside your room?

A Outside.
Q In what part of the house?

A Dining.

Q Where were the children during that time?

A My children were already asleep.

Q You mean they were inside the room?

A Yes, sir.

Q You said that he dropped the blade, for the record will you please describe
this blade about 3 inches long, how does it look like?

A Three (3) inches long and 1/2 inch wide.

Q Is it a flexible blade?

A It's a cutter.

Q How do you describe the blade, is it sharp both edges?

A Yes, because he once used it to me.

Q How did he do it?

A He wanted to cut my throat.

Q With the same blade?

A Yes, sir, that was the object used when he intimidate me." 38

In addition, Dra. Natividad Dayan was called by the RTC to testify as an

expert witness to assist it in understanding the psyche of a battered person.
She had met with Marivic Genosa for five sessions totaling about seventeen
hours. Based on their talks, the former briefly related the latter's ordeal to
the court a quo as follows:

"Q: What can you say, that you found Marivic as a battered wife? Could you
in layman's term describe to this Court what her life was like as said to you?
A: What I remember happened then was it was more than ten years, that
she was suffering emotional anguish. There were a lot of instances of
abuses, to emotional abuse, to verbal abuse and to physical abuse. The
husband had a very meager income, she was the one who was practically
the bread earner of the family. The husband was involved in a lot of vices,
going out with barkadas, drinking, even womanizing being involved in
cockfight and going home very angry and which will trigger a lot of physical
abuse. She also had the experience a lot of taunting from the husband for
the reason that the husband even accused her of infidelity, the husband was
saying that the child she was carrying was not his own. So she was very
angry, she was at the same time very depressed because she was also
aware, almost like living in purgatory or even hell when it was happening
day in and day out." 39

In cross-examining Dra. Dayan, the public prosecutor not merely elicited,

but wittingly or unwittingly put forward, additional supporting evidence as
shown below:

"Q In your first encounter with the appellant in this case in 1999, where you
talked to her about three hours, what was the most relevant information did
you gather?

A The most relevant information was the tragedy that happened. The most
important information were escalating abuses that she had experienced
during her marital life.

Q Before you met her in 1999 for three hours, we presume that you already
knew of the facts of the case or at least you have substantial knowledge of
the facts of the case?

A I believe I had an idea of the case, but I do not know whether I can
consider them as substantial.

xxx xxx xxx

Q Did you gather an information from Marivic that on the side of her
husband they were fond of battering their wives?

A I also heard that from her?

Q You heard that from her?

A Yes, sir.

Q Did you ask for a complete example who are the relatives of her husband
that were fond of battering their wives?

A What I remember that there were brothers of her husband who are also
battering their wives.

Q Did she not inform you that there was an instance that she stayed in a
hotel in Ormoc where her husband followed her and battered [her] several
times in that room?

A She told me about that.

Q Did she inform you in what hotel in Ormoc?

A Sir, I could not remember but I was told that she was battered in that
room.

Q Several times in that room?

A Yes, sir. What I remember was that there is no problem about being
battered, it really happened.

Q Being an expert witness, our jurisprudence is not complete on saying this

matter. I think that is the first time that we have this in the Philippines, what
is your opinion?

A Sir, my opinion is, she is really a battered wife and in this kind happened,
it was really a self-defense. I also believe that there had been provocation
and I also believe that she became a disordered person. She had to suffer
anxiety reaction because of all the battering that happened and so she
became an abnormal person who had lost she's not during the time and that
is why it happened because of all the physical battering, emotional battering,
all the psychological abuses that she had experienced from her husband.

Q I do believe that she is a battered wife. Was she extremely battered?

A Sir, it is an extreme form of battering. Yes.40

Parenthetically, the credibility of appellant was demonstrated as follows:

"Q And you also said that you administered [the] objective personality test,
what x x x [is this] all about?

A The objective personality test is the Millon Clinical Multiaxial Inventory. The
purpose of that test is to find out about the lying prone[ne]ss of the person.

Q What do you mean by that?

A Meaning, am I dealing with a client who is telling me the truth, or is she

someone who can exaggerate or x x x [will] tell a lie[?]

Q And what did you discover on the basis of this objective personality test?

A She was a person who passed the honesty test. Meaning she is a person
that I can trust. That the data that I'm gathering from her are the truth."41

The other expert witness presented by the defense, Dr. Alfredo Pajarillo,
testified on his Psychiatric Report,42 which was based on his interview and
examination of Marivic Genosa. The Report said that during the first three
years of her marriage to Ben, everything looked good -- the atmosphere was
fine, normal and happy -- until "Ben started to be attracted to other girls
and was also enticed in[to] gambling[,] especially cockfighting. x x x. At the
same time Ben was often joining his barkada in drinking sprees."

The drinking sprees of Ben greatly changed the attitude he showed toward
his family, particularly to his wife. The Report continued: "At first, it was
verbal and emotional abuses but as time passed, he became physically
abusive. Marivic claimed that the viciousness of her husband was
progressive every time he got drunk. It was a painful ordeal Marivic had to
anticipate whenever she suspected that her husband went for a drinking
[spree]. They had been married for twelve years[;] and practically more
than eight years, she was battered and maltreated relentlessly and
mercilessly by her husband whenever he was drunk."

Marivic sought the help of her mother-in-law, but her efforts were in vain.
Further quoting from the Report, "[s]he also sought the advice and help of
close relatives and well-meaning friends in spite of her feeling ashamed of
what was happening to her. But incessant battering became more and more
frequent and more severe. x x x."43
From the totality of evidence presented, there is indeed no doubt in the
Court's mind that Appellant Marivic Genosa was a severely abused person.

Effect of Battery on Appellant

Because of the recurring cycles of violence experienced by the abused

woman, her state of mind metamorphoses. In determining her state of
mind, we cannot rely merely on the judgment of an ordinary, reasonable
person who is evaluating the events immediately surrounding the incident. A
Canadian court has aptly pointed out that expert evidence on the
psychological effect of battering on wives and common law partners are both
relevant and necessary. "How can the mental state of the appellant be
appreciated without it? The average member of the public may ask: Why
would a woman put up with this kind of treatment? Why should she continue
to live with such a man? How could she love a partner who beat her to the
point of requiring hospitalization? We would expect the woman to pack her
bags and go. Where is her self-respect? Why does she not cut loose and
make a new life for herself? Such is the reaction of the average person
confronted with the so-called 'battered wife syndrome.'"44

To understand the syndrome properly, however, one's viewpoint should not

be drawn from that of an ordinary, reasonable person. What goes on in the
mind of a person who has been subjected to repeated, severe beatings may
not be consistent with -- nay, comprehensible to -- those who have not been
through a similar experience. Expert opinion is essential to clarify and refute
common myths and misconceptions about battered women.45

The theory of BWS formulated by Lenore Walker, as well as her research on

domestic violence, has had a significant impact in the United States and the
United Kingdom on the treatment and prosecution of cases, in which a
battered woman is charged with the killing of her violent partner. The
psychologist explains that the cyclical nature of the violence inflicted upon
the battered woman immobilizes the latter's "ability to act decisively in her
own interests, making her feel trapped in the relationship with no means of
escape."46 In her years of research, Dr. Walker found that "the abuse often
escalates at the point of separation and battered women are in greater
danger of dying then."47

Corroborating these research findings, Dra. Dayan said that "the battered
woman usually has a very low opinion of herself. She has x x x self-defeating
and self-sacrificing characteristics. x x x [W]hen the violence would happen,
they usually think that they provoke[d] it, that they were the one[s] who
precipitated the violence[; that] they provoke[d] their spouse to be
physically, verbally and even sexually abusive to them."48

According to Dra. Dayan, there are a lot of reasons why a battered woman
does not readily leave an abusive partner -- poverty, self-blame and guilt
arising from the latter's belief that she provoked the violence, that she has
an obligation to keep the family intact at all cost for the sake of their
children, and that she is the only hope for her spouse to change.49

The testimony of another expert witness, Dr. Pajarillo, is also helpful. He had
previously testified in suits involving violent family relations, having
evaluated "probably ten to twenty thousand" violent family disputes within
the Armed Forces of the Philippines, wherein such cases abounded. As a
result of his experience with domestic violence cases, he became a
consultant of the Battered Woman Office in Quezon City. As such, he got
involved in about forty (40) cases of severe domestic violence, in which the
physical abuse on the woman would sometimes even lead to her loss of
consciousness.50

Dr. Pajarillo explained that "overwhelming brutality, trauma" could result in

posttraumatic stress disorder, a form of "anxiety neurosis or neurologic
anxietism."51 After being repeatedly and severely abused, battered persons
"may believe that they are essentially helpless, lacking power to change
their situation. x x x [A]cute battering incidents can have the effect of
stimulating the development of coping responses to the trauma at the
expense of the victim's ability to muster an active response to try to escape
further trauma. Furthermore, x x x the victim ceases to believe that
anything she can do will have a predictable positive effect."52

A study53 conducted by Martin Seligman, a psychologist at the University of

Pennsylvania, found that "even if a person has control over a situation, but
believes that she does not, she will be more likely to respond to that
situation with coping responses rather than trying to escape." He said that it
was the cognitive aspect -- the individual's thoughts -- that proved all-
important. He referred to this phenomenon as "learned helplessness." "[T]he
truth or facts of a situation turn out to be less important than the individual's
set of beliefs or perceptions concerning the situation. Battered women don't
attempt to leave the battering situation, even when it may seem to outsiders
that escape is possible, because they cannot predict their own safety; they
believe that nothing they or anyone else does will alter their terrible
circumstances."54

Thus, just as the battered woman believes that she is somehow responsible
for the violent behavior of her partner, she also believes that he is capable of
killing her, and that there is no escape.55 Battered women feel unsafe, suffer
from pervasive anxiety, and usually fail to leave the relationship.56 Unless a
shelter is available, she stays with her husband, not only because she
typically lacks a means of self-support, but also because she fears that if she
leaves she would be found and hurt even more.57

In the instant case, we meticulously scoured the records for specific

evidence establishing that appellant, due to the repeated abuse she had
suffered from her spouse over a long period of time, became afflicted with
the battered woman syndrome. We, however, failed to find sufficient
evidence that would support such a conclusion. More specifically, we failed to
find ample evidence that would confirm the presence of the essential
characteristics of BWS.

The defense fell short of proving all three phases of the "cycle of violence"
supposedly characterizing the relationship of Ben and Marivic Genosa. No
doubt there were acute battering incidents. In relating to the court a
quo how the fatal incident that led to the death of Ben started, Marivic
perfectly described the tension-building phase of the cycle. She was able to
explain in adequate detail the typical characteristics of this stage. However,
that single incident does not prove the existence of the syndrome. In other
words, she failed to prove that in at least another battering episode in the
past, she had gone through a similar pattern.

How did the tension between the partners usually arise or build up prior to
acute battering? How did Marivic normally respond to Ben's relatively minor
abuses? What means did she employ to try to prevent the situation from
developing into the next (more violent) stage?

Neither did appellant proffer sufficient evidence in regard to the third phase
of the cycle. She simply mentioned that she would usually run away to her
mother's or father's house;58 that Ben would seek her out, ask for her
forgiveness and promise to change; and that believing his words, she would
return to their common abode.
Did she ever feel that she provoked the violent incidents between her and
her spouse? Did she believe that she was the only hope for Ben to reform?
And that she was the sole support of his emotional stability and well-being?
Conversely, how dependent was she on him? Did she feel helpless and
trapped in their relationship? Did both of them regard death as preferable to
separation?

In sum, the defense failed to elicit from appellant herself her factual
experiences and thoughts that would clearly and fully demonstrate the
essential characteristics of the syndrome.

The Court appreciates the ratiocinations given by the expert witnesses for
the defense. Indeed, they were able to explain fully, albeit merely
theoretically and scientifically, how the personality of the battered woman
usually evolved or deteriorated as a result of repeated and severe beatings
inflicted upon her by her partner or spouse. They corroborated each other's
testimonies, which were culled from their numerous studies of hundreds of
actual cases. However, they failed to present in court the factual experiences
and thoughts that appellant had related to them -- if at all -- based on which
they concluded that she had BWS.

We emphasize that in criminal cases, all the elements of a modifying

circumstance must be proven in order to be appreciated. To repeat, the
records lack supporting evidence that would establish all the essentials of
the battered woman syndrome as manifested specifically in the case of the
Genosas.

BWS as Self-Defense

In any event, the existence of the syndrome in a relationship does not in

itself establish the legal right of the woman to kill her abusive partner.
Evidence must still be considered in the context of self-defense.59

From the expert opinions discussed earlier, the Court reckons further that
crucial to the BWS defense is the state of mind of the battered woman at the
time of the offense60 -- she must have actually feared imminent harm from
her batterer and honestly believed in the need to kill him in order to save
her life.

Settled in our jurisprudence, however, is the rule that the one who resorts to
self-defense must face a real threat on one's life; and the peril sought to be
avoided must be imminent and actual, not merely imaginary.61 Thus, the
Revised Penal Code provides the following requisites and effect of self-
defense:62

"Art. 11. Justifying circumstances. -- The following do not incur any criminal
liability:

"1. Anyone who acts in defense of his person or rights, provided that the
following circumstances concur;

First. Unlawful aggression;

Second. Reasonable necessity of the means employed to prevent or repel it;

Third. Lack of sufficient provocation on the part of the person defending

himself."

Unlawful aggression is the most essential element of self-defense.63 It

presupposes actual, sudden and unexpected attack -- or an imminent
danger thereof -- on the life or safety of a person.64 In the present case,
however, according to the testimony of Marivic herself, there was a sufficient
time interval between the unlawful aggression of Ben and her fatal attack
upon him. She had already been able to withdraw from his violent behavior
and escape to their children's bedroom. During that time, he apparently
ceased his attack and went to bed. The reality or even the imminence of the
danger he posed had ended altogether. He was no longer in a position that
presented an actual threat on her life or safety.

Had Ben still been awaiting Marivic when she came out of their children's
bedroom -- and based on past violent incidents, there was a great
probability that he would still have pursued her and inflicted graver harm --
then, the imminence of the real threat upon her life would not have ceased
yet. Where the brutalized person is already suffering from BWS, further
evidence of actual physical assault at the time of the killing is not required.
Incidents of domestic battery usually have a predictable pattern. To require
the battered person to await an obvious, deadly attack before she can
defend her life "would amount to sentencing her to 'murder by
installment.'"65 Still, impending danger (based on the conduct of the victim
in previous battering episodes) prior to the defendant's use of deadly force
must be shown. Threatening behavior or communication can satisfy the
required imminence of danger.66 Considering such circumstances and the
existence of BWS, self-defense may be appreciated.

We reiterate the principle that aggression, if not continuous, does not

warrant self-defense.67 In the absence of such aggression, there can be no
self-defense -- complete or incomplete -- on the part of the victim.68 Thus,
Marivic's killing of Ben was not completely justified under the circumstances.

Mitigating Circumstances Present

In any event, all is not lost for appellant. While she did not raise any other
modifying circumstances that would alter her penalty, we deem it proper to
evaluate and appreciate in her favor circumstances that mitigate her criminal
liability. It is a hornbook doctrine that an appeal in a criminal case opens it
wholly for review on any issue, including that which has not been raised by
the parties.69

From several psychological tests she had administered to Marivic, Dra.

Dayan, in her Psychological Evaluation Report dated November 29, 2000,
opined as follows:

"This is a classic case of a Battered Woman Syndrome. The repeated

battering Marivic experienced with her husband constitutes a form of
[cumulative] provocation which broke down her psychological resistance and
natural self-control. It is very clear that she developed heightened sensitivity
to sight of impending danger her husband posed continuously. Marivic truly
experienced at the hands of her abuser husband a state of psychological
paralysis which can only be ended by an act of violence on her part." 70

Dr. Pajarillo corroborates the findings of Dra. Dayan. He explained that the
effect of "repetitious pain taking, repetitious battering, [and] repetitious
maltreatment" as well as the severity and the prolonged administration of
the battering is posttraumatic stress disorder.71 Expounding thereon, he said:

"Q What causes the trauma, Mr. Witness?

A What causes the trauma is probably the repetitious battering. Second, the
severity of the battering. Third, the prolonged administration of battering or
the prolonged commission of the battering and the psychological and
constitutional stamina of the victim and another one is the public and social
support available to the victim. If nobody is interceding, the more she will go
to that disorder....

xxx xxx xxx

Q You referred a while ago to severity. What are the qualifications in terms
of severity of the postraumatic stress disorder, Dr. Pajarillo?

A The severity is the most severe continuously to trig[g]er this

post[t]raumatic stress disorder is injury to the head, banging of the head
like that. It is usually the very very severe stimulus that precipitate this
post[t]raumatic stress disorder. Others are suffocating the victim like holding
a pillow on the face, strangulating the individual, suffocating the individual,
and boxing the individual. In this situation therefore, the victim is
heightened to painful stimulus, like for example she is pregnant, she is very
susceptible because the woman will not only protect herself, she is also to
protect the fetus. So the anxiety is heightened to the end [sic] degree.

Q But in terms of the gravity of the disorder, Mr. Witness, how do you
classify?

A We classify the disorder as [acute], or chronic or delayed or [a]typical.

Q Can you please describe this pre[-]classification you called delayed or

[atypical]?

A The acute is the one that usually require only one battering and the
individual will manifest now a severe emotional instability, higher irritability
remorse, restlessness, and fear and probably in most [acute] cases the first
thing will be happened to the individual will be thinking of suicide.

Q And in chronic cases, Mr. Witness?

A The chronic cases is this repetitious battering, repetitious maltreatment,

any prolonged, it is longer than six (6) months. The [acute] is only the first
day to six (6) months. After this six (6) months you become chronic. It is
stated in the book specifically that after six (6) months is chronic. The
[a]typical one is the repetitious battering but the individual who is abnormal
and then become normal. This is how you get neurosis from neurotic
personality of these cases of post[t]raumatic stress disorder." 72
Answering the questions propounded by the trial judge, the expert witness
clarified further:

"Q But just the same[,] neurosis especially on battered woman syndrome x
x x affects x x x his or her mental capacity?

A Yes, your Honor.

Q As you were saying[,] it x x x obfuscated her rationality?

A Of course obfuscated."73

In sum, the cyclical nature and the severity of the violence inflicted upon
appellant resulted in "cumulative provocation which broke down her
psychological resistance and natural self-control," "psychological paralysis,"
and "difficulty in concentrating or impairment of memory."

Based on the explanations of the expert witnesses, such manifestations were

analogous to an illness that diminished the exercise by appellant of her will
power without, however, depriving her of consciousness of her acts. There
was, thus, a resulting diminution of her freedom of action, intelligence or
intent. Pursuant to paragraphs 974 and 1075 of Article 13 of the Revised Penal
Code, this circumstance should be taken in her favor and considered as a
mitigating factor. 76

In addition, we also find in favor of appellant the extenuating circumstance

of having acted upon an impulse so powerful as to have naturally produced
passion and obfuscation. It has been held that this state of mind is present
when a crime is committed as a result of an uncontrollable burst of passion
provoked by prior unjust or improper acts or by a legitimate stimulus so
powerful as to overcome reason.77 To appreciate this circumstance, the
following requisites should concur: (1) there is an act, both unlawful and
sufficient to produce such a condition of mind; and (2) this act is not far
removed from the commission of the crime by a considerable length of time,
during which the accused might recover her normal equanimity.78

Here, an acute battering incident, wherein Ben Genosa was the unlawful
aggressor, preceded his being killed by Marivic. He had further threatened to
kill her while dragging her by the neck towards a cabinet in which he had
kept a gun. It should also be recalled that she was eight months pregnant at
the time. The attempt on her life was likewise on that of her fetus.79 His
abusive and violent acts, an aggression which was directed at the lives of
both Marivic and her unborn child, naturally produced passion and
obfuscation overcoming her reason. Even though she was able to retreat to a
separate room, her emotional and mental state continued. According to her,
she felt her blood pressure rise; she was filled with feelings of self-pity and
of fear that she and her baby were about to die. In a fit of indignation, she
pried open the cabinet drawer where Ben kept a gun, then she took the
weapon and used it to shoot him.

The confluence of these events brings us to the conclusion that there was no
considerable period of time within which Marivic could have recovered her
normal equanimity. Helpful is Dr. Pajarillo's testimony80 that with "neurotic
anxiety" -- a psychological effect on a victim of "overwhelming brutality [or]
trauma" -- the victim relives the beating or trauma as if it were real,
although she is not actually being beaten at the time. She cannot control
"re-experiencing the whole thing, the most vicious and the trauma that she
suffered." She thinks "of nothing but the suffering." Such reliving which is
beyond the control of a person under similar circumstances, must have been
what Marivic experienced during the brief time interval and prevented her
from recovering her normal equanimity. Accordingly, she should further be
credited with the mitigating circumstance of passion and obfuscation.

It should be clarified that these two circumstances -- psychological paralysis

as well as passion and obfuscation -- did not arise from the same set of
facts.

On the one hand, the first circumstance arose from the cyclical nature and
the severity of the battery inflicted by the batterer-spouse upon appellant.
That is, the repeated beatings over a period of time resulted in her
psychological paralysis, which was analogous to an illness diminishing the
exercise of her will power without depriving her of consciousness of her acts.

The second circumstance, on the other hand, resulted from the violent
aggression he had inflicted on her prior to the killing. That the incident
occurred when she was eight months pregnant with their child was deemed
by her as an attempt not only on her life, but likewise on that of their
unborn child. Such perception naturally produced passion and obfuscation on
her part.

Second Legal Issue:

 Treachery

There is treachery when one commits any of the crimes against persons by
employing means, methods or forms in the execution thereof without risk to
oneself arising from the defense that the offended party might make.81 In
order to qualify an act as treacherous, the circumstances invoked must be
proven as indubitably as the killing itself; they cannot be deduced from mere
inferences, or conjectures, which have no place in the appreciation of
evidence.82 Because of the gravity of the resulting offense, treachery must
be proved as conclusively as the killing itself.83

Ruling that treachery was present in the instant case, the trial court imposed
the penalty of death upon appellant. It inferred this qualifying circumstances
merely from the fact that the lifeless body of Ben had been found lying in
bed with an "open, depressed, circular" fracture located at the back of his
head. As to exactly how and when he had been fatally attacked, however,
the prosecution failed to establish indubitably. Only the following testimony
of appellant leads us to the events surrounding his death:

"Q You said that when Ben came back to your house, he dragged you? How
did he drag you?

COURT:

The witness demonstrated to the Court by using her right hand flexed
forcibly in her front neck)

A And he dragged me towards the door backward.

ATTY. TABUCANON:

Q Where did he bring you?

A Outside the bedroom and he wanted to get something and then he kept on
shouting at me that 'you might as well be killed so there will be nobody to
nag me'

Q So you said that he dragged you towards the drawer?

A Yes, sir.

Q What is there in the drawer?

A I was aware that it was a gun.

COURT INTERPRETER

(At this juncture the witness started crying)

ATTY. TABUCANON:

Q Were you actually brought to the drawer?

A Yes, sir.

Q What happened when you were brought to that drawer?

A He dragged me towards the drawer and he was about to open the drawer
but he could not open it because he did not have the key then he pulled his
wallet which contained a blade about 3 inches long and I was aware that he
was going to kill me and I smashed his arm and then the wallet and the
blade fell. The one he used to open the drawer I saw, it was a pipe about
that long, and when he was about to pick-up the wallet and the blade, I
smashed him then I ran to the other room, and on that very moment
everything on my mind was to pity on myself, then the feeling I had on that
very moment was the same when I was admitted in PHILPHOS Clinic, I was
about to vomit.

COURT INTERPRETER

(The witness at this juncture is crying intensely).

xxx xxx xxx

Q You said that he dropped the blade, for the record will you please describe
this blade about 3 inches long, how does it look like?

A Three (3) inches long and ½ inch wide.

Q It is a flexible blade?

A It's a cutter.

Q How do you describe the blade, is it sharp both edges?

A Yes, because he once used it to me.

Q How did he do it?

A He wanted to cut my throat.

Q With the same blade?

A Yes, sir, that was the object used when he intimidate me.

xxx xxx xxx

ATTY. TABUCANON:

Q You said that this blade fell from his grip, is it correct?

A Yes, because I smashed him.

Q What happened?

A Ben tried to pick-up the wallet and the blade, I pick-up the pipe and I
smashed him and I ran to the other room.

Q What else happened?

A When I was in the other room, I felt the same thing like what happened
before when I was admitted in PHILPHOS Clinic, I was about to vomit. I
know my blood pressure was raised. I was frightened I was about to die
because of my blood pressure.

COURT INTERPRETER:

(Upon the answer of the witness getting the pipe and smashed him, the
witness at the same time pointed at the back of her neck or the nape).

ATTY. TABUCANON:

Q You said you went to the room, what else happened?

A Considering all the physical sufferings that I've been through with him, I
took pity on myself and I felt I was about to die also because of my blood
pressure and the baby, so I got that gun and I shot him.
COURT

/to Atty. Tabucanon

Q You shot him?

A Yes, I distorted the drawer."84

The above testimony is insufficient to establish the presence of treachery.

There is no showing of the victim's position relative to appellant's at the time
of the shooting. Besides, equally axiomatic is the rule that when a killing is
preceded by an argument or a quarrel, treachery cannot be appreciated as a
qualifying circumstance, because the deceased may be said to have been
forewarned and to have anticipated aggression from the assailant.85

Moreover, in order to appreciate alevosia, the method of assault adopted by

the aggressor must have been consciously and deliberately chosen for the
specific purpose of accomplishing the unlawful act without risk from any
defense that might be put up by the party attacked.86 There is no showing,
though, that the present appellant intentionally chose a specific means of
successfully attacking her husband without any risk to herself from any
retaliatory act that he might make. To the contrary, it appears that the
thought of using the gun occurred to her only at about the same moment
when she decided to kill her batterer-spouse. In the absence of any
convincing proof that she consciously and deliberately employed the method
by which she committed the crime in order to ensure its execution, this
Court resolves the doubt in her favor.87

Proper Penalty

The penalty for parricide imposed by Article 246 of the Revised Penal Code
is reclusion perpetua to death. Since two mitigating circumstances and no
aggravating circumstance have been found to have attended the commission
of the offense, the penalty shall be lowered by one (1) degree, pursuant to
Article 64 of paragraph 588 of the same Code.89 The penalty of reclusion
temporal in its medium period is imposable, considering that two mitigating
circumstances are to be taken into account in reducing the penalty by one
degree, and no other modifying circumstances were shown to have attended
the commission of the offense.90 Under the Indeterminate Sentence Law, the
minimum of the penalty shall be within the range of that which is next lower
in degree -- prision mayor -- and the maximum shall be within the range of
the medium period of reclusion temporal.

Considering all the circumstances of the instant case, we deem it just and
proper to impose the penalty of prision mayor in its minimum period, or six
(6) years and one (1) day in prison as minimum; to reclusion temporal in its
medium period, or 14 years 8 months and 1 day as maximum. Noting that
appellant has already served the minimum period, she may now apply for
and be released from detention on parole.91

Epilogue

Being a novel concept in our jurisprudence, the battered woman syndrome

was neither easy nor simple to analyze and recognize vis-à-vis the given set
of facts in the present case. The Court agonized on how to apply the theory
as a modern-day reality. It took great effort beyond the normal manner in
which decisions are made -- on the basis of existing law and jurisprudence
applicable to the proven facts. To give a just and proper resolution of the
case, it endeavored to take a good look at studies conducted here and
abroad in order to understand the intricacies of the syndrome and the
distinct personality of the chronically abused person. Certainly, the Court has
learned much. And definitely, the solicitor general and appellant's counsel,
Atty. Katrina Legarda, have helped it in such learning process.

While our hearts empathize with recurrently battered persons, we can only
work within the limits of law, jurisprudence and given facts. We cannot make
or invent them. Neither can we amend the Revised Penal Code. Only
Congress, in its wisdom, may do so.

The Court, however, is not discounting the possibility of self-defense arising

from the battered woman syndrome. We now sum up our main points. First,
each of the phases of the cycle of violence must be proven to have
characterized at least two battering episodes between the appellant and her
intimate partner. Second, the final acute battering episode preceding the
killing of the batterer must have produced in the battered person's mind an
actual fear of an imminent harm from her batterer and an honest belief that
she needed to use force in order to save her life. Third, at the time of the
killing, the batterer must have posed probable -- not necessarily immediate
and actual -- grave harm to the accused, based on the history of violence
perpetrated by the former against the latter. Taken altogether, these
circumstances could satisfy the requisites of self-defense. Under the existing
facts of the present case, however, not all of these elements were duly
established.

WHEREFORE, the conviction of Appellant Marivic Genosa for parricide is

hereby AFFIRMED. However, there being two (2) mitigating circumstances
and no aggravating circumstance attending her commission of the offense,
her penalty is REDUCED to six (6) years and one (1) day of prision mayor as
minimum; to 14 years, 8 months and 1 day of reclusion temporal as
maximum.

Inasmuch as appellant has been detained for more than the minimum
penalty hereby imposed upon her, the director of the Bureau of Corrections
may immediately RELEASE her from custody upon due determination that
she is eligible for parole, unless she is being held for some other lawful
cause. Costs de oficio.

SO ORDERED.

Puno, Carpio, Corona, Carpio-Morales, Callejo, Sr., Azcuna and Tinga,

JJ., concur.

Davide, Jr., C.J., Sandoval-Gutierrez, and Austria-Martinez, JJ., join Justice
Santiago in her dissent.

Vitug and Quisumbing JJ., in the result.

Ynares-Santiago J., see dissenting opinion.

DISSENTING OPINION

YNARES-SANTIAGO, J.:

In convicting Marivic Genosa of the crime of parricide, our esteemed

colleague Mr. Justice Artemio V. Panganiban found that there was no factual
basis to conclude that Marivic was suffering from "Battered Woman
Syndrome" (BWS) at the time she took the life of her husband. With due
respect, I register my dissent.

The novel theory of "Battered Woman Syndrome" is recognized in foreign

jurisprudence as a form of self-defense. It operates upon the premise that a
woman who has been cyclically abused and controlled over a period of time
develops a fearful state of mind. Living in constant danger of harm or death,
she knows that future beatings are almost certain to occur and will escalate
over time. Her intimate knowledge of the violent nature of her batterer
makes her alert to when a particular attack is forthcoming, and when it will
seriously threaten her survival. Trapped in a cycle of violence and constant
fear, it is not unlikely that she would succumb to her helplessness and fail to
perceive possible solutions to the problem other than to injure or kill her
batterer. She is seized by fear of an existing or impending lethal aggression
and thus would have no opportunity beforehand to deliberate on her acts
and to choose a less fatal means of eliminating her sufferings.1

As exhaustively discussed in the ponencia, the "Battered Woman Syndrome"

has three phases, to wit: (1) the tension-building phase, where minor
batterings in the form of verbal or slight physical abuse occurs. Here, the
woman tries to pacify the batterer through a show of kind, nurturing
behavior; or by simply staying out of his way; (2) the acute battering
incident phase which is characterized by brutality, destructiveness and
sometimes, death. The battered woman usually realizes that she cannot
reason with him and that resistance would only exacerbate her condition;
and (3) the tranquil period, where the couple experience a compound relief
and the batterer may show a tender and nurturing behavior towards his
partner.

Contrary to the findings in the ponencia, the defense was able to establish
the occurrence on more than one occasion of the "tension-building phase" of
the cycle. The various testimonies of appellant's witnesses clearly reveal that
she knew exactly when she would once again be subjected to acute battery.
Her cousin, Ecel Arano, testified that she often asked the latter to sleep in
her house as she was afraid every time her husband came home drunk.
Clearly, whenever appellant requested for Arano's company, she was
experiencing a tension-building phase. The barangay captain, Panfilo Tero,
also testified that appellant sought his help two months before she killed her
husband, again demonstrating that she was in the tension-building phase
and was attempting to prevent another incident of acute battery. Appellant
presented evidence to prove that the tension-building phase would occur
whenever her husband would go out looking for other women, would lose at
cockfights or would come home drunk. She often tried to ignore her
husband's attitude or, as testified to by some witnesses for the prosecution,
even shouted back, fought off or even injured her husband during the
tension-building phase, if only to prevent the onset of acute battery.
Appellant was able to perfectly describe the tension-building phase of the
cycle immediately prior to the death of her husband, i.e., when she knew or
felt that she was going to be killed by the deceased. She could not possibly
have testified with clarity as to prior tension-building phases in the cycle as
she had never tried to kill her husband before this time.

It was shown by the testimonies of appellant and even witnesses for the
prosecution that appellant would seek shelter in her mother's or her father's
house after an acute battering incident, after which would begin the process
of begging for forgiveness, promises of change in behavior and return to the
conjugal home, only for the same cycle to begin all over again.

To require appellant to prove the state of mind of the deceased, as seems to

be required in the ponencia, would mean that no person would ever be able
to prove self-defense in a battered woman case. Appellant could not possibly
prove whether the deceased felt provoked into battering by any act or
omission of appellant. She cannot possibly prove that she felt herself to be
the sole support of the deceased's emotional stability and well-being.
Nevertheless, appellant felt trapped and helpless in the relationship as, in
the end, she resorted to killing her husband as no one could or did help her,
whether out of fear or insensitivity, during the violent marriage she endured.

The "acute battering incident stage" was well demonstrated by the severe
beatings suffered by Marivic in the hands of the deceased as well as the
threats to kill her using a bolo or a cutter.2 The physical abuses occurred at
least 3 times a week in the 11 miserable years of their marriage,3 six
incidents of which were documented by the 1990-1995 medical records of
Marivic. They included, among others, hematoma, contusion, and pain on
the breasts; multiple contusions and trauma on the different parts of her
body even during her pregnancy in 1995.4 The tranquil period underwent by
Marivic was shown by the repeated "kiss and make-up" episodes of their
relationship. On more than 5 occasions, Marivic ran to her parents' house
after violent fights with the deceased only to forgive the latter every time he
would fetch her and promise to change.5

All these recurring phases of cycle of violence, repentance and forgiveness

developed a trauma in the mind of Marivic making her believe that a
forthcoming attack from the deceased would cause her death. This state of
mind of Marivic was revealed in her testimony given way back in 1998,
before she was examined by experts on BWS. Unaware of the significance of
her declarations, she candidly narrated how she felt immediately before she
killed the deceased, thus -

ATTY. TABUCANON

Q So you said that he dragged you towards the drawer?

A Yes, sir.

Q What is there in the drawer?

A I was aware that it was a gun.

xxx xxx xxx

Q What happened when you were brought to the drawer?

A He dragged me towards the drawer and he was about to open the drawer
but he could not open it because he did not have the key. [T]hen he pulled
his wallet which contained a blade about 3 inches long and I was aware that
he was going to kill me and I smashed his arm and then the wallet and the
blade fell. The one he used to open the drawer I saw, it was a pipe about
that long, and when he was about to pick-up the wallet and the blade, I
smashed him then I ran to the room, and on that very moment everything
on my mind was pity on myself, then the feeling I had on that very moment
was the same when I was admitted in PHILPHOS Clinic, I was about to
vomit.

xxx xxx xxx6

Q What else happened?

A When I was in the room, I felt the same thing like what happened before I
was admitted in PHILPHOS Clinic, I was about to vomit. I know my blood
pressure has raised. I was frightened I was about to die because of my blood
pressure.

xxx xxx xxx

A Considering all the physical sufferings that I've been through him, I took
pity on myself and I felt I was about to die also because of my blood
pressure and the baby, so I got the gun and shot him.7
It must be stressed that the defense of "Battered Woman Syndrome" was
not raised by Marivic before the lower court but only here on automatic
review. This makes the foregoing testimony more worthy of great weight
and credence considering that the same could not have been cunningly given
to suit or conform to the profile of a battered woman.

Moreover, there was indeed basis for Marivic to fear death because of her
medical history. Dr. Dino Caing testified that he treated Marivic for
hypertension due to domestically related emotional stress on 23 separate
occasions. The latest one was on November 6, 1995 when she suffered from
severe hypertension and had a blood pressure of 180/120 on the 8th month
of her pregnancy.8

Furthermore, Dr. Natividad A. Dayan, a clinical psychologist and an expert on

BWS who examined Marivic, assessed the effects of the repeated violence on
the latter as follows:

A What I remember ... was it was more than ten years that she was
suffering from emotional anguish. There were a lot of instance of abuses, ...
emotional abuse...verbal abuse and... physical abuse. The husband had very
meager income, she was the one who was practically the bread earner of the
family. The husband was involved in a lot of vices, going out
with barkadas, drinking, even womanizing, being involved in cockfighting
and in going home very angry which... triggered a lot of physical abuse. She
also had the experience of taunting from the husband for the reason that the
husband even accused her of infidelity, the husband was saying that the
child she was carrying was not his own. So she was very angry, she was at
the same time very depressed because she .. .[felt] almost like living in
purgatory or even in hell when it was happening day in and day out.

xxx xxx xxx

Q And what was it that triggered ... that tragedy in your opinion?

A I think for several weeks, she was already having all those tensions, all
those anxieties, they were not enough, that the husband was even going to
cockfighting x x x

A She was angry with him, he was angry with her and I think he dragged her
and even spun her around. She tried to fight him so there was a lot of fight
and when she was able to escape, she went to another room and she locked
herself with the children. And when the husband was for a while very angry
he calms down then and then (sic). But I remember before that the husband
was looking for the gun and I think he was not able to open the cabinet
because she had the key. So during that time, I remember, that she was
very much afraid of him, so when the husband calmed down and he was
asleep, all she was concerned was to end up her misery, to save her child
which she was carrying and to save her two children. I believe that somehow
she's not rational.9

xxx xxx xxx

PROS. TRUYA

Q Mrs. Witness, being an expert witness, giving more the facts and
circumstances on this case that the books you studied in the expertise in line
and in the 77 hour contact with appellant Mrs. Genosa, could you say that
this is not ordinary self-defense but a survival on her part?

A Yes, sir.

Q To what she did to her husband (sic)?

A Yes, sir this is not an ordinary self-defense, but this [is] a need to survive,
a need to survive with her two sons and [the] child she's bringing.

Q Had she not able to kill her husband, would she still be in the very short
moment with the victim (sic)?

A If she did not do that she believes that she will be the one who would be
killed.10

There is no doubt therefore that Marivic was afflicted with the "Battered
Woman Syndrome" and that it was an apprehension of death and the instinct
to defend her and her unborn child's life that drove her to kill her husband.

The ponente further refused to sustain the self-defense proffered by Marivic

because there was allegedly no aggression or danger posed on her life by
the victim at the time she attacked the latter. Again, I beg to disagree.

Traditionally, in order that self-defense may be appreciated, the unlawful

aggression or the attack must be imminent and actually in existence. This
interpretation must, however, be re-evaluated vis-a-vis the recognized
inherent characteristic of the psyche of a person afflicted with the "Battered
Woman Syndrome." As previously discussed, women afflicted by this
syndrome live in constant fear for their life and thus respond in self-defense.
Once BWS and an impending danger based on the conduct of the deceased
in previous battering episodes are established, actual occurrence of an
assault is no longer a condition sine qua non before self defense may be
upheld. Threatening behavior or communication can satisfy the required
imminence of danger. As stated in the ponencia, to require the battered
person to await an obvious deadly attack before she can defend her life
would amount to sentencing her to murder by installment.

In the case at bar, the cycle of violence perpetrated by the deceased, which
culminated in the physical assaults and an attempt to shoot Marivic when
she was 8 months pregnant, took the place of unlawful aggression, thus
entitling her to a complete self defense even if there was
no actual employment of violence by the deceased at the time of the killing.
Marivic had every reason to believe that the deceased would kill her that
night not only because the latter was verbally threatening to kill her while
attempting to get a gun from the drawer, but more importantly because the
deceased wounded her on the wrist with a bolo, and because of the
deceased's previous conduct of threatening to cut her throat with a cutter
which he kept in his wallet. Quoted hereunder are the relevant testimonies
of Marivic -

A When I arrived home, he was already in his usual behavior.

xxx xxx xxx

A He was drunk again, he was yelling in his usual unruly behavior.

xxx xxx xxx

A He was nagging ... me at that time and I just ignore[d] him because I
want to avoid trouble for fear that he will beat me again. Perhaps he was
disappointed because I just ignore[d] hi[s] provocation and he switch off the
light and I said to him, "why did you switch off the light when the children
were there." At that time I was also attending to my children who were
doing their assignments. He was angry with me for not answering his
challenge, so he went to the kitchen and g[o]t a bolo and cut the antenna
wire to stop me from watching television.
 xxx xxx xxx

A He switch[ed] off the light and the children were shouting because they
were scared and he was already holding a bolo.

Q How do you describe this bolo?

A 1 1/2 feet.

xxx xxx xxx

Q You said the children were scared, what else happened as Ben was
carrying that bolo?

A He was about to attack me so I ran to the room.

Q What do you mean that he was about to attack you?

A When I attempted] to run he held my hands and he whirled me and I fell

[on] the bedside.11

xxx xxx xxx

COURT

To the witness

xxx xxx xxx

Q The bolo that you said which Ben was holding at that time, [was] it a bolo
or a knife?

A Bolo.

Q Were you wounded or were there inflictions on your body when he was
holding and trying to frighten you [with] that bolo?

A No, only here.

COURT INTERPRETER

(The witness pointed to her wrist).

COURT

To the witness

Q You were demonstrating a motion, whirling, did your husband really whirl
you?

A Yes, your Honor.

Q How did he whirl you?

A Whirled around.

Q Just like spinning.

xxx xxx xxx

Q Where did he whirl you, was it inside the bedroom or outside?

A In our bedroom.

Q Then after the whirling what happened?

A He kicked my ass and then I screamed.12

xxx xxx xxx

Q You screamed for help and he left, do you know where he was going?

A Outside perhaps to drink more.

Q When he left what did you do...?

A I packed all his clothes.

Q What was your reason in packing his clothes?

A I wanted him to leave us.13

A I was frightened that my husband would hurt me, so I packed all his
things then on the following day I will leave, I was afraid and I want to make
sure I would deliver my baby safely.14

xxx xxx xxx

A After a couple of hours, he went back again and got angry with me for
packing his clothes, then he dragged me again outside of the bedroom
holding my neck.

ATTY. TABUCANON

Q You said that when Ben came back to your house, he dragged you? How
did he drag... you?

COURT INTERPRETER

(The witness demonstrated to the Court by using her right hand flexed
forcibly in her front neck)

A And he dragged me towards the door backwards.

ATTY. TABUCANON

Q Where did he bring you?

A Outside the bedroom and he wanted to get something and then he kept
shouting at me that "you might as well be killed so there will be nobody to
nag me.

Q So you said that he dragged you towards the drawer?

A Yes, sir.

Q What is there in the drawer?

A I was aware that it was a gun.

xxx xxx xxx

Q What happened when you were brought to the drawer?

A He dragged me towards the drawer and he was about to open the drawer
but he could not open it because he did not have the key. [T]hen he pulled
his wallet which contained a blade about 3 inches long and I was aware that
he was going to kill me and I smashed his arm and then the wallet and the
blade fell. The one he used to open the drawer I saw, it was a pipe about
that long, and when he was about to pick-up the wallet and the blade, I
smashed him then I ran to the room, and on that very moment everything
on my mind was pity on myself, then the feeling I had on that very moment
was the same when I was admitted in PHILPHOS Clinic, I was about to
vomit.

xxx xxx xxx

Q You said that he dropped the blade, for the record will you please

describe this blade about 3 inches long, how does it look like?

A Three (3) inches long and 1/2 inch wide.

Q Is it a flexible blade?

A It's a cutter.

Q How do you describe the blade, is it sharp both edges?

A Yes, because he once used it to me.

Q How did he do it?

A He wanted to cut my throat.

Q With the same blade?

A Yes sir, that was the object used when he intimidate me.15

RE-DIRECT BY ATTY. TABUCANON

Q In other words, there were two (2) incidents, the first incident and then he
left and then two (2) hours after he came back?

A Yes, sir.
Q And the whirling happened in the first incident?

A Yes, sir.

Q And the dragging with arms flexed in her neck and on that blade

happened on the second incident (sic)?

A Ye, sir.

xxx xxx xxx

COURT

To the witness

Q Why, what is that blade about?

A A cutter about 3 inches long.

Q Who used that?

A Ben.

Q He used that on you?

A He scared me on that (sic).

xxx xxx xxx

Q But he did not hit you with that?

A Yes, because I managed to run every time he scared (sic).16

There are many things which cannot be proved by direct evidence. One of
this is state of mind. In the case at bar, there is more than sufficient physical
evidence presented by the appellant from which her mental state can be
inferred. The prosecution did not object to the presentation of these physical
and testimonial pieces of evidence, namely, the medical records of 23
instances of domestic violence-related injuries and the testimonies of
neighbors, cousins and even the barangay captain. Indeed, no person would
endure 23 reported instances of beatings if she were planning to kill her
spouse in the first place. The majority need not worry that women around
the country will mastermind the killings of their husbands and then use this
Decision to bolster their attempts to employ the BWS defense.

Moreover, as found in the ponencia, appellant should be allowed the

mitigating circumstance of passion and obfuscation. This, at the very least,
supports a finding that the acts of violence and battery committed by the
deceased were illegal and unlawful and were committed immediately before
appellant could recover her natural equanimity. But what is the natural
equanimity of a battered woman? Appellant was not a normal married
woman. She can never be in a state of natural equanimity as she was in a
constant state of alertness and hypersensitivity to the next phase of acute
battery. The esteemed ponente also correctly found that the appellant acted
with diminished will-power. However, he failed to go further. In the case
of People v. Javier,17 it was held:

Since accused-appellant has already admitted to the killing, it is incumbent

upon him to prove the claimed mitigating circumstance of illness. In this
case, however, aside from the testimony of the accused that his mind went
blank when he killed his wife due to loss of sleep, no medical finding was
presented regarding his mental condition at the time of the killing. This
Court can hardly rely on the bare allegations of accused-appellant, nor on
mere presumptions and conjectures. No clear and convincing evidence was
shown that accused-appellant was suffering an illness which diminished his
exercise of will-power at the time of the killing.18

In the case at bar, appellant was allowed and did in fact present clear and
convincing evidence that she was a battered woman for 13-14 years and
that she suffered from the "Battered Woman Syndrome". Expert testimony
was presented and admitted to this effect, such that the ponente ably
discussed the causes and effects of the syndrome. To ignore the testimony
and the evidence thus presented is to make impossible the proof of mental
state. Evidence as to the mental state need not be also "beyond reasonable
doubt."

Verily, the requirement of threatening behavioral pattern of the batterer in

previous violent episodes was sufficiently satisfied in the present case. This,
juxtaposed to Marivic's affliction with BWS justified the killing of the
deceased. The danger posed or created in her mind by the latter's threats
using bladed weapons, bred a state of fear, where under the circumstances,
the natural response of the battered woman would be to defend herself even
at the cost of taking the life of the batterer.

The ponencia's acknowledgement of "Battered Woman Syndrome" as a valid

form of self-defense, is a noble recognition of the plight of, and a triumph for
battered women who are trapped in a culture of silence, shame, and fear.
This would however be an empty victory if we deliberately close our eyes to
the antecedents of this case. The facts are simple. Marivic was suffering
from the "Battered Woman Syndrome" and was defending herself when she
killed her husband. Her acquittal of the charge of parricide is therefore in
order.

IN VIEW WHEREOF, I vote to ACQUIT Marivic Genosa.

JESUS C. GARCIA, Petitioner,

vs.

THE HONORABLE RAY ALAN T. DRILON, Presiding Judge, Regional
Trial Court-Branch 41, Bacolod City, and ROSALIE JAYPE-GARCIA, for
herself and in behalf of minor children, namely: JO-ANN, JOSEPH
EDUARD, JESSE ANTHONE, all surnamed GARCIA, Respondents.

DECISION

PERLAS-BERNABE, J.:

Hailed as the bastion of Christianity in Asia, the Philippines boasts of 86.8

million Filipinos- or 93 percent of a total population of 93.3 million –
adhering to the teachings of Jesus Christ.1 Yet, the admonition for husbands
to love their wives as their own bodies just as Christ loved the church and
gave himself up for her2 failed to prevent, or even to curb, the pervasiveness
of violence against Filipino women. The National Commission on the Role of
Filipino Women (NCRFW) reported that, for the years 2000-2003, "female
violence comprised more than 90o/o of all forms of abuse and violence and
more than 90% of these reported cases were committed by the women's
intimate partners such as their husbands and live-in partners."3

Thus, on March 8, 2004, after nine (9) years of spirited advocacy by

women's groups, Congress enacted Republic Act (R.A.) No. 9262, entitled
"An Act Defining Violence Against Women and Their Children, Providing for
Protective Measures for Victims, Prescribing Penalties Therefor, and for Other
Purposes." It took effect on March 27, 2004.4

R.A. 9262 is a landmark legislation that defines and criminalizes acts of

violence against women and their children (VAWC) perpetrated by women's
intimate partners, i.e, husband; former husband; or any person who has or
had a sexual or dating relationship, or with whom the woman has a common
child.5 The law provides for protection orders from the barangay and the
courts to prevent the commission of further acts of VAWC; and outlines the
duties and responsibilities of barangay officials, law enforcers, prosecutors
and court personnel, social workers, health care providers, and other local
government officials in responding to complaints of VAWC or requests for
assistance.
A husband is now before the Court assailing the constitutionality of R.A.
9262 as being violative of the equal protection and due process clauses, and
an undue delegation of judicial power to barangay officials.

The Factual Antecedents

On March 23, 2006, Rosalie Jaype-Garcia (private respondent) filed, for

herself and in behalf of her minor children, a verified petition6 (Civil Case No.
06-797) before the Regional Trial Court (RTC) of Bacolod City for the
issuance of a Temporary Protection Order (TPO) against her husband, Jesus
C. Garcia (petitioner), pursuant to R.A. 9262. She claimed to be a victim of
physical abuse; emotional, psychological, and economic violence as a result
of marital infidelity on the part of petitioner, with threats of deprivation of
custody of her children and of financial support.7

Private respondent's claims

Private respondent married petitioner in 2002 when she was 34 years old
and the former was eleven years her senior. They have three (3) children,
namely: Jo-Ann J. Garcia, 17 years old, who is the natural child of petitioner
but whom private respondent adopted; Jessie Anthone J. Garcia, 6 years
old; and Joseph Eduard J. Garcia, 3 years old.8

Private respondent described herself as a dutiful and faithful wife, whose life
revolved around her husband. On the other hand, petitioner, who is of
Filipino-Chinese descent, is dominant, controlling, and demands absolute
obedience from his wife and children. He forbade private respondent to pray,
and deliberately isolated her from her friends. When she took up law, and
even when she was already working part time at a law office, petitioner
trivialized her ambitions and prevailed upon her to just stay at home. He
was often jealous of the fact that his attractive wife still catches the eye of
some men, at one point threatening that he would have any man eyeing her
killed.9

Things turned for the worse when petitioner took up an affair with a bank
manager of Robinson's Bank, Bacolod City, who is the godmother of one of
their sons. Petitioner admitted to the affair when private respondent
confronted him about it in 2004. He even boasted to the household help
about his sexual relations with said bank manager. Petitioner told private
respondent, though, that he was just using the woman because of their
accounts with the bank.10
Petitioner's infidelity spawned a series of fights that left private respondent
physically and emotionally wounded. In one of their quarrels, petitioner
grabbed private respondent on both arms and shook her with such force that
caused bruises and hematoma. At another time, petitioner hit private
respondent forcefully on the lips that caused some bleeding. Petitioner
sometimes turned his ire on their daughter, Jo-Ann, who had seen the text
messages he sent to his paramour and whom he blamed for squealing on
him. He beat Jo-Ann on the chest and slapped her many times. When private
respondent decided to leave petitioner, Jo-Ann begged her mother to stay for
fear that if the latter leaves, petitioner would beat her up. Even the small
boys are aware of private respondent's sufferings. Their 6-year-old son said
that when he grows up, he would beat up his father because of his cruelty to
private respondent.11

All the emotional and psychological turmoil drove private respondent to the
brink of despair. On December 17, 2005, while at home, she attempted
suicide by cutting her wrist. She was found by her son bleeding on the floor.
Petitioner simply fled the house instead of taking her to the hospital. Private
respondent was hospitalized for about seven (7) days in which time
petitioner never bothered to visit, nor apologized or showed pity on her.
Since then, private respondent has been undergoing therapy almost every
week and is taking anti-depressant medications.12

When private respondent informed the management of Robinson's Bank that

she intends to file charges against the bank manager, petitioner got angry
with her for jeopardizing the manager's job. He then packed his things and
told private respondent that he was leaving her for good. He even told
private respondent's mother, who lives with them in the family home, that
private respondent should just accept his extramarital affair since he is not
cohabiting with his paramour and has not sired a child with her.13

Private respondent is determined to separate from petitioner but she is

afraid that he would take her children from her and deprive her of financial
support. Petitioner had previously warned her that if she goes on a legal
battle with him, she would not get a single centavo.14

Petitioner controls the family businesses involving mostly the construction of

deep wells. He is the President of three corporations – 326 Realty Holdings,
Inc., Negros Rotadrill Corporation, and J-Bros Trading Corporation – of which
he and private respondent are both stockholders. In contrast to the absolute
control of petitioner over said corporations, private respondent merely draws
a monthly salary of ₱20,000.00 from one corporation only, the Negros
Rotadrill Corporation. Household expenses amounting to not less than
₱200,000.00 a month are paid for by private respondent through the use of
credit cards, which, in turn, are paid by the same corporation together with
the bills for utilities.15

On the other hand, petitioner receives a monthly salary of ₱60,000.00 from

Negros Rotadrill Corporation, and enjoys unlimited cash advances and other
benefits in hundreds of thousands of pesos from the corporations.16 After
private respondent confronted him about the affair, petitioner forbade her to
hold office at JBTC Building, Mandalagan, where all the businesses of the
corporations are conducted, thereby depriving her of access to full
information about said businesses. Until the filing of the petition a quo,
petitioner has not given private respondent an accounting of the businesses
the value of which she had helped raise to millions of pesos.17

Action of the RTC of Bacolod City

Finding reasonable ground to believe that an imminent danger of violence

against the private respondent and her children exists or is about to recur,
the RTC issued a TPO18 on March 24, 2006 effective for thirty (30) days,
which is quoted hereunder:

Respondent (petitioner herein), Jesus Chua Garcia, is hereby:

a) Ordered to remove all his personal belongings from the conjugal dwelling
or family home within 24 hours from receipt of the Temporary Restraining
Order and if he refuses, ordering that he be removed by police officers from
the conjugal dwelling; this order is enforceable notwithstanding that the
house is under the name of 236 Realty Holdings Inc. (Republic Act No. 9262
states "regardless of ownership"), this is to allow the Petitioner (private
respondent herein) to enter the conjugal dwelling without any danger from
the Respondent.

After the Respondent leaves or is removed from the conjugal dwelling, or

anytime the Petitioner decides to return to the conjugal dwelling to remove
things, the Petitioner shall be assisted by police officers when re-entering the
family home.

The Chief of Police shall also give the Petitioner police assistance on Sunday,
26 March 2006 because of the danger that the Respondent will attempt to
take her children from her when he arrives from Manila and finds out about
this suit.

b) To stay away from the petitioner and her children, mother and all her
household help and driver from a distance of 1,000 meters, and shall not
enter the gate of the subdivision where the Petitioner may be temporarily
residing.

c) Not to harass, annoy, telephone, contact or otherwise communicate with

the Petitioner, directly or indirectly, or through other persons, or contact
directly or indirectly her children, mother and household help, nor send gifts,
cards, flowers, letters and the like. Visitation rights to the children may be
subject of a modified TPO in the future.

d) To surrender all his firearms including a .9MM caliber firearm and a

Walther PPK and ordering the Philippine National Police Firearms and
Explosives Unit and the Provincial Director of the PNP to cancel all the
Respondent's firearm licenses. He should also be ordered to surrender any
unlicensed firearms in his possession or control.

e) To pay full financial support for the Petitioner and the children, including
rental of a house for them, and educational and medical expenses.

f) Not to dissipate the conjugal business.

g) To render an accounting of all advances, benefits, bonuses and other cash

he received from all the corporations from 1 January 2006 up to 31 March
2006, which himself and as President of the corporations and his
Comptroller, must submit to the Court not later than 2 April 2006.
Thereafter, an accounting of all these funds shall be reported to the court by
the Comptroller, copy furnished to the Petitioner, every 15 days of the
month, under pain of Indirect Contempt of Court.

h) To ensure compliance especially with the order granting support pendente

lite, and considering the financial resources of the Respondent and his threat
that if the Petitioner sues she will not get a single centavo, the Respondent is
ordered to put up a BOND TO KEEP THE PEACE in the amount of FIVE
MILLION PESOS, in two sufficient sureties.
On April 24, 2006, upon motion19 of private respondent, the trial court
issued an amended TPO,20 effective for thirty (30) days, which included the
following additional provisions:

i) The petitioners (private respondents herein) are given the continued use
of the Nissan Patrol and the Starex Van which they are using in Negros
Occidental.

j) The petitioners are given the continued use and occupation of the house in
Parañaque, the continued use of the Starex van in Metro Manila, whenever
they go to Manila.

k) Respondent is ordered to immediately post a bond to keep the peace, in

two sufficient sureties.

l) To give monthly support to the petitioner provisionally fixed in the sum of

One Hundred Fifty Thousand Pesos (Php 150,000.00) per month plus rental
expenses of Fifty Thousand Pesos (Php 50,000.00) per month until the
matter of support could be finally resolved.

Two days later, or on April 26, 2006, petitioner filed an Opposition to the
Urgent Ex-Parte Motion for Renewal of the TPO21 seeking the denial of the
renewal of the TPO on the grounds that it did not (1) comply with the three-
day notice rule, and (2) contain a notice of hearing. He further asked that
the TPO be modified by (1) removing one vehicle used by private respondent
and returning the same to its rightful owner, the J-Bros Trading Corporation,
and (2) cancelling or reducing the amount of the bond from ₱5,000,000.00
to a more manageable level at ₱100,000.00.

Subsequently, on May 23, 2006, petitioner moved22 for the modification of

the TPO to allow him visitation rights to his children.

On May 24, 2006, the TPO was renewed and extended yet again, but subject
only to the following modifications prayed for by private respondent:

a) That respondent (petitioner herein) return the clothes and other personal
belongings of Rosalie and her children to Judge Jesus Ramos, co-counsel for
Petitioner, within 24 hours from receipt of the Temporary Protection Order by
his counsel, otherwise be declared in Indirect Contempt of Court;
b) Respondent shall make an accounting or list of furniture and equipment in
the conjugal house in Pitimini St., Capitolville Subdivision, Bacolod City
within 24 hours from receipt of the Temporary Protection Order by his
counsel;

c) Ordering the Chief of the Women's Desk of the Bacolod City Police
Headquarters to remove Respondent from the conjugal dwelling within eight
(8) hours from receipt of the Temporary Protection Order by his counsel, and
that he cannot return until 48 hours after the petitioners have left, so that
the petitioner Rosalie and her representatives can remove things from the
conjugal home and make an inventory of the household furniture, equipment
and other things in the conjugal home, which shall be submitted to the
Court.

d) Deliver full financial support of Php200,000.00 and Php50,000.00 for

rental and Php25,000.00 for clothes of the three petitioners (sic) children
within 24 hours from receipt of the Temporary Protection Order by his
counsel, otherwise be declared in indirect contempt of Court;

e) That respondent surrender his two firearms and all unlicensed firearms to
the Clerk of Court within 24 hours from receipt of the Temporary Protection
Order by his counsel;

f) That respondent shall pay petitioner educational expenses of the children

upon presentation of proof of payment of such expenses.23

Claiming that petitioner continued to deprive them of financial support;

failed to faithfully comply with the TPO; and committed new acts of
harassment against her and their children, private respondent filed another
application24 for the issuance of a TPO ex parte. She alleged inter

alia that petitioner contrived a replevin suit against himself by J-Bros

Trading, Inc., of which the latter was purportedly no longer president, with
the end in view of recovering the Nissan Patrol and Starex Van used by
private respondent and the children. A writ of replevin was served upon
private respondent by a group of six or seven policemen with long firearms
that scared the two small boys, Jessie Anthone and Joseph Eduard.25

While Joseph Eduard, then three years old, was driven to school, two men
allegedly attempted to kidnap him, which incident traumatized the boy
resulting in his refusal to go back to school. On another occasion, petitioner
allegedly grabbed their daughter, Jo-Ann, by the arm and threatened her.
26 The incident was reported to the police, and Jo-Ann subsequently filed a

criminal complaint against her father for violation of R.A. 7610, also known
as the "Special Protection of Children Against Child Abuse, Exploitation and
Discrimination Act."

Aside from the replevin suit, petitioner's lawyers initiated the filing by the
housemaids working at the conjugal home of a complaint for kidnapping and
illegal detention against private respondent. This came about after private
respondent, armed with a TPO, went to said home to get her and her
children's belongings. Finding some of her things inside a housemaid's
(Sheryl Jamola) bag in the maids' room, private respondent filed a case for
qualified theft against Jamola.27

On August 23, 2006, the RTC issued a TPO,28 effective for thirty (30) days,
which reads as follows:

Respondent (petitioner herein), Jesus Chua Garcia, is hereby:

1) Prohibited from threatening to commit or committing, personally or

through another, acts of violence against the offended party;

2) Prohibited from harassing, annoying, telephoning, contacting or otherwise

communicating in any form with the offended party, either directly or
indirectly;

3) Required to stay away, personally or through his friends, relatives,

employees or agents, from all the Petitioners Rosalie J. Garcia and her
children, Rosalie J. Garcia's three brothers, her mother Primitiva Jaype, cook
Novelita Caranzo, driver Romeo Hontiveros, laundrywoman Mercedita
Bornales, security guard Darwin Gayona and the petitioner's other household
helpers from a distance of 1,000 meters, and shall not enter the gate of the
subdivision where the Petitioners are temporarily residing, as well as from
the schools of the three children; Furthermore, that respondent shall not
contact the schools of the children directly or indirectly in any manner
including, ostensibly to pay for their tuition or other fees directly, otherwise
he will have access to the children through the schools and the TPO will be
rendered nugatory;

4) Directed to surrender all his firearms including .9MM caliber firearm and a
Walther PPK to the Court;
5) Directed to deliver in full financial support of Php200,000.00 a month and
Php50,000.00 for rental for the period from August 6 to September 6, 2006;
and support in arrears from March 2006 to August 2006 the total amount of
Php1,312,000.00;

6) Directed to deliver educational expenses for 2006-2007 the amount of

Php75,000.00 and Php25,000.00;

7) Directed to allow the continued use of a Nissan Patrol with Plate No. FEW
508 and a Starex van with Plate No. FFD 991 and should the respondent fail
to deliver said vehicles, respondent is ordered to provide the petitioner
another vehicle which is the one taken by J Bros Tading;

8) Ordered not to dissipate, encumber, alienate, sell, lease or otherwise

dispose of the conjugal assets, or those real properties in the name of Jesus
Chua Garcia only and those in which the conjugal partnership of gains of the
Petitioner Rosalie J. Garcia and respondent have an interest in, especially the
conjugal home located in No. 14, Pitimini St., Capitolville Subdivision,
Bacolod City, and other properties which are conjugal assets or those in
which the conjugal partnership of gains of Petitioner Rosalie J. Garcia and
the respondent have an interest in and listed in Annexes "I," "I-1," and
"I-2," including properties covered by TCT Nos. T-186325 and T-168814;

9) Ordered that the Register of Deeds of Bacolod City and E.B. Magalona
shall be served a copy of this TEMPORARY PROTECTION ORDER and are
ordered not to allow the transfer, sale, encumbrance or disposition of these
above-cited properties to any person, entity or corporation without the
personal presence of petitioner Rosalie J. Garcia, who shall affix her
signature in the presence of the Register of Deeds, due to the fear of
petitioner Rosalie that her signature will be forged in order to effect the
encumbrance or sale of these properties to defraud her or the conjugal
partnership of gains.

In its Order29 dated September 26, 2006, the trial court extended the
aforequoted TPO for another ten (10) days, and gave petitioner a period of
five (5) days within which to show cause why the TPO should not be
renewed, extended, or modified. Upon petitioner's manifestation,30 however,
that he has not received a copy of private respondent's motion to modify/
renew the TPO, the trial court directed in its Order31 dated October 6, 2006
that petitioner be furnished a copy of said motion. Nonetheless, an
Order32 dated a day earlier, October 5, had already been issued renewing the
TPO dated August 23, 2006. The pertinent portion is quoted hereunder:

xxxx

x x x it appearing further that the hearing could not yet be finally

terminated, the Temporary Protection Order issued on August 23, 2006 is
hereby renewed and extended for thirty (30) days and continuously
extended and renewed for thirty (30) days, after each expiration, until
further orders, and subject to such modifications as may be ordered by the
court.

After having received a copy of the foregoing Order, petitioner no longer

submitted the required comment to private respondent's motion for renewal
of the TPO arguing that it would only be an "exercise in futility."33

Proceedings before the CA

During the pendency of Civil Case No. 06-797, petitioner filed before the
Court of Appeals (CA) a petition34 for prohibition (CA-G.R. CEB-SP. No.
01698), with prayer for injunction and temporary restraining order,
challenging (1) the constitutionality of R.A. 9262 for being violative of the
due process and the equal protection clauses, and (2) the validity of the
modified TPO issued in the civil case for being "an unwanted product of an
invalid law."

On May 26, 2006, the appellate court issued a 60-day Temporary Restraining
Order36 (TRO) against the enforcement of the TPO, the amended TPOs and
other orders pursuant thereto.

Subsequently, however, on January 24, 2007, the appellate court

dismissed36 the petition for failure of petitioner to raise the constitutional
issue in his pleadings before the trial court in the civil case, which is clothed
with jurisdiction to resolve the same. Secondly, the challenge to the validity

of R.A. 9262 through a petition for prohibition seeking to annul the

protection orders issued by the trial court constituted a collateral attack on
said law.
His motion for reconsideration of the foregoing Decision having been denied
in the Resolution37 dated August 14, 2007, petitioner is now before us
alleging that –

The Issues

I.

THE COURT OF APPEALS ERRED IN DISMISSING THE PETITION ON THE

THEORY THAT THE ISSUE OF CONSTITUTIONALITY WAS NOT RAISED AT
THE EARLIEST OPPORTUNITY AND THAT, THE PETITION CONSTITUTES A
COLLATERAL ATTACK ON THE VALIDITY OF THE LAW.

II.

THE COURT OF APPEALS COMMITTED SERIOUS ERROR IN FAILING TO

CONCLUDE THAT R.A. 9262 IS DISCRIMINATORY, UNJUST, AND VIOLATIVE
OF THE EQUAL PROTECTION CLAUSE.

III.

THE COURT OF APPEALS COMMITTED GRAVE MISTAKE IN NOT FINDING

THAT R.A. 9262 RUNS COUNTER TO THE DUE PROCESS CLAUSE OF THE
CONSTITUTION.

IV.

THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE LAW DOES
VIOLENCE TO THE POLICY OF THE STATE TO PROTECT THE FAMILY AS A
BASIC SOCIAL INSTITUTION.

V.

THE COURT OF APPEALS SERIOUSLY ERRED IN NOT DECLARING R.A. No.

9262 AS INVALID AND UNCONSTITUTIONAL BECAUSE IT ALLOWS AN
UNDUE DELEGATION OF JUDICIAL POWER TO THE BARANGAY OFFICIALS.38

The Ruling of the Court

Before delving into the arguments propounded by petitioner against the

constitutionality of R.A. 9262, we shall first tackle the propriety of the
dismissal by the appellate court of the petition for prohibition (CA-G.R. CEB-
SP. No. 01698) filed by petitioner.

As a general rule, the question of constitutionality must be raised at the

earliest opportunity so that if not raised in the pleadings, ordinarily it may
not be raised in the trial, and if not raised in the trial court, it will not be
considered on appeal.39 Courts will not anticipate a question of constitutional
law in advance of the necessity of deciding it.40

In defending his failure to attack the constitutionality of R.A. 9262 before the
RTC of Bacolod City, petitioner argues that the Family Court has limited
authority and jurisdiction that is "inadequate to tackle the complex issue of
constitutionality."41

We disagree.

Family Courts have authority and jurisdiction to consider the constitutionality

of a statute.

At the outset, it must be stressed that Family Courts are special courts, of
the same level as Regional Trial Courts. Under R.A. 8369, otherwise known
as the "Family Courts Act of 1997," family courts have exclusive original
jurisdiction to hear and decide cases of domestic violence against women
and children.42 In accordance with said law, the Supreme Court designated
from among the branches of the Regional Trial Courts at least one Family
Court in each of several key cities identified.43 To achieve harmony with the
first mentioned law, Section 7 of R.A. 9262 now provides that Regional Trial
Courts designated as Family Courts shall have original and exclusive
jurisdiction over cases of VAWC defined under the latter law, viz:

SEC. 7. Venue. – The Regional Trial Court designated as a Family Court shall
have original and exclusive jurisdiction over cases of violence against women
and their children under this law. In the absence of such court in the place
where the offense was committed, the case shall be filed in the Regional Trial
Court where the crime or any of its elements was committed at the option of
the complainant. (Emphasis supplied)

Inspite of its designation as a family court, the RTC of Bacolod City remains
possessed of authority as a court of general original jurisdiction to pass upon
all kinds of cases whether civil, criminal, special proceedings, land
registration, guardianship, naturalization, admiralty or insolvency.44 It is
settled that RTCs have jurisdiction to resolve the constitutionality of a
statute,45 "this authority being embraced in the general definition of the
judicial power to determine what are the valid and binding laws by the
criterion of their conformity to the fundamental law."46 The Constitution
vests the power of judicial review or the power to declare the
constitutionality or validity of a law, treaty, international or executive
agreement, presidential decree, order, instruction, ordinance, or regulation
not only in this Court, but in all RTCs.47 We said in J.M. Tuason and Co., Inc.
v. CA48 that, "plainly the Constitution contemplates that the inferior courts
should have jurisdiction in cases involving constitutionality of any treaty or
law, for it speaks of appellate review of final judgments of inferior courts in
cases where such constitutionality happens to be in issue." Section 5, Article
VIII of the 1987 Constitution reads in part as follows:

SEC. 5. The Supreme Court shall have the following powers:

xxx

2. Review, revise, reverse, modify, or affirm on appeal or certiorari, as the

law or the Rules of Court may provide, final judgments and orders of lower
courts in:

a. All cases in which the constitutionality or validity of any treaty,

international or executive agreement, law, presidential decree, proclamation,
order, instruction, ordinance, or regulation is in question.

xxxx

Thus, contrary to the posturing of petitioner, the issue of constitutionality of

R.A. 9262 could have been raised at the earliest opportunity in his
Opposition to the petition for protection order before the RTC of Bacolod
City, which had jurisdiction to determine the same, subject to the review of
this Court.

Section 20 of A.M. No. 04-10-11-SC, the Rule on Violence Against Women

and Their Children, lays down a new kind of procedure requiring the
respondent to file an opposition to the petition and not an answer.49 Thus:

SEC. 20. Opposition to petition. – (a) The respondent may file an opposition
to the petition which he himself shall verify. It must be accompanied by the
affidavits of witnesses and shall show cause why a temporary or permanent
protection order should not be issued.

(b) Respondent shall not include in the opposition any counterclaim, cross-
claim or third-party complaint, but any cause of action which could be the
subject thereof may be litigated in a separate civil action. (Emphasis
supplied)

We cannot subscribe to the theory espoused by petitioner that, since a

counterclaim, cross-claim and third-party complaint are to be excluded from
the opposition, the issue of constitutionality cannot likewise be raised
therein. A counterclaim is defined as any claim for money or other relief
which a defending party may have against an opposing party.50 A cross-
claim, on the other hand, is any claim by one party against a co-party
arising out of the transaction or occurrence that is the subject matter either
of the original action or of a counterclaim therein.51 Finally, a third-party
complaint is a claim that a defending party may, with leave of court, file
against a person not a party to the action for contribution, indemnity,
subrogation or any other relief, in respect of his opponent's claim.52 As
pointed out by Justice Teresita J. Leonardo-De Castro, the unconstitutionality
of a statute is not a cause of action that could be the subject of a
counterclaim, cross-claim or a third-party complaint. Therefore, it is not
prohibited from being raised in the opposition in view of the familiar maxim
expressio unius est exclusio alterius.

Moreover, it cannot be denied that this issue affects the resolution of the
case a quo because the right of private respondent to a protection order is
founded solely on the very statute the validity of which is being
attacked53 by petitioner who has sustained, or will sustain, direct injury as a
result of its enforcement. The alleged unconstitutionality of R.A. 9262 is, for
all intents and purposes, a valid cause for the non-issuance of a protection
order.

That the proceedings in Civil Case No. 06-797 are summary in nature should
not have deterred petitioner from raising the same in his Opposition. The
question relative to the constitutionality of a statute is one of law which does
not need to be supported by evidence.54 Be that as it may, Section 25 of
A.M. No. 04-10-11-SC nonetheless allows the conduct of a hearing to
determine legal issues, among others, viz:
SEC. 25. Order for further hearing. - In case the court determines the need
for further hearing, it may issue an order containing the following:

(a) Facts undisputed and admitted;

(b) Factual and legal issues to be resolved;

(c) Evidence, including objects and documents that have been marked and
will be presented;

(d) Names of witnesses who will be ordered to present their direct

testimonies in the form of affidavits; and

(e) Schedule of the presentation of evidence by both parties which shall be

done in one day, to the extent possible, within the 30-day period of the
effectivity of the temporary protection order issued. (Emphasis supplied)

To obviate potential dangers that may arise concomitant to the conduct of a

hearing when necessary, Section 26 (b) of A.M. No. 04-10-11-SC provides
that if a temporary protection order issued is due to expire, the trial court
may extend or renew the said order for a period of thirty (30) days each
time until final judgment is rendered. It may likewise modify the extended or
renewed temporary protection order as may be necessary to meet the needs
of the parties. With the private respondent given ample protection, petitioner
could proceed to litigate the constitutional issues, without necessarily
running afoul of the very purpose for the adoption of the rules on summary
procedure.

In view of all the foregoing, the appellate court correctly dismissed the
petition for prohibition with prayer for injunction and temporary restraining
order (CA-G.R. CEB - SP. No. 01698). Petitioner may have proceeded upon
an honest belief that if he finds succor in a superior court, he could be
granted an injunctive relief. However, Section 22(j) of A.M. No. 04-10-11-SC
expressly disallows the filing of a petition for certiorari, mandamus or
prohibition against any interlocutory order issued by the trial court. Hence,
the 60-day TRO issued by the appellate court in this case against the
enforcement of the TPO, the amended TPOs and other orders pursuant
thereto was improper, and it effectively hindered the case from taking its
normal course in an expeditious and summary manner.
As the rules stand, a review of the case by appeal or certiorari before
judgment is prohibited. Moreover, if the appeal of a judgment granting
permanent protection shall not stay its enforcement,55 with more reason that
a TPO, which is valid only for thirty (30) days at a time,56 should not be
enjoined.

The mere fact that a statute is alleged to be unconstitutional or invalid, does

not of itself entitle a litigant to have the same enjoined.57 In Younger v.
Harris, Jr.,58 the Supreme Court of the United States declared, thus:

Federal injunctions against state criminal statutes, either in their entirety or

with respect to their separate and distinct prohibitions, are not to be granted
as a matter of course, even if such statutes are unconstitutional. No citizen
or member of the community is immune from prosecution, in good faith, for
his alleged criminal acts. The imminence of such a prosecution even though
alleged to be unauthorized and, hence, unlawful is not alone ground for relief
in equity which exerts its extraordinary powers only to prevent irreparable
injury to the plaintiff who seeks its aid. (Citations omitted)

The sole objective of injunctions is to preserve the status quo until the trial
court hears fully the merits of the case. It bears stressing, however, that
protection orders are granted ex parte so as to protect women and their
children from acts of violence. To issue an injunction against such orders will
defeat the very purpose of the law against VAWC.

Notwithstanding all these procedural flaws, we shall not shirk from our
obligation to determine novel issues, or issues of first impression, with far-
reaching implications. We have, time and again, discharged our solemn duty
as final arbiter of constitutional issues, and with more reason now, in view of
private respondent's plea in her Comment59 to the instant Petition that we
should put the challenge to the constitutionality of R.A. 9262 to rest. And so
we shall.

Intent of Congress in enacting R.A. 9262.

Petitioner claims that since R.A. 9262 is intended to prevent and criminalize
spousal and child abuse, which could very well be committed by either the
husband or the wife, gender alone is not enough basis to deprive the
husband/father of the remedies under the law.60
A perusal of the deliberations of Congress on Senate Bill No. 2723,61 which
became R.A. 9262, reveals that while the sponsor, Senator Luisa Pimentel-
Ejercito (better known as Senator Loi Estrada), had originally proposed what
she called a "synthesized measure"62 – an amalgamation of two measures,
namely, the "Anti-Domestic Violence Act" and the "Anti-Abuse of Women in
Intimate Relationships Act"63 – providing protection to "all family members,
leaving no one in isolation" but at the same time giving special attention to
women as the "usual victims" of violence and abuse,64 nonetheless, it was
eventually agreed that men be denied protection under the same measure.
We quote pertinent portions of the deliberations:

Wednesday, December 10, 2003

Senator Pangilinan. I just wanted to place this on record, Mr. President.

Some women's groups have expressed concerns and relayed these concerns
to me that if we are to include domestic violence apart from against women
as well as other members of the household, including children or the
husband, they fear that this would weaken the efforts to address domestic
violence of which the main victims or the bulk of the victims really are the
wives, the spouses or the female partners in a relationship. We would like to
place that on record. How does the good Senator respond to this kind of
observation?

Senator Estrada. Yes, Mr. President, there is this group of women who call
themselves "WIIR" Women in Intimate Relationship. They do not want to
include men in this domestic violence. But plenty of men are also being
abused by women. I am playing safe so I placed here members of the
family, prescribing penalties therefor and providing protective measures for
victims. This includes the men, children, live-in, common-law wives, and
those related with the family.65

xxx

Wednesday, January 14, 2004

xxxx

The President Pro Tempore. x x x

Also, may the Chair remind the group that there was the discussion whether
to limit this to women and not to families which was the issue of the AWIR
group. The understanding that I have is that we would be having a broader
scope rather than just women, if I remember correctly, Madam sponsor.

Senator Estrada. Yes, Mr. President.

As a matter of fact, that was brought up by Senator Pangilinan during the

interpellation period.

I think Senator Sotto has something to say to that.

Senator Legarda. Mr. President, the reason I am in support of the measure.

Do not get me wrong. However, I believe that there is a need to protect
women's rights especially in the domestic environment.

As I said earlier, there are nameless, countless, voiceless women who have
not had the opportunity to file a case against their spouses, their live-in
partners after years, if not decade, of battery and abuse. If we broaden the
scope to include even the men, assuming they can at all be abused by the
women or their spouses, then it would not equalize the already difficult
situation for women, Mr. President.

I think that the sponsor, based on our earlier conversations, concurs with
this position. I am sure that the men in this Chamber who love their women
in their lives so dearly will agree with this representation. Whether we like it
or not, it is an unequal world. Whether we like it or not, no matter how
empowered the women are, we are not given equal opportunities especially
in the domestic environment where the macho Filipino man would always
feel that he is stronger, more superior to the Filipino woman.

xxxx

The President Pro Tempore. What does the sponsor say?

Senator Estrada. Mr. President, before accepting this, the committee came
up with this bill because the family members have been included in this
proposed measure since the other members of the family other than women
are also possible victims of violence. While women are most likely the
intended victims, one reason incidentally why the measure focuses on
women, the fact remains that in some relatively few cases, men also stand
to be victimized and that children are almost always the helpless victims of
violence. I am worried that there may not be enough protection extended to
other family members particularly children who are excluded. Although
Republic Act No. 7610, for instance, more or less, addresses the special
needs of abused children. The same law is inadequate. Protection orders for
one are not available in said law.

I am aware that some groups are apprehensive about granting the same
protection to men, fearing that they may use this law to justify their abusive
behavior against women. However, we should also recognize that there are
established procedures and standards in our courts which give credence to
evidentiary support and cannot just arbitrarily and whimsically entertain
baseless complaints.

Mr. President, this measure is intended to harmonize family relations and to

protect the family as the basic social institution. Though I recognize the
unequal power relations between men and women in our society, I believe
we have an obligation to uphold inherent rights and dignity of both husband
and wife and their immediate family members, particularly children.

While I prefer to focus mainly on women, I was compelled to include other

family members as a critical input arrived at after a series of consultations/
meetings with various NGOs, experts, sports groups and other affected
sectors, Mr. President.

Senator Sotto. Mr. President.

The President Pro Tempore. Yes, with the permission of the other senators.

Senator Sotto. Yes, with the permission of the two ladies on the Floor.

The President Pro Tempore. Yes, Sen. Vicente C. Sotto III is recognized.

Senator Sotto. I presume that the effect of the proposed amendment of

Senator Legarda would be removing the "men and children" in this particular
bill and focus specifically on women alone. That will be the net effect of that
proposed amendment. Hearing the rationale mentioned by the distinguished
sponsor, Sen. Luisa "Loi" Ejercito Estrada, I am not sure now whether she is
inclined to accept the proposed amendment of Senator Legarda.

I am willing to wait whether she is accepting this or not because if she is

going to accept this, I will propose an amendment to the amendment rather
than object to the amendment, Mr. President.
xxxx

Senator Estrada. The amendment is accepted, Mr. President.

The President Pro Tempore. Is there any objection?

xxxx

Senator Sotto. x x x May I propose an amendment to the amendment.

The President Pro Tempore. Before we act on the amendment?

Senator Sotto. Yes, Mr. President.

The President Pro Tempore. Yes, please proceed.

Senator Sotto. Mr. President, I am inclined to believe the rationale used by

the distinguished proponent of the amendment. As a matter of fact, I tend to
agree. Kung may maaabuso, mas malamang iyong babae kaysa sa lalake. At
saka iyong mga lalake, puwede na talagang magulpi iyan. Okey lang iyan.
But I cannot agree that we remove the children from this particular
measure.

So, if I may propose an amendment –

The President Pro Tempore. To the amendment.

Senator Sotto. – more than the women, the children are very much abused.
As a matter of fact, it is not limited to minors. The abuse is not limited to
seven, six, 5-year-old children. I have seen 14, 15-year-old children being
abused by their fathers, even by their mothers. And it breaks my heart to
find out about these things.

Because of the inadequate existing law on abuse of children, this particular

measure will update that. It will enhance and hopefully prevent the abuse of
children and not only women.

SOTTO-LEGARDA AMENDMENTS

Therefore, may I propose an amendment that, yes, we remove the aspect of

the men in the bill but not the children.
Senator Legarda. I agree, Mr. President, with the Minority Leader.

The President Pro Tempore. Effectively then, it will be women AND

CHILDREN.

Senator Sotto. Yes, Mr. President.

Senator Estrada. It is accepted, Mr. President.

The President Pro Tempore. Is there any objection? [Silence] There being
none, the amendment, as amended, is approved.66

It is settled that courts are not concerned with the wisdom, justice, policy, or
expediency of a statute.67 Hence, we dare not venture into the real
motivations and wisdom of the members of Congress in limiting the
protection against violence and abuse under R.A. 9262 to women and
children only. No proper challenge on said grounds may be entertained in
this proceeding. Congress has made its choice and it is not our prerogative
to supplant this judgment. The choice may be perceived as erroneous but
even then, the remedy against it is to seek its amendment or repeal by the
legislative. By the principle of separation of powers, it is the legislative that
determines the necessity, adequacy, wisdom and expediency of any law.
68 We only step in when there is a violation of the Constitution. However,

none was sufficiently shown in this case.

R.A. 9262 does not violate the guaranty of equal protection of the laws.

Equal protection simply requires that all persons or things similarly situated
should be treated alike, both as to rights conferred and responsibilities
imposed. The oft-repeated disquisition in the early case of Victoriano v.
Elizalde Rope Workers' Union69 is instructive:

The guaranty of equal protection of the laws is not a guaranty of equality in

the application of the laws upon all citizens of the state. It is not, therefore,
a requirement, in order to avoid the constitutional prohibition against
inequality, that every man, woman and child should be affected alike by a
statute. Equality of operation of statutes does not mean indiscriminate
operation on persons merely as such, but on persons according to the
circumstances surrounding them. It guarantees equality, not identity of
rights. The Constitution does not require that things which are different in
fact be treated in law as though they were the same. The equal protection
clause does not forbid discrimination as to things that are different. It does
not prohibit legislation which is limited either in the object to which it is
directed or by the territory within which it is to operate.

The equal protection of the laws clause of the Constitution allows

classification. Classification in law, as in the other departments of knowledge
or practice, is the grouping of things in speculation or practice because they
agree with one another in certain particulars. A law is not invalid because of
simple inequality. The very idea of classification is that of inequality, so that
it goes without saying that the mere fact of inequality in no manner
determines the matter of constitutionality. All that is required of a valid
classification is that it be reasonable, which means that the classification
should be based on substantial distinctions which make for real differences;
that it must be germane to the purpose of the law; that it must not be
limited to existing conditions only; and that it must apply equally to each
member of the class. This Court has held that the standard is satisfied if the
classification or distinction is based on a reasonable foundation or rational
basis and is not palpably arbitrary. (Emphasis supplied)

Measured against the foregoing jurisprudential yardstick, we find that R.A.

9262 is based on a valid classification as shall hereinafter be discussed and,
as such, did not violate the equal protection clause by favoring women over
men as victims of violence and abuse to whom the State extends its
protection.

I. R.A. 9262 rests on substantial distinctions.

The unequal power relationship between women and men; the fact that
women are more likely than men to be victims of violence; and the
widespread gender bias and prejudice against women all make for real
differences justifying the classification under the law. As Justice McIntyre
succinctly states, "the accommodation of differences ... is the essence of
true equality."70

A. Unequal power relationship between men and women

According to the Philippine Commission on Women (the National Machinery

for Gender Equality and Women's Empowerment), violence against women
(VAW) is deemed to be closely linked with the unequal power relationship
between women and men otherwise known as "gender-based violence".
Societal norms and traditions dictate people to think men are the leaders,
pursuers, providers, and take on dominant roles in society while women are
nurturers, men's companions and supporters, and take on subordinate roles
in society. This perception leads to men gaining more power over women.
With power comes the need to control to retain that power. And VAW is a
form of men's expression of controlling women to retain power.71

The United Nations, which has long recognized VAW as a human rights issue,
passed its Resolution 48/104 on the Declaration on Elimination of Violence
Against Women on December 20, 1993 stating that "violence against women
is a manifestation of historically unequal power relations between men and
women, which have led to domination over and discrimination against
women by men and to the prevention of the full advancement of women,
and that violence against women is one of the crucial social mechanisms by
which women are forced into subordinate positions, compared with men."72

Then Chief Justice Reynato S. Puno traced the historical and social context of
gender-based violence and developments in advocacies to eradicate VAW, in
his remarks delivered during the Joint Launching of R.A. 9262 and its
Implementing Rules last October 27, 2004, the pertinent portions of which
are quoted hereunder:

History reveals that most societies sanctioned the use of violence against
women. The patriarch of a family was accorded the right to use force on
members of the family under his control. I quote the early studies:

Traditions subordinating women have a long history rooted in patriarchy –

the institutional rule of men. Women were seen in virtually all societies to be
naturally inferior both physically and intellectually. In ancient Western
societies, women whether slave, concubine or wife, were under the authority
of men. In law, they were treated as property.

The Roman concept of patria potestas allowed the husband to beat, or even
kill, his wife if she endangered his property right over her. Judaism,
Christianity and other religions oriented towards the patriarchal family
strengthened the male dominated structure of society.

English feudal law reinforced the tradition of male control over women. Even
the eminent Blackstone has been quoted in his commentaries as saying
husband and wife were one and that one was the husband. However, in the
late 1500s and through the entire 1600s, English common law began to limit
the right of husbands to chastise their wives. Thus, common law developed
the rule of thumb, which allowed husbands to beat their wives with a rod or
stick no thicker than their thumb.

In the later part of the 19th century, legal recognition of these rights to
chastise wives or inflict corporeal punishment ceased. Even then, the
preservation of the family was given more importance than preventing
violence to women.

The metamorphosis of the law on violence in the United States followed that
of the English common law. In 1871, the Supreme Court of Alabama became
the first appellate court to strike down the common law right of a husband to
beat his wife:

The privilege, ancient though it may be, to beat one's wife with a stick, to
pull her hair, choke her, spit in her face or kick her about the floor, or to
inflict upon her like indignities, is not now acknowledged by our law... In
person, the wife is entitled to the same protection of the law that the
husband can invoke for himself.

As time marched on, the women's advocacy movement became more

organized. The temperance leagues initiated it. These leagues had a simple
focus. They considered the evils of alcoholism as the root cause of wife
abuse. Hence, they demonstrated and picketed saloons, bars and their
husbands' other watering holes. Soon, however, their crusade was joined by
suffragette movements, expanding the liberation movement's agenda. They
fought for women's right to vote, to own property, and more. Since then, the
feminist movement was on the roll.

The feminist movement exposed the private invisibility of the domestic

violence to the public gaze. They succeeded in transforming the issue into an
important public concern. No less than the United States Supreme Court, in
1992 case Planned Parenthood v. Casey, noted:

In an average 12-month period in this country, approximately two million

women are the victims of severe assaults by their male partners. In a 1985
survey, women reported that nearly one of every eight husbands had
assaulted their wives during the past year. The [American Medical
Association] views these figures as "marked underestimates," because the
nature of these incidents discourages women from reporting them, and
because surveys typically exclude the very poor, those who do not speak
English well, and women who are homeless or in institutions or hospitals
when the survey is conducted. According to the AMA, "researchers on family
violence agree that the true incidence of partner violence is probably double
the above estimates; or four million severely assaulted women per year."

Studies on prevalence suggest that from one-fifth to one-third of all women

will be physically assaulted by a partner or ex-partner during their lifetime...
Thus on an average day in the United States, nearly 11,000 women are
severely assaulted by their male partners. Many of these incidents involve
sexual assault... In families where wife beating takes place, moreover, child
abuse is often present as well.

Other studies fill in the rest of this troubling picture. Physical violence is only
the most visible form of abuse. Psychological abuse, particularly forced social
and economic isolation of women, is also common.

Many victims of domestic violence remain with their abusers, perhaps

because they perceive no superior alternative...Many abused women who
find temporary refuge in shelters return to their husbands, in large part
because they have no other source of income... Returning to one's abuser
can be dangerous. Recent Federal Bureau of Investigation statistics disclose
that 8.8 percent of all homicide victims in the United States are killed by
their spouses...Thirty percent of female homicide victims are killed by their
male partners.

Finally in 1994, the United States Congress enacted the Violence Against
Women Act.

In the International front, the women's struggle for equality was no less
successful. The United States Charter and the Universal Declaration of
Human Rights affirmed the equality of all human beings. In 1979, the UN
General Assembly adopted the landmark Convention on the Elimination of all
Forms of Discrimination Against Women (CEDAW). In 1993, the UN General
Assembly also adopted the Declaration on the Elimination of Violence Against
Women. World conferences on the role and rights of women have been
regularly held in Mexico City, Copenhagen, Nairobi and Beijing. The UN itself
established a Commission on the Status of Women.

The Philippines has been in cadence with the half – and full – steps of all
these women's movements. No less than Section 14, Article II of our 1987
Constitution mandates the State to recognize the role of women in nation
building and to ensure the fundamental equality before the law of women
and men. Our Senate has ratified the CEDAW as well as the Convention on
the Rights of the Child and its two protocols. To cap it all, Congress, on
March 8, 2004, enacted Rep. Act No. 9262, entitled "An Act Defining
Violence Against Women and Their Children, Providing for Protective
Measures for Victims, Prescribing Penalties therefor and for other
Purposes." (Citations omitted)

B. Women are the "usual" and "most likely"

victims of violence.

At the time of the presentation of Senate Bill No. 2723, official statistics on
violence against women and children show that –

x x x physical injuries had the highest number of cases at 5,058 in 2002

representing 55.63% of total cases reported (9,903). And for the first
semester of 2003, there were 2,381 reported cases out of 4,354 cases which
represent 54.31%. xxx (T)he total number of women in especially difficult
circumstances served by the Department of Social Welfare and Development
(DSWD) for the year 2002, there are 1,417 physically abused/maltreated
cases out of the total of 5,608 cases. xxx (T)here are 1,091 DSWD cases out
of a total number of 3,471 cases for the first semester of 2003. Female
violence comprised more than 90% of all forms of abuse and violence and
more than 90% of these reported cases were committed by the women's
intimate partners such as their husbands and live-in partners.73

Recently, the Philippine Commission on Women presented comparative

statistics on violence against women across an eight-year period from 2004
to August of 2011 with violations under R.A. 9262 ranking first among the
different VAW categories since its implementation in 2004,74 thus:

Table 1. Annual Comparative Statistics on Violence Against Women, 2004 -

2011*

Reported
2004 2005 2006 2007 2008 2009 2010 2011
Cases

Rape 997 927 659 837 811 770 1,042 832

Incestuo
38 46 26 22 28 27 19 23
us Rape

Attempte
194 148 185 147 204 167 268 201
d Rape

Acts of
Lascivio 580 536 382 358 445 485 745 625
usness

Physical
3,553 2,335 1,892 1,505 1,307 1,498 2,018 1,588
Injuries

Sexual
Harassm 53 37 38 46 18 54 83 63
ent

RA 9262 218 924 1,269 2,387 3,599 5,285 9,974 9,021

Threats 319 223 199 182 220 208 374 213

Seductio
62 19 29 30 19 19 25 15
n

Concubi
121 102 93 109 109 99 158 128
nage

RA 9208 17 11 16 24 34 152 190 62

 Abductio
n
/ 16 34 23 28 18 25 22
Kidnappi
ng 29

Unjust
90 50 59 59 83 703 183 155
Vexation

Total 6,271 5,374 4,881 5,729 6,905 9,485 15,104 12,948

*2011 report covers only from January to August

Source: Philippine National Police – Women and Children Protection Center

(WCPC)

On the other hand, no reliable estimates may be obtained on domestic abuse

and violence against men in the Philippines because incidents thereof are
relatively low and, perhaps, because many men will not even attempt to
report the situation. In the United Kingdom, 32% of women who had ever
experienced domestic violence did so four or five (or more) times, compared
with 11% of the smaller number of men who had ever experienced domestic
violence; and women constituted 89% of all those who had experienced 4 or
more incidents of domestic violence.75 Statistics in Canada show that spousal
violence by a woman against a man is less likely to cause injury than the
other way around (18 percent versus 44 percent). Men, who experience
violence from their spouses are much less likely to live in fear of violence at
the hands of their spouses, and much less likely to experience sexual
assault. In fact, many cases of physical violence by a woman against a
spouse are in self-defense or the result of many years of physical or
emotional abuse.76

While there are, indeed, relatively few cases of violence and abuse
perpetrated against men in the Philippines, the same cannot render R.A.
9262 invalid.
In a 1960 case involving the violation of a city ordinance requiring drivers of
animal-drawn vehicles to pick up, gather and deposit in receptacles the
manure emitted or discharged by their vehicle-drawing animals in any public
highways, streets, plazas, parks or alleys, said ordinance was challenged as
violative of the guaranty of equal protection of laws as its application is
limited to owners and drivers of vehicle-drawing animals and not to those
animals, although not utilized, but similarly pass through the same streets.

The ordinance was upheld as a valid classification for the reason that, while
there may be non-vehicle-drawing animals that also traverse the city roads,
"but their number must be negligible and their appearance therein merely
occasional, compared to the rig-drawing ones, as not to constitute a menace
to the health of the community."77 The mere fact that the legislative
classification may result in actual inequality is not violative of the right to
equal protection, for every classification of persons or things for regulation
by law produces inequality in some degree, but the law is not thereby
rendered invalid.78

C. Gender bias and prejudices

From the initial report to the police through prosecution, trial, and
sentencing, crimes against women are often treated differently and less
seriously than other crimes. This was argued by then United States Senator
Joseph R. Biden, Jr., now Vice President, chief sponsor of the Violence
Against Women Act (VAWA), in defending the civil rights remedy as a valid
exercise of the U.S. Congress' authority under the Commerce and Equal
Protection Clauses. He stressed that the widespread gender bias in the U.S.
has institutionalized historic prejudices against victims of rape or domestic
violence, subjecting them to "double victimization" – first at the hands of the
offender and then of the legal system.79

Our own Senator Loi Estrada lamented in her Sponsorship Speech for Senate
Bill No. 2723 that "(w)henever violence occurs in the family, the police treat
it as a private matter and advise the parties to settle the conflict themselves.
Once the complainant brings the case to the prosecutor, the latter is hesitant
to file the complaint for fear that it might later be withdrawn. This lack of
response or reluctance to be involved by the police and prosecution
reinforces the escalating, recurring and often serious nature of domestic
violence."80
Sadly, our own courts, as well, have exhibited prejudices and biases against
our women.

In a recent case resolved on March 9, 2011, we fined RTC Judge Venancio J.

Amila for Conduct Unbecoming of a Judge. He used derogatory and
irreverent language in reference to the complainant in a petition for TPO and
PPO under R.A. 9262, calling her as "only a live-in partner" and presenting
her as an "opportunist" and a "mistress" in an "illegitimate relationship."
Judge Amila even called her a "prostitute," and accused her of being
motivated by "insatiable greed" and of absconding with the contested
property.81 Such remarks betrayed Judge Amila's prejudices and lack of
gender sensitivity.

The enactment of R.A. 9262 aims to address the discrimination brought

about by biases and prejudices against women. As emphasized by the
CEDAW Committee on the Elimination of Discrimination against Women,
addressing or correcting discrimination through specific measures focused on
women does not discriminate against men.82 Petitioner's contention,
83 therefore, that R.A. 9262 is discriminatory and that it is an "anti-male,"

"husband-bashing," and "hate-men" law deserves scant consideration. As a

State Party to the CEDAW, the Philippines bound itself to take all appropriate
measures "to modify the social and cultural patterns of conduct of men and
women, with a view to achieving the elimination of prejudices and
customary and all other practices which are based on the idea of the
inferiority or the superiority of either of the sexes or on stereotyped roles for
men and women."84 Justice Puno correctly pointed out that "(t)he paradigm
shift changing the character of domestic violence from a private affair to a
public offense will require the development of a distinct mindset on the part
of the police, the prosecution and the judges."85

II. The classification is germane to the purpose of the law.

The distinction between men and women is germane to the purpose of R.A.
9262, which is to address violence committed against women and children,
spelled out in its Declaration of Policy, as follows:

SEC. 2. Declaration of Policy. – It is hereby declared that the State values

the dignity of women and children and guarantees full respect for human
rights. The State also recognizes the need to protect the family and its
members particularly women and children, from violence and threats to their
personal safety and security.
Towards this end, the State shall exert efforts to address violence committed
against women and children in keeping with the fundamental freedoms
guaranteed under the Constitution and the provisions of the Universal
Declaration of Human Rights, the Convention on the Elimination of All Forms
of Discrimination Against Women, Convention on the Rights of the Child and
other international human rights instruments of which the Philippines is a
party.

In 1979, the U.N. General Assembly adopted the CEDAW, which the
Philippines ratified on August 5, 1981. Subsequently, the Optional Protocol to
the CEDAW was also ratified by the Philippines on October 6, 2003.86 This
Convention mandates that State parties shall accord to women equality with
men before the law87 and shall take all appropriate measures to eliminate
discrimination against women in all matters relating to marriage and family
relations on the basis of equality of men and women.88 The Philippines
likewise ratified the Convention on the Rights of the Child and its two
protocols.89 It is, thus, bound by said Conventions and their respective
protocols.

III. The classification is not limited to existing

conditions only, and apply equally to all members

Moreover, the application of R.A. 9262 is not limited to the existing

conditions when it was promulgated, but to future conditions as well, for as
long as the safety and security of women and their children are threatened
by violence and abuse.

R.A. 9262 applies equally to all women and children who suffer violence and
abuse. Section 3 thereof defines VAWC as:

x x x any act or a series of acts committed by any person against a woman

who is his wife, former wife, or against a woman with whom the person has
or had a sexual or dating relationship, or with whom he has a common child,
or against her child whether legitimate or illegitimate, within or without the
family abode, which result in or is likely to result in physical, sexual,
psychological harm or suffering, or economic abuse including threats of such
acts, battery, assault, coercion, harassment or arbitrary deprivation of
liberty. It includes, but is not limited to, the following acts:

A. "Physical Violence" refers to acts that include bodily or physical harm;

B. "Sexual violence" refers to an act which is sexual in nature, committed
against a woman or her child. It includes, but is not limited to:

a) rape, sexual harassment, acts of lasciviousness, treating a woman or her

child as a sex object, making demeaning and sexually suggestive remarks,
physically attacking the sexual parts of the victim's body, forcing her/him to
watch obscene publications and indecent shows or forcing the woman or her
child to do indecent acts and/or make films thereof, forcing the wife and
mistress/lover to live in the conjugal home or sleep together in the same
room with the abuser;

b) acts causing or attempting to cause the victim to engage in any sexual

activity by force, threat of force, physical or other harm or threat of physical
or other harm or coercion;

c) Prostituting the woman or child.

C. "Psychological violence" refers to acts or omissions causing or likely to

cause mental or emotional suffering of the victim such as but not limited to
intimidation, harassment, stalking, damage to property, public ridicule or
humiliation, repeated verbal abuse and marital infidelity. It includes causing
or allowing the victim to witness the physical, sexual or psychological abuse
of a member of the family to which the victim belongs, or to witness
pornography in any form or to witness abusive injury to pets or to unlawful
or unwanted deprivation of the right to custody and/or visitation of common
children.

D. "Economic abuse" refers to acts that make or attempt to make a woman

financially dependent which includes, but is not limited to the following:

1. withdrawal of financial support or preventing the victim from engaging in

any legitimate profession, occupation, business or activity, except in cases
wherein the other spouse/partner objects on valid, serious and moral
grounds as defined in Article 73 of the Family Code;

2. deprivation or threat of deprivation of financial resources and the right to

the use and enjoyment of the conjugal, community or property owned in
common;

3. destroying household property;

4. controlling the victims' own money or properties or solely controlling the
conjugal money or properties.

It should be stressed that the acts enumerated in the aforequoted provision

are attributable to research that has exposed the dimensions and dynamics
of battery. The acts described here are also found in the U.N. Declaration on
the Elimination of Violence Against Women.90 Hence, the argument advanced
by petitioner that the definition of what constitutes abuse removes the
difference between violent action and simple marital tiffs is tenuous.

There is nothing in the definition of VAWC that is vague and ambiguous that
will confuse petitioner in his defense. The acts enumerated above are easily
understood and provide adequate contrast between the innocent and the
prohibited acts. They are worded with sufficient definiteness that persons of
ordinary intelligence can understand what conduct is prohibited, and need
not guess at its meaning nor differ in its application.91 Yet, petitioner
insists92 that phrases like "depriving or threatening to deprive the woman or
her child of a legal right," "solely controlling the conjugal or common money
or properties," "marital infidelity," and "causing mental or emotional
anguish" are so vague that they make every quarrel a case of spousal abuse.
However, we have stressed that the "vagueness" doctrine merely requires a
reasonable degree of certainty for the statute to be upheld – not absolute
precision or mathematical exactitude, as petitioner seems to suggest.
Flexibility, rather than meticulous specificity, is permissible as long as the
metes and bounds of the statute are clearly delineated. An act will not be
held invalid merely because it might have been more explicit in its wordings
or detailed in its provisions.93

There is likewise no merit to the contention that R.A. 9262 singles out the
husband or father as the culprit. As defined above, VAWC may likewise be
committed "against a woman with whom the person has or had a sexual or
dating relationship." Clearly, the use of the gender-neutral word "person"
who has or had a sexual or dating relationship with the woman encompasses
even lesbian relationships. Moreover, while the law provides that the
offender be related or connected to the victim by marriage, former marriage,
or a sexual or dating relationship, it does not preclude the application of the
principle of conspiracy under the Revised Penal Code (RPC). Thus, in the
case of Go-Tan v. Spouses Tan,94 the parents-in-law of Sharica Mari L. Go-
Tan, the victim, were held to be proper respondents in the case filed by the
latter upon the allegation that they and their son (Go-Tan's husband) had
community of design and purpose in tormenting her by giving her
insufficient financial support; harassing and pressuring her to be ejected
from the family home; and in repeatedly abusing her verbally, emotionally,
mentally and physically.

R.A. 9262 is not violative of the


due process clause of the Constitution.

Petitioner bewails the disregard of R.A. 9262, specifically in the issuance of

POs, of all protections afforded by the due process clause of the
Constitution. Says he: "On the basis of unsubstantiated allegations, and
practically no opportunity to respond, the husband is stripped of family,
property, guns, money, children, job, future employment and reputation, all
in a matter of seconds, without an inkling of what happened."95

A protection order is an order issued to prevent further acts of violence

against women and their children, their family or household members, and
to grant other necessary reliefs. Its purpose is to safeguard the offended
parties from further harm, minimize any disruption in their daily life and
facilitate the opportunity and ability to regain control of their life.96

"The scope of reliefs in protection orders is broadened to ensure that the

victim or offended party is afforded all the remedies necessary to curtail
access by a perpetrator to the victim. This serves to safeguard the victim
from greater risk of violence; to accord the victim and any designated family
or household member safety in the family residence, and to prevent the
perpetrator from committing acts that jeopardize the employment and
support of the victim. It also enables the court to award temporary custody
of minor children to protect the children from violence, to prevent their
abduction by the perpetrator and to ensure their financial support."97

The rules require that petitions for protection order be in writing, signed and
verified by the petitioner98 thereby undertaking full responsibility, criminal or
civil, for every allegation therein. Since "time is of the essence in cases of
VAWC if further violence is to be prevented,"99 the court is authorized to
issue ex parte a TPO after raffle but before notice and hearing when the life,
limb or property of the victim is in jeopardy and there is reasonable ground
to believe that the order is necessary to protect the victim from the
immediate and imminent danger of VAWC or to prevent such violence, which
is about to recur.100
There need not be any fear that the judge may have no rational basis to
issue an ex parte order. The victim is required not only to verify the
allegations in the petition, but also to attach her witnesses' affidavits to the
petition.101

The grant of a TPO ex parte cannot, therefore, be challenged as violative of

the right to due process. Just like a writ of preliminary attachment which is
issued without notice and hearing because the time in which the hearing will
take could be enough to enable the defendant to abscond or dispose of his
property,102 in the same way, the victim of VAWC may already have suffered
harrowing experiences in the hands of her tormentor, and possibly even
death, if notice and hearing were required before such acts could be
prevented. It is a constitutional commonplace that the ordinary
requirements of procedural due process must yield to the necessities of
protecting vital public interests,103 among which is protection of women and
children from violence and threats to their personal safety and security.

It should be pointed out that when the TPO is issued ex parte, the court shall
likewise order that notice be immediately given to the respondent directing
him to file an opposition within five (5) days from service. Moreover, the
court shall order that notice, copies of the petition and TPO be served
immediately on the respondent by the court sheriffs. The TPOs are initially
effective for thirty (30) days from service on the respondent.104

Where no TPO is issued ex parte, the court will nonetheless order the
immediate issuance and service of the notice upon the respondent requiring
him to file an opposition to the petition within five (5) days from service. The
date of the preliminary conference and hearing on the merits shall likewise
be indicated on the notice.105

The opposition to the petition which the respondent himself shall verify, must
be accompanied by the affidavits of witnesses and shall show cause why a
temporary or permanent protection order should not be issued.106

It is clear from the foregoing rules that the respondent of a petition for
protection order should be apprised of the charges imputed to him and
afforded an opportunity to present his side. Thus, the fear of petitioner of
being "stripped of family, property, guns, money, children, job, future
employment and reputation, all in a matter of seconds, without an inkling of
what happened" is a mere product of an overactive imagination. The essence
of due process is to be found in the reasonable opportunity to be heard and
submit any evidence one may have in support of one's defense. "To be
heard" does not only mean verbal arguments in court; one may be heard
also through pleadings. Where opportunity to be heard, either through oral
arguments or pleadings, is accorded, there is no denial of procedural due
process.107

It should be recalled that petitioner filed on April 26, 2006 an Opposition to

the Urgent Ex-Parte Motion for Renewal of the TPO that was granted only
two days earlier on April 24, 2006. Likewise, on May 23, 2006, petitioner
filed a motion for the modification of the TPO to allow him visitation rights to
his children. Still, the trial court in its Order dated September 26, 2006,
gave him five days (5) within which to show cause why the TPO should not
be renewed or extended. Yet, he chose not to file the required comment
arguing that it would just be an "exercise in futility," conveniently forgetting
that the renewal of the questioned TPO was only for a limited period (30
days) each time, and that he could prevent the continued renewal of said
order if he can show sufficient cause therefor. Having failed to do so,
petitioner may not now be heard to complain that he was denied due
process of law.

Petitioner next laments that the removal and exclusion of the respondent in
the VAWC case from the residence of the victim, regardless of ownership of
the residence, is virtually a "blank check" issued to the wife to claim any
property as her conjugal home.108

The wording of the pertinent rule, however, does not by any stretch of the
imagination suggest that this is so. It states:

SEC. 11. Reliefs available to the offended party. -- The protection order shall
include any, some or all of the following reliefs:

xxxx

(c) Removing and excluding the respondent from the residence of the
offended party, regardless of ownership of the residence, either temporarily
for the purpose of protecting the offended party, or permanently where no
property rights are violated. If the respondent must remove personal effects
from the residence, the court shall direct a law enforcement agent to
accompany the respondent to the residence, remain there until the
respondent has gathered his things and escort him from the residence;
 xxxx

Indubitably, petitioner may be removed and excluded from private

respondent's residence, regardless of ownership, only temporarily for the
purpose of protecting the latter. Such removal and exclusion may be
permanent only where no property rights are violated. How then can the
private respondent just claim any property and appropriate it for herself, as
petitioner seems to suggest?

The non-referral of a VAWC case


to a mediator is justified.

Petitioner argues that "by criminalizing run-of-the-mill arguments, instead of

encouraging mediation and counseling, the law has done violence to the
avowed policy of the State to "protect and strengthen the family as a basic
autonomous social institution."109

Under Section 23(c) of A.M. No. 04-10-11-SC, the court shall not refer the
case or any issue thereof to a mediator. The reason behind this provision is
well-explained by the Commentary on Section 311 of the Model Code on
Domestic and Family Violence as follows:110

This section prohibits a court from ordering or referring parties to mediation

in a proceeding for an order for protection. Mediation is a process by which
parties in equivalent bargaining positions voluntarily reach consensual
agreement about the issue at hand. Violence, however, is not a subject for
compromise. A process which involves parties mediating the issue of
violence implies that the victim is somehow at fault. In addition, mediation
of issues in a proceeding for an order of protection is problematic because
the petitioner is frequently unable to participate equally with the person
against whom the protection order has been sought. (Emphasis supplied)

There is no undue delegation of


judicial power to barangay officials.

Petitioner contends that protection orders involve the exercise of judicial

power which, under the Constitution, is placed upon the "Supreme Court and
such other lower courts as may be established by law" and, thus, protests
the delegation of power to barangay officials to issue protection orders.
111 The pertinent provision reads, as follows:
SEC. 14. Barangay Protection Orders (BPOs); Who May Issue and How. –
Barangay Protection Orders (BPOs) refer to the protection order issued by
the Punong Barangay ordering the perpetrator to desist from committing
acts under Section 5 (a) and (b) of this Act.1âwphi1 A Punong Barangay who
receives applications for a BPO shall issue the protection order to the
applicant on the date of filing after ex parte determination of the basis of the
application. If the Punong Barangay is unavailable to act on the application
for a BPO, the application shall be acted upon by any available Barangay
Kagawad. If the BPO is issued by a Barangay Kagawad, the order must be
accompanied by an attestation by the Barangay Kagawad that the Punong
Barangay was unavailable at the time of the issuance of the BPO. BPOs shall
be effective for fifteen (15) days. Immediately after the issuance of an ex
parte BPO, the Punong Barangay or Barangay Kagawad shall personally
serve a copy of the same on the respondent, or direct any barangay official
to effect its personal service.

The parties may be accompanied by a non-lawyer advocate in any

proceeding before the Punong Barangay.

Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable,
and to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.112 On the other hand, executive power
"is generally defined as the power to enforce and administer the laws. It is
the power of carrying the laws into practical operation and enforcing their
due observance."113

As clearly delimited by the aforequoted provision, the BPO issued by the

Punong Barangay or, in his unavailability, by any available Barangay
Kagawad, merely orders the perpetrator to desist from (a) causing physical
harm to the woman or her child; and (2) threatening to cause the woman or
her child physical harm. Such function of the Punong Barangay is, thus,
purely executive in nature, in pursuance of his duty under the Local
Government Code to "enforce all laws and ordinances," and to "maintain
public order in the barangay."114

We have held that "(t)he mere fact that an officer is required by law to
inquire into the existence of certain facts and to apply the law thereto in
order to determine what his official conduct shall be and the fact that these
acts may affect private rights do not constitute an exercise of judicial
powers."115

In the same manner as the public prosecutor ascertains through a

preliminary inquiry or proceeding "whether there is reasonable ground to
believe that an offense has been committed and the accused is probably
guilty thereof," the Punong Barangay must determine reasonable ground to
believe that an imminent danger of violence against the woman and her
children exists or is about to recur that would necessitate the issuance of a
BPO. The preliminary investigation conducted by the prosecutor is,
concededly, an executive, not a judicial, function. The same holds true with
the issuance of a BPO.

We need not even belabor the issue raised by petitioner that since barangay
officials and other law enforcement agencies are required to extend
assistance to victims of violence and abuse, it would be very unlikely that
they would remain objective and impartial, and that the chances of acquittal
are nil. As already stated, assistance by barangay officials and other law
enforcement agencies is consistent with their duty to enforce the law and to
maintain peace and order.

Conclusion

Before a statute or its provisions duly challenged are voided, an unequivocal

breach of, or a clear conflict with the Constitution, not merely a doubtful or
argumentative one, must be demonstrated in such a manner as to leave no
doubt in the mind of the Court. In other words, the grounds for nullity must
be beyond reasonable doubt.116 In the instant case, however, no concrete
evidence and convincing arguments were presented by petitioner to warrant
a declaration of the unconstitutionality of R.A. 9262, which is an act of
Congress and signed into law by the highest officer of the co-equal executive
department. As we said in Estrada v. Sandiganbayan, 117 courts must
assume that the legislature is ever conscious of the borders and edges of its
plenary powers, and passed laws with full knowledge of the facts and for the
purpose of promoting what is right and advancing the welfare of the
majority.

We reiterate here Justice Puno's observation that "the history of the

women's movement against domestic violence shows that one of its most
difficult struggles was the fight against the violence of law itself. If we keep
that in mind, law will not again be a hindrance to the struggle of women for
equality but will be its fulfillment."118 Accordingly, the constitutionality of
R.A. 9262 is, as it should be, sustained.

WHEREFORE, the instant petition for review on certiorari is hereby DENIED

for lack of merit.

SO ORDERED.
AAA, Petitioner

vs.

BBB, Respondent

DECISION

TIJAM, J.:

May Philippine courts exercise jurisdiction over an offense constituting

psychological violence under Republic Act (R.A.) No. 9262,1 otherwise known
as the Anti-Violence Against Women and their Children Act of 2004,
committed through marital infidelity, when the alleged illicit relationship
occurred or is occurring outside the country?

The above question is addressed to this Court in the present Petition2 for the
issuance of a writ of certiorari under Rule 45 of the Rules of Court, to nullify
the Resolutions dated February 24, 20143 and May 2, 20144 of the Regional
Trial Court (RTC) of Pasig City, Branch 158, in Criminal Case No. 146468.
The assailed resolutions granted the motion to quash the Information5 which
charged respondent BBB under Section 5(i) of R.A. No. 9262, committed as
follows:

On or about April 19, 2011, in Pasig City, and within the jurisdiction of this
Honorable Court, [BBB], being then legally married to [AAA], caused herein
[AAA] mental and emotional anguish by having an illicit relationship with a
certain Lisel Mok as confirmed by his photograph with his purported
paramour Lisel Mok and her children and the e-mailed letter by his mother
mentioning about the said relationship, to the damage and prejudice of
[AAA], in violation of the aforecited law.

Contrary to law.

We briefly recount the antecedents.

Petitioner AAA and BBB were married on August 1, 2006 in Quezon City.
Their union produced two children: CCC was born on March 4, 2007 and
DDD on October 1, 2009.6

In May of 2007, BBB started working in Singapore as a chef, where he

acquired permanent resident status in September of 2008. This petition
nonetheless indicates his address to be in Quezon City where his parents
reside and where AAA also resided from the time they were married until
March of 2010, when AAA and their children moved back to her parents'
house in Pasig City.7

AAA claimed, albeit not reflected in the Information, that BBB sent little to
no financial support, and only sporadically. This allegedly compelled her to
fly extra hours and take on additional jobs to augment her income as a flight
attendant. There were also allegations of virtual abandonment, mistreatment
of her and their son CCC, and physical and sexual violence. To make matters
worse, BBB supposedly started having an affair with a Singaporean woman
named Lisel Mok with whom he allegedly has been living in Singapore.
Things came to a head on April 19, 2011 when AAA and BBB had a violent
altercation at a hotel room in Singapore during her visit with their kids.8 As
can be gathered from the earlier cited Information, despite the claims of
varied forms of abuses, the investigating prosecutor found sufficient basis to
charge BBB with causing AAA mental and emotional anguish through his
alleged marital infidelity.9

The Information having been filed, a warrant of arrest was issued against
BBB. AAA was also able to secure a Hold-Departure Order against BBB who
continued to evade the warrant of arrest. Consequently, the case was
archived.10

On November 6, 2013, an Entry of Appearance as Counsel for the Accused

With Omnibus Motion to Revive Case, Quash Information, Lift Hold
Departure Order and Warrant of Arrest11 was filed on behalf of BBB. Granting
the motion to quash on the ground of lack of jurisdiction and thereby
dismissing the case, the trial court reasoned:

Here, while the Court maintains its 28 October 2011 ruling that probable
cause exists in this case and that [BBB] is probably guilty of the crime
charged, considering, however, his subsequent clear showing that the acts
complained of him had occurred in Singapore, dismissal of this case is
proper since the Court enjoys no jurisdiction over the offense charged, it
having transpired outside the territorial jurisdiction of this Court.

xxxx

The Court is not convinced by .the prosecution's argument that since [AAA]
has been suffering from mental and emotional anguish "wherever she goes'',
jurisdiction over the offense attaches to this Court notwithstanding that the
acts resulting in said suffering had happened outside of the Philippines. To
the mind of the Court, with it noting that there is still as yet no
jurisprudence on this score considering that Republic Act 9262 is relatively a
new law, the act itself which had caused a woman to suffer mental or
emotional anguish must have occurred within the territorial limits of the
Court for it to enjoy jurisdiction over the offense. This amply explains the
use of the emphatic word "causing" in the provisions of Section 5(i),
above, which denotes the bringing about or into existence of something.
Hence, the mental or emotional anguish suffered by a woman must have
been brought about or into existence by a criminal act which must logically
have occurred within the territorial limits of the Court for jurisdiction over
the offense to attach to it. To rule otherwise would violate or render
nugatory one of the basic characteristics of our criminal laws - territoriality.

In the listing provided in the law itself - "repeated verbal and emotional
abuse, and denial of financial support or custody of minor children of (sic)
access to the woman's child/children" - it becomes clear that there must be
an act which causes the "mental or emotional anguish, public ridicule or
humiliation", and it is such act which partakes of a criminal nature. Here,
such act was the alleged maintenance of "an illicit relationship with a certain
Liesel Mok" - which has been conceded to have been committed in
Singapore.

Granting, without conceding, that the law presents ambiguities as written,

quashal of the Information must still be ordered following the underlying
fundamental principle that all doubts must be resolved in favor of [BBB]. At
best, the Court draws the attention of Congress to the arguments on
jurisdiction spawned by the law.12 (Emphasis in the original)

Aggrieved by the denial of the prosecution's motion for reconsideration of

the dismissal of the case, AAA sought direct recourse to this Court via the
instant petition on a pure question of law. AAA posits that R.A. No. 9262 is in
danger of becoming transmogrified into a weak, wobbly, and worthless law
because with the court a quo's ruling, it is as if husbands of Filipino women
have been given license to enter into extra-marital affairs without fear of any
consequence, as long as they are carried out abroad. In the main, AAA
argues that mental and emotional anguish is an essential element of the
offense charged against BBB, which is experienced by her wherever she
goes, and not only in Singapore where the extra-marital affair takes place;
thus, the RTC of Pasig City where she resides can take cognizance of the
case.

In support of her theory, AAA draws attention to Section 7 of R.A. No. 9262,
which provides:

Sec. 7. Venue - The Regional Trial Court designated as a Family Court shall
have original and exclusive jurisdiction over cases of violence against women
and their children under this law. In the absence of such court in the place
where the offense was committed, the case shall be filed in the Regional Trial
Court where the crime or any of its elements was committed at the option of
the complainant. (Emphasis ours)

As to the ambiguity in the law hypothetically referred to in the assailed

order, AAA directs us to:

Section 4. Construction.- This Act shall be liberally construed to promote the

protection and safety of victims of violence against women and their
children.

In his Comment13 filed on January 20, 2015, BBB contends that the grant of
the motion to quash is in effect an acquittal; that only the civil aspect of a
criminal case may be appealed by the private offended party; and. that this
petition should be dismissed outright for having been brought before this
Court by AAA instead of the Office of the Solicitor General (OSG) as counsel
for the People in appellate proceedings. BBB furthermore avers that the
petition was belatedly filed.

We tackle first the threshold issue of whether or not this Court should
entertain the petition.

It must be stated beforehand that BBB is plainly mistaken in asserting that

the instant petition was belatedly filed. The date erroneously perceived by
BBB as the date of AAA's Motion for Extension14 was filed - June 2, 2014 -
refers to the date of receipt by the Division Clerk of Court and not the date
when the said motion was lodged before this Comi. The motion was in fact
filed on May 27, 2014, well within the period that AAA had under the Rules
of Court to file the intended petition. Thus, considering the timeliness of the
motion, this Comi in a Resolution15 dated June 9, 2014, granted AAA an
additional period of thirty (30) days or until June 26, 2014 to file a petition
for review.
In AAA's motion for extension of time, it was mentioned that she was
awaiting the OSG's response to her Letter16 dated May 26, 2014 requesting
for representation. Since, the OSG was unresponsive to her plea for
assistance in filing the intended petition, AAA filed the present petition in her
own name before the lapse of the extension given her by this Court or on
June 25, 2014.

We find that under the circumstances, the ends of substantial justice will be
better served by entertaining the petition if only to resolve the question of
law lodged before this Court. In Morillo v. People of the Philippines, et
al., 17 where the Court entertained a Rule 45 petition which raised only a
question of law filed by the private offended party in the absence of the
OSG's participation, we recalled the instances when the Court permitted an
offended party to file an appeal without the intervention of the OSG. One
such instance is when the interest of substantial justice so requires.18

Morillo, 19 also differentiated between dismissal and acquittal, thus:

Acquittal is always based on the merits, that is, the defendant is acquitted
because the evidence does not show that defendant's guilt is beyond a
reasonable doubt; but dismissal does not decide the case on the merits or
that the defendant is not guilty. Dismissal terminates the proceeding, either
because the court is not a court of competent jurisdiction, or the evidence
does not show that the offense was committed within the territorial
jurisdiction of the court, or the complaint or information is not valid or
sufficient in form and substance, etc. The only case in which the word
dismissal is commonly but not correctly used, instead of the proper term
acquittal, is when, after the prosecution has presented all its evidence, the
defendant moves for the dismissal and the court dismisses the case on the
ground that the evidence fails to show beyond a reasonable doubt that the
defendant is guilty; for in such case the dismissal is in reality an acquittal
because the case is decided on the merits. If the prosecution fails to prove
that the offense was committed within the territorial jurisdiction of the court
and the case is dismissed, the dismissal is not an acquittal, inasmuch as if it
were so the defendant could not be again prosecuted before the court of
competent jurisdiction; and it is elemental that in such case, the defendant
may again be prosecuted for the same offense before a court of competent
jurisdiction.20 (Citation omitted and emphasis in the original)

The grant of BBB's motion to quash may not therefore be viewed as an

acquittal, which in limited instances may only be repudiated by a petition
for certiorari under Rule 65 upon showing grave abuse of discretion lest the
accused would be twice placed in jeopardy.21

Indubitably, "the Rules do not prohibit any of the parties from filing a Rule
45 Petition with this Court, in case only questions of law are raised or
involved."22 "There is a question of law when the issue does not call for an
examination of the probative value of the evidence presented or of the truth
or falsehood of the facts being admitted, and the doubt concerns the c01Tect
application of law and jurisprudence on the matter."23

Further, the question of whether or not the RTC has jurisdiction in view of
the peculiar provisions of R.A. No. 9262 is a question of law. Thus, in Morillo,
24 the Court reiterated that:

[T]he jurisdiction of the court is determined by the averments of the

complaint or Information, in relation to the law prevailing at the time of the
filing of the complaint or Information, and the penalty provided by law for
the crime charged at the time of its commission. Thus, when a case involves
a proper interpretation of the rules and jurisprudence with respect to the
jurisdiction of courts to entertain complaints filed therewith, it deals with a
question of law that can be properly brought to this Court under Rule
45.25 (Citations omitted)

We are not called upon in this case to determine the truth or falsity of the
charge against BBB, much less weigh the evidence, especially as the case
had not even proceeded to a full-blown trial on the merits. The issue for
resolution concerns the correct application of law and jurisprudence on a
given set of circumstances, i.e., whether or not Philippine courts are
deprived of territorial jurisdiction over a criminal charge of psychological
abuse under R.A. No. 9262 when committed through marital infidelity and
the alleged illicit relationship took place outside the Philippines.

The novelty of the issue was even recognized by the RTC when it opined that
there is still as yet no jurisprudence on this score, prompting it to quash the
Information even as it maintained its earlier October 28, 2011 ruling that
probable cause exists in the case.26 Calling the attention of Congress to the
arguments on jurisdiction spawned by the law,27 the RTC furnished copies of
the assailed order to the House of Representatives and the Philippine Senate
through the Committee on Youth, Women and Public Relations, as well as
the Committee on Justice and Human Rights.28
The issue acquires special significance when viewed against the present
economic reality that a great number of Filipino families have at least one
parent working overseas. In. April to September 2016, the number of
overseas Filipino workers who worked abroad was estimated at 2.2 million,
97.5 percent of which were comprised of overseas contract workers or those
with existing work contract while 2.5 percent worked overseas without
contract.29 It is thus necessary to clarify how R.A. No. 9262 should be
applied in a question of territorial jurisdiction over a case of psychological
abuse brought against the husband when such is allegedly caused by marital
infidelity carried on abroad.

Ruling of the Court

There is merit in the petition.

"Physical violence is only the most visible form of abuse. Psychological

abuse, particularly forced social and economic isolation of women, is also
common."30 In this regard, Section 3 of R.A. No. 9262 made it a point to
encompass in a non-limiting manner the various forms of violence that may
be committed against women and their children:

Sec. 3. Definition of Terms. - As used in this Act, (a) "Violence against

women and their children" refers to any act or a series of acts committed by
any person against a woman who is his wife, former wife, or against a
woman with whom the person has or had a sexual or dating relationship, or
with whom he has a common child, or against her child whether legitimate
or illegitimate, within or without the family abode, which result in or is likely
to result in physical, sexual, psychological harm or suffering, or economic
abuse including threats of such acts, battery, assault, coercion, harassment
or arbitrary deprivation of liberty. It includes, but is not limited to, the
following acts:

A. "Physical Violence" refers to acts that include bodily or physical harm;

B. "Sexual violence" refers to an act which is sexual in nature, committed

against a woman or her child. It includes, but is not limited to:

xxxx

C. "Psychological violence" refers to acts or omissions causing or likely to

cause mental or emotional suffering of the victim such as but not limited to
intimidation, harassment, stalking, damage to property, public ridicule or
humiliation, repeated verbal abuse and marital infidelity. It includes causing
or allowing the victim to witness the physical, sexual or psychological abuse
of a member of the family to which the victim belongs, or to witness
pornography in any form or to witness abusive injury to pets or to unlawful
or .unwanted deprivation of the right to custody and/or visitation of common
children.

D. "Economic abuse" refers to acts that make or attempt to make a woman

financially dependent which includes, but is not limited to the following:

xxxx

As jurisdiction of a court over the criminal case is determined by the

allegations in the complaint or information, threshing out the essential
elements of psychological abuse under R.A. No. 9262 is crucial. In Dinamling
v. People,31 this Court already had occasion to enumerate the elements of
psychological violence under Section 5(i) of R.A. No. 9262, as follows:

Section 5. Acts of Violence Against Women and Their Children. - The crime
of violence against women and their children is committed through any of
the following acts:

xxxx

(i) Causing mental or emotional anguish, public ridicule or humiliation to the

woman or her child, including, but not limited to, repeated verbal and
emotional abuse, and denial of financial support or custody of minor children
or access to the woman's child/children.

From the aforequoted Section 5(i), in relation to other sections of R[.]A[.]

No. 9262, the elements of the crime are derived as follows:

(1) The offended paiiy is a woma.J.1 and/or her child or children;

(2) The woman is either the wife or former wife of the offender, or is a
woman with whom the offender has or had a sexual or dating relationship,
or is a woman with whom such offender has a common child. As for the
woman's child or children, they may be legitimate or illegitimate, or living
within or without the family abode;
(3) The offender causes on the woman and/or child mental or emotional
anguish; and

(4) The anguish is caused through acts of public ridicule or humiliation,

repeated verbal and emotional abuse, denial of financial support or custody
of minor children or access to the children or similar· such acts or omissions.

xxxx

It bears emphasis that Section 5(i) penalizes some forms of psychological

violence that are inflicted on victims who are women and children. Other
forms of psychological violence, as well as physical, sexual and economic
violence, are addressed and penalized in other subparts of Section 5.

xxxx

Psychological violence is an. element of violation of Section 5(i) just like the
mental or emotional anguish caused on the victim. Psychological violence is
the means employed by the perpetrator, while mental or emotional anguish
is the effect caused to or the damage sustained by the offended party. To
establish psychological violence as an element of the crime, it is necessary
to show proof of commission of any of the acts enumerated in Section 5(i) or
similar such acts. And to establish mental or emotional anguish, it is
necessary to present the testimony of the victim as such experiences are
personal to this party. x x x.32 (Citations omitted and emphasis ours)

Contrary to the interpretation of the RTC, what R.A. No. 9262 criminalizes is
not the marital infidelity per se but the psychological violence causing
mental or emotional suffering on the wife. Otherwise stated, it is the
violence inflicted under the said circumstances that the law seeks to outlaw.
Marital infidelity as cited in the law is only one of the various acts by which
psychological violence may be committed. Moreover, depending on the
circumstances of the spouses and for a myriad of reasons, the illicit
relationship may or may not even be causing mental or emotional anguish
on the wife. Thus, the mental or emotional suffering of the victim is an
essential and distinct element in the commission of the offense.

In criminal cases, venue is jurisdictional. Thus, in Trenas v. People,33 the

Court explained that:
The place where the crime was committed determines not only the venue of
the action but is an essential element of jurisdiction.1âwphi1 It is a
fundamental rule that for jurisdiction to be acquired by courts in criminal
cases, the offense should have been committed or any one of its essential
ingredients should have taken place within the territorial jurisdiction of the
court. Territorial jurisdiction in criminal cases is the territory where the court
has jurisdiction to take cognizance or to try the offense allegedly committed
therein by the accused. Thus, it cannot take jurisdiction over a person
charged with an offense allegedly committed outside of that limited territory.
Furthermore, the jurisdiction of a court over the criminal case is determined
by the allegations in the complaint or information. And once it is so shown,
the court may validly take cognizance of the case. However, if the evidence
adduced during the trial shows that the offense was committed somewhere
else, the court should dismiss the action for want of jurisdiction.34 (Emphasis
in the original)

In Section 7 of R.A. No. 9262, venue undoubtedly pertains to jurisdiction. As

correctly pointed out by AAA, Section 7 provides that the case may be filed
where the crime or any of its elements was committed at the option of the
complainant. Which the psychological violence as the means employed by
the perpetrator is certainly an indispensable element of the offense, equally
essential also is the element of mental or emotional anguish which is
personal to the complainant. The resulting mental or emotional anguish is
analogous to the indispensable element of damage in a prosecution for
estafa, viz:

The circumstance that the deceitful manipulations or false pretenses

employed by the accused, as shown in the vouchers, might have been
perpetrated in Quezon City does not preclude the institution of the criminal
action in Mandaluyong where the damage was consummated. Deceit and
damage are the basic elements of estafa. The estafa involved in this case
appears to be a transitory or continuing offense. It could be filed either in
Quezon City or in Rizal. The theory is that a person charged with a transitory
offense may be tried in any jurisdiction where the offense is in part
committed. In transitory or continuing offenses in which some acts material
and essential to the crime and requisite to its consummation occur in one
province and some in another, the court of either province has jurisdiction to
try the case, it being understood that the first court taking cognizance of the
case will exclude the others x x x[.]35
What may be gleaned from Section 7 of R.A. No. 9262 is that the law
contemplates that acts of violence against women and their children may
manifest as transitory or continuing crimes; meaning that some acts
material and essential thereto and requisite in their consummation occur in
one municipality or territory, while some occur in another. In such cases, the
court wherein any of the crime's essential and material acts have been
committed maintains jurisdiction to try the case; it being understood that
the first court taking cognizance of the same excludes the other. Thus, a
person charged with a continuing or transitory crime may be validly tried in
any municipality or territory where the offense was in part committed.36

It is necessary, for Philippine courts to have jurisdiction when the abusive

conduct or act of violence under Section 5(i) of R.A. No. 9262 in relation to
Section 3(a), Paragraph (C) was committed outside Philippine territory, that
the victim be a resident of the place where the complaint is filed in view of
the anguish suffered being a material element of the offense. In the present
scenario, the offended wife and children of respondent husband are
residents of Pasig City since March of 2010. Hence, the RTC of Pasig City
may exercise jurisdiction over the case.

Certainly, the act causing psychological violence which under the information
relates to BBB's marital infidelity must be proven by probable cause for the
purpose of formally charging the husband, and to establish the same beyond
reasonable doubt for purposes of conviction. It likewise remains imperative
to acquire jurisdiction over the husband. What this case concerns itself is
simply whether or not a complaint for psychological abuse under R.A. No.
9262 may even be filed within the Philippines if the illicit relationship is
conducted abroad. We say that even if the alleged extra-marital affair
causing the offended wife mental and emotional anguish is committed
abroad, the same does not place a prosecution under R.A. No. 9262
absolutely beyond the reach of Philippine courts.

IN VIEW OF THE FOREGOING, the petition is GRANTED. The Resolutions

dated February 24, 2014 and May 2, 2014 of the Regional Trial Court of
Pasig City, Branch 158, in Criminal Case No. 146468 are SET
ASIDE. Accordingly, the Information filed in Criminal Case No. 146468 is
ordered REINSTATED.

SO ORDERED.
 STEVEN R. PAVLOW, Petitioner, v. CHERRY L.
MENDENILLA, Respondent.


DECISION

LEONEN, J.:

The mother of a victim of acts of violence against women and their children
is expressly given personality by Section 9(b)1 of Republic Act No. 9262,
otherwise known as the Anti-Violence Against Women and Their Children Act
of 2004 (the Anti-VAWC Law), to file a civil action petitioning for the
issuance of a protection order for her child. In filing such a petition, she
avails of a remedy that is distinct from the criminal action under Section 5 of
the same law.2 The mere filing of such a criminal complaint, without the
subsequent filing of an information in court, does not occasion litis
pendentia or res judicata that precludes the filing of a petition for the
issuance of a protection order.



The Rules of Court suppletorily apply in proceedings relating to the Anti-
VAWC Law. Among the provisions of the 1997 Rules of Civil Procedure that
continue to govern proceedings under the Anti-VAWC Law are those on
substituted service of summons. This was validly resorted to in this case,
thereby enabling the Regional Trial Court to acquire jurisdiction over
petitioner's person.



This resolves a Petition for Review on Certiorari3 under Rule 45 of the 1997
Rules of Civil Procedure praying that the assailed October 17, 2007
Decision4 and January 25, 2008 Resolution5 of the Court of Appeals in CA-
G.R. SP No. 94540 be reversed and set aside.



The assailed Court of Appeals Decision dismissed petitioner Steven R.
Pavlow's (Pavlow) Petition for Certiorari under Rule 65 of the 1997 Rules of
Civil Procedure. The Decision found no grave abuse of discretion on the part
of Judge Natividad A. Giron-Dizon (Judge Giron-Dizon) of the Regional Trial
Court of Quezon City, Branch 106 in her denial6 of petitioner's Omnibus
Motion.7 Petitioner's Motion included a prayer to dismiss the Petition for
Issuance of a Temporary Protection Order or Permanent Protection
Order8 under the Anti-VAWC Law. This Petition for the issuance of a
protection order was filed by respondent Cherry L. Mendenilla (Mendenilla),
the mother of petitioner's wife, Maria Sheila Mendenilla Pavlow (Maria
Sheila).



In denying petitioner's Omnibus Motion, Judge Giron-Dizon ruled that
Mendenilla had personality to file a petition for the issuance of a protection
order to benefit her daughter. It was equally ruled that Mendenilla did not
engage in forum shopping9 despite the prosecutor's prior dismissal10 of a
criminal complaint11 filed by Maria Sheila against petitioner for slight physical
injuries and maltreatment in relation to the Anti-VAWC Law. Finally, it was
established that jurisdiction over petitioner's person was properly acquired
through substituted service.12



On March 11, 2005, petitioner Pavlow, an American citizen and President of
Quality Long Term Care of Nevada, Inc., married Maria Sheila, a Filipino, in
civil rites in Quezon City. Thereafter, they cohabited as husband and wife.13



Barely three (3) months into their marriage, on May 31, 2005, Maria Sheila
filed a Complaint-Affidavit against Pavlow for slight physical injuries.14 On
June 3, 2005, Maria Sheila filed an Amended Complaint-Affidavit15 to include
maltreatment in relation to the Anti-VAWC Law as a ground.



Specifically, Maria Sheila alleged that she and Pavlow had fights on February
26, 2005 and on March 10, 2005 over a certain Diane, an employee of the
Manila Peninsula Hotel.16 As Maria Sheila was told by Monette Tolentino
(Tolentino) and Louise Cruz, two (2) of petitioner's employees in Quality
Long Term Care of Nevada, Inc., Diane liked Pavlow and was sending him
text messages and e-mails.17 Maria Sheila added that on March 15, 2005,
she and Pavlow quarrelled over their loss of privacy and the intrusion into
their affairs of the same employees.18 She further claimed that, on March
16, 2005, Pavlow hit her in the stomach and shouted at her for recounting
her marital experiences to her mother, respondent Mendenilla, with Pavlow
telling her that despite their recent marriage there was nothing to celebrate.
19 She also recalled that, on April 16, 2005, she and Pavlow again clashed

over the phone as regards the messages of one (1) of Steven's female
employees, during which, Pavlow slapped her and hit her upper back.
20 Maria Sheila also disclosed that Pavlow had been compelling her every
night to take two (2) small white tablets, which made her feel dizzy. She
contended that she could not disobey petitioner for fear of being hit and
maltreated.21



On August 25, 2005, Makati Assistant City Prosecutor Romel S. Odronia
(Assistant City Prosecutor Odronia) issued a resolution dismissing Maria
Sheila's criminal complaint, holding that Maria Sheila failed to substantiate
her allegations.22



Following this, on August 26, 2015, Mendenilla filed with the Quezon City
Regional Trial Court a Petition23 for Maria Sheila's benefit, praying for the
issuance of a Temporary Protection Order or Permanent Protection Order
under the Anti-VAWC Law. This Petition was docketed as Civil Case No.
Q-05-56169.



In her petition, Mendenilla recalled the same ordeal recounted by Maria
Sheila in her own criminal complaint. Mendenilla added that she had been
aware of her daughter's ordeal and that on July 21, 2005, Maria Sheila was
admitted to St. Agnes General Hospital for injuries borne by Pavlow's alleged
acts of violence.24



On August 31, 2005, Judge Giron-Dizon issued a Temporary Protection
Order25 in favor of Maria Sheila. Issued along with this Order was a
Summons26 addressed to Pavlow.



In a Sheriff's Report with Clarification dated September 8, 2005,27 Deputy
Sheriff Arturo M. Velasco (Deputy Sheriff Velasco) recounted that when
service of summons with the Temporary Protection Order attached was
attempted on September 7, 2005, Pavlow was out of the country.28 Thus,
summons was served instead through his employee, Tolentino, who also
resided at Pavlow's own residence in Unit 1503, Grand Tower Condominium,
150 L.P. Leviste St., Makati City.29



On September 13, 2005, Pavlow filed Omnibus Motions30 praying for the
dismissal of Mendenilla's petition, the reconsideration of the issuance of the
Temporary Protection Order, and the suspension of the enforcement of the
Temporary Protection Order. He raised as principal ground the Regional Trial
Court's supposed lack of jurisdiction over his person as summons was
purportedly not properly served on him.31



In the Order dated December 6, 2005,32 Judge Giron-Dizon denied Pavlow's
motion to dismiss, reasoning that substituted service of summons sufficed
since the case filed by Mendenilla was an action in personam because Pavlow
was out of the country during the service of summons.33



Following Judge Giron-Dizon's denial of Pavlow's motion for reconsideration,
Pavlow filed a Petition for Certiorari34 before the Court of Appeals. He
charged Judge Giron-Dizon with grave abuse of discretion in refusing to
dismiss Mendenilla's Petition despite the alleged improper service of
summons on him.35 Petitioner further reasoned that Mendenilla lacked
personality to file her Petition36 and that her filing of a petition only after
Assistant City Prosecutor Odronia dismissed Maria Sheila's criminal complaint
was considered forum shopping.37



In its assailed October 17, 2007 Decision,38 the Court of Appeals dismissed
Pavlow's Petition for Certiorari. Likewise, the Court of Appeals denied
Pavlow's motion for reconsideration in its assailed January 25, 2008
Resolution.39



Hence, the present Petition for Review on Certiorari40 was filed.



This petition concerns substantially the same issues as those before the
Court of Appeals:



First, whether respondent Cherry L. Mendenilla had personality to file a
petition for the issuance of a protection order under Section 8 of the Anti-
VAWC Law41 for the benefit of her daughter, Maria Sheila Mendenilla Pavlow;



Second, whether respondent Mendenilla engaged in forum shopping by filing
a petition for the issuance of a protection order after a criminal complaint
under the Anti-VAWC Law was dismissed by the prosecutor; and



Finally, whether summons was properly served on petitioner Steven R.
Pavlow and jurisdiction over his person was validly acquired.



We sustain the ruling of the Court of Appeals and deny the Petition.




The mother of a victim of acts of violence against women and their children
is expressly given personality to file a petition for the issuance of a
protection order by Section 9(b) of the Anti-VAWC Law. However, the right of
a mother and of other persons mentioned in Section 9 to file such a petition
is suspended when the victim has filed a petition for herself. Nevertheless, in
this case, respondent Mendenilla filed her petition after her daughter's
complaint-affidavit had already been dismissed.

More basic, the filing of Maria Sheila's complaint-affidavit did not even
commence proceedings on her own petition for the issuance of a protection
order. Preliminary investigation, or proceedings at the level of the
prosecutor, does not form part of trial. It is not a judicial proceeding that
leads to the issuance of a protection order. Thus, the pendency and
subsequent dismissal of Maria Sheila's Complaint-Affidavit did not engender
the risk of either litis pendentia or res judicata, which would serve the basis
of a finding of forum shopping by her mother.

I.A

Republic Act No. 9262 specifies three (3) distinct remedies available to
victims of acts of "violence against women and their children":42 first, a
criminal complaint; second, a civil action for damages; and finally, a civil
action for the issuance of a protection order.

A criminal complaint may be resorted to when the act of violence against

women and their children is committed through any, some, or all of the nine
(9) means which Section 5 of the Anti-VAWC Law43 specifies as constitutive
of "[t]he crime of violence against women and their children." If found guilty,
the perpetrator shall suffer the penalties stipulated under Section 6,44 i.e.,
imprisonment and payment of a fine. In addition, he or she shall be made to
undergo psychological counselling or psychiatric treatment.
A civil action for damages may be resorted to pursuant to Section 36 of the
Anti-VAWC Law:chanRoblesvirtualLawlibrary
Section 36. Damages. - Any victim of violence under this Act shall be
entitled to actual, compensatory, moral and exemplary damages.
Rule V, Section 35 of the Implementing Rules and Regulations of the Anti-
VAWC Law45 states that when a criminal action is also available and is
resorted to, "[t]he civil action for damages is deemed instituted with the
criminal action, unless an independent civil action for damages is filed."

A protection order is issued "for the purpose of preventing further acts of

violence against a woman or her child . . . and granting other necessary
relief;"46 thereby "safeguarding the victim from further harm, minimizing
any disruption in the victim's daily life, and facilitating the opportunity and
ability of the victim to independently regain control over her life."47 If issued,
i t s h a l l s p e c i f y a n y, s o m e , o r a l l o f t h e f o l l o w i n g
reliefs:chanRoblesvirtualLawlibrary

( Prohibition of the respondent from threatening to commit or

a committing, personally or through another, any of the acts mentioned
) in Section 5 of this Act;

( Prohibition of the respondent from harassing, annoying, telephoning,

b contacting or otherwise communicating with the petitioner, directly or
) indirectly;

(c Removal and exclusion of the respondent from the residence of the

) petitioner, regardless of ownership of the residence, either temporarily
for the purpose of protecting the petitioner, or permanently where no
property rights are violated, and, if respondent must remove personal
effects from the residence, the court shall direct a law enforcement
agent to accompany the respondent to the residence, remain there
until respondent has gathered his things and escort respondent from
the residence;
( Directing the respondent to stay away from petitioner and any
d designated family or household member at a distance specified by the
) court, and to stay away from the residence, school, place of
employment, or any specified place frequented by the petitioner and
any designated family or household member;

( Directing lawful possession and use by petitioner of an automobile and

e other essential personal effects, regardless of ownership, and directing
) the appropriate law enforcement officer to accompany the petitioner to
the residence of the parties to ensure that the petitioner is safely
restored to the possession of the automobile and other essential
personal effects, or to supervise the petitioner's or respondent's
removal of personal belongings;

( f Granting a temporary or permanent custody of a child/ children to the

) petitioner;

( Directing the respondent to provide support to the woman and/or her

g child if entitled to legal support. Notwithstanding other laws to the
) contrary, the court shall order an appropriate percentage of the income
or salary of the respondent to be withheld regularly by the
respondent's employer for the same to be automatically remitted
directly to the woman. Failure to remit and/or withhold or any delay in
the remittance of support to the woman and/or her child without
justifiable cause shall render the respondent or his employer liable for
indirect contempt of court;

( Prohibition of the respondent from any use or possession of any firearm

h or deadly weapon and order him to surrender the same to the court for
) appropriate disposition by the court, including revocation of license and
disqualification to apply for any license to use or possess a firearm. If
the offender is a law enforcement agent, the court shall order the
offender to surrender his firearm and shall direct the appropriate
authority to investigate on the offender and take appropriate action on
the matter;
( i Restitution for actual damages caused by the violence inflicted,
) including, but not limited to, property damage, medical expenses,
childcare expenses and loss of income;

( j Directing the DSWD or any appropriate agency to provide petitioner

) temporary shelter and other social services that the petitioner may
need; and

( Provision of such other forms of relief as the court deems necessary to

k protect and provide for the safety of the petitioner and any designated
) family or household member, provided petitioner and any designated
family or household member consents to such relief.48
Republic Act No. 9262 allows for the issuance of three (3) kinds of protection
orders: a Barangay Protection Order, a Temporary Protection Order, and a
Permanent Protection Order. A Barangay Protection Order is issued by a
Punong Barangay or by a Barangay Kagawad.49 Temporary protection orders
and permanent protection orders are judicial issuances obtained through
trial courts.50

As its name denotes, a temporary protection order is a provisional relief. It

shall be effective for 30 days, following a court's "ex parte determination
that such order should be issued."51 Within these 30 days, a hearing to
determine the propriety of issuing permanent protection order must be
conducted. The temporary protection order itself "shall include notice of the
date of the hearing on the merits of the issuance of a [permanent protection
order]." Following the conduct of a hearing, a permanent protection order
may be issued and "shall be effective until revoked by a court upon
application of the person in whose favor the order was issued."52

I.B

Section 9 of the Anti-VAWC Law enumerates the persons who may apply for
the issuance of a protection order:chanRoblesvirtualLawlibrary
Section 9. Who May File Petition for Protection Orders. - A petition for
protection order may be filed by any of the following:
( the offended party;
a
)

( parents or guardians of the offended party;

b
)

(c ascendants, descendants or collateral relatives within the fourth civil

) degree of consanguinity or affinity;

( officers or social workers of the DSWD or social workers of local

d government units (LGUs);
)

( police officers, preferably those in charge of women and children's

e desks;
)

( f Punong Barangay or Barangay Kagawad;

)

( lawyer, counselor, therapist or healthcare provider of the petitioner;

g
)

( at least two (2) concerned responsible citizens of the city or

h municipality where the violence against women and their children
) occurred and who has personal knowledge of the offense committed.
(Emphasis supplied)
As is clear from this enumeration, a petition for the issuance of protection
order is not limited to the alleged victim herself. The victim's mother - as is
the case with respondent Mendenilla - is explicitly given the capacity to
apply for a protection order for the benefit of her child. By this clear
statutory provision, Mendenilla had the requisite personality to file a petition
for the issuance of a protection order in favor of Maria Sheila.

I.C

Petitioner claims, however, that Maria Sheila's prior filing of a criminal

complaint precluded Mendenilla's subsequent filing of a petition for the
issuance of a protection order. He capitalizes on the second paragraph of
Section 8, as well as on Section 33 of A.M. No. 04-10-11-SC,53 the
procedural rules issued by this Court governing proceedings under the Anti-
VAWC Law.

Section 8 of A.M. No. 04-10-11-SC reads:chanRoblesvirtualLawlibrary

Section 8. Who may file petition. — A petition for protection order may be
filed by any of the following:

( The offended party;

a
)

( Parents or guardians of the offended party;

b
)

(c Ascendants, descendants or collateral relatives of the offended party

) within the fourth civil degree of consanguinity or affinity;

( Officers or social workers of the Department of Social Welfare and

d Development (DSWD) or social workers of local government units
) (LGUs);

( Police officers, preferably those in charge of women and children's

e desks;
)
( f Punong Barangay or Barangay Kagawad;
)

( lawyer, counselor, therapist or healthcare provider of the petitioner; or

g
)

( At least two concerned, responsible citizens of the place where the

h violence against women and their children occurred and who have
) personal knowledge of the offense committed.

The filing of a petition for protection order by the offended parly suspends
the right of all other authorized parties to file similar petitions. A petition
filed by the offended party after the filing of a similar petition by an
authorized party shall not be dismissed but shall be consolidated with the
petition filed earlier. (Emphasis supplied)
Section 33 of A.M. No. 04-10-11-SC reads:chanRoblesvirtualLawlibrary
Section 33. When petition may proceed separately from or be deemed
instituted with criminal action. — (a) An offended party may file a petition
for protection order ahead of a criminal action arising from the same act.
The same shall proceed separately from the criminal action and shall require
only a preponderance of evidence. Upon motion of the petitioner, the court
may consolidate the petition with the criminal action.

(b) Where the offended party chooses to file a criminal action, the petition
for protection order is deemed instituted with the criminal action, unless the
offended parly reserves the right to institute it separately. (Emphasis
supplied)
Petitioner proceeds to argue that Mendenilla's filing of a separate petition
supposedly anchored on the same factual premises, and seeking the same
reliefs as those of the criminal complaint filed by Maria Sheila is an act of
forum-shopping. He, therefore, claims that Mendenilla's petition should have
been dismissed.

I.D
Petitioner's conclusions are misplaced.

The word used by Section 8 is "suspend." To suspend is to momentarily,

temporarily, or provisionally hold in abeyance. It is not to perpetually
negate, absolutely cancel, or otherwise obliterate. The right of persons other
than the victim to file a petition for the issuance of a protection order
therefore persists; albeit, they may not exercise such right for as long as the
petition filed by the victim subsists.

Mendenilla's petition for the issuance of a protection order was filed with the
Quezon City Regional Trial Court after Assistant City Prosecutor Odronia had
already dismissed Maria Sheila's complaint for slight physical injuries and
maltreatment under the Anti-VAWC Law. Thus, even if Maria Sheila's
Complaint came with a petition for the issuance of a protection order and
even as Section 8 of A.M. No. 04-10-11-SC stipulates the suspension of
other people's right to file petitions for the issuance of a protection order,
this suspension is rendered inefficacious by the remission of Maria Sheila's
prior petition. Stated otherwise, there was no longer a prior petition to
compel a suspension.

I.E

Petitioner's position, however, fails to account for an even more fundamental

and pivotal detail: Assistant City Prosecutor Odronia's dismissal of the
complaint-affidavit filed by Maria Sheila came as a result of a preliminary
investigation. This meant that, to begin with, there was not even a prior
judicial proceeding which could lead to the issuance of a protection order.
The criminal action in which Maria Sheila would have been deemed to have
impliedly instituted her own petition for the issuance of a protection order
did not even commence.

Jurisprudence has long settled that preliminary investigation does not form
part of trial.54 Investigation for the purpose of determining whether an actual
charge shall subsequently be filed against the person subject of the
investigation is a purely administrative, rather than a judicial or quasi-
judicial, function.55 It is not an exercise in adjudication: no ruling is made on
the rights and obligations of the parties, but merely evidentiary appraisal to
determine if it is worth going into actual adjudication.56

The dismissal of a complaint on preliminary investigation by a prosecutor

"cannot be considered a valid and final judgment."57 As there is no former
final judgment or order on the merits rendered by the court having
jurisdiction over both the subject matter and the parties, there could not
have been res judicata — actual or looming as to bar one (1) of several
proceedings on account of litis pendentia — as to bar Mendenilla's petition
for being an act of forum shopping.

Res judicata is the conceptual backbone upon which forum shopping

rests. City of Taguig v. City of Makati,58 explained in detail the definition of
forum shopping, how it is committed, and the test for determining if it was
committed. This test relies on two (2) alternative propositions: litis
pendentia and res judicata. Even then, litis pendentia is itself a concept that
merely proceeds from the concept of res
judicata:chanRoblesvirtualLawlibrary
Top Rate Construction & General Services, Inc. v. Paxton Development
Corporation explained that:chanRoblesvirtualLawlibrary
Forum shopping is committed by a party who institutes two or more suits in
different courts, either simultaneously or successively, in order to ask the
courts to rule on the same or related causes or to grant the same or
substantially the same reliefs, on the supposition that one or the other court
would make a favorable disposition or increase a party's chances of
obtaining a favorable decision or action.

....
Jurisprudence has recognized that forum, shopping can be committed in
several ways:chanRoblesvirtualLawlibrary
(1) filing multiple cases based on the same cause of action and with the
same prayer, the previous case not having been resolved yet (where the
ground for dismissal is litis pendentia); (2) filing multiple cases based on the
same cause of action and the same prayer, the previous case having been
finally resolved (where the ground for dismissal is res judicata); and (3)
filing multiple cases based on the same cause of action but with different
prayers (splitting of causes of action, where the ground for dismissal is also
either litis pendentia or res judicata). (Emphasis in the original)
....
The test for determining forum shopping is settled. In Yap v. Chua, et
al.:chanRoblesvirtualLawlibrary
To determine whether a party violated the rule against forum shopping, the
most important factor to ask is whether the elements of litis pendentia are
present, or whether a final judgment in one case will amount to res
judicata in another; otherwise stated, the test for determining forum
shopping is whether in the two (or more) cases pending, there is identity of
parties, rights or causes of action, and reliefs sought.
For its part, litis pendentia "refers to that situation wherein another action is
pending between the same parties for the same cause of action, such that
the second action becomes unnecessary and vexatious." For litis
pendentia to exist, three (3) requisites must
concur:chanRoblesvirtualLawlibrary
The requisites of litis pendentia are: (a) the identity of parties, or at least
such as representing the same interests in both actions; (b) the identity of
rights asserted and relief prayed for, the relief being founded on the same
facts; and (c) the identity of the two cases such that judgment in one,
regardless of which party is successful, would amount to res judicata in the
other.
On the other hand, res judicata or prior judgment bars a subsequent case
when the following requisites are satisfied:chanRoblesvirtualLawlibrary
(1) the former judgment is final; (2) it is rendered by a court having
jurisdiction over the subject matter and the parties; (3) it is a judgment or
an order on the merits; (4) there is — between the first and the second
actions — identity of parties, of subject matter, and of causes of action.
59 (Citations omitted)

Encinas v. Agustin60 explained how a ruling in an investigative exercise -

such as fact-finding investigations and preliminary investigation - could not
be the basis of res judicata, or of forum shopping. Its exhaustive and
extensive discussion is worth quoting at length:chanRoblesvirtualLawlibrary
[W]e rule that the dismissal of the BFP Complaint does not constitute res
judicata in relation to the CSCRO Complaint. Thus, there is no forum-
shopping on the part of respondents.

....
In order that res judicata may bar the institution of a subsequent action, the
following requisites must concur: (a) the former judgment must be final; (b)
it must have been rendered by a court having jurisdiction over the subject
matter and the parties; (c) it must be a judgment on the merits; and (d)
there must be between the first and the second actions (i) identity of
parties, (ii) identity of subject matter, and (iii) identity of cause of action.

A judgment may be considered as one rendered on the merits "when it

determines the rights and liabilities of the parties based on the disclosed
facts, irrespective of formal, technical or dilatory objections;" or when the
judgment is rendered "after a determination of which party is right, as
distinguished from a judgment rendered upon some preliminary or formal or
merely technical point."

In this case, there is no "judgment on the merits" in contemplation

of the definition above. The dismissal of the BFP Complaint in the
Resolution dated 05 July 2005 was the result of a fact-finding
investigation for purposes of determining whether a formal charge
for an administrative offense should be filed. Hence, no rights and
liabilities of parties were determined therein with finality.

The [Court of Appeals] was correct in ruling that the doctrine of res
judicata applies only to judicial or quasi-judicial proceedings, and not to the
exercise of administrative powers. Administrative powers here refer to those
purely administrative in nature, as opposed to administrative proceedings
that take on a quasi-judicial character.

In administrative law, a quasi-judicial proceeding involves (a) taking and

evaluating evidence; (b) determining facts based upon the evidence
presented; and (c) rendering an order or decision supported by the facts
proved. The exercise of quasi-judicial functions involves a determination,
with respect to the matter in controversy, of what the law is; what the legal
rights and obligations of the contending parties are; and based thereon and
the facts obtaining, the adjudication of the respective rights and obligations
of the parties ...

....
The Court has laid down the test for determining whether an administrative
body is exercising judicial or merely investigatory functions: adjudication
signifies the exercise of the power and authority to adjudicate upon the
rights and obligations of the parties. Hence, if the only purpose of an
investigation is to evaluate the evidence submitted to an agency based on
the facts and circumstances presented to it, and if the agency is not
authorized to make a final pronouncement affecting the parties, then there is
an absence of judicial discretion and judgment.

In this case, an analysis of the proceedings before the BFP yields the
conclusion that they were purely administrative in nature and constituted a
fact-finding investigation for purposes of determining whether a formal
charge for an administrative offense should be filed against petitioner.

....

The proceedings before the BFP were merely investigative, aimed at

determining the existence of facts for the purpose of deciding whether to
proceed with an administrative action. This process can be likened to a
public prosecutor's preliminary investigation, which entails a
determination of whether there is probable cause to believe that the
accused is guilty, and whether a crime has been committed.

The ruling of this Court in Bautista v. Court of Appeals is analogously

applicable to the case at bar. In that case, we ruled that the preliminary
investigation conducted by a public prosecutor was merely inquisitorial and
was definitely not a quasi-judicial proceeding:chanRoblesvirtualLawlibrary
A closer scrutiny will show that preliminary investigation is very different
from other quasi-judicial proceedings. A quasi-judicial body has been defined
as "an organ of government other than a court and other than a legislature
which affects the rights of private parties through either adjudication or rule-
making."

....

On the other hand, the prosecutor in a preliminary investigation does

not determine the guilt or innocence of the accused. He does not
exercise adjudication nor rule-making functions. Preliminary investigation
is merely inquisitorial, and is often the only means of discovering the
persons who may be reasonably charged with a crime and to enable the
fiscal to prepare his complaint or information. It is not a trial of the case
on the merits and has no purpose except that of determining whether a
crime has been committed and whether there is probable cause to believe
that the accused is guilty thereof. While the fiscal makes that determination,
he cannot be said to be acting as a quasi-court, for it is the courts,
ultimately, that pass judgment on the accused, not the fiscal. (Emphases
supplied)
This principle is further highlighted in MERALCO v. Atilano, in which this
Court clearly reiterated that a public prosecutor, in conducting a preliminary
investigation, is not exercising a quasi-judicial function. In a preliminary
investigation, the public prosecutor inspects the records and premises,
investigates the activities of persons or entities coming under the formers'
jurisdiction, or secures or requires the disclosure of information by means of
accounts, records, reports, statements, testimony of witnesses, and
production of documents. In contrast, judicial adjudication signifies the
exercise of power and authority to adjudicate upon the rights and obligations
of concerned parties, viz.:chanRoblesvirtualLawlibrary
This is reiterated in our ruling in Spouses Balangauan v. Court of Appeals,
Special Nineteenth Division, Cebu City, where we pointed out that a
preliminary investigation is not a quasi-judicial proceeding, and the DOJ is
not a quasi-judicial agency exercising a quasi-judicial function when it
reviews the findings of a public prosecutor regarding the presence of
probable cause. A quasi-judicial agency performs adjudicatory functions
when its awards determine the rights of parties, and its decisions have the
same effect as a judgment of a court. [This] is not the case when a public
prosecutor conducts a preliminary investigation to determine probable cause
to file an information against a person charged with a criminal offense, or
when the Secretary of Justice [reviews] the former's order[s] or resolutions
on determination of probable cause.

In Odchigue-Bondoc, we ruled that when the public prosecutor conducts

preliminary investigation, he thereby exercises investigative or inquisitorial
powers. Investigative or inquisitorial powers include the powers of an
administrative body to inspect the records and premises, and investigate the
activities of persons or entities coming under his jurisdiction, or to secure, or
to require the disclosure of information by means of accounts, records,
reports, statements, testimony of witnesses, and production of documents.
This power is distinguished from judicial adjudication which signifies the
exercise of power and authority to adjudicate upon the rights and obligations
of concerned parties. Indeed, it is the exercise of investigatory powers which
sets a public prosecutor apart from the court. (Emphasis
supplied)61 (Emphasis supplied, citations omitted)
Although the prosecutor's dismissal of a criminal complaint does not give
rise to res judicata vis-a-vis subsequent civil and quasi-judicial proceedings,
neither does it engender double jeopardy - so-called "res judicata in prison
grey" — should the alleged perpetrator's criminal liability still be
subsequently pursued. In Trinidad v. Marcelo:62
Petitioner's arguments — that res judicata applies since the Office of the
Ombudsman twice found no sufficient basis to indict him in similar cases
earlier filed against him, and that the Agan cases cannot be a supervening
event or evidence per se to warrant a reinvestigation on the same set of
facts and circumstances — do not lie.

Res judicata is a doctrine of civil law and thus has no bearing on criminal
proceedings.

But even if petitioner's argument were to be expanded to contemplate "res

judicata in prison grey" or the criminal law concept of double jeopardy, this
Court still finds it inapplicable to bar the reinvestigation conducted by the
Office of the Ombudsman. For the dismissal of a case during preliminary
investigation does not constitute double jeopardy, preliminary investigation
not being part of the trial.63 (Citations omitted)
Likewise, in Jamaca v. People:64
It should be borne in mind that for a claim of double jeopardy to prosper,
petitioner has to prove that a first jeopardy has attached prior to the second.
As stated in Braza v. Sandiganbayan, "[t]he first jeopardy attaches only (a)
after a valid indictment; (b) before a competent court; (c) after
arraignment; (d) when a valid plea has been entered; and (e) when the
accused was acquitted or convicted, or the case was dismissed or otherwise
terminated without his express consent." In this case, the complaint before
the Office of the Deputy Ombudsman for the Military was dismissed as early
as the preliminary investigation stage, thus, there was as yet, no indictment
to speak of. No complaint or Information has been brought before a
competent court. Hence, none of the aforementioned events has transpired
for the first jeopardy to have attached.

In Vincoy v. Court of Appeals, which is closely analogous to the present

case, the private complainant therein initially filed a complaint with the
Office of the City Prosecutor of Pasay City, but said office dismissed the
complaint. Private complainant then re-filed the complaint with the Office of
the City Prosecutor of Pasig City. The Office of the Prosecutor of Pasig City
found probable cause and filed the Information against the accused therein.
In said case, the Court categorically held that:chanRoblesvirtualLawlibrary
The dismissal of a similar complaint . . . filed by [private complainant] before
the City Prosecutor's Office of Pasay City will not exculpate the petitioner.
The case cannot bar petitioner's prosecution. It is settled that the dismissal
of a case during its preliminary investigation does not constitute double
jeopardy since a preliminary investigation is not part of the trial and is not
the occasion for the full and exhaustive display of the parties' evidence but
only such as may engender a well-grounded belief that an offense has been
committed and accused is probably guilty thereof. For this reason, it cannot
be considered equivalent to a judicial pronouncement of acquittal.
65 (Citations omitted)

As deftly noted both by Judge Giron-Dizon and the Court of Appeals, it was
not within the prosecutor's competence to issue or to direct the issuance of a
protection order. Assistant City Prosecutor Odronia could not have
adjudicated the parties' rights and obligation. That is, he was not in a
position to rule on Maria Sheila's right to be protected or on petitioner's duty
to desist from acts of violence:chanRoblesvirtualLawlibrary
Another allegation in the omnibus motion ... is that, plaintiff is engaged in
forum-shopping which merits the dismissal of the petition because there is a
pending criminal complaint for violation of R.A. 9262 with the City
Prosecutor's Office of Makati City, which is docketed as I.S. No. 05E-6413
and handled by Asst. City Prosecutor [Romel Odronia]. The said criminal
complaint involves the same parties and the same issue.

The Court is not persuaded. Granting arguendo that violation of R.A. 9262 is
included in the criminal complaint; the Asst. City Prosecutor is devoid of
power to issue a Temporary Protection Order. Consequently, the aggrieved
party in R.A. 9262 would have no other immediate recourse but to file a TPO
before the court.66
Failing in the most basic requisites of forum shopping — there not having
been an actual or potential final judgment on the merits rendered by a
competent court in the course of criminal proceedings - petitioner's
allegations regarding respondent Mendenilla's alleged lack of personality to
file suit and forum shopping must fail.

II

Petitioner further assails the manner of service of summons. He claims that

service of summons upon his employee, Tolentino, at Unit 1503, Grand
Tower Condominium, 150 L.P. Leviste St., Makati City,67 while he was out of
the country was ineffectual and failed to vest jurisdiction over his person in
the Regional Trial Court.

He theorizes that in cases where a temporary protection order is issued ex

parte by a trial court, the temporary protection order itself is the summons.
68 He adds that Section 15 of the Anti-VAWC Law and Section 15 of A.M. No.

04-10-11-SC stipulate personal service — and absolutely no other means of

service — of the temporary protection order upon the respondent.69 Thus,
service through Tolentino was ineffectual.

II.A

Petitioner's overly pedantic appreciation of the Anti-VAWC Law and of A.M.

No. 04-10-11-SC is grossly erroneous. The non-use of the precise term
"summons" in the Anti-VAWC Law, its Implementing Rules and Regulations,
and its procedural rules provided in A.M. No. 04-10-11-SC does not justify
the equation of a temporary protection order with summons and the
exclusion of the use of summons.

The nature and purpose of summons is markedly different from those of a

protection order. This prevents the latter from being a substitute for the
former.

Summons is a procedural tool. It is a writ by which the defendant is notified

that an action was brought against him or her.70 In an action in personam,
brought to enforce personal rights and obligations, jurisdiction over the
person of the defendant is mandatory. In such actions, therefore,
summonses serve not only to notify the defendant of the filing of an action,
but also to enable acquisition of jurisdiction over his person.71

A protection order is not a procedural mechanism, which is imperative for

the progression of an initiated action. Rather, it is itself a substantive relief
which "prevent[s] further acts of violence against a woman or her child
specified in Section 5 of [the Anti-VAWC Law] and granting other necessary
relief."72 Protection orders issued by courts come in two (2) forms:
temporary and permanent. The distinction, as their respective names
denote, is their duration. A temporary protection order is provisional,
whereas a permanent protection order is lasting or final.

When a case is of particular urgency, a trial court may ex parte issue a

temporary protection order, granting the reliefs under Section 8 of the Anti-
VAWC Law in the interim, that is, for a 30-day period.73 Precisely because
the case is of such particular urgency that a temporary protection order is
deemed necessary. Section 15 of the Anti-VAWC Law includes a stipulation
that the temporary protection order must be immediately personally served
on the respondent. It provides, "The court shall order the immediate
personal service of the [temporary protection order] on the respondent by
the court sheriff who may obtain the assistance of law enforcement agents
for the service."

To determine whether the temporary protection order should be made

permanent and a complete, substantive relief extended to the alleged victim,
Section 15 of the Anti-VAWC Law mandates the conduct of hearing within
the 30-day effectivity of the temporary protection order. The clear and
specific singular purpose of the hearing is manifest in Section 15: "[t]he
court shall schedule a hearing on the issuance of a [permanent protection
order] prior to or on the date of the expiration of the [temporary protection
order]." Because a hearing is to be conducted, the respondent must
necessarily be informed. Thus, Section 15 further states that, "[t]he
[temporary protection order] shall include notice of the date of the hearing
on the merits of the issuance of a [permanent protection order]."

Clearly then, summons and temporary protection orders are entirely

different judicial issuances. It is true that the latter also serves the purpose
of conveying information. However, this information pertains not to the filing
of an action but merely to the schedule of an upcoming hearing. The
similarities of a summons and a protection order begin and end with their
informative capacity. At no point does the Anti-VAWC Law intimate that the
temporary protection order is the means for acquiring jurisdiction over the
person of the respondent.

Section 15 of the Anti-VAWC Law's reference to "immediate personal

service" is an incident of the underlying urgency which compelled the ex
parte issuance of a protection order. It should not be construed as a
restriction on the manner of acquisition of jurisdiction over the person of the
respondent. Otherwise, far from relieving a manifest urgency, it stifles a civil
action for the issuance of a protection order right at the moment of its
initiation. Construed as such, a temporary protection order is twisted to a
shrewdly convenient procedural tool for defeating the very purposes for
which it was issued in the first place.

II.B

Section 1 of A.M. No. 04-10-11-SC expressly states that while it governs

petitions for the issuance of protection orders under the Anti-VAWC Law,
"[t]he Rules of Court shall apply suppletorily." In the silence of A.M. No.
04-10-11-SC, service of summons - the means established by the 1997
Rules of Civil Procedure for informing defendants and/or respondents of the
filing of adverse actions, and for the acquisition of jurisdiction over their
persons - remains efficacious.

Petitioner, though an American citizen, was admittedly a resident of the

Philippines as of September 7, 2005, the date when Deputy Sheriff Velasco
attempted to personally serve summons on him.74 On September 7, 2005,
however, he was not in the Philippines. It was this circumstance which,
according to the Sheriff's Report,75 impelled substituted service of summons
through Tolentino.

Rule 14, Section 6 of the 1997 Rules of Civil Procedure clearly articulates a
preference for personal service of summons:chanRoblesvirtualLawlibrary
Section 6. Service in person on defendant. - Whenever practicable, the
summons shall be served by handing a copy thereof to the defendant in
person, or, if he refuses to receive and sign for it, by tendering it to him.
Rule 14, Section 6 recognizes two (2) alternative ways through which
personal service may be effected: first, by actually handing summons to the
defendant, which presupposes the defendant's willingness to accept the
summons; and second, by mere tender, if the defendant refuses to accept.

If personal service is impracticable within a reasonable time, substituted

service may be resorted to in lieu of personal service. Rule 14, Section 7
states:chanRoblesvirtualLawlibrary
Section 7. Substituted service. - If, for justifiable causes, the defendant
cannot be served within a reasonable time as provided in the preceding
section, service may be effected (a) by leaving copies of the summons at the
defendant's residence with some person of suitable age and discretion then
residing therein, or (b) by leaving the copies at defendant's office or regular
place of business with some competent person in charge thereof.
In the case of residents who are temporarily not in the Philippines, another
alternative means for serving summons is through extraterritorial service.
Rule 14, Section 16 states:chanRoblesvirtualLawlibrary
Section 16. Residents temporarily out of the Philippines. — When any action
is commenced against a defendant who ordinarily resides within the
Philippines, but who is temporarily out of it, service may, by leave of court,
be also effected out of the Philippines, as under the preceding section.
The preceding Section 15 spells out the terms of extraterritorial
service:chanRoblesvirtualLawlibrary
Section 15. Extraterritorial service. — When the defendant does not reside
and is not found in the Philippines, and the action affects the personal status
of the plaintiff or relates to, or the subject of which is, property within the
Philippines, in which the defendant has or claims a lien or interest, actual or
contingent, or in which the relief demanded consists, wholly or in part, in
excluding the defendant from any interest therein, or the property of the
defendant has been attached within the Philippines, service may, by leave of
court, be effected out of the Philippines by personal service as under Section
6; or by publication in a newspaper of general circulation in such places and
for such time as the court may order, in which case a copy of the summons
and order of the court shall be sent by registered mail to the last known
address of the defendant, or in any other manner the court may deem
sufficient. Any order granting such leave shall specify a reasonable time,
which shall not be less than sixty (60) days after notice, within which the
defendant must answer.
 II.C

Jurisprudence has long settled that, with respect to residents temporarily out
of the Philippines, the availability of extraterritorial services does not
preclude substituted service. Resort to substituted service has long been
held to be fair, reasonable and just. This Court has noted that a contrary,
restrictive view is that which defeats the ends of justice. It has been
emphasized that residents who temporarily leave their residence are
responsible for ensuring that their affairs are in order, and that, upon their
return, they shall attend to exigencies that may have arisen. In Montalban v.
Maximo:76
This brings us to the question of procedural due process. Substituted service
. . . upon a temporarily absent resident, it has been held, is wholly adequate
to meet the requirements of due process. The constitutional requirement of
due process exacts that the service be such as may be reasonably expected
to give the notice desired. Once the service provided by the rules reasonably
accomplishes that end, the requirement of justice is answered; the
traditional notions of fair play are satisfied; due process is served.

....

Chief Justice Moran shares this view. Commenting on Section 18, Rule 14,
he states: "Since the defendant is residing in the Philippines, jurisdiction
over his person may be acquired by Philippine courts by substituted service
of summons under section 8. But extraterritorial service is allowed also by
leave of court according to the above provision [Section 18]." Justice Martin
regards the word "residence" in Section 8 as "the place where the person
named in the summons is living at the time when the service is made, even
though he may be temporarily out of the state at the time."

This construction is but fair. It is in accord with substantial justice. The

burden on a plaintiff is not to be enlarged with a restrictive construction as
desired by defendant here. Under the rules, a plaintiff, in the initial stage of
suit, is merely required to know the defendant's "dwelling house or
residence" or his "office or regular place of business" — and no more. He is
not asked to investigate where a resident defendant actually is, at the
precise moment of filing suit. Once defendant's dwelling house or residence
or office or regular place of business is known, he can expect valid service of
summons to be made on "some person of suitable age and discretion then
residing" in defendant's dwelling house or residence, or on "some competent
person in charge" of his office or regular place of business. By the terms of
the law, plaintiff is not even duty-bound to see to it that the person upon
whom service was actually made delivers the summons to defendant or
informs him about it. The law presumes that for him.

It is immaterial then that defendant does not in fact receive actual notice.
This will not affect the validity of the service. Accordingly, the defendant
may be charged by a judgment in personam as a result of legal proceedings
upon a method of service which is not personal, "which in fact may not
become actual notice to him," and which may be accomplished in his lawful
absence from the country. For, the rules do not require that papers be
served on defendant personally or a showing that the papers were delivered
to defendant by the person with whom they were left.

Reasons for the views just expressed are not wanting. A man temporarily
absent from this country leaves a definite place of residence, a dwelling
where he lives, a local base, so to speak, to which any inquiry about him
may be directed and where he is bound to return. Where one temporarily
absents himself, he leaves his affairs in the hands of one who may be
reasonably expected to act in his place and stead; to do all that is necessary
to protect his interests; and to communicate with him from time to time any
incident of importance that may affect him or his business or his affairs. It is
usual for such a man to leave at his home or with his business associates
information as to where he may be contacted in the event a question that
affects him crops up. If he does not do what is expected of him, and a case
comes up in court against him, he cannot in justice raise his voice and say
that he is not subject to the processes of our courts. He cannot stop a suit
from, being filed against him upon a claim that he cannot be summoned at
his dwelling house or residence or his office or regular place of business.

Not that he cannot be reached within a reasonable time to enable him to

contest a suit against him. There are now advanced facilities of
communication. Long distance telephone calls and cablegrams make it easy
for one he left behind to communicate with him.
In the light of the foregoing, we find ourselves unwilling to concede that
substituted service ... may be down-graded as an ineffective means to bring
temporarily absent residents within the reach of our courts.77 (Emphasis
supplied, citations omitted)
We see no reason for holding as ineffectual the substituted service of
summons, which was recounted in the Sheriff's Report dated September 8,
2005.

Rule 14, Section 7 stipulates that substituted service may be resorted to

"[i]f, for justifiable causes, the defendant cannot be [personally] served
within a reasonable time."

This case pertains to alleged acts of violence against a woman. Petitioner

was alleged to have physically and psychologically assaulted his wife, Maria
Sheila, on multiple occasions. Maria Sheila was noted to have had to be
confined in a medical facility on account of petitioner's assaults. Maria
Sheila's mother found herself having to intervene to protect her daughter.
The totality of these entails an urgency which, by statute, justifies the
issuance of a temporary protection order even as the respondent to
Mendenilla's petition was yet to be heard. This is an urgency, which the
Regional Trial Court actually found to be attendant as it did, in fact, issue a
temporary protection order.

Time was of the essence. The exigencies of this case reveal a backdrop of
justifiable causes and how, by the convenience of petitioner Steven Pavlow's
temporary absence, immediate personal service was rendered impossible.
These exigencies justified substituted service of summons upon petitioner
during his temporary absence through Monette Tolentino, a person of
suitable age and discretion, who also resided at petitioner's own residence.
Jurisdiction over petitioner's person was then validly acquired, and the
dismissal of respondent Cherry L. Mendenilla's petition on this score was
correctly held by Judge Natividad Giron-Dizon to be unwarranted.

WHEREFORE, the Petition is DENIED. The assailed October 17, 2007

Decision and January 25, 2008 Resolution of the Court of Appeals in CA-G.R.
SP No. 94540 are AFFIRMED.

SO ORDERED.
Sexual Harassment

DR. RICO S. JACUTIN, Petitioner, vs. PEOPLE OF THE

PHILIPPINES, Respondent.

VITUG, J.:

In an accusatory Information, dated 22 July 1996, petitioner, City Health

Officer Rico Jacutin of Cagayan de Oro City, was charged before the
Sandiganbayan, Fourth Division, with the crime of Sexual Harassment,
thusly:

"That sometime on or about 01 December 1995, in Cagayan de Oro City, and

within the jurisdiction of this Honorable Court pursuant to the provisions of
RA 7975, the accused, a public officer, being then the City Health Officer of
Cagayan de Oro City with salary grade 26 but a high ranking official by
express provision of RA 7975, committing the offense in relation to his
official functions and taking advantage of his position, did there and then,
willfully, unlawfully and criminally, demand, solicit, request sexual favors
from Ms. Juliet Q. Yee, a young 22 year-old woman, single and fresh
graduate in Bachelor of Science in Nursing who was seeking employment in
the office of the accused, namely: by demanding from Ms. Yee that she
should, expose her body and allow her private parts to be mashed and
stimulated by the accused, which sexual favor was made as a condition for
the employment of Ms. Yee in the Family Program of the Office of the
accused, thus constituting sexual harassment."1

Upon his arraignment, petitioner pled not guilty to the offense charged;
hence, trial proceeded.

Juliet Q. Yee, then a 22-year old fresh graduate of nursing, averred that on
28 November 1995 her father accompanied her to the office of petitioner at
the City Health Office to seek employment. Juliet's father and petitioner
were childhood friends. Juliet was informed by the doctor that the City
Health Office had just then filled up the vacant positions for nurses but that
he would still see if he might be able to help her.

The following day, 29 November 1995, Juliet and her father returned to the
City Health Office, and they were informed by petitioner that a medical
group from Texas, U.S.A., was coming to town in December to look into
putting up a clinic in Lapasan, Cagayan de Oro, where she might be
considered. On 01 December 1995, around nine o'clock in the morning, she
and her father went back to the office of petitioner. The latter informed her
that there was a vacancy in a family planning project for the city and that, if
she were interested, he could interview her for the job. Petitioner then
started putting up to her a number of questions. When asked at one point
whether or not she already had a boyfriend, she said "no." Petitioner
suggested that perhaps if her father were not around, she could afford to be
honest in her answers to the doctor. The father, taking the cue, decided to
leave. Petitioner then inquired whether she was still a virgin, explaining to
her his theory on the various aspects of virginity. He "hypothetically" asked
whether she would tell her family or friends if a male friend happened to
intimately touch her. Petitioner later offered her the job where she would be
the subject of a "research" program. She was requested to be back after
lunch.

Before proceeding to petitioner's office that afternoon, Juliet dropped by at

the nearby church to seek divine guidance as she felt so "confused." When
she got to the office, petitioner made several telephone calls to some
hospitals to inquire whether there was any available opening for her. Not
finding any, petitioner again offered her a job in the family planning research
undertaking. She expressed hesitation if a physical examination would
include "hugging" her but petitioner assured her that he was only kidding
about it. Petitioner then invited her to go bowling. Petitioner told her to meet
him at Borja Street so that people would not see them on board the same
car together. Soon, at the designated place, a white car driven by petitioner
stopped. She got in. Petitioner held her pulse and told her not to be scared.
After dropping by at his house to put on his bowling attire, petitioner got
back to the car.

While driving, petitioner casually asked her if she already took her bath, and
she said she was so in a hurry that she did not find time for it. Petitioner
then inquired whether she had varicose veins, and she said "no." Petitioner
told her to raise her foot and lower her pants so that he might confirm it.
She felt assured that it was all part of the research. Petitioner still pushed
her pants down to her knees and held her thigh. He put his hands inside her
panty until he reached her pubic hair. Surprised, she exclaimed "hala ka!"
and instinctively pulled her pants up. Petitioner then touched her abdomen
with his right hand saying words of endearment and letting the back of his
palm touch her forehead. He told her to raise her shirt to check whether she
had nodes or lumps. She hesitated for a while but, eventually, raised it up to
her navel. Petitioner then fondled her breast. Shocked at what petitioner did,
she lowered her shirt and embraced her bag to cover herself, telling him
angrily that she was through with the research. He begged her not to tell
anybody about what had just happened. Before she alighted from the car,
petitioner urged her to reconsider her decision to quit. He then handed over
to her P300.00 for her expenses.

Arriving home, she told her mother about her meeting with Dr. Jacutin and
the money he gave her but she did not give the rest of the story. Her mother
scolded her for accepting the money and instructed her to return it. In the
morning of 04 December 1994, Juliet repaired to the clinic to return the
money to petitioner but she was not able to see him until about one o'clock
in the afternoon. She tried to give back the money but petitioner refused to
accept it.

A week later, Juliet told her sister about the incident. On 16 December 1995,
she attempted to slash her wrist with a fastener right after relating the
incident to her mother. Noticing that Juliet was suffering from some
psychological problem, the family referred her to Dr. Merlita Adaza for
counseling. Dr. Adaza would later testify that Juliet, together with her sister,
came to see her on 21 December 1995, and that Juliet appeared to be
emotionally disturbed, blaming herself for being so stupid as to allow Dr.
Jacutin to molest her. Dr. Adaza concluded that Juliet's frustration was due to
post trauma stress.

Petitioner contradicted the testimony of Juliet Yee. He claimed that on 28

November 1995 he had a couple of people who went to see him in his office,
among them, Juliet and her father, Pat. Justin Yee, who was a boyhood
friend. When it was their turn to talk to petitioner, Pat. Yee introduced his
daughter Juliet who expressed her wish to join the City Health Office.
Petitioner replied that there was no vacancy in his office, adding that only
the City Mayor really had the power to appoint city personnel. On 01
December 1995, the afternoon when the alleged incident happened, he was
in a meeting with the Committee on Awards in the Office of the City Mayor.
On 04 December 1995, when Juliet said she went to his office to return the
P300.00, he did not report to the office for he was scheduled to leave for
Davao at 2:35 p.m. to attend a hearing before the Office of the Ombudsman
for Mindanao. He submitted in evidence a photocopy of his plane ticket. He
asserted that the complaint for sexual harassment, as well as all the other
cases filed against him by Vivian Yu, Iryn Salcedo, Mellie Villanueva and
Pamela Rodis, were but forms of political harassment directed at him.

The Sandiganbayan, through its Fourth Division, rendered its decision, dated
05 November 1999, penned by Mr. Justice Rodolfo G. Palattao, finding the
accused, Dr. Rico Jacutin, guilty of the crime of Sexual Harassment under
Republic Act No. 7877. The Sandiganbayan concluded:

"WHEREFORE, judgment is hereby rendered, convicting the accused RICO

JACUTIN Y SALCEDO of the crime of Sexual Harassment, defined and
punished under R.A. No. 7877, particularly Secs. 3 and 7 of the same Act,
properly known as the Anti-Sexual Harassment Act of 1995, and is hereby
sentenced to suffer the penalty of imprisonment of six (6) months and to
pay a fine of Twenty Thousand (P20,000.00) Pesos, with subsidiary
imprisonment in case of insolvency. Accused is further ordered to indemnify
the offended party in the amount of Three Hundred Thousand (P300,000.00)
Pesos, by way of moral damages; Two Hundred Thousand (P200,000.00)
Pesos, by way of Exemplary damages and to pay the cost of suit."2

In the instant recourse, it is contended that -

"I. Petitioner cannot be convicted of the crime of sexual harassment in view

of the inapplicability of Republic Act No. 7877 to the case at bar.

"II. Petitioner [has been] denied x x x his constitutional right to due process
of law and presumption of innocence on account of the insufficiency of the
prosecution evidence to sustain his conviction."3

The above contentions of petitioner are not meritorious. Section 3 of

Republic Act 7877 provides:

"SEC. 3. Work, Education or Training-related Sexual Harassment Defined. -

Work, education or training-related sexual harassment is committed by an
employer, employee, manager, supervisor, agent of the employer, teacher,
instructor, professor, coach, trainor, or any other person who, having
authority, influence or moral ascendancy over another in a work or training
or education environment, demands, requests or otherwise requires any
sexual favor from the other, regardless of whether the demand, request or
requirement for submission is accepted by the object of said Act.

"(a) In a work-related or employment environment, sexual harassment is

committed when:

"(1) The sexual favor is made as a condition in the hiring or in the

employment, re-employment or continued employment of said individual, or
in granting said individual favorable compensation, terms, conditions,
promotions, or privileges; or the refusal to grant the sexual favor results in
limiting, segregating or classifying the employee which in any way would
discriminate, deprive or diminish employment opportunities or otherwise
adversely affect said employee."

Petitioner was the City Health Officer of Cagayan de Oro City, a position he
held when complainant, a newly graduated nurse, saw him to enlist his help
in her desire to gain employment. He did try to show an interest in her
plight, her father being a boyhood friend, but finding no opening suitable for
her in his office, he asked her about accepting a job in a family planning
research project. It all started from there; the Sandiganbayan recited the
rest of the story:

"x x x. Succeeding in convincing the complainant that her physical

examination would be a part of a research, accused asked complainant if she
would agree that her private parts (bolts) would be seen. Accused assured
her that with her cooperation in the research, she would gain knowledge
from it. As complainant looked upon the accused with utmost reverence,
respect, and paternal guidance, she agreed to undergo the physical
examination. At this juncture, accused abruptly stopped the interview and
told the complainant to go home and be back at 2:00 o'clock in the
afternoon of the same day, December 1, 1995. Complainant returned at
2:00 o'clock in the afternoon, but did not proceed immediately to the office
of the accused, as she dropped by a nearby church to ask divine guidance,
as she was confused and at a loss on how to resolve her present
predicament. At 3:00 o'clock in the afternoon, she went back to the office of
the accused. And once inside, accused called up a certain Madonna, inquiring
if there was a vacancy, but he was told that she would only accept a
registered nurse. Complainant was about to leave the office of the accused
when the latter prevailed upon her to stay because he would call one more
hospital. In her presence, a call was made. But again accused told her that
there was no vacancy. As all efforts to look for a job in other hospitals failed,
accused renewed the offer to the complainant to be a part of the research in
the Family Planning Program where there would be physical examination.
Thereafter, accused motioned his two (2) secretaries to go out of the room.
Upon moving closer to the complainant, accused asked her if she would
agree to the offer. Complainant told him she would not agree because the
research included hugging. He then assured her that he was just kidding and
that a pre-schooler and high schooler have already been subjected to such
examination. With assurance given, complainant changed her mind and
agreed to the research, for she is now convinced that she would be of help
to the research and would gain knowledge from it. At this point, accused
asked her if she was a 'tomboy', she answered in the negative. He then
instructed her to go with him but he would first play bowling, and later
proceed with the research (physical examination). On the understanding of
the complainant that they will proceed to the clinic where the research will
be conducted, she agreed to go with the accused. But accused instructed her
to proceed to Borja St. where she will just wait for him, as it was not good
for people to see them riding in a car together. She walked from the office of
the accused and proceeded to Borja St. as instructed. And after a while, a
white car arrived. The door was opened to her and she was instructed by the
accused to come inside. Inside the car, he called her attention why she was
in a pensive mood. She retorted she was not. As they were seated side by
side, the accused held her pulse and told her not to be scared. He informed
her that he would go home for a while to put on his bowling attire. After a
short while, he came back inside the car and asked her if she has taken a
bath. She explained that she was not able to do so because she left the
house hurriedly. Still while inside the car, accused directed her to raise her
foot so he could see whether she has varicose veins on her legs. Thinking
that it was part of the research, she did as instructed. He told her to raise it
higher, but she protested. He then instructed her to lower her pants instead.
She did lower her pants, exposing half of her legs. But then the accused
pushed it forward down to her knees and grabbed her legs. He told her to
raise her shirt. Feeling as if she had lost control of the situation, she raised
her shirt as instructed. Shocked, she exclaimed, 'hala ka!' because he tried
to insert his hand into her panty. Accused then held her abdomen, saying,
'you are like my daughter, 'Day'! (Visayan word of endearment),' and let the
back of his palm touch her forehead, indicating the traditional way of making
the young respect their elders. He again told her to raise her shirt. Feeling
embarrassed and uncomfortable, yet unsure whether she was entertaining
malice, she raised her shirt up to her breast. He then fondled her breast.
Reacting, she impulsively lower her shirt and embraced her bar while silently
asking God what was happening to her and asking the courage to resist
accused's physical advances. After a short while, she asked him if there
could be a right place for physical examination where there would be many
doctors. He just exclaimed, 'so you like that there are many doctors!' Then
he asked her if she has tooth decay. Thinking that he was planning to kiss
her, she answered that she has lots of decayed teeth. He advised her then to
have them treated. Finally, she informed him that she would not continue
with the research. The accused retorted that complainant was entertaining
malice and reminded her of what she earlier agreed; that she would not tell
anybody about what happened. He then promised to give her P15,000.00 so
that she could take the examination. She was about to open the door of the
car when he suddenly grabbed her thigh, but this time, complainant
instantly parried his hand with her bag."4

While the City Mayor had the exclusive prerogative in appointing city
personnel, it should stand to reason, nevertheless, that a recommendation
from petitioner in the appointment of personnel in the municipal health office
could carry good weight. Indeed, petitioner himself would appear to have
conveyed, by his words and actions, an impression that he could facilitate
Juliet's employment. Indeed, petitioner would not have been able to take
undue liberalities on the person of Juliet had it not been for his high position
in the City Health Office of Cagayan de Oro City. The findings of the
Sandiganbayan were bolstered by the testimony of Vivian Yu, petitioner's
secretary between 1979 to 1994, of Iryn Lago Salcedo, Public Health Nurse
II, and of Farah Dongallo y Alkuino, a city health nurse, all of whom were
said to have likewise been victims of perverse behavior by petitioner.

The Sandiganbayan rightly rejected the defense of alibi proffered by

petitioner, i.e., that he was at a meeting of the Committee on Awards; the
court a quo said:
"There are some observations which the Court would like to point out on the
evidence adduced by the defense, particularly in the Minutes of the meeting
of the Awards Committee, as testified to by witness Myrna Maagad on
September 8, 1998.

"First, admitted, Teresita I. Rozabal was the immediate supervisor of witness

Myrna Maagad. The Notices to hold the meeting (Exh. '3-A' and '3-B') were
signed by Teresita Rozabal. But the Minutes of the meeting, Exh. '5', was
signed by Myrna Maagad and not by Teresita Rozabal. The documents, Exhs.
'3-A' and '3-B' certify that the officially designated secretary of the Awards
Committee was Teresita Rozabal.

"Second, why was Myrna Maagad in possession of the attendance logbook

and how was she able to personally bring the same in court when she
testified on September 8, 1998, when in fact, she admitted during her
testimony that she retired from the government service on December 1,
1997? Surely, Myrna Maagad could not still be the custodian of the logbook
when she testified.

"And finally, in the logbook, under the sub-heading, 'Others Present,' the
attendance of those who attended was individually handwritten by the
persons concerned who wrote and signed their names. But in the case of Dr.
Tiro and Dr. Rico Jacutin, their names were handwritten by clerk Sylvia Tan-
Nerry, not by Dr. Tiro and Dr. Jacutin. However, Myrna Maagad testified that
the logbook was passed around to attending individuals inside the
conference room."5

Most importantly, the Supreme Court is not a trier of facts, and the factual
findings of the Sandiganbayan must be respected by, if not indeed conclusive
upon, the tribunal,6 no cogent reasons having been sufficiently shown to now
hold otherwise. The assessment on the credibility of witnesses is a matter
best left to the trial court because of its unique position of being able to
observe that elusive and incommunicable evidence on the deportment of
witnesses at the stand, an opportunity that is denied the appellate court.7

Conformably with prevailing jurisprudence, the grant of moral and

exemplary damages by the Sandiganbayan must be tempered to reasonable
levels. Moral damages are not intended to enrich a complainant but are
awarded only to enable an injured party obtain some means that would help
obviate the sufferings sustained on account of the culpable action of an
offender. Its award must not appear to be the result of passion or undue
prejudice,8 and it must always reasonably approximate the extent of injury
and be proportional to the wrong committed. Indeed, Juliet should be
recompensed for her mental anguish. Dr. Merlita F. Adaza, a psychological
counseling expert, has found Juliet to be emotionally and psychologically
disturbed and suffering from post trauma stress following her unpleasant
experience with petitioner. The Court finds it fitting to award in favor of Juliet
Yee P30,000.00 moral damages. In addition, she should be entitled to
P20,000.00 exemplary damages to serve as a deterrent against, or as a
negative incentive to curb, socially deleterious actions.9

WHEREFORE, the questioned decision of the Sandiganbayan in Criminal Case

No. 23799, finding Dr. Rico Jacutin y Salcedo GUILTY of the crime of Sexual
Harassment defined and punished under Republic Act No. 7877, particularly
Sections 3 and 7 thereof, and penalizing him with imprisonment of six (6)
months and to pay a fine of Twenty Thousand (P20,000.00) Pesos, with
subsidiary imprisonment in case of insolvency, is AFFIRMED. The
Sandiganbayan's award of moral and exemplary damages are MODIFIED;
instead, petitioner is ordered to indemnify the offended party, Juliet Yee, in
the amount of P30,000.00 and P20,000.00 by way of, respectively, moral
damages and exemplary damages. Costs against petitioner.

SO ORDERED.
MA. LOURDES T. DOMINGO, petitioner,

vs.

ROGELIO I. RAYALA, respondent.

x-------------------------x

G.R. No. 155840 February 18, 2008

ROGELIO I. RAYALA, petitioner,


vs.

OFFICE OF THE PRESIDENT; RONALDO V. ZAMORA, in his capacity as
Executive Secretary; ROY V. SENERES, in his capacity as Chairman of
the National Labor Relations Commission (in lieu of RAUL T.
AQUINO, in his capacity as Acting Chairman of the National labor
Relations Commission); and MA. LOURDES T. DOMINGO, respondents.

x-------------------------x

G.R. No. 158700 February 18, 2008

The REPUBLIC OF THE PHILIPPINES, represented by the OFFICE OF

THE PRESIDENT; and ALBERTO G. ROMULO, in his capacity as
Executive Secretary, petitioners,

vs.

ROGELIO I. RAYALA, respondent.

DECISION

NACHURA, J.:

Sexual harassment is an imposition of misplaced "superiority" which is

enough to dampen an employee’s spirit and her capacity for advancement. It
affects her sense of judgment; it changes her life.1

Before this Court are three Petitions for Review on Certiorari assailing the
October 18, 2002 Resolution of the CA’s Former Ninth Division2 in CA-G.R.
SP No. 61026. The Resolution modified the December 14, 2001 Decision3 of
the Court of Appeals’ Eleventh Division, which had affirmed the Decision of
the Office of the President (OP) dismissing from the service then National
Labor Relations Commission (NLRC) Chairman Rogelio I. Rayala (Rayala) for
disgraceful and immoral conduct.
All three petitions stem from the same factual antecedents.

On November 16, 1998, Ma. Lourdes T. Domingo (Domingo), then

Stenographic Reporter III at the NLRC, filed a Complaint for sexual
harassment against Rayala before Secretary Bienvenido Laguesma of the
Department of Labor and Employment (DOLE).

To support the Complaint, Domingo executed an Affidavit narrating the

incidences of sexual harassment complained of, thus:

xxxx

4. Sa simula ay pabulong na sinasabihan lang ako ni Chairman Rayala ng

mga salitang "Lot, gumaganda ka yata?"

5. Sa ibang mga pagkakataon nilalapitan na ako ni Chairman at hahawakan

ang aking balikat sabay pisil sa mga ito habang ako ay nagta-type at habang
nagbibigay siya ng diktasyon. Sa mga pagkakataong ito, kinakabahan ako.
Natatakot na baka mangyari sa akin ang mga napapabalitang insidente na
nangyari na noon tungkol sa mga sekretarya niyang nagbitiw gawa ng mga
mahahalay na panghihipo ni Chairman.

6. Noong ika-10 ng Setyembre, 1998, nang ako ay nasa 8th Floor, may
nagsabi sa akin na kailangan akong bumaba sa 7th Floor kung nasaan ang
aming opisina dahil sa may koreksyon daw na gagawin sa mga papel na
tinayp ko. Bumaba naman ako para gawin ito. Habang ginagawa ko ito,
lumabas si Chairman Rayala sa silid ni Mr. Alex Lopez. Inutusan ako ni
Chairman na sumunod sa kaniyang silid. Nang nasa silid na kami, sinabi niya
sa akin:

Chairman: Lot, I like you a lot. Naiiba ka sa lahat.

At pagkatapos ako ay kaniyang inusisa tungkol sa mga personal na bagay sa

aking buhay. Ang ilan dito ay tungkol sa aking mga magulang, kapatid, pag-
aaral at kung may boyfriend na raw ba ako.

Chairman: May boyfriend ka na ba?

Lourdes: Dati nagkaroon po.

Chairman: Nasaan na siya?

Lourdes: Nag-asawa na ho.

Chairman: Bakit hindi kayo nagkatuluyan?

Lourdes: Nainip po.

Chairman: Pagkatapos mo ng kurso mo ay kumuha ka ng Law at ako ang

bahala sa iyo, hanggang ako pa ang Chairman dito.

Pagkatapos ay kumuha siya ng pera sa kaniyang amerikana at inaabot sa

akin.

Chairman: Kuhanin mo ito.

Lourdes: Huwag na ho hindi ko kailangan.

Chairman: Hindi sige, kuhanin mo. Ayusin mo ang dapat ayusin.

Tinanggap ko po ang pera ng may pag-aalinlangan. Natatakot at

kinakabahan na kapag hindi ko tinanggap ang pera ay baka siya magagalit
kasabay na rito ang pagtapon sa akin kung saan-saan opisina o kaya ay
tanggalin ako sa posisyon.

Chairman: Paglabas mo itago mo ang pera. Ayaw ko ng may makaka-alam

nito. Just the two of us.

Lourdes: Bakit naman, Sir?

Chairman: Basta. Maraming tsismosa diyan sa labas. But I don’t give them a
damn. Hindi ako mamatay sa kanila.

Tumayo na ako at lumabas. Pumanhik na ako ng 8th Floor at pumunta ako sa

officemate ko na si Agnes Magdaet. Ikinwento ko ang nangyari sa akin sa
opisina ni Chairman. Habang kinikwento ko ito kay Agnes ay binilang namin
ang pera na nagkakahalaga ng tatlong libong piso (PHP 3,000). Sinabi ni
Agnes na isauli ko raw ang pera, pero ang sabi ko ay natatakot ako baka
magalit si Sir. Nagsabi agad kami kay EC Perlita Velasco at sinalaysay ko ang
nangyari. Sinabi niya na isauli ko ang pera at noong araw ding iyon ay
nagpasiya akong isauli na nga ito ngunit hindi ako nagkaroon ng
pagkakataon dahil marami siyang naging bisita. Isinauli ko nga ang pera
noong Lunes, Setyembre 14, 1998.
7. Noong huling linggo ng Setyembre, 1998, ay may tinanong din sa akin si
Chairman Rayala na hindi ko masikmura, at sa aking palagay at tahasang
pambabastos sa akin.

Chairman: Lot, may ka live-in ka ba?

Lourdes: Sir, wala po.

Chairman: Bakit malaki ang balakang mo?

Lourdes: Kayo, Sir ha! Masama sa amin ang may ka live-in.

Chairman: Bakit, ano ba ang relihiyon ninyo?

Lourdes: Catholic, Sir. Kailangan ikasal muna.

Chairman: Bakit ako, hindi kasal.

Lourdes: Sir, di magpakasal kayo.

Chairman: Huh. Ibahin na nga natin ang usapan.

8. Noong Oktubre 29, 1998, ako ay pumasok sa kwarto ni Chairman Rayala.

Ito ay sa kadahilanang ang fax machine ay nasa loob ng kaniyang kwarto.
Ang nag-aasikaso nito, si Riza Ocampo, ay naka-leave kaya ako ang nag-
asikaso nito noong araw na iyon. Nang mabigyan ko na ng fax tone yung
kausap ko, pagharap ko sa kanan ay nakaharang sa dadaanan ko si
Chairman Rayala. Tinitingnan ako sa mata at ang titig niya ay umuusad mula
ulo hanggang dibdib tapos ay ngumiti na may mahalay na pakahulugan.

9. Noong hapon naman ng pareho pa ring petsa, may nag-aapply na

sekretarya sa opisina, sinabi ko ito kay Chairman Rayala:

Lourdes: Sir, si Pinky po yung applicant, mag-papainterview po yata sa inyo.

Chairman: Sabihin mo magpa-pap smear muna siya

Chairman: O sige, i-refer mo kay Alex. (Alex Lopez, Chief of Staff).

10. Noong Nobyembre 9, 1998, ako ay tinawag ni Chairman Rayala sa

kaniyang opisina upang kuhanin ko ang diktasyon niya para kay ELA Oscar
Uy. Hindi pa kami nakakatapos ng unang talata, may pumasok na bisita si
Chairman, si Baby Pangilinan na sinamahan ni Riza Ocampo. Pinalabas muna
ako ni Chairman. Nang maka-alis na si Ms. Pangilinan, pinapasok na niya
ako ulit. Umupo ako. Lumapit sa likuran ko si Chairman, hinawakan ang
kaliwang balikat ko na pinipisil ng kanang kamay niya at sinabi:

Chairman: Saan na ba tayo natapos?

Palakad-lakad siya sa aking likuran habang nag-didikta. Huminto siya

pagkatapos, at nilagay niya ang kanang kamay niya sa aking kanang balikat
at pinisil-pisil ito pagkatapos ay pinagapang niya ito sa kanang bahagi ng
aking leeg, at pinagapang hanggang kanang tenga at saka kiniliti. Dito ko
inalis ang kaniyang kamay sa pamamagitan ng aking kaliwang kamay. At
saka ko sinabi:

Lourdes: Sir, yung kamay ninyo alisin niyo!

Natapos ko rin ang liham na pinagagawa niya pero halos hindi ko na

maintindihan ang na-isulat ko dahil sa takot at inis na nararamdaman ko.4

After the last incident narrated, Domingo filed for leave of absence and
asked to be immediately transferred. Thereafter, she filed the Complaint for
sexual harassment on the basis of Administrative Order No. 250, the Rules
and Regulations Implementing RA 7877 in the Department of Labor and
Employment.

Upon receipt of the Complaint, the DOLE Secretary referred the Complaint to
the OP, Rayala being a presidential appointee. The OP, through then
Executive Secretary Ronaldo Zamora, ordered Secretary Laguesma to
investigate the allegations in the Complaint and create a committee for such
purpose. On December 4, 1998, Secretary Laguesma issued Administrative
Order (AO) No. 280, Series of 1998,5 constituting a Committee on Decorum
and Investigation (Committee) in accordance with Republic Act (RA) 7877,
the Anti-Sexual Harassment Act of 1995.6

The Committee heard the parties and received their respective evidence. On
March 2, 2000, the Committee submitted its report and recommendation to
Secretary Laguesma. It found Rayala guilty of the offense charged and
recommended the imposition of the minimum penalty provided under AO
250, which it erroneously stated as suspension for six (6) months.
The following day, Secretary Laguesma submitted a copy of the Committee
Report and Recommendation to the OP, but with the recommendation that
the penalty should be suspension for six (6) months and one (1) day, in
accordance with AO 250.

On May 8, 2000, the OP, through Executive Secretary Zamora, issued AO

119,7 the pertinent portions of which read:

Upon a careful scrutiny of the evidence on record, I concur with the findings
of the Committee as to the culpability of the respondent [Rayala], the same
having been established by clear and convincing evidence. However, I
disagree with the recommendation that respondent be meted only the
penalty of suspension for six (6) months and one (1) day considering the
circumstances of the case.

What aggravates respondent’s situation is the undeniable circumstance that

he took advantage of his position as the superior of the complainant.
Respondent occupies the highest position in the NLRC, being its Chairman.
As head of said office, it was incumbent upon respondent to set an example
to the others as to how they should conduct themselves in public office, to
see to it that his subordinates work efficiently in accordance with Civil
Service Rules and Regulations, and to provide them with healthy working
atmosphere wherein co-workers treat each other with respect, courtesy and
cooperation, so that in the end the public interest will be benefited (City
Mayor of Zamboanga vs. Court of Appeals, 182 SCRA 785 [1990]).

What is more, public service requires the utmost integrity and strictest
discipline (Gano vs. Leonen, 232 SCRA 99 [1994]). Thus, a public servant
must exhibit at all times the highest sense of honesty and integrity, and
"utmost devotion and dedication to duty" (Sec. 4 (g), RA 6713), respect the
rights of others and shall refrain from doing acts contrary to law, and good
morals (Sec. 4(c)). No less than the Constitution sanctifies the principle that
a public office is a public trust, and enjoins all public officers and employees
to serve with the highest degree of responsibility, integrity, loyalty and
efficiency (Section 1, Article XI, 1987 Constitution).

Given these established standards, I see respondent’s acts not just [as] a
failure to give due courtesy and respect to his co-employees (subordinates)
or to maintain good conduct and behavior but defiance of the basic norms or
virtues which a government official must at all times uphold, one that is
contrary to law and "public sense of morality." Otherwise stated, respondent
– to whom stricter standards must apply being the highest official [of] the
NLRC – had shown an attitude, a frame of mind, a disgraceful conduct,
which renders him unfit to remain in the service.

WHEREFORE, in view of the foregoing, respondent Rogelio I. Rayala,

Chairman, National Labor Relations Commission, is found guilty of the grave
offense of disgraceful and immoral conduct and is hereby DISMISSED from
the service effective upon receipt of this Order.

SO ORDER[ED].

Rayala filed a Motion for Reconsideration, which the OP denied in a

Resolution8 dated May 24, 2000. He then filed a Petition for Certiorari and
Prohibition with Prayer for Temporary Restraining Order under Rule 65 of the
Revised Rules on Civil Procedure before this Court on June 14,
2000.9 However, the same was dismissed in a Resolution dated June 26,
2000 for disregarding the hierarchy of courts.10 Rayala filed a Motion for

Reconsideration11 on August 15, 2000. In its Resolution12 dated September

4, 2000, the Court recalled its June 26 Resolution and referred the petition
to the Court of Appeals (CA) for appropriate action.

The CA rendered its Decision13 on December 14, 2001. It held that there was
sufficient evidence on record to create moral certainty that Rayala
committed the acts he was charged with. It said:

The complainant narrated her story complete with details. Her

straightforward and uninhibited testimony was not emasculated by the
declarations of Commissioner Rayala or his witnesses. x x x

Moreover, Commissioner Rayala has not proven any vicious motive for
Domingo and her witnesses to invent their stories. It is very unlikely that
they would perjure themselves only to accommodate the alleged conspiracy
to oust petitioner from office. Save for his empty conjectures and
speculations, Rayala failed to substantiate his contrived conspiracy. It is a
hornbook doctrine that conspiracy must be proved by positive and
convincing evidence (People v. Noroña, 329 SCRA 502 [2000]). Besides, it is
improbable that the complainant would concoct a story of sexual harassment
against the highest official of the NLRC and thereby expose herself to the
possibility of losing her job, or be the subject of reprisal from her superiors
and perhaps public ridicule if she was not telling the truth.
It also held that Rayala’s dismissal was proper. The CA pointed out that
Rayala was dismissed for disgraceful and immoral conduct in violation of RA
6713, the Code of Conduct and Ethical Standards for Public Officials and
Employees. It held that the OP was correct in concluding that Rayala’s acts
violated RA 6713:

Indeed, [Rayala] was a public official, holding the Chairmanship of the

National Labor Relations Commission, entrusted with the sacred duty of
administering justice. Occupying as he does such an exalted position,
Commissioner Rayala must pay a high price for the honor bestowed upon
him. He must comport himself at all times in such a manner that the conduct
of his everyday life should be beyond reproach and free from any
impropriety. That the acts complained of were committed within the
sanctuary of [his] office compounded the objectionable nature of his
wrongdoing. By daring to violate the complainant within the solitude of his
chambers, Commissioner Rayala placed the integrity of his office in
disrepute. His disgraceful and immoral conduct warrants his removal from
office.14

Thus, it dismissed the petition, to wit:

IN VIEW OF ALL THE FOREGOING, the instant petition is hereby DISMISSED

and Administrative Order No. 119 as well [as] the Resolution of the Office of
the President in O.P. Case No. 00-E-9118 dated May 24, 2000 are AFFIRMED
IN TOTO. No cost.

SO ORDERED.15

Rayala timely filed a Motion for Reconsideration. Justices Vasquez and

Tolentino voted to affirm the December 14 Decision. However, Justice Reyes
dissented mainly because AO 250 states that the penalty imposable is
suspension for six (6) months and one (1) day.16 Pursuant to the internal
rules of the CA, a Special Division of Five was constituted.17 In its October
18, 2002 Resolution, the CA modified its earlier Decision:

ACCORDINGLY, the Decision dated December [14], 2001 is MODIFIED to the

effect that the penalty of dismissal is DELETED and instead the penalty of
suspension from service for the maximum period of one (1) year is HEREBY
IMPOSED upon the petitioner. The rest of the challenged decision stands.

SO ORDERED.
Domingo filed a Petition for Review18 before this Court, which we denied in
our February 19, 2003 Resolution for having a defective verification. She
filed a Motion for Reconsideration, which the Court granted; hence, the
petition was reinstated.

Rayala likewise filed a Petition for Review19 with this Court essentially
arguing that he is not guilty of any act of sexual harassment.

Meanwhile, the Republic filed a Motion for Reconsideration of the CA’s

October 18, 2002 Resolution. The CA denied the same in its June 3, 2003
Resolution, the dispositive portion of which reads:

ACCORDINGLY, by a majority vote, public respondents’ Motion for

Reconsideration, (sic) is DENIED.

SO ORDERED.

The Republic then filed its own Petition for Review.20

On June 28, 2004, the Court directed the consolidation of the three (3)
petitions.

G.R. No. 155831

Domingo assails the CA’s resolution modifying the penalty imposed by the
Office of the President. She raises this issue:

The Court of Appeals erred in modifying the penalty for the respondent from
dismissal to suspension from service for the maximum period of one year.
The President has the prerogative to determine the proper penalty to be
imposed on an erring Presidential appointee. The President was well within
his power when he fittingly used that prerogative in deciding to dismiss the
respondent from the service.21

She argues that the power to remove Rayala, a presidential appointee, is

lodged with the President who has control of the entire Executive
Department, its bureaus and offices. The OP’s decision was arrived at after
affording Rayala due process. Hence, his dismissal from the service is a
prerogative that is entirely with the President.22
As to the applicability of AO No. 250, she argues that the same was not
intended to cover cases against presidential appointees. AO No. 250 refers
only to the instances wherein the DOLE Secretary is the disciplining
authority, and thus, the AO does not circumscribe the power of the President
to dismiss an erring presidential appointee.

G.R. No. 155840

In his petition, Rayala raises the following issues:

I. CONTRARY TO THE FINDINGS OF THE COURT OF APPEALS, THE

ACTS OF HEREIN PETITIONER DO NOT CONSTITUTE SEXUAL
HARASSMENT AS LAID DOWN BY THE En Banc RULING IN THE CASE
OF AQUINO vs. ACOSTA, ibid., AS WELL AS IN THE APPLICATION OF
EXISTING LAWS.

II. CONTRARY TO THE FINDINGS OF THE HONORABLE COURT OF

APPEALS, INTENT IS AN INDISPENSABLE ELEMENT IN A CASE FOR
SEXUAL HARASSMENT. THE HONORABLE COURT ERRED IN ITS
FINDING THAT IT IS AN OFFENSE THAT IS MALUM PROHIBITUM.

III. THE INVESTIGATION COMMITTEE, THE OFFICE OF THE

PRESIDENT, AND NOW, THE HONORABLE COURT OF APPEALS, HAS
MISAPPLIED AND EXPANDED THE DEFINITION OF SEXUAL
HARASSMENT IN THE WORKPLACE UNDER R.A. No. 7877, BY
APPLYING DOLE A.O. 250, WHICH RUNS COUNTER TO THE RECENT
PRONOUNCEMENTS OF THIS HONORABLE SUPREME COURT.23

Invoking Aquino v. Acosta,24 Rayala argues that the case is the definitive
ruling on what constitutes sexual harassment. Thus, he posits that for sexual
harassment to exist under RA 7877, there must be: (a) demand, request, or
requirement of a sexual favor; (b) the same is made a pre-condition to
hiring, re-employment, or continued employment; or (c) the denial thereof
results in discrimination against the employee.

Rayala asserts that Domingo has failed to allege and establish any sexual
favor, demand, or request from petitioner in exchange for her continued
employment or for her promotion. According to Rayala, the acts imputed to
him are without malice or ulterior motive. It was merely Domingo’s
perception of malice in his alleged acts – a "product of her own
imagination"25 – that led her to file the sexual harassment complaint.
Likewise, Rayala assails the OP’s interpretation, as upheld by the CA, that RA
7877 is malum prohibitum such that the defense of absence of malice is
unavailing. He argues that sexual harassment is considered an offense
against a particular person, not against society as a whole. Thus, he claims
that intent is an essential element of the offense because the law requires as
a conditio sine qua non that a sexual favor be first sought by the offender in
order to achieve certain specific results. Sexual harassment is committed
with the perpetrator’s deliberate intent to commit the offense.26

Rayala next argues that AO 250 expands the acts proscribed in RA 7877. In
particular, he assails the definition of the forms of sexual harassment:

Rule IV

FORMS OF SEXUAL HARASSMENT

Section 1. Forms of Sexual Harassment. – Sexual harassment may be

committed in any of the following forms:

a) Overt sexual advances;

b) Unwelcome or improper gestures of affection;

c) Request or demand for sexual favors including but not limited to going out
on dates, outings or the like for the same purpose;

d) Any other act or conduct of a sexual nature or for purposes of sexual

gratification which is generally annoying, disgusting or offensive to the
victim.27

He posits that these acts alone without corresponding demand, request, or

requirement do not constitute sexual harassment as contemplated by the
law.28 He alleges that the rule-making power granted to the employer in
Section 4(a) of RA 7877 is limited only to procedural matters. The law did
not delegate to the employer the power to promulgate rules which would
provide other or additional forms of sexual harassment, or to come up with
its own definition of sexual harassment.29

G.R. No. 158700

The Republic raises this issue:

Whether or not the President of the Philippines may validly dismiss
respondent Rayala as Chairman of the NLRC for committing acts of
sexual harassment.30

The Republic argues that Rayala’s acts constitute sexual harassment under
AO 250. His acts constitute unwelcome or improper gestures of affection and
are acts or conduct of a sexual nature, which are generally annoying or
offensive to the victim.31

It also contends that there is no legal basis for the CA’s reduction of the
penalty imposed by the OP. Rayala’s dismissal is valid and warranted under
the circumstances. The power to remove the NLRC Chairman solely rests
upon the President, limited only by the requirements under the law and the
due process clause.

The Republic further claims that, although AO 250 provides only a one (1)
year suspension, it will not prevent the OP from validly imposing the penalty
of dismissal on Rayala. It argues that even though Rayala is a presidential
appointee, he is still subject to the Civil Service Law. Under the Civil Service
Law, disgraceful and immoral conduct, the acts imputed to Rayala, constitute
grave misconduct punishable by dismissal from the service.32 The Republic
adds that Rayala’s position is invested with public trust and his acts violated
that trust; thus, he should be dismissed from the service.

This argument, according to the Republic, is also supported by Article 215 of

the Labor Code, which states that the Chairman of the NLRC holds office
until he reaches the age of 65 only during good behavior.33 Since Rayala’s
security of tenure is conditioned upon his good behavior, he may be removed
from office if it is proven that he has failed to live up to this standard.

All the issues raised in these three cases can be summed up in two ultimate
questions, namely:

(1) Did Rayala commit sexual harassment?

(2) If he did, what is the applicable penalty?

Initially, however, we must resolve a procedural issue raised by Rayala. He

accuses the Office of the Solicitor General (OSG), as counsel for the
Republic, of forum shopping because it filed a motion for reconsideration of
the decision in CA-G.R. SP No. 61026 and then filed a comment in G.R. No.
155840 before this Court.

We do not agree.

Forum shopping is an act of a party, against whom an adverse judgment or

order has been rendered in one forum, of seeking and possibly securing a
favorable opinion in another forum, other than by appeal or special civil
action for certiorari.34 It consists of filing multiple suits involving the same
parties for the same cause of action, either simultaneously or successively,
for the purpose of obtaining a favorable judgment.35

There is forum shopping when the following elements concur: (1) identity of
the parties or, at least, of the parties who represent the same interest in
both actions; (2) identity of the rights asserted and relief prayed for, as the
latter is founded on the same set of facts; and (3) identity of the two
preceding particulars such that any judgment rendered in the other action
will amount to res judicata in the action under consideration or will
constitute litis pendentia.36

Reviewing the antecedents of these consolidated cases, we note that the CA

rendered the assailed Resolution on October 18, 2002. The Republic filed its
Motion for Reconsideration on November 22, 2002. On the other hand,
Rayala filed his petition before this Court on November 21, 2002. While the
Republic’s Motion for Reconsideration was pending resolution before the CA,
on December 2, 2002, it was directed by this Court to file its Comment on
Rayala’s petition, which it submitted on June 16, 2003.

When the CA denied the Motion for Reconsideration, the Republic filed its
own Petition for Review with this Court on July 3, 2003. It cited in its
"Certification and Verification of a Non-Forum Shopping" (sic), that there was
a case involving the same facts pending before this Court denominated as
G.R. No. 155840. With respect to Domingo’s petition, the same had already
been dismissed on February 19, 2003. Domingo’s petition was reinstated on
June 16, 2003 but the resolution was received by the OSG only on July 25,
2003, or after it had filed its own petition.37

Based on the foregoing, it cannot be said that the OSG is guilty of forum
shopping. We must point out that it was Rayala who filed the petition in the
CA, with the Republic as the adverse party. Rayala himself filed a motion for
reconsideration of the CA’s December 21, 2001 Decision, which led to a
more favorable ruling, i.e., the lowering of the penalty from dismissal to one-
year suspension. The parties adversely affected by this ruling (Domingo and
the Republic) had the right to question the same on motion for
reconsideration. But Domingo directly filed a Petition for Review with this
Court, as did Rayala. When the Republic opted to file a motion for
reconsideration, it was merely exercising a right. That Rayala and Domingo
had by then already filed cases before the SC did not take away this right.
Thus, when this Court directed the Republic to file its Comment on Rayala’s
petition, it had to comply, even if it had an unresolved motion for
reconsideration with the CA, lest it be cited for contempt.

Accordingly, it cannot be said that the OSG "file[d] multiple suits involving
the same parties for the same cause of action, either simultaneously or
successively, for the purpose of obtaining a favorable judgment."

We now proceed to discuss the substantive issues.

It is noteworthy that the five CA Justices who deliberated on the case were
unanimous in upholding the findings of the Committee and the OP. They
found the assessment made by the Committee and the OP to be a
"meticulous and dispassionate analysis of the testimonies of the complainant
(Domingo), the respondent (Rayala), and their respective
witnesses." 38 They differed only on the appropriate imposable penalty.

That Rayala committed the acts complained of – and was guilty of sexual
harassment – is, therefore, the common factual finding of not just one, but
three independent bodies: the Committee, the OP and the CA. It should be
remembered that when supported by substantial evidence, factual findings
made by quasi-judicial and administrative bodies are accorded great respect
and even finality by the courts.39 The principle, therefore, dictates that such
findings should bind us.40

Indeed, we find no reason to deviate from this rule. There appears no valid
ground for this Court to review the factual findings of the CA, the OP, and
the Investigating Committee. These findings are now conclusive on the
Court. And quite significantly, Rayala himself admits to having committed
some of the acts imputed to him.

He insists, however, that these acts do not constitute sexual harassment,

because Domingo did not allege in her complaint that there was a demand,
request, or requirement of a sexual favor as a condition for her continued
employment or for her promotion to a higher position.41 Rayala urges us to
apply to his case our ruling in Aquino v. Acosta.42

We find respondent’s insistence unconvincing.

Basic in the law of public officers is the three-fold liability rule, which states
that the wrongful acts or omissions of a public officer may give rise to civil,
criminal and administrative liability. An action for each can proceed
independently of the others.43 This rule applies with full force to sexual
harassment.

The law penalizing sexual harassment in our jurisdiction is RA 7877. Section

3 thereof defines work-related sexual harassment in this wise:

Sec. 3. Work, Education or Training-related Sexual Harassment Defined. –

Work, education or training-related sexual harassment is committed by an
employer, manager, supervisor, agent of the employer, teacher, instructor,
professor, coach, trainor, or any other person who, having authority,
influence or moral ascendancy over another in a work or training or
education environment, demands, requests or otherwise requires any sexual
favor from the other, regardless of whether the demand, request or
requirement for submission is accepted by the object of said Act.

(a) In a work-related or employment environment, sexual harassment is

committed when:

(1) The sexual favor is made as a condition in the hiring or in the

employment, re-employment or continued employment of said individual, or
in granting said individual favorable compensation, terms, conditions,
promotions, or privileges; or the refusal to grant the sexual favor results in
limiting, segregating or classifying the employee which in a way would
discriminate, deprive or diminish employment opportunities or otherwise
adversely affect said employee;

(2) The above acts would impair the employee’s rights or privileges under
existing labor laws; or

(3) The above acts would result in an intimidating, hostile, or offensive

environment for the employee.
This section, in relation to Section 7 on penalties, defines the criminal aspect
of the unlawful act of sexual harassment. The same section, in relation to
Section 6, authorizes the institution of an independent civil action for
damages and other affirmative relief.

Section 4, also in relation to Section 3, governs the procedure for

administrative cases, viz.:

Sec. 4. Duty of the Employer or Head of Office in a Work-related, Education

or Training Environment. – It shall be the duty of the employer or the head
of the work-related, educational or training environment or institution, to
prevent or deter the commission of acts of sexual harassment and to provide
the procedures for the resolution, settlement or prosecution of acts of sexual
harassment. Towards this end, the employer or head of office shall:

(a) Promulgate appropriate rules and regulations in consultation with and

jointly approved by the employees or students or trainees, through their
duly designated representatives, prescribing the procedure for the
investigation or sexual harassment cases and the administrative sanctions
therefor.

Administrative sanctions shall not be a bar to prosecution in the proper

courts for unlawful acts of sexual harassment.

The said rules and regulations issued pursuant to this section (a) shall
include, among others, guidelines on proper decorum in the workplace and
educational or training institutions.

(b) Create a committee on decorum and investigation of cases on sexual

harassment. The committee shall conduct meetings, as the case may be,
with other officers and employees, teachers, instructors, professors,
coaches, trainors and students or trainees to increase understanding and
prevent incidents of sexual harassment. It shall also conduct the
investigation of the alleged cases constituting sexual harassment.

In the case of a work-related environment, the committee shall be composed

of at least one (1) representative each from the management, the union, if
any, the employees from the supervisory rank, and from the rank and file
employees.
In the case of the educational or training institution, the committee shall be
composed of at least one (1) representative from the administration, the
trainors, teachers, instructors, professors or coaches and students or
trainees, as the case maybe.

The employer or head of office, educational or training institution shall

disseminate or post a copy of this Act for the information of all concerned.

The CA, thus, correctly ruled that Rayala’s culpability is not to be determined
solely on the basis of Section 3, RA 7877, because he is charged with the
administrative offense, not the criminal infraction, of sexual harassment.44 It
should be enough that the CA, along with the Investigating Committee and
the Office of the President, found substantial evidence to support the
administrative charge.

Yet, even if we were to test Rayala’s acts strictly by the standards set in
Section 3, RA 7877, he would still be administratively liable. It is true that
this provision calls for a "demand, request or requirement of a sexual favor."
But it is not necessary that the demand, request or requirement of a sexual
favor be articulated in a categorical oral or written statement. It may be
discerned, with equal certitude, from the acts of the offender. Holding and
squeezing Domingo’s shoulders, running his fingers across her neck and
tickling her ear, having inappropriate conversations with her, giving her
money allegedly for school expenses with a promise of future privileges, and
making statements with unmistakable sexual overtones – all these acts of
Rayala resound with deafening clarity the unspoken request for a sexual
favor.

Likewise, contrary to Rayala’s claim, it is not essential that the demand,

request or requirement be made as a condition for continued employment or
for promotion to a higher position. It is enough that the respondent’s acts
result in creating an intimidating, hostile or offensive environment for the
employee.45 That the acts of Rayala generated an intimidating and hostile
environment for Domingo is clearly shown by the common factual finding of
the Investigating Committee, the OP and the CA that Domingo reported the
matter to an officemate and, after the last incident, filed for a leave of
absence and requested transfer to another unit.

Rayala’s invocation of Aquino v. Acosta46 is misplaced, because the factual

setting in that case is different from that in the case at bench. In Aquino,
Atty. Susan Aquino, Chief of the Legal and Technical Staff of the Court of Tax
Appeals (CTA), charged then CTA Presiding Judge (now Presiding Justice)
Ernesto Acosta of sexual harassment. She complained of several incidents
when Judge Acosta allegedly kissed her, embraced her, and put his arm
around her shoulder. The case was referred to CA Justice Josefina G. Salonga
for investigation. In her report, Justice Salonga found that "the complainant
failed to show by convincing evidence that the acts of Judge Acosta in
greeting her with a kiss on the cheek, in a `beso-beso’ fashion, were carried
out with lustful and lascivious desires or were motivated by malice or ill
motive. It is clear from the circumstances that most of the kissing incidents
were done on festive and special occasions," and they "took place in the
presence of other people and the same was by reason of the exaltation or
happiness of the moment." Thus, Justice Salonga concluded:

In all the incidents complained of, the respondent's pecks on the cheeks of
the complainant should be understood in the context of having been done on
the occasion of some festivities, and not the assertion of the latter that she
was singled out by Judge Acosta in his kissing escapades. The busses on her
cheeks were simply friendly and innocent, bereft of malice and lewd design.
The fact that respondent judge kisses other people on the cheeks in the
'beso-beso' fashion, without malice, was corroborated by Atty. Florecita P.
Flores, Ms. Josephine Adalem and Ms. Ma. Fides Balili, who stated that they
usually practice 'beso-beso' or kissing on the cheeks, as a form of greeting
on occasions when they meet each other, like birthdays, Christmas, New
Year's Day and even Valentine's Day, and it does not matter whether it is
Judge Acosta's birthday or their birthdays. Theresa Cinco Bactat, a lawyer
who belongs to complainant's department, further attested that on occasions
like birthdays, respondent judge would likewise greet her with a peck on the
cheek in a 'beso-beso' manner. Interestingly, in one of several festive
occasions, female employees of the CTA pecked respondent judge on the
cheek where Atty. Aquino was one of Judge Acosta's well wishers.

In sum, no sexual harassment had indeed transpired on those six occasions.

Judge Acosta's acts of bussing Atty. Aquino on her cheek were merely forms
of greetings, casual and customary in nature. No evidence of intent to
sexually harass complainant was apparent, only that the innocent acts of
'beso-beso' were given malicious connotations by the complainant. In fact,
she did not even relate to anyone what happened to her. Undeniably, there is
no manifest sexual undertone in all those incidents.47

This Court agreed with Justice Salonga, and Judge Acosta was exonerated.
To repeat, this factual milieu in Aquino does not obtain in the case at bench.
While in Aquino, the Court interpreted the acts (of Judge Acosta) as casual
gestures of friendship and camaraderie, done during festive or special
occasions and with other people present, in the instant case, Rayala’s acts of
holding and squeezing Domingo’s shoulders, running his fingers across her
neck and tickling her ear, and the inappropriate comments, were all made in
the confines of Rayala’s office when no other members of his staff were
around. More importantly, and a circumstance absent in Aquino, Rayala’s
acts, as already adverted to above, produced a hostile work environment for
Domingo, as shown by her having reported the matter to an officemate and,
after the last incident, filing for a leave of absence and requesting transfer to
another unit.

Rayala also argues that AO 250 does not apply to him. First, he argues that
AO 250 does not cover the NLRC, which, at the time of the incident, was
under the DOLE only for purposes of program and policy coordination.
Second, he posits that even assuming AO 250 is applicable to the NLRC, he
is not within its coverage because he is a presidential appointee.

We find, however, that the question of whether or not AO 250 covers Rayala
is of no real consequence. The events of this case unmistakably show that
the administrative charges against Rayala were for violation of RA 7877; that
the OP properly assumed jurisdiction over the administrative case; that the
participation of the DOLE, through the Committee created by the Secretary,
was limited to initiating the investigation process, reception of evidence of
the parties, preparation of the investigation report, and recommending the
appropriate action to be taken by the OP. AO 250 had never really been
applied to Rayala. If it was used at all, it was to serve merely as an auxiliary
procedural guide to aid the Committee in the orderly conduct of the
investigation.

Next, Rayala alleges that the CA erred in holding that sexual harassment is
an offense malum prohibitum. He argues that intent is an essential element
in sexual harassment, and since the acts imputed to him were done allegedly
without malice, he should be absolved of the charges against him.

We reiterate that what is before us is an administrative case for sexual

harassment. Thus, whether the crime of sexual harassment is malum in
se or malum prohibitum is immaterial.
We also reject Rayala’s allegations that the charges were filed because of a
conspiracy to get him out of office and thus constitute merely political
harassment. A conspiracy must be proved by clear and convincing evidence.
His bare assertions cannot stand against the evidence presented by
Domingo. As we have already ruled, the acts imputed to Rayala have been
proven as fact. Moreover, he has not proven any ill motive on the part of
Domingo and her witnesses which would be ample reason for her to conjure
stories about him. On the contrary, ill motive is belied by the fact that
Domingo and her witnesses – all employees of the NLRC at that time – stood
to lose their jobs or suffer unpleasant consequences for coming forward and
charging their boss with sexual harassment.

Furthermore, Rayala decries the alleged violation of his right to due process.
He accuses the Committee on Decorum of railroading his trial for violation of
RA 7877. He also scored the OP’s decision finding him guilty of "disgraceful
and immoral conduct" under the Revised Administrative Code and not for
violation of RA 7877. Considering that he was not tried for "disgraceful and
immoral conduct," he argues that the verdict is a "sham and total nullity."

We hold that Rayala was properly accorded due process. In previous cases,
this Court held that:

[i]n administrative proceedings, due process has been recognized to include

the following: (1) the right to actual or constructive notice of the institution
of proceedings which may affect a respondent’s legal rights; (2) a real
opportunity to be heard personally or with the assistance of counsel, to
present witnesses and evidence in one’s favor, and to defend one’s rights;
(3) a tribunal vested with competent jurisdiction and so constituted as to
afford a person charged administratively a reasonable guarantee of honesty
as well as impartiality; and (4) a finding by said tribunal which is supported
by substantial evidence submitted for consideration during the hearing or
contained in the records or made known to the parties affected.48

The records of the case indicate that Rayala was afforded all these
procedural due process safeguards. Although in the beginning he questioned
the authority of the Committee to try him,49 he appeared, personally and
with counsel, and participated in the proceedings.

On the other point raised, this Court has held that, even in criminal cases,
the designation of the offense is not controlling, thus:
What is controlling is not the title of the complaint, nor the designation of
the offense charged or the particular law or part thereof allegedly violated,
these being mere conclusions of law made by the prosecutor, but the
description of the crime charged and the particular facts therein recited. The
acts or omissions complained of must be alleged in such form as is sufficient
to enable a person of common understanding to know what offense is
intended to be charged, and enable the court to pronounce proper judgment.
No information for a crime will be sufficient if it does not accurately and
clearly allege the elements of the crime charged. Every element of the
offense must be stated in the information. What facts and circumstances are
necessary to be included therein must be determined by reference to the
definitions and essentials of the specified crimes. The requirement of alleging
the elements of a crime in the information is to inform the accused of the
nature of the accusation against him so as to enable him to suitably prepare
his defense.50

It is noteworthy that under AO 250, sexual harassment amounts to

disgraceful and immoral conduct.51 Thus, any finding of liability for sexual
harassment may also be the basis of culpability for disgraceful and immoral
conduct.

With the foregoing disquisitions affirming the finding that Rayala committed
sexual harassment, we now determine the proper penalty to be imposed.

Rayala attacks the penalty imposed by the OP. He alleges that under the
pertinent Civil Service Rules, disgraceful and immoral conduct is punishable
by suspension for a period of six (6) months and one (1) day to one (1)
year. He also argues that since he is charged administratively, aggravating or
mitigating circumstances cannot be appreciated for purposes of imposing the
penalty.

Under AO 250, the penalty for the first offense is suspension for six (6)
months and one (1) day to one (1) year, while the penalty for the second
offense is dismissal.52 On the other hand, Section 22(o), Rule XVI of the
Omnibus Rules Implementing Book V of the Administrative Code of
198753 and Section 52 A(15) of the Revised Uniform Rules on Administrative
Cases in the Civil Service54 both provide that the first offense of disgraceful
and immoral conduct is punishable by suspension of six (6) months and one
(1) day to one (1) year. A second offense is punishable by dismissal.
Under the Labor Code, the Chairman of the NLRC shall hold office during
good behavior until he or she reaches the age of sixty-five, unless sooner
removed for cause as provided by law or becomes incapacitated to
discharge the duties of the office.55

In this case, it is the President of the Philippines, as the proper disciplining

authority, who would determine whether there is a valid cause for the
removal of Rayala as NLRC Chairman. This power, however, is qualified by
the phrase "for cause as provided by law." Thus, when the President found
that Rayala was indeed guilty of disgraceful and immoral conduct, the Chief
Executive did not have unfettered discretion to impose a penalty other than
the penalty provided by law for such offense. As cited above, the imposable
penalty for the first offense of either the administrative offense of sexual
harassment or for disgraceful and immoral conduct is suspension of six (6)
months and one (1) day to one (1) year. Accordingly, it was error for the
Office of the President to impose upon Rayala the penalty of dismissal from
the service, a penalty which can only be imposed upon commission of a
second offense.

Even if the OP properly considered the fact that Rayala took advantage of his
high government position, it still could not validly dismiss him from the
service. Under the Revised Uniform Rules on Administrative Cases in the
Civil Service,56 taking undue advantage of a subordinate may be considered
as an aggravating circumstance57 and where only aggravating and no
mitigating circumstances are present, the maximum penalty shall be
imposed.58 Hence, the maximum penalty that can be imposed on Rayala is
suspension for one (1) year.

Rayala holds the exalted position of NLRC Chairman, with the rank
equivalent to a CA Justice. Thus, it is not unavailing that rigid standards of
conduct may be demanded of him. In Talens-Dabon v. Judge Arceo,59 this
Court, in upholding the liability of therein respondent Judge, said:

The actuations of respondent are aggravated by the fact that complainant is

one of his subordinates over whom he exercises control and supervision, he
being the executive judge. He took advantage of his position and power in
order to carry out his lustful and lascivious desires. Instead of he being
in loco parentis over his subordinate employees, respondent was the one
who preyed on them, taking advantage of his superior position.

In yet another case, this Court declared:

As a managerial employee, petitioner is bound by more exacting work
ethics. He failed to live up to his higher standard of responsibility when he
succumbed to his moral perversity. And when such moral perversity is
perpetrated against his subordinate, he provides a justifiable ground for his
dismissal for lack of trust and confidence. It is the right, nay, the duty of
every employer to protect its employees from oversexed superiors.60

It is incumbent upon the head of office to set an example on how his

employees should conduct themselves in public office, so that they may
work efficiently in a healthy working atmosphere. Courtesy demands that he
should set a good example.61

Rayala has thrown every argument in the book in a vain effort to effect his
exoneration. He even puts Domingo’s character in question and casts doubt
on the morality of the former President who ordered, albeit erroneously, his
dismissal from the service. Unfortunately for him, these are not significant
factors in the disposition of the case. It is his character that is in question
here and sadly, the inquiry showed that he has been found wanting.

WHEREFORE, the foregoing premises considered, the October 18, 2002

Resolution of the Court of Appeals in CA-G.R. SP No. 61026
is AFFIRMED. Consequently, the petitions in G.R. Nos. 155831, 155840,
and 158700 are DENIED. No pronouncement as to costs.

SO ORDERED.
 ATTY. SUSAN M. AQUINO, complainant, v. HON. ERNESTO D.
ACOSTA, Presiding Judge, Court of Tax Appeals, respondent.

DECISION

SANDOVAL-GUTIERREZ, J.:

The present administrative case filed with this Court originated from a sworn
affidavit-complaint 1 of Atty. Susan M. Aquino, Chief of the Legal and
Technical Staff of the Court of Tax Appeals (CTA), charging Judge Ernesto
Acosta, Presiding Judge of the same court, with sexual harassment under
R.A. 7877 and violation of the Canons of Judicial Ethics and Code of
Professional Responsibility.

In her affidavit-complaint, complainant alleged several instances when

respondent judge sexually harassed her.

On November 21, 2000, she reported for work after her vacation in the
United States, bringing gifts for the three judges of the CTA, including
respondent. In the afternoon of the same day, he entered her room and
greeted her by shaking her hand. Suddenly, he pulled her towards him and
kissed her on her cheek.

On December 28, 2000, while respondent was on official leave, he called

complainant by phone, saying he will get something in her office. Shortly
thereafter, he entered her room, shook her hand and greeted her, "Merry
Christmas." Thereupon, he embraced her and kissed her. She was able to
free herself by slightly pushing him away. Complainant submitted the Joint
Affidavit 2 of Ma. Imelda C. Samonte and Anne Benita M. Santos, CTA Tax
Specialists, to prove that respondent went to her office that day.

On the first working day in January, 2001, respondent phoned complainant,

asking if she could see him in his chambers in order to discuss some
matters. When complainant arrived there, respondent tried to kiss her but
she was able to evade his sexual attempt. She then resolved not to enter his
chambers alone.

Weeks later, after the Senate approved the proposed bill expanding the
jurisdiction of the CTA, while complainant and her companions were
congratulating and kissing each other, respondent suddenly placed his arms
around her shoulders and kissed her.

In the morning of February 14, 2001, respondent called complainant,

requesting her to go to his office. She then asked Ruby Lanuza, a clerk in
the Records Section, to accompany her. Fortunately, when they reached his
chambers, respondent had left.

The last incident happened the next day. At around 8:30 a.m., respondent
called complainant and asked her to see him in his office to discuss the
Senate bill on the CTA. She again requested Ruby to accompany her. The
latter agreed but suggested that they should act as if they met by accident
in respondents office. Ruby then approached the secretarys table which was
separated from respondents office by a transparent glass. For her part,
complainant sat in front of respondent's table and asked him what he
wanted to know about the Senate bill. Respondent seemed to be at a loss for
words and kept glancing at Ruby who was searching for something at the
secretary's desk. Forthwith, respondent approached Ruby, asked her what
she was looking for and stepped out of the office. When he returned, Ruby
said she found what she was looking for and left. Respondent then
approached complainant saying, me gusto akong gawin sa iyo kahapon pa.
Thereupon, he tried to grab her. Complainant instinctively raised her hands
to protect herself but respondent held her arms tightly, pulled her towards
him and kissed her. She pushed him away, then slumped on a chair
trembling. Meantime, respondent sat on his chair and covered his face with
his hands. Thereafter, complainant left crying and locked herself inside a
comfort room. After that incident, respondent went to her office and tossed
a note 3 stating, sorry, it wont happen again.

In his comment, respondent judge denied complainants allegation that he

sexually harassed her six times. He claimed that he has always treated her
with respect, being the head of the CTA Legal Staff. In fact, there is no strain
in their professional relationship.

On the first incident, he explained that it was quite unlikely that complainant
would ask him to go to her office on such date in order to give him a
pasalubong.
With respect to the second incident on December 28, he claimed it could not
have happened as he was then on official leave.

Anent the third incident, respondent explained that he went to the various
offices of the CTA to extend New Years greetings to the personnel. He also
greeted complainant with a casual buss on her cheek and gave her a
calendar. In turn, she also greeted him.

As to the fourth episode, he averred that he and complainant had been

attending the deliberations of the Bicameral Conference Committee at the
Senate on the bill expanding the jurisdiction of the CTA. Hence, when the bill
was finally approved that particular day, respondent, in jubilation and in the
presence of other people, gave complainant a spontaneous peck on her
cheek. He could not recall any resentment on her part when he kissed her.
She even congratulated him in return, saying Justice ka na Judge. Then he
treated her to a lunch to celebrate the event. Respondent recounted several
times when they would return to the CTA in the evening after attending the
committee hearings in Congress to retrieve complainants personal
belongings from her office. Surely, if he had malice in his mind, those
instances would have been the perfect opportunities for him to sexually
harass her.

As to the fifth incident, respondent alleged that he did not call complainant
to harass her, but to discuss with her and Elizabeth Lozano, HRMO III, and
Elsie T. Forteza, Administrative Officer, the health plan for the CTA officers
and employees. The fact that such meeting took place was confirmed by a
Certification issued by Lozano. 4cräläwvirtualibräry

Regarding the sixth incident, respondent narrated his version as follows:

Complainant arrived in his office past 9 a.m. that day, followed by another
court employee, Ruby Lanuza. He proceeded to discuss the CTA Expansion
Bill with complainant. Then he went for a while to the rest room. When he
returned, Ruby had already left but complainant was still there. Forthwith,
he remarked that he forgot to greet her on Valentines Day, the day before.
He approached complainant to give her a casual buss on the cheek. But she
suddenly stood and raised her arms to cover her face, causing her to lose
her balance. So he held her arms to prevent her from falling. Her rejection
came as a surprise to him and made him feel quite embarrassed. Shortly,
complainant excused herself and left the room. Stunned at the thought that
she might misinterpret his gesture, he sent her a short note of apology.
Respondent further explained that the structure of his office, being seen
through a transparent glass divider, makes it impossible for anyone to
commit any improper conduct inside.

In a Resolution dated August 21, 2001, this Court referred the instant case
to Justice Josefina G. Salonga of the Court of Appeals for investigation,
report and recommendation.

Justice Salonga set the hearing of the case on November 6, 2001. However,
the parties, through counsel, manifested that they will not be adducing any
further evidence. On November 7, 2001, Justice Salonga issued an Order
directing them to submit their memoranda simultaneously, after which, the
case shall be considered submitted for resolution.

On January 9, 2002, Justice Salonga forwarded to this Court her Report on

Investigation and Recommendation, thus:

We find for the respondent.

"The complainant failed to show by convincing evidence that the acts of

Judge Acosta in greeting her with a kiss on the cheek, in a 'beso-beso'
fashion, were carried out with lustful and lascivious desires or were
motivated by malice or ill-motive. It is clear under the circumstances that
most of the kissing incidents were done on festive and special occasions. In
fact, complainant's testimony that she was sexually harassed on November
21, 2000, is hardly believable. Notably, complainant declared in her affidavit-
complaint that she brought some 'pasalubongs' for the respondent judge
from her trip abroad. Therefore, Atty. Aquino could not have been 'taken
aback' by the respondent's act of greeting her in a friendly manner and
thanking her by way of a kiss on the cheek. Moreover, it was established that
Judge Acosta was on official leave of absence from December 26-29, 2000.
This was corroborated by Ricardo Hebia, the driver of respondent judge, in
his Panunumpa (Affidavit) dated March 26, 2001, where he stated among
others, to wit:

xxx
"Corollarily, the joint affidavit of Ms. Santos and Ms. Samonte attesting to
the fact that respondent dropped by at the third floor of the CTA and greeted
them Happy New Year, even if it true, can not be given any evidentiary
weight. Clearly, they did not make any categorical statement that they had
witnessed or seen Judge Acosta making sexual advances on the
complainant. Nor did they even attribute any malicious acts on respondent
constituting sexual harassment.

"In addition, the respondent admitted that when he handed a calendar and
greeted complainant with a buss, complainant reciprocated by greeting him
a Happy New Year. The allegation of Atty. Aquino that the respondent merely
used the calendars as 'props' to kiss her on the cheek and that she was
singled out by respondent is not supported by any convincing evidence. The
affidavit of Ms. Aurora U. Aso and Renelyn L. Larga that Ms. Carmen Acosta
gave them calendars for the office of Attys. Margarette Guzman and
Felizardo O. Consing, is immaterial and irrelevant, as Judge Acosta had
stated that he handed to complainant Aquino, a 2001 calendar in the course
of greeting her with a buss on the cheek. Said affidavit could not account for
the calendars distributed to the other offices in the CTA, more specifically,
the Legal and Technical Staff headed by Atty. Aquino.

"Moreover, the claim of the complainant that she was sexually harassed
immediately after the final reading of the bill anent the expansion of the CTA
at the Senate, can not be accorded great evidentiary value. The alleged
kissing incident took place in the presence of other people and the same was
by reason of the exaltation or happiness of the moment, due to the approval
of the subject bill. Quite interesting to note, is that Atty. Aquino reciprocated
by congratulating respondent and remarking "justice ka na judge" after the
latter had bussed her on the cheek. Complainant even failed to dispute the
fact that after the kissing incident, she joined Judge Acosta and his driver for
lunch at a seafood restaurant in Luneta. There was even a time that she
allowed the respondent judge to accompany her to the office alone and at
nighttime at that, to retrieve her car keys and bag when they returned to
the CTA after the hearing at the Senate on the CTA expansion bill. These
acts are not at square with the behavior of one who has been sexually
harassed, for the normal reaction of a victim of sexual harassment would be
to avoid the harasser or decline his invitations after being offended. In fact,
this occasion could have provided the respondent judge with the right
opportunity to commit malicious acts or to sexually harass complainant, but
then Judge Acosta never even attempted to do so. Undoubtedly, it could be
said that no strained relations existed between Atty. Aquino and Judge
Acosta at that moment.

"Neither can the alleged continuous call of Judge Acosta on complainant in

the morning of February 14, 2001 to see him in his office, be considered as
acts constituting sexual harassment. Atty. Aquino failed to state categorically
in her affidavit-complaint that respondent demanded sexual advances or
favors from her, or that the former had committed physical conduct of sexual
nature against her. The telephone calls were attributed malicious
implications by the complainant. To all intents and purposes, the allegation
was merely a product of her imagination, hence, the same deserves no
weight in law. Indeed, Atty. Aquino's own version, indicates that she well
knew that the purpose of the respondent in calling her in the morning of
February 14, 2001 was to discuss the CTA Health Plan which was
disapproved by the Supreme Court and not for the respondent to demand
sexual favors from her. This was corroborated by Atty. Margarette Guzman in
her affidavit dated February 28, 2001, attached to the complainant's
affidavit, where she stated:

xxx

"Finally, while Judge Acosta admitted having pecked Atty. Aquino on her
cheek, which was avoided by the latter, the same was not meant to sexually
harass her. Judge Acosta's act of extending his post Valentine greeting to
complainant was done in good faith and sans any malice. This is so because
immediately after the complainant had displayed annoyance to the kissing
episode, Judge Acosta immediately extended an apology by way of a
handwritten note saying that the incident won't happen again.

"Parenthetically, the undersigned is convinced that Ms. Lanuza's affidavit

that she supposedly accompanied complainant to respondent's office as she
allegedly had a previous 'bad experience' with the latter when he was still an
Associate Judge, was merely concocted to add flavor to the baseless
imputations hurled against Judge Acosta. The accusation is implausible as
Ms. Lanuza did not seem to complain about the alleged bad experience she
had with Judge Acosta or relate it to anyone until ten (10) years later. It
must be stressed that Ms. Lanuza is a biased-witness who harbored ill
feelings against the respondent, as she was reprimanded by Judge Acosta
for habitual absenteeism and tardiness in 1996. More importantly, Ms.
Lanuza did not even attest that she was a witness to the alleged sexual
advances of Judge Acosta.

"In all the incidents complained of, the respondent's pecks on the cheeks of
the complainant should be understood in the context of having been done on
the occasion of some festivities, and not the assertion of the latter hat she
was singled out by Judge Acosta in his kissing escapades. The busses on her
cheeks were simply friendly and innocent, bereft of malice and lewd design.
The fact that respondent judge kisses other people on the cheeks in the
'beso-beso' fashion, without malice, was corroborated by Atty. Florecita P.
Flores, Ms. Josephine Adalem and Ms. Ma. Fides Balili, who stated that they
usually practice 'beso-beso' or kissing on the cheeks, as a form of greeting
on occasions when they meet each other, like birthdays, Christmas, New
Year's Day and even Valentine's Day, and it does not matter whether it is
Judge Acosta's birthday or their birthdays. Theresa Cinco Bactat, a lawyer
who belongs to complainant's department, further attested that on occasions
like birthdays, respondent judge would likewise greet her with a peck on the
cheek in a 'beso-beso' manner. Interestingly, in one of several festive
occasions, female employees of the CTA pecked respondent judge on the
cheek where Atty. Aquino was one of Judge Acosta's well wishers. (Annex
"8" to Comment, p. 65, Rollo)

"In sum, no sexual harassment had indeed transpired on those six

occasions. Judge Acosta's acts of bussing Atty. Aquino on her cheek were
merely forms of greetings, casual and customary in nature. No evidence of
intent to sexually harass complainant was apparent, only that the innocent
acts of 'beso-beso' were given malicious connotations by the complainant. In
fact, she did not even relate to anyone what happened to her. Undeniably,
there is no manifest sexual undertone in all those incidents.
5cräläwvirtualibräry

Justice Salonga then made the following recommendation:

Considering the above, the undersigned respectfully recommends that the

administrative complaint for sexual harassment and violations of the Canons
of Judicial Ethics and the Code of Professional Responsibility be DISMISSED
and accordingly, respondent Presiding Judge Ernesto D. Acosta be
exonerated therefrom; that in view of these charges which might have
tainted the image of the Court, though unsubstantiated they may be, Judge
Acosta is WARNED to refrain from doing similar acts, or any act for that
matter on the complainant and other female employees of the Court of Tax
Appeals, which in any manner may be interpreted as lustful advances.
6cräläwvirtualibräry

We agree with the findings of Justice Salonga.

Administrative complaints against members of the judiciary are viewed by

this Court with utmost care, for proceedings of this nature affect not only the
reputation of the respondents concerned, but the integrity of the entire
judiciary as well.

We have reviewed carefully the records of this case and found no convincing
evidence to sustain complainants charges. What we perceive to have been
committed by respondent judge are casual gestures of friendship and
camaraderie, nothing more, nothing less. In kissing complainant, we find no
indication that respondent was motivated by malice or lewd design.
Evidently, she misunderstood his actuations and construed them as work-
related sexual harassment under R.A. 7877.

As aptly stated by the Investigating Justice:

"A mere casual buss on the cheek is not a sexual conduct or favor and does
not fall within the purview of sexual harassment under R.A. No. 7877.
Section 3 (a) thereof provides, to wit:

'Sec. 3. Work, Education or Training - related Sexual Harassment Defined. -

Work, education or training-related sexual harassment is committed by an
employer, employee, manager, supervisor, agent of the employer, teacher,
instructor, professor, coach, trainor, or any other person who, having
authority, influence or moral ascendancy over another in a work or training
or education environment, demands, requests or otherwise requires any
sexual favor from the other, regardless of whether the demand, request or
requirement for submission is accepted by the object of said Act.
a) In a work-related or employment environment, sexual harassment is
committed when:

1) The sexual favor is made as a condition in the hiring or in the

employment, re-employment or continued employment of said individual, or
in granting said individual favorable compensation, terms, conditions,
promotions or privileges; or the refusal to grant sexual favor results in
limiting, segregating or classifying the employee which in anyway would
discriminate, deprive or diminish employment opportunities or otherwise
adversely affect said employees;

2) The above acts would impair the employee's right or privileges under
existing labor laws; or

3) The above acts would result in an intimidating, hostile, or offensive

environment for the employee.'

"Clearly, under the foregoing provisions, the elements of sexual harassment

are as follows:

1) The employer, employee, manager, supervisor, agent of the employer,

teacher, instructor, professor, coach, trainor, or any other person has
authority, influence or moral ascendancy over another;

2) The authority, influence or moral ascendancy exists in a working

environment;

3) The employer, employee, manager, supervisor, agent of the employer,

teacher, instructor, professor, coach, or any other person having authority,
influence or moral ascendancy makes a demand, request or requirement of a
sexual favor.

"In her Complaint-affidavit, Reply and Sur-rejoinder, complainant did not

even allege that Judge Acosta demanded, requested or required her to give
him a buss on the cheek which, she resented. Neither did Atty. Aquino
establish by convincing evidence that the busses on her cheek, which she
considers as sexual favors, discriminated against her continued employment,
or resulted in an intimidating, hostile or offensive environment. In fact,
complainant continued to perform her work in the office with the usual
normalcy. Obviously, the alleged sexual favor, if there ever was, did not
interfere with her working condition (Annexes "9" - "9-FFF"). Moreover, Atty.
Aquino also continued to avail of benefits and leaves appurtenant to her
office and was able to maintain a consistent outstanding performance. On
top of this, her working area which, is at the third floor of the CTA, is far
removed from the office of Judge Acosta located at the fourth floor of the
same building. Resultantly, no hostile or intimidating working environment is
apparent.

"Based on the foregoing findings, there is no sufficient evidence to create a

moral certainty that Judge Acosta committed the acts complained of; that
Atty. Aquino's determination to seek justice for herself was not substantiated
by convincing evidence; that the testimony of respondent judge and his
witnesses are credible and therefore, should be given weight and probative
value; that the respondent's acts undoubtedly do not bear the marks of
misconduct, impropriety or immorality, either under R.A. No. 7877 or the
Canons of Judicial Ethics and the Code of Professional Responsibility.

Indeed, from the records on hand, there is no showing that respondent

judge demanded, requested or required any sexual favor from complainant
in exchange for favorable compensation, terms, conditions, promotion or
privileges specified under Section 3 of R.A. 7877. Nor did he, by his
actuations, violate the Canons of Judicial Ethics or the Code of Professional
Responsibility.

While we exonerate respondent from the charges herein, however, he is

admonished not to commit similar acts against complainant or other female
employees of the Court of Tax Appeals, otherwise, his conduct may be
construed as tainted with impropriety.

We laud complainants effort to seek redress for what she honestly believed
to be an affront to her honor. Surely, it was difficult and agonizing on her
part to come out in the open and accuse her superior of sexual harassment.
However, her assessment of the incidents is misplaced for the reasons
mentioned above.

WHEREFORE , respondent Judge Ernesto D. Acosta is hereby EXONERATED

of the charges against him. However, he is ADVISED to be more circumspect
in his deportment.
Child Abuse

FELINA ROSALDES, Petitioner,


vs.

PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

BERSAMIN, J.:

The petitioner, a public schoolteacher, was charged with and found guilty of
child abuse, a violation of Republic Act No. 7610.1 The victim was her own
Grade 1 pupil whom she physically maltreated for having accidentally
bumped her knee while she was drowsing off on a bamboo sofa as he
entered the classroom. Her maltreatment left him with physical injuries, as
duly certified by a physician.

Whether or not the petitioner thereby committed child abuse is the question
that this appeal must determine, in light of the Court's pronouncement in
Bongalon v. People of the Philippines2 that:

Not every instance of the laying of hands on a child constitutes the crime of
child abuse under Section 10 (a) of Republic Act No. 7610. Only when the
laying of hands is shown beyond reasonable doubt to be intended by the
accused to debase, degrade or demean the intrinsic worth and dignity of the
child as a human being should it be punished as child abuse. Otherwise, it is
punished under the Revised Penal Code.

Antecedents

The State, through the Office ofthe Solicitor General, summed up the factual
antecedents in its comment,3 as follows:

On February 13, 1996, seven yearold Michael Ryan Gonzales, then a Grade 1
pupil at Pughanan Elementary School located in the Municipality of
Lambunao, Iloilo, was hurriedly entering his classroom when he accidentally
bumped the knee of his teacher, petitioner Felina Rosaldes, who was then
asleep on a bamboo sofa (TSN, March 14, 1997, pp. 5-6). Roused from
sleep, petitioner asked Michael Ryan to apologize to her. When Michael did
not obey but instead proceeded to his seat (TSN, March 14, 1997, p. 6),
petitioner went to Michael and pinched him on his thigh. Then, she held him
up by his armpits and pushed him to the floor. As he fell, Michael Ryan’s
body hit a desk. As a result, he lost consciousness. Petitioner proceeded
topick Michael Ryan up by his ears and repeatedly slammed him down on the
floor. Michael Ryan cried (TSN, March 14, 1997, p. 6; TSN, November 13,
1997, p. 7).

After the incident, petitioner proceeded to teach her class. During lunch
break, Michael Ryan, accompanied by two of his classmates, Louella Loredo
and Jonalyn Gonzales, went home crying and told his mother about the
incident (TSN, March 14, 1997, p. 7). His mother and his Aunt Evangeline
Gonzales reported the incident to their Barangay Captain, Gonzalo Larroza
(TSN, February 1, 1999, p. 4) who advised them to have Michael Ryan
examined by a doctor. Michael Ryan’s aunt and Barangay Councilman
Ernesto Ligante brought him to the Dr. Ricardo Y. Ladrido Hospital where he
was examined by Dr. Teresita Castigador. They, likewise, reported the
incident to the Police Station (TSN, July 27, 1997, p. 6; TSN, February 1,
1999, p. 4).

The medical certificate issued by Dr. Teresita Castigador reads, in part:

1. Petechiae and tenderness of both external ears 1x2 cm. and 1x1 cm.;

2. Lumbar pains and tenderness at area of L3-L4;

3. Contusions at left inner thigh 1x1 and 1x1 cm.;

4. Tenderness and painful on walking especially at the area of femoral head.

The petitioner was criminally charged with child abusein the Regional Trial
Court in Iloilo City (RTC), and the case was assigned to Branch 27 of that
court. The information alleged as follows: The Provincial Prosecutor of Iloilo,
upon approval and Directive of the Deputy OMBUDSMAN for the Visayas
accuses FELINA ROSALDES of the crime of VIOLATION OF CHILD ABUSE
LAW

(Section 10 (a) of R.A. 7610), committed as follows:

That on or about the 13th day of February 1996, in the Municipality of

Lambunao, Province of Iloilo, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, being a public school teacher in
Grade 1 of Pughanan Elementary School, with a Salary Grade below 26,
under the DECS, did then and there willfully, unlawfully and feloniously
maltreat her pupil Michael Ryan Gonzales, a seven year old child, by
pinching him on different parts of his body, and thereafter slumping him to
the ground, thereby causing Michael Ryan Gonzales to lose his consciousness
and has suffered injuries on different parts of his body.

CONTRARY TO LAW.4

On June 26, 2003, the RTC rendered judgment convicting the petitioner of
child abuse,5 disposing as follows:

WHEREFORE, finding the accused guilty beyond reasonable doubt of

Violation of Section 10 (a), Article VI of R.A. 7610, the Court sentences her
to an indeterminate prison term ranging from four (4) years, two (2) months
and one (1) day of prision correccional, as minimum, to six (6) years and
one (1) day of prision mayor, as maximum, and to pay the costs.

No pronouncement as to civil liability, the same not having been proved.

SO ORDERED.6

On appeal, the CA affirmed the conviction of the petitioner through its

assailed decision promulgated on May 11, 2005,7 with a modification of the
penalty, viz: WHEREFORE, premises considered, judgment is hereby
rendered by us DISMISSING the appeal filed in this case and AFFIRMING the
decision rendered on June 26, 2003 by the court a quo in Criminal Case No.
46893 with the MODIFICATION that the accusedappellant is sentenced to
suffer the indeterminate penalty of four (4) years, two (2) months and one
(1) day of prision correccional, as the minimum of it, to ten (10) years and
one (1) day of prision mayor, as the maximum thereof.

IT IS SO ORDERED.8

In her petition for review on certiorari,9 the petitioner submits that:

The Court of Appeals erred in convicting the petitioner by holding that the
acts of the petitioner constitute child abuse penalized under Section 10 (a)
of Republic Act No. 7610[,] and notunder the Revised Penal Code.
 II

The Court of Appeals erred in convicting the petitioner by holding that

petitioner’s constitutional right to due process and her right to be informed
of the nature and cause of the accusation against her was not violated when
the essential elements of the crime charged were not properly recited in the
information.10

Countering, the State, through the OSG, insists that the issues the petitioner
is raising are mainly factual and, therefore, not reviewable under the mode
of appeal chosen; that the affirmance of her conviction by the CA was in
accord with the pertinent law and jurisprudence, and supported by the
overwhelming evidence of the trial; and that the information charging her
with child abuse was sufficient in form and substance.11

Ruling of the Court

The appeal lacks merit.

First of all, the State correctly contends that the petitioner could raise only
questions of law in her present recourse. Under Rule 45 of the Rules of
Court, the appeal is limited to questionsof law. The immediate implication of
the limitation is to have the findings of fact by the CA, which affirmed the
findings of fact by the trial court, conclude the Court by virtue of its not
being a trier of fact. As such, the Court cannot analyze or weigh the
evidence all over again.

It is true that the limitation of the review to errors of law admits of

exceptions. Under Section 4, Rule 3 of the Internal Rules of the Supreme
Court, the following situations are the exceptions in which the Court may
review findings of fact by the lower courts, to wit: (a) the conclusion is a
finding grounded entirely on speculation, surmise and conjecture; (b) the
inference made is manifestly mistaken; (c) there is grave abuse of
discretion; (d) the judgment is based on a misapprehension of facts; (e) the
findings of fact are conflicting; (f) the collegial appellate courts went beyond
the issues of the case, and their findings are contrary to the admissions of
both appellant and appellee; (g) the findings of fact of the collegial appellate
courts are contrary to those of the trial court; (h) said findings of fact are
conclusions without citation of specific evidence on which they are based; (i)
the facts set forth in the petition aswell as in the petitioner’s main and reply
briefs are not disputed by the respondents; (j) the findings of fact of the
collegial appellate courts are premised on the supposed evidence, but are
contradicted by the evidence on record; and (k) all other similar and
exceptional cases warranting a review of the lower courts’ findings of fact. A
further exception is recognized when the CA manifestly overlooked certain
relevant facts not disputed bythe parties, which, if properly considered,
would justify a different conclusion.12 Yet, none of the exceptions applies
herein.

Secondly, the petitioner contends that she did not deliberately inflict the
physical injuries suffered by MichaelRyan to maltreat or malign him in a
manner that would debase, demean or degrade his dignity. She
characterizes her maltreatment as anact of discipline that she as a school
teacher could reasonably do towards the development of the child. She
insists that her act further came under the doctrine of in loco parentis.

The contention of the petitioner is utterly bereft of merit.

Although the petitioner, as a school teacher, could duly discipline Michael

Ryan as her pupil, her infliction of the physical injuries on him was
unnecessary, violent and excessive. The boy even fainted from the violence
suffered at her hands.13 She could not justifiably claim that she acted only
for the sake of disciplining him. Her physical maltreatment of him was
precisely prohibited by no less than the Family Code, which has expressly
banned the infliction of corporal punishmentby a school administrator,
teacher or individual engaged in child care exercising special parental
authority (i.e., in loco parentis), viz:

Article 233. The person exercising substitute parental authority shall have
the same authority over the person of the child as the parents.

In no case shall the school administrator, teacher or individual engaged in

child care exercising special parental authority inflict corporal punishment
upon the child. (n)

Proof of the severe results of the petitioner’s physical maltreatment of

Michael Ryan was provided by Dr. Teresita Castigador, the Medico-Legal
Officer of the Dr. Ricardo Y. Ladrido Memorial Hospital in Iloilo who examined
the victim at about 1:00 o’clock in the afternoon of February 13, 1996,
barely three hours from the timethe boy had sustained his injuries. Her
Medical Report stated as follows:
1. Petechiae and tenderness of both external ears 1x2 cm. and 1x1 cm.;

2. Lumbar pains and tenderness at area of L3-L4;

3. Contusions at left inner thigh 1x1 and 1x1 cm.;

4. Tenderness and painful on walking especially at the area of femoral head.

Reflecting her impressions of the physical injuries based on the testimonial

explanations of Dr. Castigador, the trial judge observed in the decision of
June 26, 2003:

A petechiae (wound no. 1), according to Dr. Castigador is a discoloration of

the skin caused by the extravasation of blood beneath it. She opined that
the petechiae and tenderness of the ears of the victim could have been
caused by pinching. As to the lumbar pain and tenderness at the third and
fourth level of the vertebrae (wound no. 2), the doctor testified that during
her examination of the victim the latter felt pain when she put pressure on
the said area. She stated that this could be caused by pressure or contact
with a hard object. Wound No. 3 is located on the victim’sleft inner thigh.
According to her this could not have been caused by ordinary pinching with
pressure. Wound No. 4 is located on the upper part of the left thigh. Dr.
Castigador testified that she noticed that the boy was limping as he walked.
14

Section 3 of RepublicAct No. 7610 defines child abusethusly:

xxxx

(b) "Child abuse" refers to the maltreatment, whether habitual or not, of the
child which includes any of the following:

(1) Psychological and physical abuse, neglect, cruelty, sexual abuse and
emotional maltreatment;

(2) Any act by deeds or words which debases, degrades or demeans the
intrinsic worth and dignity of a child as a human being;

(3) Unreasonable deprivation of his basic needs for survival, such as food
and shelter; or
(4) Failure to immediately give medical treatment to an injured child
resulting in serious impairment of his growth and development or in his
permanent incapacity or death.

xxxx

In the crime charged against the petitioner, therefore, the maltreatment may
consist of an act by deedsor by wordsthat debases, degrades or demeans
the intrinsic worth and dignity of a child as a human being. The act need not
be habitual. The CA concluded that the petitioner "went overboard in
disciplining Michael Ryan, a helpless and weak 7-year old boy, when she
pinched hard Michael Ryan on the left thigh and when she held him in the
armpits and threw him on the floor[; and as] the boy fell down, his body hit
the desk causing him to lose consciousness [but instead] of feeling a sense
of remorse, the accused-appellant further held the boy up by his ears and
pushed him down on the floor."15 On her part, the trial judge said that the
physical pain experienced by the victim had been aggravated by an
emotional trauma that caused him to stop going to school altogether out of
fear of the petitioner, compelling his parents to transfer him to another
school where he had to adjust again.16 Such established circumstances
proved beyond reasonable doubt thatthe petitioner was guilty of child abuse
by deeds that degraded and demeaned the intrinsic worth and dignity of
Michael Ryan as a human being.

It was also shown that Michael Ryan’s physical maltreatment by the

petitioner was neither her first or only maltreatment of a child. Prosecution
witness Louella Loredo revealed on cross examination that she had also
experienced the petitioner’s cruelty.17 The petitioner was also convicted by
the RTC in Iloilo City (Branch 39) in Criminal Case No. 348921 for
maltreatment of another childnamed Dariel Legayada.18 Such previous
incidents manifested that the petitioner had "a propensity for violence," as
the trial judge stated in her decision of June 26, 2003.19

Thirdly, the petitioner submits that the information charging her with child
abuse was insufficient in form and substance, in that the essential elements
of the crime charged were not properly alleged therein; and that her
constitutional and statutory right to due process of law was consequently
violated.

The petitioner’s submission deserves scant consideration.

Under Section 6, Rule 110 of the Rules of Court, the information is sufficient
if it states the name of the accused; the designation of the offense given by
the statute; the acts or omissions complained of as constituting the offense;
the name of the offended party; the proximate date of the commission of
the offense; and the place where the offense was committed.

The information explicitly averred the offense of child abusecharged against

the petitioner in the context of the statutory definition of child abuse found
in Section 3 (b) of Republic Act No. 7610, supra, and thus complied with the
requirements of Section 6, Rule 110 of the Rules of Court. Moreover, the
Court should no longer entertain the petitioner’s challenge against the
sufficiency of the information in form and substance. Her last chance to pose
the challenge was prior to the time she pleaded to the information through a
motion to quash on the ground that the information did not conform
substantially to the prescribed form, or did not charge an offense. She did
not do so, resulting in her waiver of the challenge.

Fourthly, the RTC did not grant civil damages as civil liability ex
delictobecause no evidence had been adduced thereon.20 The CA saw
nothing wrong with the omission by the trial court. The explanation tendered
by the trial judge for the omission was misplaced, however, because even
without proof of the actual expenses, or testimony on the victim’s feelings,
the lower courts still had the authority to define and allow civil liability
arising from the offense and the means to fix their extent. The child abuse
surely inflicted on Michael Ryan physical and emotional trauma as well as
moral injury. It cannot also be denied that his parents necessarily spent for
his treatment. We hold that both lower courts committed a plain error that
demands correction by the Court. Indeed, as the Court pointed out in
Bacolod v. People,21 it was "imperative that the courts prescribe the proper
penalties when convicting the accused, and determine the civil liability to be
imposed on the accused, unless there has been a reservation of the action to
recover civil liability or a waiver of its recovery," explaining the reason for
doing so in the following manner:

It is not amiss to stress that both the RTC and the CA disregarded their
express mandate under Section 2, Rule 120 of the Rules of Courtto have the
judgment, if it was of conviction, state: "(1) the legal qualification of the
offense constituted by the acts committed by the accused and the
aggravating or mitigating circumstances which attended its commission; (2)
the participation ofthe accused in the offense, whether as principal,
accomplice, or accessory after the fact; (3) the penalty imposed upon the
accused; and (4) the civil liability or damages caused by his wrongful act or
omission to be recovered from the accused by the offended party, if there is
any, unless the enforcement of the civil liability by a separate civil action has
been reserved or waived." Their disregard compels us to actas we now do
lest the Court be unreasonably seen as tolerant of their omission. That the
Spouses Cogtas did not themselves seek the correction of the omission by
an appeal is no hindrance to this action because the Court, as the final
reviewing tribunal, has not only the authority but also the duty to correct at
any time a matter of law and justice.1âwphi1

We also pointedly remind all trial and appellate courts to avoid omitting
reliefs that the parties are properly entitled to by law or in equity under the
established facts. Their judgments will not be worthy of the name unless
they thereby fully determine the rights and obligations of the litigants. It
cannot be otherwise, for only by a full determination of such rights and
obligations would they betrue to the judicial office of administering justice
and equity for all. Courts should then be alert and cautious in their rendition
of judgments of conviction in criminal cases. They should prescribe the legal
penalties, which is what the Constitution and the law require and expect
them to do. Their prescription of the wrong penalties will be invalid and
ineffectual for being done without jurisdiction or in manifest grave abuse of
discretion amounting to lack of jurisdiction. They should also determine and
set the civil liability ex delictoof the accused, in order to do justice to the
complaining victims who are always entitled to them. The Rules of Court
mandates them to do so unless the enforcement of the civil liability by
separate actions has been reserved or waived.22

Moral damages should be awarded to assuage the moral and emotional

sufferings of the victim, and in that respect the Court believes and holds that
₱20,000.00 is reasonable. The victim was likewise entitled to exemplary
damages, considering that Article 2230 of the Civil Code authorizes such
damages if at least one aggravating circumstance attended the commission
of the crime. The child abuse committed by the petitioner was aggravated
her being a public school teacher, a factor in raising the penalty to its
maximum period pursuantto Section 31(e) of Republic Act No. 7610. The
amount of ₱20,000.00 as exemplary damages is imposed on in order to set
an example for the public good and as a deterrent to other public school
teachers who violate the ban imposed by Article 233 of the Family Code,
supra, against the infliction of corporal punishment on children under their
substitute parental authority. The lack of proof of the actual expenses for the
victim’s treatmentshould not hinder the granting of a measure of
compensation in the formof temperate damages, which, according to Article
2224 of the Civil Code, may be recovered when some pecuniary loss has
been suffered butits amount cannot be proved with certainty. There being no
question aboutthe injuries sustained requiring medical treatment, temperate
damages ofat least ₱20,000.00 are warranted, for it would be inequitable not
to recognize the need for the treatment. Lastly, interest of 6% per annum
shall be charged on all the items of civil liability, to be reckoned from the
finality of this decision until full payment.

The penalty for the child abusecommitted by the petitioner is that prescribed
in Section 10(a) of Republic Act No. 7610, viz:

Section 10. Other Acts of Neglect, Abuse, Cruelty or Exploitation and Other
Conditions Prejudicial to the Child's Development. –

(a) Any person who shall commit any other acts of child abuse, cruelty or
exploitation or to be responsible for other conditions prejudicial to the child's
development including those covered by Atiicle 59 of Presidential Decree No.
603, as amended, but not covered by the Revised Penal Code, as amended,
shall suffer the penalty of prision mayor in its minimum period.

xxxx

The CA revised the penalty fixed by the R TC by imposing the indeterminate

penalty of four years, two months and one day of prision correccional, as
minimum, to 10 years and one day of prision mayor, as the maximum, on
the ground that the offense was aggravated by the petitioner being a public
schoolteacher.23 It cited Section 3 l(e) of Republic Act No. 7610, which
commands that the penalty provided in the Act "shall be imposed in its
maximum period if the offender is a public officer or employee." Her being a
public schoolteacher was alleged in the information and established by
evidence as well as admitted by her. The revised penalty was erroneous,
however, because Section 10 (a) of Republic Act No. 7610 punishes the
crime committed by the petitioner with prision mayor in its minimum period,
whose three periods are six years and one day to six years and eight
months, for the minimum period; six years, eight months and one day to
seven years and four months, for the medium period; and seven years, four
months and one day to eight years, for the maximum period. The maximum
of the indeterminate sentence should come from the maximum period,
therefore, and the Court fixes it at seven years, four months and one day of
prision mayor. The minimum of the indeterminate sentence should come
from prision correccional in the maximum period, the penalty next lower
than prision mayor in its minimum period, whose range is from four years,
two months and one day to six years. Accordingly, the minimum of the
indeterminate sentence is four years, nine months and 11 days, and the
maximum is seven years, four months and one day of prision mayor.

WHEREFORE, the Court AFFIRMS the decision promulgated on May 11, 2005,
subject to the MODIFICATIONS that: (a) the petitioner shall suffer the
indeterminate penalty of four (4) years, nine (9) months and eleven (11)
days of prision correccional, as minimum, to seven (7) years, four (4)
months and one (1) day of pr is ion mayor, as the maximum; (b) the
petitioner shall pay to Michael Ryan Gonzales ₱20,000.00 as moral damages,
₱20,000.00 as exemplary damages, and ₱20,000.00 as temperate damages,
plus interest at the rate of 6% per annum on each item of the civil liability
reckoned from the finality of this decision until full payment; and (c) the
petitioner shall pay the costs of suit.

SO ORDERED.
 PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. FRANCISCO
EJERCITO, Accused-Appellant.


PERLAS-BERNABE, J.:

Assailed in this ordinary appeal1 is the Decision2 dated October 28, 2016 of
the Court of Appeals (CA) in CA-G.R. CEB CR. HC. No. 01656, which affirmed
the Decision3 dated April 8, 2013 of the Regional Trial Court of,4 Branch 60
(RTC) in Crim. Case No. CEB-BRL-1300 finding accused-appellant Francisco
Ejercito (Ejercito) guilty beyond reasonable doubt of the crime of Rape
defined and penalized under Article 266-A, in relation to Article 266-B, of the
Revised Penal Code (RPC), as amended by Republic Act No. (RA)
8353,5 otherwise known as "The Anti-Rape Law of 1997."




The Facts

This case stemmed from an Information6 filed before the RTC charging
Ejercito of the aforesaid crime, the accusatory portion of which reads:
That on or about the 10th day of October, 2001 at past 7:00 o'clock in the
evening, at , Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused, with lewd design and by means of force and
intimidation, did then and there willfully, unlawfully and feloniously lie and
succeed in having carnal knowledge with [AAA], a minor, who is only fifteen
(15) years old at the time of the commission of the offense against her will
and consent and which act demeans the intrinsic worth and dignity of said
minor as a human being.

CONTRARY TO LAW.7
The prosecution alleged that at around six (6) o'clock in the evening of
October 10, 2001, AAA, then a fifteen (15) year old high school student, was
cleaning the chicken cage at the back of their house located in when
suddenly, she saw Ejercito pointing a gun at her saying, "Ato ato lang ni.
Sabta lang ko. Ayaw gyud saba para dili madamay imo pamilya." AAA
pleaded, "Tang, don't do this to me" but the latter replied, "Do you want me
to kill you? I will even include your mother and father." Thereafter, Ejercito
dragged AAA to a nearby barn, removed her shorts and underwear, while he
undressed and placed himself on top of her. He covered her mouth with his
right hand and used his left hand to point the gun at her, as he inserted his
penis into her vagina and made back and forth movements. When he
finished the sexual act, Ejercito casually walked away and warned AAA not to
tell anybody or else, her parents will get killed. Upon returning to her house,
AAA hurriedly went to the bathroom where she saw a bloody discharge from
her vagina. The following day, AAA absented herself from school and headed
to the house of her aunt, CCC, who asked if she was okay. At that point, AAA
tearfully narrated the incident and requested CCC to remain silent, to which
the latter reluctantly obliged.8

Haunted by her harrowing experience, AAA was unable to focus on her

studies. Wanting to start her life anew, AAA moved to the city to continue
her schooling there. However, Ejercito was able to track AAA down, and
made the latter his sex slave. From 2002 to 2005, Ejercito persistently
contacted AAA, threatened and compelled her to meet him, and thereafter,
forced her to take shabu and then sexually abused her. Eventually, AAA got
hooked on drugs, portrayed herself as Ejercito's paramour, and decided to
live together. When Ejercito's wife discovered her husband's relationship with
AAA, the former filed a complaint against AAA before the barangay. By this
time, even AAA's mother, BBB, found out the illicit relationship and exerted
efforts to separate them from each other. Finally, after undergoing
rehabilitation, AAA finally disclosed to her parents that she was raped by
Ejercito back in 2001 and reported the same to the authorities on September
3, 2005.9

In his defense, Ejercito pleaded not guilty to the charge against him, and
maintained that he had an illicit relationship with AAA. He averred that
during the existence of their affair from 2002 to 2004, he and AAA
frequently had consensual sex and the latter even abandoned her family in
order to live with him in various places in. He even insisted that he and AAA
were vocal about their choice to live together despite vehement objections
from his own wife and AAA's mother. Finally, he pointed out that when AAA
was forcibly taken from him by her mother, as well as police authorities, no
charges were filed against him. Thus, he was shocked and dismayed when
he was charged with the crime of Rape which purportedly happened when
they were lovers.10
The RTC Ruling

In a Decision11 dated April 8, 2013, the RTC found Ejercito guilty beyond
reasonable. doubt of the crime charged and, accordingly, sentenced him to
suffer the penalty of reclusion perpetua, and ordered him to separately pay
AAA and her parents P50,000.00 each as moral damages.12

Aggrieved, Ejercito appealed13 to the CA.

The CA Ruling

In a Decision14 dated October 28, 2016, the CA affirmed the RTC ruling with
modification, convicting Ejercito of Rape defined and penalized under Article
335 of the RPC, and accordingly, sentenced him to suffer the penalty
of reclusion perpetua, and ordered him to pay the offended party, AAA, the
amounts of P75,000.00 as civil indemnity ex delicto, P75,000.00 as moral
damages, and P75,000.00 as exemplary damages, with legal interest of six
percent (6%) per annum to be imposed on all monetary awards from finality
of the ruling until fully paid.15

Agreeing with the RTC's findings, the CA held that through AAA's clear and
straightforward testimony, the prosecution had established that Ejercito
raped her in 2001. On the other hand, it did not give credence to Ejercito's
sweetheart defense, pointing out that assuming arguendo that he indeed
eventually had a relationship with AAA, their first sexual encounter in 2001
was without the latter's consent and was attended with force and
intimidation as he pointed a gun at her while satisfying his lustful desires.16

Hence, this appeal.

The Issue Before the Court

The issue for the Court's resolution is whether or not Ejercito's conviction for
the crime of Rape must be upheld.

The Court's Ruling

The appeal is without merit.

Time and again, it has been held that in criminal cases, "an appeal throws
the entire case wide open for review and the reviewing tribunal can correct
errors, though unassigned in the appealed judgment, or even reverse the
trial court's decision based on grounds other than those that the parties
raised as errors. The appeal confers the appellate court full jurisdiction over
the case and renders such court competent to examine records, revise the
judgment appealed from, increase the penalty, and cite the proper provision
of the penal law."17

Based on this doctrine, the Court, upon careful review of this case, deems it
proper to correct the attribution of the crime for which Ejercito should be
convicted and, consequently, the corresponding penalty to be imposed
against him, as will be explained hereunder.

At the onset, the Court observes that the CA, in modifying the RTC ruling,
erroneously applied the old Rape Law, or Article 335 of the RPC, since the
same was already repealed upon the enactment of RA 8353 in 1997. To
recount, the Information alleges "[t]hat on or about the 10th day of
October 2001 x x x [Ejercito], with lewd design and by means of force and
intimidation, did then and there willfully, unlawfully and feloniously lie and
succeed in having carnal knowledge with [AAA], a minor who is only fifteen
(15) years old at the time of the commission of the offense against her will
and consent x x x"; hence, in convicting Ejercito of Rape, the CA should have
applied the provisions of RA 8353, which enactment has resulted in the new
rape provisions of the RPC under Articles 266-A in relation to 266-B, viz.:
Article 266-A. Rape, When and How Committed. - Rape is committed -

1. By a man who shall have carnal knowledge of a woman under any of the
following circumstances:

a. Through force, threat or intimidation;

xxxx

Article 266-B. Penalties. - Rape under paragraph 1 of the next preceding

article shall be punished by reclusion perpetua.
Whenever the rape is committed with the use of a deadly weapon or by two
or more persons, the penalty shall be reclusion perpetua to death.

xxxx
For a charge of Rape by sexual intercourse under Article 266-A (1) of the
RPC, as amended by RA 8353, to prosper, the prosecution must prove that:
(a) the offender had carnal knowledge of a woman; and (b) he accomplished
this act under the circumstances mentioned in the provision, e.g., through
force, threat or intimidation. The gravamen of Rape is sexual intercourse
with a woman against her will.18

In this case, the prosecution was able to prove beyond reasonable doubt the
presence of all the elements of Rape by sexual intercourse under Article 266-
A (1) of the RPC, as amended by RA 8353. Through AAA's positive
testimony, it was indeed established that in the evening of October 10,
2001, AAA, then just a fifteen (15)-year old minor, was cleaning chicken
cages at the back of her house when suddenly, Ejercito threatened her,
removed her lower garments, covered her mouth, and proceeded to have
carnal knowledge of her without her consent. The RTC, as affirmed by the
CA, found AAA's testimony to be credible, noting further that Ejercito failed
to establish any ill motive on her part which could have compelled her to
falsely accuse him of the aforesaid act. In this relation, case law states that
the trial court is in the best position to assess and determine the credibility
of the witnesses presented by both parties, and hence, due deference should
be accorded to the same.19 As there is no indication that the RTC, as
affirmed by the CA, overlooked, misunderstood or misapplied the
surrounding facts and circumstances of the case, the Court therefore finds
no reason to deviate from its factual findings.

The Court remains mindful that Section 5 (b) of RA 7610,20 which, to note,
was passed prior to RA 8353 on June 17, 1992, equally penalizes those who
commit sexual abuse, by means of either (a) sexual intercourse or (b)
lascivious conduct, against "a child exploited in prostitution or subjected to
other sexual abuse," viz.:
Section 5. Child Prostitution and Other Sexual Abuse. - Children, whether
male or female, who for money, profit, or any other consideration or due to
the coercion or influence of any adult, syndicate or group, indulge in sexual
intercourse or lascivious conduct, are deemed to be children exploited in
prostitution and other sexual abuse.

The penalty of reclusion temporal in its medium period to reclusion

perpetua shall be imposed upon the following:

xxxx

(b) Those who commit the act of sexual intercourse or lascivious conduct
with a child exploited in prostitution or subjected to other sexual abuse;
Provided, That when the victim is under twelve (12) years of age, the
perpetrators shall be prosecuted under Article 335, paragraph 3, for rape
and Article 336 of Act No. 3815, as amended, the Revised Penal Code for
rape or lascivious conduct, as the case may be: Provided, That the penalty
for lascivious conduct when the victim is under twelve (12) years of age shall
be reclusion temporal in its medium period; x x x

xxxx
In Quimvel v. People (Quimvel),21 the Court set important parameters in the
application of Section 5 (b) of RA 7610, to wit:

(1) A child is considered as one "exploited in prostitution or subjected to

other sexual abuse" when the child indulges in sexual intercourse or
lascivious conduct "under the coercion or influence of any adult":
To the mind of the Court, the allegations are sufficient to classify the victim
as one "exploited in prostitution or subject to other sexual abuse." This is
anchored on the very definition of the phrase in Sec. 5 of RA 7610, which
encompasses children who indulge in sexual intercourse or lascivious
conduct (a) for money, profit, or any other consideration; or (b) under the
coercion or influence of any adult, syndicate or group.

Correlatively, Sec. 5 (a) of RA 7610 punishes acts pertaining to or connected

with child prostitution wherein the child is abused primarily for profit. On the
other hand, paragraph (b) punishes sexual intercourse or lascivious conduct
committed on a child subjected to other sexual abuse. It covers not only a
situation where a child is abused for profit but also one in which a child,
through coercion, intimidation or influence, engages in sexual intercourse or
lascivious conduct. Hence, the law punishes not only child prostitution but
also other forms of sexual abuse against children. x x x.22 (Emphases and
underscoring supplied)
(2) A violation of Section 5 (b) of RA 7610 occurs even though the accused
committed sexual abuse against the child victim only once, even without a
prior sexual affront:
[T]he very definition of "child abuse" under Sec. 3 (b) of RA 7610 does not
require that the victim suffer a separate and distinct act of sexual abuse
aside from the act complained of. For it refers to the maltreatment, whether
habitual or not, of the child. Thus, a violation of Sec. 5 (b) of RA 7610.
occurs even though the accused committed sexual abuse against the child
victim only once, even without a prior sexual affront.23 (Emphasis and
underscoring supplied)
(3) For purposes of determining the proper charge, the term "coercion and
influence" as appearing in the law is broad enough to cover "force and
intimidation" as used in the Information; in fact, as these terms are almost
used synonymously, it is then "of no moment that the terminologies
employed by RA 7610 and by the Information are different":
The term "coercion and influence" as appearing in the law is broad enough
to cover "force and intimidation" as used in the Information. To be sure,
Black's Law Dictionary defines "coercion" as "compulsion; force; duress"
while "[undue] influence" is defined as "persuasion carried to the point of
overpowering the will." On the other hand, "force" refers to "constraining
power, compulsion; strength directed to an end" while jurisprudence
defines "intimidation" as "unlawful coercion; extortion; duress; putting in
fear." As can be gleaned, the terms are used almost synonymously. It is
then of no moment that the terminologies employed by RA 7610 and by the
Information are different. And to dispel any remaining lingering doubt as to
their interchangeability, the Court enunciated in Caballo v. People [(710 Phil.
792, 805-806[2013])] that:
x x x sexual intercourse or lascivious conduct under the coercion or
influence of any adult exists when there is some form of compulsion
equivalent to intimidation which subdues the free exercise of the offended
party's free will. Corollary thereto, Section 2 (g) of the Rules on Child Abuse
Cases conveys that sexual abuse involves the element of influence which
manifests in a variety of forms. It is defined as:
The employment, use, persuasion, inducement, enticement or coercion of a
child to engage in or assist another person to engage in, sexual intercourse
or lascivious conduct or the molestation, prostitution, or incest with children.
To note, the term "influence" means the "improper use of power or trust in
any way that deprives a person of free will and substitutes another's
objective." Meanwhile, "coercion" is the "improper use of x x x power to
compel another to submit to the wishes of one who wields it."24 (emphases
and underscoring supplied)
Thus, the Court, in Quimvel, observed that although the Information therein
did not contain the words "coercion or influence" (as it instead, used the
phrase "through force and intimidation"), the accused may still be convicted
under Section 5 (b) of RA 7610. Further, following the rules on the
sufficiency of an Information, the Court held that the Information need not
even mention the exact phrase "exploited in prostitution or subjected to
other abuse" for the accused to be convicted under Section 5 (b) of RA
7610; it was enough for the Information to have alleged that the offense
was committed by means of "force and intimidation" for the prosecution of
an accused for violation of Section 5 (b) of RA 7610 to prosper.25

In this case, it has been established that Ejercito committed the act of
sexual intercourse against and without the consent of AAA, who was only
fifteen (15) years old at that time. As such, she is considered under the law
as a child who is "exploited in prostitution or subjected to other sexual
abuse;" hence, Ejercito's act may as well be classified as a violation of
Section 5 (b) of R.A. 7610.

Between Article 266-A of the RPC, as amended by RA 8353, as afore-

discussed and Section 5 (b) of RA 7610, the Court deems it apt to clarify
that Ejercito should be convicted under the former. Verily, penal laws are
crafted by legislature to punish certain acts, and when two (2) penal laws
may both theoretically apply to the same case, then the law which is more
special in nature, regardless of the time of enactment, should prevail.
In Teves v. Sandiganbayan:26
It is a rule of statutory construction that where one statute deals with a
subject in general terms, and another deals with a part of the same subject
in a more detailed way, the two should be harmonized if possible; but if
there is any conflict, the latter shall prevail regardless of whether it was
passed prior to the general statute. Or where two statutes are of contrary
tenor or of different dates but are of equal theoretical application to a
particular case, the one designed therefor specially should prevail over the
other.27 (Emphases supplied)
After much deliberation, the Court herein observes that RA 8353 amending
the RPC should now be uniformly applied in cases involving sexual
intercourse committed against minors, and not Section 5 (b) of RA 7610.
Indeed, w}file RA 7610 has been considered as a special law that covers the
sexual abuse of minors, RA 8353 has expanded the reach of our already
existing rape laws. These existing rape laws should not only pertain to the
old Article 33528 of the RPC but also to the provision on sexual intercourse
under Section 5 (b)29 of RA 7610 which, applying Quimvel's characterization
of a child "exploited in prostitution or subjected to other abuse," virtually
punishes the rape of a minor.

It bears to emphasize that not only did RA 8353 re-classify the crime of
Rape from being a crime against chastity to a crime against persons,30 it also
provided for more particularized instances of rape and conjunctively, a new
set of penalties therefor. Under RA 8353, Rape is considered committed not
only through the traditional means of having carnal knowledge of a woman
(or penile penetration) but also through certain lascivious acts now classified
as rape by sexual assault:
Article 266-A. Rape: When and How Committed. - Rape is committed -

1) By a man who shall have carnal knowledge of a woman under any of the
following circumstances:

a) Through force, threat, or intimidation;

b) When the offended party is deprived of reason or otherwise unconscious;

c) By means of fraudulent machination or grave abuse of authority; and

d) When the offended party is under twelve (12) years of age or is

demented, even though none of the circumstances mentioned above be
present.

2) By any person who, under any of the circumstances mentioned in

paragraph 1 hereof, shall commit an act of sexual assault by inserting his
penis into another person's mouth or anal orifice, or any instrument or
object, into the genital or anal orifice of another person. (Emphasis supplied)
Moreover, RA 8353 provides for new penalties for Rape that may be qualified
under the following circumstances:
Article 266-B. Penalty. - Rape under paragraph 1 of the next preceding
article shall be punished by reclusion perpetua.

Whenever the rape is committed with the use of a deadly weapon or by two
or more persons, the penalty shall be reclusion perpetua to death.

When by reason or on the occasion of the rape, the victim has become
insane, the penalty shall become reclusion perpetua to death.

When the rape is attempted and a homicide is committed by reason or on

the occasion thereof, the penalty shall be reclusion perpetua to death.

When by reason or on the occasion of the rape, homicide is committed, the

penalty shall be death.

The death penalty shall also be imposed if the crime of rape is committed
with any of the following aggravating/qualifying circumstances:

1) When the victim is under eighteen (18) years of age and the offender is a
parent, ascendant, step-parent, guardian, relative by consanguinity or
afinnity within the third civil degree, or the common-law spouse of the
parent of the victim;

2) When the victim is under the custody of the police or military authorities
or any law enforcement or penal institution;

3) When the rape is committed in full view of the spouse, parent, any of the
children or other relatives within the third civil degree of consanguinity;

4) When the victim is a religious engaged in legitimate religious vocation or

calling and is personally known to be such by the offender before or at the
time of the commission of the crime;

5) When the victim is a child below seven (7) years old;

6) When the offender knows that he is afflicted with the Human Immuno-
Deficiency Virus (HIV)/Acquired Immune Deficiency Syndrome (AIDS) or any
other sexually transmissible disease and the virus or disease is transmitted
to the victim;

7) When committed by any member of the Armed Forces of the Philippines

or para-military units thereof or the Philippine National Police or any law
enforcement agency or penal institution, when the offender took advantage
of his position to facilitate the commission of the crime;

8) When by reason or on the occasion of the rape, the victim has suffered
permanent physical mutilation or disability;

9) When the offender knew of the pregnancy of the offended party at the
time of the commission of the crime; and

10) When the offender knew of the mental disability, emotional disorder
and/or physical handicap of the offended party at the time of the
commission of the crime.

x x x x (Emphases supplied)
Significant to this case, the above-highlighted provisions of RA 8353 already
accounted for the circumstance of minority under certain peculiar instances.
The consequence therefore is a clear overlap' with minority as an element of
the crime of sexual intercourse against a minor under Section 5 (b) of RA
7610. However, as it was earlier intimated, RA 8353 is not only the more
recent statutory enactment but more importantly, the more comprehensive
law on rape; therefore, the Court herein clarifies that in cases where a minor
is raped through sexual intercourse, the provisions of RA 8353 amending the
RPC ought to prevail over Section 5 (b) of RA 7610 although the latter also
penalizes the act of sexual intercourse against a minor.

The Court is not unaware of its previous pronouncements in People v.

Tubillo, 31 citing the cases of People v. Abay 32 and People v.
Pangilinan33 (Tubillo, et al.), wherein the potential conflict in the application
of Section 5 (b) of RA 7610, on the one hand, vis-a-vis RA 8353 amending
the RPC, on the other, was resolved by examining whether or not
the prosecution's evidence focused on the element of "coercion and
influence" or "force and intimidation." In Tubillo:
To reiterate, the elements of rape under Section 266-A of the RPC are: (1)
the offender had carnal knowledge of the victim; and (2) such act was
accomplished through force or intimidation; or when the victim is deprived of
reason or otherwise unconscious; or when the victim is under twelve years
of age.

On the other hand, the elements of Section 5 (b) of R.A. No. 7610, are: (1)
the accused commits the act of sexual intercourse or lascivious conduct; (2)
the act is performed with a child exploited in prostitution or subjected to
other sexual abuse; and (3) the child, whether male or female, is below 18
years of age. It is also stated there that children exploited in prostitution and
other sexual abuse are those children, whether male or female, who, for
money, profit, or any other consideration or due to the coercion or influence
of any adult, syndicate or group, indulge in sexual intercourse or lascivious
conduct.

In the recent case of Quimvel v. People, the Court ruled that the term
"coercion and influence" as appearing in the law is broad enough to cover
"force and intimidation." Black's Law Dictionary defines coercion as
compulsion; force; duress, while undue influence is defined as persuasion
carried to the point of overpowering the will. On the other hand, force refers
to constraining power, compulsion; strength directed to an end; while
jurisprudence defines intimidation as unlawful coercion; extortion; duress;
putting in fear. As can be gleaned, the terms are used almost
synonymously. Thus, it is not improbable that an act of committing carnal
knowledge against a child, twelve (12) years old or older, constitutes both
rape under Section 266-A of the RPC and child abuse under Section 5 (b) of
R.A. No. 7610.

In People v. Abay, the Court was faced with the same predicament. In that
case, both the elements of Section 266-A of the RPC and Section 5 (b) of
R.A. No. 7610 were alleged in the information. Nevertheless, these
provisions were harmonized, to wit:
Under Section 5 (b), Article III of RA 7610 in relation to RA 8353, if the
victim of sexual abuse is below 12 years of age, the offender should not be
prosecuted for sexual abuse but for statutory rape under Article 266-A (1)
(d) of the Revised Penal Code and penalized with reclusion perpetua. On the
other hand, if the victim is 12 years or older, the offender should be charged
with either sexual abuse under Section 5 (b) of RA 7610 or rape under
At1icle 266-A (except paragraph 1 [d]) of the Revised Penal Code. However,
the offender cannot be accused of both crimes for the same act because his
right against double jeopardy will be prejudiced. A person cannot be
subjected twice to criminal liability for a single criminal act. Likewise, rape
cannot be complexed with a violation of Section 5 (b) of RA 7610. Under
Section 48 of the Revised Penal Code (on complex crimes), a felony under
the Revised Penal Code (such as rape) cannot be complexed with an offense
penalized by a special law. (Emphasis supplied)
In Abay, the offended party was thirteen (13) years old at the time of the
rape incident. Again, the information therein contained all the elements of
A r t i c l e 2 6 6 -A ( 1 ) o f t h e R P C a n d S e c t i o n 5 ( b ) o f R . A . N o.
7610. Nevertheless, the Court observed that the prosecution's evidence only
focused on the specific fact that accused therein sexually violated the
offended party through force and intimidation by threatening her with a
bladed instrument and forcing her to submit to his bestial designs. Thus,
accused therein was convicted of the crime of rape under Article 266-A (1) of
the RPC. Notably, the prosecution did not tackle the broader scope of
"influence or coercion" under Section 5 (b) of R.A. No. 7610.

Similarly, in People v. Pangilinan, the Court was faced with the same
dilemma because all the elements of Article 266-A (1) of the RPC and
Section 5 (b) of R.A. No. 7610 were present. It was ruled therein that the
accused can be charged with either rape or child abuse and be convicted
therefor. The Court observed, however, that the prosecution's evidence
proved that accused had carnal knowledge with the victim through force and
intimidation by threatening her with a samurai sword. Thus, rape was
established. Again, the evidence in that case did not refer to the broader
scope of "influence or coercion" under Section 5 (b) of R.A. No. 7610.

In the present case, the RTC convicted Tubillo for the crime of rape because
the prosecution proved that there was carnal knowledge against by means of
force or intimidation, particularly, with a bladed weapon. On the other hand,
the CA convicted Tubillo with violation of Section 5 (b) of R.A. No. 7610
because the charge of rape under the information was in relation to R.A. No.
7610.
After a judicious study of the records, the Court rules that Tubillo should be
convicted of rape under Article 266-A (1) (a) of the RPC.

A reading of the information would show that the case at bench involves
both the elements of Article 266-A (1) of the RPC and Section 5 (b) of R.A.
No. 7610. As elucidated in People v. Abay and People v. Pangilinan, in such
instance, the court must examine the evidence of the prosecution, whether it
focused on the specific force or intimidation employed by the offender or on
the broader concept of coercion or influence to have carnal knowledge with
the victim.

Here, the evidence of the prosecution unequivocally focused on the force or

intimidation employed by Tubillo against HGE under Article 266-A (1) (a) of
the RPC. The prosecution presented the testimony HGE who narrated that
Tubillo unlawfully entered the house where she was sleeping by breaking the
padlock. Once inside, he forced himself upon her, pointed a knife at her
neck, and inserted his penis in her vagina. She could not resist the sexual.
attack against her because. Tubillo poked a bladed weapon at her neck.
Verily, Tubillo employed brash force or intimidation to carry out his dastardly
deeds.

In fine, Tubillo should be found guilty of rape under Article 266-A (1) (a) of
the RPC with a prescribed penalty of reclusion perpetua, instead of Section 5
(b) of R.A. No. 7610.34 (Emphases and underscoring supplied)
As may be gleaned therefrom, the Court examined the evidence of the
prosecution to determine "whether it focused on the specific force or
intimidation employed by the offender or on the broader concept of coercion
or influence to have carnal knowledge with the victim."35 The premise
in Tubillo that "coercion or influence" is the broader concept in contrast to
"force or intimidation" appears to have been rooted from that statement
in Quimvel wherein it was mentioned that "[t]he term 'coercion and
influence' as appearing in the law is broad enough to cover 'force and
intimidation' as used in the Information."36 However, Quimvel did not intend
to provide any distinction on the meanings of these terms so as to determine
whether an accused's case should fall under Section 5 (b) of RA 7610 or RA
8353 amending the RPC, much more foist any distinction depending on what
the prosecution's e vidence "focused" on. In fact, the Court
in Quimvel stated "the terms ['coercion and influence' and 'force and
intimidation'] are used almost synonymously";37 as such, the Court
in Quimvel held that "[i]t is then of no moment that the terminologies
employed by RA 7610 and by the Information are different";38 and that "the
words 'coercion or influence' need not specifically appear"39 in order for the
accused to be prosecuted under Section 5 (b) of RA 7610. As such, the Court
misconstrued the aforesaid statement in Quimvel and misapplied the same
to somehow come up with Tubillo, et al.'s "focus of evidence" approach.

However, the mistaken interpretation of Quimvel in Tubillo, et al. only

compounds the fundamental error of the "focus of evidence" approach,
which is 'to rely on evidence appreciation, instead of legal interpretation.
Ultimately, there is no cogent legal basis to resolve the possible conflict
between two (2) laws by ascertaining what was the focus of the evidence
presented by the prosecution. Presentation of evidence leads to determining
what act was committed. Resolving the application of either RA 8353
amending the RPC or Section 5 (b) of RA 7610 already presupposes that
evidentiary concerns regarding what act has been committed (i.e., the act of
sexual intercourse against a minor) have already been settled. Hence, the
Court is only tasked to determine what law should apply based on legal
interpretation using the principles of statutory construction. In other words,
the Court need not unearth evidentiary concerns as what remains is a pure
question of law - that is: in cases when the act of sexual intercourse against
a minor has been committed, do we apply RA 8353 amending the RPC or
Section 5 (b) of RA 7610? Herein lies the critical flaw of the "focus of
evidence" approach, which was only compounded by the mistaken reading of
Quimvel in the cases of Tubillo, et al. as above-explained.

Neither should the conflict between the application of Section 5 (b) of RA

7610 and RA 8353 be resolved based on which law provides a higher penalty
against the accused. The superseding scope of RA 8353 should be the sole
reason of its prevalence over Section 5 (b) of RA 7610. The higher penalty
provided under RA 8353 should not be the moving consideration, given that
penalties are merely accessory to the act being punished by a particular law.
The term "'[p]enalty' is defined as '[p]unishment imposed on a wrongdoer
usually in the form of imprisonment or fine'; '[p]unishment imposed by
lawful authority upon a person who commits a deliberate or negligent
act.'"40 Given its accessory nature, once the proper application of a penal law
is determined over another, then the imposition of the penalty attached to
that act punished in the prevailing penal law only follows as a matter of
course. In the final analysis, it is the determination of the act being punished
together with its attending circumstances - and not the gravity of the
penalty ancillary to that punished act - which is the key consideration in
resolving the conflicting applications of two penal laws.

Notably, in the more recent case of People v. Caoili (Caoili),41 the Court
encountered a situation wherein the punishable act committed by therein
accused, i.e., lascivious conduct, may be prosecuted either under "Acts of
Lasciviousness under Article 336 of the RPC in relation to Section 5 (b) of RA
7610" or "Lascivious Conduct under Section 5 (b) of RA 7610." In resolving
the matter, the Court did not consider the "focus" of the evidence for the
prosecution nor the gravity of the penalty imposed. Rather, it is evident that
the determining factor in designating or charging the proper offense, and
consequently, the imposable penalty therefor, is the nature of the act
committed, i.e., lascivious conduct, taken together with the attending
circumstance of the age of the victim:
Accordingly, for the guidance of public prosecutors and the courts, the Court
takes this opportunity to prescribe the following guidelines in designating or
charging the proper offense in case lascivious conduct is committed under
Section 5 (b) of R.A. No. 7610, and in determining the imposable penalty:

1. The age of the victim is taken into consideration in designating or

charging the offense, and in determining the imposable penalty.

2. If the victim is under twelve (12) years of age, the nomenclature of the
crime should be "Acts of Lasciviousness under Article 336 of the Revised
Penal Code in relation to Section 5 (b) of R.A. No. 7610." Pursuant to the
second proviso in Section 5 (b) of R.A. No. 7610, the imposable penalty
is reclusion temporal in its medium period.

3. If the victim is exactly twelve (12) years of age, or more than twelve (12)
but below eighteen (18) years of age, or is eighteen (18) years old or older
but is unable to fully take care of herself/himself or protect herself/himself
from abuse, neglect, cruelty, exploitation or discrimination because of a
physical or mental disability or condition, the crime should be designated as
"Lascivious Conduct under Section 5 (b) of R.A. No. 7610," and the
imposable penalty is reclusion temporal in its medium period to reclusion
perpetua.42
Thus, being the more recent case, it may be concluded
that Caoili implicitly abandoned the "focus of evidence" approach used in
the Tubillo, et al. rulings. Likewise, it is apt to clarify that if there appears to
be any rational dissonance or perceived unfairness in the imposable
penalties between two applicable laws (say for instance, that a person who
commits rape by sexual assault under Article 266-A in relation to Article
266-B of the RPC,43 as amended by RA 8353 is punished less than a person
who commits lascivious conduct against a minor under Section 5 (b) of RA
761044), then the solution is through remedial legislation and not through
judicial interpretation. It is well-settled that the determination of penalties is
a policy matter that belongs to the legislative branch of government.45 Thus,
however compelling the dictates of reason might be, our constitutional order
proscribes the Judiciary from adjusting the gradations of the penalties which
are fixed by Congress through its legislative function. As Associate Justice
Diosdado M. Peralta had instructively observed in his opinion in Caoli:
Curiously, despite the clear intent of R.A. 7610 to provide for stronger
deterrence and special protection against child abuse, the penalty [reclusion
temporal medium] when the victim is under 12 years old is lower compared
to the penalty [reclusion temporal medium to reclusion perpetua] when the
victim is 12 years old and below 18. The same holds true if the crime of acts
of lasciviousness is attended by an aggravating circumstance or committed
by persons under Section 31, Article XII of R.A. 7610, in which case, the
imposable penalty is reclusion perpetua. In contrast, when no mitigating or
aggravating circumstance attended the crime of acts of lasciviousness, the
penalty therefor when committed against a child under 12 years old is aptly
higher than the penalty when the child is 12 years old and below 18. This is
because, applying the Indeterminate Sentence Law, the minimum term in
the case of the younger victims shall be taken from reclusion
temporal minimum, whereas as [sic] the minimum term in the case of the
older victims shall be taken from prision mayor medium to reclusion
temporal minimum. It is a basic rule in statutory construction that what
courts may correct to reflect the real and apparent intention of the
legislature are only those which are clearly clerical errors or obvious
mistakes, omissions, and misprints, but not those due to oversight, as
shown by a review of extraneous circumstances, where the law is clear, and
to correct it would be to change the meaning of the law. To my mind, a
corrective legislation is the proper remedy to address the noted incongruent
penalties for acts of lasciviousness committed against a child.46 (Emphasis
supplied)
Based on the foregoing considerations, the Court therefore holds that in
instances where an accused is charged and eventually convicted of having
sexual intercourse with a minor, the provisions on rape under RA 8353
amending the RPC should prevail over Section 5 (b) of RA 7610. Further, to
reiterate, the "focus of evidence" approach used in the Tubillo, et al. rulings
had already been abandoned.

In this case, it has been established that Ejercito had carnal knowledge of
AAA through force, threat, or intimidation. Hence, he should be convicted of
rape under paragraph 1 (a), Article 266-A of the RPC, as amended by RA
8353. To note, although AAA was only fifteen (15) years old and hence, a
minor at that time, it was neither alleged nor proven that Ejercito was her
"parent, ascendant, step-parent, guardian, relative by consanguinity or
affinity within the third civil degree, or the common-law spouse of the parent
of the victim" so as to qualify the crime and impose a higher penalty. As
such, pursuant to the first paragraph of Article 266-B of the same law,
Ejercito should be meted with the penalty of reclusion perpetua, as ruled by
both the RTC and the CA. Further, the Court affirms the monetary awards in
AAA's favor in the amounts of P75,000.00 as civil indemnity, P75,000.00 as
moral damages, and P75,000.00 as exemplary damages, all with legal
interest at the rate of six percent (6%) per annum from finality of this ruling
until fully paid, since the same are in accord. with prevailing jurisprudence.47

WHEREFORE, the appeal is DENIED. The Decision dated October 28, 2016 of
t h e C o u r t o f A p p e a l s i n C A- G . R . C E B C R . H C . N o. 0 1 6 5 6 i s
hereby AFFIRMED with MODIFICATION. Accused-appellant Francisco Ejercito
is hereby found GUILTY beyond reasonable doubt of the crime of Rape under
Article 266-A of the Revised Penal Code, as amended by Republic Act No.
8353. Accordingly, he is sentenced to suffer the penalty of reclusion
perpetua. Further, he is ordered to pay AAA the amounts of P75,000.00 as
civil indemnity, P75,000.00 as moral damages, and P75,000.00 as
exemplary damages, all with legal interest at the rate of six percent (6%)
per annum from finality of this ruling until fully paid.

SO ORDERED.
 PEOPLE OF THE PHILIPPINES, Petitioner, v. NOEL GO CAOILI ALIAS
"BOY TAGALOG", Respondent.


G.R. No. 196848, August 8, 2017




NOEL GO CAOILI, Petitioner, v. PEOPLE OF THE
PHILIPPINES, Respondent.


DECISION

TIJAM, J.:

Assailed in these consolidated petitions for review1 under Rule 45 of the

Rules of Court are the July 22, 2010 Decision2 and March 29, 2011
Resolution3 of the Court of Appeals (CA) in CA-G.R. CR-HC No. 00576- MIN,
which set aside the June 17, 2008 Decision4 of the Regional Trial Court (RTC)
of Surigao City, Branch 30, in Criminal Case No. 7363, finding Noel Go Caoili
(Caoili) alias "Boy Tagalog" guilty of the crime of Rape by Sexual Assault
under paragraph 2 of Article 266-A of the Revised Penal Code (RPC), as
amended by Republic Act (R.A.) No. 8353,5 and remanded the case to the
RTC for further proceedings consistent with the CA's opinion.

The Facts

On June 22, 2006, First Assistant Provincial Prosecutor Raul O. Nasayao filed
an Information against Caoili, charging him with the crime of rape through
sexual intercourse in violation of Article 266-A, in relation to Article 266-B, of
the RPC as amended by R.A. No. 8353, and R.A. No. 7610.6 The accusatory
portion of the Information reads:

That on or about the 23rd day of October 2005, at 7:00 o'clock in the
evening, more or less, in Purok [III], Barangay [JJJ], [KKK], [LLL],
Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, with full freedom and intelligence, with lewd design, did,
then and there, willfully, unlawfully and feloniously had sexual intercourse
with one [AAA],7 a minor, fifteen (15) years of age and the daughter of the
herein accused, through force, threat and intimidation and against her will,
to her damage and prejudice in the amount as may be allowed by law.

CONTRARY TO Article 266-A, in relation to Article 266-B of R.A. 8353, with

the aggravating circumstance that the accused is the father of the victim and
R.A. 7610[.]8

On July 31, 2006, the RTC issued an Order9 confirming Caoili 's detention at
the Municipal Station of the Bureau of Jail Management and Penology after
his arrest10 on October 25, 2005.

Upon arraignment on September 15, 2006,11 Caoili pleaded not guilty to the
crime charged. After the pre-trial, trial on the merits ensued.

The victim, AAA, testified that on October 23, 2005, at 7:00p.m., her father,
Caoili, sexually molested her at their house located in Barangay JJJ,
Municipality of KKK, in the Province of LLL. Caoili kissed her lips, touched
and mashed her breast, inserted the fourth finger of his left hand into her
vagina, and made a push and pull movement into her vagina with such
finger for 30 minutes. AAA felt excruciating pain during and after the ordeal.
Against her father's harsh warning not to go out of the house, AAA
proceeded to the house of her uncle, BBB, located 20 meters away from
their house. When he learned of this, Caoili fetched AAA and dragged her
home. He beat and hit her with a piece of wood, and boxed her on the
stomach.12

On October 26, 2005, AAA disclosed to Emelia Loayon (Loayon), the

guidance counselor at AAA's school, the sexual molestation and physical
violence committed against her by her own father. Loayon accompanied AAA
to the police station to report the sexual and physical abuse. AAA also
executed a sworn statement13 regarding the incident before the Municipal
Mayor.14

AAA underwent a medical examination conducted by Dr. Ramie Hipe (Dr.

Hipe) at the [KKK] Medicare Community Hospital. Dr. Hipe issued a medical
certificate dated October 26, 2005 showing that AAA had suffered:15

xxxx
 1. Contusion, 5 inches in width, distal 3rd, lateral aspect, left Thigh.
2. Contusion, 2 cms in width, distal 3rd, lateral aspect, left Forearm
3. (+) tenderness, left parietal area, head
4. (+)tenderness, over the upper periumbilical area of abdomen
5. tenderness, over the hypogastric area
xxxx

Genital Examination

xxxx

Hymen

- fimbriated in shape

- with laceration on the following:

-complete laceration - 12 o'clock position

- partial laceration - 3 o'clock position

-complete laceration - 6 o'clock position

-partial laceration - 8 o'clock position

-complete laceration - 9 o'clock position

-partial laceration - 11 o'clock position16

Dr. Hipe referred AAA to a Medical Specialist, Dr. Lucila Clerino (Dr. Clerino),
for further Medico-Legal examination and vaginal smear. Dr. Clerino issued a
Supplementary Medical Certificate dated October 28, 2005, indicating that
AAA's hymenal area had lacerations complete at 6 o'clock and 9 o'clock
superficial laceration at 12 o'clock.17

AAA sought the assistance of the Department of Social Welfare and

Development which facilitated her admission to a rehabilitation center run by
the Missionary Sisters of Mary.18

For his defense, Caoili denied molesting AAA. He alleged that on October 23,
2005, at about 7:00p.m., he saw AAA with her boyfriend at the cassava
plantation. He recognized AAA by the fragrance of her perfume and by the
outline of her ponytail. He even greeted them "good evening" but they did
not respond. He then went home. When AAA arrived at their house, he
confronted her and the latter admitted that she was with her boyfriend
"Dodong" earlier that evening. He was so angry so he struck AAA's right
thigh with a piece of wood and pushed the same piece of wood on her
forehead. When AAA cried out in pain, he became remorseful and asked for
forgiveness, but AAA kept mum. After they had supper, Caoili and his son
slept in one room; while AAA and her siblings slept in another room.19

The RTC's Ruling

On June 17, 2008, the RTC rendered its Decision20 declaring Caoili guilty of
rape by sexual assault. The dispositive portion of the Decision reads:

WHEREFORE, finding the accused NOEL GO CAOILI alias "Boy Tagalog" guilty
beyond reasonable doubt, as principal, of the crime of rape, defined and
penalized in paragraph 2 of Article 266-A in relation to Article 266-B of the
Revised Penal Code, as amended by R.A. No. 8353, and after considering the
aggravating circumstance of being the parent of the complainant, who was
fourteen (14) years, one (1) month and ten (10) days old at the time of the
incident in question, there being no mitigating circumstance to off-set the
same, this Court hereby sentences the said accused to suffer imprisonment
for an indefinite period of TEN (10) YEARS and ONE (1) DAY of Prision
Mayor in its maximum period, as minimum, to SEVENTEEN (17) YEARS,
FOUR (4) MONTHS and ONE (1) DAY of Reclusion Temporal in its maximum
period, as maximum, and to pay the costs. Four-fifths (4/5) of the
preventive detention of said accused shall be credited to his favor.

The same accused is hereby ordered to pay complainant [AAA] an

indemnity ex delicto of P50,000.00; moral damages of P50,000.00; and
exemplary damages of another P50,000.00.

SO ORDERED.21

On September 29, 2008, pursuant to a Commitment Order22 issued by the

RTC on August 27, 2008, provincial jail guards escorted Caoili for his
confinement at the Davao Prisons and Penal Farm, Panabo, Davao del Norte
(Davao Penal Colony).23

Thereafter, Caoili filed his appeal before the CA.

The CA's Ruling

On July 22, 2010, the CA rendered the assailed Decision,24 the dispositive
portion of which reads, thus:

FOR THESE REASONS, the appealed Decision of Branch 30 of the Regional

Trial Court of Surigao City, in Criminal Case Nos. 7363, is SET ASIDE. Let
this case be as it is IMMEDIATELY REMANDED to the trial court for further
proceedings consistent with this opinion. Costs de oficio.

SO ORDERED.25

The CA held that although Caoili is clearly guilty of rape by sexual assault,
what the trial court should have done was to direct the State Prosecutor to
file a new Information charging the proper offense, and after compliance
therewith, to dismiss the original Information. The appellate court found it
"imperative and morally upright" to set the judgment aside and to remand
the case for further proceedings pursuant to Section 14, Rule 110,26 in
relation to Section 19, Rule 11927 of the Rules of Court.

Thereafter, Caoili and the Office of the Solicitor General (OSG) filed their
respective petitions for review before this Court: G.R. No. 196342 was
instituted by the OSG and G.R. No. 196848 was filed by Caoili. These
petitions were ordered consolidated by the Court in its Resolution28 dated on
August 1, 2011.

In G.R. No. 196342, the OSG assails the CA's Decision for not being in
accord with the law and established jurisprudence. Their petition was
anchored on the following grounds:29

I.

[CAOILI] WAS CONVICTED OF A CRIME NECESSARILY INCLUDED IN THE

OFFENSE CHARGED IN THE INFORMATION AND EMBRACED WITHIN THE
SAME ARTICLE OF [R.A. NO.] 8353.

II.

[CAOILI'S] CONSTITUTIONAL RIGHT TO BE INFORMED OF THE CHARGE

AGAINST HIM WAS NOT VIOLATED SINCE HE ACTIVELY PARTICIPATED
DURING THE TRIAL PROCEEDINGS AND NEVER QUESTIONED THE
PRESENTATION OF EVIDENCE SHOWING THAT THE CRIME COMMITTED WAS
SEXUAL ASSAULT AND NOT SIMPLE RAPE.

III.

THE HONORABLE [CA] HAS ALREADY AFFIRMED THE CONVICTION OF

[CAOILI] FOR THE CRIME OF RAPE BY SEXUAL ASSAULT.

IV.

THE LAST PARAGRAPH OF SECTION 14, RULE 110 OF THE RULES OF COURT,
IN RELATION TO SECTION 19, RULE 119, OF THE SAME RULES, IS NOT
APPLICABLE IN THE INSTANT CASE.

In G.R. No. 196848, Caoili raises the following issues30 for our consideration:

I.

WHETHER RAPE BY SEXUAL ASSAULT IS NECESSARILY INCLUDED IN RAPE

BY SEXUAL INTERCOURSE;

II.

WHETHER THE CASE MAY BE REMANDED TO THE COURT A QUO FOR

FURTHER PROCEEDINGS PURSUANT TO SECTION 14, RULE 110 AND SEC.
19, RULE 119 OF THE RULES OF COURT;

III.

WHETHER THE PROSECUTION HAS SUFFICIENTLY ESTABLISHED BEYOND

REASONABLE DOUBT THE GUILT OF [CAOILI] ON [sic] THE CRIME CHARGED
IN THE INFORMATION;

IV.

WHETHER THE DECISION OF THE HONORABLE [CA] ACQUITTED [CAOILI.]

The Court's Ruling

The petitions lack merit.

The prosecution has established rape by sexual assault.

R.A. No. 8353 or the "Anti-Rape Law of 1997" amended Article 335, the
provision on rape in the RPC, reclassifying rape as a crime against persons
and introducing rape by "sexual assault," as differentiated from rape through
"carnal knowledge" or rape through "sexual intercourse."31 Incorporated into
the RPC by R.A. No. 8353, Article 266-A reads:

Article 266-A. Rape, When and How Committed. Rape is committed -

1) By a man who shall havecarnal knowledge of a woman under any of the

following circumstances:

(a) Through force, threat or intimidation;

(b) When the offended party is deprived of reason or is otherwise

unconscious;

(c) By means of fraudulent machination or grave abuse of authority; [and]

(d) When the offended party is under twelve (12) years of age or is
demented, even though none of the circumstances mentioned above be
present[.]

2) By any person who, under any of the circumstances mentioned in

paragraph 1 hereof, shall commit an act ofsexual assault by inserting his
penis into another person's mouth or anal orifice, or any instrument or
object, into the genital or anal orifice of another person.32 (Emphasis ours)

Thus, rape under the RPC, as amended, can be committed in two ways:

(1) Article 266-A paragraph 1 refers to rape through sexual intercourse,

also known as "organ rape" or "penile rape." The central element in rape
through sexual intercourse is carnal knowledge, which must be proven
beyond reasonable doubt.

(2) Article 266-A paragraph 2 refers to rape by sexual assault, also called
"instrument or object rape," or "gender-free rape." It must be attended by
any of the circumstances enumerated in sub-paragraphs (a) to (d) of
paragraph 1.33 (Emphasis ours)

Through AAA's testimony, the prosecution was able to prove that Caoili
molested his own daughter when he inserted his finger into her vagina and
thereafter made a push and pull movement with such finger for 30 minutes,
34 thus, clearly establishing rape by sexual assault35 under paragraph 2,

Article 266-A of the RPC.

Caoili, however, questions AAA's credibility, arguing that her testimony

lacked veracity since she harbored hatred towards him due to the latter's
strict upbringing.36

The Court however, oppugns the veracity of Caoili's claim.

It is settled that ill motives become inconsequential if there is an affirmative

and credible declaration from the rape victim, which clearly establishes the
liability of the accused.37

AAA was a little over 15 years old when she testified,38 and she categorically
identified Caoili as the one who defiled her. She positively and consistently
declared that Caoili inserted his finger into her vagina and that she suffered
tremendous pain during the insertion. Her account of the incident, as found
by the RTC39 and the CA,40 was clear, convincing and straightforward, devoid
of any material or significant inconsistencies.

In People v. Pareja,41 the Court held that:

[T]he "assessment of the credibility of witnesses is a domain best left to the

trial court judge because of his unique opportunity to observe their
deportment and demeanor on the witness stand; a vantage point denied the
appellate courts, and when his findings have been affirmed by the CA, these
are generally binding and conclusive upon this Court."42

While there are recognized exceptions to the rule, this Court has found no
substantial reason to overturn the identical conclusions of the trial and
appellate courts on the matter of AAA's credibility.43
When a rape victim's testimony on the manner she was molested is
straightforward and candid, and is corroborated by the medical findings of
the examining physician, as in this case, the same is sufficient to support a
conviction for rape.44 In a long line of cases,45 this Court has given full
weight and credit to the testimonies of child victims, considering that their
youth and immaturity are generally badges of truth and sincerity. Indeed,
leeway should be given to witnesses who are minors, especially when they
are relating past incidents of abuse.46

It is likewise settled that in cases where the rape is committed by a close

kin, such as the victim's father, stepfather, uncle, or the common-law spouse
of her mother, it is not necessary that actual force or intimidation be
employed; moral influence or ascendancy takes the place of violence or
intimidation.47

Verily, the prosecution has sufficiently proved the crime of rape by sexual
assault as defined in paragraph 2 of Article 266-A of the RPC. Caoili,
however, cannot be convicted of said crime.

Rape by sexual assault is not subsumed in rape through sexual

intercourse.

We cannot accept the OSG's argument that based on the variance doctrine,
48 Caoili can be convicted of rape by sexual assault because this offense is

necessarily included in the crime of rape through sexual intercourse.

The variance doctrine, which allows the conviction of an accused for a crime
proved which is different from but necessarily included in the crime charged,
is embodied in Section 4, in relation to Section 5 of Rule 120 of the Rules of
Court, which reads:

Sec. 4. Judgment in case of variance between allegation and proof. — When

there is variance between the offense charged in the complaint or
information and that proved, and the offense as charged is included in or
necessarily includes the offense proved, the accused shall be convicted
of the offense proved which is included in the offense charged, or of
the offense charged which is included in the offense proved. (Emphasis ours)
Sec. 5. When an offense includes or is included in another. - An offense
charged necessarily includes the offense proved when some of the essential
elements or ingredients of the former, as alleged in the complaint or
information, constitute the latter. And an offense charged is necessarily
included in the offense proved, when the essential ingredients of the former
constitute or form part of those constituting the latter.

By jurisprudence,49 however, an accused charged in the Information with

rape by sexual intercourse cannot be found guilty of rape by sexual assault,
even though the latter crime was proven during trial. This is due to the
substantial distinctions between these two modes of rape.50

The elements of rape through sexual intercourse are: (1) that the offender is
a man; (2) that the offender had carnal knowledge of a woman; and (3) that
such act is accomplished by using force or intimidation.51 Rape by sexual
intercourse is a crime committed by a man against a woman, and the central
element is carnal knowledge.52

On the other hand, the elements of rape by sexual assault are: (1) that the
offender commits an act of sexual assault; (2) that the act of sexual assault
is committed by inserting his penis into another person's mouth or anal
orifice or by inserting any instrument or object into the genital or anal orifice
of another person; and that the act of sexual assault is accomplished by
using force or intimidation, among others.53

In the first mode (rape by sexual intercourse): (1) the offender is always a
man; (2) the offended party is always a woman; (3) rape is committed
through penile penetration of the vagina; and (4) the penalty is reclusion
perpertua.54

In the second mode (rape by sexual assault): (1) the offender may be a man
or a woman; (2) the offended party may be a man or a woman; (3) rape is
committed by inserting the penis into another person's mouth or anal orifice,
or any instrument or object into the genital or anal orifice of another person;
and (4) the penalty is prision mayor.55

The Court en banc's categorical pronouncement in People v. Abulon,56 thus,

finds application:
In view of the material differences between the two modes of rape, the first
mode is not necessarily included in the second, and vice-versa. Thus, since
the charge in the Information in Criminal Case No. SC-7424 is rape through
carnal knowledge, appellant cannot be found guilty of rape by sexual assault
although it was proven, without violating his constitutional right to be
informed of the nature and cause of the accusation against him.57

Our esteemed colleague, Justice Marvic M.V.F. Leonen (Justice Leonen), is of

the view that Caoili should be convicted of rape by sexual intercourse.
58 According to him, sexual intercourse encompasses a wide range of sexual

activities, and is not limited to those involving penetration, genitals, and

opposite sexes;59 it may be penetrative or simply stimulative.60 Thus, he
maintains that Caoili's act of inserting his finger into his daughter's genitalia
qualifies as carnal knowledge or sexual intercourse.61

The Court, however, cannot adopt Justice Leonen's theory.

The language of paragraphs 1 and 2 of Article 266-A of the RPC, as amended

by R.A. No. 8353, provides the elements that substantially differentiate the
two forms of rape, i.e., rape by sexual intercourse and rape by sexual
assault. It is through legislative process that the dichotomy between these
two modes of rape was created. To broaden the scope of rape by sexual
assault, by eliminating its legal distinction from rape through sexual
intercourse, calls for judicial legislation which We cannot traverse without
violating the principle of separation of powers. The Court remains steadfast
in confining its powers within the constitutional sphere of applying the law as
enacted by the Legislature.

In fine, given the material distinctions between the two modes of rape
introduced in R.A. No. 8353, the variance doctrine cannot be applied to
convict an accused of rape by sexual assault if the crime charged is rape
through sexual intercourse, since the former offense cannot be considered
subsumed in the latter.

The Court, thus, takes this occasion to once again remind public prosecutors
of their crucial role in drafting criminal complaints or Information. They have
to be more judicious and circumspect in preparing the Information since a
mistake or defect therein may not render full justice to the State, the
offended party and even the offender.
Thus, in Pareja,62 the Court held that:

The primary duty of a lawyer in public prosecution is to see that justice is

done - to the State, that its penal laws are not broken and order maintained;
to the victim, that his or her rights are vindicated; and to the offender, that
he is justly punished for his crime.63

Caoili can be convicted of the crime of lascivious conduct under

Section 5(b) of R.A. No. 7610.

R.A. No. 761064 finds application when the victims of abuse, exploitation or
discrimination are children or those "persons below 18 years of age or those
over but are unable to fully take care of themselves or protect themselves
from abuse, neglect, cruelty, exploitation or discrimination because of a
physical or mental disability or condition."65

It is undisputed that at the time of the commission of the lascivious act, AAA
was fourteen (14) years, one (1) month and ten (10) days old. This calls for
the application of Section 5(b) of R.A. No. 761066 which provides:

SEC. 5. Child Prostitution and Other Sexual Abuse. Children, whether male
or female, who for money, profit, or any other consideration or due to the
coercion or influence of any adult, syndicate or group, indulge in sexual
intercourse or lascivious conduct, are deemed to be children exploited in
prostitution and other sexual abuse.

The penalty of reclusion temporal in its medium period to reclusion

perpetua shall be imposed upon the following:

xxxx

(b) Those who commit the act of sexual intercourse or lascivious conduct
with a child exploited in prostitution or subjected to other sexual abuse:
Provided, That when the victim is under twelve (12) years of age, the
perpetrators shall be prosecuted under Article 335, paragraph 3, for rape
and Article 336 of Act No. 3815, as amended, the Revised Penal Code, for
rape or lascivious conduct, as the case may be: Provided, That the penalty
for lascivious conduct when the victim is under twelve (12) years of age shall
be reclusion temporal in its medium period. (Emphasis ours.)
The elements of sexual abuse under Section 5(b) of R.A. No. 7610 are as
follows:

(1) The accused commits the act of sexual intercourse or lascivious conduct;

(2) The said act is performed with a child exploited in prostitution or

subjected to other sexual abuse; and

(3) The child, whether male or female, is below 18 years of age.67 (Emphasis
ours)

The prosecution's evidence has sufficiently established the elements of

lascivious conduct under Section 5(b) of R.A. No. 7610.

Caoili's lascivious conduct

The evidence confirms that Caoili committed lascivious acts against AAA
when he kissed her lips, touched and mashed her breast, and inserted his
finger into her vagina and made a push and pull movement with such finger
for 30 minutes.

AAA's testimony during direct examination showed how her father, Caoili,
committed lascivious acts against her:

(On Direct Examination)

Pros. Silvosa

Q Now, was there any unusual incident that happened at around 7:00
o'clock in the evening of October 23, 2005?

A Yes, sir.

Q What happened on October 23, 2005 at around 7:00 o'clock in the

evening?

A First, he kissed my lips, 2nd, he touched and mashed my breast

and his 4th finger touched my private part.
Court

Q 4th finger of what hand?

A Left, your Honor.

xxxx

Q Who has done this to you?

A Noel Go Caoili.

Pros. Silvosa

Q If that Noel Go Caoili is present in the courtroom, can you identify him?

A Yes, sir.

Court

Q What is your relationship with Noel Caoili?

A My father.

xxxx

Pros. Silvosa

Q [AAA], you said that your father touched your vagina and inserted his,
the 4th finger of his left hand, for how many minutes, if you could still
recall, when he inserted... I withdraw the question, your Honor... What
specifically did he do with his 4th finger in your vagina?
A He inserted it in my vagina, sir.

Q While the finger was already inside your vagina, what did he do with his
finger?

A He inserted it and pulled it, he inserted and pulled it inside my vagina.

Q Can you still recall or how many or for how long did he made [sic] the
push and pull movement of his fingers inside you vagina?

A Thirty 30 minutes, sir.

Q Now, what did you feel while the finger of your father was inserted in
your vagina?

A Pain, sir.68 (Emphasis ours)

AAA likewise confirmed on cross examination69 that Caoili molested her. She
even recounted that her father threatened her not to tell anybody about the
incident.

Caoili's acts are clearly covered by the definitions of "sexual abuse" and
"lascivious conduct" under Section 2 of the rules and regulations70 of R.A.
No. 7610:

(g) "Sexual abuse" includes the employment, use, persuasion, inducement,

enticement orcoercion of a child to engage in, or assist another person to
engage in, sexual intercourse orlascivious conduct or the molestation,
prostitution, or incest with children;

(h) "Lascivious conduct" means the intentional touching, either directly or

through clothing, of the genitalia, anus, groin,breast, inner thigh, or
buttocks, or the introduction of any object into the genitalia, anus or mouth,
of any person, whether of the same or opposite sex, with an intent toabuse,
humiliate, harass, degrade, or arouse or gratify the sexual desire of any
person, bestiality, masturbation, lascivious exhibition of the genitals or
pubic area of a person. (Emphasis ours)
It has been settled that Section 5(b) of R.A. No. 7610 does not require a
prior or contemporaneous abuse that is different from what is complained of,
or that a third person should act in concert with the accused.71

The victim's minority

AAA was a child below 18 years old at the time the lascivious conduct was
committed against her. Her minority was both sufficiently alleged in the
Information and proved.

Influence and coercion

"Influence" is the improper use of power or trust in any way that deprives a
person of free will and substitutes another's objective. On the other hand,
"coercion" is the improper use of power to compel another to submit to the
wishes of one who wields it.72

In People v. Leonardo,73 the Court ruled that:

Section 5 of R.A. No. 7610 does not merely cover a situation of a child being
abused for profit, but also one in which a child is coerced to engage in
lascivious conduct. To repeat, intimidation need not necessarily be
irresistible. It is sufficient that some compulsion equivalent to intimidation
annuls or subdues the free exercise of the will of the offended party. This is
especially true in the case of young, innocent and immature girls who could
not be expected to act with equanimity of disposition and with nerves of
steel. Young girls cannot be expected to act like adults under the same
circumstances or to have the courage and intelligence to disregard the
threat.74

It cannot be denied that AAA, who is only a little over 14 years old at the
time the offense was committed, was vulnerable and would have been easily
intimidated by an attacker who is not only a grown man but is also someone
exercising parental authority over her. Even absent such coercion or
intimidation, Caoili can still be convicted of lascivious conduct under Section
5(b) of R.A. No. 7610 as he evidently used his moral influence and
ascendancy as a father in perpetrating his lascivious acts against AAA. It is
doctrinal that moral influence or ascendancy takes the place of violence and
intimidation.75
It bears emphasis, too, that consent is immaterial in cases involving
violation of Section 5 of R.A. No. 7610.76 The mere act of having sexual
intercourse or committing lascivious conduct with a child who is exploited in
prostitution or subjected to sexual abuse constitutes the offense because it
is a malum prohibitum, an evil that is proscribed.77

Clearly, therefore, all the essential elements of lascivious conduct under

Section 5(b) of R.A. No. 7610 have been proved, making Caoili liable for said
offense.

Variance doctrine applied

Caoili had been charged with rape through sexual intercourse in violation of
Article 266-A of the RPC and R.A. No. 7610. Applying the variance doctrine
under Section 4, in relation to Section 5 of Rule 120 of the Revised Rules of
Criminal Procedure, Caoili can be held guilty of the lesser crime of acts of
lasciviousness performed on a child, i.e., lascivious conduct under Section
5(b) of R.A. No. 7610, which was the offense proved, because it is included
in rape, the offense charged.78 This echoes the Court's pronouncement
in Leonardo, viz.:

This Court holds that the lower courts properly convicted the appellant in
Criminal Case Nos. 546-V-02, 547-V-02, 548-V-02, 554-V- 02 and 555-V-02
for five counts of sexual abuse under Section 5(b), Article III of Republic Act
No. 7610 even though the charges against him in the aforesaid criminal
cases were for rape in relation to Republic Act No. 7610. The lower court['s]
ruling is in conformity with the variance doctrine embodied in Section 4, in
relation to Section 5, Rule 120 of the Revised Rules of Criminal Procedure, x

With the aforesaid provisions, the appellant can be held guilty of a

lesser crime of acts of lasciviousness performed on a child, i.e.,
sexual abuse under Section 5(b), Article III of Republic Act No.
7610, which was the offense proved because it is included in rape,
the offense charged.79 (Emphasis ours)

The due recognition of the constitutional right of an accused to be informed

of the nature and cause of the accusation through the criminal complaint or
information is decisive of whether his prosecution for a crime stands or not.
80 Nonetheless, the right is not transgressed if the information sufficiently
alleges facts and omissions constituting an offense that includes the offense
established to have been committed by the accused,81 which, in this case, is
lascivious conduct under Section 5(b) of R.A. No. 7610.

Guidelines: Nomenclature of crime and penalties for lascivious

conduct under Section 5(b) of R.A. No. 7610

The Court is aware of its previous pronouncements where, applying the

variance doctrine, it convicted the accused, charged with the rape of a minor,
for the offense designated not as "Lascivious Conduct under Section 5(b) of
R.A. No. 7610" but as "Acts of Lasciviousness under Article 336 of the RPC in
relation to Section 5(b) of R.A. No. 7610."

Thus, in People v. Bon,82 the accused was charged with having carnal
knowledge of a six-year-old child against her will and with the use of force
and intimidation. The trial court convicted the accused of rape. The
evidence, however, merely showed that accused inserted his finger into the
victim's vaginal orifice. Applying the variance doctrine, the Court en
banc held that the accused could still be made liable for acts of
lasciviousness under the RPC because said crime is included in rape. The
accused was convicted of Acts of Lasciviousness under Article 336 of the RPC
in relation to Section 5(b) of R.A. No. 7610, since all the elements of the
said offense were established.

Likewise, in Navarrete v. People,83 the accused was charged with statutory

rape for having sexual intercourse with a five-year-old girl. Absent clear and
positive proof of the entry of accused's penis into the labia of the victim's
vagina, the trial court convicted the accused of the crime of Acts of
Lasciviousness under Article 336 of the RPC in relation to Section 5(b) of
R.A. No. 7610. The CA and this Court affirmed the conviction. In the case
of Bon,84 the Court held that the crime of acts of lasciviousness is included in
rape. The Court likewise found that the victim's testimony established that
accused committed acts of lewdness which amounted to lascivious conduct
under R.A. No. 7610.

So also, in People v. Rellota,85 the Court modified the accused's conviction

for attempted rape86 of a 12-year-old minor to a conviction for Acts of
Lasciviousness as defined in the RPC in relation to Section 5 of R.A. No.
7610, holding that the accused's acts, while lascivious, did not exactly
demonstrate an intent to have carnal knowledge with the victim. The Court
applied the variance doctrine and reiterated that the crime of acts of
lasciviousness is included in rape. The conviction was based on the Court's
finding that the elements of acts of lasciviousness under Article 336 of the
RPC and of lascivious conduct as defined in the rules and regulations of R.A.
No. 7610 have been established.

Based on the language of Section 5(b) of R.A. No. 7610, however, the
offense designated as Acts of Lasciviousness under Article 336 of the RPC in
relation to Section 5 of R.A. No. 7610 should be used when the victim is
under 12 years of age at the time the offense was committed. This finds
support in the first proviso in Section 5(b) of R.A. No. 7610 which requires
that "when the victim is under twelve (12) years of age, the perpetrators
shall be prosecuted under Article 335, paragraph 3, for rape and Article 336
of Act No. 3815, as amended, the Revised Penal Code, for rape or lascivious
conduct, as the case may be." Thus, pursuant to this proviso, it has been
held that before an accused can be convicted of child abuse through
lascivious conduct on a minor below 12 years of age, the requisites for act of
lasciviousness under Article 336 of the RPC must be met in addition to the
requisites for sexual abuse under Section 5 of R.A. No. 7610.87

Conversely, when the victim, at the time the offense was committed, is aged
twelve (12) years or over but under eighteen (18), or is eighteen (18) or
older but unable to fully take care of herself/himself or protect himself/
herself from abuse, neglect, cruelty, exploitation or discrimination because of
a physical or mental disability or condition,88 the nomenclature of the
offense should be Lascivious Conduct under Section 5(b) of R.A. No. 7610,
since the law no longer refers to Article 336 of the RPC, and the perpetrator
is prosecuted solely under R.A. No. 7610.

In the case at bar, AAA was a little over 14 years old when the lascivious
conduct was committed against her. Thus, We used the nomenclature
"Lascivious Conduct" under Section 5(b) of R.A. No. 7610.

Accordingly, for the guidance of public prosecutors and the courts, the Court
takes this opportunity to prescribe the following guidelines in designating or
charging the proper offense in case lascivious conduct is committed under
Section 5(b) of R.A. No. 7610, and in determining the imposable penalty:

1. The age of the victim is taken into consideration in designating or

charging the offense, and in determining the imposable penalty.

2. If the victim is under twelve (12) years of age, the nomenclature of the
crime should be "Acts of Lasciviousness under Article 336 of the Revised
Penal Code in relation to Section 5(b) of R.A. No. 7610." Pursuant to the
second proviso in Section 5(b) of R.A. No. 7610, the imposable penalty
is reclusion temporal in its medium period.

3. If the victim is exactly twelve (12) years of age, or more than twelve (12)
but below eighteen (18) years of age, or is eighteen (18) years old or older
but is unable to fully take care of herself/himself or protect herself/himself
from abuse, neglect, cruelty, exploitation or discrimination because of a
physical or mental disability or condition, the crime should be designated as
"Lascivious Conduct under Section 5(b) of R.A. No. 7610," and the
imposable penalty is reclusion temporal in its medium period to reclusion
perpetua.89

The CA's order to remand the case to the trial court is procedurally
infirm.

The CA erred in remanding the case to the trial court for the purpose of filing
the proper Information on the basis of the last paragraph of Section 14, Rule
110 and Section 19, Rule 119 of the Rules of Court, which read:

Sec. 14. Amendment or substitution. — x x x

xxxx

If it appears at any time before judgment that a mistake has been made in
charging the proper offense, the court shall dismiss the original complaint or
information upon the filing of a new one charging the proper offense in
accordance with section 19, Rule 119, provided the accused shall not be
placed in double jeopardy. The court may require the witnesses to give bail
for their appearance at the trial.
Sec. 19. When mistake has been made in charging the proper offense. —
When it becomes manifest at any time before judgment that a mistake has
been made in charging the proper offense and the accused cannot be
convicted of the offense charged or any other offense necessarily included
therein, the accused shall not be discharged if there appears good cause to
detain him. In such case, the court shall commit the accused to answer for
the proper offense and dismiss the original case upon the filing of the proper
information. (Emphasis ours)

It is clear that the rules are applicable only before judgment has been
rendered. In this case, the trial has been concluded. The RTC already
returned a guilty verdict, which has been reviewed by the CA whose
decision, in turn, has been elevated to this Court.

The CA's judgment did not amount to an acquittal.

Contrary to Caoili's stance, the CA's decision did not amount to a judgment
of acquittal. It is true the CA declared that given the substantial distinctions
between rape through sexual intercourse, as charged, and rape by sexual
assault, which was proved, "no valid conviction can be had without running
afoul of the accused's Constitutional right to be informed of the charge." This
statement, however, must be read alongside the immediately succeeding
directive of the appellate court, remanding the case to the RTC for further
proceedings pursuant to Section 14, Rule 110 and Section 19, Rule 119 of
the Rules of Court. Said directive clearly shows that the CA still had cause to
detain Caoili and did not discharge him; in fact, the CA would have Caoili
answer for the proper Information which it directed the prosecution to file.
These are not consistent with the concept of acquittal which denotes a
discharge, a formal certification of innocence, a release or an absolution.
90 While the procedure adopted by the CA is certainly incorrect, its decision

cannot be deemed to have the effect of an acquittal.

Penalty and Damages

Considering that AAA was over 12 but under 18 years of age at the time of
the commission of the lascivious act, the imposable penalty is reclusion
temporal in its medium period to reclusion perpetua.
Since the crime was committed by the father of the offended party, the
alternative circumstance of relationship should be appreciated.91 In crimes
against chastity, such as acts of lasciviousness, relationship is always
aggravating.92 With the presence of this aggravating circumstance and no
mitigating circumstance, the penalty shall be applied in its maximum
period, i.e., reclusion perpetua,93 without eligibility of parole.94 This is in
consonance with Section 31(c)95 of R.A. No. 7610 which expressly provides
that the penalty shall be imposed in its maximum period when the
perpetrator is, inter alia, the parent of the victim.

Likewise, Section 31(f)96 of R.A. No. 7610 imposes a fine upon the
perpetrator, which jurisprudence pegs in the amount of Php 15,000.97

Parenthetically, considering the gravity and seriousness of the offense, taken

together with the evidence presented against Caoili, this Court finds it
proper to award damages.

In light of recent jurisprudential rules, when the circumstances surrounding

the crime call for the imposition of reclusion perpetua, the victim is entitled
to civil indemnity, moral damages and exemplary damages each in the
amount of Php 75,000.00, regardless of the number of qualifying
aggravating circumstances present.98

The fine, civil indemnity and all damages thus imposed shall be subject to
interest at the rate of six percent (6%) per annum from the date of finality
of this judgment until fully paid.99

WHEREFORE, both petitions are DENIED. The Court of Appeals' July 22,
2010 Decision and March 29, 2011 Resolution are SET ASIDE. Accused Noel
Go Caoili alias Boy Tagalog is guilty of Lascivious Conduct under Section 5(b)
of Republic Act No. 7610. He is sentenced to suffer the penalty of reclusion
perpetua, without eligibility of parole, and to pay a fine of Php 15,000.00. He
is further ordered to pay the victim, AAA, civil indemnity, moral damages
and exemplary damages each in the amount of Php 75,000.00. The fine, civil
indemnity and damages so imposed are subject to interest at the rate of six
percent (6%) per annum from the date of finality of this Decision until fully
paid.

SO ORDERED.