97 N.J.

178 (1984)
478 A.2d 364
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. GLADYS KELLY, DEFENDANTAPPELLANT.
The Supreme Court of New Jersey.
Argued May 10, 1983.
Decided July 24, 1984.
*186 Sheri Woliver, Assistant Deputy Public Defender, argued the cause for appellant
(Joseph H. Rodriguez, Public Defender, attorney).
*187 Hilary L. Brunell, Assistant Prosecutor, argued the cause for respondent (George L.
Schneider, Essex County Prosecutor, attorney).
Elizabeth M. Schneider, a member of the New York bar, argued the cause for amici curiae
American Civil Liberties Union of New Jersey and New Jersey Coalition for Battered Women
(Frank Askin and Stephen M. Latimer, attorneys).
Nadine Taub submitted a brief on behalf of amicus curiae American Psychological Association
(Nadine Taub, attorney; Kit Kinports and Bruce J. Ennis, members of the District of
Columbia bar, and Donald N. Bersoff, a member of the Maryland bar, of counsel).
The opinion of the Court was delivered by WILENTZ, C.J.
The central issue before us is whether expert testimony about the battered-woman's
syndrome is admissible to help establish a claim of self-defense in a homicide case. The
question is one of first impression in this state. We hold, based on the limited record before
us (the State not having had a full opportunity to prove the contrary), that the batteredwoman's syndrome is an appropriate subject for expert testimony; that the experts'
conclusions, despite the relative newness of the field, are sufficiently reliable under New
Jersey's standards for scientific testimony; and that defendant's expert was sufficiently
qualified. Accordingly, we reverse and remand for a new trial. If on retrial after a full
examination of these issues the evidence continues to support these conclusions, the
expert's testimony on the battered-woman's syndrome shall be admitted as relevant to the
honesty and reasonableness of defendant's belief that deadly force was necessary to protect
her against death or serious bodily harm.
I.
On May 24, 1980, defendant, Gladys Kelly, stabbed her husband, Ernest, with a pair of
scissors. He died shortly thereafter at a nearby hospital. The couple had been married *188
for seven years, during which time Ernest had periodically attacked Gladys. According to Ms.
Kelly, he assaulted her that afternoon, and she stabbed him in self-defense, fearing that he
would kill her if she did not act.

Ms. Kelly was indicted for murder. At trial, she did not deny stabbing her husband, but
asserted that her action was in self-defense. To establish the requisite state of mind for her
self-defense claim, Ms. Kelly called Dr. Lois Veronen as an expert witness to testify about the
battered-woman's syndrome. After hearing a lengthy voir dire examination of Dr. Veronen,
the trial court ruled that expert testimony concerning the syndrome was inadmissible on the
self-defense issue under State v. Bess, 53 N.J. 10 (1968). Apparently the court believed that
the sole purpose of this testimony was to explain and justify defendant's perception of the
danger rather than to show the objective reasonableness of that perception.
Ms. Kelly was convicted of reckless manslaughter. In an unreported decision relying in part
on Bess, the Appellate Division affirmed the conviction. We granted certification, 91 N.J. 539
(1983), and now reverse.
Defendant raises six issues on appeal. She claims: (1) that the trial court erred in excluding
expert testimony on the battered-woman's syndrome; (2) that the trial court's charge on
provocation was erroneous; (3) that the trial court erred in excluding testimony that Mr.
Kelly had sexually assaulted one of Ms. Kelly's daughters; (4) that improper prosecutorial
conduct caused her to be denied a fair trial; (5) that the trial court erred in admitting
testimony about her earlier conspiracy conviction; and (6) that her sentence was excessive.
II.
The Kellys had a stormy marriage. Some of the details of their relationship, especially the
stabbing, are disputed. The following is Ms. Kelly's version of what happened a version that
the jury could have accepted and, if they had, a version *189 that would make the proffered
expert testimony not only relevant, but critical.
The day after the marriage, Mr. Kelly got drunk and knocked Ms. Kelly down. Although a
period of calm followed the initial attack, the next seven years were accompanied by
periodic and frequent beatings, sometimes as often as once a week. During the attacks,
which generally occurred when Mr. Kelly was drunk, he threatened to kill Ms. Kelly and to
cut off parts of her body if she tried to leave him. Mr. Kelly often moved out of the house
after an attack, later returning with a promise that he would change his ways. Until the day
of the homicide, only one of the attacks had taken place in public.
The day before the stabbing, Gladys and Ernest went shopping. They did not have enough
money to buy food for the entire week, so Ernest said he would give his wife more money
the next day.
The following morning he left for work. Ms. Kelly next saw her husband late that afternoon
at a friend's house. She had gone there with her daughter, Annette, to ask Ernest for money
to buy food. He told her to wait until they got home, and shortly thereafter the Kellys left.
After walking past several houses, Mr. Kelly, who was drunk, angrily asked "What the hell
did you come around here for?" He then grabbed the collar of her dress, and the two fell to
the ground. He choked her by pushing his fingers against her throat, punched or hit her
face, and bit her leg.
A crowd gathered on the street. Two men from the crowd separated them, just as Gladys
felt that she was "passing out" from being choked. Fearing that Annette had been pushed
around in the crowd, Gladys then left to look for her. Upon finding Annette, defendant
noticed that Annette had defendant's pocketbook. Gladys had dropped it during the fight.
Annette had retrieved it and gave her mother the pocketbook.

After finding her daughter, Ms. Kelly then observed Mr. Kelly running toward her with his
hands raised. Within seconds *190 he was right next to her. Unsure of whether he had
armed himself while she was looking for their daughter, and thinking that he had come back
to kill her, she grabbed a pair of scissors from her pocketbook. She tried to scare him away,
but instead stabbed him.[1]
III.
The central question in this case is whether the trial court erred in its exclusion of expert
testimony on the battered-woman's syndrome. That testimony was intended to explain
defendant's state of mind and bolster her claim of self-defense. We shall first examine the
nature of the battered-woman's syndrome and then consider the expert testimony proffered
in this case and its relevancy.
In the past decade social scientists and the legal community began to examine the forces
that generate and perpetuate wife beating and violence in the family.[2] What has been
revealed is *191 that the problem affects many more people than had been thought and
that the victims of the violence are not only the battered family members (almost always
either the wife or the children). There are also many other strangers to the family who feel
the devastating impact, often in the form of violence, of the psychological damage suffered
by the victims.
Due to the high incidence of unreported abuse (the FBI and other law enforcement experts
believe that wife abuse is the most unreported crime in the United States), estimates vary
of the number of American women who are beaten regularly by their husband, boyfriend, or
the dominant male figure in their lives. One recent estimate puts the number of women
beaten yearly at over one million. See California Advisory Comm'n on Family Law, Domestic
Violence app. F at 119 (1st report 1978). The state police statistics show more than 18,000
reported cases of domestic violence in New Jersey during the first nine months of 1983, in
83% of which the victim was female. It is clear that the American home, once assumed to
be the cornerstone of our society, is often a violent place.[3]
While common law notions that assigned an inferior status to women, and to wives in
particular, no longer represent the state *192 of the law as reflected in statutes and cases,
many commentators assert that a bias against battered women still exists, institutionalized
in the attitudes of law enforcement agencies unwilling to pursue or uninterested in pursuing
wife beating cases.[4] See Comment, The Battered Wife's Dilemma: Kill or be Killed, 32
Hastings L.J., 895, 897-911 (1981).
Another problem is the currency enjoyed by stereotypes and myths concerning the
characteristics of battered women and their reasons for staying in battering relationships.
Some popular misconceptions about battered women include the beliefs that they are
masochistic and actually enjoy their beatings, that they purposely provoke their husbands
into violent behavior, and, most critically, as we shall soon see, that women who remain in
battering relationships are free to leave their abusers at any time. See L. Walker, The
Battered Woman at 19-31 (1979).
As these cases so tragically suggest, not only do many women suffer physical abuse at the
hands of their mates, but a significant number of women kill (or are killed by) their
husbands. In 1978, murders between husband and wife or girlfriend and boyfriend
constituted 13% of all murders committed in the United States. Undoubtedly some of these

arose from battering incidents. Federal Bureau of Investigation, Crime in the United States
1978 (1978). Men were the victims in 48% of these killings. Id.
As the problem of battered women has begun to receive more attention, sociologists and
psychologists have begun to focus on the effects a sustained pattern of physical and
psychological *193 abuse can have on a woman. The effects of such abuse are what some
scientific observers have termed "the battered-woman's syndrome," a series of common
characteristics that appear in women who are abused physically and psychologically over an
extended period of time by the dominant male figure in their lives. Dr. Lenore Walker, a
prominent writer on the battered-woman's syndrome, defines the battered woman as one
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 relationships 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. [L. Walker, supra, at xv].
According to Dr. Walker, relationships characterized by physical abuse tend to develop
battering cycles. Violent behavior directed at the woman occurs in three distinct and
repetitive stages that vary both in duration and intensity depending on the individuals
involved. L. Walker, supra, at 55-70.
Phase one of the battering cycle is referred to as the "tension-building stage," during which
the battering male engages in minor battering incidents and verbal abuse while the woman,
beset by fear and tension, attempts to be as placating and passive as possible in order to
stave off more serious violence. Id. at 56-59.
Phase two of the battering cycle is the "acute battering incident." At some point during
phase one, the tension between the battered woman and the batterer becomes intolerable
and more serious violence inevitable. The triggering event that initiates phase two is most
often an internal or external event in the life of the battering male, but provocation for more
severe violence is sometimes provided by the woman who can no longer tolerate or control
her phase-one anger and anxiety. Id. at 59-65.
Phase three of the battering cycle is characterized by extreme contrition and loving behavior
on the part of the battering *194 male. During this period the man will often mix his pleas
for forgiveness and protestations of devotion with promises to seek professional help, to
stop drinking,[5] and to refrain from further violence. For some couples, this period of
relative calm may last as long as several months, but in a battering relationship the
affection and contrition of the man will eventually fade and phase one of the cycle will start
anew. Id. at 65-70.
The cyclical nature of battering behavior helps explain why more women simply do not leave
their abusers. The loving behavior demonstrated by the batterer during phase three
reinforces whatever hopes these women might have for their mate's reform and keeps them
bound to the relationship. R. Langley & R. Levy, Wife Beating: The Silent Crisis 112-14
(1977).
Some women may even perceive the battering cycle as normal, especially if they grew up in
a violent household. Battered Women, A Psychosociological Study of Domestic Violence 60

(M. Roy ed. 1977); D. Martin, Battered Wives, 60 (1981). Or they may simply not wish to
acknowledge the reality of their situation. T. Davidson, Conjugal Crime, at 50 (1978) ("The
middle-class battered wife's response to her situation tends to be withdrawal, silence and
denial ...").
Other women, however, become so demoralized and degraded by the fact that they cannot
predict or control the violence that they sink into a state of psychological paralysis and
become unable to take any action at all to improve or alter the situation. There is a
tendency in battered women to believe in the omnipotence *195 or strength of their
battering husbands and thus to feel that any attempt to resist them is hopeless. L. Walker,
supra, at 75.
In addition to these psychological impacts, external social and economic factors often make
it difficult for some women to extricate themselves from battering relationships. A woman
without independent financial resources who wishes to leave her husband often finds it
difficult to do so because of a lack of material and social resources.
Even with the progress of the last decade, women typically make less money and hold less
prestigious jobs than men, and are more responsible for child care. Thus, in a violent
confrontation where the first reaction might be to flee, women realize soon that there may
be no place to go. Moreover, the stigma that attaches to a woman who leaves the family
unit without her children undoubtedly acts as a further deterrent to moving out.
In addition, battered women, when they want to leave the relationship, are typically
unwilling to reach out and confide in their friends, family, or the police, either out of shame
and humiliation, fear of reprisal by their husband, or the feeling they will not be believed.
Dr. Walker and other commentators have identified several common personality traits of the
battered woman: low self-esteem, traditional beliefs about the home, the family, and the
female sex role, tremendous feelings of guilt that their marriages are failing, and the
tendency to accept responsibility for the batterer's actions. L. Walker, supra, at 35-36.
Finally, battered women are often hesitant to leave a battering relationship because, in
addition to their hope of reform on the part of their spouse, they harbor a deep concern
about the possible response leaving might provoke in their mates. They literally become
trapped by their own fear. Case histories are replete with instances in which a battered wife
left her husband *196 only to have him pursue her and subject her to an even more brutal
attack. D. Martin, supra, at 76-79.
The combination of all these symptoms resulting from sustained psychological and physical
trauma compounded by aggravating social and economic factors constitutes the batteredwoman's syndrome. Only by understanding these unique pressures that force battered
women to remain with their mates, despite their long-standing and reasonable fear of
severe bodily harm and the isolation that being a battered woman creates, can a battered
woman's state of mind be accurately and fairly understood.
The voir dire testimony of Dr. Veronen, sought to be introduced by defendant Gladys Kelly,
conformed essentially to this outline of the battered-woman's syndrome. Dr. Vernonen, after
establishing her credentials, described in general terms the component parts of the
battered-woman's syndrome and its effects on a woman's physical and mental health. The
witness then documented, based on her own considerable experience in counseling,
treating, and studying battered women, and her familiarity with the work of others in the

field, the feelings of anxiety, self-blame, isolation, and, above all, fear that plagues these
women and leaves them prey to a psychological paralysis that hinders their ability to break
free or seek help.
Dr. Veronen stated that the problems of battered women are aggravated by a lack of
understanding among the general public concerning both the prevalence of violence against
women and the nature of battering relationships. She cited several myths concerning
battered women that enjoy popular acceptance primarily that such women are masochistic
and enjoy the abuse they receive and that they are free to leave their husbands but choose
not to.
Dr. Veronen described the various psychological tests and examinations she had performed
in connection with her independent research. These tests and their methodology, including
their interpretation, are, according to Dr. Veronen, widely *197 accepted by clinical
psychologists. Applying this methodology to defendant (who was subjected to all of the
tests, including a five-hour interview), Dr. Veronen concluded that defendant was a battered
woman and subject to the battered-woman's syndrome.
In addition, Dr. Veronen was prepared to testify as to how, as a battered woman, Gladys
Kelly perceived her situation at the time of the stabbing, and why, in her opinion, defendant
did not leave her husband despite the constant beatings she endured.
IV.
Whether expert testimony on the battered-woman's syndrome should be admitted in this
case depends on whether it is relevant to defendant's claim of self-defense, and, in any
event, on whether the proffer meets the standards for admission of expert testimony in this
state. We examine first the law of self-defense and consider whether the expert testimony is
relevant.
The present rules governing the use of force in self-defense are set out in the justification
section of the Code of Criminal Justice. The use of force against another in self-defense is
justifiable "when the actor reasonably believes that such force is immediately necessary for
the purpose of protecting himself against the use of unlawful force by such other person on
the present occasion." N.J.S.A. 2C:3-4(a). Further limitations exist when deadly force is
used in self-defense. The use of such deadly force is not justifiable
unless the actor reasonably believes that such force is necessary to protect himself against
death or serious bodily harm.... [N.J.S.A. 2C:3-4(b)(2)].
These principles codify decades of prior case law development of the elements of selfdefense.[6] We focus here on the critical *198 requirement that the actor reasonably
believe deadly force to be necessary to prevent death or serious bodily harm, for the proffer
of expert testimony was argued to be relevant on this point.
Self-defense exonerates a person who kills in the reasonable belief that such action was
necessary to prevent his or her death or serious injury, even though this belief was later
proven mistaken. "Detached reflection cannot be demanded in the presence of an uplifted
knife," Justice Holmes aptly said, Brown v. United States, 256 U.S. 335, 343, 41 S. Ct. 501,
502, 65 L. Ed. 961, 963 (1921); and the law accordingly requires only a reasonable, not

necessarily a correct, judgment. See State v. Hipplewith, 33 N.J. 300, 316-17 (1960); State
v. Mount, 73 N.J.L. 582, 583 (E. & A. 1905); State v. Lionetti, 93 N.J.L. 24 (Sup.Ct. 1919).
While it is not imperative that actual necessity exist, a valid plea of self-defense will not lie
absent an actual (that is, honest) belief on the part of the defendant in the necessity of
using force. While no case in New Jersey has addressed the point directly, the privilege of
self-defense does not exist where the defendant's action is not prompted by a belief in its
necessity: "He has no defense when he intentionally kills his enemy in complete ignorance
of the fact that his enemy, when killed, was about to launch a deadly attack upon him." W.
LaFave & A. Scott, Criminal Law 53, at 394 (1972).[7] The intent of the *199 drafters of
the present Code was that a necessity to act should not give rise to a meritorious plea of
self-defense where the defendant was unaware of that necessity. Final Report of the New
Jersey Criminal Law Revision Commission, Vol. II: Commentary, at 83 (1971) [hereinafter
cited as Commission Report]. Ultimately, of course, it is for the jury to determine if the
defendant actually did believe in the necessity of acting with deadly force to prevent an
imminent, grave attack. See, e.g., State v. Fair, 45 N.J. 77, 93 (1965).
Honesty alone, however, does not suffice. A defendant claiming the privilege of self-defense
must also establish that her belief in the necessity to use force was reasonable. See, e.g.,
State v. Mellillo, 77 N.J.L. 505 (E. & A. 1908); State v. Mark Len, 108 N.J.L. 439, 440
(Sup.Ct. 1932). As originally proposed, the new Code of Criminal Justice would have
eliminated the reasonableness requirement, allowing self-defense whenever the defendant
honestly believed in the imminent need to act. See Commission Report, supra, Vol. I, at 2627 (proposed Section 2C:3-4), and Vol. II: Commentary, at 82-83. This proposed change in
the law was not accepted by the Legislature. N.J.S.A. 2C:3-4 as finally enacted retains the
requirement that the defendant's belief be reasonable.[8]
Thus, even when the defendant's belief in the need to kill in self-defense is conceded to be
sincere, if it is found to have been unreasonable under the circumstances, such a belief
cannot be held to constitute complete justification for a homicide.[9] As *200 with the
determination of the existence of the defendant's belief, the question of the reasonableness
of this belief "is to be determined by the jury, not the defendant, in light of the
circumstances existing at the time of the homicide." State v. Hipplewith, supra, 33 N.J. at
316; see State v. Bess, supra, 53 N.J. at 16; State v. Fair, supra, 45 N.J. at 93; State v.
Jayson, 94 N.J.L. 467, 471 (E. & A. 1920). It is perhaps worth emphasizing here that for
defendant to prevail, the jury need not find beyond a reasonable doubt that the defendant's
belief was honest and reasonable. Rather, if any evidence raising the issue of self-defense is
adduced, either in the State's or the defendant's case, then the jury must be instructed that
the State is required to prove beyond a reasonable doubt that the self-defense claim does
not accord with the facts; acquittal is required if there remains a reasonable doubt whether
the defendant acted in self-defense. State v. Abbott, 36 N.J. 63, 72 (1961). See generally
State v. Chiarello, 69 N.J. Super. 479 (App.Div. 1961).
With the foregoing standards in mind, we turn to an examination of the relevance of the
proffered expert testimony to Gladys Kelly's claim of self-defense.
V.
Gladys Kelly claims that she stabbed her husband in self-defense, believing he was about to
kill her. The gist of the State's case was that Gladys Kelly was the aggressor, that she
consciously intended to kill her husband, and that she certainly was not acting in selfdefense.

The credibility of Gladys Kelly is a critical issue in this case. If the jury does not believe
Gladys Kelly's account, it *201 cannot find she acted in self-defense. The expert testimony
offered was directly relevant to one of the critical elements of that account, namely, what
Gladys Kelly believed at the time of the stabbing, and was thus material to establish the
honesty of her stated belief that she was in imminent danger of death.[10]
The State argues that there is no need to bolster defendant's credibility with expert
testimony concerning the battering because the State did not attempt to undermine
defendant's testimony concerning her prior mistreatment at the hands of her husband. The
State's claim is simply untrue. In her summation, the prosecutor suggested that had Ernest
Kelly lived, he might have told a different story from the one Gladys told. (In its brief, the
State argues that evidence in the case suggests that Gladys Kelly's claims of abuse could
have been contradicted by her husband.) This is obviously a direct attempt to undermine
defendant's testimony about her prior mistreatment.
Moreover, defendant's credibility was also attacked in other ways. Gladys Kelly's prior
conviction for conspiracy to commit robbery was admitted into evidence for the express
purpose of impeachment, even though this conviction had occurred nine years before the
stabbing. Other questions, about Gladys Kelly's use of alcohol and drugs and about her
premarital sexual conduct, were clearly efforts to impeach credibility.
As can be seen from our discussion of the expert testimony, Dr. Veronen would have
bolstered Gladys Kelly's credibility. *202 Specifically, by showing that her experience,
although concededly difficult to comprehend, was common to that of other women who had
been in similarly abusive relationships, Dr. Veronen would have helped the jury understand
that Gladys Kelly could have honestly feared that she would suffer serious bodily harm from
her husband's attacks, yet still remain with him. This, in turn, would support Ms. Kelly's
testimony about her state of mind (that is, that she honestly feared serious bodily harm) at
the time of the stabbing.
On the facts in this case, we find that the expert testimony was relevant to Gladys Kelly's
state of mind, namely, it was admissible to show she honestly believed she was in imminent
danger of death. Ibn-Tamas v. United States, 407 A.2d 626 (D.C. 1979) (on remand, trial
court excluded expert testimony on battered-woman's syndrome; the Court of Appeals
affirmed the exclusion of the testimony, holding that the trial court was not compelled to
admit the evidence; 455 A.2d 893 (D.C. 1983)); Hawthorne v. State, 408 So. 2d 801 (Fla.
Dist. Ct. App. 1982), petition for review denied, 415 So. 2d 1361 (Fla. 1982); Smith v.
State, 247 Ga. 612, 277 S.E.2d 678 (1981); State v. Anaya, 438 A.2d 892 (Me. 1981);
State v. Allery, 101 Wash. 2d 591, 682 P.2d 312 (Wash.Sup.Ct. 1984); see also People v.
Minnis, 118 Ill. App.3d 345, 74 Ill.Dec. 179, 455 N.E.2d 209 (1983) (expert testimony on
battered-woman's syndrome admissible to explain reasons why defendant dismembered
body of victim/husband where prosecution introduced fact of dismemberment as
substantive evidence of guilt). But see State v. Thomas, 66 Ohio St.2d 518, 423 N.E.2d 137
(1981).[11] Moreover, we *203 find that because this testimony was central to the
defendant's claim of self-defense, its exclusion, if otherwise admissible, cannot be held to be
harmless error.[12]
*204 We also find the expert testimony relevant to the reasonableness of defendant's belief
that she was in imminent danger of death or serious injury. We do not mean that the
expert's testimony could be used to show that it was understandable that a battered woman
might believe that her life was in danger when indeed it was not and when a reasonable
person would not have so believed, for admission for that purpose would clearly violate the

rule set forth in State v. Bess, supra, 53 N.J. 10. Expert testimony in that direction would be
relevant solely to the honesty of defendant's belief, not its objective reasonableness. Rather,
our conclusion is that the expert's testimony, if accepted by the jury, would have aided it in
determining whether, under the circumstances, a reasonable person would have believed
there was imminent danger to her life.
At the heart of the claim of self-defense was defendant's story that she had been repeatedly
subjected to "beatings" over the course of her marriage. While defendant's testimony was
somewhat lacking in detail, a juror could infer from the use of the word "beatings," as well
as the detail given concerning some of these events (the choking, the biting, the use of
fists), *205 that these physical assaults posed a risk of serious injury or death. When that
regular pattern of serious physical abuse is combined with defendant's claim that the
decedent sometimes threatened to kill her, defendant's statement that on this occasion she
thought she might be killed when she saw Mr. Kelly running toward her could be found to
reflect a reasonable fear; that is, it could so be found if the jury believed Gladys Kelly's
story of the prior beatings, if it believed her story of the prior threats, and, of course, if it
believed her story of the events of that particular day.
The crucial issue of fact on which this expert's testimony would bear is why, given such
allegedly severe and constant beatings, combined with threats to kill, defendant had not
long ago left decedent. Whether raised by the prosecutor as a factual issue or not, our own
common knowledge tells us that most of us, including the ordinary juror, would ask himself
or herself just such a question. And our knowledge is bolstered by the experts' knowledge,
for the experts point out that one of the common myths, apparently believed by most
people, is that battered wives are free to leave. To some, this misconception is followed by
the observation that the battered wife is masochistic, proven by her refusal to leave despite
the severe beatings; to others, however, the fact that the battered wife stays on
unquestionably suggests that the "beatings" could not have been too bad for if they had
been, she certainly would have left. The expert could clear up these myths, by explaining
that one of the common characteristics of a battered wife is her inability to leave despite
such constant beatings; her "learned helplessness"; her lack of anywhere to go; her feeling
that if she tried to leave, she would be subjected to even more merciless treatment; her
belief in the omnipotence of her battering husband; and sometimes her hope that her
husband will change his ways.
Unfortunately, in this case the State reinforced the myths about battered women. On crossexamination, when discussing an occasion when Mr. Kelly temporarily moved out of the
*206 house, the State repeatedly asked Ms. Kelly: "You wanted him back, didn't you?" The
implication was clear: domestic life could not have been too bad if she wanted him back. In
its closing argument, the State trivialized the severity of the beatings, saying:
I'm not going to say they happened or they didn't happen, but life isn't pretty. Life is not a
bowl of cherries. We each and every person who takes a breath has problems. Defense
counsel says bruised and battered. Is there any one of us who hasn't been battered by life
in some manner or means?
Even had the State not taken this approach, however, expert testimony would be essential
to rebut the general misconceptions regarding battered women.
The difficulty with the expert's testimony is that it sounds as if an expert is giving
knowledge to a jury about something the jury knows as well as anyone else, namely, the
reasonableness of a person's fear of imminent serious danger. That is not at all, however,

what this testimony is directly aimed at. It is aimed at an area where the purported
common knowledge of the jury may be very much mistaken, an area where jurors' logic,
drawn from their own experience, may lead to a wholly incorrect conclusion, an area where
expert knowledge would enable the jurors to disregard their prior conclusions as being
common myths rather than common knowledge. After hearing the expert, instead of saying
Gladys Kelly could not have been beaten up so badly for if she had, she certainly would
have left, the jury could conclude that her failure to leave was very much part and parcel of
her life as a battered wife. The jury could conclude that instead of casting doubt on the
accuracy of her testimony about the severity and frequency of prior beatings, her failure to
leave actually reinforced her credibility.
Since a retrial is necessary, we think it advisable to indicate the limit of the expert's
testimony on this issue of reasonableness. It would not be proper for the expert to express
the opinion that defendant's belief on that day was reasonable, not because this is the
ultimate issue, but because the area of expert knowledge relates, in this regard, to the
reasons for *207 defendant's failure to leave her husband. Either the jury accepts or rejects
that explanation and, based on that, credits defendant's stories about the beatings she
suffered. No expert is needed, however, once the jury has made up its mind on those
issues, to tell the jury the logical conclusion, namely, that a person who has in fact been
severely and continuously beaten might very well reasonably fear that the imminent beating
she was about to suffer could be either life-threatening or pose a risk of serious injury. What
the expert could state was that defendant had the battered-woman's syndrome, and could
explain that syndrome in detail, relating its characteristics to defendant, but only to enable
the jury better to determine the honesty and reasonableness of defendant's belief.
Depending on its content, the expert's testimony might also enable the jury to find that the
battered wife, because of the prior beatings, numerous beatings, as often as once a week,
for seven years, from the day they were married to the day he died, is particularly able to
predict accurately the likely extent of violence in any attack on her. That conclusion could
significantly affect the jury's evaluation of the reasonableness of defendant's fear for her
life.[13]
*208 VI.
Having determined that testimony about the battered-woman's syndrome is relevant, we
now consider whether Dr. Veronen's testimony satisfies the limitations placed on expert
testimony by Evidence Rule 56(2) and by applicable case law. See State v. Cavallo, 88 N.J.
508, 516 (1982). Evidence Rule 56(2) provides that an expert may testify "as to matters
requiring scientific, technical or other specialized knowledge if such testimony will assist the
trier of fact to understand the evidence or determine a fact in issue." In effect, this Rule
imposes three basic requirements for the admission of expert testimony: (1) the intended
testimony must concern a subject matter that is beyond the ken of the average juror; (2)
the field testified to must be at a state of the art such that an expert's testimony could be
sufficiently reliable; and (3) the witness must have sufficient expertise to offer the intended
testimony. See N.J. Rules of Evidence (Anno. 1984), Comment 5 to Evid.R. 56.[14]
*209 The primary justification for permitting expert testimony is that the average juror is
relatively helpless in dealing with a subject that is not a matter of common knowledge.
Angel v. Rand Express Lines, Inc., 66 N.J. Super. 77, 85 (App.Div. 1961). Thus, the
proponent of expert testimony must demonstrate that testimony would "enhance the
knowledge and understanding of lay jurors with respect to other testimony of a special
nature normally outside of the usual lay sphere." State v. Griffin, 120 N.J. Super. 13, 20
(App.Div. 1972).

As previously discussed, a battering relationship embodies psychological and societal

features that are not well understood by lay observers. Indeed, these features are subject
to a large group of myths and stereotypes. It is clear that this subject is beyond the ken of
the average juror and thus is suitable for explanation through expert testimony.[15]
The second requirement that must be met before expert testimony is permitted is a showing
that the proposed expert's testimony would be reliable. The rationale for this requirement is
that expert testimony seeks to assist the trier of fact. An expert opinion that is not reliable
is of no assistance to anyone.
To meet the requirement that the expert's testimony be sufficiently reliable, defense counsel
must show that the testimony satisfies New Jersey's standard of acceptability for scientific
*210 evidence. State v. Cavallo, supra, 88 N.J. at 516-17 (citing State v. Hurd, 86 N.J. 525,
536 (1981)). The technique or mode of analysis used by the expert must have a sufficient
scientific basis to produce uniform and reasonably reliable results so as to contribute
materially to the ascertainment of the truth. Id. 88 N.J. at 517 (citing State v. Cary, 49 N.J.
343, 352 (1967)); State v. Hurd, supra, 86 N.J. at 536.
In a relatively new field of research, such as that of the battered-woman's syndrome, there
are three ways a proponent of scientific evidence can prove its general acceptance and
thereby its reliability: (1) by expert testimony as to the general acceptance, among those in
the profession, of the premises on which the proffered expert witness based his or her
analysis; (2) by authoritative scientific and legal writings indicating that the scientific
community accepts the premises underlying the proffered testimony; and (3) by judicial
opinions that indicate the expert's premises have gained general acceptance. State v.
Cavallo, 88 N.J. at 521. Applying those methods to the case at bar, we note that judicial
opinions thus far have been split concerning the scientific acceptability of the syndrome and
the methodology used by the researchers in this area.[16] On the other hand, Dr. Veronen,
the proffered expert, testified that the battered-woman's syndrome is acknowledged and
accepted by practitioners and professors in the fields of psychology and psychiatry. Dr.
Veronen also brought to the court's attention the findings of several researchers who have
published reports confirming the presence of the battered-woman's syndrome. She further
noted that the battered-woman's syndrome has *211 been discussed at several symposia
since 1977, sponsored by such organizations as the Association for the Advancement of
Behavior Therapy and the American Sociological Association.[17] Briefs submitted to this
Court indicate that there are at least five books and almost seventy scientific articles and
papers about the battered-woman's syndrome.
Thus, the record before us reveals that the battered woman's syndrome has a sufficient
scientific basis to produce uniform and reasonably reliable results as required by State v.
Cavallo, and Evid.R. 56(2). The numerous books, articles and papers referred to earlier
indicate the presence of a growing field of study and research about the battered woman's
syndrome and recognition of the syndrome in the scientific field. However, while the record
before us could require such a ruling, we refrain from conclusively ruling that Dr. Veronen's
proffered testimony about the battered-woman's syndrome would satisfy New Jersey's
standard of acceptability for scientific evidence. This is because the State was not given a
full opportunity in the trial court to question Dr. Veronen's methodology in studying battered
women or her implicit assertion that the battered-woman's syndrome has been accepted by
the relevant scientific community.
Finally, before expert testimony may be presented, there must be a showing that the
proffered expert witness has sufficient expertise to offer the intended testimony. State v.

Cavallo, supra, 88 N.J. at 516. In this case, it appears that Dr. Veronen is qualified to testify
as an expert. She has a Ph.D. in clinical psychology, as well as an M.A. from North Texas
State. She is a member of four professional associations. As of 1980, when she was offered
as a witness at Ms. Kelly's trial, Dr. *212 Veronen had been an assistant professor at the
medical school at the University of South Carolina for three years. Twenty percent of her
time at the Universty was spent teaching, some of it on topics related to the batteredwoman's syndrome, and 80% of her time was spent conducting research, most of it on the
psychological reaction of women who are victims of violent assaults. She had spent two
years studying the battered-woman's syndrome, with the goal of changing the patterns of
fear and anxiety of battered women. Dr. Veronen is a clinical psychologist, licensed to
practice in two states, and in that capacity had, by 1980, treated approximately thirty
battered women and seen seventy others. Because these thirty women have several
important characteristics in common with Ms. Kelly (the thirty women had all been in
battering relationships for more than two years, were beaten more than six times, and were
within the same age group as Ms. Kelly), Dr. Veronen is familiar with battered women who
share Ms. Kelly's background.[18]
We have concluded that the appropriate disposal of this appeal is to reverse and remand for
a new trial. On the record before us, although the trial court did not rule on the matter, it
appears that Dr. Veronen qualified as an expert, and that the degree of reliability of the
conclusions in this field of expertise was sufficient to allow their admission. Alternatively we
could retain jurisdiction and remand, solely for the purpose of allowing the prosecutor to
continue cross-examination of Dr. *213 Veronen as well as to introduce such contrary
testimony as the prosecutor sees fit. The transcript discloses that the prosecutor had
concluded her cross-examination on Dr. Veronen's qualifications but had never been given
the opportunity fully to cross-examine the expert on the reliability of this developing field of
scientific knowledge. The possibility of such further cross-examination was foreclosed by the
trial court when it ruled evidence of the syndrome was inadmissible because irrelevant.
Furthermore, as noted above, the trial court never actually ruled whether Dr. Veronen
qualified as an expert, finding this unnecessary because of his holding that the testimony
would not be admissible under State v. Bess, supra, 53 N.J. 10, even if she was an expert.
[19]
*214 Our conclusion, reversing and ordering a new trial, is based on the apparent
unfairness in this case of the kind of limited remand that we ordered in State v. Sikora,
supra, 44 N.J. at 465-66, 474 (Weintraub, C.J., concurring). Here a limited remand would be
to the trial court to exercise its discretion, a very broad discretion, on the issue of the
expert's qualifications and the reliability of the knowledge proffered. We do not know what
conflicting expert testimony the prosecution would offer, but the entire scenario of a limited
remand when the defendant has already been convicted and when the court whose
discretion will largely determine the outcome of the limited remand has already excluded
the evidence, with prosecution experts who might not have been called at the original trial,
seems an artificial trial setting, and significantly less favorable to defendant than what might
have occurred if the trial court had had the benefit of the views expressed herein at the
time. Obviously there is no way to recreate the precise situation of the trial, but all things
considered, we think fairness requires a new trial where all of these matters may be
reconsidered.
VII.
Apart from her claims concerning the exclusion of the expert testimony, the defendant
raises five additional issues on appeal. Although our disposition of this case makes it

unnecessary to *215 consider these issues, we dispose of them briefly to assist the trial
court in the event they surface again at the new trial.
A.
During trial, defendant sought to introduce testimony from Edith Cannon, defendant's 17year-old daughter by another marriage, to the effect that shortly before the fatal encounter
she had told her mother that Ernest Kelly had been subjecting her to physical and sexual
abuse since age 13. The defense asserted that this evidence of Glady Kelly's knowledge of
the victim's prior aggressive behavior demonstrated that her fear of the decedent was
justifiable and that her subsequent behavior was reasonable. See McCormick on Evidence
249, at 588-89 (E. Cleary ed., 2d Ed. 1972); VI J. Wigmore Evidence 1789, at 314
(Chad.Rev.Ed. 1972).
The trial court, however, excluded this evidence in reliance upon Evidence Rule 4,[20]
stating:
We will get involved with trials within trials trying cases of sexual aggression. That daughter
was not present at the time of the alleged stabbing by her mother of her stepfather. There
has been no evidence indicating that the safety of the daughter was threatened on May 24.
Whether the probative value of a particular piece of evidence is outweighed by its potential
prejudice is a decision normally left to the discretion of the trial court; and this "discretion is
a broad one." State v. Sands, 76 N.J. 127 (1978); see also Evid.R. 4, Comment 1.
If the only relevance of this testimony was to reinforce the proof that defendant feared the
decedent for good reason, its limited added force might very well be outweighed *216 by
the obvious prejudice injected into the case in the form of proof that decedent sexually
abused his daughter. The testimony, however, has further relevance in that it very strongly
supports the conclusion that the Kelly household was the scene of the batterings that would
produce the battered-woman's syndrome. As our Legislature noted in its findings included in
the Prevention of Domestic Violence Act, "there is a positive correlation between spouse
abuse and child abuse...." N.J.S.A. 2C:25-2. Given the critical importance of the proof of the
battered-woman's syndrome in this case, we are inclined to believe that, on balance, such
testimony should have been admitted. We are aware that in the context of an appellate
review, a decision of a trial court must stand unless it can be shown that the trial court
palpably abused its discretion, that is, that its finding was so wide of the mark that a
manifest denial of justice resulted. State v. Carter, 91 N.J. 86, 106 (1982); State v. Boratto,
80 N.J. 506 (1979); State v. Rogers, 19 N.J. 218 (1955); Hill v. Newman, 126 N.J. Super.
557 (App.Div. 1973), certif. den., 64 N.J. 508 (1974); Evid.R. 4, Comment 2. Nevertheless,
absent any significant new factor bearing on this issue, the trial court on remand should
allow the testimony, giving such appropriate instruction to the jury as will minimize the
possibility of its prejudicial impact.
B.
Defense counsel also contends that the trial court erred in allowing the State to question
defendant about her earlier conviction. Counsel asserts that the trial court "lost sight" of the
grounds for admitting defendant's prior record. This claim is without merit.

Ms. Kelly was convicted of conspiracy to commit robbery in 1971, and over defense
counsel's objection the trial court ruled that evidence of the earlier conviction was
admissible. During cross-examination, the prosecution questioned Ms. Kelly about her
earlier conviction:
*217 Q. Mrs. Kelly, have you ever been convicted of a crime? A. Yes, once. Q. What were
you convicted of? A. Conspiracy to robbery with some two other peoples was involved Q.
You were convicted of conspiracy to commit robbery? A. Yes. Q. When was that? A. Nine
years ago, I think. Q. 1971? A. Something like that. I was given three years probation....
That was the only time during the two week trial that evidence as to Ms. Kelly's prior
conviction was elicited or referred to.
Prior convictions ordinarily may be used to impeach the defendant's credibility. State v.
Sands, 76 N.J. 127, 146 (1978); N.J.S.A. 2A:81-12. The trial court, recognizing that,
instructed the jury as to the limited purpose for which it could consider Ms. Kelly's
conspiracy conviction:
The only reason you heard that testimony was not because if you find that she committed a
crime in 1971, therefore she must have committed this crime with which she is charged.
The only reason you may use that if you wish to is to affect her believability as a witness.
That is the sole and exclusive purpose of hearing that and using that evidence.
There was no error on this point.[21]
C.
We reject defendant's contention that the prosecutor's conduct denied the defendant her
right to receive a fair trial. The defense claims that the prosecutor improperly used closing
arguments to glorify her function as a prosecutor and make an inflammatory appeal to the
jury, and used her opening statement *218 to suggest that Ms. Kelly's indictment was
evidence of guilt. These complaints were not raised at trial, and thus need not be dealt with
in the same way as those raised by a timely challenge. State v. Macon, 57 N.J. 325, 333
(1971). We note, however, that the trial court properly instructed the jury that the
indictment is not proof of guilt, and our review of the closing statement does not reveal
plain error. R.2:10-2. The prosecutor neither exalted her role at length, nor disparaged the
role of defense counsel. See State v. Thornton, 38 N.J. 380 (1962), cert. denied, 374 U.S.
816, 83 S. Ct. 1710, 10 L. Ed. 2d 1039 (1963). Nor did the prosecutor's closing remarks
exceed the wide latitude permitted counsel during summation. See State v. Mayberry, 52
N.J. 413, 437 (1968), cert. denied, 393 U.S. 1043, 89 S. Ct. 673, 21 L. Ed. 2d 593 (1969).
Defendant also claims that the prosecutor was too aggressive, asked improper questions
about Ms. Kelly's personal life in an attempt to cast aspersions on defendant's moral
character, and made too many objections, most of which were overruled. While not
condoning all aspects of the prosecutor's conduct, we conclude that, in the context of the
entire trial, it did not cause defendant to be denied a fair trial. See State v. Tirone, 64 N.J.
222, 229 (1974). There were sufficient facts on which the jury could base its finding of guilt
on the reckless manslaughter charge. In light of the entire record, any impropriety that did
occur was harmless and incapable of producing an unjust result. See State v. LaPorte, 62
N.J. 312 (1973); R. 2:10-2.

D.
The defendant argues that the charge to the jury regarding provocation as an element of
manslaughter was in error because it did not state that reasonable and sufficient
provocation may arise from a course of ill treatment. We agree that the instructions on
provocation were deficient. It is well settled that when there is evidence of prior physical
abuse *219 of defendant by the decedent, the jury must be told that a finding of
provocation may be premised on "a course of ill treatment which can induce a homicidal
response in a person of ordinary firmness and which the accused reasonably believes is
likely to continue." State v. Guido, 40 N.J. 191, 211 (1963). The jury must be instructed "to
consider not only decedent's conduct and threats that night, but also his prior mistreatment
of defendant." State v. Lamb, 71 N.J. 545, 551 (1976). On retrial, this aspect of the trial
court's instruction should be changed.[22]
E.
Ms. Kelly also contends that the sentence imposed five years in state prison was excessive.
She asserts that imprisonment would result in a serious injustice that overrides the need to
deter such conduct by others, N.J.S.A. 2C:44-1(d), and that she should instead be granted
probation or entry into a release program. She cites several mitigating factors, including her
abuse at the hands of Mr. Kelly and her children's need to have their mother at home.
The presumptive sentence for a second degree crime is seven years. N.J.S.A. 2C:44-1(f)(1).
In ordering a sentence of five years, the trial court agreed with defendant that there was a
preponderance of mitigating factors, allowing it to sentence *220 her to a minimum term for
a second degree crime. N.J.S.A. 2C:43-6(a)(2); 2C:44-1(f)(1). See State v. Roth, 95 N.J.
334, 359, 471 A.2d 370 (1984). Although we appreciate the hardship that would result from
defendant's incarceration, she is not the truly extraordinary defendant whose imprisonment
would represent the "serious injustice" envisioned by the Criminal Code. Roth, supra, 95
N.J. at 358.[23]
HANDLER, J., concurring in part and dissenting in part.
The record in this case persuasively establishes the professional acceptance and scientific
reliability of the clinical psychological condition referred to as the "battered women's
syndrome." Therefore, I would rule that expert evidence of the battered women's syndrome
is both competent and relevant as related to the defense of self-defense. Consequently, no
further expert testimony or evidence concerning the admissibility *221 of this doctrine
should be required on a retrial of this case. I would also allow into evidence on the retrial
the testimony of defendant's expert that defendant was suffering battered women's
syndrome when she killed her husband. That testimony was unquestionably relevant to
defendant's claim of self-defense. In addition, the evidence in this case indicates that
repeated sexual and physical victimization of a woman's children may, in conjunction with
her own abused treatment, contribute to the development of battered women's syndrome. I
therefore concur in the majority's determination to allow on a retrial evidence of the
decedent's sexual assaults upon defendant's daughter as related to the issue of the battered
women's syndrome and defendant's defense of self-defense.
The Court in this case takes a major stride in recognizing the scientific authenticity of the
battered women's syndrome and its legal and factual significance in the trial of certain
criminal cases. My difference with the Court is quite narrow. I believe that defendant Gladys
Kelly has demonstrated at her trial by sufficient expert evidence her entitlement to the use

of the battered women's syndrome in connection with her defense of self-defense. I would
therefore not require this issue the admissibility of the battered women's syndrome to be
tried again.
I
This Court's opinion presents a cogent and thorough explanation of the perplexing and
tragic condition of the battered women's syndrome. This condition refers to a congeries of
common traits in women who are subjected to prolonged physical and psychological abuse
by their mates. Women suffering battered women's syndrome have low self-esteem, strong
feelings of personal guilt over their failing marriages, and self-blame for the violence that
their mates inflict upon them. Ante at 195-196, citing L. Walker, The Battered Woman 35-36
(1979) (Walker). Typically, such battered women are dominated *222 by unshakeable fear,
which often traps them into remaining with their battering mates. Id., citing D. Martin,
Battered Wives 76-79 (1981) (Martin). Victims of battered women's syndrome frequently
become so demoralized and degraded that they lapse into a psychological torpor, a state of
"learned helplessness." Ante at 194-195, citing Walker, supra, at 75.
The relationships that typify the syndrome usually involve cyclical behavior. One recurrent
phase of the cycle includes a period of contrite behavior by the batterer, which reinforces
the illusion of these victimized women that their mates will change and reform, further
binding them to the relationship. Ante at 193, citing Walker, supra, at 55-70; R. Langley &
R. Levy, Wife Beating: The Silent Crisis 112-14 (1977). Many battered women perceive the
battering cycle as commonplace, and refuse to acknowledge the abnormality of their plight.
Ante at 194, citing T. Davidson, Conjugal Crime (1978); Battered Women, A
Psychosociological Study of Domestic Violence 60 (M. Roy ed. 1977); Martin, supra, at 60.
The Court's opinion explains that the abusive pattern that characterizes this syndrome is a
phenomenon that puzzles and confuses the untutored lay person. The violence common to
the syndrome is the subject of widespread ignorance and misinformation. It has spawned
myths as to its causes and distorted stereotypes of its victims. Ante at 192. Some common
misconceptions about battered women include the beliefs that they are masochistic and
actually enjoy their physical and psychological suffering, that they purposely provoke their
mates into violent behavior and, most critically, that women who remain in battering
relationships are free to leave their abusers at any time. Id., citing Walker, supra, at 19-31.
This Court's enlightened exposition of the battered women's syndrome, drawn from the
record in this case lays a firm foundation for a determination of the admissibility of expert
testimony relating to the syndrome in the trial of particular *223 criminal causes under the
Code of Criminal Justice, N.J.S.A. 2C:1-1 et seq., and our rules of evidence.
II
Evidence Rule 56(2) provides that an expert may testify "as to matters requiring scientific,
technical or other specialized knowledge if such testimony will assist the trier of fact to
understand the evidence or determine a fact in issue." In effect, this rule imposes three
basic requirements for the admission of expert testimony: (1) the intended testimony must
concern a subject matter that is beyond the ken of the average juror; (2) the field testified
to must be at a state of the art such that an expert's testimony could be sufficiently reliable;
and (3) the witness must have sufficient expertise to offer the intended testimony. See N.J.
Rules of Evidence (Anno. 1984), Comment 5 to Evid.R. 56; State v. Cavallo, 88 N.J. 508
(1982); State v. Hurd, 86 N.J. 525 (1981).

The first criterion for the admission of expert testimony under Evidence Rule 56(2) is that
the subject matter is fully comprehended primarily by experts, persons who have special
training and education in the particular field. Correlatively, the subject matter ordinarily falls
beyond the common understanding of persons of average intelligence and education. In this
case, it has been firmly established that the battered women's syndrome is a subject that is
properly within the special comprehension of experts. Also, as the record abundantly
demonstrates, the battered women's syndrome is a subject that is not fully understood by
the average person. Consequently, it is an appropriate matter for elucidation through expert
testimony. State v. Griffin, 120 N.J. Super. 13, 29 (App. Div. 1972), certif. den. 62 N.J. 73
(1972); Nesta v. Meyer, 100 N.J. Super. 434 (App.Div. 1968), cited in State v. Cavallo,
supra, 88 N.J. at 518; Angel v. Rand Express Lines, Inc., 66 N.J. Super. 77, 85 (App.Div.
1961).
The second requirement of Evidence Rule 56(2) that must be met before expert testimony
on a particular subject is permitted *224 is a showing that the proposed testimony would be
reliable. State v. Cavallo, supra, 88 N.J. at 516-17 (1982). There must be a sufficient
scientific basis for the expert testimony. The asserted scientific body of knowledge must be
considered reliable by those who have professional training and responsibility in the field.
Romano v. Kimmelman, 96 N.J. 66, 80 (1984); State v. Hurd, supra, 86 N.J. at 536; State
v. Cary, 49 N.J. 343, 352 (1967).
There are generally three ways a proponent of expert testimony can prove its reliability in
terms of its general acceptance within the professional community. First, such general
acceptance can be established by the testimony of knowledgeable experts. Second,
authoritative scientific literature can be used to establish professional acceptance. Finally,
persuasive judicial decisions that acknowledge such general acceptance of expert testimony
can be followed. State v. Cavallo, supra, 88 N.J. at 521.
These criteria for the admissibility of expert testimony relative to the battered women's
syndrome have been met in this case. Because the battered women's syndrome is a
relatively new field of research, only a few courts have had the opportunity to consider its
evidential admissibility. Some courts have already acknowledged the scientific acceptability
of the syndrome and the reliability of the methodology used by practitioners and
researchers in this field. See, e.g., State v. Allery, 101 Wash. 2d 591, 596, 682 P.2d 312,
315 (1984) (en banc) (battered women's syndrome sufficiently accepted in scientific
community and sufficiently outside lay competence so as to be appropriate subject of expert
testimony in criminal trial); State v. Anaya, 438 A.2d 892 (Me. 1981); Smith v. State, 247
Ga. 612, 277 S.E.2d 678 (1981). Other courts have not yet done so. Compare Hawthorne v.
State, 408 So. 2d 801 (Fla. Dist. Ct. App. 1982), petition for review denied, 415 So. 2d
1361 (Fla. 1982) and Ibn-Tamas v. United States, 407 A.2d 626 (D.C.Ct.App. 1979)
(remanding to trial court for further consideration of scientific acceptability) with Buhrle v.
State, 627 P.2d 1374 (Wyo. 1981) *225 and State v. Thomas, 66 Ohio St.2d 518, 423
N.E.2d 137 (1981) (holding that subject was not sufficiently established as a matter of
scientific expertise). In light of the compelling record that has been established in this case,
I am persuaded of the soundness of those decisions that have concluded that the battered
women's syndrome constitutes a valid subject of expert testimony. I am satisfied that these
decisions are correct and will emerge as the authoritative position on this issue.
The record before us, based on expert testimony, including scientific writings, further
reveals that the battered women's syndrome has gained general acceptance as a scientific
doctrine within the professional community. Dr. Lois Veronen, a highly qualified expert in the
field, testified that the battered woman's syndrome is acknowledged and accepted by

practitioners and researchers in the fields of psychology and psychiatry. In addition, Dr.
Veronen testified to the existence of numerous authoritative books, articles and papers
evidencing the scientifically recognized, expanding field of study and research about the
battered woman's syndrome. See Buckelew v. Grossbard, 87 N.J. 512 (1981); Calabrese v.
Trenton State College, 82 N.J. 321 (1980). The abundance of this authoritative literature
was also made evident on this appeal over 70 scientific articles and several books have been
published on the subject. Dr. Veronen further testified that, since 1977, the battered
women's syndrome has been recognized at several symposiums sponsored by such
organizations as the Association for the Advancement of Behavior Therapy and the American
Sociological Association. See Giannelli, "The Admissibility of Novel Scientific Evidence: Frye
v. United States, a Half-Century Later," 80 Colum.L.Rev. 1197 (1980) (under appropriate
circumstances, speeches, addresses, and other non-written sources may be used to
demonstrate the acceptance of a premise by the scientific community).
Public policy considerations complement these traditional modes for determining whether a
particular subject matter is reliable and within the purview of expert knowledge. An *226
emerging public policy acknowledges the battered women's syndrome. Psychiatrists,
psychologists, and social scientists, as well as the legal and law enforcement community,
have begun to come to grips with the forces that generate and perpetuate familial and
domestic violence. See, e.g., R. Langley & R. Levy, Wife Beating: The Silent Crisis (1979);
Martin, supra; Walker, supra; R. Gelles, The Violent Home: A Study of Physical Aggression
between Husbands and Wives (1971); Battered Women: A Psychosociological Study of
Domestic Violence (M. Roy, ed. 1977). The New Jersey Legislature has recognized the
pervasiveness and gravity of domestic violence, which in so many cases forms the backdrop
against which the battered women's syndrome appears. See Prevention of Domestic
Violence Act, L. 1981, c. 426, N.J.S.A. 2C:25-1 to -16; Shelters for Victims of Domestic
Violence Act, L. 1979, c. 337, N.J.S.A. 30:14-1 to -17; New Jersey Supreme Court Task
Force on Women in the Courts, Summary Report at 5-6 (Nov. 21, 1983). The Legislature
was presumably aware of the burgeoning expert opinion and literature that recognized the
battered women's syndrome as both a contributing cause and devastating consequence of
domestic and familial violence. This growing awareness extends to the national level as well,
as evidenced, for example, by the U.S. Attorney General's formation, in September 1983, of
a task force on family violence "to review [the] basic assumptions that underpin the
handling of [domestic] violence cases." Statement of Attorney General William French
Smith, September 19, 1983.
The final requirement of Evidence Rule 56(2) for the admission of expert testimony is the
showing that the proffered expert witness has sufficient expertise to testify. State v. Cavallo,
supra, 88 N.J. at 516. In this case, as recognized by the Court, Dr. Veronen was clearly
highly qualified to testify as an expert with respect to the psychological condition of battered
women's syndrome. Ante at 211. Furthermore, her proffered testimony fully met the
standards for the receipt of expert testimony concerning the battered women's syndrome.
*227 In addition to her general knowledge of the battered women's syndrome, Dr. Veronen
was familiar with the facts in this case and competent to testify in that regard. Dr. Veronen
described the various psychological tests and examinations she had performed in connection
with her independent research and the application of this methodology to defendant. Dr.
Veronen was prepared to express her professional opinion that Gladys Kelly was an abused
woman suffering from battered women's syndrome when she fatally stabbed her husband.
In sum, the record fashioned in this case convincingly demonstrates, through the testimony
of an eminently qualified expert witness, that expert testimony concerning the battered

women's syndrome is now generally accepted and regarded as reliable within the
professional community. Its competence and relevance as evidence in the trial of particular
criminal cases has been shown. The battered women's syndrome is sufficiently reliable to
authorize its admissibility as a proper subject of expert testimony. In my view, this evidence
should have been allowed in the trial of this case.
III
I concur in the majority's determination that the testimony of defendant's seventeen-yearold daughter, Edith Cannon, concerning the decedent's beatings of Gladys and her children,
should have been admitted into evidence at the trial. Ante at 215-216. Defendant's
daughter was also prepared to testify that she had been sexually abused by decedent since
she was 12 years of age and had related this to her mother. However, the trial judge, on the
basis of Evidence Rule 4, excluded Edith's testimony that she had told her mother about the
decedent's sexual assaults upon her.
The expert evidence fairly shows that such circumstances the physical and sexual abuse of
battered women's children cannot be separated from all of the factors that contribute to the
syndrome. Such child abuse occurs in 75% of the battering *228 relationships that
eventuate in homicide, and frequently constitutes a "critical factor in the tension * * *
before some lethal incidents." Walker, supra, at 11. Consequently, such evidence of child
abuse is relevant in a case in which the battered women's syndrome is a material issue.
To reiterate, expert testimony on the battered women's syndrome and the applicability of
this syndrome to the defendant's claim of self-defense should be allowed on the retrial of
this case. Evidence of the victim's abuse of the defendant's children, including sexual
assaults on her daughter, are part of the dismal composite that constitutes the battered
women's syndrome. Such evidence is highly probative of the issue of self-defense in the
context of the battered women's syndrome and its evidential worth clearly outweighs its
potential for prejudice or confusion.
IV
In sum, I believe the Court acts without sufficient warrant in remanding this case to permit
the issue of the general admissibility of expert testimony on the battered women's
syndrome to be tried anew. The record reveals that the issue of admissibility was fairly
presented at trial. That record has generated an evidential base sufficiently solid to permit,
if not mandate, our acceptance of the battered women's syndrome as expert doctrine. While
it is arguable that the State did not fully challenge the evidence below, its position on appeal
is essentially that the evidence proffered at the trial was not adequate to establish the
scientific reliability of the battered women's syndrome. The Court now unanimously rejects
that position. I think it pointless and unfair to encourage the State to renew its attacks upon
the authenticity of the battered women's syndrome doctrine.
For the reasons expressed, I dissent in part from the Court's decision.
*229 For reversal Chief Justice WILENTZ, and Justices CLIFFORD, SCHREIBER, POLLOCK,
O'HERN and GARIBALDI 6.
Concurring in part and dissenting in part Justice HANDLER 1.

May 30, 1950

G.R. No. L-2800
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
TEOPISTA CANJA, defendant-appellant.
Manuel F. Laurente for the appellant.
Assistant Solicitor General Guillermo T. Torres and Solicitor Felix V. Macasiar for the
appellee.
BENGZON, J.:
For having killed her husband Pedro Jongque, the appellant Teopista Canja was convicted of
parricide by the court of first instance of Antique, and was sentenced to imprisonment for
life, plus indemnity of P2,000, and costs.
The spouses resided at barrio Badiangan, Potnongon, province of Antique. Squandering the
family funds in gambling and even keeping a paramour, Pedro got the drinking habit that
sometimes led him to lay violent hands on his wife.
The slaying occurred at night, about ten o'clock, May 25, 1948, in the conjugal home, where
the family had gone to bed earlier in the evening, the husband sleeping in one small room,
and the wife with the children in another.
The eldest daughter Exuperia, twenty years old, declared substantially as follows: "That
night my mother woke me up and told me my father was dead. She told me that she had
killed him otherwise he would kill her. At her indication I helped carry the corpse to the
creek where we left it. Before we retired that evening my parents had a discussion. They
often quarreled before. I am aware that my testimony may send mother to jail for life, but
what I say is the truth. I am displeased with her because she killed my father".
Leonardo Reluta, chief of police of the town, testified that at noon of May 26, 1948, he
proceeded to the barrio in company with the sanitary inspector and the justice of the peace;
that they found Pedro's corpse in the creek; that the health officer examined the body; that
after conferring with Exuperia he arrested Teopista Canja; that the confession Exhibit C was
signed by her, that he prepared such exhibit, which contains the statements she made to
him.
Manuel Flores, the health officer, ratified the contents of the post-mortem examination he
conducted (Exhibit D). According to him, the man died of "Internal Hemorrhage, the
concussion and compression of the brain as the result of blows of hard instrument such as a
hammer which fractured or crushed the ethmoid or nasal bone, the right molar or cheek
bone and the upper and lower jaw bones. The dental arches were so smashed that there
were no more teeth left. There are 11 face incised wounds of 7/8 inch wide with exception

of 1 inches on the left side of the forehead and 5 inches at left side behind the ear. The
wounds penetrated up to the bones of the head."
Benjamin Valente, the justice of the peace, declared that on May 27, 1948, the accused
appeared before him accompanied by the chief of police and one policeman; that answering
his questions, she stated that she had signed the Exhibit C freely and voluntarily; that he
read to her the entire document and after reading it asked her whether the contents were
true, and she answered "yes"; that she swore to the same in the presence of the witnesses
Juan Victoriano and Carlos Tandoy. This official further said that before talking with the
accused, as above related, he took the precaution of excluding the police officers from the
room.
The pertinent part of Exhibit C reads as follows:
That on Tuesday, May 25, 1948 at about six o'clock in the evening, my husband Pedro
arrived from the tuba-drinking place and he was very drunk. And when he was already
inside our house, because he was drunk, he immediately boxed in my stomach and I
immediately fainted. When I gained consciousness, I asked him why he boxed me. And he
answered me that if I will resist he will do it again. So I just kept quiet and immediately
prepared our supper. While we were eating our supper with our children, he did not eat but
instead threw away the rice from the plate. After we had eaten, he went down according to
him to look for tobacco-to-chew in the house of my brother. In a short while, he returned,
he again boxed me because according to him I am always jealous of him. From that
moment, a felt a resentment moreover because he sold all our lands to other people and
gambled and I knew he was keeping a mistress. That is why while our children and he
(Pedro) were sleeping, I immediately got the hammer and chisel near his head and struck
his head and face until he was dead. When I knew that he was no longer breathing, I
immediately wrapped him with a mat where he slept and went to my daughter who is the
eldest of all who was still sleeping. She was reluctant to help me but I threatened her.
xxxxxxxxx
Q. Why did you have to kill your husband?
A. Because of his maltreatment of me, I felt as though the Evil Spirit has possessed me and
I lost control of myself, and I forgot my children who are still small.
Declaring in her defense, Teopista swore that that night she suddenly awoke when a man
was strangulating her; that she grabbed a piece of wood and gave the assailant two blows
on the face; that she thereby was able to free herself; that she then lighted a lamp and
found to her amazement that she had killed her husband.
This self-defense version was correctly rejected. Firstly, because the wounds found on the
head of the dead man could not have been the effect of two strokes with a blunt instrument.
There were eleven incised wounds. Secondly, because she never mentioned the piece of
wood to the chief of police, and there is enough evidence that she signed the confession

Exhibit C voluntarily, with full knowledge of its contents. Thirdly, because she pleaded guilty
at the preliminary investigation on June 2, 1948. Fourthly, if the facts had really happened
as she relates, there is every reason to expect that she had given the same explanation to
her children, who would undoubtedly have absolved her; and yet we have Exuperia
declaring against her mother, and openly resentful to her.
After reading the record, we have no hesitation to affirm the verdict of guilt. Our opinion
arises not only from the view that her explanation is non-acceptable, but from the
convictions that her declarations before the police chief and the justice of the peace in
Exhibit C reflected the true facts, and were uttered at a time when the culprit overwhelmed
by remorse had not yet had the opportunity to yield to ideas evolved by the irresistible
instinct of self-preservation.
Appellant must be declared to have feloniously extinguished the life of her husband. He may
have been unworthy. He may have been a rascal and a bully; but that is no excuse for
murdering him. His badness is not even a mitigating circumstance.
Wherefore, inasmuch as the penalty imposed on appellant is in accordance with the law
(Article 246, Revised Penal Code), the appealed judgment is affirmed, with costs.
Ozaeta, Pablo, Tuason and Reyes, JJ., concur.
Separate Opinions
MONTEMAYOR, J., concurring:
I agree with the majority as to the guilt of the appellant and the correctness of the penalty
imposed according to the provision of law pertinent to the case. But I wish only to add that
if a person properly convicted and sentenced according to law was ever deserving of
executive clemency, then the herein appellant is that one.
That very majority opinion pictures her as a martyr in her marital life. Her deceased
husband not content with squandering away the family substance, and not satisfied with
keeping a mistress upon whom he must have spent some of the money that properly
belonged to his own family, including his wife, got into the habit of drinking until he became
a habitual drunkard. In other words, he developed and indulged in all the major vices, and
to cap it all, when he came home, drunk, he would even beat up his wife. That the poor
wife, the appellant could put up with all this, still keep house for that kind of husband,
thriftless, faithless, vicious, and brutal and continue to be a wife to him, speaks volumes for
her. It implies patience, forbearance, devotion and sacrifice in the extreme. In countries
where divorce laws are more liberal, one in her place would, long ago, have divorced her
worthless husband, set up a home of her own to live her remaining years at least in peace,
if not in moderate contentment, free from fear and brutality, and keep her self-respect.
On the very day that she killed her husband, according to her own confession on which her
conviction was based, he came home drunk, forthwith laid hands on her, striking her on the

stomach until she fainted, and when she recovered consciousness and asked for the reason
for the unprovoked attack, he threatened to renew the beating. At the supper table instead
of eating the meal set before him, he threw the rice from his plate, thus adding insult to
injury. Then he left the house and when he returned he again boxed his wife, the herein
appellant. The violence with which the appellant killed her husband reveals the pent-up
righteous anger and rebellion against years of abuse, insult, and tyranny seldom heard of.
Considering all these circumstances and provocations, including the fact as already stated,
that her conviction was based on her own confession, I repeat that the appellant is
deserving of executive clemency, not of full pardon but of a substantial if not a radical
reduction or commutation of her life sentence.
G.R. No. L-14110, People v. Samson, 7 SCRA 478
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
March 29, 1963
G.R. No. L-14110
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
JOSEFINA N. SAMSON, defendant-appellant.
Office of the Solicitor General for plaintiff-appellee.
Paredes, Poblador, Cruz & Nazareno for defendant-appellant.
PADILLA, J.:
Charged with parricide (case No. 1616) for the death of Jose V. Samson, who was shot in
the morning of 13 October 1954, and illegal possession of a firearm (case No. 1617), after
trial Josefina N. Samson was acquitted of the last charge but found guilty of parricide and
sentenced by the Court of First Instance of Albay to suffer the penalty of reclusion perpetua,
to indemnify the heirs of the deceased in the sum of P6,000 and to pay the costs.
The defendant has appealed.
The evidence for the prosecution shows that at about 7:00 o'clock in the morning of 13
October 1954, while standing on the stairway of his house and facing the street in the
municipality of Libon, province of Albay, Jose V. Samson was shot twice by Josefina N.
Samson, who was behind him holding a carbine (Exhibit A). After the shooting she went to
the municipal building and reported to the Chief of Police Julian Cerdena that she had shot
her husband and requested him (Cerdena) to go to her house and see the body. The Chief
of Police told the guard to lock her up inside the jail and he (the Chief of Police) and
patrolman Francisco Fernandez repaired to the house of Jose V. Samson and there found his
body living on his back at the door of the house. The Chief of Police found a carbine (Exhibit
A) on a table in the dining room and two empty shells (Exhibit A-3), one behind the body of
the deceased and the other on a table. Dr. Zacarias Edades, Municipal Health Officer, made

a post-mortem examination of the deceased and issued a medical certificate dated 13

October 1954 (Exhibit B), reading as follow:
TO WHOM IT MAY CONCERN:
This is to certify that I made a physical examination and investigation on this date at
Velasco St., Libon, Albay, at the residence of Engineer Jose V. Samson and have the
following noted:
1. The body of Engineer Jose V. Samson, 42 yrs., married, engineer by profession, resident
of this municipality, slumped at the doorsteps of his residence (recumbent position);
2. No sign of life is evident on him;
3. Hemorrhage profuse and apparently beginning to clot;
4. Presence of a bullet entrance wound at the postero-lateral aspect of the nape of the neck
near the beginning of the right shoulder measuring around 4 millimeters in diameter
projecting downwards and inwards passing the clavicle left and coming out about 5
centimeters above and lateral to the left nipple. Point of exit wound measuring around 15
mm. by 20 mm.
Another wound measuring 22.1 mm. by 15 mm. at anterior aspect of the left forearm about
8 centimeters traversing through the radial and ulnar bones (in-between) and coming out
the dorsal aspect of same forearm about 9 cm. above the wrist, wound measuring 25 mm.
by 27 mm.
5. Presence of a bullet wound entrance at the right interscapular region about 10 cm. below
the above stated wound measuring about 4 millimeters in diameter projecting upwards and
coming out at the lateral aspect of the lower jaw shattering the lateral portion of the lower
mandible. Wound measuring 5 cm. by 3 1/2 cm.
Wherefore, the parties respectfully pray that the foregoing stipulation of facts be admitted
and approved by this Honorable Court, without prejudice to the parties adducing other
evidence to prove their case not covered by this stipulation of facts.
In (the) evaluation to (of) the above findings the cause of death is due to the gunshots
inflicted with profuse hemorrhage resulting thereat (therefrom).
It also appears that in the morning of 13 October 1954 while Meliton Sial, a gardener, was
cutting grass on the lawn of the house of the Samsons at Libon, Albay, he heard two shots
so he went up the house and there saw Mrs. Samson near the door of the kitchen carrying a
firearm (Exhibit A) from whom he inquired what was the shot about and Mrs. Samson
replied: "I shot him."
The evidence for the defense shows that the deceased Jose V. Samson was cruel and of
violent character and for many years had been maltreating his wife at the slightest
provocation and on several occasions inflicting upon her physical injuries (Exhibits 12, 12-A,
20 and 21); that the day before 13 October 1954 Jose V. Samson, who was then the District
Engineer of the province of Masbate, arrived in Legaspi, Albay, and asked his wife and
children to join him for lunch at the Eden Hotel to which he was invited by a friend named

Jose Lim; that she could not join him because on that very day she had stood as sponsor at
a wedding the luncheon of which was to be held in the same hotel; that the children joined
their father for lunch and after lunch she and her children went shopping; that she bought
underwear (Exhibits 15, 15-A, 15-B, 15-C) for her husband and Nescafe; that after
shopping she and her children went to the store of Jose Lim where her husband was and
together they went home leaving on their way their daughter Glenda at the St. Agnes
Academy; that after staying a short while at their house she and her husband left, the latter
going to Bato to call on his brother Jesus V. Samson and she to the ricefields to look after
her share in the palay that was being gathered or reaped; that both returned home that
same evening and ate their supper together; that while they were taking their supper she
told her husband that she has sold 80 cavans of palay; that after supper they retired and
slept on the same bed; that the next morning she prepared breakfast for her husband who
was to go hunting; that later he woke up and began to take his breakfast, that upon tasting
the coffee he suddenly pulled his wife by the hair and complained of the kind of coffee she
had bought for him; that after a short while her husband resumed taking his breakfast while
she prepared sandwiches for him to bring along on his hunting trip; that when her husband
was about to leave he asked her some money and she gave him P50; that the deceased
asked for more and she gave him another P50 consisting of two twenty-peso bills and one
ten peso bill; that her husband asked for more money and she gave him P2.00; that this
made him angry and he grabbed her by the arm and twisted it and also by the neck until
she could no longer speak and was thrown against the table; that her husband in a loud
voice told her that "if you don't give me money I will kill you" and that "if you don't have
money any more you better work as a maidservant, if not, be prostitute;" that her husband
took the carbine from the table and holding it by the muzzle raised it above his right
shoulder in an attempt to strike her; that she side-stepped and grappled with him for the
possession of the gun and in the scuffle the gun went off, the bullet hitting her husband in
the neck; that when she saw the neck of her husband bleeding; she rushed to the municipal
building where, she asked Dr. Edades, the municipal health officer, to attend to her husband
and at the same time informed the Chief of Police of what had happened, that she was
placed under arrest and locked up in the municipal jail; that during her confinement in the
municipal jail she was examined by the Municipal Health Officer, Dr. Zacarias E. Edades, who
found the following:
1. A linear skin abrasion about 8 mm. near the base of the index finger dorsal aspect;
2. Slight contusion wrist left forearm; no abrasion nor swelling noted;
3. Subjective complaint of pain around the neck but no visible physical findings noted; no
abrasion, no skin discoloration nor swelling noted on examination.
The above findings with no further complication and good treatment be rendered will be all
right within 3-5 days. ... (Exhibit 6).
The re-enactment during the trial of the way the deceased had been shot made, under the
direction of the appellant, appearing in Exhibits 16, 18, 18-a and 18-b, clearly appears not
to be normal. It was difficult, if not well-high impossible, for her who was frail and shorter in
height than her husband, who was robust and taller (Exhibit 23), to have succeeded in
taking hold of the carbine, her right hand gripping the lower part of the barrel of the gun
and the left hand, the part of the gun near the trigger, for if her husband was to strike her
with the butt of the carbine and she side-stepped, he would not have continued to hold the
carbine in a raised position when the person to be assaulted already had side-stepped and
avoided the attempted or intended blow upon her. If, as claimed by the appellant, the gun

went off during the scuffle injuring her husband on the nape "projecting downwards and
inwards passing the clavicle left and coming out about 5 centimeters above and lateral to
the left nipple," a bullet wound which was fatal, how could the appellant explain the
presence or causing of the wound on the left forearm and the bullet wound "at the right
interscapular region about 10 cm. below the above stated wound ... projecting upwards and
coming out at the lateral aspect of the lower jaw shattering the lateral portion of the lower
mandible?" Through actual test during the trial it was found that the carbine (Exhibit A) was
not defective and could not fire without pressing the trigger. The absence of any powder
burns at the entrance of the wounds found in the body of the deceased is convincing proof
that the victim was shot from a distance, and not with the muzzle of the gun almost resting
on his shoulder or the back of the neck.
The appellant claims that there is no competent evidence that the victim and the appellant
were husband and wife. The claim is without merit. The testimony of the appellant on direct
examination disclosed several times that she was married to the deceased in both "Church
and civil marriages." On cross examination, she testified on the exact date of her marriage
to the deceased (4 July 1934) and the place (Pili, Camarines Sur) where they were married.
She did not only admit that the deceased was her husband but also brought out the fact
that out of the marriage they had five children and that only three are living, namely:
Glenda, Manuel and Felix. Indeed, there could be no better proof of marriage in a parricide
case than the admission by the accused of the existence of such marriage. More, Ramon M.
Velasco, mayor of Libon, Albay, and uncle of the deceased testified that when he saw the
appellant in the afternoon of 13 October 1954 at the municipal jail, she immediately begged
for his forgiveness and told him that she had shot her husband Pepe (referring to the
deceased) because the latter had a mistress and she could not bear or suffer it any longer.
The appellant contends that the action to enforce civil liability has been reserved and,
therefore, the trial court erred in awarding civil damages amounting to P6,000 to the heirs
of the deceased. In support of this contention she quotes what the trial court stated during
the hearing of the case, to wit:
COURT: The court reserves the right of the heirs to prosecute the civil action independently,
as soon as a guardian is appointed in that special proceeding. We will hold this in abeyance
until a guardian is appointed by the court who can represent the heirs in this case (p. 19,
t.s.n., 19 May 1955).
According to Section 1 (a) of Rule 107, the offended party must reserve his right to institute
separately the civil action to enforce the responsibility arising from the offense charged. No
one is authorized to make the reservation except the offended party. These are the minor
children of the deceased. No such reservation having been made by them or by their duly
appointed guardian, the trial court did well in condemning the appellant to pay her civil
liability to the heirs of the deceased.
The finding of the trial court that there had been no evident premeditation and treachery
when the appellant shot her husband should be sustained. As the uncontradicted evidence
shows that despite several quarrels and maltreatments she had with and received from her
husband, both made up very easily after each and every quarrel. The day prior to the
shooting incident the appellant bought some underwears for her husband and in the evening
of same day both the appellant and the deceased had supper together and slept on the
same bed. All these circumstances taken together would inevitably lead to the conclusion
reached by the trial court that the appellant had not planned beforehand the killing of her
husband. If the fact that a few moments immediately preceding the shooting of the

deceased by the appellant, in that early morning of 13 October 1954, the latter and the
deceased had an altercation regarding the genuineness of the coffee (Nescafe) that
culminated into a hair pulling, but which as usual was made up as easily as it flared up; and
that immediately thereafter the deceased resumed eating his breakfast while the appellant
prepared sandwiches for him to take along in his hunting trip, as if nothing had happened at
all, the conclusion is inescapable that the appellant could have had neither the resolution
to kill her husband on that fateful morning nor the time to mediate or reflect on the criminal
act she would commit. It is, therefore, very clear that the shooting of the deceased husband
by the appellant came about spontaneously from the unexpected turn of events. It is also
very clear that it happened in the spur of the moment and without any intervening period
during which the appellant could have meditated, reflected and resolved upon the act she
was about to commit, or sufficient time to allow her conscience to overcome the resolution
(if she did ever resolve) to carry out what she had proposed or decided to do. The adverted
circumstances, of course, preclude, the attendance of treachery in the commission of the
crime at bar.
As there are two mitigating circumstances, that of voluntary surrender and of having acted
upon an impulse so powerful as naturally to have produced passion or obfuscation, and
there is no aggravating circumstance, the minimum penalty of reclusion perpetua for the
crime committed by the appellant, as provided for in Articles 246 and 63 of the Revised
Penal Code imposed by the trial court, is correct.
The judgment appealed from is affirmed, with costs against the appellant.
G.R. No. 110107 January 26, 1995
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
DOLORES LORENZO Y CORSINO, accused-appellant.

DAVIDE, JR., J.:

For having allegedly killed her husband on 30 July 1990, accused-appellant Dolores Lorenzo
y Corsino, a policewoman, was charged with the crime of parricide in an information 1 filed
with the Regional Trial Court (RTC), Tuguegarao, Cagayan, on 30 March 1992. The
information was docketed as Criminal Case No. 2060-92-TUG and raffled to Branch 5. The
accusatory portion thereof reads as follows:
That on or about July 30, 1990, in the Municipality of Tuguegarao, Province of
Cagayan, and within the jurisdiction of this Honorable Court, the said accused,
PO1 Dolores C. Lorenzo, armed with a bolo and a fan knife, with intent to kill,
with evident premeditation and with treachery did then and there wilfully,
unlawfully and feloniously attack, assault, stab, hack and chop one, Agapito
Lorenzo, her own husband, inflicting upon him several injuries on the different
parts of his body which caused his death.

That in the commission of the offense, the aggravating circumstance of

cruelty was present.
After due trial, the trial court promulgated on 24 February 1993 2 its judgment finding the
appellant guilty of the crime of parricide and sentencing her to suffer the penalty of
reclusion perpetua and to pay the heirs of the victim P50,000.00.
At the trial, the prosecution presented barangay captain Isabelo Liban and SPO1 Jose
Eclipse as its witnesses. The defense presented the appellant herself and Romeo Racheta.
The versions of both the prosecution and the defense are summarized by the trial court as
follows:
The prosecution's evidence tells the following story:
Agapito Lorenzo and accused Dolores Lorenzo were spouses
residing in Looban, Barangay 12, Balzain, Tuguegarao,
Cagayan. Among their neighbors are Barangay Captain Isabelo
Liban, Romeo Racheta and Robert Santos.
In the evening of July 30, 1990, SPO1 Jose Eclipse of the
Tuguegarao PNP Station was in Balzain, Tuguegarao, Cagayan
because that was his post for the night. At about a little past
10:00 o'clock that evening, a tricycle driver went to Policeman
Eclipse and reported to him a stabbing incident in said
Barangay 12;
Policeman Eclipse rushed to the reported crime scene. On his
way, he met PO1 Dolores Lorenzo, a policewoman of his own
Station who immediately surrendered to him a blood-stained
bolo and a fan knife and told him, "I killed my husband".
The two proceeded to where the victim was. In front of the
store of Barangay Captain Isabelo Liban, Policeman Eclipse saw
Agapito sprawled on the ground with blood all over his body.
Policeman Eclipse called for Barangay Captain Liban to come
out of his house. In the presence and within the hearing of said
barangay official, Policewoman Lorenzo again said, "I'm
surrendering because I killed my husband".
Policeman Eclipse ordered somebody to get a tricycle to bring
the lifeless body of Agapito Lorenzo to a funeral parlor while he
and Policewoman Lorenzo went to the Tuguegarao PNP Station.
Policeman Eclipse turned over Policewoman Lorenzo together
with the bolo and knife to the Desk Officer, SPO3 Urbano

Aquino. Eclipse then orally made his report to the Desk Officer
which was noted down in the Police Blotter.
The defense painted another picture of the incident. It's theory
is that it was not Policewoman Lorenzo but a certain Robert
Santos who killed Agapito. Here is the defense's version of the
incident.
In the afternoon of July 30, 1990, Agapito Lorenzo and his
neighbor Robert Santos were in the former's house passing the
time over a bottle of beer grande. When Policewoman Lorenzo
arrived home from work, Agapito, in the presence of Robert
Santos, met her with the following intemperate questions:
"Your mother's cunt, why do you arrive only now? Where did
you come from? To avoid further scandal, Policewoman Lorenzo
just keep quiet, went to change her clothes and proceeded to
the kitchen to prepare supper. Finding nothing to cook, she
asked permission from her husband to go to market.
Policewoman went to market and then immediately went back
home to cook what she bought. While cooking in the kitchen,
she heard a heated exchange of words between Robert Santos
and her husband in the sala of their house pertaining to some
bullets and a hand grenade which the latter gave Robert
Santos.
Policewoman Lorenzo went to the sala to pacify the quarelling
men only to meet Robert Santos running out of the house with
a bolo and being chased by Agapito Lorenzo who was holding a
knife in his hand and whose clothes were splattered with blood.
When Agapito overtook Robert, a struggle for the possession of
the bolo ensued between the two men.
While wrestling, Agapito dropped his knife. Policewoman
Lorenzo picked it up and tried to stab Robert with it but she was
so overwhelmed by nervousness that she collapsed into
unconsciousness. Seconds later on, she regained consciousness
and found herself beside her dying husband.
Policewoman Lorenzo stood and picked up the knife and bolo. It
was at this precise time when Policeman Eclipse arrived at the
scene of the incident.
Policewoman Lorenzo gave the knife and bolo to Policeman
Eclipse. The Policeman invited her to go with him to the
Tuguegarao PNP Station. She obliged. When the two arrived at

the police station, Policeman Eclipse, in the presence of

Policewoman Lorenzo, reported to the Desk Officer that the
latter killed her husband. Since the policewoman had not yet
fully recovered her composure, she did not say anything. 3
The trial court gave full faith and credit to the testimonies of the prosecution witnesses. It
found nothing on record which showed that their impartiality had been vitiated or
compromised or that they had any motive to falsely impute upon the appellant the
commission of the crime. It further declared that when the appellant surrendered the knife
and bolo to SPO1 Eclipse and volunteered the information that she killed her husband, she
made an extrajudicial confession and nothing more was needed to prove her culpability. 4
The trial court held that the confession was admissible for it was not made in violation of
paragraph 1, Section 12, Article III of the Constitution. 5 The appellant was neither under
police custody nor under investigation in connection with the killing of her husband.
The trial court rejected the story of the defense and characterized it as "palpably a put-up
scenario . . . . [A] story which runs against the grain of ordinary reality, controverts logic
and assails common sense." 6
First, accused Policewoman Lorenzo testified that it is not true that she
confessed to Policeman Eclipse in the presence of Barangay Captain Liban that
she killed her husband. If her denial is true, why did she not correct or even
protest when Policeman Eclipse reported to the Desk Officer that she
confessed having killed her husband? Why did she not even try to correct the
entry in the police blotter containing said inculpatory report? On the contrary,
by some inexplicable quirk, she even let the cat out when she presented in
evidence Exhibit "1".
Second, accused put forth the theory of her defense: it was not she but
Robert Santos who did her husband in. This theory is shot. If this is true, why
did she not tell it to Policeman Eclipse and Barangay Captain Liban at the
scene of the crime? Why did she withhold such a very vital information when
she was brought to the Tuguegarao PNP Station shortly after the incident? But
the biggest "why" is: Why did not the accused, wife of the slain man and
policewoman at that, file a criminal case against Robert Santos?
The accused's explanation was: she was still uncomposed when she turned
over the knife and bolo to Policeman Eclipse and even when she was in the
police station. She did not also file a case against Robert Santos because she
found herself the suspect and later on the accused.
These reasons do not cut ice. They are for the birds. No one with an ordinary
intelligence would buy such reasons.
Third, the accused never filed a counter-affidavit during the preliminary
investigation of this case. Not that a counter-affidavit is obligatory but that it

afforded the accused the best opportunity to explain her innocence and to
identify the "real killer" of her husband. Why did she not grab this chance
as normal people in the same situation would have done?
Fourth, accused version is simply implausible. According to Policewoman
Lorenzo, when she saw her husband Agapito chasing Robert out of the house,
Agapito's clothes were already bloodied. Since there is no proof at all that
Robert ever sustained any wound, the implication is that Agapito was already
hacked and stabbed by Robert inside the former's house.
It is therefore, difficult to believe that Agapito who already sustained several
wounds could chase Robert and even harder to imagine that he wrestled
with Robert for the possession of the latter's bolo. But why, it may be asked,
should Agapito still try to divest Robert of his bolo when he (Agapito) was
holding a knife which he could have easily used against the latter during the
alleged clinching between the two?
Finally, it is very unnatural for "assailant" Robert to have left his bolo before
running away from the scene of the crime. This is a concoction to provide an
explanation for the possession of the accused of a knife and a bolo.
Fifth, the version of accused and her witness Romeo Racheta are even at
variance at a very vital point. Thus, Policewoman Lorenzo said that when
Agapito was able to overtake Robert in front of the store of Barangay Captain
Liban, the two struggled for the possession of the bolo of Robert. Witness
Racheta however said that when Agapito chased Robert, he caught up with
him when he was already cornered. When Robert could no longer run
anywhere else, he turned around, faced Agapito and hacked and stabbed him
many times. Such inconsistency in the version of the two defense witnesses
cannot but heighten one's conviction that the defense theory is a conjured
one. 7
The appellant appealed from the judgment to this Court and in her brief 8 contends that the
trial court erred in:
I. . . . GIVING CREDENCE TO THE TESTIMONIES OF PROSECUTION
WITNESSES ISABELO LIBAN AND SPO1 JOSE ECLIPSE.
II. . . . NOT HOLDING THAT THE GUILT OF THE ACCUSED WAS NOT PROVED
BEYOND REASONABLE DOUBT." 9
She discusses these jointly and, in support thereof, she asseverates that the testimonies of
Liban and Eclipse are inconsistent on material points, for while Liban declared in court and
stated in his sworn statement that he (Liban) came out of his house and heard the appellant
confess to Eclipse that she killed her husband, Eclipse testified that Liban did not come out
of his house. One of them, she continues, did not tell the truth and argues that a testimony

on her alleged confession, which would be devoid of any evidentiary value without
corroboration.
She pleads that this Court discredit both Liban and Eclipse because the testimony of Liban
was improbable while that of Eclipse "was not so firm and resolute as to what was actually
allegedly told him by the accused." At one time, while testifying, he declared that the
appellant told him that she "accidentally injured her husband," but on another, he testified
that the appellant told him that she "killed her husband." 10 Also, as shown in the entry in
the police blotter, 11 Eclipse was reported to have disclosed that the appellant "voluntarily
surrendered and asked him to bring her to the police station because she allegedly killed her
husband named Agapito Lorenzo, Jr. together with Robert Santos who first stabbed him";
yet, in his testimony in court he pinned down only the appellant and mentioned nothing
about Santos. Furthermore, she charges the prosecution with suppression of evidence in not
presenting as a witness another police officer who Eclipse said accompanied him to the
scene of the crime and who used a vehicle which they rode in going to the police
station. 12
Meeting squarely the ratiocinations of the trial court in describing the story of the defense as
a "probably put-up scenario," the appellant asserts that it was error for the trial court to
hold her failure to correct the entry in the police blotter against her since there is nothing in
the records which clearly shows that she heard Eclipse making the report to the desk officer
and that she saw the entry. The appellant also contends that the trial court erred when it
made capital of her alleged failure to file a criminal complaint against Robert Santos since it
was the police's duty to arrest and prosecute Robert Santos, Eclipse having known of Robert
Santos' killing of her husband. Besides, she was in detention all throughout and suffering
from trauma. She avers that the trial court erred when it held against her the failure to file
her counter-affidavit, since that was not obligatory and her non-filing was in accord with her
constitutional right to remain silent. Finally, she contends that the conclusions drawn by the
trial court in its evaluation of her testimony and that of her witnesses are mere
speculations.
The appellee agrees with the findings of fact and conclusions of the trial court and prays
that the challenged decision be affirmed.
The pith of the assigned errors and the focus of the appellant's arguments is the issue of the
witnesses' credibility. It is a well-entrenched rule that when such is the issue, appellate
courts will generally not disturb the findings of the trial court considering that the latter is in
a better position to decide the question, having heard the witnesses themselves and
observed their deportment and manner of testifying during the trial, unless certain facts of
value have been plainly overlooked which, if considered, might affect the result of the case.
13
The trial court has the singular opportunity to observe and consider certain potent aids in
understanding and weighing the testimony of witnesses, such as the emphasis, gesture, and
inflection of the voice of the witnesses while they are on the witness stand. As these are not
incorporated into the record, the appellate court cannot avail of them and must therefore
rely on the good judgment of the trial court. 14 The appellant has not convinced us that the
trial court plainly overlooked proved facts or circumstances which, if considered, may affect

the result of this case. We thus accept its assessment of the evidence as correct and
consider it binding, there being no showing that it was reached arbitrarily. 15 Our own
evaluation thereof yields no cause for the application of the exception to the settled rule.
We agree with the trial court that prosecution witness SPO1 Jose Eclipse told the truth when
he declared under oath that the appellant surrendered to him a blood-stained bolo and a fan
knife and told him that she killed her husband. Eclipse happened to be on his way to the
scene of the stabbing incident which was reported to him by a tricycle driver while he was in
the performance of his official duty at his assigned post in Barangay Balzain, Tuguegarao,
Cagayan. Eclipse and the appellant both belonged to the same police unit, the PNP at the
Tuguegarao station. There is nothing in the records, and more specifically in the crossexamination of Eclipse and the direct examination of the appellant, which suggests, even
remotely, that Eclipse had any improper motive to implicate a fellow police officer in the
commission of a serious crime or the slightest bias against the appellant which would
blemish his objectivity and truthfulness.
If there was any bias, it should have been, logically, in favor of the appellant because of
esprit de corps. Eclipse did not allow that sentiment to compromise his official and public
duty as a peace officer. It is settled that the absence of evidence as to an improper motive
strongly tends to sustain the conclusion that none existed and that the testimony is worthy
of full faith and credit, for, indeed, if an accused had nothing to do with the crime, it would
be against the natural order of events and of human nature and against the presumption of
good faith for a prosecution witness to falsely testify against the accused. 16
The appellant's emphasis on the inconsistency in the testimony of Eclipse as to what she
actually told him, i.e., that she "injured" her husband or "killed" him, is misplaced; the latter
word was used when the court asked him for the precise term used by the appellant. 17
Nor is there merit to the claim that Isabelo Liban's testimony must corroborate Eclipse's
testimony or the confession of the appellant since without such corroboration Eclipse's
testimony would have no probative value. This theory could only be a product of a
misunderstanding of Section 3, Rule 133 of the Rules of Court which provides:
Sec. 3. Extrajudicial confession, not sufficient ground for conviction. An
extrajudicial confession made by an accused, shall not be sufficient ground for
conviction, unless corroborated by evidence of corpus delicti.
Note that what must be corroborated is the extrajudicial confession and not the testimony of
the person to whom the confession is made, and the corroborative evidence required is not
the testimony of another person who heard the confession but the evidence of corpus
delicti. Except when expressly required by law, 18 the testimony of a single person, if
credible and positive and if it satisfies the court as to the guilt of the accused beyond
reasonable doubt, is sufficient to convict. 19 In determining the value and credibility of
evidence, witnesses are to be weighed, not numbered. 20

As to the corroborative evidence of corpus delicti, the appellant herself does not question its
presence because she knows that it has been overwhelmingly established in this case.
Corpus delicti is the body (material substance) upon which a crime has been committed,
e.g., the corpse of a murdered man or the charred remains of a house burned down. In a
derivative sense, it means the substantial fact that a crime was committed. It is made up of
two elements: (a) that a certain result has been proved, for example a man has died or a
building has been burned, and (b) that some person is criminally responsible for the act.
Section 3, Rule 133 of the Rules of Court does not mean that every element of the crime
charged must be clearly established by independent evidence apart from the confession. It
means merely that there should be some evidence tending to show the commission of the
crime apart from the confession. Otherwise, the utility of the confession as a species of
proof would vanish if it were necessary, in addition to the confession, to adduce other
evidence sufficient to justify conviction independently of such confession. Otherwise stated,
the other evidence need not, independently of the confession, establish the corpus delicti
beyond a reasonable doubt. 21
Since the corroboration of Isabelo Liban's testimony was unnecessary, we need not discuss
its intrinsic merits, more especially on its alleged inconsistencies vis-a-vis the testimony of
Eclipse which inconsistencies we, nevertheless, find to be on minor matters. Minor
inconsistencies do not affect the credibility of witnesses; on the contrary, they even tend to
strengthen rather than weaken their credibility because they erase any suspicion of
rehearsed testimony. 22
The claim of suppression of evidence has no merit. The testimony of the other policeman
whom Eclipse requested to get a vehicle could only be corroborative in some respects but
not of the fact of the surrender of the blood-stained bolo and fan knife and of the appellant's
telling Eclipse that she killed her husband since it was explicitly shown that he was with
Eclipse at the precise time of the surrender. The prosecutor and the defense counsel asked
no further questions of Eclipse to elicit more on the presence of the other policeman. In any
event, even if the latter were present, his testimony would only be corroborative.
Furthermore, it has never been shown that the said policeman was not available to the
defense. The presumption laid down in Section 3(e), Rule 131 of the Rules of Court that
"evidence willfully suppressed would be adverse if produced" does not apply when the
testimony of the witness not produced would only be corroborative, or when the said
witness is available to the defense because then the evidence would have the same weight
against one party as against the other. 23
We do not, however, agree with the trial court's characterization of the appellant's
declaration that she killed her husband as an extrajudicial confession. It is only an
admission. It is clear from Sections 26 and 33, Rule 130 of the Rules of Court that there is a
distinction between an admission and a confession. These sections reads as follows:
Sec. 26. Admission of a party. The act, declaration or admission of a party
as to a relevant fact may be given in evidence against him.
xxx xxx xxx

Sec. 33. Confession. The declaration of an accused acknowledging his guilt

of the offense charged, or of any offense necessarily included therein, may be
given in evidence against him.
In a confession. there is an acknowledgment of guilt. Admission is usually applied in criminal
cases to statements of fact by the accused which do not directly involve an acknowledgment
of guilt of the accused or of the criminal intent to commit the offense with which he is
charged. 24 Wharton 25 defines confession as follows:
A confession is an acknowledgment in express terms, by a party in a criminal
case, of his guilt of the crime charged, while an admission is a statement by
the accused, direct or implied, of facts pertinent to the issue, and tending, in
connection with proof of other facts, to prove his guilt. In other words, an
admission is something less than a confession, and is but an acknowledgment
of some fact or circumstance which in itself is insufficient to authorize a
conviction, and which tends only to establish the ultimate fact of guilt.
Underhill 26 distinguishes a confession from an admission as follows:
A confession is defined as an acknowledgment of guilt of the crime charged or
of the facts which constitute the crime; but it is an admission and not a
confession if the facts acknowledged raise an inference of guilt only when
considered with other facts.
While Wigmore

27

says:
A confession is an acknowledgment in express words, by the
accused in a criminal case, of the truth of the guilty fact
charged or of some essential part of it. 28

Nevertheless, whether it was a confession or an admission, it was admissible against the

appellant and, having been duly proved, together with the other facts and circumstances,
the burden of the evidence was shifted to the appellant to disprove, by strong evidence,
that she made the admission or, admitting it, to prove that she was not guilty of killing her
husband. As earlier shown, the trial court characterized her story as "palpably a put-up
scenario
. . . . [A] story which runs against the grain of ordinary reality, controverts logic and assails
common sense." The five reasons enumerated by it to support this conclusion are founded
on or are inferred from facts duly established by the prosecution or are otherwise solidly
based on common experience, logic, and common sense.
The trial court had stated that if indeed the appellant never confessed to Eclipse that she
killed her husband, she should have protested when Eclipse reported to the desk officer that
she had confessed to the killing of her husband or she should have attempted to correct the
entry in the police blotter containing this inculpatory report. The appellant demonstrated her
penchant for falsehood when, in order to refute this statement, she asserted in her brief

that nothing in the record clearly shows that she heard Eclipse making the report and that
she read the entry in the police blotter. She conveniently forgot that on cross-examination
she admitted having heard Eclipse making the report but claiming that she did not protest
because she was not in her right senses and was in a state of shock at the time. Thus:
Prosecutor Saguncio:
Q Did the desk officer ever talk to you?
A No, sir.
Q So it was only PFC Eclipse who talked to the desk officer?
A Yes, Sir.
Q Within your hearing and you heard PFC Eclipse talked to the
desk officer?
A Yes, Sir.
Q And what did PFC Eclipse report to the desk officer?
A The one that is appearing in the excerpt of the police blotter,
sir.
xxx xxx xxx
Court:
Q When you said that you heard Pat. Eclipse reported to the
desk officer you meant to say that you heard him telling the
police officer that you killed your husband Agapito Lorenzo, Jr.
together with Robert Santos who first stabbed him, is that not
so?
A Yes, sir.
Court:
Proceed.
Pros. Saguncio:
Q You heard this and you did not make any comment?

A Yes, sir, but because at this time I was not in my right senses
because I was then shocked at that time. 29
The appellant's failure to assert, at any part of the entire event, from the time she went
with Eclipse to the police station up to the time she was committed to jail and even
thereafter until she took the witness stand, that it was not she who killed her husband only
serves to reinforce and strengthen this Court's respect for the trial court's finding that her
story that "it was not she but Robert Santos who did her husband in, "is shot." We find it
incredible that a peace officer and a wife of the victim would not forthwith denounce or
reveal the identity of the assailant if it were true that it was not she who killed her husband.
This Court has held that the testimony of the accused is not credible where he has adopted
an attitude of indifference relative to the crime he is accused of and where he failed to
inform the police authorities and the fiscal during the investigation that it was not he but
somebody else who committed the murder. 30
Even granting for the sake of argument that the appellant only surrendered a blood-stained
bolo and a fan knife but did not admit that she killed her husband, we find in this case
several circumstances whose concordant combination and cumulative effect 31 point to the
appellant, to the exclusion of all others, as the guilty party. These circumstances are the
following:
1. A tricycle driver reported to Eclipse a stabbing incident and the latter
immediately proceeded to where it took place;
2. Eclipse met the appellant who had with her a blood-stained bolo and a fan
knife;
3. The appellant surrendered to Eclipse the blood-stained bolo and the fan
knife;
4. The appellant's husband lay dead nearby with nine chop wounds, thirteen
stab wounds, and nine incised wounds on different parts of his body, with
abrasions and multiple contusions as well; 32
5. Eclipse accompanied the appellant to the police station and, in her
presence, the former reported to the desk officer that she surrendered to him
and told him that she had killed her husband; the desk officer then entered
this report in the police blotter;
6. Although the appellant heard the report, she did not protest to Eclipse or
except to the report; and
7. The appellant never asked the police authorities to investigate Robert
Santos for his complicity in the killing of her husband; despite the
unhampered opportunities for her to denounce Santos as the alleged killer of

her husband, she implicated Santos only when she testified on 21 January
1993, 33 or after the lapse of nearly two and one-half years after the incident.
These circumstances constitute an unbroken chain which leads to one fair and reasonable
conclusion that points to the appellant, to the exclusion of all others, as the guilty person.
The requirements then of Section 4, Rule 133 34 of the Rules of Court on the sufficiency of
circumstantial evidence to convict the appellant are present. 35
To be appreciated in the appellant's favor, however, is the mitigating circumstance of
voluntary surrender. The penalty for parricide under Article 246 of the Revised Penal Code is
reclusion perpetua to death, which are both indivisible penalties. In the light of the
mitigating circumstance, the proper penalty which should be imposed upon the appellant
should be reclusion perpetua, pursuant to Rule 3, Article 63 of the Revised Penal Code.
The challenged decision is then in accordance with the facts and the applicable laws.
WHEREFORE, the appealed decision of Branch 5 of the Regional Trial Court of Tuguegarao,
Cagayan in Criminal Case No. 2060-92-TUG is AFFIRMED.
Costs against the appellant. SO ORDERED.
G.R. No. 179267

June 25, 2013

JESUS C. GARCIA, Petitioner,

vs.
THE HONORABLE RAY ALAN T. DRILON, Presiding Judge, Regional Trial CourtBranch 41, Bacolod City, and ROSALIE JAYPE-GARCIA, for herself and in behalf of
minor children, namely: JO-ANN, JOSEPH EDUARD, JESSE ANTHONE, all surnamed
GARCIA, Respondents.
DECISION
PERLAS-BERNABE, J.:
Hailed as the bastion of Christianity in Asia, the Philippines boasts of 86.8 million Filipinosor 93 percent of a total population of 93.3 million adhering to the teachings of Jesus
Christ.1 Yet, the admonition for husbands to love their wives as their own bodies just as
Christ loved the church and gave himself up for her2 failed to prevent, or even to curb, the
pervasiveness of violence against Filipino women. The National Commission on the Role of
Filipino Women (NCRFW) reported that, for the years 2000-2003, "female violence
comprised more than 90o/o of all forms of abuse and violence and more than 90% of these
reported cases were committed by the women's intimate partners such as their husbands
and live-in partners."3
Thus, on March 8, 2004, after nine (9) years of spirited advocacy by women's groups,
Congress enacted Republic Act (R.A.) No. 9262, entitled "An Act Defining Violence Against
Women and Their Children, Providing for Protective Measures for Victims, Prescribing
Penalties Therefor, and for Other Purposes." It took effect on March 27, 2004.4

R.A. 9262 is a landmark legislation that defines and criminalizes acts of violence against
women and their children (VAWC) perpetrated by women's intimate partners, i.e, husband;
former husband; or any person who has or had a sexual or dating relationship, or with
whom the woman has a common child.5 The law provides for protection orders from the
barangay and the courts to prevent the commission of further acts of VAWC; and outlines
the duties and responsibilities of barangay officials, law enforcers, prosecutors and court
personnel, social workers, health care providers, and other local government officials in
responding to complaints of VAWC or requests for assistance.
A husband is now before the Court assailing the constitutionality of R.A. 9262 as being
violative of the equal protection and due process clauses, and an undue delegation of
judicial power to barangay officials.
The Factual Antecedents
On March 23, 2006, Rosalie Jaype-Garcia (private respondent) filed, for herself and in behalf
of her minor children, a verified petition6 (Civil Case No. 06-797) before the Regional Trial
Court (RTC) of Bacolod City for the issuance of a Temporary Protection Order (TPO) against
her husband, Jesus C. Garcia (petitioner), pursuant to R.A. 9262. She claimed to be a victim
of physical abuse; emotional, psychological, and economic violence as a result of marital
infidelity on the part of petitioner, with threats of deprivation of custody of her children and
of financial support.7
Private respondent's claims
Private respondent married petitioner in 2002 when she was 34 years old and the former
was eleven years her senior. They have three (3) children, namely: Jo-Ann J. Garcia, 17
years old, who is the natural child of petitioner but whom private respondent adopted;
Jessie Anthone J. Garcia, 6 years old; and Joseph Eduard J. Garcia, 3 years old.8
Private respondent described herself as a dutiful and faithful wife, whose life revolved
around her husband. On the other hand, petitioner, who is of Filipino-Chinese descent, is
dominant, controlling, and demands absolute obedience from his wife and children. He
forbade private respondent to pray, and deliberately isolated her from her friends. When she
took up law, and even when she was already working part time at a law office, petitioner
trivialized her ambitions and prevailed upon her to just stay at home. He was often jealous
of the fact that his attractive wife still catches the eye of some men, at one point
threatening that he would have any man eyeing her killed.9
Things turned for the worse when petitioner took up an affair with a bank manager of
Robinson's Bank, Bacolod City, who is the godmother of one of their sons. Petitioner
admitted to the affair when private respondent confronted him about it in 2004. He even
boasted to the household help about his sexual relations with said bank manager. Petitioner
told private respondent, though, that he was just using the woman because of their
accounts with the bank.10
Petitioner's infidelity spawned a series of fights that left private respondent physically and
emotionally wounded. In one of their quarrels, petitioner grabbed private respondent on
both arms and shook her with such force that caused bruises and hematoma. At another
time, petitioner hit private respondent forcefully on the lips that caused some bleeding.
Petitioner sometimes turned his ire on their daughter, Jo-Ann, who had seen the text
messages he sent to his paramour and whom he blamed for squealing on him. He beat Jo-

Ann on the chest and slapped her many times. When private respondent decided to leave
petitioner, Jo-Ann begged her mother to stay for fear that if the latter leaves, petitioner
would beat her up. Even the small boys are aware of private respondent's sufferings. Their
6-year-old son said that when he grows up, he would beat up his father because of his
cruelty to private respondent.11
All the emotional and psychological turmoil drove private respondent to the brink of despair.
On December 17, 2005, while at home, she attempted suicide by cutting her wrist. She was
found by her son bleeding on the floor. Petitioner simply fled the house instead of taking her
to the hospital. Private respondent was hospitalized for about seven (7) days in which time
petitioner never bothered to visit, nor apologized or showed pity on her. Since then, private
respondent has been undergoing therapy almost every week and is taking anti-depressant
medications.12
When private respondent informed the management of Robinson's Bank that she intends to
file charges against the bank manager, petitioner got angry with her for jeopardizing the
manager's job. He then packed his things and told private respondent that he was leaving
her for good. He even told private respondent's mother, who lives with them in the family
home, that private respondent should just accept his extramarital affair since he is not
cohabiting with his paramour and has not sired a child with her.13
Private respondent is determined to separate from petitioner but she is afraid that he would
take her children from her and deprive her of financial support. Petitioner had previously
warned her that if she goes on a legal battle with him, she would not get a single centavo.14
Petitioner controls the family businesses involving mostly the construction of deep wells. He
is the President of three corporations 326 Realty Holdings, Inc., Negros Rotadrill
Corporation, and J-Bros Trading Corporation of which he and private respondent are both
stockholders. In contrast to the absolute control of petitioner over said corporations, private
respondent merely draws a monthly salary of P20,000.00 from one corporation only, the
Negros Rotadrill Corporation. Household expenses amounting to not less than P200,000.00
a month are paid for by private respondent through the use of credit cards, which, in turn,
are paid by the same corporation together with the bills for utilities.15
On the other hand, petitioner receives a monthly salary of P60,000.00 from Negros Rotadrill
Corporation, and enjoys unlimited cash advances and other benefits in hundreds of
thousands of pesos from the corporations.16 After private respondent confronted him about
the affair, petitioner forbade her to hold office at JBTC Building, Mandalagan, where all the
businesses of the corporations are conducted, thereby depriving her of access to full
information about said businesses. Until the filing of the petition a quo, petitioner has not
given private respondent an accounting of the businesses the value of which she had helped
raise to millions of pesos.17
Action of the RTC of Bacolod City
Finding reasonable ground to believe that an imminent danger of violence against the
private respondent and her children exists or is about to recur, the RTC issued a TPO18 on
March 24, 2006 effective for thirty (30) days, which is quoted hereunder:
Respondent (petitioner herein), Jesus Chua Garcia, is hereby:

a) Ordered to remove all his personal belongings from the conjugal dwelling or family
home within 24 hours from receipt of the Temporary Restraining Order and if he
refuses, ordering that he be removed by police officers from the conjugal dwelling;
this order is enforceable notwithstanding that the house is under the name of 236
Realty Holdings Inc. (Republic Act No. 9262 states "regardless of ownership"), this is
to allow the Petitioner (private respondent herein) to enter the conjugal dwelling
without any danger from the Respondent.
After the Respondent leaves or is removed from the conjugal dwelling, or anytime
the Petitioner decides to return to the conjugal dwelling to remove things, the
Petitioner shall be assisted by police officers when re-entering the family home.
The Chief of Police shall also give the Petitioner police assistance on Sunday, 26
March 2006 because of the danger that the Respondent will attempt to take her
children from her when he arrives from Manila and finds out about this suit.
b) To stay away from the petitioner and her children, mother and all her household
help and driver from a distance of 1,000 meters, and shall not enter the gate of the
subdivision where the Petitioner may be temporarily residing.
c) Not to harass, annoy, telephone, contact or otherwise communicate with the
Petitioner, directly or indirectly, or through other persons, or contact directly or
indirectly her children, mother and household help, nor send gifts, cards, flowers,
letters and the like. Visitation rights to the children may be subject of a modified TPO
in the future.
d) To surrender all his firearms including a .9MM caliber firearm and a Walther PPK
and ordering the Philippine National Police Firearms and Explosives Unit and the
Provincial Director of the PNP to cancel all the Respondent's firearm licenses. He
should also be ordered to surrender any unlicensed firearms in his possession or
control.
e) To pay full financial support for the Petitioner and the children, including rental of
a house for them, and educational and medical expenses.
f) Not to dissipate the conjugal business.
g) To render an accounting of all advances, benefits, bonuses and other cash he
received from all the corporations from 1 January 2006 up to 31 March 2006, which
himself and as President of the corporations and his Comptroller, must submit to the
Court not later than 2 April 2006. Thereafter, an accounting of all these funds shall
be reported to the court by the Comptroller, copy furnished to the Petitioner, every
15 days of the month, under pain of Indirect Contempt of Court.
h) To ensure compliance especially with the order granting support pendente lite, and
considering the financial resources of the Respondent and his threat that if the
Petitioner sues she will not get a single centavo, the Respondent is ordered to put up
a BOND TO KEEP THE PEACE in the amount of FIVE MILLION PESOS, in two sufficient
sureties.

On April 24, 2006, upon motion19 of private respondent, the trial court issued an
amended TPO,20 effective for thirty (30) days, which included the following additional
provisions:
i) The petitioners (private respondents herein) are given the continued use of the
Nissan Patrol and the Starex Van which they are using in Negros Occidental.
j) The petitioners are given the continued use and occupation of the house in
Paraaque, the continued use of the Starex van in Metro Manila, whenever they go to
Manila.
k) Respondent is ordered to immediately post a bond to keep the peace, in two
sufficient sureties.
l) To give monthly support to the petitioner provisionally fixed in the sum of One
Hundred Fifty Thousand Pesos (Php 150,000.00) per month plus rental expenses of
Fifty Thousand Pesos (Php 50,000.00) per month until the matter of support could be
finally resolved.
Two days later, or on April 26, 2006, petitioner filed an Opposition to the Urgent Ex-Parte
Motion for Renewal of the TPO21 seeking the denial of the renewal of the TPO on the grounds
that it did not (1) comply with the three-day notice rule, and (2) contain a notice of hearing.
He further asked that the TPO be modified by (1) removing one vehicle used by private
respondent and returning the same to its rightful owner, the J-Bros Trading Corporation, and
(2) cancelling or reducing the amount of the bond from P5,000,000.00 to a more
manageable level at P100,000.00.
Subsequently, on May 23, 2006, petitioner moved22 for the modification of the TPO to allow
him visitation rights to his children.
On May 24, 2006, the TPO was renewed and extended yet again, but subject only to the
following modifications prayed for by private respondent:
a) That respondent (petitioner herein) return the clothes and other personal
belongings of Rosalie and her children to Judge Jesus Ramos, co-counsel for
Petitioner, within 24 hours from receipt of the Temporary Protection Order by his
counsel, otherwise be declared in Indirect Contempt of Court;
b) Respondent shall make an accounting or list of furniture and equipment in the
conjugal house in Pitimini St., Capitolville Subdivision, Bacolod City within 24 hours
from receipt of the Temporary Protection Order by his counsel;
c) Ordering the Chief of the Women's Desk of the Bacolod City Police Headquarters to
remove Respondent from the conjugal dwelling within eight (8) hours from receipt of
the Temporary Protection Order by his counsel, and that he cannot return until 48
hours after the petitioners have left, so that the petitioner Rosalie and her
representatives can remove things from the conjugal home and make an inventory of
the household furniture, equipment and other things in the conjugal home, which
shall be submitted to the Court.

d) Deliver full financial support of Php200,000.00 and Php50,000.00 for rental and
Php25,000.00 for clothes of the three petitioners (sic) children within 24 hours from
receipt of the Temporary Protection Order by his counsel, otherwise be declared in
indirect contempt of Court;
e) That respondent surrender his two firearms and all unlicensed firearms to the
Clerk of Court within 24 hours from receipt of the Temporary Protection Order by his
counsel;
f) That respondent shall pay petitioner educational expenses of the children upon
presentation of proof of payment of such expenses.23
Claiming that petitioner continued to deprive them of financial support; failed to faithfully
comply with the TPO; and committed new acts of harassment against her and their children,
private respondent filed another application24 for the issuance of a TPO ex parte. She alleged
inter
alia that petitioner contrived a replevin suit against himself by J-Bros Trading, Inc., of which
the latter was purportedly no longer president, with the end in view of recovering the Nissan
Patrol and Starex Van used by private respondent and the children. A writ of replevin was
served upon private respondent by a group of six or seven policemen with long firearms
that scared the two small boys, Jessie Anthone and Joseph Eduard.25
While Joseph Eduard, then three years old, was driven to school, two men allegedly
attempted to kidnap him, which incident traumatized the boy resulting in his refusal to go
back to school. On another occasion, petitioner allegedly grabbed their daughter, Jo-Ann, by
the arm and threatened her.26 The incident was reported to the police, and Jo-Ann
subsequently filed a criminal complaint against her father for violation of R.A. 7610, also
known as the "Special Protection of Children Against Child Abuse, Exploitation and
Discrimination Act."
Aside from the replevin suit, petitioner's lawyers initiated the filing by the housemaids
working at the conjugal home of a complaint for kidnapping and illegal detention against
private respondent. This came about after private respondent, armed with a TPO, went to
said home to get her and her children's belongings. Finding some of her things inside a
housemaid's (Sheryl Jamola) bag in the maids' room, private respondent filed a case for
qualified theft against Jamola.27
On August 23, 2006, the RTC issued a TPO,28 effective for thirty (30) days, which reads as
follows:
Respondent (petitioner herein), Jesus Chua Garcia, is hereby:
1) Prohibited from threatening to commit or committing, personally or through
another, acts of violence against the offended party;
2) Prohibited from harassing, annoying, telephoning, contacting or otherwise
communicating in any form with the offended party, either directly or indirectly;
3) Required to stay away, personally or through his friends, relatives, employees or
agents, from all the Petitioners Rosalie J. Garcia and her children, Rosalie J. Garcia's

three brothers, her mother Primitiva Jaype, cook Novelita Caranzo, driver Romeo
Hontiveros, laundrywoman Mercedita Bornales, security guard Darwin Gayona and
the petitioner's other household helpers from a distance of 1,000 meters, and shall
not enter the gate of the subdivision where the Petitioners are temporarily residing,
as well as from the schools of the three children; Furthermore, that respondent shall
not contact the schools of the children directly or indirectly in any manner including,
ostensibly to pay for their tuition or other fees directly, otherwise he will have access
to the children through the schools and the TPO will be rendered nugatory;
4) Directed to surrender all his firearms including .9MM caliber firearm and a Walther
PPK to the Court;
5) Directed to deliver in full financial support of Php200,000.00 a month and
Php50,000.00 for rental for the period from August 6 to September 6, 2006; and
support in arrears from March 2006 to August 2006 the total amount of
Php1,312,000.00;
6) Directed to deliver educational expenses for 2006-2007 the amount of
Php75,000.00 and Php25,000.00;
7) Directed to allow the continued use of a Nissan Patrol with Plate No. FEW 508 and
a Starex van with Plate No. FFD 991 and should the respondent fail to deliver said
vehicles, respondent is ordered to provide the petitioner another vehicle which is the
one taken by J Bros Tading;
8) Ordered not to dissipate, encumber, alienate, sell, lease or otherwise dispose of
the conjugal assets, or those real properties in the name of Jesus Chua Garcia only
and those in which the conjugal partnership of gains of the Petitioner Rosalie J.
Garcia and respondent have an interest in, especially the conjugal home located in
No. 14, Pitimini St., Capitolville Subdivision, Bacolod City, and other properties which
are conjugal assets or those in which the conjugal partnership of gains of Petitioner
Rosalie J. Garcia and the respondent have an interest in and listed in Annexes "I," "I1," and "I-2," including properties covered by TCT Nos. T-186325 and T-168814;
9) Ordered that the Register of Deeds of Bacolod City and E.B. Magalona shall be
served a copy of this TEMPORARY PROTECTION ORDER and are ordered not to allow
the transfer, sale, encumbrance or disposition of these above-cited properties to any
person, entity or corporation without the personal presence of petitioner Rosalie J.
Garcia, who shall affix her signature in the presence of the Register of Deeds, due to
the fear of petitioner Rosalie that her signature will be forged in order to effect the
encumbrance or sale of these properties to defraud her or the conjugal partnership of
gains.
In its Order29 dated September 26, 2006, the trial court extended the aforequoted TPO for
another ten (10) days, and gave petitioner a period of five (5) days within which to show
cause why the TPO should not be renewed, extended, or modified. Upon petitioner's
manifestation,30 however, that he has not received a copy of private respondent's motion to
modify/renew the TPO, the trial court directed in its Order31 dated October 6, 2006 that
petitioner be furnished a copy of said motion. Nonetheless, an Order32 dated a day earlier,
October 5, had already been issued renewing the TPO dated August 23, 2006. The pertinent
portion is quoted hereunder:

xxxx
x x x it appearing further that the hearing could not yet be finally terminated, the
Temporary Protection Order issued on August 23, 2006 is hereby renewed and extended for
thirty (30) days and continuously extended and renewed for thirty (30) days, after each
expiration, until further orders, and subject to such modifications as may be ordered by the
court.
After having received a copy of the foregoing Order, petitioner no longer submitted the
required comment to private respondent's motion for renewal of the TPO arguing that it
would only be an "exercise in futility."33
Proceedings before the CA
During the pendency of Civil Case No. 06-797, petitioner filed before the Court of Appeals
(CA) a petition34 for prohibition (CA-G.R. CEB-SP. No. 01698), with prayer for injunction and
temporary restraining order, challenging (1) the constitutionality of R.A. 9262 for being
violative of the due process and the equal protection clauses, and (2) the validity of the
modified TPO issued in the civil case for being "an unwanted product of an invalid law."
On May 26, 2006, the appellate court issued a 60-day Temporary Restraining Order36 (TRO)
against the enforcement of the TPO, the amended TPOs and other orders pursuant thereto.
Subsequently, however, on January 24, 2007, the appellate court dismissed36 the petition for
failure of petitioner to raise the constitutional issue in his pleadings before the trial court in
the civil case, which is clothed with jurisdiction to resolve the same. Secondly, the challenge
to the validity
of R.A. 9262 through a petition for prohibition seeking to annul the protection orders issued
by the trial court constituted a collateral attack on said law.
His motion for reconsideration of the foregoing Decision having been denied in the
Resolution37 dated August 14, 2007, petitioner is now before us alleging that
The Issues
I.
THE COURT OF APPEALS ERRED IN DISMISSING THE PETITION ON THE THEORY THAT THE
ISSUE OF CONSTITUTIONALITY WAS NOT RAISED AT THE EARLIEST OPPORTUNITY AND
THAT, THE PETITION CONSTITUTES A COLLATERAL ATTACK ON THE VALIDITY OF THE LAW.
II.
THE COURT OF APPEALS COMMITTED SERIOUS ERROR IN FAILING TO CONCLUDE THAT
R.A. 9262 IS DISCRIMINATORY, UNJUST, AND VIOLATIVE OF THE EQUAL PROTECTION
CLAUSE.
III.

THE COURT OF APPEALS COMMITTED GRAVE MISTAKE IN NOT FINDING THAT R.A. 9262
RUNS COUNTER TO THE DUE PROCESS CLAUSE OF THE CONSTITUTION.
IV.
THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE LAW DOES VIOLENCE TO THE
POLICY OF THE STATE TO PROTECT THE FAMILY AS A BASIC SOCIAL INSTITUTION.
V.
THE COURT OF APPEALS SERIOUSLY ERRED IN NOT DECLARING R.A. No. 9262 AS INVALID
AND UNCONSTITUTIONAL BECAUSE IT ALLOWS AN UNDUE DELEGATION OF JUDICIAL
POWER TO THE BARANGAY OFFICIALS.38
The Ruling of the Court
Before delving into the arguments propounded by petitioner against the constitutionality of
R.A. 9262, we shall first tackle the propriety of the dismissal by the appellate court of the
petition for prohibition (CA-G.R. CEB-SP. No. 01698) filed by petitioner.
As a general rule, the question of constitutionality must be raised at the earliest opportunity
so that if not raised in the pleadings, ordinarily it may not be raised in the trial, and if not
raised in the trial court, it will not be considered on appeal.39 Courts will not anticipate a
question of constitutional law in advance of the necessity of deciding it.40
In defending his failure to attack the constitutionality of R.A. 9262 before the RTC of
Bacolod City, petitioner argues that the Family Court has limited authority and jurisdiction
that is "inadequate to tackle the complex issue of constitutionality." 41
We disagree.
Family Courts have authority and jurisdiction to consider the constitutionality of a statute.
At the outset, it must be stressed that Family Courts are special courts, of the same level as
Regional Trial Courts. Under R.A. 8369, otherwise known as the "Family Courts Act of 1997,"
family courts have exclusive original jurisdiction to hear and decide cases of domestic
violence against women and children.42 In accordance with said law, the Supreme Court
designated from among the branches of the Regional Trial Courts at least one Family Court
in each of several key cities identified.43 To achieve harmony with the first mentioned law,
Section 7 of R.A. 9262 now provides that Regional Trial Courts designated as Family Courts
shall have original and exclusive jurisdiction over cases of VAWC defined under the latter
law, viz:
SEC. 7. Venue. The Regional Trial Court designated as a Family Court shall have original
and exclusive jurisdiction over cases of violence against women and their children under this
law. In the absence of such court in the place where the offense was committed, the case
shall be filed in the Regional Trial Court where the crime or any of its elements was
committed at the option of the complainant. (Emphasis supplied)
Inspite of its designation as a family court, the RTC of Bacolod City remains possessed of
authority as a court of general original jurisdiction to pass upon all kinds of cases whether

civil, criminal, special proceedings, land registration, guardianship, naturalization, admiralty

or insolvency.44 It is settled that RTCs have jurisdiction to resolve the constitutionality of a
statute,45 "this authority being embraced in the general definition of the judicial power to
determine what are the valid and binding laws by the criterion of their conformity to the
fundamental law."46 The Constitution vests the power of judicial review or the power to
declare the constitutionality or validity of a law, treaty, international or executive
agreement, presidential decree, order, instruction, ordinance, or regulation not only in this
Court, but in all RTCs.47 We said in J.M. Tuason and Co., Inc. v. CA48 that, "plainly the
Constitution contemplates that the inferior courts should have jurisdiction in cases involving
constitutionality of any treaty or law, for it speaks of appellate review of final judgments of
inferior courts in cases where such constitutionality happens to be in issue." Section 5,
Article VIII of the 1987 Constitution reads in part as follows:
SEC. 5. The Supreme Court shall have the following powers:
xxx
2. Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules
of Court may provide, final judgments and orders of lower courts in:
a. All cases in which the constitutionality or validity of any treaty, international or executive
agreement, law, presidential decree, proclamation, order, instruction, ordinance, or
regulation is in question.
xxxx
Thus, contrary to the posturing of petitioner, the issue of constitutionality of R.A. 9262 could
have been raised at the earliest opportunity in his Opposition to the petition for protection
order before the RTC of Bacolod City, which had jurisdiction to determine the same, subject
to the review of this Court.
Section 20 of A.M. No. 04-10-11-SC, the Rule on Violence Against Women and Their
Children, lays down a new kind of procedure requiring the respondent to file an opposition
to the petition and not an answer.49 Thus:
SEC. 20. Opposition to petition. (a) The respondent may file an opposition to the petition
which he himself shall verify. It must be accompanied by the affidavits of witnesses and
shall show cause why a temporary or permanent protection order should not be issued.
(b) Respondent shall not include in the opposition any counterclaim, cross-claim or thirdparty complaint, but any cause of action which could be the subject thereof may be litigated
in a separate civil action. (Emphasis supplied)
We cannot subscribe to the theory espoused by petitioner that, since a counterclaim, crossclaim and third-party complaint are to be excluded from the opposition, the issue of
constitutionality cannot likewise be raised therein. A counterclaim is defined as any claim for
money or other relief which a defending party may have against an opposing party.50 A
cross-claim, on the other hand, is any claim by one party against a co-party arising out of
the transaction or occurrence that is the subject matter either of the original action or of a
counterclaim therein.51 Finally, a third-party complaint is a claim that a defending party may,
with leave of court, file against a person not a party to the action for contribution,

indemnity, subrogation or any other relief, in respect of his opponent's claim.52 As pointed
out by Justice Teresita J. Leonardo-De Castro, the unconstitutionality of a statute is not a
cause of action that could be the subject of a counterclaim, cross-claim or a third-party
complaint. Therefore, it is not prohibited from being raised in the opposition in view of the
familiar maxim expressio unius est exclusio alterius.
Moreover, it cannot be denied that this issue affects the resolution of the case a quo
because the right of private respondent to a protection order is founded solely on the very
statute the validity of which is being attacked53 by petitioner who has sustained, or will
sustain, direct injury as a result of its enforcement. The alleged unconstitutionality of R.A.
9262 is, for all intents and purposes, a valid cause for the non-issuance of a protection
order.
That the proceedings in Civil Case No. 06-797 are summary in nature should not have
deterred petitioner from raising the same in his Opposition. The question relative to the
constitutionality of a statute is one of law which does not need to be supported by
evidence.54 Be that as it may, Section 25 of A.M. No. 04-10-11-SC nonetheless allows the
conduct of a hearing to determine legal issues, among others, viz:
SEC. 25. Order for further hearing. - In case the court determines the need for further
hearing, it may issue an order containing the following:
(a) Facts undisputed and admitted;
(b) Factual and legal issues to be resolved;
(c) Evidence, including objects and documents that have been marked and will be
presented;
(d) Names of witnesses who will be ordered to present their direct testimonies in the
form of affidavits; and
(e) Schedule of the presentation of evidence by both parties which shall be done in
one day, to the extent possible, within the 30-day period of the effectivity of the
temporary protection order issued. (Emphasis supplied)
To obviate potential dangers that may arise concomitant to the conduct of a hearing when
necessary, Section 26 (b) of A.M. No. 04-10-11-SC provides that if a temporary protection
order issued is due to expire, the trial court may extend or renew the said order for a period
of thirty (30) days each time until final judgment is rendered. It may likewise modify the
extended or renewed temporary protection order as may be necessary to meet the needs of
the parties. With the private respondent given ample protection, petitioner could proceed to
litigate the constitutional issues, without necessarily running afoul of the very purpose for
the adoption of the rules on summary procedure.
In view of all the foregoing, the appellate court correctly dismissed the petition for
prohibition with prayer for injunction and temporary restraining order (CA-G.R. CEB - SP.
No. 01698). Petitioner may have proceeded upon an honest belief that if he finds succor in a
superior court, he could be granted an injunctive relief. However, Section 22(j) of A.M. No.
04-10-11-SC expressly disallows the filing of a petition for certiorari, mandamus or
prohibition against any interlocutory order issued by the trial court. Hence, the 60-day TRO

issued by the appellate court in this case against the enforcement of the TPO, the amended
TPOs and other orders pursuant thereto was improper, and it effectively hindered the case
from taking its normal course in an expeditious and summary manner.
As the rules stand, a review of the case by appeal or certiorari before judgment is
prohibited. Moreover, if the appeal of a judgment granting permanent protection shall not
stay its enforcement,55 with more reason that a TPO, which is valid only for thirty (30) days
at a time,56 should not be enjoined.
The mere fact that a statute is alleged to be unconstitutional or invalid, does not of itself
entitle a litigant to have the same enjoined.57 In Younger v. Harris, Jr.,58 the Supreme Court
of the United States declared, thus:
Federal injunctions against state criminal statutes, either in their entirety or with respect to
their separate and distinct prohibitions, are not to be granted as a matter of course, even if
such statutes are unconstitutional. No citizen or member of the community is immune from
prosecution, in good faith, for his alleged criminal acts. The imminence of such a
prosecution even though alleged to be unauthorized and, hence, unlawful is not alone
ground for relief in equity which exerts its extraordinary powers only to prevent irreparable
injury to the plaintiff who seeks its aid. (Citations omitted)
The sole objective of injunctions is to preserve the status quo until the trial court hears fully
the merits of the case. It bears stressing, however, that protection orders are granted ex
parte so as to protect women and their children from acts of violence. To issue an injunction
against such orders will defeat the very purpose of the law against VAWC.
Notwithstanding all these procedural flaws, we shall not shirk from our obligation to
determine novel issues, or issues of first impression, with far-reaching implications. We
have, time and again, discharged our solemn duty as final arbiter of constitutional issues,
and with more reason now, in view of private respondent's plea in her Comment 59 to the
instant Petition that we should put the challenge to the constitutionality of R.A. 9262 to rest.
And so we shall.
Intent of Congress in enacting R.A. 9262.
Petitioner claims that since R.A. 9262 is intended to prevent and criminalize spousal and
child abuse, which could very well be committed by either the husband or the wife, gender
alone is not enough basis to deprive the husband/father of the remedies under the law.60
A perusal of the deliberations of Congress on Senate Bill No. 2723,61 which became R.A.
9262, reveals that while the sponsor, Senator Luisa Pimentel-Ejercito (better known as
Senator Loi Estrada), had originally proposed what she called a "synthesized measure"62
an amalgamation of two measures, namely, the "Anti-Domestic Violence Act" and the "AntiAbuse of Women in Intimate Relationships Act"63 providing protection to "all family
members, leaving no one in isolation" but at the same time giving special attention to
women as the "usual victims" of violence and abuse,64 nonetheless, it was eventually agreed
that men be denied protection under the same measure. We quote pertinent portions of the
deliberations:
Wednesday, December 10, 2003

Senator Pangilinan. I just wanted to place this on record, Mr. President. Some women's
groups have expressed concerns and relayed these concerns to me that if we are to include
domestic violence apart from against women as well as other members of the household,
including children or the husband, they fear that this would weaken the efforts to address
domestic violence of which the main victims or the bulk of the victims really are the wives,
the spouses or the female partners in a relationship. We would like to place that on record.
How does the good Senator respond to this kind of observation?
Senator Estrada. Yes, Mr. President, there is this group of women who call themselves
"WIIR" Women in Intimate Relationship. They do not want to include men in this domestic
violence. But plenty of men are also being abused by women. I am playing safe so I placed
here members of the family, prescribing penalties therefor and providing protective
measures for victims. This includes the men, children, live-in, common-law wives, and those
related with the family.65
xxx
Wednesday, January 14, 2004
xxxx
The President Pro Tempore. x x x
Also, may the Chair remind the group that there was the discussion whether to limit this to
women and not to families which was the issue of the AWIR group. The understanding that I
have is that we would be having a broader scope rather than just women, if I remember
correctly, Madam sponsor.
Senator Estrada. Yes, Mr. President.
As a matter of fact, that was brought up by Senator Pangilinan during the interpellation
period.
I think Senator Sotto has something to say to that.
Senator Legarda. Mr. President, the reason I am in support of the measure. Do not get me
wrong. However, I believe that there is a need to protect women's rights especially in the
domestic environment.
As I said earlier, there are nameless, countless, voiceless women who have not had the
opportunity to file a case against their spouses, their live-in partners after years, if not
decade, of battery and abuse. If we broaden the scope to include even the men, assuming
they can at all be abused by the women or their spouses, then it would not equalize the
already difficult situation for women, Mr. President.
I think that the sponsor, based on our earlier conversations, concurs with this position. I am
sure that the men in this Chamber who love their women in their lives so dearly will agree
with this representation. Whether we like it or not, it is an unequal world. Whether we like it
or not, no matter how empowered the women are, we are not given equal opportunities
especially in the domestic environment where the macho Filipino man would always feel that
he is stronger, more superior to the Filipino woman.

xxxx
The President Pro Tempore. What does the sponsor say?
Senator Estrada. Mr. President, before accepting this, the committee came up with this bill
because the family members have been included in this proposed measure since the other
members of the family other than women are also possible victims of violence. While
women are most likely the intended victims, one reason incidentally why the measure
focuses on women, the fact remains that in some relatively few cases, men also stand to be
victimized and that children are almost always the helpless victims of violence. I am worried
that there may not be enough protection extended to other family members particularly
children who are excluded. Although Republic Act No. 7610, for instance, more or less,
addresses the special needs of abused children. The same law is inadequate. Protection
orders for one are not available in said law.
I am aware that some groups are apprehensive about granting the same protection to men,
fearing that they may use this law to justify their abusive behavior against women.
However, we should also recognize that there are established procedures and standards in
our courts which give credence to evidentiary support and cannot just arbitrarily and
whimsically entertain baseless complaints.
Mr. President, this measure is intended to harmonize family relations and to protect the
family as the basic social institution. Though I recognize the unequal power relations
between men and women in our society, I believe we have an obligation to uphold inherent
rights and dignity of both husband and wife and their immediate family members,
particularly children.
While I prefer to focus mainly on women, I was compelled to include other family members
as a critical input arrived at after a series of consultations/meetings with various NGOs,
experts, sports groups and other affected sectors, Mr. President.
Senator Sotto. Mr. President.
The President Pro Tempore. Yes, with the permission of the other senators.
Senator Sotto. Yes, with the permission of the two ladies on the Floor.
The President Pro Tempore. Yes, Sen. Vicente C. Sotto III is recognized.
Senator Sotto. I presume that the effect of the proposed amendment of Senator Legarda
would be removing the "men and children" in this particular bill and focus specifically on
women alone. That will be the net effect of that proposed amendment. Hearing the rationale
mentioned by the distinguished sponsor, Sen. Luisa "Loi" Ejercito Estrada, I am not sure
now whether she is inclined to accept the proposed amendment of Senator Legarda.
I am willing to wait whether she is accepting this or not because if she is going to accept
this, I will propose an amendment to the amendment rather than object to the amendment,
Mr. President.
xxxx

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

The President Pro Tempore. Is there any objection?
xxxx
Senator Sotto. x x x May I propose an amendment to the amendment.
The President Pro Tempore. Before we act on the amendment?
Senator Sotto. Yes, Mr. President.
The President Pro Tempore. Yes, please proceed.
Senator Sotto. Mr. President, I am inclined to believe the rationale used by the distinguished
proponent of the amendment. As a matter of fact, I tend to agree. Kung may maaabuso,
mas malamang iyong babae kaysa sa lalake. At saka iyong mga lalake, puwede na talagang
magulpi iyan. Okey lang iyan. But I cannot agree that we remove the children from this
particular measure.
So, if I may propose an amendment
The President Pro Tempore. To the amendment.
Senator Sotto. more than the women, the children are very much abused. As a matter of
fact, it is not limited to minors. The abuse is not limited to seven, six, 5-year-old children. I
have seen 14, 15-year-old children being abused by their fathers, even by their mothers.
And it breaks my heart to find out about these things.
Because of the inadequate existing law on abuse of children, this particular measure will
update that. It will enhance and hopefully prevent the abuse of children and not only
women.
SOTTO-LEGARDA AMENDMENTS
Therefore, may I propose an amendment that, yes, we remove the aspect of the men in the
bill but not the children.
Senator Legarda. I agree, Mr. President, with the Minority Leader.
The President Pro Tempore. Effectively then, it will be women AND CHILDREN.
Senator Sotto. Yes, Mr. President.
Senator Estrada. It is accepted, Mr. President.
The President Pro Tempore. Is there any objection? [Silence] There being none, the
amendment, as amended, is approved.66

It is settled that courts are not concerned with the wisdom, justice, policy, or expediency of
a statute.67 Hence, we dare not venture into the real motivations and wisdom of the
members of Congress in limiting the protection against violence and abuse under R.A. 9262
to women and children only. No proper challenge on said grounds may be entertained in this
proceeding. Congress has made its choice and it is not our prerogative to supplant this
judgment. The choice may be perceived as erroneous but even then, the remedy against it
is to seek its amendment or repeal by the legislative. By the principle of separation of
powers, it is the legislative that determines the necessity, adequacy, wisdom and
expediency of any law.68 We only step in when there is a violation of the Constitution.
However, none was sufficiently shown in this case.
R.A. 9262 does not violate the guaranty of equal protection of the laws.
Equal protection simply requires that all persons or things similarly situated should be
treated alike, both as to rights conferred and responsibilities imposed. The oft-repeated
disquisition in the early case of Victoriano v. Elizalde Rope Workers' Union69 is instructive:
The guaranty of equal protection of the laws is not a guaranty of equality in the application
of the laws upon all citizens of the state. It is not, therefore, a requirement, in order to
avoid the constitutional prohibition against inequality, that every man, woman and child
should be affected alike by a statute. Equality of operation of statutes does not mean
indiscriminate operation on persons merely as such, but on persons according to the
circumstances surrounding them. It guarantees equality, not identity of rights. The
Constitution does not require that things which are different in fact be treated in law as
though they were the same. The equal protection clause does not forbid discrimination as to
things that are different. It does not prohibit legislation which is limited either in the object
to which it is directed or by the territory within which it is to operate.
The equal protection of the laws clause of the Constitution allows classification. Classification
in law, as in the other departments of knowledge or practice, is the grouping of things in
speculation or practice because they agree with one another in certain particulars. A law is
not invalid because of simple inequality. The very idea of classification is that of inequality,
so that it goes without saying that the mere fact of inequality in no manner determines the
matter of constitutionality. All that is required of a valid classification is that it be
reasonable, which means that the classification should be based on substantial distinctions
which make for real differences; that it must be germane to the purpose of the law; that it
must not be limited to existing conditions only; and that it must apply equally to each
member of the class. This Court has held that the standard is satisfied if the classification or
distinction is based on a reasonable foundation or rational basis and is not palpably
arbitrary. (Emphasis supplied)
Measured against the foregoing jurisprudential yardstick, we find that R.A. 9262 is based on
a valid classification as shall hereinafter be discussed and, as such, did not violate the equal
protection clause by favoring women over men as victims of violence and abuse to whom
the State extends its protection.
I. R.A. 9262 rests on substantial distinctions.
The unequal power relationship between women and men; the fact that women are more
likely than men to be victims of violence; and the widespread gender bias and prejudice
against women all make for real differences justifying the classification under the law. As

Justice McIntyre succinctly states, "the accommodation of differences ... is the essence of
true equality."70
A. Unequal power relationship between men and women
According to the Philippine Commission on Women (the National Machinery for Gender
Equality and Women's Empowerment), violence against women (VAW) is deemed to be
closely linked with the unequal power relationship between women and men otherwise
known as "gender-based violence". Societal norms and traditions dictate people to think
men are the leaders, pursuers, providers, and take on dominant roles in society while
women are nurturers, men's companions and supporters, and take on subordinate roles in
society. This perception leads to men gaining more power over women. With power comes
the need to control to retain that power. And VAW is a form of men's expression of
controlling women to retain power.71
The United Nations, which has long recognized VAW as a human rights issue, passed its
Resolution 48/104 on the Declaration on Elimination of Violence Against Women on
December 20, 1993 stating that "violence against women is a manifestation of historically
unequal power relations between men and women, which have led to domination over and
discrimination against women by men and to the prevention of the full advancement of
women, and that violence against women is one of the crucial social mechanisms by which
women are forced into subordinate positions, compared with men." 72
Then Chief Justice Reynato S. Puno traced the historical and social context of gender-based
violence and developments in advocacies to eradicate VAW, in his remarks delivered during
the Joint Launching of R.A. 9262 and its Implementing Rules last October 27, 2004, the
pertinent portions of which are quoted hereunder:
History reveals that most societies sanctioned the use of violence against women. The
patriarch of a family was accorded the right to use force on members of the family under his
control. I quote the early studies:
Traditions subordinating women have a long history rooted in patriarchy the institutional
rule of men. Women were seen in virtually all societies to be naturally inferior both
physically and intellectually. In ancient Western societies, women whether slave, concubine
or wife, were under the authority of men. In law, they were treated as property.
The Roman concept of patria potestas allowed the husband to beat, or even kill, his wife if
she endangered his property right over her. Judaism, Christianity and other religions
oriented towards the patriarchal family strengthened the male dominated structure of
society.
English feudal law reinforced the tradition of male control over women. Even the eminent
Blackstone has been quoted in his commentaries as saying husband and wife were one and
that one was the husband. However, in the late 1500s and through the entire 1600s, English
common law began to limit the right of husbands to chastise their wives. Thus, common law
developed the rule of thumb, which allowed husbands to beat their wives with a rod or stick
no thicker than their thumb.

In the later part of the 19th century, legal recognition of these rights to chastise wives or
inflict corporeal punishment ceased. Even then, the preservation of the family was given
more importance than preventing violence to women.
The metamorphosis of the law on violence in the United States followed that of the English
common law. In 1871, the Supreme Court of Alabama became the first appellate court to
strike down the common law right of a husband to beat his wife:
The privilege, ancient though it may be, to beat one's wife with a stick, to pull her hair,
choke her, spit in her face or kick her about the floor, or to inflict upon her like indignities, is
not now acknowledged by our law... In person, the wife is entitled to the same protection of
the law that the husband can invoke for himself.
As time marched on, the women's advocacy movement became more organized. The
temperance leagues initiated it. These leagues had a simple focus. They considered the evils
of alcoholism as the root cause of wife abuse. Hence, they demonstrated and picketed
saloons, bars and their husbands' other watering holes. Soon, however, their crusade was
joined by suffragette movements, expanding the liberation movement's agenda. They
fought for women's right to vote, to own property, and more. Since then, the feminist
movement was on the roll.
The feminist movement exposed the private invisibility of the domestic violence to the public
gaze. They succeeded in transforming the issue into an important public concern. No less
than the United States Supreme Court, in 1992 case Planned Parenthood v. Casey, noted:
In an average 12-month period in this country, approximately two million women are the
victims of severe assaults by their male partners. In a 1985 survey, women reported that
nearly one of every eight husbands had assaulted their wives during the past year. The
[American Medical Association] views these figures as "marked underestimates," because
the nature of these incidents discourages women from reporting them, and because surveys
typically exclude the very poor, those who do not speak English well, and women who are
homeless or in institutions or hospitals when the survey is conducted. According to the AMA,
"researchers on family violence agree that the true incidence of partner violence is probably
double the above estimates; or four million severely assaulted women per year."
Studies on prevalence suggest that from one-fifth to one-third of all women will be
physically assaulted by a partner or ex-partner during their lifetime... Thus on an average
day in the United States, nearly 11,000 women are severely assaulted by their male
partners. Many of these incidents involve sexual assault... In families where wife beating
takes place, moreover, child abuse is often present as well.
Other studies fill in the rest of this troubling picture. Physical violence is only the most
visible form of abuse. Psychological abuse, particularly forced social and economic isolation
of women, is also common.
Many victims of domestic violence remain with their abusers, perhaps because they perceive
no superior alternative...Many abused women who find temporary refuge in shelters return
to their husbands, in large part because they have no other source of income... Returning to
one's abuser can be dangerous. Recent Federal Bureau of Investigation statistics disclose
that 8.8 percent of all homicide victims in the United States are killed by their
spouses...Thirty percent of female homicide victims are killed by their male partners.

Finally in 1994, the United States Congress enacted the Violence Against Women Act.
In the International front, the women's struggle for equality was no less successful. The
United States Charter and the Universal Declaration of Human Rights affirmed the equality
of all human beings. In 1979, the UN General Assembly adopted the landmark Convention
on the Elimination of all Forms of Discrimination Against Women (CEDAW). In 1993, the UN
General Assembly also adopted the Declaration on the Elimination of Violence Against
Women. World conferences on the role and rights of women have been regularly held in
Mexico City, Copenhagen, Nairobi and Beijing. The UN itself established a Commission on
the Status of Women.
The Philippines has been in cadence with the half and full steps of all these women's
movements. No less than Section 14, Article II of our 1987 Constitution mandates the State
to recognize the role of women in nation building and to ensure the fundamental equality
before the law of women and men. Our Senate has ratified the CEDAW as well as the
Convention on the Rights of the Child and its two protocols. To cap it all, Congress, on March
8, 2004, enacted Rep. Act No. 9262, entitled "An Act Defining Violence Against Women and
Their Children, Providing for Protective Measures for Victims, Prescribing Penalties therefor
and for other Purposes." (Citations omitted)
B. Women are the "usual" and "most likely"
victims of violence.
At the time of the presentation of Senate Bill No. 2723, official statistics on violence against
women and children show that
x x x physical injuries had the highest number of cases at 5,058 in 2002 representing
55.63% of total cases reported (9,903). And for the first semester of 2003, there were
2,381 reported cases out of 4,354 cases which represent 54.31%. xxx (T)he total number
of women in especially difficult circumstances served by the Department of Social Welfare
and Development (DSWD) for the year 2002, there are 1,417 physically abused/maltreated
cases out of the total of 5,608 cases. xxx (T)here are 1,091 DSWD cases out of a total
number of 3,471 cases for the first semester of 2003. Female violence comprised more than
90% of all forms of abuse and violence and more than 90% of these reported cases were
committed by the women's intimate partners such as their husbands and live-in partners.73
Recently, the Philippine Commission on Women presented comparative statistics on violence
against women across an eight-year period from 2004 to August of 2011 with violations
under R.A. 9262 ranking first among the different VAW categories since its implementation
in 2004,74 thus:
Table 1. Annual Comparative Statistics on Violence Against Women, 2004 - 2011*

Reported
Cases

Rape

200
4

200
5

200
6

200
7

200
8

200
9

2010

2011

997

927

659

837

811

770

1,04
2

832

Incestuous
Rape

38

46

26

22

28

27

19

23

Attempted
Rape

194

148

185

147

204

167

268

201

Acts of
Lasciviousn
ess

580

536

382

358

445

485

745

625

Physical
Injuries

3,5
53

2,3
35

1,8
92

1,5
05

1,3
07

1,4
98

2,01
8

1,58
8

Sexual
Harassmen
t

53

37

38

46

18

54

83

63

RA 9262

218

924

1,2
69

2,3
87

3,5
99

5,2
85

9,97
4

9,02
1

Threats

319

223

199

182

220

208

374

213

Seduction

62

19

29

30

19

19

25

15

Concubina
ge

121

102

93

109

109

99

158

128

RA 9208

17

11

16

24

34

152

190

62

Abduction
/Kidnappin
g 29

16

34

23

28

18

25

22

Unjust
Vexation

90

50

59

59

83

703

183

155

Total

6,2
71

5,3
74

4,8
81

5,7
29

6,9
05

9,4
85

15,1
04

12,9
48

*2011 report covers only from January to August

Source: Philippine National Police Women and Children Protection Center (WCPC)
On the other hand, no reliable estimates may be obtained on domestic abuse and violence
against men in the Philippines because incidents thereof are relatively low and, perhaps,
because many men will not even attempt to report the situation. In the United Kingdom,
32% of women who had ever experienced domestic violence did so four or five (or more)
times, compared with 11% of the smaller number of men who had ever experienced
domestic violence; and women constituted 89% of all those who had experienced 4 or more
incidents of domestic violence.75 Statistics in Canada show that spousal violence by a
woman against a man is less likely to cause injury than the other way around (18 percent
versus 44 percent). Men, who experience violence from their spouses are much less likely to
live in fear of violence at the hands of their spouses, and much less likely to experience
sexual assault. In fact, many cases of physical violence by a woman against a spouse are in
self-defense or the result of many years of physical or emotional abuse.76
While there are, indeed, relatively few cases of violence and abuse perpetrated against men
in the Philippines, the same cannot render R.A. 9262 invalid.
In a 1960 case involving the violation of a city ordinance requiring drivers of animal-drawn
vehicles to pick up, gather and deposit in receptacles the manure emitted or discharged by
their vehicle-drawing animals in any public highways, streets, plazas, parks or alleys, said
ordinance was challenged as violative of the guaranty of equal protection of laws as its
application is limited to owners and drivers of vehicle-drawing animals and not to those
animals, although not utilized, but similarly pass through the same streets.
The ordinance was upheld as a valid classification for the reason that, while there may be
non-vehicle-drawing animals that also traverse the city roads, "but their number must be
negligible and their appearance therein merely occasional, compared to the rig-drawing
ones, as not to constitute a menace to the health of the community."77 The mere fact that
the legislative classification may result in actual inequality is not violative of the right to
equal protection, for every classification of persons or things for regulation by law produces
inequality in some degree, but the law is not thereby rendered invalid.78
C. Gender bias and prejudices
From the initial report to the police through prosecution, trial, and sentencing, crimes
against women are often treated differently and less seriously than other crimes. This was
argued by then United States Senator Joseph R. Biden, Jr., now Vice President, chief
sponsor of the Violence Against Women Act (VAWA), in defending the civil rights remedy as
a valid exercise of the U.S. Congress' authority under the Commerce and Equal Protection
Clauses. He stressed that the widespread gender bias in the U.S. has institutionalized
historic prejudices against victims of rape or domestic violence, subjecting them to "double
victimization" first at the hands of the offender and then of the legal system. 79
Our own Senator Loi Estrada lamented in her Sponsorship Speech for Senate Bill No. 2723
that "(w)henever violence occurs in the family, the police treat it as a private matter and
advise the parties to settle the conflict themselves. Once the complainant brings the case to
the prosecutor, the latter is hesitant to file the complaint for fear that it might later be
withdrawn. This lack of response or reluctance to be involved by the police and prosecution
reinforces the escalating, recurring and often serious nature of domestic violence." 80
Sadly, our own courts, as well, have exhibited prejudices and biases against our women.

In a recent case resolved on March 9, 2011, we fined RTC Judge Venancio J. Amila for
Conduct Unbecoming of a Judge. He used derogatory and irreverent language in reference
to the complainant in a petition for TPO and PPO under R.A. 9262, calling her as "only a
live-in partner" and presenting her as an "opportunist" and a "mistress" in an "illegitimate
relationship." Judge Amila even called her a "prostitute," and accused her of being
motivated by "insatiable greed" and of absconding with the contested property.81 Such
remarks betrayed Judge Amila's prejudices and lack of gender sensitivity.
The enactment of R.A. 9262 aims to address the discrimination brought about by biases and
prejudices against women. As emphasized by the CEDAW Committee on the Elimination of
Discrimination against Women, addressing or correcting discrimination through specific
measures focused on women does not discriminate against men.82 Petitioner's contention,83
therefore, that R.A. 9262 is discriminatory and that it is an "anti-male," "husband-bashing,"
and "hate-men" law deserves scant consideration. As a State Party to the CEDAW, the
Philippines bound itself to take all appropriate measures "to modify the social and cultural
patterns of conduct of men and women, with a view to achieving the elimination of
prejudices and customary and all other practices which are based on the idea of the
inferiority or the superiority of either of the sexes or on stereotyped roles for men and
women."84 Justice Puno correctly pointed out that "(t)he paradigm shift changing the
character of domestic violence from a private affair to a public offense will require the
development of a distinct mindset on the part of the police, the prosecution and the
judges."85
II. The classification is germane to the purpose of the law.
The distinction between men and women is germane to the purpose of R.A. 9262, which is
to address violence committed against women and children, spelled out in its Declaration of
Policy, as follows:
SEC. 2. Declaration of Policy. It is hereby declared that the State values the dignity of
women and children and guarantees full respect for human rights. The State also recognizes
the need to protect the family and its members particularly women and children, from
violence and threats to their personal safety and security.
Towards this end, the State shall exert efforts to address violence committed against women
and children in keeping with the fundamental freedoms guaranteed under the Constitution
and the provisions of the Universal Declaration of Human Rights, the Convention on the
Elimination of All Forms of Discrimination Against Women, Convention on the Rights of the
Child and other international human rights instruments of which the Philippines is a party.
In 1979, the U.N. General Assembly adopted the CEDAW, which the Philippines ratified on
August 5, 1981. Subsequently, the Optional Protocol to the CEDAW was also ratified by the
Philippines on October 6, 2003.86 This Convention mandates that State parties shall accord
to women equality with men before the law87 and shall take all appropriate measures to
eliminate discrimination against women in all matters relating to marriage and family
relations on the basis of equality of men and women.88 The Philippines likewise ratified the
Convention on the Rights of the Child and its two protocols.89 It is, thus, bound by said
Conventions and their respective protocols.
III. The classification is not limited to existing
conditions only, and apply equally to all members

Moreover, the application of R.A. 9262 is not limited to the existing conditions when it was
promulgated, but to future conditions as well, for as long as the safety and security of
women and their children are threatened by violence and abuse.
R.A. 9262 applies equally to all women and children who suffer violence and abuse. Section
3 thereof defines VAWC as:
x x x any act or a series of acts committed by any person against a woman who is his wife,
former wife, or against a woman with whom the person has or had a sexual or dating
relationship, or with whom he has a common child, or against her child whether legitimate
or illegitimate, within or without the family abode, which result in or is likely to result in
physical, sexual, psychological harm or suffering, or economic abuse including threats of
such acts, battery, assault, coercion, harassment or arbitrary deprivation of liberty. It
includes, but is not limited to, the following acts:
A. "Physical Violence" refers to acts that include bodily or physical harm;
B. "Sexual violence" refers to an act which is sexual in nature, committed against a woman
or her child. It includes, but is not limited to:
a) rape, sexual harassment, acts of lasciviousness, treating a woman or her
child as a sex object, making demeaning and sexually suggestive remarks,
physically attacking the sexual parts of the victim's body, forcing her/him to
watch obscene publications and indecent shows or forcing the woman or her
child to do indecent acts and/or make films thereof, forcing the wife and
mistress/lover to live in the conjugal home or sleep together in the same
room with the abuser;
b) acts causing or attempting to cause the victim to engage in any sexual
activity by force, threat of force, physical or other harm or threat of physical
or other harm or coercion;
c) Prostituting the woman or child.
C. "Psychological violence" refers to acts or omissions causing or likely to cause mental or
emotional suffering of the victim such as but not limited to intimidation, harassment,
stalking, damage to property, public ridicule or humiliation, repeated verbal abuse and
marital infidelity. It includes causing or allowing the victim to witness the physical, sexual or
psychological abuse of a member of the family to which the victim belongs, or to witness
pornography in any form or to witness abusive injury to pets or to unlawful or unwanted
deprivation of the right to custody and/or visitation of common children.
D. "Economic abuse" refers to acts that make or attempt to make a woman financially
dependent which includes, but is not limited to the following:
1. withdrawal of financial support or preventing the victim from engaging in
any legitimate profession, occupation, business or activity, except in cases
wherein the other spouse/partner objects on valid, serious and moral grounds
as defined in Article 73 of the Family Code;

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

the use and enjoyment of the conjugal, community or property owned in
common;
3. destroying household property;
4. controlling the victims' own money or properties or solely controlling the
conjugal money or properties.
It should be stressed that the acts enumerated in the aforequoted provision are attributable
to research that has exposed the dimensions and dynamics of battery. The acts described
here are also found in the U.N. Declaration on the Elimination of Violence Against Women.90
Hence, the argument advanced by petitioner that the definition of what constitutes abuse
removes the difference between violent action and simple marital tiffs is tenuous.
There is nothing in the definition of VAWC that is vague and ambiguous that will confuse
petitioner in his defense. The acts enumerated above are easily understood and provide
adequate contrast between the innocent and the prohibited acts. They are worded with
sufficient definiteness that persons of ordinary intelligence can understand what conduct is
prohibited, and need not guess at its meaning nor differ in its application. 91 Yet, petitioner
insists92 that phrases like "depriving or threatening to deprive the woman or her child of a
legal right," "solely controlling the conjugal or common money or properties," "marital
infidelity," and "causing mental or emotional anguish" are so vague that they make every
quarrel a case of spousal abuse. However, we have stressed that the "vagueness" doctrine
merely requires a reasonable degree of certainty for the statute to be upheld not absolute
precision or mathematical exactitude, as petitioner seems to suggest. Flexibility, rather than
meticulous specificity, is permissible as long as the metes and bounds of the statute are
clearly delineated. An act will not be held invalid merely because it might have been more
explicit in its wordings or detailed in its provisions.93
There is likewise no merit to the contention that R.A. 9262 singles out the husband or father
as the culprit. As defined above, VAWC may likewise be committed "against a woman with
whom the person has or had a sexual or dating relationship." Clearly, the use of the genderneutral word "person" who has or had a sexual or dating relationship with the woman
encompasses even lesbian relationships. Moreover, while the law provides that the offender
be related or connected to the victim by marriage, former marriage, or a sexual or dating
relationship, it does not preclude the application of the principle of conspiracy under the
Revised Penal Code (RPC). Thus, in the case of Go-Tan v. Spouses Tan,94 the parents-in-law
of Sharica Mari L. Go-Tan, the victim, were held to be proper respondents in the case filed
by the latter upon the allegation that they and their son (Go-Tan's husband) had community
of design and purpose in tormenting her by giving her insufficient financial support;
harassing and pressuring her to be ejected from the family home; and in repeatedly abusing
her verbally, emotionally, mentally and physically.
R.A. 9262 is not violative of the
due process clause of the Constitution.
Petitioner bewails the disregard of R.A. 9262, specifically in the issuance of POs, of all
protections afforded by the due process clause of the Constitution. Says he: "On the basis of
unsubstantiated allegations, and practically no opportunity to respond, the husband is
stripped of family, property, guns, money, children, job, future employment and reputation,
all in a matter of seconds, without an inkling of what happened."95

A protection order is an order issued to prevent further acts of violence against women and
their children, their family or household members, and to grant other necessary reliefs. Its
purpose is to safeguard the offended parties from further harm, minimize any disruption in
their daily life and facilitate the opportunity and ability to regain control of their life. 96
"The scope of reliefs in protection orders is broadened to ensure that the victim or offended
party is afforded all the remedies necessary to curtail access by a perpetrator to the victim.
This serves to safeguard the victim from greater risk of violence; to accord the victim and
any designated family or household member safety in the family residence, and to prevent
the perpetrator from committing acts that jeopardize the employment and support of the
victim. It also enables the court to award temporary custody of minor children to protect the
children from violence, to prevent their abduction by the perpetrator and to ensure their
financial support."97
The rules require that petitions for protection order be in writing, signed and verified by the
petitioner98 thereby undertaking full responsibility, criminal or civil, for every allegation
therein. Since "time is of the essence in cases of VAWC if further violence is to be
prevented,"99 the court is authorized to issue ex parte a TPO after raffle but before notice
and hearing when the life, limb or property of the victim is in jeopardy and there is
reasonable ground to believe that the order is necessary to protect the victim from the
immediate and imminent danger of VAWC or to prevent such violence, which is about to
recur.100
There need not be any fear that the judge may have no rational basis to issue an ex parte
order. The victim is required not only to verify the allegations in the petition, but also to
attach her witnesses' affidavits to the petition.101
The grant of a TPO ex parte cannot, therefore, be challenged as violative of the right to due
process. Just like a writ of preliminary attachment which is issued without notice and
hearing because the time in which the hearing will take could be enough to enable the
defendant to abscond or dispose of his property,102 in the same way, the victim of VAWC
may already have suffered harrowing experiences in the hands of her tormentor, and
possibly even death, if notice and hearing were required before such acts could be
prevented. It is a constitutional commonplace that the ordinary requirements of procedural
due process must yield to the necessities of protecting vital public interests,103 among which
is protection of women and children from violence and threats to their personal safety and
security.
It should be pointed out that when the TPO is issued ex parte, the court shall likewise order
that notice be immediately given to the respondent directing him to file an opposition within
five (5) days from service. Moreover, the court shall order that notice, copies of the petition
and TPO be served immediately on the respondent by the court sheriffs. The TPOs are
initially effective for thirty (30) days from service on the respondent.104
Where no TPO is issued ex parte, the court will nonetheless order the immediate issuance
and service of the notice upon the respondent requiring him to file an opposition to the
petition within five (5) days from service. The date of the preliminary conference and
hearing on the merits shall likewise be indicated on the notice.105
The opposition to the petition which the respondent himself shall verify, must be
accompanied by the affidavits of witnesses and shall show cause why a temporary or
permanent protection order should not be issued.106

It is clear from the foregoing rules that the respondent of a petition for protection order
should be apprised of the charges imputed to him and afforded an opportunity to present
his side. Thus, the fear of petitioner of being "stripped of family, property, guns, money,
children, job, future employment and reputation, all in a matter of seconds, without an
inkling of what happened" is a mere product of an overactive imagination. The essence of
due process is to be found in the reasonable opportunity to be heard and submit any
evidence one may have in support of one's defense. "To be heard" does not only mean
verbal arguments in court; one may be heard also through pleadings. Where opportunity to
be heard, either through oral arguments or pleadings, is accorded, there is no denial of
procedural due process.107
It should be recalled that petitioner filed on April 26, 2006 an Opposition to the Urgent ExParte Motion for Renewal of the TPO that was granted only two days earlier on April 24,
2006. Likewise, on May 23, 2006, petitioner filed a motion for the modification of the TPO to
allow him visitation rights to his children. Still, the trial court in its Order dated September
26, 2006, gave him five days (5) within which to show cause why the TPO should not be
renewed or extended. Yet, he chose not to file the required comment arguing that it would
just be an "exercise in futility," conveniently forgetting that the renewal of the questioned
TPO was only for a limited period (30 days) each time, and that he could prevent the
continued renewal of said order if he can show sufficient cause therefor. Having failed to do
so, petitioner may not now be heard to complain that he was denied due process of law.
Petitioner next laments that the removal and exclusion of the respondent in the VAWC case
from the residence of the victim, regardless of ownership of the residence, is virtually a
"blank check" issued to the wife to claim any property as her conjugal home. 108
The wording of the pertinent rule, however, does not by any stretch of the imagination
suggest that this is so. It states:
SEC. 11. Reliefs available to the offended party. -- The protection order shall include any,
some or all of the following reliefs:
xxxx
(c) Removing and excluding the respondent from the residence of the offended party,
regardless of ownership of the residence, either temporarily for the purpose of protecting
the offended party, or permanently where no property rights are violated. If the respondent
must remove personal effects from the residence, the court shall direct a law enforcement
agent to accompany the respondent to the residence, remain there until the respondent has
gathered his things and escort him from the residence;
xxxx
Indubitably, petitioner may be removed and excluded from private respondent's residence,
regardless of ownership, only temporarily for the purpose of protecting the latter. Such
removal and exclusion may be permanent only where no property rights are violated. How
then can the private respondent just claim any property and appropriate it for herself, as
petitioner seems to suggest?
The non-referral of a VAWC case
to a mediator is justified.

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

mediation and counseling, the law has done violence to the avowed policy of the State to
"protect and strengthen the family as a basic autonomous social institution."109
Under Section 23(c) of A.M. No. 04-10-11-SC, the court shall not refer the case or any issue
thereof to a mediator. The reason behind this provision is well-explained by the Commentary
on Section 311 of the Model Code on Domestic and Family Violence as follows: 110
This section prohibits a court from ordering or referring parties to mediation in a proceeding
for an order for protection. Mediation is a process by which parties in equivalent bargaining
positions voluntarily reach consensual agreement about the issue at hand. Violence,
however, is not a subject for compromise. A process which involves parties mediating the
issue of violence implies that the victim is somehow at fault. In addition, mediation of issues
in a proceeding for an order of protection is problematic because the petitioner is frequently
unable to participate equally with the person against whom the protection order has been
sought. (Emphasis supplied)
There is no undue delegation of
judicial power to barangay officials.
Petitioner contends that protection orders involve the exercise of judicial power which, under
the Constitution, is placed upon the "Supreme Court and such other lower courts as may be
established by law" and, thus, protests the delegation of power to barangay officials to issue
protection orders.111 The pertinent provision reads, as follows:
SEC. 14. Barangay Protection Orders (BPOs); Who May Issue and How. Barangay
Protection Orders (BPOs) refer to the protection order issued by the Punong Barangay
ordering the perpetrator to desist from committing acts under Section 5 (a) and (b) of this
Act.1wphi1 A Punong Barangay who receives applications for a BPO shall issue the
protection order to the applicant on the date of filing after ex parte determination of the
basis of the application. If the Punong Barangay is unavailable to act on the application for a
BPO, the application shall be acted upon by any available Barangay Kagawad. If the BPO is
issued by a Barangay Kagawad, the order must be accompanied by an attestation by the
Barangay Kagawad that the Punong Barangay was unavailable at the time of the issuance of
the BPO. BPOs shall be effective for fifteen (15) days. Immediately after the issuance of an
ex parte BPO, the Punong Barangay or Barangay Kagawad shall personally serve a copy of
the same on the respondent, or direct any barangay official to effect its personal service.
The parties may be accompanied by a non-lawyer advocate in any proceeding before the
Punong Barangay.
Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine whether or
not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of the Government.112 On the other hand,
executive power "is generally defined as the power to enforce and administer the laws. It is
the power of carrying the laws into practical operation and enforcing their due
observance."113
As clearly delimited by the aforequoted provision, the BPO issued by the Punong Barangay
or, in his unavailability, by any available Barangay Kagawad, merely orders the perpetrator
to desist from (a) causing physical harm to the woman or her child; and (2) threatening to

cause the woman or her child physical harm. Such function of the Punong Barangay is, thus,
purely executive in nature, in pursuance of his duty under the Local Government Code to
"enforce all laws and ordinances," and to "maintain public order in the barangay."114
We have held that "(t)he mere fact that an officer is required by law to inquire into the
existence of certain facts and to apply the law thereto in order to determine what his official
conduct shall be and the fact that these acts may affect private rights do not constitute an
exercise of judicial powers."115
In the same manner as the public prosecutor ascertains through a preliminary inquiry or
proceeding "whether there is reasonable ground to believe that an offense has been
committed and the accused is probably guilty thereof," the Punong Barangay must
determine reasonable ground to believe that an imminent danger of violence against the
woman and her children exists or is about to recur that would necessitate the issuance of a
BPO. The preliminary investigation conducted by the prosecutor is, concededly, an
executive, not a judicial, function. The same holds true with the issuance of a BPO.
We need not even belabor the issue raised by petitioner that since barangay officials and
other law enforcement agencies are required to extend assistance to victims of violence and
abuse, it would be very unlikely that they would remain objective and impartial, and that
the chances of acquittal are nil. As already stated, assistance by barangay officials and other
law enforcement agencies is consistent with their duty to enforce the law and to maintain
peace and order.
Conclusion
Before a statute or its provisions duly challenged are voided, an unequivocal breach of, or a
clear conflict with the Constitution, not merely a doubtful or argumentative one, must be
demonstrated in such a manner as to leave no doubt in the mind of the Court. In other
words, the grounds for nullity must be beyond reasonable doubt.116 In the instant case,
however, no concrete evidence and convincing arguments were presented by petitioner to
warrant a declaration of the unconstitutionality of R.A. 9262, which is an act of Congress
and signed into law by the highest officer of the co-equal executive department. As we said
in Estrada v. Sandiganbayan, 117 courts must assume that the legislature is ever conscious of
the borders and edges of its plenary powers, and passed laws with full knowledge of the
facts and for the purpose of promoting what is right and advancing the welfare of the
majority.
We reiterate here Justice Puno's observation that "the history of the women's movement
against domestic violence shows that one of its most difficult struggles was the fight against
the violence of law itself. If we keep that in mind, law will not again be a hindrance to the
struggle of women for equality but will be its fulfillment."118 Accordingly, the constitutionality
of R.A. 9262 is, as it should be, sustained.
WHEREFORE, the instant petition for review on certiorari is hereby DENIED for lack of merit.
SO ORDERED.