THE DECRIMINALIZATION OF SEX WORK IN THE PHILIPPINES

OUTLINE

I. Introduction
A. What is sex work?
1. Introduce concept of sex work.
a) Prostitution is generally understood as “the provision of sexual services for
reimbursement or material gain”.1
b) One scholar has differentiated between sex work and sexual exploitation, the former
being more voluntary and commercial, while the latter being more involuntary and
“done by force”.2
(1) The latter is more apt with the acts (crimes) of human trafficking and child
prostitution.
2. Brief history of sex work (internationally and in the Philippines).
a) The history of prostitution in the Philippines dates as far back as the 1500s,when the
datus used to “supply” women for the conquistadores.3
b) In the time of the American colonization, Americans employed the services of prostitutes
in their military bases.
c) During the Japanese occupation, prostitutes were widely referred to as comfort women,
and were, more often than not, forced and abused by the Japanese, with most of them
being abducted and put into brothels.
3. Explain how sex work is currently viewed and treated in the Philippines.
a) Sex work in the Philippines is legally defined under the Revised Penal Code as
“habitually [indulging] in sexual intercourse or lascivious conduct [for money and for
profit]”.
b) Under the Revised Penal Code as well, sex work, or prostitution, is penalized both from
the end of the prostitute, specified by the code as a woman (Art. 202), and the
benefactors/operators (Art. 341) i.e., “any person who, in any manner, or under any pretext,
shall engage in the business or shall profit by prostitution or shall enlist the services of women for
the purpose of prostitution”.
c) Presently, there are statutes and special penal laws addressing prostitution,but focusing
on the trafficking side of this act (RA 9208, RA 10364).
B. Thesis: Sex work must be decriminalized.
1. Establish the position/thesis statement of the group: This paper primarily aims to decriminalize
sex work, and then offers recommendations for the legalization of sex work for future
scholars.
C. Provide a brief summary/outline/flow of the paper (i.e., the method, arguments, perspectives).
II. Women in Sex Work in the Philippines
A. Statistics
1. Trafficked
a) A 1998 study has cited that there are about 500,000 prostitutes in the country. However,
in a 2013 privilege speech by Sen. Pia Cayetano, this was estimated to have grown to
800,000.
b) A report by the National Police Commission of the Philippines
2. Voluntary
B. Legislative
1. Theory

1 Lin Lean Lim, The Sex Sector: The Economic and Social Bases of Prostitution in Southeast Asia (1998).
2 Theodore R. Burnes, Sex Work". In Nadal, Kevin L. (ed.). The SAGE Encyclopedia of Psychology and Gender, 1467–1470. (2017)
3 François-Xavier Bonnet, From Oripun to the Yapayuki-San: An Historical Outline of Prostitution in the Philippines, 29
Moussons, 41-65 (2017).
 2. RPC
a) Article 202 of the Revised Penal Code punishes the crime of prostitution. However,
since Article 202 confines who can be a prostitute to ‘a woman’, we submit that the
provision is discriminatory against women, since prostitution can be engaged by both
men and women, yet only women can be imposed the criminal liability for such act.
(1) Before the amendment of Art. 202,4 the provision punished two broad categories
of acts: Vagrancy and Prostitution.
(a) The provision defines prostitutes as women who, for money or profit,
habitually indulge in sexual intercourse or lascivious conduct. Hence,
only women can be held criminally liable for the crime of prostitution.
(2) Republic Act No. 10158 amended Art. 2025 so as to decriminalize vagrancy only.
The provision now penalizes prostitution only, yet it retains the same definition
of prostitutes as confining the offender to be women only.
b) The person who avails the services of a person engaged in prostitution can also be
held criminally liable under Article 341 of the Revised Penal Code (as amended).
(1) Art. 341 of the RPC, as amended by BP Blg. 1866 penalizes “any person who, in
any manner, or under any pretext, shall engage in the business or shall profit by
prostitution or shall enlist the services of any other for the purpose of
prostitution.”

4 Rev. Pen. Code, art. 202 (before amendment)

Article 202. Vagrants and prostitutes; Penalty. - The following are vagrants:

1. Any person having no apparent means of subsistence, who has the physical ability to work and who neglects to apply himself or
herself to some lawful calling;

2. Any person found loitering about public or semi-public buildings or places or trampling or wandering about the country or the
streets without visible means of support;

3. Any idle or dissolute person who ledges in houses of ill fame; ruffians or pimps and those who habitually associate with
prostitutes;

4. Any person who, not being included in the provisions of other articles of this Code, shall be found loitering in any inhabited or
uninhabited place belonging to another without any lawful or justifiable purpose;

5. Prostitutes.

For the purposes of this article, women who, for money or profit, habitually indulge in sexual intercourse or lascivious conduct, are deemed to be prostitutes.

Any person found guilty of any of the offenses covered by this articles shall be punished by arresto menor or a fine not exceeding 200 pesos,
and in case of recidivism, by arresto mayor in its medium period to prision correccional in its minimum period or a fine ranging from 200 to
2,000 pesos, or both, in the discretion of the court. (emphasis supplied)

5 Repub. Act. No. 10158, sec. 1

SECTION 1. Article 202 of the Revised Penal Code is hereby, amended to read as follows:

“Article 202. Prostitutes; Penalty. – For the purposes of this article, women who, for money or profit, habitually indulge in sexual
intercourse or lascivious conduct, are deemed to be prostitutes.

“Any person found guilty of any of the offenses covered by this article shall be punished by arresto menor or a fine not exceeding
200 pesos, and in case of recidivism, by arresto mayor in its medium period to prision correctional in its minimum period or a fine
ranging from 200 to 2,000 pesos, or both, in the discretion of the court.”

6 Rev. Pen. Code, art. 341

Article 341. White slave trade. - The penalty of prision mayor in its medium and maximum period shall be imposed upon any person who, in
any manner, or under any pretext, shall engage in the business or shall profit by prostitution or shall enlist the services of any other for the
purpose of prostitution (As amended by Batas Pambansa Blg. 186.)
 (a) In People v. Nuevas,7 the Court explained that Art. 341 punishes three acts:
(1) engaging in the business of prostitution, (2) profiting by prostitution,
and (3) enlisting the services of any other for the purpose of prostitution.
3. Other legislative statutes and related bills focus on addressing the problem of women
trafficked into sex work.
a) The enactment of the Magna Carta of Women shows Congress’ commitment to uphold
women’s rights. Among others, Congress recognizes that women exploited into
prostitution is an act of violence, which the law must protect women from, and that it
seeks to repeal statutes that are discriminatory to women, such as Art. 202 of the RPC.
(1) The MCW is the local legislation of the Convention on the Elimination of All
Forms of Discrimination Against Women (CEDAW).8
(a) What is the CEDAW
(2) The MCW recognizes that women’s rights are human rights 9
(3) Section 2 of RA 9710 makes it the State’s policy, among others, to:
(a) “Intensify its efforts to fulfill its duties under international and domestic
law to recognize, respect, protect, fulfill, and promote all human rights
and fundamental freedoms of women, especially marginalized women,
in the economic, social, political, cultural, and other fields without
distinction or discrimination on account of class, age, sex, gender,
language, ethnicity, religion, ideology, disability, education, and
status.”10
(b) “Provide the necessary mechanisms to enforce women’s rights and
adopt and undertake all legal measures necessary to foster and promote
the equal opportunity for women to participate in and contribute to the
development of the political, economic, social, and cultural realms.”11
(4) Section 3 of RA 9710 places emphasis on human rights, and that no one should
be discriminated on the basis of gender, and that it is the State’s duty to observe
human rights, as it has “to comply with the legal norms and standards enshrined
in international human rights instruments in accordance with the Philippine
Constitution.”
(5) The MCW provides that prostitution is an act of violence against women12 from
which women should be protected
(a) Violence Against Women is defined as “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.”13
(b) Moreover, Sec. 30 describes women who are victims and survivors of
prostitution as ‘Women in Especially Difficult Circumstances,’ in which
the State must provide them with the necessary assistance and
intervention for the protection of their own welfare.
(6) Moreover, Section 12 provides that “the State shall take steps to review and,
when necessary, amend and/or repeal existing laws that are discriminatory to
women within three (3) years from the effectivity of this Act

7 G.R. No. L-154. March 18, 1946

8 Repub. Act. No. 9710, sec. 2, par. 2.
9 Id, sec. 2, par. 3.
10 Id.
11 Id. sec. 2, par. 4.
12 Repub. Act No. 9710, sec. 4, par. J, sub par. 1
13 Repub. Act No. 9710, sec. 4, par. J.
 b) The Anti-Trafficking in Persons Act of 2003 or RA 9208, as amended by RA 10364,
supports the view that women exploited to prostitution must be given protection by
the law, rather than punishing the acts committed by them at the time they were
trafficked by the traffickers.
(1) The act generally punishes the trafficking of persons for the purpose of
exploitation, which at a minimum, includes prostitution, pornography, sexual
exploitation, forced labor, slavery, involuntary servitude or debt bondage.
(a) The act of trafficking of persons is defined 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”
(2) The act provides the definition for prostitution and sexual exploitation, as
follows:
(a) Prostitution refers to “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.”
(b) Sexual Exploitation refers to “participation by a person in prostitution
or the production of pornographic materials as a result of being
subjected to a threat, deception, coercion, abduction, force, abuse of
authority, debt bondage, fraud or through abuse of a victim's
vulnerability.”
(3) The crux of RA 9208 is that it imposes criminal liability upon the person
responsible for trafficking or harboring persons, and those who knowingly
facilitate the trafficking.
(a) Section 4 punishes persons who engage in the act of trafficking in itself,
while Section 5 punishes persons who promote such trafficking.
(4) The act remarkably recognizes that legal protection must be given to victims of
trafficking by not penalizing them for the acts did by them that are directly
related to the trafficking made by the trafficker.
c) At the local government level, Quezon City Ordinance No. SP-1516, series of 2005
(1) The ordinance recognizes that prostitution is often viewed as a problem about
women and children, whereas business establishments and buyers who are
predominantly men are shielded from the law.
(2) The ordinance penalizes business establishments that serve as cover or venue for
prostitution, or an organization that engages in prostitution. It also penalizes the
recipient of the sexual act by a person exploited in prostitution.
4. Several attempts were made to repeal Art. 202 and Art. 304 by Congress; all were grounded on
the notion that women are exploited into prostitution, and advances the view that these
women should be seen as a ‘victim’ of prostitution, rather than criminals, and hence, need
protection by the law.
a) Attempts to pass a bill repealing Art. 202 and Art. 304 of the RPC have been made since
the 15th Congress by then Senator Jinggoy Estrada. The most recent re-filing of the bill
was made by Senator Pia Cayetano of the 19th Congress on July 13, 2022.
(1) The same bill was re-filed consistently from 15th Congress to the 19th Congress
by the incumbent Senators, by Senators Francis Escudero, Risa Hontiveros and
Pia Cayetano.
b) The most recent version of the bill sought to repeal Art. 202 and Art. 304 of the Revised
Penal Code, and:
 (1) Redefine prostitution as a crime that can only be committed by persons other
than the person exploited in prostitution; persons liable for prostitution include,
among others:
(a) Any person who offers another person for sexual exploitation in
exchange for money or any other consideration;
(b) Any person who is a recipient of a sexual act by the person exploited in
prostitution, including persons for whom the sexual act was
demonstrated
(c) Any person who induces or recruits a person to person to serve in an
establishment, knowing that the same is involved in prostitution, or
when it can be reasonably believed that such establishment is involved
in prostitution.
(2) Recognize that persons exploited in prostitution, who may be women, men or
children used or exploited for another’s sexual gratification, as victims of
prostitutions, and shall not incur criminal liability, unless such person also
commits the acts defined as prostitution in the bill.
c) From Congressional Debates:
(1)
C. Judiciary → Cases
1. Theory
2. On Women
a) Cases
(1) People v. Taño:14 “The belief is that women, especially Filipino women, would not
admit to abuse because their instinct is to ensure that their honor is protected.”
(2) People v. Manayan:15 “No woman would be willing to undergo a public trial and
put up with the same, the humiliation and the dishonor of exposing her own
degradation were it not to condemn an injustice and to have the offender
apprehended and punished.”
(3) People v. Estebal:16 “It will be inconsistent with human experience that a woman
who is thirteen (13) years old and a virgin would initiate a desire for sex (sic)
intercourse, since she is without experience and an innocent neophyte, unless she
is a child prostitute or a corrupted child.”
(4)
3. On Prostitution
a) The Court has consistently ruled against prostitution as evident in prevailing
jurisprudence. Its rationale behind the established criminality of prostitution is invariably
derived from its perceived morality or lack thereof.
(1) People v. Hong Din Chu:17 “Prostitution is a crime against public morals, a moral
degeneracy far exceeding that involved in the maintenance of adulterous
relations.”
(2) People v. Nuevas:18 Prostitution is an immoral and illicit trade.
(3) White Light v. City of Manila:19 “Goals involving the reduction and elimination of
prostitution are within the ambit of the police power of the State.”
(4) City of Manila v. Laguio:20 “Prostitution is a deplorable human activity and is one
of the social ills worthy of the exercise of the State’s police power.

14
15
16
17
18
19
20
 (5) People v. Joaquin Mirabien:21 A person who maintains a house of prostitution
considers those who propagate and encourage prostitution as lewd or dissolute.”
(6) US v. Choa Chi Co:22 People who avail of prostitution services are depraved and
dissolute persons.

III. Why we need to repeal

A. Trafficked → Human Rights
1. Theory
2. Based on International
a) International Human Rights laws form part of the laws of the Philippines.
(1) The Constitution provides that the Philippines adopts the generally accepted
principles of international law as part of its law of the land.23
(a) Pharmaceutical and Health Care Association v. Duque III: 24 “Generally
accepted principles of international law” refers to norms of general or
customary international law which are binding on all states.
(b) Republic v. Sandiganbayan:25 “Suffice it to say that the Court considers the
[Universal] Declaration [of Human Rights] as part of customary
international law, and that Filipinos as human beings are proper subjects
of the rules of international law laid down in the [International]
Covenant [on Civil and Political Rights].”
(2) Moreover, by virtue of the Constitution, the State recognizes the value of human
rights26, and is committed to ensure equality before the law of women and men.27
b) Trafficking women into prostitution is a violation of Article 3 of the Universal
Declaration of Human Rights (UDHR) and Article 6 of International Covenant on Civil
and Political Rights (ICCPR).
c) Since Philippines is a signatory to the Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW)
3. Based on Local
a)
B. Voluntary → Women’s Rights
1. Theory
2. Based on International
a) The Convention on the Elimination of All Forms of Discrimination Against Women
→ “Among the international human rights treaties, the Convention takes an important
place in bringing the female half of humanity into the focus of human rights concerns.”

(1) Article 1: “For the purposes of the present Convention, the term "discrimination
against women" shall mean any distinction, exclusion or restriction made on the
basis of sex which has the effect or purpose of impairing or nullifying the
recognition, enjoyment or exercise by women, irrespective of their marital status,
on a basis of equality of men and women, of human rights and fundamental
freedoms in the political, economic, social, cultural, civil or any other field.”
(2) Article 2: …

21
22
23 CONST., art. II, sec. 1.
24 G.R. No. 173034, October 9, 2007.
25 G.R. No. 104768, July 21, 2003.
26 CONST., Art. II, Sec. 11.
27 CONST., Art. II, Sec. 14
 (f) “To take all appropriate measures, including legislation, to modify or
abolish existing laws, regulations, customs and practices which
constitute discrimination against women;
(g) To repeal all national penal provisions which constitute
discrimination against women.”
b) The Universal Declaration of Human Rights
→ “A milestone document in the history of human rights. It sets out fundamental human
rights to be universally protected.”
(1) Article 1: All human beings are born free and equal in dignity and rights
(2) Article 2: “Everyone is entitled to all the rights and freedoms set forth in this
Declaration, without distinction of any kind, such as race, color, sex, language,
religion, political or other opinion, national or social origin, property, birth or
other status…”
(3) Article 16: “Men and women of full age, without any limitation due to race,
nationality or religion, have the right to marry and to found a family. They are
entitled to equal rights as to marriage, during marriage and at its dissolution.”
c) The International Covenant on Civil and Political Rights
(1) Article 17:
(a) “No one shall be subjected to arbitrary or unlawful interference with his
privacy, family, home or correspondence, nor to unlawful attacks on his
honour and reputation.”
(b) “Everyone has the right to the protection of the law against such
interference or attacks.”
(2) Article 23: “The right of men and women of marriageable age to marry and to
found a family shall be recognized.”
(3) Article 26: “All persons are equal before the law and are entitled without any
discrimination to the equal protection of the law. In this respect, the law shall
prohibit any discrimination and guarantee to all persons equal and effective
protection against discrimination on any ground such as race, color, sex,
language, religion, political or other opinion, national or social origin, property,
birth or other status.”
(4)
3. Based on Local
a) Sec. 14, Art. II
(1) The State recognizes the role of women in nation-building, and shall ensure the
fundamental equality before the law of women and men.
b) Magna Carta of Women (RA 9710)
(1) Section 8, Human Rights of Women: All rights in the Constitution and those rights
recognized under international instruments duly signed and ratified by the
Philippines, in consonance with Philippine law, shall be rights of women under
this Act to be enjoyed without discrimination.
(2) Section 12, Equal Treatment Before the Law: The State shall take steps to review
and, when necessary, amend and/or repeal existing laws that are discriminatory
to women within three (3) years from the effectivity of this Act.
C. New Zealand as a Model
1. Theory
2. How in New Zealand
IV. Recommendations → Legalization
A. United Nations in the Discrimination Convention of ILO No. 111
B. Sec. 14, Art. XIII *Sec. 3, Art. XIII, CONST
C.
V.