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 

 

Advertisements

Decision to deny certain self-employed women maternity benefits violated CEDAW (Elisabeth de Blok et al. v. the Netherlands)

In 1998, the Netherlands established mandatory insurance for self-employed workers (and certain other categories of workers). The scheme insured against the risk of loss of income due to inability to work and, inter alia, entitled insured women to a maternity allowance. 

In August 2004, the insurance scheme ceased to exist. Self-employed women were therefore no longer entitled to maternity benefits and had to take out private insurance to be covered against loss of income resulting from maternity. Such insurance often came with restrictions, including a two-year waiting period for new customers during which no benefits could be paid for maternity leave. These restrictions have been challenged without success in Dutch courts.

Following community objections, the Netherlands reintroduced maternity benefits for self-employed women. However, as the new law was not applied retrospectively, self-employed women who gave birth before 4 June 2008 were not entitled to claim such benefits.

Six self-employed women, who gave birth between June 2005 and March 2006, were ineligible for public maternity benefits. One of the women had taken out private insurance, but could not access compensation until she threatened to take the insurer to court. The remaining women did not take out insurance because the premiums were prohibitively expensive and, for some of the women, also because of the waiting period.

In 2005, the six women sought a declaratory decision from the District Court of The Hague. They claimed that the failure to provide self-employed women maternity benefits violated article 11(2)(b) of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), among other obligations. Article 11(2)(b) provides:

In order to prevent discrimination against women on the grounds of marriage or maternity and to ensure their effective right to work, States Parties shall take appropriate measures to introduce maternity leave with pay or with comparable social benefits without loss of former employment, seniority or social allowances.

In 2007, the Court rejected their claim. It found that article 11(2)(b) was not directly applicable in the Netherlands and therefore could not form the basis of their claim. It reasoned that the provision merely contained “an instruction” for State Parties to introduce maternity leave and, as such, the Netherlands was afforded a “margin of appreciation” to determine how it would comply with the provision in practice.

In 2009, the Court of Appeal upheld the ruling. It found that article 11(2)(b) was too general to be applied by a court, given that it requires States Parties to take “appropriate measures”, but does not prescribe the measures to be taken. In its view, article 11(2)(b) was therefore unsuitable for direct application by national courts.

In 2010, the Supreme Court upheld the ruling of the Court of Appeal.

The six women subsequently submitted a communication to the Committee on the Elimination of Discrimination against Women (CEDAW Committee). They claimed that the Netherlands violated article 11(2)(b) of CEDAW by failing to provide self-employed women maternity benefits during the period 1 August 2004 to 4 June 2008. 

CEDAW Committee’s admissibility decision

As the State Party did not contest admissibility and there were no grounds upon which to declare the communication inadmissible, the CEDAW Committee declared it admissible.

State Party’s observations

The State Party claimed that it had not violated article 11(2)(b) of CEDAW. Among other things, it argued that:

  • it was within its margin of appreciation to decide how it would apply its maternity leave scheme
  • an adequate maternity scheme existed, given that some self-employed women could access insurance under the Sickness Benefits Act
  • self-employed women can address the risk of loss of income by saving or taking out private insurance
  • it had facilitated access to private insurance by making the payments tax deductible and that insurers were free to impose lawful restrictions on insurance policies      
  • article 11(2)(b) of CEDAW is not sufficiently specific to be applied by its national courts and is a “best-efforts” obligation because it does not prescribe how to pursue its objectives and, accordingly, has no direct effect
  • article 11(2)(b) applies to women in paid employment only and does not extend to women who are self-employed.

CEDAW Committee’s views

The CEDAW Committee concluded that the State Party had directly discriminated against women, in violation of articles 11 and 11(2)(b) of CEDAW. In its views, the Committee criticised, inter alia, the State Party’s failure to introduce transitory measures, the cost of private insurance (especially for women on low incomes), and the two-year waiting period for insurance.

In reaching its views, the CEDAW Committee affirmed that:

  • the obligations in article 11 of CEDAW, including article 11(2)(b), extend to women who are self-employed and do not apply only to female employees
  • States Parties are required under article 18 to give effect to, fulfil, or ensure the application of, CEDAW provisions
  • the direct applicability of CEDAW at the national level is a question of constitutional law and depends on the status of treaties in the domestic legal order
  • States Parties cannot seek to avoid their article 11(2)(b) obligations by claiming that the provision is not directly applicable at the national level or citing qualifications such as “instructions” or “best-efforts” obligations.

The CEDAW Committee recommended that the State Party provide reparation to the authors for the loss of maternity benefits. It also urged the State Party to take steps to ensure compensation for loss of maternity benefits is available for self-employed women who gave birth between 1 August 2004 and 4 June 2008.

Communication No. 36/2012, UN Doc. CEDAW/C/57/D/36/2012 (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)

 

CEDAW Committee declares asylum communication inadmissible (M.E.N. v. Denmark)

M.E.N., a Burundian national, claimed asylum in Denmark.  She indicated that she had fled Burundi owing to political persecution and had been ganged raped by three men before leaving the country.  She further indicated that she feared she might be subjected to rape or other forms of bodily harm, if Denmark forced her to return to Burundi. 

In April 2011, Denmark’s Immigration Service concluded that M.E.N.’s allegations were not credible and she was not at risk of persecution in Burundi.  It therefore rejected M.E.N.’s claim for asylum.  

In September 2011, the Refugee Appeals Board upheld the decision of the Immigration Service.  It concluded that M.E.N. had failed to establish that she would face a real risk of persecution in Burundi.  It based its decision, inter alia, on its view that M.E.N.’s political activities in Burundi had been of a limited nature and the absence of evidence linking the gang rape to her political activities.  The Board further concluded that the threats and harassment experienced by M.E.N. in Burundi were not of such intensity and character to justify granting her asylum in Denmark.

M.E.N. submitted a communication to the Committee on the Elimination of Discrimination against Women (CEDAW Committee) in which she claimed that her deportation to Burundi would violate articles 1, 2(c), 2(d) and 3 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).  She based her claim on the fact “that she was raped by three men in Burundi before she fled owing to political persecution by the Burundian authorities and, as a woman, could be subjected to rape or other forms of bodily harm upon her return.” 

M.E.N. was awaiting deportation from Denmark to Burundi at the time of submitting her communication to the CEDAW Committee.  Pursuant to article 5 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (Optional Protocol) on interim measures, the CEDAW Committee asked Denmark to refrain from deporting M.E.N while it considered her communication.  The State Party agreed to suspend her deportation, pending a decision by the CEDAW Committee.

State Party’s observations on admissibility

The State Party challenged the admissibility of the communication on several grounds.   

Absence of jurisdiction and extraterritoriality  (arts. 2 and 4(2)(b))  

The State Party submitted that the CEDAW Committee lacked jurisdiction to consider the communication and that it should declare the communication inadmissible ratione loci and ratione materiae under articles 2 and 4(2)(b) of the Optional Protocol.  The State Party asserted that M.E.N.’s claims were “based not on any treatment that she will suffer at the hands of the State party, but on consequences that she may suffer if she is returned to Burundi” and that its decision to return M.E.N. to Burundi cannot trigger its responsibility under CEDAW.  The State Party further asserted: “it is responsible only for obligations vis-à-vis individuals under its jurisdiction and cannot be held responsible for discrimination in another country. Returning a person who comes to the State party simply to escape from discriminatory treatment in her own country, however objectionable that treatment may be, cannot constitute a violation of the Convention by that State party.”

Failure to exhaust domestic remedies (art 4(1))

The State Party further claimed that M.E.N. had failed to exhaust domestic remedies, as required by article 4(1) of the Optional Protocol.  According to the State Party, M.E.N. had failed to raise sex discrimination before the Immigration Service or the Refugee Appeals Board, which meant that it had not been afforded an opportunity to deal with those allegations.

Failure to substantiate claim (art 4(2)(c))

Lastly, the State Party claimed that M.E.N. had not substantiated her claims, in accordance with article 4(2)(c) of the Optional Protocol.  It asserted that M.E.N. had simply referred to articles 1, 2(c), 2(d) and 3 of CEDAW, instead of explaining which specific rights it had violated.  It also suggested that article 14 on rural women, which M.E.N. had mentioned in her communication, was not relevant in the circumstances.

CEDAW Committee’s decision on admissibility

A majority of the CEDAW Committee concluded that M.E.N. had failed to exhaust domestic remedies and declared the communication inadmissible.  A minority of the Committee declared the communication admissible and found violations of articles 2(c), 2(d) of CEDAW, read in conjunction with articles 1 and 3. 

Majority (inadmissible)

A majority of the CEDAW Committee concluded that M.E.N. had failed to exhaust domestic remedies, as required by article 4(1) of the Optional Protocol, and declared the communication inadmissible.   The majority noted that “the alleged rape was not raised as a ground per se in support of her application for asylum” and, on this basis, concluded that the State Party “clearly had no opportunity to consider her gender-based allegations, which [were] at the heart of her communication….”

While the majority decided not to address the remaining grounds of inadmissibility raised by the State Party, it did address States Parties’ responsibilities under CEDAW in situations in which a State Party extradites, deports, expels or otherwise removes an individual to a country where she claims that she would suffer a violation of her rights under CEDAW.  In doing so, the majority affirmed that the obligations in CEDAW apply to citizens and non-citizens and States Parties are “responsible for all their actions affecting human rights, regardless of whether the affected persons are in their territories.” It also rejected the State Party’s argument that CEDAW does not deal with removal to torture or other serious threats to the life and security of a person.  It reiterated that gender-based violence against women is a form of discrimination covered by article 1 of CEDAW, which can also impair or nullify women’s enjoyment of other rights, including the right to life, the freedom from torture or to cruel, inhuman or degrading treatment or punishment, the right to liberty and security of the person and the right to equal protection under the law.

The majority also clarified that CEDAW does have extraterritorial effect.  It explained:

under article 2 (d) of the Convention, States parties undertake to refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation.  This positive duty encompasses the obligation of States parties to protect women from being exposed to a real, personal and foreseeable risk of serious forms of gender-based violence, irrespective of whether such consequences would take place outside the territorial boundaries of the sending State party: if a State party takes a decision relating to a person within its jurisdiction, and the necessary and foreseeable consequence is that that person’s rights under the Convention will be violated in another jurisdiction, the State party itself may be in violation of the Convention. For example, a State party would itself be in violation of the Convention if it sent back a person to another State in circumstances in which it was foreseeable that serious gender-based violence would occur.  The foreseeability of the consequence would mean that there was a present violation by the State party, even though the consequence would not occur until later.  What amounts to serious forms of gender-based violence will depend on the circumstances of each case and would need to be determined by the Committee on a case-by-case basis at the merits stage, provided that the author had made a prima facie case before the Committee by sufficiently substantiating such allegations.

As the majority had determined that M.E.N.’s communication was inadmissible, it did not examine the extraterritorial application of CEDAW in her case.

Minority (admissible and violations)

CEDAW Committee member Šimonović issued an individual (dissenting) opinion – joined by Committee members Halperin-Kaddari, Neubauer and Pimentel – in which she declared the communication admissible and concluded that the State Party had violated articles 2(c), 2(d) of CEDAW, read in conjunction with articles 1 and 3.       

The minority concluded that M.E.N. had exhausted domestic remedies, as required by article 4(1) of the Optional Protocol.  Contrary to the view of the majority, the minority concluded that M.E.N. had raised in substance a sex discrimination claim relating to political persecution at the domestic level.  It noted that M.E.N. had raised the fact that she had been raped with the State Party and that this was sufficient for the State Party to have had an opportunity to “consider sex-based discrimination with regard to political persecution and to rape as a form of sexual violence that is recognized as a form of gender-related persecution and as a form of discrimination against women, together or separately.”  The minority took the view that M.E.N. did not need also to make explicit reference to rape as a form of discrimination against women.  It explained:

The pertinent question in the present case is whether the author raised sex-based discrimination, whether intersecting other grounds of persecution or alone, as the basis for her claim during the asylum procedure.  That the author mentioned during her asylum proceedings that she fled Burundi owing to political persecution, and that she had been raped by three men while fleeing, should be sufficient for the State party to consider rape to be a form of discrimination against women and gender-related persecution, whether alone or intersecting with alleged political persecution.  The author should not be required to make explicit reference to rape as a form of discrimination against women but to raise the substance of her claim, which is what she did.  Sexual violence and rape is universally accepted as a form of gender-based violence against women and a form of discrimination against women falling under article 1 of the Convention, as elaborated in the Committee’s general recommendation No. 19, which has clearly placed violence against women within the ambit of discrimination against women by stating that gender-based violence is a form of discrimination against women and includes acts that inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty.

In addition, the minority concluded that M.E.N. had sufficiently substantiated her claim, as required by article 4(2)(c) of the Optional Protocol to CEDAW.  It explained that, “for the purposes of admissibility, the author needs to sufficiently substantiate that she has a well-founded fear of being persecuted under the 1951 Convention relating to the Status of Refugees.”  The minority Committee members took the view that M.E.N. had done this

by explaining facts relating to her political persecution as a member of the Front national de libération (FNL), the opposition party, whose members were expelled and killed; that her home town, where many FNL members lived, was bombarded by the Government of Burundi…; that she was raped by three men armed with knives while she was fleeing; and that she was unable to seek justice because [of] the attack by government forces.

The minority members also concluded that the communication was admissible under article 4(2)(b) of the Optional Protocol to CEDAW because its subject matter was compatible with CEDAW.

Finally, the minority members concurred with the majority’s view about the extraterritorial application of CEDAW and declared the communication admissible under article 2 of CEDAW. 

Šimonović, joined by the other dissenting CEDAW Committee members, concluded that the State Party had violated articles 2(c), 2(d) of CEDAW, read in conjunction with articles 1 and 3.  In doing so, they clarified that article 2(c) of CEDAW:

  • “establishes a positive duty … to ensure the effective protection of women against any act of discrimination” during the entire asylum process;
  • requires States Parties to ensure that their asylum systems have “a thorough understanding of the particular forms of persecution and human rights abuses that women and girls experience because of their sex or gender;”
  • requires States Parties to ensure “women are not discriminated against and that gender-related forms and grounds of persecution are addressed during the asylum procedure.”  

The minority members also clarified that article 2(d) of CEDAW “requires States parties to refrain from engaging in any act or practice of discrimination” during the asylum process.  In addition, they explained that articles 2(c) and 2(d) require States Parties to “put in place asylum procedural safeguards to ensure that women’s claims are properly heard and assessed.”

The minority members of the CEDAW Committee recognised that asylum seekers are required to provide relevant factual information to substantiate their claim of discrimination based on sex/gender-related persecution, but concluded that it “should not be incumbent upon the asylum seeker to use in her asylum claim words such as ‘discrimination based on sex’ and/or ‘gender-related persecution’.”  Rather, they explained, the decision maker should “ask further relevant questions and apply this information to the legal framework.”  They took the view that M.E.N. had provided relevant information to the State Party that should be sufficient for the State Party to assess her discrimination claim fully.

The minority was critical of the Refugee Appeals Board’s decision that M.E.N. would not be at risk of assault if returned to Burundi because political activities were of a limited nature.  The minority expressed concern that State Party had ignored the “fact that women are, in general, underrepresented at the high level of political parties and that women’s political activity may not always look like male political activity or may not be equally valued in the male-dominated political environment.”  It also expressed concern that the State Party had “failed to assess in a non-discriminatory manner the risk of the author’s future political persecution or gender-related persecution or whether the author could benefit from State protection, taking into account all relevant facts relating to her claim of political persecution and sexual violence….”

The minority explained that although the State Party did not dispute that M.E.N. had been gang raped at knifepoint, it did dispute that the rape constituted a ground for persecution under CEDAW or the Refugee Convention.  The minority responded:

Rape is the most notorious form of sexual violence directed against women because of their sex or gender. It constitutes a gender-related form of persecution under the Refugee Convention and sex/gender-based discrimination and violence against women under [CEDAW].  Rape is considered to be brutal when it is gang rape, such as in the present case, but was completely neglected by the State party.  Rape inflicts severe mental and physical pain and suffering and is also tearing apart social units.  For that reason, it has been acknowledged as a particularly effective tool of genocide, as a crime against humanity, as a war crime and as a human rights violation.  Rape has been used as a form of persecution by State and non-State actors and various country guidelines on refugee claims specifically list rape and fear of rape as a form of persecution [citations omitted.

Turning their attention to the facts of the communication, the minority concluded:

the State party found the gang rape perpetrated by three man armed with knives unrelated to the author’s asylum claim and ignored its links with the overarching violence and impunity created by the conflict when it occurred.  In so doing, the State party failed to adequately consider the environment surrounding the rape, including impunity for the crime.  The State party failed to recognize the rape of the author as a separate or intersecting form of gender-related persecution and sex-based discrimination.  In so doing, it failed to afford the author protection under [CEDAW] and to exercise its positive duty to protect the author from being exposed to a real, personal and foreseeable risk of serious forms of gender-based violence if returned to Burundi.

Communication No. 35/2011, UN Doc. CEDAW/C/55/D/35/2011 (19 August 2013)

Decision