By Raïssa Robles
Last October 9, 2012, Justice Assistant Secretary Geronimo Sy went out of his way to mention me by name in his media briefing about the Cybercrime Prevention Act; he also mentioned what I said about cyber adultery.
Before that briefing, I’d written a piece called “The Cybercrime Law was brought to you by 7 senators & 12 congressmen”. Here’s the link to my article where I criticized Section 6 of the Cybercrime Prevention Act which not only CRAMMED the entire Penal Code and all special laws within the ambit of the Cybercrime Law. It also raised the punishment one degree higher.
Here is the section I questioned:
SEC. 6. All crimes defined and penalized by the Revised Penal Code, as amended, and special laws, if committed by, through and with the use of information and communications technologies shall be covered by the relevant provisions of this Act: Provided, That the penalty to be imposed shall be one (1) degree higher than that provided for by the Revised Penal Code, as amended, and special laws, as the case may be.
In addition, the next section makes the accused liable as well for violating the present Penal Code:
SEC. 7. Liability under Other Laws. — A prosecution under this Act shall be without prejudice to any liability for violation of any provision of the Revised Penal Code, as amended, or special laws.
In that article, I had interviewed Congressman Teddy Casiño – who had voted “yes” to the House version of the Cybercrime Law. I told him my apprehension about the law and gave him the crime of adultery as an example. Here’s what I wrote:
“For instance, I told him (Casiño), if a woman commits adultery using a computer, she would be guilty of a cybercrime and her penalty would be one degree higher.”
To use my previous example of the case of the woman accused of adultery, because of Section 6, if a married woman’s e-mail to her lover were submitted as evidence, her penalty if convicted automatically becomes one degree higher.”
This is what Assec Sy said in his lengthy October briefing about what I wrote:
To quote Assec Sy in this video:
“Pause for a minute. And with all due respect to Raissa, can you help me think of a scenario when adultery can be committed with a – through the computer.
I had a nightmare last night. I said, how can I answer this provision. In what instance can I commit adultery over a computer.
Seriously, I can’t think of any situation where adultery can be committed through a – with a computer, maybe. But not through a computer. OK?
But the whole point is, we have to be very careful of this. I mean as I said I respect Raissa and all of that, but, the question is, she might have been confusing the mode of proving adultery – electronic evidence – e-mail – versus the fact of adultery.
Two separate things. No two separate prosecutions. Definitely no higher cyber-adultery. No higher cyber-adultery, definitely. I can say that.
There is in law what we call the factum probandum and factum probans. For the lawyers here, two different things. Sounds like, looks similar, totally different.
So with all due respect, let’s be careful in blogging because when lay person reads it, it creates another chilling effect or whatever it’s called. Let’s have a seasoned debate, a very clear debate on what it’s all about. So far, so good?
Assec Sy is probably busy right now feverishly trying to prepare explanations for why there’s no “chilling effect” to the multitudes who’ve expressed outrage about the cybercrime law (which seems to be primarily Sy’s handiwork). But at any rate, I will now belatedly answer his remarks.
Dear Atty Sy, if cyber adultery doesn’t exist, why is it listed?
Let’s just assume, as Sy claims, that one cannot commit adultery using a computer or any other technological device.
If this is the case, then why is the crime of adultery even included in the Cybercrime Prevention Act?
Besides adultery, what other crimes in our Penal Code and special laws cannot be committed “by, through and with the use of information and communications technologies?” Who is supposed to sift through these hundreds of laws to find out?
Remember, the entire Penal Code and all special laws were CRAMMED into the Cybercrime Law through Section 6. It states that –
“All crimes defined and penalized by the Revised Penal Code, as amended, and special laws, if committed by, through and with the use of information and communications technologies shall be covered.”
Remember, it was Assec Sy himself who had drafted the Cybercrime Prevention Act, which the senators virtually adopted as theirs except for some insertions such as Senator Vicente Sotto’s online libel.
Under the principle of statutory construction, when a section states “all crimes”, it means all crimes without exception, for as long as these are “committed by, through and with the use of information and communications technologies.”
Who is now to determine whether a certain crime cannot be “committed by, through and with the use of information and communications technologies?”
This, I believe, is what the make the present Cybercrime Law so dangerous because it is so vague and so broad in scope. It leaves too much to court interpretation. One highly-placed official I talked to calls Assec Sy a “favorite fascist.” It gives an idea of the mindset the Cybercrime Prevention Law comes from.
That’s why it will give the average law-abiding Filipino nightmares.
Does cyber adultery exist?
The advent of social networking sites and chat rooms on the Internet has opened up a new channel for committing adultery. In the year 2000, Famiglia Cristiana – a magazine that states the Vatican line – first sounded the alarm against “cyber adultery”:
In recent years, there emerged in developed countries – where computer penetration is high – the growing problem of men and women taking on virtual lovers.
Here is an interesting article on it, about a married man who has taken on an “online wife” in a virtual world – where the players number in the millions – through an Internet game called “Second Life”:
It’s Sunday morning at 6AM, and Dutch Hoorenbeek rolls out of bed to check on his strip club and do some renovations to an outside party deck. He then fires several tenants in his mall for not paying rent, signs up four new ones, and transports to his office to spend some time with his wife, Tenaj Jackelope.
The thing is, in real life, Dutch Hoorenbeek is actually Ric Hoogestraat, a call-center operator making $14 an hour. He’s also married to Sue Hoogestraat, not Tenaj Jackelope.
Confusing? It should be. Turns out that Ric and Sue’s marriage is on the rocks. She contends that he spends more time online in Second Life, a virtual universe currently home to 30 million players, with his online wife. Sue spends her days in front of the television, while Ric is in the other room running a virtual night club and consorting with his online wife, sometimes for as long as 14 hours at a time on weekends.
To read the rest of the article, click on this link.
Below is a teaser video about “Second Life”:
Here’s another one about cyber adultery –
The Sydney Morning Herald [Australia] reports that “virtual adultery” is a new threat to marriages. Until recently, adultery has been a sin of the flesh. Temptation arrives, chemistry sizzles and before long the unfaithful spouse is spending stolen nights in cheap hotels. Now there is a new threat: the virtual affair. While some argue online affairs aren’t real, research shows some spouses take them as seriously as the offline variety – and they’re becoming a gateway to divorce.
To read the rest of the article, click on this link.
The US military was concerned enough to post the following on its website:
Cyber affairs — are they the new adultery?
By Michelle Owens/Army Flier
FORT RUCKER, Ala. (TRADOC News Service, Oct. 2, 2006) —
With the availability of chat rooms and groups on Internet Web sites, the temptation to meet new people online increases, according to ChatCheaters.com, a Web site created to help couples struggling with Internet infidelity and how to work through the problems.
A Probe Ministries Internet article titled, “The Allure of Cyber-Relationships,” defines a cyber affair as “an intimate or sexually-explicit communication between a married person and someone other than their spouse that takes place on the Internet.”
Two-thirds of American attorneys say the Internet played a significant role in divorces, according to ChatCheaters.com.
Online relationships provide individuals with an outlet to tell secrets and express themselves to a stranger anonymously, while allowing for the creation of another persona, according to the Probe Ministries article.
Men often create a well-groomed, professional, athletic persona, while women create a thin, beautiful and adventurous alter ego. When online, people create fictitious, seemingly perfect personalities that are desirable to others to fill social and psychological needs, the article stated.
To read the rest of the article, click on this link.
So, Assec Sy, what do you think? Does cyber adultery exist?
Adultery under Philippine law
At the moment, Philippine law defines adultery this way:
“Adultery is committed by any married woman who shall have sexual intercourse with a man not her husband and by the man who has carnal knowledge of her, knowing her to be married, even if the marriage be subsequently declared void.”
Could not a smart lawyer argue in court that “sexual intercourse” in the Internet Age also means intercourse of a sexual nature between a married woman and a man, using a modern device such as the mobile phone or the iPad and iPod, in such a manner that they perform a virtual intercourse?
DOJ Assec Sy said in his lecture that I mistook factum probandum for factum probans.
According to the 1972 Philippine Law Dictionary of the late Supreme Court Justice Federico Moreno which I have, factum probandum is “a fact to be proved or established”; while factum probans is “a proving fact.”
As I understand Assec Sy, in cases of adultery, the crime itself is the factum probandum; while he contends that e-mails and videos are the “proving fact” or factum probans.
The problem is that in the crime of adultery, the proving facts play such a major role in establishing the crime. I was aghast to find out that a wife need not be caught in the act – or inflagrante delicto – to be convicted of adultery. According to the book on the Revised Penal Code written by the late husband-and-wife Supreme Court Justices Ramon C. Aquino and Carolina Griño-Aquino:
“…proof of adultery, like proof of most other crimes, may safely rest on circumstantial evidence when the evidence is such that it leaves no room for reasonable doubt as to the guilt of the accused. Conviction for this crime has been frequently had without direct evidence as to the specific acts constituting the offense. The unexplained fact that a man is found at a late hour of the night alone in the room with another man’s wife, she being in bed, and absent from her husband’s home without his consent, and as far as she knew without his knowledge, is sufficient to sustain for the crime of adultery.”
“The nature of adultery is such that it cannot often be established by direct evidence….”
One of the examples that both judges cited was the Legaspi case where several love letters from a lover was found in the wife’s possession…and the offended husband, armed with a search warrant, found both “partially disrobed in one bed”.
If a husband were to catch his scantily dressed spouse while she is doing Facetime on the iPhone with another man, would that be the same as being “partially disrobed in one bed”?
Now I will explain one other reason why I was greatly disturbed by this wholesale cramming of the crime of adultery into the Cybercrime Prevention Act.
The law will make it easier for husbands to gather evidence against their wives. As in the case of the American General David Petraeus, racy e-mail between lovers could provide strong circumstantial evidence. So could photographs and videos exchanged between them. So could “sexting”.
Since the Cybercrime Prevention Act crammed the entire Penal Code (which includes the crime of adultery) into this law, husbands can use the following section to fish for evidence:
SEC. 12. Real-Time Collection of Traffic Data. — Law enforcement authorities, with due cause, shall be authorized to collect or record by technical or electronic means traffic data in real-time associated with specified communications transmitted by means of a computer system.
What’s wrong with that, you might say. As President Benigno Aquino said, shouldn’t a crime in the real world also be a crime in the virtual world?
Here’s where I come to one of my strongest objections to what Assec Sy did with the present Cybercrime Law (aside from online libel of course).
In other countries like the United States, adultery is defined as the act of having sexual relations by the husband or wife outside of their marriage. In the Philippines – where the Revised Penal Code containing the adultery law dates back to 1949 – adultery can only be committed by a married woman and by a man who knew the woman was married.
In other words, a married man who has multiple affairs with women who are single or whom he thought were single cannot be accused of adultery.
In simple terms, if your husband is cheating on you with affairs or single night stands right and left, you cannot charge him with adultery unless he happens to be hitting on a woman he knows is married. The only other way you can haul him to court is on the charge of concubinage, which means binabahay niya yung babae (he has placed a woman in a love nest) or he keeps a mistress in the conjugal home or has sexual intercourse “under scandalous circumstances.”
As a woman, I find it unjust that our present Penal Code allows married men to have a string of affairs and sexual intercourse so long as they do this with women whom they think are single.
And get this: adultery is punished more harshly than concubinage. Adultery is punished with prision correccional (six months to six years) in its medium to maximum periods; concubinage is punished with prision correccional in its minimum to medium periods.
In addition, a married woman can be charged with and convicted of adultery with the same lover for each known act of sexual intercourse. As the two associate justices explained in their book on the Revised Penal Code:
“Adultery is not a continuous offense; each sexual act is a separate crime of adultery. Conviction for one act does not bar prosecution for other adulterous acts.”
In contrast, the justices explained, concubinage is a single continuing offense:
“It is not the single act of adultery. It is cohabiting in a state of adultery. It may be a week, a month, a year, or longer, but still it is one offense only (Pitoc case).”
Our Penal Code, in effect, legalizes male philandering.
Now comes the Cybercrime Law drafted by DOJ Assec Sy which makes it easier to convict women with circumstantial electronic evidence, using real time collection of traffic data as provided under Section 12 of the Cybercrime Law. And yet the same law in effect gives Filipino husbands free rein to carry on affairs in cyberspace.
Being convicted of adultery has grave consequences for women
Besides a jail term, adultery has other devastating consequences for married women. A lawyer told me that a conviction of adultery is one of the grounds that a husband can use to file for legal separation.
Now, under a newer separate law called the Family Code, the adulteress would be forced to lose her share of the conjugal property and be barred from inheriting anything if the husband dies. More devastatingly, she would automatically lose custody of any minor children.
The Family Code is more just and fair than the Revised Penal Code in that it makes no distinction between the wife or the husband as the erring spouse, but merely states that “sexual infidelity” is ground for separation.
In my interview with women’s right advocate Elizabeth Angsioco many months back, she told me that some lawyers were revisiting our laws on the crimes of adultery and concubinage with a view to revising them.
I would be amenable to the crime of adultery being crammed into the Cybercrime Law as long as lawmakers make married men equally liable for it and – in addition – make concubinage a crime punishable one degree higher than adultery. But I probably wouldn’t trust DOJ Assec Geronimo Sy to draft the proposed legislation.