BWS: IS MASOCHISM JAIL-BROKEN? Protecting the Unprotected Battered Wife by: Jane Lancie A.

Holgado So the Lord God cast a deep sleep on the man, and while he was asleep, he took out one of his ribs and closed up its place with flesh. The Lord God then built up into a woman the rib he had taken from the man. When he brought her to the man, the man said: This one, at last, is bone of my bones and flesh of my flesh; This one shall be called woman, for out of her man this one has been taken. That is why a man leaves his father and mother and clings to his wife, and the two of them become one body.1 Clich it is when one goes, there is a child in everyone of us; but I can find no other reason why my musing over a carnival date and being given that big bear won over a balloon darting game is still so vivid.Then, on to raining chocolates and candies as if Willy Wonka was his kin. But those were the sweet and no bitter days -a battered wife on memory lane ONE BODY. When a man marries a woman, they leave their differences behind as they become a homogeneous soul. The husband and wife are obliged to live together, observe mutual love, respect and fidelity, and render mutual help and support. 2But, the home is not spared of the battle between these two separate sexes who are now under one roof; hence, the blood-stained hands of the better-half (wife).To this corollary, Marivic, an eight-month pregnant woman, shot to death her sleeping and drunk husband, Ben, and later on fled with her children.3 THE BIRTH OF THE BATTERED WOMAN SYNDROME Dr. Lenore Walkers 1970 clinical observation of chronically battered wives lead to her formulation of the hypothesis and later coinage of the Battered Women Syndrome (BWS) which was short of empirical validation through scientific research.4 Through her research, she established that fact that the abuse in BWS often escalates the point of separation and, battered women are in greater danger of dying then.5 If Milton is to be believed, the war between the sexes started immediately after the Fall, with Adam berating Eve for first eating the apple, and Eve petulantly replying that Adam would have done the same had he met the persuasive serpent, and in any case, why didn't he stop her from wandering off on her own? But perhaps God started the trouble by creating Adam for contemplation and strength, and Eve for "softness and sweet attractive grace", not to mention a nice line in submissive charm.6
1 2

Genesis 2:21-24, The New American Bible, Philippine Bible Society (2008). Art. 68, Family Code of the Philippines, July 6, 1987. 3 People vs. Genosa, 341 SCRA 493, January 15, 2004. 4 Joe Wheeler Dixion, PhD, JD, An Essay on Battered Woman Syndrome, Copyrighted 2001-2007. 5 PP vs. Genosa (2004). 6 Simon Blackburn, A Review on David Benatars book, The Second Sexism: Discrimination Against Men and Boys, April 13, 2010.

It was in 753 B.C., in the reign of Romulus of Rome when the first known law of marriage placed women in subservience to the temper of their husbands who in turn, took the former as their necessary and inseparable possessions.7 In Friar Cherubino of Sienas Rule Marriage(late 1400s),he forwarded the domineering relationship between a man and woman in this wise: When you see your wife commit an offense, dont rush at her with insults and violent blows Scold her sharply, bully and terrify her. And if this doesnt work take up a stick and beat her soundly, for it is better to punish the body and correct the soul than to damage the soul and spare the body Then readily beat her, not in rage, but out of charity and concern for her soul, so that the beating will redound to your merit and her good.8 The following United States Supreme Court decisions in the 1800s were illustrative of the husbands stronghold authority over their wives. Mississippi Supreme Court (1824) deciding on Bradley v. State, pronounced that the husband is permitted to exercise the right of moderate chastisement, in cases of great emergency and use salutary restraints in every case of misbehavior, without being subjected to vexatious prosecutions, resulting in the mutual discredit and shame of all the parties concerned.9 North Carolina Supreme Court two cases:State v. Black (1864) and State v. Richard Oliver(1874)provided that if no permanent injury has been inflicted, nor malice, cruelty nor dangerous violence shown by the husband, it is better to draw the curtain, shut out the public gaze, and leave the parties to forgive and forget.10 These were prevailing up until the Great Depression and on to the day the World Wars ensued. But, the feminist-activist movement of the 1950s, 1960s and 1970s saw liberality to the above curtain rule when activists began addressing the injustice faced by battered women who have killed their husbands in order to survive.11 BWS: THE RUNABOUT Killing is mala in se.Though absent any formal learning or education, man knew that to take ones life is an act wrong in itself no matter what the circumstance is. But that is, if there is no positive legal ground to speak of. . Art. 11. Justifying Circumstances12. The following do not incur any criminal liability: 1. Anyone who acts in defense of his person or rights, provided that the following circumstances concur: First. Unlawful aggression; Second. Reasonable necessity of the means employed to prevent or repel it;
7

Christina England, The Battered Womens Syndrome: A History and Interpretation, Vanderbilt University Board of Trust,Spring 2007, p. 1. 8 Ibid. 9 Ibid, p. 2. 10 Ibid. 11 Ibid., p. 3. 12 The Revised Penal Code, RA No. 3815, as amended.

Third. Lack of sufficient provocation on the part of the person defending himself. x x x In the case of Zapatos vs. People, Justice Sandoval-Guttierez wrote, Since the olden times, no impulse has been so powerful than that of self-preservation. Thus, the law out of tenderness for humanity permits the taking of life of another in defense of ones person in times of necessity. In the words of the Romans of ancient history: Quod quisque ob tutelam corporis sui fecerit, jure suo fecessi existimetur(That which anyone should do for the safety of his own person is to be adjudged as having been done justly in his own favor).13 Marivic Genosa is the Philippines Battered Woman Syndrome picturesque whose case sets a legal precedent impacting on domestic violence and parricide.14 It was woman rights lawyer, Atty. Katrina Legarda who volunteered her services to Marivic and in 1999 appealed to the high court using the novel theory of BWS.15 ATTY. TABUCANON: What happened when you were brought to the drawer? Marivic: He dragged me towards the drawer and he was about to open the drawer but he could not open it because he did not have the key. Then he pulled his wallet which contained a blade about 3 inches long and I was aware that he was going to kill me and I smashed his arm and then the wallet and the blade fell. The one he used to open the drawer I saw, it was a pipe about that long, and when he was about to pick-up the wallet and the blade, I smashed him then I ran to the room, and on that very moment everything on my mind was pity on myself, then the feeling that on I had on that very moment was the same when I was admitted in PHILHOS Clinic, I was about to vomit.16 She was found guilty beyond reasonable doubt of parricide before the Regional Trial Court (RTC) or Ormoc City (Branch 35) on September 25, 1998. But, on automatic review, under the BWS plea, the Supreme Court instructed the trial court to receive expert psychological and/or psychiatric opinion.17 Under Republic Act 9262 Sec. 3 (c), BWS is a scientifically defined pattern of psychological and behavioral symptoms found in women living in battering relationships as a result of cumulative abuse.18 As cited, the US Supreme Courts decision inRogers vs. State (1993)eliminated the determination of the relevance and admissibility of the syndrome in cases of homicide ruling in this wise: because the scientific principles underlying expert testimony relative to the battered woman syndrome are now firmly established and widely accepted in the psychological community, we conclude the symptom x x x as a matter of law.19
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Zapatos vs. People, G.R. Nos. 147814-15, September 16, 2003. For purposes of discussion, although foreign precedents were replete, that of the Genosa case was seen as that symptom that have broken th e hard and fast rule on the traditional self -defense employment as a relief in criminal prosecutions in the Philippine setting. 15 Rina J. David, Commentary: Battered Wife Syndrome Defense, a First in RP courts, PDI, Jan. 25, 2004. 16 PP vs. Genosa (2004). 17 Ibid. 18 R.A. 9262, Anti-Violence Against Women and their Children Act of 2004, March 27, 2004. 19 th Luis B. Reyes, The Revised Penal Code: Criminal Law, 18 edn. (2012), p. 200.

Dra. Dayan, one of Genosa cases expert witnesses stated that, x x x. When the violence would happen, they usually think that they provoked it, that they were the ones who precipitated the violence that they provoked their spouse to be physically, verbally and even sexually abuse them.20 The so-called cycle of violence depicts the Battered Woman Syndrome which has three (3) phases21: 1. Tension-building phase; 2. Acute battering incident; and 3. Non-violent (tranquil, loving) phase. It was her (the wife) who exerted efforts of pacifying the batterer, and what the woman wants was to pacify the abuser husband. But, this seemingly masochist love-me/hate-me tolerance in BWS is a double-edged sword. The wifes passive behavior legitimizes the husbands belief that the abuse is his right.22 Practically speaking, in this psychological condition, the victims were of the belief that the only way out of the misery is to kill their husbands.23 THE HAIRLINE BOUNDARY: TO EXONERATE OR TO MITIGATE? Justice Artemio Panganibans ponencia introduced the Genosa case stating, that Marivic is not completely exonerated from liability in the act of killing her husband, Ben. However, though selfdefense was ruled out on the basis of the absence of unlawful aggression, the syndrome was nonetheless treated to mitigate Marivics liability. But all is not lost. The severe beatings repeatedly inflicted on appellant constituted a form of cumulative provocation that broke down her psychological resistance and self-control. This psychological paralysis she suffered diminished her will power, thereby entitling her to the mitigating factor under paragraphs 9 and 10 of Art. 13 of the Revised Penal Code.24 Battered Women Syndrome as a defense under R.A. 9262 provides no criminal and civil liability incurred by one suffering from BWS notwithstanding the absence of any of the elements for justifying circumstances of self-defense under the Revised Penal Code.25 The meat of the defense is the state of mind of the battered woman at the time the offense was committed where she must have actually feared imminent harm from her batterer and honestly believed in the need to kill him in order to save her life.26 Thus, it is not a defense itself; it is only a means of determining the ultimate issues, in relation to the applicable legal defenses of the battered

20 21

PP vs. Genosa (2004). Ibid., p.203. 22 Supra @ note 19. 23 C. J. Postell, Battered Women: Understanding the Problem, 22 Trial 75. 24 PP vs. Genosa (2004). 25 Supra @ note 19, p. 199 invoking Sec. 26 of the Anti-VAWC law. 26 PP vs. Genosa (2004).

woman on trial.27 Moreso, evidence is needed to establish the context of self-defense if invoked upon by a battered woman for the existence of BWS is not an outright means to establish a legal right to kill an abusive partner.28 If BWS is to be sought as a form of self-defense, the essential requisites in Art. 11 of the RPC as listed above, must be present. In the Genosa case, what was missing was the first essential element of unlawful aggression. The Supreme Court found that the deceased, Ben, was no longer in a position that presented an actual threat on Marivics life or safety when he was attacked asleep on their bedroom.29 However, had he still waited Marivic to come out of the childrens bedroom and based on past violent incidents, there was a great probability that he would still have pursued the latter, then impending danger maybe had on the life of the battered woman.30 Hence, a valid selfdefense maybe appreciated. CONCLUSION Battered Woman Syndrome as a defense under R.A. 9262 is in effect, a drive towards a leveling technique of equalizing the machismo within the legal jurisdiction. Certainly, it was designed as a response to the fact that women perceive situations differently with men.31 It should be noted that, the traditional doctrine of self-defense was based on the experiences of men and did not accommodate acts of self-defense by battered women that were reasonable but different from mens.32 Although the novel theory of BWS as a defense opened a magnification of RA 9262 as it expanded the means to avert domestic violence and abuse against women and children, it is not all plain and immaculate. As to the Court, the risk of invoking self-defense based on BWS, requires the broadening of the traditional self-defense doctrine and giving the term imminent an allencompassing meaning than what it has now.33Likewise, it is to be noted that the Anti-VAWC law was enacted after the Genosa decision. Thus, it could be said that it was, in a sense, a maturing of the law on gender equality in the Philippines.And, although proposals to amend RA 9262 were not ringing bells to be our legislators primordial concern, it is to be hoped that the law on self-defense be given modification so as to encompass the Battered Women Syndrome. We do not stop at beating the battery, for domestic violence can happen anytime when in that deep recesses of mans wicked tendencies, the beast is yet to be awakened. #

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Mani Thess Q. Pea, Battered Woman Syndrome: Problems and Issues in Philippine Context, Philippine Law Journal, Vol. 76, p. 302. 28 PP vs. Genosa (2004) 29 PP vs. Genosa (2004). 30 Ibid. 31 Supra @ note 7. 32 Ibid. 33 Ibid.