movie review - consti

CONSTITUTIONAL LAW II

NO CHILD OF MINE

There were series of abuses to this 10-year old child named Kerry. Yes, series. This sure is not a seat-back-pick-and-eat-popcorn-and-have-fun movie. Your heart will break into pieces, and yes, in a series too.

First of the series: The physical abuse by her mother. She was maltreated for reasons which in no way, in normal and sane state, are acceptable as “parental punishment.” Kerry was being hit and even locked in a closet for apparently having left a portion of their house dusty, and such being not able to pass the level of cleanliness which her mother demands. There was even one time when she was hospitalized after physical abuses because of watching the television.

Republic Act No. 7610, Act Providing For Stronger Deterrence And Special Protection Against Child Abuse, Exploitation And Discrimination, provides that a person can be punished for child abuse when the laying of hands on the minor is shown, beyond reasonable doubt, to be intended by the accused to debase, degrade or demean the intrinsic worth and dignity of the child as a human being. Otherwise, such acts are punishable only as an offense under the Revised Penal Code.

In deciding Bongalon Vs People1, the Court referred to the legal definition of “child abuse,” which means the maltreatment of the child, whether habitual or not, including any of the following:

i. Psychological and physical abuse, neglect, cruelty, sexual abuse and emotional maltreatment;

ii. Any act by deeds or words which debases, degrades or demeans the intrinsic worth and dignity of a child as a human being;

iii. Unreasonable deprivation of his basic needs for survival, such as food and shelter; oriv. Failure to immediately give medical treatment to an injured child resulting in serious

impairment of his growth and development or in his permanent incapacity or death.

In the case of Kerry, it is apparent that the abuse and laying of hands to her by her own mother was intended to debase, degrade and demean her own worth and integrity. And it cannot be further denied that it has caused psychological trauma to the child.

But the story doesn’t end there.

Second of the series: The sexual abuses by her step-father. The sickening matter about this one is that it was with the consent of the child’s mother.

In this case, the step father shall be liable for the crime of rape as provided in Article 266-A2 in the Revised Penal Code which provides that crime of rape is committed by a man who shall have carnal with any woman under any of the following circumstances:

...(d) When the offended party is under twelve (12) years of age or is demented, even

though none of the circumstances mentioned above be present.

1 GR No 169533, March 20, 20132 Inserted by R.A 8353

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Thus, any circumstance of sexual intercourse with a child under twelve (12) years old is liable for statutory rape, even in the absence of the force, threat, intimidation, fraudulent machination or grave abuse of authority. Even if the child has given her consent, it will still consummate the crime.

As to the criminal liability, death penalty3 shall also be imposed if the crime of rape is committed with any of the following aggravating/qualifying circumstances:

l) When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim.4

Third of the series: After being sexually abused by her step father, Kerry tries to seek help from his biological father, who in turn, instead of helping her, have attempted to engage the child in prostitution instructing her of solicit customers and he have even fed her of the services, namely blowjob and hand job and the accompanying prices thereof.

The act of her biological father falls within the scope of child prostitution which covers all children, whether male or female, who for money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse.

The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon those who engage in or promote, facilitate or induce child prostitution which include taking advantage of influence or relationship to procure a child as prostitute.5

Fourth of the series: Hopeless of her case, Kerry now tries to seek help from social workers. She was placed in a foster home, which eventually did not turn out so well. She was then homed in care center for children who were similarly abused or abandoned. In here, he met a guy who induced her, took advantage of her vulnerability, saying that he have gone through the same and have convinced her of the power of the money. Kerry, having believed that money really can give freedom, have allowed herself to engage in prostitution with much older men.

In this instance, the perpetrator will likewise be liable for child abuse under section of R.A. 7610 and will be accordingly penalized with reclusion temporal in its medium period to reclusion perpetua for child prostitution. The liability extends to those who engage in or promote, facilitate or induce child prostitution by giving monetary consideration goods or other pecuniary benefit to a child with intent to engage such child in prostitution

Fifth of the series: She was again raped by another guy in the home center. This constitutes another statutory rape.

In the end, Kerry, with her own belief that it is only when she has money that she will gain freedom – freedom from all the abuses she have gone through at her young age – have engaged herself into prostitution. This time, it was on her own. No one induce nor compelled her. Perhaps, it was the cumulative effect of all the sufferings she’ve gone through- physical,

3 Only the penalty of reclusion temporal may be imposed under R.A 93464 Article 266-B, RPC5 Section 5, R.A 7610

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psychological and sexual. Her repeated attempt to trust into people and the subsequent failure therein has led her to believe that no one but herself she can trust.

End of the series: She finds a home. A home, not a shelter. A place where she found comfort and where she can trust the people she is with. A place where she was able to speak of what she has gone through to ease the burden she is going through.

Yet, I do not consider this as a happy ending. This movie reflects that as provided in the series of facts above, we have sufficient law which are aimed at the welfare of the children. In fact, the penalties imposed are high. What the movie wants to speak of is, the society has not set sufficient means to ensure that the children are heard. So to speak, how can impose all the legislations, if we cannot hear the abused?

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FIFTY SHADES OF GREY

The movie is a depiction of a romance between Anastacia Steel and Christian Grey depicted with underlying theme of BDSM. BDSM is a variety of erotic practices involving dominance and submission, roleplaying, restraint, and other interpersonal dynamics6. In the movie, there was a non-disclosure agreement about the acts which they are about to do and the matters which they will discuss.

The second contract which Grey seeks for the consent of Steel to engage in a purely-sexual BDSM relationship. This includes acts which are beyond and outside the normal sexual practice, to name some, cuffing, using belts, rimming, fisting, anal intercourse, use of dildos. Towards the end of the movie, Steel agreed to this one. This contract in fact void, the object, cause, or purpose being something which is contrary to law, morals, good customs, public order, public policy.7 Therefore, Steel, at any moment may refuse to perform what has been stipulated in contract without being bound and incurring liability in the contract.

Universal Declaration of Human Rights Article 5 states that, “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

So the question now arises as to whether or not the act of BDSM, which is in fact, consensual, can be considered as violation of human rights within the parlance of being considered as “torture, cruel, inhuman, or degrading treatment.”

Different nations has varying stand on the legality of the matter:

In United Kingdom, British law does not recognize the possibility of consenting to actual bodily harm. Such acts are illegal, even between consenting adults, and these laws are enforced8

In 2004 a judge in Canada ruled that videos seized by the police featuring BDSM activities were not obscene, and did not constitute violence, but a "normal and acceptable" sexual activity between two consenting adults.9

In 2011, the Supreme Court of Canada ruled in R. v. J.A. that a person must have an active mind during the specific sexual activity in order to legally consent. The Court ruled that it is a criminal offence to perform a sexual act on an unconscious person – whether or not that person consented in advance.

For Italian law, BDSM is right on the border between crime and legality, and everything lies in the interpretation of the Code by the judge. This concept is that anyone willingly causing "injury" to another person is to be punished. In this context, though, "injury" is legally defined as "anything causing a condition of illness", and "illness" is ill-defined itself in two different legal ways. The first is "any anatomical or functional alteration of the organism" (thus technically including little scratches and bruises too); The second is "a significant worsening of a previous condition relevant to organic and relational processes, requiring any kind of therapy". This

6 http://en.wikipedia.org/wiki/BDSM7 Art 1409, New Civil Code8 R v Brown9 Barker, Meg; Lantaffi, A; Gupta, C (2007)

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makes it somewhat risky to play with someone, as later the "victim" might call for foul play using any sort of little mark as evidence against the partner. Also, any injury requiring over 20 days of medical care must be denounced by the professional medic who discovers it, leading to automatic indictment of the person who caused it. BDSM play between non-consenting adults or minors or in public is of course punished according to normal laws.

In Switzerland, the age of consent in Switzerland is 16 years, which also applies for BDSM play. Children (i.e. those under 16) are not subject to punishment for BDSM play as long as the age difference between them is less than three years. Certain practices, however, require granting consent to light injuries and thus are only allowed for those over 18. Since Articles 135 and 197 of the Swiss Criminal Code were tightened, on 1 April 2002, ownership of "objects or demonstrations which depict sexual acts with violent content" is punishable. This law amounts to a general criminalization of sado-masochists, since nearly every sado-masochist will have some kind of media which fulfill these criteria. Critics also object to the wording of the law, which puts sado-masochists in the same category as pedophiles and pederasts. 10

In our country, there is no existing jurisprudence regarding “abuse” between consenting adults. It is even a contest if this could be considered as abuse since as narrated in the book, Steel actually felt pleasure and wanting of the act despite the confusion. The movie on the other slightly deviated and portrayed dismay on her part.

However, the parallel law which may be applied is the Anti-Violence Against Women and Their Children Act Of 200411 which states in its declaration of policies that Towards this end, the State shall exert efforts to address violence committed against women and children in keeping with the fundamental freedoms guaranteed under the Constitution and the Provisions of the Universal Declaration of Human Rights, the convention on the Elimination of all forms of discrimination Against Women, Convention on the Rights of the Child and other international human rights instruments of which the Philippines is a party.

Violence against women and their children was defined any act or a series of acts committed by any person against a woman who is his wife, former wife, or against a woman with whom the person has or had a sexual or dating relationship, or with whom he has a common child, or against her child whether legitimate or illegitimate, within or without the family abode, which result in or is likely to result in physical, sexual, psychological harm or suffering, or economic abuse including threats of such acts, battery, assault, coercion, harassment or arbitrary deprivation of liberty.

The said law covers those which are in a dating relationship which was defined as a situation wherein the parties live as husband and wife without the benefit of marriage or are romantically involved over time and on a continuing basis during the course of the relationship. A casual acquaintance or ordinary socialization between two individuals in a business or social context is not a dating relationship.

THE BURNING BED

10 http://www.ig-bdsm.ch/index.php?pid=2411 RA 9262

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The Burning Bed has been credited with inspiring legal reforms regarding women’s rights in many countries. The telefilm, in fact, caused a minor uproar. It is a remarkable effort on many levels. The brutality is very difficult to watch, quite different from the stylized violence that flavors so many films.

After several abuses, Francine was able to avail of divorce. However, after the ex-husband was injured due to accident, Francine tried to reconcile and out of sympathy, help him. This has set her to another scenario of abusive relationship. Technically, Mickey’s attacks are not spouse abuse, but straightforward assault and battery. The consideration of rape is another obvious situation in the case. When Francine seeks help from various social agencies, they let her down, advising her to get a lawyer. For some reason, she is unable or unwilling to take this step, and she even shows a reticence at first to deal with her own court-appointed attorney. Her fears are that the law might turn against her, declare her an unfit mother, or otherwise destroy her life.

In the local setting, VAWC or Anti-Violence Against Women and Children Act was legislated last 2004 to address the similar circumstances of abuses which are committed against women and children.

In the declaration of its policy, R.A. 9262 provides that it is hereby declared that the State values the dignity of women and children and guarantees full respect for human rights. The State also recognizes the need to protect the family and its members particularly women and children, from violence and threats to their personal safety and security.

The acts punishable in the VAWC relevant to the movie are the following:

A. "Physical Violence" refers to acts that include bodily or physical harm;

B. "Sexual violence" refers to an act which is sexual in nature, committed against a woman or her child. It includes, but is not limited to:

a) Rape, sexual harassment, acts of lasciviousness, treating a woman or her child as a sex object, making demeaning and sexually suggestive remarks, physically attacking the sexual parts of the victim's body, forcing her/him to watch obscene publications and indecent shows or forcing the woman or her child to do indecent acts and/or make films thereof, forcing the wife and mistress/lover to live in the conjugal home or sleep together in the same room with the abuser;

b) Acts causing or attempting to cause the victim to engage in any sexual activity by force, threat of force, physical or other harm or threat of physical or other harm or coercion;

c) Prostituting the woman or child.

C. "Psychological violence" refers to acts or omissions causing or likely to cause mental or emotional suffering of the victim such as but not limited to intimidation, harassment, stalking, damage to property, public ridicule or humiliation, repeated verbal abuse and mental infidelity. It includes causing or allowing the victim to witness the physical, sexual or psychological abuse of a member of the family to which the victim belongs, or to witness pornography in any form or to witness abusive injury to pets or to unlawful or unwanted deprivation of the right to custody and/or visitation of common children.

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Moreover, the court has recognized as battered woman syndrome as a defense. Battered woman syndrome refers to a scientifically defined pattern of psychological and behavioral symptoms found in women living in battering relationships as a result of cumulative abuse.

In the case of People vs Genosa, it was held that the defense of battered woman syndrome may be appreciated. The court stated that, where the brutalized person is already suffering from BWS, further evidence of actual physical assault at the time of the killing is not required. Incidents of domestic battery usually have a predictable pattern. To require the battered person to await an obvious, deadly attack before she can defend her life "would amount to sentencing her to 'murder by installment.' Still, impending danger (based on the conduct of the victim in previous battering episodes) prior to the defendant's use of deadly force must be shown. Threatening behavior or communication can satisfy the required imminence of danger. Considering such circumstances and the existence of BWS, self-defense may be appreciated.

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NOT WITHOUT MY DAUGHTER

An Iranian physician, Moody brought his wife Betty and daughter Matob to Iran, with the agreement that they shall return to America after sometime. However, upon reaching Iran, it was shown that Moody has no further plans of returning. Booty, in her attempt to return America despite the objections of her husband, has caused Moody to inflict physical abuses to her. She was as well restrained to use telephone.

The 1987 Constitution guarantees the right to liberty of abode and freedom of movement as it states, “The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health, as may be provided by law.”12

Moreover, it is further supported by international laws as enunciated in the following:

Geneva Convention II - Article 42 of the 1949 Geneva Convention IV provides: “The internment or placing in assigned residence of protected persons may be ordered only if the security of the Detaining Power makes it absolutely necessary.”

According to Article 147 of the 1949 Geneva Convention IV, “unlawful confinement of a protected person” is a grave breach of this instrument.

European Convention on Human Rights - Article 5(1) of the 1950 European Convention on Human Rights provides: “Everyone has the right to liberty and security of person.”

International Covenant on Civil and Political Rights - Article 9(1) of the 1966 International Covenant on Civil and Political Rights provides: “Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention.”

American Convention on Human Rights - Article 7(1) of the 1969 American Convention on Human Rights provides: “Every person has the right to personal liberty and security.” Article 7(3) provides: “No one shall be subject to arbitrary arrest or imprisonment.”

African Charter on Human and Peoples’ Rights - Article 6 of the 1981 African Charter on Human and Peoples’ Rights provides: “Every individual shall have the right to liberty and to the security of his person … In particular, no one may be arbitrarily arrested or detained.”

Convention on the Rights of the Child - Article 37 of the 1989 Convention on the Rights of the Child provides: “No child shall be deprived of his or her liberty unlawfully or arbitrarily.”

ICC Statute - Pursuant to Article 7(1)(e) of the 1998 ICC Statute, “imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law” is a crime against humanity “when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.”

12 Art III, Section 6, 1987 Constitution

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In addition to Moody’s liability of offending his wife’s and daughter’s right to liberty to abode and freedom of movement, he shall also be liable for the physical abuses which he is inflected to frighten his wife and let her stop from attempting to extend communications and work out her plan together with daughter of returning to America.

The appropriate charges may be the Violation of R.A 9262.

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SA KAMBAS NG LIPUNAN

The documentary depicts the story behind a masterpiece from a contemporary artist from the Philippines, Joey Velasco to create the "Hapag ng Pag-asa" (Table of Hope) wherein he depicts the Last Supper of Jesus not with the disciples but the humble children in poverty.

This story goes around the life of children who were the inspiration of the artist in making the painting. Children who due to poverty have resorted to unimaginable ways of life. Some children were pushing carts, collecting reusable junk from the garbage, some became experts in picklocking, and others were pregnant.

On the legal liability, these children are all exempt under R.A 9344 or Juvenile Justice and Welfare Act which provides that:

A child fifteen (15) years of age or under at the time of the commission of the offense shall be exempt from criminal liability. However, the child shall be subjected to an intervention program pursuant to Section 20 of this Act.

“A child is deemed to be fifteen (15) years of age on the day of the fifteenth anniversary of his/her birthdate.

“A child above fifteen (15) years but below eighteen (18) years of age shall likewise be exempt from criminal liability and be subjected to an intervention program, unless he/she has acted with discernment, in which case, such child shall be subjected to the appropriate proceedings in accordance with this Act.

“The exemption from criminal liability herein established does not include exemption from civil liability, which shall be enforced in accordance with existing laws.”

R.A 7610 also provides that:

Circumstances which gravely threaten or endanger the survival and normal development of children" include, but are not limited to, the following;

(1) Being in a community where there is armed conflict or being affected by armed conflict-related activities;

(2) Working under conditions hazardous to life, safety and normal which unduly interfere with their normal development;

(3) Living in or fending for themselves in the streets of urban or rural areas without the care of parents or a guardian or basic services needed for a good quality of life;

(4) Being a member of a indigenous cultural community and/or living under conditions of extreme poverty or in an area which is underdeveloped and/or lacks or has inadequate access to basic services needed for a good quality of life;

(5) Being a victim of a man-made or natural disaster or calamity; or

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(6) Circumstances analogous to those abovestated which endanger the life, safety or normal development of children.

In this instance of the above circumstances,

There shall be a comprehensive program to be formulated, by the Department of Justice and the Department of Social Welfare and Development in coordination with other government agencies and private sector concerned, within one (1) year from the effectivity of this Act, to protect children against child prostitution and other sexual abuse; child trafficking, obscene publications and indecent shows; other acts of abuse; and circumstances which endanger child survival and normal development

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