Karen Vertido vs.

The Philippines
Communication No. 18/2008

The author of the communication, dated 29 November 2007, is Karen

Tayag Vertido, a Filipino national who claims to be a victim of discrimination
against women within the meaning of article 1 of the Convention in relation
to general recommendation No. 19 of the Committee on the Elimination of
Discrimination against Women. She also claims that her rights under articles 2
(c), (d), (f) and 5 (a) of the Convention on the Elimination of All Forms of
Discrimination against Women have been violated by the State party. The
author is represented by counsel, Evalyn G. Ursua. The Convention and its
Optional Protocol entered into force in the Philippines on 4 September 1981
and 12 February 2004, respectively.

FACTS OF THE CASE:

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 Hofileña-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 Vertido’s 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 judge’s 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 THE 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 the Optional 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. VERTIDO’S 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 COMMITTEE’S 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.

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 Vertido’s 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 Vertido’s 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 women’s 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 judge’s 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.