You are on page 1of 103

COMMUNICATION UNDER THE OPTIONAL PROTOCOL

TO THE CONVENTION ON THE ELIMINATION OF ALL FORMS
OF DISCRIMINATION AGAINST WOMEN

Submitted by: KAREN T. VERTIDO
assisted by counsel EVALYN G. URSUA*

Alleged victim: KAREN T. VERTIDO

State party: PHILIPPINES

Date of Communication: 29 NOVEMBER 2007

*With the support of the Women’s Legal Bureau, Inc., a legal resource non-
government organization for women based in Quezon City, Philippines and with
research and writing assistance from Maria Karla L. Espinosa. Thanks also to
Feliz Marie Guerrero and Angelo Manlangit for their research and writing
assistance on the trial court decisions and programs.
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 2 of 103

I. Information concerning the author of the communication

Family name VERTIDO

First name KAREN

Middle name TAYAG

Date and place of birth 18 APRIL 1954
BUHI, CAMARINES SUR
PHILIPPINES

Nationality/citizenship FILIPINO

Sex FEMALE

Marital status/children MARRIED; WITH TWO CHILDREN

Occupation Unemployed

Present address Quezon City, Philippines

Mailing address for confidential c/o EVALYN G. URSUA
Correspondence (if other than Room 305, Amaremca Building
Present address) 107-A Kalayaan Avenue, Diliman
1101 Quezon City, Philippines

Fax/telephone/e-mail (632) 9292818
egulaw@yahoo.com
karenvertido@yahoo.com

Submitting this communication as: VICTIM, WITH THE ASSISTANCE
OF COUNSEL
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 3 of 103

II. Name of the State Party

PHILIPPINES

The Philippines ratified the Convention on the Elimination of All
Forms of Discrimination against Women (“Women’s Convention”) on 5
August 1981 and the Optional Protocol to the Convention on 12 November
2003.

III. Nature of the Alleged Violations

The author’s story spans one night of terror and eight years of ordeal
that culminated in a painful denial of the violation she suffered. Her
pursuit of justice frustrated, she comes to the Committee to give an account
of her rape and re-victimization by her own government.

After her rape1 and her agonizing pursuit of justice, the judge,
Virginia Hofileña-Europa, rendered a decision of acquittal that relied upon
gender-based myths and misconceptions about rape and its victims and, in
bad faith, distorted the evidence submitted, to the great injury of the
author.

Judge Europa’s decision re-victimized the author, effectively denied
her equal protection of the law and a just and effective remedy for the
violation and harm that she suffered, and further nullified and impaired
her exercise and enjoyment of her rights and freedoms, all of which
constitute discrimination within the meaning of Article 1 of the

1Rape is one form of violence against women. Violence against women is one form of
discrimination against women. General Recommendation No. 19, which was adopted by
the Committee on the Elimination of Discrimination Against Women in 1992, states that
gender-based violence or violence against women “is a form of discrimination that
seriously inhibits women’s ability to enjoy rights and freedoms on a basis of equality
with men,” within the meaning of Article 1 of the Women’s Convention. Gender-based
violence is violence that is directed against a woman because she is a woman or that
affects women disproportionately. It includes acts that inflict physical, mental or sexual
harm or suffering, threats of such acts, coercion, and other deprivations of liberty.
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 4 of 103

Convention2 in relation to General Recommendation No. 19 and under
other human rights instruments.3 With Judge Europa’s decision of
acquittal, the Philippines violated the author’s right to non-discrimination
and its legal obligation to respect, protect, promote and fulfill that right.
With the acquittal, the Philippines failed in its obligation to ensure that
women are protected against discrimination by public authorities,
including the judiciary. It speaks of the failure of the Philippines to
comply with its obligation to address gender-based stereotypes that affect
women particularly in law and in legal institutions. The acquittal also
evidences the failure of the Philippines to exercise due diligence to punish,
in accordance with national legislation, acts of violence against women,
particularly rape.

The decision is a violation of the positive obligations of the
Philippines as a State party under Article 2 (c), (d) and (f) of the
Convention “to establish legal protection of the rights of women on an
equal basis with men and to ensure through competent national tribunals
and other public institutions the effective protection of women against any
act of discrimination;” “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;” and “to take all
appropriate measures…to modify or abolish…customs and practices
which constitute discrimination against women.”

The violations were committed under the following facts:

2 “For the purposes of the present Convention, the term ‘discrimination against women’
shall mean any distinction, exclusion or restriction made on the basis of sex which has
the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by
women, irrespective of their marital status, on a basis of equality of men and women, of
human rights and fundamental freedoms in the political, economic, social, cultural, civil
or any other field.”
3 See Articles 2, 3, 14 and 26, International Covenant on Civil and Political Rights.
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 5 of 103

The Facts

1. The author was 42-years old and then Executive Director of the
Davao City Chamber of Commerce and Industry, Inc. (“Chamber”) in
Davao City,4 Philippines when she was raped by a former president of the
same Chamber, Jose B. Custodio, who was then 60 years old.

2. The rape occurred in the late evening of March 29, 1996 after an
official function of the Chamber which was attended by both the author
and Jose Custodio.

3. Within 24 hours after the rape, specifically in the afternoon of
March 30, 1996, the author underwent a medico-legal examination
conducted by Dr. Fe Melba G. Mantilla at the Davao City Medical Center.
The case is identified on the Medical Certificate as “alleged Rape,” the
time, date and place of the commission as “11:00 to 12:00 midnight, March
29, 1996, Cabaguio St. Davao City” and the “alleged accused” as “Jose B.
Custodio.”

4. On April 1, 1996, within forty-eight hours after the rape occurred,
the author reported the incident to the Philippine National Police Criminal
Investigation Command Headquarters, 11th Regional Office at Camp
Leonor, San Pedro Street, Davao City. The next day, April 2, 1996, she filed
with the Davao City Prosecution Office an Affidavit Complaint dated April
1, 1996 charging Jose B. Custodio with rape.

5. Initially, the case was dismissed for lack of probable cause by a
panel of public prosecutors who conducted a preliminary investigation, a
procedure that is required under Philippine law. The author appealed the
dismissal of her complaint to the Secretary of the Department of Justice
(DOJ), who reversed the dismissal and ordered the filing of an information
or a formal charge for rape (Annex A) in a Resolution dated October 24,
1996. Jose Custodio filed a Motion for Reconsideration of that DOJ
Resolution. The Secretary of Justice denied this Motion for
Reconsideration.

4
Davao City is a major city in Mindanao, the second largest island in the Philippines
located in the south.
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 6 of 103

6. On the same day that the information was filed in court, on
November 7, 2007, the court immediately issued a warrant of arrest against
Jose B. Custodio. However, the accused was arrested only more than 80
days later (in mid-January 2007), after the chief of the Philippine National
Police issued an order on national television directing the Davao City
police to make the arrest in 72 hours.

7. For eight long years, from 1997 to 2005, the case was pending at
the trial court level. The inordinate delay was caused primarily by several
changes in the trial court judge and the filing of cases by the accused in the
appellate courts concerning the denial of his bail application and of his
motions to inhibit the first judge.5 In all, three judges recused from the
case; the first upon the initiative of the accused (who raised the matter to
the Court of Appeals) and the two others upon the motion of the
prosecution. In September 2002, the case was raffled to Judge Virginia
Hofilena-Europa, who rendered the decision of acquittal on April 26, 2005.

8. At the trial, the author testified that:

8.1. After the official function of the Davao City Chamber of
Commerce, Inc. at the Apo View Hotel in the evening of March 29,
1996, the accused offered to bring her home.6 When she boarded his
car, she was made to believe that he was bringing her home.7 On the
way, the accused took a direction not leading to the author’s place.
She noticed this but before she could express her reaction verbally,
Jose Morada, a friend of the accused who was with them in the car,
explained it away by saying, “Mr. Custodio was taking the wrong
turn because I led [him to] the wrong path.”8 The accused, on the
other hand, explained that he was taking Mr. Morada home first.9
Ms. Vertido suggested that she takes a cab because she was in a
hurry to get home but the accused never gave her the opportunity to
take a cab for he simply sped away.10

5 The accused filed criminal and administrative charges against the first judge.
6 Transcript of Stenographic Notes [TSN], 4 March 1997, pp. 48-49.
7 Id. at 49.
8 Id.
9 Id.
10 Id.
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 7 of 103

8.2. When Ms. Vertido and the accused were left alone in the
car after Jose Morada had alighted at his residence at Belisario
Heights Subdivision, the accused started to make small talk.11 At a
certain point, the accused made a sudden left turn from J.P. Laurel
Avenue towards Cabaguio Street.12 It was at that point when he
suddenly grabbed Ms. Vertido and mashed her breast.13 She lost her
balance. In trying to regain her balance, her right hand landed on
the accused’s left hand pocket where she felt something like a gun.14
She felt scared. Suddenly he let her go and made a left turn.15 At
that point, Ms. Vertido felt confused and disoriented but managed to
ask, “Where are you going?” Then she saw to her right a small neon
sign that said “Gateway.”16 She tried to stop the accused from
proceeding by grabbing the steering wheel and steering it in a
different direction. Suddenly a concrete wall loomed up in front of
them. Seeing that a crash was imminent, Ms. Vertido let go of the
steering wheel.17 The accused managed to regain control of the car
and steered it through a narrow road. Before Ms. Vertido realized it,
they were already inside “four walls without any walls or
windows.” They were inside the garage of a motel. All these
happened so fast.18

8.3. In the motel garage, the accused turned off the ignition
key and told Ms. Vertido he just wanted to talk and to get to know
her better. But Ms. Vertido pleaded with him to let her go, and let
her get out of there. He insisted that they go inside. As a gesture of
protection, she hugged her bag to her chest. At that point, he got out
of the car, went over to Ms. Vertido’s side, opened her door and
asked her to get out. When she did not, he dragged her out of the
car. She was dragged around the open door and hood of the car to

11 Id. at 52-53.
12 Id. at 53.
13 Id. at 54.
14 Id. at 57.
15 Id.
16 Id. at 58.
17 Id. at 60.
18 Id. at 61.
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 8 of 103

the door leading to the motel room, which was about a distance of
three to four meters.19

8.4. When the accused dragged Ms. Vertido just outside the
door of the motel room, he let her go to lock the door. That was
when Ms. Vertido ran towards the inside of the room to look for
another exit.20 She found a door but it was not an exit, it was a
comfort room. She had the impression it was another “tomb.”21 She
locked herself in the comfort room for sometime, trying to compose
herself.22

8.5. While inside the comfort room, Ms. Vertido noticed that
there was no sound or movement at all outside the door of the
comfort room. She then opened the door just wide enough to peep
through, and when she did not see the accused, she went out to look
for a telephone, or another exit, but found none. Then she
remembered that the accused had a cell phone that he had been
using during the dinner-meeting and she hoped it was lying around
for her to use to call for help. Unfortunately, she did not find the cell
phone.23

8.6. After finding no cell phone, Ms. Vertido, hoping that the
accused had left the room altogether, peeped through the divider
leading to the door of the room. However, she found the accused
standing at the doorway with his back to her. He was naked except
for his white briefs, navy blue socks and shoes,24 and was apparently
talking to someone.25 When he sensed that Ms. Vertido was behind
him, he suddenly shut the door and turned towards her. He was

19 Id. at 61, 62, 68. Dr. June Lopez, the expert witness, testified that Ms. Vertido told her
that at this point, “her feet were heavy but very weak” (TSN, 16 December 1997, p. 695).
20 Id. at 69.
21 Id. at 70.
22 Id. at 71.
23 Id. at 80.
24 Id. at 81-82.
25 Affidavit Complaint, p. 2.
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 9 of 103

holding his pants with his left hand, and his right hand was inside
the pocket of the pants.26 Ms. Vertido became afraid that the accused
was going for the gun which she felt while she was parrying his
advances in the car.27 She turned and fled to where she came from,
away from the accused who was going towards her. He caught her
as she was by the bed28 and pushed her on to it.29 The accused then
embraced her, and as she resisted him, he pinned her down by
holding her wrists at the level of her head.30 The accused then placed
his knees between Ms. Vertido’s legs, came on top of her, and tried
to kiss her. She tried to parry his kisses by moving her head
sideways and away from his face telling him, “No sir! This is
wrong!” But he did not listen and kept on. He told her, “Huwag kang
lalaban. Be nice to me. Be nice to me. (Don’t resist. Be nice to me. Be
nice to me.)”31

8.7. In bed, the accused put his weight on top of Ms. Vertido’s
chest such that she could not breathe.32 Ms. Vertido heard the
accused telling her, “Be nice to me, be nice to me, huwag kang lalaban.
Wala namang mangyayari na masama. Wala namang makakaalam nito
kung hindi ka magsasabi (Be nice to me, be nice to me, do not resist.
Nothing bad will happen. No one will know about this if you don’t
tell.)”33 She gasped for breath even as she continued to plead with
the accused, “No sir. Please, sir! No! No!” She felt she was drowning
for lack of air, and compared her feeling to a television being shut
off, with the picture gradually growing smaller until it disappears.34

8.8. While the accused pinned her down in bed, she lost
consciousness. When she came around, she felt the penis of the

26 Id. at 81.
27 Affidavit Complaint, p. 2; TSN, 4 March 1997, p. 57.
28 TSN, 4 March 1997, p. 82.
29 Id. at 92.
30 Id.
31 Id. at 93.
32 Id.
33 Id. at 94.
34 Id. at 94; TSN, 5 March 1997, p. 263.
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 10 of 103

accused inside her vagina and he was moving on her up and down
in the coital fashion.35

8.9. When she regained her consciousness, Ms. Vertido
continued to fight off the accused. She tried to push him away from
her, and scratched and dug her nails into his flesh, even while she
pleaded with him, “Please, Sir! No sir, this is wrong!”
Simultaneously, she also tried to free herself by moving her hips
from side to side.36

8.10. Instead of hearing her pleas, the accused kept on, telling
her that anyway, he will take care of her, that he knows a lot of
people who can help her advance in her career. Utmost in Ms.
Vertido’s recall is her strong revulsion of the obscene language of the
accused who told her, “Masarap ang kiki mo. Sabihin mo din masarap
ang titi ko. (Your cunt feels so good. Tell me my dick feels the
same.)”37

8.11. When all previous efforts to free herself failed, Ms.
Vertido pulled his hair away. He reacted with anger, exclaiming,
“Putang ina! (Mother fucker!)” It was only then that she was able to
dislodge his penis from her genitalia. With the lower part of his body
still on top of her, she felt him stiffen in ejaculation and then slump
on her right side.38

8.12. After washing and dressing, she slowly opened the
comfort room door and saw that the accused was still on the bed and
masturbating.39 Ms. Vertido took advantage of his state of undress
and ran out of the room towards the car40 in order to get out of the
place. She tried to open the accused’s car but to no avail. The accused
also ran after her in his haphazardly dressed state. When Ms.
Vertido saw him, she screamed. The accused told her, “Huwag kang

35 TSN, 4 March 1997, pp. 95, 240-241.
36 Id. at 96.
37 Id. at 97.
38 Id. at 98, 106.
39 Id. at 112.
40 Id. at 113.
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 11 of 103

sisigaw. Iuuwi kita. Huwag kang sisigaw. Calm down. (Don’t shout. I
will bring you home. Don’t shout. Calm down.)”41

9. The complainant testified for a total of seven hearings,42 for three
hours each hearing. The prosecution also presented the doctor who
conducted the medico-legal examination on the complainant, her two
psychiatrists, Dr. June Pagaduan Lopez and Dr. Pureza T. Oñate, and her
husband Damaso Vertido. All the prosecution witnesses were heard by
the first judge who was eventually forced to inhibit from the case.

10. Dr. June Pagaduan Lopez was presented as an expert witness in
victimology and rape trauma43 to prove that she provided therapy to
Karen Vertido and her family and found Karen Vertido to be suffering
from post traumatic stress disorder, a psychiatric disorder commonly
resulting from rape; that a broad range of responses is possible in rape
situations depending on the circumstances; that the absence of physical
injury in this particular case does not rule out physical resistance; that rape
can happen to any woman; that rape is not about sex but an act of violence
that cuts across ages, educational backgrounds and socio-economic classes;
and that Karen Vertido and her family suffered extensive damage as a
result of the rape. 44 She was extensively cross-examined and re-cross
examined by the defense but her testimony was not at all impeached. The
main points of Dr. Lopez’s testimony are:

41 Id. at 114.
42 Including one hearing where the complainant was presented by the defense as a
hostile witness.
43 At the time she testified in court, Dr. June Lopez has been in the practice of psychiatry

for 16 years. She is a medical doctor specializing in behavioral medicine, and a
consultant in psychiatry, victimology and traumatology. Her education was at the
University of the Philippines, Columbia University, and The Albert Einstein University.
She also received training under various programs at rape crisis centers in New York
and Boston, particularly, the Saint Vincent Medical Center (TSN, 15 August 1997, pp.
506-508). She published a documentation of cases of sexual torture by the military,
published in the International Journal of Sex and Marital Therapy in New York, and
conducted studies on domestic violence and rape with women’s organizations such as
the Women’s Crisis Center and the KALAKASAN (Id. at 509). The defense accepted her
as an expert in victimology and rape trauma (Id. at 518).
44 Id. at 491-505.
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 12 of 103

10.1. Karen Vertido was her patient for 18 months prior to her
testifying in court, having seen her in a clinical context 17 times
within that period. The first clinical session was on April 24, 1996,
but Dr. Lopez also saw Karen Vertido in her home in Davao City on
April 16, 1996.45

10.2. Even on the first occasion that Dr. Lopez met Karen
Vertido on April 16, 1996, she concluded that the latter had been
traumatized; she observed that Karen was “obviously distraught and
her eyes showed that she had been crying. She was seated with
basically lack of expression but at the same time quite vigilant or her
eyes [were] looking around and [she had] a rather started (startled)
response [to] light noises. Light noises tended to startle her easily.
She did not talk much. She just stayed in one corner as other visitors
gathered around.” Dr. Lopez said that Karen “depicted symptoms of
acute post traumatic stress disorder.”46

10.3. Dr. Lopez defines post traumatic stress disorder as a
“phenomenon observed in individuals who had been subjected to
very extreme traumatic events and circumstances.”47

10.4. Dr. Lopez had a session with the complainant’s family
on April 27, 1997, upon their request. It was also to cushion the
adverse impact on the complainant’s father, who had been a long
time cardiac patient, upon being told about what had happened to
the complainant. Until that time in Dr. Lopez’s clinic, Karen
Vertido’s father, who was then 75 years old, was shielded from the
knowledge of the rape by the rest of the family who were all in fear
of his condition being aggravated by the knowledge of the rape.

10.5. Karen Vertido’s father at first thought she was subjected
to a minor sexual harassment. Although he felt extreme regret that
as a retired lawyer, he would not be able to help her, he was
confident that, knowing his daughter, she would be able to
overcome this and handle the legal battle. But upon being told his

45 Id. at 519, 520.
46 Id. at 520, 521, 522.
47 Id. at 522, 523.
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 13 of 103

daughter was raped, Karen’s father broke down in tears, clutched his
chest, gasped for breath, and kept asking “Who did it? Who is he?
How did it happen?”48

10.6. Dr. Lopez’s observed that Karen’s 11-year-old daughter
was suffering from tremendous guilt because she felt she could have
prevented the rape had she gone with her mother to the meeting.
The daughter also refused to go to school because she was afraid of
what her classmates would say about her mother. Dr. Lopez
diagnosed that the daughter “was suffering from severe emotional
reaction to the event so that I advised that she be referred to a child
psychologist or psychiatrist for further treatment.”49

10.7. Dr. Lopez’s diagnosis of Karen’s son was that he was
similarly suffering from the event, although he had “constricted apec
(affect)” His extreme fright and anger was bottled up. Dr. Lopez
concluded he needed further sessions and follow-up, so she decided
to keep the son under her care. The son was later confined in a
hospital, and was referred to Dr. Cornelio Banaag, a child
psychiatrist whom Dr. Lopez felt more competent to treat Karen’s
son.50

10.8. Dr. June Lopez concludes that “the emotional intensity
that was very apparent in the session [with the family and the
complainant] to be quite consistent with the magnitude of that
traumatic event and that it was authentic and could not have been
fabricated or scripted. That also made [her] realize that the extent of
emotional injury that will affect the victim as well as her family will
be expectedly great and that they will need intense professional and
very effective therapy.”51

10.9. When asked to summarize her findings after her 17
clinical sessions with the complainant, Dr. Lopez said that:

48 Id. at 530-534, 539, 540, 541.
49 Id. at 534, 535.
50 Id. at 537, 538, 539.
51 Id. at 548, 549.
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 14 of 103

The 17 sessions unfolded before me a classic picture of post
traumatic stress disorder as it is described in the textbook at
varying periods after the trauma.52

10.10. Dr. Lopez also concluded that after 17 sessions within a
period of 18 months, Karen’s symptoms graduated from acute post
stress traumatic disorder to chronic post traumatic stress disorder,
necessitating putting Karen Vertido on anti-depressants.53

10.11. Dr. Lopez was certain that Karen Vertido’s condition
was a result of rape, based on her analysis of accounts by Karen
Vertido herself and her family. When asked if in the field of
psychiatry one can determine whether a person is telling the truth or
fabricating events54 Dr. Lopez answered:

We have the skills to see the consistency in these patterns
and that it is part of our expertise to arrive at a logical
explanation for behavior borne out of systematic research.
So it is difficult to fabricate or feign mental disorder
especially in situations where the individual is actually your
patient and you have the distinct advantage of having many
occasions to study the patient, to interact with the patient but
you are actually with the patient intensively, several
sessions, just as much sessions as I had with Karen Vertido.55

10.12. When asked specifically whether Karen Vertido
fabricated her claim that she was raped as well as the behavior she
exhibited during the clinical sessions or the data she provided to the
psychiatrist, Dr. Lopez answered:

Based on my professional experience I would say it is
humanly impossible to fabricate and be consistent, over a
period of 18 months, 17 sessions without a professional like

52 Id. at 551.
53 Id. at 551-555.
54 Id. at 556.
55 Id. at 557.
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 15 of 103

myself detecting these inconsistencies and detecting any
effort to fabricate.56

10.13. Post traumatic stress disorder can last a lifetime. In fact
Dr. Lopez thinks that Karen Vertido had symptoms consistent with
the constrictive phase of the post traumatic stress syndrome,
wherein “…the survivor seems so normal or expect to be normal
unless you evaluate closely that the survivor is far from normal. She
is unable to assume her functions as she used to be… ”57

10.14. Dr. Lopez explains the lack of physical injury. Based on
studies, stranger attacks have 60-70% higher incidence of physical
injury compared to acquaintance rape. The typical reaction to
acquaintance or confidence rape would be “stalling for time…
pleading… bargaining… flattery… and non-physical ways of
bargaining with the assailant or would-be attacker.”58

When it becomes clear that the attack is inevitable, the task
become physical, mental… In this case the victim would try
to actively avoid the attack or further injury or simply allow
the attack to finish as soon as possible in order to be spared
the agony.59

10.15. Dr. Lopez said that the common coping mechanism is
dissociation. “…The victim attempts to separate herself from reality,
meaning that you begin to brace yourself as if nothing is happening.
It is a very effective way of coping with extreme pain or injury…
somehow that makes you survive.”60

10.16. In the case of Karen Vertido, “she arrived at this stage
when the inevitable was happening so she split from herself, saw
herself in the mirror being raped and thinking she was resisting but
really physically not resisting.”61

56 Id. at 558.
57 Id. at 560.
58 Id. at 564, 565, 566.
59 Id. at 566.
60 Id. at 567, 568.
61 Id. at 568.
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 16 of 103

10.17. Dissociation in Karen Vertido was manifested also in
her focus on the attacker’s blue socks, of seeing herself in the mirror.
“She also suffers from fragmentation of memory evolving to
significant amnesia or traumatic memory. She still cannot remember
all the details of the instances… from the car to going up the room.”
It is definitely normal for a rape victim not to be able to relate all the
details of the incident.62

10.18. On motives for rape, Dr. Lopez said “… the motives are
more related to anger, hostility and power” than it is of motivations
of sexual nature. “There are certain psychosocial factors showing
that rapists are stressed individuals because of their own inability of
dealing day to day life and so they try to regain their sense of virility
and mastery by overpowering or victimizing other persons.”63

10.19. On cross-examination, defense counsel Honesto
Cabarroguis asked Dr. Lopez if she agrees that “fantasies of rape to
be common among women, in fact, this is admitted or accepted
universally.” Dr. Lopez replied unequivocally “No.”64

10.20. Mr. Cabarroguis also asked Dr. Lopez why, if the
experience was so traumatic, did not Karen Vertido report the rape
to her husband upon coming home that night. Dr. Lopez said that
this was a very normal reaction of someone who had just undergone
the trauma of acquaintance rape. She explained, “Telling the incident
to another person who is someone whom the victim expects to be
more neutral than her husband is quite expected… It would take
several days especially in instances of acquaintance rape for victims
to appreciate what has happened and even more so would be able to
reveal exactly what had been a traumatic event.”65

62 Id. at 570, 571.
63 Id. at 576.
64 Id. at 629.
65 Id. at 633, 634.
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 17 of 103

10.21. Mr. Cabarroguis confronted Dr. Lopez with a quote
from Dr. Karl Manninger in a book, “Sex Discrimination and the
Law, Causes and Remedies”66

The incidence of false accusations and potential for
unjust convictions are perhaps the greatest with sexual
offenses. Women often falsely accuse men of sexual attacks
to extort money, to force marriage, to satisfy a childish desire
for notoriety, or to attain personal revenge…67

10.22. Dr. Lopez explained that while Dr. Manninger is
considered the father of American psychiatry, he is anachronistic in
his reputation and credentials when it comes to modern psychiatry,
and his work has long been debunked by more recent studies.68
When asked for an opinion by defense counsel, Dr. Lopez said she
vehemently disagrees with the quotes by defense counsel. Dr. Lopez
brands these claims as “ridiculous.”69

10.23. Dr. Lopez further explained that “The passages cited or
attributed to Karl Manninger were statements made as early as 1900
for which these passages were quoted earlier literatures not later
than 1933 which tended to claim that the number of false accusation
reports by women should be, is expected to be high because of the
tendency of women to fantasize about sexual assault or rape. These
passages were actually being cited by the authors of the book, Sex
Discrimination and the Law, as obsolete and unscientific, unfounded
thinking that pervaded those early years and at this point in time
have been scientifically debunked or are no longer deemed to be
acceptable.”70

66 TSN, 16 December 1997, pp. 718-732.
67 The private prosecutor pointed out that the quote from “Sex Discrimination and the Law:
Causes and Remedies” is preliminary to an extensive critique and citation of other
authorities debunking the lines quoted by defense counsel. Id. at 722, 723.
68 Id. at 724-725.
69 Id. at 731-732.
70 Id. at 1067.
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 18 of 103

11. The prosecution also presented Dr. Pureza T. Oñate, a
psychiatrist of note from Cebu City,71 who testified on April 18, 1998. She
was presented to prove that she conducted a psychiatric evaluation of the
complainant on April 4, 1996 and that she found that the complainant was
suffering from stress disorder.

11.1. The evaluation was done in Dr. Oñate’s clinic in Cebu
City. She interviewed the complainant, Dr. Laureen S.A. Conanan,
another attending psychiatrist of the complainant, and Damaso
Vertido, complainant’s husband. She concluded that “… Karen
Vertido was suffering from acute stress disorder and as far as my
professional judgment is concerned I told her that I believed she had
been a victim of a very traumatic event and the only information
given to me and the only information that I could see was the
alleged rape that happened 5 days ago [earlier].”72

12. For its evidence, the defense presented one of the defense
lawyers,73 a room boy from the Bermuda Gateway Motel,74 the motel
security officer,75 and the accused’s friend, Jose Morada.76 The defense
lawyer testified on matters that occurred after, and peripheral to, the rape
incident; Jose Morada, on what allegedly happened in the car prior to his
being dropped off at his house; the room boy, that he did not hear any
shout or commotion from the room where the rape occurred and that had
there been any shout or commotion, it would have been heard from
outside; and the motel security officer, on the policies of the motel and that
he did not receive any report about any untoward incident on the night of
March 29, 1996.

13. The accused also testified. He admitted bringing Ms. Vertido to
the motel, but claimed that it was consensual and that, although they tried
to have sexual intercourse that night, the coitus was not consummated

71 Cebu City is one of the major cities of the Philippines, located in the central part of the
country.
72 Id. at 1104.
73 Honesto Cabarroguis, who testified on December 11, 1998 and November 25, 2002.
74 He testified on September 8, 9 and 10, 1998.
75 He testified on October 28, 1998.
76 His testimony was taken by deposition at his own residence on December 10, 1998.
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 19 of 103

because they were interrupted by the motel room boy and thereafter, he
could no longer have an erection.77 He claimed that he and Karen Vertido
were already flirting long before the alleged rape; that he called up Karen
Vertido so many times before the day of the rape at the Davao City
Chamber of Commerce office; that she would answer the phone directly
because she had a direct line; that he also visited her several times at her
office and on those occasions flirted with her; that in fact her office was a
“cubicle with dividers”; that on the night of the rape she agreed to be
Custodio’s personal guest in the dinner with the Malaysian businessmen;
that the dinner was a personal affair.78

14. All the defense witnesses (except for the first part of the
testimony of the defense lawyer) testified before Judge Europa.

15. In June 2004, the case was finally submitted for resolution. Both
parties submitted their respective Memorandum (Annexes B and C)

16. Finally, on 26 April 2005, the Regional Trial Court of Davao
City, Branch 11, presided by Judge Virginia Hofileña-Europa promulgated
the decision (Annex D), acquitting Jose B. Custodio from the charge of
rape.

The Decision of the Court

In her decision, Judge Virginia Hofileña-Europa held:

The Issue

As in all rape cases, the primary issue in this case is whether
or not there is sufficient evidence to find the accused guilty beyond
reasonable doubt of having utilized force and/or intimidation upon
the complainant to gain carnal knowledge of her.

The three guiding principles in reviewing rape cases are: 1)
An accusation for rape can be made with facility; it is difficult to

77 TSN, 9 January 2003, pp. 87-110.
78 Id. at 25-34, 49-63.
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 20 of 103

prove but more difficult for the person accused, though innocent, to
disprove; 2) in view of the intrinsic nature of the crime of rape
where only two persons are usually involved, the testimony of the
complainant must be scrutinized with extreme caution; and 3) the
evidence for the prosecution must stand or fall on its own merits
and cannot be allowed to draw strength from the weakness of the
evidence for the defense. (People vs. Barrientos, 285 SCRA 221
(1998); People vs. Balmoria, 287 SCRA 687 (1998); People vs. Gallo,
284 SCRA 590 (1998).

The Findings of the Court

This court cannot understate the difficulty magistrates
undergo in cases such as the one at bar that have traveled from one
judge to another and the records of which are pregnant with
interlocutory incidents.
Not having personally received the evidence of many of the
witnesses and, therefore, having no inkling of their demeanor
during their respective testimonies, it makes it all the more difficult
to separate the chaff from the grain in order to arrive at the truth as
all magistrates must.

The fact that the charge in this case is for rape makes it
doubly exigent because, as so often observed by the Supreme
Court, it is the intrinsic nature of the crime of rape that usually only
two persons are involved.

Being a woman herself, the undersigned presiding judge
must state that there can be no worse violation of a woman's person
than the crime of rape. Even the possibility of death, it can be said,
offers less trepidation than the thought of having one's innermost
sanctum violated with brutal force and/or intimidation.

The guiding principle in determining charges of rape, as
ruled in the case of People vs. Joseph Orilla (G.R. Nos. 148939-40,
February 13, 2.004) states that "When a woman says that the
accused raped her, in effect, she says all that is necessary to show
that the accused raped her, and if her testimony meets the test of
credibility, the court may convict the accused on that bases. The
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 21 of 103

bottom line, therefore, is the credibility of the testimony of the
complainant.

The Court appreciates the proposition of the prosecution that
rape can exist even if the victim did not shout for help, did not
appear to have resisted to the point of death and where there are no
physical injuries to corroborate her allegations. As ruled in the case
of People vs. Roger Federico (G.R. No. 146956, July 25, 2003, 407
SCRA 290)

"x x x the workings of the human mind placed
under emotional stress, x x x are unpredictable.

People react differently—some may shout,
some may faint, and some may be shocked into
insensibility while others may openly welcome the
intrusion. In any case, the law does not impose upon a
rape victim the burden of proving resistance. Physical
resistance need not be established in rape when
intimidation is exercised upon the victim and she
submits herself against her will to the rapist's lust
because of fear for life and personal safety."

Applying this principle, it must be determined whether or
not the complainant in the case at bar had the strength to resist or
was she subjected to such force or intimidation that she cowered
into submission for fear of danger to her life and limb.

The problem with the complainant's testimony is the fact
that she appears to have experienced both.

Premised on her testimony, the complainant had the courage
to resist the advances of the accused. She pushed him away when
the accused mashed her breast while they were still in the car (TSN,
March 4, 1997 pp. 53-57). Even after she claimed to have touched
the "hard object" in the accused's pants that she says she thought
was a gun, she threw caution to the wind by grabbing the steering
wheel when the accused had turned to the road going to the
Bermuda Gateway Motel (TSN March 4, 1997, pp 60-61).
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 22 of 103

When the accused was trying to convince her to go inside the
motel room, the car was already inside the garage, she testified that
she refused to budge and, according to her, the accused had to go to
her side and drag her into the room (TSN, March 4, 1997 pp. 62-69)
and once inside the room, she apparently had the presence of mind
to go into the bathroom and lock herself in (TSN, March 4, 1997 pp.
70-71).

When she regained consciousness and found the accused
already violating her womanhood, she claims to have tried to fight
him off by pushing him away in his shoulders and neck, scratching
him with her nails and trying to move her hips from side to side
and she even pulled his hair (TSN March 4, 1997 pp. 96-98).

After the alleged dastardly deed, the complainant claims that
she tried to escape when she saw the accused still naked on the bed
and masturbating (TSN, March 4, 1997 pp. 113-114) and, when the
accused's car slowed down along the Bankerohan area, the
complainant apparently jumped out of a moving, albeit slow,
vehicle to get away from the accused (TSN, March 4, 1997, pp. 116-
117).

On the other hand, the complainant and the prosecution
explains the failure of the complainant to shout for help and to exert
more efforts to escape the lustful desires of the accused by positing
that she was intimidated and she feared for her life when she felt
something like a gun (Memorandum for the prosecution pp. 38-39
(TSN March 4, 1997 p. 57).

On this point, this Court must state that an examination of
the testimony of the complainant does not show any statement or
even any allegation of any act on the part of the accused showing
that there was such a gun and, much less, that the accused was
using it to intimidate her. On the contrary, the statements claimed
by the complainant to have been made by the accused depicts him
as an aging Lothario, a dirty old man trying to seduce her with
offers of material gain and placate her with promises that he would
take care of her.

It appears to this Court that the complainant relies on the
allegation of fear and intimidation to explain her inaction when
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 23 of 103

action was expected while, in the same breath, alleging that she
exerted great efforts to resist and escape from the accused.

While this Court is not unmindful of the fact that the
Supreme Court has, on more than one occasion, ruled that the
failure of the victim to try and escape does not negate the existence
of rape, these rulings cannot apply to the case at bar. Considering
first, the fact that, as explained above, the testimony of the
complainant shows that she had the courage to resist the advances
of the accused, second, the fact that the complainant does not
appear to be a timid woman who could easily be cowered, and
finally the fact that there is no clear evidence of any direct threat of
grave harm coming from the accused, this Court cannot understand
why she did not escape when she appeared to have had so many
opportunities to do so.

Prescinding from her testimony, given that she still gave the
accused the benefit of the doubt after he brought Mr. Morada home
first before her, she necessarily knew that the intentions of the
accused were indecent when he allegedly mashed her breast after
turning into Cabaguio Avenue. Why then did she not try to get out
of the car when the accused must have applied the brakes to avoid
hitting the wall when she grabbed the steering, wheel?

Why did she not get out or even shout for help when the car
must have slowed down before getting into the motel room’s
garage? Why did she not stay in the bathroom after she had entered
and locked it upon getting into the room? Why did she not shout
for help when she heard the accused talking with someone? Why
did she not run out of the motel's garage when she claims she was
able to run out of the motel room because the accused was STILL
NAKED AND MASTURBATING on the bed? Why did she agree to
ride in the accused’s car AFTER he had allegedly raped her when
he did not make any threats or use any force to coerce her into
doing so?

This Court cannot just accept the testimonies of the
psychiatrists, Dr June Pagaduan Lopez and Dr. Pureza T. Unate as
gospel truth particularly considering that their respective cross-
examination revealed that there were material details not made
known to them which, by their own admission, they could not
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 24 of 103

cross-question her about for fear of aggravating the stress that they,
at the time, perceived her to be under.

There were simply too many opportunities for the
complainant to escape or evade the alleged lustful desires of the
accused that she did not take advantage of to brush away under a
general allegation of fear. The observation of the Supreme Court in
the case of People vs. Jose Oga (G.R. No. 152302, June. 8, 2004) is
enlightening.

"Indeed, Irene's demeanor was simply
inconsistent with that of any ordinary Filipina whose
instinct dictates that she summon every ounce of her
strength and courage to thwart any attempt to
besmirch her honor and blemish her purity. True,
women react differently in similar situations, but it is
unnatural for an intended rape victim, as in the case at
bar, not to make even a feeble attempt to free herself
despite a myriad of opportunities to do so. x x x."

Similarly, this Court finds the allegations of the complainant
as to the sexual act itself to be unbelievable. She claimed that when
she regained consciousness and found the accused with his penis
already inside her vagina, she tried to fight him off by pushing him
away on his shoulders and neck, scratching him with her nails and
trying to move her hips from side to side and she even pulled his
hair which apparently hurt him and caused him to exclaim "Putang
Ina!"

If the complainant is to be believed, even with such kind of
resistance and pain, the accused was still able to proceed to the
point of ejaculation, as implied by her testimony. Considering that
the accused in this case is already in his sixties, the implied sexual
prowess necessary to achieve what the complainant claims
happened is simply unbelievable.

On this point, the observation of the Supreme Court in the
case of People vs Anotnio Pailano (G-R. No- 43602, January 31,
1989) 169 SCRA 649, gives some guidance. Thus:
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 25 of 103

"Given the choice between the separate accounts of
the complainant and the accused-appellant, the court
inclines in favor of the latter. It is in our view more
believable. Anita never spoke of any difficulty on the
part of Pailano in violating her. She simply said he
removed her panty and entered her. No effort was
mentioned; it seemed she was talking of a vigorous
stud. Yet, the accused appellant was not a teenager or
even only in the prime of his life at the time of their
sexual encounter. He was all of sixty-nine years old.

Considering his age and emotional pressures of the
moment, we doubt if Pailano could have
accomplished the rape as easily as Anita narrated it.
The prosecution has not offered any proof of his
sexual prowess, and under stress at that. By contrast,
the accused appellant did not hesitate to testify, at the
risk of his manly pride, that he did not easily have an
erection during the tryst with Anita and that it took
some fondling from her before his organ could
respond. This was a hard and humiliating fact but it
had to be admitted."

It is true that the testimony of the accused, particularly his
claims of regular visits to the DCCCI office as well as alleged
flirtations with the complainant there and over the telephone
appears to have enjoyed much embellishment on his part,
considering the rebuttal testimony of Mr. Danilo Balucos, Ms. Joji
Ilagan-Bian and Mr. Protacio Tacondong.

Contrary to the claims of the complainant, however, the
defense was able to establish that she and the accused were more
than nodding acquaintances. On this point, this Court considers the
note (Exhibit 5) admittedly written by the complainant (TSN,
August 14, 1997—pp. 80-81) that reads thus:

“For past president Joe
Never mind if we were second place. No other
delegation could beat our kaguwapuhan.
Sgd./Karen"
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 26 of 103

It is difficult to believe that such a note would be written by
the complainant in that manner to someone whom she does not, at
the very least, consider a friend. This is emphasized by the fact that
the complainant could not even remember having written any
similar note to the other people in the picture (Exh. 4) that the note
accompanied (TSN August. 14 1997, p. 81). This, to the mind of this
Court, contradicts her own insinuation that she is used to writing
notes like that.

Similarly important, is the fact that the testimony of the
accused does enjoy some corroboration on material points from the
testimony of other witnesses.

Mr. Jose Morada corroborated the fact that on the trip from
Apo View Hotel to his house, it was the complainant who was
seated in the passenger seat next to the accused and that the
complainant did not complain when the accused brought him home
before her (TSN, December 10, 1998, Exit 17 p. 17-f)

Likewise, the testimony of the roomboy, Gilbert Lomanta,
that he did not hear any commotion or shouting from the room
occupied by the accused and the complainant on that fateful
evening, that such a commotion would have been heard, (TSN
September 8, 1998 p. 29) and that he did collect the room rentals
from the accused (TSN, September 10. 1998, p. 200).

While the prosecution claims that Mr. Lomanta's testimony
does not contradict that of complainant's because she never testified
that she shouted or made any commotion inside the room, there
was at least one instance when the complainant positively testified
that she screamed.

This was after the alleged rape when she said that when she
saw the accused naked on the bed and masturbating, she ran out of
the room, tried to open the car and that when the accused came out
and went towards her she allegedly SCREAMED prompting him to
say "Huwag kang sisigaw, iuuwi na kita, huwag kang sisigaw." He
tried to calm her down. (TSN, March 4, 1997, pp. 113-114). Such a
scream would have been more audible considering that it was
supposedly done in the garage and no longer inside the room.
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 27 of 103

The prosecution points out that both of these witnesses,
Morada and Lomanta, had contradictions in their testimonies.
However, after considering such arguments, this Court finds that
these contradictions are hardly any basis to conclude that either of
the two are lying all through out their testimonies. Inconsistencies
are expected from the testimonies of uncoached witnesses. What is
important is that the testimonies corroborate each other on
important and relevant details concerning the principal occurrence
(People vs. Narciso Nazareno, G.R. No. 103964, August 1, 1996).

While the defense of the accused is certainly not ironclad, the
weakness of the defense alone cannot result to the conviction of the
accused. It is well-settled that "the prosecution evidence must stand
or fall on its own merits and cannot draw strength from the
weakness of the defense." (People vs. Mario Cabalse, G.R. No.
146274, August 17, 2004).

All matters considered, the evidence presented by the
prosecution, particularly the testimony of the complainant herself,
leaves too many doubts in the mind of the Court to achieve the
moral certainty necessary to merit a conviction.

Again, the case of People vs. Mario Cabalse (supra) offers
some guidance:

“Indeed, it is the primordial duty of the
prosecution to present its side with clarity and
persuasion, so that conviction becomes the only
logical and inevitable conclusion. What is required of
it is to justify the conviction of the accused with moral
certainty as to the presence of the elements
constituting the offense, not to mention the identity of
the offender. Upon the prosecution's failure to meet
this test, acquittal becomes the constitutional duty of
the court, lest its mind be tortured with the thought
that it has imprisoned an innocent man for the rest of
his life.

Unless the prosecution overturns then the
presumed innocence of an accused by competent and
credible evidence proving his guilt beyond reasonable
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 28 of 103

doubt, the presumption remains. The prosecution
having failed to discharge the onus probandi,
appellant's presumed innocence stands."

In the case of People vs. Ricky Sodsod (G.R. Nos. 141280-81,
June 16, 2003) 404 SCRA 39, guiding principles in deciding rape
cases were reiterated as follows:

"The Court adheres to the rule that by the very
nature of the crime of rape, the lone testimony of the
complainant is enough to sustain conviction, provided
that such testimony must meet the test of credibility.
The testimony should not only come from the mouth
of a credible witness, it should likewise be credible
and reasonable in itself, candid, straightforward, and
in accord with human experience. Hence the exacting
standard of proof beyond reasonable doubt acquires
more relevance in rape charges which are easy to
make but harder to prove and harder still to defend
by the party accused who may be innocent. This
Court will not condemn a person if there exists the
slightest hint of reasonable doubt as to his guilt."

Applying these principles to the case at bar, as this court is
unconvinced that there exists sufficient evidence to erase all
reasonable doubts that the accused committed the offense charged,
its duty to acquit him is unavoidable.

Justice, after all, must mean freeing the innocent as much as
convicting the guilty, if and when the evidence warrants it.

WHEREFORE, PREMISES CONSIDERED, the prosecution
having failed to prove the guilt of the accused beyond reasonable
doubt, judgment is hereby rendered finding JOSE B. CUSTODIO,
NOT GUILTY of the charge of rape and ordering this case
DISMISSED. The warden of the CITY JAIL at MAA, Davao City is
hereby ordered to release the accused form detention unless he is
being detained for another crime.

No pronouncements as to costs.
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 29 of 103

SO ORDERED.

Given this 11th day of April, 2005 in Davao City.

VIRGINIA HOFILEÑA-EUROPA
Judge

The author submits that the decision is discriminatory within the
meaning of Article 1 of the Women’s Convention in relation to General
Recommendation No. 19 for the following reasons:

A. The decision relies upon gender-based myths and misconceptions
about rape and rape victims.

B. The decision was rendered in bad faith, without basis in law and
in fact, to the great injury of the author.

A. The decision relies upon gender-
based myths and misconceptions
about rape and rape victims.

Article 5 (a) of the Women’s Convention states that States Parties
shall take all appropriate measures “to 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 the stereotyped roles for men and women.” General
Recommendation No. 19 comments on this article (and Articles 2(f) and
10(c)) by stating that “traditional attitudes by which women are regarded
as subordinate to men or as having stereotyped roles perpetuate
widespread practices involving violence or coercion. Such prejudices and
practices may justify gender-based violence as a form of protection or
control of women.”
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 30 of 103

This is precisely the effect of myths and misconceptions about rape
and rape victims in Philippine jurisprudence.79 To this day, some
prosecutors and judges use these mistaken beliefs and false presumptions
to justify dismissals of and acquittals in rape cases. For the most part, the
credibility of the complainant in a rape case is based upon a standard of
behavior the courts believe a Filipina and a rape victim should observe.
Those who satisfy the court’s stereotype become credible complainants
while those who deviate from it arouse suspicion and distrust that lead to
an acquittal. Thus, straying from the stereotype seriously impairs a rape
victim’s chances of obtaining judicial relief.

Moreover, these myths and misconceptions, by themselves,
constitute discrimination on the basis of gender for they are peculiar
evidentiary burdens imposed on women in rape trials but not in cases
involving other categories of physical assault.

In the author’s case, the decision of the trial court invokes a number
of gender-based myths and stereotypes, without which conviction of the
accused would have resulted. Relevant parts of the decision are quoted
immediately after each myth, and analysis follows.

79Some of these myths and misconceptions have been identified by the Women’s Legal
Bureau, Inc. (WLB), a non-governmental legal resource organization that works for the
defense and promotion of women’s human rights, as follows: that only young, beautiful
and sexually attractive women get raped; that rape is perpetrated only by poor,
pathologic and depraved men; that handsome, rich, educated men do not need to rape;
that women are partly to blame for the rape because they behave in ways that elicit
men’s sexual desires; that sexy clothes excite men, so to avert rape it is a woman’s
responsibility to avoid provocative or revealing attire; that women who do not show
physical resistance to rape must have wanted the rape to occur; that no physical injury
means no resistance from the victim or no use of force by the rapist; that women who cry
“rape” must have an ax to grind against the rapist; that rape is a crime of lust or passion;
that rape happens only in poorly lit or secluded places; that a victim of rape must
demonstrate an obviously distraught emotional state; and that the age, social class,
looks, demeanor and gender of a person are relevant when considering the likelihood of
her or his becoming a victim and the likelihood of his or her being a rapist. [Women’s
Legal Bureau, Inc. Rape and Human Rights: Issues and Challenges. Quezon City (2005)]
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 31 of 103

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

There were simply too many opportunities for the private
complainant to escape or evade the alleged lustful desires of the
accused that she did not take advantage of to brush away under a
general allegation of fear. The observation of the Supreme Court
in the case of People vs. Jose Oga (G.R. No. 152302, June 8, 2004) is
enlightening.

"Indeed, Irene's demeanor was simply inconsistent with
that of any ordinary Filipina whose instinct dictates that
she summon every ounce of her strength and courage to
thwart any attempt to besmirch her honor and blemish her
purity. True, women react differently in similar situations,
but it is unnatural for an intended rape victim, as in the case
at bar, not to make even a feeble attempt to free herself
despite a myriad of opportunities to do so. x x x."80

First, the finding of the court that “there were simply too many
opportunities for the private complainant to escape or evade the alleged
lustful desires of the accused that she did not take advantage of” is
contrary to the evidence presented. Her many attempts to escape or
“evade the alleged lustful desires of the accused” could hardly be
considered as “feeble.” As stated in the narration of facts, the author did
the following to avoid getting raped:

• While in the car, the accused grabbed Ms. Vertido and mashed her
breast. She reacted by pushing him away and protesting, “What are
you doing?”
• When Ms. Vertido realized that they were about to enter a motel, Ms.
Vertido grabbed the wheel of the car and tried to steer it in a different
direction to stop him from proceeding.
• After he was able to drive the car into the motel garage, she pleaded
with him to let her go, and let her get out of there.
• After he was able to drag her to the door of the motel room, she ran
towards the inside to look for another exit. She found a door but it was

80 Decision, pp. 15-16; emphasis supplied.
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 32 of 103

not an exit, it was a comfort room. She locked herself in the comfort
room for sometime, trying to compose herself.
• While inside the comfort room, Ms. Vertido noticed that there was no
sound or movement at all outside the door of the comfort room. She
then opened the door just wide enough to peep through, and when she
did not see the accused, she went out to look for a phone, or another
exit, but found none.
• After finding no phone, Ms. Vertido, hoping that the accused had left
the room altogether, peeped through the divider leading to the door of
the room. However, she found the accused standing at the doorway
with his back to her. When he sensed that Ms. Vertido was behind him,
he suddenly shut the door and turned towards her. He was holding his
pants with his left hand, and his right hand was inside the pocket of
the pants. Ms. Vertido became afraid that the accused was going for the
gun which she felt while she was parrying his advances in the car. She
turned and fled to where she came from, away from the accused who
was going towards her. He caught her as she was by the bed and
pushed her on to it. The accused then embraced her, and as she resisted
him, he pinned her down by holding her wrists at the level of her head.
The accused then placed his knees between Ms. Vertido’s legs, came on
top of her, and tried to kiss her. She tried to parry his kisses by moving
her head sideways and away from his face telling him, “No sir! This is
wrong!” But he did not listen and kept on.
• In bed, the accused put his weight on top of Ms. Vertido’s chest such
that she could not breathe. Thus she testified that she gasped for breath
even as she continued to plead with the accused, “No sir. Please, sir!
No! No!” She felt she was drowning for lack of air, and compared her
feeling to a television being shut off, with the picture gradually
growing smaller until it disappears.
• When she regained her consciousness, Ms. Vertido continued to fight
off the accused. She tried to push him away from her, and scratched
and dug her nails into his flesh, even while she pleaded with him,
“Please, Sir! No sir, this is wrong!” Simultaneously, she also tried to
free herself by moving her hips from side to side.
• When all previous efforts to free herself of the accused failed, Ms.
Vertido pulled his hair away to which he reacted with anger,
exclaiming, “Putang ina! (Mother fucker!)” It was only then that she
was able to dislodge his penis from her genitalia.
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 33 of 103

• After washing and dressing, she slowly opened the comfort room door
and saw that the accused was still on the bed and masturbating. Ms.
Vertido took advantage of his state of undress and ran out of the room
towards the car in order to get out of the place. She tried to open the
accused’s car but to no avail. The accused also ran after her in his
haphazardly dressed state. When Ms. Vertido saw him, she screamed.
The accused told her, “Huwag kang sisigaw. Iuuwi kita. Huwag kang
sisigaw. Calm down. (Don’t shout. I will bring you home. Don’t shout.
Calm down.)”

But even if this distortion of evidence in the Decision is set aside,
Judge Europa still discriminated against the complainant. The judge
insisted on what she considered the rational and ideal response of a
woman in a rape situation: to take advantage of every opportunity to
escape. Such a stringent demand requires the woman to actually succeed in
defending herself, thereby eliminating even the possibility of rape. When
Judge Europa ignored the evidence of the author’s struggles to escape, she,
in effect, blames Karen Vertido for employing ineffective means and failing
to avoid the rape. The responsibility for the sexual assault is laid at the door of
the victim for not detecting and preventing it from happening, and not upon the
felon who schemed and caused the event to happen, so says then Philippine
Supreme Court Associate Justice Florenz Regalado in one case.81

The Supreme Court of the Philippines has held – and the decision in
question itself acknowledges this – that the failure of the victim to try and
escape does not negate the existence of rape. As admitted by the decision,
people react differently. Therefore, to say that the victim’s conduct is
“unnatural” is contradictory. It manifests an obstinate refusal to recognize
the reality that rape is a severely traumatic situation that elicits
unpredictable responses from the person confronted with it. Rape involves
a continuing assault to the person of the victim; the threat to her physical,
mental and psychological integrity is constant and grave.

In another part of the decision, the court repeats itself by saying that
it cannot understand why Karen Vertido did not escape when she
appeared to have had so many opportunities to do so.82 Again, setting

81 Dissenting Opinion, People vs. Salarza, G.R. No. 117682, August 18, 1997.
82
Decision, pp. 14-15.
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 34 of 103

aside this distortion of the evidence, Judge Europa would have understood
had she listened to the psychiatrists who testified that there is a wide range
of behavioral response exhibited by victims when threatened with rape,
during the actual rape and after the rape. As narrated in the statement of
facts, one of the two psychiatrists presented, Dr. June Lopez, testified that
typical reactions to acquaintance or confidence rape, in particular, would
be stalling for time, pleading, flattery, and bargaining with the assailant or
would-be attacker. She said:

When it becomes clear that the attack is inevitable, the task
become physical, mental… In this case the victim would try
to actively avoid the attack or further injury or simply allow
the attack to finish as soon as possible in order to be spared
the agony.83

Dr. Lopez also said that a common reaction among victims is
dissociation where the victim attempts to separate herself from reality as a
coping mechanism in the face of extreme pain or injury. In the case of the
author, Dr. Lopez testified that Karen Vertido “arrived at this stage when
the inevitable was happening so she split from herself, saw herself in the
mirror being raped and thinking she was resisting but really physically not
resisting;” that she manifested dissociation in her focus on the attacker’s
blue socks; that she suffered from fragmentation of memory, being unable
to remember all the details of the event.

More and more, our Supreme Court looks to psychiatry and
psychology as aids in case evaluation and judicial decision-making. In
People vs. Genosa,84 the Supreme Court directed the trial court to hear expert
evidence on the battered woman syndrome to determine the criminal
culpability of Genosa who killed her husband because of domestic
violence. In Republic Act No. 9262 (the Anti-Violence Against Women and
Their Children Act of 2004), there is an express provision on the
presentation of expert psychiatrists or psychologists to prove the battered
woman syndrome. In child abuse cases, the courts resort to psychiatric
testimony to prove trauma in abuse and even to corroborate the child’s
allegations of abuse. In cases involving Article 36 of the Family Code,

83 TSN, 15 August 1997, p. 566.
84 G.R. No. 13591, January 15, 2004.
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 35 of 103

expert psychiatric or psychological evidence is necessary to prove
psychological incapacity of one or both spouses to perform the essential
marital obligations in order to declare the marriage void. Clearly, the
developments in our law point to a policy of adopting an interdisciplinary
approach in the adjudication of cases.

In evaluating the behavior of Karen Vertido before the actual rape,
during the actual rape and after the rape, Judge Europa should have
considered the testimonies of the psychiatrists. But she did not. She
brushed aside the expert testimonies of Dr. June Lopez and Dr. Pureza
Oñate without any explanation. She claims that the psychiatrists were not
able to question Karen Vertido on “material points” but she did not explain
what those material points were. In fact, the records of the case do not
support this because the testimonies of the psychiatrists were never
impeached.

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

While this Court is not unmindful of the fact that the
Supreme Court has, on more than one occasion, ruled that the
failure of the victim to try and escape does not negate the
existence of rape, these rulings cannot apply to the case at bar.
Considering first, the fact that, as explained above, the testimony
of the private complainant shows that she had the courage to
resist the advances of the accused, second, the fact that the private
complainant does not appear to be a timid woman who could
easily be cowered, and finally the fact that there is no clear
evidence of any direct threat of grave harm coming from the
accused, this Court cannot understand why she did not escape
when she appeared to have had so many opportunities to do so.85

Again, the inconsistencies in these statements of Judge Europa are
apparent: on one hand, she claims that the Supreme Court ruling that “the
failure of the victim to try and escape does not negate the existence of

85 Decision, pp. 14-15.
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 36 of 103

rape” cannot apply to the case at bar, implying that the complainant did
not even try to escape, and on the other hand, she declares that the
complainant “had the courage to resist the advances of the accused.”

Women who are not timid or easily cowered are not less vulnerable
to sexual attacks. By negating the rape of Karen Vertido who, as admitted
by the judge, is not a timid woman because “she had the courage to resist
the advances of the accused,” the court perpetuates a stereotype of a rape
victim and suggests that the law protects only those who conform to this
stereotype. The self-assured, sophisticated, educated, urbanite, among
others, are immediately disadvantaged.

It is difficult to comprehend the court’s attention to the
complainant’s character considering that it is not an element of the crime of
rape. It is also disturbing to note that the court concluded that the author
was not raped at the same time that it found that she did resist the accused
– a clear indication that Karen Vertido did not consent to the sexual act.

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

On the other hand, the private complainant and the
prosecution explains the failure of the private complainant to
shout for help and to exert more efforts to escape the lustful
desires of the accused by positing that she was intimidated and
she feared for her life when she felt something like a gun
(Memorandum for the prosecution pp. 38-39 (TSN March 4, 1997
p. 57).

On this point, this Court must state that an examination of
the testimony of the private complainant does not show any
statement or even any allegation of any act on the part of the
accused showing that there was such a gun and, much less, that the
accused was using it to intimidate her. On the contrary, the
statements claimed by the private complainant to have been made
by the accused depicts him as an aging Lothario, a dirty old man
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 37 of 103

trying to seduce her with offers of material gain and placate her
with promises that he would take care of her.86

In the last sentence of the quoted text, Judge Europa makes it appear
that the accused did nothing more than to cajole and seduce the
complainant without using force or intimidation. This is far from the truth,
as the unimpeached testimony of the complainant shows.

Under a general statement that the complainant should have done
more, Judge Europa considers insufficient the struggles of the complainant,
without specifying what “more efforts” she should have done. Judge
Europa insists on what a disinterested, logical observer would have
thought or felt in the situation. But the complainant was not merely an
observer to the rape attack; surely, expecting the complainant to be logical
under such threatening circumstances is unreasonable.

Instead of employing context-sensitive assessment of the evidence
and looking at the totality of the circumstances, Judge Europa focuses on
the lack of objective evidence of the actual existence of a gun. In effect, the
judge expected the complainant to first verify its actual existence or wait
for the accused to use it against her before being intimidated; that
complainant “felt something like a gun” while being attacked by the
accused was simply not enough. For Judge Europa, it did not suffice at all
that in addition to Karen Vertido “feeling something like a gun,” she was
sexually attacked in the car where she was alone with the accused in the
dead of night, brought into a “tomb-like” structure that was a motel
against her will, dragged, forced unto a bed, pinned down, and forced
upon – over her repeated struggles, attempts to escape, pleas and
objections. In this context, only an automaton would not feel frightened or
intimidated. But in Judge Europa’s appreciation, these are not enough to
constitute a frightening and coercive atmosphere. Karen Vertido partly
explains the frightening and coercive situation she found herself in in this
way:

86 Decision, p. 14; emphasis supplied.
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 38 of 103

WITNESS:
A I was petrified, I was scared of him, I was afraid, nobody has
brought me anywhere before without my willing to be there.
ATTY. ADVINCULA:
Q You were petrified of what, you were brought there by
somebody?
A I was scared at [of] Mr. Custodio, I was scared on [of] the
tomb-like structure where I was brought into, I was scared at
[of] everything, he had just mashed my breast, we had just
[almost] bumped into a wall[.]87

Recent developments in international jurisprudence show that the
concept of force or threat of force has been broadly construed to
accommodate other circumstances that vitiate the consent of the victim.

The European Court of Human Rights in the case of M.C. vs. Bulgaria
[(Application No. 39272/98), Judgment, 4 December 2003] observed “a
clear and steady trend in Europe and some other parts of the world
towards abandoning formalistic definitions and narrow interpretations of
the law” in rape cases. It noted that in case law and legal theory, lack of
consent, not force, is seen as the constituent element of the offense of rape.
The Court stated:

125. In international criminal law, it has recently been recognized that
force is not an element of rape and that taking advantage of coercive
circumstances to proceed with sexual acts is also punishable. The
International Criminal Tribunal for the former Yugoslavia has
found that, in international criminal law, any sexual penetration without
the victim’s consent constitutes rape and that consent must be given
voluntarily, as a result of the person’s free will, assessed in the context of
the surrounding circumstances (see paragraphs 102-07 above). While
the above definition was formulated in the particular context of
rapes committed against the population in the conditions of armed
conflict, it also reflects a universal trend towards regarding lack of
consent as the essential element of rape and sexual abuse.88

87 TSN, 5 March 1997, pp. 199-200.
88 Emphasis supplied.
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 39 of 103

In light of the above, the element of force or intimidation in
Philippine rape law should be construed broadly as to include other
coercive circumstances. This is consistent with the commentary that the
Anti-Rape Law of 1997 (Republic Act No. 8353) of the Philippines inserted
the word “threat” between the words “force” and “intimidation” to codify
case law prior to 1997 which already recognized as rape situations where
there was no physical force or violence but the perpetrator was able to
coerce the victim by inducing fear.89

In keeping with contemporary international law, the approach to the
prosecution of rape cases should not be rigid. Requiring proof of physical
force or threat of physical force in all circumstances risks leaving certain
types of rape unpunished and jeopardizes the effective protection of
women from sexual violence. It could permit perpetrators to evade liability
by taking advantage of coercive circumstances without relying on physical
force.

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

It is true that the testimony of the accused, particularly his
claims of regular visits to the DCCCI office as well as alleged
flirtations with the private complainant there and over the
telephone appears to have enjoyed much embellishment on his part,
considering the rebuttal testimony of Mr. Danilo Balucos, Ms. Joji
Ilagan-Bian and Mr. Protacio Tacondong.

Contrary to the claims of the private complainant, however,
the defense was able to establish that she and the accused were
more than nodding acquaintances. On this point, this Court
considers the note (Exhibit 5) admittedly written by the private
complainant (TSN, August 14, 1997—pp. 80-81) that reads thus:

89 Roberto Ador, Merci Angeles and Soliman Santos Jr. Justice and Healing: Twin
Imperatives for the Twin Laws Against Rape (2001) citing P. Velasco Jr. “The Raison D’Etre
of the Anti-Rape Law of 1997,” J Integ. Bar Phil. 16-7 (1998).
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 40 of 103

“For past president Joe

Never mind if we were second place. No other
delegation could beat our kaguwapuhan.

Sgd./Karen"

It is difficult to believe that such a note would be written
by the private complainant in that manner to someone whom she
does not, at the very least, consider a friend. This is emphasized
by the fact that the private complainant could not even remember
having written any similar note to the other people in the picture
(Exh. 4) that the note accompanied (TSN August. 14 1997, p. 81).
This, to the mind of this Court, contradicts her own insinuation
that she is used to writing notes like that.90

First, the evidence on record does not even support the finding of
“more than nodding acquaintances” between the author and the accused
Custodio. Even the court admits “that the testimony of the accused,
particularly his claims of regular visits to the DCCCI office as well as
alleged flirtations with the private complainant there and over the
telephone appears to have enjoyed much embellishment on his part.” This
is further explained below as part of the discussion on bad faith on the part
of the trial court.

Second, it is a grave misconception that any relationship between the
accused and the victim is a valid proof of the victim’s consent to the sexual
act. Statistics reveal that most rapes are committed by persons known to
the victim.91 Even an amorous relationship between the accused and the

90Decision, p. 17; emphasis supplied.
91 The Women’s Legal Bureau, Inc. conducted a study covering 478 decisions on rape
penned by the Supreme Court from 1961 to the early part of 1992. The study revealed
that out of 630 rapists figuring in 478 rape cases (the gap signifying the proportion of
gang rapes), 447 or 71% were known to their victims, while only 20% were total
strangers. One percent (1%) figured in group rapes where there was a combination of
known and unknown participants, and in eight percent the degree of acquaintance was
uncertain. The resulting statistics, however, do not speak for all the rapes committed in
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 41 of 103

victim should not constitute a defense in a rape case, because a woman
does not relinquish her sexual autonomy when she enters into a
relationship. Even a man who has sexual intercourse with his wife against
her will commits rape, under the Anti-Rape Law of 1997 which recognizes
marital rape.92 Although the Anti-Rape Law of 1997 was not yet passed
when the rape against Karen Vertido happened, still the law then existing
did not rule out marital rape in its provisions; even commentaries
recognized that the husband could be charged with rape if there was legal
separation between the spouses.

(5) When a rape victim reacts to the assault by resisting the attack and
also by cowering to submission because of fear, it is problematic.

The Court appreciates the proposition of the prosecution
that rape can exist even if the victim did not shout for help, did
not appear to have resisted to the point of death and where there
are no physical injuries to corroborate her allegations. As ruled in
the case of People vs. Roger Federico (G.R. No. 146956, July 25,
2003, 407 SCRA 290)

"x x x the workings of the human mind placed
under emotional stress, x x x are unpredictable.

People react differently—some may shout,
some may faint, and some may be shocked into

the Philippines during the period. They merely represent convictions that were brought
to the Supreme Court on appeal or automatic review in cases where the death penalty
was imposed (or reclusion perpetua when the death penalty was suspended by the 1987
Constitution). They do not reflect the number of acquittals in the lower courts, which are
not appealable due to the constitutional guarantee against double jeopardy, nor the
number of rape charges that were dismissed by prosecutors after preliminary
investigation, nor the number discouraged by unbelieving police officers who advised
the women that they “had no case,” nor, at bottom, the true number of unreported rapes,
the victims silenced by fear of retaliation, humiliation or rejection by friends and family.
[“Making Sense” of Rape: A Review of Presumptions Relied Upon by the Supreme Court in
Decisions on Rape. Occasional Paper No. 1. Women’s Legal Bureau, Inc. Quezon City
(1995)]
92 Art. 266-C in relation to Art. 266-A, Revised Penal Code, as amended by Republic Act

No. 8353 (1997).
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 42 of 103

insensibility while others may openly welcome the
intrusion. In any case, the law does not impose upon
a rape victim the burden of proving resistance.
Physical resistance need not be established in rape
when intimidation is exercised upon the victim and
she submits herself against her will to the rapist's
lust because of fear for life and personal safety."

Applying this principle, it must be determined whether or
not the private complainant in the case at bar had the strength to
resist or was she subjected to such force or intimidation that she
cowered into submission for fear of danger to her life and limb.

The problem with the private complainant's testimony is
the fact that she appears to have experienced both.93

First, there is no testimony that the author cowered into submission.
Karen Vertido did not submit to the accused; she struggled, resisted, expressed
her objections repeatedly, pleaded to the accused to stop, and tried to
escape. Although there were points when she froze and even dissociated,
this did not negate her many verbal and physical expressions of lack of
consent to the sexual act.

Second, this holding imposes upon the rape victim the peculiar
burden of showing either that she put up continuous physical resistance
against the accused or that she was subjugated by the accused from
beginning to end. However, even if she satisfies either demand, the court
still takes it against her. In the first case, the victim could not have been
raped because she “does not appear to be a timid woman who could easily
be cowered.” In the second case, there is no rape because the woman is
deemed to have consented to the intercourse since she did not resist the
advances of the accused, as when “she did not escape when she appeared
to have had so many opportunities to do so.” The rape victim is damned
whichever way she goes.

93 Decision, pp. 12-13; emphasis supplied.
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 43 of 103

Third, the holding of the court again unjustly imposes a standard of
“normal” or “natural” behavior upon rape victims and discriminates
against those who do not conform to the stereotype.

(6) The rape victim could not have resisted the sex if the accused was able
to proceed to ejaculation.

Similarly, this Court finds the allegations of the private
complainant as to the sexual act itself to be unbelievable. She
claimed that when she regained consciousness and found the
accused with his penis already inside her vagina, she tried to
fight him off by pushing him away on his shoulders and neck,
scratching him with her nails and trying to move her hips from
side to side and she even pulled his hair which apparently hurt
him and caused him to exclaim "Putang Ina!"

If the private complainant is to be believed, even with such
kind of resistance and pain, the accused was still able to proceed to
the point of ejaculation, as implied by her testimony. Considering
that the accused in this case is already in his sixties, the implied
sexual prowess necessary to achieve what the private
complainant claims happened is simply unbelievable.94

First, whether or not the accused ejaculated is completely immaterial
to a prosecution for rape. It is not an element of the crime. It does not prove
that the sex was consensual. It does not negate the resistance of the victim.
In fact, ejaculation can occur even with the resistance of the woman. Some
rapists have been known to actually derive pleasure from their victims’
pain. Such perversity makes the crime of rape all the more vicious and
brutal.

Second, the statement of the court perpetuates the false notion that
rape is a crime of lust or passion. Mere sexual desire cannot be the essence
of rape, for if sexual release is the only motivation, masturbation or
consensual sex should be enough. In rape, a man uses sex as a weapon to

94 Decision, p. 16; emphasis supplied.
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 44 of 103

subordinate a woman to his will, degrading and dehumanizing her in the
process. Rape is a crime of power and is targeted against the victim’s very
person. Lust merely becomes an excuse, the sexual act being culturally
associated with love and desire.

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

If the private complainant is to be believed, even with
such kind of resistance and pain, the accused was still able to
proceed to the point of ejaculation, as implied by her testimony.
Considering that the accused in this case is already in his sixties,
the implied sexual prowess necessary to achieve what the private
complainant claims happened is simply unbelievable.

On this point, the observation of the Supreme Court in the
case of People vs Anotnio Pailano (G-R. No- 43602, January 31,
1989) 169 SCRA 649, gives some guidance. Thus:

"Given the choice between the separate accounts of
the complainant and the accused-appellant, the
court inclines in favor of the latter. It is in our view
more believable. Anita never spoke of any difficulty
on the part of Pailano in violating her. She simply
said he removed her panty and entered her. No
effort was mentioned; it seemed she was talking of a
vigorous stud. Yet, the accused appellant was not a
teenager or even only in the prime of his life at the
time of their sexual encounter. He was all of sixty-
nine years old.

Considering his age and emotional pressures of the
moment, we doubt if Pailano could have
accomplished the rape as easily as Anita narrated it.
The prosecution has not offered any proof of his
sexual prowess, and under stress at that. By contrast,
the accused appellant did not hesitate to testify, at
the risk of his manly pride, that he did not easily
have an erection during the tryst with Anita and that
it took some fondling from her before his organ
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 45 of 103

could respond. This was a hard and humiliating fact
but it had to be admitted."95

First, the rape victim does not have the burden of proving the sexual
prowess of the accused. It is not an element of the crime of rape but a
matter of defense. If the accused claims that he cannot possibly even have
sexual intercourse, then he should prove it through scientific evidence. The
Supreme Court held:

The defense of impotency raised by accused was not
supported by any medical findings at all. His claim that since the
death of his wife in 1984 he did not have any erection anymore is
but a bare assertion. Impotency as a defense in rape cases must be
proven with certainty to overcome the presumption in favor of
potency (People vs. Bahuyan, 238 SCRA 330).96

Whether because of ignorance or in bad faith, Judge Europa ignored
this rule laid down by the Supreme Court in recent decisions and accepted
as truth the expedient claim of the accused that he could not perform that
night. The accused never presented expert testimony that he has a problem
with erection.

Second, the decision implies that a man in his sixties can no longer
rape. Hence, all the incest cases where children were raped by their
grandfathers were all fabricated. Every case where a child or adult woman
claims that she was raped by an old man would invariably result in an
acquittal of the accused.

95Decision, pp. 16-17; emphasis supplied.
96People vs. Dela Peña, G.R. Nos. 138358-59, November 19, 2001. See also People vs.
Aliviano, G.R. No. 133985, July 10, 2000 and People vs. Austria, G.R. No. 123539, June 27,
2000.
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 46 of 103

(8) The myths in the “guiding principles in deciding rape cases”

The Issue

As in all rape cases, the primary issue in this case is
whether or not there is sufficient evidence to find the
accused guilty beyond reasonable doubt of having utilized
force and/or intimidation upon the private complainant to
gain carnal knowledge of her.

The three guiding principles in reviewing rape cases
are: 1) An accusation for rape can be made with facility; it is
difficult to prove but more difficult for the person accused,
though innocent, to disprove; 2) in view of the intrinsic
nature of the crime of rape where only two persons are
usually involved, the testimony of the complainant must be
scrutinized with extreme caution; and 3) the evidence for the
prosecution must stand or fall on its own merits and cannot
be allowed to draw strength from the weakness of the
evidence for the defense. (People vs. Barrientos, 285 SCRA
221 (1998); People vs. Balmoria, 287 SCRA 687 (1998); People
vs. Gallo, 284 SCRA 590 (1998).97

xxx

In the case of People vs. Ricky Sodsod (G.R. Nos.
141280-81, June 16, 2003) 404 SCRA 39, guiding principles in
deciding rape cases were reiterated as follows:

"The Court adheres to the rule that by the
very nature of the crime of rape, the lone
testimony of the complainant is enough to
sustain conviction, provided that such
testimony must meet the test of credibility. The
testimony should not only come from the mouth
of a credible witness, it should likewise be

97 Decision, p. 11; emphasis supplied.
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 47 of 103

credible and reasonable in itself, candid,
straightforward, and in accord with human
experience. Hence the exacting standard of
proof beyond reasonable doubt acquires more
relevance in rape charges which are easy to make
but harder to prove and harder still to defend by
the party accused who may be innocent. This
Court will not condemn a person if there exists
the slightest hint of reasonable doubt as to his
guilt."

Applying these principles to the case at bar, as this
court is unconvinced that there exists sufficient evidence to
erase all reasonable doubts that the accused committed the
offense charged, its duty to acquit him is unavoidable.98

An accusation for rape is not easy to make at all. Given all the
prejudices against women, to say that a rape charge is more difficult for the
accused to disprove is also unwarranted.

The “doctrine” originated from the Supreme Court’s pronouncement
in a long line of cases. In People vs. Salarza, the Supreme Court even said
that “unfounded charges of rape have frequently been proffered by
women actuated by some sinister, ulterior or undisclosed motive.”99

This pronouncement is a myth because it is not supported by
empirical evidence. In fact, the Supreme Court did not substantiate its
statement. On the contrary, the Court has refuted it by recognizing the
social costs of filing a rape case in a long line of decisions. That it is not
easy for a Filipina to come out in the open has long been recognized as
“well-grounded,”100 “a truism.”101 The problems that the complainant faces
are many and serious, because “[s]ocieties, generally, are not kind to
violated women, exposing them to ridicule and shame when they report

98Decision, pp. 19-20; emphasis supplied.
99 G.R. No. 117682, August 18, 1997; 277 SCRA 578, 588.
100 People vs. Balbuena, G.R. No. 44859-60, April 27, 1984;129 SCRA 10, 19.
101 People vs. Fernandez, G.R. No. 49601, August 30, 1983; 124 SCRA 319, 329.
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 48 of 103

their having been violated.”102 The complainant will be the object of
scandal, shame and obloquy. Her background is scrutinized and her
morality is put in doubt. She would have to endure the embarrassment and
humiliation of a public disclosure of her defilement, allow an examination
of her private parts, and bear the ordeal and expense of a court proceeding.
Rape victims continue to be confronted with these difficulties.

While fabrication of a rape charge is not impossible, its possibility is
just too small and negligible to assume it as a “guiding principle” in
reviewing rape cases. The presumption unjustifiably places rape victims
immediately under suspicion.

B. The decision was rendered in bad
faith, without basis in law and in
fact, to the great injury of the author.

The author does not have to repeat the many distortions of evidence
already mentioned that Judge Europa used to justify the acquittal of the
accused. These distortions are too substantial to be brushed aside as mere
errors in the appreciation of evidence. The Supreme Court has recognized
that in cases such as this, when the error is so gross and patent, an
inference of ignorance or bad faith could be made.

As shown earlier, Judge Europa did not decide on the basis of the
evidence on record. Her decision also contains inconsistencies between her
own factual findings and conclusions. In addition, she accorded great
weight to the flimsy evidence of “more than nodding acquaintances”
relation between the accused and the author despite (1) that the testimony
of the accused was rebutted on many material points by the prosecution’s
rebuttal witnesses whose testimonies were found credible by the court and
(2) that corroborative testimonies for the defense contradicted each other.
103 She found the testimony of the accused credible.

102 People vs. Ngo, G.R. No. 95680, October 4, 1991; 202 SCRA 549, 558.
103 Decision, p. 18.
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 49 of 103

In gist, story of the accused was that he and Karen Vertido were
already flirting long before the alleged rape; that he called up Karen
Vertido so many times before the day of the rape at the Davao City
Chamber of Commerce office; that she would answer the phone directly
because she had a direct line; that he also visited her several times at her
office and on those occasions flirted with her; that in fact her office was a
“cubicle with dividers”; that on the night of the rape she agreed to be
Custodio’s personal guest in the dinner with the Malaysian businessmen;
that the dinner was a personal affair.104 He admitted bringing Ms. Vertido
to the motel, but claimed that it was consensual and that, although they
tried to have sexual intercourse that night, the coitus was not
consummated because they were interrupted by the motel room boy and
thereafter, he could no longer have an erection.105

Three rebuttal witnesses for the prosecution – the Chamber
president (at that time, Protacio Tacandong), one former Chamber
president and Chamber board member (Joji Ilagan Bian), and a Chamber
staff (Danilo Balucos) – who all knew Custodio personally – testified
that:106

• Karen Vertido had no direct line; even the Chamber president
had no direct line; a secretary answers all calls;
• Karen Vertido’s office was not a cubicle with dividers; it was a
room without dividers!
• Custodio was never seen at the Chamber office during the
relevant period except once and Karen Vertido was not around
then;
• The dinner was an official function; that Karen Vertido originally
was not scheduled to attend; that she was ordered to attend by
the Chamber president (Protacio Tacandong) because the latter
was running late – he was at the airport waiting for Liwayway
Vinzons Chato’s flight to arrive (she was to be the guest speaker
of the Chamber the next day).107

104 Note 78.
105 Note 77.
106 TSN, 16 October 2003, 15 October 2003, 19 January 2004.
107 The accused never presented any witness to destroy the testimonies of these three

witnesses.
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 50 of 103

It is disturbing that the lies of the accused in his testimony about
these material details, on which the accused hinged his story of “mutual
lust,” were considered by Judge Europa as simply “embellishment.” The
judge said:

It is true that the testimony of the accused, particularly his
claims of regular visits to the DCCI office as well as alleged
flirtations with the private complainant there and over the
telephone appears to have enjoyed much embellishment on his
part, considering the rebuttal testimony of Mr. Danilo Balucos, Ms.
Joji Ilagan-Bian and Mr. Protacio Tacandong.108

On the other hand, Judge Europa found the testimony of Karen
Vertido unbelievable, when there was neither a finding of ill motive on the
part of the author nor of factual inconsistencies in her testimony.

All in all, the findings and conclusions of the court were inconsistent.
The court itself even made a finding that Karen Vertido was unconscious
when the accused Custodio finally penetrated her, that when she woke up,
he was already penetrating her.109 This and the totality of circumstances
should have been enough to make a finding that the force or intimidation
applied to her was adequate to consummate the crime, as in fact she lost
consciousness in the course of the attack, which prevented her from giving
any consent at all.

Judge Europa cited all the Supreme Court doctrines that favor the
rape victim and in the same breath ruled, without evidentiary basis, that they
are not applicable to the author’s case by mentioning some contradictory
Supreme Court rulings. Such shoddy legal maneuvering under the
pretense of fair reasoning amounts to bad faith and a gross disregard of the
author’s rights.

When the rules speak of proof beyond reasonable doubt as a
requirement for conviction,110 it presupposes a fair, impartial and

108 Decision, p. 17.
109 Id. at 13, 16.
110
Revised Rules of Court, Rule 133, Sec. 2.
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 51 of 103

competent tribunal. In the language of the Women’s Convention, what is
required is a competent tribunal. A decision that is based on gender-based
myths and misconceptions or one rendered in bad faith could hardly be
considered as one rendered by a “fair, impartial and competent tribunal.”
In fact, the Rules state that in proof beyond reasonable doubt, only moral
certainty is required, or that degree of proof which produces conviction in
an unprejudiced mind. This was not the case in the Decision of Judge
Europa.

Continuing Violations Against the Author

“I was going to die, if not sooner then later, whether
or not I had ever spoken myself. My silences had not
protected me. Your silence will not protect you. But
for every real word spoken, for every attempt I had
ever made to speak those truths for which I am still
seeking, I had made contact with other women while
we examined the words to fit a world in which we all
believed, bridging our differences. And it was the
concern and caring of all those women which gave me
strength and enabled me to scrutinize the essentials of
my living.”
- Audre Lorde, “The Transformation of Silence into
Language and Action,” Sister Outsider

In the eight years of litigation that she went through, the author had
to rely on the generous support of her family and friends and women’s
groups to sustain her fight for justice. She and her family suffered
immeasurably: within weeks from the filing of the case, public ridicule and
hostility, fired by media coverage so evidently prejudiced against her,
intensified. She bore this, and more. Soon after the rape, the Chamber
asked her to resign from her job as Executive Director. Even before she
did, they already hired a man to replace her and gave him double her
salary.111

When the author questioned this, she was told the Chamber hired a man because the
111

Board did not want a repeat of what happened.
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 52 of 103

The traumatization stemming from the rape and the repeated
traumatization she and her family experienced inside and outside the
courtroom have been cruel and painful, the humiliation endless. She and
her family were forced to move to Metro Manila from their residence in
Davao City to escape the community that became hostile to her because
she dared to prosecute a wealthy and influential man. This displacement
aggravated the post-traumatic stress disorder that she suffered as a direct
result of the rape. Her family, particularly her husband and two children,
also bore the stigma and humiliation of having his wife/their mother
branded a “whore.” Her children had to transfer schools and suffer the
full impact of displacement. The State did not protect her and her family
from all these.

With her physical and mental integrity severely affected, the author
tried to rebuild her life with her family by undergoing therapy with
psychiatrists who volunteered their services. She also tried to look for a
job, but she found it extremely difficult to get one. This was ironic since
she was at the height of her career when the rape happened. In the
meantime, her family’s meager resources were all spent in sustaining her
fight for justice for eight long years. They were able to get by with the help
of friends and others who generously gave support. During those eight
years, she was never able to get a regular job.

All these took their toll on the author, and resulted in her having all
sorts of debilitating illnesses. To this day, her physical and psychological
functioning continues to be affected.

With the discriminatory decision of Judge Europa, Karen Vertido
was victimized all over again. With one stroke, Judge Europa set back the
process of healing and recovery that Karen and her family started after the
filing of the case. She suffered from a long depression after the decision,
and it took her a while to find the will and the energy to even consider
filing this Communication.

Today, she continues to suffer from the effects of the rape,
aggravated this time by her failure to get justice from the legal system.
Since Judge Europa legitimized the acts of the accused, Karen Vertido has
been relegated to being the victim who never was.
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 53 of 103

Until she gets justice, Karen Vertido and her family will never get
closure for the rape that she suffered. Until she and her family get closure,
they can never truly heal and recover from their traumatic experience.

Systemic Discrimination

The author’s case is not an isolated one. The decision of Judge
Europa is but one of the many trial court112 decisions in rape cases that
discriminate against women and perpetuate discriminatory beliefs about
rape victims. These insidious judgments violate the rights and freedoms of
women, deny them equal protection of the law, deprive them of a just and
effective remedy for the harm they suffered, and continue to force them
into a subordinate position compared with men.

Presented below are seven trial court decisions in rape cases,
promulgated during the period from 1999 to 2007, that illustrate the
systemic discrimination that rape victims experience when they seek
redress in the legal system. The cases were summarized using, as much as
possible, the language of the court, to remain faithful to the original text of
the decision.

Case No. 1 (Annex E-1)

People vs. RM113
20 April 2006

Statement of the Case:

According to the complainant JF, she first met the accused RM
in 2002. He was persistent in asking her out, but she always refused.
However, three days after, JF finally agreed to go out with RM.

112 Rape cases are tried by the Regional Trial Courts, which are courts of the second level
in the Philippine judiciary.
113 The decision was rendered by the Regional Trial Court of Makati City, Branch 66.

Makati City is the financial/business capital of the Philippines.
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 54 of 103

First, RM accompanied JF to a place in Mandaluyong, Metro Manila.
Afterwards, RM and JF boarded a taxi; RM told the driver to proceed
to the Gardenia Motel. Once inside, RM said that they would only
be eating there, but after JF was ushered into a room, she felt
agitated and hurriedly left. She boarded a taxi but RM managed to
catch up with her. Once inside the taxi, RM apologized profusely
and tried to convince JF to be her girlfriend. Convinced by RM's
pleas and believing him to be sincere, JF agreed to eat with RM.
They then rode a jeepney to Guadalupe in Makati City, Metro
Manila.

JF was told they would be eating at Chowking, but after some
walking, she found herself at the Sogo Hotel. While she was seated,
RM proceeded to the reception counter. He came back after some
time and told her that he had a reservation at the fourth floor. RM
and JF rode the elevator to the fourth floor. She was ushered into a
room and became suspicious after RM removed his shoes. RM was
trying to convince JF to be his girlfriend. When JF refused, RM went
into the comfort room and when he emerged, he pulled JF towards
the bed.

JF was afraid and was fighting RM but he said that “wala pang
pumapalag sa akin ng ganyan (No one has ever rejected me);” that he
was embarrassed when she walked out on him at the Gardenia
Motel; that he was very influential and that he was going to kill her.
JF had bruises on her arms because RM held her tightly. JF pleaded
for pity, saying that she had her period at the time. RM put his hand
inside JF's panty, and after seeing that her napkin had no
bloodstains, he told JF to stop trying to fool him. RM then proceeded
to enter JF. During this time he repeatedly told JF that he could kill
her if she refused to give in. He also told her that she was not the
first and that he has done the same to other women whenever he felt
embarrassed and annoyed.

JF further testified that after RM finished, he left her lying on
the bed naked. He lay beside her and told her to hold his penis,
which she did. After a few minutes, he went on top of her again;
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 55 of 103

because her body was very painful and she was very weak from
resisting him earlier, he was able to abuse her again.

Thereafter, JF proceeded to the comfort room, where she
locked herself in, but the accused continuously banged on the door
and out of fear, she opened it to let RM in. RM took a bath while JF
went to dress up. They left the room and rode the elevator together.
He offered to take her home. She told him she never wanted to see
his face again.

The prosecution presented JF's mother who testified on JF's
entitlement to damages. A doctor was also presented who testified
on the victim’s emotional and psychological disturbance after the
alleged rape. She had difficulty sleeping, was not functioning at
work, had crying spells and was suffering from depression, so much
so that she was placed on medication. The arresting officers were
also presented, as was JF's immediate supervisor from work who
testified as to the victim's state of mind and emotional make-up after
the incident.

RM testified in his defense. He admitted the sexual intercourse
but insisted that it was consensual. Also, he said that there was only
one instance of sex, since he lost interest as JF still had her period
and that she bled on him. One other witness testified for RM but his
testimony was not summarized in the decision.

The Court’s Decision:

The accused is acquitted.

1. The court could not fathom how JF, which it described as a
well-bred and educated 23-year-old young lady, would easily fall
prey to the intermittent coaxing of the accused. Voluntarily going
out with the accused to intimate places could only mean she acted
freely.

2. There were numerous instances when she could have fled
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 56 of 103

or escaped from the accused. Specifically, when they left Gardenia
Motel and proceeded to Sogo Hotel, JF had access to other people
since they took public transportation.

3. Force, threat or intimidation was not sufficiently proven.
The alleged threat to JF's life was made when she was already naked,
and after she willingly gave in to RM's advances.

4. The bruise on JF's chest was inconsistent with the injuries
usually sustained by rape victims.

5. The actions of the complainant after the incident belie rape.
(As to what were these actions, the court did not specify).

Case No. 2 (Annex E-2)

People vs. DD114
26 September 2007

Statement of the Case:

According to complainant G, accused DD was her work
companion at a company in Makati City. In March 1998, DD offered
G a ride home. However, DD drove the car to an army camp, where
he parked at a big and empty parking lot.

DD kissed G on the cheeks. G reacted by saying, “Huwag!
Huwag! (No! No!)” and by pushing the accused away. She attempted
to defend herself by striking him and continued to shout for help.
Then, DD boxed her, which resulted in bruises to her right arm and
left thigh. DD thereafter pulled out a gun from underneath his seat
and poked it at G's left temple.

DD removed his pants and underwear while seated in the
driver's seat and while his left hand forcibly attempted to remove

The decision was rendered also by the Regional Trial Court of Makati City, Branch 66
114

but by a different presiding judge.
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 57 of 103

G’s panties, which were damaged as a result. DD once again kissed
G on the cheek while simultaneously locking the car doors. DD then
kissed G on the lips and placed himself on top of her. He succeeded
in having sexual contact with G, who continued to plead with him to
stop and take pity on her.

After the carnal act was done, DD returned to the driver's seat
and both got dressed. DD threatened to kill G and her family if she
dared inform them of what happened. He bragged about being
influential with the mayor of some town as well as with the police
and kept on brandishing his gun. G was scared and kept on crying.
He drove the G to the area of her residence, and then, upon reaching
the place, pushed G out of the car.

Other than G, the prosecution also presented a medico-legal
officer from the Philippine National Police who testified on the
results of the examination he conducted three days after the incident.
He concluded in the report that G had five extra-genital injuries and
vaginal and peri-urethral smears which were, however, negative for
spermatozoa. He further testified on the presence of a healed and
shallow-healing laceration on G’s genitalia. The prosecution also
presented a co-worker of G, who saw the latter boarding DD’s
vehicle on the date of the incident.

The defense presented DD’s wife who testified that in
February 1998 she discovered that her husband and G had an affair.
She also said that she confronted G and requested her to stop the
affair.

DD himself testified that he and G had an affair. He claimed
that on the day that he allegedly raped G, he decided to end the
affair and did nothing more. He denied having raped G.

The case went through four different Regional Trial Court
branches before reaching Branch 66 because the private prosecutor,
at every instance, moved to inhibit the judge. The accused was
released on bail in August 1999 upon a finding that the evidence of
guilt was not strong.
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 58 of 103

The Court’s Decision:

The accused is acquitted.

1. The court concluded that indeed the accused and the
complainant had sexual intercourse, based on the doctor’s medico-
legal report about the 2-3 day old lacerations in the genital area of G,
citing People vs. Valdez115 that “it is sufficient basis for a finding of
sexual intercourse when corroborated by a physical finding of
penetration.”

2. However, according to the court, the element of force,
threat or intimidation was not sufficiently proven. The element of
force, threat or intimidation must have been clearly and
convincingly established by the alleged victim as to have made her
submit to the will of the accused.

3. The bruises on G were minimal and could not have been
serious inflictions; neither were they sufficient to have minimized
the movements or resistance of the complainant to the alleged
forceful sexual intrusion. G testified to have fought back even after
the blows were inflicted on her. Hence, the force allegedly applied
by the accused was not sufficient to make the complainant submit to
his will.

4. As to the venue, there was no proof that it was an
uninhabited place to eliminate the presence of onlookers or passers-
by as in fact the place was an army camp.

5. As to the gun poked at the complainant, such was not
supported by any evidence other the bare assertions of G. Further,
according to the testimony of G, she only saw the gun on two
occasions: during the preparatory stage when the accused removed
her underwear, and then only after the carnal act was completed,
when it was recovered from the car flooring. The gun could not have
caused the complainant to unwittingly submit to the carnal desire of

115 421 SCRA 376.
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 59 of 103

the accused.

6. There were opportunities for G to escape from the accused,
such as when DD was wearing his underwear and pants, or when
the accused exited the parking lot. She chose to travel with the
accused, under the guise of fear for her life in the duration of their
trip.

7. There was no showing that the alleged victim resisted
tenaciously and manifestly. She merely interposed verbal objections
unaccompanied by violent physical resistance.

Case No. 3 (Annex E-3)

People vs. FD116
26 March 2007

Statement of the Case:

According to the complainant J, she was home on March 29,
2006 when R, a neighbor, invited her to accompany the latter to the
house of a co-worker about a block away. The house turned out to be
the living quarters of the accused FD and his cousins M and V. M
invited J and R to drink. They started drinking in the sala. By the
time they finished two bottles of gin, it was already late and J was
drunk. FD carried her into the other room and made her lie on the
floor. With M and V holding J’s hands, FD proceeded to remove J's
clothing. He then inserted his penis into her vagina; J felt a searing
pain in her genitals.

After the sexual act was consummated, FD dressed her up,
and the three men left her inside the room. J fell asleep. Later R and
her sister fetched J and brought her to their house, where J told them
what had happened to her. J went home at around 2:20 in the
morning and told her father what happened. Her father reported the
incident to the barangay (village) chairman and then they went to the
116 The decision was rendered by the Regional Trial Court of Manila, Branch 27.
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 60 of 103

accused's house but the latter refused to open the door until the
arrival of the police. Thereafter, they were brought to the police
station.

J also testified that while they were drinking, they were joking
about FD’s inexperience in sex and she told him that “Matanda ka na
di ka pa marunong. (You are too old to be a virgin.)” Also, M pushed
her causing her to fall on the floor and lean on FD. She did not react
as she was too drunk to move away. While the rest were drinking,
FD carried her into the next room. She thought FD would just allow
her to rest. Finally, in the hospital, when they had the chance to be
alone, FD offered to marry her but she turned it down. She also
testified that the contusions on her arms were caused by M and V
who held her arms. She reiterated that while she was too dizzy to
shout for help and to resist because she was too drunk, she
nonetheless was aware of what was going on.

The prosecution also presented a doctor who testified that he
conducted a medical examination on J and found old, healed
hymenal lacerations, a purplish bruise on her right arm, and
spermatozoa on her arm. The prosecution also presented the police
officer to whom the case was referred for investigation. The barangay
(village) chairman to whom J was reported by her parents and
brother as missing also testified. He related that they went to FD's
house with some barangay tanod (village guards) and that after J was
brought out of the house, a commotion broke out as members of J’s
family wanted to hurt FD. He later turned the parties over to the
Paco Police Station. On cross examination, he testified that it was R
who told J's family that the complainant was in FD's house. When
they were at the place of the incident, and after J emerged out of the
house, J's father got mad because something must have happened
between her and FD. According to the barangay chairman, the father
wanted to make it appear that J was raped; “Para masabi na na-rape
and anak niya (So that it can be said that she was raped.)”

The defense presented a supervisor of Philcare Manpower
Services assigned to UP-PGH who testified that he knew J had a
boyfriend, and that one time he caught the two taking a bath
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 61 of 103

together at the bathroom of Ward 8. He testified that he could
hardly believe it when he learned about the rape case filed by J, as
she is not credible; she frequents the hospital to seduce the janitors
under his supervision.

M and V, cousins of FD, corroborated each other's testimony.
Both testified that on the night of the incident, after eating dinner, J
and R arrived at their house. M invited them to drink, an invitation
the two women accepted. Both testified that in the course of the
drinking session, J moved near FD and leaned on him. She had one
arm around FD's nape and the other on his private parts. By this
time they had already finished the two bottles of gin, but according
to M, J still wanted to drink, so he bought another bottle. After
taking two shots, J then whispered something to FD; they both got
up and proceeded to the other room. Once inside, they closed the
door and turned off the lights. After 15 minutes, FD went out and
told them that J threw up. M and V entered the room to clean up the
mess. M wiped J's face with a cold towel while FD prepared
noodles. They told R to bring J home but the latter refused because
she was still drunk. R went home at around 1:00 in the morning. M
and V stepped out of the house; after a while, M went to eat with
two friends while V went back to sleep. When M arrived at about
2:00 a.m., J was already gone. At around 4:00 a.m., J's brother arrived
at their house, shouting, “Ano'ng ginawa ninyo sa kapatid ko? Ni-rape
niyo ba siya? Papatayin ko kayo! (What did you do to my sister? Did
you rape her? I will kill you!)” They did not go out until the
barangay chairman arrived. V added that J told her that the bruise on
her arm was because her father mauled her.

The accused FD testified that after they had finished the three
bottles of gin, J sat beside him, rested her head on his shoulder, had
one arm around his nape while her other hand was on his crotch. J
whispered that they get inside the room. Once inside, they started
kissing. J then removed her shorts and undergarments and raised
her t-shirt up to her chest. Then J embraced him tightly and they had
sexual intercourse. After the encounter, J stood up, put her clothes
on, and sat on the floor. It was at this time that she vomited. He then
called out to his cousins and they cleaned up the mess. Afterwards,
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 62 of 103

R invited J to go home, but the complainant was too drunk. R went
home alone; she returned some time later with her sister to fetch J,
and then they took the latter home. After they left, he and his cousins
went to sleep. They were awakened by the sound of J's father calling
them out.

On cross-examination, FD stated when he asked J why they
had to enter the room, J replied that she was going to teach him,
which he understood to mean that they were going to have sexual
intercourse. J was an aggressive partner. At that time, their three
other drinking companions had yet to finish the third bottle of gin.
Also, he did not tell J's father about his marriage proposal because he
was afraid.

The Court’s Decision:

The accused is acquitted.

1. The testimony of J and the barangay chairman contradict
each other on a material point. The complainant testified that R and
her sister fetched her and brought her to their house. J lingered in R's
house before going home. When she got home, she told her parents
that she was raped. However, the barangay captain testified that he
came to know of the case when J's parents reported her missing.
They then searched the accused's house and found J there; in fact he
saw J coming out of the room of the accused. J's father went berserk
and kept on insisting that something happened between FD and J,
hence the observation “Para masabi na na-rape and anak niya. (So that it
can be said that she was raped.)” When material prosecution
witnesses contradict themselves on material points, it clouds the
credibility of the complainant.

2. The testimony of the complainant was not consistent with
the medical findings. J testified having felt a searing pain when
accused inserted his penis into her vagina. However, the medico-
legal report found old hymenal lacerations suggesting previous
sexual experience. As the doctor did not find fresh laceration, it is
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 63 of 103

hard to believe that complainant felt the searing pain that she
described.

3. The complainant flip-flopped as to the whereabouts of R at
the time FD carried her into the room.

4. Complainant would want the court to believe that she was
so drunk as to be unable to walk, to cry out and to resist the sexual
assault. However, if the complainant was indeed drunk to a degree
as she would want the court to believe, then there was no need for M
and V to hold her arms in order to pin her down. Furthermore, her
physical state was belied by the testimony of the two cousins, who
testified that after the second bottle of gin was consumed, the
complainant was “okay lang (still okay)” and in fact was able to walk
to the other room, all the while hugging FD.

5. The complainant admitted that R, M and V only looked on
as FD brought her into the room, hence it was “no big deal.” Given
the circumstances, several possibilities loom as to what really
transpired, which continue to linger in the mind of the court.

6. The prosecution should have presented R to corroborate
and confirm that J was indeed dead drunk at the time of the alleged
sexual assault. It should have also presented J's parents to
corroborate the series of events after the alleged rape. The court is at
a loss as to why these persons were not presented by the prosecution
considering that J's testimony was sharply in dispute.

7. The account of the complainant was irreparably punctured
by doubts which weaken the prosecution's case. Applying the
presumption of innocence and the doctrine on circumstantial
evidence, there was simply not enough evidence to convict the
accused beyond reasonable doubt.
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 64 of 103

Case No. 4 (Annex E-4)

People vs. PO1 WF117
1 July 2003

Statement of the Case:

MV, the complainant, testified that on September 6, 2001, she
went out on a date with her live-in partner in Antipolo, after which
they proceeded to Cubao. As her companion was buying something
from 7-11, a man grabbed her by the arm and said “Nandito ka na
naman? (You are here again?)” Surprised, she told the man she did
not know him. The man kept insisting they knew each other and
replied, “Manlalalaki ka na naman? (You are going hooking again?)”
and told her to come with him as he was charging her with
vagrancy. She told him that she was not a minor and showed her
ID. The man, who did not identify himself, told her, “basta sumama
ka sa akin (Just come with me),” told her to board his motorcycle
adding that, “kapag bumaba ka, babarilin kita (If you try to get off I will
shoot you).” She followed his instructions thinking she would be
taken to the precinct. After making a u-turn at EDSA, the
motorcycle's engine conked out. MV alighted and said she wanted
to go home but the man refused to let her go.

The man, whom the complainant later identified as PO1
(Police Officer 1) WF, stopped a passing jeepney and after a few
minutes, both MV and WF boarded the jeep while the motorcycle
was loaded into the jeepney. They proceeded to Camp Crame, where
they unloaded the bike at a parking area. MV testified that she and
WF walked to different areas in the compound for 30-45 minutes.
WF suddenly said “Let's proceed to the hospital.” They walked until
they reached something like a mini-park and found a place that
looked like a demolished cubicle. Inside, she noticed a dilapidated
sink. WF suddenly told her to remove her clothes; she replied by
saying that she wanted to go home because her family would be
looking for her. WF answered, “Sige (Okay).” He then pulled down

117The decision was rendered by the Regional Trial Court of Quezon City,
Branch 76.
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 65 of 103

his pants, grabbed her by the hair and pushed her face down making
her perform oral sex. She felt helpless and afraid as the accused had
a .38 caliber gun which he placed near the sink. She could not tell
whether WF was holding the gun or not because it was too dark.

Afterwards, he ordered her to sit in an area near the sink
which was about waist high. After adjusting her position, he pulled
her pants and underwear down, slung her legs over his shoulder,
and inserted his penis into her vagina. She could not tell how long
the ordeal lasted. After the accused stopped, he told her to get
dressed.

They left the place and upon reaching the mini-park, he
grabbed her wallet which contained Php 5,020 and her college ID,
and got the money leaving her with only 20 pesos. They left the
camp by riding a jeep and then a taxicab. She pleaded that she be
released; at first WF was silent, but after she told him that she would
keep quiet about what happened, he allowed her to go, and she was
dropped off at the corner of EDSA and Boni Serrano.

In shock and not knowing where to go, she kept walking
along the side of Camp Crame until another police officer noticed
her. The police officer offered to take her home and accompanied her
until Banahaw St. Still disoriented when she reached home, she just
cried and slept. When she woke up in the morning, she narrated to
her husband what happened. Seeking assistance from the Camp
Crame police, they found the motorcycle where it was left the day
before. The police arrested WF when he returned for the motorcycle.

A police senior inspector also testified for the prosecution. She
narrated that she conducted the medical examination on September
7, 2001. She found a pooling of foul-smelling viscous fluid in all the
vaginal crevices, and that the findings where suggestive of recent
sexual intercourse. She also found a reddening of the vaginal area
but could not conclude whether the sexual intercourse was
voluntary or by force.
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 66 of 103

The accused PO1 WF testified that on the date of the incident,
at around 10:00 p.m. he was riding his motorcycle on his way to
Camp Crame because he was to go on duty at 5:00 a.m. of the next
day. He was along Aurora Boulevard in Cubao when he noticed a
woman arguing with two men beside Chow King Restaurant. He
thought the two men were harassing the woman and he approached
them; the two men ran away. When he was finally speaking to the
woman he recognized her as she was previously apprehended
sometime in 1998 as a pick-up girl and was brought to Station 7 in P.
Tuazon where he was also assigned. He told her “Ikaw na naman?
(It’s you again)” to which the woman replied that she needed to earn
P500. He said that if she really needed the money, he had P300 with
him. The woman replied that she would just go with him. After his
motorcycle conked out, he called out to the girl and told her that he
would just load his motorcycle on the jeepney.

WF narrated to the court that he knew the complainant by
name since this was the second time he saw her. He also narrated
that the first time he met her, she went with him to an apartelle on
20th Avenue and that he paid her P500.

After they arrived in Camp Crame, he and MV went to his
quarters, arriving there at about 11:30 p.m. A sergeant asked WF
who MV was. WF replied that she was his girlfriend. They stayed in
his quarters where they made love. At around 3:00 a.m., they hitched
a ride to the gate of Camp Crame, got out, crossed the street and
flagged down a taxi. He then dropped off MV at the corner of EDSA
and Santolan in front of the Caltex Station and thereafter went home.

He denies picking her up in front of Mercury Drug, saying the
shop closes at 9:00 p.m. He also denies forcing himself upon her and
denies taking MV’s P5000. He also testified that he believes that the
case was filed because of an altercation with a certain Major S while
he was still stationed in Camp Caringal. This Major S is known to
MV, and they must have conspired to file this case against him. He
also knows that a white slavery syndicate operates in the Cubao area
and that MV’s husband is actually a pimp. Upon cross-examination,
he testified that he did not immediately recognize MV as she was
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 67 of 103

arguing with the two men; that he has no personal knowledge if MV
is a friend of Major S, but know that her pimp is; that he does not
know the pimp’s name but could recognize him if he saw him; and
that he only gave MV P200 as he needed the P100 for taxi fare.

The information filed against WF actually charged him with
two crimes: Rape and Robbery. The Court held that two separate
informations should have been filed. However, since the information
sufficiently alleges all the necessary elements to convict the accused
of the crimes of rape and robbery, and since the accused failed to
move to quash the information, he has therefore waived any
objection and can be found guilty of as many offenses as those
charged and can be proven during trial.

The Court’s Decision:

The accused is convicted of robbery but acquitted of rape.

1. The actuations and reactions of MV before, during and
after the alleged rape fail to inspire belief. The court finds it hard to
believe that MV never cried out for help for others to know that she
was being taken against her will, if such was the truth. She did not
call out to the people near the drugstore, or to the jeepney driver, or
to the guards of Camp Crame whom she crossed paths with all
throughout the 30-45 minutes that they were walking inside the
camp.

2. There were instances which MV could have taken
advantage of to flee from her captor, but she never did, like when he
was busy loading or unloading his bike, or while they were walking
inside Camp Crame.

3. MV did not put up any hint of a struggle which is
perplexing for a woman who claims to have been violated. This is
especially true when she was made to perform oral sex, when she
could have easily shoved the accused. It appears that the accused
had not difficulty in realizing and satisfying his lustful desires on the
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 68 of 103

complainant. The complainant’s explanation that she feared for her
life and that she wanted to just get over with it because the accused
had a gun sounds hollow. Nowhere was it shown in the records that
the accused pointed the gun at her before and during the actual
sexual intercourse. Also, it seems incredible that she vividly recalls
that it was a .38 caliber gun when in the same testimony, she said
that the place was pitch dark.

4. MV did not immediately report the incident to the
authorities. A more natural reaction of a rape victim would have
been an outcry after the alleged danger had passed.

5. MV is not a probinsyana (rural-bred) but a wizened city
girl.

6. She failed to oppose the carnal act and failure to do so is
consent. Consent, no matter how reluctantly given, is still consent.

7. It is probable that the charge was instituted because WF
reneged on his commitment to pay her P300.

Case No. 5 (Annex E-5)

People vs. EG118
3 December 1999

Statement of the Case:

Complainant LT, 35 years old and married (but separated
from her husband since 1996) with three children, accused EG of
three counts of rape. LT testified that on three separate occasions –
on the third week of May 1997, May 12, 1998 and June 16, 1998 – EG
had sexual contact with her without her consent through force and
intimidation.

118The decision was rendered by the Regional Trial Court of Bohol, Branch 2, Tagbilaran
City.
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 69 of 103

The first incident happened at about 8:00 in the evening while
LT was walking home to her parents’ house. EG walked along and
conversed with her. Upon reaching a grassy area he suddenly
embraced her and pushed her to the ground. She resisted but EG
was too strong. He then removed her skirt and panties, went on top
of her, covered her mouth, parted her legs and penetrated her vagina
with his penis. Thereafter, EG threatened that something bad would
happen to her children and family if she told anyone about what
happened. LT went home crying. She did not tell anyone about the
incident because she was afraid. The following day, EG threatened
her again when she was at the Poblacion to pay her bills. Later, LT
learned that EG left for Manila. The next time she saw him again was
in May 1998.

The second incident happened at about 1:00 in the morning of
May 12, 1998 inside the bakery/store managed by LT, which was
also used as her and her children’s occasional quarters. She was
alone at that time as her children were at her parents’ house. EG
forcibly entered her store and once inside covered her mouth. LT
kicked and struggled but the accused was too strong. He removed
her panties and penetrated her vagina with his penis. Thereafter, he
threatened that if LT would tell anyone about what happened he
would “explode her store.” The following day, EG went back to the
store, showed LT a hand grenade and told her to keep quiet or else
he would pull the pin and “explode her house.”

The third incident happened at about 1:00 in the morning of
June 16, 1998 again inside LT’s store. She was alone sleeping when
she felt EG on top of her. She wiggled, kicked and shouted but EG
covered her mouth and pressed his body against hers. He then
removed her panties and inserted his penis into her vagina.
Thereafter, he told her not to tell anyone so that nothing bad would
happen to her and her family. LT noticed that EG destroyed the
door in order to unlatch the hook of the lock.

LT did not reveal what EG had done to her because of fear. In
July 1998 she discovered that she was pregnant with his child. Four
months after or in November, her family discovered that she was
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 70 of 103

pregnant and insisted on being told how it came about. It was then
that she had to tell them about the incidents.

On the other hand, the accused EG, 39 years old and married
(but also separated from his wife), denied the rapes and claimed that
he and LT were lovers. He said that they engaged in mutual sex
with each other even before May 1997. He testified that he was a
frequent customer at LT’s bakery/store before he befriended her;
that he courted her and she accepted him; that they would have sex
at LT’s store when her children were asleep; that they agreed for LT
to keep the backdoor of the store unlocked so that he could enter at
night; that they tried to keep their relationship a secret but that the
neighbors may have sensed it because they often saw him leave the
store early in the morning; that LT informed him that she was
pregnant and asked money for abortive drugs; that he loved LT and
he believed she also loved him; that he admitted that he was the
father of the child born to LT; that he approached LT’s parents to
inform them of their relationship and to offer that if the charges
would be dropped he would leave Bohol; that the only reason LT
filed charges was because she had no other way of explaining her
pregnancy to her family who knew nothing about their affair.

The Court’s Decision:

The accused is acquitted.

1. LT revealed the sexual assaults on her only after her
parents and brothers discovered that she was pregnant. She kept
silent for 18 months or one-and-a-half years. It is “utterly unnatural”
for the complainant to remain silent for this long and not disclose the
alleged outrage done to her. Even granting that she was afraid
because the accused threatened her, this fear would have naturally
vanished knowing that the accused left Manila and was outside
Bohol for one year after the alleged first incident.

2. After the first incident, LT never took precautions to avoid
being subjected to subsequent molestations by EG. Although aware
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 71 of 103

that EG had returned to Sikatuna in May 1998, LT did not break her
silence to the police and her relatives and friends so that she can be
accompanied or protected in her stay at the store. She did not ask to
be relieved of her duties at the store and stay in the protective
confines of her home with her family. When she was allegedly raped
for the second and third time, she was fully aware of the presence of
EG in the vicinity yet she chose to be alone in the bakery.

3. LT did not cry or sob or show any emotion when she
narrated the outrage done to her on the witness stand.

4. It is “odd and unnatural for one who had committed rape
and is known to the victim to again, after a considerable length of
time, come back and subject the same victim to the same assault.
This is only true when the malefactor enjoys moral ascendancy over
his victim or in instances where the victim is locked up. To avoid the
risk of being caught the second time around is instinctive in the
mind of a criminal.”

5. While it is true that courts often doubt the “sweetheart
theory” as a defense, such is not always the case if it is shown that
the accused and the victim were in an illicit relationship (citing
People vs. Godoy, 250 SCRA 676). The case of LT and EG is one of a
clandestine affair, and they are not expected to go public to avoid a
scandal and its grave consequences.

6. On LT’s claim that she was threatened: “The claim of
being threatened appears to be the expedient face-saving subterfuge
of complainants in rape cases” (citing People vs. Rivera, 242 SCRA 26
and People vs. Ching, 240 SCRA 267).
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 72 of 103

Case No. 6 (Annex E-6)

People vs. MH119
23 August 2004

Statement of the Case:

The accused MH is an uncle by affinity of the complainant RT,
being the husband of her aunt. RT lived in the house of MH and her
aunt since she was 11 years old. She was considered as part of the
family, she was sent to school, and she helped in the household
chores. She was in third year high school when she stopped
schooling and opted to train at an agency as an entertainer for
deployment to Japan.

The prosecution’s evidence showed that on May 6, 1998, RT
was waiting for a ride home from the agency when MH arrived
driving a taxi owned by his sister, and called RT. When she did not
go near him he alighted from the taxi, pulled RT to the taxi then
pushed her inside. RT sat in the front seat. She said that MH locked
the door so she could not escape. They proceeded to a motel where
MH ravished her twice against her will. RT testified that MH had a
gun and threatened to kill her and that she screamed and resisted
him.

On May 14, 2002 or eight days after the alleged rape, RT told
her aunt what happened because she could not bear it anymore.
When MH arrived that evening he and his wife had a fight. Later,
the couple mauled RT. At 9:00 in the evening of the same day, police
officers went to the house of MH because of a report of the mauling.
The police brought MH and RT to the police station where RT told
the police that she was molested on May 6, 2002.

On the other hand, the accused denied having raped RT. To
support his claim, he presented his wife who testified that at about
10:30 in the morning of May 6, 2002 she accompanied RT and her

119 The decision was rendered by the Regional Trial Court of Davao City, Branch 33.
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 73 of 103

friends to take a bath in the river and to meet their respective
boyfriends; that they returned to Davao City at 6:00 in the evening;
that she later went with RT and her boyfriend and another friend to
Times Beach and stayed there until 11:00 in the evening.

The Court’s Decision:

The accused is acquitted.

1. The complainant does not appear credible considering her
“chameleon-like propensity to change her answers at every turn,” as
when:

(a) She testified that MH had a gun and that he
threatened her with violence and that inside the motel room
he punched her in the stomach that made her unconscious or
feel unconscious, but these allegations were not mentioned in
her affidavit.

(b) She claimed that MH was holding a gun when he
pushed her into the taxi, then she later said that the gun was
tucked in his waist.

2. Her testimony is inherently improbable, and it goes against
human nature (citing People vs. Servillano Velasquez, G.R. No. L-35241,
February 28, 1983), as shown by the following findings:

(a) As to RT’s claim that MH locked the door of the
taxi, it is surprising that she did not attempt to open the door
of the taxi when she could have easily lifted the lock and
jumped off the taxi.

(b) RT did not shout for help when she could have
easily done so since this happened at noontime in a place with
many people and establishments.
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 74 of 103

(c) Had she really resisted there would have been
telltale signs of struggle, and if she screamed people would
have come to her assistance.

(d) RT said that MH licked her all over for about 30
minutes, but he could not have licked her that long had she
resisted what he was doing to her.

(e) It is incredible that for two solid hours that MH
slept after the first act, complainant did not take any step to
escape from the accused.

(f) RT was not rendered unconscious because she could
describe what MH did to her, “she can described [sic] the
foreplay indulged in by the accused who kissed her all over
her body including her vagina. [S]he claimed she did not enjoy
the foreplay because ‘it was different’ because according to
her, his saliva was all over her body; which again gives the
impression that she had experienced foreplay before.”

(g) The fact that the accused was able to have a second
intercourse with her and to stay on top of her and inside her
for a long period of time is a strong circumstance against her
claim that the sexual acts were done by means of force or
threat to her life.

3. If RT screamed and resisted then she was not intimidated
by the accused at all.

4. There is nothing in the evidence to suggest that the threat
was continuing and that it had persisted assuming it to be real.

5. The finding of “penetrating injury” by an obstetrician-
gynecologist connected with the Women and Children and
Protection Unit of the Davao Medical Center is not conclusive of
penile intromission nor of whether the penetration was consensual
or not.
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 75 of 103

Case No. 7 (Annex E-7)

People vs. NP and PP120
24 August 2005

Statement of the Case:

Complainant RE and accused NP and PP were classmates in
college. PP was also RE’s classmate in high school. The three of
them were close. RE considered the two men her best friends. When
RE and NP took the Customs Broker Licensure Examination in 1997
in Manila, they occupied the same room in a boarding house. They
slept on the same bed. This was the arrangement for the two months
that they were together in Manila to take the licensure exam. During
this period they had sexual intercourse twice. They did not see or
hear from each other after this period.

The next time RE and NP met again was on December 22,
2002, or about five years after, at their class reunion at a classmate’s
residence. RE was already married at that time. The celebration
ended at around 2:00 in the morning of December 23, 2002. RE
boarded a taxi with four other classmates, but when PP and NP
asked her to go with them instead, she agreed. The taxi proceeded to
a motel. RE did not want to go up the motel but NP and PP assured
her that they would just be talking to each other. Inside the room,
PP walked to and fro while NP drank something he took from the
refrigerator. Afterwards, NP turned off the light, embraced RE, lay
on top of her and started kissing her, while PP removed her shoes.
RE was able to extricate herself from NP’s embrace, accidentally
hitting PP’s face. PP then went to the bathroom and turned on the
light. PP went back to the bedroom and scolded her because his face
was bleeding. He then left the room and NP followed him. PP came
back and asked her why NP was angry. PP told her that if she
would not give in to what NP wanted, NP would go wild. PP left the
room again and NP went back inside. NP started hugging and

120The decision was rendered also by the Regional Trial Court of Davao City, Branch 33
and penned by the same judge as in Case No. 6. The cases were tried only against NP
because PP was not brought to the jurisdiction of the court.
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 76 of 103

kissing her again. She made an alibi and went to the bathroom
because she wanted to call her husband but she realized she left her
cell phone in the bedroom, so she went back. NP was waiting for
her. He pulled her to a corner, removed her jacket then threw her to
the bed. He lay on top of her and proceeded to undress her and have
sex with her. RE was being noisy; she kept reacting and shouting,
saying “Don’t NP, don’t NP. That’s enough, NP, that’s enough.”
After a while, NP stood up. RE asked him why he did that to her.
She hastily put on her panty, but PP came, pulled her panty and
“used” her also. RE kept saying “Don’t PP, don’t. That’s enough.”
RE, NP and PP left the motel together on a taxi at 4:00 in the
morning of December 23, 2002.

On the other hand, the defense sought to show that RE and
NP had consensual sexual intercourse back in 1997; that there was
no noise or trouble when NP, PP and RE were inside the motel; that
what happened between NP and RE was consensual – a mere case of
marital infidelity.

The Court’s Decision:

The accused is acquitted. “There was no rape to speak of but,
as the accused maintained, a case of marital infidelity.” It was but
“undeniably inexcusable indiscretion” on the part of the
complainant. What transpired between the accused and the
complainant was consensual, the result of “the chemistry and
electricity of mutual attraction and desire” (citing People vs.
Mendiguarin, 92 SCRA 679, 683).

1. The court started by stating the “basic postulates in
resolving rape cases:” “in crimes against chastity, the testimony of the
complaining witness should not be received with precipitate
credulity (People vs. Cueto, 84 SCRA 774) since experience has
shown that unfounded charges of rape have not infrequently been
preferred [sic] by women, actuated by some sinister or ulterior and
undisclosed motive (U.S. vs. Bay, 27 Phil 495 [1914]),” among others.
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 77 of 103

2. The complainant and the accused indulged in sexual
intercourse when they were together in Manila.

3. “Being without contact with each other for five (5) years, it
is highly likely that the passion and lust they had for each other in
1997 was rekindled by being together again on December 22, 2002.”

4. The only plausible explanation why RE returned to the
room after being in the relative safety of the bathroom is that she
was not averse to a renewal of her sexual dalliance with NP.

5. RE’s actuations were hardly those of a woman whose
honor and that of her husband had been trampled upon against her
will, as shown by the following:

(a) She could have shouted as loud as she could muster
since she did not testify that her mouth was gagged, but she
did not; for if she really shouted, she could have been heard
by the roomboy or the security guard. Her alleged shouts of
“Don’t NP” and “Don’t PP” may “at best be considered a
natural initial reaction to a lover’s passionate fondling” (citing
People vs. Subido, G.R. No. 115004, February 5, 1996). If at all
she shouted, it would have been obviously half-hearted or it
could be the shout of a woman passionately aroused.

(b) She could have reported the rape to the personnel or
the security guard of the motel but she did not.

(c) Leaving the motel together with her supposed rapists
in a taxi is incredible.

(d) It is incomprehensible that she did not immediately
go to her husband to tell him first hand the bestiality she
suffered.

(e) She would not have revealed what happened to her
to her husband if he did not discover the SMS message from
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 78 of 103

PP on her cell phone. (The message was “RE, sorry sa nangyari.
Si NP kasi [RE, sorry for what happened. It was NP’s fault].”)

(f) When RE met PP a day after the alleged incident,
there was no outburst of outrage from her, no expletives
uttered, no physical manifestation of anger or hatred.

6. Since there was no traumatic evidence of entry, it can only
be surmised that there was gentleness in the intromission as is only
possible in consensual sex or because she was fully aroused and
lubricated.

7. RE admitted that neither NP nor PP threatened to kill her
or to do anything harmful to her. On the contrary, she was the one
who threatened them that her husband would arrive to help her,
which threat she used to frighten the men. Obviously she could not
have frightened them if she was forced, threatened or intimidated.
If there is no force, threat or intimidation, then there is no rape.

While each of the seven cases has incidents unique to it, all seven
exhibit not only points of likeness to the author’s case, but also similarities
in the manner the court justified its decision of acquittal. These similarities
can be summarized into five elements which, according to all the cases, are
sufficient to form a reasonable doubt in the mind of the court for it to
decide in favor of the accused.

First is the “sweetheart defense” or a variation thereof, which asserts
that the sexual act is consensual because intimate or sexual relations
existed or exist between the complainant and the accused. Second is the
court’s appreciation of the complainant’s conduct before, during and after
the alleged rape. The main line of reasoning is that the complainant did
not exhibit the “natural” reaction of a woman who claims to have been
violated. Third is the absence of injury, both on the part of the accused and
of the complainant. Fourth is the nature, the amount or severity, and the
perceived effects of the force, threat or intimidation as applied to the
complainant. Fifth is the understanding of the concept of consent and how
it is manifested or communicated.
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 79 of 103

First. The “sweetheart defense” is premised on several things. One,
it presumes that every sexual contact between sweethearts or lovers is
consensual. Second, it assumes that women surrender their rights upon
entering into an intimate relationship, particularly their right to sexual
autonomy. Furthermore, it looks at any squabble between lovers,
especially if they are spouses, as entirely the couple’s concern, or a purely
domestic or private matter, justifying the government’s and the
community’s “hands-off” stance towards it. These beliefs are totally
erroneous. Women do not relinquish their rights when they enter into an
intimate or even marital relationship. They continue to have the right to
decide whether to have sexual contact or not. Forced sex or sexual
violence, even in intimate relationships, is a violation of women’s rights;
and women’s rights are human rights, the protection of which is the first
responsibility of governments.

In the case of People vs. PO1 WF, the court allowed the defense to
adduce evidence that there had been previous sexual relations between the
accused and the complainant, and that it was well-known to the accused's
companions and co-workers that the complainant was his “girlfriend.” In
People vs. EG, the court held that the “sweetheart theory” is a valid defense
if it is shown that the accused and the victim were in an illicit
relationship.121 In People vs. NP and PP, the court gave much weight to the
previous sexual relations of the complainant with the accused five years
prior to the alleged rape. These decisions also completely ignored the Rape
Shield Law122 when they devoted attention to allegations regarding the
complainants’ past sexual conduct when such is not material to a rape case.

Second. The courts set standards of what can be considered as the
“natural” behavior of a woman and a rape victim. Prior to the actual
sexual assault, a woman is expected to never let her guard down, to always
be suspicious of the intentions of men, and to be able to anticipate sexual
attacks. During the sexual assault, the woman is expected to fight back

121Citing People vs. Godoy, 250 SCRA 676.
122Sec. 6, Republic Act No. 8505 (Rape Victim Assistance and Protection Act of 1998) – In
prosecutions for rape, evidence of complainant’s past sexual conduct, opinion thereof or
of his/her reputation shall not be admitted unless, and only to the extent that the court
finds, that such evidence is material and relevant to the case.
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 80 of 103

with all her might, to defend her honor to the point of serious injury to
herself, even at the risk of death. After she has been raped, a woman is
expected to flee from her abuser and to never see him again. A real rape
victim should report the incident to the proper authorities or to her family
at the earliest opportunity. She should manifest evident rage, distress or
anguish. She is also expected to recall every detail of the violation she
suffered.

Anything less than this standard of behavior is taken to mean that
the woman either (a) willingly brought the assault upon herself, or (b)
consented to the sexual act, or (c) she is just fabricating the charges, often
as a face-saving act or as some form of revenge.

In People vs. RM, the court chided the complainant, whom it
described as a “well-bred and educated 23 year old young lady,” for
having fallen prey to the accused’s “intermittent coaxing.” She should
have, while in transit from Gardenia to Sogo in Guadalupe, escaped or at
the very least attempted to escape, considering that they rode public
transportation. In People vs. DD, the court noted that the complainant
should have fled from the accused since she had numerous opportunities
to do so, such as when the accused was busy putting on his underwear and
pants, or when the car was exiting the parking lot. The court also noted
that the complainant chose to travel with the accused and gave no weight
to the complainant's explanation that she feared for her life, saying that it
was only a guise. In People vs. PO1 WF, the court said that it found it hard
to believe that the complainant never cried out that she was being taken
against her will. The court also said that the fact that the complainant did
not immediately report the incident to the authorities was telling and that a
“more natural reaction” of a rape victim was an outcry after the alleged
danger had passed. In People vs. EG, the court said that it is “utterly
unnatural” for the complainant to remain silent for 18 months and not
disclose the alleged outrage done to her. It observed that she did not take
precautions to avoid being subjected to subsequent molestations by the
accused after the first incident. The court also noted that the complainant
did not cry or sob or show any emotion when she narrated the outrage
done to her on the witness stand. In People vs. MH, the court found it
contrary to human nature that the complainant did not shout for help
when she could have easily done so. In People vs. NP and PP, the court
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 81 of 103

stated that the complainant’s actuations were hardly those of a woman
whose honor and that of her husband had been trampled upon against her
will, because she did not shout loud enough to be heard by the personnel
of the motel; she left the motel with her supposed rapists in a taxi; she did
not immediately go to her husband to tell him what happened to her; and
when she met one of the accused a day after the alleged incident, there was
no outburst of outrage from her, no expletives uttered, no physical
manifestation of anger or hatred.

These standards of behavior are unreasonable, unrealistic and
unscientific, even contrary to women’s experiences. It has long been
recognized that people react differently to extremely stressful situations.
As discussed earlier, women have a wide range of behavioral responses
when threatened with rape, during the actual rape and after the rape. For
instance, she may react to the threat by stalling for time, pleading, flattery,
and bargaining with the assailant or would-be attacker. When it becomes
clear that the attack is inevitable, she may try to actively avoid the attack or
simply allow the attack to end as soon as possible in order to be spared
further agony. She may be immobilized by fear or she may dissociate
herself from the painful situation. The range of responses to traumatic
experiences is vastly broader than what the courts consider “normal.”
Moreover, the court’s expectation of immediate disclosure is contrary to
women’s experiences. That rape victims are generally reluctant and scared
of reporting what happened to them because of the social costs of speaking
up has long been recognized as empirically true. In fact, studies show that
women’s initial reaction to the rape is one of denial that it ever happened.

Third. In relation to the conduct expected of a woman during the
actual rape, that is, to fight the attacker with all her might, a rape victim is
expected to bear substantial bodily injury such as contusions and
lacerations as evidence that she truly resisted the accused. Such injuries are
also considered as proof that the accused really employed force to have
sexual contact with the complainant. The attacker, too, must bear some
evidence that the woman struggled against him, like scratches or bite
marks. Absence of physical injury is taken to mean that the woman
consented to the sexual act or that the accused did not force her into it.
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 82 of 103

In People vs. RM, the court concluded that the bruise on the
complainant's chest was inconsistent with the injuries usually sustained by
rape victims. However, the court did not specify as to what were the
“injuries usually sustained by rape victims.” In People vs. DD, the court
concluded that the bruises on the complainant's right arm and left thigh
were “minimal” and could not have been serious inflictions sufficient to
have minimized the movements or resistance of the complainant to the
alleged sexual intrusion. Also, the resistance must be tenacious and
manifest; verbal objections should be accompanied by “violent physical
resistance.” In People vs. PO1 WF, the court concluded that the
complainant did not put up any struggle because the accused “had no
difficulty in realizing and satisfying his lustful desires” on the former. In
People vs. MH, the court said that had the complainant really resisted there
would have been telltale signs of struggle. In People vs. NP and PP, the
court found that since there was no traumatic evidence of entry in the
complainant’s vagina, “there was gentleness in the intromission as is only
possible in consensual sex or because she was fully aroused and
lubricated.”

These rulings are erroneous and discriminatory. Not all forms of
resistance or struggle result in injury to either party. In the first place, not
all resistance is physical. There are numerous factors to consider, such as
the physical and psychological conditions of both the complainant and the
attacker, the circumstances of the attack, the degree of familiarity of the
complainant with the attacker, the means employed by the attacker to
coerce the complainant into sex, and the means by which the complainant
defended herself. As explained above, women have a wide range of
behavioral responses when threatened with rape, during the actual rape
and after the rape. Their defenses against the attack are not necessarily
physical. Lack of physical injury is not conclusive of lack of resistance on
the part of the victim. The woman can not be faulted if the means she
employed to protect herself turned out to be ineffective. What is essential is
that she did not consent to the sexual intrusion.

Fourth. In the cases summarized above, the courts required that for
the element of force, threat or intimidation to be appreciated, it must be of
such nature that it totally deprived the victim of any freedom and is
usually in the form of actual physical violence or a direct continuing threat.
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 83 of 103

The force, threat or intimidation must continuously be manifest and
imminent throughout the sexual assault; if it ceases to be apparent at any
time, even if the victim continued to be under the control of the accused
because of fear, then no force, threat or intimidation was used and the
woman could only have consented to the sexual act.

In People vs. PO1 WF, the court did not give any weight to the
complainant's allegation that she feared for her life because the accused
had a .38 caliber gun. The court rationalized that nowhere was it in the
records that the accused pointed the gun at the complainant before and
during the actual sexual intercourse, hence there was no force or threat
applied to the complainant at the time. In People vs. FM, the court
concluded that “the alleged threat to JF's life was made when she was
already naked, and after she willingly gave in to RM's advances.“ It is as if
the court is saying that since the threat was made after the carnal act, it
must be that the complainant willingly submitted to the accused. In People
vs. DD, the court said that “the elements of force, threat or intimidation
must have been clearly and convincingly established by the alleged victim
as to have made her submit to the will of the accused.” If the force, threat
or intimidation exists only in the mind of the victim, without any tangible
physical manifestation, it cannot be appreciated by the court. Thus, the
court did not believe the complainant's allegation that she feared for her
life because the accused had a gun: “according to the testimony of G, she
only saw the gun on two occasions: during the preparatory stage when the
accused removed her underwear, and then only after the carnal act was
completed, when it was recovered from the car flooring. The gun could not
have caused the complainant to unwittingly submit to the carnal desire of
the accused.” In People vs. MH, the court held that if the complainant was
able to scream and resist then she was not intimidated by the accused at
all, and that there is nothing in the evidence to suggest that the threat was
continuing and that it had persisted.

These pronouncements of trial courts ignore the doctrine laid down
in Supreme Court decisions that the amount of force, threat or intimidation
applied should be appreciated from the point of view of the person
receiving it; it is not an objective element, it is subjective. Also, as early as
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 84 of 103

the case of People vs. Savellano,123 the Supreme Court has recognized that
the force or violence necessary in rape is a relative term, depending on the
age, size and strength of the parties and their relation to each other.
Moreover, as discussed earlier, the element of force, threat or intimidation
should be construed to include other coercive circumstances not
necessarily physical that vitiate the woman’s consent. For the courts to
continually look for physical manifestations of force, threat or intimidation
is not only unreasonable but also discriminatory.

Fifth. The trial courts maintain that the first four elements determine
whether or not the complainant consented to the sexual encounter. An
intimate relationship between the complainant and the accused, any
deviation from the “normal” behavior expected of women and rape
victims, the absence of bodily injury, or the lack of obvious force, threat or
intimidation is sufficient to adjudge the sexual encounter as consensual.
The failure to manifestly oppose the carnal act, and even if there was
opposition, the failure to effectively oppose the carnal act, is tantamount to
consent. As per People vs. PO1 WF, “Consent, no matter how reluctantly
given, is still consent.”

Such an understanding of consent ignores other forms of force,
threat or intimidation as well as other forms of resistance and responses to
sexual attacks which have been discussed earlier.

In her classic book, Trauma and Recovery,124 psychiatrist Judith
Herman125 explains:

When a person is completely powerless, and any form of resistance
is futile, she may go into a state of surrender. The system of self-
defense shuts down entirely. The helpless person escapes from her
situation not by action in the real world but rather by altering her
state of consciousness. Analogous states are observed in animals,
who sometimes “freeze” when they are attacked. These are the
responses of captured prey to predator or of a defeated contestant

123 57 SCRA 320.
124 Basic Books, New York (1997).
125 Associate Clinical Professor of Psychiatry at the Harvard Medical School and Director

of Training at the Victims Violence Program at Cambridge Hospital.
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 85 of 103

in battle. A rape survivor describes her experience of this state of
surrender: “Did you ever see a rabbit stuck in the glare of your
headlights when you were going down a road at night. Transfixed
– like it knew it was going to get it – that’s what happened.” In the
words of another rape survivor, “I couldn’t scream. I couldn’t
move. I was paralyzed… like a rag doll.”126

This altered state of consciousness might be regarded as one of
nature’s small mercies, a protection against unbearable pain. A
rape survivor describes this detached state: “I left my body at that
point. I was over next to the bed, watching this happen… I
dissociated from the helplessness. I was standing next to me and
there was just this shell on the bed… There was just a feeling of
flatness. I was just there. When I repicture the room, I don’t picture
it from the bed. I picture it from the side of the bed. That’s where I
was watching from.”127

In addition, several observations must be mentioned:

In People vs. NP and PP, the court referred to rape as a “crime against
chastity” even if it had been eight years since the Anti-Rape Law of 1997128
which reclassified rape from a crime against chastity to a crime against
persons, was passed. The judge also added too much insult to injury: not
only did he deny the rape of the complainant, he also repeatedly portrayed
her as an unfaithful woman who derived immense pleasure from the same
act that she decried as a violation of her person.129 In People vs. MH, the
judge included in his decision a narration of the unnecessary and improper
details of the sexual encounter, such as the “fingering,” “licking” and
“foreplay” done to the complainant and if she enjoyed it, which shows an

126 Id. at 42.
127 Id. at 43.
128 Rep. Act No. 8353.
129 After expressly pronouncing the case as one of marital infidelity, the judge made a

belated disclaimer in the last paragraph before the dispositive portion of the decision, in
consideration of the feelings of the complainant’s husband, saying, “That is why the Court
have [sic] not advisedly characterized what happened as an act of marital infidelity in
deference to the sensibility [sic] of the innocent spouse and on the possibility that the
offense had indeed been committed except that an acquittal has to be rendered because
prosecution failed to overcome the presumption of innocence.” (Emphasis supplied.)
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 86 of 103

utter lack of sensitivity towards the victim. No prosecution of any other
crime subjects the complainant to such humiliation, suspicion and scorn.
Clearly, this is discrimination.

The same judge who heard and decided People vs. MH and People vs.
NP and PP also rendered a decision acquitting a police officer of two
charges of rape of a 14-year-old minor, committed while the child was
under the custody of the Children and Women’s Desk (formerly Women
and Child & Youth Relation Section or CYRS/WCD) of the Davao City
police station.130 The decision was largely based on the finding that the
complainant was a juvenile delinquent, that she was “no longer a child but
a woman in a minor child’s body, old in the ways of the world beyond her
years” and that she was “no longer a virgin, having been deflowered by
her boyfriend at the age of 12.” The court also said “it is possible then that
she concocted this lurid tale of lust and rape just so she would not be
brought to the CYRS where her face is already well known or for other
undisclosed and ulterior motives.” However, the case is not included in
this Communication because the author believes that the discrimination
against the victim is so severe, running through the entire legal process –
from the investigation to the prosecution, trial and judgment of the case –
such that it necessitates a full-blown discussion which is not possible in
this Communication.

The failings of trial court judges may be partly attributed to the
Supreme Court. Many of the principles judges use to justify dismissals or
acquittals are culled from the pronouncements of the Supreme Court in its
decisions. While in recent years the Supreme Court has rendered decisions
that are more sensitive to the plight of victims of sexual violence, there
appears to be no consistency in the Court’s treatment of rape cases. What
can be said is that, considering the body of jurisprudence, the Supreme
Court has not laid down definite unequivocal rules in deciding rape cases
for the guidance of both the bench and the bar.

130 People vs. PO2 FO, Criminal Case Nos. 41,576-98 and 41,577-98, March 3, 1998.
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 87 of 103

It has been observed that Philippine rape law is a collection of
contradictions.131 The Supreme Court has expressly stated that physical
resistance need not be established in rape when force or intimidation is
exercised upon the victim herself.132 Yet, in People vs. Relox133 it ruled that
“while it may be said that tenacious resistance from the victim is not a
requirement for the crime of rape, the lack of evidence signifying an
obstinate resistance to submit to the intercourse, naturally expected from an
unwilling victim, could likewise indicate that no rape has occurred.”134

Barely two months before the Court decided the Relox case, it
recognized in People vs. Malones135 that “[b]ehavioral psychology teaches
that people react to similar situations dissimilarly. Their reactions to
harrowing incidents may not be uniform….The range of emotions shown
by rape victims is yet to be captured even by calculus. It is thus unrealistic to
expect uniform reactions from rape victims. Indeed, we have not laid down any
rule on how a rape victim should behave immediately after she has been abused.
This experience is relative and may be dealt with in any way by the victim
depending on the circumstances, but her credibility should not be tainted with any
modicum of doubt. Different people act differently to a given stimulus or
type of situation, and there is no standard form of behavioral response
when one is confronted with a strange or startling or frightful
experience.”136 Yet the Relox decision implies that “obstinate resistance” is
the natural response of an unwilling victim.

In People vs. Valdez,137 the Court ruled that “[i]n rape through force or
intimidation the force employed by the guilty party need not be irresistible.
It is only necessary that such force is sufficient to consummate the purpose

131 Gatmaytan, Dan. “Character, Credibility, and Contradiction: Rape Law and the
Judicial Construction of the Filipina.” 1998 Philippine Peace and Human Rights Review.
Chapter 4, pages 117-158.
132 People vs. Ilagan, G.R. No. 144595, August 6, 2003; People vs. Domingo, 226 SCRA 156

(1993); People vs. Adlawan, 217 SCRA 489 (1993); People vs. Palicte, 229 SCRA 543
(1994); People vs. Dupali, 230 SCRA 62 (1994); G.R. No. 144595, August 6, 2003.
133 G.R. No. 149395, April 28, 2004, citing People vs. Eliarda, G.R. Nos. 148394-96, April

30, 2003.
134 Emphasis supplied.
135 G.R. Nos. 124388-90, March 11, 2004.
136 Emphasis supplied.

137 G.R. Nos. 133194-95 and 141539, January 29, 2004.
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 88 of 103

for which it was inflicted. Similarly, intimidation should be evaluated in
light of the victim’s perception at the time of the commission of the crime.
It is enough that it produced the fear in the mind of the victim that if she
did not yield to the bestial demands of her ravisher, some evil would
happen to her at that moment or even thereafter. Hence, what is important
is that because of force and intimidation, the victim was made to submit to
the will of the appellant.” Yet, about four months later, in the case of People
vs. Oga138 (cited by Judge Europa in her decision), the Court held that there
was no rape, because even if the 14-year-old complainant was pulled down
to bed, “she was not threatened with bodily or physical harm by a knife,
bolo, or any object or instrument that the appellant could have employed
so as ‘to create a real apprehension of dangerous consequences or serious
bodily harm.’”

While an amorous relationship between the complainant and the
accused has been rejected by the Supreme Court as evidence of consent, it
nonetheless continues to be a common affirmative defense in rape cases. In
the case of People vs. Timbang,139 the Court ruled that even if the accused
and the complainant were sweethearts, “that fact would not exempt the
man from criminal liability if the sexual intercourse with the woman was
against the latter’s will.” Yet in the case of People vs. Salazar140 the Court
ruled out the possibility of rape when the accused (a teacher) denied the
charges of the complainant and claimed that they had an intimate
relationship. He showed love letters handwritten by the complainant to
support his claim. The Court gave weight to the letters, observing that
“their contents transcend the bounds of decency and propriety of a
teacher-student relationship and support the appellant’s averment that the
copulation was not attended by force or intimidation as they were lovers.”
In People vs. Bautista,141 while the Court said that even if the accused
and the victim were really sweethearts, such a fact would not necessarily
establish consent142 it still recognized the “sweetheart defense” as a valid
affirmative defense that must be established with convincing evidence143 --

138 G.R. No. 152302, June 8, 2004.
139 G.R. No. 88403, August 30, 1990.
140 G.R. No. 114291, May 14, 1997.
141 G.R. No. 140278, June 3, 2004.
142 Citing People vs. Cepeda, 381 Phil. 300, 310 (2000).
143 Citing People vs. Barcelona, 382 Phil. 46, 56 (2000).
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 89 of 103

by some documentary or other evidence like mementos, love letters, notes,
pictures and the like.144

As discussed earlier, the Court has acknowledged the difficulties
that a Filipina faces in filing a rape case; yet, until now, it declares that “an
accusation for rape can be made with facility” as the first of the “three
guiding principles in reviewing rape cases.”

In People vs. Barcena,145 the Court pronounced that “[r]ape is nothing
more than a conscious process of intimidation by which a man keeps a
woman in a state of fear and humiliation.” This is consistent with the
reclassification of rape as a crime against persons from being a crime
against chastity. Yet the Court continues to use “lust,” “lustful desires,”
“carnal lust,” and similar words to express the motives of the accused for
committing rape.

The Court’s double standard has not remained unheeded and has
been invoked by both defendants and judges of trial courts like Judge
Europa. Efforts from the defendants to show that the complainant is an
exception to the stereotypes continue as if this constituted a proper defense
to a charge of rape. Recent cases show not only that defendants’ attempts
to cast the complainants in an unfavorable light continue unabated, but
also that the Supreme Court has been slow in curbing these attacks on the
character of the complainant.

These discriminatory rulings are considered to have hardened into
accepted precepts of case law; they have a claim to legitimacy because the
Supreme Court has not categorically abandoned them.

More than a quarter of a century since the Philippines ratified the
Women’s Convention, discriminatory assumptions, myths and
misconceptions in jurisprudence continue to place victims of rape at a legal
disadvantage and significantly reduce their chances of obtaining redress
for the violation they suffered.

144 Citing People vs. Garces Jr., 379 Phil. 919, 937 (2000).
145 G.R. No. 168737, February 16, 2006.
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 90 of 103

Gender equality and access to justice of rape victims

Although there is no baseline data on the incidence of rape in the
Philippines, it is generally recognized that rape cases are tremendously
underreported. According to one study, the generally accepted view is
that only 20% of rape cases are reported.146 In 2000, the Philippine National
Police reported that one rape is committed every seven hours.147 A
government document states that rape of adults constitutes less than 13%
of the 7,805 cases reported to the police in 2003, while rape of children
constitutes 46% of the 7,303 cases reported in the same year.148 One reason
for the underreporting is that rape victims are afraid of the stigma that will
most likely result from seeking justice for the violation. The lack of
confidence in the legal process and of getting just and appropriate redress
may be another. In all, the lack of familial, institutional or societal support
for rape victims is a major factor in not reporting the crime.

It bears noting that the rape cases that reach the judiciary have gone
through a rigorous and often discriminatory screening by the law
enforcement agencies and the prosecutorial offices. There is no national
data that shows how many cases get dismissed by the prosecution agencies
after preliminary investigation but indicative data from women’s NGOs
and direct service providers point to a significant number. The lack of
national data notwithstanding, it could be said that the cases that survive
this screening process are those that somehow pass the “test of
acceptability” as rape by investigators.

Thus, for the courts to dismiss a rape case based on gender-based
myths and misconceptions is perhaps the ultimate revictimization for a
complainant who had gone through so much already in the process of
getting justice.

146 Roberto Ador, Merci Angeles and Soliman Santos Jr. Justice and Healing: Twin
Imperatives for the Twin Laws Against Rape (2001).
147 Id., citing the Directorate for Investigative and Detective Management, Philippine

National Police, “The Detective,” First Semester, CY 2000, X.
148 Combined Fifth and Sixth Philippine Progress Report on the Implementation of the

UN Convention on the Elimination of All Forms of Discrimination Against Women
(CEDAW/C/PHI/5-6) (June 2004), p. 44.
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 91 of 103

When acquittals occur in rape cases based on gender-based myths
and misconceptions or discrimination against victims, there is effectively a
denial of access to justice, particularly to just and effective remedies for the
violation and the harm caused. This is what happened to the author and
the victims in the decisions summarized in this Communication. The
much lauded gender equality provision in the Philippine Constitution that
the State “shall ensure the fundamental equality before the law of women
and men”149 becomes hollow for them.

“In order to escape accountability for his crimes, the
perpetrator does everything in his power to promote
forgetting. Secrecy and silence are the perpetrator’s
first line of defense. If secrecy fails, the perpetrator
attacks the credibility of his victim. If he cannot
silence her absolutely, he tries to make sure that no
one listens. To this end, he marshals an impressive
array of arguments, from the most blatant denial to
the most sophisticated and elegant rationalization.
After every atrocity one can expect to hear the same
predictable apologies: it never happened; the victim
lies; the victim exaggerates; the victim brought it upon
herself; and in any case it is time to forget the past and
move on. The more powerful the perpetrator, the
greater is his prerogative to name and define reality,
and the more completely his arguments prevail.”
- Judith Herman, M.D., Trauma and Recovery (1997)

Inadequacy of the Existing Gender Reform Program in the Judiciary

The prejudice against the author that is evident in Judge Europa’s
decision and against the other victims in the seven cases presented above
occurred in a context where trial court judges who hear and decide rape
cases barely have training to properly evaluate and decide rape or sexual
violence cases, particularly against adults. Without adequate training,
judges like Madam Virginia Hofileña-Europa could hardly be expected to
decide rape cases with sufficient understanding of the dynamics of sexual
abuse and its psychosocial sequelae or to use a context-sensitive

149 Art. II, sec. 14.
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 92 of 103

assessment of the evidence. In this situation, legislative reforms, such as
the amendments made by Republic Act No. 8353150 to the Revised Penal
Code provisions on rape, as well as the protective measures put in place by
Republic Act No. 8505,151 become insignificant, as the law will still not
provide adequate and effective legal remedies for victims.

Often, decisions that are discriminatory or based on gender-based
myths and misconceptions are passed off as “objective” application of the
law based on the evidence presented. In this manner, the cultural beliefs
that inform those decisions are not interrogated since they have been
legitimized by the myth of objectivity of the law and its processes. When
laws and policies designed to protect women’s rights and eliminate
discrimination are not properly enforced through the court system because
of cultural and gender-based prejudice, the State violates its duty to
respect, protect, fulfill and promote women’s human rights.

The Philippine Judicial Academy and the
Supreme Court Committee on Gender
Responsiveness in the Judiciary

The Philippine Judicial Academy (PHILJA)152 is the institution
charged with the formulation and implementation of a continuing
program of judicial education for justices, judges, court personnel and
lawyers. While PHILJA is the education and training arm of the judiciary,
the Supreme Court Committee on Gender Responsiveness in the Judiciary

150 One of the authors of this law was then Senator Leticia R. Shahani, who also
supported the complainant in her search for justice.
151 This law and the Department of Justice Memorandum No. 9 series of 1998 (Guidelines

on the Handling of Rape Cases Involving Adult Victims) mandate the fair and respectful
treatment of the adult rape victim, the assignment of a female investigator during
inquest or preliminary investigation, the inadmissibility of evidence of the victim’s past
sexual conduct or reputation unless such evidence is material and relevant to the case,
among others.
152 The PHILJA was first created by the Philippine Supreme Court through

Administrative Order No. 35-96 dated March 12, 1996. Later, on February 26, 1998, the
Philippine Congress enacted Republic Act No. 8557, establishing the PHILJA, defining
its powers, and appropriating funds for it.
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 93 of 103

(CGRJ), created in 2003153 is the judiciary’s planning, coordinating,
implementing and monitoring body for its gender and development
program. The CGRJ was tasked to (1) “prepare a comprehensive Gender
and Development Plan aimed at compliance by the Judiciary with the
objective to mainstream gender in the Judiciary’s policies, programs and
structures, particularly by undertaking, coordinating, and monitoring
judicial activities that promote gender responsiveness” and (2) “review the
gender responsiveness of the Action Program for Judicial Reform (APJR),
in collaboration with the Program Management Office [PMO],” which is
the office in the Supreme Court tasked to coordinate and manage all
judicial reform activities of the Judiciary.

The PHILJA has conducted various seminars and training activities
addressing gender issues. Its list of seminars responsive to the issues of
women conducted from 1999 to 2005 includes training for trainers program
for family courts, training program for family court judges, focus group
training seminar for family court judges, seminars for family court social
workers, seminars on juvenile and domestic relations justice, conventions
and seminars on trafficking in persons, seminars on new trends in
understanding women and children, seminars on domestic violence, and
gender sensitivity training programs for different members of the
Judiciary.

For its part, the CGRJ, together with the PMO, prepared a Strategic
Gender and Development Mainstreaming Plan for the Philippine Judicial
System for five years (2004-2008) (“Gad Plan”),154 which states its GAD
vision as “a judicial system that is sensitive and responsive to gender
equality and empowerment in all its policies, programs and activities,
thereby providing effective, efficient and accessible justice to all.” To
facilitate the implementation of the GAD Plan, the CGRJ formed sub-
committees.155

153 It was created on March 27, 2003 through Administrative Circular No. 22-2003. It is
one of the standing committees of the Supreme Court composed of two Associate
Justices of the Supreme Court as co-chairs, six members and a secretary.
154 This Plan was developed after the CGRJ and the PMO went through a GAD

Orientation and a Gender Assessment Workshop on the APJR.
155 It reports that through its sub-committee on training and capability-building, it

conducted training needs analyses (through surveys), focus group discussions, and
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 94 of 103

Significantly, the GAD Plain that the CGRJ prepared lists as a
weakness, under “Results of Environmental Scanning,” “Prejudices of
judges and lawyers against women victims in rape and similar crimes.”
Across it, as “Actions to Cope with or Eliminate [Weaknesses],” it lists
“GST for all justices, judges, court personnel, PHILJA professors and
MCLE trainers” “[o]n the HR documents, including women’s rights,”
“[f]ocus on awareness of re-victimization of VAWC survivors or victims in
decisions, nature of evidence and norms and standards,” and “[g]ender-
fair language in proceedings, legal and judicial writings.”

The same Plan also lists as opportunities, under the same “Results of
Environmental Scanning,” “Capability of PHILJA to develop modules and
materials on gender sensitivity and responsiveness” and “Availability of
WLB’s training manual on rape case management,”156 and across those
opportunities, as “Actions to Exploit,” “Encourage PHILJA to produce
training modules and materials on gender sensitivity and responsiveness”
and “Use WLB’s training manual on rape case management as one
resource material for gender sensitivity and responsiveness training.”

gender sensitivity trainings. It also aims to identify gender-sensitized judges and court
personnel through database statistics. In a tie-up of its sub-committee on partnership
and networking with other GAD advocates, liaisons were created with other
government agencies, NGO’s and academic institutions. Its sub-committee on gender
audit of policies included in its action plan the evaluation of at least 50% of court rules,
policies, programs and facilities through organizational diagnosis and progress reports.
In 2004-2005, its sub-committee on gender-responsive database made an inventory,
analysis and development of a gender-sensitive case management system. It also
integrated gender-based data in the monthly reporting system and docket inventories of
the courts. Its sub-committee on the promotion of the use of gender-fair language
reports that it conducted GAD orientations for all court employees. Through the latter
committee’s recommendation, the Supreme Court issued A.M. No. 06-8-21-SC, which
encourages the use of gender-fair language in all documents, communications and
issuances. Its sub-committee on the organization of regular family courts has conducted
consultations with judges of family courts to identify their strengths and weaknesses and
propose measures to reinforce them as to their structure, functions and operations. In
line with this, the CGRJ has partnered with the PHILJA to train judges and court
personnel in handling child abuse cases with the view of improving their attitudes and
practices towards child victims.
156 Referring to the training manual produced by the Women’s Legal Bureau, Inc. entitled

“Addressing Rape in the Legal System, A Multidisciplinary Training Manual” which
was developed with the participation of representatives of the PHILJA and the Supreme
Court. One of its writers is Court Administrator Zenaida N. Elepaño.
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 95 of 103

The Plan’s “Planning Matrix 1: Five-Year GAD Mainstreaming Plan
for the Judicial System” includes as a GAD objective “[t]to promote gender-
sensitive and responsive court decisions and rulings,” its identified GAD
activities as “Conduct of seminars for justices, judges and court lawyers on
gender-responsive/sensitive court decision-making and legal writing” (for
Years 3-5 of the Plan) and “Development and promotion of use of manual
on gender-responsive/sensitive court decision-making and legal writing,”
and “Development and promotion of use of manual on gender-
responsive/sensitive court decision-making and legal writing” (for Year 2).

Consistent with the GAD Plan, PHILJA, in partnership with the
Ateneo Human Rights Center and the United Nations Development Fund
for Women (UNIFEM), conducted seminar-workshops on CEDAW,
Gender Sensitivity and the Courts from October 2006157 to June 2007 and in
November 2007.158 According to the project report, a total of 10 executive
judges and 12 vice executive judges of regional trial courts, 108 court
attorneys from the Supreme Court, Court of Appeals, Sandiganbayan and
Court of Tax Appeals, two clerks of court and 17 court attorneys from the
regional trial courts, and nine court attorneys from the metropolitan trial
courts participated in the seminar workshops conducted from October
2006 to June 2007. All the participants were from Metro Manila courts.
Significantly, after the trainings, a Training Manual on Gender Sensitivity
and CEDAW was published159 for further use by the courts. PHILJA will
use this module will be used for future trainings.

This latest effort of the judiciary is laudable, but much still needs to
be done given the extent of the prejudice against women victims of rape
and other sexual violence within the judiciary. Indeed, as recognized by
the Committee, “gender sensitive training of judicial and law enforcement
officers and other public officials is essential for the effective

157 PHILJA Conducted Seminars for 2006. Retrieved from the World Wide Web from
http://philja.supremecourt.gov.ph/conducted.htm on 29 October 2007.
158 2007 PHILJA Calendar of Activities. Retrieved from the World Wide Web from

http://philja.supremecourt.gov.ph/calendar.htm on 29 October 2007.
159 By the Ateneo Human Rights Center in cooperation with the PHILJA, the

UNIFEM and the Canadian International Development Agency (CIDA).
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 96 of 103

implementation of the Convention.”160 But it bears emphasizing that a
“gender sensitivity training” conducted once, twice or thrice, which was not
specifically focused on sexual violence or rape, could hardly be considered as
adequate preparation for judges to become sensitive to the different
contexts in which women may be involved in sexual violence and to
properly decide on their cases. As illustrated in Judge Europa’s decision
and the seven other trial court decisions, judges need education and
training on how to appreciate behavioral responses of victims in sexual
assault situations as well as the significance of physical injuries or the lack
thereof. Judge Europa’s setting aside of psychiatric evidence also
illustrates the need for judges to be trained to properly appreciate the role
of other disciplines in deciding cases, particularly of psychiatry or
psychology in sexual assault cases. Any education and training program
for judges in regard to sexual violence should be interdisciplinary. The
understanding of consent or lack of it, in relation to the elements of force,
threat and intimidation, which need to be nuanced in their application in
specific contexts, needs to be reviewed and clarified, also from an
interdisciplinary standpoint.161

It appears that no program is in place that seeks to specifically
address the dire need of judges for training in dealing with cases of sexual
violence or rape of adults. In contrast, its program addressing the problem
of child abuse seems to have progressed significantly. For example, in
March and April 2006, the PHILJA conducted a Competency Enhancement
Training (CET) Program for Family Court judges and personnel in
handling child sexual abuse cases. In the subsequent months, it conducted
an impact evaluation study on changes in the attitudes and practices of
CET-trained judges and personnel; the study, according to its report,
yielded positive results.

To avoid judicial decisions such as the one subject of the present
Communication, the government’s judicial arm must adequately train its
members to properly appreciate issues in sexual violence cases. An
education and training program for this purpose should be in place.

160 General Recommendation No. 19 (1992).
161This issue, including its medical and psychological aspect, is problematized in the
dissenting opinions in People vs. Salarza (G.R. No. 117682, August 18, 1997) but it has
never been addressed fully by the Supreme Court in any of its decisions.
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 97 of 103

Moreover, it should ensure that its education and training program is
effective. Conduct of evaluation seminars and adoption of performance
indicators may facilitate the assessment of the program’s results. More
importantly, a review of trial court decisions on sexual violence may
illustrate the extent of the gender sensitivity, or lack of it, of judges.

Under the present situation, the Philippine government has fallen
short of its efforts to ensure “the effective protection of women against any
act of discrimination,” specifically in cases of rape or sexual violence, by
failing to ensure the competence of its national tribunals. It has failed to
make the administration of justice in rape cases conform to international
legal standards through adequate and appropriate judicial training,
monitoring and evaluation, and legal reform. It has also failed to comply
with its obligation to ensure that its courts act in conformity with the State
obligation to refrain from engaging in any act or practice of discrimination,
or to modify existing court practices which constitute discrimination
against women. Specifically in the case of the author, it violated the rights
of the author and violated its positive obligations under Article 2,
paragraphs c, d and f of the Women’s Convention.

IV. Exhaustion of Domestic Remedies

An acquittal under Philippine law puts an end to the process for the
victim. It is a settled rule in Philippine law that the constitutional right
against double jeopardy operates as a bar to the filing of any appeal from a
judgment of acquittal.

It must be pointed out that under Rule 65 of the Revised Rules of
Court, an extraordinary remedy of certiorari is provided, and this could be
used in cases of acquittal under certain circumstances. However, its
requirements are stringent and resort to it is not a remedy given to a
victim. One must prove that the decision of the court is null and void
because of an error in jurisdiction or one amounting to lack of jurisdiction
and not simply errors in the appreciation of evidence. Secondly, the
remedy is available only to the People of the Philippines as party plaintiff,
represented by the Office of the Solicitor General, but not to the victim
herself. She may not file a Petition for Certiorari on her own or through her
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 98 of 103

private counsel. Thirdly, the remedy should have been availed of by the
Office of the Solicitor General within 60 days from the date of the acquittal.
In this case, assuming that grounds for a Petition for Certiorari under Rule
65 of the Revised Rules of Court exist, the People of the Philippines did not
avail of that extraordinary remedy within the required 60-day period.

Under the foregoing circumstances, the author has no other available
legal remedy under Philippine law.

V. Other International Procedures

This matter has not been and is not being examined under another
procedure of international investigation or settlement.

VI. Relief Sought

The author asks the Committee on the Elimination of Discrimination
Against Women to make a finding that she has been a victim of
discrimination and that the Philippines has failed to fulfill its obligations
under Article 2 (c), (d) and (f) of the Convention “to ensure through
competent national tribunals and other public institutions the effective
protection of women against any act of discrimination; “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”; and “to take all appropriate measures…to modify or
abolish…customs and practices which constitute discrimination against
women.”

She asks the Committee to make the following recommendations to
the Philippines as a State party to the Women’s Convention and to the
Optional Protocol:
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 99 of 103

A. Concerning the author of the communication

1. Provide financial compensation for Karen Vertido in an amount
proportionate to the physical, mental and social harm caused her and the
gravity of the violation of her rights and to enable her to continue with her
therapy and other treatment.

B. Concerning State agencies

Take action and undertake measures to ensure the full recognition,
enjoyment and exercise of the rights guaranteed to women under the
Women’s Convention and other human rights conventions and to comply
with its obligations under the Women’s Convention, particularly through
the following:

1. For the judiciary

(a) Investigate Judge Virginia Hofileña-Europa to determine
the regularity of her actions in rendering the judgment of acquittal;
such investigation should include a review of her other judicial
decisions and administrative actions as former executive judge;

(b) Develop an education and training program for trial court
judges and public prosecutors specifically on sexual violence that is
designed to make them understand sexuality issues and the
psychosocial sequelae of sexual violence, appreciate properly
medical and other evidence, adopt an interdisciplinary approach in
investigating and deciding cases, and rid them of myths and
misconceptions about sexual violence and its victims. The program
should include a system of monitoring and evaluation of the
effectiveness of the education and training on the judges and
prosecutors concerned;

(c) Undertake a serious review of jurisprudential doctrines on
rape and other forms of sexual violence towards abandoning those
that are discriminatory or that violate the rights guaranteed under
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 100 of 103

general international human rights law, the Women’s Convention
and other human rights conventions;

(d) Establish a monitoring system for trial court decisions in
cases of rape and other sexual offenses to ensure their compliance
with the proper standards in deciding cases and their consistency
with the provisions of the Women’s Convention and other human
rights conventions;

(e) Compile and analyze data on the number of sexual
violence cases filed in the prosecution offices and in the courts, the
number of dismissals and their bases, towards addressing
discriminatory practices and decisions through education and
training and other appropriate measures; and

(f) Provide for the right to appeal of victims of rape in cases of
acquittals that are anchored on discriminatory grounds.

2. For the Congress

(a) Review the laws against rape and other forms of sexual
violence including their enforcement and implementation by the law
enforcement and prosecutorial agencies and the courts towards
removing or amending provisions of laws that lead to
discriminatory practices and doctrines, and to clarify that rape is
about the lack of consent of the victim; and

(b) Appropriate adequate funds for the implementation of the
Rape Victim Assistance and Protection Act of 1998 (Republic Act No.
8505) particularly its mandate for the establishment of a rape crisis
center in every province and city, in order to ensure that appropriate
support services are available and accessible to victims of rape and
other sexual violence.
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 101 of 103

C. General

(a) Respect, protect, promote and fulfill women’s human rights,
including their right to be free from all forms of sexual violence;

(b) Exercise due diligence in investigating, prosecuting and
punishing all complaints of rape and other sexual violence;

(c) Ensure that victims of sexual violence have effective access to
justice, including free, competent and sensitive legal aid where necessary
and just and effective complaints procedures and remedies;

(d) Ensure that victims of sexual violence and their families receive
appropriate protective and support services, and not leave them to their
own devices to address their psychiatric or psychological needs; and

(e) Address seriously graft and corruption in law enforcement
agencies, the prosecutorial offices and the judiciary to ensure that rape and
other cases of sexual violence are not compromised or dismissed because
of graft and corruption.

Quezon City, Philippines, November 29, 2007.

KAREN T. VERTIDO

Assisted by:

EVALYN G. URSUA
Counsel
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 102 of 103

“There is no way you can move on without closure,
and there is no way you can have closure without
justice. I’ve said this again and again, and I will say
this again and again: Life does not move on from an
unpunished crime, death does.”
-De Quiros, Conrado. “Footnote to a farce,” There’s
the Rub. Philippine Daily Inquirer. November 8,
2007.

We wish to express appreciation for the individuals who participated in a
critiquing workshop held on November 15, 2007: Prof. Maureen C. Pagaduan,
Atty. Glenda T. Litong, Dr. Sylvia Estrada-Claudio, Dr. June Pagaduan-Lopez,
Prof. Marylou L. Alcid, MayAn Villalba, Mae V. Buenventura, Jelen C. Paclarin
and Necitas D. Romeo. We also acknowledge Atty. Adoracion Avisado for her
inputs.
Communication under the Optional Protocol to the Women’s Convention
Karen T. Vertido vs. the Philippines
29 November 2007
Page 103 of 103

LIST OF DOCUMENTS ATTACHED

A Information, People of the Philippines versus Jose B. Custodio,
Criminal Case No. 37,921-96

B Memorandum for the Prosecution, People of the Philippines
versus Jose B. Custodio, Criminal Case No. 37,921-96

C Memorandum for the Defense, People of the Philippines versus
Jose B. Custodio, Criminal Case No. 37,921-96

D Decision, People of the Philippines versus Jose B. Custodio,
Criminal Case No. 37,921-96

E-1 to E-7 Decisions of trial court judges in seven rape cases

F Article 335, Revised Penal Code

G Republic Act No. 8353 (The Anti-Rape Law of 1997)

H Republic Act No. 8505 (Rape Victim Assistance and Protection
Act of 1998)