Gender and disability stereotyping in a rape trial violated CEDAW (R.P.B. v. the Philippines)

In 2006, J reportedly raped his neighbour, R.P.B, when she was 17 years old. R.P.B. reported the rape to police and underwent a medical exam. Because R.P.B. is mute and has a hearing impairment, her sister interpreted for her in sign language during the police investigation. State authorities did not provide any interpretation for R.P.B.

Police charged J with rape and, in July 2006, the case was filed in the Regional Trial Court of Pasig City, Metro Manila. In 2011, almost five years later, the trial court acquitted J. It concluded that R.P.B. had failed to prove the sex was not consensual. It also questioned R.P.B.’s credibility because, in its view, she had not responded to the attack in the manner expected (ie she had not summoned “every ounce of her strength and courage to thwart any attempt to besmirch her honour and blemish her purity”). The court was particularly critical of R.P.B.’s “failure to even attempt to escape … or at least to shout for help despite opportunities to do so”, which in its view, “casts doubt on her credibility and renders her claim of lack of voluntariness and consent difficult to believe”. R.P.B. received interpreting assistance during only some of the court proceedings.

R.P.B. later submitted a communication to the Committee on the Elimination of Discrimination against Women (CEDAW Committee) in which she claimed to be a victim of a violation by the Philippines of articles 1, 2(c), 2(d) and 2(f) of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). She also invoked the Convention on the Rights of Persons with Disabilities to support her claim.

R.P.B. claimed that the trial court discriminated against her by basing the acquittal on stereotypes and myths and ignoring evidence that explained her behaviour (eg her age and disability and J’s physical strength). In particular, she noted that the stereotypes and myths imposed peculiar evidentiary burdens on, and undermined the credibility of, women rape victims. She noted that these stereotypes and myths also led to prejudice against her as a girl with a hearing impairment and caused the judge to question her credibility as a witness. Among other things, R.P.B. also claimed that the State Party did not afford her access to a competent national tribunal, the court was insensitive toward her as a person with a hearing impairment, and there was a lack of awareness and capacity amongst legal professionals about how to handle cases involving sexual violence cases involving women and girls with disabilities.  

State Party’s observations

The State Party contested the admissibility of the communication on the grounds that R.P.B. 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 to CEDAW). Specifically, it claimed that R.P.B. had failed to file a petition for certiorari, which, it submitted, was an effective remedy in seeking to have the acquittal set aside. It further claimed that R.P.B. could pursue a civil claim independently of the criminal prosecution. Lastly, it claimed that R.P.B.’s allegation of denial of justice was groundless.  

CEDAW Committee’s decision on admissibility

The CEDAW Committee found that R.P.B. had exhausted domestic remedies and, accordingly, declared the communication admissible.

In doing so, it noted that the decision to acquit the accused was final and there was no possibility of appeal for R.P.B. Citing its views in Vertido v. the Philippines, it further noted that the remedy of certiorari did not need to be exhausted by R.P.B. because it was not available to her. It explained that the remedy was: available only to the people of the Philippines (represented by the Office of the Solicitor General); intended to correct errors of jurisdiction (which a claim of sex discrimination was not); and a civil remedy.  

CEDAW Committee’s views on the merits

The CEDAW Committee concluded that the State Party had violated articles 2(c), 2(d) and 2(f) of CEDAW, read in conjunction article 1 of CEDAW and General Recommendations Nos. 18 and 19.

The rights to equal protection and an effective remedy (CEDAW, arts 2(c), 2(d))

The CEDAW Committee concluded that the State Party’s failure to provide R.P.B. with the free assistance of sign language interpreters denied her equal protection and access to an effective remedy, in violation of articles 2(c) and 2(d) of CEDAW, read in conjunction with its General Recommendation No. 19.

In doing so, it affirmed that:

  • the right to an effective remedy is inherent in article 2(c) of CEDAW
  • for a remedy to be effective, rape and sexual offence cases should be dealt with in a fair, impartial, timely and expeditious manner
  • women with disabilities are a vulnerable group and often suffer intersectional discrimination
  • the provision of sign language interpretation was a fundamental fair trial guarantee and essential to ensure R.P.B.’s full and equal participation in the proceedings.

In discussing the State Party’s failure to ensure equal protection and an effective remedy, the Committee noted, inter alia, the following undisputed facts:

  • the lengthy delays in legal proceedings for R.P.B.’s case
  • the limited evidence considered by the court
  • R.P.B.’s inability to understand the investigation and some court proceedings due to the failure to provide an interpreter
  • the burden of finding interpreters was placed, at least partly, on R.P.B.
  • few rape complainants with hearing impairments benefit from interpreting in the Philippines
  • the lack of relevant standards, procedures and policies in the Philippines on interpretation in cases involving litigants with hearing impairments.

Freedom from harmful stereotypes and myths (CEDAW, art 2(f))

The CEDAW Committee concluded that the decision to acquit the accused was based on gender stereotypes and myths, in violation of article 2(f) of CEDAW.

In so concluding, it affirmed that:

  • States Parties are responsible for judicial decisions that violate CEDAW
  • article 2(f) requires States Parties to take appropriate measures to modify or abolish laws, regulations, customs and practices that discriminate against women
  • stereotyping affects women’s right to a fair and just trial
  • the judiciary must be careful not to create inflexible standards of what women or girls should be or what they should have done when confronted with a situation of rape based merely on preconceived notions of what defines a rape victim
  • there should be no assumption in law or practice that a woman gives her consent because she has not physically resisted the unwanted sexual conduct
  • lack of consent is an essential element of the crime of rape.

Regarding the facts of R.P.B.’s case, the Committee noted:

  • the trial judge had relied on myths and gender stereotypes and, therefore, expected R.P.B. to respond to the attack in a certain way
  • the judge formed a negative view of R.P.B.’s credibility because she did not respond in the stereotypical manner expected of an “ideal victim”
  • stereotyping caused the trial judge to disregard the circumstances of R.P.B.’s case, including why she responded in the manner she did (eg because of her age and disability and the accused’s physical strength) and the fact that she did not consent to have sex with her neighbour
  • this stereotyping resulted in a fundamental miscarriage of justice as well as material and moral damage and prejudice to R.P.B.

Recommendations

The Committee recommended that the State Party provide R.P.B. with reparation and education with interpreting, and R.P.B. and her affected family members with free psychological counselling. More generally, it recommended that the State Party:

  • review its rape law to place lack of consent at its centre by removing any requirement that sexual assault be committed by force or violence and any requirement of proof of penetration
  • ensure the free and adequate assistance of interpreters at all stages of legal proceedings, whenever needed
  • ensure all proceedings involving rape and other sexual offences are conducted impartially and fairly and free from prejudices and stereotypes related to gender, age and disability
  • provide regular training to judges and legal professionals to ensure that court proceedings and decisions are not adversely affected by stereotypes and biases.

Communication No. 34/2011, UN Doc. CEDAW/C/57/D/34/2011 (2014)

Decision 

 

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