I. Understanding Pornography and an Overview of the Technology Available Today
I. Pornography vis-à-vis Obscenity
A. Pornography
Pornography is the depiction of erotic behavior intended to cause sexual excitement. [] It is “the sexually explicit depiction of persons, in words or images, created with the primary, proximate aim, and reasonable hope, of eliciting significant sexual arousal on the part of the consumer of such materials.” [] In legal parlance, pornography “refers to any representation, through publication, exhibition, cinematography, indecent shows, information technology, or by whatever means, of a person engaged in real or simulated explicit sexual activities or any representation of the sexual parts of a person for primarily sexual purposes.” [] The 1986 Attorney General Commission on Pornography of the United States defined it as material that “is predominantly sexually explicit and intended primarily for the purpose of sexual arousal.” []
Soft-core pornography features naked or scantily clothed persons, focusing mainly on their breasts and genitalia but shows no sexual intercourse. Hard-core pornography includes various forms of sexual penetration, forced and unforced, between two or more people. Olson, Jeff. [] Hard core pornography is said to be “sexually explicit in the extreme, and devoid of any other apparent content or purpose.” []
B. Obscenity
Obscenity, on the other hand, is “such indecency as is calculated to promote the violation of the law and the general corruption of morals.” [] The current legal definition of obscenity is found in the 1973 US Supreme Court case of Miller v. California, [] cited in the Philippine Supreme Court case of Pita vs. Court of Appeals. [] According to the Miller case, material is obscene if all three of the following conditions are met:
- The average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interests.
- The work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state (or federal) law, and
- The work taken as a whole, lacks serious, artistic, political or scientific value [] .
The US Supreme Court ruled in the Miller case, which was adopted by the Philippine Supreme Court in the Pita case, that a legal definition of obscenity must meet the three-part test. It must be determined, “(1) whether the predominant theme or purpose of the material, when viewed as a whole and not part by part, and when considered in relation to the intended and probable recipients, is an appeal to the prurient interest of the average person of the community as a whole, or the prurient interest of members of a deviant sexual group, as the case may be”; (2) whether the given material “depicts or describes, in a patently offensive way, sexual conduct – e.g. ultimate sexual acts, normal or perverted, actual or simulated; masturbation; excretory functions; or lewd exhibition of the genitals – measured against contemporary community standards; i.e whether it so exceeds the generally accepted limits of candor as to be clearly offensive”; and (3) “whether the material, taken as a whole, lacks serious literary, artistic, political or scientific value.” [] If it appeals, thus, to the prurient interest, is patently offensive, and lacks serious value (artistically, etc.) then the material is considered obscene and is illegal.
II. Pornography vis-à-vis Prostitution; History of Pornography
Prostitution – that is, “the practice of engaging in sexual activity, usually with individuals other than a spouse or friend, in exchange for immediate payment in money or other valuables” [] , or in legal parlance, “any act, transaction, scheme or design involving the use of a person by another, for sexual intercourse or lascivious conduct in exchange for money, profit or any other consideration” [] – has existed since time immemorial. Prostitution and pornography are intertwined inasmuch as pornography originally signified any artwork or literature depicting the life of prostitutes. Today, pornography includes erotic and sexually explicit imagery of ordinary persons, who may even be unaware that they are presented to the public in such a manner. Pornography has grown increasingly as a necessary offshoot of prostitution, in light of the increasing supply of cheap image capturing devices.
Pornography has existed for centuries, although imagery and literature of such nature were not seen to be worthy of preservation or transmission. Rare images surviving to the present are hand-drawn graphics originating from India and Japan. [] Some literature which survived – although such are being argued to be artistic and not pornographic, depending on the community standard being applied – includes the Indian “Kama-Sutra” and the Greek treatise “The Art of Love” by Ovid, among others. With the advent of printing in 1452, pornography, existing in the fringes of legitimate publishing, proliferated to entertain as well as to arouse. The development of photography in 1827, through the individual efforts of Joseph Nicéphore Niépce and Louis Jacques Mandé Daguerre, [] and the development of moving pictures in 1867, through the individual efforts of William Lincoln, Louis Lumière, and the Edison Brothers, [] although not intended, contributed to the proliferation of pornography, as did the Internet, which grew out of the U.S. Defense Department program called ARPANET (Advanced Research Projects Agency Network) established in 1969.
III. Technology aiding the storage and transmission of pornography
Pornography exists in different media. Explicit images and image sequence may be stored in tangible and electronic forms.
A. Traditional media
Pornography in tangible or traditional media may be subcategorized as those printed in paper or other surface materials, and those captured in film. Those printed in paper includes photographs – either studio processed or polaroids [] – besides usual pornographic publications. Those stored in film includes those stored in television and theatrical/cinema-grade films, such as the Super 16 (16mm) and the 35mm, respectively; film positives or slides; outmoded media such as Super 8 (8mm), [] Betamax, [] VHS, [] and Compact VHS, [] among others. Storage in these media, i.e. printed or in film, may be bulky, and the cost of production and distribution is average to high. The potency of distribution is also limited.
B. Modern Media
Pornography in electronic or modern media, on the other hand, may be subcategorized – although said media are identically binary [] – according (1) to the class of storage device used, (2) to the class of consumer electronics used, or (3) to the multimedia format used.
1. Storage devices used []
Electronic documents, especially multimedia files, may be stored in disk storage, [] magnetic bubble memory, [] and flash memory [] /memory card [] or the solid-state semiconductor memory type. Disk storage may be classified further as optical disc [] – which comes in various formats: CD-ROM, (through CD-R and CD-RW media, i.e. writeable and rewriteable, respectively), [] DVD (through DVD-R, DVD-RW, DVD+R, DVD+RW, DVD-RAM media), [] Blu-ray, [] and Minidisc [] – magnetic (or hard discs), [] removable magnetic such as floppy [] and zip discs, [] and holographic. [] Flash memory or memory cards are available through different manufacturers as CompactFlash I and II, [] SONY Memory stick (Standard/Duo/Pro/MagicGate versions), [] Secure Digital, [] MMC, [] SmartMedia, [] xD, [] or USB Keydrive [] a.k.a. Thumb drive. Most multimedia files are stored in hard discs, optical discs, removable magnetic discs, and flash memory or memory cards. Physical distribution and transport of digital multimedia files are usually made using optical discs and flash memory or memory cards.
2. Consumer devices used
Storage of multimedia files is not isolated to computers, where data storage devices are widely used, whether desktop or portable (laptop or palmtop [] ). Multimedia files are also presently stored in Multimedia Messaging System (MMS) [] -enabled mobile telephones, [] digital audio players [] (DAP, sometimes also recorder), digital cameras and camcorders, digital recorders, [] among other digital devices available in the market. Transmission of such multimedia files is a function no longer in the exclusive realm of computers. The ways to transfer multimedia files increase exponentially as new classes of digital devices are introduced in the market.
3. Non-physical transfer methods used
Multimedia files may be transferred from one computer to another, directly, through cables, radio, infrared, and other analogous means. Such files may be transferred through intermediary storage devices, such as optical discs, memory cards, and removable magnetic discs.
a. Electronic
Multimedia files may be transferred electronically through wires and cables. Earlier methods of connecting computers include parallel-to-parallel port cabling (for one-to-one connection) and Bayonet Neill-Concelman (BNC) [] cabling (for Local Area Network [LAN]) [] which are now passé, due to availability of cheaper computers and computer network peripherals such as hubs [] and routers. [] Current connections between computers are normally done through USB-to-USB [] port link, and LAN connections using RJ45 (Registered Jack 45) jacks and cables. One LAN can be connected to other LANs, or one remote computer can be connected to one LAN, or one remote computer can be connected to another remote computer, over any distance via telephone lines and radio waves. [] Multimedia files are transferred in an Intranet [] through the use of shared folders in individual computers or allocated user folders in the file server. Similar files have been transferred from one remote computer to another, prior to and simultaneous to the widespread use of the Internet, through Bulletin Board Service (BBS). []
When a computer, or the LAN, is connected to the Internet, various methods may be utilized to transfer and retrieved multimedia files on the Internet or another peer’s computer. Different protocols may be used, such as HyperText Transfer Protocol (HTTP) [] where the World Wide Web [] is seen; Post Office Protocol version 3 (POP3) [] or Internet Message Access Protocol (IMAP), [] and Simple Mail Transfer Protocol (SMTP) [] where email is received and sent, and File Transfer Protocol (FTP) [] where large files may be sent to an online repository or an allocated user folder in a destination server, Discussion boards or Usenet, [] among others. Multimedia files may be transferred from one computer user to another through Internet Relay Chat (IRC), [] or through Instant Messaging. [] Said files may be transferred by simultaneously connected computer users using peer-to-peer [] software, such as Kazaa, eDonkey, GNUtella, and the like.
b. Radio waves
Wireless LAN (WLAN) uses radio waves as its carrier, although the network backbone remains to be supported by wires and cables. Apple Macintosh computers use the pioneering WLAN product called AirPort. [] Apple and most Wi-Fi (Wireless Fidelity) device manufacturers follow IEEE 802.11 [] WLAN standard, while a few follow the HomeRF [] standard (2 Mbit/s, intended for home use). “Wired” LAN is preferred with desktop computers, while WLAN/Wi-Fi is preferred with mobile computers whether laptop or personal digital assistant (PDA). WLAN is more vulnerable to security breaches because it enables any person with a wireless-enabled computer or PDA to connect to the network, else the Internet, when in proximity of an access point called a hotspot, if not properly configured.
On the other hand, Bluetooth [] provides a way to connect and exchange information between devices like personal digital assistants (PDAs), mobile phones, laptops, personal computers, printers and digital cameras via a secure, low-cost, globally available short range radio frequency, as long as they are within 10 metres or 32 feet of each other. [] Bluetooth may be considered as wireless USB, contradistinguished with Wi-Fi, which may be considered as wireless Ethernet. [] Bluetooth does not use any telecommunication network resources when files are transferred from one computer or any other device to a mobile phone, or vice versa, or from one mobile phone to another. Only when the mobile phone user/subscriber utilizes the phone company’s MMS service does he use telecommunication network resources for the transfer of the multimedia material to another mobile phone subscriber.
c. Infrared Radiation (IR) data transmission []
The use of infrared for data transfer was common between portable computers (laptops) and mobile phones, among others, prior to the popularity and affordability of Bluetooth and subsequent to the use of serial connections between the two (2) devices. Normally, the portable computer recognizes the mobile phone device as another computer connected to it. Integrity of connection, however, was a drawback to this kind of technology.
4. File formats used
Multimedia files come in different file formats, and may be subcategorized as pictures, video, and audio. Pictures are usually in JPEG, [] GIF, [] and BMP [] formats, but may also be in PNG [] and any other format. Videos are usually in AVI, [] MPEG, [] WMV, [] and RM [] formats. On the other hand, audio or sound clips are usually in MP3, [] WAV, [] WMA, [] and RA [] formats.
IV. Digital Pornography
A. Pornography in the Internet
The Internet has been called the network of networks. Over 9,400,000 host computers are linked worldwide of which 60% are estimated to be in the United States. It is further estimated that over 40 million people access the Internet around the world and that figure grew to 200 million in 1999. All Internet users have the ability to communicate with one another through various forums such as email, news groups, and information posted on the World Wide Web. Once material has been placed on the Internet, it is available to all other Internet users worldwide and cannot be prevented from entering any community [] .
1. Cyberporn / Non-Streaming Internet Pornography
With sex being indulged in more freely these days, it is not surprising that pornography, in a similar trend, becomes highly available in various media, especially Internet-connected personal computers. This trend is imminent inasmuch as the Internet has become a vast myriad of interconnected channels that provides man with a gateway to the world. In a relatively short time, the Internet’s impact and influence on people’s daily lives is immeasurable. There are elements or enclaves within it that have grown to become sources of consternation within the society. Among them is the pervasive availability of pornography or more commonly known Cyberporn. Cyberporn has been the most controversial topic arising from the use of the Internet in recent years and for years to come. []
Cyberporn includes hardcore pictures and movies made available online. Sexually explicit images can be found on web pages (World Wide Web [WWW]) and in news groups (Usenet), and are far too easy for anyone of any age to view. Even live sex acts can be viewed by virtually anyone through the Internet, through web-cameras on online chat (Internet Relay Chat [IRC]). Explicit contents may also be transmitted through online messengers – such as Windows Messenger, Yahoo Messenger, and ICQ, among others – or through peer-to-peer (P2P) programs – such as Kazaa, among others. What was only available to a small number of people willing to drive to the bad side of town can now be viewed at any time in the privacy of one’s home. []
In a case conducted by Carnegie Mellon, entitled Marketing Pornography on the Information Superhighway,88 the researchers therein pulled together elaborate computer records of online activity, and found out that “during their 18- month study, Carnegie Mellon researchers found 917,410 sexually explicit pictures, descriptions, stories, and clips. On the Usenet newsgroups where these digitized images are stored, they found that 83.5% of the pictures were pornographic.” [] They found individual consumers in at least 2000 cities, in all 50 states, and in 40 countries around the world; and found out that 98.9% of the consumers of porn are men, although women do participate in “chat” rooms and other bulletin boards. []
a. Through Bulletin Board Systems (BBS)
Nearly three fourths (71%) of the sexually explicit images surveyed originate from adult BBS attempting to lure customers to additional collections of cyberporn. There they can charge monthly fees and take credit card numbers for individual images. The five largest adult BBS systems have annual revenues in excess of $1 million. []
b. Through World Wide Web (WWW)
Cyberporn is largely available through the World Wide Web (WWW) pages. These range from pictures, short animated movies, short and full actual movies, to sound files and stories. Most premium adult WWW sites require proof of age and payment by credit card to access their materials. [] Marketing webmasters for premium adult websites, however, provide samplings of adult materials in unsecured webpages – i.e. without age verification through credit card check – in their individual Thumbnail Gallery Posts (TGPs).
c. Through Usenet
There are more than 14,000 Usenet discussion groups all around the world but only around 200 groups are sex related, and some of these relate to serious and legitimate discussions, such as about homosexuality or sexual abuse. Still, sexually explicit forums are the most popular areas on computer online services. At one university, 13 of the 40 most frequently visited news groups had names like alt.sex.stories, rec.arts.erotica, and alt.sex.bondage. []
d. Through Internet Relay Chat (IRC)
The Internet, through Internet Relay Chat (IRC) and online messaging, makes it possible to discuss sex, see live sex acts, and arrange sexual activities from computer screens. Users therein may exchange messages and files in small groups or in private channels Like the Usenet discussion groups a small fraction of the IRC channels are dedicated to sex.
e. Peer-to-Peer (P2P)
This method of file sharing allows every individual running a peer-to-peer client or program to acquire sought multimedia files simultaneously and in fragments from different users, and share his own media without having the technical knowledge that would have been required in the older client-server model. Although copyrighted and adult materials are not allowed to be transmitted in peer-to-peer networks, according to the End-User License Agreements that comes with the software used as peer-to-peer clients, most users do not abide by the stipulation that prohibit such transmission.
2. Cybersex / Streaming Internet Pornography
Cyber sex, in its shortest and most explicit definition is, a combination of communication and masturbation. It is a selfish gratification of one’s sexual desires while sharing one’s most intimate thoughts and fantasies with someone else. It is nearly identical to phone sex, the only difference being the method of communication. As computer networks become ever more sophisticated and voice chat more common, even this distinction fades. The newest problem comes in the form of video conferencing, which adds visual images making the activity even more addictive [] .
Cyber sexual activity takes many forms. One might download explicit pictures, or explicit stories. One might partake in the exchange of racy, sexually suggestive e-mails. One might view sexually arousing videos which open up and play on one’s computer screen, which may be either pre-recorded or live. Webcams, cameras interfaced with a computer so that one might broadcasts live streaming images of oneself, are increasingly common in the use of cybersexual activity. Chat rooms, whether general or private, are as popular as ever and might often lead to masturbation, cybersex, phone sex, or actual meetings in the flesh [] .
Indeed, cybersex is a phenomenon that is neither receding nor going away by any stretch of the imagination. Cybersex is a growing phenomenon, with an all too rich and vibrant future.
B. Pornography in Optical Devices / VCD-DVD
The popularity and the adaptation of compact discs (CD-ROM) and digital versatile discs (DVD), as media for films and data storage, marked the demise of tape videos – such as those stored in Betamax and VHS – as media suitable for such content. The marked decrease in the price of CDs and DVDs allow the proliferation of contraband films, whether pirated Hollywood and Filipino movies or sexually-explicit X-rated movies whether foreign or Filipino. With pornography in VCDs fetching a price of mere twenty (PhP 20) pesos to fifty (PhP 50) pesos, it is not uncommon that porn purchasers would gravitate towards genre fixation or towards pursuing novel themes, some actively pursuing extreme perversions while others passively pursuing voyeurism or psuedo-voyeurism, a genre that would include the various sex scandal videos peddled nowadays.
C. Pornography in Mobile Phones / MMS Clips
As mobile phones are slowly being transformed into converged communication devices with capabilities similar to computers, contents normally prevalent in the Internet and in personal computers shift venue to mobile phones. The ease of converting ordinary pictures and movies in their original formats as MMS content likewise aid to the immediate shift of computer content to mobile phones. Further, the capability of mobile phones to access the Internet directly allows download of Internet content into the phone itself. Other services such as messaging and chatting, which may altogether swerve towards adult context, or if not towards solicitation, as practiced in the Internet can find a sizeable niche in the mobile phone market.
The problem does not stop with the conversion of Internet/computer content into MMS content but aggravates with instances of production of new content, using the built-in camera of more advanced mobile phones. It is thus easier to capture a sexual pose or act, with or without the subject(s)’ consent, by a click of a button. The mobile phone may also be used to capture images of prank sensual images known as upskirting and/or downblousing of anonymous persons in public places. Inasmuch as mobile phones are considered as indispensable accessory to most users, such phones can be easily taken in places where various stages of undressing is permitted, such as in disco-bars, pool areas, beaches, and spas; where images of a sinister context may be easily taken, if the management of such venues do not implement strict measures or parameters as to the use of such devices in said premises.
D. Child Pornography in any medium
The Optional Protocol on the Sale of Children, Child prostitution and Child pornography defines “child pornography” as any representation of a child engaged in real or simulated explicit sexual activities or of the sexual parts of a child for primarily sexual purposes. Child pornography is a visual recording of a crime being committed and the children who appear in such pictures are, at the time the picture is being taken, subjected to degrading, abusive and humiliating acts of a criminal nature. []
Although it is clear that sexually explicit poses or acts of children, below the usually accepted 18-year minimum age threshold, are considered largely as child porn, what altogether constitutes child pornography remains under debate. It is unclear whether photographs of naked children would ipso facto be considered as child pornography. It is unclear whether the child’s genitals require to be exposed before images may be considered as such. It is likewise unclear whether only images and movies may be only form of child pornography, or whether it includes sounds and texts as well. Further, it is unclear whether child nudity, which is imbued with artistic merit, would not be exempted from such class of pornography. Furthermore, it is unclear whether simulated child pornography – whether due to the convincing appearance of non-underage females to appear as if under 18, or whether the image is completely computer-generated without visual input taken from an actual child – is included also. The issue as to child pornography becomes further muddled on the definition of a child, in light of the varying age of consent in countries, such as the United Kingdom (16) and Japan (13). Unless a national law makes clear definitions and delineations, what constitutes child pornography would be varied according to various perceptions, different standards of morality, and unclear application in light of territoriality issues in International law.
In fact, various countries have different interpretation as to what constitutes child pornography. In the United States, child pornography is defined as visual depiction of minors engaged in a sex act – such as intercourse, oral sex, or masturbation as well as the lascivious depictions of the genitals, which do not require the genitals to be uncovered. [] Federal and state laws differ whether mere nudity involving minors comes under the definition of child porn, or if it would necessarily qualifies as obscene. Prohibitions against simulated child pornography have been found to be unconstitutional in the United States – unlike in the United Kingdom, Germany and the Netherlands – for being overbroad. [] In Canada, material that shows someone who is or is “depicted as being” under 18, and is engaged or “depicted as engaged” in explicit sexual activity, is classified as “child pornography”. Materials judged to have “artistic merit,” however, are excluded. On the other hand, a written text that advocates or counsels sex with a child is also included. In Germany, the definition does not differ from that of conventional pornography. Sound and text can also be considered pornography. In the United Kingdom, a “child pornography” image is an “indecent photograph of a child”; there is no specific requirement of sexual content, as nudity is sufficient for an image to be indecent. In Japan, child erotica [] only became illegal in 1999 following the country’s passing of its Protecting Children Online law []
The degree of gravity, or hardness, of child pornography ranges from
“0. Clothed or portrait.
“1. Naked, but not posed. Many of these were nudist-type photographs. The children in these photographs gave no sign of being aware of the camera and were usually depicted engaged in other activities such as swimming or playing ping pong, etc.
“2. Naked and posing. The children here were looking at the camera or had adopted a self conscious pose.
“3. Naked with genital contact or contact with another body. These included photographs where a hand was in contact with the genitals, and photographs showing naked children hugging or kissing each other.
“4. Oral contact with sex organs.
“5. Penetration, either anal or vaginal.
“6. Bizarre. This last category contained material with a sadomasochistic character, urine sex, and photographs on which objects were introduced into the body orifices.” []
For obvious underage girls, levels 2 to 6 are manifest instances where child pornography exists. Level 1 provides the gray area on the debate whether such nudist-type photographs would constitute child porn. The inclusion of Level 0 as a degree of gravity of child pornography in itself is debatable, as some proponents distinguish between child pornography and prêt art. Pret Art (Pre-teen Art) or Lolita Art is an erotic form of art, in which clothed adolescent or pre-pubescent girls pose for photos or videos. [] The fact that models in Pret Art are not nude and the poses are not overtly sexual or otherwise harmful provides a fertile ground for debate whether Pret Art itself encourages pedophilia or whether it only depicts attractive minors similar to mainstream entertainment.
Experts cite several reasons why individuals collect child pornography. These are:
“1. Arousal and gratification: Individuals use pornography to stimulate their sexual drive and to aid in sexual stimulation. Some may only fantasise and others may use it as a prelude to actual sexual activity with minors.
“2. Validation and justification of paedophile behaviour: The paedophile uses pornography to convince him/her self that their behaviour or obsession is not abnormal, but is shared by thousand of other sensitive, intelligent and caring people.
“3. To lower a child’s inhibitions: Child abusers use pictures of other children having sex to assist in the seduction of a child and encourage reluctant children to freely participate. Images are often used as a way to show a child what the offender wants the child victim to do. Pornography may be used under the guise of “sex education” to create sexual arousal in the child.
“4. Preservation of the child’s youth: Child pornography ensures that there will always be an image of the child at the age of sexual preference.
“5. Blackmail: Sexually explicit images are used to ensure the lifelong silence of the victimised child by threatening to show the pictures to parents, peers or others. Child victims will not always report pictorial records—even if they report sexual abuse—because they may be ashamed of what happened to them as well as of their participation in the pornography.
“6. A medium of exchange: Child pornography is used as a means of establishing trust and camaraderie with other paedophiles and molesters and as proof of their good intentions when establishing contact with other exploiters. It is a medium of communication with fellow exploiters in public and private sex markets.
“7. Access: Some exploiters exchange pornography to gain access to other markets and to other children.
“8. Profit: Although most do not sell child pornography, there are some paedophiles and child molesters who sell home-made videos and photos on a one-to-one basis. Some child exploiters sell their self-produced materials to finance trips overseas to popular sex tourist destinations. []
V. National attitude on pornography
The attitudes of various nationalities vary on the issue of pornography. Western countries have relaxed restrictions on pornography. The sanctity of the freedoms of speech and information in the United States, for one, appear to be paramount, and thus the Courts therein finds censorship a greater threat than pornography. [] Other countries, such as the Philippines, largely relate pornography with obscenity, and thus continue to strictly regulate, if not totally prohibit, such practice. [] Still, child pornography – or kiddie porn – is almost universally prohibited, and faces the disapproval of most members of society.
Child pornography exists due to production, distribution, and possession of materials relevant thereto. Laws in different countries differ on these matters. Production and sale of child pornography is generally illegal in most countries. Mere possession, however, is illegal in the United States, United Kingdom, and Netherlands. In contrast, downloading and possession of child pornography is not specifically prohibited in Russia. []
VI. Offenses instrumental and incidental to pornography
1. Sex Tourism
Sex tourism is “tourism, partially or fully for the purpose of having sex, often with prostitutes.” Legally, Sex Tourism “refers to a program organized by travel and tourism-related establishments and individuals which consists of tourism packages or activities, utilizing and offering escort and sexual services as enticement for tourists. This includes sexual services and practices offered during rest and recreation periods for members of the military.” [] Certain individuals seek sex in another country or region, possibly, due to (1) more relaxed morality laws, (2) less rigorous enforcement of laws, (3) cheaper rates, (4) more anonymity / privacy, (5) finding certain ethnic groups more attractive, (6) preferring the “work ethics” of foreign prostitutes to those of one’s own country, or (7) finding sex in tropical surroundings and a hot climate more arousing, among others. While most sex tourists only engage in this activity with other adults, a small percentage actively looks for adolescent or even younger prostitutes. []
2. Sexual Exploitation and Child Sexual Abuse
Sexual Exploitation “refers to participation by a person in prostitution or the production of pornographic materials as a result of being subjected to a threat, deception, coercion, abduction, force, abuse of authority, debt bondage, fraud or through abuse of a victim’s vulnerability.” [] Child sexual abuse denotes sexual abuse of or sexual activity with children. In addition to activities that would be considered sexual abuse between adults, it includes (1) sex between adults older than a predefined age of majority and children below a predefined age of consent (generally between 12 and 18 years), (2) acting as a pimp for child prostitution, (3) inducing a child to behave sexually in a performance, or to appear in child pornography, and (4) lewd action towards children, including disseminating pornography to a minor. []
Pedophilia, Ephebophilia, and Infantophilia involve Chronophilia, i.e. a paraphilia in which the paraphile’s sexuoerotic age is discordant with his or her actual chronological age and is concordant with the age of the partner. (1) Pedophilia, or pedosexuality, is the condition of people whose primary sexual attraction is toward prepubescent children; and it is often used informally to describe people attracted to adolescents, or to describe child sex offenders. (2) Ephebophilia, or hebephilia, is the condition of adults who are attracted to postpubescent adolescents; pederasty if toward male adolescents or lolita syndrome if toward female adolescents. [] (3) Infantophilia, or nepiophilia, is the sexual attraction of adults to small children (0-5 years old), inasmuch as interest in a 10-year old and a 2-year old seem rather to be different preferences. []
II. The Philippine Experience
I. Cybersex
Cybersex is sexual activity of arousal through communication by computer; and Cybersex-for-pay substantially employs the Internet, and utilizes computer cameras and microphones that allow clients to see and talk to girls doing the role play with or for them. [] Such form of Internet pornography works when (1) an Internet surfer accesses a certain website on sex and chooses a woman through the photos shown in the site; (2) the surfer then contacts the operator to chat online with the selected woman; (3) the operator, through transactional tools in the adult website, asks for the surfer’s credit card number and the surfer will be charged for anywhere from $2 upwards a minute; and (4) the surfer thereafter asks the woman to perform sexual acts to be shown on the screens of the surfer’s, now subscriber’s, computer. []
Philippine Senator Maria Ana Consuelo “Jamby” Madrigal claims that Cybersex has become a billion dollar underground industry in the Philippines, emphasizing that the operator of the Orgasmic Ventures Inc. in Las Piñas arrested January 2005 was earning at least 100,000 dollars a day. [] Atty. Elfren Meneses Jr., chief of the NBI-AFFCD states that the degree of the proliferation of internet pornography in the country is doubly increasing since year 2000. Financiers or investors of such business, usually foreign nationals, are investing largely in the Philippines since they have contacts already with some Filipinos who will host the site. [] Senior Supt. Rodolfo “Boogie” Mendoza, officer in charge of the PNP Criminal Investigation and Detection Group (CIDG), identified the cities of Angeles and San Fernando in Pampanga, Las Pi¤as and Davao as cybersex “hot spots.” [] It is also claimed that Internet sex rings have spread all over the country, with satellite centers in Visayas and Mindanao, specifically in Cebu and Surigao. []
A. Organized
1. John Bagcal; Pasay City (8 May 2003)
After a month of Internet and physical surveillance by the National Bureau of Investigation (NBI)’s Anti-Fraud and Computer Crimes Division (AFCCD), and on 8 May 2003, the NBI-AFCCD raided three residential apartments in Cliff Townhomes on Roberts Street, Pasay City, owned by a John Bagcal (37 years old, Filipino), due to alleged operation of internet pornography. The NBI-AFCCD team arrested around 15 pornography female models during the raid, four of them caught in the act of performing in front of Web cameras, but not the Filipino owner, who was said to be hiding in a province near Manila. The team seized several personal computers, digital cameras, telephones, and sex toys such as vibrators. Bagcal was arrested subsequently. []
2. Asianbabes.com; Angeles City, Pampanga (4 October 2004)
On 4 October 2004, the Criminal Investigation and Detection Group (CIDG) agents arrested Roland Thys (Belgian), Dean Punke Arthur (American), Ali Dimanlao Bonjoc and are pursuing other suspects – Morley Arthur Everly, Simon Thorpe and other still unidentified members of the cybersex ring who escaped during the raid made on the houses of the suspects. The policemen, armed with 14 search warrants issued by Judge Maria Angelica Paras Quiambao of the Angeles City Regional Trial Court, swooped down on the houses located at 115 Nile Street, barangay Anunas; 240 Narciso Street; 112-A Sarmiento Street, Plaridel Subdivision, and Apple corner Pear Streets, all in Angeles City; and were able to rescue 23 “sex goddesses,” including four minors. []
On 2 November 2004, the Department of Justice had ruled in a resolution that mere possession of accessories used in the illegal activity was not enough to elevate the case against the Belgian, Roland Thys, in court. It is in the opinion of Senior Supt. Rodolfo “Boogie” Mendoza, officer in charge of the PNP CIDG that materials like pictures and messages found in a computer seized during a raid would have to be “reconstituted” by police authorities to actually prove that someone is being used for trafficking purposes . []
3. Eldon Lopez, et. al.; Angeles City, Pampanga (8 November 2004)
As part of police’s operation “Operation Magdalena” – a campaign plan against prostitution – twenty (20) persons (17 young women or so-called “cybermodels,” an employee, a computer technician, and the Internet café operator-manager – were arrested by police 8 November 2004 during a raid on a suspected cybersex den in Angeles City, Pampanga. The policemen belonging under the Central Luzon police, in tandem with agents of the Criminal Investigation and Detection Group (CIDG), raided the house owned by one Sol Mesias pursuant to a search warrant issued by Judge Maria Angelica Paras Quiambao of the Angeles City Regional Trial Court. The policemen confiscated 15 computers with video cameras, communication devices and pornographic material. Arrested were Rocell C. Palo (27), Michelle M. Chua (20), Merlinda A. Atibagos (18), Mary Ann O. Galantes (21), Rose Mary P. Quibec (24), Michelle V. Nuevo (18), Monica M. Chua (19), Deanne C. Duero (19), Jennifer Ellaine Pasay (20), Marian Estrada (23), Jenny Ompad (18), Raquel V. Abala (23), Estephanie Agasite (18), Analiza R. Rosario (22), Ivory Washington (Gay, 19), Kim Cereno (25); Arthur Eric Javier (21); Reynaldo Quillao, a computer technician; Nestor Layda, a janitor-employee; and Eldon Lopez, reportedly the operator and manager of the internet café. Charges of violation of Republic Act (RA) 9208 or the Anti-trafficking of Persons Act were being prepared against the suspects. []
4. Clifford Hacket, et. al.; San Fernando, La Union (23 November 2004)
On 23 November 2004, Clifford Hacket, 40, from Colorado, USA, and his wife, Jaqueline, 24, along with three of their female employees – most of them minors: one was 15, another was 16 – were arrested during a raid on a rented house at Barangay Catbangen, San Fernando, La Union, where they had been operating the cybersex den. Seized during the raid were three computers with complete accessories, three Web cameras and speakers, assorted diskettes, pornographic VCDs and CDs, a CD writer, payrolls and the daily time records of the Hackets’ employees.
The spouses were arraigned on 14 January 2005 at the Regional Trial Court Branch 30, presided upon by Judge Alpino Florendo. The two have been transferred to the La Union provincial jail from the Poro Point police assistance center after they failed to post bail. It was alleged that the employees were paid only P50 for working eight hours a day, and that some of them posed nude and did sexual acts in front of the computer for their foreign customers abroad. The couple pleaded not guilty. []
5. Orgasmic Studios Inc.; Las Pinas, Metro Manila (21 January 2005)
On 21 January 2005, Criminal Investigation and Detection Group (CIDG) agents rescued twenty (20) persons engaged in live sex acts over webcams in a raid of a cybersex shop, located at apartment units A, D, F and G on Lead st., and apartment D and F Daisy st., Barangay Pilar, Las Piñas, pursuant to a search warrant issued by Judge Joselito Vibandor, of the Regional Trial Court Branch 199. The police agents arrested Aloysious Galvez of the Orgarmic Studios Inc., along with nine employees, during the raid and seized 23 computer units and peripherals, compact discs, sex toys, lingerie, and other paraphernalia (or in other accounts, 30 computers and 100 cameras). Galvez reportedly yielded a number of foreign and local bank accounts that will be investigated by the police.
The girls were distributed in fourteen rooms that served as studios where they performed various role playing acts for clients, and sometimes did live sex with a partner in front of a camera, mostly from the United States and Germany. Inside each studio at Orgasmic was a bed and an air-conditioned unit. The walls were draped with multicolored, pastel curtains. Each room had a distinct look, like one was decorated with neon lights and plastic flowers, while others were made to appear like a typical girl’s room. Scattered in some of the rooms were sex toys, costumes and skimpy lingerie. [] Among the chat hosts, Sherry Passion was able to hit the longest video chat of two hours and 25 minutes on 14 Nov. 2004. As a result, Sherry was entitled to an additional 50% of her earnings as incentive and to a clothing allowance of $30. The incentive rate for best chat hosts like Sherry Passion ranges from 50% to 100%. A daily earning from $1,001 to $1,800 entitles a chat host to an additional 50%; $1,801 to $2,500 entitles her to 70%; and the incentive for $2,501 up is 90%. The four other top chat hosts in Orgasmic Studios Inc., as listed on the bulletin board were Lolita, who had earned $1,856.38; Crissy Mae, $1,479.26; Tanya, $1,186; and Sofia Paola, $1,127. The names of 30 chat hosts were listed in one of three status reports as of 20 January 2005. []
The girls are said to be composed mostly of high school students who belong to rich and middle-class families, after more documents were recovered from the office of Orgasmic Ventures upon the execution of a new search warrant. Aside from the girls’ bio-data, contracts, vouchers and financial statements, CIDG agents also recovered notices of meetings of stockholders, attesting that other people were behind the syndicate. []
6. Unverified reports []
Cebu: According to Senator Madrigal’s group, prior to the raid in La Union last 22 November 2004, Cebu police allegedly swooped down on a cybersex den. According to them, the cybersex den had strong links with the two Luzon-based cybersex syndicates. They alleged that said case allegedly did not even reach the prosecutor’s office, inasmuch as the suspects and the rescued girls were released from police custody after an influential politician allegedly intervened. The senator’s office has yet to complete the details about the raid.
Surigao: According to Senator Madrigal’s group, an Internet café owner in Surigao has reported the rampant cybersex operations there.
Makati City: According to Senator Madrigal’s group, as early as two years ago, an alleged cybersex den was raided in an exclusive subdivision in Makati City. They are now verifying reports about another cybersex den in another exclusive Makati village where most of the chat girls reportedly drive their own car and live in posh houses.
B. Unorganized
There are increasing incidents, on the other hand, of individuals exposing themselves to others for free or fee, through web cameras, without the benefit of a website exclusively made for that purpose. Said exhibitionists are found in most popular chatrooms such as those of Yahoo! Chat. Inasmuch as web camera access may either be set by the broadcasting exhibitionist as either open (free) or by permission, it is possible to require payment before permission is given. [] Inasmuch as these exhibitionists do not have licensed credit card transaction facilities of their own, the mode of payment is made through “pasa-load” or “e-load,” or similar methods of money-remittances over mobile phones. The price range goes as low as fifteen (PhP 15) pesos to the usual three hundred (PhP 300) pesos. Others require pre-paid phone cards access numbers of certain phone load values or pre-paid Internet access information of specified value, before anyone interested may be given permission to view the exhibitionist exposing herself.
II. Sex Scandals
Generally, a sex scandal is a scandal in which a public figure – usually movie stars, politicians, or priests – becomes embroiled in a situation where embarrassing sexual activities or allegations thereof are publicized. [] However, in Philippine context, the term “sex scandal” is usually associated to videos and images clandestinely acquired either of famous or even ordinary persons. What is necessary to constitute such videos as being sexually scandalous is that the actors therein are not aware that their acts are being caught on tape, or that the actors therein intended that the video or images being generated remain for the personal consumption of the actor’s and not of the public but which eventually leaked.
The title of the videos are generally named according to the places where the acts were committed, such as “Cebu,” “Dumaguete,” “Mindoro,” and the like. Others use prominent school names, such as “La Salle” to increase interest in the film inasmuch as it would suggest degeneracy of middle-class and higher-class teenagers in the eyes of the masses. The Mindoro Scandal appears to be latest video that circulated in the market. There are reports of other video scandals involving persons from St. Theresa College, University of San Carlos, and the Philippine Amusement and Gaming Corporation, among others.
1. Dumaguete Sex Scandal []
The Dumaguete Sex Scandal is a video which shows three women having sex with their boyfriends on different occasions in a bunkhouse in Dumaguete. This scandal, which caught the ire of women in Dumaguete, seemed to be a connivance between the male partners and the cameraman in taking the video, with the girlfriends completely unaware of the whole setup. The Dumaguete Scandal video appears to have been filmed as early as 1999. At that time the film was taken, the women were still single. One of them tried to commit suicide, while the two others have left the city with their reputation torn or ruined. The women were victims of their love for their boy friends at that time, not knowing that they were made mere commodities in a business venture of merchandising a pornographic video.
It appeared that the businessman who runs the lodging house placed a hidden camera in one room that he allowed to be rented at a very low price or discounted rate. This businessman recorded the sexual acts of lovers inside this room. In some occasions, without the knowledge of the businessman, his cameraman invited male friends to bring their girlfriends to do the sexual acts as the camera rolled on. The cameraman and the male friends then put several recorded sessions together into one-hour shows, duplicated and sold these initially in Mindanao. Four years later, the pornographic videos had reached local video shops. The popularity of the video increased after politicians started to denounce the video and started investigating and charging people who were believed to be responsible for its production.
Subsequently, the city filed charges against Engineer Jonathan Lim, owner of the bunkhouse, Noli Banagudos and Nicolas Siloterio, after a “vital witness” surfaced. Witness Victor Empleo – who claimed to be a close friend of Engr. Jonathan Lim, the owner of the house in Barangay Daro where the sexual activities were supposedly filmed – presented to the media some revelations of the businessman’s “operations” at the bunkhouse. However, Empleo later withdrew his affidavit. The case against Lim, Banagudos, and Siloterio is pending. Empleo, on the other hand, was charged for perjury.
2. La Salle Sex Scandal [] , also known as Secret of Makati
Two teenagers captured their sexual tryst in a video. The usual circulated copy contains 3 scenes, although the 1st and 2nd scenes are sometimes taken as a single scene. The first (combined) scene involves a bald guy “Leo” and her girlfriend having sex in a motel, while the second scene involves a lesbian scene by the girlfriend and another female, with “Leo” outside of the room. The tape runs for about 70 minutes. Some unverified reports provide that there is a third scene, which involves the two teenagers again but now inside the guy’s room. The tape was meant for the couple’s enjoyment, not for mass consumption. The video was said to have been videotaped in 2001, and was allegedly sold for P35,000.
The identity of the actors and actresses are not known publicly. The public assumes the actors to be students of La Salle when the video was taken. A popular rumor is that the male was a student of DLSU-St. Benilde while the main female was from St. Scholastica. Some believed that the video was first uploaded on the Internet inasmuch as a couple of yahoogroups or e-groups had a copy of such video before the video pirates in Quiapo and Greenhills got hold of it. Another account provides that the video, supposedly in the private collection of “Leo,” along with other pornographic materials, was mistakenly lent to a friend, who circulated the video to the public. There are conflicting rumors whether the main actress actually committed suicide, or not, after the scandal broke out.
3. Boarding House Scandal, [] also known as Cebu Scandal or Bisaya Bang-Bang
The show Correspondent exposed the secret porn activities of a father-daughter team. The daughter would invite her classmates over at their place for a swimming party or a cozy retreat (“tambayan”), making sure they were couples. Couples get lustful and do it in the bathroom while taking shower, or in the bedroom. The father films the whole thing from peepholes; the videos becoming part of the private collection of the father. The modus operandi of the father was exposed when the friends of the daughter heard movements in the next room, when they were assured that they were alone in the house. The friends called upon neighbors who apprehended the father, while attempting to escape by climbing a wall, and after he has tossed a bag-full of pornographic tapes over the fence. Tricycle drivers got hold of VHS tapes, and these were sold to enterprising video pirates who mass-produced them.
4. Quezon City Scandal 1 to 3 []
This scandal comes complete with cast and crew, starring GROs, shot in KTVs in and around Metro Manila and produced by Silverado Entertainment. The videos appear to have long been in circulation, except that it is only now that it proliferates in increased rates due to CD technology, the Internet, and the resourcefulness of video pirates.
III. MMS Clips
The widespread use of mobile phones with image/video-capturing capabilities; the technology shift towards Multimedia Messaging System (MMS), which provides messaging of dynamic content, over the usual Simple Messaging System (SMS), which only provides text messaging; and the adoption of the Bluetooth technology as a standard feature in mobile phones; provide the latticework for the increased incidents of sexually-explicit content that are transmitted among mobile phone subscribers.
1. Diana Zubiri MMS clip
The Diana Zubiri MMS clip circulated in late 2004 and was the first to generate interest as to the use of the mobile phones as a conduit of such kind of content. The short video appears to have been clandestinely captured through a video-capturing enabled mobile phone by one of the crew participating in a photo-shoot, featuring Diana Zubiri, possibly for a calendar or a magazine. The camera showed the layout of the studio and focused mainly on the breasts and pubic areas of Miss Zubiri.
2. Francine Prieto MMS Clip
The Francine Prieto MMS clip circulated not long after Diana Zubiri MMS clip circulated in late 2004. The video features segments of the photo-shoot of Francine Prieto that was made in South Korea. The individual who circulated the clip to Philippine mobile phone users even incorporated music to the video.
3. The Mahal MMS Clip
The Mahal MMS clip circulated soon after, with Mahal (a midget actress) sitting on the toilet bowl. Mahal appears to be aware of the camera as she waved to it. A lot of media practitioners and showbiz personalities lambasted the circulation of the clip in the market, emphasizing that it was “outrageous, not delicious.”
4. Ethel Booba MMS Clip(s)
The Ethel Booba MMS clip circulated widely early February 2005, with an image of Ethel Booba (although her hands and arms were covering her face for most of the video) stimulating herself with her fingers. Other clips appear to be less circulated, such as those which show Alex Crisano, with his prominent tattooed arm, lying beside Ethel Booba. The video(s) circulated allegedly after Crisano had his phone repaired in Greenhills, where the technician handling it discovered, took, and circulated the videos to other people. []
IV. Child Pornography
The claim, that the Philippines is the fourth largest producer of child pornography, [] however, is open to debate, inasmuch as that it is not supported by any accurate empirical data. Sales figures for this particular genre of porn is hard to come by as sales thereof is largely informal inasmuch as mainstream pornographers in developed countries do not involve themselves in producing such genre, in light of regulations imposed upon the adult entertainment industry. In the United States particularly, it would not be good business sense for established and upcoming adult entertainment firms to branch out to child pornography as such will deny them the usual harbor found in the First Amendment of the US Constitution and expose them to countless and expensive legal hassles, [] if not the total deprivation to exercise their industry. Such criticism of the claim, which is limited to its accuracy, should not be construed to dissuade any effort to curb child pornography.
In the Philippines, child pornography – along with sex tourism and child prostitution – thrive because of widespread poverty, public tolerance of prostitution and pornography, sex tourism, availability of advanced communication technology, lack of stringent laws against child pornography, and inefficient prosecution of perpetrators. Advances in technology, especially the Internet, have made it possible for the easier production, reproduction and dissemination of pornographic images of children. [] Sexual exploitation of minors is frequent, in the form of child prostitution, child pornography, and sex tourism. Crimes related to sex tourism are difficult to prosecute because they originate or transpire outside the geographic borders and legal jurisdiction of the Philippines. []
The phenomenon is aggravated as it, more than not, involves family and close friends. The findings released by End Child Prostitution, Child Pornography and Trafficking of Children for Sexual Purposes (ECPAT), which support this conclusion, are based on the detailed study of 74 cases of former and active child prostitutes across the country, the total number of which is estimated to be around 60,000 child prostitutes (ECPAT 1996). Recruiters – immediate family members [or] people known to family and friends – often justify getting children into the sex trade by saying that they are “helping” them and their families. Preventing child prostitution is hindered by a code of silence that rules the sex trade and by ineffective law enforcement. The fight against child prostitution is further hampered by the victims’ reluctance to testify and the inexperience of prosecutors. []
In 2002, a series of articles published in the People’s Journal narrated the extent of child pornography in the Philippines, and in effect, boldly exposed the country as a leading producer and distributor of child pornography, particularly on the Internet. The Philippine Senate took notice of this phenomenon but it resulted only in several committee hearings, a resolution for further study of the issue, and a Senate Bill authored by the then Sen. Loren Legarda. [] The Online Protection Act for Children was pushed by Senator Tessie Aquino-Oreta in 2003 but it never passed the Senate. [] Although similar bills have been submitted in the present House of Representatives and Senate, it must be noted, to emphasize the time such issue has been a continuing concern, that an international conference on pornography has been held in Manila as early as 1995, calling for committed and effective law enforcement to combat the growing abuse and exploitation of children and the pornography that is a integral part of it. []
The issues on child prostitution, child pornography, and sex tourism is shared by the Philippines with neighboring Southeast Asian countries, such as Thailand, Cambodia, Laos, Vietnam, and Indonesia.
An observation of circulating child pornography on the Internet – utilizing the search tool in the Peer-to-Peer file-sharing program “Kazaa,” from Sharman Networks, or its competing version “Kazaa Lite Resurrection,” from Filesharing.com, and using pedophiliac search keys would point to the fact that an average of 1 out of 10 would involve Asian teenagers (the other 9 in the ratio involving Caucasians), and that an average of 1 out of 10 of those Asians would involve non-Japanese. Most of the Caucasian child pornography files available would appear to have been created in the 1970s and the 1980s, more likely before developed countries overwhelmingly condemned child pornography as illicit. It can be concluded from the above that Filipino child pornography is not circulated freely and substantially in open networks. It would be more likely that Filipino child pornography is circulated in exclusive peer groupings, or else, taken only for personal gratification as if in the form of a souvenir shot. Definitive statistics, as to the volume of Filipino child porn, may further be muddled by confusion arising from the similarity of the features of Thais and Indonesians to those of the Filipinos.
Ephebophiliac images and movies, or Asian adults simulating to appear ephebophiliac, on the other hand, are available freely on the Internet, through hypertext transfer protocol (HTTP), and not necessary confined to peer-to-peer (P2P) networking. A sampling of pornographic images, largely involving Filipino and Thai females, would easily be found at explicit image thumbnail (TGP) websites. The thumbnail site does not require age authentication to prevent minors from viewing its contents.
A. Overseas Prosecution
Accounts of perpetrators charged due to child pornography are found in various online newspapers from Australia, United States, and the United Kingdom. Among them are
- In October 1995, Anthony Richard Carr, 43 years old from Seaforth, New South Wales, Australia, was the first person charged under the Child Sex Tourism Law of Australia for offenses committed against a 5-year old girl in the Philippines. Carr was initially arrested for offenses committed in Australia. A search of his home by the police yielded child pornography involving children in the Philippines. A joint Australian and Philippine investigation team found that Carr visited the Philippines to have sex with children and had paid money to a man to use his 5 year old niece in a pornographic video. Carr was sentenced to 6 years in jail by an Australian court for offenses committed in the Philippines and Australia. []
- On 10 January 2001, Durham Wragg, 56 years old from Sheffield, United Kingdom, was convicted in the England for indecency and smuggling obscene material for 30 months. It appeared that, in 2000, he used Home Office headed paper, belonging to the former prime minister, Sir Edward Heath, to type a letter for Philippines immigration officials stating he was of good character and was going abroad to get married. He instead went to a resort outside Manila and filmed boys between 8 and 16 in his hotel bedroom. Wragg was caught at Manchester airport in May 2000 when police, searching his bag, found a camcorder. []
- On 7 June 2002, Raymond Colin Smith, of New South Wales, Australia, was convicted under the child sex tourism law for committing 3 sexual acts with two (2) 6-year old girls in the Philippines. Smith traveled to the Philippines on the Christian Charity the Mercy Ship. He sexually molested 2 girls and produced pornography. Smith’s manager discovered this abuse and sent him back to Australia for prosecution fearing Smith may receive a death sentence if prosecuted in the Philippines. Smith was sentenced by an Australian court to 3 years jail and will be eligible for parole after 21 months. []
- In October 2002, Bernard Lawrence Russell, a resident of San Diego, California, USA, traveled to the Philippines with the intent to engage in sexual activity with minors and, while in the Philippines, produced child pornography for the purpose of importation into the United States. On 3 December 2003, he was charged in California with traveling in foreign commerce with intent to engage in a sexual act with a juvenile, producing child pornography, and possessing child pornography for importation into the United States. He faces up to 45 years imprisonment if convicted on all counts. In addition, he is subject to a fine of $250,000, a mandatory special assessment of $100.00, and a three-year term of supervised release per count. []
- In April 2003, Gordon Thomas, 29 years old from Glen Burnie, Baltimore, USA was arrested after investigators discovered he’d made a sexually explicit videotape of a child who lived next door to him., a child he was baby-sitting at the time. Investigators also found that he’d ordered child porn videos from the Philippines and had thousands of images on his computer. He pleaded guilty in June 2003 to sexually exploiting a minor by producing child pornography. He faces 10-year term in federal prison for producing child pornography, and is to serve three years of supervised release after he gets out of prison, when he will have to register as a sex offender. []
- In October 2003, John W. Seljan, 85 years old, was arrested in Los Angeles, California, USA as he attempted to board a flight to the Philippines. The Immigration and Customs Enforcement (ICE) began its probe in August 2003 after border inspectors intercepted correspondence to two Philippine girls with ages 9 and 12 indicating that he planned to have sex with them there. At the time of his arrest, Seljan was found to have pornographic materials, sexual aids, and nearly 100 pounds of chocolates in his luggage. On 19 November 2004, Seljan was convicted on a total of 6 counts. Sentencing is scheduled for March 2005. Seljan faces a maximum sentence of 270 years in prison. []
- In July 2004, Ronald Morris King, 54 years old from Nelson Bay, New South Wales, Australia was arrested by the Armed Forces of the Philippines (AFP) and charged with 8 offenses, including 6 child sex tourism offences and offences relating to the importation of child pornography. The charges involve the alleged sexual abuse of two Filipino girls which allegedly occurred during a recent trip to the Philippines. King was first identified at the airport on his return from the Philippines with a range of photographic material in his luggage. He was later arrested after his home was searched and explicit photographs were found. King was refused bail and is due to face court. []
- On 19 November 2004, Edilberto Datan, 60 years old, was indicted on child sex tourism and charges of producing, importing and possessing child pornography. He was arrested on 4 November 2004 as he returned from a two-month trip to the Philippines. Four (4) memory sticks, taped inside a jeans pocket of Datan’s luggage, were found by U.S. Customs and Border Protection officers at Los Angeles International Airport and were found to contain approximately 100 sexually explicit images of Filipino boys. A search of Datan’s home later revealed an extensive child pornography collection. Datan denied any inappropriate sexual contact with them. []
B. Local Prosecution
In July 2004, seventy (70) children, aged 5 to 14, were rescued from a child pornography ring during a raid in Los Banos, Laguna, resulting in the arrest of seven people, including a Japanese national, [] a certain Noritaka Ota, alias Tony. The children were lured into having an excursion, where thirty (30) children were later separated from their chaperons and were being filmed. The children were made to believe that they were modeling and are being paid P10,000. Only 6 nude pictures were taken but were sufficient to prove that the perpetrators were into illegal trade. [] This incident prompted the Representative to the Philippines of the United Nations Children’s Fund (UNICEF) to issue a statement highlighting the widespread reality of child pornography in the Philippines.
Still, according to Alex Ramos, a member of the technical working group pursuing the bill being introduced by Senator Maria Ana Consuelo “Jamby” Madrigal – to mete stiffer penalties on people caught distributing, creating, and purveying child pornography in the Philippines in various media including the Internet – many cases involving child pornography have been dismissed; and claimed that more than 20 cases involving child pornography that have been dismissed by courts in the last three years. Most of the courts’ ruling implied that mere possession of child pornography is not illegal. []
III. Prosecuting the Offenses
I. Criminal Law
Act No. 3815, or the Revised Penal Code (RPC), was promulgated way back in 1930, decades before the advent of computers and the Internet and before the proliferation of cheap image capturing devices, such video recorders and cameras. A number of special laws have provided means to protect both children and women from exploitation, such as Republic Act No. 7610, otherwise known as the “Special Protection And Discrimination Act,” as amended by Republic Act No. 7658 and Republic Act No. 9231, and Republic Act No. 9208 or the “Anti- Trafficking of Persons Act of 2003,” among others.
1. In General
The Revised Penal Code provision applicable in common to cybersex, sex scandal, MMS sex clips, and child pornography is Article 201, which provides:
Article 201. [] Immoral doctrines, obscene publications and exhibitions and indecent shows. — The penalty of prision mayor [] or a fine ranging from six thousand to twelve thousand pesos, or both such imprisonment and fine, shall be imposed upon:
- Those who shall publicly expound or proclaim doctrines openly contrary to public morals;
- The authors of obscene literature, published with their knowledge in any form; the editors publishing such literature; and the owners/operators of the establishment selling the same; (emphasis supplied, for production of pornographic materials, including child pornography, and distribution of which, especially in optical disks)
- Those who, in theaters, fairs, cinematographs or any other place, exhibit, indecent or immoral plays, scenes, acts or shows, whether live or in film, which are prescribed by virtue hereof, shall include those which
- glorify criminals or condone crimes;
- serve no other purpose but to satisfy the market for violence, lust or pornography; (emphasis supplied, for exhibition in the practice of cybersex and other forms of streaming pornography)
- offend any race or religion;
- tend to abet traffic in and use of prohibited drugs; and
- are contrary to law, public order, morals, and good customs, established policies, lawful orders, decrees and edicts;
- Those who shall sell, give away or exhibit films, prints, engravings, sculpture or literature which are offensive to morals. (emphasis supplied, for production and distribution of pornographic materials, especially in optical disks)
In case Article 201, by certain circumstances, does not apply; Article 200 of the Revised Penal Code provides:
Article 200. Grave scandal. – The penalties of arresto mayor and public censure shall be imposed upon any person who shall offend against decency or good customs by any highly scandalous conduct not expressly falling within any other article of this Code.
2. Cybersex and Child Pornography
A. Act No. 3815, the Revised Penal Code
Article 201, else Article 200, of the Revised Penal Code likewise applies as to the photographs and videos that may have been produced and distributed in the commission of child abuse. The minors depicted therein are properly victims in the crime, even if they may have been willing in participating in such, as they lack maturity and lack legal capacity to provide legal consent.
In contrast, chat hosts (cybersex models), who are above 18 years old and who conduct themselves in such practice in a lewd or lustful manner, although there may be no physical sexual intercourse at all, are within the purview of Article 202 (5) of the Revised Penal Code, which provides:
Article 202. Vagrants and prostitutes; penalty. – xxx
xxx
5.Prostitutes. — For the purposes of this article, women who, for money or profit, habitually indulge in sexual intercourse or lascivious conduct, are deemed to be prostitutes.
Any person found guilty of any of the offenses covered by this articles shall be punished by arresto menor [] or a fine not exceeding 200 pesos, and in case of recidivism, by arresto mayor in its medium period to prision correccional [] in its minimum period or a fine ranging from 200 to 2,000 pesos, or both, in the discretion of the court.
Persons who are responsible in employing or inducing these persons into prostitution may be pursued through Article 341 of the Revised Penal Code:
Article 341. [] White slave trade. — The penalty of prision mayor in its medium and maximum period shall be imposed upon any person who, in any manner, or under any pretext, shall engage in the business or shall profit by prostitution or shall enlist the services of any other for the purpose of prostitution.
Persons who are responsible in employing or inducing minors into prostitution may, in addition, be pursued through Article 340 of the Revised Penal Code.
Article 340. [] Corruption of minors. — Any person who shall promote or facilitate the prostitution or corruption of persons underage to satisfy the lust of another, shall be punished by prision mayor, and if the culprit is a public officer or employee, including those in government-owned or controlled corporations, he shall also suffer the penalty of temporary absolute disqualification.
Other acts of lasciviousness, which may have been committed in line with child abuse, may also be penalized as provided by Article 339 of the Revised Penal Code, which states:
Article 339. Acts of lasciviousness with the consent of the offended party. — The penalty of arresto mayor shall be imposed to punish any other acts of lasciviousness committed by the same persons and the same circumstances as those provided in Articles 337 and 338.
B. Republic Act 9208
Section 3(a), of Republic Act No. 9208 (RA 9208, or the Anti- Trafficking of Persons Act of 2003) provides that
“Trafficking in persons” shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs. [] (emphasis supplied)
Various acts and circumstances in RA 9208 are specifically penalized. First, Section 4 of said Act enumerates the acts constituting trafficking in persons, particularly involving prostitution, pornography and sexual exploitation, as
Section 4. Acts of Trafficking in Persons. - It shall be unlawful for any person, natural or juridical, to commit any of the following acts:
- To recruit, transport, transfer; harbor, provide, or receive a person by any means, including those done under the pretext of domestic or overseas employment or training or apprenticeship, for the purpose of prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage;
- To introduce or match for money, profit, or material, economic or other consideration, any person or, as provided for under Republic Act No. 6955, any Filipino woman to a foreign national, for marriage for the purpose of acquiring, buying, offering, selling or trading him/her to engage in prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage;
- To offer or contract marriage, real or simulated, for the purpose of acquiring, buying, offering, selling, or trading them to engage in prostitution, pornography, sexual exploitation, forced labor or slavery, involuntary servitude or debt bondage;
- To undertake or organize tours and travel plans consisting of tourism packages or activities for the purpose of utilizing and offering persons for prostitution, pornography or sexual exploitation;
- To maintain or hire a person to engage in prostitution or pornography;
- To adopt or facilitate the adoption of persons for the purpose of prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage;
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A violation of any act enumerated in Section 4 penalizes the person guilty of committing said act(s) to suffer “the penalty of imprisonment of twenty (20) years and a fine of not less than One million pesos (P1,000,000.00) but not more than Two million pesos (P2,000,000.00).” []
Second, Section 5 of the same Act enumerates the acts that promote trafficking in persons, to wit:
Section 5. Acts that Promote Trafficking in Persons. - The following acts which promote or facilitate trafficking in persons, shall be unlawful:
- To knowingly lease or sublease, use or allow to be used any house, building or establishment for the purpose of promoting trafficking in persons;
- To produce, print and issue or distribute unissued, tampered or fake counseling certificates, registration stickers and certificates of any government agency which issues these certificates and stickers as proof of compliance with government regulatory and pre-departure requirements for the purpose of promoting trafficking in persons;
- To advertise, publish, print, broadcast or distribute, or cause the advertisement, publication, printing, broadcasting or distribution by any means, including the use of information technology and the internet, of any brochure, flyer, or any propaganda material that promotes trafficking in persons;
- To assist in the conduct of misrepresentation or fraud for purposes of facilitating the acquisition of clearances and necessary exit documents from government agencies that are mandated to provide pre-departure registration and services for departing persons for the purpose of promoting trafficking in persons;
- To facilitate, assist or help in the exit and entry of persons from/to the country at international and local airports, territorial boundaries and seaports who are in possession of unissued, tampered or fraudulent travel documents for the purpose of promoting trafficking in persons;
- To confiscate, conceal, or destroy the passport, travel documents, or personal documents or belongings of trafficked persons in furtherance of trafficking or to prevent them from leaving the country or seeking redress from the government or appropriate agencies; and
- To knowingly benefit from, financial or otherwise, or make use of, the labor or services of a person held to a condition of involuntary servitude, forced labor, or slavery.
Any person found guilty of committing any of the acts enumerated in Section 5 of RA 9208 “shall suffer the penalty of imprisonment of fifteen (15) years and a fine of not less than Five hundred thousand pesos (P500,000.00) but not more than One million pesos (P1,000,000.00).” []
Third, Section 6 of the same Act enumerates the ways how trafficking in persons may be deemed qualified, to wit:
Section 6. Qualified Trafficking in Persons. - The following are considered as qualified trafficking:
- When the trafficked person is a child;
- When the adoption is effected through Republic Act No. 8043, otherwise known as the “Inter-Country Adoption Act of 1995” and said adoption is for the purpose of prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage;
- When the crime is committed by a syndicate, or in large scale. Trafficking is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring or confederating with one another. It is deemed committed in large scale if committed against three (3) or more persons, individually or as a group;
- When the offender is an ascendant, parent, sibling, guardian or a person who exercises authority over the trafficked person or when the offense is committed by a public officer or employee;
- When the trafficked person is recruited to engage in prostitution with any member of the military or law enforcement agencies;
- When the offender is a member of the military or law enforcement agencies; and
- When by reason or on occasion of the act of trafficking in persons, the offended party dies, becomes insane, suffers mutilation or is afflicted with Human Immunodeficiency Virus (HIV) or the Acquired Immune Deficiency Syndrome (AIDS).
Any person found guilty of qualified trafficking under Section 6 suffers “the penalty of life imprisonment and a fine of not less than Two million pesos (P2,000,000.00) but not more than Five million pesos (P5,000,000.00).” []
Lastly, Section 7 of the same Act provides for the protection of the right of privacy of trafficked persons and the accused, to wit:
Section 7. Confidentiality. - At any stage of the investigation, prosecution and trial of an offense under this Act, law enforcement officers, prosecutors, judges, court personnel and medical practitioners, as well as parties to the case, shall recognize the right to privacy of the trafficked person and the accused. Towards this end, law enforcement officers, prosecutors and judges to whom the complaint has been referred may, whenever necessary to ensure a fair and impartial proceeding, and after considering all circumstances for the best interest of the parties, order a closed-door investigation, prosecution or trial. The name and personal circumstances of the trafficked person or of the accused, or any other information tending to establish their identities and such circumstances or information shall not be disclosed to the public.
In cases when prosecution or trial is conducted behind closed-doors, it shall be unlawful for any editor, publisher, and reporter or columnist in case of printed materials, announcer or producer in case of television and radio, producer and director of a film in case of the movie industry, or any person utilizing tri-media facilities or information technology to cause publicity of any case of trafficking in persons.
Any person who violates Section 7 of the law suffers “the penalty of imprisonment of six (6) years and a fine of not less than Five hundred thousand pesos (P500,000.00) but not more than One million pesos (P1,000,000.00).” []
Certain persons, natural or juridical, are meted additional penalties or limitations when they violate RA 9208, that is:
- Corporation, partnership, and other juridical persons
If the offender is a corporation, partnership, association, club, establishment or any juridical person, the penalty shall be imposed upon the owner, president, partner, manager, and/or any responsible officer who participated in the commission of the crime or who shall have knowingly permitted or failed to prevent its commission. []
The registration with the Securities and Exchange Commission (SEC) and license to operate of the erring agency, corporation, association, religious group, tour or travel agent, club or establishment, or any place of entertainment shall be cancelled and revoked permanently. The owner, president, partner or manager thereof shall not be allowed to operate similar establishments in a different name. []
- Foreigners
If the offender is a foreigner, he shall be immediately deported after serving his sentence and be barred permanently from entering the country. []
- Government employees or officials
Any employee or official of government agencies who shall issue or approve the issuance of travel exit clearances, passports, registration certificates, counseling certificates, marriage license, and other similar documents to persons, whether juridical or natural, recruitment agencies, establishments or other individuals or groups, who fail to observe the prescribed procedures and the requirement as provided for by laws, rules and regulations, shall be held administratively liable, without prejudice to criminal liability under RA 9208. The concerned government official or employee shall, upon conviction, be dismissed from the service and be barred permanently to hold public office. His/her retirement and other benefits shall likewise be forfeited. []
- Adopter
Conviction by final judgment of the adopter for any offense under RA 9208 shall result is the immediate rescission of the decree of adoption.
- Person who engages services of trafficked persons
Any person who buys or engages the services of trafficked persons for prostitution shall be penalized, on his/her first offense for six (6) months of community service, as may be determined by the court, and a fine of Fifty thousand pesos (P50,000.00). On his/her second and subsequent offenses, such person may be penalized to imprisonment of one (1) year and a fine of One hundred thousand pesos (P100,000.00). []
C. Republic Act 7610
In addition, Article V, Section 9, of Republic Act No. 7610 establishes that “Obscene Publications and Indecent Shows” involves
“Any person who shall hire, employ, use, persuade or coerce a child to perform in obscene exhibitions and indecent shows, whether live or in video, pose, or model in obscene publications or pornographic materials or to sell or distribute the said materials shall suffer the penalty of prison mayor in its medium period.
If the child used as a performer, subject or seller/distributor is below twelve (12) years of age, the penalty shall be imposed in its maximum period.
Any ascendant, guardian, or person entrusted in any capacity with the care of a child who shall cause and/or allow such child to be employed or to participate in an obscene play, scene, act or movie shall be imposed a penalty of prison mayor in its medium period.” []
3. Sex Scandal optical discs and sexually-explicit MMS clips
Article 201, or Article 200 of the Revised Penal Code, are the provisions applicable to these forms of pornography. It is only by certain circumstances, such as that a pornographic material is included to an otherwise ambivalent statement, that Articles 355 and 359 of the Revised Penal Code may attach, as the issue as to “imputation” is emphasized. Article 355 provides:
Article 355. Libel means by writings or similar means. — A libel [] committed by means of writing, printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any similar means, shall be punished by prision correccional in its minimum and medium periods or a fine ranging from 200 to 6,000 pesos, or both, in addition to the civil action which may be brought by the offended party.
Article 359, on the other hand, of the Revised Penal Code provides:
Article 359. Slander by deed. — The penalty of arresto mayor in its maximum period to prision correccional in its minimum period or a fine ranging from 200 to 1,000 pesos shall be imposed upon any person who shall perform any act not included and punished in this title, which shall cast dishonor, discredit or contempt upon another person. If said act is not of a serious nature, the penalty shall be arresto menor or a fine not exceeding 200 pesos.
II. Civil Damages
Civil damages, clearly, may be had for sex clip leakages that occur with sex scandal optical disc and MMS clips distribution.
The right to dignity, and the right to privacy of communication and correspondence, are rights protected by the Constitution. Section 11 of Article II of the 1987 Constitution (Declaration of Principles and State Policies”states that the
“The State values the dignity of every human person and guarantees full respect for human rights.”
Section 3(1) states that the
“privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise, as prescribed by law.”
In consonance to these, Article 26 of the Civil Code provides that
“every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons. The following and similar acts, though they may not constitute a criminal offense, shall produce a cause of action for damages, prevention and other relief:
- Prying into the privacy of another’s residence;
- Meddling with or disturbing the private life or family relations of another;
- Intriguing to cause another to be alienated from his friends;
- Vexing or humiliating another on account of his religious beliefs, lowly station in life, place of birth, physical defect, or other personal condition.”
Article 32 of the Civil Code, in turn, provides that
“Any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages:
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(11)The privacy of communication and correspondence;
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In any of the cases referred to in this article, whether or not the defendant’s act or omission constitutes a criminal offense, the aggrieved party has a right to commence an entirely separate and distinct civil action for damages, and for other relief. Such civil action shall proceed independently of any criminal prosecution (if the latter be instituted), and may be proved by a preponderance of evidence.
The indemnity shall include moral damages. Exemplary damages may also be adjudicated.
The responsibility herein set forth is not demandable from a judge unless his act or omission constitutes a violation of the Penal Code or other penal statute.”
III. Evidence
The Rules on Electronic Evidence [] was made effective on 1 August 2001 and initially applied to civil, quasi-judicial and administrative proceedings pending after the date of effectivity, and was a direct result of the enactment of Republic Act No. 8792 [] , or the Electronic Commerce Act. The Supreme Court notes at the head of the Rules (Administrative Memorandum No. 01-7-01-SC) that
Acting on the Memorandum dated 18 June 2001 of the Committee on the Revision of the Rules of Court to Draft the Rules on E-Commerce Law [R.A. No. 8792] submitting the Rules on Electronic Evidence for this Court’s consideration and approval, the Court Resolved to APPROVE the same.
The Rules on Electronic Evidence shall apply to cases pending after their effectivity. These Rules shall take effect on the first day of August 2001 following their publication before the 20th of July in two newspapers of general circulation in the Philippines. (17th July 2001.) []
The Rules were amended on 24 September 2002 to include criminal cases in its coverage, effective 24 October 2002. [] Section 2, Rule 1, of AM No. 01-7-01-SC, now reads as
Section 2. Cases covered. - These Rules shall apply to the criminal and civil actions and proceeding, as well as quasi-judicial and administrative cases. []
Electronic document is defined by Section 1 (h), Rule 2, of the Rules on Electronic Evidence as
(h) “Electronic document” refers to information or the representation of information, data, figures, symbols or other modes of written expression, described or however represented, by which a right is established or an obligation extinguished, or by which a fact may be proved and affirmed, which is received, recorded, transmitted, stored, processed, retrieved or produced electronically. It includes digitally signed documents and any print-out or output, readable by sight or other means, which accurately reflects the electronic data message or electronic document. For purposes of these Rules, the term “electronic document” may be used interchangeably with “electronic data message”.
In relation thereto, “Electronic data message” is defined by Section 1 (g), Rule 2, of the same Rules as
(g) “Electronic data message” refers to information generated, sent, received or stored by electronic, optical or similar means.
On the other hand, “Ephemeral electronic communication,” is defined by Section 1(k), of the same Rule, which provides
(k) “Ephemeral electronic communication” refers to telephone conversations, text messages, chatroom sessions, streaming audio, streaming video, and other electronic forms of communication the evidence of which is not recorded or retained. (emphasis supplied)
Electronic documents are functional equivalents of paper-based documents, as provided by Section 1, Rule 3 of the said Rules, to wit:
Section 1. Electronic documents as functional equivalent of paper-based documents. – Whenever a rule of evidence refers to the term of writing, document, record, instrument, memorandum or any other form of writing, such term shall be deemed to include an electronic document as defined in these Rules.
and the fact that a privilege communication is in the form of an electronic document does not lose the confidential character, as provided for by Section 3, of the same Rule:
Section 3. Privileged communication. – The confidential character of a privileged communication is not lost solely on the ground that it is in the form of an electronic document.
Electronic documents are admissible as evidence, according to Section 2, Rule 3 of the said Rules, which provides:
Section 2. Admissibility. – An electronic document is admissible in evidence if it complies with the rules on admissibility prescribed by the Rules of Court and related laws and is authenticated in the manner prescribed by these Rules.
Particularly, the manner audio, video and similar evidence is made admissible is provided by Section 1 of Rule 11, of the Rules on Electronic Evidence, to wit:
Section 1. Audio, video and similar evidence. – Audio, photographic and video evidence of events, acts or transactions shall be admissible provided it shall be shown, presented or displayed to the court and shall be identified, explained or authenticated by the person who made the recording or by some other person competent to testify on the accuracy thereof.
Section 2 of Rule 11, of the said Rules, on the other hand, provides for the admissibility of ephemeral electronic communications, to wit:
Section 2. Ephemeral electronic communications. – Ephemeral electronic communications shall be proven by the testimony of a person who was a party to the same or has personal knowledge thereof. In the absence or unavailability of such witnesses, other competent evidence may be admitted.
A recording of the telephone conversation or ephemeral electronic communication shall be covered by the immediately preceding section.
If the foregoing communications are recorded or embodied in an electronic document, then the provisions of Rule 5 shall apply.
Electronic videos, audios and images, whether in electronic or optical medium, although strictly not “Electronic documents” according the first sentence of Section 1(h), Rule 2, may be argued by technologically-inclined professionals to be within its context in light of the second sentence of said section in relation to Section 1 (g) of the same Rule, inasmuch as basic electronic formats of written documents, images, audio files, and video remain in binary [] and ASCII [] modes (the latter with proper file format identifiers at the start of its code), which are merely interpreted as user-viewable text, sound, images, and videos by appropriate computer programs or applications. This argument, however, may result to the same outcome as to the issue as to the definition of “hacking,” [] which favors a legal conclusion without consideration to technical persuasion. It thus may be said that electronic video, images and audio, and similar forms are not “Electronic documents” although they constitute “Electronic evidence” nonetheless; in the same manner that photographs, videos, and phonographic records are not considered as part of such class of evidence which are documentary, but rather are included as object evidence.
The question remains whether the application of the Rules of Electronic Evidence is limited to cases based on its original context, that which relates to the Electronic Commerce Act and thus which involves purely business transactions, but which has been extended to include criminal cases; or whether the application of the Rules of Electronic Evidence is to be broadly applied to be deemed an extension of Rules 128 to 134 of the Revised Rules of Court, and thus the Rules apply to criminal cases even those without business complexion. A perusal of Section 1, Rule 1 of the Rules of Electronic Evidence – which provides
Section 1. Scope. – Unless otherwise provided herein, these Rules shall apply whenever an electronic document or electronic data message, as defined in Rule 2 hereof, is offered or used in evidence.
– and a perusal of the general definitions of electronic data message and electronic documents in Section 1 (g) and (h) of Rule 2, respectively – as quoted earlier – do not suggest data transmission to be exclusively confined to business transactions, and thus favor the second conclusion as to the applicability of the Rules.
IV. Miscellaneous: Convention and Treaty obligations
The Philippines is a signatory of the United Nations Convention on the Rights of the Child and thus is obligated to protect children from all forms of sexual exploitation and sexual abuse. Article 34 of said Convention requires that parties must protect children from being coerced to engage in any unlawful sexual activity, from being exploited in prostitution, and from being used in pornographic performances and materials. Article 34 of the Convention specifically provides:
“States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, States Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent:
- The inducement or coercion of a child to engage in any unlawful sexual activity;
- The exploitative use of children in prostitution or other unlawful sexual practices;
- The exploitative use of children in pornographic performances and materials.” []
In addition to this, the Philippines also ratified in 2002 the “Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography,” [] which calls for governments to ensure that adults involved in the exploitation of children are punished, and that children who have been sexually exploited, abused, or trafficked receive services to allow for their full social reintegration and their physical and psychological recovery.
IV. Proposals
Dealing with computer-related crimes in the Philippines is still in its infancy. The law enforcement agencies and the judicial system are still ill-equipped to handle high-tech cases, both in terms of experience and equipment. As computer-related crimes exist across borders, technical assistance is necessary among countries, with equipment and training being provided by more developed countries. For one, the United States of America set up a computer crime unit in the Philippines in 2003. Atty. Ivan John E. Uy, chairman of the subcommittee on e-commerce of the Rules of Court committee and Director of the Management Information System Office of the Supreme Court, said that the computer crime unit was envisioned to supervise all computer-related crimes that will be manned by Philippine government officials skilled in computer crime investigation and prosecution. [] The question of enforcement is a constant, and the outcome of such relies upon the political will of public authorities. The question of the existence of law should never laxly taken, and should be revised and reconciled with the reality of the situation, inasmuch as the ones who aim to violate the law are active and crafty in finding ways to bend, if not break, or go around the law.
I. Cybersex
The prominence of organized cybersex business, with the recent raid on Orgasmic Studios Inc., highlighted the need for stricter laws against obscenities. [] Although certain senators, such as Senate President Franklin Drilon and Senator Mar Roxas, claim that there are enough laws to prosecute prostitution and sexual exploitation through the Internet, in light of the anti-trafficking law, certain sectors remain to see them as inadequate and lax. Still, there is an agreement that proper agencies should pursue the drive against cybersex vigorously. Supplementary to this, legislators propose that said agencies should be adequately equipped in terms of technology, human resources, state-of-the-art equipment and the necessary facilities and logistics. []
Certain measures are proposed herein:
- There should be stricter fines against operators of organized cybersex business, and effectively classify such operators in the same level as other participants in organized crime.
- There should be better system of facilities inspection to determine whether a cybercafe, indeed operates for the benefit of public, or is being used as a front to cater to private indulgences.
- There should be a central registry of all mobile phone numbers, whether pre-paid or post-paid, to determine the identity of the person who used said SIM card in the perpetuation of prohibited acts. Said registry should also include transaction dates of transfer of SIM.
- There should also be proper regulations as to the operation of money transfers over mobile phones, inasmuch as mobile phones may be utilized to acquire remote remittance of money generated by illicit means, in a degree lesser than what may be placed within the purview of the money laundering law.
- There should be proper mapping of Philippine websites, featuring adult content, even if such do not espouse the .ph domain. Pornography is not condoned within Philippine jurisdiction, and thus there is no reason to mitigate or qualify the issue with arguments involving financial viability, or implication as to lost taxes.
- There should be a central registry of all MAC addresses for computers (and similar devices) to determine the identity of the user-owner of the computer which may be used in the perpetuation of prohibited acts. Said registry should also include transaction dates of sale of the computer (and allied devices).
II. Sex Scandals and lewd MMS clips
The penalty of prision mayor or a fine ranging from six thousand to twelve thousand pesos or both is obviously inadequate to impose upon a violator of Article 201 of the Revised Penal Code. Stiffer fines should be made inasmuch as the reputation and dignity of those who took part in the film, particularly the women, are forever ruined. Producers and distributors of such film or videos should be fined more harshly inasmuch as they have the financial means and the boldness to mass produce the films, and therefore magnifies the damage that would be inflicted upon the ad hoc porn actors depicted in the video/film/clip.
Further, some other measures are proposed herein:
- Further regulation must be made in the proper use of telecommunication networks, especially as to the transmission of objectionable content.
- There should be a central registry of all computer peripherals and consumer devices which are able to transfer electronic data into optical media. A system to determine the relation, or impose the determination of a relation, between the optical disc writer (CD-R, CD-RW, DVD-R, DVD+R, DVD-RW, and DVD+RW) and the optical disc written, should be made.
- There should be an tailor-fit article within the Revised Penal Code as to crimes against honor that would shield persons from dishonor, discredit, or contempt, even without manifest imputation by words or writing, but by imputation by analogous deed (such as unconsented distribution). Stiff penalties should be imposed against persons who leak personal sexual documents, which incriminates other persons besides the distributor himself/herself, to the public.
- There should be a law imposing higher penalties against people who install hidden cameras and other paraphernalia to spy upon people in their intimate moments. Thus, there should be an equivalent law to the Wire Tapping Law – as the latter dwells solely on sound recordings – that would apply to videos and pictures. This is necessary inasmuch as a University instructor in Bacolod City, to illustrate, installed surveillance equipment or a hidden camera inside his boarding house’s bathroom. []
- Proper laws must be made in preventing voyeurs from utilizing any camera-like devices to acquire images of strangers, especially for malicious reasons (such as downblousing and upskirting), in public places and communal spaces.
- Proper laws must be made to strengthen the rights of people to dignity and privacy.
- Laws regulating data handling by technicians, whether as to computers, mobile phones or analogous devices, must be in place.
III. Child Pornography
The disturbing fact involving websites containing Filipino teens is that this conclusively shows that pornography involving Filipino females exists, and the volume of which is increasingly growing. The other disturbing fact is that the models appearing therein, especially in the Filipina 18 and Manila 18 websites, are in the borderline of legal, depending on the proper appraisal of the models’ age. The costumes use by the models, i.e. high school uniforms, provide a confusing assessment as to the real age of such models, taking into mind that most high school students graduate usually at the age of 17 to 18. [] The two conclusions that can be made from the images are that (1) the models are by themselves underage, or that (2) the models simulate to appear to be underage. Such dilemma provides a good debate ground, therefore, whether child pornography would necessary include simulated child pornography.
Although child pornography may be prosecuted according to Article 201 of the Revised Penal Code and Republic Act 7610, the laws are obviously inadequate to specifically handle such evil. It is necessary that a specific law pertaining to child pornography should be promulgated, to distinguish such phenomenon from regular pornography, and to provide harsher measures against those who indulge in it, in light of the clear vulnerability of children to such illicit practice. The law should include simulated child pornography as part of child pornography. Arguments as to valid role-playing cannot even be taken into consideration inasmuch as pornography, and not just child pornography, is illegal in our jurisdiction; such materials being obscene and do not easily attach to the concept of freedom of expression as in the United States. The law should provide the proper penalties for its production, possession, and/or distribution; not necessarily as a compound act but such acts taken individually; but with proper provisions to provide consideration to child abuse investigators, enforcers, and legitimate researchers. The penalty should be more than prision mayor, or a Php 6,000 to Php 12,000 fine. The penalty should be per count of illicit material and not as a lump sum of all the acts. Our present laws pale in comparison to the penalties provided to similar cases in the United States. []
It is also necessary to provide certain laws or amendments [] to existing laws to strengthen and further facilitate the successful acquisition of the custody of the perpetrator, especially if the perpetrator is a foreigner, and prevent him to take flight from the Philippines, and to make him liable to his crime in the Philippines even if his native country has acquired custody of the perpetrator and has punished him accordingly with their laws.
Thus, in fine, the following are being proposed:
- That simulated child pornography should be included in the class of pornography determined to be child pornography.
- Registration of computer users in Internet cafés should be mandatory, to facilitate the apprehension of law offenders who transmit illicit materials through anonymous webmail accounts through these facilities.
- That stiff penalties be made against adults who distribute pornographic materials or encourage the viewing of such materials to minors.
- That stiffer penalties be made against pedophiles who take theatrical and photographic mementos of the children that they ravish, and that further stiffer fines be made against pedophiles who distribute these pornographic materials to other individuals.
- That mere possession of child pornography be made to constitute a crime, and that production and distribution be considered as separate counts of committed crime.
- That civil penalties be determined not by the lump sum of confiscated materials but per piece of photograph (and its electronic equivalent), and per determined duration for videos.
- That proper laws be made or strengthened to effectively prevent foreigners who committed criminal acts in the Philippines from leaving the country, and that stiff sanction be given to other individuals who advice, aid, or by such analogous act, the felon to take flight.
- That Philippine courts be given jurisdiction, through the enactment of the proper law, over instances of publication of child pornography, whether stored in servers outside the country, as long as the individual depicted therein is a Filipino. (A proposal to enforce global jurisdiction, which is recognized in acts enumerated in Article 2 of the Revised Penal Code.)
- That proper laws be made to curb the current situation that the Philippines is made a prime destination due to sex tourism.
- That extradition treaties with developed countries, especially Australia, United States, and the United Kingdom, be strengthened to acquire jurisdiction over foreigners who, although remotely done in their respective countries, are cultivating child and women-related crimes in the Philippines.
- That the culpability of foreigners who have taken flight from the Philippines from crimes committed within Philippine jurisdiction remain even if the foreigner has been charged in their own country for violation of their laws, and thereby be subjected to extradition after they have served their sentence in their country, if not yet dead.
