When is the crime of cybersex committed?

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Persida Acosta

Dear PAO,
I am Mina, 21 years old, and a nursing student at a university in Manila. A friend of mine asked me if I am interested to earn income doing sexy shows online in the privacy of my own room. Being a college student with low allowance, I was eager to check out the opportunity especially since it will just be about doing “sexy shows” online. That night, I went to buy a high-definition webcam and signed up in a live channel website where I can stream my live video to my audience from all over the world who, in turn, will give me tips, which I can then withdraw from an ATM. At first I only did sexy dancing, but I soon discovered that I get more tips if I get naked in front of the camera or do “sexy” stuff. All in all, I earned about P40,000.00 a month for six months already. My school, however, found out about this, and expelled me for allegedly committing a crime. Did I really commit a crime?
Mina

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Dear Mina,
Based on your narration of facts, it seems that you have engaged in the crime of cybersex, a violation of Section 4(C)(1) of Republic Act (RA) 10175 or the Cybercrime Prevention Act of 2012.This law provides:

“Section 4. Cybercrime Offenses.—The following acts constitute the offense of cybercrime punishable under this Act:

x x x
c) Content-related Offenses:

x x x
(1) Cybersex.—The willful engagement, maintenance, control or operation, directly or indirectly, of any lascivious exhibition of sexual organs or sexual activity, with the aid of a computer system, for favor or consideration.”

Tested against the foregoing provision of law, it would seem that when you willfully and voluntarily engaged in the lascivious exhibition of your sexual organs through a high-definition webcam in exchange for the monetary tips given to you by the audience, then that is tantamount to a violation of RA 10175.

It is necessary to differentiate between consensual cybersex vis-à-vis cyber prostitution as the latter requires the element of favor or consideration in exchange for the lascivious exhibition of a sexual organ or activity. In the case of Disini, et al. vs. Secretary of Justice, et al. (G.R. No. 203335, February 11, 2014), penned by former Associate Justice Roberto Abad, the Supreme Court held that “[t]he understanding of those who drew up the cybercrime law is that the element of ‘engaging in a business’ is necessary to constitute the illegal cybersex. The Act actually seeks to punish cyber prostitution, white-slave trade and pornography for favor and consideration. This includes interactive prostitution and pornography, i.e., by webcam.”Hence, the crime of cybersex is not necessarily committed when consenting adults perform the prohibited act online without any payment of money or consideration.

The act of showing your sexual organ or performing any sexual activity online through a webcam in anticipation and exchange for money or “tips” is therefore a violation of Section 4(c)(1) of the Cybercrime Prevention Act of 2012. Under this law, the penalty for such a crime is imprisonment of prision mayor or a fine of at least Two hundred thousand pesos (P200,000.00) but not exceeding One million pesos (Pl,000,000.00), or both.

Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.

We hope that we were able to enlighten you on the matter.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

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