CASES on CEDAW

THE KAREN VERTIDO CASE

a communication which has been submitted by the

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