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 

 

CEDAW Committee declares sexual harassment communication inadmissible (M.S. v. The Philippines)

M.S. was employed between 1998 and 2000 as Director of the Market and Communications Department of a telecommunications company in the Philippines. On 27 June 2000, she resigned from the company after reportedly being sexually harassed repeatedly by G, the company’s Chief Operating Officer. 

In May 2001, M.S. initiated criminal proceedings in the National Bureau of Investigation against G and S, her immediate supervisor, for sexual harassment and acts of lasciviousness. The Office of the City Prosecutor initially dismissed the complaint for lack of probable cause, but, in April 2003, found merit in her allegations against G. A motion for reconsideration, filed by S and G, was denied in May 2004. However, in March 2005, after G filed a petition for review, the Metropolitan Trial Court dismissed the criminal case because G had died.  

In addition to the criminal proceedings, in December 2001, M.S. initiated unfair dismissal proceedings with the Labour Arbiter. In April 2003, the Arbiter dismissed the case on the basis that M.S. had resigned voluntarily and had not sufficiently substantiated her claim that she was forced to resign due to harassment. M.S. appealed unsuccessfully to the National Labour Relations Commission, but was successful in her appeal to the Court of Appeals. That Court annulled the earlier decisions, finding that M.S. had been constructively dismissed. However, the Supreme Court reinstated the decision of the National Labour Relations Commission that M.S. had not been dismissed unfairly. A motion for reconsideration, filed by M.S, was denied.

M.S. then submitted a communication to the Committee on the Elimination of Discrimination against Women (CEDAW Committee). She claimed she was a victim of a violation by the Philippines of articles 1, 2(c), 2(f), 5(a) and 11(1)(f) of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), read in conjunction with General Recommendation No. 19 on violence against women.

M.S. claimed that the Supreme Court’s decision was based on gender myths and stereotypes. This, she claimed, led to the failure to uphold her rights to non-discrimination in the workplace and workplace health and safety as well as to discriminatory and unequal treatment by the Court. She further claimed that the State Party’s failure to abolish discriminatory customs and practices and eliminate harmful gender stereotyping had impaired her rights to a fair trial and to access an effective remedy for workplace sexual violence.

State Party’s observations on admissibility

It is unclear from the CEDAW Committee’s decision if the State Party contested the admissibility of the communication. However, the State Party did argue that the decision in question was not discriminatory, but, rather, was based on M.S.’s failure to substantiate her claim.

Majority’s decision on admissibility

A majority of the CEDAW Committee found that the communication was insufficiently substantiated and declared it inadmissible under article 4(2)(c) of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (Optional Protocol to CEDAW). 

The majority concluded that M.S.’s main aim was to challenge “the manner in which the national courts, and the Supreme Court in particular, assessed the circumstances of her case and applied national law”. In so concluding, it emphasized that the CEDAW Committee “does not replace the national authorities in the assessment of the facts, nor does it decide on the alleged perpetrator’s criminal responsibility”. The majority went on to explain that 

it is generally for the courts of … States parties … to evaluate the facts and evidence or the application of national law in a particular case, unless it can be established that this evaluation was biased or based on gender harmful stereotypes that constitute discrimination against women, was clearly arbitrary or amounted to a denial of justice [emphasis added].

In the majority’s view, there was nothing to suggest that the examination of M.S.’s case by Filipino courts, including the Supreme Court, suffered from any such defects. Moreover, it concluded that,

even if it could be argued that some aspects of gender-based stereotypes may appear to be indicated in the Supreme Court’s decision, they do not suffice, per se, to demonstrate that they have negatively affected the court’s assessment of the facts and the outcome of the trial, or to corroborate the author’s claims of a violation of articles 1, 2(c) and (f), 5(a) and 11 (1)(f), of the Convention for purposes of admissibility.

Individual (dissenting) opinion of CEDAW Committee member Patricia Schulz 

CEDAW Committee Patricia Schulz issued an individual (dissenting) opinion. Like the majority, she declared the communication inadmissible. However, she concluded that it was an abuse of the right to submit a communication and, therefore, declared it inadmissible under article 4(2)(d) of the Optional Protocol to CEDAW.

In Schulz’s view, M.S. had substantiated her claim for the purposes of admissibility. She had done this, Schulz explained, by identifying passages from the national decisions that pointed to “gender stereotyping in action”. Schulz also noted the failure of the State Party to explain these passages.

Nevertheless, Schulz concluded that M.S.’s delays in initiating proceedings at the domestic level and in submitting her communication to the CEDAW Committee were fatal to her case.

Whilst there is no statute of limitations in the Philippines for sexual harassment proceedings, Schulz concluded that the Supreme Court had rightly determined that, by taking 18 months to initiate such proceedings, M.S. failed to act “expeditiously”. At the same time, Schulz was careful to stress the importance of appropriate limitation periods in sexual violence cases and criticised jurisdictions with short limitation periods. She acknowledged, for instance, that victims in such jurisdictions “risk being denied access to justice if they need a longer time than these statutes foresee to recover from the trauma they have experienced before being able to face a judicial procedure…”.

Schulz also acknowledged that there is no limitations period on submitting communications under the Optional Protocol to CEDAW. Nevertheless, she emphasised the importance of submitting communications in a timely fashion. In Schulz’s view, the five-year delay in submitting the communication and M.S.’s failure to explain why the delay might be considered reasonable abused the right to submit a communication. Schulz explained: “I find that the author should have submitted her communication in a shorter delay than she did, or else she should have explained why she was not able to act more rapidly”.

Schulz went on to call for the introduction of a 1-year limitation period (with justifiable exceptions) to submit communications to the CEDAW Committee. In her view, such a period would appropriately balance the needs of victims and States Parties, help to harmonise treaty procedures and protections, ensure legal security for State Parties and claimants, and facilitate the administration of justice.

Communication No. 30/2011, UN Doc. CEDAW/C/58/D/30/2011 (2014) 

Decision (advanced unedited version)

 

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. Austria, the 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

 

Failure to protect woman against domestic violence a violation of CEDAW (V.K. v. Bulgaria)

 

V.K., a Bulgarian national, claimed that her husband, F.K., subjected her to varied forms of domestic violence.  In 2006, V.K. moved to Poland with her husband and their children.  In 2007, following continued abuse, V.K. filed an application for protective measures and financial maintenance with the Warsaw District Court, but the proceedings went unresolved.  F.K. reportedly continued to abuse V.K., which included attempting to strangle her. 

In June 2007, F.K. initiated divorce proceedings against V.K. and claimed custody of their children.  Again, the abuse continued.  Police were called on multiple occasions in response to F.K.’s abusive behaviour and local hospitals issued several medical certificates to V.K.  V.K. subsequently sought refuge for herself and the children in a shelter and legal assistance from a local women’s rights centre.  F.K. later denied V.K. access to her son for a two-month period and abused the centre’s staff on several occasions in an attempt to determine the location of his daughter.  V.K. eventually succeeded in finding her son and, shortly thereafter, returned to Bulgaria to seek protection against further abuse. 

V.K. was unable to seek immediate refuge because the only shelter in southern Bulgaria was overcrowded.  She succeeded in obtaining an immediate protection order under the Bulgarian Law on Protection against Domestic Violence.  However, domestic courts refused to grant her a permanent order because, in their view, there was no imminent threat to her life or health or that of her children, since she had not been subjected to domestic violence in the month prior to applying for the order.   

In October 2008, V.K. submitted a communication to the Committee on the Elimination of Discrimination against Women (CEDAW Committee).  She claimed that Bulgaria’s failure to provide her effective protection against domestic violence constituted violations of articles 1 (definition of discrimination), 2(a)-2(c) and 2(e)-2(g) (state obligations), 5 (wrongful gender stereotyping) and 16 (equality in marriage and family relations) of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), read in conjunction with General Recommendation No. 19 (violence against women).  V.K. alleged that, despite the adoption of the Law on Protection against Domestic Violence, Bulgarian courts ‘continue to neglect their obligation to punish perpetrators of domestic violence’ and that ‘lack and inadequacy of legal training are among the reasons for the failure of the judicial system … to provide her with effective protection against domestic violence.’  Among other things, V.K. also claimed that Bulgaria had failed to adopt a comprehensive approach to addressing gender stereotyping, and ensure that victims/survivors have access to immediate protection against violence, including refuges.

Interim measures

On 12 February 2009, the CEDAW Committee requested Bulgaria to take interim measures to avoid irreparable damage to V.K. and her children while the communication was under consideration.  It further requested Bulgaria to ensure the protection and physical integrity of V.K. and her children.

Bulgaria’s observations on admissibility

Bulgaria contested the admissibility of the communication on several grounds.

Insufficiently substantiated

Bulgaria claimed that V.K. had failed to sufficiently substantiate the allegations in her communication, as required by article 4(2)(c) of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (Optional Protocol).  According to the State Party, V.K. had made ‘sweeping allegations of a general nature without direct relevance to her case.’

Extraterritoriality

Bulgaria further claimed that most of the alleged incidents took place in Warsaw, Poland, which was outside of its jurisdiction.  

CEDAW Committee’s decision on admissibility

The CEDAW Committee declared the communication admissible, after finding that V.K. had ‘provided sufficient elements to substantiate her claims for purposes of admissibility.’

Bulgaria’s observations on the merits

In its observations on the merits, Bulgaria claimed that it had taken appropriate measures to provide adequate protection against domestic violence, including by adopting its Law on Protection against Domestic Violence.  It further claimed that V.K. had failed to provide sufficient evidence to substantiate a permanent protection order.    

CEDAW Committee’s views

The Committee concluded that Bulgaria had failed to protect V.K. effectively against domestic violence, in violation of articles 2(c)-2(f) of CEDAW, read in conjunction with article 1, and article 5(a), read in conjunction with article 16(1) and General Recommendation No. 19.

Freedom from gender-based violence against women

In its views, the CEDAW Committee reiterated that gender-based violence against women is a form of discrimination that States Parties are required to eliminate.  It further reiterated that States Parties have a due diligence obligation to prevent, investigate, punish and remedy acts of violence committed by private actors.

Turning to the facts, the Committee noted that Bulgaria’s adoption of the Law on Protection against Domestic Violence was a necessary measure to provide protection against domestic violence.  However, it explained that, in order for V.K. to enjoy gender equality in practice, ‘the political will that is expressed in such specific legislation must be supported by all State actors, including the courts, who are bound by the obligations of the State party.’  The Committee concluded that the failure of Bulgarian courts to issue V.K. a permanent protection order and the unavailability of shelters in southern Bulgarian had meant that V.K. was denied equality in practice. 

The refusal of the courts to issue a permanent protection order was central to the Committee’s finding that Bulgaria had violated article 2 of CEDAW.  In its view, the refusal was based on the assumption that there was no imminent threat to the life or health of V.K. and her children because they had not been subjected to domestic violence in the month prior to applying for the order.  The Committee noted, however, that CEDAW

does not require a direct and immediate threat to the life or health of the victim.  Such violence is not limited to acts that inflict physical harm, but also covers acts that inflict mental or sexual harm or suffering, threats of any such acts, coercion and other deprivations of liberty.   

It noted further that, while applications for an immediate protection order require ‘a direct, immediate or impending threat to the life or health of the aggrieved person,’ no such threat is required to issue a permanent protection order. 

The Committee determined that Bulgaria’s courts had ‘applied an overly restrictive definition of domestic violence that was not warranted by the Law and was inconsistent with the obligations of the State party under article 2 (c) and 2 (d) [of] the Convention….’  It explained:

Both courts focused exclusively on the issue of direct and immediate threat to the life or health of the author and on her physical integrity while neglecting her emotional and psychological suffering.  Moreover, both courts unnecessarily deprived themselves of an opportunity to take cognizance of the past history of domestic violence….  The courts also applied a very high standard of proof by requiring that the act of domestic violence must be proven beyond reasonable doubt, thereby placing the burden of proof entirely on the author, and concluded that no specific act of domestic violence had been made out on the basis of the collected evidence.  The Committee observes that such a standard of proof is excessively high and not in line with the Convention, nor with current anti-discrimination standards which ease the burden of proof of the victim in civil proceedings relating to domestic violence complaints.          

In addition, the Committee concluded that the unavailability of domestic violence shelters in Bulgaria amount to a violation of articles 2(c) and 2(e) of CEDAW. 

Freedom from wrongful gender stereotyping

In its views, the CEDAW Committee reiterated the links between wrongful gender stereotyping and the freedom from gender-based violence against women as well as the right to a fair trial.  Affirming its findings in Karen Tayag Vertido v. The Philippines, the Committee noted that States Parties are accountable under CEDAW for judicial decisions that are based on gender stereotypes, rather than law and fact.  “Stereotyping,” the Committee said, “affects women’s right to a fair trial and the judiciary must be careful not to create inflexible standards based on preconceived notions of what constitutes domestic or gender-based violence.”

Considering the facts, the Committee found that the refusal to grant a permanent protection order was based on gender stereotypes related to domestic violence.  It also found that the divorce proceedings had been influenced by gender stereotypes related to the roles and behaviours expected of men and women within marriage and family relations.  According to the Committee, reliance on these gender stereotypes amounted to discrimination and also resulted in the re-victimization of V.K, in violation of articles 2(d) and 2(f) of CEDAW as well as article 5(a), read in conjunction with article 16(1) and the Committee’s General Recommendation No. 19 on violence against women.

Communication No. CEDAW/C/49/D/20/2008 (17 August 2011)

Decision