Mediation not applicable to domestic violence cases, with apologies to Pia Guanio

Update: Supreme Court rules that RA 9262 cases cannot be mediated The non-referral of a VAWC (violence against women and children) case to a mediator is justified. 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. Garcia vs. Drilon, G.R. No. 179267, June 25, 2013

Several days ago, I was watching Channel 7’s “24 Oras” early evening news program when Pia Guanio, the entertainment segment host, reported an item about Hollywood actor Lou Diamond Phillips. As reported, Phillips was arrested by Los Angeles police for verbally and physically abusing his live-in girlfriend. Phillips, who’s got Filipino ancestry, was released by the police several hours later on his own recognizance.

What got my attention was Pia’s last statement in her news report. I stand to be corrected but I heard Pia say, “Pansamantalang pinakawalan si Phillips upang masubukan niya at ng kanyang ka-live in ang meditation.” In English, that translates into, “Phillips was released by the police so that he and his live-in partner can try meditation.”

Either Pia Guanio (a beautiful and smart woman desperately in need of a fashion make-over) misread the teleprompter, or the news editors of Channel 7 were really at fault. You see, the word Pia should have used instead of MEDITATION was MEDIATION. For a brief moment, I had visions of Lou Diamond Phillips and his live-in partner doing some Transcendental Meditation in order to solve their relationship problems. Om! Om! Sorry, Pia!

Levity aside, I have written several articles on RA 9262, our country’s landmark law on violence against women. If you’d like to review these articles, here are the links:

Hope and help for the battered woman (2): RA 9262 essential provisions
Hope and help for the battered woman (3): RA 9262 Protection Orders
Hope and help for the battered woman (4): Emotional abuse / psychological violence
Hope and help for the battered woman (5): Biblical response to abuse; evangelical Christians are best husbands – University of Virginia study
The “Battered Woman Syndrome” as defense

What is mediation?

Mediation is a method of “Alternative Dispute Resolution” and under the Supreme Court guidelines, it is mandatory for all civil cases and some criminal offenses (like BP 22 or bouncing checks). The court orders the litigants to undergo mediation proceedings before a Supreme Court-trained mediator, for a period of 30 days. Mediation is informal and the mediator tries to get the parties to settle the case amicably, on a win-win scenario for all the parties involved. If the mediation fails, then the case is referred back to court for continuation of trial. But experience has shown that mediation works well with a high percentage of cases amicably settled.

Labor dispute cases in the National Labor Relations Commission (NLRC) now also undergo mandatory conciliation/mediation proceedings. Of course, most of you are familiar with the mediation proceedings at the barangay level, as provided for by the Local Government Code of 1991.

RA 9262 cases expressly exempted from mediation (by barangay officials, police officers, social workers, and judges)

It appears from Pia’s report and the Internet resources I checked that California and some other places in the USA allow mediation proceedings even in domestic violence cases. But, here in the Philippines, RA 9262, its Implementing Rules and Regulations and the Supreme Court Rule for RA 9262, all prohibit mediation of cases involving violence against women. You might ask, if mediation has been proven to work well, then why is it prohibited in RA 9262 cases?

The Supreme Court, quoting the Commentary on Section 311 of the Model Code on Domestic and Family Violence, gives us the reason why:

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.

Alison E. Gerencser, in an article entitled “Family Mediation: Screening for Domestic Abuse” (Florida State University Law Review), argues forcefully that domestic violence cases should be exempted from mediation proceedings. While written in the context of American society and a bit dated since it was written in 1995, it is a very informative article. Among other things, Gerencser cites studies that show women have only suffered more abuse after mediation sessions than after trials.

Anyway, here are the specific provisions that prohibit mediation or conciliation of domestic violence cases:

RA 9262

Sec. 33. Prohibited Acts. – A Punong Barangay, Barangay Kagawad or the court hearing an application for a protection order shall not order, direct, force or in any way unduly influence he applicant for a protection order to compromise or abandon any of the reliefs sought in the application for protection under this Act. Section 7 of the Family Courts Act of 1997 and Sections 410, 411, 412 and 413 of the Local Government Code of 1991 shall not apply in proceedings where relief is sought under this Act.

Failure to comply with this Section shall render the official or judge administratively liable.

Implementing Rules and Regulations of RA 9262

Section 27. Prohibited Acts – A Punong Barangay, Barangay Kagawad, or the court hearing an application for a protection order shall not order, direct, force or in any way unduly influence the applicant to compromise or abandon any of the reliefs sought in the application for protection order under the Act. Section 7 of the Family Courts Act of 1997 and Sections 410, 411, 412 and 413 of the Local Government Code of 1991 shall not apply in proceedings where relief is sought under the Act.

Failure to comply with this Section shall render the official or judge administratively liable.

Law enforcers and other government personnel shall not mediate or conciliate or influence the victim-survivor or applicant for a protection order to compromise or abandon the relief sought.

Section 47, paragraph (o): Shall not attempt to influence the victim-survivor to abandon her claims. All forms of amicable settlement under the Katarungang Pambarangay such as mediation, settlement, conciliation, arbitration shall not apply to cases of VAWC in the Act xxx

Supreme Court Rule

Sec. 23. Preliminary conference.—
(a) When conducted.—A preliminary conference, which is mandatory, shall be held on the date indicated in the notice.
(b) Notice.—The notice shall be served the parties, including the offended party, who shall be required to notify their respective counsels, if any. The parties shall appear in person at the preliminary conference and submit their position papers setting forth the law and the facts relied upon by them.
(c) Nature and purpose.—The court shall consider:
(1) The propriety of issuing a protection order. The court shall not deny the issuance of a protection order due to the lapse of time between the act of violence and the filing of the petition, subject to Section 24, R.A. No. 9262. The issuance of a barangay protection order or the pendency of an application for a barangay protection order shall not preclude a petitioner from applying for, or the court from granting, a protection order;
(2) The simplification of the issues; and
(3) Such other matters as may aid in the prompt disposition of the petition.

The court shall not refer the case or any issue thereof to a mediator.

Perhaps, as judges, lawyers, social workers, police officers and religious ministers gain more knowledge and experience in handling domestic violence cases, at some stage of the proceedings, some form of mediation or conciliation could possibly be availed of to end the violence, mend the marriage and bring unity back to the family. Let’s all MEDITATE on that.

The Amy Perez case: Psychological incapacity as a ground for declaring a marriage null and void

Summary: 1. The Supreme Court denied actress Amy Perez’s petition to have her marriage to musician Brix Ferraris declared void on the basis of psychological incapacity. 2. Amy’s expert witness, a psychologist, failed to prove that Brix was suffering from a psychological incapacity that rendered him unable to fulfill the essential marital obligations. 3. “The term ‘psychological incapacity’ as used in Article 36 of the Family Code refers to a serious psychological illness afflicting a party even before the celebration of the marriage. It is a malady so grave and so permanent as to deprive a person of awareness of the duties and responsibilities of the matrimonial bond one is about to assume.” 4. “A mere showing of irreconcilable differences and conflicting personalities in no wise constitute psychological incapacity; it is not enough to prove that the parties failed to meet their responsibilities and duties as married persons; it is essential that they must be shown to be incapable of doing so due to some psychological, not physical, illness.” 5. “Habitual alcoholism, sexual infidelity or perversion, and abandonment do not by themselves constitute grounds for declaring a marriage void based on psychological incapacity.”

More than a week ago, our early evening news cum entertainment shows on Channels 2 and 7 reported that the Supreme Court in its July 17, 2006 Resolution turned down with finality actress Amy Perez’s petition to have her marriage to musician Brix Ferraris declared void on the basis of psychological incapacity.

Reasons why the Supreme Court turned down Amy’s petition

1. The Supreme Court found Brix’s alleged mixed personality disorder, the "leaving-the-house" attitude whenever he and Amy quarreled, the violent tendencies during epileptic attacks, the sexual infidelity, the abandonment and lack of support, and his preference to spend more time with his band mates than his family, are not rooted on some debilitating psychological condition but a mere refusal or unwillingness to assume the essential obligations of marriage.

2. While Amy’s marriage with Brix failed and appears to be without hope of reconciliation, the remedy however is not always to have it declared void ab initio on the ground of psychological incapacity. An unsatisfactory marriage, however, is not a null and void marriage. No less than the Constitution recognizes the sanctity of marriage and the unity of the family; it decrees marriage as legally “inviolable” and protects it from dissolution at the whim of the parties. Both the family and marriage are to be “protected” by the State.

If other movie stars had their marriage successfully declared void, what happened in Amy’s petition?

Pops Fernandez and Martin Nievera, Aiko Melendez and Jomari Yllana, Benjie Paras and Jackie Forster (?), Alma Moreno and Joey Marquez … these are just some of our entertainment personalities who had their marriages successfully declared void on the basis of “psychological incapacity” as provided for by Article 36 of our Family Code. So what happened to their fellow entertainer Amy Perez’s petition?

1. Difference between “annulment” and “declaration of nullity”

The term “annulment” refers to voidable marriages while “declaration of nullity” refers to marriages that are void. When Article 36 (psychological incapacity) is used as the ground, the proper term is “declaration of nullity” and not “annulment.”

2. The long road that Amy’s petition went through

You can read the complete decision of Amy Perez’s case in the Supreme Court website. By way of review, however, let’s look at the long road Amy’s case went through before it finally reached the Supreme Court.

(1) According to the Court of Appeals narration of facts, Amy and Brix’s relationship before the marriage and even during their brief union (for well about a year or so) was not all bad. During that relatively short period of time, Amy was happy and contented with her life in the company of her husband. In fact, by Amy’s own reckoning, Brix was a responsible and loving husband. Then problems began when Amy started doubting Brix’s fidelity. It was only when they started fighting about the calls from women that Brix began to withdraw into his shell and corner, and failed to perform his so-called marital obligations. Brix could not understand Amy’s lack of trust in him and her constant naggings. He thought her suspicions irrational. Brix could not relate to her anger, temper and jealousy. Amy then filed a petition to have her marriage declared null and void on the basis of Brix’s psychological incapacity.

(2) Sometime in February 2001, the Pasig City Regional Trial Court Branch 151, with presiding Judge Franchito N. Diamante, denied Amy’s petition on the ground that “suffering from epilepsy did not amount to psychological incapacity under Article 36 of the Family Code and that the evidence on record were insufficient to prove infidelity.”

(3) The Pasig RTC denied Amy’s motion for reconsideration on or about April 2001.

(4) Amy filed an appeal with the Court of Appeals which eventually confirmed in whole the judgment of the Pasig City RTC.

(5) The Court of Appeals later on also denied Amy’s motion for reconsideration.

(6) Amy filed a Petition for Review of the CA’s decision with the Supreme Court, which on June 2004 denied the petition.

(7) The Supreme Court in its Resolution dated July 17, 2006 denied with finality Amy’s petition.

3.Amy’s psychologist failed to prove psychological incapacity

The adverse decisions of the Pasig City RTC and the Court of Appeals relied heavily on the failure of Amy’s expert witness (a psychologist) to establish that Brix Ferraris was suffering from a psychological incapacity that rendered him unable to fulfill the essential marital obligations.

The Supreme Court promulgated in March 2003 the new implementing guidelines for declaring a marriage null and void. The said guidelines no longer require the submission of a psychological report as part of the petition to be filed with the trial court. It depends upon the discretion of the Family Court judge as to whether a psychological report still has to be submitted. Lawyers, however, wanting to make sure the petition will be granted, are still asking their clients to submit to psychological evaluation and are submitting the report as part of their evidence.

The Supreme Court ruling in Amy’s petition

Enumerated below (without the citations, with some long sections broken down into several paragraphs for easier reading, and boldfacing for emphasis supplied) are the pertinent portions of the Supreme Court’s Resolution discussing what psychological incapacity is and is not.

1. The term “psychological incapacity” under Article 36 of the Family Code refers to a serious psychological illness afflicting a party even before the celebration of the marriage. It is a malady so grave and so permanent as to deprive one of awareness of the duties and responsibilities of the matrimonial bond one is about to assume.
As all people may have certain quirks and idiosyncrasies, or isolated characteristics associated with certain personality disorders, there is hardly any doubt that the intendment of the law has been to confine the meaning of “psychological incapacity” to the most serious cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage. It is for this reason that the Court relies heavily on psychological experts for its understanding of the human personality. However, the root cause must be identified as a psychological illness and its incapacitating nature must be fully explained which petitioner failed to convincingly demonstrate.

2. The Court found Brix’s alleged mixed personality disorder, the "leaving-the-house" attitude whenever he and Amy quarreled, the violent tendencies during epileptic attacks, the sexual infidelity, the abandonment and lack of support, and his preference to spend more time with his band mates than his family, are not rooted on some debilitating psychological condition but a mere refusal or unwillingness to assume the essential obligations of marriage.

3. In Republic v. Court of Appeals, where the respondent preferred to spend more time with his friends than his family on whom he squandered his money, depended on his parents for aid and assistance, and was dishonest to his wife regarding his finances, the Court held that the “psychological defects” spoken of were more of a “difficulty,” if not outright “refusal” or “neglect” in the performance of some marital obligations.

A mere showing of irreconcilable differences and conflicting personalities in no wise constitute psychological incapacity; it is not enough to prove that the parties failed to meet their responsibilities and duties as married persons; it is essential that they must be shown to be incapable of doing so due to some psychological, not physical, illness.

4. The Court held in Hernandez v. Court of Appeals that habitual alcoholism, sexual infidelity or perversion, and abandonment do not by themselves constitute grounds for declaring a marriage void based on psychological incapacity.

5, While Amy’s marriage with Brix failed and appears to be without hope of reconciliation, the remedy however is not always to have it declared void ab initio on the ground of psychological incapacity. An unsatisfactory marriage, however, is not a null and void marriage. No less than the Constitution recognizes the sanctity of marriage and the unity of the family; it decrees marriage as legally “inviolable” and protects it from dissolution at the whim of the parties. Both the family and marriage are to be “protected” by the State.

6. In determining the import of “psychological incapacity” under Article 36, it must be read in conjunction with, although to be taken as distinct from Articles 35 (marriages void from the beginning), 37 (incestuous marriages), 38 (marriages void due to public policy) and 41 (declaration of presumptive death), which for different reasons render the marriage void ab initio.

Article 36 must also be read in conjunction with but taken as distinct from Articles 45 (voidable marriages) and 55 (grounds for legal separation).

Care must be observed so that these various circumstances are not applied so indiscriminately as if the law were indifferent on the matter. Article 36 should not be confused with a divorce law that cuts a matrimonial bond at the time the causes therefore manifest themselves. Neither it is to be equated with legal separation, in which the grounds need not be rooted in psychological incapacity but on physical violence, moral pressure, moral corruption, civil interdiction, drug addiction, habitual alcoholism, sexual infidelity, abandonment and the like.

What happens now to Amy Perez and Brix Ferraris?

Since the Court has declared Brix Ferraris is not suffering from any psychological incapacity in fulfilling his essential marital obligations, Amy and Brix remain married to each other, despite presumably the total absence of love and affection between them. The facts and the conclusions of the Court have become what lawyers call "res judicata" between Amy and Brix. It is highly doubtful therefore that Amy or Brix himself could avail of the new relaxed rule on annulment of marriages promulgated by the Supreme Court in March 2003 in re-filing the case.

Again, as I have noted above, under the new Rule, the submission of a psychological report is no longer mandatory but is discretionary with the Family Court judge. However, lawyers are still asking petitioners to submit to psychological evaluation and are submitting the report as part of their evidence.

The Estrada vs. Escritor case: Did the Supreme Court legitimize live-in relationships?

Two weeks ago, various newspapers reported the Supreme Court’s 9-5 decision in the Estrada vs. Escritor case, a landmark decision involving the Constitutional freedom of religion. The Court (even in its in interim resolution last August 2003) ruled that Escritor, a court interpreter at the Las Pińas Regional Trial Court Branch 253, could not be dismissed from the government service for “disgraceful and immoral conduct” on the basis of a valid exercise of her freedom of religion.

Admittedly, Escritor was living in with Luciano Quilapio Jr (also married to another person) without the benefit of marriage. But her church (the Jehovah’s Witnesses) had recognized her relationship and allowed them to have marital relations, since her legal husband had abandoned her. In a JW church document known as “Declaration of Pledging Faithfulness” entered into by Escritor and Quilapio, they bound themselves to have their union legally recognized should the opportunity arise.

Moreover, as investigation by the Office of the Court Administrator showed, such a practice of the JW had extensive theological underpinnings and was a long time, widely held practice. It was not simply a device or scheme that Escritor resorted to in order to evade administrative liability.

The JW, in the defense of its doctrines and practices, has had a long history of butting heads with the State. In 1956, for example, the Supreme Court ruled against the JW in the Gerona case, where JW members enrolled in public schools were not granted exemption from attending flag ceremonies and singing the national anthem. Yet the JW persisted in challenging this ruling. Finally, after 39 long years, in 1995, the Supreme Court in the case of Ebralinag vs. Division Superintendent of Cebu, recognized the right of the JW members not to participate in the flag ceremonies and in the singing of the national anthem.

Please also take note that being a Baptist, I do not subscribe to the JW teachings and practices; I hope only to clarify what the Supreme Court’s ruling is in the Escritor case.

Flawed understanding of the Escritor ruling in media reports

The problem is, some newspaper reporters and editors have misunderstood the SC ruling. For example, one headline in a business newspaper stated, “SC ruling favors live-in setup if church-blessed.” The lead went on to say, “The Supreme Court virtually gave its blessing to living-in couples when it issued a landmark decision declaring that they cannot be punished for having such an arrangement if it does not clash with their religious beliefs.”

"Repercussions" of the Supreme Court ruling

Some people I have talked to (and who have read the skewed news reports) are disgusted with the SC ruling, saying that it’s another assault on the institution of marriage, encouraging people to simply live in without the benefit of marriage, in the name of religious freedom. (In a previous post, I mentioned a DSWD finding that 40% of couples in the CALABARZON area are merely living in.) They say that now, various religious groups will come up with doctrines, documents and practices similar to the JW’s “Declaration of Pledging Faithfulness” in order to accommodate their own members. One pastor (from the Visayas region) I talked to last year, mentioned the difficulty of one couple in his church. They are new converts, living in together as husband and wife, but could not have their previous marriages annulled because of the prohibitive legal expenses. The pastor mentioned that he has been thinking of just conducting an “ecclesiastical marriage” so that this couple and the church could say that in the eyes of God, they are husband and wife, even though legally, they are married to other persons.

Justice Consuelo Ynares-Santiago, who voted against the majority ruling, states in her dissenting opinion (see below) the possible repercussion that each church or religion could become a republic unto itself.

Setting the record straight on the Escritor ruling

The legal expert on GMA-7’s early morning show “Unang Hirit” about a week ago has explained quite clearly what this SC decision is all about. (My congratulations to her for such a clear explanation despite the very limited time allotted to her. I was riding on a G-Liner bus equipped with a TV set, on my way from Pasig/Ortigas to the NLRC in Quezon City when her portion came on. Atty. Roldan, I think her name is, used to do the late night news for RPN-9, if I'm not mistaken.) She clarified that:

1. As a general rule, people in live-in relationships and whose marriages to other parties have not been annulled or declared null and void, can and will be held criminally liable for adultery, concubinage, marital infidelity, etc. under the Revised Penal Code and other special laws like RA 9262.

2. If these people in live-in relationships are in the government service, then they can be charged administratively under the Administrative Code of 1987.

3. The Escritor doctrine established not a general rule but an exception to the general rule on the basis of a valid exercise of the Constitutional freedom of religion. As the Supreme Court clarified, “It does not mean that the Court would grant exemptions everytime a free exercise of religion comes before it.”

Restricted application of the Supreme Court’s ruling

As the Supreme Court in the dispositive (concluding) portion of its June 2006 decision stated,

Thus, we find that in this particular case and under these distinct circumstances, respondent Escritor’s conjugal arrangement cannot be penalized as she has made out a case for exemption from the law based on her fundamental right to freedom of religion. The Court recognizes that state interests must be upheld in order that freedoms - including religious freedom - may be enjoyed. In the area of religious exercise as a preferred freedom, however, man stands accountable to an authority higher than the state, and so the state interest sought to be upheld must be so compelling that its violation will erode the very fabric of the state that will also protect the freedom. In the absence of a showing that such state interest exists, man must be allowed to subscribe to the Infinite. (emphasis by boldfacing supplied)

A word of caution to other live-in couples and to other religions

Thus, any pastor, church or members of a religious sect who might draw some unfounded conclusions and consequently act according to the way some media outlets have reported the Escritor case, should be forewarned. Any pastor who obtains a license from the State to solemnize marriages is bound by the laws of the Philippines. If he solemnizes a marriage without observing the legal requirements, he could be charged criminally with violation of the Revised Penal Code in performing an illegal marriage. If he claims freedom of religion and the Escritor ruling as his defense, he’d better make sure that his case has similar antecedents (background) as that of the Escritor case. As lawyers are fond of saying, his case must be “on all fours” with the Escritor case.

I strongly recommend that pastors, Bible students and church members read the complete text of the Supreme Court’s interim decision in August 2003 and its final decision released this June 2006. The decision is a difficult read even for law students but the time and effort are well worth it.

But from my own perspective, and without going into the merits or the intricacies of the Escritor ruling, I would always be in favor of the “least interference” or “no excessive entanglement with religion” by the State. This is the so-called “Lemon Test” in American jurisprudence. In the Escritor case, the Supreme Court used the “compelling state interest” test from a benevolent neutrality stance. That is, the Court entertained the possibility that Escritor’s claim to religious freedom could warrant carving out an exception to the Civil Service law, unless the government succeed in demonstrating a more compelling state interest.

The “compelling state interest test from a benevolent neutrality stance”

In its 2003 interim decision, the Supreme Court explained how the “compelling state interest test from a benevolent neutrality stance” was to be applied:

In applying the test, the first inquiry is whether respondent’s right to religious freedom has been burdened. There is no doubt that choosing between keeping her employment and abandoning her religious belief and practice and family on the one hand, and giving up her employment and keeping her religious practice and family on the other hand, puts a burden on her free exercise of religion. xxx

The second step is to ascertain respondent’s sincerity in her religious belief. Respondent appears to be sincere in her religious belief and practice and is not merely using the “Declaration of Pledging Faithfulness” to avoid punishment for immorality. She did not secure the Declaration only after entering the judiciary where the moral standards are strict and defined, much less only after an administrative case for immorality was filed against her. The Declaration was issued to her by her congregation after ten years of living together with her partner, Quilapio, and ten years before she entered the judiciary. Ministers from her congregation testified on the authenticity of the Jehovah’s Witnesses’ practice of securing a Declaration and their doctrinal or scriptural basis for such a practice. As the ministers testified, the Declaration is not whimsically issued to avoid legal punishment for illicit conduct but to make the “union” of their members under respondent’s circumstances “honorable before God and men.” xxx Respondent’s request for exemption from the flag ceremony shows her sincerity in practicing the Jehovah’s Witnesses’ beliefs and not using them merely to escape punishment. She is a practicing member of the Jehovah’s Witnesses and the Jehovah ministers testified that she is a member in good standing.

In its 2003 decision, the Supreme Court remanded the case to the Office of the Court Administrator. The Solicitor General was ordered to intervene in the case and be given the opportunity (a) to examine the sincerity and centrality of Escritor’s claimed religious belief and practice; (b) to present evidence on the state’s “compelling interest” to override Escritor’s religious belief and practice; and (c) to show that the means the state adopts in pursuing its interest is the least restrictive to Escritor’s religious freedom.

Well, as things turned out from 2003, the OSG failed to prove, in the minds of the nine justices who voted in favor of the Escritor ruling, any compelling interest of the State that could have overridden Escritor’s exercise of her religion.

Dissenting opinions in the Escritor case; Muslims’ exemption from prosecution for bigamy

Supreme Court Justice Antonio Carpio, voting against the majority in the Escritor case, explained in his dissenting opinion that:

“The majority opinion will make every religion a separate republic, making religion a haven for criminal conduct that otherwise would be punishable under the law of the land. Today concubinage, tomorrow bigamy, will enjoy protection from criminal sanction under the new doctrine foisted by the majority opinion.”

Associate Justice Consuelo Ynares-Santiago, in her separate dissenting opinion, stated that Escritor should have been declared guilty of immorality and disgraceful conduct and subsequently suspended for six months without pay. Justice Santiago stated in her opinion,

“The Court cannot be the instrument by which one group of people is exempted from the effects of these laws just because they belong to a particular religion. Moreover, it is the sworn mandate of the Court to supervise the conduct of an employee of the judiciary, and it must do so with an even hand regardless of her religious affiliation.”

I have read the 2003 interim decision of the Supreme Court in the Escritor case and there it was mentioned that under Art. 180 of P.D. No. 1083, otherwise known as the Code of Muslim Personal Laws of the Philippines, Muslims have been expressly exempted from the operation of bigamy laws of the Philippines. This provision of law has never been challenged in terms of violation of the “establishment of religion clause” of the 1987 Constitution. In the light of the Escritor ruling however, if and when such a case is brought before the Supreme Court, my guess is that the said provision of law will be declared as constitutional.

Unless, in view of the vigorous dissent by the five justices who voted against the Escritor ruling (namely, Justices Carpio, Consuelo Ynares- Santiago, Romeo Callejo, Conchita Carpio Morales and Chief Justice Artemio Panganiban), the Ecritor ruling could later on be overturned. Is this possible? Well, from the introductory portion of the interim 2003 decision as quoted below, from Justice Puno’s ponencia, the issue of freedom of religion has had a long and convoluted history. Anything is possible.

Anyway, here’s the introductory part of Justice Puno’s compellingly-written ponencia in the 2003 interim decision in the Escritor case:

"The case at bar takes us to a most difficult area of constitutional law where man stands accountable to an authority higher than the state. To be held on balance are the state’s interest and the respondent’s religious freedom. In this highly sensitive area of law, the task of balancing between authority and liberty is most delicate because to the person invoking religious freedom, the consequences of the case are not only temporal. The task is not made easier by the American origin of our religion clauses and the wealth of U.S. jurisprudence on these clauses for in the United States, there is probably no more intensely controverted area of constitutional interpretation than the religion clauses. The U.S. Supreme Court itself has acknowledged that in this constitutional area, there is “considerable internal inconsistency in the opinions of the Court.” As stated by a professor of law, “(i)t is by now notorious that legal doctrines and judicial decisions in the area of religious freedom are in serious disarray. In perhaps no other area of constitutional law have confusion and inconsistency achieved such undisputed sovereignty.” Nevertheless, this thicket is the only path to take to conquer the mountain of a legal problem the case at bar presents. Both the penetrating and panoramic view this climb would provide will largely chart the course of religious freedom in Philippine jurisdiction. That the religious freedom question arose in an administrative case involving only one person does not alter the paramount importance of the question for the “constitution commands the positive protection by government of religious freedom - not only for a minority, however small - not only for a majority, however large - but for each of us.”

Liberty and authority; freedom and responsibility; law and grace … this reminds me of that famous chapter (“The Grand Inquisitor”) in Fyodor Dostoyevski’s novel “The Brothers Karamazov.” But that’s for another post …

Again, I strongly recommend that pastors, Bible students and church members read the complete text of the Supreme Court’s interim decision in August 2003 and its final June 2006 decision.

Hope and help for the battered woman (5): Biblical response to abuse; evangelical Christians are best husbands – University of Virginia study

How should individual Christians, pastors and churches respond to the issue of spousal abuse? For the answers to this vital question, please surf over to my Salt and Light blog.

I have also written several other articles about spousal abuse, domestic violence, etc. Please take time to read the following:

• Hope and help for the battered woman (2): RA 9262 essential provisions
• Hope and help for the battered woman (3): RA 9262 Protection Orders
• Hope and help for the battered woman (4): Emotional abuse / psychological violence
• The "Battered Woman Syndrome" as defense
• Mediation not applicable to domestic violence cases

Hope and help for the battered woman (4): Emotional abuse/psychological violence

RA 9262 penalizes psychological violence as defined in Section 3 thereof. For a discussion of what psychological violence or emotional abuse is all about, please surf over to my Salt and Light blog.


Note: I have also written several other articles about spousal abuse, domestic violence, etc. Please take time to read the following:

• Hope and help for the battered woman (2): RA 9262 essential provisions
• Hope and help for the battered woman (3): RA 9262 Protection Orders
• Hope and help for the battered woman (5): Biblical response to abuse; evangelical Christians are best husbands – University of Virginia study
• The “Battered Woman Syndrome” as defense
• Mediation not applicable to domestic violence cases

Hope and help for the battered woman (3): Protection Orders under RA 9262 "Anti-Violence Against Women and their Children Act of 2004"

Related posts: Hope and help for the battered woman (2): ntial provisions of RA 9262 Hope and help for the battered woman (4): Emotional abuse or psychological violence Hope and help for the battered woman (5): Biblical response to abuse; evangelical Christians are best husbands – University of Virginia study The “Battered Woman Syndrome” as defense Mediation not applicable to domestic violence cases Update: Supreme Court upholds Constitutionality of protection orders under  RA 9262 (Garcia vs. Drilon, G.R. No. 179267, June 25, 2013) The grant of a TPO (Temporary Protection Order) without a hearing does not violate the Constitutional right to due process. RA 9262 does not unduly delegate judicial power to barangay officials. The BPO (Barangay Protection Order) is purely executive in nature in keeping with the barangay captain’s duty under the Local Government Code to “enforce all laws and ordinances,” and to “maintain public order in the barangay.”

The provisions of RA 9262 on protection orders are discussed below in question and answer format.

What is a protection order?

Section 8 of RA 9262 defines “protection order” as an order issued for the purpose of preventing further acts of violence against a woman or her children specified in Section 5 and granting other necessary relief.

The provisions of the protection orders must be enforced by law enforcement agencies.

What are the different kinds of protection orders under RA 9262?

The three kinds of protection orders under RA 9262 are:

BPO (Barangay Protection Order);

TPO (Temporary Protection Order) issued by the court; and

PPO (Permanent Protection Order) issued by the court.

What court has jurisdiction over RA 9262 cases?

The Regional Trial Court designated as a Family Court has original and exclusive jurisdiction over cases of violence against women and their children.

In the absence of a Family Court in the place where the offense was committed, the case can be filed in the Regional Trial Court where the crime or any of its elements was committed, at the option of the complainant.

What are the purposes of a protection order?

The reliefs granted under a protection order are for:

1. safeguarding the victim from further harm,

2. minimizing any disruption in the victim’s daily life, and

3. providing the opportunity and ability of the victim to independently regain control over her life.

What are the reliefs or remedies under a protection order?

The protection orders that may be issued under Section 8 of RA 9262 include any, some, or all of the following reliefs:

[a] Prohibition of the respondent from threatening to commit or committing, personally or through another, any of the acts mentioned in Section 5 of this Act;

[b] Prohibition of the respondent from harassing, annoying, telephoning, 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 or protecting the petitioner, or permanently where no property rights are violated, and if respondents must remove personal effects from the residence, the court shall direct a law enforcement agent to accompany the respondent has gathered his things and escort respondent from the residence;

[d] Directing the respondent to stay away from petitioner and 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;

[e] Directing lawful possession and use by petitioner of an automobile and 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 temporary or permanent custody of a child or children to the petitioner;

[g] Directing the respondent to provide support to the woman or her 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 or withhold or any delay in the remittance of support to the woman or her children without justifiable cause will render the respondent or his employer liable for indirect contempt of court;

[h] Prohibition of the respondent from any use or possession of any firearm 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 fore 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 what the petitioner may need; and

k] Provision of such other forms of relief as the court deems necessary to 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.

Any of the reliefs provided above shall be granted even in the absence of a decree of legal separation or annulment or declaration of absolute nullity of marriage.

Is it only the woman-victim or her children who can ask for the issuance of a protection order?

No. Violence against women or their children is considered as a public offense under Section 25 of RA 9262. Section 9 of RA 9262 enumerates the persons, besides the woman or her children, who can file the petition for a protection order. These persons are:

• parents or guardians of the offended party;
• 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 government units (LGUs);
• police officers, preferably those in charge of women and children’s desks;
• Punong Barangay or Barangay Kagawad;
• lawyer, counselor, therapist or healthcare provider of the petitioner; or
• at least two concerned responsible citizens of the city or municipality where the violence against women and their children took place and who have personal knowledge of the offense committed.

What are the procedures in applying for a protection order?

Section 11 of RA 9262 provides the steps in applying for a protection order:

The application for a protection order must be in writing, signed and verified under oath by the applicant.

It may be filed as an independent action or as incidental relief in any civil or criminal case the subject matter or issues thereof partakes of violence as described in this Act.

A standard protection order application form, written in English with translation to the major local languages, is available to facilitate applications for protection order, and contains, among others, the following information:

[1] names and addresses of the petitioner and respondent

[2] description of relationships between petitioner and respondent;

[3] a statement of the circumstances of the abuse;description of the reliefs requested by petitioner as specified in Section 8 herein;

[4] request for counsel and reasons for such;

[5] request for waiver of application fees until hearing; and

[6] an attestation that there is no pending application for a protection order in another court.

If the applicant is not the victim, the application must be accompanied by an affidavit of the applicant certifying to (a) the circumstances of the abuse suffered by the victim and (b) the circumstances of consent given by the victim for the filing of the application. When disclosure of the address of the victim will pose danger to her life, it must be so stated in the application. In such a case, the applicant shall attest that the victim is residing in the municipality or city over which the court has territorial jurisdiction, and must provide a mailing address for purpose of service processing.

An application for protection order filed with a court is an application for both a TPO and PPO.

Barangay officials and court personnel must assist applicants in the preparation of the application. Law enforcement agents must also extend assistance in the application for protection orders in cases brought to their attention.

Does the TPO or PPO have valid effect only within the jurisdiction of the court that issued the order?

Section 12 of RA 9262 provides: “All TPOs and PPOs issued under this Act shall be enforceable anywhere in the Philippines and a violation thereof shall be punishable with a fine ranging from Five Thousand pesos (P5,000.00) to Fifty Thousand Pesos (P50,000.00) and/or imprisonment of six (6) months.”

What are the procedures in the issuance of a Barangay Protection Order?

Section 14 of RA 9262 provides for the following procedures:

A Punong Barangay who receives applications for a BPO must issue the protection order to the applicant on the date of filing after ex parte determination of the basis of the application.

[1] If the Punong Barangay is unavailable to act on the application for a BPO, the application must be acted upon by any available Barangay Kagawad.

[2] 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 a BPO.

[3] BPOs are effective for fifteen days.

[4] Immediately after the issuance of an ex parte BPO, the Punong Barangay or Barangay Kagawad must personally serve a copy of the same on the respondent, or direct any barangay official to effect its personal service.

[5] The parties may be accompanied by a non-lawyer advocate in any proceeding before the Punong Barangay.

The BPO is limited only to the following reliefs or remedies:

[a] Prohibition of the respondent from threatening to commit or committing, personally or through another, any of the acts mentioned in Section 5 of this Act;

[b] Prohibition of the respondent from harassing, annoying, telephoning, contacting or otherwise communicating with the petitioner, directly or indirectly.

If the barangay issued a BPO, will this prevent the woman-victim or her children from going to court and asking for a TPO or a PPO?

The issuance of a Barangay Protection Order or the pendency of an application for BPO does not prevent a petitioner from applying for, or the court from granting a TPO or PPO.

What is a Temporary Protection Order (TPO)?

Section 15 of RA 9262 defines a TPO as the protection order issued by the court on the date of filing of the application after ex parte determination that such order should be issued.

Ex parte determination means that the offender does not need to be notified of the hearing or to be present during the hearing for the issuance of a TPO.

What can the court provide for in a TPO?

A court may grant in a TPO any, some or all of all the reliefs mentioned in Section 8 of RA 9262. The TPO is effective for thirty days. The court must schedule a hearing on the issuance of a PPO on or before the date of the expiration of the TPO.

The court must order the immediate personal service of the TPO on the respondent by the court sheriff who may obtain the assistance of law enforcement agents for the service. The TPO must include notice of the date of the hearing on the merits of the issuance of a PPO.

What is a Permanent Protection Order (PPO)?

Section 16 of RA 9262 defines “Permanent Protection Order” (PPO) as the protection order issued by the court after notice and hearing.

While a TPO may be decided ex parte, notice to the alleged offender and due hearing are necessary for the issuance of a PPO.

What if the offender refuses or fails to appear during the hearing for the issuance of a PPO?

The alleged offender cannot frustrate justice by refusing or failing to appear during the hearing. RA 9262 provides for the following:

[1] Respondent’s non-appearance despite proper notice, or his lack of a lawyer, or the non-availability of his lawyer shall not be a ground for rescheduling or postponing the hearing on the merits of the issuance of a PPO.

[2] If the respondent appears without counsel on the date of the hearing on the PPO, the court shall appoint a lawyer for the respondent and immediately proceed with the hearing.

[3] In case the respondent fails to appear despite proper notice, the court shall allow ex parte presentation of the evidence by the applicant and render judgment on the basis of the evidence presented.

What are the procedures to be followed by the court in the hearing for the issuance of a PPO?

RA 9262 provides for the following procedures:

[1] The court shall allow the introduction of any history of abusive conduct of a respondent even if the same was not directed against the applicant or the person for whom the application is made.

[2] The court shall, to the extent possible, conduct the hearing on the merits of the issuance of a PPO in one day.

[3] Where the court is unable to conduct the hearing within one day and the TPO issued is due to expire, the court must continuously extend or renew the TPO for a period of thirty days at each particular time until a final judgment is issued. The extended or renewed TPO may be modified by the court as may be necessary or applicable to address the needs of the applicant.

[4] The court may grant any, some or all of the reliefs specified in Section 8 hereof in a PPO. A PPO is effective until revoked by a court upon application of the person in whose favor the order was issued.

[5] The court must ensure immediate personal service of the PPO on respondent.

[6] The court must not deny the issuance of protection order on the basis of the lapse of time between the act of violence and the filing of the application.

[7] Regardless of the conviction or acquittal of the respondent, the Court must determine whether or not the PPO should become final. Even in a dismissal, a PPO must be granted as long as there is no clear showing that the act from which the order might arise did not exist.

What should the copy of the protection order contain?

Section 17 of RA 9262 provides that the following statement must be printed in boldfaced type or in capital letters on the protection order issued by the Punong Barangay or Court: “VIOLATION OF THIS ORDER IS PUNISHABLE BY LAW”

What will happen if the barangay or the court fails to observe the periods mentioned in RA 9262?

Section 18 provides that failure to act on an application for a protection order within the prescribed period without justifiable cause will render the official or judge administratively liable.

What if the barangay council or the judges are busy with other matters?

Section 20 provides that application for a protection order must have priority:

[1] Barangay officials and the courts must schedule and conduct hearings on applications for a protection order under this Act above all other business and, if necessary, suspend other proceedings in order to hear applications for a protection order.

[2] Ex parte and adversarial hearings to determine the basis of applications for a protection order under RA 9262 must have priority over all other proceedings.

What if the barangay issued a BPO but the woman’s intimate partner violates it by inflicting harm or threatening the woman and/or her child?

Under Section 21, violation of a BPO is punishable by imprisonment of thirty days without prejudice to any other criminal or civil action that the offended party may file for any of the acts committed.

[1] A complaint for a violation of a BPO issued under this Act must be filed directly with any municipal trial court, metropolitan trial court, or municipal circuit trial court that has territorial jurisdiction over the barangay that issued the BPO.

[2] A judgment of violation of a BPO may be appealed according to the Rules of Court. During trial and upon judgment, the trial court may on its own issue a protection order as it deems necessary without need of an application.

What are the consequences if a TPO or a PPO is violated?

Violation of any provision of a TPO or a PPO issued under this Act constitutes contempt of court punishable under Rule 71 of the Rules of Court, without prejudice to any other criminal or civil action that the offended party may file for any of the acts committed.

What consequences, if any, are there if barangay or police officials refuse to act on a complaint filed by an abused woman or her children?

Any barangay official or law enforcer who fails to report the incident is liable for a fine not exceeding ten thousand pesos or whenever applicable criminal, civil or administrative liability.

Are complaints for violations of RA 9262 covered by the barangay justice system, or by mediation and conciliation?

No. Section 33 provides that the following are prohibited acts:

[1] A Punong Barangay, Barangay Kagawad or the court hearing an application for a protection order must not order, direct, force or in any way unduly influence the applicant for a protection order to compromise or abandon any of the reliefs sought in the application for protection under RA 9262.

[2] Section 7 of the Family Courts Act of 1997 and Sections 410, 411, 412 and 413 of the Local Government Code of 1991 do not apply in proceedings where relief is sought under RA 9262.

[3] Failure to comply with this Section will render the official or judge administratively liable.

Hope and help for the battered woman (2): Essential provisions of RA 9262 "Anti-Violence Against Women and their Children Act of 2004"

Related posts: Hope and help for the battered woman (3): RA 9262 Protection Orders Hope and help for the battered woman (4): Emotional abuse or psychological violence Hope and help for the battered woman (5): Biblical response to abuse; evangelical Christians are best husbands – University of Virginia study The "Battered Woman Syndrome" as defense Mediation not applicable to domestic violence cases Update: Supreme Court upholds Constitutionality of RA 9262 (Garcia vs. Drilon, G.R. No. 179267, June 25, 2013) R.A. 9262 does not violate the guaranty of equal protection of the laws. It is not an “anti-male,” “husband-bashing,” and “hate-men” law. R.A. 9262 covers lesbian relationships. The grant of a TPO (Temporary Protection Order) without a hearing does not violate the Constitutional right to due process. The non-referral of a VAWC (violence against women and children) case to a mediator is justified. RA 9262 does not unduly delegate judicial power to barangay officials. The BPO (Barangay Protection Order) is purely executive in nature in keeping with the barangay captain’s duty under the Local Government Code to “enforce all laws and ordinances,” and to “maintain public order in the barangay.”

Enumerated below in question and answer format are some of the salient provisions of Republic Act 9262 “Anti-Violence Against Women and their Children Act of 2004” and pertinent information regarding domestic violence.

What is the legal definition of “violence against women and their children?”

“Violence against women and their children” is any act or series of acts committed by any person against a woman with whom the person has or had a sexual or dating relationship, 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.

Can RA 9262 apply even to those who are not married?

Yes, RA 9262 applies also to those persons involved in a “dating relationship.” The term refers to “a situation where 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.”

What does RA 9262 mean by “sexual relations?”

The term refers to “a single sexual act which may or may not result in the bearing of a common child.” Persons involved in such are covered by the provisions of RA 9262.

What do the terms “battery” and “Battered Woman Syndrome” mean?

“Battery” refers to an act of inflicting physical harm upon the woman or her child resulting to physical and psychological or emotional distress.

“Battered Woman Syndrome” refers to a scientifically defined pattern of psychological and behavioral symptoms found in women living in battering relationships as a result of cumulative abuse.

What is stalking?

The term refers to an intentional act committed by a person who, knowingly and without lawful justification follows the woman or her child or places the woman or her child under surveillance directly or indirectly or a combination.

What kinds of violence are prohibited by RA 9262?

RA 9262 prohibits physical violence, sexual violence, psychological violence, and economic abuse.

What is sexual violence?

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

1. 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 him/her to watch obscene publications and indecent shows or forcing the woman or her child to do indecent acts and/or to 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;
2. acts causing or attempting to cause the victim to engage in any sexual activity by force, threat of force, physical or other harm or coercion;
3. prostituting the woman or child.

What is psychological violence?

“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:

1. intimidation
2. harassment
3. stalking
4. damage to property
5. public ridicule or humiliation
6. repeated verbal abuse
7. marital infidelity
8. causing or allowing the victim to witness the physical, sexual or psychological abuse of a member of a family to which the victim belongs
9. causing victim to witness pornography in any form or to witness abusive injury to pets
10. unlawful or unwanted deprivation of the right to custody and/or visitation of common children.

Why does RA 9262 seem to overemphasize psychological violence? What are the effects of psychological or emotional abuse?

Neil Jacobson and John Gottman in their study “When Men Batter Women” relate the insidious effects of psychological or emotional abuse as follows:

• Emotional abuse is harder to live with than being beaten and it means something different to women when it occurs with physical abuse.
• Despite the pain and bruises inflicted by punching, kicking and worse mayhem, it is the scarring left by an emotionally abusive husband that is more likely to trigger a battered wife’s decision to leave her spouse.
• Emotional abuse is more oppressive, particularly when it is frequent. It can be present every day, every waking hour, 24 hours a day. What men are doing with emotional abuse is almost like mind control.

What is economic abuse?

“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.

What are the specific acts of violence punishable under RA 9262?

Section 5 of RA 9262 enumerates the specific acts of violence against women and their children. These are the following:

[a] Causing physical harm to the woman or her child;

[b] Threatening to cause the woman or her child physical harm;

[c] Attempting to cause the woman or her child physical harm;

[d] Placing the woman or her child in fear of imminent physical harm;

[e] Attempting to compel or compelling the woman or her child to engage in conduct which the woman or her child has the right to desist from or desist from conduct which the woman or her child has the right to engage in, or attempting to restrict or restricting the woman’s or her child’s freedom of movement or conduct by force or threat of force, physical or other harm or threat of physical or other harm, or intimidation directed against the woman or her child.

[f] Inflicting or threatening to inflict physical harm on one’s self for the purpose of controlling her actions or decisions;

[g] Causing or attempting to cause the woman or her child to engage in any sexual activity which does not constitute rape, by force or threat of force, physical harm, or through intimidation directed against the woman or her child or her/his immediate family;

[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.

[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.

What prohibited acts are included under paragraph [e] above?

Paragraph [e] of Section 5 states: “Attempting to compel or compelling the woman or her child to engage in conduct which the woman or her child has the right to desist from or desist from conduct which the woman or her child has the right to engage in, or attempting to restrict or restricting the woman’s or her child’s freedom of movement or conduct by force or threat of force, physical or other harm or threat of physical or other harm, or intimidation directed against the woman or her child.”

This includes the following acts committed with the purpose or effect of controlling or restricting the woman’s or her child’s movement or conduct:

1. Threatening to deprive or actually depriving the woman or her child of custody to her/his family;
2. Depriving or threatening to deprive the woman or her children of financial support legally due her or her family, deliberately providing the woman’s children insufficient financial support;
3. Depriving or threatening to deprive the woman or her child of a legal right;
4. Preventing the woman in engaging in any legitimate profession, occupation, business or activity or controlling the victim’s own money or properties, or solely controlling the conjugal or common money or properties.

What prohibited acts are included under paragraph [h] of Section 5?


Paragraph [h] of Section 5 states: “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 includes the following acts:

1. Stalking or following the woman or her child in public or private places;
2. Peering in the widow or lingering outside the residence of the woman or her child;
3. Entering or remaining in the dwelling or on the property of the woman or her child against her/his will;
4. Destroying the property and personal belongings of inflicting harm to animals or pets of the woman or her child; and
5. Engaging in any form of harassment or violence.

What are the penalties for acts of violence against women?


Section 6 of RA 9262 provides for penalties for various prohibited acts of violence against women and their children. These are the following:

[1] Acts falling under Section 5(a) constituting attempted, frustrated or consummated parricide or murder or homicide shall be punished in accordance with the provisions of the Revised Penal Code.
[2] If these acts resulted in mutilation, it shall be punishable in accordance with the Revised Penal Code; those constituting serious physical injuries shall have the penalty of prision mayor; those constituting less serious physical injuries shall be punished by prision correccional; and those constituting slight physical injuries shall be punished arresto mayor.
[3] Acts falling under Section 5(b) shall be punished by imprisonment of two degrees lower than the prescribed penalty for the consummated crime as specified in the preceding paragraph but shall in no case be lower than arresto mayor.
[4] Acts falling under Section 5(c) and 5(d) shall be punished by arresto mayor;
[5] Acts falling under Section 5(e) shall be punished by prision correccional;
[6] Acts falling under Section 5(f) shall be punishable by arresto mayor;
[7] Acts falling under Section 5(g) shall be punished by prision mayor;
[8] Acts falling under Section 5(h) and Section 5(i) shall be punished by prision mayor.

If the acts are committed while the woman or child is pregnant, or committed in the presence of her child, the penalty to be applied shall be the maximum period of penalty prescribed in this section. 

What do the terms “prision mayor,” “arresto mayor,” etc. mean?

Prision mayor – Penalty of imprisonment is from 6 years and 1 day to 12 years; minimum - from 6 years and 1 day to 8 years; maximum - from 10 years and 1 day to 12 years.

Prision correctional - Penalty of imprisonment is from 6 months and 1 day to 6 years ; minimum - from 6 months and 1 day to 2 years and 4 months; maximum - from 4 years, 2 months and 1 day to 6 years

Arresto mayor - Penalty of imprisonment is from 1 month and 1 day to 6 months; minimum - from 1 to 2 months; maximum - from 4 months and 1 day to 6 months.

Beside imprisonment, are there any other penalties provided by RA 9262?

Yes, in addition to imprisonment, the perpetrator must:

1. pay a fine in the amount of not less than One Hundred Thousand Pesos but not more than Three Hundred Thousand Pesos;
2. undergo mandatory psychological counseling or psychiatric treatment and must report compliance to the court.

What court has jurisdiction over RA 9262 cases?

The Regional Trial Court designated as a Family Court has original and exclusive jurisdiction over cases of violence against women and their children.

In the absence of such court in the place where the offense was committed, the case must be filed in the Regional Trial Court where the crime or any of its elements was committed at the option of the complainant.

Is it only the woman-victim of abuse who can report the offense to the police authorities?

Under Section 25 of RA 9262, violence against women and their children are considered as a public crime. This means that the case may be prosecuted upon the filing of a complaint by any citizen having personal knowledge of the circumstances involving the commission of the crime.

If a person witnesses abuse being committed against a woman or her child and intervenes, does that person have any liability?

Section 34 of RA 9262 provides: "In every case of violence against women and their children, any person, private individual or police authority or barangay official, who acting in accordance with law, responds or intervenes without using violence or restraint greater than necessary to ensure the safety of the victim, shall not be liable for any criminal, civil or administrative liability resulting therefrom."

What are the rights of victims under RA 9262?

Section 35 of RA 9262 that in addition to their rights under existing laws, victims of violence against women and their children have the following rights:

[a] to be treated with respect and dignity;

[b] to avail of legal assistance from the PAO of the Department of Justice (DOJ) or any public legal assistance office;

[c] to be entitled to support services from the DSWD and LGUs;

[d] to be entitled to all legal remedies and support under the Family Code; and

[e] to be informed of their rights and the services available to them including their right to apply for a protection order.

Section 36 also provides that any victim of violence under this Act are entitled to actual, compensatory, moral and exemplary damages.

Section 40 obligates the DSWD and local government units to provide mandatory programs and service for victims such as temporary shelters, provide counseling, psycho-social services or recovery, rehabilitation programs and livelihood assistance. The DOH must provide medical assistance to victims.

A woman-victim might be prejudiced in her employment if she takes time off to get medical treatment or to seek police and legal assistance in filing her case. What provision if any does RA 9262 have in this situation?


Section 43 of RA 9262 provides that victims are entitled to take a paid leave of absence up to ten days in addition to other paid leaves under the Labor Code and Civil Service Rules and Regulations, extendible when the necessity arises as specified in the protection order.

Any employer who prejudices the right of the person under this section must be penalized according to the provisions of the Labor Code and Civil Service Rules and regulations.

Likewise, an employer who prejudices any person for assisting a co-employee who is a victim under this Act must be held liable for discrimination.

What if the perpetrator of abuse against a woman or her child tries to evade prosecution by leaving the country?

Section 37 of RA 9262 states: "The court shall expedite the process of issuance of a hold departure order in cases prosecuted under this Act."

What are the responsibilities of doctors, nurses and healthcare workers under RA 9262?


Section 31 of RA 9262 provides, among other things, that healthcare providers should:

[a] automatically provide the victim free of charge a medical certificate concerning the examination or visit;

[b] safeguard the records and make them available to the victim upon request at actual cost; and

[c] provide the victim immediate and adequate notice of rights and remedies under RA 9262, and the services available to them.

Why is there a need for information and training of healthcare providers? By the nature of their work, aren’t they already familiar with domestic violence, their causes and manifestations?

A study by Evan Stark and Ann Flitcraft (“Medical Therapy as Repression: The Case of the Battered Woman,” Health and Medicine, 1982) discovered that out of one million women who sought medical treatment for injuries inflicted by their husbands or boyfriends, doctors correctly identified the injuries as a result of battering only four percent of the time.

What prevents a woman or her children or both from filing a case is the possible shame and embarrassment in their community. What are the provisions of RA 9262 to ensure the confidentiality of the victims and the case?

Section 44 provides the following safeguards and penalties so as to ensure confidentiality:

1. All records pertaining to cases of violence against women and their children including those in the barangay shall be confidential and all public officers and employees and public or private clinics to hospitals shall respect the right to privacy of the victim.
2. Whoever publishes or causes to be published, in any format, the name, address, telephone number, school, business address, employer, or other identifying information of a victim or an immediate family member, without the latter’s consent, shall be liable to the contempt power of the court.
3. Any person who violates this provision shall suffer the penalty of one year imprisonment and a fine of not more than Five Hundred Thousand Pesos.

What can be done for the offenders?

Section 41 provides that the DSWD must provide rehabilitative counseling and treatment to perpetrators towards learning constructive ways of coping with anger and emotional outburst and reforming their ways. When necessary, the offender must be ordered by the Court to submit to psychiatric treatment or confinement.

Next time around we will discuss the provisions of RA 9262 on protection orders – BPO (Barangay Protection Order), and the TPO (Temporary protection Order) and PPO (Permanent Protection Order) issued by the court.

RA 9262 Anti-Violence Against Women and their Children Act of 2004; myths about spousal abuse; reasons why women stay in abusive relationships

Related posts: Hope and help for the battered woman (2): RA 9262 essential provisions Hope and help for the battered woman (3): RA 9262 Protection Orders Hope and help for the battered woman (4): Emotional abuse or psychological violence Hope and help for the battered woman (5): Biblical response to abuse; evangelical Christians are best husbands – University of Virginia study The “Battered Woman Syndrome” as defense Mediation not applicable to domestic violence cases RA 9262 and other cases involving women: where to ask for help Update: Supreme Court upholds Constitutionality of RA 9262 (Garcia vs. Drilon, G.R. No. 179267, June 25, 2013) R.A. 9262 does not violate the guaranty of equal protection of the laws. It is not an “anti-male,” “husband-bashing,” and “hate-men” law. R.A. 9262 covers lesbian relationships. The grant of a TPO (Temporary Protection Order) without a hearing does not violate the Constitutional right to due process. The non-referral of a VAWC (violence against women and children) case to a mediator is justified. RA 9262 does not unduly delegate judicial power to barangay officials. The BPO (Barangay Protection Order) is purely executive in nature in keeping with the barangay captain's duty under the Local Government Code to “enforce all laws and ordinances,” and to “maintain public order in the barangay.”

“Violence against women is perhaps the most shameful human rights violation. It knows no boundaries of geography, culture or wealth. As long as it continues, we cannot claim to be making real progress towards equality, development and peace.” (UN Secretary-General Kofi Annan)

Republic Act 9262 or the “Anti-Violence Against Women and Their Children Act of 2004” is our country’s landmark law on domestic violence. Women’s groups, led by the National Commission on the Role of Filipino Women (NCRFW), fought patiently for RA 9262 for ten long years before it became a law in March 2004.

Summer last year, through the coordination of the hardworking and dedicated Social Welfare Development Officers of the various LGUs in Region IV-A, I conducted seminars on RA 9264 for barangay officials, police officers, day care center workers, parents and other government employees. I had the privilege of holding these seminars for Laguna (Kalayaan, Lumban, Victoria, Alaminos), Cavite City, and Sto. Tomas, Batangas. I also conducted a seminar for Calabarzon social workers held at the DSWD Haven For Women in Ayala Alabang.

It’s sad to say, however, that a lot of barangay officials and police officers still do not know the provisions of RA 9262. In television news reports of domestic violence, I still hear of police officers filing cases of physical injuries, grave threats, etc. against abusive men, when the proper offense to be charged should have been any of those enumerated under Section 5 of RA 9262.

For RA 9262 and other cases involving women, you can ask for help from the following:

Department of Social Welfare and Development (DSWD) Crisis Intervention Unit (CIU) Rehabilitation Unit Tel. No.: (02) 734-8635 NCR Ugnayang Pag-asa, Legarda, Manila Tel. Nos.: (02) 734-8617 to 18

Philippine National Police (PNP) Women and Children’s Concern Division (WCCD) Tel. No.: (02) 723-0401 loc. 3480 Call or text 117 (PATROL 117)

National Bureau of Investigation (NBI) Violence Against Women and Children’s Desk (VAWCD) Tel. Nos.: (02) 523-8231 loc. 3403

DOJ Public Attorney’s Office Women's Desk
Tel. Nos.: (02) 929-9010; 929-9436 to 37

Philippine General Hospital (PGH) Women’s Desk Tel. Nos.: (02) 524-2990; 521-8450 loc. 3816

Women’s Crisis Center Women and Children Crisis Care & Protection Unit – East Avenue Medical Center (WCCCPU-EAMC) Tel. Nos.: (02) 926-7744; 922-5235

Before we discuss the various important provisions of RA 9262, let me cite to you some of the statistics and information on violence against women. I got these statistics and information from my own research, and from a seminar sponsored by the Philippine Association of Christian Counselors and held at the Alliance Biblical Seminary in Quezon City, late 2004.

Statistics on domestic violence around the world

1. At least one in every three women has been beaten, coerced into sex or otherwise abused during her lifetime.

2. Women of all races are about equally vulnerable to violence by an intimate partner.

3. In Brazil, a woman is abused every fifteen seconds.

4. In Great Britain, 100,000 women per year seek treatment for violent injuries received in the home. One to two women are killed by their male partners every week. 45% of murdered women are killed by their male partners.

Statistics on domestic violence in the USA

1. Estimates range from 960,000 up to three million women being physically abused by their husband or boyfriend per year.

2. In 2001, more than half a million women were victims of nonfatal violence committed by an intimate partner.

3. As many as 324,000 women each year experience intimate partner violence during

Statistics on domestic violence in Canada

1. Some 27% of all victims of violent crimes were victims of family violence. Among all family violence victims, 62% were victims of spousal violence.

2. In 2002, females accounted for 85% of all victims of spousal violence. Young females aged 25-to-34 experienced the highest rates of spousal violence.

3. Children and youth under the age of 18 accounted for 61% of victims of sexual assault and 20% of all victims of physical assault.

4. In 2002, girls represented 79% of victims of family-related sexual assaults. Rates of sexual offenses were highest among girls between the ages of 11 and 14, with the highest at age 13 (165 per 100,000 females).

Statistics on domestic violence in Switzerland

1. 20% of women suffered from domestic violence, according to a 1997 study.

2. Currently, 12.6% of Swiss women or more than one in eight suffer from physical violence; 11.6% or one in nine had suffered sexual violence.

Honor crimes against women

Jordan – 20 killings (1998)

Lebanon – 36 honor crimes (1996-1998)

Bangladesh – 200 women attacked with acid by husbands or relatives (1996-1998)

Pakistan – 850 women killed by husbands or family members; many cases not reported

Statistics on domestic violence in the Philippines

1. The PNP reported 5,058 cases of physical injury/wife battering in 2002. In previous years, the total number of cases was: 2,213 (1999); 3,824 (2000); and 5,668 (2001).

2. 90% of the victims in domestic violence cases were women.

3. 60% of these abused women suffered the abuse during pregnancy.

4. 90% experienced marital rape.

5. 60% had unwanted pregnancies.

These are just the reported cases, with the implication being that the actual number of abused women in the Philippines could be higher. Indeed the Social Weather Stations has reported the following findings:

A. 1.6 million women above the age of eighteen have suffered at least one instance of physical abuse from an intimate partner.

B. 2.8 million men have admitted to having physically harmed their intimate partners.

C. Of the 340 reported cases of domestic abuse in Bacolod, only 38 cases were actually filed in court.

Common injuries suffered by abused women (from the NCRFW Institutional Strengthening Project)

The violence against women ranges from verbal abuse (centered on how the woman has neglected her looks), to emotional battering (like accusing the woman of having affairs), withholding economic support and, in many instances, physical maltreatment.

Physical abuse has included: shoving, cutting off fingers, undressing a woman in front of other men, and calling her a whore, attempted burning, aiming a blowgun at a woman’s genital, beating with a hammer, raining fist blows, etc.

Myths about spousal abuse

1. Battering is primarily a woman’s fault; she must have provoked him by neglecting her chores, nagging, being unfaithful, etc.

2. She is exaggerating and would have left if the situation was that bad.

3. She should maintain family harmony and protect the husband’s name at all costs.

4. A man would stop the battering if the woman showed more sympathy to his remorse.

Why do abused women stay in abusive relationships (from Mary Ann Dutton, Dynamics of Domestic Violence: Understanding the Response from Battered Women)

1. Many women believe they cannot leave because “He can’t live without me.” They may fear that he will have a nervous breakdown, commit suicide, or lose his job.

2. She may believe that the children need a father, rationalizing that an abusive father is better than no father at all.

3. Many women fear that they will be killed if they leave an abusive relationship. Studies indeed show that battered women are more likely to be killed after leaving an abusive relationship

4. Abused women also convince themselves that things are going to get better.

Neil Jacobson and John Gottman in their study “When Men Batter Women” have observed that:

“The decision to leave an abusive husband and the actual process of doing so can be arduous, stretching over months or even years. Shame, self-blame, emotional dependence, fear of increased physical violence and the woman’s inability to “give up her dream of having a normal, loving relationship” can stop a woman from leaving.

“Violence paired with love creates an almost unbreakable emotional connection called “traumatic bonding.”

Reasons why abused women don’t leave their abusive partners (from the Women’s Legal Bureau and the NCRFW)

The man might still change for the better.

She still loves the man despite everything.

She can’t abide a broken family.

She’s doing it for the children.

She can’t support the children by herself.

She doesn’t want to be blamed by her parents for the break-up of the family.

She is afraid of what the husband can do to her.

The guy might take her kids.

She probably deserves the beating.

To maintain the good reputation of the man.

Wife-beating is part of the hazards of getting married; it’s just natural for women to get beaten up.

She pities the man because nobody else understands him, like she does.

If she improves herself, she won’t get beaten.

She’s afraid to be alone and lonely.

She doesn’t know she has rights not to be beaten.

It’s a family affair and others shouldn’t meddle.

He might lose his job if she calls the police.