Anti-Trafficking Prosecution Guidebook Volume I. Prosecuting Trafficking in Persons Under R.A. No. 9208

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1 Anti-Trafficking Prosecution Guidebook Volume I Prosecuting Trafficking in Persons Under R.A. No. 9208

2 Anti-Trafficking Prosecution Guidebook Volume I Prosecuting Trafficking in Persons Under R.A. No RESEARCH TEAM Atty. Yvonne C. Artiaga Atty. Mark Anthony C. del Mundo Atty. Samson R. Inocencio, Jr. Atty. Giovanni A. Luna Atty. Liza C. Tan Sheila S. Myung Grace T. Cheng Jaime H. Oh ADMINISTRATIVE TEAM Myrheyna B. Alcoriza Mavilene Simonette G. Bas Haley A. Bolin Liza C. Collste Maricon D. Dumagat Rhea Stephanie E. Mina Ria R. Vivar ADVISER Atty. Andrey M. Sawchenko 2008 International Justice Mission, Inc.

3 Acknowledgment IJM is grateful for the invaluable contributions of everyone who helped bring this book into light, and would like to particularly thank the following people: We thank the reviewers who, in spite of their busy schedules, patiently went through the legal briefs that are now a part of this book. We especially thank the invaluable insights of Judge Marilyn Lagura-Yap, Judge Meinrado B. Paredes, Judge Gabriel T. Ingles, Regional State Prosecutor Antonio Arellano, Chief Provincial Prosecutor Pepita Jane A. Petralba, and Atty. Joanne Saniel. We thank Atty. Nina Patricia Sison-Arroyo for graciously sharing her inputs from her extensive experience in prosecuting trafficking in persons cases. Her book, Seek Justice Vol. 3: Combating Child Trafficking for Prostitution in the Philippines is excellent resource material for several legal issues discussed in this book. Finally, we would like to thank Provincial Prosecutor Gregorio Arizala for his legal expertise, thoughtful and scholarly articulation of the provisions of R.A and relevant jurisprudence, and patience in reviewing this book.

4 INTRODUCTION. 6 I. CHAPTER ONE: REPUBLIC ACT NO A. DEFINITION OF TRAFFICKING IN PERSONS SECTION i. The Punishable Acts ii. Consent or knowledge irrelevant.. 9 iii. Location.. 10 iv. Means.. 10 a. Means must be proved b. Exception: Means irrelevant when victim is a child Box 1: Who is a Minor? c. Defining taking advantage of the vulnerability of the person v. Purpose a. The purpose must be for exploitation b. Requiring purpose to exploit is equivalent to requiring intent Box 2: Trafficking in Persons has been committed when there are: B. ACTS OF TRAFFICKING IN PERSONS SECTION 4 14 i. Punishable Forms. 14 Box 3: Prostitution under R.A vis-à-vis Article 202, RPC ii. Section 4 should be interpreted in relation to the definition of trafficking in persons in Section iii. Sec. 4(a) Trafficking through recruitment and other acts for the purpose of sexual exploitation or forced labor a. Under the pretext of employment, explained b. By any means refers to the means in Section 3(a) iv. Sec. 4(b) Trafficking by introducing or matching for marriage v. Sec. 4(c) Trafficking by offering or contracting marriage vi. Sec. 4(d) Trafficking through tours and travel plans vii. Sec. 4(e) Maintaining or hiring for prostitution or pornography. 20 a. Defining maintaining.. 20 b. Hiring does not require an employment relationship.. 21 viii. Sec. 4(f) Trafficking through adoption 21 ix. Sec. 4(g) Trafficking for removal or sale of organs x. Sec. 4(h) Trafficking of children for armed activities. 22 C. ACTS THAT PROMOTE TRAFFICKING IN PERSONS - SECTION i. Punishable Forms ii. Promoting or facilitating trafficking in persons, a common element iii. For the purpose of promoting trafficking in persons is to be interpreted generally iv. Sec. 5(a) Lease or use of a house, building, or establishment v. Sec. 5(b) Production, printing, issuance or distribution of unissued, tampered or fake documents vi. Sec. 5(c) Promoting trafficking through propaganda material vii. Sec. 5(d) Misrepresentation or fraud in facilitating the acquisition of clearances and exit documents viii. Sec. 5(e) Facilitating the exit and entry of persons with unissued, tampered or fraudulent travel documents ix. Sec. 5(f) Preventing trafficked persons from leaving the country or seeking redress.. 27 x. Sec. 5(g) Benefiting from or making use of persons held under involuntary servitude or forced labor D. QUALIFIED TRAFFICKING IN PERSONS SECTION i. The most commonly encountered qualifying circumstances ii. Qualified trafficking not an independent offense

5 iii. Qualifying circumstances under Section 6 apply only to Section iv. Knowledge of the qualifying circumstance under Section 6 is immaterial.. 31 v. Section 6(c): Conspiracy and confederation vi. Section 6(d): What does it mean to exercise authority over trafficked persons?. 32 Box 4: Possible Additional Charges Under Other Laws 32 E. USE OF TRAFFICKED PERSONS - SECTION i. Section 11 is limited to prostitution ii. Ignorance of the fact that the person was trafficked for prostitution is not a defense iii. Prior conviction under the law is not necessary. 36 Box 5: Possible Additional Charges Under Other Laws 36 F. VIOLATION OF CONFIDENTIALITY- SECTION i. Power to order a closed-door investigation ii. Public disclosure prohibited in all cases iii. Criminal penalties G. PENALTIES AND SANCTIONS i. Section 10(e): Liability of the owner, president, partner, manager or responsible officer.. 42 ii. Additional sanctions under R.A iii. Section 14: Confiscation and Forfeiture. 42 Box 6: Summary of Penalties Under RA H. CLOSURE OF ESTABLISHMENT UNDER REPUBLIC ACT NO i. Jurisdiction ii. Grounds for the Closure of Establishment iii. Types of Establishment Closure Granted by the DOLE iv. Closure Proceedings v. Other Sanctions vi. Execution of Closure Order II. CHAPTER TWO: EVIDENCE TO PROVE THE OFFENSE OF TRAFFICKING IN PERSONS A. TYPES OF EVIDENCE Box 7: Ideal list of evidence for a charge of Qualified Trafficking B. PROOF OF ACTS OF TRAFFICKING. 59 i. Recruitment.. 59 ii. Transportation or Transfer.. 59 iii. Harboring, Providing or Receipt C. PROOF OF MEANS OF TRAFFICKING a. Threat, Use of force or Coercion b. Deception or Fraud c. Abuse of power or of position d. Taking advantage of the vulnerability of the victim D. PROOF OF PROSTITUTION AND PORNOGRAPHY.. 62 i. Proof of Prostitution. 62 a. A sexual act is not necessary to prove prostitution.. 62 b. Meaning of any other consideration under the definition of prostitution.. 63 ii. Proof of Pornography a. Obscene or indecent shows are not valid forms of entertainment b. Obscene or indecent shows are not protected by any artistic value... 65

6 E. PROOF OF MINORITY i. Minority must be alleged in the Information ii. Minority must be proved with equal certainty as the other elements of the crime iii. A birth certificate will stand as the best evidence of minority in court iv. Other authentic documents may be presented to establish minority.. 67 v. Testimony of the mother or relatives may be used to prove age of the victim Box 8: Circumstances when uncorroborated testimony is sufficient vi. Testimony of the victim is sufficient to prove minority only if age is clearly admitted by the accused vii. Dental or bone aging may be helpful in establishing minority during inquest or preliminary investigation viii. A court may take judicial notice of minority of a victim below the age of ten 69 III. CHAPTER THREE: PROSECUTING UNDER REPUBLIC ACT NO A. FILING AND INITIATING THE CRIMINAL CASE i. Filing of Cases.. 70 ii. Venue iii. Prescriptive Period iv. Inquest Box 9: Period of Time to File using Inquest Procedures according to Offense Charged under R.A v. General Tips for Filing a Complaint B. PRELIMINARY INVESTIGATION AND FILING OF INFORMATION 74 i. The Resolution. 74 a. The resolution must show the existence or non-existence of probable cause b. The resolution must justify the venue of the offense c. Defects in the information can be cured by the resolution.. 74 ii. The Information a. The information must allege the ultimate facts constituting all of the elements of the crime b. Jurisdictional facts must be included in the information c. It is not necessary to state the exact date of commission of the crime in the complaint or information d. An owner of an establishment can be charged under R.A even if he did not directly participate in the commission of the crime e. Filing several offenses under different laws for the same incident or act does not violate the prohibition against double jeopardy iii. Authority of private prosecutor to prosecute trafficking cases C. ARRAIGNMENT AND PRE-TRIAL i. Pre-Trial Conferences ii. Bail Proceedings Box 10: Bail Recommendation for Specific Offenses under RA iii. Preparations of Trial Brief Box 11: Sample Trial Brief D. TRIAL AND JUDGMENT i. Expedited Court Proceedings ii. Rule on the Examination of a Child Witness a. Assisting Persons b. Creating a More Comfortable Courtroom Environment. 86 c. Testifying outside the Courtroom d. Video-taped Deposition of a Child Witness e. Audio-video taped in-depth investigative or disclosure interview.. 89

7 f. Questioning the Child iii. Presentation of Audio-Video Evidence in Court iv. Other Relevant Proceedings a. Approval of Authority of Private Counsel to Prosecute b. Issuance of Hold Departure Order c. Petition for Bail d. Reinvestigation v. Counterarguments Against Possible Defenses a. Instigation as a defense in trafficking cases b. Prior surveillance is not indispensable in an entrapment operation c. Presentation of marked money in court is not indispensable for entrapment operations.. 96 d. Recordings of entrapment do not violate the Anti-Wire Tapping Act e. Absence of employer-employee relationship is not a defense for trafficking cases 97 f. Ignorance of the minority of a child victim is not a valid defense vi. Institution of Civil Action Box 13: Proving Civil Damages Involving Child Victims E. PROTECTING THE VICTIMS AND WITNESSES i. Legal protection to trafficked persons ii. Custody of Minors a. Protective Custody, when applicable b. Filing of Petition for Involuntary Commitment c. Voluntary Commitment to a child-placement facility IV. APPENDICES A. REPUBLIC ACT NO B. IMPLEMENTING RULES AND REGULATIONS OF R.A C. RULE ON EXAMINATION OF A CHILD WITNESS D. SERVICES AND CONTACT INFORMATION OF GOVERNMENT AGENCIES i. Department of Social Welfare and Development ii. Family Courts in the Metro Manila and Cebu Areas iii. Department of Labor and Employment (DOLE) iv. Bureau of Immigration v. DOJ Public Attorney s Offices vi. National Bureau of Investigation vii. National Prosecution Service viii. Regional State Prosecutors E. LIST OF INTERNATIONAL TRAFFICKING, SLAVERY AND CHILD SPECIFIC INSTRUMENTS F. RELATED DOMESTIC LAWS i. The Revised Penal Code. 170 ii. Republic Act No Special Protection of Children Against Abuse, Exploitation and Discrimination Act iii. Republic Act No Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act iv. Republic Act No The Anti-Rape Law of v. Republic Act No Death Penalty Law vi. Republic Act No Philippine Passport Act of vii. Republic Act No Migrant Workers and Overseas Filipinos Act of vii. Republic Act No 6955 Mail Order Bride Act ix. Republic Act No Witness Protection Act

8 G. COMPARISON OF SPECIAL LAWS RELATED TO TRAFFICKING IN PERSONS... 19

9 Introduction Trafficking offences are difficult to prosecute for some of the same reasons that they are difficult to investigate. Because of the nature of the offence, the frequent need to rely on evidence collected abroad, the potential for victims and witnesses to be traumatized and intimidated or for public officials to be corrupted and the need for interpreters and translators, the prosecution of these offences offers some new and difficult challenges to the judiciary. United Nations Office on Drugs and Crime, Toolkit to Combat Trafficking in Persons, 2006 Trafficking in persons, often referred to as modern-day slavery, is a serious issue of global concern. In the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, the international community first defined trafficking in persons: Trafficking in persons shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs. 1 The Philippines signed both the UN Convention Against Transnational Organized Crime and its supplementing Trafficking in Persons Protocol immediately after the UN General Assembly adopted these documents in 2000, and ratified both instruments in The passage of Republic Act No strengthened domestic anti-trafficking legislation in Nevertheless, there have been only eleven convictions under R.A resulting in jail sentences, 2 and only three convictions secured in There is a pressing need to effectively prosecute perpetrators of trafficking and to create disincentives for traffickers to continue this prohibited activity. 1 Article 3, subparagraph (a). 2 G. Bagayaua,, Life Imprisonment for the Country s 11 th Human Trafficking Convict July 7, 2008, < October 15, United States Trafficking in Persons Report. 6

10 This book is for the legal community in the Philippines, whose particular role in the antitrafficking movement is to help prosecute perpetrators of trafficking and to deter potential traffickers by increasing the risks and costs associated with trafficking. This book will inform and empower public prosecutors, judges, private attorneys, law school professors and students to act on cases of trafficking and to see the justice system fulfill its mandate to punish perpetrators and protect innocent victims of trafficking. The UN Office on Drugs and Crime describes this dual need for prosecution of perpetrators and protection of trafficked persons: Trafficking is almost always a form of organized crime and should be dealt with using criminal powers to investigate and prosecute offenders for trafficking and any other criminal activities in which they engage. Trafficked persons should also be seen as victims of crime. Support and protection of victims is a humanitarian objective and an important means of ensuring that victims are willing and able to assist in criminal cases. 4 This twin focus on prosecution and protection is likewise expressed in the UN Resolution on Trafficking in Women and Girls: 8. [The General Assembly] Calls upon all Governments to criminalize all forms of trafficking in persons, recognizing its increasing occurrence for purposes of sexual exploitation and sex tourism, and to condemn and penalize all those offenders involved, including intermediaries, whether local or foreign, through the competent national authorities, either in the country of origin of the offender or in the country in which the abuse occurs, in accordance with due process of law, while also ensuring that the victims of those practices are not penalized for being trafficked. 5 Instead of regarding trafficked persons as victims, authorities often treat them as criminals. When justice systems do not protect but rather punish trafficked persons, they add to the list of injustices victims face. R.A makes clear that trafficked persons should be considered victims 6 and should be provided with legal protection and other necessary services through government agencies. 7 It is the perpetrators and those who use the services of trafficked persons who should be prosecuted for their roles in trafficking in persons. In order for the justice system to work properly, the law must create the right incentives and law enforcement must ensure punishment of the right persons. 4 UN Office on Drug and Crime, Factsheet on Human Trafficking, < October 15, Resolution 59/166, United Nations General Assembly 59 th session, 10 February Rep. Act No (2003), sec Sec. 23 lists the following services: emergency shelter or appropriate housing, counseling, free legal services, medical or psychological services, livelihood and skills training and educational assistance to a trafficked child. 7

11 Under R.A. 9208, there are four main categories of trafficking: (1) sex trafficking, (2) trafficking for forced labor, (3) trafficking for the removal or sale of organs, and (4) trafficking for armed activities. The majority of reported trafficking cases in the Philippines involve sex trafficking. Because of its prevalence, this book will explore R.A primarily from the context of sex trafficking of women and children. Chapter One reviews the Act, highlighting significant provisions and clarifying ambiguities. Chapter Two discusses the evidentiary requirements of trafficking in persons cases. Finally, Chapter Three addresses the legal and practical issues that arise in the prosecution of cases under R.A The main objectives of this book are: To increase awareness and understanding of Philippine anti-trafficking law among the legal community and to enable effective and swift responses from the justice system to trafficking To provide a practical how-to manual on prosecuting trafficking cases in the Philippines, i.e. specific tips and guidelines on issues like evidence gathering and preservation, case build-up, interviewing of witnesses, and trial techniques To serve as a resource for important legal questions related to anti-trafficking law 8

12 CHAPTER ONE: REPUBLIC ACT NO Philippine law establishes the definition of trafficking in persons in Republic Act No. 9208, drawing heavily from the definition contained in the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children. This chapter first discusses the trafficking in persons definition in detail. The rest of this chapter examines the other provisions of R.A and expounds on salient legal issues related to each section of the law, answering key questions regarding the construction or meaning of the law. A. DEFINITION OF TRAFFICKING IN PERSONS - SECTION 3 SEC. 3. Definition of Terms. As used in this Act: (a) Trafficking in Persons refers to the recruitment, transportation, transfer or harboring, or receipt of persons with or without the victim s consent or knowledge, within or across national borders by means of threat or use of force, or other forms of coercion, abduction, fraud, deception, abuse of power or of position, taking advantage of the vulnerability of the person, or, the giving or receiving of payments or benefits to achieve the consent of a person having control over another person for the purpose of exploitation which includes at a minimum, the exploitation or the prostitution of others or other forms of sexual exploitation, forced labor or services, slavery, servitude or the removal or sale of organs. The recruitment, transportation, transfer, harboring or receipt of a child for the purpose of exploitation shall be considered as trafficking in persons even if it does not involve any of the means set forth in the preceding paragraph. i. The Punishable Acts The definition of trafficking in persons in Section 3 provides a list of acts that constitute trafficking in persons under the law. These acts include recruitment, transportation, transfer, harboring, and receipt of persons. However, this is not a complete list of all acts punishable under R.A Section 4 also makes punishable certain acts not included in the definition. For example, Section 4(b) punishes the act of introducing or matching for marriage and Section 4(e) punishes the act of maintaining or hiring a person to engage in prostitution or pornography. Other acts are made punishable under Section 5 for promoting trafficking. Section 5(a), for example, punishes the act of leasing or subleasing establishments for the purpose of promoting trafficking. ii. Consent or knowledge irrelevant 9

13 Under the definition, consent by the trafficked person is irrelevant. Trafficking may occur with or without the victim s consent or knowledge. Section 17 reiterates that the consent of a trafficked person to the intended exploitation set forth in the Act shall be irrelevant. The provisions make clear that the irrelevancy of consent applies to both minor and adult victims. While the consent of victims is irrelevant, in the trafficking of adults, it is still necessary to demonstrate that the trafficker used one or more of the enumerated means, i.e., threat or use of force, or other forms of coercion, abduction, fraud, deception, abuse of power or of position, taking advantage of the vulnerability of the person, or the giving or receiving of payments or benefits to achieve the consent of a person having control over another person. This is consistent with Article 3(b) of the UN Protocol, which states that the consent of a victim of trafficking to the intended exploitation becomes irrelevant where any of the means are present. Insofar as the means of giving or receiving of payments or benefits to achieve consent is concerned, the consent here refers to that of a person who has control over another. For instance, a parent or guardian or any person exercising control over the prospective victim may give consent to the recruitment only upon the payment of a sum of money or other benefits from the trafficker. In this situation, the consent contemplated was that of the person exercising control over the victim and not of the victim himself/herself. iii. Location Trafficking may occur within a country or across national borders. Trafficking may also be committed partly within and partly across national borders. For example, recruitment may be committed in the Philippines, but exploitation may occur in a foreign country. The exploitation, although committed outside of the country, must be proved during the trial before the Philippine Courts. 8 It is not necessary that there be any movement or transport of victims at all for an action to constitute trafficking in persons under R.A For example, the recruitment of a person through deception for the purpose of sexual exploitation may take place without any transit of the victim. iv. Means a. Means must be proved It is necessary to show that there was threat or use of force, or other forms of coercion, abduction, fraud, deception, abuse of power or of position, taking advantage of the vulnerability of the person, or, the giving or receiving of payments or benefits to achieve consent of a person having control over another person. In other words, certain means must have been used to carry out the acts prohibited under R.A in order to find that trafficking in persons occurred. 8 G. Arizala, Establishing a Trafficking Offense: Elements and Evidence, [p. 2]. 10

14 b. Exception: Means are irrelevant when victim is a child The exception to the requirement to prove means is when the victim is a child. In this case, the means used in carrying out the act of trafficking is irrelevant. As long as there is an act of trafficking involving a child for an exploitative purpose, it is considered trafficking in persons. 9 Box 1: Who is a Minor? Child refers to a person below 18 years of age, or one who is over 18 but is unable to fully take care of or protect himself/herself from abuse, neglect, cruelty, exploitation, or discrimination because of a physical or mental disability or condition. 10 Persons with disabilities are defined in R.A (Magna Carta for Disabled Persons), thus: Those suffering from restrictions or different abilities, as a result of a mental, physical, and sensory impairment, to perform an activity in the manner or within the range considered normal for a human being. 11 We may also apply, by analogy, the pronouncement by the Supreme Court in People v. Abuyen: Minority in such a case should not be equated with its statutory meaning that is, below eighteen (18) years old. It is used not so much as to state the age of the victim (otherwise, the charging fiscal would have simply placed the exact ages), rather, it is more of a description of the state of helplessness of the young victim. 12 c. Defining taking advantage of the vulnerability of the person There is yet no jurisprudence which provides specific guidance on the meaning of the phrase taking advantage of the vulnerability of the person. However, existing international documents and analogous provisions of the New Civil Code are helpful in defining it. Abuse of a victim s vulnerability is defined in the UN Protocol to Suppress, Prevent and Punish Trafficking in Persons especially Women and Children as any situation in which the person involved has no real and acceptable alternative but to submit to the abuse involved. These persons are vulnerable because of physical, emotional, economic, political and socio-cultural factors. Traffickers can take advantage of those circumstances which render victims vulnerable to exploitation. 9 See related discussion in Box Rep. Act No (2003), sec. 3 (b). 11 Rep. Act No (1992), sec. 4 (a). 12 People v. Abuyen, G.R. No , (Sept. 4, 1992). 11

15 Taking advantage of another person s vulnerability may be akin to undue influence under Article 1337 of the New Civil Code, which also emphasizes deprivation of choice: There is undue influence when a person takes improper advantage of his power over the will of another, depriving the latter of a reasonable freedom of choice. The following circumstances shall be considered: the confidential, family, spiritual and other relations between the parties, or the fact that the person alleged to have been unduly influenced was suffering from mental weakness, or was ignorant, or in financial distress. Taking advantage of another person s vulnerability pertains to a situation where a trafficked person, with his or her own volition, submits to abuse and exploitation because there is no real and acceptable alternative. Such an act is normally considered voluntary. However, the inclusion of taking advantage of the vulnerability of the person as a means in R.A signifies that the crime of trafficking may be committed notwithstanding apparent submission on the part of trafficked persons. v. Purpose a. The purpose must be for exploitation In order to be considered trafficking, the purpose of an act must be the exploitation of the trafficked person. This is an essential element of the offense of trafficking in persons under R.A Section 3(a) lists the following purposes: exploitation or the prostitution of others or other forms of sexual exploitation, forced labor or services, slavery, servitude or the removal or sale of organs. In addition, the trafficking of children for armed activities is also punishable under R.A The purposes cited in R.A are not exhaustive. The definition in Section 3(a) states that the act or acts should be for the purpose of exploitation which includes at a minimum, the exploitation or the prostitution of others or other forms of sexual exploitation, forced labor or services, slavery, servitude or the removal or sale of organs. b. Requiring purpose to exploit is equivalent to requiring intent Originally, the Senate bill authored by Senator Luisa Ejercito Estrada defined the offense of trafficking in persons as the recruitment, transportation, transfer, provision, harboring, receipt or deployment of a person for the purpose of, or resulting in exploitation. However, during the period for amendments of the bill, upon motion of Senator Franklin Drilon, the phrase resulting in was deleted. The reason for such deletion was the concern that such phraseology could result in an innocent person being penalized. 14 For example, in a case of legal recruitment for a legal purpose, the recruited person, of his or her own 13 Rep. Act No (2003), sec. 4 (h). 14 Senate deliberations on R.A. 9208, Bill on Second Reading (Continuation), March 19, 2003, p

16 volition, could later become a prostitute. Under the proposed definition, the recruiter could be convicted of trafficking in persons because the legal recruitment resulted in exploitation. Hence, the phrase for the purpose of is equivalent to requiring intent. This means that the prosecution must allege and prove that acts of trafficking were clearly carried out by the accused with the intention to use the person for an exploitative purpose. The exploitation need not be shown to have actually happened in order to prove that the intent to exploit was real. It can be proven by other overt acts as discussed in the second chapter. Box 2: Trafficking in Persons has been committed when there are: Acts of: Recruitment Transfer Transportation Harboring Provision OR Receipt (of a person) Note: Section 4 lists additional acts: Introducing or matching any person for marriage in exchange for material consideration Offering or contracting marriage, real or simulated Undertaking or organizing tours or travel plans Maintaining or hiring a person Adopting or facilitating the adoption of persons by Means of: Threat Use of force Other forms of coercion Abduction Fraud Deception Abuse of power or position Taking advantage of the vulnerability of a person Giving or receiving of payments or benefits to achieve consent of a person having control over another person Note: Means is irrelevant when victim is a child for the Purpose of exploitation, including: Prostitution Other forms of sexual exploitation Forced labor or services Slavery Servitude Removal or sale of organs Note: Section 4 adds: Armed activities (applies to children only) 13

17 B. ACTS OF TRAFFICKING IN PERSONS - SECTION 4 i. Punishable forms There are eight punishable forms of Acts of Trafficking in Persons, described in Section 4 of R.A The eight forms may be classified into four broad categories according to the purpose of the trafficking: (1) sex trafficking; (2) trafficking for forced labor; (3) trafficking for the removal or sale of organs; and (4) trafficking of children for armed activities. This section discusses in detail the offenses in Section 4. The three main elements of each form of trafficking are the act, means and purpose. All three elements must be present to prove that there was an Act of Trafficking in Persons. 15 1) Sex trafficking includes trafficking for the purposes of prostitution, pornography and sexual exploitation. According to the IRR, prostitution refers to 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. 16 Box 3: Prostitution under R.A vis-à-vis Article 202, RPC R.A provides for a new concept of prostitution distinct from that of the Revised Penal Code. To distinguish: A. Article 202 RPC contemplates a situation where a woman habitually engages in sexual intercourse or acts of lasciviousness for profit. In R.A. 9208, there is no requirement of sexual intercourse. Mere transaction, scheme or design constitutes prostitution as long as the purpose is for the use of a person for sexual intercourse or lascivious conduct for money, profit or other consideration. B. In Article 202 RPC, prostitution is a felony and the prostitute is the offender, not the victim. In RA 9208, prostitution is not a crime. It is merely a form of exploitation which constitutes the purpose of the acts of trafficking. Thus, the trafficked person is not criminally liable. Even if the woman victim under RA 9208 indulged habitually in sexual intercourse for profit, she is not criminally liable under Article 202 RPC because Section 17 of RA 9208 exempts her from prosecution under Article 202. Can there be an instance where a woman may be held liable under Article 202 RPC without being covered by RA 9208? Yes. If no one committed acts of trafficking against the woman, such as recruiting, hiring, maintaining or providing her for sexual acts in exchange for money or other consideration, and she habitually engages in sexual intercourse for profit, then she is liable 15 The exception is if there is trafficking of minors, per Sec. 3(a). When there is trafficking of minors, only the acts and purpose need to be proven; the means do not. Trafficking of minors is classified as qualified trafficking under Sec. 6(a). 16 Rep. Act No (2003) sec. 3(c) and IRR art. II, sec. 5(e). 14

18 for prostitution under Article 202 RPC. For example, if a prostituted woman plies her trade by herself without the intervention of another person, then she may be liable for prostitution under Article 202 RPC. However, once another person intervenes for her, such as a pimp, or an owner of a bar, by hiring or maintaining her to engage in sexual intercourse or lascivious conduct for money under any of the means of trafficking, then the woman is no longer liable under Article 202 RPC, as she is considered a victim under RA The pimp or the bar owner is the one liable under RA The above discussion was clearly articulated by Senator Franklin Drilon during the period for amendments of R.A. 9208: I would also wish to state on record that for purposes of punishing a prostitute, the definition under the Revised Penal Code would still be controlling. This definition is only for purposes of prosecuting trafficking in persons. 17 To this extent, R.A modifies Article 202 RPC. To re-emphasize, instead of punishing trafficked persons, R.A punishes perpetrators of trafficking and those who use the services of trafficked persons. 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 primarily for sexual purposes. 18 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 taking advantage of a victim s vulnerability. 19 2) Trafficking for forced labor includes trafficking for forced labor, slavery, involuntary servitude or debt bondage. Forced labor and slavery both refer to the extraction of work or services from any person by means of enticement, violence, intimidation or threat, use of force or coercion, including deprivation of freedom, abuse of authority or moral ascendancy, debt bondage, or deception. 20 Debt bondage is when the debtor pledges his or her personal services or labor or those of a person under his or her control as security or payment for a debt, when the length and nature of services is not clearly defined or when the value of the services as reasonably assessed is not applied toward the liquidation of the debt Senate deliberations on R.A. 9208, Bill on Second Reading (Continuation), March 19, 2003, p Rep. Act No (2003) sec. 3(h) and IRR art. II, sec. 5(j). 19 Rep. Act No (2003) sec. 3(f) and IRR art. II, sec. 5(h). 20 Rep. Act No (2003) sec. 3(d) and IRR art. II, sec. 5(f). 21 Rep. Act No (2003) sec. 3(g) and IRR art. II, sec. 5(i). 15

19 Involuntary Servitude refers to a condition of enforced, compulsory service induced by any means of any scheme, plan or pattern, intended to cause a person to believe that, if the person did not enter into or continue in such condition, that person or another person would suffer serious harm or other forms of abuse or physical restraint, or the abuse or threatened abuse of the legal process. 22 3) Trafficking for the removal or sale of organs as described in Section 4(g) punishes the trafficking of a person for the removal or sale of organs by means including force, deception and fraud. 4) Trafficking of children for armed activities is described in Section 4(h) and does not require any particular means because the prohibited act involves children. 23 ii. Section 4 should be interpreted in relation to the definition of trafficking in persons in Section 3 There are provisions in Section 4 which specify each of the three elements of trafficking in persons, i.e., acts, means, and exploitative purpose. For example, Section 4 paragraphs (a) and (g) each specify the three elements. However, Section 4 paragraphs (b), (c), (d), (e), (f) and (h) mention only two elements: the acts and the purposes. The means are not specified. Does that mean that for these offenses only the specified elements need to be alleged and proven? No. During the Senate deliberations of the bill, Senator Estrada, its principal author, stated that Section 4 should always be construed in relation to Section 3. MR. PRESIDENT (Sen. Drilon): But Section 3(a) is only a definition of trafficking. SEN. DE CASTRO: Yes. MR. PRESIDENT: Section 4(g) is the specific act punished. So, I do not see how to relate the two. How do we connect Section 3(a) to Section 4(g) and say that if it is through intimidation, fraud, et cetera, it becomes punishable? SEN. ESTRADA: I think the definition of trafficking in Section 3 must be considered in interpreting Section IRR art. II, sec. 5(k). 23 See Sec. 3(a). 24 Senate deliberations on R.A. 9208, Consideration on second reading of S. No. 2444, February , p

20 Moreover, during the period for amendments of the Senate bill, Senator Drilon proposed the addition of the word provide to Section 4(a), in order to make Section 4(a) consistent with the definition of trafficking in persons contained in Section 3. This proposed amendment was duly accepted. 25 This means that the elements of trafficking in persons as defined in Section 3 should always be considered, namely act, means and purpose. Hence, even if a provision in Section 4 does not specify an element of trafficking in persons, the lacking element should be taken from the definition in Section 3. For example, Section 4(e) does not specify the means for hiring or maintaining a person for the purpose of prostitution or pornography. Since Section 4(e) should be construed in relation to Section 3, it necessarily follows that one or more of the means listed in the Section 3 definition must be present to constitute the crime of trafficking in persons. Thus, the elements of Section 4(e) should be as follows: A. Acts: Hiring or maintaining B. Means: Threat, use of force, other forms of coercion, abduction, fraud, deception, abuse of power or position, taking advantage of the vulnerability of a person, giving or receiving of payments or benefits to achieve consent of a person having control over another person C. Purpose: Prostitution or pornography Cases of trafficking involving minors are the exception. Pursuant to Section 3(a), when there is trafficking of minors, only the act and the purpose need to be proven. iii. Sec. 4(a) Trafficking through recruitment and other acts for the purpose of sexual exploitation or forced labor (a) To recruit, transport, transfer, harbor, provide, or receive a person by any means, including those done under the pretext of domestic or overseas employment or training or apprenticeship, for the purpose of prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage. Thus far, this has been one of the most common sections for prosecution under R.A a. Under the pretext of employment, explained Section 4(a) punishes a trafficking act by any means including those done under the pretext of domestic or overseas employment. Under the pretext of means that the employment relationship was not legitimate but was only used as a means to engage the victims. In other words, it is a form of deception, one of the means specified in the definition of trafficking in persons in Section 3(a). The existence of an employer-employee relationship is not a necessary element of the offense. 25 Senate deliberations on R.A. 9208, Bill on Second Reading (Continuation), March 19, 2003, p

21 b. By any means refers to the means in Section 3(a) As discussed previously, Section 4 should be construed in relation to Section Thus, the phrase by any means in this provision refers to those means listed in the Section 3(a) definition. Under the pretext of domestic employment is an example of the means of deception. Section 4(a) Trafficking through recruitment and other acts for the purpose of sexual exploitation or forced labor Acts of: Recruitment Transportation Transfer Harboring Provision Receipt of a person by ANY Means, including those done under the pretext of domestic or overseas employment or training or apprenticeship for the Purpose of: Prostitution Pornography Sexual exploitation Forced labor Slavery Involuntary servitude OR Debt bondage iv. Sec. 4(b) Trafficking by introducing or matching for marriage (b) To introduce or match for money, profit, or material, economic or other consideration, any person or, as provided for under Republic Act No. 6955, any Filipino woman to a foreign national, for marriage for the purpose of acquiring, buying, offering, selling or trading him/her to engage in prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage. Section 4(b) punishes acts of introducing or matching any person for marriage. There are two sets of victims who may be introduced or matched for marriage: 1. any person, male or female, Filipino or foreign national, to any third party; or 2. any Filipino woman to a foreign national, as contemplated under RA Section 4(b) requires that there be consideration for the agreement, in the form of money or other profit. The offender under Section 4(b) is the one who introduces or matches another person to a third party, not the contracting parties to the marriage. Sec. 4(b) Trafficking by introducing or matching for marriage 26 See Chapter One, section b (ii), above. 27 Rep. Act No (1990). 18

22 Acts of: Introducing or matching any person or, as provided for under Republic Act No. 6955, any Filipino woman to a foreign national for marriage for: Money Profit Material Economic OR Other consideration (Section 4(b) does not specify the means 28 ) for the Purpose of: Acquiring Buying Offering Selling OR Trading him/her to engage in: Prostitution Pornography Sexual exploitation Forced labor or slavery Involuntary servitude OR Debt bondage v. Sec. 4(c) Trafficking by offering or contracting marriage (c) To offer or contract marriage, real or simulated, for the purpose of acquiring, buying, offering, selling, or trading them to engage in prostitution, pornography, sexual exploitation, forced labor or slavery, involuntary servitude or debt bondage. Both Section 4 paragraphs (b) and (c) focus on marriage, and the purpose of the punishable act in both is the acquiring, buying, offering, selling or trading a person to engage in prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage. Section 4(c) punishes the acts of offering or contracting marriage. The offenders under Section 4(c) are those who offer to marry or who actually marry a person for the purpose of exploiting that person. Section 4(c) punishes the act even if there is no consideration involved. Sec. 4(c) Trafficking by offering or contracting marriage Acts of: Offering or contracting marriage, real or simulated To any person Section 4(c) does not specify the means 29 for the Purpose of: Acquiring Buying Offering Selling OR Trading them to engage in: Prostitution Pornography Sexual exploitation 28 Hence, one or more of the means listed in Sec. 3(a) must be present, except in cases involving minors. 29 See footnote

23 Forced labor or slavery Involuntary servitude OR debt bondage vi. Sec. 4(d) Trafficking through tours and travel plans (d) To undertake or organize tours and travel plans consisting of tourism packages or activities for the purpose of utilizing and offering persons for prostitution, pornography, or sexual exploitation. Trafficking through tours and travel plans is otherwise known as trafficking involving sex tourism. The Act defines sex tourism as 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. 30 This form of trafficking is usually committed by travel and tour agencies that may appear to be engaged in legitimate businesses, possessing all the requisite government permits and certifications, but are also involved in underground business by organizing tours and travel plans for customers for prostitution, pornography and sexual exploitation. Sec. 4(d) Trafficking through tours and travel plans Acts of: Undertaking or organizing tours and travel plans consisting of tourism packages or activities Section 4(d) does not specify the means 31 for the Purpose of utilizing and offering persons for: Prostitution Pornography OR Sexual exploitation vii. Sec. 4(e) Maintaining or hiring for prostitution or pornography (e) To maintain or hire a person to engage in prostitution or pornography; a. Defining maintaining As for most provisions of R.A. 9208, there is yet no jurisprudence on the act of maintaining a person for prostitution or pornography under Section 4(e). According to its ordinary import, 32 to maintain is to keep in an existing state; to sustain; to support or 30 Rep. Act No (2003) sec. 3(e). 31 Ibid. 32 It is a settled principle of statutory construction that a term must be read in light of its common or ordinary meaning unless another meaning is furnished by the law. (Central Azucarera Don Pedro v. Central Bank, 104 Phil. 598 (1954); Espino v. Cleofe, G.R. No , July 13, 1973, 52 SCRA 92 (1973); Phil. Acetylene Co. v. Central Bank, 120 Phil. 829 (1964).) 20

24 provide for. 33 Using this definition, any act that sustains, supports, provides for, or continues the prostitution or pornography of trafficked persons falls under the concept of maintaining in Section 4(e). Thus, the act of maintaining may include ordinary acts of providing shelter, food or clothing, performed with the aim that by such actions, prostitution or pornography may continue. In reality, perpetrators often use such actions to exert control over persons for prostitution and pornography. For example, some brothel managers prohibit workers from patronizing establishments outside the brothel compound, enforcing instead an internal scheme in which the provision of necessities like food and clothing is contingent on the earning of wages through prostitution. b. Hiring does not require an employment relationship In the same manner as Section 4(a), an employer-employee relationship is not a requisite element of the offense under this section. What this section prohibits and punishes is the act of hiring for pornography or prostitution. Hiring in its ordinary sense means the engagement of another to perform a particular task. Hiring, or the selection or engagement of employees, is just one of the concurring elements of an employer-employee relationship as officially defined by the Supreme Court, the others being the payment of wages, the power of dismissal, and the power to control the employee s conduct. 34 Sec. 4(e) Maintaining or hiring for prostitution or pornography Acts of: Maintaining or hiring any person Section 4(e) does not specify the means 35 for the Purpose of: Prostitution OR Pornography viii. Sec. 4(f) Trafficking through adoption (f) To adopt or facilitate the adoption of persons for the purpose of prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage. Sec. 4(f) Trafficking through adoption Acts of: Adoption or facilitating an adoption Section 4(f) does not specify the means 36 for the Purpose of: Prostitution Pornography 33 Merriam-Webster Dictionary Online, < October 15, Pacific Consultants International Asia, Inc. v. Schonfeld, G.R. No , February 19, See footnote Ibid. 21

25 of persons Sexual exploitation Forced labor Slavery Involuntary servitude OR Debt bondage ix. Sec. 4(g) Trafficking for removal or sale of organs (g) To recruit, hire, adopt, transport or abduct a person, by means of threat or use of force, fraud, deceit, violence, coercion, or intimidation for the purpose of removal or sale of organs of said person. The Act does not provide for the definition of organs, thus it should be understood in its ordinary import 37. Organs refers to human organs of the trafficked person. Unlike in the Organ Donation Act of 1991 (R.A. 7170), the law on anti-trafficking does not make any distinction between those that are transplantable and those that are not. As called for by the rule on statutory construction where the law does not distinguish, neither ought we to distinguish 38 the term organs, includes those that make up the organ systems of the human body, namely the circulatory, lymphatic, digestive, endocrine, integumentary, muscular, nervous, reproductive, respiratory, skeletal, and urinary. 39 Thus, for example, if a person is trafficked for the purpose of the removal or sale of that person s blood, R.A covers the act since blood is part of the circulatory organ of the human body. Sec. 4(g) Trafficking for removal or sale of organs Acts of: Recruiting Hiring Adopting Transporting Abducting any person by Means of: Threat Use of force Fraud Deceit Violence Coercion OR Intimidation for the Purpose of: Removal or sale of organs of said person x. Sec. 4(h) Trafficking of children for armed activities 37 See footnote Ubi lex non distinguit nec nos distinguere debemus. 39 Organ Systems in the Human Body < September 29,