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Criminalizing customers of trafficked prostitutes: a big step, but not far enough

September 11, 2012 ·  By Marlene Rachel Cayoun, Preda Legal Intern

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The Anti-Trafficking Act of 2003 (RA 9208) is an excellent piece of legislation that puts Philippine law at the forefront of the fight against a horrific global criminal enterprise. In precision and scope, RA 9208 outdoes similar legislation from many European countries, South-East Asian neighbors and Australia. When borne out through determined initiatives for prosecution like that of the International Justice Mission in Cebu, RA 9208 had enabled Philippine law enforcers to move leaps and bounds in the domestic war against trafficking.

One of its most interesting provisions is Section 11, which criminalizes the customer of prostitution services from trafficked people. Section 11 provides that:

Any person who buys or engages the services of trafficked persons for prostitution shall be penalized as follows:

(a) First offense ­ six (6) months of community service as may be determined by the court and a fine of Fifty thousand pesos (P50,000); and

(b) Second and subsequent offenses ­ imprisonment of one (1) year and a fine of One hundred thousand pesos (P100,000).

Domestic trafficking in the Philippines is largely driven by a strong demand from both local and foreign sex customers. But internationally, the idea of criminalizing the customers of prostitutes is controversial. There are two main reasons for that: first, some people argue that to ban the buying of sex is too morally prescriptive and unbefitting of a liberal society; and second, prostitutes argue that criminalizing their clients will drive their work further underground and so make it more dangerous.

These arguments don’t apply to trafficking, where sex workers are by definition unwilling ­ often bound in slavery and society without question condemns the men knowingly providing the demand for them.

But even where criminality is restricted to customers of trafficked prostitutes, objections are still voiced: surely the customer should only be prosecuted if he knew the prostitute had been trafficked (in which case big evidential problems arise), and, customers are very unlikely to report suspicions about trafficking if doing so will expose them to prosecution.

Section 11 of the RA 9208 is therefore a controversial step, and the light penalty it incurs might be understood in the context of that wider debate. But there are circumstances, perhaps particularly prevalent in the Philippines, in which it is both absolutely correct to criminalize the customer, and where the punishment should surely be much heavier than the community sentence prescribed in Section 11.

In a Central Manila Regional Trial Court, the Mayor of San Marcelino in the Province of Zambeles is on trial for paying to have sex with a twelve-year-old girl, who was trafficked from Olongapo City to his holiday home by a local pimp. The facts strongly suggest that the Mayor engaged the pimp to bring the child to him, and that the child was selected for that purpose. Her mother pursued the case and is currently giving evidence to the court. Watching her, I understood how and why the case had overcome the obstacles to is progress.

The prosecution had successfully campaigned for an open hearing in Manila, outside the sphere of the Mayor’s influence, despite protracted and expensive legal argument against them. The private Prosecutor was engaged by women¹s rights activists and is working pro-bono. The child¹s mother and her supporters have worked very hard indeed and are clearly driven by their sense of injustice and resistance to oppression.

On the prima-facie evidence the mayor¹s role in the trafficking and prostitution of the child is very clear: he was more than a customer. Where a person is trafficked for the clear intent of prostituting them to a particular customer who had knowledge thereof, that customer is as complicit in the offence as the trafficker, if not more so. This is where anti-trafficking legislation runs into trouble. The principle of punishing the trafficker to dismantle the trade doesn¹t apply where the end customer has instigated the offense.

The Prosecutor in this case argued that the Mayor should face trafficking charges (other than Section 11) on the grounds that he was involved in conspiracy to traffic, that he was just as morally culpable as the trafficker, and that the incident of trafficking was a continuing event of which he was a part. None of these arguments won over, and neither did her very persuasive points about the legislative intent of the House of Representatives. The Mayor successfully argued that he should only answer as a ŒUser of Trafficked Persons ­ and thus face a maximum sentence of six months¹ community punishment.

Where people in positions of power ­ particularly in the local government or police ­ are charged with the offence of using the services of a locally trafficked prostitute, we would be naive to believe they are no more than an unsuspecting customer. This isn¹t discrimination, it¹s realism: in a country where corruption is rife and sex is for sale, women and children are readily Œordered¹ for sexual services by those who pull strings.

Now it appears that, unless they physically do the trafficking themselves, such people can rest assured that the maximum a sentence will be six months¹ community service. Section 11 is certainly a brave step, and one that singles the Philippines out as serious about dealing with trafficking. But in the case of the Mayor of San Marcelino and the twelve-year-old child he ordered for sex, the penalty does not begin to address the level of abuse perpetrated: against the victim herself, of her position of extreme poverty, and of the Mayor’s of great power. Community service is manifestly inappropriate in this situation, and Section 11 simply does not go far enough.

Although where children are involved, the harsher penalties for sexual abuse of a minor under RA 7610 are available (and the Mayor is indicted on this charge also), the emphasis on attributing the moral and real culpability in trafficking must be clear. What RA 9208 does in Section 11 is to remove the Œuser¹ from the wider picture of the trade; sadly, this is simply unrealistic.

The courts and the legislature must acknowledge that trafficking is a trade that does not always follow ordinary patterns of supply and demand. It would be a disaster if this case were to set a precedent for confining the prosecution of complicit customers to Section 11, and I hope that in the months to come sufficient noise will be made about the Mayor of San Marcelino to prevent that

 

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