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B. Rights and Obligations of Couples in Intimate Relationships Rep. Act. No. 9262

Notice:

1) The following content are limited to above specific topic under R.A. 9262 as indicated in the Bar Exam Syllabus. The other aspects of the law are discussed in other subjects such Criminal Law and Labor Law.

2) Further, while the topic mentioned rights and obligations, there are no specific provisions on the matter (except on additional rights, e.g. to be treated with respect and dignity). Instead, to derive the said rights and obligations, a wholistic approach is necessary, i.e. to understand the nature and concept of VAWC including its kinds and constitutive acts, protection orders available, resolutions in case of legal separation and custody of children, among others.

1. CONCEPTS

Violence against women and their children [VAWC] – 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[a], R.A. 9262)

Dating relationship – refers to a situation wherein the parties live as husband and wife without the benefit of marriage or are romantically involved over time and on a continuing basis during the course of the relationship. A casual acquaintance or ordinary socialization between two individuals in a business or social context is not a dating relationship. (Section 3[e], Ibid.)

Sexual relations –  refers to a single sexual act which may or may not result in the bearing of a common child. (Section 3[e], Ibid.)

Children – refers to those below eighteen (18) years of age or older but are incapable of taking care of themselves as defined under Republic Act No. 7610. As used in R.A.9262, it includes the biological children of the victim and other children under her care. (Section 3[hg], Ibid.)

a. Kinds of violence

VAWC includes but is not limited to:

1) Physical violence

2) Sexual violence

3) Psychological violence

4) Economic abuse

1) Physical violence

Physical Violence – refers to acts that include bodily or physical harm. (Section 3[a][A], Ibid.)

2) Sexual violence

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:

1) rape, sexual harassment, acts of lasciviousness, treating a woman or her child as a sex object, making demeaning and sexually suggestive remarks, physically attacking the sexual parts of the victim’s body, forcing 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;

2) acts causing or attempting to cause the victim to engage in any sexual activity by force, threat of force, physical or other harm or threat of physical or other harm or coercion;

3) Prostituting the woman or child. (Section 3[a][B], Ibid.)

3) Psychological violence

Psychological violence – refers to acts or omissions causing or likely to cause mental or emotional suffering of the victim such as but not limited to 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. (Section 3[a][C], Ibid.)

Battered Woman Syndrome – refers to a scientifically defined pattern of psychological and behavioral symptoms found in women living in battering relationships as a result of cumulative abuse.(Section 3[c], Ibid.)

Stalking – refers to an intentional act committed by a person who, knowingly and without lawful justification follows the woman or her child or places the woman or her child under surveillance directly or indirectly or a combination thereof. (Section 3[d], Ibid.)

a) Psychological violence as means employed; Mental or emotional anguish as effect

Psychological violence is an element of violation of Section 5(i) just like the mental or emotional anguish caused on the victim. Psychological violence is the means employed by the perpetrator, while mental or emotional anguish is the effect caused to or the damage sustained by the offended party.  (Dinamling v. People, G.R. No. 199522, 22 June 2015)

To establish psychological violence as an element of the crime, it is necessary to show proof of commission of any of the acts enumerated in Section 5(i) or similar such acts. (Ibid.)

To establish mental or emotional anguish, it is necessary to present the testimony of the victim as such experiences are personal to this party. (Dinamling v. People, supra.)

b) Requisites of causing mental or emotional anguish, etc.

1) The offended paiiy is a woman and/or her child or children;

2) The woman is either the wife or former wife of the offender, or is a woman with whom the offender has or had a sexual or dating relationship, or is a woman with whom such offender has a common child. As for the woman’s child or children, they may be legitimate or illegitimate, or living within or without the family abode;

3) The offender causes on the woman and/or child mental or emotional anguish; and

4) The anguish is caused through acts of public ridicule or humiliation, repeated verbal and emotional abuse, denial of financial support or custody of minor children or access to the children or similar· such acts or omissions. (AAA v. BBB, G.R. No. 212488, 11 January 2018)

c) What is criminalized is psychological incapacity, not marital infidelity per se

What R.A. No. 9262 criminalizes is not the marital infidelity per se but the psychological violence causing mental or emotional suffering on the wife. Otherwise stated, it is the violence inflicted under the said circumstances that the law seeks to outlaw. (Ibid.)

Marital infidelity as cited in the law is only one of the various acts by which psychological violence may be committed. Moreover, depending on the circumstances of the spouses and for a myriad of reasons, the illicit relationship may or may not even be causing mental or emotional anguish on the wife. Thus, the mental or emotional suffering of the victim is an essential and distinct element in the commission of the offense. (Ibid.)

4) Economic abuse

Economic abuse – refers to acts that make or attempt to make a woman financially dependent which includes, but is not limited to the following:

1) withdrawal of financial support or preventing the victim from engaging in any legitimate profession, occupation, business or activity, except in cases wherein the other spouse/partner objects on valid, serious and moral grounds as defined in Article 73 of the Family Code;

2) deprivation or threat of deprivation of financial resources and the right to the use and enjoyment of the conjugal, community or property owned in common;

3) destroying household property;

4) controlling the victims’ own money or properties or solely controlling the conjugal money or properties. (Section 3[a][D], Ibid.)

2. VAWC ACTS

The crime of violence against women and their children is committed through any of the following acts:

1) Causing physical harm to the woman or her child;

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

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

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

5) 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:

a) Threatening to deprive or actually depriving the woman or her child of custody to her/his family;

b) 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;

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

d) 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;

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

7) 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;

8) 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:

a) Stalking or following the woman or her child in public or private places;

b) Peering in the window or lingering outside the residence of the woman or her child;

c) Entering or remaining in the dwelling or on the property of the woman or her child against her/his will;

d) Destroying the property and personal belongings or inflicting harm to animals or pets of the woman or her child; and

e) Engaging in any form of harassment or violence;

9) 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. (Section 5, Ibid.)

3. PROTECTION ORDER

A protection order – refers to an order issued under R.A.9262 for the purpose of preventing further acts of violence against a woman or her child specified in Section 5 of R.A.9262 and granting other necessary relief. (Section 8, Ibid.)

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. (Garcia v. Drilon, G.R. No. 179267, 25 June 2013)

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. (Section 8, R.A. 9262)

a. Reliefs

The protection orders that may be issued under R.A.9262 shall include any, some or all of the following reliefs:

1) Prohibition of the respondent from threatening to commit or committing, personally or through another, any of the acts mentioned in Section 5 of R.A.9262;

2) Prohibition of the respondent from harassing, annoying, telephoning, contacting or otherwise communicating with the petitioner, directly or indirectly;

3) 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;

4) 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;

5) 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;

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

7) 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;

8) 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;

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

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

11) 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. (Ibid.)

1) Relifes to be granted – regardless of separation or annulment/nullity

Any of the reliefs provided shall be granted even in the absence of a decree of legal separation or annulment or declaration of absolute nullity of marriage. (Paragraph 2, Section 8, Ibid.)

b. Simultanoues application allowed

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. (Paragraph 3, Section 8, Ibid.)

c. Who may apply

A petition for protection order may be filed by any of the following:

1) the offended party;

2) parents or guardians of the offended party;

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

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

5) police officers, preferably those in charge of women and children’s desks;

6) Punong Barangay or Barangay Kagawad;

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

8) 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 9, Ibid.)

d. Where to apply

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 10 Ibid.)

e. How to apply

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 R.A.9262. (Section 11, Ibid.)

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. (Paragraph 2, Section 11, Ibid.)

f. Kinds of Protection Orders

The provisions of the protection order shall be enforced by law enforcement agencies. The protection orders that may be issued under R.A.9262 are the barangay protection order (BPO), temporary protection order (TPO) and permanent protection order (PPO). (Section 8, Ibid.)

1) Barangay Protection Orders (BPOs)

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 R.A.9262. (Section 14, Ibid.)

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. (Ibid.)

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.(Ibid.)

The parties may be accompanied by a non-lawyer advocate in any proceeding before the Punong Barangay.(Paragraph 2, Section 14 Ibid.)

2) Temporary Protection Orders (TPOs)

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. (Section 15, Ibid.)

A court may grant in a TPO any, some or all of the reliefs mentioned in R.A.9262 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. (Ibid.)

a) Extendible or renewable

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.(Paragraph 3, Section 16, Ibid.)

3) Permanent Protection Orders (PPOs)

Permanent Protection Order (PPO) – refers to protection order issued by the court after notice and hearing. (Section 16, Ibid.)

a) Non-appearance by respondents

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.(Paragraph 2, Section 16, Ibid.)

b) Effective until revoked

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.(Paragraph 4, Section 16, Ibid.)

c) Lapse of time, not a ground for denial

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. (Paragraph 5, Section 16, Ibid.)

d) Finality of PPO

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. (Paragraph 6, Section 16, Ibid.)

4. LEGAL SEPARATION

In cases of legal separation, where violence as specified in R.A.9262 is alleged, Article 58 of the Family Code shall not apply. The court shall proceed on the main case and other incidents of the case as soon as possible. The hearing on any application for a protection order filed by the petitioner must be conducted within the mandatory period specified in R.A.9262. (Section 19, Ibid.)

5. CUSTODY OF CHILDREN

a. Woman victim

The woman victim of violence shall be entitled to the custody and support of her child/children. Children below seven (7) years old older but with mental or physical disabilities shall automatically be given to the mother, with right to support, unless the court finds compelling reasons to order otherwise.(Sectio 28, Ibid.)

1) Battered woman syndrome, not a ground for disqualification

A victim who is suffering from battered woman syndrome shall not be disqualified from having custody of her children. In no case shall custody of minor children be given to the perpetrator of a woman who is suffering from Battered woman syndrome. (Paragraph 2, Section 28, Ibid.)

6. ADDITIONAL RIGHTS OF VICTIMS

In addition to their rights under existing laws, victims of violence against women and their children shall have the following rights:

1) to be treated with respect and dignity;

2) to avail of legal assistance form the PAO of the Department of Justice (DOJ) or any public legal assistance office;

3) To be entitled to support services form the DSWD and LGUs’

4) To be entitled to all legal remedies and support as provided for under the Family Code; and

5) To be informed of their rights and the services available to them including their right to apply for a protection order. (Section 35, Ibid.)

a. Damages

Any victim of violence under R.A.9262 shall be entitled to actual, compensatory, moral and exemplary damages. (Section 36, Ibid.)

b. Hold Departure Order

The court shall expedite the process of issuance of a hold departure order in cases prosecuted under R.A.9262.(Section 37, Ibid.)

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