Careless Whisper: Sex,Lies,Videos and the Law

I’m not exactly frantic when the sex video featuring cosmetic surgeon Dr.Hayden Kho and starlet Katrina Halili came out spreading like a wild fire in the Internet. In fact on the very first day when the video came out, a friend even boasted (short of teasing me) that he had already watched the video several times and still could not believe that it was indeed Starstruck survivor Katrina Halili. To me it was just one of those cheap showbiz scandals similar, but not identical, to the Kris Aquino-Joey Marquez affair years ago. (Remember STD?) Well for one, with the emerging trend of cyber technology and the proliferation of techie gadgets, most young couples these days are into sex videos. Society refuses to accept this but this is the naked truth in this time and age. Personally I have nothing against it as long it remains private and a purely consensual act. But more importantly they should be responsible adults always aware of the consequences of their actions. Some couples have their reasons for doing it, some purely out of love, while others simply as an adventure, for whatever reason that too should remain private. Unfortunately for the erstwhile lovers they crossed the line.

Prior to the release of the infamous sex video, a less inflammable video was released popularly known as the “careless whisper” dance video. (Pardon the pun!) At first Katrina denied that it was her who was in that video. The content however showed a woman strip dancing with Hayden to the sensual tune of George Michael’s Careless Whisper. Later she recanted and admitted that it was her and that they were actually rehearsing for an upcoming performance for Celebrity Duets wherein Hayden was one of the celebrity contestants. Honestly, I do not intend to watch any of those infamous videos. I guess watching the news and reading dallies are enough facts and evidence regarding the existence of said videos. No need to belabor this point.

What concerns me though are the legal ramifications amidst this controversy. Are there enough laws to protect women against “perverts of the highest kind"? (Whatever that means, only the morally upright Senator Bong Revilla knows) or what possible crime(s) did Hayden Kho allegedly commit if viewed within purview of the Revised Penal Code or any special laws?

In so far as criminal liability is concerned, our Revised Penal Code (RPC) is too outdated, if not inutile, to cover crimes involving the use of technological gadgets or devises. What we have so far are general crimes or offenses involving acts, which in the language of the law, cause annoyance, irritation, vexation or disturbance to the mind of another person. Article 287 (par. 2) of the RPC for instance deals with the crime of unjust vexation and punishes the offender by arresto menor or a fine ranging from five (5) to two (2) hundred pesos or both. Law textbooks define unjust vexation “as any human conduct which, although not productive of some physical or material harm would, however unjustly annoy or vex an innocent person.” Clearly this crime is too elastic and toothless at best which covers almost any act as long as the element of annoyance is present. There are some who suggested that Article 359 of the RPC is somewhat applicable. Said provision refers to the crime of slander by deed. By definition, slander by deed is a crime against honor by which the offender performs any act which cast dishonor, discredit, or contempt upon another person. Among the essential elements in this crime is that the offender must perform the act in the presence of other person or persons with the intent to humiliate the offended party. Nevertheless taking into account the all-pervasive nature of the Internet, the penalty for this crime may not be commensurate to the degree of degradation and humiliation it has caused to the victims.

The only possible avenue perhaps, is to resort to a special law.

For this reason, a criminal complaint has already been filed against Kho allegedly for violating Republic Act No. 9262 also known as “Anti-Violence Against Women and Their Children Act of 2004.” What is novel under this law is its broad application with regard to the relationship of the parties. Thus Section three (3) (a) of said act pertinently states that, “Violence against women and their children refers to any act or series of acts committed by any person against a woman who is his wife, or against a woman with whom the person has or had sexual or dating relationship…” Clearly to find application, the relationship of the parties may not necessarily be that of a husband and wife, or founded upon a valid or common law (live-in) marriage. This is evident from the letter and intent of the law when it speaks of “dating relationship.” The law however excludes mere casual acquaintance or ordinary socialization between two individuals in a business or social context. To come under the phrase “dating relationship,” the parties should have at least dated or involved romantically one time or the other, or on a continuing basis during the course of the relationship.

The act of videotaping or filming of an otherwise intimate sexual encounter sans consent of the woman may well be considered as a serious affront to women’s rights. Note that the type of violence punishable under said law is not limited to sexual or physical abuse but psychological as well. Thus the law clearly defines Psychological violence as “acts or omissions causing or likely to cause mental or emotional suffering of the victim such as but not limited to…public ridicule or humiliations…” Under this form of violence, the offender is made to suffer the penalty of prision mayor or imprisonment of six (6) years and one (1) day to twelve (12) years. Fair enough if you ask me, otherwise Hayden Kho can always invoke the criminal law principle of Nullum crimen nulla poena sine lege (There is no crime, when there is no law punishing it) to escape criminal liability.

Another possible legal remedy is to file for a separate or independent civil action for violation of privacy rights under the Civil Code. But the privacy issue here is not the focal point of the controversy, the best you can get out of this legal principle as applied to this particular case is civil liability. Yes, we are not talking here of imprisonment assuming Kho may be found liable in the courts of law for invasion of privacy.

Ironically a law maker even cited the right to privacy as enshrined in the Bill of Rights as the basis for Kho’s probable liability. This is an erroneous interpretation to say the least. The right to privacy as enshrined in the Constitution is a protection against governmental intrusion and not against private individuals. Simply put, assuming Kho violated the privacy of his victims, his liability should come under the Civil Code and not the Constitution since he is a private individual.

The salient provision which deals with privacy rights is Article 26 of the Civil Code which states, “Every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons…” This provision obviously recognizes and protects the sacredness of human personality against various forms of violation to privacy rights. With the increasing invasive capability of electronic gadgets or devises nowadays, the right to privacy is said to be the constant victim of unreasonable intrusions in this society. The protection of privacy rights under this provision is not limited to locational or physical privacy it also covers psychological privacy of every person. Thus, the law speaks of, “peace of mind of his neighbors and other persons.”

Essentially, if two consenting adults decided to make a sex video exclusively for their own consumption and for whatever reason, such is covered within their right to privacy. In any case it should be respected because it is protected by law. But while the law protects the privacy of private individuals, the law also imposes reasonable limitations for its exercise. What makes it prohibited under the law for example is if it is made under scandalous circumstances or if the other party did not consent to the act of videotaping or recording. In any case the law certainly recognizes any forms of privacy as long as it is not contrary to law, morals, public policy etc.

In the ultimate analysis, whether criminal or civil liability, consent is an essential element to determine the fate of Hayden Kho. Having said this, the pressing question that comes to mind is: Did Katrina consent to the act, not the act of sexual intercourse, but obviously to the video recording? Note that the operative word here is “consent.” According to news reports and interviews Katrina vehemently denies that she had knowledge whatsoever with Kho’s act of videotaping their sexual encounter much less giving her consent. If this is indeed true, then Hayden Kho is in a difficult position here. Sink or swim, he has to come up with a legal defense which will establish a consensual act and then shift the blame to those who allegedly stole and uploaded the videos in the internet. From what I heard, the legal counsel of Kho opted to put an insanity defense or that he was too high on drugs when he videotaped or recorded the sexual encounter. Sounds like a legal cop-out? Well let’s give Dr.Hayden Kho the presumption of innocence for now, after all even the “pervert of the highest kind” deserves this constitutional presumption.

PS
What about the culprit(s) who allegedly stole the videos from the hard drive and eventually uploaded it in the Internet for public viewing? To be sure, our laws (i.e. The E-Commerce Law) are not sufficient enough when we talk about cyber technology let alone cyber or Internet crimes. The acts of uploading and downloading of videos through the Internet are technical terms or should I say too “teki” for our lawmakers. This to my mind is a proper subject for Legislative investigation in aid of legislation in its purest sense.