Name of Student:

ESPERIDION G. CURUGAN - 18-MJD-035

Criminal Law 2 (Assigned Topics: Articles 179-184 and Special Penal Laws
[RA 9775 and RA 10591]) under GROUP “D”
REVISED PENAL CODE

ANTI-CHILD PORNOGRAPHY ACT OF 2009 (RA No. 9775)

Child

Child refers to a person:

a. BELOW eighteen (18) years of age; or

b. OVER 18 years of age but is unable to fully take care of himself/herself

from abuse, neglect, cruelty, exploitation or discrimination because of a
physical or mental disability or condition (Section 3[a], paragraph 1, RA
9775).

A child shall also refer to:

a. A person, regardless of age, who is presented, depicted or portrayed as

a child as defined herein; and

b. Computer-generated, digitally or manually crafted images or graphics

of a person who is presented or who is made to appear to be a child as
defined herein (Section 3[a], paragraph 2, RA 9775).

Child pornography

Child pornography refers to any representation whether visual, audio, or

written combination thereof, by electronic, mechanical, digital, optical,
magnetic or by any other means, of a child engaged or involved in real or
simulated explicit sexual activities (Section 3[b], RA 9775).

Explicit sexual activity

Explicit sexual activity includes actual or simulated:

 1. Sexual intercourse or lascivious act including but not limited to
contact involving genital to genital, oral or genital, anal to genital, or
oral to anal, whether between persons of the same or opposite sex;

2. Bestiality;

3. Masturbation;

4. Sadistic or masochistic abuse;

5. Lascivious exhibition of the genitals, buttocks, breast, pubic area

and/or anus; or

6. Use of any object or instrument for lascivious acts (Section 3[c], RA

9775).

Primarily sexual purposes

Primarily sexual purposes refer to purposes which will fulfill all the following
conditions:

1. The average person applying contemporary community standards

would find the work taken as whole appealing to prurient interest and
satisfying only the market for gratuitous sex and violence;

2. The work depicts or describes sexual conduct in a patently offensive

way; and

3. The work taken as a whole imbued within its context, manner or

representation, intention and culture, lascivious, literary, artistic,
political and scientific value.

Child pornography materials

Child pornography materials refer to the means and methods by which child
pornography is carried out:

1. As to form

a. Visual depiction - which includes not only images of real

children but also digital image, computer image or computer-
 generated image that is indistinguishable from that of real children
engaging in an explicit sexual activity. Visual depiction shall include:

1. Undeveloped film and videotapes;

2. Data and/or images stored on a computer disk or by electronic

means capable of conversion into a visual image;

3. Photograph, film, video, picture, digital image or picture,

computer image or picture, whether made or produced by
electronic, mechanical or other means;

4. Drawings, cartoons, sculptures or paintings depicting children;

and

5. Other analogous visual depiction

b. Audio representation of a person who is or is represented as being a

child and who is engaged in or is represented as being engaged in
explicit sexual activity, or an audio representation that advocates,
encourages or counsels any sexual activity with children which is an
offense under this Act

Note: Such representation includes audio recordings and live audio

transmission conveyed through whatever medium including real-time internet
communications.

c. Written text or material that advocates or counsels’ explicit sexual

activity with a child and whose dominant characteristic is the
description, for sexual purpose, of an explicit sexual activity with a
childl

2. As to content - It includes representation of a person who is,

appears to be, or is represented as being a child, the dominant
characteristic of which is the depiction, for a sexual purpose, of the:

a. Sexual organ or the anal region, or a representation thereof; or

b. Breasts, or a representation of the breasts, of a female person.

Grooming
Grooming refers to the act of preparing a child or someone who the offender
believes to be a child for sexual activity or sexual relationship by
communicating any form of child pornography. Grooming includes online
enticement or enticement through any other means.

Luring

Luring refers to the act of communicating, by means of a computer system,

with a child or someone who the offender believes to be a child for the
purpose of facilitating the commission of sexual activity or production of any
form of child pornography.

Pandering

Pandering is the act of offering, advertising, promoting, representing, or

distributing through any means any material or purported material that is
intended to cause another to believe that the material or purported material
contains any form of child pornography, regardless of the actual content of
the material or purported material.

PUNISHABLE ACTS

1. To hire, employ, use, persuade, induce or coerce a child to perform in

the creation or production of any form of child pornography (Section
4[a]);

2. To produce, direct, manufacture or create any form of child

pornography (Section 4[b]);

3. To publish offer, transmit, sell, distribute, broadcast, advertise,

promote, export or import any form of child pornography (Section 4[c]);

4. To possess any form of child pornography with the intent to sell,

distribute, publish, or broadcast (Section 4[d]);

Note: Possession of three (3) or more articles of child pornography of

the same form shall be prima facie evidence of the intent to sell,
distribute, publish, or broadcast.

5. To knowingly, willfully and intentionally provide a venue for the

commission of prohibited act such as, but not limited to, dens, private
rooms, cubicles, cinemas, houses or in establishments purporting to be
a legitimate business (Section 4[e]);
6. For film distributors, theaters and telecommunication companies, by
themselves or in cooperation with other entities, to distribute any form
of child pornography (Section 4[f]);

7. For a parent, legal guardian or person having custody or control of a

child to knowingly permit the child to engage, participate or assist in
any form of child pornography (Section 4[g]);

8. To engage in the luring or grooming of a child (Section 4[h]);

9. To engage in pandering of any form of child pornography (Section 4[i]);

10.To willfully access any form of child pornography (Section 4[j]);

11. To conspire to commit any form of the prohibited acts stated in Section
4, RA 9775 (Section 4[k]);

Note: Conspiracy to commit any form of child pornography shall be

committed when two (2) or more person come to an agreement
concerning the commission of any of the said prohibited acts and decide
to commit it.

12.To possess any form of child pornography (Section 4[l]);

13. Syndicated child pornography (Section 5, RA 9775);

Note: Syndicated child pornography is committed when it is carried out

by a group of three (3) or more persons conspiring or confederating with
one another.

14.Willfully and knowingly failing to comply with the notice and installation
requirements of an internet service provider (Section 9, RA 9775);

15.Willfully and knowingly failing to comply with the notice requirements

by any mall owner-operator and owner or lessor of other business
establishments (Section 10, RA 9775);

16.Knowingly, willfully and intentionally violating duties of an internet

content host (Section 11, RA 9775); and

17. Violation of the right to privacy of the child at any stage of the
investigation, prosecution and trial of an offense under this Act (Section
13, RA 9775).
Child pornography as a Transnational Crime

The Department of Justice may execute the request of a foreign state for
assistance in the investigation or prosecution of any form of child
pornography by:

1. Conducting a preliminary investigation against the offender and, if

appropriate, to file the necessary charges in court;

2. Giving information needed by the foreign state; and

3. Applying for an order of forfeiture of any proceeds or monetary

instrument or property located in the Philippines used in connection
with child pornography in the court (Section 22, RA 9775).

Note: The principle of mutuality and reciprocity shall at all times

recognized (Section 22, RA 9775)

In the case of Pollo vs. Constantino-David, 659 SCRA 189, October 18, 2011,
citing an American jurisprudence in the case of United States vs. Mark L.
Simons (206 F. 3d392 [4th Cir. 2000]), the U.S. Supreme Court declared that
the federal agency’s computer use policy foreclosed any inference of
reasonable expectation of privacy on the part of its employees. Though the
Court therein recognized that such policy did not, at the same time, erode the
respondent’s legitimate expectation of privacy in the office in which the
computer was installed, still, the warrantless search of the employee’s office
was upheld as valid because a government employer is entitled to conduct a
warrantless search pursuant to an investigation or work-related misconduct
provided the search is reasonable in its inception and scope. In that case, the
defendant
Simons, an employee of a division of the Central Intelligence Agency (CIA),
was convicted of receiving and possessing materials containing child
pornography. Simons was provided with an office which he did not share with
anyone, and a computer with Internet access. The agency had instituted a
policy on computer use stating that employees were to use the Internet for
official government business only and that accessing unlawful material was
specifically prohibited. The policy also stated that users shall understand that
the agency will periodically audit, inspect, and/or monitor the user’s Internet
access as deemed appropriate. CIA agents instructed its contractor for the
management of the agency’s computer network, upon initial discovery of
prohibited internet activity originating from Simons’ computer, to conduct a
remote monitoring and examination of Simons’ computer. After confirming
that Simons had indeed downloaded pictures that were pornographic in
nature, all the files on the hard drive of Simons’ computer were copied from
remote work station. Days later, the contractor’s representative finally
entered Simons’ office, removed the original hard drive on Simons’ computer,
replaced it with a copy, and gave the original to the agency security officer.
Thereafter, the agency secured warrants and searched Simons’ office in the
evening when Simons was not around. The search team copied the contents
of Simons’ computer; computer diskettes; videotapes; and various
documents, including personal correspondence. At his trial, Simons moved to
suppress these evidence, arguing that the searches of his office and computer
violated his Fourth Amendment rights (regarding right against unreasonable
searches and seizures). After a hearing, the district court denied the motion
and Simons was found guilty as charged.

COMPREHENSIVE LAW ON FIREARMS AND AMMUNITIONS (PD 1866, as

amended by RA 8294 and RA 10591)

Standards and requisites for issuance of and obtaining a license to own and
possess firearms

1. Applicant must be a Filipino citizen;

2. He must be at least 21 years old;

3. Has gainful work, employment, occupation or business or has filed an

Income Tax Return for the preceding year as proof of income,
profession, business or occupation; and

4. He shall submit the following certification issued by appropriate

authorities attesting the following:

a. The applicant has not been convicted of any crime involving moral
turpitude;

b. The applicant has passed the psychiatric test administered by a PNP-

accredited psychologist or psychiatrist;

c. The applicant has passed the drug test conducted by an accredited

and authorized drug testing laboratory or clinic;

d. The applicant has passed a gun safety seminar which is administered

by the PNP or a registered and authorized gun club;
 e. The applicant has filed in writing the application to possess a
registered firearm which shall state the personal circumstances of
the applicant;

f. The applicant must present a police clearance from the city or

municipality police office; and

g. The applicant has not been convicted or is currently an accused in a

pending criminal case before any court of law for a crime that is
punishable with a penalty of more than 2 years (Section 4, RA
10591).

Note: An acquittal or permanent dismissal of a criminal case before the courts

of law shall qualify the accused thereof to qualify and acquire a license
(Section 4, RA 10591).

Carrying of firearms outside of residence or place of business

A permit to carry firearms outside of residence shall be issued by the Chief of

the PNP or his duly authorized representative to any qualified person whose
life is under actual threat or his/her life is in imminent danger due to the nature
of his/her profession, occupation or business.

The burden is on the applicant to prove that his/her life is under actual threat
by submitting a threat assessment certificate from the PNP (Section 7, RA
10591).

Professionals that are considered to be in imminent danger due to the

nature of their profession, occupation or business

a. Members of the Philippine Bar;

b. Certified Public Accountants;

c. Accredited Media Practitioners;

d. Cashiers, Bank Tellers;

e. Priests, Ministers, Rabbi, Imams;

f. Physicians and Nurses;

g. Engineers; and
 h. Businessmen, who by the nature of their business or undertaking, are
exposed to high risk of being targets of criminal elements (Section 7, RA
10591).

Firearms that may be registered

Only small arms may be registered by licensed citizens or licensed juridical

entities for ownership, possession and concealed carry.

Small arms

Small arms are firearms intended to be or primarily designed for individual use
or that which is generally considered to mean a weapon intended to be fired
from the hand or shoulder, which are not capable of fully automatic burst of
discharge (Section 3 [dd], RA 10591).

Possession of light weapon

A light weapon shall be lawfully acquired or possessed exclusively by the AFP,

PNP and other law enforcement agencies authorized by the President in the
performance of their duties.

Light weapons

a. Class A Light weapons - referring to self-loading pistols, rifles,

and carbines, sub-machine guns, assault rifles and light machine guns
not exceeding caliber 7.62MM which have fully automatic mode; and

b. Class B Light weapons - referring to weapons designed for use by

two (2) or more persons serving as a crew, or rifles and machine guns
exceeding 7.62MM such as heavy machine guns, handheld under barrel
and mounted grenade launchers, portable anti-aircraft guns, portable
anti-tank guns, recoilless rifles, portable launchers of anti-tank missile
and rocket systems, portable launchers of anti-aircraft missile systems,
and mortars of caliber of less than 100MM.

Note: However, private individuals who already have licenses to possess

Class-A light weapons upon the effectivity of RA 10591 shall not be deprived of
the privilege to continue possessing the same and renewing the licenses
therefor, for the sole reason that these firearms are Class-A light weapons.

Types of license
A qualified individual may be issued the appropriate license under the
following categories:

a. Type 1 license - allows a citizen to own and possess a

maximum of two (2) registered firearms;

b. Type 2 license - allows a citizen to own and possess a

maximum of five (5) registered firearms;

c. Type 3 license - allows a citizen to own and possess a

maximum of ten (10) registered firearms;

d. Type 4 license - allows a citizen to own and possess a

maximum of fifteen (15) registered firearms;

e. Type 5 license - allows a citizen, who is a certified gun

collector, to own and possess more than fifteen (15) registered firearms;

For Type 1 to 5 licenses, a vault or container secured by lock and key or other
security measures for the safekeeping of firearms shall be required.

For Type 3 to 5 licenses, the citizen must comply with the inspection and bond
requirements (Section 9, RA 10591).

Acquisition or purchase and sale of firearms and ammunition

Firearms and ammunition may only be acquired or purchased from authorized

dealers, importers or local manufacturers and may be transferred or sold only
from a licensed citizen or licensed juridical entity to another licensed citizen or
licensed juridical entity.

During election periods, the sale and registration of firearms and ammunition
and the issuance of the corresponding licenses to citizens shall be allowed on
the condition that the transport or delivery thereof shall strictly comply with
the issuances, resolutions, rules and regulations promulgated by the
Commission on Elections (Section 21, RA 10591).

Death or disability of the holder of a firearm licensee

Upon the death or legal disability of the holder of a firearm license, it shall be
the duty of his/her next of kin, nearest relative, legal representative, or other
person who shall knowingly come into possession of such firearms or
ammunition, to deliver the same to the FEO of the PNP or Police Regional
Office, and such firearm or ammunition shall be retained by the police
custodian pending the issuance of a license and its registration (Section 26, RA
10591).

Note: The failure to deliver the firearm or ammunition within six (6) months
after the death or legal disability of the licensee shall render the possessor
liable for illegal possession of the firearm.

PUNISHABLE ACTS

1. Unlawful acquisition or possession of firearms and ammunition (Section

28, RA 10591);

2. Use of loose firearm in the commission of a crime (Section 29, RA

10591);

Note: Loose firearm refers to an unregistered firearm, an obliterated or

altered firearm, firearm which has been lost or stolen, illegally
manufactured firearms, registered firearms in the possession of an
individual other than the licensee and those with revoked licenses in
accordance with the rules and regulations (Section 3[v], RA 10591).

3. Carrying the registered firearm outside his/her residence without any

legal authority therefor or absence of permit to carry outside of
residence (Section 31, RA 10591);

4. Unlawful manufacture, importation, sale or disposition or firearms or

ammunition or parts thereof, machinery, tool or instrument used or
intended to be used in the manufacture or firearms, ammunition or
parts thereof (Section 32, RA 10591);

5. Arms smuggling (it refers to the import, export, acquisition, sale,

delivery, movement or transfer of firearms, their parts and components
and ammunition, from or across the territory of one country to that of
another country which has not been authorized in accordance with
domestic law in either or both country/countries (Section 33, RA 10591)

6. Tampering, obliteration, or alteration of firearms identification (Section

34, RA 10591);

7. Use of an imitation firearm – This refers to a replica of a firearm or other

device that is so substantially similar in coloration and overall
appearance to an existing firearm as to lead a reasonable person to
 believe that such imitation firearm is a real firearm. An imitation firearm
used in the commission of a crime shall be considered as a real firearm
and the person who committed the crime shall be punished in
accordance with RA 10591 (Section 35, RA 10591);

8. Violating the procedure regarding firearms in custodia legis – During the

pendency of any case filed in violation of RA 10591, seized firearm,
ammunition, or parts thereof, machinery, tools or instruments shall
remain in the custody of the court. If the court decides that it has no
adequate means to safely keep the same, the court shall issue an order
to turn over to the PNP Crime Laboratory such firearm, ammunition, or
parts thereof, machinery, tools or instruments in its custody during the
pendency of the case and to produce the same to the court when so
ordered. No bond shall be admitted for the release of the firearm,
ammunition or parts thereof, machinery, tool or instrument (Section 36,
RA 10591);

9. Planting evidence – Willfully and maliciously inserting, placing, and/or

attaching directly or indirectly, through any overt or covert act, any
firearm, or ammunition or parts thereof in the person, house, effects or
in the immediate vicinity of an innocent individual for the purpose of
implication or incriminating the person or imputing the commission of
any violation of the provision of RA 10591 to said individual (Section 38,
RA 10591);

10.Failure to notify lost or stolen firearm or light weapon (Section 40, RA

10591);

11. Illegal transfer/registration of firearms – transferring possession of any

firearm to any person who has not yet obtained or secured the
necessary license or permit thereof (Section 41, RA 10591).

Grounds for revocation, cancellation or suspension of license or permit

The Chief of the PNP or his/her authorized representative may revoke, cancel
or suspend a license or permit on the following grounds:

a. Commission of a crime or offense involving the firearm, ammunition, or

major parts thereof;

b. Conviction of a crime involving moral turpitude or any offense where

the penalty carries an imprisonment of more than six (6) years;
 c. Loss of the firearm, ammunition, or any parts thereof through
negligence;

d. Carrying of the firearm, ammunition, or major parts thereof outside of

residence or workplace without the proper permit to carry the same;

e. Carrying of the firearm, ammunition, or major parts thereof in

prohibited places;

f. Dismissal for cause from the service in case of government official and
employee;

g. Commission of any of the acts penalized under Republic Act 9165,

otherwise known as the “Comprehensive Dangerous Drug Act of 2002;”

h. Submission of falsified documents or misrepresentation in the

application to obtain a license or permit;

i. Noncompliance of reportorial requirements; and

j. By virtue of a court order (Section 39, RA 10591).

ELEMENTS:

1. The existence of the subject firearm; and

2. The fact that the accused who possessed the same does not have the
corresponding license for it (Evangelista v. People, G.R. No. 163267,
May 5, 2010; People v. Eling, G.R. No. 178546, April 30, 2008).

Ownership is not essential

The rule is that ownership is not an essential element of illegal possession of

firearms and ammunition. What the law requires is merely possession which
includes not only actual physical possession but also constructive possession
or the subjection of the thing to one’s control and management (People v. De
Gracia, G.R. Nos. 102009-10, July 6, 1994).