MALA IN SE VERSUS MALA PROHIBITA

The importance of the distinction is for judges to be able to determine if the element of intent is
necessary to convict the accused. Consequently, it is also important to determine if good faith is
a proper defense for the accused.

MALA IN SE MALA PROHIBITA

Acts or omissions which are wrong or evil in Acts or omissions that are not wrong or evil
its very nature in essence, but they are wrong or evil because
they are prohibited.
Good faith is a proper defense Good faith is not a defense;
The stages of execution under Article 6 of the They are not
Revised Penal Code is considered in
arriving at the proper penalty to be imposed
The degree of participation of the offenders It is not
under Title Two of the Revised Penal Code
is taken into consideration on the imposition
of penalty
The modifying circumstances are appreciated They are not
in determining the penalty imposable
Generally, all crimes punished under the Generally, crimes punished by Special Penal
Revised Penal Code, and any amendments Laws, standing alone
thereto through Special Penal Laws
An example of such is Illegal Possession of
Examples of them are Adultery, Concubinage, Firearms. As such, they are called Offenses.
and Prohibited Drugs. However, not all Special Penal Laws are
considered Mala Prohibita. There are certain
Special Penal Laws that punishes offenses
that are considered Mala in Se (i.e. Terrorism,
Genocide, Torture).
Mala in se felonies are defined and penalized In crimes that are mala prohibita, the criminal
in the Revised Penal Code. When the acts acts are not inherently immoral but become
complained of are inherently immoral, they punishable only because the law says they are
are deemed mala in se, even if they are forbidden. With these crimes, the sole issue is
punished by a special law. Accordingly, whether the law has been violated.
criminal intent must be clearly established Criminal intent is not necessary where the
with the other elements of the crime; acts are prohibited for reasons of public
otherwise, no crime is committed. policy.”

RELATION OF RPC TO PENAL LAWS

SPECIAL LAWS AFFECTING PENALTIES

- Indeterminate Sentence Law
- Probation Law

RA 9262

AN ACT DEFINING VIOLENCE AGAINST WOMEN AND THEIR CHILDREN,

PROVIDING FOR PROTECTIVE MEASURES FOR VICTIMS, PRESCRIBING
PENALTIES THEREFORE, AND FOR OTHER PURPOSES

1. VICTIMS
- a woman who is his wife
- a woman who is his former wife
- a woman with whom the person has or had a sexual relationship
- Specific acts of violence a woman with whom the person has or had a sexual
relationship
- with whom he has a common child
- against her child whether legitimate or illegitimate, within or without the family
abode
2. SPECIFIC ACTS AND VIOLENCE AGAINST WOMEN AND THEIR
CHILDREN

SECTION 5. Acts of Violence Against Women and Their Children.- The crime of
violence against women and their children is committed through any of the following
acts:
(a) Causing physical harm to the woman or her child;

(b) Threatening to cause the woman or her child physical harm;

(c) Attempting to cause the woman or her child physical harm;

(d) Placing the woman or her child in fear of imminent physical harm;

(e) Attempting to compel or compelling the woman or her child to engage in conduct
which the woman or her child has the right to desist from or desist from conduct which
the woman or her child has the right to engage in, or attempting to restrict or restricting
the woman's or her child's freedom of movement or conduct by force or threat of force,
physical or other harm or threat of physical or other harm, or intimidation directed
against the woman or child. This shall include, but not limited to, the following acts
committed with the purpose or effect of controlling or restricting the woman's or her
child's movement or conduct:

(1) Threatening to deprive or actually depriving the woman or her child of

custody to her/his family;

(2) Depriving or threatening to deprive the woman or her children of financial

support legally due her or her family, or deliberately providing the woman's
children insufficient financial support;

(3) Depriving or threatening to deprive the woman or her child of a legal right;

(4) Preventing the woman in engaging in any legitimate profession,

occupation, business or activity or controlling the victim's own money or
properties, or solely controlling the conjugal or common money, or
properties;

(f) Inflicting or threatening to inflict physical harm on oneself for the purpose of
controlling her actions or decisions;

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

(h) Engaging in purposeful, knowing, or reckless conduct, personally or through

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

(1) Stalking or following the woman or her child in public or private places;
 (2) Peering in the window or lingering outside the residence of the woman or
her child;

(3) Entering or remaining in the dwelling or on the property of the woman or

her child against her/his will;

(4) Destroying the property and personal belongings or inflicting harm to

animals or pets of the woman or her child; and

(5) Engaging in any form of harassment or violence;

(i) Causing mental or emotional anguish, public ridicule or humiliation to the woman
or her child, including, but not limited to, repeated verbal and emotional abuse, and
denial of financial support or custody of minor children of access to the woman's
child/children.

- Testimony of the offended party is indispensable.

3. PROTECTIVE POLICES UNDER THE LAW

SECTION 8. Protection Orders.- A protection order is an order issued under this act for
the purpose of preventing further acts of violence against a woman or her child specified
in Section 5 of this Act and granting other necessary relief. The relief granted under a
protection order serve the purpose of safeguarding the victim from further harm,
minimizing any disruption in the victim's daily life, and facilitating the opportunity and
ability of the victim to independently regain control over her life. The provisions of the
protection order shall be enforced by law enforcement agencies. The protection orders
that may be issued under this Act are the barangay protection order (BPO), temporary
protection order (TPO) and permanent protection order (PPO). The protection orders that
may be issued under this Act shall include any, some or all of the following reliefs:

(a) Prohibition of the respondent from threatening to commit or committing, personally

or through another, any of the acts mentioned in Section 5 of this Act;

(b) Prohibition of the respondent from harassing, annoying, telephoning, contacting or

otherwise communicating with the petitioner, directly or indirectly;

(c) Removal and exclusion of the respondent from the residence of the petitioner,
regardless of ownership of the residence, either temporarily for the purpose of protecting
the petitioner, or permanently where no property rights are violated, and if respondent
must remove personal effects from the residence, the court shall direct a law enforcement
agent to accompany the respondent has gathered his things and escort respondent from
the residence;
(d) Directing the respondent to stay away from petitioner and designated family or
household member at a distance specified by the court, and to stay away from the
residence, school, place of employment, or any specified place frequented by the
petitioner and any designated family or household member;

(e) Directing lawful possession and use by petitioner of an automobile and other essential
personal effects, regardless of ownership, and directing the appropriate law enforcement
officer to accompany the petitioner to the residence of the parties to ensure that the
petitioner is safely restored to the possession of the automobile and other essential
personal effects, or to supervise the petitioner's or respondent's removal of personal
belongings;

(f) Granting a temporary or permanent custody of a child/children to the petitioner;

(g) Directing the respondent to provide support to the woman and/or her child if entitled
to legal support. Notwithstanding other laws to the contrary, the court shall order an
appropriate percentage of the income or salary of the respondent to be withheld regularly
by the respondent's employer for the same to be automatically remitted directly to the
woman. Failure to remit and/or withhold or any delay in the remittance of support to the
woman and/or her child without justifiable cause shall render the respondent or his
employer liable for indirect contempt of court;

(h) Prohibition of the respondent from any use or possession of any firearm or deadly
weapon and order him to surrender the same to the court for appropriate disposition by
the court, including revocation of license and disqualification to apply for any license to
use or possess a firearm. If the offender is a law enforcement agent, the court shall order
the offender to surrender his firearm and shall direct the appropriate authority to
investigate on the offender and take appropriate action on matter;

(i) Restitution for actual damages caused by the violence inflicted, including, but not
limited to, property damage, medical expenses, childcare expenses and loss of income;

(j) Directing the DSWD or any appropriate agency to provide petitioner may need; and

(k) Provision of such other forms of relief as the court deems necessary to protect and
provide for the safety of the petitioner and any designated family or household member,
provided petitioner and any designated family or household member consents to such
relief.

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

The issuance of a BPO or the pendency of an application for BPO shall not preclude a
petitioner from applying for, or the court from granting a TPO or PPO.
SECTION 9. Who may file Petition for Protection Orders. – A petition for protection
order may be filed by any of the following:

(a) the offended party;

(b) parents or guardians of the offended party;

(c) ascendants, descendants or collateral relatives within the fourth civil degree of
consanguinity or affinity;

(d) officers or social workers of the DSWD or social workers of local government units
(LGUs);

(e) police officers, preferably those in charge of women and children's desks;

(f) Punong Barangay or Barangay Kagawad;

(g) lawyer, counselor, therapist or healthcare provider of the petitioner;

(h) At least two (2) concerned responsible citizens of the city or municipality where the
violence against women and their children occurred and who has personal knowledge of
the offense committed.

SECTION 10. Where to Apply for a Protection Order. – Applications for BPOs shall
follow the rules on venue under Section 409 of the Local Government Code of 1991 and
its implementing rules and regulations. An application for a TPO or PPO may be filed in
the regional trial court, metropolitan trial court, municipal trial court, municipal circuit
trial court with territorial jurisdiction over the place of residence of the petitioner:
Provided, however, That if a family court exists in the place of residence of the petitioner,
the application shall be filed with that court.

SECTION 11. How to Apply for a Protection Order. – The application for a protection
order must be in writing, signed and verified under oath by the applicant. It may be filed
as an independent action or as incidental relief in any civil or criminal case the subject
matter or issues thereof partakes of a violence as described in this Act. A standard
protection order application form, written in English with translation to the major local
languages, shall be made available to facilitate applications for protections order, and
shall contain, among other, the following information:

(a) names and addresses of petitioner and respondent;

(b) description of relationships between petitioner and respondent;

(c) a statement of the circumstances of the abuse;

(d) description of the reliefs requested by petitioner as specified in Section 8 herein;

(e) request for counsel and reasons for such;

(f) request for waiver of application fees until hearing; and

(g) an attestation that there is no pending application for a protection order in another
court.

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

An application for protection order filed with a court shall be considered an application
for both a TPO and PPO.

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

SECTION 12. Enforceability of Protection Orders. – All TPOs and PPOs issued under
this Act shall be enforceable anywhere in the Philippines and a violation thereof shall be
punishable with a fine ranging from Five Thousand Pesos (P5,000.00) to Fifty Thousand
Pesos (P50,000.00) and/or imprisonment of six (6) months.

SECTION 13. Legal Representation of Petitioners for Protection Order. – If the

woman or her child requests in the applications for a protection order for the appointment
of counsel because of lack of economic means to hire a counsel de parte, the court shall
immediately direct the Public Attorney's Office (PAO) to represent the petitioner in the
hearing on the application. If the PAO determines that the applicant can afford to hire the
services of a counsel de parte, it shall facilitate the legal representation of the petitioner
by a counsel de parte. The lack of access to family or conjugal resources by the applicant,
such as when the same are controlled by the perpetrator, shall qualify the petitioner to
legal representation by the PAO.

However, a private counsel offering free legal service is not barred from representing the
petitioner.

SECTION 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. 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 for 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 is personal service.

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

SECTION 15. Temporary Protection Orders. – Temporary Protection Orders (TPOs)

refers to the protection order issued by the court on the date of filing of the application
after ex parte  determination that such order should be issued. A court may grant in a TPO
any, some or all of the reliefs mentioned in this Act and shall be effective for thirty (30)
days. The court shall schedule a hearing on the issuance of a PPO prior to or on the date
of the expiration of the TPO. The court shall order the immediate personal service of the
TPO on the respondent by the court sheriff who may obtain the assistance of law
enforcement agents for the service. The TPO shall include notice of the date of the
hearing on the merits of the issuance of a PPO.

SECTION 16. Permanent Protection Orders. – Permanent Protection Order (PPO)

refers to protection order issued by the court after notice and hearing.

Respondents non-appearance despite proper notice, or his lack of a lawyer, or the non-
availability of his lawyer shall not be a ground for rescheduling or postponing the hearing
on the merits of the issuance of a PPO. If the respondents appears without counsel on the
date of the hearing on the PPO, the court shall appoint a lawyer for the respondent and
immediately proceed with the hearing. In case the respondent fails to appear despite
proper notice, the court shall allow ex parte presentation of the evidence by the applicant
and render judgment on the basis of the evidence presented. The court shall allow the
introduction of any history of abusive conduct of a respondent even if the same was not
directed against the applicant or the person for whom the applicant is made.

The court shall, to the extent possible, conduct the hearing on the merits of the issuance
of a PPO in one (1) day. Where the court is unable to conduct the hearing within one (1)
day and the TPO issued is due to expire, the court shall continuously extend or renew the
TPO for a period of thirty (30) days at each particular time until final judgment is issued.
The extended or renewed TPO may be modified by the court as may be necessary or
applicable to address the needs of the applicant.

The court may grant any, some or all of the reliefs specified in Section 8 hereof in a PPO.
A PPO shall be effective until revoked by a court upon application of the person in whose
favor the order was issued. The court shall ensure immediate personal service of the PPO
on respondent.
 The court shall not deny the issuance of protection order on the basis of the lapse of time
between the act of violence and the filing of the application.

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

SECTION 17. Notice of Sanction in Protection Orders. – The following statement must

be printed in bold-faced type or in capital letters on the protection order issued by
the Punong Barangay or court:

4. JURISDICTION/PRESCRIPTIVE PERIOD/PENALTIES
SECTION 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 compliant.

SECTION 24. Prescriptive Period. – Acts falling under Sections 5(a) to 5(f) shall
prescribe in twenty (20) years. Acts falling under Sections 5(g) to 5(I) shall prescribe
in ten (10) years.

SECTION 6. Penalties.- The crime of violence against women and their children,
under Section 5 hereof shall be punished according to the following rules:

(a) Acts falling under Section 5(a) constituting attempted, frustrated or consummated
parricide or murder or homicide shall be punished in accordance with the provisions
of the Revised Penal Code.

If these acts resulted in mutilation, it shall be punishable in accordance with the

Revised Penal Code; those constituting serious physical injuries shall have the
penalty of prison mayor; those constituting less serious physical injuries shall be
punished by prision correccional; and those constituting slight physical injuries shall
be punished by arresto mayor.

Acts falling under Section 5(b) shall be punished by imprisonment of two degrees
lower than the prescribed penalty for the consummated crime as specified in the
preceding paragraph but shall in no case be lower than arresto mayor.

(b) Acts falling under Section 5(c) and 5(d) shall be punished by arresto mayor;

(c) Acts falling under Section 5(e) shall be punished by prision correccional;
 (d) Acts falling under Section 5(f) shall be punished by arresto mayor;

(e) Acts falling under Section 5(g) shall be punished by prision mayor;

(f) Acts falling under Section 5(h) and Section 5(i) shall be punished by prision
mayor.

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

In addition to imprisonment, the perpetrator shall (a) pay a fine in the amount of not
less than One hundred thousand pesos (P100,000.00) but not more than three
hundred thousand pesos (300,000.00); (b) undergo mandatory psychological
counseling or psychiatric treatment and shall report compliance to the court.

5. BATTERED WOMAN SYNDROME

SECTION 26. Battered Woman Syndrome as a Defense. – Victim-survivors who
are found by the courts to be suffering from battered woman syndrome do not incur
any criminal and civil liability notwithstanding the absence of any of the elements for
justifying circumstances of self-defense under the Revised Penal Code.
In the determination of the state of mind of the woman who was suffering from
battered woman syndrome at the time of the commission of the crime, the courts
shall be assisted by expert psychiatrists/ psychologists.

BWS begins as an abusive cycle with THREE STAGES. First, the abuser engages
in behaviors that create relationship tension. Second, the tension explodes when the
abuser commits some form of abuse: physical, psychological, emotional, sexual, or
otherwise. Third, the abuser tries to fix his wrongdoing and apologizes. This third
stage is frequently referred to as the "honeymoon" stage, and involves the abuser
making amends for his bad behavior. During the honeymoon stage, the abuser is
forgiven, and the cycle starts all over again.

As the cycle continues, the victim starts to feel that the abuse is her own fault.
When the victim takes responsibility for her own abuse, this develops into "learned
helplessness." The victim feels helpless because she has convinced herself that the
abuse is her own fault, yet she cannot understand why the abuse continues if it's her
own fault. She becomes convinced of her helplessness and that the abuse cannot be
escaped, absent the most drastic measures.
 The common characteristics of BWS women are as follows:

1. She takes full responsibility over the abuse, and finds it difficult or impossible to
blame the abuser himself;
2. She fears for her safety; and
3. She irrationally believes that the abuser is all-powerful and will hurt her if she
contacts the authorities and seeks help.

DEFINE VIOLENCE AGAINST WOMEN AND THEIR CHILDREN.

“It refers to any act or a series of acts committed by any person against a woman who is his wife,
former wife, or against a woman with whom the person has or had a sexual or dating
relationship, or with whom he has a common child, or against her child whether legitimate or
illegitimate, within or without the family abode, which result in or is likely to result in physical,
sexual, psychological harm or suffering, or economic abuse including threats of such acts,
battery, assault, coercion, harassment or arbitrary deprivation of liberty. (Section 3 of R.A.
9262)

Section 3 states that violence against women and children includes, but is not limited to, the
following acts: a) Physical Violence; b) Sexual violence; c) Psychological violence; d)
Economic abuse.

WHAT ARE THE ELEMENTS OF THE CRIME OF VIOLENCE AGAINST WOMEN?

The elements of the crime of violence against women through harassment are:
1. The offender has or had a sexual or dating relationship with the offended woman;
2. The offender, by himself or through another, commits an act or series of acts of harassment
against the woman; and
3. The harassment alarms or causes substantial emotional or psychological distress to her.
(Rustan Ang Y Pascua vs. Sagud, G.R. No. 182835, April 20, 2010)

A TPO cannot be issued in favor of a man against his wife under R.A. No. 9262, known as the
Anti-
Violence Against Women and Their Children Act of 2004. In one case, the judge was found
guilty of gross ignorance of the law for issuing a Temporary Protection Order (TPO) in favor of
a male petitioner.
WHAT IS THE CONCEPT OF A BATTERED WOMAN SYNDROME?
It refers to a scientifically defined pattern of psychological and behavioral symptoms found in
women living in battering relationships as a result of cumulative abuse.

IS BATTERED WOMEN SYNDROME A PROPER DEFENSE? Section 26 of R.A. 9262 is

explicit:
“Victim-survivors who are found by the courts to be suffering from battered woman syndrome
do not incur any criminal and civil liability notwithstanding the absence of any of the elements
for justifying circumstances of self-defense under the Revised Penal Code.

BAR Q. [2010]
A. Define “Battered Woman Syndrome.” It refers to a scientifically defined pattern of
psychological and behavioral symptoms found in women living in battering relationships as
a result of cumulative abuse.
B. What are the three phases of the “Battered Woman Syndrome”?
The three phases are the following: a) tension-building phase b) acute battering incident c)
tranquil and loving phase.
C. Would the defense prosper despite the absence of any of the elements for justifying
circumstances of self-defense under the Revised Penal Code?
Yes, R.A. 9262 expressly states that victim-survivors who are found by the courts to be
suffering from battered woman syndrome do not incur any criminal and civil liability
notwithstanding the absence of any of the elements for justifying circumstances of self-
defense under the Revised
Penal Code.

ABUSES may BE COMMITTED BY ANOTHER THRU CONSPIRACY. (SHARICA MARI

L. GO-TAN vs.
SPOUSES TAN, G.R. No. 168852: September 30, 2008).
THE CRIME OF VIOLENCE AGAINST WOMEN AND CHILDREN is considered as a public
offense which may be prosecuted upon the filing of a complaint by any citizen having personal
knowledge of the circumstances involving the commission of the crime.
Under express provision of Section 27 thereof, being under the influence of alcohol, any illicit
drug, or any other mind-altering substance shall not be a defense under this Act.