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By Annie Ruth C. Sabangan, Senior Reporter
Conclusion
“CHERRY,” a 17-year-old petite girl, is
still a virgin. But she has already been “raped” several times
or as often as one clicks the site where Cherry is—in
cyberspace—her face digitally superimposed on the naked body of a
voluptuous woman being penetrated from her behind by a sex maniac.
Though she remains physically intact, Cherry’s
mind suffers the same agony of a physically raped victim.
This isn’t a true story yet, at least in the
Philippine setting. But cyber rape could happen in the future,
especially now that information technology is nearly at its peak
that physical and virtual realms already cross each other’s
boundaries.
It is only fair to regard as reasonable the
absence of a law against cybersex crime. After all, like any other
law, criminal laws are only born after objectively determining that
an act is already socially intolerable in its most wicked sense.
But as to the sexual crimes that already exist
in cyberspace (often analogous to the traditional crimes in the
physical world) and are already victimizing many people, the absence
of a criminal law is one big social trouble.
This is how Efren Meneses feels whenever his
office is faced with cybersex crimes. He knows that his office takes
the lead in solving computer-related crimes, else it wouldn’t be
called the Antifraud and Computer Crimes Division of the National
Bureau of Investigation.
Nonetheless, Meneses perceives that his division
is in a quandary whenever confronted by cyber crimes about sex,
pornography, prostitution and even illicit virtual affairs.
Armed with the Philippine Revised Penal Code and
computer crime-detection devices that are no match for the ultra
high-tech computer gadgets of cyber crime perpetrators, Meneses
often feels he is holding weapons too blunt to cut off the fangs of
a beast. Thus, he often finds himself gawking, asking questions
like: “Could cyber crimes be treated the same as real crimes
under the Revised Penal Code? Does the Penal Code have a futuristic
approach to cyber crimes? How could the Code be applied to
virtual sex crimes?”
And add these to his questions: “When can we
have our own forensic desktop computers, investigator laptops,
computer labs, etc., to combat cyber crimes?”
In the absence of a law on cybersex crimes,
despite financial constraints, Meneses and his division are often
left with no choice but to do a lot of legal circumvention.
“Pache-pache ang style, tagpi-tagpi, diskarte lang sa ganyang mga
kaso na di matumbok sa Penal Code [In cases like these, we do some
patching and mending to deal with cybersex crimes that do not fall
into the types of crimes under the Revised Penal Code],” he says.
The case of cyber prostitution
Under Philippine law, prostitution is a crime.
But the big question is: how can one aptly prosecute a case of cyber
prostitution? Under Article 202, Section 5 of the Revised Penal
Code, a prostitute is a woman (now including men, who either hire a
prostitute or the prostitute himself or herself, through amendments
under R.A. 9208, or the Antitrafficking in Persons Act of 2003)
“who for money or profit, habitually indulges in sexual
intercourse or lascivious conduct.”
Note that the elements in this section,
including the amendments are the prostitute, the client of the
prostitute, the money and the habitual indulgence in sexual
intercourse or lascivious conduct.
Now let’s go to an Internet prostitution
website where a female prostitute is seen fondling her private parts
or masturbating in front of her client’s computer screen, visually
aided by a web camera. Her moans and gasps are also audible through
the computer headset.
The client can view and hear the sexual
exhibition and command her to do other kinky acts by first paying,
say, through his credit card. Let’s say the client, while viewing
the woman, is also masturbating and seen and heard by the woman
through his web cam and headset. Let’s say that they are virtually
having intercourse through sexually exchanging messages by hearing
and seeing each other—minus arousing other through physical
contact.
At this stage of cyber prostitution four
elements are present: the cyber prostitute, her cyber client, the
money and the conduct considered lascivious. The missing element
here is sexual intercourse, which under the law is physically sexual
intercourse. In cyber prostitution corporeal experience is absent.
Sexual intercourse, based on the traditional legal concept, would
exist only if the female prostitute and her client personally meet
and engage in paid sex.
This is not to say that a case could not be made
for this kind of prostitution. What’s clear is that some elements
in the Revised Penal Code either do not fit or apply to prostitution
in cyberspace.
In raids made recently by the NBI involving
cases of cyber prostitution similar to what was discussed above,
some legal “adjustments” were apparently made for lack of a
specific law on cyber prostitution. Meneses said the NBI charged the
cyber prostitutes with violating not Article 202 but Article 201 of
the Penal Code, which prohibits pornography and obscenity mirrored
through “immoral doctrines, obscene publications and exhibitions
and indecent shows.”
The owner and the clients of the cyber
prostitution joint in Makati were not even charged. The owner,
reportedly a foreigner, was not at the scene of the crime when the
NBI raided. The cyber clients who were also foreigners got off the
hook because of their anonymity.
It is possible to arrest cyber clients by
identifying each protocol number of the computers used in cyber
prostitution. This would give leads on the identity and location of
the offender.
Gathering enough evidence is difficult, however,
because most of the time, Internet service providers (ISPs) do not
cooperate with the NBI.
“ISPs have regulations that everything in
their log files is considered confidential. When a complainant goes
to us for help on a case involving cyber crime, we would ask him for
copies of his Internet logs, and he would point us to the ISP. But
when we ask the files from the ISPs, they always reply that the
copies are confidential and thus unavailable,” explained Meneses.
But the problem does not end here. Even if an
ISP cooperates with law enforcers, providing sufficient data would
be another problem. There is yet no law on how long an ISP can
maintain log files on its data bank.
“Let’s say a complainant, because of his
unfamiliarity with how to take action against cyber crimes, only
filed a case in June, but the crime happened in March. Three months
have already lapsed before the NBI conducts an investigation. The
problem here is that for lack of a law prescribing the period of
data retention we would not be sure about whether the evidence is
still there or has already been erased by the ISP,” said Meneses.
The case of Internet sex, pornography
and prostitution among minors
How about cybersex among minors? Still owing to
lack of a law on cybersex crime, the first line of defense here is
for parents to monitor the Internet activities of their children,
says Atty. Lindy Rogero-Gavino of the UP Law Internet Society
Program (UP Law-ISP).
One solution is to have an Internet filtering
software installed in the home’s computer. This would serve as a
fire wall preventing the entry of websites hosting pornography and
prostitution sites in the computer program. It would also prevent
minors from taking part in sex chats and cybersex by disabling
programs hosting these activities.
Internet filtering, however, is not foolproof.
Even at the University of the Philippines’ Computer Center in
Diliman, Quezon City, where the software is already installed, sites
on pornography and prostitution remain accessible.
Paul B. Sariño, the center’s network
administrator, said it would be impossible to filter all the sites,
because many of them whose names do not sound “dirty or
indecent” nonetheless contain pornography.
It is also impossible to block the entry of
sleazy websites in computer programs because of their rapid growth.
“Hundreds or even thousands of these kinds of websites are being
developed every day. It’s impossible to monitor all of them unless
there’s some kind of a cyber police who would surveil Internet
activities. And this, I think, is impossible for us right now,”
said Sarino.
A study in the US made by Anick Jesdanun,
published in The Associated Press, supports Sariño’s claim. The
writer says Internet filtering software “generally fails to block
one out of every five sites deemed objectionable” and that
“filters haven’t improved since they were tested in 1999.”
Can parents sue the owner and operator of a
website if they find out their children are getting hooked on
cybersex? Or, for intance, if the child becomes a member of a
pornographic or prostitution site and had his or her photograph
appear on the site?
Gavino says it could be done and that it would
be easier to sue if the operator is in the Philippines.
“But if the operator is outside the country,
that would be a problem. You can file a case here but then the
practical consideration is: how are you going to acquire
jurisdiction over that person who, for example, is operating in a
European country? It would be difficult to shut down the site if
this would be the situation,” she said.
Gavino sees another problem in the anonymity of
Internet sites. “You don’t know where they hold office. You need
to know the office, you need the address for the summons and all
that. That’s the difficulty. Maybe this is why these sites have
not been shut down by law enforcers.”
What if a minor does his or her cybersex outside
the home and solicits a quick sex fix or sex for cash? “That is
another problem,” says Meneses. In cybercafés, for instance, the
owners are not required to maintain records of Internet users. “If
minors are into cybersex in these places, it would be hard to trace
their identities for lack of records. And if they were required to
log their names before accessing the Internet, it would be easy to
avoid being recognized; they could falsify their identities,” he
said.
The case of cyber pornography and obscenity
Like prostitution, pornography and obscenity are
also crimes under Article 201 of the Penal Code. The law could also
be analogously applied to cases of cyber pornography and obscenity.
But if the case involves foreign offenders, Gavino said this would
be another obstacle.
“We have to remember that in different parts
of the world, the threshold for pornography varies. What is
considered criminally pornographic and/or obscene under Philippine
laws may not be regarded as such in other countries,” she said.
Only crimes involving child pornography, whether
real or virtual, “cut across cultures” and are thus easier to
deter legally.
In a recent study UP Law-ISP, concerned with the
advancement of cyberspace and Internet law in the Philippines,
argued that “pornography” is a “layperson’s term with no
particular legal significance” that even courts and judges
themselves “do not know how to define pornography.”
Obscenity, the organization says, is the more
“legally correct term” in gauging the criminality of obscene
acts and materials.
To determine the crime of obscenity, the
“Miller test” is applied to cases in the United States.
The test gives these guidelines to determine
whether materials are obscene or not: (1) “whether the average
person, applying contemporary community standards, would find that
his/her work, taken as a whole, appeals to the prurient interest,”
(2) “whether the work depicts or describes, in a patently
offensive way, sexual conduct specifically defined by the applicable
state law” and (3) “whether the work, taken as a whole, lacks
serious, literary, artistic, political or scientific value.”
The cases of cyber adultery and cyber
concubinage
Article 333 of the Penal Code criminalizes
adultery and Article 334 concubinage. But applying these articles to
cyber adultery and cyber concubinage is like cutting the hair of a
bald man.
A woman who plays around through cybersex could
indulge in it as long as she wants without ever being convicted of
adultery. Article 333 says, “Adultery is committed by any married
woman who shall have sexual intercourse with a man not her husband.
. . .”
Gavino says adultery requires carnal knowledge.
Cybersex does not involve the flesh and therefore does not apply to
the traditional sense of sexual intercourse under the Penal Code.
Much less with cyber concubinage, which mirrors
the double (read: prejudiced) standards of Philippine laws on
chastity crimes committed by men and women.
Article 334 says, “Any husband who shall keep
a mistress in the conjugal dwelling or shall have sexual intercourse
under scandalous circumstances with a woman who is not his wife or
shall cohabit with her in any other place, shall be punished by
prision correcional in its minimum and medium post.”
What if the cyber site is the cybersex room?
What if the husband and his mistress already know every mole in each
other’s body as they indulge in cybersex using the web cam and the
computer headset? What if the man starts to see his wife as
garbage or a doormat to wipe his feet on, before he enters his cyber
love nest where his cyber inamorata waits for a long night of
cybersex? And what if the husband is found out and his wife suffers
the same emotional stress experienced by wives who physically
witnessed the philandering ways of their husbands?
There are no answers to these questions. It
looks like it will take generations before archaic Philippine laws
reach the stage of sophistication—and fairness, of course.
Still, Gavino says legal repairs could be done
in such cases. Cyber philandering could still be used as evidence if
a spouse is seeking marriage separation or annulment. But these are
civil and not criminal cases. No guilty spouse would be behind bars.
A game of catch-up
These are but a few of the legal loopholes one
faces in dealing with cybersex, prostitution and pornography. These
things happen every minute of every hour of every day.
Gavino says it is like playing a “game of
catch-up.”
“The problem is there, but the law is not yet
there to address the problem,” she says.
Having a law against these cyber crimes is not
easy, though.
“A law that did not undergo objective scrutiny
is like a double-headed arrow. It could punish perpetrators but
could also work to the detriment of legitimate users,” she
explains.
Meanwhile, social activists express
dissatisfaction with the situation. Illicit cybersex shortcuts or
even juggles up the process of intimacy, says Jerome Baylen,
professor of anthropology and sociology at the UP. But he sees more
than this: unwanted pregnancies, sexually transmitted disease, loss
of the true sense of love and intimacy and an endangered future of
the youth. He believes these concerns can be judged not only morally
but practically.
Aida F. Santos, a feminist, sees the same
consequences. The youth of today, she says, especially young women,
think that they indeed have a choice. But they are wrong. In a world
where everything is commodified, making things appear normal, while
in truth they are twisted, Santos says, “It would be a mistake to
assume one is making intelligent choices.”
Part 1
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