Working Paper: Not for Citation or Reproduction
Study on ICT, VAW and Sexuality: A Policy Advocacy
Women’s Legal and Human Rights Bureau (WLB)1
Introduction
That Information and Communication Technology (ICT) has transformed and
revolutionalized society is an understatement. It has permeated and transcended public
and private spaces and has drastically changed the manner by which states, business
sectors and peoples conduct their operations and interact. ICT has altered both time and
space, making the transfer of information faster. It has created a borderless arena, blurring
borders and distances among states and nations. ICT has made possible the offsite conduct
of transactions and businesses, as well as the rendition of services offshore, without
necessarily establishing physical presence. This nature of ICT has made it an indispensable
aspect of globalization and of the globalized economy2.
ICT has transformed and revolutionalized Filipino society; it has transformed not only
political and economic systems and social interactions, but as well as culture. Through ecommerce, private companies have dominantly benefited from the convergence in
applications, content and interactivity of ICT3. ICT provided means to ensure efficient basic
service delivery and good governance (transparency and accountability), albeit its uneven
application in the bureaucracy4. Social networks have greatly affected the manner by which
Filipinos interact and communicate. In fact, the Philippines is found leading in the Asia
Pacific in terms of Social Networking Sites (SNS) engagement.5
Together, however, with the proliferation and the use of ICT in the country, there have
been documentations of increasing violations and crimes committed and perpetrated
through ICTs. These are realities on the ground, supported by articles and studies.
Alongside these harms, ICT having provided spaces for women’s empowerment and
exercise of their rights to sexuality and self-expression cannot as well be discounted.
In the light then of these, there is more reason to conduct a study and research on ICT,
VAW and Sexuality. There is a need to look into the role of ICT in the perpetration of VAW
1
As funded and supported by the Foundation of Media Alternatives (FMA) and the Alliance of Progressive
Communications Women’s Networking Support Program (APC WNSP). The Research team is composed of Ananeza
Aban, Chang Jordan, Jelen Paclarin, Maria Karla Espinosa, Maureen Pagaduan and Krissi Shaffina Twyla Rubin.
2
Globalization see in http://herkules.oulu.fi/isbn9514272463/html/x464.html
3
Soto page 15
4
Ibid
5
Foundation for Media Alternatives cited a study where the Philippines is found leading in the Asia Pacific in terms
of Social Networking Sites (SNS) engagement covering sites such as Friendster, Facebook and Twitter. The same
study records 10.7 Million are registered users of Friendster as of January 2008 while 15.28 Million, and continually
growing, are registered users of Facebook. The country is likewise listed as the 12 th most number of Twitter users
in the world. (Foundation for Media Alternatives (FMA) , Presentation on VAW and ICTs: Unpacking the Issues,
University Hotel, U. P. Diliman, 27 August 2010 unpublished)
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as well as in terms of providing spaces for women’s empowerment and exercise of their
rights to sexuality.
Scope and objectives of the study
The Study intends to comprehensively map the terrain of existing Philippine laws and
jurisprudence and analyze the existing policy framework on ICT, VAW and Sexuality. The
study also hopes to provide conceptual clarity of the phenomenon of ICT and VAW and
expose the gaps and limitations of existing laws. The Philippines ranking among the top in
countries with most internet usage in the world suggests a landscape largely undiscovered,
where interactions are complex and realities are compounded.
The research sets out to identify emerging issues on ICT, VAW, and sexuality among
Filipino women; identify the kinds of discrimination experienced by women in relation to
VAW and ICT; review legal perspectives on women’s sexuality, ICT and VAW and their
implications for the protection and promotion of women’s human rights; and identify
advocacy areas to further the protection and promotion of sexual rights and sexual justice
given the current reality or context of VAW and ICT.
The review of related literature covered the emerging forms of ICT-related VAW across the
globe and revealed the different perspectives on the interrelatedness of, interconnection
and interfaces between ICT and VAW, ICT and sexuality and VAW and sexuality. The
mapping of national laws covered eleven major pieces of legislation, two local city
ordinances and a significant number of relevant jurisprudence on ICT-related cases. The
prevailing policy framework of the existing laws in relation to ICT, VAW and sexuality has
been analyzed from a feminist and developmental lens. Key Informant Interviews
(KIIs)with law enforcers, IT experts, counseling agency, VAW lawyer and woman victimsurvivor of ICT-related sexual violence contributed to the documentation of forms of ICTrelated VAW which are happening in the country.
In coming up with a conceptual clarity of the phenomenon of ICT and VAW and the
intersection of ICT, VAW and sexuality, a working framework has been developed in
viewing and analyzing the phenomenon of ICT-related VAW. The working framework
guided the study in sharpening its analysis and enriching the feminist discourse on the
phenomenon of ICT-related VAW.
There remains a dearth of literature on the interconnectedness and interrelatedness of ICT,
VAW and Sexuality. Aware of its inherent limitation, this current study attempts to
contribute to the very limited literatures on the issue of ICT, VAW and Sexuality. More
particularly, it attempts to discuss and situate ICT as part of the global economy, and how
as such it plays a role both in the perpetration of VAW as well, as the possibilities it poses
for the empowerment of women. The study too, discusses and looks into the ICT
phenomenon, as part of globalization, and how these, taken together, have changed the
rules when it comes to the prevention, commission, perpetration and prosecution of
violence against women.
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The study is presented in the following manner: (1) ICT in the Overarching Contexts:
Globalization, Capitalism, Patriarchy and Empowerment, 2) Women’s Emerging Issues on
ICT, VAW and Sexuality, 3) Situating ICT, VAW and Sexuality, 4) Emerging Forms of ICTrelated VAW, 5) The Phenomenon of ICT-related VAW; 6) The Legal Landscape on ICT,
VAW and Sexuality, 7) A Working Framework : The Continuum of VAW and Empowerment;
and 8) Conclusion and Recommendation: Transforming ICTs, situating and contextualizing
VAW and Sexuality.
ICT in the Overarching Contexts: Globalization, Capitalism, Patriarchy and
Empowerment
Information and Communication Technology (ICTs) comprises “a complex and
heterogeneous set of goods, applications and services used to produce, distribute, process
and transform information. They include the outputs of industries as diverse as
telecommunications, television and radio broadcasting, computer hardware and software,
computer services and electronic media (e.g., the Internet, electronic mail, electronic
commerce and computer games.)6”
Distinctions have been made between new and old ICT, where “Old” technologies include
non-electronic media like print and analogue technologies like radio and new technologies,
refer to digital technologies (information is transmitted all in one go by digits) like
computers, the Internet, electronic mail and multimedia7. This research largely focuses on
new ICTs as these are the technologies which are primarily affecting and altering current
information and communications practices. These new ICTs are significant in that, first,
they bring a major shift in the vastness, depth and the ease of use of the information and
communication processes already being facilitated by the old ICTs. Second, is in that they
allow for processes that were previously not possible, like a seamless interactive
communication on the one hand, and cheaper and more efficient handling of information
through digitisation, on the other. 8
Definitions alone, however, cannot suffice. There is a need to contextualize and situate ICTs.
For although there is a view that such technologies have only technical rather than social
implications9, more and more literature and discussion papers delve on the manner by
which the new information and communications technologies (ICT) such as the internet,
multimedia wireless technologies are transforming economic and social interactions as
well as cultures10. More importantly, ICTs are not divorced from the society and from the
global economy by which it was spawned and continually developed.
6
Marcelle, Gillian (2000) Transforming ICT for Gender Equality
http://www.onlinewomeninpolitics.org/beijing12/mono9-ICT.pdf
7
Gurumurthy, Gender and ICTs page 13
8
Gumurthy, Gender and ICT page 13
9
Gurumurthy. Gender and ICT. p. 1
10
Kinoti, Kathambi. ICTs and Violence Against Women. Originally published by: AWID Ressource
Nethttp://www.wittproject.net/spip.php?article413
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The digital divide: the uneven diffusion of ICT in the context of globalization and
capitalism
The ICT Sector, otherwise known as the knowledge sector, is the fastest growing
area of the global economy11. It is highly diffused, with its products services consumed and
used for work and leisure by millions of individuals and organizations. Because of this, the
ICT sector, with its large global players and rapid rate of increase in revenues and stock
market valuations, is an important part of the international capitalist structure 12. As part of
this capitalist structure, these new technologies are characterized by the strategic control
by powerful corporations and nations13. Governments, seeing the economic opportunity
brought by ICT transnational corporations, more often than not, yield and cater to their
interests.
In this context of global economy to which it was spawned and as well as the unequal
power relations in said society, the diffusion, use and enjoyment of ICT has never been
equal. The dramatic and positive changes brought about by ICT have not touched all of
humanity, and are in large part, informed and influenced by existing power structures and
relations14. Studies15 have thus pointed out the uneven diffusion and enjoyment of ICT
where much of ICT growth and concentration is seen in the world’s wealthy nations and in
OECD (Organization for Economic Cooperation for Development) countries. Studies have
likewise shown that in terms of gender, access, most certainly, to ICT resources and
opportunities are not the same between men and women.
These uneven diffusion of ICT, as an effect of existing power relations and inequalities has
created divides. We thus have the digital and the gender divide
The Digital Divide pertains to the uneven diffusion of access to ICT and ICT structures as a
consequence of the existing ICT context of capitalistic structures and global economy.
Despite the rapid growth of the global online community and the steady rise of internet
users, it is observed that the same is concentrated in industrialized countries and from
OECD countries. The 2001 UNDP Human Development Report observed that, while 54
percent of those living in the United States are Internet users and 28 percent of the
population in high income OECD countries has access, in the rest of the world the numbers
are drastically lower.16” It was likewise observed that even within countries, this digital
divide exists: wherein it is observed that access is clustered in major urban areas and in
industrial regions and centers.17
11
Marcelle, Gillian. Transforming ICT for Gender Equality
Marcelle, Gillian. Transforming ICT p. 12
13
Gurmurthy page 1
14
Gurumurthy page 1
15
Marcelle, Gillian. Transforming ICT p. 13
16
Huyer, Sophia and Swasti Mitter. ICTs, Globalisation and Poverty Reduction: Gender Dimensions of the
Knowledge Society. http://unpan1.un.org/intradoc/groups/public/documents/unpan/unpan037351.pdf accessed
February 2011 p. 10
17
Huyer and Mitter p. 11
12
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This uneven diffusion of ICT in rich vs. poor countries and even urban vs. rural areas, is
likewise noted by the 2005 Report on the “Digital Divide: Internet Diffusion Index18” by the
United Nations Conference on Trade and Development. Said report observed that:
There is an immense information and communication technology (ICT) gap, a
“digital divide”, between developed and developing countries. A person in a
high-income country is over 22 times more likely to be an Internet user than
someone in a low-income country. Secure Internet servers, a rough indicator
of electronic commerce, are over 100 times more common in high-income
than in low-income countries. In high-income countries, mobile phones are
29 times more prevalent and mainline penetration is 21 times that of lowincome countries. Relative to income, the cost of Internet access in a lowincome country is 150 times the cost of a comparable service in a highincome country. There are similar divides within individual countries. ICT is
often non-existent in poor and rural areas of developing countries.
With this, it is evident that ICT is far from being confined and limited technological
implications. Gaps/divides exist as seen in the comparison of ICT diffusion between rich
and poor countries. In this context it observable that “from its conception, to its uneven
proliferation, the dominant driving forces of the ICT system and its global infrastructure
and diffusion are capitalism – profits, monopolistic trends and corporate gatekeeping arena
--- and the patriarchal tendencies which go with these – the discrimination against,
devaluing and exclusion of, and violence against women19”.
Gender Divide: Patriarchy and existing structural inequalities in ICT
In addition to and simultaneously existing with the digital divide in the access and
enjoyment of ICT is the gender divide. Here, in addition to the rich vs. poor
countries/nations in terms of ICT access and diffusion, there also a divide pertaining to
gender. ICT accessibility and diffusion is uneven, not only in terms of individuals,
household, businesses, geographic areas and countries with different socio-economic and
development levels, it is likewise uneven in diffusion and accessibility with respect to
gender.
Studies, such as that of Huyer and Mitter, have explained that the digital or knowledge
divide is even more acute with respect to women. In the finding of the Women's Forum at
the Global Knowledge II Conference (Kuala Lumpur, 2000) GKII, it was found that “the
digital divide is not just an issue of the polarization of information rich vs. information poor
– it is also a divide between women and men everywhere. The young, university educated,
affluent, urban-based and English-speaking Internet user is also overwhelmingly male. The
gender divide has implications for every level of the knowledge society, including access,
training, scientific and technical employment, national capacity building, and women’s
18
United Nations. The Digital Divide Report: ICT Diffusion Index 2005
http://www.unctad.org/templates/webflyer.asp?docid=6994&intItemID=2068&lang=1
19
Gurmurthy page 6
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participation.20” It was further stated that although most governments do not provide a
breakdown by gender in terms of internet use, it is known that women’s access to and use
of ICTs is much lower than men’s around the world and that several recent project reviews
have indicated that women continue to benefit less than men from the implementation of
ICTs21.
Women’s low rates of access to information and communications technologies are caused
by a number of converging factors, ranging from socio-cultural attitudes and
preconceptions about women’s interaction (or lack of) with technology to a lack of
understanding of the resource and situational obstacles experienced by women. The study
of Mitter and Huyer, for instance, has specifically identified the following as barriers to
women’s access to ICT which are largely informed by patriarchy and existing structural
inequality in society: literacy and education, domestic responsibilities, training, language,
time, costs, and the value to women of the information carried by ICT.
Within this context of digital and gender divide within the ICT arena and in the context of
globalized and capitalized economy, women, according to Gurumurthy, face three core
challenges for gender justice which are central to the existing power relations in the
information society: (a) the structural barriers affecting women’s access to new ICTs; (b)
women’s status as workers in the information economy, (c) and new ICTs and sexual
violence22.
The structural barriers to women’s access to ICT may once again be referred to the digital
divide which refers to the “uneven distribution of benefits of ICTs within and between
countries, regions, sectors, and socio-economic groups23”. This digital divide is actually
several gaps in one:
There is a technological divide – great gaps in infrastructure. There is a
content divide. A lot of web-based information is simply not relevant to the
real needs of people. And nearly 70 per cent of the world’s websites are in
English, at times crowding out local voices and views. There is a
genderdivide, with women and girls enjoying less access to information
technology than men and boys24.
The gender divide can be seen in the lower numbers of women users of ICTs compared to
men. It is also seen in the exclusion of women in the world wide web and where in
developed and developing countries, women are the minority users of the internet 25. As
with the caveat provided by Gurmurthy, there is a need to be wary of statistics, particularly
in developing countries where women make up a high percentage of users. This does not
20
Huyer and Mitter p. 15
Huyer and Mitter p. 15
22
Gurumurthy page 28
23
Gurmurthy 28
24
Gurumurthy page 16-17.
25
Gurumurthy page 22
21
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automatically conclude that the digital and/or gender divide does not exist, for there is still
the need to look into the total percentage of internet users with respect to the entire
population. The Philippines, in this case may be made an example. As FMA shows, more
women than men are engaged in Social Networking in the Philippines, however, a look into
the number of internet users in the Philippines would reveal that there are only 29. 7
Million internet users in a population of 99.9M. Here, the uneven diffusion of internet use,
as compared with the entire population could easily be seen. We can compare this too with
South Korea and Japan where internet use is more widely diffused in the entire population.
In South Korea, 39.4M are internet users I na population of 48.6M; Japan on the otherhand
shows that there are 99.1Million internet users in a population of 126.8Million
Aside from the challenges in terms of ICT access and structure, there is likewise the
challenge posed by the status of women as workers in the field of ICT. This has been
expounded by Gurumurhty where she expounded on the complex status of women as
workers in the information economy particularly on how, despite the job opportunities
provided by ICT, old inequalities still persist. First, this is seen in how women have little
ownership and control over the ICT sector. She states that “it is clear that women are
underrepresented on the boards and senior management of IT companies, policy and
regulatory organisations, technical standard-setting organisations, industry and
professional organisations and within government bodies working in this area.”
Although the new economy, which rides on the power of ICT, and which consist of, but are
not limited to, job outsourcing such as medical transcription work, call centers, or software
services, have provided new employment opportunities for women, they are not immune
to age old gender issues and problems. She cites UNIFEM’s study which provide that
“women hold 9 per cent of mid- to upper-level IT related jobs in engineering and make up
28.5 per cent of computer programmers and 26.9 per cent of systems analysts. Only among
data entry workers do they form the majority at 85 per cent.”
Gurmurthy observes that patterns of gender power relations, already existent in society
are being reproduced in the information economy. Men hold the majority of high-skilled,
high value-added jobs, whereas women are concentrated in the low-skilled, lower valueadded jobs26. She adds that “while teleworking has certainly created new employment
opportunities for women, the downside is that women can be excluded from better career
possibilities, and instead of finding a balance, family responsibilities are combined with
paid work, so that women end up acquiring new tasks on top of the old.27”
Last, but certainly not the least among the challenges in achieving gender equality within
the Information technology is the issue of new ICT and sexual violence. Here, Gurumurthy
explored how the new ICT, particularly the internet, has made sexual exploitation of and
violence against women and children seem more normal. She mentioned how pornography
flourished with the internet and how criminal syndicates violate laws prohibiting sexual
exploitation and violence by locating their servers in host countries with less restrictive
26
27
Gurumurthy page 25
Gurumurthy page 25
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laws, to avoid regulation. She adds that with the internet, State interference and regulation
becomes complex and difficult. The new technologies have thus enabled the creation of
online communities free from interference or standards where any and every type of
sexual violence goes and where women-hating is the norm.28
From the discussion on both the digital and the gender divide in ICT, it can be seen that
power relations existent in society, more particularly the different patterns of gender
power relations already existent in society are being reproduced in the information
economy. The digital divide reveals the disparity of socio-economic resources of developed
and developing countries, while the gender divide reveals that despite the ICT being a
relatively new field, and a new platform, old patterns and inequalities still permeate the
same. The same system of patriarchy and structural inequality existent in society which has
excluded women from access to basic services, and various opportunities, are likewise
excluding women from access to ICT structures, ICT related employment and has subjected
women to discrimination and violence being perpetrated through ICT.
ICT: Spaces for Empowerment and Exercise of Fundamental Rights
As discussed in previous sections, the diffusion and enjoyment of ICT and its structures are
far from being equal. There are divides, both digital and gender, brought about by existing
power relations and structures in society: globalisation, capitalism, patriarchy. Despite
these gaps and divides, the empowering nature of ICT must likewise be acknowledged.
Existing, simultaneously with these gaps and divides, and navigating, negotiating within
these limitations and confines, are the spaces for empowerment within ICT for
marginalized groups and sectors. As pointed out by Jac sm Kee of the Association for
Progressive Communications in her introduction for “Erotics,”:
The internet has been a key space to facilitate the exercise of
fundamental rights and freedoms, especially to access critical
information build knowledge, express thoughts and beliefs,
form networks and communities and mobilise for change. For
people who have little access to other kinds of publics due to
multiple forms of discrimination that they face – including
their gender, age, class, or sexuality—the internet can be a
particularly important space to negotiate and claim for the
realization of their rights29.
The other avenues of empowerment provided by ICT for women are the following
(a) e-commerce which grant women direct access to global markets; (b) e-governance
programs which make government services and programmes more accessible to women;
(c) the use of ICT for the dissemination of information and virtual consciousness efforts on
issues affecting women e,g. women’s sexual and reproductive rights, VAW, support services
Gurmurthy citing Berkman Center for Internet and Society, ‘The Internet and the Sex Industry’, see
http://cyber.law.harvard.edu/vaw02/.
29
Jac sm Kee “Erotics: Exploratory Research on Sexuality and the Internet” http://www.apc.org/en/node/11958/
28
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etc; (d) information/experience sharing and dialogues; collaboration and a convergence of
efforts on a global scale to push the agenda of gender equality; the building of supportive
community/network; (e) platform for political and social activism and refor; (f) increased
knowledge and self esteem (in the use of ICT; ((g) platform for agency, self expression and
self-determination with respect to sexuality and exercise of sexual rights. The list is, of
course, far from being exclusive. ICT, the cyber world, the internet, as dynamic as it is, and
as dynamic and adaptive, as well of women internet-users and women activitsts, the list
changes constantly, growing larger and broader in scope.
Lastly, it might as well be of use to include herein, the current statement of the UN Special
Rapportuer on freedom of opinion and expression, Frank La Rue. In his report dated 16
May 2011, he stressed the importance of internet access and its relation to the enjoyment
of other human rights, he pointed out that:
“Given that the internet has become an indispensable tool for
realizing a range of human rights, combating inequality, and
accelerating development, and human progress, ensuring
universal access to the Internet should be a priority for all
states on the promotion and protection of the right to freedom
of opinion and expression30.”
The Special Rapportuer likewise stressed that the internet is one of the most powerful
instruments of the 21st century in increasing transparency in the conduct of those in
power, on access to information, and for facilitating active citizen participation in building
democratic societies. He cited as examples the role of the Internet in the demonstrations in
countries across the Middle East and North African and how it was used in “mobilizing the
population to call for justice, equality, accountability and better respect for human
rights.31”
The report also expressed concern on how internet access is being curtailed in some
countries. This concern stemmed from accounts of internet clamp down in various
countries and of the manner by which legitimate online expressions are being criminalized,
to quote the report:
The Special Rapporteur remains concerned that legitimate
online expression is being criminalized in contravention of
States' international human rights obligations, whether it is
through the application of existing criminal laws to online
expression, or through the creation of new laws specifically
designed to criminalize expression on the Internet.
30
United Nations Special Rapporteur on the Promotion and protection of the right to freedom of opinion and
expression, Frank La Rue. A/HRC/17/27. http://daccess-ddsny.un.org/doc/UNDOC/GEN/G11/132/01/PDF/G1113201.pdf?OpenElement accessed on March 2011
31
A/HRC/ 17/27.
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Such laws are often justified as being necessary to protect
individuals' reputation, national security or to counter
terrorism. However, in practice, they are frequently used to
censor content that the Government and other powerful entities
do not like or agree with.
The foregoing discussion thus expands the discussion of ICT beyond the existence digital
and gender divide and the inequalities arising therefrom, into the discussion as well on
how ICT, particularly, the internet, as pointed out by APC, and as exhaustively discussed by
the Special Rapportuer Frank La Rue, can likewise provide for spaces of empowerment and
exercise of fundamental rights.
In moving forward then, in this research on ICT, Sexuality and VAW, two main areas for
discussion would be the following: (a) the role of ICT in the perpetration and/or
proliferation of VAW; and as well as (b) the role of ICT in empowering women, particularly
in the enjoyment/exercise of self-expression and sexual rights. The areas for discussion are
not at all exclusive and well defined, a recognition of the dynamism of ICT, both as a
medium in the context of globalization, capitalism and patriarchy, and possibly, as a world
of its own.
Women’s Emerging Issues on ICT, VAW and Sexuality
An article by Scott, Semmens and Willoughby32 (“Scott, et al.”) examines the general history
of women’s relationship with ICT, particularly with the Internet. The authors write that the
feminist story of “women and the Internet” splits into at least three, semi-competing,
versions: (1) the webbed utopia, (2) flamed out, and (3) locked into locality. These three
versions of the “women and the Internet” narrative differ sharply in the way they perceive
women’s relationship with the Internet. They range from an optimistic celebration of
women’s subversive activity via the electronic networks to tales of exclusion, harassment
and violence.
The “webbed utopia” version argues that the electronic networks offer women new
possibilities for networking and for participative democracy. At its core is the concept of
seizing control of a new communications technology. Scott, et al. note, however, that this
account can be blind to the significant differentials in access to and control of the electronic
networks. They observe that utopian feminists may be failing to challenge the
contemporary use of cybertechnology by industrial giants, global criminal networks,
military strategists, wealthy financiers and international racists, to evade social regulation,
entrench political control and concentrate economic power.33
32
Scott, Anne,Lesley Semmens and Lynette Willoughby. “Women and the Internet: The Natural History of a
Research Project,” Critical Readings: Media and Gender, edited by Cynthia Carter and Linda Steiner (Open
University Press, 2004)
33
Scott, et al. cited Light 1995; Castells 1996, 1998; Loader 1997; Panos 1995; Fischer-Huebner 1998; Lyon 1998;
Capitanchik and Whine 1999.
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The “flamed out” version revolves around the theme of sexual aggression on the Internet,
whereby new communications technologies are seen to help “immortalize the product of a
distorted view of sexuality within patriarchal societies” and “help predators to find new
victims, creating a reverse civil society, a community of the predatory violent,” where
“rapists or paedophiles can connect with their like-minded friends and… create a virtual
world in which the ‘abnormal’ becomes normal…”34 “Flamed out” highlights the fact that
the use of male violence to victimize women and children, to control women’s behavior, or
to exclude women from public spaces entirely, can be extended into the new public spaces
of the Internet. Scott, et al., however, note that this story is rather one-sided and can be
counter-productive for feminists. The frequent portrayal of women as helpless victims of
violence is misleading (most Net users do have some means to control or avoid
intimidation and violence35) and can be politically paralyzing.
The third version, “locked into locality”, posits that while electronic networks have been
described as a new “public space” or “public sphere”, women are underrepresented in
these spaces. In this version, women are often identified with local identities and the
particularity of place. As these geographies of place and locality are subverted by new
geographies of information flow, women face a double challenge: they must defend their
local spaces against the threat posed by a disembodied globalization, and they must also
create spaces within the new electronic media for their own voices.36 “Locked into locality”
suggests that the obstacles that women must overcome to gain full access to electronic
networks are still substantial. Scott, et al. consider this account highly sensitive to the
material constraints of time, space, money, educational background, cultural expectations
and employment opportunities, which act to limit women’s opportunities and aspirations
in relation to the ICTs. They used this version of “women and the Internet” in their own
study, as its steady focus on material factors places in perspective both the dangers and the
opportunities posed by the Internet.
Scott, et al. conclude by saying that it may be necessary to begin formulating a more
reflexive and variegated origin story in relation to women and ICT. This new tale should
address two key questions: (1) How are the new social geographies of ICT access being
gendered? and (2) How can women intervene to direct the shaping of new techno-social
relations in more democratic, inclusive and neutrally gendered ways? Further, a women
and technology story that is adequate to its task should analyze the changing shape of the
material geographies of time, space, and economic resources in the information age.
Situating ICT, VAW and Sexuality
The definition of what constitutes violence against women, inclusive of sexual violence, is
fairly established. The Convention on the Elimination of All Forms of Discrimination,
prohibits all forms of discrimination against women. General Recommendation 19 provides
34
Scott, et al. cited Inayatullah and Milojevic 1999.
Scott, et al. cited Hamilton 1999 and Newey 1999.
36
Scott, et al. cited Castells 1997, Enloe 1989, and Escobar 1999.
35
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that the definition of discrimination includes gender based violence, that is, violence that is
directed against a woman because she is a woman or that affects women
disproportionately. It includes acts that inflict physical, mental or sexual harm or suffering,
threats of such acts, coercion and other deprivations of liberty.
The Declaration on the Elimination of Violence Against Women (DICT-RELATED VAW),
provides a more comprehensive definition of VAW in terms of definition, scope, obligations
of the State, and the role of the United Nations. It defines VAW to mean “any act of genderbased violence that results in, or is likely to result in, physical, sexual or psychological harm
or suffering to women, including threats of such acts, coercion or arbitrary deprivation of
liberty, whether occurring in public or private life.” DICT-RELATED VAW further outlines
the scope of private and public to include violence in the family, violence in the community,
and violence perpetrated or condoned by the State, wherever it occurs.
In the reports of the Special Rapporteurs37, the different forms of violence have been
elaborated as follows:
Violence in the family—such as domestic violence; battering; marital rape;
incest; forced prostitution by the family; violence against domestic workers
and the girl-child (non-spousal violence, violence related to exploitation);
sex-selective abortion and infanticide; traditional practices such as female
genital mutilation; dowry-related violence; and religious/customary laws
Violence in the community—such as rape/sexual assault; sexual harassment;
violence within institutions; trafficking and forced prostitution; violence
against women migrant workers; and pornography
Violence perpetrated or condoned by the State—such as gender-based
violence during armed conflict; custodial violence; violence against refugees
and internally displaced persons (IDPs); and violence against women from
indigenous and minority groups.38”
In addition to that listed above, Yakin Ertuk, Special Rapporter until 2009, suggested the
inclusion of violence against women in the “transnational arena” – a recognition of
globalization and the increase of transnational process within which women encounter
new and emerging forms of vulnerabilities.
37
The critical review of the UN Special Raporteur on VAW entitled “15 years of the UN Special Rapporteur on VAW,
its cause and consequences”, provides for further substantiation of the term violence against women, as well as
the emerging issues and concerns on VAW were discussed. Spanning the years from 1994, the establishment of the
Special Rapporteur on VAW to 2009, the critical review covers the term of two special Rapporteurs and their
communications and country reports. The review thus summarizes the manner by which VAW has been
substantiated and further framed, taking off from CEDAW, General Recommendation 19 and DICT-RELATED VAW.
It likewise provides for the conceptual shifts in the VAW mandate of the Special Rapporteur since its inception.
38
The UN SRVAW Page 4-5
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Margaret Gallager’s article “Beijing’s Legacy for Gender and Media” (2003) challenges the
assumption that media and other information systems exist beyond the realm and beyond
the influence of gender relations. It thus support what has been maintained by feminist
scholarships, that is, the deeply embedded nature of gender-based judgements and
assumptions which permeate, not just the media , whether in their old or new forms, but all
economic, social and political institutions39. This echoes the view of Marcelle (2000) when
she stressed that technology and society are inextricably bound and that “power,
contestation, inequality and hierarchy inscribe new technologies and that although ICTs
can indeed be constitutive of new dynamics, they can also be derivative of older
conditions.”
Seen in this manner, the structural inequality and the deeply embedded gender inequality
prevalent in society and socio-cultural practices necessarily permeate and inform the field
of ICT. The root causes of VAW, as identified by the UN SRVAW report, and as also stated
in “Violence Against Women: harmful traditional and cultural practices in the Asia Pacific”.
In “Violence Against Women: harmful traditional and cultural practices in the Asia Pacific”
the chief causes of violence against women were identified as historically unequal power
relations between women and men in public and private life, patriarchy and men’s control
over women. The study, like that of the UN SRVAW, also recognizes that violence occurs
within the family, the community and in armed conflict, and may also be perpetuated or
condoned by the State. Stress was likewise made on the continuum of violence which
women may experience throughout their lifetimes, in the form of physical, sexual, and
psychological violence40. Unlike the UN SRVAW review, the study in its identification of
emerging forms of VAW, made mention of violence perpetrated through computers and
cell phones.
That violence against women is being perpetrated and committed through the ICT arena,
particularly the internet has already been the subject of several studies and articles.
Although a definition of such violence has yet to be developed, several studies have made a
listing of what has been considered as violence against women committed through ICTs, or,
what has been referred to by the Foundation for Media Alternatives as ICT-related VAW.
One of these articles is that by Gumurthy (2004) which, in the discussion of ICT and
Gender, made mention of how violence against women are being perpetrated through the
new ICTs, particularly the internet. She stated that “over the past ten years, the internet has
emerged as the premier forum of the international sex trade and has facilitated,
accelerated, and normalised the sexual exploitation of women and girls. New ICTs have
combined with racism, sexism and capitalism to escalate sexual exploitation worldwide 41.”
To further quote on the discussion on VAW:
39
Margaret Gallager, Beijing’s Legacy for gender and Media, page 2
“Violence Against Women: harmful traditional and cultural practices in the Asia Pacific”. ESCAP. (2007) page 1112
41
http://cyber.law.harvard.edu/vaw02/module2.html cited in Guumurthy page 27
40
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The global entertainment industry, poised on the power of new ICTs, is a
force beyond the grasp of law and regulation. The sex industry markets
precisely the violence and oppression that feminists seek to eliminate from
the streets, workplaces, and bedrooms (Jeffreys 1997). Pornography has
assumed mammoth proportions with the Internet (see Box 8). The Internet
has made sexual exploitation of and violence against women and children
seem more normal, and this is a matter of deep concern. Criminal syndicates
violate laws prohibiting sexual exploitation and violence by locating their
servers in host countries with less restrictive laws, to avoid regulation. The
new technologies have thus enabled the creation of online communities free
from interference or standards where any and every type of sexual violence
goes and where women-hating is the norm.42
The above views were likewise echoed by other articles. Kathambi Kinoti (2007), for one,
wrote “ITCs and VAW43”, where she stated that ICTs are used in various ways to perpetrate
violence against women. She explained that ICTs play an important role in the
commoditisation and objectification of women’s bodies and sexualities. She mentions the
difficulty of prosecuting ‘virtual trafficking’ and the problem posed by anonymity in the
internet in pursuing redress in cases of VAW committed through or facilitated by the
internet.
Jenn Jones’ “Internet Sexual Harassment” on the other hand stressed that although the
internet provides for a space for women’s empowerment, computer technology remains to
be a subject that not many women study. She states that on the whole, the internet is a
man’s domain. She adds that “essentially, the internet is a microcosm of society, where
oppression of women is replicated and perpetuated.” Internet pornography, she claims, has
to be most obvious expression of this, together with the gender harassment, both passive
and active, which are being perpetrated through the internet.
Emerging Forms of VAW: ICT-related VAW
Violence against women, instead of being viewed as social aberrations or law and order
problems, are seen as outcomes of unequal power relations existent in society and are
outcomes of gender discrimination that shape social economic, cultural and political
structures. In the reports of the Special Rapporteurs, the areas where violence occurs were
identified as within the family, the community, and those perpetrated or condoned by the
State. Special Rapporteur Yakin Ertuk recommended the ‘transnational arena”, which due
to globalization, has shown to be an area where women face new vulnerabilities. Not
mentioned however, in the UN SRVAW review are the vulnerabilities to VAW which women
face in the arena of ICT.
42
Berkman Center for Internet and Society, ‘The Internet and the Sex Industry’, see
http://cyber.law.harvard.edu/vaw02/.
43
ICTs and Violence Against Women, (2007). Kathambi Kinoti.
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During the review of related literature of this research, several forms of ICT-related VAW
have been identified. The forms are grouped together as supported by the literatures
identifying and associating the said forms as such. For instance, an article defines
monitoring and surveillance as a form of harassment. The research therefore considered it
as one. The major forms identified in the research are: (1) cyberharassment, (2)
cyberpornography and (3)cybertrafficking.
a. Cyberharassment
Cyberharassment serves as broad definition for acts which primary purpose is to use
cyberspace to harass a target. It covers cyberstalking, blackmail or threats, trolling
and flaming; and monitoring and surveillance. It is also interchangeably referred to as
“harassment by computer” by other articles.
1. Cyberstalking
Cyberstalking has secured a legal definition in Canada and is considered as a
criminal offense. Cyberstalking refers to the use of cyberspace to control or
terrorize a target to the point that he or she fears harm or death, either to oneself
or to others close to her or him. In Canada and elsewhere, cyberharassers can
expect to deal with legal civil suits, whereas cyberstalkers can expect to deal with
legal criminal suits.44
Cyberstalking may include false accusations, monitoring, making threats, identity
theft, damage to data or equipment, the solicitation of minors for sex, or gathering
information in order to harass. The definition of "harassment" must meet the
criterion that a reasonable person, in possession of the same information, would
regard it as sufficient to cause another reasonable person distress.45
2. Harassment by computer
Harassment by computer is a crime in several U.S. states (see computer crime). It
is distinct from stalking in that stalking typically requires two or more contacts,
whereas harassment by computer may be a single incident. It is also different from
regular harassment, because the offense typically encompasses a range of crimes
that would not be considered harassment if conducted in person.
….
Harassment by computer statutes are typically distinct from
cyberbullying laws, in that the former usually relate to a person's "use a
computer or computer network to communicate obscene, vulgar,
profane, lewd, lascivious, or indecent language, or make any suggestion
or proposal of an obscene nature, or threaten any illegal or immoral
44 http://computer.yourdictionary.com/cyberharassment
45
http://en.wikipedia.org/wiki/Cyberstalking citing Bocij, Paul, Cyberstalking: Harassment in the Internet Age and
How to Protect Your Family (Praeger, 2004)
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act," while the latter need not involve anything of a sexual nature.46
3. Cyber gender harassment
Taking a gendered perspective, cyber gender harassment is defined by Citron (2009) as
the online harassment of women, which includes rape threats, doctored photographs
portraying women being strangled, postings of women’s home addresses alongside
suggestions that they are interested in anonymous sex, and technological attacks that
shut down blogs and websites.
Citron observes that cyber gender harassment exemplifies behavior that profoundly
harms women yet too often remains overlooked and even trivialized. The harms
it causes impede women’s full participation in online life, often driving them
offline, and undermine their autonomy, identity, dignity, and well-being
(emphasis supplied).
4. Electronic mail
The use of electronic mail (email) as a tool for online harassment is also another form of
cyberharassment. Forty eight point two percent of cases investigated by the Computer
Investigation & Technology Unit (CITU) of the New York City Police Department (NYPD)
between January 1996 and August 2000 involved “aggravated harassment by means of
a computer or the Internet”. Email was used to harass the victims in approximately
79% of those cases.47 A typical example of harassment by email involves the
communication or sending out of inconspicuous emails containing sexually graphic
messages and/or illustrations to unsuspecting victims.
Perpetrators of this type of e-VAW can also use emails to forward unwanted proposals
for sexual conversation, much in the same way obscene phone calls or proposals for
phone sex have been conducted in the past. Refusal by the recipient to take part could
sometimes give rise to abusive language, or more of sexually harassing memos or socalled mail bombs.48
5. Trolling and flaming
Another prevalent form of Internet harassment comes in the guise of “trolling” and
“flaming” activities. By and large, these practices have the perpetrators - referred to as
“trolls” and “flamers”, respectively - registering with certain websites purely to harass
46
http://en.wikipedia.org/wiki/Cyber_harassmentt
Bortel, Angela, Esq. Technology and Violence Against Women.
http://stopvaw.org/Expert_s_Corner.html#Technology+and+Violence+against+Women
48
Aleyamma Vijayan. Workshop on Misuse of Communication Technology and New Forms of Violence Against
Women: A Gendered Understanding. 27 and 28 March 2009. Hotel Geeth.
47
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other users.49 One TIME Magazine article defines a troll as “a person who posts
incendiary comments with the express purpose of provoking an argument”.50
Trolling itself is referred to by PCMAG.COM as the “posting of derogatory messages
about sensitive subjects on newsgroups and chat rooms to bait users into
responding”.51 It is sometimes considered as a variation of stalking.52 Flaming, on the
other hand, is defined by one online source as “the often deliberate act of posting or
writing messages (flames) on Internet bulletin boards and message groups that have
the intent of insulting or creating dissent within a group”.53 Flames are often composed
of coarse language and personal insults. They are meant to hurt people’s feelings, get
them fired up, and not to further intelligent and sound conversation. At least one article
considers the recognition these types of violence receive as contributing to the creation
of a mindset of acceptability as regards harassment being a natural part of the World
Wide Web.54
6. Production and Dissemination of Morphed images
The production and intentional dissemination of morphed images comes as another
unique manifestation of cyberharassment. The backbone of this online harassment lies
in the images that have specifically been subjected to the process referred to as
“morphing”. Morphing refers to a “special-effects process used in film or video
production in which persons or objects seem to change shape, form, etc. in a smoothly
continuous series of images created in a digital computer”.55 As a form of abuse,
however, it is often used to refer to the process of producing an obscene or lewd image
of the intended victim usually done by attaching her face to an existing pornographic
photo. The resulting image is then uploaded on the Internet or passed around through
mobile phones.56
In one report from India, the Delhi police noted that of all cybercrime cases reported,
almost half were filed by women who discovered their faces morphed onto
pornographic images, posted online, and usually accompanied by a personal phone
number and an invitation for strangers to call.57 According to one study, this practice
has several implications for the participation of women in cyberspace, since the
49
Jones, Jen. Internet Sexual Harassment. http://musemagazine.org.nz/61/
Making Mischief on the Web. Ana Marie Cox. 16 December 2006.
http://www.time.com/time/magazine/article/0,9171,1570701,00.html
51
http://www.pcmag.com/encyclopedia_term/0,2542,t=trolling&i=53181,00.asp#
52
http://www.bullyonline.org/related/stalking.htm
53
http://www.wisegeek.com/what-is-flaming.htm
54
Jones, Jen. (supra)
55
http://www.yourdictionary.com/morphing
56
Ebrahim, Zofee. For Women Cyber Crimes Are All Too Real. http://ipsnews.net/news.asp?idnews=53669
57
Association for Progressive Communications. How Technology is Being Used to Perpetrate Violence Against
Women – And to Fight It. http://tinyurl.com/3faud2y
50
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violence committed is just contained within digital spaces, but actually extends to “a
loss of the freedoms that the Internet offers to women” (emphasis supplied).58
7. Blackmail
ICT-related blackmail now also plagues the virtual world. Today, it primarily consists of
the capturing of intimate photos or videos by abusers (with or without the consent of
the victim), followed usually by extortion against the victim and her family, under the
constant threat of public exposure. According to Jovita Montes, director of Health and
Services Department of GABRIELA, a Philippines-based organization advocating for
women’s rights, video recording by men of their sexual exploits is one emerging form of
VAW. Real-life cases attest to such types of videos being used against women trying to
break up with their partners, and/or utilized as means to extort money from the
woman and her family.59 In Malaysia, one report cites an increase in calls made by
women trapped in violent relationships because of intimate video clips or images in the
possession of their partners.60
8. Publication of personal information
The publication of an individual’s personal information in various online fora is also
widely recognized as one form of online harassment, which can sometimes to lead to
tragic outcomes on the part of the victims. In one case, a woman recounted how her
personal details were provided to open dating sites and bulletin boards found in
obscene websites. This led to her being paged or phoned by complete strangers for
several months. Other victims are not as “lucky” as when the assailant resorts to posting
messages making it appear as though the sender (the woman victim) is in need of, and
prepared to pay for, sexual service.61 False postings of this nature have sometimes led
to violent attacks. One US woman was raped by a stranger answering an ad saying she
was looking for a man to fulfill her violent rape fantasy. It was later discovered that the
fake ad was put up by her ex-boyfriend.62 Another case featuring a spurned boyfriend,
this time in the Philippines, had the man going to the extent of posting nude photos and
videos of his ex-girlfriend in one popular social networking site through an account he
created under her name. Not contented with this, the man also mailed a copy of the
video to the girl’s Muslim parents.63
9. Monitoring and surveillance
58
Anita Gurumurthy, Niveditha Menon. Violence Against Women Via Cyberspace. Economic & Political Weekly
(EPW). 3 October 2009. Vol. XLIV No. 40.
59
Ellao, Janess Ann J. Violence Against Women on the Rise, Use of Technology to Abuse Women Alarming –
Gabriela. 25 April 2009. http://www.bulatlat.com
60
Association for Progressive Communications (supra)
61
Aleyamma Vijayan (supra)
62
Association for Progressive Communications (supra)
63
Santos, Kara. Women Fight Assault Over Internet. http://ipsnews.net/news.asp?idnews=54030
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Of all the emergent forms of ICT-based VAW, perhaps the most common and easiest to
perpetrate has been the constant monitoring by abusers of both the physical and virtual
activities of their victims through the use of newly-developed technologies that are now
readily available to the public at large such as the computer, the mobile phone and the
Internet. Aside from encroaching on the private lives of their victims, perpetrators of
this type of violence are able to keep track of their victims and thwart – or at the very
least, impede – any attempt by their victims to escape further abuse.
i.
Monitoring by computer
In this age of computers, abusers can easily purchase and install commercially
available spy software to record and gain access to all keystrokes made on the
computer used by their victims. This enables them to supervise – and even control their victim’s email correspondence, web surfing and other modes of Internet
communication. In Michigan, USA, a man was charged with felony counts for using a
computer to spy and intrude on his estranged wife’s privacy. He was found to have
installed a spy program on her computer without her knowledge, which sent him
regular emails regarding her computer activity, including all emails sent and
received; all instant messages sent and received; and all Internet sites visited.64
Even without so-called spy software, however, existing programs found in
practically every computer today already provide abusers with ample opportunity
to intrude into their victims’ private computer activities. For instance, Internet
browsers by default often create a record of recent sites visited by the user on the
Internet. The same is true in the case of instant messaging facilities which can also
keep a log and sometimes even a copy of their users’ conversations.65 Finally, web
cams and other hidden surveillance cameras can be used, in conjunction with
computers and the Internet, to monitor other people’s activities. These small devices
are relatively cheap and can be installed almost anywhere. Their digital output can
be transmitted through the Internet and enable abusers to keep track of their
victims’ activities even while away.66
ii.
Monitoring and surveillance by mobile phones
In the case of mobile phones, there are also quite a number of ways through which
abusers can tap their capabilities in order to perpetuate VAW, specifically in the
area of monitoring or surveillance, although the extent and nature of such activity
may vary from case to case. The simplest case would involve an abuser barraging his
victim with calls, text messages and voicemails in order to keep track of the latter’s
whereabouts. On top of this, he may also use the data generated by the phone to
track his victim’s call or text messaging (SMS) history. One abuser in Rhode Island,
USA assaulted his wife after finding a shelter telephone number in her phone’s call
64
Bortel, Angela, Esq. (supra.). See also: Aleyamma Vijayan (supra).
Aleyamma Vijayan (supra)
66
Aleyamma Vijayan (supra)
65
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history. As a result, she did not attempt to leave her husband for another year. 67 In
Uganda, some time in December 2008, there were two reports of men murdering
their wives after they accused the latter of receiving “love SMSs”.68 A more
complicated form of monitoring requires the use of Global Positioning System (GPS)
technology which is now commercially available for public use. GPS can be installed
in a mobile phone and can log the location of the user/owner at all times.69 Domestic
violence perpetrators can then use this tool to track and control their partners’
movements by following their telephone communications.70
b. Cyberpornography
Cyberpornography is the act of using cyberspace to create, display, distribute, import,
or publish pornography or obscene materials, especially materials depicting children
engaged in sexual acts with adults. In some states, cyberpornography is a criminal
offense, classified as causing harm to persons.71
1. Internet pornography
Internet pornography according to Roman (1997) is the obscene or indecent material
made, transmitted, or displayed by means of telecommunications device or interactive
computer service. Internet pornography is defined and penalized under a US federal
statute which primarily intends to shield minors from pornography in the Internet.
2. Cyber-obscenity
Citing Wall’s (2002, 2005) behavioural typology of cybercrime, which posits that
cybercrime is a broad term encompassing crimes that span from economic crime to
interpersonal violence, Williams (2009)72 identified “content-related offenses” which
bifurcates into two forms of content offenses: cyber-obscenity and cyber-violence.
Cyber-obscenity involves the trade of sexually expressive materials online.
Cyberviolence or harm involves the violent impact of actions within cyberspace
including cyberstalking, hate speech, and virtual rape (citing Dibbell 1994). Williams
mentions that Wall (2002) notes, “although such activities do not require a direct
physical expression, the victim nevertheless will feel the violence of the act and
may bear long-term psychological scars as a consequence” There is also
recognition that often “the virtual leaches through the porous boundaries of
67
Bortel, Angela, Esq (supra)
Association for Progressive Communications (supra)
69
Aleyamma Vijayan (supra)
70
Kinoti, Kathambi. ICT and Violence against Women. 10 January 2007.
http://www.wittproject.net/spip.php?article413. See also: Bortel, Angela, Esq. (supra)
71 http://computer.yourdictionary.com/cyberpornography
72 Williams, Rachel. Gender, Bodies and Cyberstalking: Embodying Theory, Developing Methodology (2009). Thesis
submitted to the School of Social and Cultural Studies, Victoria University of Wellington in fulfillment of the
requirements for the degree of Master of Arts in Criminology.
68
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cyberspace” (citing Wykes 2007) and cybercrime often has serious offline parallels
(emphasis supplied).
3. Cyberprostitution
Soto (2010) writes that cyber prostitution is a new phenomenon where criminal groups
are quick to exploit the open nature of ICTs. In the context of the Philippines, while
prostitution of any kind is illegal, it continues to be a lucrative industry and is thriving
in the Internet. From “cybersex” via the Internet to small-time individual “negotiated
sex”, ICT is being used to sell and buy sex. Women may be lured to try cyber
prostitution especially if it’s perceived to be “less dangerous” compared to physical and
real time prostitution. 73
There are at least 1,329 Filipinos daily going into cybersex spaces at Yahoo! and
approximately 200,000 Filipinos are members of cybersex groups in Yahoo!. This was
cited by Annie Ruth Sabangan, a senior reporter for Manila Times in her report
published in August 2007. According to Sabangan, “there is a thin line separating
pornography and prostitution…. in many Pinoy groups at Yahoo!, pornography and
prostitution are intertwined -- pornography is the appetizer and prostitution is the
main course... to get to pornography groups and prostitution sites is very easy,
everything is linked together to deliver one virtual flesh factory”.
4. Sex video scandals
Soto observes that in recent years or earlier, when mobile phones with cameras
penetrated the Philippine market, the country became flooded with “sex-video
scandals” taken using mobile phones. These so-called sex-video scandals involve young
university and professional women, even celebrities and politicians. The sex videos are
often uploaded to the Internet, including in the popular video website YouTube where
they become quickly accessible to the public. Soto cites as an example the controversial
sex video of Dr. Hayden Kho and actress Katrina Halili, which brought about a Senate
hearing in aid of legislation aired publicly in May 2009.
c. Cybertrafficking
Chawki and Wahab (2004) begins to study the use of ICTs in trafficking in human beings by
discussing the very concept of trafficking in human beings, thus:
In general terms, “trafficking” implies an illicit trade in goods, such as drugs,
arms or stolen goods such as works of art. Besides illegality, trade, profit and
crime, coercion, deception, violence and exploitation are all associated with the
concept of trafficking in humans. The main victims of trafficking are women and
73
The writer of this review excluded Soto’s discussion of deprivation of sexual and reproductive health rights for
women and girls as ICT-related VAW, because the ICT connection involved in this matter is in terms of using ICT to
promote these rights.
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children. Therefore, the phrase “especially women and children” is frequently
added, in order to underline the links between trafficking and sexual
exploitation, pornography and paedophilia. “Trafficking in persons” was at first
defined with reference to prostitution. The international conventions of the first
part of the twentieth century already provided specific definitions of “white
slave traffic” “traffic in women and children”, “slavery” and “forced labour”.
… Amongst the most influential definitions, is the one offered by the United
Nations protocol to prevent, suppress, and punish trafficking in persons
especially women and children supplementing the United Nations convention
against transnational organised crime takes the term trafficking in human beings
to 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”.74
Chawki and Wahab then briefly describes or profiles the persons involved in trafficking: (1)
the traffickers; (2) the victims (saying that the victims include men, women and children,
although most agree that women and children are more often victims of trafficking); and
(3) the users in ICT-supported trafficking, which includes collectors of pornographic
materials, stalkers, and buyers (of women and children for the purpose of sexual
exploitation).
The authors then proceed to outlining the kinds of technology that can be used for the
purpose of sexual exploitation - either by individuals for their own private use or by
persons or groups using the Internet as a commercial tool, to promote and sell images or
services. The main techniques that are identified involve: (a) Mainstream Communications;
(b) Scanners and Video Digitizers; (c) Digital Video Disk (DVD); and (d) Internet
Applications and Services, which include web sites, peer-to-peer networks, file swapping
programs, file transfer protocol, search engines, chat rooms, and pornographic spam.
In examining not only the number of human beings trafficked with the use of ICT each year,
but also their characteristics, what makes them vulnerable to being manipulated, where
they are coming from, and what conditions they suffer once in this situation, Chawki and
Wahab (2004) observes that the main reasons for trafficking in human beings are
economic. Most of the victims of trafficking are poor and not well educated. Women are
mainly trafficked from South to North, from South to South and from East to West. The
74 Article 3, U.N. Protocol Against Trafficking in Persons Especially Women and Children
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flows are from poorer countries to countries where the standard of living for an average
person is relatively higher. The authors then conclude that the fact that lesser developed
countries, populations are used for trafficking supports the recognition of a right to
development as a human right.
Sex trafficking
Sex trafficking has also sunk to new lows with traffickers using technology to sustain and
even improve their illegal trade. Fake online “marriage agencies” and websites advertising
nonexistent work or study opportunities abound and continue to deceive trusting and
poverty-stricken women. In Mexico alone, one police report indicated that hundreds of
children were recruited over the Internet by child-traffickers in 2009. The
commercialization of private home videos obtained and sold by image traffickers without
the knowledge of the people filmed has also paved new avenues for sex traffickers to
conduct business.75 Unfortunately, in most cases, national and international anti-trafficking
laws do not usually adequately address the issue of ’virtual’ trafficking of women’s images
but typically confine their coverage to the trafficking of women’s physical person.76
The 2011 Trafficking in Persons Report77 released by the Department of State of the United
States of America indirectly recognized the involvement of ICT in trafficking in a couple of
cases that it cited. One is when the Dutch national police, in November 2010, seized the
websites of two escort businesses due to possible involvement in trafficking, and sent this
text message to approximately 1,300 mobile phone users who had contacted the websites.
The other is the case of a 16-year-old woman in Dallas who was pimped by her boyfriend
who was an older man. Among the things the man did was to post prostitution
advertisements with her picture on an Internet site. He then rented hotel rooms around
Dallas and forced her to have sex with men who responded to the ads. The man later pled
guilty to trafficking.
The Phenomenon of ICT-related VAW
What makes an offense ICT-related VAW is when ICT is used as the medium, mode, place of
commission (commonly tagged as “cyberspace”) and a system or a world unto itself in the
perpetration of VAW or simultaneously or separately, expression of sexuality. Below is the
study’s working illustration of the continuum of VAW in the phenomenon of ICT-related
VAW:
75
Association for Progressive Communications (supra)
Kinoti, Kathambi. ICT and Violence against Women. 10 January 2007.
http://www.wittproject.net/spip.php?article413
77
http://www.state.gov/documents/organization/164452.pdf accessed 28 June 2011. See pages 13 and 35.
76
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No Cause or Effect
Intractable, Borderless
Different Forms of VAW:
Privacy
CONTINUUM
Self-Expression
Agency
INDIVIDUAL
Relationships/ Interactions
SYNDICATED
Cyberharassment
 cyberstalking
 blackmail, threats
 trolling, flaming
 monitoring and
surveillance
Cyberpornography/
Cyberprostitution
 cybersex dens
 sex video scandals
Cybertrafficking
Multiple Personhood/ Identities
Figure 1. The Phenomenon of ICT-related VAW
a. ICT related VAW: same root, different mode/medium of commission
Cyber-harassment, cyber stalking, trafficking, cyber pornography, video scandals,
electronic blackmail, trolling and flaming are few of the forms which this research
considers as ICT-related VAW. What then is ICT-related VAW? Is this a new form of VAW? A
derivative thereof?
We hold that ICT- related is no different from VAW in terms of origin and root cause: the
historically unequal power relations between women and men in public and private life,
patriarchy and men’s desire to control women’s sexuality. Like how VAW is defined under
ICT-RELATED VAW and as further explained in the reports of the Special Rapportuer, these
are forms of gender based violence rooted on the structural inequity between men and
women and in the system of patriarchy prevalent in society. As further explained by the
Special Rapporteur on VAW “violence is not an isolated incident targeting vulnerable
women but a systemically used tool of patriarchal control to ensure that ‘women stay in
their place’.
What however, makes ICT-related VAW distinct is the medium and the mode by which the
violence is committed: through virtual and digital spaces, through cyberspace, through ICT.
It is this particular characteristic of ICT-related VAW that sets it apart from common VAW.
Though ICT-related VAW springs from the same structural inequality and system of
patriarchy in society, though it is the same in essence with offline VAW, still, the manner of
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its commission – through virtual and digital spaces --- has made ICT-related VAW a distinct
phenomenon.
b. Difficulties in the ICT-related VAW: Borderlessness, Intractability, fluidity of
digital personhood
The borderlessness brought upon by ICT, the nature of virtual and digital spaces, and the
anonymity offered by digital personhood, has totally changed not only the manner by
which VAW is being committed and perpetrated, but also of its effects and consequences
and of its consequent prosecution or non-prosecution.
In the ICT arena, the rules on the territorial jurisdictions of states are difficult to delineate.
In VAW being perpetrated on line, the abuser/s may be in one country’s jurisdiction, while
the abused woman or women may be in another country’s jurisdiction. This has given rise
to trans- border crimes, which are often syndicated and profit oriented, of pornography,
white slavery, child abuse, trafficking and sexual exploitation. This likewise affects issues
of territoriality and jurisdiction in the prosecution of the offenses –-- in online offenses,
where exactly is the offense committed? Who has jurisdiction over the same? These are
valid questions and these are questions that has made the prosecution of on- line offenses,
not necessarily limited to VAW, difficult to pursue. Here, it is pertinent to cite Gurmurthy’s
(2004) study where she observed that “over the past ten years, the internet has emerged as
the premier forum of the international sex trade and has facilitated, accelerated, and
normalised the sexual exploitation of women and girls. New ICTs have combined with
racism, sexism and capitalism to escalate sexual exploitation worldwide78.” To further
quote Gurmurthy:
The global entertainment industry, poised on the power of new ICTs, is a
force beyond the grasp of law and regulation. The sex industry markets
precisely the violence and oppression that feminists seek to eliminate from
the streets, workplaces, and bedrooms (Jeffreys 1997). Pornography has
assumed mammoth proportions with the Internet. The Internet has made
sexual exploitation of and violence against women and children seem more
normal, and this is a matter of deep concern. Criminal syndicates violate laws
prohibiting sexual exploitation and violence by locating their servers in host
countries with less restrictive laws, to avoid regulation. The new
technologies have thus enabled the creation of online communities free from
interference or standards where any and every type of sexual violence goes
and where women-hating is the norm.79
The manner too, that ICT transcends both time and space, has accelerated the effects of
ICT-related VAW and has made the same more vicious. As ICT allows the fast dissemination
of information and content, and since it provides for multiple platforms for posting and
78
http://cyber.law.harvard.edu/vaw02/module2.html cited in Guumurthy page 27
Berkman Center for Internet and Society, ‘The Internet and the Sex Industry’, see
http://cyber.law.harvard.edu/vaw02/.
79
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reposting, and involve vast number of networked computers, it becomes very difficult for
states, and even ICT companies to contain and regulate. A simple example on this would be
the manner by which an uploaded YouTube video circulates in the worldwide web or when
a nude picture of a woman gets to be uploaded in a social network account created by a
disgruntled boyfriend or even a stranger. Since the companies which run and control sites
such as Facebook and You Tube are located outside of the country, it gets difficult, even if
possible, to request that content be removed from these sites. In this sense, the violence,
perpetrated online, remains visible for others to see, a constant reminder of the violence
committed against her and exacerbating the effects of the abuse. In certain cases, one may
not even know that one’s picture/image is already morphed or used to create fictitious
accounts --- this, once again has been made possible by the nature of ICT and of digital and
virtual spaces --- it’s broadness, and the immensity of its content.
The anonymity offered by digital and virtual spaces has made ICT-related VAW intractable,
it has effectively exacerbated the effects of VAW and increased the difficulty of prosecuting
the same. Identity has become very difficult to establish in online spaces. Digital
personhood, the identity taken on by a person as he/she goes on line, which may include
his/her age or his/her gender, may be totally different from his/her real identity. This
anonymity afforded by the virtual, digital spaces and by the internet environment plays a
key factor in making ICT-related VAW distinct from offline VAW. Where in offline VAW, the
perpetrator, through his physical presence/appearance is readily seen, in the virtual and
digital spaces, this is not so. There exists an intractability of identity in digital spaces, such
that a woman, may become a victim of cyber pornography, cyberstalking or of blackmail
without necessarily seeing or knowing who the perpetrator is. This makes the prosecution
of ICT-related VAW more difficult.
As described by Boler80 there is a fluidity of online identity(ies), where online spaces
including both text-based and visual spaces, allows users to construct ‘virtual ‘fictional’
identities that allow them to move beyond the usual social markers of ethnicity, class,
gender, age and ability” One manifestation of fluidity is gender-switching whereby users
can select avatars, personas or user names of the opposite sex or choose to be gender
neutral.
In a study of cybercrimes, the above questions on the effects of digital/virtual spaces and of
the internet in the commission of cyber-obscenity, cyber violence and cyber stalking were
thoroughly discussed. Said study expressed:
Cyber crimes are distinctive in several ways. Firstly, they have no definable
boundaries and are unrestrained by concepts of time, space and location. As
Yar (2006:11) argues, “cyberspace variously ‘transcends’, ‘explodes’,
‘compresses’, or ‘collapses’ the constraints of space and time that limit
interactions in the ‘real world’”. This also means they are inter-jurisdictional,
which has consequences for prosecution. They also lack a “core set of values”
80
Cited in Williams, Rachel. Gender, Bodies and Cyber Stalking: Embodying Theory, Developing Methodology. p 94
http://researcharchive.vuw.ac.nz/bitstream/handle/10063/1171/thesis.pdf
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(Wall, 1999:109) and there does not exist a consensus, legal or otherwise, as
to what constitutes a cyber crime.
Though the above mentioned study acknowledges that cybercrimes, by virtue of the mode
or medium of their commission are distinct, still it propounded that cyberstalking is a
gendered offense. The study thus rejects the notion of disembodiment (or the absence or
irrelevance of the body) when engaging with on line spaces, and maintains that the
cyberstalking experienced by women online are directed against them, precisely because
they are targeted as women. Said study speaks of the continuum of online victimisation of
women and in addition to cyber stalking, it thus includes cyber obscenity, cyber violence,
and flaming, sexual harassment and hate speech. In explaining how sexual harassment is
committed on line, the study explained that even in the absence of the body, it is language
that constitutes the body in online spaces and by language too – through flaming, hate
speech, harassmenet -- such virtual body is or may be diminished. To quote, the study
explains:
If ‘being’ can be constituted through language then online abuse and
harassment via language contributes to an individual’s ontological
precariousness. The ways in which speech can harm in a face-to-face
situation are equally plausible in an online environment to the extent where
the environment itself may contribute to the increased severity of a verbal
attack that is not tempered by the restrictions of embodiment or physical
presence.
The study then cites Spender (cited in Hawthorne and Klein,1999:8) that “for every
feminist issue in the real world the same issues apply in the cyberworld”; including the
victimisation of women.
The above discussion is closely related to the concept of continuum of violence in ICTrelated VAW. In many instances, offline VAW continues to the online spaces. Thus, the
underlying root of VAW, that of structural inequality between men and women in society,
are the same root causes that inform the VAW committed on line. This continuum of
violence directed against women is likewise seen in cases where offline violence literally
cross into online realms. This is often seen in cases of previous acquaintances or between
men and women who are in previous or current relationships. Accounts have been made of
women being threatened and harassed online by estranged husbands, boyfriends or
disgruntled suitors. These portray that the violence directed online, has its roots and are
but continuum of violence began offline. As estimated by the UN, 95 % of aggressive
behaviour, harassment, abusive language and denigrading images in on line spaces are
aimed at women and come from partners or former male partners81.
81
How technology is being used to perpetrate VAW- and to fight it citing United nations
daccessods.un.org/TMP/7121883.html
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Above matters said, this research proposes of seeing and distinguishing ICT-related VAW
which is being committed on individual level as compared to ICT-related VAW committed
in a syndicated manner and for profit. The distinction is made in order to focus on the
nuances of ICT-related VAW committed on individual level, which may be between
previous acquaintances or complete strangers, with
ICT-related VAW which is
compounded and committed in a syndicated manner and for purposes of profit.
c. Subjectivities and Contextualization: ICT related VAW in the individual level
In the first categorization of ICT-related VAW, that committed in the individual level, this
research proposes a contextualized and subjective consideration of each case. This
contextualized and subjective consideration would include looking into whether or not the
perpetrator and the woman victim of ICT-related VAW are previous acquaintances or not;
it would likewise look into the woman’s agency or participation; and likewise on whether
or not the case is purely ICT-related VAW or that which has originated in offline VAW
crossing into online spaces.
As propounded on the research on cyber stalking, it doesn’t as much matter whether the
VAW is committed offline or online, the harm that it inflicts on women by virtue of being
online is not diminished. The trivialization of ICT-related VAW as mere online offenses,
have greatly impacted women who are victims of thesame. This misconception has affected
the reporting of ICT-related VAW as well as the availability and accessibility of remedies in
such cases.
In the case of ICT-related VAW where the parties are previous acquaintances, and where
the violence started offline crossing to on line spaces, the continuum of violence is more
evident and in Philippine laws where the Anti-VAWC act is applicable to persons with
whom the woman has had previous dating relationship, recourse under the law may be
had. However, even that recourse could prove to be problematic as with the case of VAWC
filed by Katrina Halili against Hayden Kho. Said case was dismissed by the lower courts on
the basis that, even if Kho and Halili were in previous dating relationship, Kho was found
not to be guilty of the Anti-VAWC law as he was not the one who uploaded the sex videos
which caused Halili’s psychological distress. Like the Kho and Halili case, other common
cases of ICT-related VAW involving previous acquaintances mostly involve the use of
information, photos, images, videos taken previously while the parties were still in a
relationship and the use of the same to harass, threaten, or blackmail the woman. Thus we
have cases of cyber gender harassment, cyberstalking, cyberpornography , the use of
electronic mail and social network sites for blackmail committed by estranged husbands,
boyfriends, or disgruntled suitors.
In the above discussed case of ICT-related VAW committed by previous acquaintances, the
identification of the perpetrator is often much easier as the same is known to the woman.
This, however, is not true in cases of ICT-related VAW committed by complete strangers on
line. In these cases women find difficulty not only in identifying the perpetrators but also in
reporting and seeking redress. All the elements that make cybercrimes difficult are present
here, there’s the borderlessness of the ICT world, the anonymity granted to users which
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has made the identification of offenders much difficult, and the problem of territoriality
and jurisdiction. And since the offense is committed purely on line, there is often the
trivialization of the abuse/violence and the difficulty of the local police force to respond/
act on the same.
The proposal of a subjective and contextualized treatment of ICT-related VAW committed
on individual level finds support in the study of online sex offenders. In said study82, it
was shown that not all online offenders commit offenses off-line. It showed that a
substantial number of online offenders do not cross the virtual spaces to commit the same
offenses off-line. This considered, it seems then that while there is a continuum of violence:
seen in the VAW committed by known perpetrators and which cross online spaces; or in
the ICT-related VAW which are committed as against women online, and which are
continuum of the violence directed against women as a consequence of the structural
inequalities in society --- there also exists, simultaneously discontinuities ---- as with the
case of online offenders who remain online offenders. This does not however, discount the
root of the online violence or the ICT-related VAW committed by these purely online
offenders, this does not trivialize the acts of violence by (Howitt 2007) virtue of them being
committed online. This is but a recognition that a pure and sweeping generalization cannot
be made, thus, the contextualized, subjective and case to case approach in these forms of
ICT-related VAW in the individual level.
The need for subjective and contextualized approach will further be explored in the
discussion of ICT and sexuality, where possible questions of consent, of agency, and the
exercise of self-expression and sexual rights come into issue.
d. Institutionalized Victimization: Syndicated ICT-related VAW
In the second categorization, the research wishes to focus the vicious and compounded
nature of ICT-related VAW when the same is conducted in a syndicated manner and for
purposes solely of profit. Here the institutionalized victimization of women for profit is
highlighted. According to a report in 2000, there are more than 40,000 sex-related sites on
the Internet and pornographic sites bring in the most revenues with "Adult materials
accounting for 69% of the $1.4 billion pay-to-view online-content market, far outpacing
video games (4%) and sports (2%)" ( Koerner, US News and World Report)83.
In fact the growth of the Internet has been attributed by some analysts to the immense sex
consumption taking place on the Internet, especially in pornography, sex tourism, and mailorder bride Web sites. Due to the fact that governments, traffickers, and Web sites are
profiting handsomely from these atrocious online activities, there is currently little
regulation and little interest in regulating these activities84. The victimization of women in
82
Sheldon, Kerry and Howit, Dennis, “Sex Offenders and the Internet”, 2007
Cited in Women and Children: Online Hot Ticket Items?
The Sexual Commodification of Women and Children on the Internet
http://www.ed.uiuc.edu/wp/netfiles.uiuc.edu/hadowns/www/sexcommodification.htm
84
supra
83
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these syndicated forms of ICT-related VAW is then institutionalized and carried out in a
much larger scale with many stakeholders. The continuation of internet pornography and
the trafficking that goes with it, then becomes a question, not only of abuse but of profit and
of economics.
In many countries in Asia, many reports have already been made of child pornography,
cyber dens and cyber sex rings. Child pornography is prevalent, with Japan, Cambodia and
Thailand as the most mentioned countries in reports as producing and facilitating child
pornography85. In Japan, the child porn industry is largely run by organized crime
syndicates. In cases of cyber dens and cyber sex rings, several crackdowns have been
reported in the Philippines. In 2004, for example, the Philippine Police arrested foreigners
and Filipino's and rescued 15 females of a child pornography and cybersex ring in Angeles
City. Another raid in 2005 of a cyber trafficking den in Metro Manila showed that the cyber
sex shop raided by the CIDG had to be earning from P4 million to P10 million a month as it
was a high-end cyber sex shop with clients mostly from the US and Germany86. Just this
2011, raids and arrests in cyber dens all over the coutry were conducted: in Bataan where
38 were detained on January 201187; in Taguig with nine women arrested in April 201188 ;
in Cebu where a Dutch National was arrested in April 201189; and the most recent, the
arrest of 28 persons, including a 17 year old girl in a raid in Cavite last June 27, 2011 90.
These are but few of the recent raids of cyber dens, a statistic directly from the PNP and the
NBI would surely produce a higher number.
It is obvious then that in terms of effect and of gravity, ICT-related VAW committed by
syndicates and for profit are of much graver scale due to the fact that it has
institutionalized the victimization of women. It has reduced the victimization into issues of
profit and income, in terms of economic benefit. It is graver too, because it crosses national
boundaries and is committed in a grander scale, with a number of women and children
exploited and trafficked with impunity. It is this form of ICT-related VAW that absolutely
needs the government’s intervention and immediate action. In this institutionalized
victimization, questions of consent by the women victims of cyber sex dens, as these are
forms of human trafficking under Philippine law, becomes questionable, even unacceptable
under the law --- considering the context and circumstances availing in cyber sex dens: its
organized nature, the number of victims, the economic and sometimes political power of
the perpetrator – which, taken together negate proper consent and valid bargaining or
negotiating power.
85
Sparrow, William. Pedophiles get tech-savvy
http://www.atimes.com/atimes/Southeast_Asia/JG26Ae01.html
86
Internet Porn: untouchable Crime http://www.newsbreak.com.ph/humantrafficking/story-iporn.htm
87
http://newsinfo.inquirer.net/inquirerheadlines/regions/view/20110110-313720/Suspected-cybersex-denraided-38-held
88
http://www.philstar.com/Article.aspx?publicationSubCategoryId=65&articleId=675702
89
http://newsinfo.inquirer.net/breakingnews/regions/view/20110409-330147/Cebu-cybersex-den-raided-Dutchnational-4-Filipinas-charged
90
http://www.philstar.com/nation/article.aspx?publicationSubCategoryId=67&articleId=700138
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e. VAW or ICT related VAW: Gender based violence all the same
It is once again worth stressing that despite the many forms of ICT-related VAW, the root of
the violence remain the same and could be traced to the previously identified root causes of
violence against women: the historically unequal power relations between women and
men in public and private life, patriarchy, and men’s control over women’s sexuality. Again,
ICT-related VAW, or violence perpetrated through ICTs, are not new in the sense that they
form part of the continuum of violence experienced by women as a consequence of these
unequal power relations and structural inequalities prevalent in society. These forms of
violence fall within the definition provided by DICT-RELATED VAW as “any act of genderbased violence that results in, or is likely to result in, physical, sexual or psychological harm
or suffering to women, including threats of such acts, coercion or arbitrary deprivation of
liberty, whether occurring in public or private life.”
However, as earlier pointed out, it is also to be conceded that by virtue of the use of ICT in
the perpetration of ICT-related VAW, the nature and characteristics of ICT, its borderless
nature and its offer of anonymity make the prosecution of acts of ICT-related VAW largely
problematic. Challenges exist in terms of identifying and defining ICT-related VAW within
national legislations, in clarifying issues of jurisdiction and in terms of affording/providing
protection for women against these forms violence. This is especially so in cases of ICTrelated VAW committed by syndicates and for profit which are more often than not
operating across national borders.
Gurumurhty (2009) attributes the difficulties in pursuing these forms of violence to the
inherent terrain of ICTs where the absence of a global governance framework in relation to
ICT often work to the disadvantage of women and where newer technologies are
themselves used, not only to perpetrate and create more violent forms of pornographic
material, but also to actively circumvent the law91. She also adds that the lack of territorial
jurisdiction over the Internet makes it difficult for countries in the developing world to
identify abusers and prosecute the guilty, she then cites as example the lack of cooperation
from foreign-based websites which hinder the resolution of cyber crime cases.
The Legal Landscape on ICT, VAW and Sexuality
The prevailing policy framework of the existing laws in relation to ICT, VAW and sexuality
are herein presented and has been analyzed from a feminist and developmental lens.
International legal remedies are discussed to depict the legal responses of other states to
ICT-related VAW.
International Legal Responses to ICT-VAW
There are legal remedies available under US law to prosecute cyber harassment of women.
A combination of tort remedies, criminal prosecutions, and civil rights claims to prevent,
91
Gurumurthy (2009)
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remedy, and punish cyber gender harassment are available under American law and
jurisprudence. The International Convention on Cybercrime is one of Europe’s existing
legal instruments and regional strategies that can aid in combating ICT-facilitated
trafficking in human beings. The Convention seeks to set international standards for the
policing of electronic networks.
Remedies for Cyber Harassment under US Law
According to Citron (2009), under existing tort remedies in the US, targeted individuals
can sue harassers for defamation, intentional infliction of emotional distress, and privacy
intrusions. Cyber attackers can be prosecuted for online threats and harassment.
Moreover, Citron notes that many states criminalize cyber harassment. Some states even
punish posting messages with the intent to urge or incite others to harass a victim. At the
federal level, criminal penalties attach to any use of a telecommunications device without
disclosing one’s identity and with the intent to “abuse, threaten, or harass any person . . .
who receives the communications.”
Still, Citron acknowledges that while traditional criminal and tort remedies play an
important role in combating cyber gender harassment, they cannot reach all of the harm
experienced by individuals, groups, and society when defendants interfere with
individuals’ right to equal treatment. For instance, they do not address the stigma and
economic injuries that individuals experience when they are targeted because of their
gender. Thus, she proposes the use of existing civil rights laws, to compensate for these
shortcomings. She says that targeted individuals can sue attackers under Title VII of the
Civil Rights Act of 1964 for preventing them from making a living because of their sex.
Citron also recognizes that many will oppose a cyber civil rights agenda on the grounds
that it interferes with free speech. However, contrary to this view, she argues that a cyber
civil rights agenda comports with First Amendment doctrine and free-speech values, saying
that all speaking is not protected despite the First Amendment’s guarantee that “Congress
shall make no law . . . abridging freedom of speech.” Torts such as defamation and
intentional infliction of emotional distress, for instance, fall outside the First Amendment’s
protection. Threats similarly do not enjoy First Amendment immunity.
On the other hand, Citron posits that a cyber civil rights agenda comports with prominent
free-speech theories that emphasize the importance of autonomy and the promotion of
truth. Some view free speech as crucial to individual autonomy because it allows people to
author their own narratives. Defeating cyber gender harassment is essential to defending
the expressive autonomy of targeted individuals. Although cyber harassers express
themselves through their assaults, their actions directly implicate their targets’ selfdetermination and ability to participate in political and social discourse. She then asserts
that self-expression should receive little protection if its sole purpose is to extinguish the
self-expression of another.
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Relevant Legal Instruments in Europe
The move towards creating a convention to address cybertrafficking was was fuelled by the
G8 and by the Council of Europe’s concerns of tackling “cyber crime”. It is considered the
first binding international treaty on cyber crime. It deals, in particular, with offenses
related to copyright violations, computer related fraud, child pornography, and offences
connected with network security. The Convention does not deal explicitly with the
trafficking of human beings for the purposes of sexual exploitation or with pornographic
images of women. However, it does focus on the sexual exploitation of children on the
Internet. Article 9 makes it a criminal offense to not only produce child pornography for
distribution through a computer system but also to offer this kind of pornography, to make
it available, to distribute or transmit it, to procure it or to possess it in a computer system.
The authors consider this Convention as the first step in the development of tools to
combat, control and punish those engaged in the trafficking in human beings.92
Mapping of Relevant Philippine Laws
In the Philippines, there is a general dearth of local references and materials as regards the
question of legal remedies for cases of ICT-related VAW. In general, the law, the
government, has always been reactionary. Prior to the Katrina Halili and Hayden Kho
incident on the sex video, attention has not been directed to the proliferation of cyber
crimes or cyber pornography. It was only in the height of the scandal that Congress has
drummed up the need to pass laws on the matter. And even then, such measures remain
pending and have yet to be passed into law. So what do we really have in combating ICTrelated VAW?
The Magna Carta of Women of 2009 provides the broadest definition of VAW to date.
According to this law, VAW or “violence against women” refers to
any act of gender-based violence that results in, or is likely to result in,
physical, sexual, or psychological harm or suffering to women, including
threats of such acts, coercion, or arbitrary deprivation of liberty, whether
occurring in public or in private life. It shall be understood to encompass,
but not limited to, the following:
(1) Physical, sexual, psychological, and economic violence occurring in
the family, including battering, sexual abuse of female children in the
household, dowry-related violence, marital rape, and other traditional
practices harmful to women, non-spousal violence, and violence
related to exploitation
(2) Physical, sexual, and psychological violence occurring within the
general community, including rape, sexual abuse, sexual harassment,
92
Chawki and Wahab
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and intimidation at work, in educational institutions and elsewhere,
trafficking in women, and prostitution; and
(3) Physical, sexual, and psychological violence perpetrated or condoned
by the State, wherever it occurs.
It also includes acts of violence against women as defined in Republic Acts
No. (sic) 9208 and 9262.93
On the other hand, the term “information and communication technology (ICT)” has not
been categorically defined in Philippine statutes, but it appears in the Electronic Commerce
Act of 2000 where the State recognizes its vital role in nation building. 94 The Act, for its
own purposes, seems to refer to ICT thus:
“Information and Communication System” refers to a system intended for
and capable of generating, sending, receiving, storing or otherwise
processing electronic data messages or electronic documents and
includes the computer system or other similar device by or in which data
is recorded or stored and any procedures related to the recording or
storage of electronic data message or electronic document.95
“Computer” refers to any device or apparatus which, by electronic,
electromechanical or magnetic impulse, or by other means, is capable of
receiving, recording, transmitting, storing, processing, retrieving, or
producing information, data, figures, symbols or other modes of written
expression according to mathematical and logical rules or of performing
any one or more of those functions.96
93
Section 4(k), Republic Act No. 9710 (The Magna Carta of Women, 2009)
Section 2, Republic Act No. 8792 (Electronic Commerce Act of 2000)
95
Ibid., Section 5.d. Underscoring supplied.
A similar definition is adopted in Section 1(l), Rule 2 of A.M. No. 01-7-01-SC Re: Rules on Electronic Evidence
(August 1, 2001):
94
“Information and Communication System” refers to a system for generating, sending, receiving, storing or
otherwise processing electronic data messages or electronic documents and includes the computer
system or other similar devices by or in which data are recorded or stored and any procedure related to
the recording or storage of electronic data message or electronic document.
96
Ibid., Section 5.c. Underscoring supplied.
A similar definition is adopted in Section 1(d), Rule 2, A.M. No. 01-7-01-SC:
“Computer” refers to any single or interconnected device or apparatus, which, by electronic,
electro-mechanical or magnetic impulse, or by other means with the same function, can receive,
record, transmit, store, process, correlate, analyze, project, retrieve and/or produce
information, data, text, graphics, figures, voice, video, symbols or other modes of expression or
perform any one or more of these functions.
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The Arroyo government also provided a legal definition of ICT with the issuance of
Executive Order No. 269 creating the Commission on Information and Communications
Technology, which decree mentions the following:
“Information and Communications Technology” (ICT) is defined as the
totality of electronic means to collect, store, process and present
information to end-users in support of their activities. It consists, among
others, of computer systems and consumer electronics, as well as
networked information infrastructure, the components of which include
the telephone system, the Internet, fax machines and computers.97
Given the above definitions, ICT should also include hardware such as cellular phones,
magnetic media98, optical media99, as well as software applications.
In addition, available foreign studies on the subject of ICT in relation to VAW are
instructive. Chawki and Wahab (2004) enumerates various kinds of technology known to
be used for the purpose of sexual exploitation: mainstream communications (cable TV);
scanners and video digitizers (including digital cameras and recorders); the digital video
disk (DVD); Internet applications and services such as Web sites, Peer-to-Peer networks,
file swapping programs, file transfer protocols, search engines, chat rooms (including email and instant messaging).100
Proceeding from the definitions of VAW and ICT above, their apparent or potential nexus or
intersection in Philippine law, is now examined.
Computer crimes or “cybercrimes”, in general, is a 21st century phenomenon, the scope and
boundaries of which are still undefined, especially in the Philippines. While the National
Bureau of Investigation (NBI) already has a Computer Crime Unit (formerly the Anti-Fraud
and Computer Crime Division), criminal prosecution of this type of offenses is sorely
deficient. Whether for lack of policy or lack of capacity, ICT-related crimes, VAW included,
for the most part, remain unpunished.
It has been suggested, however, that existing substantive laws may be flexible enough to be
applied to these modern-day crimes, and that legislative efforts need only be directed
towards adapting procedural and investigative tools to the specificities of new technology.
Indeed, a number of VAW offenses are already defined in or dealt with by present laws,
penal and otherwise. However, the applicability of these laws to ICT-related forms of VAW,
especially the emerging ones, has not been significantly tested. This survey only aims to
97
Section 2(a), Executive Order No. 269 (January 12, 2004)
Section 3(d), Republic Act No. 9239 (Optical Media Act of 2003)
99
Ibid., Section 3(i)
100 Chawki, Judge Mohamed and Dr. Mohamed Wahab, Technology is a Double-Edged Sword: Illegal Human
Trafficking in the Information Age (2004) available at www.DROIT-TIC.fr accessed [date]
98
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enumerate them, isolate relevant provisions, and surface assess the theoretical potential of
using or invoking them in the prosecution of ICT-related VAW. Specifically, it examines the
following laws:
A. The 1987 Constitution
B. The Magna Carta of Women of 2008 (RA 9710)
C. The Revised Penal Code (Act No. 3815 [1930])
D. Anti-Photo and Video Voyeurism Act of 2009 (RA 9995)
E. Anti-Child Pornography Act of 2009 (RA 9775)
F. Anti-Violence Against Women and Their Children Act of 2004 (RA 9262)
G. Anti-Trafficking in Persons Act of 2003 (RA 9208)
H. Anti-Mail Order Bride Act of 1990 (RA 6955)
I. Anti-Sexual Harassment Act of 1995 (RA 7877)
J. Special Protection of Children Against Child Abuse, Exploitation and
Discrimination Act of 2003 (RA 7610)
K. Electronic Commerce Act of 2000 (RA 8792)
A. The 1987 Constitution
The 1987 Constitution states that the Philippine government “recognizes the role of
women in nation-building, and shall ensure the fundamental equality before the law of
women and men.”101 The State also “values the dignity of every human person and
guarantees full respect for human rights.”102 Consequently, several laws are now in place to
declare and uphold women’s rights; to penalize violations of women’s rights, including
forms of VAW; and to aid the prosecution of these offenses.
On the other hand, the Constitution does not appear to have contemplated ICT per se when
it was drafted. However, it does treat the matters of “communication and information” and
“science and technology,” albeit separately. The State “recognizes the vital role of
communication and information in nation-building,”103 and declares that “science and
technology are essential for national development and progress.”104 Further, the
Constitution says that “the State shall regulate the transfer and promote the adaptation of
technology for the national benefit”105 and “shall give priority to… science and technology,
… to foster patriotism and nationalism, accelerate social progress, and promote total
human liberation and development.”106 These charter provisions may have had some
bearing on the declaration of policy of the Electronic Commerce Act of 2000 where “the
101
Section 14, Article II
Section 11, Article II
103
Section 24, Article II
104
Section 10, Article XIV
105
Section 12, Article XIV
106
Section 17, Article XIV
102
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State recognizes the vital role of information and communications technology (ICT) in
nation-building.”107
B. The Magna Carta of Women of 2008 (RA 9710)
While it is not a penal law that can be used to prosecute VAW, the Magna Carta of Women
provides a broad definition of VAW (quoted earlier) that may be invoked as a legal basis for
the interpretation of laws on VAW and for the adoption of its definition of VAW in future
legislation penalizing other forms of VAW. The definition is the most extensive one yet, as it
includes only as a subset the acts of VAW defined in the Anti-Trafficking in Persons Act of
2003 and the Anti-VAWC Act of 2004.
Its value as far as ICT-related VAW is concerned lies in the inclusion of alternative forms of
violence, such as psychological violence, whether occurring in the family or in the general
community, in its definition of VAW. With this definition as the standard, any injury,
whether physical or sexual or not, whether committed within the context of a domestic
relationship or not, inflicted on women through or in the Internet or other ICT, may be
accorded legal recognition as actual harm or damage constituting VAW.
Moreover, the addition of “physical, sexual, and psychological violence perpetrated or
condoned by the State, wherever it occurs,” though yet untested, casts a wide net and may
cover other forms of VAW yet unregulated by government, such as ICT-related VAW.
C. The Revised Penal Code (Act No. 3815 [1930])
The Revised Penal Code defines some traditional forms of VAW thus:
Rape is committed when (1) a man has carnal knowledge of a woman (12 years or
over and not demented) under any of the following circumstances: (a) through
force, threat or intimidation; (b) when the offended party is deprived of reason or is
otherwise unconscious; (c) by means of fraudulent machination or grave abuse of
authority; OR (2) when any person, under the same circumstances, commit sexual
assault by inserting penis into another person’s mouth or anal orifice, or any
instrument or object, into the genital or anal orifice of another person108
Acts of lasciviousness are committed upon other persons of either sex under any of
the following circumstances: (1) by using force or intimidation, (2) when the person
is deprived of reason or unconscious, or (3) when the person is under 12 years of
age or is demented.109
107
Id. at FN 2
Article 266-A to 266-D (Article 335, as amended by RA 8353 or the Anti-Rape Law of 1997)
109
Article 336
In jurisprudence (People vs. Bon, G.R. No. 149199, 28 January 2003; People vs. Jalosjos, G.R. Nos. 132876-79, 16
November 2001), the Supreme Court has adopted the definition of “lascivious conduct” in Section 32, Article XIII of
the Implementing Rules and Regulations of RA 7160 in deciding cases of acts of lasciviousness (at least involving
minors), which section reads as follows:
108
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Corruption of minors refers to promoting or facilitating the prostitution or
corruption of persons under age to satisfy the lust of another.110
White slavery (or white slave trade) means, in any manner or under any pretext,
engaging in the business of or profiting by prostitution or enlisting the services of
any other person for the purpose of prostitution.111
Abduction refers to the taking of a woman, with lewd designs, whether forcible
(against her will)112 or consented (if victim is a virgin over 12 but under 18
years)113.
Seduction is committed against a woman who is single or a widow of good
reputation, over 12 but under 18 years of age, by means of deceit.114
Slavery refers to the purchasing, selling, (kidnapping) or detaining of a human being
for the purpose of enslaving him/her or for the purpose of assigning him/her to
some immoral traffic.115
Prostitution refers to the case where a woman habitually indulges in sexual
intercourse or lascivious conduct for money or profit.116 *However, the Revised
Penal Code actually punishes the victim instead of the perpetrator of this form of
VAW.
Pornography is penalized as “Obscene Publications & Exhibitions and Indecent
Shows,” and is committed by those who, in theaters, fairs, cinematographs, or any
other place, exhibit indecent or immoral plays, acts or shows, it being understood
that the obscene literature or indecent or immoral plays, scenes, acts or shows,
whether live or in film, which are proscribed by virtue hereof, shall include those
which: (1) glorify criminals or condone crimes; (2) serve no other purpose but to
(T)he intentional touching, either directly or through clothing, of the genitalia, anus, groin,
breast, inner thigh or buttocks; or the introduction of any object into the genitalia, anus or
mouth of any person, whether of the same or opposite sex, with an intent to abuse, humiliate,
harass, degrade, or arouse or gratify the sexual desire of any person; bestiality, masturbation,
lascivious exhibition of the genitals or pubic area of a person.
Ret. J. Florenz D. Regalado, in his book Criminal Law Conspectus (2003 ed.) observes that this expanded definition
does not limit the offender’s motivation to lewdness or eroticism but also considers as lascivious conduct the acts
mentioned therein even if the intent was to abuse, humiliate, harass or degrade the victim as long as he or she is
an exploited or sexually abused child below 12 years of age. (p. 644)
110
Article 340
Article 341
112
Article 342
113
Article 343
114
Article 338
115
Article 272
116
Article 202
111
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satisfy the market for violence, lust or pornography; (3) offend any race or religion;
(4) tend to abet traffic in and use of prohibited drugs; and (5) are contrary to law,
public order, morals, good customs, established policies, lawful orders, decrees and
edicts.117
These traditional forms of VAW may and have certainly come in contact with ICT, some
more than the others. As previously conveyed, technology has made available alternative,
more efficient ways to access information about and communicate with people, thereby
facilitating a wide range of human interactions, including the perpetration of crimes.
The general intersection is when ICT is used as an indispensable means or mode of
committing these crimes, as when some (or all, in the case of pornography) of the elements
of each offense are produced or brought about with the use of ICT.
The parts underlined in the definitions above point to elements of the offenses that may be
realized or accomplished by using ICT.
Conceivably, rape and acts of lasciviousness can now result from threat or intimidation or
deceit effected through mobile communication or the Internet. Transactions, commercial
and otherwise, legal and otherwise, such as sale and purchase of goods and services, can
now be entered into online. Lewd design and lasciviousness can be expressed
electronically.
It can be said, therefore, that in the sense and to the extent stated above, the Revised Penal
Code may still apply in the prosecution of ICT-related VAW within the framework of its
existing definitions of offenses constituting VAW.
The question of procedure and evidence, however, is addressed by other laws and rules.
D. Anti-Photo and Video Voyeurism Act of 2009 (RA 9995)
The Anti-Photo and Video Voyeurism Act expressly recognizes ICT such as VCD/DVD,
Internet, cellular phones and similar means or devices, as integral to the commission of the
crime of photo and video voyeurism. This crime is committed by (1) taking photo or video
coverage of a person or persons performing sexual acts or similar activities or capturing
the image of the (naked or undergarment-clad) private area of the person/s; (2) selling,
copying, reproducing, broadcasting, sharing, showing, or exhibiting such coverage or
recording.
The application of the law is limited to cases (1) where the woman did not consent to the
photo or video coverage and she had a reasonable expectation of privacy during the
recording, and (2) where she consented to the recording but did not consent in writing to
the selling, copying, etc. of the same.
117
Article 201.2(b)
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The law does not apply to cases where the woman did not consent to the recording but the
recording occurred under circumstances which can be deemed as situations where she
could not have had reasonable expectation of privacy. Such circumstances is defined as
those where the woman would “believe that (he/)she could disrobe in privacy without
being concerned that an image or a private area of the person was being captured,” or
where “a reasonable person would believe that a private area of the person would not be
visible to the public, regardless of whether that person is in a public or private place.”
E. Anti-Child Pornography Act of 2009 (RA 9775)
The Anti-Child Pornography Act extensively recognizes the role of ICT in the production,
advertising and promotion, sale and distribution, purchase and access (even for personal
use) of pornographic materials, albeit only where the pornography involves children, and
punishes those responsible for these acts.
For one, the law considers as a child a “computer-generated, digitally or manually crafted
images or graphics of a person who is represented or who is made to appear to be a child”
[Section 3(a)(2)]. The age of the person is immaterial, so long as he/she is presented,
depicted or believed to be a child as defined by the law [Section 3(a)(1)].
The law penalizes as child pornography “any public or private representation, by whatever
means, of a child engaged in real or simulated explicit sexual activities or any representation
of the sexual parts of a child for primarily sexual purposes [Section 3(b)]. Child
pornography materials may be in the form of visual depiction, audio representation
(including real-time internet communications), or written text [Section 3(c)].
It also penalizes the act of luring and grooming a child. Luring refers to 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 a sexual activity or production of
child pornography [Section 3(i)]. Grooming refers to preparing a child or someone who the
offender believes to be a child for a sexual activity or sexual relationship by communicating
child pornography, including online enticement or enticement through any other means
[Section 3(j)].
As far as VAW is concerned, the law amply protects female minors or girl children and
adult women who are “unable to fully take care of themselves or protect themselves from
abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental
disability or condition,” who are included in its definition of “children” [Section 3(a)].
F. Anti-Violence Against Women and Their Children Act of 2004 (RA 9262)
The Anti-VAWC Act succeeds in providing, in a penal law, a broad definition of VAW
[Section 3(a)] which includes alternative forms of violence such as psychological violence
(“acts causing or likely to cause mental or emotional suffering of the victim”) and other
forms of sexual violence like “treating a woman or her child as a sex object” and “making
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demeaning and sexually suggestive remarks”. In doing so, the law may cover the kind of
violence that can be perpetrated in cyberspace, which is generally non-physical.
However, despite this broad definition, RA 9262 seems to abandon the same by
pronouncing that the crime of VAWC is committed through any of nine (9) listed acts
[Section 5] stated without using the terms it earlier defines such as sexual violence,
psychological violence, and economic abuse, and without completely reproducing the
definitions of these terms in the list of prohibited acts. Nevertheless, the acts as stated still
include forms of VAW that are non-physical and that may be committed with the use of ICT.
Still, the use of RA 9262 is limited to VAW committed by any person against “a woman who
is his wife, former wife, or against a woman with whom the person has or had a sexual or
dating relationship, or with whom he has a common child”. This requirement discounts the
law’s applicability to cases where the VAW is committed by/against strangers or even
by/against family members with whom there is no dating or sexual relationship.
R.A. 9262 has, in fact, already been invoked to prosecute cases of VAW perpetrated through
the use of ICT.
One of these cases is the “sex video scandal” or controversial sex video of Dr. Hayden Kho
and actress Katrina Halili mentioned earlier in this review as being cited in Soto (2010).
Upon the complaint of Halili, the Department of Justice filed a case of VAW under Section
5(h) of R.A. 9262 against Kho before the Pasig Regional Trial Court in December 2009, after
the sex video circulated on the Internet. Halili alleged that Kho committed VAW against her
by recording the sex video without her knowledge and consent, which conduct alarmed or
caused her substantial emotional or psychological distress.
A year after, in December 2010, the trial court dismissed the case on the ground of
insufficiency of evidence. In his decision, the judge pointed out that Halili’s admission
during the Senate hearing that she consented to the taking by the accused of three prior
video recordings showing her and the accused together performing salacious acts (not
sexual intercourse) “clearly indicates that she agreed to the taking, or at the very least
knew, of the subject sex video recording.” The judge also noted that, based on an ocular
inspection of the hotel room where the act was committed, the camera used in video
recording must have been placed in an open and unconcealed place such that the recording
could not have been done without Halili knowing it. Further, the judge said that Kho’s mere
taking of the sex video even without Halili’s knowledge and consent is not yet a violation of
R.A. 9262. He said that it becomes so when the said act “alarms or causes substantial
emotional or psychological distress to the woman”. Having found that Halili knew and
consented to the video recording, the decision said that what caused the emotional and
psychological distress of Halili was the uploading and circulation of the sex video. However,
to date, the National Bureau of Investigation has not yet established who uploaded the sex
video.118
118
Information about the dismissal of the case was taken from an online news article at
http://www.philstar.com/Article.aspx?articleId=639344&publicationSubCategoryId accessed on 31 March 2011.
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As previously mentioned, this case brought about a Senate hearing in aid of legislation
aired publicly in May 2009, which later spawned the Anti-Photo and Video Voyeurism Act
of 2009 (R.A. 9995) also discussed earlier in this review.
In an earlier albeit less controversial case of ICT-related VAW119, the Supreme Court
affirmed the conviction of a man found guilty by the Regional Trial Court of Baler, Aurora of
committing VAW under the same Section 5(h) of R.A. 9262. The criminal act consisted of
the man sending his former girlfriend, through the use of multimedia message service
(MMS), a morphed image wherein her head was attached to a pornographic photo of a
naked woman. The man also sent text messages threatening to spread the obscene photo in
the Internet and to manufacture more of the same. The man was arrested through an
entrapment operation, so he was forced to admit ownership of the cellular phone number
and to sending the malicious messages; although he reasoned out that he just received the
messages from an unidentified person who was harassing his ex-girlfriend and he merely
forwarded the same to her. Fortunately, the trial court found the woman’s testimony
credible; hence the conviction.
In this case, the Supreme Court, in affirming the conviction, confirmed that the act of the
accused caused the woman substantial psychological and emotional distress, thereby
recognizing, in effect, the harm caused by an ICT-facilitated act of VAW. The Court said:
Secondly, the Court cannot measure the trauma that Irish
experienced based on Rustan’s low regard for the alleged moral
sensibilities of today’s youth. What is obscene and injurious to an
offended woman can of course only be determined based on the
circumstances of each case. Here, the naked woman on the picture, her
legs spread open and bearing Irish’s head and face, was clearly an
obscene picture and, to Irish a revolting and offensive one. Surely, any
woman like Irish, who is not in the pornography trade, would be
scandalized and pained if she sees herself in such a picture. What makes
it further terrifying is that, as Irish testified, Rustan sent the picture with a
threat to post it in the internet for all to see. That must have given her a
nightmare.120
However, the decision confirmed the lack of evidentiary rules specifically for criminal cases
involving electronic evidence, when the Court noted that the Rules on Electronic Evidence
(A.M. 01-7-01-SC) does not apply to criminal actions such as the Ang case.
Still, the Ang decision is favorable to the woman and is a positive albeit limited precedent.
Unfortunately, the circumstances in the Halili case were different: The sex video had been
circulated; the person who caused such circulation remained unknown; and the trial court
did not believe Halili’s testimony that she did not consent to the video recording done by
119
120
Rustan Ang vs. Court of Appeals and Irish Sagud, G.R. No. 182835 (April 20, 2010)
Ibid.
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Kho. The Halili case was not elevated to the higher courts after the dismissal.
G. Anti-Trafficking in Persons Act of 2003 (RA 9208)
The Anti-Trafficking in Persons Act may be the most promising tool for prosecuting ICTrelated cases of VAW, as it penalizes syndicated, profit-driven trafficking in women for
sexual exploitation (which includes prostitution and production of pornographic
materials), which is arguably the most prevalent or notorious ICT-related VAW at present.
Barring procedural difficulties, it can be argued that what has come to be known as cybertrafficking or the operation of cybersex dens is covered by this law.
At the onset, it is worthwhile to note that RA 9208 seems to have modified and cured the
defective definition of prostitution in the Revised Penal Code where women engaged in
prostitution are punished instead of protected. Under RA 9208, the prostitute as trafficked
person is recognized as a victim of trafficking and is not penalized regardless of whether or
not he/she consented to the exploitation [Section 17]. Thus, prostituted women should no
longer be charged and prosecuted against beginning in 2003.
Of special note, too, is the inclusion of “taking advantage of the vulnerability of the person”
as one of the means by which trafficking is committed. This addition may be relevant in
dealing with reasons other than force, coercion, etc. that drive women into prostitution or
pornography. These other reasons may go into the deeper socio-economic conditions that
compel women to “consent” to these activities.121
RA 9208 defines trafficking in persons as “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” [Section 3(a). Underscoring supplied.].
Sexual exploitation includes prostitution and the production of pornographic materials
[Section 3(f)]. Prostitution is “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” [Section 3(c). Underscoring supplied]. 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 for
primarily sexual purposes [Section 3(h). Underscoring supplied.].
121
Chawki & Wahab counts economic, educational, and social conditions as among the major reasons that
facilitate trafficking. It notes that source countries are mainly low-income, developing and underdeveloped States,
rendering human trafficking a manifestation of a larger development divide.
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Elements of the crime of trafficking can be and are done with the use of ICT, particularly
through the Internet. With the way its definition is worded, even if only recruitment or
harboring is done (presumably online or in cybersex dens), without transportation or
transfer of persons, trafficking is already committed. This interpretation is based on the use
of “or “ instead of “and” in the statute, indicating that the crime is consummated even if
only one of the series of acts is committed.
The law also expressly recognizes the use of information technology and the Internet in
some of the other acts it penalizes, such as pornography [Section 3(h)] and advertising to
promote trafficking in persons [Section5(c)]. Furthermore, one of the functions of the InterAgency Council Against Trafficking established under the law is to coordinate with the
Department of Transportation and Communications (DOTC), Department of Trade and
Industry (DTI), and other NGOs in monitoring the promotion of advertisement of
trafficking in the Internet.
H. Anti-Mail Order Bride Act of 1990 (RA 6955)
The Anti-Mail Order Bride Act mainly penalizes the acts of establishing or carrying on a
business the purpose of which is the matching of Filipino women for marriage to foreign
nationals either on a mail-order basis or through personal introduction, and of advertising
the same.
RA 6955 is mentioned in the Anti-Trafficking in Persons Act (RA 9208) which recognizes
and considers the matching of any person for marriage for the specific purpose of
prostitution, pornography, sexual exploitation, etc., as an act of trafficking in persons.
It may be said that RA 6955 criminalizes the business of matching Filipino women to foreign
nationals, whether the resulting marriage is legitimate or it turns out to be a mere front for
trafficking. On the other hand, RA 9208 punishes the matching of any person for marriage
when it is done specifically for the purpose of trafficking as defined therein.
RA 6955 does not mention any ICT as a means of carrying on the business of matching, as it
particularly states only “mail-order basis” and “personal introduction.” However, it does
penalize the manager of “television or radio station, or other media” for knowingly allowing
or consenting to the acts prohibited by the law. Also, the prosecutor or the court may
construe business and advertising, or mail to include its contemporary forms, that is, ecommerce and e-mail, so as to come within the purview of the law.
I. Anti-Sexual Harassment Act of 1995 (RA 7877)
The Anti-Sexual Harassment Act mandates heads of offices to issue rules and regulations
governing sexual harassment within their respective jurisdictions. The Civil Service
Commission (CSC) Administrative Disciplinary Rules on Sexual Harassment Cases (CSC
Resolution No. 01-0940) recognizes the commission of sexual harassment through some
ICT-related means such as texting and e-mail.
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Section of 53.C of the Rules defines and penalizes as an act of sexual harassment “telling
sexist/smutty jokes or sending these through text, electronic mail or other similar means,
causing embarrassment or offense and carried out after the offender has been advised that
they are offensive or embarrassing or, even without such advise, when they are by their
nature clearly embarrassing, offensive or vulgar” and other analogous cases.
J. Special Protection of Children Against Child Abuse, Exploitation and
Discrimination Act of 2003 (RA 7610)
The Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act
penalizes different forms of child abuse, namely (1) child prostitution and other sexual
abuse; (2) child trafficking; (3) obscene publications and indecent shows; (4) and other
acts of abuse, neglect, cruelty, exploitation, and other conditions prejudicial to the child’s
development.
Each of these forms of child abuse involve elements that may be realized through ICT.
Like the Anti-Child Pornography Act, this law amply protects female minors or girl children
and adult women who are “unable to fully take care of themselves or protect themselves
from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental
disability or condition,” who are included in its definition of “children” [Section 3(a)].
K. Electronic Commerce Act of 2000 (RA 8792)
The e-Commerce Act is the first ever law on ICT in the Philippines (and the third in
Southeast Asia). Its stated objective is “to facilitate domestic and international dealings,
transactions, arrangements, agreements, contracts and exchanges and storage of
information through the utilization of electronic, optical and similar medium, mode,
instrumentality and technology, to recognize the authenticity and reliability of electronic
documents related to such activities, and to promote the universal use of electronic
transaction in the government and general public.”122
It provides for the recognition and use of electronic commercial and non-commercial
transactions and provides penalties for the unlawful use thereof.
It gives validity and legal recognition to electronic documents, electronic signatures and
electronic transactions. Second, it facilitates the admission of electronic documents and
electronic signature as evidence in cases of disputes. Third, it penalizes unauthorized
access to information and interference in communications systems (i.e., hacking,
introduction of viruses and the like).
122
Section 3, RA 8792
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The law is useful in the prosecution of ICT-related VAW in matters concerning evidence, as
it gives legal effect or validity to electronic documents that constitute proof in ICT-related
VAW cases.
Local Ordinances
It may also be worthwhile to look into relevant local legislation or ordinances passed (and
executive orders issued) by local governments, to have an idea about the extent of
regulation of ICT-related VAW at the local level as well as the efficacy of using this front in
combating ICT-related VAW.
Two highly-urbanized cities, Quezon City and Davao City, have passed an ordinance (with
implementing rules and regulations [IRR]) that provides for a women or gender and
development code for the city. Davao City has had City Ordinance No. 5004 (The Women
Development Code of Davao City) since 1997. On the other hand, Quezon City passed its
Ordinance No. SP-1401, S‐2004 (An Ordinance Providing for a City Gender and
Development Code and For Other Purposes), largely patterned after the Davao City
ordinance, in 2004.
The two local laws are almost identical, even as to their voluminousness, both having over
70 pages of ordinance with IRR. They both define women’s rights based on the UN
Convention on the Elimination of all forms of Discrimination Against Women (CEDAW),
recognize VAW as a development concern, define VAW in accordance with the UN
Declaration on the Elimination of Violence Against Women (DICT-RELATED VAW), and
accordingly provide for mechanisms to empower women and promote and respect
women’s rights (e.g. support for women-survivors of violence).
As regards ICT-related VAW, the 1997 Davao City Code remarkably already recognized
“cyberspace” and “satellite TV” as means through which acts of trafficking in women, as
defined therein, may be committed. The Quezon City Code does the same, since it is
evidently modeled after the Davao City Code. Some forms of ICT-related VAW like the
operation of cybersex dens may come within the definition of “entertainment
establishments” which are subject of regular mandatory surveillance under both
ordinances.
Still, as far as criminalizing, prosecuting, and penalizing VAW (ICT-related or otherwise) is
concerned, the ordinances generally refer back to the Revised Penal Code and other penal
statutes. The recourse to national law is truer for the QC ordinance and its IRR, which
became effective after the Anti-VAWC Act of 2004 (RA 9262) and the Anti-Trafficking in
Persons Act of 2003 (RA 9208) were passed.123 Consequently, the ordinances do not
provide penalties for ICT-related VAW, particularly trafficking in women as defined therein,
except meting out the maximum fine and imprisonment that the local government can
impose as well as cancellation of business permit against establishments that operate as
conduit for sex tours.
123
The Davao City ordinance has most probably been deemed amended by these and other later laws as well.
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The resort to national criminal statutes is understandable, if not necessary or inevitable,
because the definition of felonies is largely the province of the State acting through
Congress. In fact, the Local Government Code124 limits the power of the Sangguniang
Panlungsod or City Council to approve punitive ordinances only to those imposing a fine not
exceeding P5000.00 or imprisonment for a period not exceeding one (1) year, or both in the
discretion of the court, for its violation. Also, ordinances can be implemented and enforced
only within the territorial jurisdiction of the local government unit concerned. Moreover,
local governments cannot contravene national laws in the exercise of their legislative
powers.
On the whole, local legislation as a venue for policy advocacy on ICT-VAW may be useful
only insofar as being a strategy to bring the implementation of national laws and programs
to combat ICT-related VAW to the local level.
There is as yet no available record regarding the enforcement of the penal provisions as to
VAW of the two ordinances.
Challenges and Gaps in the Existing Laws
As shown in the foregoing mapping of relevant Philippine laws, while it has been suggested
that some of these laws may be theoretically flexible enough to be applied to cases of ICTrelated VAW, the applicability of these laws has not been significantly tested. The general
notion, however, is that ICT-related VAW cannot as yet be effectively prosecuted, whether
due to lack of policy, lack of capacity, or the sheer impenetrability of new ICT. Nonetheless,
even if new criminal statutes need not be passed, there is still a clear need for legislative
efforts towards adapting procedural and investigative tools to the specificities of new
technology, which can include the issuance of rules or the institution of capacity-building
programs.
a. General Issues on Prosecution
The existence of the laws discussed above does not guarantee the prosecution of ICTrelated VAW. As generally recognized in available legal studies on the subject, the difficulty
in prosecuting ICT-related VAW largely lies in applying existing norms to a technology that
did not exist at the time the laws were drafted, which translates to an absence of specific
suitable policies, in turn requiring appropriate legislative action and policy advocacy. The
same is true for the Philippines.
While there is a definition of VAW in Philippine law, the same is not exactly true for ICTrelated VAW and its many different forms. Here begin the problems in prosecuting cases.
The major problems for prosecution include questions so basic as ascertaining the identity
of the offender; identifying the place of the commission of the offense, which is, in turn, a
124
Section 458(1)(iii)
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determinant of jurisdiction; and defining and proving the injury caused (question of
evidence). If these problems are not addressed, there is practically no prosecution to speak
of.
For instance, one of the known advantages of the Internet for criminals is the anonymity it
affords them. One can freely assume multiple false identities in cyberspace since there is as
yet no foolproof way of tracing a digital or cyber act to a real person.
In addition, to illustrate the problem of identifying the place of commission of the offense in
ICT-related cases: In a recent Philippine Supreme Court decision involving a criminal
charge of “Internet libel”125, the Court dismissed the case for failure to establish the
jurisdiction of the Makati regional trial court to hear the case. It held:
Venue is jurisdictional in criminal actions such that the place
where the crime was committed determines not only the venue of the
action but constitutes an essential element of jurisdiction. This principle
acquires even greater import in libel cases, given that Article 360, as amended,
specifically provides for the possible venues for the institution of the criminal
and civil aspects of such cases.
xxxx
If the circumstances as to where the libel was printed and first
published are used by the offended party as basis for the venue in the criminal
action, the Information must allege with particularity where the defamatory
article was printed and first published, as evidenced or supported by, for
instance, the address of their editorial or business offices in the case of
newspapers, magazines or serial publications. This pre-condition becomes
necessary in order to forestall any inclination to harass.
The same measure cannot be reasonably expected when it
pertains to defamatory material appearing on a website on the internet
as there would be no way of determining the situs of its printing and first
publication. To credit Gimenez’s premise of equating his first access to the
defamatory article on petitioners’ website in Makati with “printing and first
publication” would spawn the very ills that the amendment to Article 360 of
the RPC sought to discourage and prevent. It hardly requires much imagination
to see the chaos that would ensue in situations where the website’s author or
writer, a blogger or anyone who posts messages therein could be sued for libel
anywhere in the Philippines that the private complainant may have allegedly
accessed the offending website.
125
Bonifacio, et al. vs. Regional Trial Court of Makati, Branch 149, and Jessie John P. Gimenez, G.R. No.
184800 (May 5, 2010). Emphases (except underscoring) supplied.
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For the Court to hold that the Amended Information sufficiently
vested jurisdiction in the courts of Makati simply because the defamatory
article was accessed therein would open the floodgates to the libel suit being
filed in all other locations where the pepcoalition website is likewise accessed
or capable of being accessed.
It really does not take much to realize how the intangible instantaneous communication
that occurs in cyberspace, even transcending national boundaries, can go unregulated.
Thus, prosecuting offenses committed here is obviously very difficult.
b. Privacy Rights
Even assuming that the prosecution of ICT-related offenses is effective, the problem of
women’s rights vis-à-vis ICT is not entirely resolved. The crimino-legal approach to ICTrelated VAW generally looks at ICT as a site of women’s oppression and does not consider
it a space for women’s empowerment. This dual nature of ICT is a fact, and a wholistic legal
approach should regard both: Women’s rights in relation to ICT should be both protected
from harm and promoted to enable women’s fullest exercise of their agency.
If the State considers cyberspace as public space subject to government regulation, the law
should also recognize and safeguard certain activities in cyberspace as an exercise of
protected freedoms or as occurring within protected zones of privacy, and see to it that the
prosecutorial arm does not unduly restrict this exercise.
c. Need for Prevention
The range of responses to ICT-related VAW discussed in available references does go
beyond prosecution to include preventive as well as self-help measures. Often, these
measures involve the use of ICT itself to combat ICT-related violence.
Chawki and Wahab (2004) opines that understanding what human trafficking is and how it
can be committed should be coupled with law enforcement officers’ awareness of the
tactics that are commonly used to combat this crime. Preventive measures should first aim
at effectively monitoring the Internet, introducing codes of good practice, filtering systems,
etc. For some researchers, proposals for a [European] network of hotlines, filtering and
rating systems, self-regulation, codes of conduct, encouraging awareness actions and
assessing legal implications will reduce victim abuse. However, such policy will unlikely
stop predators on the Internet. On such a basis, it is submitted that combating trafficking
requires the implementation of both short and long term measures.
In the short term, one possible measure is to seize and confiscate the benefits from
trafficking for the purpose of sexual exploitation. In the long term and in general, human
trafficking should be subject to a global principle of public policy that aims at combating
and preventing this form of organized crime through raising global awareness and
increasing literacy rates, promoting economic development, improving social conditions in
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least developed source and transit countries, coordinating legislative efforts on national,
regional and global levels, and establishing a high level global network of cooperation
between national, regional, and international enforcement agencies and police forces.
Specifically, they recommend:
␣ The human rights of trafficked persons must be the center of all efforts to
combat trafficking. These human rights must be protected at all stages of the
trafficking spectrum. In combating trafficking through law enforcement, it is
important not to criminalize trafficked persons, but instead to address their
special concerns while being diligent to hold perpetrators accountable.
␣ Combating trafficking in human beings requires rights based approach
supported by the State’s criminal justice system. This approach will be
multidisciplinary incorporating a criminal justice response to prevent crime and
deter offenders and a human rights response to protect and defend the rights
and integrity of the trafficked persons.
␣ The Recommended Principals and Guidelines provide that States should
ensure that legislation prevents trafficked persons from being prosecuted,
detained or punished for the illegality of their entry or residence or for the
activities they are involved in as a directed consequence of their situation as
trafficked persons.
␣ An effective law enforcement response requires national legislation policy,
procedures and practices to be harmonized with international norms and
standards and incorporated in national plans and programmes. National plans of
actions should be used to build links and partnerships between governmental
institutions involved in combating trafficking and/or assisting trafficked persons
and relevant sectors of civil society.
␣ States should ensure that measures against trafficking don’t have an adverse
impact on the rights and dignity of those who have been trafficked.
␣ Finally, an effective law enforcement response requires enforcement of the
law, as the best law is irrelevant if it is not put into use.
In the 2011 Trafficking in Persons Report126 released by the United States Department of
State, new and social media platforms, whether issue-specific media or far-reaching
platforms such as Facebook and Twitter, were mentioned as powerful tools for the antitrafficking movement. The Report cited recent events in the Middle East and North Africa,
where these media have empowered grassroots activists with an unprecedented means to
disseminate information about and foster popular movements against modern slavery. It
named as an example websites such as www.change.org, which launches petitions and
126 http://www.state.gov/documents/organization/164452.pdf
accessed 28 June 2011. See page 35.
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shares news and information to draw attention to human trafficking issues. The Report
thus noted the ability of new media to serve as tools for raising awareness, sharing best
practices, and demanding government action. Nonetheless, it said that in order for the antitrafficking movement to realize the full potential of new media, these media should not just
be a tool for NGOs and civil society to disseminate information; they should also be a
resource for helping governments strengthen their anti-trafficking efforts. For instance,
using a global network to share training materials, intelligence, and success stories may
enhance government efforts in capacity building for law enforcement and criminal justice
systems. New media can also serve to track modern slavery as it crosses borders, helping
countries work together with shared information so that anti-trafficking efforts are not
isolated as individual domestic concerns.
Analysis on the Prevailing Legal Framework: Reactionary, Protectionist and
Ineffective
The mapping of laws revealed that the laws are often reactionary and protectionist in
approach. This is found to be limiting in promoting women’s empowerment and looking at
women as active agents exercising their right to self-expression and sexuality. This reflects
the sexist and patriarchal legal culture and the lack of gender responsiveness in the legal
system which fails to take into account the substantive equality of women, particularly on
issues on ICT, VAW and sexuality. The compounded complexity of ICT-related VAW
challenges the existing and limited legal responses of the State.
In terms of substantive protection against ICT-related VAW, the country, among others
have the Anti-Photo and Video Voyeurism Law, the Anti- VAWC Law, the Anti-Trafficking
Law, the Anti-Child Abuse, Anti-Child Pornography laws, and also the provisions of the
Revised Penal Code. For the taking, uploading or copying by any person of sexual acts or
similar activities, resort may be had with the Anti-Photo and Video Voyeurism Law. For
ICT-related VAW committed by men/women with whom the woman has had previous
dating relationship, remedy may be found under the Anti VAWC Law; for trafficking
through internet pornography, there is the Anti-trafficking law, while the two laws on
children may be invoked in cases of child pornography. The question however is not only
on the existence of laws, although the same, for purposes of legislative advocacy is a valid
question, but on how effectively these laws are being implemented in order to afford
remedies for women victims of ICT-related VAW.
As previously discussed, ICT-related VAW on the individual level may be committed by
acquaintances or by complete strangers. In the former, it is possible to identify the
perpetrator --- thus the dating relationship requirement under the Anti-VAWC law may be
proved and the law may be used. However, in cases of complete strangers who commit
cyberstalking or harassment, RA 9262 may be difficult to use as it would be difficult if not
impossible to establish the previous dating relationship required under the Anti-VAWC
law. Additionally, there is also the very practical problem of establishing the identity and
the location of the perpetrator, which also makes the use of the Anti-Voyeurism Law
difficult.
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In cases of syndicated ICT-related VAW, prosecution under the Anti-Trafficking law under
the clause “hiring, maintaining, and harboring women for sexual exploitation for purposes
of Internet pornography” has been resorted to by law enforcement officers, however,
difficulty has been expressed with regard the successful prosecution of the cases and of the
‘weakness’ of cyber trafficking as a case. For one, law enforcement officers have expressed
that the women they have rescued from trafficking were often complicit to the act such that
even if consent of the woman is not a bar for the prosecution of the offense, and even if an
affidavit of desistance by the women is not given any weight, the lack of cooperation from
the victim adversely affects the prosecution of cases.
In instances where the perpetrators/the syndicate are located outside of the country,
prosecution becomes even more difficult if not impossible. Here the problem of jurisdiction
comes in. This is further compounded by the fact that social network sites like facebook,
yahoo and youtube, which may be used in the commission of ICT-related VAW are based
outside of the country. Though the request to take down content may be favourably acted
upon by these sites upon proper request, the specific request for information for purposes
of prosecution would not be available as the same would already run counter against
privacy rights. And in most instances, request for private content from such sites may be
made available only through orders issued by courts with jurisdiction over these social
networking sites.
With the foregoing, these questions are worth asking: one, whether we have sufficient laws
or not to address ICT-related VAW and the other, on how effectively existing laws are being
implemented. There is, too , the more practical consideration: what women may do in the
face of ICT-Related VAW. This does not always mean the filing of criminal cases in court,
for as previously seen, this may not be the best way to proceed considering problems of
identity, location, jurisdiction or the basic implementation of existing laws. On the
individual level of ICT-Related VAW, it could mean the most basic and immediate concerns:
how to stop the abuse/violence from happening, how to take down content and how to
prevent the same from further spreading. In cases of syndicated ICT-related VAW, it could
mean, the rescue of women victims and the provision of immediate support services. Of
course, court action and prosecution are valid courses of action, only that they should not
be the only courses of action, especially so, when in our country court actions take decades
or more to reach its resolution and especially so when the evidence in ICT-related VAW are
often electronic requiring expertise for access and subsequent presentation in courts of
law.
Lastly, in this section too, it is worth mentioning that the law, in being reactionary and
focusing solely on criminalization run the risk of later trampling on the rights regime.
Instead then of calling for the passage of more laws on, say, cyber trafficking or cyber
prostitution, this research calls for a carefully studied approach on the matter as to avoid
going into or trampling individual rights to privacy and self expression.
To make a point, the Anti-trafficking law, though existent and used by law enforcement
officers in pursuing traffickers have not been effective in convicting as many traffickers as
apprehended. The existence of the article on vagrancy in the Revised Penal Code which
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criminalizes prostitution has been used by traffickers to gain a leverage as against women
victims of trafficking. Instead then of pursuing cases of trafficking, women cower, for fear of
retaliatory charges.
Second point, the country’s anti-child pornography law punishes mere possession of
materials considered by the law as constituting child pornography. This has been criticized
for its sweeping definition and lack of safety measures as it can penalize what may
otherwise have been legitimate acts. This is not to say that we should not have child
pornography laws, but that legislations, before adopted and enacted must be carefully
studied in all its aspects, so as not to fall into mere criminalization and protectionism, to the
detriment of other protected rights and freedoms.
To further expound on the matter, it is pertinent to cite the recently passed internet use
regulation in India. In said law, the government requires that any comment considered
objectionable be removed by the host site within 36 hours after receiving complaint. The
regulation’s definition of what should be taken down includes anything which is - "grossly
harmful, harassing, blasphemous defamatory, obscene, pornographic, paedophilic,
libellous, invasive of another's privacy, hateful, or racially, ethnically objectionable,
disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful
in any manner whatever127." Anything which - "threatens the unity, integrity, defence,
security or sovereignty of India, friendly relations with foreign states, or public order or
causes incitement to the commission of any cognisable offence or prevents investigation of
any offence or is insulting any other nation," must also be removed.
Said regulation likewise require internet cafes to register with a central government
agency, keep records of the name, address, photo, and browsing history of visitors and
submit this to the agency . The government also requires the preparation of a monthly log
register showing date-wise details on the usage of the computer resource and the
submission of hard and soft copies of the same to the government.
The passage of the above mentioned regulations has raised alarms among the 80 million
internet users in India, concerns on civil liberties: the right to privacy and the freedom of
expression has been raised in the passage of the regulation. Although the government has
explained that the measure is necessary price to pay for national security, campaigners
against the regulation hope for change.
It is in this situation of India, and likewise in other countries where, as the Google Policy
Paper reports, that governments control and filter internet access (China, Iran, Pakistan,
Saudi Arabia, South Korea, and Vietnam)128, that we see the need to balance the right to
privacy and self expression with that of state intervention. In the desire to protect, against
hate speech, internet pornography or as the Indian regulation terms it “objectionable
127
Vaidyanathan, Rajini Freedom Fears of India’s Web users http://www.bbc.co.uk/news/technology-13508025
128Bradsher,
Keith and Claire Cain Miller. Google Sees Rules Violation s on Limits on Internet Access.
http://www.nytimes.com/2010/11/17/technology/17google.html
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content”, a clamp down on civil liberties , the right to privacy and freedom of expression
may happen. This research positions in that such should not be allowed to happen. Yes,
there is an obvious need to balance privacy rights and self expression with state
intervention. Mere protectionism and criminalization, without looking into proper
safeguards for civil liberties, is not the way to go, for then what is used to protect women,
would later be used to justify violations of privacy, self expression, and government
surveillance.
A Working Framework: The Continuum of VAW and Empowerment
The research hinges on the standpoint that VAW is not fragmented, it is a continuum.
Resonating Liz Kelly’s concept of “Continuum of VAW”, VAW is not necessarily deviant and
episodic, but rather, normative and functional – an everyday context for the lives and
experiences of women and girls all over the world. The idea of continuum is not to be taken
to mean a hierarchy of seriousness or severity. It reflects the continuum of complex and
interlinked experiences of harassment, violation, abuse, assault in the lives of individual
women.129
The study does not regard ICT-related VAW differently as traditional VAW. This posits
trivialization of ICT-related VAW, with the traditional VAW as the “real” or graver VAW.
The study emphasizes that ICT-related VAW causes serious harm to women as do
traditional VAW. With the continuum of VAW is the continuum of empowerment where
women find empowerment and exercise of her rights to sexuality and self-expression amid
these harms.
Conceptual Shifts in VAW: from victimization to empowerment discourses
What then, would be the manner by which we are to frame ICT-related VAW? What then
are the proper responses? The previous section ended in the note that mere protectionism
and criminalization cannot be the way to go. It does not help to see women only as victims
devoid of agency and empowerment, this view is supported in the current conceptual shifts
in the framing of violence against w0men as explained and expounded by the UN Special
Rapporteurs on VAW in its 15 year review of its VAW mandate.
The expert views of the Special Rapportuers on VAW revealed that there have been
conceptual shifts/gains of the SRVAW within the fifteen year period. These covered the
following: a) moving beyond the law; b) the path from victimization to empowerment; c)
sexuality and violence; d) demystifying discourses; and e) intersectionality of
discrimination and continuum of violence.
The conceptual shifts/gains in the understanding of VAW first mentioned, focused on
moving from the narrow conception of treating VAW largely within welfare/humanitarian
paradigm, with women as “poor victims in need of protection,” to an expansion of human
129
Liz Kelly, ‘The Continuum of Sexual Violence’ (1987).
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rights scrutiny “past symptoms of gender inequality that become manifest as distinct forms
of violence to look at structural and ideological causes that underlie the problem beyond
the injury caused130. Instead then of merely criminalizing acts falling within the definition
of VAW and the traditional notions of state responsibility, this conceptual shift:
“views VAW as an outcome of gender discrimination that shapes social,
economic, cultural, and political structures, rather than being independent of
them. As a consequence, the State is obligated not merely to protect against
violence, but rather to eliminate its “causes” -- -that is, gender discrimination
at structural, ideological and operational levels – as well as to bear the
responsibility for addressing its consequences131
Closely related to the concept of moving beyond law in addressing VAW is the shift from
victimization towards empowerment in the VAW discourse. The UN Special Rapporteur for
VAW recognized the Feminist critique of the VAW mandate which focused too much on
women as victims needing to be rescued, which elicit imperialist, protectionist or charity
based responses. In recognition that such does not address the root of the problem and
would only reinforce existing stereotypes, Special Rapporteur Yakin Ertuk clarified that the
victimization approach is a result of a short-sighted interpretations and treatment of
violence as an isolated phenomenon, she thus argued that:
“The United Nations mandate for the elimination of VAW entails tackling the
root causes of the problem at all levels, from the home to the transnational
arena. Such a call is also inherent in the prevention obligation of due
diligence standard. Therefore, perceived within such framework, the
“violence against women agenda” intrinsically challenges aspects of everyday
life that are taken for granted, and necessitates a shift of focus from a
victimization approach to one of empowerment. The former sees women as
weak, vulnerable and in need of protection , whereas in the latter approach,
women are seen to be subjected to violence not because they are vulnerable,
but because of a gender order that privileges male violence through
normative and institutional formations in society.132”
Yakin Ertuk, thus stresses the recognition that “violence is not an isolated incident
targeting vulnerable women but a systematically used tool of partriarchal control to ensure
that ‘women stay in their place’ and that the agenda for the elimination of VAW is not about
victimization but rather about the empowerment of women to overcome and eventually
change patriarchal hierarchies133.
130
The UN SRVAW page 33
The UN SRVAW page 34
132
UN SRVAW page 35
133133
UN SRVAW page 35 citing Yakin Ertuk, “Violence Against Women: From victimization to empowerment,”
paper presented at ESCAP forum titled “Where’s the power in Women’s empowerment?’ held in Bangkok, 4
August 2008.
131
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Applying the first two conceptual shifts then, which is a call for moving beyond the law, and
a call from victimization towards empowerment – it becomes obvious that protectionism
through criminalization is not seen by the Special Rapporteur on VAW as the sole solution
to the problem. Substantive protection through laws are part of the solution but certainly
not the sole solution. For of what use are the laws protecting women from violence when
the same remains unimplemented and when the underlying causes of VAW continue to be
unaddressed? The report of the Special Rapportuer thus explains that there is a need to go
beyond the law, and beyond seeing women as helpless victims which merely reinforce
stereotypes. There is a need to look into the root cause of the problem—that of structural
inequality and patriarchal hierarchies --- and to address the same, not by protectionism but
by empowering women. Yakin Ertuk thus elaborates on empowerment discourses as:
There is then a need, not only to look into VAW in ICT, and how to protect women from the
same, but also to delve into empowerment discourse. Yakin Ertuk describes the aim of this
discourse in the following manner:
“Empowerment discourse – through interventions ranging from education,
skills, training, legal literacy, access to productive resources, among others –
aims to enhance women’s self-awareness, self-esteem, self-confidence and
self-reliance. This enables women to understand that subordination and
violence are not fate; to resist internalising oppression, to develop their
capabilities as autonomous beings; and constantly negotiate the terms of
their existence in public and private spheres.134”
The next conceptual shift pertains to sexuality and violence. In the report of the Special
Rapporteur, it was once again reiterated that the root cause of VAW is the unequal power
relation between men and women founded upon differential gender-based norms. It was
stressed that these unequal gender relations derive from “the dominant notions of
women’s sexuality and of masculinity that establish dual moral standards for women and
men.” The report stressed that these dominant notions of female sexuality as informed by
patriarchal society have shaped protectionist laws. These laws that refer to women’s
chastity, closure of rape cases upon marriage with the rapist, non-criminalization of marital
rape, adultery laws and restrictions regarding relationships outside ethnic, religious or
class boundaries are seen as ways of policing women’s sexuality within a dominantly
patriarchal society.
The report thus links the different forms of VAW in the manner by which female sexuality
is controlled in the family (e.g. focus on/giving premium to chastity), in the community (e.g
protectionist laws on rape and sexual assault law which focus on chastity), and in armed
conflict (e.g. wars of men waged in women’s bodies), and the different forms of VAW. The
report further stated that gender based violence is often used as an instrument to control
female sexual behaviour in ways that cast women as male property or punish women who
transgress sexual norms. In country communications for example, cases were brought to
the attention of the Special Rapporteur regarding retributions faced by women for their
134
Un SRVAW page 35
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expressions of reproductive or non-reproductive sexual activity as well as for expressions
of heterosexual or non-heterosexual sexuality. Other communications included torture and
risk of sexual violence for women detained by reason of sexual orientation; there are
communications in relation to honor crimes committed by family members to women due
to premarital sex, adultery or failing to prove rape.
On the part of women’s rights advocates, there is a need to continue rejecting this male
conception and framing of women’s sexuality. There is a need to reject protectionist
measures which merely strengthen existing stereotypes or those which are informed by
men’s conception of women’s sexuality. Instead, there is a need to look more into women’s
empowerment and agency and for the fulfilment of the sexual rights of women as likewise
stressed by the Special Rapporteur: a) the inclusion of same sex unions within the
expanded definition of sexuality; b) the reaffirmation of reproductive and sexual rights; c)
reiteration of Cairo statement that “all human beings have a right to a safe and satisfying
sex life.
Applying the third conceptual shift then, which pertains to sexuality and violence, and
looking at how the male enforced conception of women’s sexuality has frequently led to
gender based violence, there is a need to look into what and how sexuality is for women. As
the report of the Special Rapporteurs have consistently stressed the manner by which
women’s sexuality is defined by men and/or even forced by men on women, there is then
the need to look into what is sexuality, how it relates to ICT-related VAW, and how sexual
expression and freedom through ICT may be distinguished from sexual abuse and
exploitation.
Women’s Sexuality: Sexual expression and freedom vs. Sexual abuse
Sexuality and sexual rights are defined by the World Health Organization in the following
manner:
Sexuality is a central aspect of being human throughout life and
encompasses sex, gender identities and roles, sexual orientation, eroticism,
pleasure, intimacy and reproduction. Sexuality is experienced and expressed
in thoughts, fantasies, desires, beliefs, attitudes, values, behaviors, practices,
roles and relationships. While sexuality can include all of these dimensions,
not all of them are always experienced or expressed. Sexuality is influenced
by the interaction of biological, psychological, social, economic, political,
cultural, ethical, legal, historical, religious and spiritual factors.
Sexual rights embrace human rights that are already recognized in national
laws, international human rights documents and other consensus
statements. They include the right of all persons, free of coercion,
discrimination and violence, to: (1) the highest attainable standard of sexual
health, including access to sexual and reproductive health care services; (2)
seek, receive and impart information related to sexuality; (3) sexuality
education; (4) respect for bodily integrity; (5) choose their partner; (6)
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decide to be sexually active or not; (7) consensual sexual relations; (8)
consensual marriage; (9) decide whether or not, and when, to have children;
and (10) pursue a satisfying, safe and pleasurable sexual life. The responsible
exercise of human rights requires that all persons respect the rights of
others.135
Under International law, particularly, CEDAW, and as expounded by the Beijing
Platform for Action (1995), women’s fundamental right to control and make decisions
about their body, identity and sexuality is an integral part of their full development and
empowerment. Women’s human rights include their right to have control over, and decide
freely and responsibly on, matters related to their sexuality, including sexual and
reproductive health, free of coercion, discrimination and violence. The Platform for Action
produced by the Beijing Conference in 1995 took steps forward towards affirmative sexual
rights, going beyond reproduction, sexual health and freedom from sexual violence:
“Equal relationships between women and men in matters of sexual relations
and reproduction, including full respect for the integrity of the person,
require mutual respect, consent and shared responsibility for sexual
behaviour and its consequences136”
Having discussed of what constitutes sexual rights for women, and what are covered
by these sexual rights, there is also the need to locate and to look into how sexuality is
framed in feminist discourses before we can proceed in looking into the role of ICT, not
only in the perpetration of VAW but also in the exercise of women’s agency and
empowerment, their self-expression and sexual rights.
Why exclusive categorizations cannot work
For Feminists, it has been articulated that “claims to rights in relation to sexuality have
largely been about safety, bodily control, sexual self-definition, agency and pleasure.” The
on-going feminist discourse on sexuality involve that of radical and libertarian views, as
well as those negotiating between the two extremes. Two camps generally figure in the
discussion of sexual rights:
In the last four years, there has been an increasing polarization of American
feminist into two camps on issues of feminist sexual morality. The first camp,
the radical feminists, holds that sexuality in male dominant society involves
danger – that is, sexual practices perpetuate violence against women. The
opposing camp, self-styled “anti-prudes,” I term “ libertarian feminists,” for
135
International Council on Human Rights. Sexuality and Human
(2009)http://www.ichrp.org/files/reports/47/137_web.pdf page. 10
136
As cited in Leonore Tiefer, The Emerging Global Discourse of Sexual Rights
Rights:
A
Discussion
Paper.
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whom the key feature of sexuality is the potentially liberating aspects of the
exchange of pleasure between consenting partners.137”
More in line with the radical feminists, Catharine MacKinnon situates/locates sexuality
within a theory of gender inequality, meaning the social hierarchy of men over women”.
She thus states:
“A theory of sexuality becomes feminist methodologically, meaning feminist
in the post-marxist sense, to the extent it treats sexuality as a social construct
of male power: defined by men, forced on women, and constitutive of the
meaning of gender. Such an approach centers feminism on the perspective of
subordination of women to men as it identifies sex -- -that is, the sexuality of
dominance and submission– as crucial, as fundamental, as on some level
definitive, in that process.”
For Mac Kinnon, sexuality in feminist light is seen as a “pervasive dimension of social life,
one that permeates the whole, a dimension along which gender occurs and through which
gender is socially constituted; it is a dimension along which other social divisions, like race
and class partly play themselves out.” She explains that sexuality is shaped not only under
conditions of gender inequality but that sexuality itself is a dynamic of the inequality of the
sexes. Thus:
“Dominance eroticized defines the imperatives of its masculinity submission
eroticized defines its femininity. So many distinctive features of women’s
status as second class-- the restriction and constraint and contortion, the
servility and the display, the self-mutilation and requisite presentation of self
as a beautiful thing the enforced passivity, the humiliation ---are made into
content of sex for women. Being a thing for sexual use is fundamental to it.”
MacKinnon further discussed the sexual objectification of women in her article, moving on
to the discussion on pornography where she cites the work of Dworkin in “Pornography:
Men Possessing Women”. She cites Dworkin in that “pornography is not harmless fantasy or
a corrupt misrepresentation of otherwise natural healthy sex, nor is it fundamentally a
distortion, reflection,projection, expression, representation, fantasy or symbol of it.
Through pornography, among other practices, gender inequality becomes both sexual and
socially real”
The previously discussed conceptual shift on VAW on moving from victimization to
empowerment – would however prevent us from totally agreeing with Mackinnon. Indeed,
that women’s sexuality has been and is being shaped by men is acknowledged. That the
same is a social construct and informed by male dominated and patriarchal society is
likewise acknowledged. However, in order to prevent from falling prey to victimization,
and in order to prevent reinforcing stereotypes, there is a need to go beyond dichotomizing
and categorization. There is a need to move beyond seeing women solely in the role of
137
Ann Ferguson
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‘victims’ needing protection to explore as well the exercise of women’s agency and
empowerment, as well women’s self expression and enjoyment of sexual pleasures.
Situated as it is within the context of gender inequality as stressed by Mac Kinnon, there is
also the valid discussion on empowerment and agency which cannot all together be
excluded in the discussion of sexuality. Ilene Philipson (1984) expressed this need to
abandon exclusionary categories in sexuality discourse, she says:
In a society characterized by male domination it is impossible to want just
freedom, on the one hand, or just protection, on the other. As long as women
are routinely raped and battered, and such rape and battering are glorified in
both pornography and mainstream media, as long as women are
systematically denied equal access to jobs and earn half what men do, and as
long as women have primary responsibility for child rearing, which often
causes them to live in poverty, protection is a necessary feminist demand.
It also does not mean that the questions of sexual fulfilment, pleasure, and
excitement should be absent from feminist discourse. It does mean, however,
that we should abandon simple-minded, exclusionary categories in the
discussion of sexuality and begin the difficult task of understanding the
connections between behavior and fantasy, sexual expression and object
relations, and sexual activity and ideology.
How then do we distinguish the exercise of sexual freedom and expression from that of
sexual abuse? And in the field of ICT, how do we distinguish when an act is a woman’s self
expression and exercise of sexuality versus sexual exploitation through ICT? What we have
here is then a question of “ freedom from” and “freedom to”. This has been expounded by
Alice Miller (2000) and many others as the tension between “protectionist” sexual rights
(i.e. the right to be free from sexuality-based interferences with human rights such as
bodily integrity or privacy) and “affirmative” sexual rights (i.e. asserting the right to sexual
diversity, pleasure or self-expression)138.
In response to the query posed above, this research proposes that the determination be
contextualized in every case, with the crucial issue being the woman’s agency and selfdetermination in the process. Agency and self-determination here is defined to be in its
fullest, exercised free from force, coercion and intimidation. Exercised from the stand point
where a woman can truly choose and not from a disadvantaged position begging or short of
acquiescence, such as exploitative conditions prevalent in syndicated operations of
prostitution and cyber sex dens.
The premium given on women’s agency stems from the conceptual shift that there should
be move from victimization to empowerment. We thus avoid a sweeping statement that all
women are static victims but look into different situations of women in different contexts
and how they exercise and negotiate their agency in said contexts. We have to acknowledge
138
As cited in Leonore Tiefer: The Emerging Glboal Discourse of Sexual Rights.
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that women react, women respond and women can choose to respond by empowering
themselves. A clear-cut resolution may not be provided through this discussion, but the
purpose more would be to expose a more nuanced view on said issues instead of a
sweeping call for criminalization.
Camgirls: self-expression, sense of identity and community
An interesting case in point here would be the study of Theresa Senft on camgirls. Senft
wrote Camgirls: Celebrity and Community in the age of Social Networks and who in the
process of writing her research, became a camgirl herself. Senft’s study was an
ethnographic study of camgirls: women who broadcast themselves over the web for the
general public while trying to get a measure of celebrity in the process. In said study, Stenft
explained that she was concerned on the question of “what does it mean to speak of the
personal as political in a network society?” She states:
“The notion of network society has always been problematic for feminists. At
one level, networks allow political affiliations among strangers who are at
geographic distances. At another level, networks enable the phenomenon
known as globalization, with its exploitation of women's labor, and the
feminization of work in general. Networks are also responsible existence of a
publicity culture that simultaneously encourages women to “"represent"”
through confession, celebrity and sexual display, yet punishes too much
visibility with conservative censure and backlash.”
In discussing the earliest of Camgirls, Senft explored how these individual camgirls
combine theatrical authenticity, branding and celebrity in order to make names for
themselves on the Web. She discussed how camgirls both control and are being controlled
by their audience. She demonstrated the complexity of the camgirl world and as described
by Jennifer Motter’s review of her book:
“She disproves the rumors that all camgirls’ video content is pornographic,
which is often assumed due to the frequent use of webcams to capture nudity
and sexual acts in exchange for money. In contrast, the camgirls she studied
use webcams as a vehicle for self-expression sense of identity and
community when they connect with others who share their personal stories
in virtual spaces. 139”
In her conclusion, Stenf provides for several recommendations for feminists in a networked
society. One of these recommendations include thinking heretically and taking ethichal
actions, she explains:
“My third recommendation for feminists in a networked society is to
think heretically about some of our most dearly held beliefs,
particularly regarding sex work and young people’s sexuality, ideally
139
Motter, Jennifer. Book Review on Senft’s CamGirls http://explorations.sva.psu.edu/vcg/5vol/Motter.pdf
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taking our cue regarding appropriate lines of dialogue from children
and sex workers themselves. I am not advocating pre-teen sexual
activity. Nor do I champion the sex positive notion that all sex work
under any condition is liberating, so long as I choose it for myself. I am
simply urging a relational, individual and local approach to these issues
rather than the current universal, abstract and global dictates
exemplified by the Bush administration.
In essence I am talking about ethics in micropolitics…I believe that
micro politics sets the stage for macro politics by rendering people
receptive, non-receptive to messages or plan of action. On the Web,
micropolitical tele-ethical acts might include, among other things,
online dialogues, building communities, ‘outing’ oneself online, and
even intervening when someone’s safety is at stake, as in my own
story140” (emphasis supplied)
Aside from the discussion on the complex lives of camgirls, micro politics and teleethicality on the web, Senft has likewise highlighted the usefulness of the on line spaces
and on line community for women. She has confessed that she takes the needed support in
instances of abuse from her online community, and in her recommendations, she
forwarded the solidarity among women in on line spaces. Sneft thus, like Gurumurthy and
others, recognize the empowering nature of these online spaces.
Cyborg Manifesto: a creature in post-gender world
Like Senft, Donna Haraway in her “Cyborg Manifesto” asserts that consciousness of
exclusion through naming is acute. She cautions that “painful fragmentation
among feminists (not to mention among women) along every possible fault line
has made the concept of woman elusive.” Haraway in her concept of cyborg defines it
as “a cybernetic organism, a hybrid of machine and organism, a creature of social
reality as well as a creature of fiction.”
The cyborg, according to Haraway, is a matter of fiction and lived experience that
changes what counts as women's experience [in the late twentieth century]. The
cyborg is a condensed image of both imagination and material reality and is a
creature in a post-gender world. As alternative to the perspective that cyborg
works is about the final appropriation of women's bodies in a masculinist orgy of
war (Sofia, 1984) such as in Starwars; Haraway underlines that a cyborg world
might be about lived social and bodily realities in which people are not afraid of
140
Senft, Theresa Camgirls: Celebrity and Community in the Age of Social Networks. (2008)
http://uel.academia.edu/TheresaSenft/Books/130671/Camgirls_Celebrity_and_Community_in_the_Age_of_Social
_Networks
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their joint kinship with animals and machines, not afraid of permanently partial
identities and contradictory standpoints. With this, she points out that “the
political struggle is to see from both perspectives at once because each reveals
both dominations and possibilities unimaginable from the other vantage
point.”Single vision produces worse illusions than double vision or many-headed
monsters, as Haraway noted.141
Pornography: celebration of life, procreation and love
May Ling Su, a Filipina who is now residing in the US owns and manages her own porn site.
She poses nude photos and sex videos in her site. In a response to a letter written to her,
she shares her view that porn is as important to society as sex is important to the human
experience. To her, pornography is a “celebration of life, procreation, love”. She questions
why depicting sex in films is a taboo while depicting murder in films has been considered
legal.
When questioned about some feminists’ criticism of pornography as making money out of
women’s bodies, May Ling Su explains that among the considerations people have in
entering careers is that whether it would be a viable way to make a living. She started out
as an actress/ singer performing on state and TV. It was when she married that she and her
husband explored around cameras and tried posting online. She enjoyed the process saying
that “performing sex for an audience came naturally to me.” She said she was good at it, and
willing to learn more stunts. She enjoys sex in many ways.
She describes that the main advantage as she makes her own porn at her home as against
being employed in legitimate shows is that, she “calls the shots”:
“The main advantage to making my own porn at home versus being
employed in legit shows is that I call the shots. I decide who I have sex
with, when and how. Time is the biggest advantage. I’m sure you
know that doing shows on stage and TV takes up so much time! I get
to be a stay-at-home mom and raise my own child. It’s a challenge
scheduling work around when my kid is at school, but at least I’m in
control of my schedule.” 142
On feminists’ critique on pornography she further countered:
“I think feminists who criticize porn for “making money out of
women’s bodies” have good intentions, but their criticism is not
targeted correctly. It’s not porn that is the problem, it’s slavery in any
form – it could be a domestic helper that is not being paid just wages,
just as much as it could be a sex worker. If a woman decides to make
141
Haraway, Donna, “Cyborg Manifesto” http://www.stanford.edu/dept/HPS/Haraway/CyborgManifesto.html
142
May Ling Su http://maylingsu.com/2009/10/feminism-porn-philippines/
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money using her body, whether it’s for sex, or household chores, or
performance, or athletics, that is her choice and she deserves respect.
Respect means that she gets compensated well and treated well as a
person.”143
She explained the reasons why she makes porn:
I make porn because human sexuality is a study worth undertaking. My body and its
pleasures is a frontier worth exploring.144
For Mau Ling Su, expressing ambivalence for her porn life reflects that she lives a mindful
existence; that is to follow a path that is not well-trodden. She examines her life constantly
and considers it a form of meditation. 145
Spaces for agency and empowerment
Women’s exercise of their agency, empowerment, self-expression and sexual rights
through ICT is likewise seen in APC’s “Erotics: Exploratory Research on Sexuality and the
Internet”. In said research, the manner by which the Internet facilitates the exercise of
sexual rights and expression of sexualities, particularly of women living in different sociopolitical, economic and cultural contexts were explored. It focused on five countries: India,
Brazil, Lebanon, South Africa and the United States.
The research in part revealed how, in India young women negotiate risks on line, using the
medium to explore, define and challenge boundaries of gender and sexual norms
(pleasures and dangers) while at the same time exercise self-regulation for their own
safety, these include internalizing social norms on what may be ‘appropriate to post in
social networks’ to avoiding revealing one’s true location and identity in on line forum.
In the research from Brazil, it was explored how online social networking sites serve as
privileged means of communication for LGBT public, and how these sites become platforms
allowing people whose sexual orientations, experiences or identities are marginalized to
meet and socialize online, free from discrimination.
This is likewise true in the research from Lebanon which sees the use of ICT to express
sexual identities, negotiate anonymity and privacy on line and organizing queer issues
within Arab blogsphere.
The research from South Africa likewise sees the internet as potentially a space for the
struggles of minority groups, a place to cohere and provide sufficient resistance to protect
freedoms and human rights and to challenge construction of gender order since the
research focused on transgender and lesbian use of ICT.
143
May Ling Su http://maylingsu.com/2009/10/feminism-porn-philippines/
May Ling Su http://maylingsu.com/2007/10/give-up-porn/
145
Ibid.
144
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Last, the research from the United States focused on access and restriction to information
about sexuality in libraries across US and how legitimate LGBT NGOs and other sites are
filtered and arbitrarily blocked. Nevertheless, “Erotics” taken together speak of how ICT
and the internet provide spaces for agency and empowerment not only for women but also
for the LGBT community.
Empowerment Discourses through ICT
A networked society is a double edged sword, as Senft would state. Even in the existence of
online abuses and of ICT-related VAW, the field of ICT, the online world and online spaces
are legitimate battle grounds. The APC paper “Erotics” have shown the same, not only for
women but also for LGBT communities. Jeniffer Motter in her review of Senft elaborates
that:
“Feminist efforts are needed in both the physical and virtual world. Virtual
feminist consciousness-raising efforts may facilitate social justice when
women’s share their personal experiences of abuse, rape, isolation, abortion,
sexuality, marriage, family, and body image portrayal by the media, and,
subsequently, the group recognize these experiences as structural and
socially-institutionalized, and, therefore, political in nature (Hanisch, 1969,
2006; Redfern, 2001).146 … Online social networks may provide a supportive
community comprised of others with similar experiences, values, and beliefs
that may be difficult to establish in physical space.147”
Gurumurthy for her part has pointed out that ICTs provide radical choices for
empowerment and new pathways to citizenship, especially for marginalised women. She
further posits that “information society related policies to protect and further women’s
rights must address both negative and positive rights.” By this, she means that there is a
need to balance individual privacy, while enabling transparency in government. She sees
the need to balance concerns of self-expression with concerns of protection from
exploitation of women. To quote:
“While there is no doubt that policies are needed to address online violence,
the boundaries of state involvement in effecting such protection becomes
critical. While the government should be able to prosecute those engaged
in violence against women, a right to surveillance in general, without
adequate basis is likely to infringe on women’s privacy. The state's duty
to intervene and prosecute violence when it happens online should not
become an excuse for surveillance over the Internet. Thus, policy
approaches need to recognise both women's “public”, political rights as
well as “private”, individual rights, especially in the context of violence
against women148.”(emphasis added)
146
Motter, Jennifer. Book Review on Senft’s CamGirls http://explorations.sva.psu.edu/vcg/5vol/Motter.pdf
Motter, Jennifer. Book Review on Senft’s CamGirls http://explorations.sva.psu.edu/vcg/5vol/Motter.pdf
148
Gurumurthy (2009) page 3
147
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Conclusion and Recommendation: Transforming ICTs, situating and contextualizing
VAW and Sexuality
From the above discussion, the Information, Communication Technology (ICT) arena, far
from being confined to technology users and to technological implications, is in fact a site of
power where feminists can and should intervene. Being a product of the society and global
economy that spawned it, it is not immune from the prevailing power relations in society:
gender inequality and patriarchy included.
The existing digital and gender divide in the ICT arena and the different forms of violence
against women (VAW) being perpetrated through ICT are manifestations of the underlying
power relations in society and gender discrimination, which are not solely confined to the
ICT arena. ICT may be termed a new field, a new language, a new space , but it is not at all
free from patriarchal hierarchies and the resulting discrimination and VAW there from. In
the same vein, the different forms of VAW through ICT form part of the continuum of
vi0lence perpetrated against women which originate from the unequal power relations
between men and women. These ICT-related VAW are not at all new forms of VAW but are
made distinct by the manner of their perpetration: through the borderless world of ICT.
ICT-related VAW, with the different and emerging forms thereof has provided challenges in
terms of definition, prosecution as well as jurisdiction over such acts. This has been largely
attributed to the nature of ICT, where offenses and offenders are often intractable, where
various possibilities of digital personhood providing anonymity are readily available, and
where offenses are transborder/transnational, often beyond national criminal jurisdiction.
Question then arise both as to the sufficiency of the existing laws to address such acts of
ICT-related VAW, as well as the effective implementation of existing laws to combat the
same.
Questions exist as well in distinguishing ICT-related VAW committed on the individual level
and those committed in a syndicated manner and for profit. A subjective and
contextualized approach is forwarded for ICT-related VAW committed on the individual
level: an acknowledgement of instances where women choose to exercise their agency and
empowerment . The same cannot, however be said with syndicated ICT-related VAW. In
syndicated ICT-related VAW, conducted for profit, the victimization of women is
institutionalized, a cause for serious concern and protection. In this institutionalized
victimization, with its availing context and circumstances, the its organized nature, the
number of victims, the economic and sometimes political power of the perpetrator –taken
together, totally negate proper consent and valid bargaining or negotiating power.
However, even as ICT by extension of the existing power relations in society, has become a
site of continuing gender inequalities and emerging forms of violence, both individual and
syndicated level, it has likewise shown that the same can be a platform for women’s agency
and empowerment. It has not only provided women with information and education, it has
not only provided for a a possible tool to challenge gender inequality and promote women
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empowerment, it has also provided spaces for self-expression. Within ICT are stories not
only of victimization and violence against women, but also of emancipation and spaces for
liberation.
The question then is how to address violence against women in ICT while at the same time
harnessing the empowering capacities of ICT for women. These empowering capacities, not
being limited to information and education, but also in the promotion of women’s rights,
the fight against gender inequality and the owning by women of their sexuality and sexual
rights.
At this point, it is useful to draw from Gurumurthy’s study and on how she calls for the
transformation and engendering of the ICT arena: both internationally and nationally and
both in programs and policy levels. This call, as stated, is a call for the transformation of the
ICT arena is a call for an enabling environment for women to be able to access and enjoy
the benefits and empowering nature of ICTs. This also involves addressing underlying
socio-cultural contexts of structural inequality between men and women and the manner
by which these affect women’s access to ICTs as well as women’s vulnerability to abuse.
This also involves a gendered policy to ICTs, in international, local and programme level
with accompanying focus on access, training and content.
The global architecture of ICT, from the point of view of equality and justice is far from
ideal. The dominant forces driving the system are capitalism – profits, monopolistic trends,
and corporate gatekeeping of the arena – and the patriarchal tendencies which go with
these – the discrimination against, devaluing and exclusion of, and violence against women.
However, in addition to the powerful corporate players, the ICT arena also has players who
oppose these forces, using ICTs as catalysts for social transformation149. Although the ICT
arena has been a site of continuing gender inequalities and even a site of emerging forms of
violence, it has also shown its potential for women’s empowerment and agency through (a)
livelihood opportunities; (b) health; (c) education; and (d) as a tool to challenge gender
inequality and promote women’s empowerment.
Additionally, where women have used ICTs for their own purposes, they report increased
knowledge and self-esteem. This seems to be almost universally true for different sociocultural contexts – from China to Ethiopia, from Peru to India150. This empowering process
has the potential of destabilising existing gender relations. She however speaks of, and
stresses the importance of providing an enabling environment for women to assure the
equal enjoyment and access to the benefits of ICTs.
The transformation of the ICT arena for the benefit and enjoyment of women not only
entails engendering programmes and policies. In due recognition that the gender power
dynamics that permeate the ICT arena are the same gender power dynamics prevalent in
society, and in recognition as well that the forms of violence perpetrated through ICTs form
part of the continuum of violence experienced by women and rooted at the same structural
149
150
Gurmurthy page 28
Hafkin 2002c, Gurumurthy 2004.
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inequality brought upon by the system of patriarchy, the transformation of the ICT arena,
involves the transformation of these underlying power relations. 151
The digital and gender divides are realities that must be confronted if we are to confront
the issue of women’s access to and enjoyment of the benefits of ICT. Thus, part of the
creation of an enabling environment for women’s access and enjoyment of ICT include the:
a) availability of ICT infrastructure for women; b) capacity building and training for women
on the new technology to move beyond traditional ICT roles to highly technical skills; c)
creation of relevant applications and content for women.
With the above, it is, however, equally important, to look and address as well the
underlying causes of these divides within the society. This entails breaking down
conceptual and perceptual barriers that separate ‘gender’ concerns and ‘wider concerns’ in
the policy making arena152. It involves looking into the process of eliminating gender
discrimination, the root causes of VAW, at structural, ideological and operational levels --this includes structures and systems on which the institutions of the family, the community,
the market, and indeed the State are founded153.
Addressing gender in policy and programme intervention is imperative because, even with
improved communications and networking infrastructure, women are likely to be
bypassed. The process of engendering polices also involves engendering policies
concerning ICTs and their access also means addressing gender issues in education, health,
telecommuni-cations, infrastructure and rural development policies so that ICTs can enable
outcomes that are gender equal. 154
Far reaching changes towards gender equality and women empowerment in the ICT
arena are needed at every level ---international, national and programme stressing
that engendering ICTs is not merely about greater use of ICTs by women, it is also
about transforming the ICT system. This involves the following: 155




Governments building ICT policies with strong gender perspectives
and engaging with civil society and gender and ICT experts on these
areas.
International fora such as WSIS being used to challenge northern and
corporate dominance of the ICT arena.
Clear gender strategies being deployed through design, in the
implementation and evaluation of ICT projects and programmes.
Collecting information with sex-disaggregated statistics and gender
indicators on access to, use of and content of ICTs, on employment
and on education.
151
Hafkin 2002c, Gurumurthy 2004.
Margaret Gallager, Beijing’s Legacy, page 2
153
Un SRVAW page 34
154
Gurmurthy page 28
155
Ibid.
152
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
Consideration of gender issues in: ICT/telecommunications policy;
representation in telecommunications/ICT decision-making; and the
differential impact of telecommunications/ICTs on men and women.
In addressing violence against women and the issue of sexuality in ICT, it is worth noting
Gurumurthy:
Among the greatest challenges to a strong feminist response to issues of
violence against women and ICTs is the fact that feminist analytical
frameworks have to coherently address the changing realities restructuring
gender relations in response to the advent of new information and
communication technologies. Piecemeal efforts to tinker with policy domains
like employment, education or crime may fail to add up to a cogent national
response to the opportunities and challenges presented by new technologies,
especially for transformatory change that privileges the marginalised. Also,
feminist engagement with policies needs to approach rights from the vantage
of an alternative ICT discourse. Policies are needed to promote appropriate
technologies that can create secure and empowering online spaces. Feminist
engagement with such policies is part of the imperative that can and should
shape the emerging technological paradigm. By far the most urgent feminist
response that is required is to stop seeing digital and online spaces as a
different realm confined to technology users, but an important site of
power that requires a feminist intervention156.(emphasis added)
The call then for the transformation of the ICT arena is a call for an enabling environment
for women to be able to access and enjoy the benefits and empowering nature of ICTs. This
involves addressing underlying socio-cultural contexts of structural inequality between
men and women and the manner by which these affect women’s access to ICTs as well as
women’s vulnerability to abuse. This also involves a gendered policy to ICTs, in
international, local and programme level with accompanying focus on access, training and
content. This is also in line with the program of the Association for Progressive
Communications “Take back the Tech” which asks women to take control of ICTs and
consciously use them to change power relations between men and women and particularly
to use ICT activism to combat violence against women157.
The interrelation of ICT, VAW and sexuality opens up an array of discourses in different
areas of women’s rights. The compounded complexity of the phenomenon of ICT-related
VAW opens a terrain that has to be carefully studied by feminists, women’s rights
advocates and other stakeholders. While the study stands in recognition of ICT-related
cases as an emerging pressing concern, the issues at hand are found to be needing of more
intensive study. It is therefore recommended that the research undertakes another phase.
A research should be done on cyber dens to further substantiate the phenomenon of ICTrelated VAW based on first-hand accounts of women involved in these activities.
156
157
Gurumurthy (2009) page 3
ICTs and VAW, Kathambi Kinoti
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Given the status of the ICT-VAW discourse in the Philippines particularly among women’s
rights groups and advocates, there is a critical need to discuss and level off appreciation of
the groups on the ICT-VAW issue.
The immediate need might be capacity-building before policy advocacy. With this relatively
new area of VAW, the question remains on what would be the implications as the law
progresses more into the spheres of people’s lives. As outcome of the research, a practical
strategy would be to target law enforcers and promote understanding of the continuum of
VAW which may be applied, for instance, in gathering of evidences.
ICT-related VAW and the advent of ICT in women’s lives are emerging concerns needing of
further study and analysis. These pose as a challenge as well as an opportunity in
strengthening the efforts of women’s movements in women’s rights advocacy. The
women’s movements are once again called to reflect and examine issues of sexuality, selfexpression, agency and empowerment vis-à-vis harms, need for protection and violations
against women.
Prepared by the Women’s Legal and Human Rights Bureau (WLB) 70
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