Gender stereotyping in rape trial a violation of CEDAW (Karen Tayag

Vertido v. The Philippines)

13 FEBRUARY 2012 / SIMONECUSACK
In 1996, Karen Tayag Vertido worked as Executive Director of the Davao City Chamber of
Commerce and Industry in the Philippines. She filed a complaint against the then
President of the Chamber, Jose B. Custodio, accusing him of raping her. She alleged that
the accused offered her a lift home following a business meeting one evening and that,
instead, raped her in a nearby hotel.
In April 2005, after the case had languished in the trial court for eight years, Judge
Virginia Hofilea-Europa acquitted the accused of raping Ms Vertido, citing insufficient
evidence to prove beyond all reasonable doubt that the accused was guilty of the
offence charged. Her Honour based her decision to acquit on a number of guiding
principles from other rape cases and her unfavourable assessment of the Ms Vertidos
testimony based, among other things, on her failure to take advantage of perceived
opportunities to escape from the accused.
Ms Vertido subsequently submitted a communication to the Committee on the
Elimination of Discrimination against Women (CEDAW Committee). She alleged that
the acquittal of Mr Custodio breached the right to non-discrimination, the right to an
effective remedy, and the freedom from wrongful gender stereotyping, in violation of
articles 2(c), 2(d), 2(f) and 5(a) of the Convention on the Elimination of All Forms of
Discrimination against Women (CEDAW).
In her communication, Ms Vertido claimed that the trial judges decision had no basis in
law or fact, but was grounded in gender-based myths and misconceptions about rape
and rape victims without which the accused would have been convicted. She further
claimed that a decision grounded in gender-based myths and misconceptions or one
rendered in bad faith can hardly be considered as one rendered by a fair, impartial and
competent tribunal, and that the Philippines had failed in its obligation to ensure that
women are protected against discrimination by public authorities, including the judiciary.
The Philippines observations on admissibility
The Philippines contested the admissibility of the communication on the basis that Ms
Vertido had failed to exhaust domestic remedies, as required by article 4(1) of
theOptional Protocol to the Convention on the Elimination of All Forms of Discrimination
against Women (Optional Protocol). It claimed that Ms Vertido had failed to avail
herself of the special remedy of certiorari.
Ms Vertidos comments on the Philippines observations

Ms Vertido countered that she was not required to exhaust the remedy of certiorari, as it
could only be sought by the People of the Philippines, represented by the Office of the
Solicitor General. In addition, she submitted that, even if the remedy were available to
her, it would have been ineffective in redressing her particular complaint of
discrimination.

CEDAW Committees admissibility decision

The CEDAW Committee declared the communication admissible, dismissing the
suggestion made by the Philippines that Ms Vertido was required by article 4(1) of the
Optional Protocol to exhaust the remedy of certiorari.
Views
The CEDAW Committee concluded that, in failing to end discriminatory gender
stereotyping in the legal process, the Philippines had violated articles (2)(c) and 2(f) of
CEDAW, and article 5(a) read in conjunction with article 1 and General Recommendation
No. 19 (violence against women). The Committee declined to consider whether or not
article 2(d) had been violated, finding that it was less relevant to the case than the other
articles alleged to have been violated.
Committee member Ms Yoko Hayashi issued a separate, concurring opinion.
Right to an effective remedy (art. 2(c))
The CEDAW Committee affirmed that implicit in CEDAW and, in particular article 2(c), is
the right to an effective remedy. It explained that for a remedy to be effective,
adjudication of a case involving rape and sexual offenses claims should be dealt with in a
fair, impartial, timely and expeditious manner.
The Committee determined that the Philippines had failed to comply with its obligation to
ensure Ms Vertidos right to an effective remedy. It noted that her case had languished
in the trial court for approximately eight years before a decision was made to acquit the
accused and that, consequently, it could not be said that Ms Vertidos allegation of rape
had been dealt with in a fair, impartial, timely and expeditious manner.
Freedom from Wrongful Gender Stereotyping (arts. 2(f) and 5(a))
In finding violations of articles 2(f) and 5(a), the Committee affirmed that CEDAW
requires States Parties to take appropriate measures to modify or abolish not only
existing laws and regulations, but also customs and practices that constitute
discrimination against women. It also stressed that stereotyping affects womens right
to a fair and just trial and that the judiciary must take caution not to create inflexible
standards of what women or girls should be or . . . have done when confronted with a
situation of rape based merely on preconceived notions of what defines a rape victim.

The majority determined that the trial judge had expected a certain stereotypical
behaviour from the author and formed a negative view of her creditability because she
had not behaved accordingly. It went on to say that the trial judges decision contained
several references to stereotypes about male and female sexuality being more
supportive for the credibility of the alleged perpetrator than for the creditability of the
victim.
Recommendations
Having found violations of articles (2)(c), 2(f) and 5(a) of CEDAW, the CEDAW Committee
called on the Philippines to provide appropriate compensation to Ms Vertido. It also
made a number of general recommendations aimed at redressing the systemic nature of
many of the violations. These included taking effective steps to ensure that decisions in
sexual assault cases are impartial and fair and not affected by prejudices or stereotypes.