DISSENTING OPINION
LOPEZ, J., J.:
I respectfully dissent.
The conviction of petitioner XXX264870 for violation of Section 5(i) of Republic Act No. 9262,1 otherwise known as the Anti-Violence Against Women and Their Children Act of 2004, should be affirmed.
Republic Act No. 9262, as a form of social legislation, was enacted in an attempt to protect women from the different kinds of violence they experience or to which they are vulnerable to while being in an intimate relationship.2 Toward this end, Section 3(a) enumerates in a non-limiting manner the various forms of violence and abuse that may be committed against women and their children. Pertinently, psychological violence is defined in this wise:
Section 3. Definition of Terms. — As used in this Act,
(a) "Violence against women and their children" 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, batter, assault, coercion, harassment or arbitrary deprivation of liberty. It includes, but is not limited to, the following acts:
. . . .
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. (Emphasis supplied)
Correlatively, Section 5(i) penalizes a form of psychological violence:
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:
. . . .
(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 or access to the woman's child/children. (Emphasis supplied)
To prosecute this form of violence against women, the following elements must be established:
(1) The offended party 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.3
Verily, in violation of Section 5(i), the act of psychological violence and the mental or emotional anguish caused on the victim are equally indispensable. 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.4
The ponencia argues that to satisfy the requirements of the law, the acts complained of, constituting the offense, must be done with the intention of causing mental or emotional anguish, public ridicule or humiliation to the woman or her child.5 More, "[i]t is [only] when these acts are done with the intent to tilt the scales of power within the relationship against the woman, causing her to lose her autonomy does the State have a legitimate interest in punishing such acts"6 and "intruding into issues that belong to the intimate sphere of personal relations."7
I beg to differ.
In XXX[252739] v. People (XXX[252739]),8 this Court, sitting En Banc, clarified the pronouncements in Acharon v. People9 as applied to cases of psychological violence by reason of marital infidelity:
The Court's pronouncement in Acharon that the accused must be proven to have intended to inflict mental or emotional anguish upon the woman applies only to circumstances involving willful denial of financial support, and not marital infidelity[.]
Moreover, while We agree with Acharon that the crimes penalized under [Section] 5(i) are mala in se and not mala prohibita, thereby requiring specific criminal intent, it is the Court's position that in instances where marital infidelity is the act concerned as in the present case, the requirement of specific criminal intent to cause mental and emotional suffering is satisfied the moment the perpetrator decides to commit the act of marital infidelity. This finds basis on the fact that marital infidelity is inherently immoral and depraved, is in all instances wrong, and cannot be justified by any sort of context, while the same cannot be said for willful denial of financial support. In other words, marital infidelity, divorced from its legal connotations, is an act which is wrong in itself.
. . . .
Thus, in ascertaining whether the third element [of "causing mental or emotional anguish"] is satisfied or not in cases involving marital infidelity, the question to be asked therefore is this: did the woman or their child suffer mental or emotional anguish due to the acts committed by the offender? If the answer is yes, then the third element is satisfied.10 (Emphasis supplied, citations omitted)
As it now stands, in cases of marital infidelity as a mode through which psychological violence was committed,11 specific intent to cause mental and emotional anguish upon the victim may be conclusively presumed from the fact of infidelity itself. This conclusive presumption, however, does not render the crime subjective. As explained by this Court, not all scenarios involving extramarital relationships will give rise to criminal liability under Section 5(i) of the law.12 It presupposes that there is a traditional "bond or commitment to which one owes fidelity,"13 thereby excluding non-traditional family setups and more modern relationship arrangements in which extramarital entanglements are not equivalent to unfaithfulness.14
In this case, the prosecution was able to establish that petitioner, through his infidelity, caused mental and emotional anguish on his wife, AAA264870. XXX264870 even admitted that, he fathered a child BBB264870. Despite his insistence that he did not have any romantic relationship with BBB264870 and that the child was a result of a one-night stand, the records show otherwise. The string of messages15 presented in evidence reveals that petitioner continued with his extramarital relationship with BBB264870 after he separated from his wife sometime in December 2015.16 Worse, after abandoning AAA264870 and leaving their family home, petitioner publicly flaunted his extramarital affair. This fact is established by the testimony of Teofilo C. Bayoguing, Jr., who saw petitioner with BBB264870.17 To corroborate this, the prosecution submitted pictures of petitioner with BBB264870 and their nonmarital child.18
More importantly, in raising the defense that it was only one-time indiscretion, XXX264870 is, in fact, admitting his infidelity. His denial had the earmark of being a negative pregnant, that is, a denial pregnant with the admission of the substantial facts in the pleading responded to which are not squarely denied.19 In XXX[252739], this Court declared that "an illicit sexual encounter committed by a male person, however casual, constitutes marital infidelity that is tantamount to psychological violence, as far as Republic Act No. 9262 is concerned."20
Needless to state, a single act of marital infidelity can constitute psychological violence for as long as all the elements of the crime are likewise proven. For the law is categorical—violence against women and their children refers to "any act or series of acts."21 As aptly put by the Court of Appeals, "even a single act can result in psychological harm, and suffering."22
Concomitantly, it must be underscored that marriage is a special contract vested with public interest. Given the State's avowed interest in promoting marriage as the foundation of the family and an inviolable social institution, it has institutionalized the rights and obligations between husband and wife in the Family Code, which, include, among others, the obligation to live together, observe mutual love, respect and fidelity, and render mutual help and support.23
These obligations, when taken singly, are not actionable by themselves but when deliberately violated to perpetuate some form of violence against women and their children, may be a basis for criminal prosecution. Here, petitioner admitted that he left their conjugal home. Taken together with his infidelity, his failure to comply with his obligation to live with his wife, without any valid and compelling reason, is indicative of his unwillingness to comply with his essential marital obligations, which, ultimately caused mental and emotional anguish on AAA264870, his wife.
Meanwhile, the emotional and mental anguish experienced by AAA264870 was established through her testimony. AAA264870 recounted that when petitioner admitted having an affair, she fainted and was brought to the hospital.24 Her pain was further exacerbated when petitioner, in absolute disregard of her feelings, publicly flaunted his infidelity, cohabited with BBB264870, and even fathered a child with her. To corroborate this, the prosecution presented the message sent by AAA264870 to petitioner, which reads:
[AAA264870]
Basta eto lang. Wag na wag niyo saakin ipapamuka ni [BBB264870] na ako ang may mali. Kayong dalawa ang may pakakamali. Dahil [h]indi makatao ang ginawa niyo saakin. Kayo ang walang puso at kayo ang sumira ng buhay ko. May tinapakan kayong tao. At [XXX264870] pl[ea]s[e] don't tell me na "bumalik ka sa akin" you fucked her in the morning tapos you're claiming bumalik ka? "no[,] you didn't". Please reflect. Frome [sic] there hindi ka na bumalik. Okay. Basta yun lang. Thanks.25
Further, at the time of her testimony, AAA264870 has not forgiven petitioner. She declared that:
[Re-Direct Examination of AAA264870 by Atty. Patrick Sarmiento]
Atty. Sarmiento:
Ms. Witness, in your cross-examination, the good counsel confronted you with the Annex "2" of the Counter Affidavit of the accused in the Concubinage case, correct?
A: Yes
Q: It says here that it appears that you have forgiven the accused in the exchanged of message. Have you forgiven the accused?
A: To be honest, Attorney, that time I was confused. I wanted to be a wife at that time. I wanted to save the marriage that is why— meaning— it doesn't mean that I forgive or allow the affair. It is not okay. That is why I am here, it is not okay. I did not forgive. But at that time, I was confused, I wanted to be a wife and I wanted to save the marriage.26 (Emphasis supplied)
The psychological violence suffered by AAA264870 was further supported by the findings of clinical psychologist Nedy L.(awÞhi( Tayag (Tayag). In her Psychological Assessment,27 Tayag found AAA264870 to be suffering from "a severe case of Post-Traumatic Stress Disorder with mood coloring, attributed, and as caused by the psychological abuse she was subjected into by her husband."28 Tayag further declared that AAA264870 suffered from depression and, at one point, wanted to commit suicide 29 Tayag testified thus:
ATTY. SARMIENTO:
Ms. Witness in your report[,] what is your finding?
A: [AAA264870] is suffering from emotional distress collated panic attack and clinically[,] I identified her suffering from post[-]traumatic distress [sic] disorder.
Q: How did this condition result?
A: This apparently brought [sic] about by emotional trauma that she had relative to her relationship with her husband.
Q: Okay. What particular trauma that she had?
A: During the mental status examination, she described how she was traumatized by the fact that she learned that her husband involved [sic] in other woman, who happens to be her best friend and bridesmaid during her wedding. The woman already has a child with her husband.30
For these reasons, I must respectfully submit that the prosecution sufficiently established all the elements of the crime. Petitioner committed an act of psychological violence against his wife, AAA264870, who suffered emotional and mental anguish.
As an additional support to acquit petitioner, the ponencia held that the Affidavit of Recantation executed by the offended party creates reasonable doubt as to the very element of the crime of psychological violence against women under Section 5(i) of Republic Act No. 9262.31
However, it has also been held that a recantation of a testimony is exceedingly unreliable and generally viewed with suspicion and reservation for it can easily be secured through intimidation or for monetary consideration.32 More, there is always the probability that such recantation may later be itself repudiated, rendering criminal prosecutions interminable.
Thus, mere retraction by a prosecution witness does not necessarily vitiate the original testimony, if credible.33 "It is only where there exist special circumstances which, when coupled with the desistance or retraction raise doubts as to the truth of the testimony or statement given, can a retraction be considered and upheld."34
In Sterling Paper Products Enterprises, Inc. v. KMM-Katipunan, et al.,35 this Court elucidated that:
[I]n cases where the previous testimony is retracted and a subsequent different, if not contrary, testimony is made by the same witness, the test to decide which testimony to believe is one of comparison coupled with the application of the general rules of evidence. A testimony solemnly given in court should not be set aside and disregarded lightly, and before this can be done, both the previous testimony and the subsequent one should be carefully compared and juxtaposed, the circumstances under which each was made, carefully and keenly scrutinized, and the reasons and motives for the change discriminately analyzed.36 (Emphasis supplied, citations omitted)
Applied to the present case, petitioner failed to present evidence independent of the Affidavit of Recantation engendering doubt as to the veracity of the previous testimony given by AAA264870 in open court.
Juxtaposed upon AAA264870's previous testimony and the evidence thus presented, I find the explanation provided by AAA264870 in her recantation sparse and unconvincing. She merely stated that:
5. I must have misunderstood the meaning of the phrase "emotional anguish " and "mental suffering" when I described in my Judicial Affidavit my experiences in order to establish emotional anguish, as a result of [XXX264870]'s extramarital affair with [BBB264870], for which I am truly sorry.37 (Emphasis supplied)
She went on further to declare that:
17. It was during the pandemic which started last year that I experienced so much emotional distress brought about by a halt in my career as a Sales Marketing Officer of an established bank in ███ City and restrictions imposed by the Government on our social and religious activities. During this time, I found myself depending on [XXX264870], who has graciously made himself available to listen to my problems. [XXX264870] and I are now talking regularly, without fighting, and we are now listening to each other.38
It is worth nothing that the recantation was made only on May 27, 2021, or four years after criminal proceedings were initiated in 2017, and after the judgment of conviction has been affirmed by the Court of Appeals. AAA264870 even went to great lengths to file a separate criminal complaint for concubinage against petitioner and BBB264870. Given this, it is nothing short of incredulous that after going through the burdensome process of reporting petitioner to the authorities, executing a criminal complaint-affidavit against him, attending trial and testifying against him, AAA264870 would later on declare that all the foregoing is actually a farce and the truth is now what she says it to be in her Affidavit of Recantation.39
Taken together, it appears that AAA264870's Affidavit of Recantation was a mere afterthought. Her earlier testimony prevails over her subsequent recantation.
To stress, mere recantation, without more, is insufficient to warrant a reversal of a judgment of conviction. To accept the recantation in the absence of special circumstances and cogent reasons trivializes the court proceedings. The trial in which the recanted testimony was given is made a mockery, and the investigation is placed at the mercy of an unscrupulous witness.40
Further, rather than contradict, the Affidavit of Recantation41 reinforces AAA264870's testimony that she suffered mental and emotional anguish as a result of petitioner's infidelity. While the Affidavit attempts to disavow previous claim of psychological violence, AAA264870 nevertheless remained consistent in her allegation that petitioner had an extramarital affair with BBB264870.42
At any rate, the Affidavit of Recantation, by itself, does not even constitute as pardon by AAA264870, warranting the total extinguishment of petitioner's criminal liability.43 To borrow the erudite words of Justice Puno in Alonte v. Savellano, Jr.,44 "only when the desistance [or recantation] is grounded on forgiveness and pardon and is made before the institution of the criminal action, can it extinguish criminal liability. Desistance [or recantation], per se, is not equivalent to pardon."45
Basic is the rule that the pardon of the private offended party is only a bar to criminal prosecution in private crimes, and hot a mode of extinguishing criminal liability.46 Once a complaint has been instituted in court, the will of the private offended party is ascertained and he or she loses the right or absolute privilege to decide whether the charge should proceed.47 Correspondingly, the court acquires absolute discretion whether to proceed with the prosecution to vindicate the outrage to the State and the society in general.48 At such stage, the will of the State prevails. Thus, save only for exceptional instances expressly provided for by law,49 any pardon given by the complainant to the offender would be unavailing.50 This rule applies in equal force to public crimes, as in the present case for violation of Republic Act No. 9262.51
FOR THESE REASONS, I vote to DENY the Petition. XXX264870 is GUILTY of violation of Section 5(i) of Republic Act No. 9262, otherwise known as the Anti-Violence Against Women and Their Children Act of 2004.
Footnotes
* Pursuant to Amended Administrative Circular No. 83-2015 dated September 5, 2017, which requires the preparation of a first copy of Resolutions where the real or genuine name/s or identities and personal circumstances of the victim/s are used.
1 An Act Defining Violence Against Women and Their Children, Providing For Protective Measures For Victims, Prescribing Penalties Therefore, and For Other Purposes. (2004)
2 Acharon v. People, 913 Phil. 731, 746 (2021) [Per J. Caguioa, En Banc].
3 Dinamling v. People, 761 Phil. 356, 373 (2015) [Per J. Peralta, Third Division].
4 Id. at 376.
5 Ponencia, p. 11. (Citation omitted)
6 Id.
7 Id. at 10.
8 G.R. No. 252739, April 16, 2024 [Per J. Hernando, En Banc].
9 913 Phil. 731 (2021) [Per J. Caguioa, En Banc].
10 XXX v. People, G.R. No. 252739, April 16, 2024 [Per J. Hernando, En Banc] at 15-16. This pinpoint citation refers to a copy of this Decision uploaded to the Supreme Court website.
11 People v. XXX, G.R. No. 250219, March 1, 2023 [Per J. Hernando, First Division] at 10. This pinpoint citation refers to a copy of this Decision uploaded to the Supreme Court website.
12 XXX v. People, G.R. No. 252739, April 16, 2024 [Per J. Hernando, En Banc] at 17-18. This pinpoint citation refers to the copy of the Decision uploaded to the Supreme Court website.
13 Id. at 19. This pinpoint citation refers to the copy of the Decision uploaded to the Supreme Court website.
14 Id.
15 Records, pp. 121-123, 194.
16 CA rollo, p. 60.
17 TSN, Teofilo Bayoguing, Jr., October 1, 2018, p. 42.
18 Records, p. 124.
19 See Republic v. Sandiganbayan, 461 Phil. 598 (2003) [Per J. Corona, En Banc].
20 XXX v. People, G.R. No. 252739, April 16, 2024 [Per J. Hernando, En Banc] at 13. This pinpoint citation refers to a copy of this Decision uploaded to the Supreme Court website.
21 Republic Act No. 9262, sec. 3(a) reads:
Section 3. Definition of Terms. - As used in this Act,
(a) "Violence against women and their children" 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.
22 Rollo, p. 57.
23 See FAMILY COURT, arts. 68-69 read:
Article 68. The husband and wife are obliged to live together, observe mutual love, respect and fidelity, and render mutual help and support.
Article 69. The husband and wife shall fix the family domicile. In case of disagreement, the court shall decide.
The court may exempt one spouse from living with the other if the latter should live abroad or there are other valid and compelling reasons for the exemption. However, such exemption shall not apply if the same is not compatible with the solidarity of the family.
24 Records, p. 110.
25 Id. at 19.
26 TSN, [AAA264870, June 26, 2018, pp. 45-46.
27 Records, pp. 135-140.
28 Id. at 140.
29 TSN, Nedy L. Tayag, September 17, 2018, p. 8.
30 Id. at 29-30.
31 Ponencia, p. 11.
32 Umpa v. People, 898 Phil. 387 (2021) [Per J. J. Lopez, Third Division].
33 People v. Espenilla, 718 Phil. 153, 166 (2013) [Per J. Leonardo-De Castro, First Division].
34 Adlawan v. People, 830 Phil. 88 (2018) [Per J. Martires, Third Division].
35 815 Phil. 425 (2017) [Per J. Mendoza, Second Division].
36 Id. at 434-435.
37 Rollo, p. 68.
38 Id. at 70-71.
39 Id. at 65.
40 People v. XXX, 886 Phil. 155, 179 (2020) [Per C.J. Peralta, First Division].
41 Id. at 67-71.
42 Id.
43 REV. PEN. CODE, art. 23 reads:
Article 23. Effect of Pardon by the Offended Party. — A pardon by the offended party does not extinguish criminal action except as provided in article 344 of this Code; but civil liability with regard to the interest of the injured party is extinguished by his express waiver.
44 350 Phil. 700 (1998) [Per J. Vitug, En Banc].
45 J. Puno, Separate Opinion in Alonte v. Savellano, Jr., 350 Phil. 700 (1998) [Per J. Vitug, En Banc].
46 See REV. PEN. CODE, art. 89 reads:
Article 89. How criminal liability is totally extinguished. – Criminal liability is totally extinguished:
1. By the death of the convict, as to the personal penalties and as to pecuniary penalties, liability therefor is extinguished only when the death of the offender occurs before final judgment.
2. By service of the sentence;
3. By amnesty, which completely extinguishes the penalty and all its effects;
4. By absolute pardon;
5. By prescription of the crime;
6. By prescription of the penalty;
7. By the marriage of the offended woman, as provided in Article 344 of this Code.
47 Isturis-Rebuelta v. Rebuelta, G.R. Nos. 222105 & 222143, December 13, 2023 [Per C.J. Gesmundo, First Division].
48 People v. Dimaano, 506 Phil. 630, 647 (2005) [Per Curiam, En Banc].
49 See REV. PEN. CODE, art. 266-c, as amended by Republic Act No. 8353, sec. 2 (1997).
50 Isturis-Rebuelta v. Rebuelta, G.R. Nos. 222105 & 222143, [December 13, 2023 [Per C.J. Gesmundo, First Division].
51 Republic Act No. 9262, sec. 25 states:
Section 25. Public Crime. – Violence against women and their children shall be considered 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.
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