Philippines -- Age of Consent

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Added 03-2002:
I read your page and have a coment on your report on Philippines .  You post that the aoc for hetero is 12. That may be in theory and on paper. Reality is very different. There is another law somewhere forbidding a man, that is not a blood relative to be in the same room with a minor without someone else present!  Many tourists have been entrapped, the police force (or some elements in it) have been known to force a street kid of maybe 16 or 17 to pose as prostitute, then the unvary tourist was brought downtown and threatened with a long jail term if not worse then forced to pay up. Another law (the phillipines have a lot of them) puts the death penalty for rape, including statutory rape - which can be applied to people under 18, not 12!  I am no lawyer, no expert on RP legal matters, but I have been there and seen innocent tourists in jail. By reporting the AOC as 12 you might send people into deep trouble - please reconsider!

 

 

Updated 01-2001:

Source: http://www.actwin.com/eatonohio/gay/world.htm

PHILIPPINES LAWS: 1. Has no sodomy laws, the age of sexual consent is 12 for all, but contacts with minors (under 18) are an offence, if the minor consents to the act for money, gain or any other remuneration or as the result of an influence of any adult person.
2. Bans homosexuals from its military.
NOTE: 1. General Arturo Enrile, Chief of Armed Forces, is very anti-gay.
2. Arnulf Acedera, Armed Forces Chief of Staff, is very anti-gay.

Source: http://www.interpol.int/Public/Children/SexualAbuse/NationalLaws/

Philippines - Filipinas                 Manile

IV. Child Prostitution
Section 5 of the Republic Act N7610, which is an " Act for Stronger Deterrents and Special Protection against
Child Abuse, Exploitation and Discrimination, Providing Penalties for its violation and for Other Purposes ",
defines ‘children exploited in prostitution and other sexual abuse’ as " Children, whether male or female, who for
money, profit or any other consideration or due to the coercion or influence of any adult, syndicate or group,
indulge in sexual intercourse or lascivious conduct. "

" The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed
upon the following :
a) Those who engage in or promote, facilitate or induce child prostitution which include, but are not limited to, the following :
(1) Acting as a procurer of child prostitute ;
(2) Inducing a person to be a client of a child prostitute by means of written or oral advertisements or other similar means ;
(3) Taking advantage of influence or relationship to procure a child prostitute ; or
(5) Giving monetary consideration, goods or other pecuniary benefit to a child in prostitution.
b) Those who commit the act of sexual intercourse or lascivious conduct with a
child exploited in prostitution or subjected to other sexual abuse ;

Provided, that when the victim is under twelve (12) years of age, the perpetrators
shall be prosecuted under Article 335, as amended, the Revised Penal Code, for
rape or lascivious conduct, as the case may be ; Provided, that the penalty for
lascivious conduct when the victim is under twelve (12) years of age shall be
reclusion temporal in its medium period ; and

c) Those who derived profit or advantage therefrom, whether as manager or owner
of the establishment where the prostitution takes place or of the sauna, 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 licence has been issued to
said establishment. "

Section 6 of the above-mentioned Act defines an Attempt to Commit Child Prostitution under Section 5,
Paragraph (a), as

" The act when a person who, no relative of child, is found alone with the said child inside the
room or cubicle of a house, an inn hotel, motel, pension house, apartelle or other similar
establishments, vessel, vehicle or any other hidden or secluded area under circumstances which
would lead a reasonable person to believe that the child is about to be exploited in prostitution,
and other sexual abuse.

There is also an attempt to commit child prostitution, under paragraph (h) of Section 5 hereof
when any person is receiving services from a child in a sauna parlour or bath, massage clinic,
health club and other similar establishments. A penalty lower by two (2) degrees than that
prescribed for the consummated felony under Section 5 hereof shall be imposed upon the
principles of the attempt to commit the crime of child prostitution under this Act, or in the proper
case, under the Revised Penal Code. "

V. Child pornography
Article V, Section 9 of the above-mentioned Act establishes that Obscene Publications and Indecent Shows
concern :

" 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. "

 

[EDITORS NOTE:  We have not provided any chart information on the Philippines so we
never did understand what we were reporting "inaccurately" as this email is stating.]

EMAIL RECEIVED:
Subject:  Philippines
Date:      Sun, 26 Sep 1999 10:49:44 +0000
From:     [removed]

I value the information and the page structure.

I know the Philippines well. Your information is essentially inaccurate - within the last 2 years there have been several internationally reported cases of men being charged with, being found guilty of, and sentenced to life imprisonment for sex with underage boys. I recall one case in which the man was sentenced to death.

The news articles made the point that the government was determined to end the burgeoning tourism sex trade designed to attract paedophiles - with particular reference to those wanting boys. I got the impression this referred to boys under the age of 18.

Like other asian peoples, Philippine youth tend to appear younger that their chronological age.- an 18 year old can appear 14. A 14 year old can appear to be 10. The reverse is rarely true. If you want young boys that's the place to go. But you're taking you life in your hands, loosely. You might find that you have the rest of your life locked in an inhuman prison to rue your decision. TKH

NEXT EMAIL:

Subject:  Age of consent in the Philippines.
Date:      Sun, 1 Aug 1999 21:40:36 -0700
From:     [removed]

The age of consent in the Philippines is 12.

**OLD LAW ***
See Revised Penal Code of the Philippines, Title Eleven Chapter two Art. 335.

"Rape is commited by having carnal knowledge of a woman under any of the following circumstances ... 3. When the woman is under twelve years of age or is demented."

The above is the OLD code

***Newer LAW ***
Republic Act. No 8353 "An act expanding the definition of the crime of rape, reclassifying the same as a crime against persons, amending for the purpose Act no. 3815, as amended, otherwise known as the Revised Penal Code, and for other purposes"

This act was signed into law on 9/30/1997. (There may be newer law, but I am unaware of it.)

The above act renumbers the relevant code to Title Eight Chapter Three
Article 266-A. "Rape, When And How Committed. — Rape is committed -

1) By a man who shall have carnal knowledge of a woman under any of the following cricumstances:
a) Through force, threat, or intimidation;
b) When the offended party is deprived [of] reason or otherwise unconscious;
c) By means of fraudulent machination or grave abuse of authority; and
d) When the offended party is under twelve (12) years of age or is demented, even though none of the circumstances mentioned above be present.

2) By any person who, under any of the circumstances mentioned its [sic] paragraph 1 hereof, shall commit an act of sexual assault by inserting his penis into another person's mouth or anal orifice, or any instrument or object, into the genital or anal orifice of another person."

Note that the NEW law includes women who rape men and homosexual / lesbian rape - the former law did not.

Sex with someone under the age of 18 is the crime of "Seduction" if it is done by various enumerated people in authority over the minor, e.g, person in public authority, priest, home-servant, domestic, guardian, teacher or any person who, in any capacity shall be entrusted with the education or custody of the woman seduced. (see RPC Title 11, Chap. 3, Art 337) [This may have been renumbered.]

NOTE That the law may have changed since 1998. But I am quit certain the age of consent did not go up because it is deeply ingrained in Filipino Culture.

I know that they have recently changed the law so that having sex with someone under 18 FOR MONEY is a much more serious offense. Before the law recognized no difference between a 12 year old prostitute and a 22 year old prostitute. [But it is still widely ignored, because prostitution itself is generally widely ignored, though illegal.]


EMAIL RECEIVED:

Subject:  aoc thailand, phillipines
Date: Mon, 3 May 1999 07:18:54 +0200
From: [removed]

because of the international pressure against child-prostitution these two
countries have changed their aoc: for male/male sex the aoc is in both
countries 18 years!!!!

 

 

LEGISLATION


 

PHILIPPINES

Legislation against child sex tourism
-Prohibit or prevent the organization and advertising of sex tours and trips

 

Sec. 35(C), Chapter X, as amended, of the Department of Tourism Rules and Regulations governing the accreditation of travel and tour services.

Department of Tourism Administrative Order No. 95-17 which prohibits hotels and other accommodation establishments to permit any person whom they know or have reason to believe to be either a prostitute, a pedophile or of questionable character to occupy a room or to enter the premises of the establishment.

Republic Act No. 7610 Otherwise know as Special Protection of Children Against Child Abuse, Exploitation & Discrimination Act.

-Prohibit or prevent the organization and advertising of sex tours and trips especially affecting children
Sec. 35(C), Chapter X, as amended, of the Department of Tourism Rules and Regulations governing the accreditation of travel and tour services.

 

Department of Tourism Administrative Order No. 95-17 which prohibits hotels and other accommodation establishments to permit any person whom they know or have reason to believe to be either a prostitute, a pedophile or of questionable character to occupy a room or to enter the premises of the establishment.

 

Republic Act No. 7610 Otherwise know as Special Protection of Children Against Child Abuse, Exploitation & Discrimination Act.

-Extra-territoriality laws and regulations, allowing to prosecute nationals for child sex offences committed abroad

 

 

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The Inadequacy of Existing Laws Protecting Children from

Sexual Abuse and Exploitation: Focus on Pedophilia*

Michelle Victoria Basco

Ateneo Human Rights  Center

E-mail: ahrc@aps.ateneo.edu

Introduction

 

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 against chastity.? 

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? 

      No less than the highest law of the land declares: 

      The 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

      It 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 development; 

(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 improvement. 

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:

      Article 34

 

     State 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: 

  1. the inducement or coercion of a child to engage in any unlawful sexual activity;
  2. the exploitative use of children in prostitution or other unlawful sexual practices;
  3. the exploitative use of children in pornographic performances and materials.

Article 36

 

    State parties 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.

  1. Liability of Pedophiles

 

    Article 335 of the Revised Penal Code states when and how rape is committed, thus: 

      Art. 335 ? When and how rape is committed. ? Rape is committed by having carnal knowledge of a woman under any of the following circumstances: 

  1. By using force or intimidation;
  2. When the woman is deprived of reason or otherwise unconscious; and
  3. 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 shall be punished by reclusion perpetua. 

      Whenever 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. 

      When the rape is attempted or frustrated and a homicide is committed by reason or on the occasion thereof, the penalty shall be likewise death. 

      When by reason or on the occasion of the rape, a homicide is committed, the penalty shall be death. 

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: 

      Art. 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: 

      Art. 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 prostitutes. 

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: 

      Art. 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 additional phrases: 

      ?In 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. 

      The 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 paragraph. 

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 follows: 

      Art. 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 states: 

      Art. 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: 

      (3) 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. 

  1. 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 Code provides: 

         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 absolute disqualification. 

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. 

  1. 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 thus: 

   The ascendants, 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. 

      The Revised Penal Code defines the crime of exploitation of minors thus: 

      Art. 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 

      (4) 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 beggar. 

      If 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. 

      In 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:

xxx 

      (3) 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:

xxx 

      (7) 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;

xxx 

      (9) 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: 

      (3) A neglected child is one whose basic needs have been deliberately unattended or inadequately attended. Neglect may occur in two ways:

xxx 

          b) 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: 

      Art. 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:

xxx 

          (2) Gives the child corrupting orders, counsel or example;

                      xxx 

      (4) Subjects the child or allows him to be subjected to acts of lasciviousness. 

          If 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. 

          The 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: 

          Art. 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 such authority. 

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.  

      Rule 99 of the Rules of Court provides for the procedure for the custody of abused children: 

          Sec. 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 person.    

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 assist them. 

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: 

      Sec. 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 custody.  

      The 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 required. 

      For the purpose of this Executive Order, a minor shall refer to any person below sixteen years of age. 

      Sec. 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 living.

      xxx 

      Sec. 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 defined as: 

          the 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. 

      Sexual abuse is defined as: 

            d) sexual abuse ? acts of sexual assault or sexual exploitation of minors. 

      1. sexual assault includes rape, incest, sodomy, sexual sadism or masochism, bestiality, lewd or lascivious acts or any other form of masturbation or sexual perversion.

 

      1. sexual exploitation is the unjust or improper use of a child in sexual activities for profit or advantage.

 

    ?Children? entitled to special protection under the bill are: 

      ? 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

    sauna, 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

    reclusion temporal

    to

    reclusion perpetue

    . The bill further penalizes any person who shall hire, employ, use, persuade, induce or coer

    ce a child to perform in obscene exhibitions or pornographic materials or to sell or distribute said materials by the penalty of

    prision mayor

    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 of majority; 

          

  • 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 actu

    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 punished by

    reclusion temporal

    . 

                

    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 by

    prison 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: 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

    reclusion temporal

    in its max

    imum period. 

    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

    prision mayor

    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. 

    The term

    ?

    child abuse

    ?

    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. 

    The term

    ?

    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. 

    The term

    ?

    sexual exploitation

    ?

    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 Children.

    ?

    Any person who commits the crime of sexual exploitat

    ion as defined in this Act shall be punished by

    prision mayor

    . 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

    reclusion temporal

    in its minimum period. The penalty of

    re

    clusion temporal

    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 Expl

    oitation 

    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):  

                

    c)

    ?

    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. 

                

    d)

    ?

    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

    he

    ?

    sexual act

    ?

    with a child below twelve years of age. The term

    ?

    sexual act

    ?

    is defined in Section2245 (2) of the same Act as: 

                

    (2) the term

    ?

    sexual act

    ?

    means- 

  • 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

    who

    ?

     

  • 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. 

                                x x x 

  • Defenses.

    ?

     

  • 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.

                     x x x

      1. 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.

     

           (d) State of mind proof requirement. ? In a prosecution under                       subsection (a) of this section, the Government need not prove that the                        defendant knew ? 

  • the age of the other person engaging in the sexual act; or
    1. 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 

    1. 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 ?

     

      1. 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 ?  

    1. 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);

     

                                     x x x

        or attempts to do so, shall be fined under this Title, imprisoned not more than 20 years, or both. 

    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: 

            (b) By other means. ? Whoever, in the special maritime and territorial jurisdiction of the United States or in a Federal prison, knowingly -  

          

    1. renders another person unconscious and thereby engages in a sexual act with that other person; or

     

    1. 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 ?

     

                  (i) substantially impairs the ability of that other person to appraise or control conduct; and  

                  (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 both. 

    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. 

          On the other hand, Sec. 2244, defines what acts constitute the ?sexual contact? with a child: 

          (3) 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 our children.  

    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 properties.  

    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 and judgment. 

    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:  

    1. 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,
    2. medical treatment for victims who contracted sexually-transmittable diseases;
    3. rehabilitation program for the victims who have become drug dependents;
    4. 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;
    5. 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.  
     
     
     
     
     
     
     
     
     
     
     
     
     

           
           
           
           
           
           
           
           

 

 

 

 

Republic Act No. 7610 Otherwise know as Special Protection of Children Against Child Abuse, Exploitation & Discrimination Act 

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