G.R. No. 247348 - Dissenting Opinion

G.R. No. 247348, November 16, 2021,
♦ Decision, J-Lopez, [J]
♦ Separate Concurring and Dissenting Opinion, Leonen, [J]
♦ Dissenting Opinion, Caguioa, [J]
♦ Concurring Opinion, Lazaro-Javier, [J]
♦ Separate Concurring Opinion, Zalameda, [J]
♦ Dissenting Opinion, Gaerlan, [J]

CHRISTIAN CADAJAS Y CABIAS, PETITIONER, VS. PEOPLE OF THE PHILIPPINES, RESPONDENT.

The ponencia in the instant case affirms the conviction of petitioner Christian Cadajas y Cabias (petitioner) for the crime of child pornography under Section 4(c)(2) of Republic Act No. (RA) 10175,1 in relation to Sections 4(a) and 3(b) and (c)(5) of RA 97752 and sentences him to reclusion perpetua.3 The ponencia anchors petitioner's conviction on the finding that the conversation between petitioner and AAA4 through Facebook Messenger (FB) clearly showed that AAA was induced by petitioner to send him pictures of her private parts.5 The ponencia also finds unmeritorious petitioner's sweetheart defense for insufficiency of evidence and the claim that AAA consented to the commission of the act as immaterial given the proof of inducement on the part of petitioner.6 The ponencia further explains that minors are vulnerable to the cajolery of adults; thus, while minors, especially between ages 12 and 18, are curious about their sexuality, this does not mean that they are capable of giving rational consent to engage in any sexual activity.7 Thus, the ponencia concludes that, as parens patriea, the duty of the Court is to protect minors, like AAA, from abuse and exploitation of sexual predators.8

I dissent and vote to acquit petitioner. Affirming petitioner's conviction is in utter disregard of the Court's duty to uphold the constitutional presumption of innocence when, as in this case, the totality of the prosecution's evidence, as applied to the language and intent of the law defining and penalizing child pornography, fails to prove petitioner's guilt beyond reasonable doubt.

To be clear, a vote to acquit is not necessarily a vote against the protection of children. The duty to protect minors falls upon the State as a whole, not just the Judiciary, and a conviction is not synonymous with the protection of minors. Incarcerating otherwise innocent individuals is not the way to achieve a laudable government objective. Expand the coverage of penal provisions in pursuit of broad policy objectives may not always further the Court's duty to render justice and promote the rule of law.

The starting point in every criminal prosecution, and in every review of any decision in criminal cases, is that the accused has the constitutional right to be presumed innocent.9 This constitutionally guaranteed presumption assures the accused a fair, just and impartial trial. In the words of Justice Cruz in People v. De Guzman,10 "[t]he constitutional presumption of innocence is not an empty platitude meant only to embellish the Bill of Rights. Its purpose is to balance the scales in what would otherwise be an uneven contest between the lone individual pitted against the People of the Philippines and all the resources at their command."11 Thus, the presumption of innocence is overturned only when the prosecution, based on the strength of its own evidence, has proven beyond reasonable doubt the guilt of the accused with each and every element of the crime charged in the information.12

The requirement of proof beyond reasonable doubt necessarily means that mere suspicion of the guilt of the accused, no matter how strong, should not sway judgment against him or her.13 It also entails the court to study keenly every evidence on record, the applicable statute and jurisprudence, such that where two conflicting probabilities arise from the evidence and the law, the one compatible with the presumption of innocence will be adopted.14 This is because the fact that the evidence gave rise to conflicting explanations means that the evidence did not pass the test of moral certainty and would not suffice to support a conviction.15 To be sure, conviction must be upheld only when the conscience is satisfied, with moral certainty, "that on the defendant could be laid the responsibility for the offense charged; that not only did he [or she] perpetrate the act but that it amounted to a crime."16 Anything short of this, it is the right of the accused to be freed and the duty of the court to acquit him or her.17

Based on the foregoing principles, and considering the dearth of evidence to support a conviction, I find that the prosecution in this case failed to overcome petitioner's presumption of innocence.

Petitioner was charged with child pornography defined and penalized by RA 9775, as amended by RA 10175.

RA 9775 was enacted to combat the growing number of commercial and online sexual abuse and exploitation cases around the world, including the Philippines, particularly the creation, selling and distribution of pornographic images of children.18 RA 9775 was also the country's response to its commitment, under various international agreements, to protect the child from all forms of sexual exploitation, abuse and violence. Thus, the guiding principle of RA 9775 reads:

In his sponsorship speech during the deliberations of House Bill No. 06440, Representative Matias Defensor (Rep. Defensor) described the evils of child pornography as follows:

Rep. Defensor then proceeded to describe how the "menace" of child pornography has invaded the world through the internet; and that the proposed bill, now RA 9775, would equip our law enforcers to stop this threat:

Representative Darlene Antonino-Custodio, in her sponsorship, also recognized the proliferation of the "business" of child pornography in our country and how it has victimized and abused children:

From the very words spoken by the authors of RA 9775, it is clear that the passage of the law was intended to address child abuse and exploitation committed through the proliferation of online pornography in the country. Proponents of the law expressed great concern on how the internet has been used to lure children into the "business" of creating and producing pornographic materials and then subjecting them to abuse and exploitation by sexual perpetrators and predators. The use of internet technology made child pornography more pervasive and more difficult for government to investigate, monitor, and prosecute, given the lack of specific legislation at that time. Thus, to fill in gaps in legislation, Section 4 of RA 9775 defines a wide array of child exploitation and abuse by penalizing the entire "production process" of child pornography — from the luring, grooming and employing of a child to perform or create pornographic materials, to the production, distribution, and sale thereof and finally to willfully accessing and possessing the same.22 RA 9775 also punishes those who promote and assist in the creation and distribution of these pornographic materials, including the child's parent or legal guardian, film distributors, telecommunications companies and owners of malls, cinema houses and establishments.23

The thrust of RA 9775, therefore, is really to protect children from abuse and exploitation committed through child pornography by punishing pedophiles, sexual predators and those who provide assistance to them. Seen through this lens, it cannot reasonably be said that the act committed by petitioner in this case falls within the definition of the offense for which he is charged. Differently stated, the prosecution in this case failed to establish with moral certainty that petitioner abused and exploited AAA by inducing or coercing her to produce or create pornographic materials.

To recall, petitioner was charged with violation of Section 4(a) in relation to Sections 3(b) and (c)(5) of RA 9775, defined as follows:

Proceeding from the foregoing, for petitioner to be liable for child pornography under Sec. 4(a), the prosecution must be able to prove the following elements: (1) that the victim is a child; and (2) that the victim was induced or coerced by petitioner to perform in the creation of explicit sexual activity.

The minority of AAA is undisputed in this case. However, as to the second element of the crime, the evidence of the prosecution undeniably falls short of proving that AAA was coerced or induced by petitioner.

To prove the second element of the crime, the prosecution presented the FB conversation between petitioner and AAA.24 Having read the entirety of the FB conversation, I find that petitioner neither coerced nor induced AAA into sending him photos of her private parts.

To coerce means to compel by force or threat.25 There is coercion when there is improper use of power that compels another to submit to the wishes of one who wields it.26 On the other hand, induce means to entice or persuade another to take a certain course of action27 or to influence someone to do something that person otherwise would not have done or to not do something that person otherwise would have done.28 In other words, there is inducement when the words or pleas of the accused is the sole determining factor that moved the woman to engage in sexual activities with the accused.

In my reading of the FB conversation, I do not see any coercion or inducement done by petitioner. AAA was not coerced into sending the photos because, clearly, no threat or force was employed by petitioner that compelled AAA to do the same against her will. Moreover, in their respective testimonies, both AAA and her mother admitted that petitioner did not force or threaten AAA into sending the nude pictures.29

Neither was AAA induced by petitioner because it can easily be inferred from their FB conversation that AAA would nonetheless have wanted to send the photos even without petitioner prodding her. The following portions of the conversation between them are quite telling:

If AAA did not want to send petitioner the pictures, why did she tell petitioner that she was already nude before petitioner even asked for the pictures? Why did she also ask petitioner to send nude photos of himself, or why did she invite petitioner to meet the next day to show him in person her private parts? It is also quite telling why AAA would send pictures four consecutive times even if she kept telling petitioner that she did not want to.31 Clearly, the FB conversation raises too many questions and doubts on whether AAA was indeed induced or coerced by petitioner, or was she in fact willing to send the nude photos of her private parts. As such, there is reasonable doubt as to petitioner's guilt.

Furthermore, the Court must take into account that AAA herself admitted that petitioner was her boyfriend at the time of the incident and that she only broke up with him because her mother learned about it and was against their relationship.32 To my mind, this fact provides context to the afore-quoted conversation between petitioner and AAA — that the same was a candid, intimate and private conversation between two people in a relationship and not a conversation characterized by coercion or inducement to exploit or abuse AAA to engage in explicit sexual acts against her will.

Again, to emphasize, the overarching principle of RA 9775 is the protection of children from sexual abuse and exploitation committed through pornography. To achieve this purpose, RA 9775 penalizes pedophiles and sexual predators, including persons and institutions that facilitate the creation and production of pornographic materials. Here, based on the evidence presented by the prosecution, by no stretch of imagination can it be said that AAA was exploited or abused by petitioner into creating pornographic materials as contemplated by law. Clearly, the prosecution's evidence fell short of proving that the act committed by petitioner amounted to the offense charged against him.

In further justifying that petitioner's acts are punished by law, the ponencia alludes to the provision of RA 9775 that penalizes mere possession of pornographic materials for personal use or enjoyment.33

At the outset, I find that possession per se of pornographic materials does not automatically make a person liable under RA 9775. Such possession must be coupled with circumstances showing the requisite criminal intent to possess pornographic materials. Otherwise, persons who had inadvertently received nude photos in their social media accounts, emails or messenger applications, would already be liable under the law, which the law cannot be interpreted as having been its intent.

More importantly, petitioner is not charged with possession of pornographic materials. The Information filed against petitioner clearly charges him with violating Section 4(a) of RA 9775 for inducing or coercing AAA to send him pictures of her vagina and breasts, through Facebook Messenger using a mobile phone.34 It is a fundamental rule in criminal prosecutions that an accused may only be convicted of the crime with which he or she is charged. This proceeds from the accused's constitutional right to be informed of the nature and cause of accusation against him or her.35 Therefore, to hold petitioner liable just because his act appears to be covered by a different provision of the law is a blatant violation of this constitutional right

As I had earlier pointed out during the deliberations of this case, and now accepted by the ponencia, offenses under RA 9775 are crimes mala in se and not mala prohibita. Thus, proof of intent to abuse and exploit a child through the creation of pornographic materials is indispensable to hold petitioner liable for the crime charged.

What distinguishes a crime mala in se from an offense malum prohibitum is the inherent immorality or vileness of the act itself. Thus, while generally, mala in se felonies are defined and penalized in the Revised Penal Code, acts that are inherently immoral are deemed mala in se even if they are punished by a special law.36

As any other form of child exploitation and abuse, child pornography as defined and penalized under RA 9775, is inherently wrong. It corrupts the innocence of a child and damages him or her physically, mentally and emotionally. In fact, child pornography is doubly vicious because it provides an avenue for and promotes the commission of sexual abuses against children.

That child abuse and exploitation penalized under special law are crimes mala in se is not a new proposition. In violations of RA 7610, the Court had previously held that they are offenses mala prohibita, hence, intent is not material.37 However, this ruling was overturned by the Court in People v. Bangayan38 (Bangayan). In other cases involving the physical abuse of a child under RA 7610, the Court also found such offense mala in se for being inherently wrong. The Court then ruled that "criminal intent must be clearly established with the other elements of the crime; otherwise no crime is committed."39

Proceeding from the foregoing, it was erroneous for the courts a quo to conclude that the crime petitioner is charged with is malum prohibitum just because a special law prohibits the same. The inherent vileness of abusing and exploiting a child by hiring, employing, inducing or coercing him or her to engage in the production of pornographic materials is beyond question. As such, while it is penalized by a special law, child pornography is deemed an offense mala in se. Accordingly, the criminal intent to abuse or exploit a child to produce pornographic materials must be present and proven by the prosecution. Unfortunately, in this case, contrary to the ponencia's finding, no iota of evidence was presented by the prosecution to prove that petitioner abused or exploited AAA into creating pornographic materials of herself. Again, to reiterate, what the evidence simply and explicitly showed, especially the FB conversation between AAA and petitioner, is that AAA and petitioner, as lovers, had a private conversation and shared intimate photos of themselves.

The arguments above espoused are not mere "opinions and ruminations" on my end, nor are they "daubed with perhaps unconscious biases about gender roles;" to the contrary, they are products of "making inferences." Making inferences is what courts do (1) when it reaches conclusions when all the court has are circumstantial evidence, or (2) when it allows disputable presumptions to take the place of requiring the establishment of certain facts, because certain things may be inferred from what was already established. The Court is no stranger to making inferences in cases involving sexual activities. In People v. Amarela40 (Amarela), for instance, the Court "found the alleged victim's statement as less credible than the inferences from the other established evidence and proceeded to acquit the accused."41 The foregoing are inferences from the evidence at hand, and are not mere assumptions or "what-could-have-beens."

The approach I take in this case is similar to the perspective I take in every criminal case. I decide — from the viewpoint of presumption of innocence. The evidence the prosecution presented must necessarily hurdle this presumption beyond a reasonable doubt. For this case, the prosecution was charged with the duty of establishing beyond a reasonable doubt that petitioner induced AAA to make and send nude photos of herself. To my mind, therefore, there must necessarily be an unmistakable showing that petitioner's words were the ones that impelled AAA to do what she did. As the threshold is proof beyond reasonable doubt, there must necessarily be strong causation — not mere correlation — between petitioner's words and AAA's ultimate actions.

To them, the conversation is enough to prove beyond reasonable doubt the causation between petitioner's words and AAA's actions. But in my view the conversation only shows correlation but not causation. Bringing up the fact that AAA mentioned that she was already nude prior to petitioner asking for her pictures, that she asked petitioner to send nudes of himself, and that she herself invited petitioner to meet the next day to show him in person her private parts are not meant to "slut-shame" AAA. These were relevant facts culled from the very conversation on which the conviction is being hinged, and the conclusion reached from the inference is that petitioner's words were not the moving factor as to why AAA did what she did.

I do not discount the power imbalance in a relationship between a minor and someone with whom he or she has a considerable age gap that Associate Justice Amy C. Lazaro-Javier (Justice Lazaro-Javier), for instance, talks about in her Concurring Opinion. The use and abuse of this power is precisely the kind of inducement which the law punishes. It is not the one involved in this case where, in the conversation itself, it is already apparent that, to reiterate, it was the woman herself who was already hinting at sexual signals prior to petitioner's act of asking for nude pictures. In my view, these circumstances surrounding the conversation dilutes the claim that there was "inducement" such that petitioner must be sent to languish in prison for years to come.

Meanwhile, for the majority, the conversation was enough to prove beyond reasonable doubt that there was "inducement" in this case. During the deliberations, it was opined:

We may not fully understand why but there are people who, for one reason or another, do in fact memorialize their sexual activities online without someone else's prodding. The internet and the age of social media has brought a world — no matter how strange or unusual it may appear to our generation — where some people, especially young ones, post whatever they want, even those with explicit sexual content, on their social media accounts. The Court cannot thus make the logical jump that when AAA sent her picture to her boyfriend, it must necessarily have been because of the latter's words and actions. To make that jump is a hasty generalization. More importantly, from the perspective of law and the dispensation of justice, it would be violative of the presumption of innocence.

It is not for the Court to make that jump in the absence of evidence. If the conversation were clear that the idea of engaging in sexual activity online was initiated by and came from petitioner alone, then that would be an argument for conviction. That is not, however, what is before us in this case.

These are the reasons why I personally take exception to the quip that my position is an "articulation of the macho versus the virgin paradigms for binary gender roles" or that my perspective is "aggressively male." It was even opined that, "[t]he unstated argument raised by this claim is the myth that this victim is 'unworthy.' It is akin to the rape myth that 'a slut cannot be raped.'"

In this generation's language, my Opinion is being branded in two ways: "slut-shaming" and "victim-blaming." This could not be further from the truth.

As illustrated above, the inferences gathered from the facts established were relevant to the case as the Court is tasked to determine if there was "inducement" in this case. Some of the members of the Court, however, effectively suggest that we turn a blind eye to these facts that are already apparent before us, or else we would be guilty of "slut-shaming." The facts surrounding the conversation — to reiterate, (1) that AAA mentioned that she was already nude prior to petitioner asking for her pictures, (2) that she asked petitioner to send nudes of himself, and (3) that she herself invited petitioner to meet the next day to show him in person her private parts — were not for the purpose of "slut-shaming" or "victim-blaming" her. The fallacy of the rape myth lies in the Olympic leap in logic being made between consent to sex, on the one hand, and other irrelevant things, on the other, such as what she was wearing at the time or if she was drinking alcohol. My Opinion did not make any logical jump; instead, it discusses the circumstances by which the Court can assess the consent of AAA to the sexual activity, en route to determining whether there was, in fact, inducement in this case.

The parallelisms between my Opinion and the rape myth are, therefore, not only fallacious but frankly, egregiously unfair.

It is important to be clear that pointing out that a woman wanted to engage in sexual activity is not being misogynistic. On the contrary, what is misogynistic is to perpetuate the idea that it is not possible for a woman to have sexual desires and to express such desires. Not too long ago, in Amarela, the Court finally corrected its long-standing stereotype43 of a Filipina that has been used by the Court for decades. The Court said that it "cannot be stuck to the Maria Clara stereotype of a demure and reserved Filipino woman."44 The Court even went as far as calling the doctrine — which provides that "no young Filipina of decent repute would publicly admit that she has been sexually abused, unless that is the truth, for it is her natural instinct to protect her honor" — a "misconception," and opined that it "puts the accused at an unfair disadvantage" and "creates a travesty of justice."45

This is not to say that the modern Filipina is promiscuous. This is to say, rather, that the Court is done making generalizations about women. This is to also say that the modern Filipina is free to determine who she is, free from the shackles of any of the preconceived notions our society had in the past as to who she should be and how she should deport herself. We can therefore say, matter-of-factly, that a woman, based on the evidence presented in a case, wanted to engage in sexual activity. We can do so without automatically making, at the same time, a value judgment on her choice.

I have not lost sight of the fact that the woman involved here is a 14-year-old girl. I do not discount that, in hindsight, she may have regretted her choices. Legally speaking, however, her consent was one that was validly given. The fact that we, as adults, see the clear error in her judgment right at that moment that she sent her nude pictures does not, legally speaking as well, entitle us adults to incarcerate the other person in that conversation between two consenting persons.

Petitioner's conviction was also anchored on the ponencia's ruling that the sweetheart theory is not a valid and meritorious defense because consent of the minor is immaterial in violations of special penal laws such as RA 9775.

While the sweetheart theory is generally a weak defense in sexual abuse cases, the Court should not sweepingly ignore petitioner's claim that the act committed was consensual for the simple reason that the victim, being a 14-year-old minor, is incapable of giving consent.

To recall, in the case of Malto v. People46 (Malto), the Court held that "in child abuse cases under RA 7610, the sweetheart defense is unacceptable" because "[a] child exploited in prostitution or subjected to other sexual abuse cannot validly give consent to sexual intercourse with another person." The Court went on to explain that "consent is immaterial in cases involving violation of Section 5, Article III of RA 7610" because "[t]he mere act of having sexual intercourse or committing lascivious conduct with a child who is exploited in prostitution or subjected to sexual abuse constitutes the offense. It is an offense malum prohibitum."47 In arriving at such ruling, the Court considered the inability of a child to give consent to a contract under our civil laws and the State's role to afford protection to the youth.48

However, in the more recent case of Bangayan, the Court, overturned its ruling in Malto and held:

The principles that guided the Court to reverse its ruling in Malto and consider in Bangayan that, in this day and age, minors above 12 years old and below 18 years old are capable of giving consent to sexual activities with another person, conscious as they are of their consequences, should also guide the Court in deciding the present case.

That Malto and Bangayan involved violations of RA 761050 is of no moment. To be sure, RA 9775 and RA 7610 are both animated by the same purpose — to protect the child against all forms of sexual abuse, neglect and exploitation.51 Thus, in Bangayan, upon finding that the victim had freely given her consent to the sexual congress and was not subjected to any form of abuse, the Court acquitted the accused because there was no crime committed.52 This should also be the case here. Petitioner should be acquitted because he did not commit the crime charged. AAA freely gave her consent into sending petitioner nude photos of herself.

Despite the clear language and ruling in Bangayan, however, Justice Lazaro-Javier insists on a qualified reading of the Court's pronouncements. According to her:

It is unclear what Justice Lazaro-Javier's legal bases are in claiming the foregoing. The language used by the Court in Bangayan was to categorically and unequivocally rule that "[w]hile difference in age may be an indication of coercion and intimidation and negates the presence of sexual consent, this should not be blindly applied to all instances of alleged sexual abuse cases."54 The very facts of Bangayan involved a 15-year age difference between the accused and the complainant. In Monroy v. People55 (Monroy), itself cited in Bangayan, the parties involved had a 14-year age difference — the girl being 14 years old, just like AAA in this case, and the accused being 28 years old. In neither of these cases did the Court say that "the inherent power imbalance between adults and children vitiates consensual sexual relations between them," nor did the Court say that our laws only allow sexual relationships between minors close-in-age. It is, at most, an indication of coercion, but it does not automatically supply such coercion.

Citing a ruling of Sasketchawan Court of Queen's Bench,56 however, Justice Lazaro-Javier insists:

Justice Lazaro-Javier, however, cannot insist on this "power imbalance" based analysis in the face of an express, categorical, and unequivocal ruling by the Supreme Court of the Philippines that: (1) those between ages 12 to 18 can validly give sexual consent, and (2) the validity of their consent must be determined on a case-to-case basis, with age gap being only one of the many things that a court should look at.

Thus, it is imperative for the Court to carefully scrutinize every piece of the prosecution's evidence and take into account those that indicate that AAA was never induced or coerced into sending petitioner her nude photos, or that AAA, in fact, freely and voluntarily took pictures of her private parts and sent them to petitioner.

Further, one material circumstance which the ponencia failed to consider that supports the finding that AAA was never induced nor subjected to any form exploitation and abuse on the part of the petitioner, are the following observations of Branch 270, Regional Trial Court of Valenzuela City:

Considering therefore AAA's sexual awareness, coupled with the entirety of the FB conversation and, finally, guided by the Court's ruling in Bangayan, I find that the ponencia erroneously disregarded petitioner's sweetheart defense.

In fact, contrary to the ponencia's finding,59 the records abound with evidence supporting petitioner's sweetheart defense.

Jurisprudence teaches that the allegation of a love affair or relationship, as an affirmative defense, can only be given credence if it is supported by corroborative proof such as notes, gifts, pictures, mementos or tokens showing that such romantic relationship actually existed.60

In this case, it must be noted that both AAA and her mother admitted that petitioner and AAA have been in a romantic relationship for almost six months. Apart from this admission, the defense also presented in evidence a scrapbook61 personally made by AAA, which the prosecution in fact admitted.62 The scrapbook contains several pictures of petitioner and AAA together, screenshots of their chats in their social media accounts, and handwritten letters of AAA to petitioner expressing her love for him.63 These pieces of evidence are more than enough to support a finding that petitioner and AAA were actually lovers and that their FB conversation is nothing more than an intimate and private expression of their relationship.

Indeed, expressions of love, in person or in a virtual space, varies. The Court cannot therefore be too simplistic to conclude that the conversation and actuations of petitioner and AAA in the said FB conversation is not that of love but a sexual offense that will put petitioner in jail. The Court cannot ignore overwhelming evidence on record, which the prosecution failed to rebut or refute, that AAA and petitioner, at the time the incident happened, were in a relationship and that the FB conversation was spurred by their love and intimacy for each other. In this regard, the Court's pronouncement in People v. Salem,64 lends credence:

Lest I be misunderstood, I share the sentiment of the ponencia that the State, including this Court, has the duty to afford our children the highest degree of protection. Equally true, however, is that "[t]he court's primary duty is to render or dispense justice."66 Justice, in the context of criminal cases, entails fairness both to the complainant and the accused. Would it have been more prudent for petitioner to stop himself from asking for pictures? Absolutely. But is his mistake deserving of the punishment of imprisonment for 20 years? I do not think so. If the petitioner were proven to be engaged in the creation of child pornography or a member of a child pornography syndicate, then my answer would be different. Here, to emphasize again, the FB conversation only reveals a sexually charged conversation between a couple in a relationship. Considering that more and more teenagers are, in this day and age, exploring their sexuality at an early age, the Court might find itself sending hundreds or thousands of people — many of whom are also young — to be incarcerated for years if the current version of the ponencia is made the rule.

To illustrate the absurdity of the situation, if the facts were that the complainant and petitioner had sexual intercourse with full consent and without force or intimidation, there would be no crime committed.67 Yet here, where the facts are simply that the girlfriend sent pictures to her boyfriend, also freely and with full consent and without force or intimidation, the Court is ruling that petitioner is guilty of a crime that will make him languish in jail for the years to come. Verily, convicting petitioner in this case would result in an absurd situation where the accused in Bangayan and Monroy - who both had consensual sexual intercourse with girls with whom they had more considerable age-gaps - are not guilty of any crime, but petitioner in this case would rot in jail for decades for doing much less: consensually engaging in a sexually charged conversation with his girlfriend that ultimately led to the sending of nude photographs. This is incongruous to current jurisprudence and simply ludicrous.

I wish to correct, as well, what I perceive to be a false dichotomy. In Justice Lazaro-Javier's Concurring Opinion, she concluded:

Defining child pornography this way is intended to better protect 12-year olds and below 18-year olds from coercion, influence, persuasion and manipulation by adults to engage in explicit sexual activities and from the inherent harm to children and society flowing from premature explicit sexual activities. This object includes as a rule "protecting children from themselves, their own immaturity and premature sexual activity, regardless of whether they want to engage in sexual acts or think they do" because they have been persuaded or induced to be inclined to so act. This goal privileges as well the fact that "the important and potentially life-altering decision to engage in sexual activity with others must be the product of true consent by individuals capable of giving such consent."

Protecting this extremely vulnerable segment of our society from the harm of premature sexual relations remains a legitimate objective of Congress — there is no violation of due process and the right to equal protection to deny an adult the constitutionally protected right to have explicit sexual activities even with consenting children. Avoiding a criminal conviction for child pornography is not a right much less a constitutional right, but only a matter of defense which has to be proved on a case-to-case basis clearly and convincingly.68

Assuming arguendo that the goal is indeed to protect children from "their own immaturity and premature sexual activity," it does not necessarily mean that petitioner in this case should be convicted. Arguing for the acquittal of the accused because the factual circumstances of the case do not support his or her conviction does not equate, to any reasonable and reasoning mind, to being against children's welfare. By the same token, incarcerating an otherwise innocent person would not necessarily improve the protection of children. It is high time that the State, including the Court, does away with this mindset that every problem can and will be addressed by having a more punitive criminal justice system. Sending more people to jail is not the answer. If the goal were really to protect children "from the harm of premature sexual relations," there are much less restrictive measures, like a better national program for sex education for students, which the other branches may look at or implement. The aforementioned goal, lofty as it is, cannot be made a justification to deprive an innocent person of his or her liberty for years of his or her life.

In this connection, the ponencia wants the Court to take judicial notice of the reality that minors, between the age of 12 and 18 years, experience physical and hormonal changes, which lend them to explore, be curious and find answers from others or from the internet, making them susceptible to deception and cajolery.69 However, the Court cannot also feign ignorance of the reality that minors today, in this day and age, are more mature and more vastly aware of their surroundings, are more than capable of knowing what is right and wrong and the consequences of their actions and decisions. The Court's duty, as parens patriae, is to protect children from crimes and offenses that exploit and abuse them; but not to blindly convict a person just because the victim is a child when no crime was even committed in the first place.

While the Court indeed has the duty to afford children the highest degree of protection, it is well to be reminded that this Court equally has the duty to uphold the presumption of innocence when there exists reasonable doubt on the guilt of the accused. In balancing these duties, the Court must carefully scrutinize the evidence of the prosecution, and if the evidence fails to establish the guilt of the accused with moral certainty, as the evidence itself give rise to reasonable doubt that the acts committed by the accused falls within the crime defined and penalized by law — as in this case — then the Court's only duty is to acquit the accused.