G.R. No. 247348 - Separate 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 ponencia affirms petitioner's conviction for the crime of child pornography under Section 4(c)(2) of Republic Act No. (RA) 101751 or the Cybercrime Prevention Act of 2012 (Cybercrime Prevention Act), in relation to Sections 4(a), 3(b) and 3(c)(5) of RA 97752 or the Anti-Child Pornography Act. It bases petitioner's conviction on the finding that the conversation between petitioner and AAA through Facebook Messenger (Messenger) clearly showed that AAA was induced by petitioner to send him pictures of her private parts. Without petitioner's inducement, the minor victim would not have been compelled to undress and send him pictures.3 The said ponencia further rules that while the sweetheart defense can be seriously considered depending on the circumstances of the case, there is insufficiency of evidence to prove its application here.4

I concur with the ponencia's interpretation and application of Section 4(c)(2) of the Cybercrime Prevention Act of 2012, in relation to Sections 4(a) and 3(b) and (c)(5) of Anti-Child Pornography Act and consequently vote to affirm petitioner's conviction.

"The individuals desire for privacy is never absolute, since participation in society is an equally powerful desire. Thus, each individual is continually engaged in a personal adjustment process in which he balances the desire for privacy with the desire for disclosure and communication of himself to others, in light of the environmental conditions and social norms set by the society in which he lives."

I agree with the ponencia's exposition on the Constitutional underpinnings of data privacy, and as pointed out, the provisions in the Bill of Rights pertaining to safeguards that can be invoked against the State and not against private individuals.5 In addition to the Bill of Rights, it is also necessary to evaluate petitioner's rights as a data subject under RA 10173 or the Data Privacy Act of 2012 (DPA).

As a data subject, petitioner's rights include the right to be informed, right to access, right to erasure, right to suspend/withdraw/order the blocking, right to portability, right to rectify, and right to file complaint and demand for damages.6 However, these rights are not absolute. One of the limitations to his right to suspend/withdraw/order the blocking of his data is when the personal information is gathered for the purpose of investigations related to any criminal, administrative, or tax liabilities of a data subject.7 Thus, he may not validly question the collection and use of his personal information as these were made in light of the investigation and criminal cases against him for: (a) violation of Section 10(a) of RA 7610 or the Special Protection of Children Against Abuse, Exploitation and Discrimination Act; and (b) child pornography under Section(4)(c)(2) of RA 10175, in relation to Sections 4(a), 3(b), and (c)(5) of RA 9775.

Moreover, the disclosure of petitioner's sexually-explicit communications and AAA's photos showing her private parts falls within the recognized grounds for processing sensitive personal information. Under the DPA, these communications and photos are sensitive personal information8 as these pertain to their sexual life. Considering the nature of sensitive personal information, the law only allows few grounds and stricter rules for their valid processing. The following is the applicable ground in this case:

The communications and photos were submitted as evidence before the proper prosecutor's office and courts for the protection of AAA's lawful rights and interests, as well as the establishment of her legal claims. This is clearly permitted under the DPA.

The ponencia also discussed that AAA's mother forced AAA to open petitioner's Facebook messenger account to get a copy of her conversation with petitioner.10 AAA was able to do so as she knew of petitioner's password on account of their romantic relationship.11 Password is one of the security and login controls in Facebook, and through its Terms of Service,12 it reminds users not to share their password. In Vivares v. St. Theresa's College,13 We held that:

Consistent with Our ruling in Vivares, petitioner's right to informational privacy should be denied insofar as AAA is concerned because he has opted to share his password with her. Foregoing considered, whether under the 1987 Constitution, the DPA, and jurisprudence, there is no impediment to the disclosure and admissibility of the evidence submitted to support the conviction of petitioner.

Petitioner persuaded or induced AAA to perform in the creation or production of child pornography

The State recognizes the vital role of the youth in nation building and shall promote and protect their physical, moral, spiritual, intellectual, emotional, psychological and social well-being.15 Towards this end, the policy of the Anti-Child Pornography Act is to: (a) guarantee the fundamental rights of every child from all forms of neglect, cruelty and other conditions prejudicial to his/her development; (b) protect every child from all forms of exploitation and abuse including, but not limited to: (1) the use of a child in pornographic performances and materials; and (2) the inducement or coercion of a child to engage or be involved in pornography through whatever means; and (c) comply with international treaties to which the Philippines is a signatory or a State party concerning the rights of children.16

Child pornography means "[a]ny representation, whether visual, audio or written combination thereof, by electronic, mechanical, digital, optical, magnetic or any other means, of a child engaged or involved in real or simulated explicit sexual activities."18 In turn, explicit sexual activity includes "[a]ctual or simulated [...] lascivious exhibition of the genitals, buttocks, breasts, pubic area and/or anus [...]."19

The elements for violation of Section 4 (b) are: 1 the victim is a child; and 2 the child was hired, employed, used, persuaded, induced, or coerced to perform in the creation or production of any form of child pornography.20 A child "[r]efers to a person below eighteen (18) years of age or over, but is unable to fully take care of himself/herself or protect himself/herself from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability or condition."21

As to the presence of the first element, it is uncontroverted that AAA was only fourteen (14) years old at the time of the incident. This was established from the copy of her Certificate of Live Birth that was presented in evidence. Moreover, petitioner was aware of this fact. It was undisputed that BBB confronted the petitioner and told him to stay away because her daughter was still a minor.22

Now, as to the presence of the second element, petitioner, at the very least, persuaded or induced AAA to take a photo of her private parts and send it to him through Messenger:

Words used in a statute are to be understood in their natural, plain, and ordinary acceptation, and according to the signification that they have in common use. They are to be given their ordinary meaning, unless otherwise specifically provided.24 In this case, the term persuade or induce is not specifically defined by the Anti-Child Pornography Act. Thus, given its ordinary meaning considering the context of the law, to persuade means the act of influencing another by arguments or reasons offered.25 Meanwhile, the word "induce" is ordinarily defined as "[t]o bring on or about, to affect, cause, to influence to act or course of conduct, lead by persuasion or reasoning, incite by motives, prevail on."26 Here, as shown above, when initially asked by petitioner to send him her picture naked, AAA already refused. However, petitioner reasoned with AAA by claiming only the two (2) of them will see the photo. Thus, by petitioner's persuasion or inducement, AAA, a 14-year-old minor, sent the photo of her breast. Thereafter, petitioner again asked to see the entire body of AAA including her genitals. Again, AAA rejected her solicitation. However, petitioner persisted and even asked AAA to open her legs and point the camera to her vagina and to which, AAA eventually submitted.27 It appears based on the evidence that without the prodding of petitioner, AAA would not have taken photo of her private parts and send it to petitioner.

The fact that AAA said she was already nude does not negate or even justify petitioner's act of persuading her to send her nude photos when she already refused to do so. Moreover, AAA, a 14-year-old minor, should not be blamed for eventually sending petitioner her nude photos by reason of the latter's persuasion. Further, the fact that AAA asked petitioner to also send nude photos and to meet the next day to show her private parts are irrelevant to the elements of the crime at hand.

As discussed above, the policy of Anti-Child Pornography Act is to protect every child from all forms of exploitation and abuse. As aptly pointed out in the ponencia, to minimize the risk of harm to minors from the detrimental consequences of their attempts at adult sexual behavior, the State, as parens patriae, is under the obligation to intervene and protect them from sexual predators like petitioner in this case.28 Victim-blaming, which is so prevalent in abuse cases, is abhorrent and should not be used as defense and basis to make it appear that there is reasonable doubt.29 Thus, in my mind, the prosecution clearly established beyond reasonable doubt the elements of violating Section 4(c)(2) of the Cybercrime Prevention Act of 2012, in relation to Sections 4(a) and 3(b) and (c)(5) of Anti-Child Pornography Act.

It is also well to point out that there is nothing in Section 4(a) of the Anti-Child Pornography Act that requires the element of hiring, employment, use, persuasion, inducement, or coercion to perform in the creation or production of any form of child pornography to be for "business" or commercial purpose. If such had been the intention of the Legislature, then, they could have included said qualifying words. In fact, the sale and distribution are punished as a different act altogether.30 Thus, I concur with the ponente, that mere creation, whether for business or for personal use, of child pornography, may already subject a person to violation of Anti-Child Pornography Act.31

The ponencia rejected petitioner's invocation of the sweetheart theory stating that there was insufficiency of evidence to prove its application. The huge age disparity between the petitioner and the minor victim, which placed the former in a strong position to wield his will on the latter, was taken against the petitioner. Further, it was noted that minors are not capable of fully understanding or knowing the import of their actions and as such are vulnerable to the cajolery and deception of adults.32

The romantic relationship between the accused and the victim or the "sweetheart defense" has often been raised in rape cases to negate the charge by establishing consent. For such defense to prosper, jurisprudence consistently ruled that there must be proof by compelling evidence that the accused and the victim were in fact lovers and that the victim consented to the alleged sexual relations.33

Relatedly, in Malto v. People34 (Malto), the Court made the pronouncement that the sweetheart theory may not be invoked in cases of child prostitution and other sexual abuse prosecuted under Section 5, Article III of RA 7610. Noting that the sweetheart theory applies in acts of lasciviousness and rape (felonies committed against or without the consent of the victim), the defense is declared unacceptable in sexual abuse cases under RA 7610 since "[a] child exploited in prostitution or subjected to other sexual abuse cannot validly give consent to sexual intercourse with another person."35

However, the "sweeping conclusion" of the Court in Malto as to the incapacity of a minor to give sexual consent has been clarified in Bangayan v. People36 (Bangayan):

Indeed, Bangayan abandoned the pronouncement that the consent of a minor is immaterial in cases involving violation of Section 5, Article III of RA 7610. Consequently, the sweetheart defense may prosper in such cases depending on the factual circumstances established by evidence. This notwithstanding, it is submitted that the sweetheart defense is inapplicable in cases of child pornography under Section 4(c)(2) of the Cybercrime Prevention Act of 2012 in relation to Section 4(a) of the Anti-Child Pornography Act, as in this case.

It bears emphasizing that the sweetheart defense has been raised in cases where the absence of sexual consent is material in establishing the crime. In these cases, the romantic relationship between the accused and the victim negates the "use of force or intimidation" as an element of the rape or act of lasciviousness, or the "coercion or influence" as an element of child abuse under Section 5 of RA 7610. Markedly, in Quimvel v. People,37 Court stated that such terms are used synonymously:

Under Section 4 (a) of the Anti-Child Pornography Act, it is a crime to persuade or induce a child to perform in the creation or production of any form of child pornography. To my mind, the element of persuasion or inducement is not negated by the sweetheart theory. To reiterate, the term "persuade" means the act of influencing another by arguments or reasons offered.39 Then, the word "induce" is defined as "[t]o bring on or about, to affect, cause, to influence to act or course of conduct, lead by persuasion or reasoning, incite by motives, prevail on."40 Thus, unlike "force or intimidation" and "coercion or influence", the word "persuade" or "induce" does not involve compulsion or duress. Verily, words uttered by a lover could undoubtedly move a person, especially a child, to do unimaginable acts.

The idea that consent is immaterial in child pornography cases is not a novel one. Even in other jurisdictions, such as in the United States, the age of consent for sexual activity is irrelevant as any depiction of a child or a person under eighteen (18) years of age is illegal. Hence, even if a minor willingly gives her consent on any creation of a visual image considered as child pornographic content, such consent does not affect the prosecution of those accused in proper cases.41 The rationale for this is founded on the identification of the two (2) major harms caused by child pornography: the harm of creation and the harm of circulation.42

The harm of creation is the physical and psychological harm that a child experiences in creating child pornography. In this type of harm, it was recognized that the production of child pornography often involves the sexual exploitation and abuse of children. On the other hand, the harm of circulation, which is a continuing harm, is rooted on the fact that the materials produced are a permanent record of the child's participation in the sexual activity. The harm to the child is exacerbated by their circulation every time another individual views the material considered as child pornography. The child's privacy is violated each time the visualization is viewed by another, much as the publication of a defamatory statement causes harm each time it is published. This concept of harm also suggests that a child could suffer such harm even if the child suffered no abuse or exploitation in the creation of the image. In recognizing the gravity of the harm of circulation, closing the distribution network was given equal importance as preventing sexual abuse and exploitation during creation.43

In our jurisdiction, the notion that consent is immaterial in child pornography cases can be inferred from the definition provided by the law on child pornography as well as the various acts considered criminal in relation to said definition. To recall, child pornography is defined as "any representation, whether visual, audio or written combination thereof, by electronic, mechanical, digital, optical, magnetic or any other means, of a child engaged or involved in real or simulated explicit sexual activities."44 The definition is unconditional and does not in any way consider the consent of the child depicted therein or the purpose for which the material was created as a defense for any of the criminal acts under our law. The Legislature did not qualify its definition of child pornography to only apply to cases where a child was sexually abused, exploited, or molested in its creation. In other words, the definition is meant to be all-encompassing to likewise prevent the harm of circulation. Otherwise, a qualifying phrase such as "created through sexual abuse, exploitation or molestation" or a phrase of the same import would have been added to the definition of child pornography. In the absence of such qualifying phrase, the intent is to consider any visualization of a child engaged or involved in real or simulated explicit sexual activity, regardless of how it was created or whether the subject child therein gave consent, as child pornography and to punish those who involve themselves with such kind of material.

Again, the goal is to close the distribution network by targeting the roots since both creation and distribution of child pornography feeds the addiction and mental disease of its consumers. Indeed, the intent of the Legislature was to "curtail, if not totally eliminate" child pornography,45 which arguably includes sexual depictions or exchanges between child-adult lovers, even if the exchanges are meant to be private, since these materials undoubtedly contribute to the database of these illicit paraphernalia. In fact, possession of a picture of a child lover who is engaged or involved in real or simulated explicit sexual activities is punishable at very least through Section 4(l) of the Anti-Child Pornography Act. Such act does not also consider the consent of the child as a defense for exculpation.

The difference in treatment of consent in RA 7610 cases, such as in Bangayan, and in cases of child pornography is rooted in the underlying evils sought to be prevented. For RA 7610 cases, the acts therein are a personal experience to the parties such that when a party gives consent, it only affects their own physical, mental, and emotional state. However, child pornography cases transcend the personal state of the parties since the explicit sexual activity is recorded in a visual, audio, or written combination thereof giving rise to the possible consumption of the public. Abuse and exploitation may continually arise due to the existence of these materials thereby requiring the State's extended protection.

Given the foregoing reasons, any type of persuasion or inducement used against a child, as long as the words given are the triggering factor to commence the creation of child pornography and even if the child eventually relents or gives consent to the creation, will make the person liable under Section 4(a) of the Anti-Child Pornography Act, as in this case. Since the crime was committed through a computer system, petitioner was correctly convicted of child pornography under Section 4(c)(2) of the Cybercrime Prevention Act in relation to Sections 4(a), 3(b) and 3(c)(5) of the Anti-Child Pornography Act.

As to the proper penalty to be imposed for child pornography committed through computer system, the Cybercrime Prevention Act provides that it should be one degree higher than that provided for in Anti-Child Pornography Act. Under Section 15(b) of Anti-Child Pornography Act, the penalty to be imposed is reclusion temporal in its maximum period and a fine of not less than One Million Pesos (Php1,000,000.00) but not more than Two Million Pesos (Php2,000,000.00). Thus, the penalty to be imposed here is reclusion perpetua. As properly pointed out by the ponencia, this Court has explained the reason for this rule in Disini, Jr. v. Secretary of Justice:46

I commiserate with petitioner as to the seeming harshness of the penalty for his act if it truly is just done out of thoughtlessness coupled with indecorous desire, without consideration to the harm it may cause to AAA. However, while the penalty may not seem commensurate to the act committed by petitioner in this case, it is what the law provides.

Notably, the Court has in many cases48 ruled against challenges to the constitutionality of a penalty imposed by law based on its alleged cruelty and disproportionateness to the crime punished. Faced with the issue of whether a penalty imposed by the law constitutes Constitutionally proscribed "cruel and unusual punishment," the Court has consistently ruled that "a punishment authorized by statute is not cruel, degrading, or disproportionate to the nature of the offense unless it is flagrantly and plainly oppressive and wholly disproportionate to the nature of the offense as to shock the moral sense of the community. It takes more than merely being harsh, excessive, out of proportion or severe for a penalty to be obnoxious to the Constitution."49

Here, appearing as it is that the validity or constitutionality of the penalty was not even questioned by petitioner nor was reduction of penalty prayed, We simply cannot impose a penalty less than what is fixed by law without infringing on the sphere of power vested in the legislature. Neither can We acquit based on Our perception that the penalty provided by Congress is not commensurate to the act committed by an accused in a particular case.

The Court, however, is not without means to exercise leniency should circumstances warrant the same. In these regard, former Justice Pedro Tuason imparted these wise words:

All things considered, I join the ponencia in affirming petitioner's conviction. Nonetheless, in light of the foregoing, I respectfully request that this case be referred to the Legislative and Executive branches for appropriate remedial action.

In view thereof, I vote to DENY the Petition and AFFIRM the assailed Decision of the Court of Appeals with MODIFICATION as to the penalty imposed.