IN THE EYE OF THE STORM

Dr. Hayden Kho, cosmetic surgeon and boyfriend of beauty magnate Vicky Bello, must be turning topsy-turvy in the middle of a raging storm of public condemnation after a video recording of his sexual escapade with actress Katrina Halili has circulated on the internet.

Meanwhile, legislators are scurrying to enact laws that will directly penalize the unauthorized taping and circulation of sexual conduct. This scandalous event may yet be the contribution of Katrina Halili, albeit under the most unlikely and humiliating circumstance, in the shaping of laws to protect women against sexually depraved men. A review of existing laws reveals that there is no law directly penalizing such deplorable conduct.

According to DOJ Secretary Raul Gonzalez and Sen. Bong Revilla, Dr. Kho may only be criminally charged for violation of Republic Act No. 9262 or the law on Violance Against Women and their Children. Let's examine under what particular provision Dr. Kho may be indicted.

Section 5 of RA 9262 enumerates the different acts of violence against women and their children that may be penalized under the law. In penalizing violence against women and children, the law does not limit its definition to physical violence or the infliction of bodily injuries; it includes sexual, psychological and economic abuse. Psychological abuse comes closest to defining the type of violence suffered by Halili. This is defined under section 5(i) as the "causing of mental or emotional anguish, public ridicule or humiliation of the woman . . ."

There can be no doubt that with the public exhibition of the sexual conduct between Kho and Halili, the latter suffered serious mental and emotional distress, public ridicule and humiliation. Needless to say, in a predominantly Christian country like ours with a largely conservative culture where a woman's chastity and the Filipina virtue of modesty are still valued despite growing western influences, the public showing of such unconventional and intimate congress is highly scandalous and offends sensibilities. It will put Halili in disrepute and forever stigmatize her. Even in the glitzy world of Hollywood, the public does not look favorably upon those who have suffered the same fate, like Paris Hilton, Kim Kardashan and Pamela Anderson, to name only a few.

If found guilty, Kho may spend more than six years in the can, more than what Secretary Gonzales said. Section 6(f) of the law penalizes the relevant act by prision mayor or imprisonment ranging from six years and one day to 12 years. This will disqualify Kho from availing of the benefits of probation. And by express provision of RA 9262 Halili may claim appropriate damages, meaning monetary compensation for her suffering.

Aside from RA 9262, Kho may find himself liable for grave scandal and obscene exhibition under articles 200 and 201, respectively, of the Revised Penal Code. There is grave scandal when a person offends against decency and good customs by any highly scandalous conduct. It could be theorized that the act of Kho in recording his sexual activities with Halili and subsequently giving away a copy of such recording to another by themselves constitute grave scandal. Although Kho may deny responsibility for the exhibition, the showing of the recording constitutes strong evidence of its transmission to another, for how else can such recording with a highly confidential content find its way in the hands of another? Article 201, on the other hand, penalizes the public exhibition of indecent or immoral scenes or acts, as well as the transmission of such to another.

It is interesting to note that the authors of the Revised Penal Code showed prescience by including the phrase "or any other place" in enumerating the situations where such objectionable scene or act may be shown. The phrase may very well cover the internet, even though at the time the law was adopted even televisions were not yet in vogue.

As will be expected, Kho may deny responsibility for the giving away of the recording, let alone its exhibition. Our lawmakers should see to it that whatever laws they craft to address this disturbing practice, the possible defenses that wrongdoers may put up to avoid liability should be anticipated and guarded against. A provision may be made, for example, to make the mere existence and authorship of the recording as prima facie evidence of guilt in criminalizing the unauthorized public exhibition of recorded sexual conduct between two persons.