(Part I of II)
Sexual abuse, harassment, and violence in any form and inflicted on any person is odious. But it is particularly harmful and urgent to prevent when children and vulnerable adults are targeted.
Unfortunately, such positive concepts as due process and the right to privacy are frequently invoked to stop actions that are intended to punish and prevent such abusive behavior.
As constitutional law and human rights professors, we believe that the human rights of accused perpetrators of sexual abuse must at all times be upheld. It is not only the right thing to do, but it also has practical consequences, as violating those rights could actually lead to acquittal for even the guilty person. Procedures can be revised without sacrificing fairness – by reframing them with principally preventive rather than punitive objectives.
Child sex abuse via the internet
There is a terrifying form of child abuse that plagues the internet today. There are over 23.4 million reports of child sexual abuse imagery or material (CSAI) received by the National Center for Missing and Exploited Children (NCMEC), a non-profit private corporation in the United States, since the creation of its CyberTipline in 1998.
Forty percent (40%) of these reports, according to a 2019 joint study from NCMEC, Google, and Thorn, were made in 2017 alone; 68% of the total reports relating to Asia, with Thailand and Indonesia as the two highest contributors in South East Asia.
As part of NCMEC’s mission to reduce child sexual exploitation, it sends reports to local law enforcement agencies should it find CSAI relating to that country. In the Philippines, the Department of Justice receives an average of 3,700 reports per month. In 2017, it received 52,694 reports of CSAI.
The exponential growth of CSAI reports may include proactive efforts of internet service providers, but the existence of these numbers alone is already chilling. An examination of the content, however, is intensely harrowing, as pre-verbal victims and more gruesome forms of abuse are found. According to the Philippine office of the International Justice Mission (IJM), a global anti-slavery organization based in Washington D.C., there are reports of increasing severity and frequency of abuse even in younger children. (READ: Internet service providers fail to report sites transmitting child porn – DSWD)
The Philippine situation
In the Philippines, the offense is punishable under laws against child pornography (Rep. Act No. (RA) 9775, in relation to RA 10175), trafficking of persons (RA 9208, as amended by RA 10364), or child abuse (RA 7610). The penalty can be as severe as reclusion perpetua (from 20 years and one day to 30 years) for production or distribution of child pornography using a computer, or life imprisonment for qualified trafficking of persons, such as when the offender is an ascendant, parent, sibling, guardian, or a person exercising authority over the trafficked person who is maintained or hired to engage in pornography. In both cases, the penalty includes a fine of P2 million to P5 million. (READ: PH government, private sector launch joint campaign against online child sexual abuse)
This context within which these crimes of online sexual exploitation of children (OSEC) are perpetrated in the Philippines shows its deleterious effect to society, as families are broken from the moment of the commission of the crime and even after government interventions are carried out in investigation, prosecution, and social welfare measures, which necessitate the separation of the child from the community, and especially the offending relative.
Rethinking our approach to due process
Due process is a constitutional right, no matter how grave the offense may be. Every offender deserves the right to be presumed innocent until otherwise proven guilty, to have counsel, to be heard, to be informed of the alleged offense, to have a fair and speedy trial, to confront witnesses and evidence against him, among others.
However, a review of the context within which the offense is committed in the Philippines gives us a chance to rethink our approach in the treatment of offenders and, in the process, also help the survivors.
First, the evidence of the offense is documented in digital form. This means that in order to inform the offender of the nature and cause of accusation, lawyers for both parties must be able to understand digital forensics (the collection, preservation, and analysis of digital evidence) and explain the evidence to the accused. Similarly, to ensure a fair trial, the same evidence must be adequately presented and appreciated by the judge.
The necessity of understanding evidence is key not only for the due process rights of the accused but to avoid re-traumatization of the survivor. Usually, prosecutions of sexual abuse cases necessitate the testimony of the victim because the commission of the offense was witnessed by the victim and offender alone. The need for testimonial evidence of the victim has been equated with the right of the accused to confront witnesses against him. However, in OSEC, the CSAI and the manner within which law enforcement collected and preserved the evidence should speak for itself, without the need to present a child recounting the distressing events experienced, with the offenders having the right to oppose the evidence. The survivors should not carry the burden of proving the offense in their quest for justice.
This can also be applied in administrative cases in churches, schools, and similar places where a major barrier in making progress on sexual abuse complaints is the reluctance of victims to come forward, file complaints, and give testimony.
Second, the motivations of an offender for committing the offense must be considered – perhaps not in extenuating the offense, but in the treatment of the offender. In some cases, offending parents believe that there is nothing wrong in posting or selling nude photos of the children as they are not being physically abused by the foreign customer – showing the offender’s lack of education on the injurious effects on the cognitive, psychosocial, and behavioral development of the child. Once informed, however, remorse and the desire for reconciliation of offending parents are present – and an apology from an offender is a powerful aspect of the healing process of a survivor and even the offender.
Likewise, administrative procedures in schools and churches can be designed to allow forgiveness. In any case, even when reconciliation is achieved, the goal should to be to remove opportunities for future abuse. Time and again, it has been shown that sexual abuse, harassment, and violence happen because of the access of perpetrators to children. Among others, violations should always be reported and investigated. And the priority should be to remove that access immediately and if justified permanently. That is the rationale for the zero tolerance approach where one single instance is enough to remove the person from a position or status.
Juan Carlos Cruz, a Chilean survivor of church sex abuse, summarizes this approach well: “You abuse a child or a person or anybody – you're out, and you're turned in to law enforcement. You cover up something like that – you're out, and you're turned in to law enforcement as well, but you're out of the church. That's the door, go away.” – Rappler.com
Tony La Viña is former dean of the Ateneo School of Government, and Rory L. Torres (@roryltorres) is former special counsel for legal intervention of the International Justice Mission. Both teach constitutional law and human rights in several schools.