SPL Module 2 - (2/3)

Question 1

This Deck Covers

Anti-Photo & Video Voyeurism (done)
Anti-OSAEC & CSAEM (done)
Anti-Trafficking in Persons Act

Question 2

Ant-Photo & Video Voyeurism

Answer 2

RA 9995

Question 3

What is Photo & Video Voyeurism

Answer 3

MEANS

1.TAKING PHOTO OR VIDEO coverage of a person or group of persons performing sexual act or any similar activity, [or]

2. CAPTURING AN IMAGE of the private area of a person or persons
   a. WITHOUT the latter’s consent,
   b. under circumstances in which such person/s has/have a reasonable expectation of privacy, or
3. SELLING, COPYING, REPRODUCING, BROADCASTING, SHARING, SHOWING, OR EXHIBITING the photo or video coverage or recordings of such sexual act or similar activity through
   a. VCD/DVD, internet, cellular phones and similar means or device
   b. without the WRITTEN consent of the person/s involved,
   c. notwithstanding that consent to record or take photo or (video) coverage of same was given by such person/s.

Question 4

Define the following
:
a. Broadcast
b. Capture
c. Female breast
d. Private area of a person

Answer 4

[A]
means to make PUBLIC, by any means, a visual image with the INTENT that it be viewed by a person or persons.

[B]
with respect to an image, means to videotape, photograph, film, record by any means, or broadcast

[C]
means ANY PORTION of the female breast.

[D]
means the NAKED [or] UNDERGARMENT clad genitals, pubIC area, buttocks or female breast of an individual.

Question 5

Define

e. Under circumstances in which a person has a reasonable expectation of privacy

Answer 5

means circumstances in which a reasonable person would believe that he/she could disrobe in privacy, without being concerned that an image or a private area of the person was being captured;

or

circumstances in which a reasonable person would believe that a private area of the person would not be visible to the public, regardless of whether that person is in a public or private place.

Question 6

What are the acts punishable?

Answer 6

Prohibited Acts. — It is hereby prohibited and declared unlawful for ANY person:

a. To take photo or video coverage of a person or group of persons performing sexual act or any similar activity [or] to capture an image of the private area of a person/s such as the naked or undergarment clad genitals, pubic area, buttocks or female breast without the consent of the person/s involved and under circumstances in which the person/s has/have a reasonable expectation of privacy;

b. TO COPY OR REPRODUCE, or to cause to be copied or reproduced, such photo or video or recording of sexual act or any similar activity with or without consideration;

c. TO SELL OR DISTRIBUTE, or cause to be sold or distributed, such photo or video or recording of sexual act, whether it be the original, copy [or] reproduction thereof; or

d. TO PUBLISH OR BROADCAST, or cause to be published or broadcast, whether in print or broadcast media, or show or exhibit the photo or video coverage or recordings of such sexual act or any similar activity through VCD/DVD, internet, cellular phones and other similar means or device.

The prohibition under paragraphs (b), (c) and (d) shall apply notwithstanding that consent to record or take photo or video coverage of the same was given by such person/s. Any person who violates this provision shall be liable for photo or video voyeurism as defined herein.

Question 7

In RA 9995, the prohibition to copy, reproduce, sell, distribute, publish or broadcast shall apply even if the parties or any of them consented to the recording or taking photo or video coverage of the same.

In other words, if the parties consented to the taking of video or photo but not to the selling, etc., RA 9995 is violated.

On the other hand, if the parties consented to the recording (a) and to the (b, c, d) copying, selling or publishing of the recording, what is the crime?

Answer 7

The crime is Article 201 (2)(b) for Indecent Shows

\b\
Those who, in theaters, fairs, cinematographs or any other place, exhibit indecent or immoral plays, scenes, acts or shows, it being understood that the obscene literature or indecent or immoral plays, scenes, acts or shows, whether live or in film, which are prescribed by virtue hereof, shall include those which:

(1) glorify criminals or condone (deliberately ignore) crimes;

(2) serve no other purpose but to satisfy the market for violence, lust or pornography;

(3) offend any race or religion;
(4) tend to abet traffic in and use of prohibited drugs; and
(5) are contrary to law, public order, morals, good customs, established policies, lawful orders, decrees and edict

Question 8

Compare Article 201 (Immoral Doctrine, Obscene Publication and Exhibitions, and Indecent shows)

v.

RA 9995

Answer 8

[201]
- purpose is to protect the MORALS of the public
- Publicity is ESSENTIAL in committing the offense

[9995]
- focuses on the taking of a photo/video performing sexual act or any similar activity… just state the elements

Question 9

In social media or OSNs, how can the element of “under circumstances such a person/s has/have the expectation of privacy” be present?

Answer 9

Vivares v. STC

By manifesting the intention to keep posts private by:
a. employing measures to prevent access or limit its visibility
b. using OSN’s privacy tools

Use of such tools, in the cyber world, is the user’s invocation of his right to informational privacy

Question 10

What is the Rule of Admissibility of Evidence under RA 9995?

Answer 10

Any record, photo or video, or copy thereof, obtained or secured by any person in violation of the preceding sections shall NOT be admissible in evidence in any judicial, quasi-judicial, legislative or administrative hearing or investigation.

Question 11

What are the Exceptions to the Rules of admissibility of evidence in RA 9995

Answer 11

ANY PEACE OFFICER may secure an order of the court to use the record or any copy thereof as evidence in any civil, criminal investigation or trial of the crime of photo or video voyeurism.

The written order shall ONLY be issued or granted
a. upon WRITTEN APPLICATION and,
b. the EXAMINATION UNDER OATH/AFFIRMATION of the applicant and the witnesses he/she may produce, and
c. upon showing that there are REASONABLE GROUNDS to believe that photo or video voyeurism (has been) committed or (is about to be) committed, and
d. that the evidence to be obtained is ESSENTIAL to the conviction of any person for, [or] to the solution or prevention of such crime.

Question 12

Anti-OSAEC (Online Sexual Abuse or Exploitation of Children)

&

Anti-CSAEM (Child Sexual Abuse or Exploitation Materials)

(july 30, 2022)

Answer 12

RA 11930

Question 13

how is ‘child’ defined under this law?

Answer 13

(a) Child refers to a person below eighteen (18) years of age [or] those over but are unable to fully take care of themselves or protect themselves from [dance] abuse, neglect, cruelty, exploitation or discrimination because of [simp] physical, mental, intellectual or sensory disability or condition.

For purposes of this Act, a child shall also refer to:

 (1) A person regardless of age who is presented, depicted or portrayed as a child as defined herein; and

(2) **Computer-generated**, digitally or manually crafted images, or graphics **of a person who is represented or who is made to appear to be a child** as defined herein.

Question 14

How is child sexual abuse defined under this law? (RA 11930)

Answer 14

(1)
refers to ANY
- form of communication through any platform or format, or (digital)
- physical interaction between a child and any person (physical)

(2)

when the child is being used;
- for ANY act or activity inducing sexual stimulation or
- for the purpose of sexual gratification or
- in pursuit of the desire to have carnal knowledge of the child,

(3)
REGARDLESS
- of the gender of the perpetrator or
- the victim, or
- the consent of the victim.

Question 15

What is the meaning of Child sexual abuse or exploitation material or child sexual abuse material (CSAEM/CSAM)

Answer 15

(1)
refers to ANY REPRESENTATION, whether
- offline, or
- by, through or with the use of ICT,

(2)
by means of visual, video, audio, written, or any combination thereof, [by] [mmode] electronic, mechanical, digital, optical, magnetic
or any other means,

(3)
of a child
- engaged or involved in REAL [or] SIMULATED sexual activities, or
- depicting acts of sexual abuse or exploitation of a child as a sexual object.

(4)
- It shall also include materials that focus on the genitalia or other private body parts of a child.

For purposes of this Act, CSAEM may interchangeably be referred to as CSAM

note
ICT -information communication technology

Question 16

What is SEXUAL EXPLOITATION under RA 11930?

Answer 16

Child sexual exploitation refers to any of the following acts EVEN IF consent appears to have been granted by the child:

(1) Child sexual abuse with CONSIDERATION whether monetary or nonmonetary consideration, favor, or BENEFIT in exchange for the opportunity to perform such abusive or exploitative act

(2) Actual sexual intercourse with a child or children with or without consideration;

(3) Employing [FUM DITch] fraud, machination, undue influence, intimidation, threat or deception by any person to commit sexual abuse of or sexual intercourse with a child or children; or
- fu motherfck DITch (b*tch)

(4) ANY OTHER SIMILAR or ANALOGOUS ACTS related to child abuse, cruelty [or] exploitation or to be responsible for other conditions prejudicial to the development of the child

Question 17

What is image-based sexual abuse? (ISA)

Answer 17

refers to a form of technology-facilitated sexual violence (TFSV).

The term describes a pattern of BEHAVIOR involving the
- nonconsensual creation,
- distribution, or
- threats to distribute nude or sexual images.

It includes a diversity of behaviors including, but not limited to,
- “sextortion scams,”
- the use of AI to construct “deepfake” pornographic videos, threats to distribute photographs and videos; and
- the taking or sharing of sexual assault imagery;

note
sextortion scams - form of blackmail where perpetrators threaten to distribute explicit images or videos of the victim unless they comply with the demands

sexual assault imagery - films the s.a. and shares it

Question 18

What does Online sexual abuse or exploitation of children (OSAEC) refer to?

paragraph Sec 3(t) of RA 11930

question note
- good difference between anti-porn & 7610

Answer 18

refers to the use of ICT as a means to abuse and/or exploit children sexually, which includes cases in which offline child abuse and/or exploitation is combined with an online component.

This can also include, but is not limited to, the production, dissemination and possession of CSAEM; ONLINE grooming of children for sexual purposes; sexual extortion of children, sharing image-based sexual abuse; commercial sexual exploitation of children; exploitation of CHILDREN through ONLINE prostitution; and live-streaming of sexual abuse, with or without the consent of the victim:

Provided, That OSAEC may be used interchangeably with online child sexual exploitation or abuse (OCSEA);

Question 19

What is the meaning of “sexualization of a child”?

(z)

Answer 19

to the act of using a child as an object for the sexual desire or satisfaction of another, EVEN IF there is NO:

• NO actual sexual intercourse or
• NO private part of the body of the child has been shown;

Question 20

What are the prohibited acts under this law?

sec 4

Answer 20

Unlawful or Prohibited Acts. — REGARDLESS of the consent of the child, it shall be unlawful for any person to commit the following acts through ONLINE or OFFLINE means [or] a COMBINATION of both:

(a) To hire, employ, use, persuade, induce, extort, engage, or coerce a child to perform or participate in whatever way in the creation or production of any form of OSAEC and CSAEM;

(b) To produce, direct, manufacture, facilitate, or create any form of CSAEM, or participate in the production, direction, manufacture, facilitation or creation of the same;

(c) To offer, sell, distribute, advertise, promote, export, or import, by any means, any form of CSAEM;

(d) To KNOWINGLY publish, transmit and broadcast, by any means, any form of CSAEM;

(e) To permit or influence the child to engage, participate [[or]] assist in any form of CSAEM;

(f) To produce, direct, create, hire, employ or pay a facilitator to stream or livestream acts of child sexual abuse or exploitation

(g) To stream or live-stream acts of, or any form of, child sexual abuse and exploitation;

(h) To recruit, transport, transfer, harbor, provide, or receive a child or to induce or influence the same, for the purpose of violating this Act;

(i) To introduce or match a child to a foreign national or to any person for the purpose of committing any of the offenses under this Act;

(j) For film distributors, theaters and ICT services by themselves or in cooperation with other entities, to distribute any form of CSAEM or to facilitate the commission of any of the offenses under this Act;

(k) To KNOWINGLY benefit from, financial or otherwise, the commission of any of the offenses of this Act;

(l) To provide a venue for the commission of prohibited acts under this section such as dens, private rooms, cubicles, cinemas, houses, private homes, or other establishments;

(m) To engage in the luring or grooming of a child:

Provided, That grooming taking place OFFLINE as a prelude to violations under this Act shall also be penalized;

(n) To sexualize children by presenting them as objects of sexual fantasy, or making them conversational subjects of sexual fantasies, in any online or digital platform;

(o) To engage in** pandering as defined under this Act;**

(p) To WILLFULLY subscribe, join, donate to, or support an internet site that hosts OSAEC or the streaming or live-streaming of child sexual abuse and exploitation;

(q) To advertise, publish, print, broadcast or distribute, or cause the advertisement, publication, printing, broadcasting or distribution by any means of ANY brochure, flyer, or any material that promotes OSAEC and child sexual abuse or exploitation

(r) To possess any form of CSAEM:

Provided, That possession of three (3) or more CSAEMs is PRIMA FACIE EVIDENCE of the intent to sell, distribute, publish or broadcast;

(s) To willfully access any form of CSAEM; and

(t) To CONSPIRE to commit any of the prohibited acts stated in this section:

Provided, That the investigation or prosecution of offenses under this Act shall be without prejudice to appropriate investigation and prosecution mechanisms under Republic Act No. 9208, otherwise known as the “Anti-Trafficking in Persons Act of 2003,” as amended, and OTHER related law

Question 21

in sec 4(h)
To recruit, transport, transfer, harbor, provide, or receive a child or to induce or influence the same, for the purpose of violating this Act;

If the prosecution can establish all elements of each distinct and separate crime of Kidnapping (RPC), Anti-Trafficking of 2003, and 11930?

Question 22

What is the effect of the consent of the victim?

sec 5

Answer 22

The consent of the victim is not material or relevant and shall NOT be available as a defense in the prosecution of the unlawful acts prohibited under this Act

Question 23

How is syndicated and large-scale violation of this act committed? (11930)

Answer 23

Any violation of this Act shall be deemed to have been committed by a syndicate if
- CARRIED OUT by a group of three (3) or more persons conspiring or confederating with one another.
- If the crime was COMMITTED AGAINST THREE OR MORE persons, it shall be considered as large-scale violation of this Act.

Question 24

What is the so-called protection of a good Samaritan?

Answer 24

Any person who has the responsibility of reporting cases under this Act, blocking an internet address, removing a website or domain, taking down of shared videos, pictures, or messages for the services provided by an internet intermediary, [and] providing information for the purpose of an investigation or prosecution of a case involving acts of OSAEC shall NOT be held civilly, criminally or administratively liable: Provided, That the action was:

(1) done in good faith;

(2) necessary to prevent access or dissemination of CSAEMs; and

(3) reported within twenty-four (24) hours from the act of blocking an internet address, removing a website or domain, or taking down of shared video, picture or messages

Question 25

Who are those who are ineligible for parole under this law?

Answer 25

(1) An offender who is a recidivist;

(2) An offender who is a step-parent or COllateral relative within the third (3rd) degree of consanguinity or affinity having control or moral ascendancy over the child; and

(3) Any offender whose victim died [or] suffered permanent mental, psychological or physical disability.

Question 26

knowledge check: who is a recidivist?

Answer 26

A recidivist is one who, at the time of his trial for one crime, shall have been previously convicted by final judgment of another crime embraced in the same title of this Code.

Question 27

What is the scope of application of this Act?

Answer 27

Juridical Persons (Sec 11)
“xxx any responsible officer of an enterprise who participated in the commission of the crime or shall have knowingly permitted or failed to prevent its commission. In addition, the corporation shall be fined a minimum of ten percent (10%) but not more than thirty percent (30%) of its net worth and its respective license or permit to operate may be revoked.”

Alien Offenders (Sec 12)
“If the offender is a foreigner, the offender shall be criminally prosecuted immediately. Thereafter, the offender shall be deported after serving sentence and will be permanently barred from re-entering the Philippines”

Question 28

What is the effect of an affidavit of desistance under this act?

sec 25

Answer 28

Cases involving OSAEC and CSAEM shall NOT be dismissed based on the affidavit of desistance executed by the victims or their parents or legal guardians.

Public and private prosecutors are directed to vigorously oppose and manifest objections to motions for dismissal.

Any act that unduly pressures the complainant to execute an affidavit of desistance shall be punishable under this Act.

Question 29

can Pedro, pressuring Juan to drop the case by executing an affidavit of desistance be liable for Online Sexual Abuse and Exploitation of Children/Materials?

Answer 29

Yes, section 25 provides that those who unduly pressures the complainant to execute an affidavit of desistance is liable and punishable under this act (RA 11930)