63 Ateneo LJ185
63 Ateneo LJ185
63 Ateneo LJ185
Citations:
Please note: citations are provided as a general guideline. Users should consult their preferred
citation format's style manual for proper citation formatting.
-- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and
Conditions of the license agreement available at
Online Sexual Exploitation of Children:
Applicable Laws, Casework Perspectives,
and Recommendations
Benjamin Lawrence Patrick E. Aritao*
John Stephen B. Pangilinan**
I. IN T R O D U C T IO N .......................................................................... 1 86
A.The Internet and Mobile Applications
B.Online Sexual Exploitation of Children in the Philippines:
Definition, Facts, and Figures
II. SURVEY OF LAWS AND JURISPRUDENCE RELATING TO OSEC... i9o
A. Domestic Laws andJurisprudence
B. International Instruments Useful in Combating OSEC
C. Synthesis
III. PROCESS OF PROSECUTING AND HANDLING OSEC CASES ........ 205
A. Receipt of Reports and Law Enforcement Investigations
B. Rescue Operations, Search Warrants, Arrests, and Preliminary
Investigations
C. Proceedings Before the Court
D. Judgment and Appeal
IV . R ECOMM EN DATION S.................................................................. 223
A. Law Enforcement
B. Prosecutorial Concerns
I. INTRODUCTION
The arc of the moral universe is long, but it bends toward justice.
i. Mychal Denzel Smith, The Truth About 'The Arc Of The Moral Universe',
available at https://www.huffingtonpost.com/entry/opinion-smith-obama-
king-us_5a5903eoe4bo4f3c55a252a4 (last accessed Aug. 31, 2018).
2. Andy Brown, Safe from harm: Tackling online child sexual abuse in the
Philippines, available at https://blogs.unicef org/east-asia-pacific/safe-harm-
tackling-online-child-sexual-abuse-philippines (last accessed Aug. 31, 2o18).
3. See Lorna Patajo-Kapunan, Online sexual exploitation of children, Bus. MIRROR,
Mar. II, 2018, available at https://businessmirror.com.ph/online-sexual-
exploitation- of-children (last accessed Aug. 31, 2018).
4. International Justice Mission (JJM) Casework Data indicates at least 28o out of
327 rescued Online Sexual Exploitation of Children (OSEC) survivors were
victims of trafficking through online exploitation.
2018] ONLINE SEXUAL EXPLOITATION OF CHILDREN 187
and advanced digital technology lies parallel to the explosion of the child
pornography market."5
9. Id. at 297-98.
Io. The Internet is "an electronic communications network that connects computer
networks and organizational computer facilities around the world[.]" Merriam
Webster, "Internet", available at https://www.merriam-
webster.com/dictionary/Internet (last accessed Aug. 31, 208).
ATENEO LAW JOURNAL [VOL. 63:185
I6. OSEC being the term recommended in A Systematic Literature Review of the
Drivers of Violence Affecting Children: the Philippines by Child Protection
Network, the University of Edinburgh, and the University of the Philippines, in
partnership with UNICEF. See generally United Nations Children's Fund, A
2018] ONLINE SEXUAL EXPLOITATION OF CHILDREN 189
20. IJM data from 23 April 2001 to 30 June 2018 indicates less than five percent of
offline child sex trafficking victims were boys. At the end of 2014, the
percentage was even lower at approximately 3.55%.
ATENEO LAW JOURNAL [VOL. 63:185
21. An Act Expanding Republic Act No. 9208, Entitled "An Act to Institute
Policies to Eliminate Trafficking in Persons Especially Women and Children,
Establishing the Necessary Institutional Mechanisms for the Protection and
Support of Trafficked Persons, Providing Penalties for Its Violations and for
Other Purposes" [Expanded Anti-Trafficking in Persons Act of 2012], Republic
Act No. 10364 (2012).
22. An Act to Institute Policies to Eliminate Trafficking in Persons Especially
Women and Children, Establishing the Necessary Institutional Mechanisms for
the Protection and Support of Trafficked Persons, Providing Penalties for Its
Violations and for Other Purposes [Anti-Trafficking in Persons Act of 20031,
Republic Act No. 9208 (2003).
2018] ONLINE SEXUAL EXPLOITATION OF CHILDREN 191
The element of means has two classes. The first class of means pertains to
those that were employed directly to the victim, i.e., threat, use of force,
coercion, abduction, fraud, deception, abuse of power or of position, or
taking advantage of the victim's vulnerability.26 The second class of means
pertains to those that were employed to achieve the consent of the person
having control over the victim, i.e., through giving or receiving of payments
or benefits.27 When the victim is a child and the act involved is either
recruitment, transportation, transfer, harboring, adoption, or receipt of the
child for purposes mentioned, the element of means is dispensable when it
8
does not exist in the facts.2
27. Id.
28. See Expanded Anti-Trafficking in Persons Act of 2012, § 3 (a), para. 2. This
definition of trafficking in persons is an adoption of Article 3, Paragraph (c) of
the Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially
Women and Children, Supplementing the United Nations Convention Against
Transnational Organized Crime. It must be noted, however, that the definition
of a child in the Protocol is only one who is below I8 years old, but Philippine
Law includes those who cannot take care of themselves in the definition of a
child. See Protocol to Prevent, Suppress, and Punish Trafficking in Persons,
Especially Women and Children, Supplementing the United Nations
Convention Against Transnational Organized Crime adopted Nov. 15, 2000,
U.N. Doc. A/RES/55/25, 2237 U.N.T.S. 319, art. 3 (c) & Anti-Trafficking in
Persons Act of 2003, § 6 (a).
ATENEO LAW JOURNAL [VOL. 63:185
53- Id. § 4.
54. Compare Anti-Child Pornography Act of 2009, § 4 (a) with Anti-Trafficking in
Persons Act of 2oo3, § 4 (a) (as amended).
ATENEO LAW JOURNAL [VOL. 63:185
longer be convicted for violating the Revised Penal Code, and vice versa,
68
because it would amount to double jeopardy.
68. BOADO, supra note 6I, at 173 (citing People v. Abay, 58o SCRA 235 (2009)).
This is subject to the waiver of the accused against double jeopardy. This will
be further discussed below.
69. An Act Revising the Penal Code and Other Penal Laws [REVISED PENAL
CODE], Act No. 3815 (1932) (as amended).
70. Id. art. 266-A (i) (d).
71. Id. art. 266-A (2).
72. Id. art. 336. See also REVISED PENAL CODE, art. 335. This act of lasciviousness
includes masturbation, taking off the child's clothes, and fondling of child's
breast. See Ricalde, 747 SCRA at 564 (citing Garingarao v. People, 654 SCRA
243, 254 (2011) & People v. Chingh, 645 SCRA 573, 587 (2011)).
73. REVISED PENAL CODE, art. 201 (2) (b). See also Gonzalez v. Kalaw-Katigbak,
137 SCRA 717 (1985) (on the standard in determining whether a material is
obscene).
2018] ONLINE SEXUAL EXPLOITATION OF CHILDREN 201
i.Budapest Convention
On i9 February 2018, the Philippine Senate concurred in the ratification of
the Budapest Convention on Cybercrime75 (Budapest Convention).7 6 The
Budapest Convention enumerates the duties of Parties in assisting another
State-Party on the prosecution of cybercrime offenses.77 These provisions,
except those pertaining to the general principles of mutual assistance,7 8 only
apply when there are no existing treaties between two States on mutual
assistance on the prosecution of cybercrime offenses.79
Under the provisions on mutual assistance, each State Party must have a
central authority or authorities that will be responsible for the sending,
receiving, and acting on requests for assistance.S° A Party being requested
(Requested Party) for assistance may refuse to do so if the assistance would
prejudice the pending criminal investigation or proceeding conducted by the
Requested Party. 8' The Requesting Party may also request that the action of
8
the Requested Party be kept in confidence. 2
"In the event of urgency, requests for mutual assistance[,] or
communications related thereto[,] may be sent directly by judicial authorities
of the [R]equesting Party to [the judicial] authorities of the [R]equested
74. See gererally Gonzalez, 137 SCRA (on what constitutes an obscenity).
75. Convention on Cybercrime, operedfor signature Nov. 23, 2001, ETS No. i85
[hereinafter Budapest Convention].
76. See Senate of the Philippines, Senate Concurs in Ratification of Cybercrime
Convention, Agreement Establishing AMRO, and Double Taxation Avoidance
Treaties, available at http://www.senate.gov.ph/press-release/2oi8/0219-
legardai.asp (last accessed Aug. 31, 2018).
77. Budapest Convention, supra note 74, arts. 25-30. OSEC is included in the
cybercrime offenses in the Budapest Convention.
78. Id. art. 25, I-5.
79. Id. art. 27, I.
A Party may also request another Party to conduct searches and seizures
and/or preservation of data with respect to a cybercrime offense.8 5 The
8 6
Requested Party may refuse the request if it requires dual criminality.
The Philippines has not adopted the use of the Guidelines through any
formal act of legislation or administrative circular. It is, however, submitted
that the Guidelines can be seen as helpful in formulating child-protective
language. That said, during criminal litigation, technical terms as used and
defined in statutes or the Revised Penal Code must prevail over the
Guidelines in the event of a conflict.
3. Mutual Legal Assistance Treaties
The Philippines entered into different bilateral treaties on mutual legal
assistance on criminal matters. 9' These treaties recognize transnational
crimes, among which is OSEC. As most customers of OSEC reside outside
the Philippines, cooperation between the State where demand for child
pornography is generated and the State where the supply for child
pornography is produced is necessary to end OSEC.
For example, the Mutual Legal Assistance on criminal matters between
the United Kingdom of Great Britain and Northern Ireland and the
Republic of the Philippines92 provides that "[d]ocuments, transcripts,
records, statements, and other materials shall be exempted from any
[legalization] requirements, including certification or authentication by
consular or diplomatic officers." 93 A Requesting State may request that those
materials being requested be authenticated, and the certification of the
Central Authority of the Requested State is sufficient for authentication.94
The general rule therefore is that documents and other materials transmitted
by a Requested State is deemed to be authenticated unless the Requesting
State so requires. Applying the law to OSEC cases, when a customer of
OSEC living in the United Kingdom (UK) is prosecuted there, all
documents that were authenticated and admitted in a UK court are
91. See, e.g., Mutual Legal Assistance on Criminal Matters between the United
Kingdom of Great Britain and Northern Ireland and the Republic of the
Philippines, U.K.-Phil., Sep. 18, 2009, 33 U.K.T.S. i; Treaty Between the
Government of the United States of America and the Government of the
Republic of the Philippines on Mutual Legal Assistance in Criminal Matters,
U.S.-Phil., Sep. 5, 1995, Treaty Doc. 104-18 [hereinafter Mutual Legal
Assistance Treaty Between US and Philippines]; & Treaty Between Australia
and the Republic of the Philippines on Mutual Assistance in Criminal Matters,
Ausd.-Phil., Apr. 28, 1988, 37 A.T.S.
92. Mutual Legal Assistance on Criminal Matters between the United Kingdom of
Great Britain and Northern Ireland and the Republic of the Philippines, U.K.-
Phil., Sep. 18, 2009, 33 U.K.T.S. i.
93. Id. art. 7, I.
94. Id. art. 7, 2.
ATENEO LAW JOURNAL [VOL. 63:185
C. Synthesis
A constellation of local laws punishing OSEC signifies the strong child-
protective policies in Philippine law, utilizing the best interests of the child as
a core guiding principle.97 Together with the international instruments, these
laws form a framework for domestic and cross-border collaboration for
child-protective outcomes: victim rescue and recovery, as well as perpetrator
accountability.
Human trafficking, child pornography, cybercrime, and special
protection against abuse laws do not define OSEC as an offense per se, but
the acts involved in OSEC are defined and punished as crimes by these laws.
The Budapest Convention mainly provides for inter-country coordination in
the prosecution of cybercrime offenses, which includes OSEC. The
Luxembourg Terminology Guidelines serve as a helpful reference in the
formulation of child-protective language, but in criminal cases, prosecutors
must use the technical terms under local statues.
95. Mutual Legal Assistance Treaty Between US and Philippines, supra note 9o, art.
9, 3-
96. Id. art. 9, 3. See also Mutual Legal Assistance Treaty Between US and
Philippines, supra 9o, art. 9, I & 2.
97. See Special Protection of Children Against Abuse, Exploitation, and
Discrimination Act, § 2.
2018] ONLINE SEXUAL EXPLOITATION OF CHILDREN 205
i. Domestic Referrals
At least 45 domestic referrals led to collaborative child-protective operations
as of June 20i8.99 These were prioritized due to the identification of victims
in clear danger of ongoing OSEC.
2. International Referrals
Fifty-two international referrals have produced successful child-protective
operations as of June 2018. At the current response rate, only a small
percentage of referrals (which, on average, can reach thousands per month)
can be acted upon at any given time, and priority is given to those with
identified victims in present danger.
3. Self-Generated Cases
To date, law enforcement agencies conducted 27 IJM-supported operations
as a result of self-generated leads.
Once an investigation ripens into a possible operation, law enforcement
takes action through one of three strategies detailed below.
a. Entrapment
The leading case on entrapment for human trafficking cases, and by
default, most OSEC cases involving entrapment of local facilitators, is People
v. Casio. Casio emphasized entrapment as a necessary and valid tool to
apprehend human traffickers.100 The Court, in Casio, declared that flexibility
is a trait of good police work.' 0' In line with Casio, law enforcers have
utilized entrapment for time-sensitive operations with the goal of
immediately stopping ongoing online sexual exploitation of children.
A further development on entrapment operations was given by the case
of People v. Villanueva.10 2 In Villanueva, the Court stated that the arresting
officer in an entrapment operation must only be satisfied in his or her mind
that a crime is being committed to conduct an arrest.103 This doctrine is
helpful in conducting the arrest in livestream OSEC cases because the
arresting officers need not wait for an actual sexual act to occur before
conducting the arrest; what is important is that the circumstances are
conclusive enough for the arresting officer that a crime is probably being
committed or is about to be committed.10 4
b. Search Warrants
Search warrants, on the other hand, have proven useful when (r)
entrapment is not possible or (2) further evidence is sought after the fact of
arrest.
Further, search warrants, while conceptually unable to provide basis to
arrest per se, may lead law enforcers to discover an ongoing crime. In such a
situation, they may apprehend the suspect found to be in possession of child
abuse materials in accordance with Rule 113, Section 5 of the Rules of
Court on warrantless arrests.'0 5 In one case, the National Bureau of
Investigation (NBI) served a search warrant on a suspect and found dozens of
hard drives containing child pornography as well as ongoing distribution of
child pornography through his home network."' 6 They arrested him
immediately. 107
c. Combination
A combination of entrapment and search warrant entails the use of both
tools in succession - entrapment and then service of search warrant, or the
use of the warrant to obtain evidence in the event the entrapment is not
successful.
to9. Id.
iio. Id.
ATENEO LAW JOURNAL [VOL. 63:185
4. Aftercare of Victims
When an entrapment operation on OSEC cases is conducted, the rescue of
the victims is necessarily included."5 This rescue is conducted, whenever
possible, "with the assistance of the [Department of Social Welfare and
iii. See People v. Ang Chun Kit, 251 SCRA 66o, 671-72 (1995) (where the Court
held that the signing of an accused of a Receipt of Property Seized that indicates
that shabu was retrieved in the search amounts to an admission and was
inadmissible if he was not assisted by counsel).
112. Data based from IJM assisted cases, as recorded through its IJM Casework
Tracking and Management System.
113. See WILLARD B. RIANO, CRIMINAL PROCEDURE (THE BAR LECTURE SERIES)
202 (2016 ed.) (citing REVISED RULES OF CRIMINAL PROCEDURE, rule 112,
6 & Beltran v. People, 523 SCRA 318, 332 (2007)).
114. REVISED RULES OF CRIMINAL PROCEDURE, rule 112, § 7, para. 3.
115. See Rules and Regulations Implementing Republic Act No. 9208, Otherwise
Known as the "Anti-Trafficking in Persons Act of 2003", Republic Act No.
92o8, art. VIII, § 32 (2003).
2018] ONLINE SEXUAL EXPLOITATION OF CHILDREN 209
a. Information
must also be stated in the Information. 125 An alias or an "also known as" may
also be used in OSEC cases if the accused used a username in his or her
transactions.12 6 The victim's name may be concealed in the Information
considering that it is a matter of public record.127
The purpose of an Information is to satisfy the right of the accused to be
informed of the nature and the cause of the accusation against him or her. 128
It is not necessary that the Information contains all the details of the
prosecution's theory for it to be valid, but it must be of "such particularity as
to apprise the accused, with reasonable certainty of the offense charged to
enable the accused to suitably prepare for his [or her] defense." 129 It must be
noted that an Information must only contain ultimate facts and not
0
evidentiary facts.'3
Upon receipt of the Information(s) and supporting documents thereto,
the Court must determine whether there is a probable cause that the accused
named in the Information has committed the offense.'3' If the judge finds
probable cause, he or she must issue a commitment order addressed to the
jail warden if the accused is already under the custody of law enforcers or a
warrant of arrest if the accused is at large or is not yet arrested. 132 Ifthe judge
finds no probable cause, he or she may either dismiss the case without
prejudice or may require the public prosecutor to submit more evidence in
support of the accusation against the accused.33
13o.Enrile v. People, 766 SCRA I, 36 (2015). Ultimate facts are those that "the
evidence will prove at the trial" while evidentiary facts are those that support
"the existence of some other alleged and unproven fact." Id. (citing Salita v.
Magtolis, 233 SCRA I0, 1O5 (1994) & Philippine Bank of Communications v.
Trazo, 500 SCRA 242, 256-57 (2oo6)).
133. Id.
ATENEO LAW JOURNAL [VOL. 63:185
If an accused fails to move for the specification of the details desired via a
Motion for Bill of Particulars, he or she deprived "of the right to object to
evidence that could be introduced and admitted under an Information of
more or less general terms but which sufficiently charges the accused with a
definite crime."142
141. Id.
142. Id. at 45 (citing People v. Marquez, 347 SCRA 510, 515 (2000)).
2018] ONLINE SEXUAL EXPLOITATION OF CHILDREN 213
a. Arraignment
148. PHIL. CONST. art. III, § 13. See also Anti-Trafficking in Persons Act of 2003,
Io (e) (as amended).
149. REVISED RULES OF CRIMINAL PROCEDURE, rule I14, §§ 5 & 8.
I 5 O. Id. rule 114, § 8.
I 5 I.Id. rule 114, § 2.
152. See gerterally Yap, Jr. v. CA, 358 SCRA 564 (2001).
ATENEO LAW JOURNAL [VOL. 63:185
b. Plea Bargaining
Plea bargaining is "a process whereby the accused and the prosecution work
out a mutually satisfactory disposition of the case subject to court
approval."'5 8 It is a concession between the prosecution and defense to avoid
potential losses and to expedite the criminal proceeding.' 59 It may be made
either during the arraignment, pre-trial, or after the prosecution rested its
6
case. 160 The plea is subject to the trial court's discretion.' '
A plea of guilty may be had on a lesser offense provided that (r) the
offense is necessarily included in the offense charged, and (2) the plea is made
with the consent of both the offended party and the prosecutor. 162
c. Pre-TrialProcess
During the pre-trial, the parties are obliged to stipulate the facts of the case,
mark their respective evidence, waive, if any, the objections to admissibility
of evidence, and other matters necessary that will promote a fair and
expeditious trial of the criminal and civil aspects of the case, such as plea
bargaining. 6 3 If there is any agreement made during the pre-trial, the
agreement must be (i)made in writing and (2) signed by the accused and his
or her counsel.' 64 "All proceedings during the pre-trial shall be recorded, the
transcripts prepared and the minutes signed by the parties and/or their
counsel.' 65 Plea bargaining should be considered at pre-trial, in accordance
66
with the Supreme Court Guidelines on Pre-trial.'
5. Trial
In the trial phase of any criminal case, the parties present their evidence. The
sequence begins with the prosecution presenting its evidence, followed by
defense evidence, and if needed, prosecution rebuttal evidence, and defense
sur-rebuttal evidence. 67
Since the criminal case of OSEC is usually initiated via entrapment
operation, the case of People v. Villanueva is instructive. The case of
Villanueva discussed the evidence necessary in proving the allegations in the
Garcia, 333 Phil. 254, 258 (1996); & People v. Villarama, Jr., 285 Phil. 723, 731
(1992))-
172. See, e.g., International Justice Mission, The Youngest Survivor We've Ever Met
is Now Safe from Cybersex Trafficking (where the victim of OSEC is a ten-
month old baby), available at http://news.ijm.org/the-youngest-survivor-weve-
ever-met-is-now-safe-from-cybersex-trafficking (last accessed Aug. 31, 2018) &
ABS-CBN News, Nanay arestado dahil sa paggamit ng anak sa Cybersex,
available at http://news.abs-cbn.com/news/o4/27/i8/nanay-arestado-dahil-sa-
paggamit-ng-anak-sa-cybersex (last accessed Aug. 31, 2018).
173. People v. Rodriguez, G.R. No. 211721 (2017) (unrep).
174. Id.
I 7 5 . Id.
176. Id.
2018] ONLINE SEXUAL EXPLOITATION OF CHILDREN 217
The Authors submit that Rodriguez does not explicitly require victim
testimony for a prosecution to be successful, but instead highlights the
evidentiary void that results from a lack elemental proof.
In the presentation of evidence in an OSEC case, the Rules on the
Examination of a Child Witness and the Rules on Electronic Evidence
apply.
178. Id. § i.
179. See RULE ON EXAMINATION OF A CHILD WITNESS, §§ 13, 25, & 27.
I8o. RULE ON EXAMINATION OF A CHILD WITNESS, § 13.
I8I.Id. § 13, para. I.
182.Id. § 13, para. 2.
I8 3 .Id. § 26 (a).
apply for the live-link television testimony taking of the child witness.185
When the guardian ad litem applies for live-link television testimony taking,
he or she "shall consult the prosecutor or counsel and shall defer to the
judgment of the prosecutor or counsel regarding the necessity of applying for
an order.' 8 6 If the guardian ad litem finds that the decision of the prosecutor
or counsel could cause serious emotional trauma to a child, the guardian ad
litem himself or herself may apply for the live-link television testimony
taking. 1'7
The Court, upon the application of the prosecutor, counsel, or guardian
ad litem and upon finding that the child will not be able to testify in open
court, may order the deposition of the child be taken and preserved by
videotape. 88 In the deposition taking, the judge will preside over the
deposition taking and any objections to the testimony or evidence in the
deposition must be stated and ruled upon at the time of the deposition
taking.'89 This rule is similar to the rule when a witness for the prosecution
cannot attend the trial but with broader grounds, i.e., only when the judge is
satisfied that the child witness will not be able to testify in open court for
whatever reason, e.g., re-traumatization of the child.190
In the deposition taking, the accused may be excluded therefrom if the
court finds that the accused's physical presence would make the child unable
to testify.'9' In such case, the Court may order (i)to have the testimony be
made via a live-link television or (2)to exclude the accused only from the
view of the child. 92
A recorded interview of a child with an investigator may be admitted as
evidence, thereby dispensing with the requirement of the child to testify in
Court, if the following conditions are met:
187. Id.
I88. Id. § 27 (b). The manner of application by the guardian ad litem is the same as
the process in Section 25 (a)of the rules. Id.§ 27 (a).
189 .Id.§ 27 (c).
(a) The child witness is unable to testify in court on grounds and under
conditions established under section 28 (c).
(b) The interview of the child was conducted by duly trained members of
a multidisciplinary team or representatives of law enforcement or
child-protective services in situations where child abuse is suspected so
as to determine whether child abuse occurred.
(c) The party offering the videotape or audiotape must prove that:
The person who conducted the interview shall be available at the trial
for examination by any party, and all parties may examine the videotape or
audiotape and its written transcript before the videotape or audiotape is
offered in evidence. 194
The Supreme Court has clarified that the Rules on Electronic Evidence
applies to criminal cases.1 95 This Section discusses the core characteristics of
electronic documents, their admissibility, and methods of authentication.
The core characteristics of an electronic document as defined under the
rules is that (i) it is information or a representation of information, data,
figures, symbols, or other modes of written expression; (2), it bears a
I 9 3 .Id. § 29.
194. Id.
195. See generally People v. Enojas, 718 SCRA 313, Ic (2014) (applying AM Ol-7-
oI-SC September 24, 2002, modifying the Rules on Electronic Evidence to
apply to criminal cases).
220 ATENEO LAW JOURNAL [VOL. 63:185
6. Demurrer to Evidence
If the prosecution failed to prove the guilt of an accused after it presented its
evidence, the accused may move for or the Court may motu proprio, after
giving the prosecution the opportunity to be heard, decide on a demurrer to
evidence.204 A demurrer to evidence is a decision based on the merits
wherein, if granted, the Court acquits an accused because the prosecution
196. RULE ON ELECTRONIC EVIDENCE, A.M. No. oI-7-oI-SC, rule 2, § I (h) (July
17, 2001).
19 7 .Id. rule 3, § 2.
I 9 8.Id. rule 4, I.
199. Id. rule 4, § 2. Digital signatures and Supreme-Court approved authentication
are also explicitly allowed.
200. Id. rule i i, § i.
201. Id.
202. RULES ON ELECTRONIC EVIDENCE, rule i i, § i.
203. 1989 REVISED RULES ON EVIDENCE, rule 130, § I.
failed to prove guilt beyond reasonable doubt.205 The Motion for Demurrer
to Evidence is filed after the prosecution rests its case.2o6 It may be filed with
a leave of court if the accused desires to present evidence if the motion is
denied or without a leave of court if the accused does not want to present
evidence.2°7
i. Judgment
The judgment is the Court's determination whether the accused is guilty of
a criminal offense.211 In cases where there is a variance between allegation
and proof, the court may convict the accused of a necessarily included
offense, if proven.2 1 ' This type of conviction occurs when the prosecution
failed to prove the offense charged in the Information but was able to prove
an offense necessarily included in the offense charged.2 1 2 In accordance with
due process, the rules of court will not allow conviction of an offense -
even if proven - if the information charges a different, but necessarily
included offense. In such cases, conviction is limited to the offense that has
been properly charged in the Information, and not the "larger" offense, even
21 4
ifproven.213 This is known as the Variance Doctrine.
213. Id.
214. Id.
ATENEO LAW JOURNAL [VOL. 63:185
The case of People v. Chi Chan Liu 1 5 can be used to convict an accused
of illegal possession of child pornographic material if the prosecution fails to
prove the distribution of such materials but was able to prove possession
which is necessarily included in the offense of distribution. This will be
discussed further in Part IV.
The logic of Ricalde, cited earlier, is also applicable to an OSEC case,
when combined with the principle that the recital of facts in the Information
determines the nature of an offense.2, 6 For instance, if the accused is charged
with distribution of indecent shows or pornography under the Revised Penal
Code in the caption, but the Information alleges that the material depicts a
child involved in sexual activity, the accused may be convicted of
distributing child pornography under the Anti-Child Pornography Act even
if that offense is not specifically cited. In such a case, the facts constituting
the violation of the Anti-Child Pornography Act are present in the
Information, and these facts take precedence over the caption of the
Information.
2. Appeal
An appeal throws the entire case open for review. 217 Even if the accused did
not raise a particular issue, the appellate court can review any or all issues of
the case.218 If the accused was convicted in the trial court for a lower offense,
he or she may be convicted of a higher offense because he or she is deemed
219
to have waived the defense of double jeopardy.
In OSEC cases, if the trial court erred in convicting the accused, for
example, for simple TIP only, the appellate court may change the ruling and
convict the accused for qualified TIP. If, however, the trial court
erroneously acquitted the accused for an offense within the scope of OSEC,
the appellate court cannot revise or review such acquittal via an appeal but
only through a Petition for Certiorari under Rule 65.220 In the petition, the
218. Id.
219. Id at 515.
prosecution, through the Solicitor General, must allege the acquittal by the
trial court was tainted with grave abuse of discretion amounting to lack or
excess of jurisdiction.221
IV. RECOMMENDATIONS
A. Law Enforcement
Collaborative anti-OSEC casework between law enforcement partners and
IJM reveals a need to focus on three structural concerns: (r) headcount, (2)
sustainable funding for OSEC law enforcement, and (3) operation-
supportive training, where hours used for capacity-building concretely
support child-protective operations and related skills. Further, data from
collaborative casework supports continued use of two investigative strategies:
use of valid entrapment operations and further evidence collection even after
inquest, preliminary investigation, or victim turnover to aftercare authorities,
as the process of forensic analysis yields better evidence when approached as
a continuum.
The Philippine National Police (PNP) and the National Bureau of
Investigation (NBI) have both actively addressed the issue of OSEC through
collaborative casework, acting on both international and domestic OSEC
referrals in the course of their work.
Within the PNP, the Women and Children's Protection Center
(WCPC) handles trafficking cases through the Anti-Trafficking in Persons
Division (ATIPD). To respond to the rise of OSEC, the WCPC also
established the Internet Crimes Against Children (ICAC) office. Meanwhile,
the NBI investigates human trafficking (including OSEC) cases through its
Anti-Human Trafficking Division (AHTRAD).
IJM records indicate that both the WCPC, NBI, and NBI AHTRAD
have faced challenges in fully staffing their teams. Despite these
complications, the WCPC and AHTRAD conducted collaborative child-
protective operations with great success, having rescued more than 72% of all
OSEC victims identified through collaborative casework with IJM.
As of June 2018, the WCPC performed 39 child-protective operations,
resulting in 56 arrests, 54 criminal cases, and the rescue of 133 OSEC
victims. 17 convictions have resulted from PNP WCPC related operations.
NBI AHTRAD - a smaller team with national jurisdiction - performed
221.1d. at 144-45.
ATENEO LAW JOURNAL [VOL. 63:185
i. Manpower
Given the scale of the OSEC problem, the Authors' first recommendation is
to ensure the WCPC, NBI AHTRAD, and other law enforcement agencies
combatting OSEC - NBI Computer Crimes Division, PNP Anti-
Cybercrime Group - are fully staffed. Sustainable OSEC law enforcement
requires rescuers and investigators in sufficient numbers.
2. Budget
Sustainable OSEC law enforcement also requires sufficient resources, and for
those resources to go to high-performing units. The WCPC and
AHTRAD's compelling child-protective outcomes provide strong basis to
increase their respective budgets. In 2017, the legislature provided additional
resources for the WCPC to better combat OSEC. 224 NBI AHTRAD is
likewise a strong candidate to receive resources as they have the track record
of stopping OSEC abuse and rescuing children.
3. Time
In addition to increasing bodies and budget, law enforcement agencies must
be given time to focus on their core deliverables - child-protective
investigations and operations. Along with managing limited headcount and
resources, law enforcement agencies must guard their time to perform child-
protective operations. Time for investigation is often inversely proportional
to time for non-essential training.
With the urgency and volume of OSEC cases, the Authors recommend
finding a middle ground where successful trainings are defined as operation-
supportive and application-based.
222. JM's Casework Tracking and Management System Records (on file with the
Authors).
223. Id.
224. Loren B. Legarda, Senator of the Republic of the Philippines, Ending Online
Sexual Exploitation of Children, Privilege speech at the Senate's Session Hall
(Mar. 14, 2018) (transcript available at http://www.senate.gov.ph/
press-release/20 8/0314_legardai.asp (last accessed Aug. 31, 20i8)).
2018] ONLINE SEXUAL EXPLOITATION OF CHILDREN 225
225. See Maan Macapagal, 2 mothers peddling children for online porn arrested in
Cebu, Davao, available at http://news.abs-cbn.com/news/o6/15/18/2-mothers-
peddling-children-for-online-porn-arrested-in-cebu-davao (last accessed Aug.
31, 2018).
B. Prosecutorial Concerns
The Authors recommend the following structural enhancements: (I)
institutional support for plea bargains, (2) investments to make digital
evidence more accessible, and (3) self- care for prosecution teams. Further,
the Authors recommend the following practices: (i) maximizing child-
a. Speed
OSEC casework data confirms that plea bargains are faster than full trials.
The average length of time to conclude an OSEC case by plea bargain is 19
months, while the average full OSEC trial takes more than twice as long at
three years and io months. The fastest conviction by plea bargain as ofJune
2018 was achieved in 89 days, while the fastest conviction by full trial was
more than seven times longer, concluding a little less than two years from
date of filing.231 Given the overloaded court dockets across the Philippines,
plea bargaining is an efficient remedy in OSEC cases.
b. Child Protection
Under Philippine law, the best interests of the child are paramount. OSEC
casework data shows that plea bargains protect children from unnecessary
appearance in court and adversarial proceedings with their family members.
Many of the recent IJM-supported OSEC cases concluded by plea bargain
spared a majority of the victims from having to testify in court. The speed at
which justice can be delivered by plea bargaining increases the chances of
victim's closure and recovery. Therefore, the prosecution should maximize
each opportunity to spare children from testifying in court and limit their
participation to cases of absolute need.
231. JM's Casework Tracking and Management System Records (on file with the
Authors).
232. REVISED RULES OF CRIMINAL PROCEDURES, rule II6, § i (I).
233.Supreme Court, Re: Guidelines to be Observed by the Trial Court Judges and
Clerks of Court in the Conduct of Pre-Trial and Use of Deposition-Discovery
ATENEO LAW JOURNAL [VOL. 63:185
use of plea bargains, mandating parties to consider plea bargaining at the pre-
trial conference.234 This approval is repeated in OCA Circular 101-2017,
where plea bargaining forms part of the considerations during arraignment
and pre-trial.235
It is therefore the Authors' recommendation that in OSEC cases,
prosecutors maximize the availability of plea bargains as a child-protective
measure that also ensures conviction with higher speed and certainty. In
order to provide guidance and consistency in the use of plea bargains, the
Department of Justice may provide a framework for the National
Prosecution Service, ensuring that agreements to enter into plea bargains are
done fairly and in accordance with law. The framework must match the
existing rules and guidelines of the Supreme Court, which allow for
flexibility and fairness.
d. Self-carefor prosecutors
As with many front-liners handling OSEC evidence, prosecutors will need
to apply principles of self-care to prevent burnout and mental fatigue. The
Department of Justice may consider resourcing task forces to access self-care
resources.
24I.An Act Defining Violence Against Women and Their Children, Providing for
Protective Measures for Victims, Prescribing Penalties Therefore, and for Other
Purposes [Anti-Violence Against Women and Their Children Act of 20041,
Republic Act No. 9262 (2004).
242. Compare Anti-Violence Against Women and Their Children Act of 2004, § 8
with Anti-Trafficking in Persons Act of 2003; Anti-Child Pornography Act of
2009; & Special Protection of Children Against Abuse, Exploitation, and
Discrimination Act.
243. See REVISED PENAL CODE, art. oo & REVISED RULES OF CRIMINAL
PROCEDURE, rule iii, § i & rule 127, § I.
The rights of an OSEC victim include the right to be free from any
6
form of abuse under R.A. No. 761o and free from psychological injury.24
Freedom from abuse of an OSEC victim is a vast concept, which includes
the prevention of any contact by the victim and the perpetrator to avoid
psychological injury. 2 4 7 The act that may be subject of an injunction is the
contacting of a child, and the grave injury would be the trauma that the
contact or encounter would give to the child.
A Temporary Restraining Order (TRO) is basically a preliminary
injunction before the issuance of the WPI.24 8 The Executive Judge may issue
it if there is an extreme urgency involved in a case upon the filing of the case
and an ex parte motion of the offended party, and the TRO will have
immediate efficacy upon issuance.249 A presiding judge may also issue a
TRO if the character of the urgency is not extreme (but great and
irreparable injury is imminent) upon the filing of the case and an ex parte
motion of the offended party; the TRO is effective upon the receipt of the
accused .25 ° An issuance made by the Executive Judge must be heard by the
Presiding Judge within 72 hours upon the TRO's effectivity to determine
whether the TRO should be extended to a maximum of 2o days, which
already includes the 72-hour period.251 Within the said 2o days, the Court
25 2
must decide whether the issuance of a WPI is proper.
It is suggested that a separate application for a TRO and a WPI to
prevent the accused from contacting or being in close proximity to the
victim as a response to the application for bail be made rather than having it
become a condition for the grant of bail. This is so because bail is an
assurance that the accused will attend the trial of the criminal proceeding and
not a remedy for the offended party.253
254.Id. at 528-29.
255.REVISED RULES OF CRIMINAL PROCEDURE, rule 127, § 2. See also RIANO,
supra note 113, at 528-29.
256. REVISED RULES OF CRIMINAL PROCEDURE, rule 127, § 2.
257. Id. & rule 114, § i. See also RIANO, supra note 113, at 3o6.
258. REVISED RULES OF CRIMINAL PROCEDURE, rule 114, § 21 & rule 127, § 2.
2 5 9 . Id. rule 114, § i & rule 127, § 2.
2018] ONLINE SEXUAL EXPLOITATION OF CHILDREN 233
Another remedy available is the use of freeze orders under the Anti-
Money Laundering Act26o to prevent the liquidation or withdrawal of the
accused's money in a financial institution, which can be used to satisfy the
civil liability of the accused and to prove the existence of transaction that
relates to the exploitation of the child victim.2 6 1 A freeze order is an
injunction prohibiting a person from disposing his or her assets that is subject
of the order. A freeze order is issued upon an ex parte petition filed by the
Anti-Money Laundering Council to the Court of Appeals (CA) and upon
the finding of probable cause by the CA that the money or property sought
to be frozen is used for any of the unlawful activities mentioned by the
law.2 62 The freeze order has a life of six months and cannot be a subject of a
TRO or a WPI, except when the Supreme Court ordered a TRO or a WPI
6
against the freeze order.2 3
i. Proceedings in Court
Judges are required by the Constitution and the New Code of Judicial
Conduct to behave impartially.264 This requirement does not prevent judges
from considering the best interests of the child. Instead, judges may use the
articulated policies of our child protection laws as basis to allow child-
protective measures in every case. These measures may be administered
impartially, yet with due regard for the specific needs of each child.
In the case of People v. Chi Chan Liu, the Supreme Court held that the
illegal possession of illegal drugs is necessarily included in the crime of illegal
importation or sale of illegal drugs.2 65 Even if the accused was not charged
with illegal possession of illegal drugs, he or she is still liable for illegal
66
possession because it is necessary included in the offense of illegal sale.2
Applying the logic of Chi Chan Liu, a person who distributes a child
pornographic material may still be convicted for the illegal possession of
juvenile pornographic material under Section 4 (1) if the prosecution failed to
establish the elements constituting the distribution of child pornographic
material, because possession is necessarily included in distribution.
Applying the doctrine of Chi Chan Liu further to OSEC cases
concerning non-livestream materials, the accused may still be held liable for
illegal possession because he or she has either constructive or actual
possession of the materials.267 Possession is present because even if an accused
deletes the material in his or her computer system, he or she may still access
the same in another computer system. In livestream cases, possession is also
present because the accused has either an immediate physical possession or
68
control over the thing.2
It is therefore an error for a court to acquit the accused in an OSEC case
if a lesser included offense has been proven. For instance, if the prosecution
fails to establish the elements of distribution or sale of child pornographic
material, but possession has been duly proven, the law demands a conviction
for the lesser offense.
D. Further Studies
Further studies identifying current gaps will allow development of
evidence-based solutions. Researchers may consider the following avenues of
inquiry:
(i) Models of Care of OSEC survivors at different levels of
development;
V. CONCLUSION