G.R. No. 247348 - Concurring 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 evidence proved beyond reasonable doubt that petitioner is guilty of child pornography as defined and penalized by Section 4(c)(2)1 of Republic Act No. 101752 (RA 10175) in relation to Sections 4(a),3 3(b)4 and (c)(5)5 of Republic Act No. 9775 (RA 9775).6

RA 9775 criminalizes child pornography, or the creation of any visual and/or audio representation of a child lasciviously exhibiting the latter's genitals, buttocks, breasts, pubic area, and/or anus to prevent children from being hired, employed, used, persuaded, induced, or coerced to create or produce pornographic materials. It addresses the power imbalance between children and adults.

By using the words persuade and induce as criminal modes of perpetrating child pornography, RA 9775 speaks not only to the prevention of actual and explicit sexual exploitation or abuse of children, but also to their protection from "explicit sexual activities"7 with adults, with or without evidence of exploitation or abuse. This is because the power imbalance and its consequences deem "explicit sexual activities" between an adult and a child to be always inherently harmful and always inherently exploitative. Our law treats children differently from adults precisely because they are immature, impulsive, and lack judgment. The Court must recognize and treat the crime of child pornography with these considerations in mind.

Thus, this crime involves not only child pornography as a business or practice but also child pornography as a result of coercion, persuasion, or inducement arising from romantic relationships though the pornographic material be only originally intended for the coercer's or inducer's private viewing. RA 9775 makes no distinction between them as regards their criminal nature - both are criminal child pornography.

This definition of child pornography and the intent behind its criminalization are reflected in the elements of this crime: (1) the complainant is a child; and (2) the complainant was victimized by persuading, inducing, or coercing them8 to perform in the creation or production of any form of child pornography. Note that the second element is about persuasion, inducement, or coercion and not about consent per se. Where the consent is the effect of persuasion, inducement, or coercion, the consent is a mere ostensible consent that the law does not recognize and which does not exempt one from criminal liability.9

RA 9775 defines a child as someone regardless of gender affiliation or non-affiliation who is below 18 years of age. Indisputably, the complainant here was a child when the subject incident happened - she was then only 14 years old.

The contentious element is whether petitioner persuaded or induced the 14-year old girl to expose her private parts on Facebook Messenger. The issue is not whether she consented - she might have had, but as the prosecution evidence showed, the consent was brought about by petitioner's persuasion or inducement.

First. It is highly speculative that the 14-year old girl would have sent the pornographic photos to petitioner even without the conversation that took place between them. The fact is that the conversation took place. It is the window that elucidates on why the child pornographic materials were uploaded by the 14-year old girl and then viewed, downloaded and saved by petitioner.

What is further troubling about the assumption is it is daubed with perhaps unconscious biases about gender roles. The unarticulated but nonetheless evident thought process is that as the 14-year old carries the scarlet badge of promiscuity, she cannot credibly claim that she was induced to create pornographic photos of herself. This is the same as the antiquated and now rejected deeming belief that a slut or a woman spouse could never be raped because she is deemed to have consented anyway. There are no data to prove that women who are active in dating circuits do not require inducement or persuasion as they would automatically create pornographic materials of themselves. There is simply no evidence of this correlation.

Second. When we talk about the persuasion or inducement of a child to engage in sexually inappropriate behaviour, the degree of causation between the creation of the pornography and petitioner's words, deeds, and other circumstances allegedly constituting the inducement cannot be in terms of absolute causation. This is because proof beyond reasonable doubt has never been a standard of absolute certainty.10 Rather, this standard only requires moral certainty.11

Here, through petitioner's Facebook Messenger conversations with the 14-year old girl, the prosecution was able to prove beyond reasonable doubt the element of persuasion or inducement. Precisely, this means that it was -

his words, deeds, and other circumstances which made the 14-year old girl decide to exhibit her private parts to him on saved photographic, video, and audio platforms without which she would have not done so; and

there were no proven circumstances other than and independent of petitioner's words, deeds, and other circumstances, which to a reasonable person would have otherwise actually led her to create the pornographic material.

For one, it would really be both off and odd for the 14-year old girl to just undress and exhibit her private parts to petitioner and in the process memorialize her "explicit sexual activity" as defined in RA 9775 through the internet for nothing and out-of-the-blue. No reasonable person would believe that she was doing so for reasons other than and independent of petitioner's words, deeds, and other circumstances.

The defense justifies that the 14-year old was not induced by the 24 year old petitioner to make pornographic materials of herself on account of her romantic relationship with him.

But this justification only begs the question. It assumes the absence of inducement by referring to the romantic relationship when this amorous connection was precisely the reason why she was persuaded or induced, in fact too easily seduced, to bare herself to the bone. She would not have been in that conversation with petitioner were it not for their romance. In that conversation, he urged her to show her private parts to him. She obliged him precisely because his words, deeds, and other circumstances, consisting of their relationship and conversation, lulled, persuaded, influenced, or induced her to consent to do as he told her.

As I have stressed, the issue is not about the 14-year old girl's consent. The real issue is how that consent came about - was there persuasion or inducement which RA 9775 mentions as the modes of committing child pornography? The prosecution's evidence answered this issue beyond reasonable doubt by pointing to petitioner's words, deeds, and other circumstances as the very consideration why she consented to make pornographic materials of herself.

The defense and the trial court as regards the charge under Republic Act No. 7610 (RA 7610) also attempted to insulate petitioner from what the 14-year old girl ended up doing by portraying her as a slut. The gist of this defense is that it was not petitioner's words, deeds, and other circumstances which persuaded or induced her to produce the pornographic material but her own lust that made her do so. We are being asked to believe that the devil in her drove her to create her own pornographic materials. This thinking can be summed up in four words: "she asked for it."

I object to the premise of these assertions that simply because the 14-year old girl already had 5 boyfriends, it was already automatic for her to create her own pornographic material to seduce and please further her reluctant boyfriend. The 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." The argument here as the rape myth has no criminological data to support a correlation between the prior sexual activities of a victim and the impossible likelihood of becoming a victim of pornography or sexual assault. Prostitutes or women active in dating circles are no less likely to become victims of pornography (i.e., they need no inducement or persuasion as they would automatically and readily create pornography) or for that matter raped, than virgins.

This myth all the more rings true when the victim of pornography is a child. There are no data, much less, evidence that a curiously promiscuous child would lay herself bare to a male partner without any inducement or persuasion at all more than a virgin child would. Invariably, where there are incriminating sexual conversations between romantic partners where the female is a child and the male is an adult of considerable age gap, as in here, there will always be that originator and persuader behind every lewd or pornographic portrayal from the child to the adult. As explained elsewhere:

It is likely that exploitation will be present in every case of sexual interference EXCEPT, possibly, where the offence occurs in the context of a genuine relationship of mutual respect and affection between the complainant and the accused, where that relationship is of some considerable duration, and where the age difference between complainant and accused is not significantly greater than the five year "close-in-age" defence created by s. 150.1(2.1) (a) (i) of the Criminal Code [of Canada].12 [Emphasis supplied.]

Thus, there is logic as to why RA 9775 and RA 7610 have both included inducement and undue influence as criminal means to perpetrate crimes against children by adults, especially where the adult is considerably older. It is because children are easy prey for cunning adults and children's consent are not automatically accepted at face-value - their consent is actually mere ostensible consent that the law does not recognize as fully informed and knowing and freely exercised as in the case of adults. Their inability to make fully informed and knowing and freely exercised choices is what sets children apart from adults.

Third. Bangayan v. People13 supports the ponencia and my discussion above on the irrelevance of consent when it is obtained through an adult's persuasion and inducement as in the present case.

Bangayan articulates a nuanced and contextual interpretation of consent when given by children 12 years old and below 18 years of age. Though the discussion pertains to crimes under Section 5 (b) of RA 7610 where consent could be raised as a defense (since the crimes under Section 5 (b) are mere variants of rape and acts of lasciviousness of the Revised Penal Code), I believe that Bangayan's lessons are in pari materia14 with RA 9775, and therefore instructive toward a more meaningful understanding of its provisions, especially child pornography.

I will mention below the lessons on the contextual analysis of consent from Bangayan:

It is clear that our criminal statutes and the current trend of our jurisprudence on the sexual activities of children endeavor to strike a balance between protecting children from the harms associated with sexual activities with adults (i.e., to protect young people from sexual exploitation) while allowing teenagers to engage in sexual experimentation and relationships with close-in-age peers and only in very exceptional cases with adults of considerable age gap (i.e., to preserve their ability to have non-exploitative sexual contact). The important thing to remember, though, is that by default, the inherent power imbalance between adults and children vitiates consensual sexual relations between them.

Of course, the ideal situation is for Congress itself to draw a bright-line age of protection of X years, say 16 years as some child rights advocates have long been pushing, but to carve out an X-year close-in-age exception, say 5-year close-in-age exception, for non-exploitative conduct, where the defense of consent would be available.

But until then, we must enforce our child protection laws like RA 7610 and RA 9775 without the binary gender role biases and with due consideration to scientific evidence that age sixteen (16) is a reasonable choice for the threshold age for strictly scrutinizing the evidence of valid consent in part because of evidence that 14 and 15-year old children were being targeted by on-line and international predators. This assertion is supported by the lessons we can draw from Bangayan. Similarly, as our jurisprudence had started to recognize that age difference is a factor in determining valid consent, we may already recognize also a close-in-age exception for non-exploitative sexual activity between teenagers and their peers, and draw a reasonable line of age difference for teenagers to have appropriate relationships, including sexual relationships, with other people including adults up to, in the case of a 15-year-old, age 20. These age-specific references can also be justified by the lessons imparted by Bangayan and the case law it was built on.

As I have said, the overarching framework is that the protection for children is not simply from sexual exploitation but also from explicit sexual activity or the invitation to explicit sexual activity with adults. This protection is necessary due to the inherent power imbalance that undermines consent, and because of the physical and psychological consequences of explicit sexual activity between a child and an adult stemming from that imbalance.

Once the object of RA 9775 and other child protection measures is correctly understood, it is clear that the explicit sexual activity in the present case between the 24-year-old petitioner and the 14-year-old complainant fell within the type of conduct that this statute intends to address.

This police power measure in criminal law is not unreasonable. The means is not overbroad or arbitrary in the sense that the means used is no longer reasonably connected to the end goal of addressing the harm of the power imbalance between adults and children engaged in sexual activities. After all, our statutes on the protection of children from inappropriate sexual activities already recognize categorically the norm that the capacity to consent to sexual activity is not merely inherent to the individual but also relational.15 A child who, we as a community, would accept to have validly consented to explicit sexual activity with a peer, however, cannot validly consent to explicit sexual activity with an adult.16 There is an inherent power imbalance between adults and young people, and adults are expected to decline explicit sexual activity, in fact even mere amorous relationships, as a result.17

Affirming petitioner's conviction is to firmly recognize the statutory purpose of correcting such power imbalance. This is important because it offers clearest protection to children who arguably need it the most - as expressed eloquently elsewhere, "those who have already been forced to grow up too fast by the operation of misfortune, neglect, or prior abuse. These are the young people for whom it will be hard to see the exploitation, especially where they may have initiated the sexual activity, or otherwise appear to exercise agency as it occurs x x x."18

Clearly, as child pornography has been defined as a crime, Congress has evidently concluded that explicit sexual activities with a child 12 years old and under 18 years of age are inherently exploitative in their own right, unless as held in Bangayan, "in [the criminal case], there are [truly unique and] special circumstances that reveal the presence of [valid] consent of [the child]." Actual exploitation is not a requirement for this offense since Congress has already recognized that adult/youth explicit sexual activities are inherently exploitative.

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.19 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"20 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."21

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-by-case basis clearly and convincingly.

In the result, it is my respectful opinion that this case was correctly decided. It is not unfair to petitioner. The purpose of child pornography is to protect 12-year old and below 18-year old children from explicit sexual activities with adults because of the inherent power imbalance between them, and the harmful impact thereof. The definition of child pornography does not include any conduct that bears no relation to its purpose, and as such, is not arbitrary in any parts. On the contrary, there is a rational connection between the purpose of this criminal law and its elements.

My conclusion does not depend on any of petitioner's character, particularly, those which could have affected his willingness or ability to resist the 14-year old complainant's further reactions after he had successfully persuaded or induced her to exhibit her private parts. After all, his character weakness is not a mental challenge to exempt him from criminal responsibility. He cannot avoid criminal responsibility by his supposed naivete, weakness, and submissiveness.

In my view, the complainant was a victim of the very power imbalance ascribed by the law against child pornography. As a 24-year old dealing with a 14-year old girl, he should have known better. The explicit sexual activity of her exhibiting her private parts over the internet, in the manner that can be downloaded and saved for her children and grandchildren to see, as a result of petitioner's words and deeds to persuade or induce her to do so, was inherently exploitative. There were no truly unique and special circumstances to warrant the conclusion that she validly consented, that is, consented without petitioner's persuasion or inducement, and that there was no exploitation. There are now no truly unique and special circumstances to excuse him from the consequences of his acts. Just the same, we cannot now start excusing people from criminal liability just because they do not know what the law is on the matter.

Fourth. I commiserate with petitioner as to the stiff penalties he has to face. To my mind, the penalty of reclusion perpetua is grossly disproportionate to the crime he has committed. But there are no arguments against the constitutionality of these penalties. Hence, the Court cannot set aside or nullify them. It is also not within our power to change the penalties to suit what we view as proportionate penalties. Surely though, it is incorrect to acquit petitioner simply because we do not agree with the penalties.

Perhaps, he and his lawyer could start a peoples' initiative to amend RA 9775 and RA 10175 citing the alleged incongruities that these statutes may have already engendered. We also can refer this matter to the Executive Branch and Congress for their appropriate remedial action.

Fifth. I agree with the ponencia that child pornography is mala in se. But this does not make petitioner less guilty.

He committed the acts constituting the crime's actus reus. The complainant is a 14-year old girl, a child. He persuaded or induced her to exhibit her private parts, which she did. The exhibition was done through their respective computers and over the internet. These are the actus reus of child pornography.

As regards the mens rea, the intent to abuse or exploit the child victim is not required to prove child pornography. As I have stated earlier, abuse or exploitation is inherent in child pornography when it has been shown that petitioner persuaded or induced the child to exhibit their22 private parts. By using the words persuade and induce as criminal modes of perpetrating child pornography, RA 9775 speaks not only to the prevention of actual and explicit sexual exploitation or abuse of children, but also to their protection from "explicit sexual activities" with adults, with or without evidence of exploitation or abuse.

Thus, the mens rea required is merely the intent to do what petitioner precisely did - to persuade or induce the 14-year old girl to create the child pornography. It is the mens rea to do voluntarily the persuasion or inducement. By simply persuading or inducing the 14-year old complainant to exhibit her private parts over the internet, petitioner had the necessary mens rea to be convicted of child pornography.

ACCORDINGLY, I vote in favor of the ponencia. Consistent with my view that the penalty of reclusion perpetua is grossly disproportionate to his crime, I ask the Court to refer this matter at once to the Executive Branch and Congress for their remedial action.