Gender stereotyping in rape trial a violation of CEDAW (Karen Tayag Vertido v. The Philippines)

 

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 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. 

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 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.

Communication No. 18/2008, UN Doc. CEDAW/C/46/D/18/2008 (22 September 2010)

Decision

 

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