Hayden Kho, Katrina Halili, Robin Padilla and the Pet Goldfish

After a heated argument with his pregnant wife, the irate husband flushes the wife’s pet goldfish into goldfish heaven (or hell).   The wife cries foul and claims substantial emotional and psychological stress over the death of her pet goldfish.  After appropriate proceedings, the court sentences the husband to imprisonment of 10 years and 1 day.

Some may think that imprisonment of 10 years and 1 day for killing a goldfish and causing psychological stress to the wife may be a bit severe and that such penalty for such type of offense will likely be found in totalitarian states. Believe it or not, the above scenario can happen in the Philippines. Here is where the stories of Hayden Kho, Katrina Halili, Robin Padilla and the pet goldfish become intertwined.

Under Republic Act No. 9262, otherwise known as the “Anti-Violence Against Women and Their Children Act of 2004”, a husband (or for that matter, a boyfriend) may be imprisoned for “destroying the property and personal belongings or inflicting harm to animals or pets of the woman or her child”.  The penalty imposed by the Act is prison mayor (which ranges from 6 years, 1 day to 12 years).

The Act is the same law that the National Bureau of Investigation (NBI) is charging Hayden Kho of violating in connection with the recording of the sex video of Kho and Katrina Halili.  Specifically, the NBI recommended the filing of charges against Kho for violation of Sections 5(h) and (i) of the Act.  Section 5 provides:

SECTION 5. Acts of Violence Against Women and Their Children. — The crime of violence against women and their children is committed through any of the following acts:

(a)     Causing physical harm to the woman or her child;

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

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

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

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

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

(2)     Depriving or threatening to deprive the woman or her children of financial support legally due her or her family, or deliberately providing the woman’s children insufficient financial support;

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

(4)     Preventing the woman in engaging in any legitimate profession, occupation, business or activity or controlling the victim’s own money or properties, or solely controlling the conjugal or common money, or properties;

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

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

(h)     Engaging in purposeful, knowing, or reckless conduct, personally or through another, that alarms or causes substantial emotional or psychological distress to the woman or her child.

This shall include, but not be limited to, the following acts:

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

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

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

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

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

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

Section 6 of the Act provides the penalties for committing the offenses described in Section 5:

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

(a)     Acts falling under Section 5(a) constituting attempted, frustrated or consummated parricide or murder or homicide shall be punished in accordance with the provisions of the Revised Penal Code. If these acts resulted in mutilation, it shall be punishable in accordance with the Revised Penal Code; those constituting serious physical injuries shall have the penalty of prision mayor; those constituting less serious physical injuries shall be punished by prision correccional; and those constituting slight physical injuries shall be punished by arresto mayor.

Acts falling under Section 5(b) shall be punished by imprisonment of two (2) degrees lower than the prescribed penalty for the consummated crime as specified in the preceding paragraph but shall in no case be lower than arresto mayor.

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

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

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

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

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

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

In addition to imprisonment, the perpetrator shall (a) pay a fine in the amount of not less than One hundred thousand pesos (P100,000.00) but not more than Three hundred thousand pesos (P300,000.00); (b) undergo mandatory psychological counseling or psychiatric treatment and shall report compliance to the court.

Under the Revised Penal Code, arresto mayor ranges from 1 month and 1 day to 6 months while prision correcional ranges from 6 months, 1 day to 6 years. As mentioned earlier, prision mayor ranges from 6 years, 1 day to 12 years.

Violence against women and children should certainly be punished.  However, it understandable if a number of people will take the view that some penalties imposed on certain acts punished under the Act are too severe – take the case of the husband venting his ire on the family goldfish or the peeping tom boyfriend, both of whom may be punished with prision mayor.  In his book Moral Minds: How Nature Designed Our Universal Sense of Right and Wrong (2006), Harvard University professor Marc D. Hauser writes:

Once punishment has been established, the next question is, how much? The retributivists’ answer is that the magnitude of the punishment should match the severity of the crime.  As evolutionary psychologists Martin Daly and Margo Wilson claim, this proportionality perspective may be a core part of human nature: “Everyone’s notion of  ‘justice’ seems to entail penalty scaled to the gravity of the offense. (pp. 117-118)

The book of Exodus’ prescription of an “eye for an eye” and a “tooth for a tooth” adopts the proportionality principle (see Exodus 21:24). However, in reality, various legal systems have imposed penalties that are not scaled to the gravity of the offense. In fact, even the Bible says: “If a man steals an ox or a sheep and slaughters it or sells it, he shall pay five oxen for the ox and four sheep for the sheep.” (see Exodus 22:1, New American Standard Bible)

Deterrence is the principal justification for imposing penalties that are not scaled to the gravity of the offense:

“To ignore the potential deterrence function of punishment, in any form, is to ignore one of its most significant education functions. If the punishment is high enough, it will deter. Just imagine what would happen if a million-dollar fine was imposed on petty thieves or people who fail to put money in a parking meter. Surely the rates would go down. But herein lies the clash between the effectiveness of punishment as a mechanism of control and the sense of fair punishment.” (Hauser, Moral Minds, p. 119)

Does the severity of punishment make a law unconstitutional on the ground that it violates the Constitutional prohibition against “cruel, degrading, or inhuman punishment”?   Generally, no.  Robin Padilla made the same challenge and failed. In Robin Padilla vs. The Court of Appeals, G.R. No. 121917, March 12, 1997, the Supreme Court ruled:

Equally lacking in merit is appellant’s allegation that the penalty for simple illegal possession is unconstitutional. The penalty for simple possession of firearm, it should be stressed, ranges from reclusion temporal maximum to reclusion perpetua contrary to appellant’s erroneous averment. The severity of a penalty does not ipso facto make the same cruel and excessive.

“It takes more than merely being harsh, excessive, out of proportion, or severe for a penalty to be obnoxious to the Constitution. ‘The fact that the punishment authorized by the statute is severe does not make it cruel and unusual’ (24 C.J.S., 1187-1188). Expressed in other terms, it has been held that to come under the ban, the punishment must be ‘flagrantly and plainly oppressive’, ‘wholly disproportionate to the nature of the offense as to shock the moral sense of the community.”

It is well-settled that as far as the constitutional prohibition goes, it is not so much the extent as the nature of the punishment that determines whether it is, or is not, cruel and unusual and that sentences of imprisonment, though perceived to be harsh, are not cruel or unusual if within statutory limits.

Moreover, every law has in its favor the presumption of constitutionality. The burden of proving the invalidity of the statute in question lies with the appellant which burden, we note, was not convincingly discharged. To justify nullification of the law, there must be a clear and unequivocal breach of the Constitution, not a doubtful and argumentative implication, 90 as in this case. In fact, the constitutionality of P.D. 1866 has been upheld twice by this Court. Just recently, the Court declared that “the pertinent laws on illegal possession of firearms [are not] contrary to any provision of the Constitution. . . ” Appellant’s grievance on the wisdom of the prescribed penalty should not be addressed to us. Courts are not concerned with the wisdom, efficacy or morality of laws. That question falls exclusively within the province of Congress which enacts them and the Chief Executive who approves or vetoes them. The only function of the courts, we reiterate, is to interpret and apply the laws.

Similar rulings were made by the Supreme Court in People vs. Roberto Tiongko, G.R. No. 123567, June 5, 1998, and in Jovencio Lim vs. People, G.R. No. 149276, September 27, 2002. In the Robin Padilla case (and other cases), the Supreme Court left open the possibility that too severe punishment may be obnoxious to the Constitution when it stated that “to come under the ban, the punishment must be . . . wholly disproportionate to the nature of the offense as to shock the moral sense of the community.”

Will a 10 year, 1 day imprisonment for a husband who killed the pet goldfish and caused psychological stress to the pregnant wife shock the moral sense of the community? You decide.

(Note:  A sequel to this article was posted on June 24, 2009.)

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