UN Upholds Victim’s Rights, Criticizes Philippine Government, Justice System

On July 16, 2010, the CEDAW committee decided favorably on the November 2007 complaint filed by Karen Vertido under the Optional Protocol of the Convention on the Elimination of Discrimination Against Women.

The CEDAW committee concluded that Judge Europa’s decision acquitting Custodio was based on the following gender myths, misconceptions and stereotypes:

(1) A rape victim must try to escape at every opportunity .

(2) To be raped by means of intimidation, the victim must be timid or easily cowered.

(3) To be raped by means of threat, there must be a clear evidence of direct threat.

(4) That the accused and the victim are “more than nodding acquaintances” makes the sex consensual.

(5) It is inconsistent for a rape victim to react to the assault by resisting the attack and also to cower to submission because of fear.

(6) If the accused was able to proceed to ejaculation then the rape victim did not resist the sexual act

(7) Rape charges can be made easily.

It is unbelievable for a man in his sixties to commit rape.

The committee therefore concluded that Karen has suffered moral and social damage and prejudices, in particular by the excessive duration of the trial proceedings and by the revictimization through the stereotypes and gender-based myths relied upon in the judgement. Karen also suffered pecuniary damages due to the loss of her job.”

“Stereotyping affects women’s right to a fair and just trial and that the judiciary must take caution not to create inflexible standards of what women or girls should be or what they should have done when confronted with a situation of rape based merely on preconceived notions of what defines a rape victim or a victim of gender-based violence, in general.”

With regard the definition of rape, lack of consent is not an essential element of the definition of rape in the Philippines’ Revised Penal Code

Based on this, the CEDAW committee issued the following recommendations Pay Karen the appropriate compensation commensurate to the gravity of the violations of her rights.

Take effective measures to ensure that court cases involving rape allegations are pursued without undue delay.

Ensure that all legal procedures in cases involving crimes of rape and other sexual offenses are impartial and fair, and not affected by prejudices or stereotypical gender notions.

Review of the definition of rape in the legislation so as to place the lack of consent at its center.

Remove any requirement in the legislation that sexual assault be committed by force or violence, and any requirement of proof of penetration, and minimize secondary victimization of the complainant/survivor in proceedings by enacting a definition of sexual assault that either: requires the existence of “unequivocal and voluntary agreement” and requiring proof by the accused of steps taken to ascertain whether the complainant/survivor was consenting; or requires that the act takes place in “coercive circumstances” and includes a broad range of coercive circumstances.

It enjoined the Philippine government to submit a written response in six months regarding what actions it had undertaken to implement the recommendations; translate the decision to Tagalog and other regional languages; and to publish the CEDAW committee decision and to disseminate it widely.

Ursua said the decision of the CEDAW committee on Vertido’s case is “just a step forward.” The WLB said there is still a need for a continuing advocacy to protect women in various forms of gender based-violence. “While human rights are entitlements, women, in particular, because of well-embedded gender based discriminations, need to claim these rights and seek accountability when these are violated.”