Offenses Against Decency and Good Custom
Art. 200. Grave Scandal
A. Concept: It is a crime consisting of the performance or doing any act which is highly scandalous as to offend against decency and good custom.
1. The act, either a physical observable activity or audible noise, both of which scandalizes those who see or hear them. As for instance the act of engaging in a torrid kissing, urinating or defecating or going around in scanty attire, or loud obscene sex noises
2. They must be done either: (a) In a public place i.e where people usually go or congregate such as in parks, movie houses, bazaars, malls. In these places the presence of third persons is not required. (b) Within public knowledge or public view. This refers to private houses, rooms, grounds, veranda, but the noises made are so loud or the acts can be seen by third persons. The third person must not however be a Peeping Tom.
B. The act must not be punished under any other provision of the Code as this is a crime of last resort or a catch-all crime.
C. The scandalous acts affect public morals or sensitivity and have nothing to do with violations of public peace and tranquility. Thus two persons fighting or shouting at each other in a public place would constitute Alarm and Scandal. But when these same two persons engage in a strip tease contest in full view of people, the act would be Grave Scandal.
Art. 201 Immoral Doctrines, Obscene Publications and Exhibitions and Indecent Shows.
A. Persons or acts punished:
1. Those who expound or proclaim doctrines contrary to public morals
a). As for instance advocating polygamy or wife-swapping or killing off the mental/physical retardates to improve the Filipino race
b). What about advocating same-sex marriage? Or opening an exclusive ”nudist camp”?
2. In reference to Obscene literature:
a). The authors if they had knowledge of the publishing of their works. Thus writing an obscene literature is not per se punished but if the authors said works to be circulated to any third person, then they become liable. If the wok is stolen and circulated without their knowledge, they are not liable.
b). The editors publishing such literature
c). The owners/operators of the establishment selling the same
3. In reference to obscene, indecent, or immoral plays, acts or shows:
a). The persons who exhibit them including the producers, actors, movie house/theater owners
b). These include plays, acts, shows which
(i) glorify criminals or condone crimes
(ii) serve no other purpose but to satisfy the market for violence, lust or pornography
(iii) offend any race or religion
(iv) tend to abet traffic in and sue of prohibited drugs
(v) are contrary to law, public order, morals, good customs, established policies, lawful orders, decrees and edicts
4. Persons who sell, give away, or exhibit films, prints, engravings, sculptures, or literature, which are offensive to morals. Hence mere possession of pornographic literature is not per se punished. It is the act of distributing to people or circulating the same which is punished. Letting one person borrow or read is not however distributing.
B. A prosecution for obscenity under this Article is the third limitation to the Freedom of Speech and Press
C. What is lewd is not necessarily obscene. Nudity is not by itself obscenity. What then is the test for obscenity? ( i.e that which offends against chastity, decency or delicacy)
1. Per U.S. vs. Kottinger ( 1923):
a). Tendency to Corrupt Test- whether the matter has a tendency to deprave or corrupt those whose minds are open to such immoral influence and into whose hands a publication or other article charged as obscene may fall.
(This test is too subjective and does not offer an objective criterion. A matter may corrupt one person but may have no effect on another)
b). That which shocks the ordinary and common sense of man as indecency. (This is vague. Moral values vary according to circumstances of time, place and occasion)
2. (Commercial or profit motive) PP vs. Go Pin ( 1955): In reference to pictures if these were used not exactly for art’s sake but rather for commercial purposes, the pictures are not entitled to be protected
3. (Impure motive or theme of a picture) per PP. vs. Serrano a Court of Appeals case in l950
4. (Redeeming element) PP vs. Padan (1957) the work must have some redeeming element
5. (If the performance elicits or arouses sexual reactions) as in PP vs. Aparici where the gyrations and erotic dancing by the woman who was scantily dressed elicited shouts from the audience. This would apply to strip tease acts or bold shows or live sex acts
6. Gonzales vs. Katigbak (1985) followed the trend in the United States and adopted the test laid down in the case of Roth vs. California which was later modified in Miller vs. California which set the following guidelines:
a). Whether the average person, applying contemporary standards, would find that the work taken as a whole, appeals to prurient interest ( those which are dirty, intended to arouse sexual cravings, things which have something to do with unsafe or healthy sex).
b). Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable law
c). Whether the work lacks serious literary, artistic, political or scientific value
d). QUERRY: Can there be such a thing as “Art for Arts sake”?
(Personal opinion: Any human endeavor, especially in the field of arts must be to uplift or improve man either materially, spiritually or aesthetically. They must contribute to what is universal, good, and beautiful)
6. May smut or pornographic materials be seized from vendors in the street? The case of Pita vs. Ct. of Appeals ( 178 SCRA 362) laid down the following guidelines:
a). The authorities must apply for the issuance of a search warrant from a judge, if in their opinion, an obscenity rap is in order
b). The authorities must convince the Judge that the materials are obscene and pose a clear and present danger of an evil substantial enough to warrant state interference and action
c). The Judge must determine on a case-to-case basis if the materials are obscene
d). If in his opinion the Judge finds probable cause he may issue the search warrant
e). The proper criminal case must then be filed in court
Personal Opinion: If the magazines, comics or periodicals, pictures or VCD tapes being sold are however clearly pornographic, the seller is actually violating Article 201 and hence he may be arrested in flagranti delicto and the article seized right on the spot. The Pita case should not be made to apply to situations such as this, or where the vendor or the articles might disappear before the search warrant is issued. Otherwise the Pita decision would stifle and defeat the intend of the law to prevent and punish pornography.
D. If a work, such as a movie, has been approved by a government agency for public viewing or reading, a charge under Article 201 will not prosper
QUERY: If a woman who is scantily dressed poses and walks about in a public place, she may be charged for grave scandal. But when she starts gyrating erotically, the charge would be Violation of Article 201 for obscene acts
Art. 202. Vagrants and Prostitutes
I.( Is this a crime against status?) There are four kinds of Vagrants:
1. (The Lazy one). A person with no apparent means of subsistence, but physically able to work, neglect to apply himself to some lawful calling
a). It is not being unemployed per se which is punished but the refusal to look for work
2. (The Tourist) Any person found loitering about public or semi public buildings or places, or tramping or wandering about the country or streets without visible means of support
3. (The bugao and maton) An idle or dissolute (immoral, lax, unrestrained) person who lodges in houses of ill fame, ruffians (barairongs in Ilokano) or one who habitually associates with prostitutes
a. Absence of visible means of support is not required hence wealthy people may be vagrants under this mode
4. ( The suspicious stranger) One found loitering in any inhabited or uninhabited place belonging to another without any lawful or justifiable reason
a. The vagrant may have wealth
b. This is a preventive measure to prevent the commission of some other more serious offense
c. The estate is not fenced
II. Vagrancy is thus one of three crimes which may be committed when a person is found loitering inside the estate of another. The two others are:
5. Trespass to property where the accused, without prior consent of the owner, entered a fenced estate and there is a clear prohibition against entering
6. Attempted Theft if the estate is fenced and the purpose is to hunt or fish or to gather farm products
III. Prostitutes: a woman who habitually engages in (I) sexual intercourse or (2) or lascivious conduct, for money or profit
a. Habitually means not just an occasional intercourse or lascivious but it signifies that the woman resorts to sexual intercourse or lascivious conduct as a means of livelihood
b. Profit may include being financed in a lady’s schooling, payment of rentals or by way of articles of value
c. If the lady agrees that she will not any more sleep with other men but will become the exclusive bed partner of one man, in exchange for an apartment or house, she is still a prostitute. But when they become lovers, she is no longer a prostitute.
d. Example of Lascivious conduct: strip tease dancing before men, or kissing or fondling or being fondled
e. A man who engages in nude dancing for a fee, as well as call boys, cannot be charged for prostitution but for vagrancy
f. Question: Must the partner of the prostitute be a man in case of lasciviousness conduct?
IV. Related offense: Mendicancy under P.D. 1563 which punishes those who uses begging as a means of living as well as those giving money.
V. Non applicability to CICLs