A descriptive study on Cybersex, Audio-Visual Sex Scandals, and Child Pornography

administrator January 3rd, 2005

A descriptive study on Cybersex, Audio-Visual Sex Scandals, and Child Pornography: Prosecution under existing Philippine Laws, and Other proposals as a framework for future legislation
by Ailyn L. Cortez, Carlyn Marie Bernadette C. Ocampo-Guerrero, Michael Vernon M. Guerrero, and Reynaldo M. Pijo

I. Understanding Pornography and an Overview of the Technology Available Today

I. Pornography vis-à-vis Obscenity

A. Pornography

Pornography is the depiction of erotic behavior intended to cause sexual excitement.1 It is “the sexually explicit depiction of persons, in words or images, created with the primary, proximate aim, and reasonable hope, of eliciting significant sexual arousal on the part of the consumer of such materials.”2 In legal parlance, pornography “refers to any representation, through publication, exhibition, cinematography, indecent shows, information technology, or by whatever means, of a person engaged in real or simulated explicit sexual activities or any representation of the sexual parts of a person for primarily sexual purposes.”3 The 1986 Attorney General Commission on Pornography of the United States defined it as material that “is predominantly sexually explicit and intended primarily for the purpose of sexual arousal.”4

Soft-core pornography features naked or scantily clothed persons, focusing mainly on their breasts and genitalia but shows no sexual intercourse. Hard-core pornography includes various forms of sexual penetration, forced and unforced, between two or more people.5 Hard core pornography is said to be “sexually explicit in the extreme, and devoid of any other apparent content or purpose.”6

B. Obscenity

Obscenity, on the other hand, is “such indecency as is calculated to promote the violation of the law and the general corruption of morals.” 7 The current legal definition of obscenity is found in the 1973 US Supreme Court case of Miller v. California,8 cited in the Philippine Supreme Court case of Pita vs. Court of Appeals.9 According to the Miller case, material is obscene if all three of the following conditions are met:

  1. The average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interests.
  2. The work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state (or federal) law, and
  3. The work taken as a whole, lacks serious, artistic, political or scientific value.10

The US Supreme Court ruled in the Miller case, which was adopted by the Philippine Supreme Court in the Pita case, that a legal definition of obscenity must meet the three-part test. It must be determined, “(1) whether the predominant theme or purpose of the material, when viewed as a whole and not part by part, and when considered in relation to the intended and probable recipients, is an appeal to the prurient interest of the average person of the community as a whole, or the prurient interest of members of a deviant sexual group, as the case may be”; (2) whether the given material “depicts or describes, in a patently offensive way, sexual conduct – e.g. ultimate sexual acts, normal or perverted, actual or simulated; masturbation; excretory functions; or lewd exhibition of the genitals – measured against contemporary community standards; i.e whether it so exceeds the generally accepted limits of candor as to be clearly offensive”; and (3) “whether the material, taken as a whole, lacks serious literary, artistic, political or scientific value.”11 If it appeals, thus, to the prurient interest, is patently offensive, and lacks serious value (artistically, etc.) then the material is considered obscene and is illegal.

II. Pornography vis-à-vis Prostitution; History of Pornography

Prostitution – that is, “the practice of engaging in sexual activity, usually with individuals other than a spouse or friend, in exchange for immediate payment in money or other valuables”,12 or in legal parlance, “any act, transaction, scheme or design involving the use of a person by another, for sexual intercourse or lascivious conduct in exchange for money, profit or any other consideration”13 – has existed since time immemorial. Prostitution and pornography are intertwined inasmuch as pornography originally signified any artwork or literature depicting the life of prostitutes. Today, pornography includes erotic and sexually explicit imagery of ordinary persons, who may even be unaware that they are presented to the public in such a manner. Pornography has grown increasingly as a necessary offshoot of prostitution, in light of the increasing supply of cheap image capturing devices.

Pornography has existed for centuries, although imagery and literature of such nature were not seen to be worthy of preservation or transmission. Rare images surviving to the present are hand-drawn graphics originating from India and Japan.14 Some literature which survived – although such are being argued to be artistic and not pornographic, depending on the community standard being applied – includes the Indian “Kama-Sutra” and the Greek treatise “The Art of Love” by Ovid, among others. With the advent of printing in 1452, pornography, existing in the fringes of legitimate publishing, proliferated to entertain as well as to arouse. The development of photography in 1827, through the individual efforts of Joseph Nicéphore Niépce and Louis Jacques Mandé Daguerre,15 and the development of moving pictures in 1867, through the individual efforts of William Lincoln, Louis Lumière, and the Edison Brothers,16 although not intended, contributed to the proliferation of pornography, as did the Internet, which grew out of the U.S. Defense Department program called ARPANET (Advanced Research Projects Agency Network) established in 1969.

III. Technology aiding the storage and transmission of pornography

Pornography exists in different media. Explicit images and image sequence may be stored in tangible and electronic forms.

A. Traditional media

Pornography in tangible or traditional media may be subcategorized as those printed in paper or other surface materials, and those captured in film. Those printed in paper includes photographs – either studio processed or polaroids17 – besides usual pornographic publications. Those stored in film includes those stored in television and theatrical/cinema-grade films, such as the Super 16 (16mm) and the 35mm, respectively; film positives or slides; outmoded media such as Super 8 (8mm),18 Betamax,19 VHS,20 and Compact VHS,21 among others. Storage in these media, i.e. printed or in film, may be bulky, and the cost of production and distribution is average to high. The potency of distribution is also limited.

B. Modern Media

Pornography in electronic or modern media, on the other hand, may be subcategorized – although said media are identically binary22 – according (1) to the class of storage device used, (2) to the class of consumer electronics used, or (3) to the multimedia format used.

1. Storage devices used23

Electronic documents, especially multimedia files, may be stored in disk storage,24 magnetic bubble memory,25 and flash memory26 /memory card27 or the solid-state semiconductor memory type. Disk storage may be classified further as optical disc28 – which comes in various formats: CD-ROM, (through CD-R and CD-RW media, i.e. writeable and rewriteable, respectively),29 is “a non-volatile optical data storage medium using the same physical format as audio compact discs, readable by a computer with a CD-ROM drive. A CD-ROM is a flat, plastic disc with digital information encoded on it in a spiral from the center to the limit, the outside edge.” A CD-R (Compact Disc-Recordable) is “a thin (1.2 mm) disc made of polycarbonate with a 120 mm or 80 mm diameter that is mainly used to store music or data. Unlike conventional CD media, a CD-R has a core of dye instead of metal.” Compact Disc Rewritable, or CD-RW, is “a rewritable version of CD-ROM. Whereas standard prerecorded compact discs have their information permanently stamped into an aluminium reflecting layer, CD-RW discs have a phase-change recording layer and an additional aluminium reflecting layer.” (CD-ROM, CD-R, and CD-RW. Wikipedia, the free encyclopedia. Retrieved 10 February 2005 from Wikipedia. http://en.wikipedia.org/wiki/CD-ROM, http://en.wikipedia.org/wiki/CD-R, and http://en.wikipedia.org/wiki/CD-RW, respectively.) )) DVD (through DVD-R, DVD-RW, DVD+R, DVD+RW, DVD-RAM media),30 Blu-ray,31 and Minidisc32 – magnetic (or hard discs),33 removable magnetic such as floppy34 and zip discs,35 and holographic.36 Flash memory or memory cards are available through different manufacturers as CompactFlash I and II,37 SONY Memory stick (Standard/Duo/Pro/MagicGate versions),38 Secure Digital,39 MMC,40 SmartMedia,41 xD,42 or USB Keydrive43 a.k.a. Thumb drive. Most multimedia files are stored in hard discs, optical discs, removable magnetic discs, and flash memory or memory cards. Physical distribution and transport of digital multimedia files are usually made using optical discs and flash memory or memory cards.

2. Consumer devices used

Storage of multimedia files is not isolated to computers, where data storage devices are widely used, whether desktop or portable (laptop or palmtop44 ). Multimedia files are also presently stored in Multimedia Messaging System (MMS)45 -enabled mobile telephones,46 digital audio players47 (DAP, sometimes also recorder), digital cameras and camcorders, digital recorders,48 among other digital devices available in the market. Transmission of such multimedia files is a function no longer in the exclusive realm of computers. The ways to transfer multimedia files increase exponentially as new classes of digital devices are introduced in the market.

3. Non-physical transfer methods used

Multimedia files may be transferred from one computer to another, directly, through cables, radio, infrared, and other analogous means. Such files may be transferred through intermediary storage devices, such as optical discs, memory cards, and removable magnetic discs.

a. Electronic

Multimedia files may be transferred electronically through wires and cables. Earlier methods of connecting computers include parallel-to-parallel port cabling (for one-to-one connection) and Bayonet Neill-Concelman (BNC)49 cabling (for Local Area Network [LAN])50 which are now passé, due to availability of cheaper computers and computer network peripherals such as hubs51 and routers.52 Current connections between computers are normally done through USB-to-USB53 port link, and LAN connections using RJ45 (Registered Jack 45) jacks and cables. One LAN can be connected to other LANs, or one remote computer can be connected to one LAN, or one remote computer can be connected to another remote computer, over any distance via telephone lines and radio waves.54 Multimedia files are transferred in an Intranet55 through the use of shared folders in individual computers or allocated user folders in the file server. Similar files have been transferred from one remote computer to another, prior to and simultaneous to the widespread use of the Internet, through Bulletin Board Service (BBS).56

When a computer, or the LAN, is connected to the Internet, various methods may be utilized to transfer and retrieved multimedia files on the Internet or another peer’s computer. Different protocols may be used, such as HyperText Transfer Protocol (HTTP)57 where the World Wide Web58 is seen; Post Office Protocol version 3 (POP3)59 or Internet Message Access Protocol (IMAP),60 and Simple Mail Transfer Protocol (SMTP)61 where email is received and sent, and File Transfer Protocol (FTP)62 where large files may be sent to an online repository or an allocated user folder in a destination server, Discussion boards or Usenet,63 among others. Multimedia files may be transferred from one computer user to another through Internet Relay Chat (IRC),64 or through Instant Messaging.65 Said files may be transferred by simultaneously connected computer users using peer-to-peer66 software, such as Kazaa, eDonkey, GNUtella, and the like.

b. Radio waves

Wireless LAN (WLAN) uses radio waves as its carrier, although the network backbone remains to be supported by wires and cables. Apple Macintosh computers use the pioneering WLAN product called AirPort.67 Apple and most Wi-Fi (Wireless Fidelity) device manufacturers follow IEEE 802.1168 WLAN standard, while a few follow the HomeRF69 standard (2 Mbit/s, intended for home use). “Wired” LAN is preferred with desktop computers, while WLAN/Wi-Fi is preferred with mobile computers whether laptop or personal digital assistant (PDA). WLAN is more vulnerable to security breaches because it enables any person with a wireless-enabled computer or PDA to connect to the network, else the Internet, when in proximity of an access point called a hotspot, if not properly configured.

On the other hand, Bluetooth70 provides a way to connect and exchange information between devices like personal digital assistants (PDAs), mobile phones, laptops, personal computers, printers and digital cameras via a secure, low-cost, globally available short range radio frequency, as long as they are within 10 metres or 32 feet of each other.71 Bluetooth may be considered as wireless USB, contradistinguished with Wi-Fi, which may be considered as wireless Ethernet.72 Bluetooth does not use any telecommunication network resources when files are transferred from one computer or any other device to a mobile phone, or vice versa, or from one mobile phone to another. Only when the mobile phone user/subscriber utilizes the phone company’s MMS service does he use telecommunication network resources for the transfer of the multimedia material to another mobile phone subscriber.

c. Infrared Radiation (IR) data transmission73

The use of infrared for data transfer was common between portable computers (laptops) and mobile phones, among others, prior to the popularity and affordability of Bluetooth and subsequent to the use of serial connections between the two (2) devices. Normally, the portable computer recognizes the mobile phone device as another computer connected to it. Integrity of connection, however, was a drawback to this kind of technology.

4. File formats used

Multimedia files come in different file formats, and may be subcategorized as pictures, video, and audio. Pictures are usually in JPEG,74 GIF,75 and BMP76 formats, but may also be in PNG77 and any other format. Videos are usually in AVI,78 MPEG,79 WMV,80 and RM81 formats. On the other hand, audio or sound clips are usually in MP3,82 WAV,83 WMA,84 and RA85 formats.

IV. Digital Pornography

A. Pornography in the Internet

The Internet has been called the network of networks. Over 9,400,000 host computers are linked worldwide of which 60% are estimated to be in the United States. It is further estimated that over 40 million people access the Internet around the world and that figure grew to 200 million in 1999. All Internet users have the ability to communicate with one another through various forums such as email, news groups, and information posted on the World Wide Web. Once material has been placed on the Internet, it is available to all other Internet users worldwide and cannot be prevented from entering any community.86

1. Cyberporn / Non-Streaming Internet Pornography

With sex being indulged in more freely these days, it is not surprising that pornography, in a similar trend, becomes highly available in various media, especially Internet-connected personal computers. This trend is imminent inasmuch as the Internet has become a vast myriad of interconnected channels that provides man with a gateway to the world. In a relatively short time, the Internet’s impact and influence on people’s daily lives is immeasurable. There are elements or enclaves within it that have grown to become sources of consternation within the society. Among them is the pervasive availability of pornography or more commonly known Cyberporn. Cyberporn has been the most controversial topic arising from the use of the Internet in recent years and for years to come.

Cyberporn includes hardcore pictures and movies made available online. Sexually explicit images can be found on web pages (World Wide Web [WWW]) and in news groups (Usenet), and are far too easy for anyone of any age to view. Even live sex acts can be viewed by virtually anyone through the Internet, through web-cameras on online chat (Internet Relay Chat [IRC]). Explicit contents may also be transmitted through online messengers – such as Windows Messenger, Yahoo Messenger, and ICQ, among others – or through peer-to-peer (P2P) programs – such as Kazaa, among others. What was only available to a small number of people willing to drive to the bad side of town can now be viewed at any time in the privacy of one’s home.87

In a case conducted by Carnegie Mellon, entitled Marketing Pornography on the Information Superhighway,88 the researchers therein pulled together elaborate computer records of online activity, and found out that “during their 18- month study, Carnegie Mellon researchers found 917,410 sexually explicit pictures, descriptions, stories, and clips. On the Usenet newsgroups where these digitized images are stored, they found that 83.5% of the pictures were pornographic.”89 They found individual consumers in at least 2000 cities, in all 50 states, and in 40 countries around the world; and found out that 98.9% of the consumers of porn are men, although women do participate in “chat” rooms and other bulletin boards.90

a. Through Bulletin Board Systems (BBS)

Nearly three fourths (71%) of the sexually explicit images surveyed originate from adult BBS attempting to lure customers to additional collections of cyberporn. There they can charge monthly fees and take credit card numbers for individual images. The five largest adult BBS systems have annual revenues in excess of $1 million.91

b. Through World Wide Web (WWW)

Cyberporn is largely available through the World Wide Web (WWW) pages. These range from pictures, short animated movies, short and full actual movies, to sound files and stories. Most premium adult WWW sites require proof of age and payment by credit card to access their materials.92 Marketing webmasters for premium adult websites, however, provide samplings of adult materials in unsecured webpages – i.e. without age verification through credit card check – in their individual Thumbnail Gallery Posts (TGPs).

c. Through Usenet

There are more than 14,000 Usenet discussion groups all around the world but only around 200 groups are sex related, and some of these relate to serious and legitimate discussions, such as about homosexuality or sexual abuse. Still, sexually explicit forums are the most popular areas on computer online services. At one university, 13 of the 40 most frequently visited news groups had names like alt.sex.stories, rec.arts.erotica, and alt.sex.bondage.93

d. Through Internet Relay Chat (IRC)

The Internet, through Internet Relay Chat (IRC) and online messaging, makes it possible to discuss sex, see live sex acts, and arrange sexual activities from computer screens. Users therein may exchange messages and files in small groups or in private channels Like the Usenet discussion groups a small fraction of the IRC channels are dedicated to sex.

e. Peer-to-Peer (P2P)

This method of file sharing allows every individual running a peer-to-peer client or program to acquire sought multimedia files simultaneously and in fragments from different users, and share his own media without having the technical knowledge that would have been required in the older client-server model. Although copyrighted and adult materials are not allowed to be transmitted in peer-to-peer networks, according to the End-User License Agreements that comes with the software used as peer-to-peer clients, most users do not abide by the stipulation that prohibit such transmission.

2. Cybersex / Streaming Internet Pornography

Cyber sex, in its shortest and most explicit definition is, a combination of communication and masturbation. It is a selfish gratification of one’s sexual desires while sharing one’s most intimate thoughts and fantasies with someone else. It is nearly identical to phone sex, the only difference being the method of communication. As computer networks become ever more sophisticated and voice chat more common, even this distinction fades. The newest problem comes in the form of video conferencing, which adds visual images making the activity even more addictive.94

Cyber sexual activity takes many forms. One might download explicit pictures, or explicit stories. One might partake in the exchange of racy, sexually suggestive e-mails. One might view sexually arousing videos which open up and play on one’s computer screen, which may be either pre-recorded or live. Webcams, cameras interfaced with a computer so that one might broadcasts live streaming images of oneself, are increasingly common in the use of cybersexual activity. Chat rooms, whether general or private, are as popular as ever and might often lead to masturbation, cybersex, phone sex, or actual meetings in the flesh.95

Indeed, cybersex is a phenomenon that is neither receding nor going away by any stretch of the imagination. Cybersex is a growing phenomenon, with an all too rich and vibrant future.

B. Pornography in Optical Devices / VCD-DVD

The popularity and the adaptation of compact discs (CD-ROM) and digital versatile discs (DVD), as media for films and data storage, marked the demise of tape videos – such as those stored in Betamax and VHS – as media suitable for such content. The marked decrease in the price of CDs and DVDs allow the proliferation of contraband films, whether pirated Hollywood and Filipino movies or sexually-explicit X-rated movies whether foreign or Filipino. With pornography in VCDs fetching a price of mere twenty (PhP 20) pesos to fifty (PhP 50) pesos, it is not uncommon that porn purchasers would gravitate towards genre fixation or towards pursuing novel themes, some actively pursuing extreme perversions while others passively pursuing voyeurism or psuedo-voyeurism, a genre that would include the various sex scandal videos peddled nowadays.

C. Pornography in Mobile Phones / MMS Clips

As mobile phones are slowly being transformed into converged communication devices with capabilities similar to computers, contents normally prevalent in the Internet and in personal computers shift venue to mobile phones. The ease of converting ordinary pictures and movies in their original formats as MMS content likewise aid to the immediate shift of computer content to mobile phones. Further, the capability of mobile phones to access the Internet directly allows download of Internet content into the phone itself. Other services such as messaging and chatting, which may altogether swerve towards adult context, or if not towards solicitation, as practiced in the Internet can find a sizeable niche in the mobile phone market.

The problem does not stop with the conversion of Internet/computer content into MMS content but aggravates with instances of production of new content, using the built-in camera of more advanced mobile phones. It is thus easier to capture a sexual pose or act, with or without the subject(s)’ consent, by a click of a button. The mobile phone may also be used to capture images of prank sensual images known as upskirting and/or downblousing of anonymous persons in public places. Inasmuch as mobile phones are considered as indispensable accessory to most users, such phones can be easily taken in places where various stages of undressing is permitted, such as in disco-bars, pool areas, beaches, and spas; where images of a sinister context may be easily taken, if the management of such venues do not implement strict measures or parameters as to the use of such devices in said premises.

D. Child Pornography in any medium

The Optional Protocol on the Sale of Children, Child prostitution and Child pornography defines “child pornography” as any representation of a child engaged in real or simulated explicit sexual activities or of the sexual parts of a child for primarily sexual purposes. Child pornography is a visual recording of a crime being committed and the children who appear in such pictures are, at the time the picture is being taken, subjected to degrading, abusive and humiliating acts of a criminal nature.96

Although it is clear that sexually explicit poses or acts of children, below the usually accepted 18-year minimum age threshold, are considered largely as child porn, what altogether constitutes child pornography remains under debate. It is unclear whether photographs of naked children would ipso facto be considered as child pornography. It is unclear whether the child’s genitals require to be exposed before images may be considered as such. It is likewise unclear whether only images and movies may be only form of child pornography, or whether it includes sounds and texts as well. Further, it is unclear whether child nudity, which is imbued with artistic merit, would not be exempted from such class of pornography. Furthermore, it is unclear whether simulated child pornography – whether due to the convincing appearance of non-underage females to appear as if under 18, or whether the image is completely computer-generated without visual input taken from an actual child – is included also. The issue as to child pornography becomes further muddled on the definition of a child, in light of the varying age of consent in countries, such as the United Kingdom (16) and Japan (13). Unless a national law makes clear definitions and delineations, what constitutes child pornography would be varied according to various perceptions, different standards of morality, and unclear application in light of territoriality issues in International law.

In fact, various countries have different interpretation as to what constitutes child pornography. In the United States, child pornography is defined as visual depiction of minors engaged in a sex act – such as intercourse, oral sex, or masturbation as well as the lascivious depictions of the genitals, which do not require the genitals to be uncovered.97 Federal and state laws differ whether mere nudity involving minors comes under the definition of child porn, or if it would necessarily qualifies as obscene. Prohibitions against simulated child pornography have been found to be unconstitutional in the United States – unlike in the United Kingdom, Germany and the Netherlands – for being overbroad.98 In Canada, material that shows someone who is or is “depicted as being” under 18, and is engaged or “depicted as engaged” in explicit sexual activity, is classified as “child pornography”. Materials judged to have “artistic merit,” however, are excluded. On the other hand, a written text that advocates or counsels sex with a child is also included. In Germany, the definition does not differ from that of conventional pornography. Sound and text can also be considered pornography. In the United Kingdom, a “child pornography” image is an “indecent photograph of a child”; there is no specific requirement of sexual content, as nudity is sufficient for an image to be indecent. In Japan, child erotica99 only became illegal in 1999 following the country’s passing of its Protecting Children Online law.100

The degree of gravity, or hardness, of child pornography ranges from

“0. Clothed or portrait.

“1. Naked, but not posed. Many of these were nudist-type photographs. The children in these photographs gave no sign of being aware of the camera and were usually depicted engaged in other activities such as swimming or playing ping pong, etc.

“2. Naked and posing. The children here were looking at the camera or had adopted a self conscious pose.

“3. Naked with genital contact or contact with another body. These included photographs where a hand was in contact with the genitals, and photographs showing naked children hugging or kissing each other.

“4. Oral contact with sex organs.

“5. Penetration, either anal or vaginal.

“6. Bizarre. This last category contained material with a sadomasochistic character, urine sex, and photographs on which objects were introduced into the body orifices.” 101

For obvious underage girls, levels 2 to 6 are manifest instances where child pornography exists. Level 1 provides the gray area on the debate whether such nudist-type photographs would constitute child porn. The inclusion of Level 0 as a degree of gravity of child pornography in itself is debatable, as some proponents distinguish between child pornography and prêt art. Pret Art (Pre-teen Art) or Lolita Art is an erotic form of art, in which clothed adolescent or pre-pubescent girls pose for photos or videos.102 The fact that models in Pret Art are not nude and the poses are not overtly sexual or otherwise harmful provides a fertile ground for debate whether Pret Art itself encourages pedophilia or whether it only depicts attractive minors similar to mainstream entertainment.

Experts cite several reasons why individuals collect child pornography. These are:

“1. Arousal and gratification: Individuals use pornography to stimulate their sexual drive and to aid in sexual stimulation. Some may only fantasise and others may use it as a prelude to actual sexual activity with minors.

“2. Validation and justification of paedophile behaviour: The paedophile uses pornography to convince him/her self that their behaviour or obsession is not abnormal, but is shared by thousand of other sensitive, intelligent and caring people.

“3. To lower a child’s inhibitions: Child abusers use pictures of other children having sex to assist in the seduction of a child and encourage reluctant children to freely participate. Images are often used as a way to show a child what the offender wants the child victim to do. Pornography may be used under the guise of “sex education” to create sexual arousal in the child.

“4. Preservation of the child’s youth: Child pornography ensures that there will always be an image of the child at the age of sexual preference.

“5. Blackmail: Sexually explicit images are used to ensure the lifelong silence of the victimised child by threatening to show the pictures to parents, peers or others. Child victims will not always report pictorial records—even if they report sexual abuse—because they may be ashamed of what happened to them as well as of their participation in the pornography.

“6. A medium of exchange: Child pornography is used as a means of establishing trust and camaraderie with other paedophiles and molesters and as proof of their good intentions when establishing contact with other exploiters. It is a medium of communication with fellow exploiters in public and private sex markets.

“7. Access: Some exploiters exchange pornography to gain access to other markets and to other children.

“8. Profit: Although most do not sell child pornography, there are some paedophiles and child molesters who sell home-made videos and photos on a one-to-one basis. Some child exploiters sell their self-produced materials to finance trips overseas to popular sex tourist destinations.103

V. National attitude on pornography

The attitudes of various nationalities vary on the issue of pornography. Western countries have relaxed restrictions on pornography. The sanctity of the freedoms of speech and information in the United States, for one, appear to be paramount, and thus the Courts therein finds censorship a greater threat than pornography.104 Other countries, such as the Philippines, largely relate pornography with obscenity, and thus continue to strictly regulate, if not totally prohibit, such practice.105 Still, child pornography – or kiddie porn – is almost universally prohibited, and faces the disapproval of most members of society.

Child pornography exists due to production, distribution, and possession of materials relevant thereto. Laws in different countries differ on these matters. Production and sale of child pornography is generally illegal in most countries. Mere possession, however, is illegal in the United States, United Kingdom, and Netherlands. In contrast, downloading and possession of child pornography is not specifically prohibited in Russia.106

VI. Offenses instrumental and incidental to pornography

1. Sex Tourism

Sex tourism is “tourism, partially or fully for the purpose of having sex, often with prostitutes.” Legally, Sex Tourism “refers to a program organized by travel and tourism-related establishments and individuals which consists of tourism packages or activities, utilizing and offering escort and sexual services as enticement for tourists. This includes sexual services and practices offered during rest and recreation periods for members of the military.”107 Certain individuals seek sex in another country or region, possibly, due to (1) more relaxed morality laws, (2) less rigorous enforcement of laws, (3) cheaper rates, (4) more anonymity / privacy, (5) finding certain ethnic groups more attractive, (6) preferring the “work ethics” of foreign prostitutes to those of one’s own country, or (7) finding sex in tropical surroundings and a hot climate more arousing, among others. While most sex tourists only engage in this activity with other adults, a small percentage actively looks for adolescent or even younger prostitutes.108

2. Sexual Exploitation and Child Sexual Abuse

Sexual Exploitation “refers to participation by a person in prostitution or the production of pornographic materials as a result of being subjected to a threat, deception, coercion, abduction, force, abuse of authority, debt bondage, fraud or through abuse of a victim’s vulnerability.”109 Child sexual abuse denotes sexual abuse of or sexual activity with children. In addition to activities that would be considered sexual abuse between adults, it includes (1) sex between adults older than a predefined age of majority and children below a predefined age of consent (generally between 12 and 18 years), (2) acting as a pimp for child prostitution, (3) inducing a child to behave sexually in a performance, or to appear in child pornography, and (4) lewd action towards children, including disseminating pornography to a minor.110

Pedophilia, Ephebophilia, and Infantophilia involve Chronophilia, i.e. a paraphilia in which the paraphile’s sexuoerotic age is discordant with his or her actual chronological age and is concordant with the age of the partner. (1) Pedophilia, or pedosexuality, is the condition of people whose primary sexual attraction is toward prepubescent children; and it is often used informally to describe people attracted to adolescents, or to describe child sex offenders. (2) Ephebophilia, or hebephilia, is the condition of adults who are attracted to postpubescent adolescents; pederasty if toward male adolescents or lolita syndrome if toward female adolescents.111 (3) Infantophilia, or nepiophilia, is the sexual attraction of adults to small children (0-5 years old), inasmuch as interest in a 10-year old and a 2-year old seem rather to be different preferences.112

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  1. Prostitution. Britannica Concise Encyclopedia. Retrieved January 27, 2005 from Encyclopædia Britannica Premium Service. http://www.britannica.com/ebc/article?tocId=9376014. [↩]
  2. Hogg, Charles. What is Pornography? Pornography and the Internet in the United States. Citing the definition of VanDeBeer, Donald. 1992. “Pornography.” Encyclopedia of Ethics. New York: Garland Publishing. http://www.slais.ubc.ca/courses/libr500/fall1999/www_presentations/c_hogg/define.htm [↩]
  3. Section 3(k), Republic Act 9208. RA 9208 is entitled “An Act to Institute Policies to Eliminate Trafficking in Persons especially Women and Children, establishing the necessary institutional mechanism for the protection and support of trafficked persons, providing penalties for its violations, and for other purposes.” See the Philippine Laws and Jurisprudence Databank - The Lawphil Project. http://www.lawphil.net/statutes/repacts/ra2003/ra_9208_2003.html. [↩]
  4. Anderson, Kerby. The Pornographic Plague. Probe Ministries. Citing the Final Report of the Attorney General’s Commission on Pornography, ed. Michael McManus (Nashville, Tenn.: Rutledge Hill Press, 1986), 8. http://www.leaderu.com/orgs/probe/docs/pornplag.html [↩]
  5. Olson, Jeff. When A Man’s Eye Wanders. What is pornography? Retrieved 10 February 2005 from RBC Ministries. http://www.gospelcom.net/rbc/ds/cb991/page1.html [↩]
  6. Anderson, Kerby. The Pornographic Plague. Probe Ministries. Supra, see note 4. [↩]
  7. Legal Definition of Obscene, Obscenity. Retrieved 10 February 2005 from The Lectric Law Library’s Lexicon http://www.lectlaw.com/def2/o002.htm [↩]
  8. See the case of Miller vs. California, decided by the Supreme Court of the United States (413 U.S. 15). See FindLaw for Legal Professionals - Case Law, Federal and State Resources, Forms, and Code. http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=413&invol=15 [↩]
  9. See the case of Pita vs. Court of Appeals, decided by the Philippine Supreme Court (GR 80806, 5 October 1989.) See the Philippine Laws and Jurisprudence Databank - The Lawphil Project http://www.lawphil.net/judjuris/juri1989/oct1989/gr_80806_1989.html [↩]
  10. Anderson, Kerby. The Pornographic Plague. Probe Ministries. Supra, see note 4. [↩]
  11. Legal Definition of Obscene, Obscenity. Supra, see note 7. [↩]
  12. Pornography. Britannica Concise Encyclopedia. Retrieved January 27, 2005 from Encyclopædia Britannica Premium Service. http://www.britannica.com/ebc/article?tocId=9375674. [↩]
  13. Section 3(c), RA 9208. Supra, see note 3. [↩]
  14. Samples of Japanese and Indian