Wrongful gender stereotyping in rape trials: Vertido as one tentative step towards “equality as transformation” (Kelly Reeve)

 

Kelly Reeve analyses the decision of the Committee on the Elimination of Discrimination against Women (CEDAW Committee) in Karen Tayag Vertido v. The Philippines and its implications for transformative equality.

Article 5(a) of CEDAW and the aspiration of equality as transformation

On 16 July 2010, the CEDAW Committee held in Karen Tayag Vertido v. The Philippines that evidence of wrongful gender stereotyping in a Filipino rape trial amounted to a violation of articles 2(f) and 5(a) of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).

The case of Vertido was the first communication before the CEDAW Committee to principally focus on wrongful gender stereotyping.  Before then, the precise scope of state obligations stemming from article 5(a) of CEDAW had been left unexplained.  The text of article 5(a) requires State Parties

[t]o modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.

This provision is regarded as the pillar under the third objective of CEDAW as set out in the Committee’s General Recommendation No. 25 on temporary special measures.  This reaffirms the obligation of State Parties

[t]o address prevailing gender relations and the persistence of gender-based stereotypes that affect women not only through individual acts by individuals but also in law, and legal and societal structures and institutions.

Prior to the decision of Vertido, Professor Rikki Holtmaat had written that article 5(a) has two limbs:

  1. To ban gender stereotypes from mass media and advertising and school teaching materials, and;
  2. To revise existing legislation and public policies which reinforce existing cultural and social exclusion of women.

Article 5(a) is both reactive and proactive in its efforts to address systemic discrimination.  Professor Holtmaat argues that it creates “concrete obligations for states to put an end to laws and policies based upon gender stereotypes which are detrimental to women”.  This makes it an extremely significant provision in the move towards a “different law and public policy”; it provides a legal basis for social and cultural change.  Professor Sandra Fredman has labelled this aspiration as “equality as transformation”; a restructuring of society so that it is no longer male-defined.  The role of the CEDAW Committee in interpreting and applying article 5(a) is therefore crucial.  A close analysis of the CEDAW Committee’s approach in Vertido will reveal whether the transformative potential of the provision is beginning to be realised. 

The strengths and weaknesses of the Vertido decision

The case of Vertido makes several significant contributions towards the elimination of wrongful gender stereotyping in society but nonetheless suffers from various shortcomings.

Primarily, the CEDAW Committee adopted a clear methodological approach to identifying wrongful gender stereotypes.  This three-step process provides useful guidance for both victims and states to pinpoint the harmful stereotype effectively.

  1. Identify the gender stereotype (those attributes, characteristics or roles ascribed to an individual by reason of his/her sex/gender).  For example, women must physically resist sexual advances in order to express non-consent.
  2. Explain the meaning and significance of this stereotype.  For example, the aforementioned stereotype leads to the conclusion that those victims who do not physically resist sexual advances cannot be a victim of rape.
  3. Identify the social harm arising from the stereotype.  For example, rape victims in general and women rape victims in particular are denied enjoyment of their right to physical integrity and society develops inappropriate ideas that resistance is necessary to establish rape.

A framework similar to this is a crucial precondition to the justiciability of wrongful gender stereotypes.  It allows the specific harmful stereotype to be targeted and eradicated from the legal systems of State Parties.  It is hoped that other human rights institutions and courts follow the lead of the CEDAW Committee in this respect.

Secondly, the CEDAW Committee embraced a broad teleological interpretation of “equality” beyond its previous jurisprudence.  The Filipino criminal justice system had in place clear precedents which prohibited the use of wrongful gender stereotypes in rape trials.  On a formal level there was a legal prohibition of discrimination on the grounds of sex.  In Vertido, the CEDAW Committee looked beyond the law on the books to examine the attitude of Judge Hofilena-Europa in handling the case and identified her disregard for these precedents.  In doing so, the CEDAW Committee reaffirmed that formal equality is not enough; equality must be practised as well as preached.  This demonstrates a progressive attitude towards the realisation of equality as transformation.

Thirdly, the CEDAW Committee treads new ground beyond the tentative steps of other human rights jurisprudence by issuing recommendations that directly target systemic discrimination.  For example, in a factually similar case (M.C. v. Bulgaria), the European Court of Human Rights identified the use of wrongful gender stereotypes in rape trials in Bulgaria and emphasised that physical resistance is not necessary to establish rape.  However, in articulating state obligations, the Court merely reiterated that Member States have a positive obligation to effectively investigate, punish and prosecute rape and sexual abuse.  It made no express ruling aimed at eliminating the wrongful gender stereotypes from the criminal justice system.  In contrast, the CEDAW Committee in Vertido went further and recommended the training of Filipino judges, lawyers and law enforcement personnel on CEDAW and its General Recommendations and recommended that gender-sensitive training be implemented in the judicial process.  Similarly, in Şahide Goecke v. Austriathe CEDAW Committee recommended gender sensitive training for Austrian police on domestic violence.  The CEDAW Committee is consistently demonstrating a proactive approach to address the underlying causes of discrimination.  This has the potential to engender a new public policy towards equality as transformation.

Fourthly, the CEDAW Committee seemingly extends the obligation of due diligence beyond the field of violence against women.  The concept of due diligence traditionally applies in order to impute the action of a non-state actor to a state.  When rights are guaranteed under a treaty, the state is obligated to exercise “due diligence” to ensure their fulfilment, that is to prevent, investigate, punish and remedy the human rights violation in question.  Failure to adequately do so will result in state liability for the human rights violation.  The CEDAW Committee in Vertido held that State Parties have a due diligence obligation to banish wrongful gender stereotypes under articles 2(f) and 5(a) of CEDAW.  This is the first case decided under the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (Optional Protocol) to extend the due diligence obligation to gender stereotyping.

However, as identified by Cusack and Timmer, the discussion of due diligence appears to be borne out of confused reasoning by the Committee. The case of Vertido concerned the behaviour of a national judge acting on behalf of the state and not as a private individual, therefore the language of due diligence was unnecessary.  The reference made to the “judicial handling of the case” suggests that the Committee did not intend to create a due diligence obligation with regard to the actions of private individuals but intended to uphold the state obligation to banish wrongful gender stereotypes in the judicial machinery.  However, clarification is needed.

In addition, the CEDAW Committee does not fully articulate state obligations under article 5(a) of CEDAW.  Cusack and Timmer have suggested that the Committee could have adopted the tripartite framework of obligations to “respect, protect and fulfil” human rights.  The obligation to “banish wrongful gender stereotypes” is regrettably ambiguous.

Moreover, it remains unclear whether article 5(a) has direct effect, that is, whether an individual can submit a communication to the CEDAW Committee purely on the basis of a violation of article 5(a).  In Vertido, the author alleged violations of both articles 2(f) and 5(a) and so the CEDAW Committee addressed these provisions contemporaneously.  Consequently, this has failed to resolve earlier academic confusion as to whether article 5(a) is a “hat-peg” provision used to bring other issues under the scope of CEDAW and/or whether it is a mere amplification of article 2(f).  Given the interdependent nature of CEDAW provisions, this may not prove to be overly problematic in practice but clarity ought to be achieved for the benefit of future individuals submitting a communication under the Optional Protocol.

Finally, the decision remains limited to the context of rape trials.  Specific sexual stereotypes were identified in the communication and the resulting recommendations aim to eliminate the existence of these stereotypes among Filipino lawyers, the judiciary and law enforcement agencies.  Clearly, wrongful gender stereotypes are prevalent in all spheres of life.  However, it was not the place for the CEDAW Committee in Vertido to broadly articulate state obligations to tackle wrongful gender stereotyping.  This would be a formidable task stretching beyond the acceptable remit of the case.  It is hoped that the CEDAW Committee can analogically extend the fundamental reasoning in Vertido to other spheres in future.

Despite the identified shortcomings of the Committee’s decision in Vertido, it nonetheless represents a significant step forward.  The eradication of wrongful gender stereotypes from society is a protracted process, not least because stereotypes play a crucial cognitive role in human thought and action.  Progressive steps towards transformative equality ought to be matched with some degree of humility about the limits of one case, or even the actions of the CEDAW Committee.  The Vertido decision provides a robust catalyst for societal change by directly identifying and addressing wrongful gender stereotypes, upholding a teleological interpretation of equality and boldly moving beyond other human rights jurisprudence. T o borrow the words of Professor Holtmaat, this begins to lay the “groundwork for structural solutions to structural problems”.  The approach of the Committee in Vertido therefore signifies one tentative step towards equality as transformation.

Kelly Reeve is an LL.B. (hons) Graduate and Legal Research Assistant at the University of Warwick in the U.K.

10 October 2012

This guest blog post further develops many of the points raised in Kelly Reeve’s article entitled “Beyond ‘Equality of Opportunity’ and ‘Equality of Result’: Does the CEDAW Committee in Karen Tayag Vertido v The Philippines Embrace ‘Equality as Transformation’?”  (2012) 2(1) Warwick Student Law Review 72

 

Advertisements