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14 October 2011

ATTY. _____________________ Chief Public Attorney Justice Hall, Sevilla Center San Fernando City, La Union 2500

RE: People of the Philippines vs. Marissa Mendez

Dear Atty. _______:

For the defense of Marissa Mendez who is charged with murder for killing her husband Raul Isidro, I am of the following opinion: Marissa Mendez could be acquitted if we are able to establish that she is a battered woman. Battered Woman Syndrome (BWS) as a Defense Battery as defined by Sec. 3-b, R.A. No. 9262, refers to an act of inflicting physical harm upon the woman or her child resulting to the physical and psychological or emotional distress. And Battered Woman Syndrome as defined by Sec. 3-c, R.A. No. 9262, refers to a scientifically defined pattern of psychological and behavioral symptoms found in women living in battering relationships as a result of cumulative abuse. Before the advent of R.A. No. 9262 which took effect on March 27, 2004, the Battered Woman Syndrome was first appreciated in the Supreme Court decision in People vs. Genosa,1 who was convicted of parricide by killing her husband for which the trial court imposed on her the death penalty. In claiming self-defense, appellant raises the novel theory of the BWS. But appellant failed to prove that she was indeed suffering from BWS during the commission of the crime and so the provisions of the Revised Penal Code on the elements of justifying circumstances on self-defense was applied. Under Republic Act No. 9262 otherwise knows as Anti-Violence Against Women and their Children Act of 2004, it is provided that

People of the Philippines vs. Marivic Genosa, G.R. No. 135981 January 15, 2004

Section 26. Battered Woman Syndrome as a Defense. Victim-survivors who are found by the courts to be suffering from battered woman syndrome do not incur any criminal and civil liability notwithstanding the absence of any of the elements for justifying circumstances of self-defense under the Revised Penal Code. In the determination of the state of mind of the woman who was suffering from battered woman syndrome at the time of the commission of the crime, the courts shall be assisted by expert psychiatrists/psychologists. It means, now, that under R.A. No. 9262, if a woman who have been abused by her lawful husband or common-law husband, kills or inflicts physical injuries on the latter, if it has been established that such woman is suffering from the BWS, the court must declare her not guilty even in the absence of any of the elements for justifying circumstances of self-defense under the Revised Penal Code. BWS is therefore a justifying circumstance which could expunge an accused of all criminal and civil liabilities. It cannot be denied that Mendez is a victim of battery perpetrated by her lawful husband Raul Isidro. Mendez could therefore invoke the defense of BWS and should be acquitted regardless of the absence of the elements of justifying circumstances of self-defense under the Revised Penal Code. BWS cannot just operate to mitigate her criminal and civil liability as what has been in Genosa1 since the decision of the case cited was promulgated several months before the effectivity of R.A. No. 9262 also known as the Anti-Violence Against Women and their Children Act of 2004. It is clear that R.A. No. 9262 recognized the legitimacy of the claim of justifying circumstance based on BWS which could be invoked by a woman who has suffered frequent, severe and inhumane treatment by their partners which has affected the womans mental and psychological state and reasoning. The trauma which these women suffered in the hand of their cruel partner has clouded the clarity of their mind which could be equated to that of passion or obfuscation. Because of the recurring cycles of violence experienced by the abused woman, her state of mind metamorphoses.2 In People v. Torres, where a wife killed her husband of ten years, twofold test has been adopted in New York for determining admissibility: (1) does the opinion testimony "depend upon professional or scientific knowledge or skill not within the range of ordinary training or

1 2

In Genosa, supra Ibid.

intelligence" ( Dougherty v Milliken, 163 NY 525, 533; People v Allweiss, 48 NY2d 40) and (2) is the state of the pertinent art or scientific knowledge sufficiently developed to permit a reasonable opinion to be asserted even by an expert (see, People v Leone, 25 NY2d 511; Frye v United States, 293 F 1013, supra; McCormick, Evidence 13 [Cleary 2d ed 1972]). It Court further states: xxx Upon careful reflection and analysis, however, it is the opinion of this court that the theory underlying the battered woman's syndrome has indeed passed beyond the experimental stage and gained a substantial enough scientific acceptance to warrant admissibility. According to Dr. Blackman, numerous articles and books have been published about the battered woman's syndrome; and recent findings of researchers in the field have confirmed its presence and thereby indicated that the scientific community accepts its underlying premises. Accordingly, for all the reasons hereinbefore enumerated, the court, in its discretion, will permit the use of expert testimony about the battered woman's syndrome to help substantiate defendant's claim of self-defense. 1 Mendez has to subject herself to psychiatric and psychological test to establish the claim that shes indeed was suffering of said Syndrome during the commission of the crime.

Marital rape and other physical violence: Mendez suffered marital rape for several occasions which stemmed from Rauls jealousy. Under Article 266-A of R.A. 8353: Article 266-A. Rape: When And How Committed. Rape is committed: 1) By a man who shall have carnal knowledge of a woman under any of the following circumstances: a) Through force, threat, or intimidation; b) When the offended party is deprived of reason or otherwise unconscious; c) By means of fraudulent machination or grave abuse of authority; and d) When the offended party is under twelve (12) years of age or is demented, even though none of the circumstances mentioned above be present.

People v. Torres, 128 Misc2d, 129, 488 NYS2d 358

Marital rape is rape committed against the wife, is impliedly acknowledged under R.A. 8353, also known as the Anti-Rape Law of 1997, which provides: 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: Provided, That the crime shall not be extinguished or the penalty shall not be abated if the marriage is void ab initio.1 Prior to the killing, Marissa has suffered for the last time the demonic act of Raul which prompted her to end such ordeal by killing the latter. Her act was a vindication to the grave offense committed against her. Such is a mitigating circumstance as provided in Article 13 of the Revised Penal Code, to wit: Art. 13. Mitigating circumstances: - The following are mitigating circumstances: xxx 5. That the act was committed in the immediate vindication of a grave offense to the one committing the felony (delito), his spouse, ascendants, descendants, legitimate, natural or adopted brothers or sisters, or relatives by affinity within the same degrees. x x x For vindication to be mitigating the following requisites must be present: 1. That there be a grave offense done to the one committing the felony, his spouse, ascendants, descendants, legitimate, natural or adopted brothers or sisters, or relatives by affinity within the same degrees; 2. That the felony is committed in vindication of such grave offense. A lapse of time is allowed between the vindication and the doing of the grave offense. It cannot be denied that both requisites are present in the case. Marital rape is a grave offense perpetrated against Mendez, added to that is the serious physical violence inflicted on the victim to the point of rendering her unconscious. The killing of Raul was committed in vindication of such grave offense and there was a considerable lapse of time before the killing. Summing it up, marital rape and beatings constitutes battery that affects Mendez state of mind.

No Conviction of Parricide I have also noted that the charge filed against Mendez is murder despite of the fact that Isidro is her husband. In People vs. Jumawan, the wife of the victim cannot be convicted of

Article 266-C, Republic Act No. 8353

parricide if charged only with murder. However, relationship was considered aggravating even if not alleged in the information.1 Mendez cannot be therefore charged of parricide. Thus, I am of the opinion that Marissa Mendez could be acquitted based on R.A. No. 9262 and that she could not be prosecuted anew on parricide since that will constitute double jeopardy.

Sincerely,

MDA Attorney General

People of the Philippines vs. Jumawan G.R. No. L-50905 September 23, 1982