This summarizes a case submitted by Karen Vertido of the Philippines to the CEDAW Committee regarding her rape case. Karen was raped in 1996 but her rapist was acquitted due to gender stereotypes used in the judge's decision. Karen argued this violated her rights under CEDAW. The CEDAW Committee found that the judge's decision was influenced by stereotypes about how a rape victim should act. It ruled that the Philippines failed in its obligation to eliminate such gender stereotypes from its legal system. It recommended providing Karen compensation, educating judges to eliminate stereotypes from rape trials, and ensuring rape cases are handled promptly and impartially without prejudices.
This summarizes a case submitted by Karen Vertido of the Philippines to the CEDAW Committee regarding her rape case. Karen was raped in 1996 but her rapist was acquitted due to gender stereotypes used in the judge's decision. Karen argued this violated her rights under CEDAW. The CEDAW Committee found that the judge's decision was influenced by stereotypes about how a rape victim should act. It ruled that the Philippines failed in its obligation to eliminate such gender stereotypes from its legal system. It recommended providing Karen compensation, educating judges to eliminate stereotypes from rape trials, and ensuring rape cases are handled promptly and impartially without prejudices.
This summarizes a case submitted by Karen Vertido of the Philippines to the CEDAW Committee regarding her rape case. Karen was raped in 1996 but her rapist was acquitted due to gender stereotypes used in the judge's decision. Karen argued this violated her rights under CEDAW. The CEDAW Committee found that the judge's decision was influenced by stereotypes about how a rape victim should act. It ruled that the Philippines failed in its obligation to eliminate such gender stereotypes from its legal system. It recommended providing Karen compensation, educating judges to eliminate stereotypes from rape trials, and ensuring rape cases are handled promptly and impartially without prejudices.
Philippines to the CEDAW Committee through its Optional Protocol. Taking this as a case study, the entire group went through the process of filing a complaint from the very beginning (e.g. how to determine whether a case is ready for the CEDAW Committee), through the filing process (e.g. how to put together and file the complaint), to the end (e.g. how to ensure a hopefully favorable finding is properly implemented).
As was discussed at the
consultation, this case is also important because Karen Vertido is the first woman from Asia, or for that matter, from any country of the two thirds world, to submit a complaint under the communications procedure of the Optional Protocol.
Karen, a successful career
woman until her rape on March 29, 1996, is being legally assisted by Filipino lawyer Evalyn Ursua, and the well known Womens Legal Bureau of the Philipines.
According to Mae, Karens case was
dismissed allegedly for lack of probable cause. She told us that Judge Europa said in her decision that the evidence presented by the prosecution, citing in particular the testimony of Vertido, "leaves too many doubts in the mind of the court to achieve the moral certainty necessary to merit a conviction."
Europa did state that there could
be no worse violation of a woman's person than the crime of rape but the bottom line in determining charges of rape is the credibility of the testimony of the complainant and Judge Europa was not willing to believe this victim:
__"This court is unconvinced
that there exists sufficient evidence to erase all reasonable doubts that the accused committed the offenses charged, its duty to acquit him is unavoidable," the judge said in the decision.
-supporters of Karen were not
surprised that this judgment, instead of castigating the perpetrator, transformed Karen into the guilty party as this is usually what happens in rape cases.
She added that the judge, though a
woman, maintained the longheld male view that Karen could have resisted because she is a welleducated, articulate, "decent," and married woman. According to Karens lawyers, this judgment reinforces the myth that women who are well-educated, articulate, decent, and married cannot be raped.
Karen was able to submit this
communication thanks to the adoption of the 21-article Optional Protocol to the CEDAW on 6 October, 1999, by the General Assembly of the United Nations. By ratifying the Optional Protocol on 12 November 2003, the Philippines recognized the competence of the Committee on the Elimination of Discrimination against Women
the body that monitors States parties'
compliance with the CEDAW -- to receive and consider complaints from women such as herself who, after having tried to seek redress from her own government regarding the case of rape she filed in 1996 and after having exhausted all domestic remedies as is required by the Optional Protocol, is now seeking justice at the international level.
At this level, Karen is not indicting
businessman Jose Custodio, whom she accused of rape and who was acquitted of the charge in 2005, but the Philippine government. She alleges that her rights as a woman and a survivor of violence were violated because the judge who rendered the decision relied on genderbased myths and misconceptions such as the ones stated above.
the judge also relied on a distorted
reading of the testimonies, including those of mental health experts. This is one of the reasons Karen is making the government responsible for her inability to get justice since it is the obligation of the Philippines to have trained all judges on the issue of violence against women, as well as on methodologies to compensate for the male bias that exists in practically all court proceedings.
part of Karens brief is that the Philippine
government, specifically the judiciary, has not done enough to enlighten and educate trial judges and prosecutors on the real nature of rape and violence against women, the psychological elements of a victims reaction (or lack of reaction) to abuse, and the unequal status of women in that country. The complaint also cites summaries of seven other cases where the accused rapists were likewise acquitted, and where the judges decisions relied on gender stereotypes and biased judgments.
Karens communication under the
Optional Protocol to the CEDAW seeks for the UN to compel the Philippine government to undertake measures to ensure the full recognition, enjoyment, and exercise of the rights guaranteed to women under the Womens Convention and other human rights conventions and to comply with its obligations under the Womens Convention, where the country is a signatory.
For the judiciary: the
communication proposes the investigation of the regularity of Judge Europas actions; the development of a training program for court judges and lawyers specifically on sexual violence; a review of jurisprudence on rape and other forms of sexual violence;
the establishment of a monitoring
system for trial court decisions in cases of rape and other sexual offenses; the compilation and analysis of data on the number of sexual violence cases; and the provision for the right of appeal of victims of rape in cases of acquittals anchored on discriminatory grounds.
For the congress: a review of the
laws against rape and other forms of sexual violence including their enforcement and implementation; and appropriation of adequate funds for the establishment of rape crisis centers.
RULING
The Committee reaffirms that the Convention places
obligations on allState organs and that States parties can be responsible for judicial decisions whichviolate the provisions of the Convention. It notes that by articles 2 (f) and 5 (a), theState party is obligated to take appropriate measures to modify or abolish not onlyexisting laws and regulations, but also customs and practices that constitutediscrimination against women. In this regard, the Committee stresses thatstereotyping affects womens right to a fair and just trial and that the judiciary musttake caution not to create inflexible standards of what women or girls should be orwhat they should have done when confronted with a situation of rape based merelyon preconceived notions of what defines a rape victim or a victim of gender-basedviolence, in general.
This general recommendation addresses the question of
whether States parties can be held accountable for the conduct of non-State actors in stating that discrimination under the Convention is not restricted to action by or on behalf of Governments and that under general international law and specific human rights covenants, States may also be responsible for private acts if they fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence, and for providing compensation. In the particular case, the compliance of the State partys duediligence obligation to banish gender stereotypes on the grounds of articles 2 (f) and5 (a) needs to be assessed in the light of the level of gender sensitivity applied in the judicial handling of the authors case
The judgment reveals that the judge came to the conclusion
that the author had a contradictory attitude by reacting both withresistance at one time and submission at another time, and saw this as being a problem. The Committee notes that the Court did not apply the principle that the failure of the victim to try and escape does not negate the existence of rape andinstead expected a certain behaviour from the author, who was perceived by the court as being not a timid woman who could easily be cowed. It is clear from the judgement that the assessment of the credibility of the authors version of events was influenced by a number of stereotypes, the author in this situation not havingfollowed what was expected from a rational and ideal victim or what the judgeconsidered to be the rational and ideal response of a woman in a rape situation
Although there exists a legal precedent established by the
Supreme Court of thePhilippines that it is not necessary to establish that the accused had overcome thevictims physical resistance in order to prove lack of consent, the Committee findsthat to expect the author to have resisted in the situation at stake reinforces in aparticular manner the myth that women must physically resist the sexual assault. Inthis regard, the Committee stresses that there should be no assumption in law or inpractice that a woman gives her consent because she has not physically resisted theunwanted sexual conduct, regardless of whether the perpetrator threatened to use orused physical violence
With regard to the definition of rape,
the Committee notes that the lack of consent is not an essential element of the definition of rape in the PhilippinesRevised Penal Code.
Acting under article 7, paragraph 3, of the Optional Protocol
to the Conventionon the Elimination of All Forms of Discrimination against Women, and in the lightof all the above considerations, the Committee is of the view that the State party hasfailed to fulfil its obligations and has thereby violated the rights of the author underarticle 2 (c) and (f), and article 5 (a) read in conjunction with article 1 of theConvention and general recommendation No. 19 of the Committee, and makes thefollowing recommendations to the State party: (a) Concerning the author of the communication Provide appropriate compensation commensurate with the gravity of theviolations of her rights
(b) General Take effective measures to ensure that
court proceedings involving rapeallegations are pursued without undue delay Ensure that all legal procedures in cases involving crimes of rape andother sexual offenses are impartial and fair, and not affected byprejudices or stereotypical gender notions.. To achieve this, a wide range of measures are needed, targeted at the legal system, to improve the judicial handling of rape cases, as well as training and education tochange discriminatory attitudes towards women. Concrete measures include
i) Review of the definition of rape in the
legislation so as to place thelack of consent at its centre; (ii) Remove any requirement in the legislation that sexual assault becommitted by force or violence, and any requirement of proof of penetration, and minimize secondary victimization of thecomplainant/survivor in proceedings by enacting a definition of sexualassault that either:-
requires the existence of unequivocal and voluntary
agreement andrequiring proof by the accused of steps taken to ascertain whether thecomplainant/survivor was consenting;
requires that the act take place in coercive circumstances
andincludes a broad range of coercive circumstances. (iii) Appropriate and regular training on the Convention on theElimination of All Forms of Discrimination against Women, its OptionalProtocol and its general recommendations, in particular generalrecommendation No. 19, for judges, lawyers and law enforcement personnel; (iv) Appropriate training for judges, lawyers, law enforcement officersand medical personnel in understanding crimes of rape and other sexualoffences in a gender-sensitive manner so as to avoid revictimization of women having reported rape cases and to ensure that personal mores andvalues do not affect decision-making