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The Inadequacy of Existing Laws
Protecting Children from
Sexual Abuse and Exploitation: Focus on
Michelle Victoria Basco
Ateneo Human Rights Center
On March 5, 1991, the Supreme Court
acquitted Heinrich Stefan Ritter, an Austrian national accused of inserting a vibrator in
the vagina of a streetchildren, which eventually caused her death. The High Court, in
reversing the decision of the lower court, held that the government prosecutors failed to
establish beyond reasonable doubt that Ritter raped and caused the death of Rosario
Baluyot, one of Olongapo?s streetchildren.
The decision was handed down with
distressing reluctance, as the High Court ?deplored the lack of criminal laws which will
adequately protect streetchildren from exploitation by pedophiles, pimps, and perhaps,
their own parents or guardians who profit from the sale of young bodies.? The High Court
stated that the provisions on statutory rape and related offenses were never intended for
the relatively recent influx of pedophiles taking advantage of rampant poverty among the
forgotten segments of our society.
Indeed, the Revised Penal Code, based on
Spanish laws, was enacted in 1932 ? a time when the nation did not yet face unrelenting
poverty, and half a century before the sex tourists came streaming into the country with
their dollars, which would buy them, whatever they pleased. Considering the rapid changes
in the socio-economic conditions in the Philippines, a penal code that goes back to the
1930?s, would by any measure be outdated. This is particularly true for laws, which cover
rape, white slavery, and abduction, which are referred to by the archaic term, ?crimes
The decision of the Supreme Court in the
case of People vs. Ritter has aroused public concern on the plight of street children who,
at such an early age, have been forced by poverty to engage in the flesh trade. As aptly
stated by the Supreme Court in the same case, ?at an age when innocence and youthful joy
should preponderate in their lives, they experience life in its most heartless and inhuman
form. Instead of nothing more than gentle disappointments occupying their young minds,
they cope daily with tragedies that even adults should never be made to carry.?
The case has brought to this writer?s
mind several questions regarding the sexual exploitation of our nations children,
particularly on the plight of pedophilia victims. Where do the children stand in our
society today? Do we have laws protecting our children from sexual exploitation? Do these
laws afford adequate protection for our sexually abused children?
less than the highest law of the land declares:
state recognizes the vital role of the youth in nation building and shall promote and
protect their physical, moral, spiritual, intellectual and social well-being.
*Reprinted from Ateneo Human Rights Law Journal (Vol. 1,
1992), A Publication of Ateneo Human Rights Center
shall inculcate in the youth patriotism and nationalism, and encourage their involvement
in public and civic affairs.
Among the rights granted to children
under article 3 of Presidential Decree No. 603, otherwise known as the Child and Youth
Welfare Code, are:
(5) Every child has the right to be
brought up in an atmosphere of morality and rectitude for the enrichment and the
strengthening of his character;
(8) Every child has the right to
protection against exploitation, improper influences, hazards and other conditions or
circumstances prejudicial to his physical, mental, emotional, social and moral
(10) Every child has the right to the
care, assistance and protection of the State, particularly when his parents or guardians
fail or unable to provide him with his fundamental needs for growth, development and
The Philippines is also a signatory to
the UN convention on the Rights of the Child, the Philippine Senate having ratified the
convention last July 16, 1991. The UN Convention on the Rights of the Child sets universal
legal standards for the protection of children against neglect, abuse and exploitation, as
well as guaranteeing them their basic human rights, including survival, development and
full participation in social, cultural, educational and other endeavors necessary for
their individual growth and well-being. As a signatory to the Convention, the Philippines
has bound itself to comply with the provisions and obligations contained in the
convention, among which are the following:
Parties undertake to protect the child from all forms of sexual exploitation and sexual
abuse. For these purposes, State 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.
shall protect the child against all other forms of exploitation prejudicial to any aspect
of the child?s welfare.
With all these rights guaranteed to
children under the Constitution, under the Child and Youth Welfare Code, and other the UN
Convention on the Rights of the Child, this paper shall determine whether or not these
rights are amply protected by laws which guarantee their enforcement. This paper shall
begin with a review of existing laws protecting children from sexual abuse and
exploitation. The next section shall review the government?s responses to the problem,
particularly the executive and legislative branches of the government. A comparative
analysis between Philippine and American laws on the subject shall be dealt with in the
succeeding section. And finally, the last section last expound on the conclusion that we
lack adequate laws protecting children from sexual abuse and exploitation.
Current Legislation Protecting Children from Sexual
Abuse and Exploitation
Current laws protecting children from
sexual abuse can be found principally in the Revised Penal Code, the family Code and in
P.D. 603, otherwise known as the Child and Youth Welfare Code. What follows is a detailed
discussion of the laws which fix the liabilities of the pedophiles, the parents who
consent to the sexual abuse of their children, and the liability of the persons who profit
from the sexual exploitation of children.
Liability of Pedophiles
Article 335 of the Revised Penal Code
states when and how rape is committed, thus:
335 ? When and how rape is committed. ? Rape is committed by having carnal knowledge of a
woman under any of the following circumstances:
- By using force or intimidation;
- When the woman is deprived of reason or otherwise unconscious; and
- When the woman is under twelve years of age, even though neither of the circumstances
mentioned in the two next preceding paragraphs shall be present.
the crime of rape is committed with the use of a deadly weapon or by two or more persons,
the penalty shall be reclusion perpetua to death.
the rape is attempted or frustrated and a homicide is committed by reason or on the
occasion thereof, the penalty shall be likewise death.
by reason or on the occasion of the rape, a homicide is committed, the penalty shall be
A close look on our law on rape easily
reveals the numerous obstacles to prosecution of pedophiles. The current law on rape is
gender-biased, identifying females as the only victims of rape. Although both male and
female children can be victims of pedophilia, a pedophile who sexually abused a male child
victim cannot be convicted under this provision of the Revised Penal Code.
Rape under the third paragraph of this
article speaks of statutory rape. Under this mode of committing this crime, although the
offended party consented to the sexual act, as long as she is under 12 years of age, rape
is committed. The law fixes the age of consent to the sexual act at 12 years, the theory
being that the victim?s age would not have given her the discernment to desist the carnal
act. The law does not consider such consent as voluntary and presumes that the offended
party does not and cannot have a will of her own.
While studies show that a large number
of pedophilia victims are children below 12 years of age, it is to be noted that most of
them were also streetchildren whose real age cannot be sufficiently established. This was
the major obstacle to the prosecution of the accused in the People vs. Ritter case. Since
the offended party in that case was a streetchild with no parents or guardians to take
care of her, no one kept her birth certificate. No records existed which could
sufficiently prove that she was below twelve years of age. Hence, the accused in that case
could not be convicted of statutory rape. It is submitted therefore, the lack of
sufficient evidence to prove the real ages of streetchildren who have been victimized by
pedophiles, will bar the prosecution of pedophiles under the statutory rape provisions.
Once the female is over 12 years of age,
the prosecution must establish that the sexual act was committed by using force or
intimidation for rape to occur. However, since most of the pedophilia victims are
streetchildren and child prostitutes, there is lacking that degree of force or
intimidation, which would constitute the sexual act as rape.
It should be noted that it does not seem
fair when the law imposes the same penalty upon the offender regardless of whether his
victim is a woman of age or a minor child, since the latter is clearly more affected by
the rape. It cannot be doubted that the physical, psychological and emotional effects of
the rape is greater when the victim is a child than when the victim is an older woman. The
psychological effects on the child an be compared also to that of the victim who has
become insane by reason or on occasion of the rape since the emotional scars are just as
grave. In the view of the gravity of the offense and the greater emotional effects on the
offended party, a greater penalty should be imposed when the rape victim is a child.
Furthermore, jurisprudence indicates
that the crime of rape covers the sexual contact between the penis and the vulva;
otherwise the act would fall under the crime of act of lasciviousness defined by the
Revised Penal Code thus:
336. Acts of Lasciviousness. ? Any person who shall commit any act of lasciviousness upon
other persons of either sex, under any of the circumstances mentioned in the preceding
article, shall be punished by prision correccional.
Thus, when the sexual act consist of
sodomy that would not be considered rape but only act(s) of lasciviousness. Since both
kinds of sexual contact are equally offensive and humiliating, there is no reason for such
distinction. It can even be said that sodomy is more revolting than rape. Yet, in the
crime of acts of lasciviousness under which sodomy would fall, the offender is punished by
imprisonment of six months and one day to six years only, while a person who raped is
sentenced to imprisonment of twelve years and one day to twenty years.
It is to be noted that persons of either
sex can be offended parties in the crime of acts of lasciviousness. Hence, pedophiles
whose victims are male children can be prosecuted under this article. But, as in rape, the
law punishes only unconsented sexual contact if the victim is over 12 years of age.
If the sexual act does not constitute
rape or acts of lasciviousness but there was sexual intercourse, the act may fall under
the crime of simple seduction. Article 338 of the Revised Penal Code provides:
338. Simple Seduction. ? The seduction of a woman who is single or a widow of good
reputation, over twelve but under eighteen years of age, committed by means of deceit,
shall be punished by arresto mayor.
However, there is a very slim chance of
prosecuting a pedophile under simple seduction. Firstly, only females over 12 but under 18
years of age can be the victims of this crime. Secondly, while it is not essential in this
crime that the woman seduced be a virgin, it is necessary that she must be of good
reputation. Finally, it is an essential element of this crime that the offender use deceit
in order to have sexual intercourse with the offended party. The deceit spoken of in this
crime generally takes the form of an unfulfilled promise of marriage. However the
pedophiles taking advantage of our children do not have to use deceit in order to have
sexual intercourse with them since, as earlier stated, most of their victims are child
When the circumstances are such that the
act committed would fall under simple seduction but only acts of lasciviousness were
accomplished, the crime would fall under article 339 of the Revised Penal Code, thus:
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 under the same circumstances those provided in Art. 337 and 338.
Under this provision, the offender
commits acts of lasciviousness or lewdness upon a woman who is virgin or single or a widow
of good reputation, under eighteen years of age but over twelve years of age, and the
offender accomplishes the acts by the abuse of authority, confidence, relationship or
deceit. Again, the victims under this provision are limited to females over twelve years
of age but not more than eighteen years of age. Under the acts of lasciviousness punished
under Article 336, the acts of lasciviousness punished under this article are committed
with the consent of the offended party, but such consent is obtained through abuse of
authority, confidence, relationship or deceit. Since most pedophiles do not have to use
deceit to obtain the consent of their victims, it is submitted that there can be very few
prosecutions of pedophiles under this article.
Another major obstacle to the successful
prosecution of pedophiles is that the law makes the crimes of rape, acts of lasciviousness
and simple seduction private crimes, which can only be prosecuted upon a complaint filed
by the offended party.
The third paragraph of article 344 of
the Revised Penal code provides:
The offenses of seduction, abduction,
rape or acts of lasciviousness, shall not be prosecuted except upon a complaint filed by
the offended party or her parents, grandparents or guardians, nor, in any case, if the
offender has been expressly pardoned by the above-named persons, as the case may be.
In the cases of seduction, abduction,
acts of lasciviousness and rape, the marriage of the offender with the offended party
shall extinguish the criminal action or remit the penalty already imposed upon him. The
provisions of this paragraph shall also be applicable to the co-principals, accomplices
and accessories after the fact of the above-mentioned crimes.
Section 5, Rule 110 of the Rules of the
Court contains a similar provision as the above-quoted article, with the following
case the offended party dies or becomes incapacitated before she could file the complaint
and has no known parents, grandparents or guardian, the state shall initiate the criminal
action in her behalf.
offended party, even if she were a minor, has the right to initiate the prosecution for
the above offenses, independently of her parents, grandparents or guardian, unless she is
incompetent or incapable or doing so upon grounds other than her minority. Where the
offended party who is a minor fails to file the complaint, her parents, grandparents or
guardian may file the same. The right to file the action granted to the parents,
grandparents or guardian shall be exclusive of all other persons and shall be exercised
successively in the order herein provided, except as stated in the immediately preceding
The foregoing provisions of law were
intended to protect the victim and her family who would rather suffer the outrage in
silence rather than go through the scandal of a public trial. It is submitted that the
above-quoted provisions of law classifying the crimes of rape, acts of lasciviousness and
seduction as private crimes unduly restricts the State?s right to prosecute the
pedophiles. The only time the state can initiate the criminal action is when the offended
party dies or becomes incapacitated before she could file the complaint and has no known
parents, grandparents or guardians. This author submits that the State?s duty to protect
the welfare of our children must take precedence over the individual?s right to choose
whether or not to proceed with the prosecution of the offender.
It is public knowledge that most of the
victims of pedophiles are child prostitutes and streetchildren who readily sell their
bodies to these pedophiles for a few hundred pesos. It is most unlikely therefore, for the
victims to initiate criminal proceeding against their offenders since they consented to
the act. Neither can one expect the same from the parents of the victim, who more often
than not, acquiesce to the sexual exploitation of their children.
Furthermore, the law provides two ways
by which persons accused of rape, acts of lasciviousness or seduction may escape
punishment for these crimes. Article 344 of the Revised Penal Code provides that if: (1)
the offender has been expressly pardoned by the offended party or her parents,
grandparents or guardian, or (2) if the offender marries the offended party, the criminal
action will be extinguished or the penalty imposed upon him will be remitted. The pardon
granted to the offender will also inure to the benefit of the co-principals, accomplices
and accessories after the fact.
If the pedophiles sexual activities do
not constitute the crime of rape, acts of lasciviousness or seduction, his actions may
fall under the crime of Grave scandal, defined in article 200 of the revised Penal Code as
200. Grave scandals. ? 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.
The crime penalized by this article
consists of acts which are offensive to decency and good customs and which cause public
scandal. Even if the article is not explicit, it is evident that as a condition precedent
for the existence of this crime, the offense against decency and good customs must have
been made public; if the offense lacks this element, it does not produce the grave scandal
required by the article. Since the sexual activities of pedophiles are committed within
the confines of a private place, away from public view, it lacks that degree of publicity
essential for the successful prosecution of the offender under this article.
In another case involving foreign
pedophiles, among the things seized during the raid conducted by the Commission on
Immigration agents were rolls of photo negatives and photos of suspected child prostitutes
shown in salacious poses, as well as boys and girls engaged in the sex act. Posters and
other literature advertising child prostitutes were also seized during the raid. Likewise,
at a search conducted in the residence of a suspected Japanese pedophile, the police found
video equipment, videotapes and 590 photographs showing the suspected Japanese pedophile
and other foreign nationals engaging in sexual acts with different girls, mostly minors.
This reveals that the activities of these pedophiles are not limited to the sexual abuse
of children, but have extended to the production of child pornography. The applicable
provision in the Revised Penal Code punishing these acts are found in article 201, which
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 shall be imposed upon:
Those who shall sell, give away or exhibit films, prints, engravings, sculptures or
literature, which are offensive to morals.
In the case of People vs. Tempongko, the
court interpreted the words ?give away? to mean ?to distribute.? The court held that what
is punished by article 201, paragraph four, is the distribution or the giving of indecent
literature, etc., to many people, and not merely the isolated, casual or occasional act of
giving such kind of literature to a single recipient. The purpose of the provision is the
protection of morals, that is, the morals of the society as a whole, and not merely the
morals of a single individual. Hence, giving indecent literature to one person is not a
violation of article 201. Therefore, far from protecting the victimized children, the law
exonerates the pedophiles as long as they do not distribute the pornographic materials.
Furthermore, the persons who induce the children to pose for such pictures, and the
persons who take these pictures cannot be held liable under this article.
- Liability of Persons Who Profit from the Sexual Exploitation of Children
The government?s effort to protect
children from sexual exploitation must not stop at the prosecution of pedophiles. If the
government were to stop the activities of the pedophiles in this country, then those who
profit from the sexual exploitation of children must also be punished.
The Revised Penal Code defines the crime
of white slave trade in the following manner:
Art. 341. White slave trade. ? The penalty of prision
correccional in its medium and maximum periods 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 women for the purpose of prostitution.
This article punishes those who engage
in or profit from the prostitution
of females. Those who engage in or profit from the prostitution of males are not covered.
The crime of corruption of minors,
however, covers a wider area compared to the crime of white slave trade. The Revised Penal
Art. 340. Corruption of Minors. ? Any person, who shall promote
or facilitate the prostitution or
corruption of persons under age 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
Unfortunately, there has been no
jurisprudence at all on these crimes. It is highly probable that there has been only a few
or no prosecution at all. Yet, there is a proliferation of child prostitution, child pornography and
sexual abuse of children. This indicates that the provisions on white slave trade and
corruption of minors require modification.
- Liability of Parents Who Consent to the Sexual Exploitation of their Children
It is interesting to note that in the
case of People vs., Ritter, the Supreme Court intimated the possibility that even the
parents of the victims of pedophiles profit from their children?s sexual exploitation.
Indeed, it is not improbable that the parents of these victims could have pushed their
children into selling their bodies to pedophiles, or at least have acquiesce to the sexual
exploitation of their children. In a committee report, the Senate Committee on Women and
Family Relations reported that among the objects found in the residence of the pedophile
Andrew Mark Harvey, during a raid conducted by the CID, were affidavits of parents
permitting their children to accompany Harvey and appointing him guardian in-loco-parentis
at such times.
Of the people who profit from the sexual
exploitation of children, no one can be more despicable than the parents who knowingly
allow their children to be sexually exploited by pedophiles. They too, along with the
pimps of these children must be held liable for the sexual exploitation of their children.
Current laws governing the liability of
parents who allow their children to be subjected to sexual exploitation can be found in
the Revised Penal Code, Presidential Decree No. 603, otherwise known as the Child and
Youth Welfare Code, and the Family Code.
In case the child is a victim of any of
the following crimes: rape, acts of lasciviousness, qualified seduction, simple seduction,
acts of lasciviousness with consent of the offended party, corruption of minors, white
slave trade, forcible abduction or consented abduction, Article 346 of the Revised Penal
Code provides the penalty for ascendants who cooperate in the perpetuation of such crimes
guardians, curators, teachers and any person who, by abuse of authority or confidential
relationship, shall cooperate as accomplices in the perpetuation of the crimes embraced in
chapters second, third and fourth of this title shall be punished as principals.
Teachers or any other
persons in any other capacity entrusted with the education and guidance of the youth shall
also suffer the penalty of temporary special disqualification in its maximum period to
perpetual special disqualification.
Any persons falling
within the terms of this article, and any other persons guilty of corruption of minors for
the benefit of another shall be punished by special disqualification from filling the
office of the guardian.
In the view however, of the
classification of these crimes, and the lack of involuntariness on the part of the
children-victims, it is submitted that it is unlikely that the ascendants or guardians who
cooperate as accomplices in the crimes of rape, acts of lasciviousness or seduction can be
convicted under this article. Furthermore, there has been no jurisprudence on this
subject, which probably indicates that there has been only a few or no prosecution at all
under this article.
Revised Penal Code defines the crime of exploitation of minors thus:
278. Exploitation of Minors. - The penalty of prision correccional in its minimum and
medium periods and a fine not exceeding five hundred pesos shall be imposed upon:
x x x
Any ascendant, guardian, teacher or person entrusted in any capacity with the care of a
child under sixteen years of age, who shall deliver such child gratuitously to any person
following the callings enumerated in paragraph 2 hereof, or to any habitual vagrant or
the delivery shall have been made in consideration of any price, compensation, or promise,
the penalty shall in every case be imposed in its maximum period.
either case, the guardian or curator convicted shall also be removed from office as
guardian or curator; and in the case of the parents of the child, they may be deprived
temporarily or perpetually, in the discretion of the court, of their parental authority.
Although this law may seem applicable to
parents such as those of the children in Pagsanjan who authorized their
children to accompany Harvey and appointed him in-loco-parentis of their children, it is
to be noted that what the law punishes is the act of delivering the child into the custody
of a habitual vagrant or beggar. Among those considered vagrants under article 202 of the
Revised Penal Code are:
Any idle or dissolute person who lodges in houses of ill fame; ruffians and pimps and
those who habitually associate wit prostitutes;
Hence, unless the pedophile falls under the above-quoted provision
of law, the parents or ascendants who deliver their children to pedophiles like Andrew
Mark Harvey and appoint them guardians-in-loco-parentis over their children, cannot be
held liable under this article.
While the Revised Penal Code provides
for the liability of parents for specific offenses like cooperating as accomplices in the
perpetuation of the crimes of rape, acts of lasciviousness or seduction; or delivering a
child under sixteen years of age to any habitual vagrant or beggar, the Child and Youth
Welfare Code and the Family Code define their liability in more general terms.
Under the Child and Youth welfare Code
and the Family Code, there are four types of penalties which may attach to parents who
allow their children to be subjected to sexual exploitation, namely: (1) imprisonment and
fine; (2) temporary termination of parental authority; (3) permanent termination of
parental authority; and (4) admonition. Article 59 of PD 603, otherwise known as the child
and Youth Welfare Code provides:
Art. 59. Criminal liability shall attach to any parent who:
Improperly exploits the child by using him, directly or indirectly, such as for purposes
of begging and other acts which are inimical to his interest and welfare;
Causes or encourages the child to lead an immoral and dissolute life.
Parents found guilty of the
above-mentioned acts shall be imprisoned for two to six months or shall be made to pay a
fine not exceeding five hundred pesos, or both, and may be temporarily deprived of
parental authority over their children.
Article 141 of PD 603 provides that
parents of neglected children may be temporarily deprived of parental authority over their
children; said article defines a neglected child thus:
A neglected child is one whose basic needs have been deliberately unattended or
inadequately attended. Neglect may occur in two ways:
Emotional neglect exists: when children are maltreated, raped or seduced; when children
are exploited, overworked or made to work under conditions not conducive to good health;
or are made to beg in the streets or public places, or when children are in moral danger,
or exposed to gambling prostitution
and other vices.
The same article further provides that
such neglected children may be committed to the care of the Department of Social Welfare
and Development or any duly licensed child placement agency or individual.
Article 231 of the Family Code likewise
provides the grounds for the temporary deprivation of parental authority:
231. The court in an action filed for the purpose or in a related case may also suspend
parental authority if the parents or the person exercising the same:
Gives the child corrupting orders, counsel or example;
the degree of seriousness warrants, or the welfare of the child so demands, the court
shall deprive the guilty party of parental authority or adopt such other measures as may
be proper under the circumstances.
suspension or deprivation may be revoked and the parental authority revived in a case
filed for the purpose or in the same proceeding if the court finds that the cause
therefore has ceased and will not be repeated.
The only provision of law providing for
the permanent deprivation of parental authority relative to sexual exploitation of
children can be found in the article 232 of the family Code:
232. If the person exercising parental authority has subjected the child or allowed him to
be subjected to sexual abuse, such a person shall be permanently deprived by the court of
And finally, parents who are
unreasonably neglectful in the performance of their parental duties may be admonished by
the Department of Social Welfare or by the Council for the Protection of Children, as
provided for in Article 61 of PD 603.
99 of the Rules of Court provides for the procedure for the custody of abused children:
7. Proceedings as to vagrant or abused child. ? When the parents of any minor child are
dead, or by reason of long absence or legal or physical disability have abandoned it, or
cannot support through vagrancy, negligence or misconduct, or neglect or refuse to support
it, or treat it with excessive harshness or give corrupting orders, counsels or examples,
or cause or allow it to engage in begging, or to commit offenses against the law, the
proper Court of First Instance, upon petition filed by some reputable resident of the
province setting forth the facts, may issue an order requiring such parents to show cause,
or if the parents are dead or cannot be found, requiring the fiscal of the province to
show cause, at a time and place fixed in the order, why the child should not be taken from
the parents, if living; and if upon the hearing, it appears that the allegations of the
petition are true, and that it is for the best interest of the child, the court may make
an order taking it from its parents, if living; an committing it to any suitable orphan
asylum, children?s home or benevolent society or person to be ultimately placed, by
adoption or otherwise, in a home found for it by such asylum, children?s home, society or
Unless prosecuted under the crimes of
corruption of minors or exploitation of minors, the penalties attaching to parents who
allow their children to be subjected to sexual exploitation are relatively light. If the
acts of the parents do not constitute specific acts of cooperating as accomplices in the
perpetuation in the crimes of rape, acts of lasciviousness and seduction, or delivering
their children to habitual vagrants or beggars as defined in the Revised Penal Code, then
their actions may fall under any of the earlier discussed provisions in the Child and
Youth Welfare Code or the Family Code.
In view, however, of the very general
terms use in defining the acts which could make the parents liable for the sexual
exploitation of their children, the parents can easily obtain the lightest penalty for the
graver offenses. For instance, how can one distinguished between the act of ?encouraging
the child to lead an immoral or dissolute life? which is punishable by imprisonment of up
to six months, and the act of ?giving the child corrupting orders, counsel or example?
which is only a ground for temporary deprivation of [parental authority? In the same way,
as one noted commentator said, when does the act of subjecting the child to acts of
lasciviousness and when does the act of subjecting the child to sexual abuse begin? This
distinction is necessary since one act is a ground for suspension of parental authority
and the other is a ground for permanent deprivation of parental authority.
Likewise, how will one distinguish
between a parent of a neglected child as defined in Article 141 (3) of PD 603, and a
parent who has been ?unreasonably neglectful in the performance of his duties toward his
child,? as stated in Article 61 of PD 603? The former can be temporarily deprived of
parental authority, while the latter will only be admonished. If at all, there is a very
thin line of distinction between these terms.
The Government?s Response to The Problem of Sexual Abuse
and Exploitation of Children
In line with the Constitutional mandate
for the State to promote and protect the well-being of the youth, several measures have
been enacted by the government to address the growing number of sexually abused children.
The Child and Youth Welfare Code,
codifies laws on the rights and responsibilities of parents and children below 21 years of
age and encodes substantive and procedural provisions on children with respect to home,
church, community, education and State. This law upholds the natural right and duty of the
parents in rearing the child and recognizes the role of the community in assisting the
parents and the State to prepare the child for the responsibilities of adulthood.
Consequently, it imposed upon the communities the duties of insuring the full enjoyment of
the right of every child to live in a society that offers and guarantees him safety,
health, good moral environment and facilities for his wholesome growth and development.
Article 87 of PD 603 provides that every barangay council shall encourage the organization
of Local Council for the Protection of Children which shall, among others, protect and
assist abandoned or maltreated children. In line with this, the Department of Local
Government has issued Memorandum Circular No. 90-04, whereby all barangay captains are
enjoined to establish within their respective Barangay Development Council a local Council
for the Protection of Children (LCPC) to provide for the proper development and welfare of
the children in the community in consultation with the local chief executives and
representatives of national agencies concerned with child and youth welfare.
PD 603 also created the Council for the
welfare of Children and Youth which coordinates the implementation and enforcement of all
laws relative to the promotion of child and youth welfare so as to formulate and evaluate
policies, programs and services relative to the development of the general welfare and
protection of the best interests of children and youth. Executive Order No. 233 is issued
by President Aquino on July 22, 1987 reorganized the Council for the Welfare of Children,
to be composed of representatives from the Department of Social Welfare and Development,
Department of Education, Culture and Sports, Department of Health, Department of Labor and
Employment, Department of Justice, Department of Local Government, department of
Agriculture, national Economic and Development Authority, National Nutrition Council,
Council for the welfare of Children, and three individuals not employed with the
government who are concerned with the welfare of children and youth, with at least one
being an active member of a legitimate youth organization.
On June 3, 1986, President Aquino issued
Proclamation No. 13, proclaiming June 1986 to May 1987 as the Year of the Protection of
Filipino exploited Children. An inter-agency task force composed of government
organizations was also created to prepare a national plan of action to develop national
awareness on the problems of child abuse and exploitation and generate national
motivation, responsibility and commitment for its prevention.
In response to Proclamation No. 13, the
CAPCOM/Metropolitan Police Force issued a letter directive to all Police Superintendents
and all Station Commanders of the Metropolitan Police Force for the creation of Child and
Youth Relations Units (CYRU) in all police stations in lieu of the Juvenile Control Unit.
The CYRU shall be responsible for responding to the needs of streetchildren below 18 years
of age, enforcement of laws and ordinances and the preparation of a plan of action to
On November 6, 1986, President Aquino
issued Executive Order No. 56, entitled ?Authorizing the Ministry of Social Services and
Development to Take Protective Custody of Child Prostitutes and Sexually Exploited
Children, and For Other Purposes,? which provides among others:
1. Notwithstanding any provision of law to the contrary, any minor who is apprehended or
taken into custody by any peace officer or by the duly authorized officers of the Ministry
of Social services and Development for engaging in prostitution or other illicit conduct
punished under existing laws shall, immediately from such apprehension, be delivered by
the arresting officer to the Ministry of Social services and Development or to its duly
authorized office or agency within a particular territorial jurisdiction for protective
ministry of Social Services and Development shall be responsible for the appearance of the
minor under its protective custody in court or any administrative agency whenever
the purpose of this Executive Order, a minor shall refer to any person below sixteen years
2. The Ministry of Social Services and Development shall provide suitable programs for the
full rehabilitation of the minors under its custody which shall, among others, include the
appreciation of proper moral values, psychological or psychiatric treatment, education in
the probable physical ailment or disease which they may contract or the dangers of
unwanted pregnancy, and appropriate training for work skills to prepare them for a decent
4. The Ministry of Social Services and Development shall notify the mayors of the
municipalities and cities of the business establishments, clubs or houses, used or allowed
to be used for prostitution of
minors, and petition for the immediate forfeiture of their business license and closure of
their business establishments.
While traditionally the duties of child
care, welfare and protection have been lodged in the DSWD, the government has begun
recognizing the important role that each barangay plays in the protection of children
against all forms of abuse. Accordingly, the thrust of the government is now to bring the
duties of child care, welfare and protection from the department-level down to the
barangay-level. Hence, Congress promulgated R.A. 6972, otherwise known as the
?Barangay-Level Total Development and Protection of Children Act.? This law declares that
it is the policy of the State to defend the rights of children to assistance, including
proper care and nutrition, and to provide them wit special protection against all forms of
neglect, abuse, cruelty, exploitation and other conditions prejudicial to their
development. Thus, the law mandates that a day-care center be established in every
barangay to implement total development and protection of children below six years of age.
Included in this program is the establishment of a sanctuary for abused, neglected or
exploited children either in one child institution in a barangay and/or a network of
sanctuary-homes which will take in the children in urgent need of protection from cruelty
and abuse. It further provides that such day care center, with the help and support of the
barangay chairman and their barangay-level support systems, may call upon law enforcement
agencies when the child needs to be rescued from an unbearable home situation.
To comply with the UN Convention on the
Rights of the Child, bills are filed which seek to prevent the exploitative use of
children in prostitution or other
unlawful sexual practices. What follows is a discussion of selected bills currently
pending in congress pertaining to the protection of children from sexual exploitation.
Senate Bill No. 445, entitled, ?An Act
To Provide Stiffer Penalty for Child Prostitution,
Defining Therein Certain Persons Liable For The Crime? was introduced by Senator Romulo.
The bill seeks to punish any person whether or not related by blood or affinity with the
minor, who shall have sexual intercourse with the latter, or shall induce, escort,
deliver, offer or recruit a minor for sexual exploitation. The term minor is defined as a
person of either sex below 18 years of age. Persons convicted of this crime shall be
punished with imprisonment of 5-10 years and shall be fined from P10,000 to P20,000
foreigners found guilty of this act shall be deported after serving their sentence.
Senate Bill No. 1209, entitled ?An Act
Providing For Stronger Deterrence and Special Protection Against Child Abuse and
Exploitation, Providing legal Presumptions and Penalties for its Violations? was
introduced by Senators Lina, Mercado and Rasul. The bill declares that it is the policy of
the State to provide special protection to children from all forms of abuse and
exploitation, provide sanctions for their commission and carry out a program for
prevention and deterrence of and crisis intervention in situations of child abuse and
exploitation. It further declares that the State shall intervene on behalf of the child
when parents, guardian or person having care or custody of the child fail, or are unable
to provide the child protection against abuse and exploitation or when the acts of abuse
and exploitation against the child are committed by the said parents, guardian or person
having care and custody of the same. Generally, the bill punishes child abuse, which is
maltreatment of the child, which includes physical abuse and cruelty, physical neglect,
sexual abuse and emotional maltreatment. It includes any act, which debases, degrades or
demeans the intrinsic worth and dignity of a child as a human being.
abuse is defined as:
d) sexual abuse ? acts of sexual assault or sexual exploitation
- sexual assault includes rape, incest, sodomy, sexual sadism or masochism, bestiality,
lewd or lascivious acts or any other form of masturbation or sexual perversion.
- sexual exploitation is the unjust or improper use of a child in sexual activities for
profit or advantage.
persons below eighteen years of age including those who are eighteen years of age or over
but are unable to fully take care of themselves from neglect, abuse, cruelty or
exploitation because of a physical or mental disability or condition.
The specific acts of child abuse
punished by the bill are: child prostitution,
attempt to commit child prostitution,
child trafficking and obscene publication and indecent shows. It also provides the
procedure for the filing of complaints for child abuse and exploitation cases.
Under the bill, minors, whether male or
female, who for money or profit, indulge in sexual intercourse or lascivious conduct, are
deemed to be children exploited in prostitution.
It provides for the penalty of reclusion temporal in its medium period to reclusion
perpetua for the following:
those who promote or facilitate child prostitution;
- those who commit the act of sexual intercourse or
lascivious conduct with the child exploited in prostitution;
- those who derive profit or advantage there from, whether
as manager or owner of the establishment where the prostitution takes place or of the
disco, bar, resort, place of entertainment or establishment serving as a cover or which
engages in prostitution in addition
to the activity for which the license has been issued to said establishment.
The bill punishes the attempt to commit child
prostitution by a penalty lower
by two degrees than that prescribed for the consummated felony earlier defined. It also
provides that all establishment or enterprises which promote, facilitate or conduct
activities constituting child abuse and exploitation
shall be immediately closed and their authority or license to operate canceled.
Under the bill, child trafficking is defined as trading
and dealing with a child. The act is punishable by the penalty of
. The bill further penalizes any person who shall hire, employ, use, persuade, induce
ce a child to perform in obscene exhibitions or pornographic materials or to sell or
distribute said materials by the penalty of
in its medium period.
Finally, the bill provides that the child offended party
shall be immediately placed under
the protective custody of the Department of social Welfare and Development. Complaints
for the prosecution of child abuse and exploitation may be filed by the following:
- Offended party. When said offended party is over fifteen years of age and below the age
- Parents or guardian. Unless said parents or guardian are themselves the perpetrators of
the child abuse or exploitation;
- Ascendants or collateral relative within the third degree of consanguinity. Unless said
ascendant or collateral relative is the perpetrator of the child abuse or exploitation;
- Officer, social worker, or representative of a licensed child-caring institution;
- Official or social worker of the Department of Social Welfare and Development; or
- Barangay chairman or a concerned, responsible citizen of the barangay where the child
resides in or where the act of abuse or exploitation occurred.
Senate Bill No. 430, entitled
An Act Redefining the Offense of Corruption of Minors and Increasing the Penalty
Therefor, Amending For
the Purpose Article 340 of the Revised Penal Code
was introduced by Senators Mercado, Shahani, Angara, Romulo, and Herrera. The bill
redefines the crime of corruption of minors as follows:
Corruption of a minor is committed when the offender has
al or simulated carnal knowledge, anal or oral copulation, or any act of sexual sadism
or masochism, bestiality or any other form of masturbation or sexual perversion or
activity performed in a lewd, lascivious manner with a minor of either sex below 15 ye
ars of age. Any person who shall commit any of such acts or activities shall be
Any person who shall promote or facilitate the prostitution or corruption of persons
under age to satisfy the lust of another, including the u
ndue commercial use of such persons in sexually explicit activities, shall be punished
, 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: provided, that if the offender is a relative by
affinity or consanguinity within the fourth civil degree of the person underage, or if he
has custody of such person, he shall be punished by
in its max
House Bill No. 29431, entitled
an Act To Protect Minors From Pedophiles and /or Sexual Exploitation
was introduced by Congresswoman Puyat-Reyes. The bill provides that
No person, unless he is related within the fourth civil
degree of con
sanguinity or affinity or any bond recognized by law, local custom and tradition, or
acts in the performance of a social, moral or legal duty, shall keep or be in his company
in any public or private place, hotel, motel, beer joint, discotheque, cabaret, p
ensioned house, sauna and massage parlor, beach and/or other tourist resorts and
similar places a minor who is ten or more years his junior.
Persons found guilty of these acts shall be punished by
in its maximum period and a fine of not less
than P 50,000. If the violation is committed by a parent or guardian he shall, in
addition to the penalty that will be imposed on him, lose parental authority, hereditary
rights or custody of the child.
House Bill No. 6946, entitled
An Act amending Arti
cle 278 of the Revised Penal Code To Expand the Scope of Exploitation of Minors
was introduced by Congressman Tinga. The bill seeks to add the following provision as
item No. 6 in Article 278 of the Revised Penal Code:
6. Any ascendant, guardian, or pe
rson, entrusted in any capacity with the care of a child under fourteen years of age
who shall cause and/or allow such child to be employed or to participate in an obscene
play, scene, act, movie or show.
House Bill No 33840, entitled
An Act Instituting the Protection and Rehabilitation of Youth and Children In
Especially Difficult Circumstances, Prescribing Penalties For Violation Hereof And
Appropriating Funds Therefore
was introduced by Congressman Ga
scon. The bill declares that it is the policy of the Sate to ensure every child and
youth of the protection and care as would be necessary for his well being and youth;
hence, a holistic approach to address the needs of youth and children in especially dif
ficult circumstances should be adopted, which is preventive, rehabilitative, and
protective. The bill provides for special safeguards and care for children in especially
difficult circumstances; defines and penalizes sexual exploitation of children; declar
es child labor illegal and provides the penalties therefore; establishes centers for
streetchildren and provides for legal protection for streetchildren; provides for a system
of and access to education for children of cultural communities; and finally, th
e bill provides for the policies to be executed to ensure the protection and
rehabilitation of children in situations of armed conflict.
Under the bill, children in especially difficult
circumstances refer to that category of disadvantaged children who ar
e abused, sexually exploited, working/living in the streets, in cultural communities
and in situations of armed conflict.
refers to the criminal act of intentional injury or pattern of injuries inflicted on a
child by anyone, which
can be either physical, sexual or psychological. It includes any act of any person,
which debases, degrades or demeans the intrinsic worth and dignity of a child as a human
being. Sexual abuse is specifically defined as the involvement of a child in a sexu
al activity with an adult or any person older, in which the child is used as a sexual
object for gratification of the older person
s needs or desires.
sexually explicit activity
refers to any physical human body activity, whether performed or e
ngaged alone or with other persons, where the predominant appeal to the average person,
applying contemporary standards, is to the prurient interest, or a shameful or morbid
interest in nudity or sex, and which taken as a whole goes substantially beyond li
mits of candor in description or representation of such matters and is utterly without
redeeming social importance.
refers to the criminal act by which a person induces, promotes or coerces children to
engage in sexually exp
licit activities for any consideration.
The bill provides for penalties for persons responsible
for the sexual exploitation of children, thus:
Sec. 13. Penalty for Sexual Exploitation of
Any person who commits the crime of sexual exploitat
ion as defined in this Act shall be punished by
. If the offender is the parent or guardian of the child, the penalty to be imposed,
aside from losing custody over the child, shall be
in its minimum period. The penalty of
shall also be imposed upon a foreigner who shall furthermore be deported immediately
after service of his sentence.
And finally, the Department of Social Welfare and
Development (DSWD) is responsible for overseeing and monitoring the cond
ition of children who have fallen victims to child abuse. It is empowered to initiate
with the proper courts the child
s removal from custody of his parents, guardians, or any other person who may have
custody over him and his or her placement in the care
of his or her relatives or DSWD-accredited institution. The DSWD is also tasked to
develop and run a program for the rehabilitation of the victim of child abuse, the
offender, and their families.
Foreign Laws Protecting Children From Sexual Abuse and
Since the Philippine legislature is still in the process
of enacting laws, which will provide adequate protection for children against sexual abuse
and exploitation, it would be helpful to study foreign laws on the subject and determine
if it cou
ld be adopted in the Philippine situation. What follows is a discussion of selected
laws protecting children from sexual abuse and exploitation, from the United States, a
country where pedophilia activities have been going on long before such activities ha
ve begun in the Philippines.
The American counterpart of our statutory rape
provisions can be found in the
Sexual Abuse Act of 1986
which provides in Sections 2241 (c) & (d):
Whoever, in the special maritime and territorial jurisdiction of the
United States or in a Federa
l prison, knowingly engages in a sexual act with another
person who has not attained the age of 12 years, or attempts to do so, shall be fined
under this title, imprisoned for any term of years or life, or both.
In a prosecution under subsection (
c) of this section, the Government
need not prove that the defendant knew the other person engaging in the sexual act
had not attained the age of 12 years.
Unlike our laws on statutory rape, this law punishes the
sexual act or the mere attempt to engage
in the sexual act with a child below 12 years of age, whether male or female. This
offense proscribes non-coercive conduct in which older, more mature persons take advantage
of others whose capability to make judgments has not yet matured. Lack of consent
by the victim is not an a element of the offense, hence the prosecution need not
introduce evidence of lack of consent on the part of the child in order to find the
defendant guilty under this article. There is strict liability as to the age of the victim
, thus, reasonable mistake as to the age of the victim cannot be raised as a defense
under this law. It is to be noted that, unlike our laws on statutory rape, which covers
only the sexual contact between the penis and the vulva, what is punished here is t
with a child below twelve years of age. The term
is defined in Section2245 (2) of the same Act as:
(2) the term
- contact between the penis and the vulva or the penis and
the anus, and for purpose of t
his subparagraph contact involving the penis occurs upon
penetration, however, slight;
- contact between the mouth and the penis, the mouth and
the vulva, or the mouth and the anus; or
- the penetration, however slight, of the anal or genital
opening of anot
her by a hand or finger or by any object, with an intent to abuse,
humiliate, harass, degrade, or arouse or gratify the sexual desire of any person;
When the offender engages in the sexual act, as defined
above, with a child over 12 but under 16 years of
age, Sec. 2443 of the same Act applies:
2243. Sexual abuse of a minor or ward
- Of a minor
whoever, in the special maritime and territorial jurisdiction of the United States or
in a Federal prison, knowingly engages in a sexual act with another person
- has attained the age of 12 years but has not attained the age of 16 years; and
- is at least four years younger than the person so engaging; or attempts to do so, shall
be fined under this title, imprisoned not more than five years, or both.
- In a prosecution under subsection (a) of this section, it is a defense, which the
defendant must establish by preponderance of the evidence that the defendant reasonably
believed that the other person had attained the age of 16 years.
- In a prosecution under this section, it is a defense, which the defendant must establish
by a preponderance of the evidence, that the persons engaging in the sexual act were at
that time married to each other.
the age of the other person engaging in the sexual act; or
- that the requisite age difference existed between the persons so engaging.
This offense applies to behavior that
the participants voluntarily and willingly engage in. The offense is intended to punish
older, mature persons who take advantage of younger, immature persons, but not sexual
activity between persons of comparable age. Subsection (a) covers non-coercive conduct,
but since some states permit marriage by persons less than 16 years of age subsection
(c)(2) sets forth a defense that the parties were married at the time of the sexual act.
The severity of the offense for a sexual
act involving a minor less than 16 years old will depend upon the circumstances involved.
If the young person is between the ages of 12 and 16 and force is used or if threats of
death, serious bodily harm, or kidnapping are involved, the applicable provision is
section 2241 (a) of the same Act:
2241. Aggravated sexual abuse
- By force or threat. ? Whoever, in the special maritime and territorial jurisdiction of
the United Sates or in the Federal prison, knowingly causes another person to engage in a
sexual act ?
- by using force against the other person; or
(2) by threatening or placing that other
person in fear that any person will be subjected to death, serious bodily injury, or
kidnapping; or attempts to do so, shall be fined under this title, imprisoned for any term
of years or life, or both.
If threats other than those described
under the preceding paragraph is used upon the child between twelve and sixteen years of
age, the offender can be held liable under Sec. 2241 (1), which provides:
2242. Sexual abuse
Whoever, in the special maritime and territorial jurisdiction of
the United States or in a Federal prison, knowingly ?
- causes another person to engage in a sexual act by threatening or placing that other
person in fear (other than by threatening or placing that other person in fear that any
person will be subjected to death, serious bodily injury, or kidnapping);
If the offender renders a young person
between the ages of 12 and 16 unconscious or administers a drug to that young person, then
the applicable provision is Sec. 2241 (b), which provides:
- renders another person unconscious and thereby engages in a sexual act with that other
- administers to another person by force or threat of force, or without the knowledge or
permission of that person, a drug, intoxicant, or other similar substance and thereby ?
(ii) engages in a sexual act with that other person; or attempts
to do so, shall be fined under this title, imprisoned for any term of years or life, or
If none of the factors mentioned above
are involved, then the ages of the participants are important. If the victim is less than
12 years old, then there is an offense whatever the age of the other party. If the person
is at least 12 but not 16 years old, then, the age of the other party becomes relevant. If
the other person is four or more years older than the young person, then there is an
offense under section 2243 (a). If the young person is not four or more years younger than
the other person, then there is no offense.
The American counterpart of our laws on
acts of lasciviousness can be found in Sec. 2244 of the same act. While Philippine law
does not define what acts constitute acts of lasciviousness, the Supreme Court has ruled
that the following acts constitute acts of lasciviousness: compelling a girl to dance
naked before men, embracing, kissing and holding a girl?s breasts, placing a man?s private
parts over a girl?s genital organ, placing a man?s hand between the legs of a girl, and
making the push and pull movement without penetrating the reproductive organ of the girl.
the other hand, Sec. 2244, defines what acts constitute the ?sexual contact? with a child:
the term ?sexual contact? means the intentional touching, either directly or through the
clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person
with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual
desire of any person.
The law punishes (1) the sexual contact
with a child below 12 years of age even if the latter consented to the sexual contact; and
(2) the sexual contact with a child over 12 years but under 16 years of age, where the
offender, who is at least four years older that the child, uses force, threats of death,
serious bodily harm, or any other threats; or where kidnapping is involved; or when the
offender renders the child unconscious or administers a drug to the child in order to
engage in sexual contact with such child.
The Sexual Abuse Act of 1986 is not the
only law in the US, which protects children from sexual exploitation. Finding that child
exploitation has become a multimillion dollar industry infiltrated and operated by a
nationwide network of individuals openly advertising their desire to exploit children and
recognizing the physiological, psychological, emotional harm caused by the production,
distribution and display of child pornography, the US Congress enacted several laws
relative to the production and distribution of child pornography.
The first of these laws was Public Law
95-225, otherwise known as ?The Protection of Children Against Sexual Exploitation Act of
1977.? The Act created a federal felony offense of sexual exploitation of children. The
offense consisted of inducing persons under the age 16 to engage in explicit sexual
conduct for the purpose of filming or photographing the acts and shipping the product in
interstate commerce. The Act also prohibited the commercial distribution of obscene child
pornography. Thus, unlike our laws which punish only those who sell or distribute obscene
films or photographs, this law punishes event those who induce the children to pose for
such obscene films or photographs.
While Philippine laws penalize only the
white slave traffic of women, the Protection of children Against Sexual Exploitation Act
of 1977 extended the coverage of white slave traffic to include even minor males.
In 1984, Public Law 98-292 otherwise
known as the ?Child Protection Act of 1984? was enacted, making several changes in the
earlier law. It eliminated the requirement that interstate distribution be for the purpose
of sale, since experience has revealed that many of the individuals who distribute child
pornography materials do so by gift or exchange without any commercial motive and thus
remain outside of the coverage of the old law. Those persons who use or entice children to
engage in sexually explicit conduct for the purpose of creating child pornography do not
violate the former law, unless their conduct is for pecuniary profit. Since the harm to
the child exists whether or not those who imitate or carry out the schemes are motivated
by profit, the US Congress found a need to expand the coverage of the Act by deleting the
commercial purpose requirement. Finally, the Act raised the age of protection from those
under 16 to those under 18 years of age. Usually proof of the child?s age has been by
circumstantial evidence only since the child cannot be located. Thus, the amendment was
intended to facilitate the prosecution and conviction in cases where the age of the child
cannot be proven by positive identification. By raising the age to 18, if the child
depicted does not look like an adult, a conviction can be obtained. Whereas, if the age
was maintained at 16, it should appear that the child had not yet reached puberty before
an offense can be proven. This Act also retained the penalty of imprisonment of up to 10
years but raised the maximum fine from $10,000 to $ 100,000.
Child pornography has become a
multi-million dollar industry in the United States as producers and distributors of such
pornography openly advertised the production and sale of such materials. Thus, the U. S.
Congress found a need to control the advertisement of child pornography by passing Public
Law 99-628, otherwise known as the ?Child Sexual Abuse and Pornography Act of 1986,? which
created two new offenses. The first offense punishes anyone who knowingly makes, prints or
publishes, or causes to be made, printed or published, any notice or advertisement seeking
or offering to receive exchange, buy, produce, distribute, or reproduce, any visual
depiction, if the production of such visual depiction involves the use of a minor engaging
in sexually explicit conduct and the visual depiction is of such conduct. The second
offense punishes anyone who knowingly makes, prints or publishes, or causes to be made,
printed or published, any notice of advertisement seeking or offering participation in any
act of sexually explicit conduct by or with any minor for the purpose of producing a
visual depiction of such conduct by or with any minor for the purpose of producing a
visual depiction of such conduct. Violations of this provision are punishable by
imprisonment of up to 10 years and fine of up to $100,000.
Parents who sell their children are
punishable under Philippine law only if the sale is made to any habitual vagrant or
beggar. There is no law penalizing parents who sell their children to producers of child
pornography. In the United States, any parent, legal guardian or other person having
custody or control of a minor who sells such minor with the knowledge that as a
consequence of such sale, the minor will be portrayed in a visual depiction showing the
minor engaging in sexually explicit conduct, can be penalized under Sec. 2251 of the U. S.
Code. Furthermore, unlike our law on exploitation of minors which punishes only those who
sell the children. Violations of this provision are made punishable by imprisonment for
not less than 20 years of for life and by a fine.
Conclusions and Recommendations
After thorough discussion on current
laws protecting children from sexual abuse and exploitation, and comparing it with the
laws of the United States, it can be concluded that we lack laws to protect children from
sexual abuse and exploitation. As mentioned in the earlier part of this paper, this could
be explained by the fact that our Penal Law, and other related laws are enacted at a time
when pedophilia was yet unheard of. But times have changed and poverty has forced children
to sell their bodies to pedophiles like Ritter and Harvey.
U.N. Secretary-General Javier Perez de
Cuellar once said that ?(t)he way a society treats its children reflects only its
qualities and protective caring, but also its sense of justice, its commitment to the
future and its urge to enhance the human condition for coming generations.? Indeed in
recent years, the country has begun recognizing that special place of the child in the
society. No less than the highest law of the land declares ?the State shall defend the
right of the children to special protection from all forms of neglect, abuse, cruelty and
exploitation, and other conditions prejudicial to their development.? This is a provision
peculiar to the Philippines. No other constitution in the whole world contains this
mandate. And as a signatory to the U.N. Convention on the Rights of the Child, our country
has recognized that children have needs and human rights, which extend far beyond basic
concepts of protection. As such, we have made a firm commitment that our country shall
take all legislative, social, educational and other measures to safeguard children from
sexual abuse and exploitation, including prostitution and pornography. Thus,
there is a need to evolve a comprehensive national program for the protection of both male
and female children from all forms of sexual abuse. The program must provide for
mechanisms for the successful prosecution of pedophiles, pimps and other persons who
profit from the sexual exploitation of children. Finally, it must provide for an effective
rehabilitation program for the victims of pedophilia.
Our laws on rape and acts of
lasciviousness require modification to extend the scope of its protection to cover all
forms of sexual abuse. As earlier stated, the current law on rape covers only sexual
contact between the penis and the vulva hence, any other sexual contact would fall under
acts of lasciviousness. It would be helpful to adopt the definition of the term ?sexual
act? from American law, to include the contact between the penis and the anus, the contact
between the mouth and penis, the contact between the mouth and the vulva, the contact
between the mouth and the anus, and the penetration of the anal or genital opening of
another by hand or finger or any other object. Furthermore, there is a need to define rape
in gender-neutral terms, to extend the scope of its protection to males.
It is to be noted that the penalties for
simple seduction and acts of lasciviousness are lighter than the penalties for most of the
crimes against property. For instance, simple robbery is punishable by prision
correccional maximum to prision mayor medium, or imprisonment of four years, two months
and one day to ten years. When the amount stolen in theft of the amount misappropriated in
estafa exceeds P22, 000.00, the total penalty to be imposed should not exceed twenty years
imprisonment. Whereas the penalty for simple seduction is arresto mayor or imprisonment of
one month and one day to six months, and the penalty for acts of lasciviousness is prision
correccional or imprisonment of six months and one day to six years. The disparity in the
penalties would be explained by the fact that the revised Penal Code was enacted in 1930?s
when the legislation was largely the domain of men and property was accorded a higher
value than women?s rights. Now the primacy of human rights over property is recognized, it
is high time to make the penalties for the for the so called ?crimes against chastity? to
make the penalties for the crime against chastity graver than those meted to crimes
against property. Furthermore, since the physical, emotional, and psychological effects of
sexual abuse is greater when the victim is child, it is submitted that the crimes against
chastity should be qualified when the victim is a child of tender years, and the penalties
be increased accordingly.
There is also a need to reconsider the
classification of crimes of rape and acts of lasciviousness as crimes ?against chastity?
which could only be prosecuted upon a complaint filed by the offended party herself or her
parents, grandparents, or guardians. At present the prosecution of pedophiles has been
minimal since most of the pedophilia victims are streetchildren and child prostitutes who
consent to the sexual abuse and are unwilling to file a complaint against the offenders.
And, as stated earlier, neither can we expect their parents to file the same since the
latter, more often than not, consent to the sexual exploitation of their children.
Government prosecutors and social workers alike should be given the power to institute
criminal actions against pedophiles, in order to punish them for sexual exploitation of
Of all the obscene materials ever
published, none is ever revolting than child pornography. Hence, the need to upgrade our
laws in pornography. The current law, Article 201 of the Revised Penal Code, should be
amended to hold liable not only the authors, sellers and distributors of such child
pornography, but also those who induce the children to pose for such pictures and persons
who take these pictures. Moreover, distribution of obscene materials even to a single
person should be made punishable since child pornography furthers the sexual exploitation
of children, whether distributed or not.
Our law on white slave traffic also
needs to be amended to include the white slave traffic of males equally exploited as women
in prostitution. There is also a
need to upgrade the penalties since, as in the crimes of seduction and acts of
lasciviousness; the penalty for white slave trade is lighter than most crimes against
The penalties for sexual abuse of
children should be set at the maximum for the ascendants who consent or profit from the
sexual exploitation of their children. The penalties for the temporary or permanent
deprivation of parental authority provided for in the Child and Youth Welfare Code and the
Family Code clearly are not commensurate with the gravity of their offenses. The crime of
exploitation of minors should be amended to punish ascendants who deliver the children to
the pedophiles as guardians of their children an permit their children to stay with them,
as in the case of parents of pedophilia victims from Pagsanjan, can be liable for
consenting to the sexual exploitation of their children.
The owners and managers of hotels,
motels, beer houses, saunas, discos and bars who allow their establishment to be used for
the prostitution of minor children
should be penalized. At present Executive Order No. 56 provides only for the forfeiture of
their business license and the closure of such establishments. Since the owners and
managers of these establishments are also involved in the sexual exploitation of children,
it is submitted that they should be punished as accomplices in the sexual abuse and
exploitation of children.
A 1986 estimate places as 20,000 the
number of sexually abused children with ranging from 3 to 15 years. In 1989,
streetchildren numbered 1.2 million, 50,000 to 75,000 or 60% are found in Metro Manila
alone. Children victims are often found in Metro Manila, Olongapo, Angeles City and in
other key cities and tourist areas in the country. These statistics reveal the increasing
number of children becoming victims of sexual abuse. Sexually exploited children are most
susceptible to contracting sexually transmitted diseases. Many face risks of drug
addiction and of being physically harmed by pervert clients. Most of them are in poor
health and are malnourished due to exposure to the streets, unhealthy environment and
irregular working hours. Their sexual abuse has resulted in a distortion of moral values
If we are to evolve a national program
for the protection of children against sexual abuse and exploitation, such program should
ensure the prosecution of pedophiles, pimps, ascendants and other persons who profit from
the sexual exploitation of children and provide for effective rehabilitation and support
programs for the victims of pedophilia.
Alongside legal remedies, a number of
strategic actions should be undertaken by the government and non-government sectors.
Direct services should be provided to victims of pedophilia to include:
- psychosocial programs, such as guidance, counseling and rehabilitation of children
suffering as a result of sexual abuse since most of them have low self-esteem, manifested
repressed anger and fear,
- medical treatment for victims who contracted sexually-transmittable diseases;
- rehabilitation program for the victims who have become drug dependents;
- education and training programs, such as value formation seminars, capability-building,
and skills training to educate them on the proper values to replace their corrupted value
system, and to give these children to venue to reintegrate themselves back to society;
- income generating programs, an offshoot of the skills-trainings programs, to provide
alternative employment to children and their families who are forced by economic
circumstances to subject themselves to sexual exploitation of pedophiles.
Likewise, parents of pedophilia victims
should also undergo psychosocial programs to provide them adequate training on how to
properly handle children victims.
To be effective over a longer period of
time, these programs require huge amount of resources, both human and financial.
Presently, in terms of budget allocations to social development program affecting
children, children?s welfare does not seem to be the government?s top priority. On the
other hand, there have been initiatives from the non-governmental sector although a
dramatic impact has yet to be achieved. Thus, the government and the private sector should
pool their resources together and ?invest? in all the above-mentioned programs.
It is hoped that with all these, the
children will be given a new lease on life, and to come out as a stronger person, less
susceptible to the corruption of the outside world.