INTRODUCTION
Cybersex is a multi-billion dollar industry. It preys on the young and the economically vulnerable in society. It enriches the recruiters and operators of the industry while it robs the child victims of their innocence and youth.
In 2008, an American national, with his Filipino wife, were arrested in La Union for operating a cybersex den in the province. One of the four (4) minors rescued from the operation revealed that they were paid the measly sum of fifty (50) pesos for working eight hours a day. Some admitted that they had been made to pose nude and did sexual acts in front of the computer for their foreign customers. Unfortunately, the court dismissed the case.
The existence of internet pornographic site in La Union is only an example of the kind of exploitative business that is proliferating all over the country. The operators of these sites are not only criminals, they are predators. It is one of the worst forms of child labor as it irreversibly harms the child both physically and psychologically. It is widespread, organized, systematic, syndicated and transnational in nature. It is appalling to the core. It does not only require domestic measures but also international arrangements to combat its spread.
Prior to the recently enacted Republic Act No. 9775, otherwise known as the Anti-Child Pornography Act of 2009, law enforcement officers and prosecutors were in a quandary as to how to successfully prosecute cases against suspected offenders in the light of relevant Philippine laws and international agreements concerning children.
The passage of the aforementioned law was like a journey to a road less travelled. While several of our legislators, led by the Chairperson of the Senate Committee on Youth, Women and Family Relations, were consistent in their commitment to protect the rights of children, there were also a number of powerful oppositors. But with the tireless support and unwavering persistence of concerned citizens, interest groups and institutions such as the United Nations Children’s Fund (UNICEF), People’s Recovery, Empowerment and Development Assistance (PREDA) Foundation, Inc., Catholic Bishops Conference of the Philippines (CBCP), and the Anti-Child and Pornography Alliance (ACPA), among others, as well as the full cooperation of the Philippine National Police (PNP), Department of Justice (DOJ), Commission on Human Rights (CHR), and the Department of Social Welfare and Development (DSWD), this advocacy was finally realized. Though long overdue, it is indeed a victory of, and for, our children.
Under R.A. 9775, the State guarantees to protect the rights of every Child from all forms of neglect, cruelty and other conditions prejudicial to their development, and all forms of exploitation and abuse, especially the use of children in pornographic performances and materials, and the inducement or coercion of children to engage in pornography through whatever means. This is also in compliance with the States’ obligation to comply with the country’s two international treaties concerning the rights of children, namely, the Convention on the Rights of the Child and the Second Optional Protocol to the Convention on the Rights of the Child.
Hence, this paper delves not only on the issues and concerns of child pornography but also the legislative measures, particularly R.A. 9775, which will serve as our ammunition in bringing this real life horror to an end.
DISCUSSION
I. Gaps in Laws Relating to Child Internet Pornography Addressed by Republic Act 9775, otherwise known as the Anti-Child Pornography Act of 2009.
Prior to the passage of R.A. 9775, various child advocates and government authorities have emphasized the need to review and reassess Philippine laws dealing with child pornography. They posited that said laws, particularly Republic Act 7610 “An Act Providing for Stronger Deterrence and Special Protection against Child Abuse, Exploitation and Discrimination, And for Other Purpose” and Republic Act 9208 “An Act to Institute Policies to Eliminate Trafficking in Persons Especially Women and Children, Establishing the Necessary Institutional Mechanisms for the Protection and Support of Trafficked Persons, Providing Penalties for its Violations, And For Other Purposes” , fail to address the appalling activities of pedophiles, the prosecution of persons possessing child pornographic materials, as well as the importation and exportation of pornographic paraphernalia.
Moreover, the absence of a specific law criminalizing possession of child pornographic materials and its trade via the internet and other media has caused a lot of cases on child pornography to be dismissed. Citing Vietnam and China as countries imposing capital punishment to perpetrators, there is an imperative need for specific, responsive and preventive legislation on child pornography that addresses and curbs the problem, but at the same time ensures that it does not infringe on the rights to privacy of individuals.
The Philippines ratified the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography on May 8, 2002. As a consequence of treaty incorporation and by virtue of the principle of pacta sunt servanda, the Philippines was obligated to enact an enabling legislation. The Optional Protocol recognizes that there is a growing availability of child pornography on the Internet and other evolving technologies. As stressed in the Vienna International Conference on Combating Child Pornography on the Internet (1999), there is a need for the worldwide criminalization of the production, distribution, exportation, transmission, importation, intentional possession and advertising of child pornography. Furthermore, the importance of closer cooperation and partnership between governments and the Internet industry to combat the phenomenon cannot be discounted.
The same Protocol also states that the elimination of child pornography will be facilitated by adopting a holistic approach and addressing the contributing factors, including underdevelopment, poverty, economic disparities, inequitable socio-economic structure, dysfunctional families, lack of education, urban-rural migration, gender discrimination, irresponsible adult sexual behavior, harmful traditional practices, armed conflicts and trafficking in children. Thus, such factors should be factored in the legislative measure.
Another stumbling block in the prosecution of child pornography is the failure to penalize the customer. Authorities pointed out that the customer is almost always beyond the reach of the law since he or she is outside Philippine jurisdiction, i.e. most of the customers are from other countries. Likewise, the crime of internet pornography, being transnational in nature and a form of trafficking in persons, should be subject to universal jurisdiction.
Moreover, since the customers are outside Philippine jurisdiction, and to ensure effective prosecution, the Philippines should utilize existing extradition treaties to hold these perpetrators accountable. Should the State Party to the Protocol have no existing extradition treaty with another State which ratified the same, the Protocol can, by express provision thereof, serve as legal basis for extradition.
Hence, the Senate Committee on Youth, Women and Family Relations, endeavored to come up with sanctions against internet service providers. With the advent of globalization and the computer age, it is said that child abuse does not end at the time that a photograph or video is taken. Every time that such photograph or video is viewed by people, the exploitation is magnified several times over. In this regard, the Law on Child Pornography of Ireland, which contained an expanded definition of child pornography, was taken into account.
The Law on Child Pornography of Ireland defines child pornography as:
“Any visual representation that
(1) shows a person who is or is depicted as being a child and who is engaged in or is depicted as being engaged in the explicit sexual activity; or
(2) those or whose dominant characteristics is depiction for sexual purpose of the genital or anal region of the child; and
(3) any audio representation of a person who is a child or is represented as being a child who is engaged in or is represented as being engaged in the explicit sexual activity or any visual or audio representation that advocates, encourages, or counsels on the lawful sexual activity with children irrespective of how or through what medium the representation has been produced. And without prejudice to the foregoing, includes a representation produced by or from computer graphics or by any other electronic or mechanical means.”
The above provision gives emphasis to virtual representation and expands the definition by including computer-related child pornography. Moreover, it explicitly defines the parameters of what could be considered as child pornographic materials.
Under R.A. 9775, the definition of child pornography was more comprehensive yet specific. Sec. 3 (b) states the following:
Child pornography refers to any visual, written material or audio representation, whether or not it is made by electronic or mechanical means, or an actual presentation of a Child:
(1) Engaged in real or simulated explicit sexual activity; or
(2) Showing his or her sexual parts or anal region, the dominant characteristic of which depicts a sexual purpose.
Visual, written material or audio representation shall include, but not be limited to, writings and pictures, books, magazines, billboards, tabloids, comics, posters, cards, calendars, decals, stickers, paintings, photographs, television shows, motion pictures, computer graphics or any electronic or other means, including the use of information technology such as mobile phones and the internet.
Actual presentation shall include, among others, the live performance or showing of a Child engaged in real or simulated explicit sexual activity, or the depiction, for a sexual purpose, of the sexual parts or anal region of the Child.
Moreover, Child, as specified in Sec. 3 (a), refers to the following:
(1) A person under eighteen (18) years of age;
(2) A person, regardless of age, who is unable to fully take care of oneself because of mental disability or condition;
(3) When applicable, a person eighteen (18) years of age or over who is presented, depicted or believed to be a person under eighteen (18) years of age; and
(4) When applicable, computer generated, digitally created or manually crafted images or graphics of a person who is represented or is made to appear to be under eighteen (18) years of age.
Thus, with the aforesaid provisions, the judicial system and law enforcers alike shall not have anymore difficulty in prosecuting the offenders because the law is now clear.
II. Lapses in Law Enforcement
There is growing international acceptance of the need for more effective action and strengthened law enforcement in this jurisdiction. This would require the ability and the capability to monitor the situations closely as possible. The difficulty surrounding the circumstances of the child victim poses the inability to report the cases personally endured by him or her given the cultural boundaries that our country represents. This, therefore, keeps child pornography out of sight for a long time now.
Article 34 of the Convention of the Rights of the Child (CRC) mandates that the child should be protected from all forms of sexual exploitation and abuse. The Philippines, as a state party to the CRC, is mandated to take appropriate measures to prevent the inducement and coercion of a child to engage in any unlawful sexual activity and the exploitation of its children in pornographic performances. The Philippines, by virtue of the CRC, must ensure that its State obligation to respect, protect, promote and fulfill the rights of the child is complied with. No less than the 2nd Optional Protocol to the CRC requires this.
Parenthetically, the Philippine National Police thru the Women and Child Concern Division (WCCD) and the Criminal Investigation and Division Group (CIDG) have pushed for the implementation of the national investigation plan involving child pornography in every region of the country.
Consequently, with R.A. 9775, the PNP has now sharper teeth in going after the offenders as it mandates the PNP Child and Women’s Desk to be the lead enforcement agency to enforce and implement the provisions of this law.
III. Weaknesses of the Philippine Judicial System Resolved By R.A. 9775
In the case of the Philippines, prior to the passage of R.A. 9775, there was lack of an integrated and well-informed set of laws on child internet pornography amidst the fast-paced advancement in technology. It is difficult to pursue cases in Philippine courts, particularly those pertaining to cyber sex crimes, such as on-line pornography, in the absence of any law defining it. The protracted process of prosecution given the absence of available laws and the difficulty in gathering evidence that may be considered admissible in court, are underlying challenges brought about by the complexities of the times.
With the new law, the judicial system in this jurisdiction is strengthened as it provides for the prosecution of child pornography cases whereby any person, who has knowledge of the commission of any of the offenses under this Act, including but not limited to the Child, parents, siblings, legal guardian, the DSWD, or police officers, may file a complaint for its prosecution in the Juvenile and Domestic Relations Court. In view of this, the DOJ shall appoint or designate Special Prosecutors.
In addition of the above, Supreme Court Circular A.M. No. 004-07-SC dated 21 November 2000 or the Rule on Examination of a Child Witness, and its amendments or revisions thereto, shall be applied in the prosecution of the same.
IV. Statistics on Child Pornography appear Deceptive
The Department of Social Welfare and Development (DSWD) described the statistical data gathered by their office as extremely low despite the numerous raids conducted by law enforcement authorities. It is widely believed that these figures do not accurately reflect the real number of children victimized by internet pornography.
Unfortunately, our culture does not associate pre-pubescent children as those that can be had as sexual objects. It is only when their parents see them being subjected to actual sexual abuse by the so-called pedophiles that they consider the acts as pornographic. While this issue has posed a problem in the gathering of data needed for studies relating to the matter, it did not prevent the legislators to finally enact R.A. 9775.
V. Effects of Pornography to the Child
The psychological effect that promotes the sense of brokenness among children demeans their self-worth. Child pornographic materials promote the “commodification” of children in that they are treated as commodities and marketed like sexual objects. This particular practice permits the cycle of abuse to go on among victims and perpetrators of child pornography. In this way, the distorted notion of what is acceptable in society in terms of sexual acts, behavior, values and partnerships is likewise severely affected. Hence, the law provides for the care, custody, and treatment of the Child victim, thru the DSWD, by giving support for their recovery and reintegration in the community.
In relation to this, the right to privacy of the Child and his or her family is protected at all times in whatever stage of the investigation or judicial proceedings. The name, address, telephone number, school, business address, employer, or other identifying information of a victim or an immediate family member, without the latter’s consent, shall not be published or caused to be published in whatever form in order not to aggravate the brutality of the situation.
VI. The Internet Service Providers’ (ISPs) Refusal to Cooperate
Rather expectedly, owners or representatives of the ISPs never attended the Senate committee hearings and Technical Work Group (TWG) meetings. Under Sec. 3 (c), Internet Service Provider (ISP) is defined as follows:
Internet Service Provider refers to a company which provides internet access and related services. An Internet Service Provider usually has multiple access methods that include, but are not limited to:
(1) dial-up;
(2) wireless and local area network (WiFi/LAN);
(3) Digital Subscriber Line (DSL);
(4) broadband; and
(5) cable modem.
As provided by the rules, numerous invitations were issued to them given the magnitude of concerns and the undeniable role that ISPs play in curbing child internet pornography, but to no avail. Indeed, this lack of support initially posed as an obstacle in the fight against pornography by reason of the privacy protection policies invoked and enforced by these companies. But their continued absence in the proceedings after sufficient notice is recognized by law as a form of waiver of their day in court.
VII. Child Pornography interlinked with other Forms of Sexual Exploitation
During the public hearings and TWG meetings, there emerged a consensus that the subject of child pornography should not be separated from other forms of commercial and sexual exploitation of children. It is interrelated with child prostitution and trafficking. It is therefore important to discuss pornography in the context of other forms of sexual exploitation and abuse to help people understand that pornography, albeit an issue worthy of separate attention, is still anchored upon other forms of sexual abuse and exploitation. Also, legislative measures on child pornography must be consistent with other laws in order to avoid adverse implications on policies affecting child trafficking and child prostitution. Consequently, there had been a holistic, comprehensive and harmonious approach in the review of all the laws involving children.
CONCLUSION
Being a new law, R.A. 9775 needs the support not only of the Philippine judicial system, the law enforcement agencies such as the police and the military, and the local government units (LGUs), but also the community being at the grassroot of this dynamics. The success of this law depends on the proactive interplay and commitment of these stakeholders, especially the family.
The family, as the basic institution of our society, plays a most significant role in combating child pornography. The Child is helpless without the positive intervention of his parents, brothers, sisters and other relatives, whom he looks up to for guidance and education. Hence, it is also our obligation, not only of the State, to mobilize a crusade on the importance of public action to monitor and detect the practice of child pornography in the Philippines.
AUSL Tech & Law 