ENBANC

G.R. No. 224946 - CHRISTIAN PANTONIAL ACHARON v. PEOPLE OF

THE PHILIPPINES

Promulgated:
November 9 2021
x--------------------------------------------- c~~-------x
CONCURRING OPINION

LAZARO-JAVIER, J.:

I agree for the most part with the ponencia of the learned Justice Alfredo
Benjamin S.Caguioa. I also thank him for graciously accommodating some of my
views in this case, especially the relevance of the civil law on support in determining
liability for violation of Section 5 (i) of Republic Act No. 9262 (RA 9262). I,
nonetheless, advance the following viewpoints with the hope of providing an
analytical framework for the judges of the Family Courts and designated Family
Courts to work with.

The analytical framework I most respectfully suggest is not an original one.

It is basically a reiteration of what first year law students have been taught when
analyzing a criminal fact-pattern or case for that matter.

We start every analysis with the basic elements of the subject crime. We
organize our thought process according to the established categories of actus reus
and where applicable mens rea. Here, both are applicable and will be discussed to
arrive at a reasoned disposition.

Why is this framework extremely important? This is because at times the

statutory definition of a crime could be confusing. The analysis often begins with
the elements of the crime. There is nothing wrong with that if the analysis takes full
account of the legal requirement that the elements must correspond to a criminal
act, conduct and/or circumstances (the actus reus) and a criminal state of mind
(the mens rea). This framework is consistent with the very definition of what a
crime is - actus non facit reum, nisi mens sit rea. That is, except for strict liability
crimes, evil intent must unite with an unlawful act for a crime to exist.

The extreme importance of this reference to the elements of a crime is

illustrated in the considered view of the esteemed Senior Associate Justice Estella
M. Perlas-Bernabe that the mental or emotional suffering of the victim is not a
result of the criminal act but an element of the intent in the doing ofsuch criminal
act. Senior Associate Justice Perlas-Bernabe thus rejected the fonnulation in
Dinamling v. People 1 that the third element of the offense of Section 5 (i) of RA
9262 is that the "offender causes on the woman and/or child mental or emotional
anguish."

1 761 Phil. 356,374 (2015).

I
Concurring Opinion 2 G.R. No. 224946

Her point of view is doubtless correct. With due respect, however, her
formulation is not the entirety of the elements of Section 5 (i). She is correct that
mental or emotional anguish is an integral part of the criminal state of mind
(i.e., the mens rea) in the definition of Section 5 (i).

Still, Dinamling is correct too that mental or emotional anguish is also an

integral part of the criminal act, conduct and/or circumstances (i.e., the actus
reus) penalized by Section 5 (i). If there was no mental or emotional anguish, or
if there was but it was not caused by any of the mentioned predicate criminal acts,
there is no violation of Section 5 (i). So it is not entirely fruitful to eliminate, as
the good Senior Associate Justice recommends, the third element of Section 5 (i) as
identified in Dinamling because mental or emotional anguish is both integral
parts of the mens rea (as the good Senior Associate Justice correctly observes) and
the actus reus (as Dinamling rightly mentions).

Of course, the enumeration of the elements of Section 5 (i) in Dinamling is

deficient because it fails to account for the mens rea component of mental or
emotional anguish as properly commented by Senior Associate Justice Perlas-
Bemabe. Nowhere in Dinamling was it mentioned that there must be that specific
criminal intent to cause mental or emotional anguish. While Section 5 (i) is a
special law, and generally crimes under a special law are erroneously lumped
together as mala prohibita, it does not mean that Section 5 (i) requires no mental
element. The reason is simply that the text of this provision calls for a mental
element. Indeed, if the definition of a crime is not broken into its elements, and by
elements, we mean the actus reus and the mens rea, we would fall into the same
deficiencies as the listing of elements in Dinamling illustrates.

Hence, it is extremely important that the analytical framework in

determining whether a crime has been committed by an accused and whether the
prosecution has proven this crime and its commission by the accused beyond
reasonable doubt, we must exainine the facts if they fit into the elements of the crime
charged, that is, if the facts demonstrate the commission of the actus reus and the
presence of the mens rea.

The Elements of a Crime

The crimes defined in Section 5 (e) and Section 5 (i) of RA 9262 are crimes
punished by a special law. But these crimes are not malum prohibitum just because
they are offenses defined and punished by a special law. These crimes require as an
element the presence of mens rea.

I digress a bit to quote the renowned Justice Regalado who abhorred this
classification of crimes into mala in se and ma/um prohibitum, which I passionately
shared in one2 of my opinions:

4. Nor should we hold a "judicial prejudice" from the fact that the two forms
of illegal possession of firearms in Presidential Decree No. 1866 are mala
prohibita. On this score, I believe it is time to disabuse our minds of some

2 Sama v. People. G.R. No. 224469, January 5, 2021.

 Concurring Opinion 3 G.R. No. 224946

superannuated concepts of the difference between mala in se and ma/a

proltibita. I find in these cases a felicitous occasion to point out this
misperception thereon since even now there are instances of incorrect
assumptions creeping into some of our decisions that if the crime is punished
by the Revised Penal Code, it is necessarily a ma/um in se and, if provided for
by a special law, it is a malum prohibitum.

It was from hombook lore that we absorbed the distinctions given by text
writers, claiming that: (I) mala in se require criminal intent on the part of the
offender; in mala prohibita, the mere commission of the prohibited act, regardless
of intent, is sufficient; and (2) mala in se refer to felonies in the Revised Penal
Code, while mala prohibita are offenses punished under special laws.

The first distinction is still substantially correct, but the second is not
accurate. In fact, even in the Revised Penal Code there are felonies which are
actually and essentially mala prohibita. To illustrate, in time ofwa.r, and regardless
of his intent, a person who shall have correspondence with a hostile country or
territory occupied by enemy troops shall be punished therefor. An accountable
public officer who voluntarily fails to issue the required receipt for any sum of
money officially collected by him, regardless of his intent, is liable for illegal
exaction. Unauthorized possession of picklocks or similar tools, regardless of the
possessor's intent, is punishable as such illegal possession. These are felonies
under the Revised Penal Code but criminal intent is not required therein.

On the other hand, I need not mention anymore that there are now in our
statutes so many offenses punished under special laws but wherein criminal
intent is required as an element, and which offenses are accordingly mala in se
although they are not felonies provided for in the Code. 3

Originally, a crime was considered to be the commission of a physical act

which was specifically prohibited by law. It was the act itself which was the sole
element of the crime. If it was established that the act was committed by an
accused, then a finding of guilt would ensue.

As early as the twelfth century, however, in large part through the influence
of the canon law, it was established that there must also be a mental element
combined with the prohibited act to constitute a crime. That is to say that an
accused must have meant or intended to commit the prohibited act. The physical
act and the mental element which together constitute a crime came to be known as
the actus reus denoting the act, and the mens rea for the mental element.

Violations of Section 5 (e) and Section 5 (i) have the requisite actus reus and
mens rea elements. In deciding the merits of a criminal case, the analysis should
always start from and refer to these elements and not from anywhere or to anything
else.

The following excerpt from Valenzuela v. People, G.R. No. 160188, June 21,
2007, supplies the rationale for this starting point of every criminal case analysis:

The long-standing Latin maxim "actus non facit reum, nisi mens sit rea"
supplies an important characteristic of a crime, that "ordinarily, evil intent must
unite with an unlawful act for there to be a crime," and accordingly, there can

3 Concurring Opinion, People v. Quejada, 328 Phil. 505 (1996).

Concurring Opinion 4 G.R. No. 224946

be no crime when the criminal mind is wanting. Accepted in this jurisdiction as

material in crimes mala in se, mens rea has been defined before as "a guilty
mind, a guilty or wrongful purpose or criminal intent," and "essential for
criminal liability." It follows that the statutory definition of our ma/a in se
crimes must be able to supply what the mens rea of the crime is, and indeed the
U.S. Supreme Court has comfortably held that "a criminal law that contains no
mens rea requirement infringes on constitutionally protected rights." The
criminal statute must also provide for the overt acts that constitute the crime.
For a crime to exist in our legal law, it is not enough that mens rea be shown;
there must also be an actus reus.

It is from the actus reus and the mens rea, as they find expression in the
criminal statute, that the felony is produced. As a postulate in the craftsmanship
of constitutionally sound laws, it is extremely preferable that the language of
the law expressly provide when the felony is produced. Without such provision,
disputes would inevitably ensue on the elemental question whether or not a crime
was committed, thereby presaging the undesirable and legally dubious set-up under
which the judiciary is assigned the legislative role of defining crimes. Fortunately,
our Revised Penal Code does not suffer from such infirmity. From the statutory
definition of any felony, a decisive passage or term is embedded which attests
when the felony is produced by the acts of execution. For example, the statutory
definition of murder or homicide expressly uses the phrase "shall kill another," thus
making it clear that the felony is produced by the death of the victim, and
conversely, it is not produced if the victim survives.

Actus reus is the act (or sometimes an omission or state of affairs) indicated
in the definition of the offense charged together with (1) any consequences of that
conduct which are indicated by that definition; and (2) any surrounding
circumstances so indicated (other than references to the mens rea or element of
negligence required on the part of the defendant, or to any defense). 4

In addition to a physical element consisting of committing a prohibited act,

creating a prohibited state of affairs, or omitting to do that which is required by
the law, the actus reus requires the conduct in question to be willed; this is usually
referred to as voluntariness. The doing of the prohibited act or conduct must
involve a mental element. It is this mental element, that is the act of will, which
makes the act or conduct willed or voluntary.

On the other hand, mens rea is the subjective or mental element of an

accused's intention to commit a crime, or knowledge that an accused's action or
lack of action would cause a crime to be committed, or willful blindness or
recldessness that an accused's actus reus would cause a crime to be perpetrated.

But mens rea, properly understood, does not encompass all of the mental
elements of a crime. As stated, the actus reus has its own mental element; the act
must be the voluntary act of an accused for the actus reus to exist.

Mens rea, on the other hand, refers to the guilty mind, the wrongful
intention, of an accused. Its function in criminal law is to prevent the conviction of

4 Criminal Law (Volume 25 (2020), paras 1-552; Volume 26 (2020), paras 553-1014) I Commentary at
https://www.lexisnexis.co. uk/legal/commentary/halsburys-laws-of-england/crim inal-Iaw/the-actus-reus.
 Concurring Opinion 5 G.R. No. 224946

the morally innocent- those who do not understand or intend the consequences
of their acts.

Mens rea is a contemporaneous mental element comprising an intention to

carry out the prohibited physical act or omission to act; that is to say a particular
state of mind such as the intent to cause, or some foresight of, the results of the
act or the state of affairs.

Thus, typically, mens rea is concerned with the mental element

accompanying the consequences of the prohibited actus reus.

The prosecution always bears the burden of proving the actus reus, the
mental element of voluntariness of the actus reus, and the mens rea mental
element. Therefore, in certain situations, a person who committed a prohibited
physical act still could not be found guilty. A number of examples come to mind.

For instance, if a person in a state of automatism as a result of a blow on the

head committed a prohibited act that this person was not consciously aware of
committing, the latter could not be found guilty. The mental element involved in
committing a willed voluntary act and the mental element of intending to
commit the act were absent. Thus neither the requisite actus reus or mens rea for
the offense was present.

The result would be the same in the case of an accused who had an unexpected
reaction to medication which rendered this person totally unaware of the latter's
actions. Similarly, if an accused, during an epileptic seizure, with no knowledge of
what this person was doing, shot and killed a victim, this accused could not be
found guilty of killing since both the ability to act voluntarily and the mental
element of the intention to kill were absent.

In all these instances, though the accused committed the actus reus, the latter
simply could not have formed the requisite mental elements of voluntariness in
the performance of the prohibited act or omission and intention to commit the
prohibited act.

The statutory definition generally furnishes the elements of each crime and
the elements in tum unravel the particular requisite acts of execution and
accompanying criminal intent. 5

The Elements of Section 5 (i) in relation to

Section 3 (a) (C)

i. Actus Reus of Violation of Section 5 (i)

The starting point is the statutory definition in Section 5(i) of RA 9262:

5 Valenzuela v. People, supra.

I
Concurring Opinion 6 G.R. No. 224946

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 denial of
access to the woman's child/children.

In relation to Section 5 (i) is Section 3 (a) (C) of RA 9262:

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. 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
hmniliation, 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.

From this definition, the actus reus of this offense consists of the -

(i) relationship between an accused and offended parties, that is, 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.

(ii) denial of financial support to those entitled to receive financial support and to
whom an accused is obliged to give financial support.

a. The act is the deliberate withholding of the provision of financial support.

b. The consequence of the act is the absence or inadequacy of financial

support as defined by law for those entitled to be supp01ied by the accused,
since the complainant cannot compensate for the support denied to the
complainant and/or their children by the accused.

(iii) Legal entitlement to support and legal obligation (i.e., concurrence of

capacity and need) to provide support.

(iv) Mental or emotional anguish or likelihood or probability of mental or

emotional anguish on the part of those entitled to receive financial support and
to whom an accused is obliged to give financial support.

I
 Concurring Opinion 7 G.R. No. 224946

(v) causation or likely causation of the mental or emotional anguish by the

accused's denial of financial support.

Let me expound on each of these components of the actus reus.

(i) relationship between an accused and offended parties, that is, 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.

This is an objective element.

The presence of this element is not determined from a subjective (an

accused's or a complainant's) perspective but from these objective or real world
circumstances: (a) having a common child; (b) having engaged in a single sexual
act which may or may not result in the bearing of a common child (sexual relations);
or (c) having lived together without the benefit of marriage as if spouses or having
been involved romantically over time and on a continuing basis during the course
of their relationship, but excluding casual acquaintance or ordinary socialization
between two individuals in a business or social context (dating relationship).

For purposes of establishing the actus reus, no other mental element than
voluntariness has to be proved.

To clarify, it is not required that an accused or a complainant intended or

was purposely involved, or knew that they were, in any of these types of
relationship. It is enough that the prosecution established that they voluntarily had
a child, engaged in a single sexual act, lived together as if spouses, or bonded
themselves romantically continuously over a period of time.

(ii) denial of financial support to those entitled to receive financial support and to
whom an accused is obliged to give financial support.

This actus reus has two components: (a) an act and (b) a consequence.

The act, as correctly defined by Justice Caguioa, is the deliberate

withholding of the provision of financial support.

The consequence thereof is the absence or inadequacy of financial support

as defined by law (i.e., Article 194, Family Code: "Support comprises eve1ything
indispensable for sustenance, dwelling, clothing, medical attendance, education and
transportation, in keeping with the financial capacity of the family") for those entitled to
be supported by the accused, since the complainant cannot compensate for the
support denied to the complainant and/or their children by the accused.

The test in establishing this actus reus is objective.

 Concurring Opinion 8 G.R. No. 224946

The presence of this element is not determined from a subjective (an

accused's or a complainant's) perspective but from objective or real world
circumstances.

The relevant objective circumstances to establish this actus reus include:

• subject-matter of the needed sustenance, dwelling, clothing, medical

attendance, education and transportation;
• amounts required to pay for the foregoing support items;
• the claimed support items vis-a-vis the.financial capacity of the family prior
to the withholding of the provision of financial support;
• demand to an accused to pay financial support;
• capacity of an accused to give support;
• non-provision or partial provision of financial support; and
• absent or inadequate financial support on the part of the obligees of the
support since the woman is unable to compensate for the denied support
by the accused.

Notably, there is a legal obligation to provide support only if there is a

concurrence between the capacity to give support and the need to be supported. If
there is no such legal obligation, there can be no actus reus of deliberately
withholding financial support because there is really nothing to withhold. Also, if
there is no legal obligation to give support, the act of denying financial support
cannot be a criminal act since there is no legal mandate to do so.

There are two legitimate issues on this actus reus:

(a) whether the act component of the actus reus of denial of financial support refers to
the denial of full or partial financial support.

Hence, if an accused, during the period alleged in the Information, provided

some support for a portion or the entirety of this period, would he still be liable for
violation of Section 5 (i)?

My short answer to this issue is that the quantum of support denied by an

accused is not material. This is because the language of the statute does not make
such distinction.

Further, the purpose of the law is to redress a complainant's mental or

emotional anguish and deter others from causing it. The proposed distinction
should not be allowed because a denial of either a full or partial support could still
potentially result in such prejudice.

(b) whether the actus reus of denial of financial support has really a consequence
component, that is, the act of denial of support should result in the absence or
inadequacy of financial support to those entitled to be supported, that is, the financial
support to the woman and/or the children would be absent or at least insufficient as
a result of the accused's denial of support.

I/
 Concurring Opinion 9 G.R. No. 224946

Or, whether it is enough that an accused denied support regardless of the

consequence or impact ofth.e denial of support.

As already mentioned above, this actus reus has both an act and consequence
components. The act of denial of support must have the consequence of depriving
the woman and/or their children in whole or in part of the needed support as the
woman is unable to compensate for the accused's denied support.

Therefore, if the woman is able to provide the needed support for herself
and/or their children, and the accused's denial of support has no prejudicial
impact upon the obligees' support, then there is no violation of Section 5 (i) of RA
9262, even if the woman is mentally or emotionally anguished by the accused's
apparent finagling of the woman in terms of not sharing in the support obligations.

The rationale for the consequence component of this actus reus is the policy
behind RA 9262.

Section 2 states that the statute is designed to value the dignity of women
and children, to guarantee full respect for their human rights, to recognize the
need to protect women and children from violence and threats to their personal
safety and security.

If the woman is able to provide adequate financial support to herself and/or

the children sans the accused's financial support, the policy behind RA 9262 is not
at all implicated.

This is because, if the woman and the children are financially secure despite
the accused's denial of financial support, there is no impairment of their dignity or
violation of their human rights or their personal security. The woman's remedy
in this instance is not under RA 9262 but under the civil laws on support as well
as her access to and liquidation and dissolution of their property relations if any.

Another rationale is that the legal obligation to give financial support entails
the concurrence of the capacity to provide financial support and the need to be
supported. If there is no legal obligation to give financial support, the act of
denying financial support cannot be a criminal act because there is no legal
compulsion to extend financial support.

This actus reus of denial of support has two mental elements - the
voluntary mental element of the actus reus and the mens rea mental element.

The mens rea element will be discussed below.

As regards the voluntariness of the act, this means the prosecution has to
establish that the accused was not forced to deny financial support due to lack of
resources, other legal obligations and other circumstances beyond the accused's
control or discretion preventing the accused from providing financial support.

1
Concurring Opinion 10 G.R. No. 224946

(iii) Legal entitlement to support and legal obligation (i.e., concurrence of

capacity and need) to provide support

This actus reus is an objective element. This is determined by the civil laws
on support. Neither an accused nor a complainant can determine for themselves
who is entitled to support and who is obliged to give support. The civil laws provide
the answer. Accordingly, the legal obligation to provide support requires the
concurrence of an accused's capacity to provide support and an obligee' s need for
support.

(iv) Mental or emotional anguish or likelihood or probability of mental or

emotional anguish itself, on the part of those entitled to receive financial
support and to whom an accused is obliged to give financial support.

This actus reus has both subjective and objective components.

Mental or emotional anguish is subjective if the woman and/or her children

with the accused has/have attested to its existence, that is, they testify that they are
in fact suffering from mental or emotional anguish.

As held in Dinamling v. People, 761 Phil. 356 (2015), this is element is

proven by the testimonies of the complainant woman and/or children since the
mental or emotional anguish is personal to them.

If the complainants testify to this effect, they have established halfway this
actus reus. The other half is determined by the credibility of this claim that must
then be examined on the totality of the evidence in the case.

Mental or emotional anguish is objective if the claim is limited to the

likelihood or probability of mental or emotional anguish of the woman and/or her
children with the accused. To be liable for violation of Section 5 (i), among other
requisites, the mental or emotional anguish need not exist as a fact but there must
at least be the likelihood or probability of its occurrence according to the
perspective of reasonable persons in the situation of the woman and/or her children.

Note that this actus reus of the likelihood or probability of mental or

emotional anguish is found textually in Section 3 (a) (C) of RA 9262 and not in the
text of Section 5 (i). Nonetheless, since Section 5 (i) must be read in relation to
Section 3 (a) (C), this particular component of the actus reus is deemed written into
the statutory definition of the crime under Section 5 (i).

(v) causation or likely causation of the mental or emotional anguish by the

accused's denial of financial support.

This actus reus has both subjective and objective components.

The causation of mental or emotional anguish by the accused's denial of

financial support is subjective if the woman and/or her children with the accused
has/have attested to the existence of this causation, that is, they testify that they are

1
Concurring Opinion 11 G.R. No. 224946

in fact suffering from mental or emotional anguish as a result of the accused's

denial offinancial support.

If the complainants testify to this effect, they have established halfway this
actus reus. The other half is determined by the credibility of this claim that must
then be examined on the totality of the evidence in the case.

This causation of the mental or emotional anguish is objective if the claim

is limited to the likelihood or probability of the causation of mental or emotional
anguish by the accused's denial of financial support.

Causation need not exist as a fact but there must at least be the likelihood or
probability of this causation according to the perspective of reasonable persons in
the situation of the woman and/or her children.

The causal relationship required by the law is that the mental or emotional
anguish need not only be factual or consummated by the accused's denial of
support but also be likely or probable to happen as a result of the denial of
financial support.

This actus reus of the likelihood or probability of the causation of mental or

emotional anguish is found textually in Section 3 (a) (C) of RA 9262 and not in the
text of Section 5 (i). Nonetheless, since Section 5 (i) must be read in relation to
Section 3 (a) (C), this specific actus reus is deemed written into the statutory
definition of the crime under Section 5 (i).

Notably, the actus reus of denial of financial support has both act and
consequence components. The emotional or mental anguish must be caused by the
ultimate consequence of the denial of financial support, which is the absence or
inadequacy of support that cannot be compensated by the woman's own
resources. This connection among these components of the actus reus may be
illustrated as follows:

Conversely, if the mental or emotional anguish is not due to or likely to be

due to the absence or inadequacy of support, since the woman is able to provide
ample support or since the woman is bothered by something else, then Section 5
(i) is not the proper remedy for the woman and/or their children.

There is a mental element to this actus reus but this is found in the mens rea
element of Section 5 (i) - the accused's intention and purpose to inflict such
mental or emotional anguish upon the woman and/or their children or the willful
blindness or recklessness of the accused's conduct in not recognizing that the act
of denying financial support would probably or likely cause such mental or
emotional anguish on their part.

If
Concurring Opinion 12 G.R. No. 224946

ii. Mens Rea of Violation of Section 5 (i)

While RA 9262 defines an offense punishable by a special law, violation of

Section 5 (i) in relation to Section 3 (a) (C) nonetheless requires amens rea element.

The mens rea has three components:

(i) the specific intent of an accused to deny financial support to the obligees of
support, which requires as stated the mental element of voluntary
performance of this act and the intention, purpose and knowledge to do so.

(ii) the specific intent of an accused to cause the absence or inadequacy of

financial support on the part of the obligees of support, which requires not only
the mental element of voluntary performance of the act of denying financial
support but also the intention, purpose and knowledge to accomplish such
consequence of the act of denying support; the absence or inadequacy of
financial support on the part of the obligees of support must be a fact - they
must in fact be in need of the accused's financial support,

(iii) the specific intent to cause or to likely cause the obligees' mental or
emotional anguish due to the accused's denial of financial support and
its consequence of absence or inadequacy of financial support.

Note that the third specific intent requirement of to cause likely is found
textually in Section 3 (a) (C) of RA 9262 and not in the text of Section 5 (i). But
since Section 5 (i) must be read in relation to Section 3 (a) (C), this specific intent
is deemed written into the statutory definition of the crime under Section 5 (i).

This mental element consists of the accused's intention and purpose to

cause or inflict such mental or emotional anguish upon the woman and/or their
children by denying them financial support. This is the mental element required
where mental or emotional anguish is actually suffered by them.

Alternatively, the mental element may also be the accused's willful

blindness or recklessness in pursuing the act of denying financial support and
not recognizing that this act would probably or likely cause such mental or
emotional anguish on the woman and/or their children.

Application of the Elements of Section 5 (i) in

relation to Section 3 (a) (C)

I. Facts of the Case

Accused-petitioner was charged with violation of Section 5 (i) of RA 9262 in

an Information alleging thus:

That sometime in (sic) January 25, 2012, up to the present, in Valenzuela

City and within the jurisdiction of this Honorable Court, the above-named accused,
did then and there willfully, unlawfully and feloniously cause mental or
Concurring Opinion 13 G.R. No. 224946

emotional anguish, public ridicule or humiliation to his wife AAA, by denying

financial support to the said complainant.

He pleaded not guilty to the charge and trial ensued. According to the trial
court, after he left for Brunei to work as an overseas worker, he maintained another
romantic non-marital relationship while not being emotionally separated from his
spouse. The latter is the sole complainant in this criminal case as she and accused
had no children. In Brunei, he lived together with the woman. He also failed to pay
the amount he and his spouse had borrowed to settle his placement fee. As
recounted by the trial court:

However, the accused did not send money on a regular basis. All in all,
he was able to send money in the total amount of P71,500.00 only, leaving the
balance in the amount of 1"13,500.00. For which reason, she felt so embarrassed
with [their creditor] because she could not pay the balance. She even pleaded
to [their creditor] not to lodge a complaint to the barangay. [Their creditor]
commw1icated to the employer of the accused in Brunei about their debt to her.

On cross, she stated that when the accused left in December 2011, she [was]
jobless. Presently, she is gainfully employed. She lost communication with the
accused since January 2012. According to the employer and friends of the accused,
the latter is living with his paramour in Brunei. She filed this case because she was
extremely hurt and she experience emotional agony by the neglect and utter
insensitivity that the accused made her endure and suffer.

Accused-petitioner explained that he really wanted to send and bring

money back from Brunei. Unfortunately, while he was in Brunei, his rented place
was razed by fire and he met a vehicular accident which required him to spend
a significant sum of money. He and his spouse had an on and off communication
from October 2011 until April 2013. He admitted though that complainant
demanded that he pay the entire amount of the debt.

He further recalled:

He used to send money to the private complainant. But it was the latter
who told him not to send money anymore. He also claimed that he was able to
send the total amount of !"71,000.00 to the private complainant in payment of their
loan. He agreed that the same is not enough to fully pay their loan in the total
amoW1t of l"85,000.00.

ii. Application of the Analytical Test to the

Facts of the Case

I agree with the ponencia that accused-petitioner is entitled to an acquittal.

The prosecution failed to prove at all the requisite actus reus and necessarily
mens rea of Section 5 (i).

The following components of the actus reus are not disputed:

(i) relationship between an accused and offended parties, that is, a woman with
whom the person has or had a sexual or dating relationship, or with whom he
Concurring Opinion 14 G.R. No. 224946

has a common child, or against her child whether legitimate or illegitimate,

within or without the family abode.

(ii) Legal entitlement to support and legal obligation (i.e., concurrence of

capacity and need) to provide support

(iii) Mental or emotional anguish or likelihood or probability of mental or

emotional anguish on the part of those entitled to receive financial support and
to whom an accused is obliged to give financial support.

At issue are these components of actus reus:

(i) denial of financial support to those entitled to receive financial support and to
· whom an accused is obliged to give financial support.

a. The act is the deliberate withholding of the provision of financial support.

b. The consequence of the act is the absence or inadequacy of financial

support as defined by law for those entitled to be supported by the accused,
since the complainant cannot compensate for the support denied to the
complainant and/or their children by the accused.

(ii) The consequence or likely consequence of mental or emotional anguish as a

result of the accused's denial of financial support

There was no deliberate withholding of financial support because -

(a) the unfortunate events in accused-petitioner's life in Brunei prevented

him from saving money that he could have remitted to the Philippines; with no
money to remit, there was nothing he was withholding much less deliberately
withholding; and

(b) there was no demand from his spouse to provide support; if there was no
demand to give support, it cannot be said that he was deliberately withholding or
in short denying financial support.

His spouse also did not suffer absent or inadequate support. She was
gainfully employed as she had admitted. She also did not demand support at all.
All she wanted was for him to pay his debt to their godmother.

Thus, the consequence of the act component-absent or inadequate support

is also missing.

While complainant suffered emotional or mental anguish, this was not the
result of any denial of financial support (which did not happen anyway) or the
absence or inadequacy of financial support (which did not occur too).

Rather, the emotional or mental anguish was due to the alleged other
relationship of accused-petitioner. This cause of the mental or emotional anguish,
however, was not the mode of psychological violence alleged in the Information.
Concurring Opinion 15 G.R. No. 224946

It should not and could not have been, therefore, the proof-focus of the prosecution
evidence against him. This allegation, though harrowing to complainant, is not the
cause of the accusation, hence, it is irrelevant and inadmissible in this case.

Since the actus reus of the crime charged was not proved at all, any
discussion on its mens rea element is totally unnecessary. The reason is that there
is no prohibited act, state of affairs, and consequence to which the relevant mens
rea could attach.

iii. Criminalization of Non-Provision of

Support and the Variance Doctrine

RA 9262 does not criminalize the mere omission to pay support or solely
the non-provision of support. The matter of support as an item of the actus reus
appears only in Section 5 (i) in relation to Section 3 (a) (C) and Section 5 (e) (2). In
both these provisions, lack of support or provision of inadequate support is
criminal only if the other components of the statutorily defined actus reus and
mens rea are present.

Neither does RA 9262 criminalize the mere denial of financial support.

In particular, I agree with Justice Caguioa that Melgar v. People, G.R. No.
223477, February 14, 2018, imprecisely held that Section 5 (i) necessarily includes
Section 5 (e) (2) and that this actus reus can be the sole basis for a conviction under
Section 5 (e) (2).

Justice Caguioa also correctly recommended abandoning this case law and
Reyes v. People, G.R. No. 232678, July 3, 2019, which affirmed Melgar.

Section 5 (e) (2) is not necessarily included in Section 5 (i) because the
element of the former is not only denial of financial support.

But for the element of 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, which is a
common element with Section 5 (i), the statutory definition of Section 5 (e) (2)
requires different actus reus and mens rea.

Without exhaustively canvassing the elements of Section 5 (e) (2), the actus
reus includes the overarching prohibited consequence of controlling or
restricting, attempting to control or restrict, or threatening to control or restrict,
the woman's or her child's movement or conduct. This is not an element of Section
5 (i) and is a distinctive element of the crime loosely termed economic abuse.

Further, the mens rea of Section 5 ( e) (2) includes the specific intent to bring
about or cause - the intentional, purposeful and knowing bringing about or
causing of - the overarching prohibited consequence. This specific intent is not
present in Section 5 (i) and is a distinctive element of Section 5 ( e) (2).
Concurring Opinion 16 G.R. No. 224946

The cause of accusation for Section 5 (e) (2) crime is different from the
cause of accusation under Section 5 (i). Each of these elements must be alleged in
the Information and proven beyond a reasonable doubt to obtain a conviction.

Allegations for Section 5 (i) do not encompass allegations under Section 5

(e) (2) because the former are different from the latter.

The variance principle was therefore inaccurately applied in Melgar and

Reyes. The good Senior Associate Justice graciously conceded this point in her
Reflections and, for this and other reasons, I admire and respect superbly her
wisdom, graciousness, and humility.

iv. Opinion of Senior Associate Justice

Perlas-Bernabe

I agree with the good Senior Associate Justice that Section 3 (a) has a bearing
upon the meaning of the particular criminal provision in RA 9262, Section 5. I
myself refer to Section 3 (a) to identify the act and consequence and the mental
elements of Section 5. The Supreme Court has in fact done so countless times prior.

I respectfully suggest, however, that Section 3 (a) is not just about the effects
of the acts mentioned in Section 5 upon the woman and/or her children. 6

Section 3 (a) is far more comprehensive than what the good Senior Associate
Justice proffers. Please consider the following:

Section 5 (i) punishes the infliction of mental or emotional anguish by

means of the acts some of which are mentioned in Section 5 (i) while others are
stated in Section 3 (a) (C).

An example is marital infidelity which appears in the latter but not in

Section 5 (i). Denial of financial support is mentioned in Section 5 (i) but not in
Section 3 (a) (C).

Section 5 (i) requires the mens rea of the specific intent to cause mental or
emotional anguish. It is a specific intent because the mere voluntary performance
or omission of denial of financial support does not automatically result in the
actus reus of mental or emotional anguish. The latter effect must be specifically
willed or intended.

But Section 3 (a) (C) adds another dimension of actus reus and mens rea ~
likely to cause mental or emotional anguish.

6 The learned Senior Associate Justice opined during the deliberation that "[a]ccordingly, the Court would do well to
clarify the perception in some earlier cases wherein the types of violence under Section 3 (a) of RA 9262 as
means/punishable offenses. At the risk of belaboring the point, these types of violence are only descriptive of the
effects on the woman and her child which result from the specific acts committed by the accused listed in
Section 5 of RA 9262. Simply put, the acts enumerated in Section 5 are the means/punishable offenses, while
the types of violence in Section 3 (a) -physical, sexual, and psychological violence and economic abuse - are the
ends/resulting effects.
 Concurring Opinion 17 G.R. No. 224946

Denial of financial support that is likely to cause emotional or mental anguish

is an actus reus that is different and apart from denial of financial support that
causes mental or emotional anguish. This actus reus has a different mental
component as mens rea. Likely to cause calls for the mental states of willful
blindness or recklessness and not intent, purpose or knowledge.

I also humbly opine that the mental element in mens rea is not the intent to
commit psychological violence or economic abuse. 7 I think, as the good Senior
Associate Justice does, that this is an imprecise way of identifying the mens rea of
Section 5 (i) in relation to Section 3 (a) (C).

The mental element in mens rea must be correlated to the specific actus
reus component to which the mental element attaches.

The terms psychological violence and economic abuse, for instance, are a
bundle of components of the actus reus and the mens rea, some of which intersect
between these types of violence, some are shared between them, and some are
distinctive. So we have to be more specific and precise when identifying the actus
reus and mens rea involved.

Thus, I agree with the view of Senior Associate Justice Perlas-Bernabe that

Therefore, since it has been established that the types of violence are neither
exclusive to a Section 5 act nor are the means/punishable offense, it is but proper
to situate intent on the actual purposes mentioned in Section 5 of RA 9262.
These purposes are in the nature of specific intent, which must underlie the
commission of the act sought to be punished.

Still, I do not think it was error for Justice Caguioa to categorize the
provisions of Section 5 into the types of violence identified and defined or illustrated
in Section 3 (a). I agree with the following approach of Justice Caguioa to which
Senior Justice Perlas-Bernabe disagreed -

A simple reading of Section 5 reveals that it is meant to classify the acts of

violence against women already identified and defined under Section 3. Sections 5
(a) to 5 (d) seek to protect women and their children from physical violence, 5 (f),
5 (h) and 5 (i) from psychological violence, and 5 (g) from physical and sexual
violence. Meanwhile, Section 5 (e), as previously discussed, protects the woman
from acts of violence that are connnitted for the purpose of attempting to control
her conduct or actions, or make her lose her agency. To the mind of the Court,
Section 5 (e) enumerates the act of "economic abuse" defined under Section 3.

This approach commends itself to a more organized and simplified

understanding of the elements of the Section 5 offenses in relation to the types of
offenses classified in Section 3 (a) (C). While there might be some divergence

7
The good Senior Associate Justice mentioned that "[t] he above-discussed conceptual nuances are relevant since it
affects the determination on where to situate criminal intent. In my opinion, considering that (1) the punishable acts
are those provided under Section 5 of RA 9262; and (2) that the types of violence under Section 3 (a) are the resultant
effects on the part of the woman or her child, it is thus inaccurate to say that the prosecution must show, by
proof beyond reasonable doubt, that "the accused bad the intent to inflict !for example! psychological
violence to the woman x x x".
Concurring Opinion 18 G.R. No. 224946

between the types of offense categorized in Section 3 (a) and the definition of the
offenses in Section 5, there is a general correspondence in the coupling or pairing
made by Justice Caguioa. The approach may not be perfect but it is a shorthand
reference to what is relevant in Section 3 (a) vis-a-vis Section 5. But of course Senior
Associate Justice Perlas-Bernabe is correct in advising caution in using these
pairings when they are not on-all-fours with the specifics of an actual case.

I appreciate her opinion that here, the specific intent requirement 1s as

follows:

Instead of stating that the prosecution must show that the accused intended
to commit psychological violence, it is submitted that the more accurate
phrasing is that the prosecution must prove that the accused, by depriving AAA,
his wife, of financial support, intended to cause her mental or emotional
anguish, public ridicule or humiliation, which thereby resulted into
psychological violence.

She also mentions that -

Overall, I respectfully submit that it is necessary to fra..ue the specific intent

not relative to the fonn of violence alleged to have resulted, but rather to the actual
purposes mentioned in the acts stated in Section 5 itself.

I believe that her formulation is in synch with my discussion above on the

specific intent mens rea, to wit:

(iv) the specific intent of an accused to deny financial support to the obligees of
support, which requires as stated the mental element of voluntary
performance of this act and the intention, purpose and knowledge to do so.

(v) the specific intent of an accused to cause the absence or inadequacy of

financial support on the part of the obligees of support, which requires not only
the mental element of voluntary performance of the act of denying financial
support but also the intention, purpose and knowledge to accomplish such
consequence of the act of denying support; the absence or inadequacy of
financial support on the part of the obligees of support must be a fact - they
must in fact be in need of the accused's financial support,

(vi) the specific intent to cause or to likely cause the obligees' mental or
emotional anguish due to the accused's denial of financial support and
its consequence of absence or inadequacy of financial support.

To be sure, the key to analyzing criminal statutes and cases is -

(1) to examine the elements of the crime by using the categories of actus
reus and mens rea, and then,

(2) to determine the actual components of these elements from the statutory
definition of the crime itself and the purpose for the enactment of the criminal
prov1s1on.

I/
Concurring Opinion 19 G.R. No. 224946

This analysis could be a painstaking one but it should able to account for the
policies behind the criminal statute.

Conclusion

ALL TOLD, I concur in the result and vote to grant the petition and acquit
accused-petitioner of violation of Section 5 (i) of RA 9262 or of any other crime
necessarily included therein if any.

AMY N/!JZ;.RO-JA VIER

;_(s~ciate Justice