A descriptive study on Cybersex, Audio-Visual Sex Scandals, and Child Pornography

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

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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 ^{[ 156 ]} or a fine not exceeding 200 pesos, and in case of recidivism, by arresto mayor in its medium period to prision correccional ^{[ 157 ]} 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. ^{[ 158 ]} 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. ^{[ 159 ]} 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. ^{[ 160 ]} (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:

1. 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;
2. 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;
3. 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;
4. 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;
5. To maintain or hire a person to engage in prostitution or pornography;
6. To adopt or facilitate the adoption of persons for the purpose of prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage;

xxx

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).” ^{[ 161 ]}

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:

1. To knowingly lease or sublease, use or allow to be used any house, building or establishment for the purpose of promoting trafficking in persons;
2. 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;
3. 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;
4. 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;
5. 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;
6. 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
7. 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).” ^{[ 162 ]}

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:

1. When the trafficked person is a child;
2. 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;
3. 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;
4. 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;
5. When the trafficked person is recruited to engage in prostitution with any member of the military or law enforcement agencies;
6. When the offender is a member of the military or law enforcement agencies; and
7. 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).” ^{[ 163 ]}

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).” ^{[ 164 ]}

Certain persons, natural or juridical, are meted additional penalties or limitations when they violate RA 9208, that is:

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.” ^{[ 170 ]}