University of Santo Tomas Faculty of Civil Law

Legal Research 1st Semester, A.Y. 2012-2013

BATTERED WOMAN SYNDROME AS AN EASY ESCAPE FROM CRIMINAL LIABLITY: A DEPRIVATION OF DUE PROCESS ON THE PART OF THE PROSECUTION?
2008-000651, 1E

I.

INTRODUCTION

Violence against women has been the subject of public clamor in the past years 1 due to inadequate laws protecting their rights.2 According to Ma. Rowena Amelia Guanzon3 and Marie Arcie Anne Sercado, before specials laws were passed addressing the concerns of women subjected to violence, these women can only seek redress for offenses committed against them by their husbands from the Revised Penal Code4 which punishes

R. Guanzon & A. Sercado, Issues and Problems in the Enforcement of the Anti-Violence Against Women and Their Children Act of 2004, 2 Phil. L.J. 312, (2008). 2 Id. pp. 313. 3 Atty. Ma. Rowena Guanzon is a litigation lawyer known in the pioneer field of gender discrimination and violence against women. She is a recognized expert in Violence Against Women legislations in the Philippines and a founding member of the Asia Cause Lawyers Network, Gender Justice Network, and CEDAW Watch. She has worked in the Philippine government for almost ten years and perhaps the most notable post she held was being the Consultant on Womens Rights to the Senate under then Senator Franklin Drilon where she helped draft the Senate Substitute Bill on the Anti-Violence Against Women and Their Childrens Act of 2004 and the Anti-Trafficking in Persons Act of 2003. She teaches in the University of the Philippines College of Law. (http://law.upd.edu.ph/index.php?option=com_content&view=article&id=362:prof-maria-rowena-ameliav-guanzon&catid=76:institute-for-the-administration-of-justice&Itemid=90) Last accessed October 14, 2012. 4 Act No. 3815 took effect on January 1, 1932.

physical injuries, frustrated or attempted parricide.5 However with the enactment of Republic Act No. 9262 or the Ant-Violence Against Women Act of 20046 (hereinafter referred to as the Anti-VAWC Act), other forms of violence such as psychological, emotional, and physical abuse were now provided as acts constituting violence against women and their children7 which this law also provided penalties therefor. 8 Consequently, crimes committed by women against their husbands will not be penalized so long as they can prove that they are suffering from battered woman syndrome (BWS) at the time of the commission of the crime.9 With this precept, this article is intends to examine whether this certain provision of the law that provides for BWS as a justifying circumstance violates the due process clause of the Constitution10 and whether accommodating the BWS as self-defense to exonerate the woman from any criminal and civil liability irrespective of the existence of the justifying circumstances under the Revised Penal Code, 11 creates unfairness on the part of the deceased in a certain case like opportune killing.12 Hence, this is article is confined in the application of the BWS in cases where women kill their batterers when the latter is incapacitated. In view of and to support this argument, Chapter 2 hereof provides a brief discussion on the laws providing for the available defenses of women subjected to violence prior to the enactment of the Anti-VAWC Act of 2004. It also gives an overview of how the pieces of evidence presented by the prosecution and defense were considered by the court in deciding a criminal case so as to show comparison and contrast with the procedure that

5 6

R. Guanzon & A. Sercado, supra note 1, at 313. This Act is a consolidation of Senate Bill No. 2723 and House Bill Nos. 5516 and 6054 which was passed on January 29, 2004 and February 2, 2004, respectively. It was approved by President Gloria MacapagalArroyo on March 8, 2004. 7 R.A. No. 9262 (2004), Sec. 5. 8 R.A. No. 9262 (2004), Sec. 6. 9 R.A. NO. 9262 (2004), Sec. 26. 10 Constitution, Art. III, Sec. 1. 11 R.A. 9262, Sec. 26. 12 M. Pea, Expanding The Classic Self-Defense Doctrine to Accommodate the Novel Theory of Battered Woman Syndrome: Problems and Issues in Philippine Context. 76 Phil. L.J. (December 2001), pp. 316, quoting the North Carolina Supreme Court in the case of State v. Norman, 1989.

may be followed where the Anti-VAWC Act is the applicable lawparticularly when the BWS was invoked to support the claim of self-defense. The landmark case of People v. Genosa,13 where the Supreme Court provided for the definition of the battered woman syndrome and a battered woman, will be discussed in Chapter 3. Meanwhile, the later enactment of the Anti-VAWC Act of 2004 and its purpose for providing for the justifying circumstance for criminal and civil liability of a woman suffering from BWS will also be tackled. In Chapter 4, the repercussions of BWS as a lawful defense will be examined. In order to give a more detailed explanation on the consequences of this lawful defense in Philippine law, Chapter 5 hereof presents the problem on BWS in connection with the classic self-defense doctrine.14 Taking into consideration the requisites of self-defense under the Revised Penal Code15 and the BWS as a defense, Chapter 6 of this article will delve most on the violation of due process with the enforcement of the Anti-VAWC Act which the Constitution grants such a right to every person.

II.

VIOLENCE AGAINST WOMEN: AVAILABLE REMEDIES AND WEIGHT OF EVIDENCE PRESENTED BEFORE R.A. 9262

At the beginning of this article, it has already been stated that redress and sanction for violence committed against women is provided for under the Revised Penal Code. However, they still have other recourse because of later legislations that sought to give them more protection under the law.

13 14

G.R. No. 13591, January 15, 2004. M. Pea, supra, note 12. 15 Article 11. J ustifying 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. x x x x

The Family Code of the Philippines,16 which took effect on August 3, 198817 gives a woman a remedy where she can file for legal separation against an abusive and violent husband.18 Aside from this, other special laws have been enacted in later years such as the Special Protection of Children against Abuse, Exploitation and Discrimination Act
19

which was enacted in 1992. Under this law, abuse, exploitation

and discrimination committed by any person to a child will be penalized. Another law was passed in Congress in 1997the Anti-Rape Act of 199720 which took effect on October 22, 199721which impliedly acknowledged marital rape.22 A year later, a new law was enacted that is the Rape Victim Assistance and Protection Act of 199823 which directs certain government agencies and an NGO with proven track record or experience in handling sexual abuse cases to establish in every province and city a rape crisis center located in a government hospital or health clinic or in any other suitable place for the purpose of providing psychological counseling, medical assistance, securing free legal

16

Executive Order No. 209 was enacted on July 6, 1987. http://www.gov.ph/downloads/1987/07jul/19870706-EO-0209-CCA.pdf (Last visited October 15, 2012) 17 Fuentes v. Roca, G.R. No. 178902, (April 21, 2010). 18 Art. 55. A petition for legal separation may be filed on any of the following grounds: (1) Repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of the petitioner; (2) Physical violence or moral pressure to compel the petitioner to change religious or political affiliation; (3) Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of the petitioner, to engage in prostitution, or connivance in such corruption or inducement; x x x x R.A. 7610, Approved July 17, 1992. http://www.congress.gov.ph/download/ra_08/Ra07610.pdf (Last visited October 15, 2012) 20 R.A. 8353 reclassified rape as crime against persons from crime against chastity under Title 8 of Act 3815 or The Revised Penal Code (RPC). It also incorporated a new chapter to be known as Chapter Three on Rape in Title 8 of the same code. http://www.congress.gov.ph/download/ra_10/RA08353.pdf (Last visited October 15, 2012). 21 People of the Philippines v. Dollano Jr., G.R. 188851, (October 19 2011). 22 R.A.8353, Section 2 states: 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; xxxx Article 266-C. Effect of Pardon. x x x In case it is the legal husband who is the offender, the subsequent forgiveness by the wife as the offended party shall extinguish the criminal action or the penalty: x x x 23 R.A. No. 8505, Approved on February 13, 1998. http://www.congress.gov.ph/download/ra_10/RA08505.pdf (Last visited October 15, 2012).
19

assistance, ensuring the privacy and safety of rape victims as well as implementing programs for their recovery.24 In seeking redress under these laws, it is necessary that proof to the contrary must be presented. That is in case of legal separation the burden of proving that repeated physical violence or grossly abusive conduct25 is committed against the petitioner or a common child, or the child of the petitioner,26 or physical or moral pressure27 is inflicted upon the petitioner, or that an attempt of respondent to corrupt induce the petitioner, a common child, or a child of the petitioner, to engage in prostitution,28 rests on the plaintiff. The reason being is that x x x in civil cases, the burden of proof rests upon the party who, as determined by the pleadings or the nature of the case, asserts the affirmative of an issue.29 Hence, the grounds for the petition of legal separation must be proved first30 before a decree of legal separation is obtained. The same holds true in criminal cases; such that in asserting that a violation of the provisions of the above-mentioned special penal laws, x x x the prosecution has the burden of proof to establish the guilt of the accused beyond reasonable doubt.31 This ruling of the Supreme Court is in consonance with the legal maxim ei incumbit probatio qui dicit, non qui negat (he who asserts, not he who denies, must prove). However, the accused should not be the only one to be guaranteed of fair trial in court for there can never be fairness if the right of the offended party is not recognized; it is but just and fair that both parties are not denied of their constitutional rights. 32 In both cases, specifically in criminal cases, the pieces of evidence presented both by the prosecution and defense are considered, hence due process is not denied to both of the parties. In other words, the weight of evidence presented by either of the parties is
24 25

R.A. No. 8505, Sec. 3. The Family Code of the Philippines, Art. 55 (1). 26 The Family Code of the Philippines, Art. 55 (1). 27 The Family Code of the Philippines, Art. 55 (2) 28 The Family Code of the Philippines, Art. 55 (3) 29 P.T. Cerna Corporation vs. Court of Appeals, G.R. No. 91622, 221 SCRA 19, (1993). 30 A.M. No. 02-11-11-SC 2003-03-15. Proposed Rule on Legal Separation, Sec. 14. 31 People v. Campos, G.R. No. 176061, (July 4, 2011). 32 2 R.B. Gorospe, Constitutional Law: Notes and Readings on the Bill of Rights, Citizenship and Suffrage 288 (2006).

looked upon with careful scrutiny of the information alleged therein for the just and fair disposition of the case. On the contrary, with the enactment of the Anti-VAWC Act of 2004, the pieces of evidence presented by the prosecution may be totally disregarded when the defense has proven beyond reasonable doubt that she is suffering from the battered woman syndrome (BWS). Clearly, the present law33 is lenient to a crime committed by any battered woman to sympathize to the suffering she has endured with her violent husband, let alone the unreasonable killing of the latter by the woman. Hence it is now lawful for battered women to kill their husbands when they have the opportunity to do so and incur no civil or criminal liability for the murder.

III.

ENACTMENT OF R.A. NO. 9262

The Anti-VAWC Act of 2004 was the result of the efforts of advocates of womens protection which include women legislators.34 In the House of Representatives two bills were passed to address the problems on domestic violence:35 one bill provides protection for women in intimate relations only, while the other provides protection for both men and women.36

It was in the Senate bill where the provision on BWS was included where it provided for its definition upon the request of the Chairwoman of Senate Committee on Women and Family, Senator Luisa Estrada, a psychiatrist. It was Atty. Guanzon37 who

33 34

R.A. 9262. R. Guanzon, Legal and Conceptual Framework of Battered Woman Syndrome as a Defense, 86 Phil. L.J. (2011). http://www.scribd.com/doc/59949148/Battered-Women-Syndrome-as-a-Legal-Defense (Last visited October 16, 2012). 35 Id. 36 Id. 37 She was the then Consultant on Women's Rights and Children's Rights to Senate President Franklin M. Drilon.

included a provision on the BWS as a justifying circumstance that can absolve the accused woman.38

A. Purpose of the Law From the inclusion of the provision of the BWS to its treatment as a lawful selfdefense, the law is clear that the Anti-VAWC Act gives relief to women only, and not men.39 The compassion of the law towards women is the result of the demand of a growing womens human rights movement and the State Obligation of the Philippine Government under the Convention on the Elimination of All Forms of Discrimination Against Women, its Optional Protocol.40 It therefore protects women and their children only, to promote gender equality and eliminate violence committed against them.41

B. The Genosa Case: A Precursor42 to BWS as Self-Defense in Philippine Criminal Law The case of People v. Genosa43 is the only judicial precedent the Philippine jurisprudence has on BWS;44 and this judicial precedent paved the way for the

recognition of the BWS as self defense in Philippine Criminal law. The pronouncement of the Supreme Court in the Genosa45 case states: Being a novel concept in our jurisprudence, the battered woman syndrome was neither easy nor simple to analyze and recognize vis--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. x x x
38 39

R. Guanzon, supra note 34. Id., At 317. 40 Id., At 312. 41 Id. 42 Guanzon, R., supra. 43 G.R. No. 13591, January 15, 2004. 44 Id. 45 Id.

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.46

Further, the Supreme Court47 in Genosa48 took the opportunity to provide a definition of battered woman in this way: 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."49

Moreover, the admissibility of BWS as evidence for self-defense is more reasonable in the words of the Supreme Court in this case.50 The Court pointed out that: The Court, however, is not discounting the possibility of selfdefense 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.51

46 47

Id. Id. Quoting Walker (1984). 48 Id. This being said, Marivic Genosa, the defendant in the said case was convicted of parricide, wherein the applicable penalty was reclusion perpetua to death (imposition of death penalty in the Philippines was abolished by virtue of R.A. 9346 which took effect on June 30, 2006 according to the case of People v. Malibiran, G.R. No. 173471, [March 17, 2009]) but was reduced to prision mayor in its minimum period to reclusion temporal in its maximum period because of the presence of two mitigating circumstances that attended the commission of the crime. However, since she has already served the minimum period of the penalty during the pendency of the case, the Court held that she may already be released immediately upon determination that she is eligible for parole. 49 Id. 50 Id. 51 Id.

It is therefore clear that this pronouncement by the Court is consistent with the self-defense doctrine52 in Philippine criminal law because it requires imminent danger to ones person and the necessity of the force used to defend oneself. Thus if the prosecution has proved that these requisites of self-defense are absent or that some are lacking, the offender will be held criminally liable in spite of the invocation of BWS as self-defense. In this case, the victim of the murder is given justice by convicting the offenderthe wifeof a crime she has committed. In self-defense, as Sigler and Shook53 puts it, defendants are permitted to use reasonable force to defend themselves in situations in which they reasonably believe that the other person is threatening imminent and unlawful bodily harm, and that force is necessary to protect personal safety.54 However, because of the inclusion of the BWS as justifying circumstance in Anti-VAWC Act of 2004, the rule now is different. Although the Supreme Court has provided for the requisites in the application of the BWS as selfdefense in the case of Genosa, it was nevertheless not considered when the present law was enacted but instead removed the elements of unlawful aggression where imminent harm must be present, necessity of the means employed to prevent and repel it, and the lack of sufficient provocation on the part of the person defendingwhich are the essential elements for invoking self-defense. Perhaps the reason for disregarding the elements for the justifying circumstance of self-defense is the complication on the part of battered women since it is difficult to prove that [battered] women were in imminent danger of death or serious injury or that deadly force was required to effectively protect [themselves].55 C. The BWS as Self-Defense

52 53

Revised Penal Code, Art. 11 (1). R. Sigler, & C. Shook, Judicial Acceptance of The Battered Woman Syndrome, 8 Criminal Justice Policy Review 4, 365-382 (1997), citing Ewing (1987). http://cjp.sagepub.com/content/8/4/365.refs.html (Last visited October 15, 2012) 54 Id, at 368. 55 R. Sigler, & C. Shook, supra, at 368.

In foreign jurisprudence, particularly in the United States, the BWS has long been used as self-defense since the 1980s.56 A decade later, the Supreme Court of Canada, in the case of R. v. Lavallee57, allowed the BWS as self-defense through an admission of an expert testimony for the first time and with this, a woman was given the ability to use this defense for the killing of her abusers.58 In Lavallee,59 who is also the appellant in the case, shot her husband in the back of his head after he left her room. The appellant was frequently a subject of her husbands physical abuse. A psychiatrist testified to provide an assessment of her in order to support her BWS defense of self-defense. The Supreme Court of Canada admitted the BWS evidence and acquitted the appellant. Four years later, the BWS was again used as a defense of the killing of a common law husband in the case of R. v. Mallott.60 Kwong-leung Tang61, quoting Justice LHeureux-Dube states: x x x The reasonable woman must not be forgotten in the analysis, and deserves to be as much a part of the objective standard of the reasonable person as does the reasonable man (Paragraph 40). In her view, Justice LHeureux-Dube urged that all legal inquiry should focus on the reasonableness of the actions of the battered woman within her personal experience and the relationship of abuse between her and her partner. x x x62 xxxx Moreover, he also provides for Jutice LHeureux-Dube observation of the test of reasonableness as being able to overcome stereotypes of battered woman63: Finally, all of this should be presented in such a way as to focus on the reasonableness of the womans actions, without relying on old or new stereotypes about battered women (Paragraph 43).64

56 57

M. Pea, (2001)., supra note 12, at 291. R. v. Lavallee, 76 C.R.(3d) 329 (S.C.C., 1990). 58 Kwong-leung Tang, Battered Woman Syndrome Testimony in Canada: Its Development and Lingering, 47 International Journal of Offender Therapy and Comparative Criminology 6, 618-629 (2003). http://ijo.sagepub.com/content/47/6/618.refs.html (Last visited October 16, 2012) 59 R. v. Lavallee, supra. 60 R. v. Malott, 1.S.C.R. (S.C.C., 1998). 61 Kwong-leung Tang, supra. 62 Id. at 623. 63 Id. 64 Id.

It therefore shows that even in foreign jurisprudence, the reasonableness of a battered womans actions should not be disregarded. This is because, although some women who killed their partners have acted in self-defense, others have been shown to have premeditated the killing.65 This is the reason why in the West, legal commentators saw the efforts to modify the self-defense law to aid battered women defendants are misguided66 because the specific circumstances surrounding the killing frequently do not fit the requirements for a successful use of the laws self-defense provisions, and the courts often do not allow the presentation of self-defense evidence.67 In the Philippines, the BWS has already been provided for in criminal law as a lawful defense without requiring any of the elements of justifying circumstances of selfdefense. In the end, this will lead to the unreasonable death of the victim who was killed by a woman who used the BWS as self-defense when unlawful aggression is no longer present. In the same view, the law gives women subjected to violence by their intimate partners an opportunity to easily avoid criminal liability by committing murder while the latter was most vulnerable (e.g. sleeping) in spite of the unreasonable means that they have resorted to end their suffering. In incidents like this, the inclusion of BWS as self-defense to justify the act of a battered woman in murdering her intimate partner, poses moral as well as legal repercussions in cases of opportune killing.68 In the words of Huss,69 [o]thers argue that although one can sympathize with the plight of the battered woman, there are far-reaching normative and legal problems associated with decreasing or eliminating culpability.

65

R. Sigler, & C. Shook, supra, note 53, at 367 (1997), citing Mann (1998). http://cjp.sagepub.com/content/8/4/365.refs.html (Last visited October 15, 2012) 66 M. Huss, et. al., Battered Women Who Kill Their Abusers : An Examination of Commonsense Notions, Cognitions, and Judgments, 21 Journal of Interpersonal Violence 8, 1063, 1064 (August 2006) quoting Faigman, (1987); Maguigan, (1991); Morse, (1990); Schopp et al., (1994). http://jiv.sagepub.com/content/21/8/1063.refs.html (Last visited October 15, 2012). 67 Id. At 1065. 68 M. Pea, (2001), supra, note 12, at 316. 69 M. Huss, et. al., supra., At 1064. Citing Schopp, Sturgis, & Sullivan, (1994).

The legal problem referred above is the essential requisites of self-defense in connection with the admissibility of BWS as a justifying circumstance, which will be discussed in the next chapter.

IV.

BWS VIS--VIS UNLAWFUL AGGRESSION, AND REASONABLE NECESSITY OF THE MEANS EMPLOYED IN ORDER TO PREVENT OR REPEL IT

Under the Anti-VAWC Act of 2004, BWS is now the most lenient way to justify the crime committed by a woman who was proven, with the assistance of the testimonies of expert psychiatrists/psychologists, to be suffering from the said syndrome. However, with the present law admitting evidence on BWS as a justifying circumstance for felonious acts committed by battered women, the existing law on necessity is now modified in this jurisdiction.70 The BWS as defense does not anymore require the requisites of self-defense. The requites of the justifying circumstance of self-defense provided for under Article 11 (1) of The Revised Penal Code are the concurrence of the following: (1) Unlawful aggression; (2) Reasonable necessity of the means employed to prevent or repel it; and (3) Lack of sufficient provocation on the part of the person defending himself. The law requires the presence of unlawful aggression in the application of the justifying circumstance of self-defense. Unlawful aggression means that there is an equivalent assault or at least threatened assault of an immediate and imminent kind.71 Hence, hence there is unlawful aggression when the peril to ones life, limb, or right is either actual or imminent. x x x72 Unlawful aggression is a condition sine qua non in self-defense. There can be no self-defense, complete or incomplete, unless the victim has

70 71

M. Pea, supra, note 12, at 319. L. Reyes, THE REVISED PENAL CODE: CRIMINAL LAW 158 (18 th ed. 2012) 160, citing People v. Alconga, 78 Phil. 366. 72 Id. citing People v. Crisostomo, G.R. No. L-38180, October 23, 1981.

committed an unlawful aggression against the person defending himself.73 This requisite presupposes an actual, sudden and unexpected attack, or imminent danger thereof, and not merely a threatening or intimidating attitude.74 Hence, without unlawful aggression, nothing is there to prevent or repel. Therefore the second requisite of self-defense will have no basis.75 The second requisite requires that the act and means employed to prevent or repel the unlawful aggression that places the person defending himself in imminent or actual danger must be reasonable. According to Reyes,76 [t]he reasonable necessity to take a course of action and the reasonableness of the necessity of the means employed depend upon the circumstances of the case.77 In battered womens cases, is opportune killing reasonable? The last requisite is the lack of sufficient provocation on the part of the person defending himself. The reason for this is that, without the provocation given by the person defending himself or herself, the aggressor would have not caused the aggression that will put the former in imminent or actual danger. Hence the person defending is to be blamed for the aggression.78 With all these requisites of self-defense taken all together, a battered woman who killed her sleeping intimate partner will be convicted of the crime of murder, or parricide in case the latter is the husband of the former. In the Genosa case, there was a sufficient time interval between the unlawful aggression of the husband and the act of killing by the wife. The latter had been able to avoid the unlawful aggression of the former when the latter managed to escaped in the bedroom. During this time, the violent behavior of the husband has ceased as well as the imminent danger he posed on her life.79

73 74

People v. Sazon, G.R. No.89684, September 18, 1995, 189 SCRA 700, 704. Reyes, L.,supra note 71, at 160. 75 Id., at 158. 76 Id. 77 Id. at 184. 78 Id. at 195. 79 People v. Genosa, G.R. No. 135981, January 15, 2004.

Thus, when battered wife killed her sleeping husband, the act was not justified in spite of advancing BWS as her defense. The law on self-defense at the time the case was decided by the Supreme Court requires the most essential element of self-defensethat is unlawful aggressionto justify the crime she has committed. The Court in the said case has reiterated the well-established doctrine that without unlawful aggression the act felonious act inflicted upon the victim is not justified80, hence she cannot claim to have not incurred any criminal liability. The BWS as self-defense under the Anti-VAWC Act of 2004 has expanded81 the classic self-defense doctrine by eliminating its requisites with respect to its application on battered women in order to aid them in easily escaping criminal liability in cases when they commit murder on their husbands when they have the sheer opportunity to do so. According to Wells,82 another problem that results from legalizing BWS as selfdefense is that: It is argued that BWS is too narrow a conceptual framework; it is a mold that only fits one type of woman x x x Women who fight back, who are assertive, who drink, or who possess other traditionally unfeminine traits would not benefit from the testimony.83

This is the situation in other countries. The admission of BWS as defense is limited only to those women who do not have the courage to assert their rights against their intimate partners by fighting back or women who has proved to be outside of the female stereotype. An analysis of this argument in connection with the thesis of this article would mean that women who fight back or those who caused sufficient provocation on the victim of the murder that would also cause the latter to attack the former should not be acquitted from the crime that they have committed. The reason for this is that, the sufficient provocation of the woman caused her intimate partner to attack her. In this

80 81

People v. Genosa, supra. M. Pea, supra note 12. 82 E. Wells, But Most of All, The Fought Together: Judicial Attributions for Sentences in Convicting Battered Women Who Kill, 36 Psychology of Women Quarterly 3, 350-364, (2012). http://pwq.sagepub.com/content/36/3/350 (Last visited October 15, 2012) quoting Ferraro (2003). 83 Id.

case, since the wife has already been suffering from the violent acts of her husband, she would then resort to killing the latter to relieve her. Still, without the provocation of the wife, there would have been no attack from the husband that would cause her to kill the latter. In other words, they should be held criminally liable because there is only incomplete self-defense. In the Philippines where BWS is a legal defense to justify the killing an intimate partner, questions would then arise whether the woman really deserves to be acquitted in cases of mutual violence.84 Therefore, this suggests that mutual violence may be incompatible with the application of BWS and the construction of the accused as a victim of serious abuse. The issue is that mutually violent victims are not constructed as passive, helpless, and trapped.85 The accommodation of BWS as defense in self-defense has its serious consequences in the future specially in opportune killing. It was enacted to give relief to woman indeed. But the relief sought has constructed a situation for worse repercussions.

V.

PROBLEMS ON BWS AS SELF-DEFENSE

Russell and Mellilo86 stated that the use of BWS may be seen as an excuse, rather than a justification for self-defense.87 In the United States, according to Kwongleung Tang,88 legal experts and academics contend that some defendants utilize abuse excuse89 merely to escape the responsibility of self-control.90

In the Philippines, BWS is no longer used as an excuse but as a lawful defense. Nevertheless, the abuse excuse still cannot be discounted in criminal cases where a

84 85

Id. at 360. Id. 86 Russell, B. & Melillo, L., Battered Women Who Kill: Defendant Typicality and Judgments of Culpability, 33 Criminal Justice And Behavior 2, 219-241 (April 2006) quoting Schneider (2000) and Schuller&Hastings, (1996). http://cjb.sagepub.com/content/33/2/219.refs.html (Last visited October 15, 2012) 87 Id. at 219. 88 Kwong-leung Tang, supra note 58. 89 Id. At 625. 90 Id.

woman killed her partner while the latter is asleep. In order to support the argument herein presented about abuse excuse, there is no other option than to base this in the case of Genosa.91 However, the author does not mean to repudiate the claim of the appellant who was proven to have indeed suffered violence from her deceased husband. It is only used herein only to provide an insight of the future consequences of BWS as selfdefense in the criminal justice of this country.

A. Opportune Killing Pea,92 states that allowing the BWS as self-defense, the requirements of selfdefense will be relaxed.93 She quoted the North Carolina Supreme Court in the case of State v. Norman where it states that BWS would tend to categorically legalize the opportune killing of abusive husbands by their wives solely on the testimony concerning their subjective speculation as to the probability of future felonious assaults by their husbands. In the Philippines, it already did legalize opportune killing of abusive husbands or intimate partners of women.

In the same light, there will be instances in the future where the battered woman would devise means to incapacitate her intimate partner so she could accomplish her ultimate motive of killing the latter. This is the most probable worst-case scenario where the wife may tend to weaken her husband, say, through the means of food poisoning. This may lead to the death of the latter, but if this were to fail, she may still kill him because the physical strength of the husband has already been reduced due to the poison; hence her strength would then be enough to overcome that of her husband and eventually murder him. On the one hand, with the enforcement of this R.A. 9262 that gives battered women the utmost leeway to end their suffering without fear of incurring any liability

91 92

Supra., note 13. M. Pea, supra, note 12. 93 Id. at 315.

under the law, they can easily escape violencethey can easily escape criminal and civil liability from committing an act that is inherently and morally wrong. On the other hand, this is not to say that women who have been grossly maltreated by their intimate partners should succumb to the seemingly perennial violence inflicted upon them so as not to defy her morals or that of the society and not to disturb the social order. This does not also mean that during an altercation where physical confrontation is imminent, or that when violent fight is already occurring, the wife should still not resort to use a force or weapon to ultimately end the violence and her suffering. Moreover, this does not mean, that women who have intentionally or unintentionally killed her intimate partner during a physical confrontation should be held criminally liable in spite of the fact that she was actually suffering from the battered woman syndrome during the said crime. This article only posits that battered women should seize the opportunity to just leave their intimate partners when they are most vulnerable or when they are incapacitated; and they should not take this as an opportunity to resort to a heinous crimethat is the killing of the latter. While the public might sympathize to her plight and understand the crime she has committed, the behavior of the husband is not an acceptable excuse for her actions,94 in so far as opportune killing is concerned. This is because, studies show that many believe that battered women could simply leave should [they] decide to.95

B. BWS as a Lawful Defense in Opportune Killing

Under the Revised Penal Code, insofar as the battered woman is concerned and prior to the enactment of the Anti-VAWC Act of 2004, the available defenses to avoid

94 95

R. Sigler and C. Shook, supra, note 53, at 366, quoting Reid, (2004). M.T. Huss, note 66, at 1065.

criminal liability are self-defense96, defense of relatives,97 defense of strangers,98 and imbecility or insanity.99 According to Sigler and Shook100 these defenses can be classified in two types as an excuse and as a justification. He made the following distinctions: When an excuse defense is offered, the accused admit that they committed the act or acts which led to the death of the victims. Defendants argue that they are not accountable for their actions and are not morally blameworthy because they did not have a fair opportunity to meaningfully choose to commit or avoid the act. In a justification defense, defendants also admit committing the acts or act which led to the victims death but argue that, due to factors beyond their control, and in order to protect a threatened interest, the act or acts were an acceptable response in the specific circumstances of the case.101

In other words, a defense is used as an excuse when the accused denies responsibility of their acts because they have no fair opportunity to reflect on the morality of the act, as when they have no other choice than to kill their husbands because it might be too late. In other words, if the accused did not kill victim, then the former might be the one who gets killed by the latter. On the other hand, a defense is advanced as a justification of the act because of attending factors that restricts their own self-control and more so, the act is a natural response to protect oneself. Given the above-stated distinction between a defense as an excuse and a defense as a justification, a question arises: Is it an excuse or a justification in advancing BWS as a defense in opportune killing by battered women? The answer would be an excuse. This is because at the time when the accused has an opportunity to commit the crime, the victim poses no threat to the accused that the latter might get killed. There is still a time to actually reflect on their acts.

96 97

R.A. 3815 (The Revised Penal Code), Art. 11 (1). R.A. 3815 (The Revised Penal Code), Art. 11 (2). 98 R.A. 3815 (The Revised Penal Code), Art. 11 (3). 99 R.A. 3815 (The Revised Penal Code), Art. 12 (1). 100 Supra note 53, at 368, citing Rosen (1986). 101 Id.

It cannot be considered as a justification because [t]he act of mortally wounding the victim has been preceded by aggression on the part of the latter. There is occasion to speak of reasonable necessity of the means employed.102 The accused is not compelled by means of force or violence to commit a crime103 to be exempted from criminal liability. The enforcement of the Anti-VAWC Act of 2004 has eliminated these requirements of self-defense in accomodating the BWS as self-defense. The killing of an abusive partner by a battered woman is justified in opportune killing. In spite of the evidence presented by the prosecution that the means employed to kill the victim was not necessary because she could have just escaped when the victim was incapacitated, the battered woman will still triumph in the end. The law has legalized opportune killing through the provision in the present new law on BWS as a lawful defense. It will justify this unreasonable means resorted to by the woman to end violence. It will condone the unreasonable means employed by the woman to exact justice in her own hands. The unreasonable means of ending violence in opportune killing is just one of the repercussions of the enforcement of the Anti-VAWC Act in providing for the BWS as justifying circumstance while disregarding the essential elements of self-defense that has long been embedded in the penal law of this jurisdiction. At the time of the trial for a crime committed, questions of due process will definitely be raised. Should the accused be acquitted by mere proof that she is suffering from BWS? Will the deceased or the offended party be given justice for the unreasonable killing? Will there due process still be afforded to the offended party in cases of opportune killing where Section 26104 of the Anti-VAWC Act is invoked? These are the vital questions that need to be answered and which this paper intends to provide in the next chapter which will delve most on the constitutional question of due process.
102

Reyes, L., supra note 71, at 158 quoting the Supreme Court in the case of People v. Yuman (61 Phil. 786). 103 Id. at 245. 104 It provides for the battered wife syndrome as a justifying circumstance where any woman suffering from this syndrome when the crime was committed do not incur civil or criminal liability irrespective of the elements of self-defense.

VI.

THE CONSTITUTIONAL RIGHT OF DUE PROCESS VIS--VIS THE BWS AS JUSTIFYING CIRCUMSTANCE IN OPPORTUNE KILLING

In all trial for any criminal offense, due process is observed.105 It is well settled that due process in criminal proceedings requires that x x x an accused is given an opportunity to be heard.106 The offended party is also entitled to this right to heard and when the denial of this fundamental right of due process is apparent, a decision rendered in disregard of that right is void for lack of jurisdiction.107 Without due process, there can be no justicethe offender can evade criminal liability and the offended party will forever be left to suffer the injustice caused upon him or her.

With the enforcement of the Anti-VAWC Act and its accommodation of the BWS as self-defense without requiring unlawful aggression and the reasonableness of the means employed to advance such a defense, a lingering question of due process on the part of the offended party is now posed at present.

Due process is a right expressly conferred by the Constitution on its citizens. The Bill of Rights of the Constitution, Section 3 of Article III states: No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of laws. Senator Miriam-Defensor Santiago108 states that the Due Process Clause is the very essence of justice.109 Further, quoting Joint AntiFascist Refugee Committee v. McGrath, she states:

No better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss notice of the case against him and opportunity to meet it. Nor has a better way been found for generating the

105 106

CONSTITUTION, Art. III, Sec. 14. Marquez v. The Sandiganbayan, G.R. 187912-14 (January 31, 2011). 107 People v. Bocar, 138 SCRA 166 (1985). 108 She is acknowledged by media and fellow senators as an expert in constitutional and international law. http://www.senate.gov.ph/senators/sen_bio/santiago_bio.asp (Last visited October 26, 2012). 109 M. Defensor-Santiago, Constitutional Law, 318 (1997).

feeling, so important to a popular government, that justice has been done.110 In the International Covenant on Civil and Political Rights111 the right of every person to due process is also guaranteed in Article 9, paragraph 1 thereof provides:

Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

The right to due process has two aspects: the procedural and substantive. In the case of Corona v. United Harbor Pilots Association of the Phils.,112 a distinction was made between these two: When one speaks of due process of law, however, a distinction must be made between matters of procedure and matters of substance. In essence, procedural due process refers to the method or manner by which the law is enforced, while substantive due process requires that the law itself, not merely the procedures by which the law would be enforced, is fair, reasonable, and just.113

This chapter will focus more on the procedural aspect of due process. The procedural requirements of due process in criminal proceedings are: (a) the court or tribunal trying the case is properly clothed with judicial power to hear and determine the matter before it; (b) that jurisdiction is lawfully acquired by it over the person of the accused; (c) that the accused is given an opportunity to be heard; and (d) that judgment is rendered only upon lawful hearing.

The right to due process should never be denied to anyone specially in criminal proceedings as it is provided by the Constitution itself which is created by the people themselves and recognized in every law passed in this jurisdiction and is also expressly guaranteed in an international covenant mentioned above which the Philippines is a signatory.114

110 111

Id. quoting Joint Anti-Fascist Refugee Committee v. McGrath, 341 Us 123 (1951). Entered into force on March 23, 1976. http://www2.ohchr.org/english/law/ccpr.htm (Last visited October 26, 2012). 112 237 SCRA 31 (1997)
113 114

Supra.
http://www2.ohchr.org/english/law/ccpr-ratify.htm (Last visited October 26, 2012).

In every trial for criminal cases, the Bill of Rights of the Constitution also provides: No person shall be held to answer for a criminal offense without due process of law. In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. x x x115 In this Constitutional mandate, the accused is the center of attention because the opportunity of be heard in defense of oneself before [one] is deprived of his life, liberty and property116 is the basic and fundamental idea of due process. Moreover, Atty. Gorospe117 states that the accused has the primordial right to present his version of the incident under which the State seeks to penalize him.118 However, this is not to say that the offended party is totally disregarded in the picture. Due process for the offended party is precisely stated in this way: While the language of the due process provision seems to be a guarantee only for the accused, the assurance of fair play actually runs both ways. There could be no due process if only the accused is treated fairly for, in the ultimate analysis, that would hardly be considered fair or just at all. Thus, while the guarantee is primarily an assurance of fair treatment for the accused before he could be deprived of his liberty, life or property, it does not necessarily mean that the prosecution and the offended party could be denied their day in court to prove their case.119

The mandate of the Constitution on the right of every person to due process is clearboth the defense and the prosecution must be given fair treatment under the law. But with the enactment of the Anti-VAWC Act of 2004 with its inclusion of the BWS as a justifying circumstancethat does not require the elements of self-defense that has

115 116

CONSTITUTION, Art. III, Sec. 14. R.B. Gorospe, supra, note 32, at 382. 117 He is a faculty member of the UST Faculty of Civil Law and Far Eastern University Institute of Law. He is a Bar Reviewer in Political law, Constitutional law and Legal Ethics in various Universities and Review Centers. Atty. Gorospe is the author of Constitutional Law: Notes and Readings on the Bill of Rights, Citizenship and Suffrage. 118 R.B. Gorospe, supra, note 32, at 382. 119 R.B. Gorospe, supra, note 32, at, 288 citing People v. Bocar, 138 SCRA 166 (1985).

long been recognized in criminal law and required for the conviction of the accused certainly does not preclude the idea about the unfairness of the law. Although it is the basic rule in statutory construction that the presumption always tilts on the fairness and constitutionality of the law without proof beyond reasonable doubt on the contrary, reason and morals alone can tell that the use of BWS as a selfdefense in killing a partner while the latter is sleeping is unreasonable. In a criminal proceeding instituted for the purpose of prosecuting the crime committed by a woman suffering from a BWS, the situation becomes worse. Due process requires that both parties be given the x x x reasonable opportunity to be heard and to submit evidence one may have in support of ones defense. To be heard does not only mean verbal arguments in court. One may be heard also through pleadings.120 Furthermore, [i]t is a basic rule that it is not the denial of the right to be heard but the deprivation of the opportunity to be heard which constitutes a violation of the due process clause.121 In criminal proceedings both parties are not deprived of their right to present their evidence to corroborate their claim and at the same time rebut the evidence presented by the other party. However, when the Anti-VAWC Act is invoked, then the proceedings may take a different twistespecially in cases of opportune killing in intimate relationships committed by a woman. In the case of Genosa, the Court provides that x x x in criminal cases, all the elements of a modifying circumstance must be proven in order to be appreciated. However the Anti-VAWC Act only requires a proof beyond reasonable doubt of the occurrence of the BWS on the part of the woman at the time of the commission of the crime to acquit her thereby negating the criminal as well as her civil liability. The law is clear on the justifying circumstance of BWS as self-defense under this law. It exculpates the accused from guilt of the crime committed in spite of the absence of the essential requisites for the justifying circumstance of self-defense.. Both parties are given

120 121

M. Defensor-Santiago, Constitution Annotated, (1999). Imperial Textile v. NLRC, 217 SCRA 237 (1993).

opportunity to prove their claims and present testimonies and evidence to corroborate the same, however, the question now is on the matter of deciding the case in relation to the consideration accorded to the merits of the claims of both parties. In opportune killing, if the accused was proven beyond reasonable doubt to be actually suffering from BWS, then it presupposes that despite the weight of evidence presented by the prosecution to prove the guilt of the accused of the crime committed, its evidence will be disregarded. In view of this argument, it is understood that: [a] court faced with a fifty-fifty proposition of guilt or innocence always decides in favor of innocence.122 x x x Under the equipoise rule, where the evidence on an issue of fact is in equipoise or there is doubt on which side the evidence preponderates, the party having the burden of proof loses.123 x x x Of course, it goes without saying that the equipoise rule is applicable only where the evidence is overwhelming and has not been overcome by the evidence of the defense. 124

Nevertheless, despite the sheer weight of the evidence presented by the prosecution in a criminal case involving a battered woman where Section 26 of R.A. 9262 is invoked, the prosecution and offended party will defintely lose. However, the prosecution and offended party is not denied of the due process because it will be given the opportunity to be heard and the judgment of its case will be decided after a lawful hearing. It is in the latter due process requirement that the merits of the case will undergo scrutiny of the court; the accused will not be held criminally and civilly liable

notwithstanding the overwhelming evidence of the prosecution, such that the essential requisites of self-defense were wanting. The strong evidence of the prosecution for the conviction of the accused will never be given merit nor appreciated in modifying the liability of the accused in the crime it has committed; simply because courts cannot modify the express provision of the Anti-VAWC Act. Hence, the offended party will be denied of its right of fair trial. The constitutional right of due process may not have been violated but certainly, the offended party will never be afforded a fair trial. As soon as the BWS is proven by

122 123

R.B. Gorospe, supra, note 32, 381 citing Fernando v. Sandiganbayan, 212 SCRA 680 (1992), at 687. Id., citing People v. Natividad, 411 SCRA 587 (2003), at 596. 124 Id., citing People v. Deunida, 231 SCRA 520 (1994), at 534.

the accused, the evidence of the prosecution will be disfavored despite its strong and convincing manner to prove the unreasonable killing of the offended party and most especially the guilt of the accused.

VII.

CONCLUSION

Opportune killing is an unreasonable means of self-defense. Considering the facts and circumstances of battering incidents undergone by a battered woman, it should not be treated as successful and reasonable means of taking anothers life. Whenever there is an opportunity to flee from the ruthless hands of the womans intimate partner, it must be seized and not to utilized as way of committing a heinous crime. The present law tilts the scale of justice with utmost leniency to the crime committed by battered women against their intimate partners. It is understood that woman are often the subject of domestic violence and the stereotype of being weak and defenseless that are associated with them is taken advantage by abusive and violence partners; and this law seeks to address the issue and provide redress for women. It gives them more protection under the law by giving them the easiest and lawful escape from criminal liability should they commit crimes against these abusive partners. The constitutional issued posed in this article has been resolvedthe present law does not violate due process. There is still a lawful hearing for both partiesthe prosecution and offended party, and the accused and are given opportunity to be heard. This reason for this is the vast leeway provided by law. Both parties can present their evidence to support their claims, but as soon as BWS is proven, the prosecution loses and the offended party will never get justice for the unreasonable killing. For the last note, the BWS self-defense that is now provided in the Anti-VAWC Act, with the remedy it gives to at least redress domestic, if not end, may be subject to abuse by battered women themselves. The law seems to invite battered women the commission of heinous crime against violent partners and encourage to deliberately commit the same since they will not incur any criminal nor civil liability anyway.