You are on page 1of 8

Violence against Women and Gender stereotypes


1. Karen Tayag Vertido, Communication No. 18/2008, 1 Sept 2010, CEDAW/C/46/D/18/2008

Case Facts: Vertido was Executive Director in a company of which the accused was President. In March 1996,
the accused gave the author a lift by car, despite the author’s expressed desire to take a taxi home. The accused,
whom the author believed was armed, allegedly grabbed her breast and drove to a motel garage, dragging the
author to a room. He temporarily let her go so that he could unlock the door. The author ran into the room
searching for an exit. Having no success, she locked herself in the bathroom. When the author heard no
movement outside the door she left the bathroom but was confronted with the accused standing almost naked.
He approached the author and forcibly pinned her to the bed despite her pleas for him to let her go. She lost
consciousness, and when she regained consciousness the accused was allegedly raping her. The author
attempted to resist the rape, but she was unable to stop him. The author eventually managed to push the
accused away. The author washed, dressed, and then ran towards the car. She tried to open the car but failed;
the accused ran after her and said he would take her home.

The author promptly reported the incident to the police The accused was eventually charged with rape and
arrested; the trial lasted for eight years. In April 2005 Judge Europa of the Regional Court of Davao City acquitted
the accused. Her decision was guided by three principles from Supreme Court precedents. These were:

. a) Rape accusations are easy to make, difficult to prove but more difficult for an innocent accused to disprove;

. b) Only two persons are involved in rape so the testimony of the complainant must be scrutinised cautiously;

. c) Evidence of the prosecution must be based on its own merits and not draw strengths or weaknesses from
evidence of the defence.

Judge Europa treated the author's failure to attempt to escape at every opportunity as a critical factor, despite
a Supreme Court precedent that ‘the failure of the victim to try to escape does not negate the existence of rape’.
Furthermore, Judge Europa challenged the author’s allegations against the accused on the basis of an
assumption that if the author had fought off the accused then the accused would have been unable to proceed
to the point of ejaculation especially because he was in his sixties. Additionally, the Judge treated the fact that
the author and accused were more than ‘nodding acquaintances’ as evidence against the likelihood of the
incident constituting rape. On these assumptions, Judge Europa acquitted the accused as guilt had not been
proved beyond reasonable doubt.

Complaint

3.5 The author...alleges...the Court relied on the gender-based myths and stereotypes... without which the
accused would have been convicted.

3.5.1 The first myth and stereotype is that a rape victim must try to escape at every opportunity.

3.5.2 To be raped by means of intimidation, the victim must be timid or easily cowed is the second myth and
stereotype challenged by the author.

3.5.3 A third myth and stereotype...is that to conclude that a rape occurred by means of threat, there must be
clear evidence of a direct threat. The author submits that, instead of employing a context-sensitive assessment
of the evidence and looking at the circumstances as a whole, the Court focused on the lack of the objective
existence of a gun.

3.5.4 The fact that the accused and the victim are “more than nodding acquaintances” makes the sex consensual
constitutes a fourth myth and stereotype...

3.5.7 The Court relied on a seventh myth and stereotype, according to which it is unbelievable that a man in his
sixties would be capable of rape. The author claims that, as a rape victim, she does not have the burden of
proving the sexual prowess of the accused, which is not an element of the crime of rape but a matter of the
defence. She further claims that should such a myth be applied to all accused men in their sixties, every case
where a person would claim to have been raped by an old man would invariably result in the acquittal of the
accused.

3.5.8 With regard to the myths embodied in the “guiding principles in deciding rape cases” which were followed
by the judge in deciding her case...the author claims that an accusation of rape is not easy to make and that to
say that a rape charge is more difficult for the accused to disprove is unwarranted. She further claims that this
presumption unjustifiably and immediately places rape victims under suspicion.

3.9 The author submits that Philippine rape law and the way it has been interpreted by the Supreme Court is a
collection of contradictions. She further submits that more than 25 years after the Philippines ratified the
Convention, myths, misconceptions and discriminatory assumptions in jurisprudence continue to place rape
victims at a legal disadvantage and significantly reduce their chances of obtaining redress for the violation they
suffered. She explains that the reasons for the tremendously underreported number of rape cases include the
fact that victims are afraid of the stigma that will most likely result from seeking justice, lack confidence in the
legal process and often fail to obtain appropriate redress.

Consideration of the Merits

8.2 The Committee will consider the author’s allegations that gender-based myths and misconceptions about
rape and rape victims were relied on by Judge Hofileña-Europa in [her] decision under article 335 of the Revised
Penal Code of 1930, leading to the acquittal of the alleged perpetrator, and will determine whether this
amounted to a violation of the rights of the author and a [the Philippines violations of its]...obligations to end
discrimination in the legal process under articles 2(c), 2(f) and 5(a) of the Convention...The Committee
emphasizes that it does not replace the domestic authorities in the assessment of the facts, nor does it decide
on the alleged perpetrator’s criminal responsibility...

8.3. The Committee notes the undisputed fact that the case remained at the trial court level from 1997 to 2005.
It considers that for a remedy to be effective, adjudication of a case involving rape and sexual offenses claims
should be dealt with in a fair, impartial, timely and expeditious manner.

8.4 The Committee further reaffirms that the Convention places obligations on all State organs [including judicial
decisions[...which violate the provisions of the Convention. [Noting obligations under articles 2(f) and 5(a)]...the
Committee stresses that stereotyping affects women’s right to a fair and just trial and that the judiciary must
take caution not to create inflexible standards of what women or girls should be or what they should have done
when confronted with a situation of rape based merely on preconceived notions of what defines a rape victim
or a victim of gender-based violence, in general. The Committee further recalls [that] its general
recommendation No. 19...addresses the question of whether States parties can be held accountable for the
conduct of non-State actors in stating that “...discrimination under the Convention is not restricted to action by
or on behalf of Governments...” and that “under general international law and specific human rights covenants,
States may also be responsible for private acts if they fail to act with due diligence to prevent violations of rights
or to investigate and punish acts of violence, and for providing compensation”. [Here]...the compliance of the
State party’s due diligence obligation to banish gender stereotypes on the grounds of articles 2(f) and 5(a) needs
to be assessed in the light of the level of gender sensitivity applied in the judicial handling of the author’s case

8.5 The Committee notes that, under the doctrine of stare decisis, the Court referred to guiding principles
derived from judicial precedents in applying the provisions of rape in the revised penal code of 1930 and in
deciding cases of rape with similar patterns. At the outset of the judgment, the Committee notes a reference in
the judgment to three general guiding principles used in reviewing rape cases [which were]...influential in the
handling of the case. The Committee finds that one of them, in particular, according to which “an accusation for
rape can be made with facility”, reveals in itself a gender bias. With regard to the alleged gender-based myth
and stereotypes spread throughout the judgment and classified by the author...the Committee, after a careful
examination of the main points that determined the judgment, notes the following issues. First of all, the
judgment refers to principles such as that physical resistance is not an element to establish a case of rape, that
people react differently under emotional stress, that the failure of the victim to try to escape does not negate
the existence of the rape as well as to the fact that “in any case, the law does not impose upon a rape victim the
burden of proving resistance”. The decision shows, however, that the judge did not apply these principles in
evaluating the author’s credibility against expectations about how the author should have reacted before,
during and after the rape owing to the circumstances and her character and personality. The judgment reveals
that the judge came to the conclusion that the author had a contradictory attitude by reacting both with
resistance at one time and submission at another time, and saw this as being a problem. The Committee notes
that the Court did not apply the principle that “the failure of the victim to try and escape does not negate the
existence of rape” and instead expected a certain behaviour from the author, who was perceived by the court
as being not “a timid woman who could easily be cowed”. It is clear from the judgment that the assessment of
the credibility of the author’s version of events was influenced by a number of stereotypes, the author in this
situation not having followed what was expected from a rational and “ideal victim” or what the judge considered
to be the rational and ideal response of a woman in a rape situation as become clear from the following
quotation from the judgment:

“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 hotel room because the accused was still NAKED AND MASTURBATING on the bed? Why did
she agree to ride in the accused’s car AFTER (capitalised as per judgment) he had allegedly raped her when he
did not make any threats or use any force to coerce her into doing so?”
Although there exists a legal precedent established by the [Philippines] Supreme Court that it is not necessary
to establish that the accused had overcome the victim’s physical resistance in order to prove lack of consent,
the Committee finds that to expect the author to have resisted in the situation at stake reinforces in a particular
manner the myth that women must physically resist the sexual assault. In this regard, the Committee stresses
that there should be no assumption in law or in practice that a woman gives her consent because she has not
physically resisted the unwanted sexual conduct, regardless of whether the perpetrator threatened to use or
used physical violence.

8.6 Further misconceptions [are evident in the Court's decision]...which contains several references to
stereotypes about male and female sexuality being more supportive for the credibility of the alleged perpetrator
than for the credibility of the victim. In this regard, the Committee views with concern the [judicial findings
that]...it is unbelievable that a man in his sixties would be able to proceed to ejaculation with the author resisting
the sexual attack. Other factors...such as the weight given to the fact that the author and the accused knew
each other, constitute a further example of “gender-based myths and misconceptions”.

8.8 The Committee finally would like to recognize that the author of the communication has suffered moral and
social damage and prejudices, in particular by the excessive duration of the trial proceedings and by the
revictimization through the stereotypes and gender-based myths relied upon in the judgment. The author has
also suffered pecuniary damages due to the loss of her job.

8.9. [Finding that the state party had violated the rights of the author under articles 2(c), (f), art 5(a) read with
16
art 1, CEDAW and general recommendation No. 19, it made several recommendations including...]

(a) Concerning the author of the communication
 Provide appropriate compensation commensurate with
the gravity of the violations of her rights16 Relating to violence against women: Para 24(b) stated: “States parties
should ensure that laws against family violence and abuse, rape, sexual assault and other gender-based violence
give adequate protection to all women, and respect their integrity and dignity”.

(b) General

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


Ensure that all legal procedures in cases involving crimes of rape and other sexual 
offenses
are impartial and fair, and not affected by prejudices or stereotypical gender notions.. To achieve this, a
wide range of measures are needed, targeted at the legal system, to improve the judicial handling of
rape cases, as well as training and education to change discriminatory attitudes towards women. 


. (i) Review of the definition of rape in the legislation so as to place the lack of consent at its centre ; 


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


. (iii) Appropriate and regular training on the CEDAW, its Optional Protocol and its general recommendations,
in particular general recommendation No. 19, for judges, lawyers and law enforcement personnel; 


. (iv) Appropriate training for judges, lawyers , law enforcement officers and medical personnel in
understanding crimes of rape and other sexual of fences in a gender- sensitive manner so as to avoid
revictimization of women having reported rape cases and to ensure that personal mores and values do
not affect decision-making. 


8.10. In accordance with article 7(4), the State party shall give due consideration to the views of the Committee,
together with its recommendations, and shall submit to the Committee, within six months, a written response,
including any information on any action taken in the light of the views and recommendations of the Committee.
The State party is also requested to publish the Committee’s views and recommendations and to have them
translated into the Filipino language... and widely distributed in order to reach all relevant sectors of society.

Individual opinion by Committee member Yoko Hayashi (concurring)

...I do not consider it the function of the Committee to decide upon the criminal responsibility of the accused in
any given case nor in the present case...I would like to make it clear that I do not agree with the author’s
allegation that without the gender myths and stereotypes, the accused would have been convicted...I do not
consider it the task of the Committee to make such a judgment. The Committee is not equipped to examine the
testimony of parties concerned, nor to evaluate the credibility of the accused or the author. Nor do I agree to
the author’s request that the Committee should address “graft and corruption in law enforcement agencies,
prosecutorial offices and the judiciary”... since I do not believe that these elements arise in the present case.

...The author is entitled to receive compensation because of the undue delays in the proceedings and the
reasoning used by the court in its decision which could potentially victimize the author. However, the State party
cannot be held accountable because its judiciary acquitted the accused.

Karen Tayag Vertido on Using the Optional Protocol to CEDAW, 14 March 2013 (Presentation delivered at
CEDAW Committee General Day of Discussion on Access to Justice, Feb 2013

The culture of silence is very strong in the Philippines. Women who have been raped do not talk about it; much
less report the crime to authorities. What for? Doing so would just aggravate the shame inflicted on them by
making it a very public issue...[furthermore]... records show Philippine courts are notoriously famous for
acquitting men accused of rape.

Poverty is the primary obstacle to justice. If only for the lack of money, not too many women dare to go so public
as I did. You might ask how was I able to sustain 9 years of litigation [mentions donations and the pro bono
services of her lawyer]...

Victim blaming is another downer to justice. A strong take-charge woman most oftentimes is considered
arrogant while her male counterpart is admired for being resolute. Rape was considered my comeuppance for
perhaps just having the job...Besides many people in Davao City believed I had no business attending a business
meeting in the evening.

... Many court decisions are premised on sexist myths. The man who raped me was acquitted of his crime
because the judge believed a woman such I who was relatively highly educated cannot have been so stupid as
to have been raped. Therefore, I could only have consented to be raped...

.... I died in court that day the rapist was acquitted. But the knowledge that there that there was recourse to
justice outside of Philippine courts brought me back to life. In November 2007 we sent off the communication
to CEDAW. In July 2010, the views came from the Committee. It upheld my contention that indeed my rights
were violated in the courts of the Philippines yet again after the original assault to my honor and to my body by
a depraved man.

...The official stand of the Philippine government was that it was not obligated by the views of CEDAW for
basically two reasons: firstly I had not exhausted all means recourse to justice, meaning I did not go to the
Supreme Court for a certiorari; and secondly, that the views impinged on my country’s sovereignty. My lawyer
responded by reiterating the conditions extant in Philippine legislature that made going to the Supreme Court
another exercise in futility. In response to sovereignty issue, we contend that the Philippines ratified CEDAW
and therefore voluntarily agreed to its conditions. Now we are at an impasse...

...What is so objectionable about doing more for women starting with honouring its commitment to an
agreement by complying with the views on my case? And if the Philippine government will not honor the views,
will an external urging from UN CEDAW help?...What does that make of the Convention if governments refuse
to honor it?

Kelly Reeve Wrongful gender stereotyping in rape trials: Vertido as one tentative step towards “equality as
transformation” , 10 Oct 201217

...The case of Vertido was the first communication before the CEDAW Committee to principally focus on
wrongful gender stereotyping...

Prior to the decision of Vertido, Professor Holtmaat had written that article 5(a) has two limbs: (1) To ban gender
stereotypes from mass media and advertising and school teaching materials, and; (2) To revise existing
legislation and public policies which reinforce existing cultural and social exclusion of women.
Article 5(a) is both reactive and proactive in its efforts to address systemic discrimination. Professor Holtmaat
argues that it creates “concrete obligations for states to put an end to laws and policies based upon gender
stereotypes which are detrimental to women”. This makes it an extremely significant provision in the move
towards a “different law and public policy”; it provides a legal basis for social and cultural change. Professor
Fredman has labelled this aspiration as “equality as transformation”; a restructuring of society so that it is no
longer male-defined. The role of the CEDAW Committee in interpreting and applying article 5(a) is therefore
crucial...

The strengths and weaknesses of the Vertido decision: Primarily, the CEDAW Committee adopted a clear
methodological approach to identifying wrongful gender stereotypes. This three-step process provides useful
guidance for both victims and states to pinpoint the harmful stereotype effectively.
1. Identify the gender stereotype (those attributes, characteristics or roles ascribed to an individual by reason
of his/her sex/gender)...

2. Explain the meaning and significance of this stereotype... 


3. Identify the social harm arising from the stereotype... 


A framework similar to this is a crucial precondition to the justiciability of wrongful gender stereotypes. It allows
the specific harmful stereotype to be targeted and eradicated from the legal systems of State Parties.

Secondly, the CEDAW Committee embraced a broad teleological interpretation of “equality” beyond its previous
jurisprudence... In Vertido, the CEDAW Committee looked beyond the law on the books to examine the attitude
of Judge Hofilena-Europa in handling the case and identified her disregard for these precedents [relating to the
prohibition against wrongful gender stereotypes in rape trials]...the CEDAW Committee reaffirmed that formal
equality is not enough; equality must be practised as well as preached. This demonstrates a progressive attitude
towards the realisation of equality as transformation.

Thirdly, the CEDAW Committee treads new ground beyond the tentative steps of other human rights
jurisprudence by issuing recommendations that directly target systemic discrimination. For example, in a
factually similar case (M.C. v. Bulgaria), the European Court of Human Rights identified the use of wrongful
gender stereotypes in rape trials in Bulgaria and emphasised that physical resistance is not necessary to establish
rape. However, in articulating state obligations, the Court merely reiterated that Member States have a positive
obligation to effectively investigate, punish and prosecute rape and sexual abuse. It made no express ruling
aimed at eliminating the wrongful gender stereotypes from the criminal justice system. In contrast, the CEDAW
Committee in Vertido went further and recommended the training of Filipino judges, lawyers and law
enforcement personnel on CEDAW and its General Recommendations and recommended that gender-sensitive
training be implemented in the judicial process...The CEDAW Committee is consistently demonstrating a
proactive approach to address the underlying causes of discrimination... Fourthly, ... the CEDAW Committee in
Vertido held that State Parties have a due diligence obligation to banish wrongful gender stereotypes under
articles 2(f) and 5(a) of CEDAW. This is the first case decided under the CEDAW Optional Protocol to extend the
due diligence obligation to gender stereotyping. However, as identified by Cusack and Timmer, the discussion
of due diligence appears to be borne out of confused reasoning by the Committee. The case of Vertido
concerned the behaviour of a national judge acting on behalf of the state and not as a private individual,
therefore the language of due diligence was unnecessary...
In addition, the CEDAW Committee does not fully
articulate state obligations under article 5(a) of CEDAW. Cusack and Timmer have suggested that the Committee
could have adopted the tripartite framework of obligations to “respect, protect and fulfil” human rights. The
obligation to “banish wrongful gender stereotypes” is regrettably ambiguous.

...In Vertido, the author alleged violations of both articles 2(f) and 5(a) and so the CEDAW Committee addressed
these provisions contemporaneously. Consequently, this has failed to resolve earlier academic confusion as to
whether article 5(a) is a “hat-peg” provision used to bring other issues under the scope of CEDAW and/or
whether it is a mere amplification of article 2(f)...

Finally, the decision remains limited to the context of rape trials... Clearly, wrongful gender stereotypes are
prevalent in all spheres of life. However, it was not the place for the CEDAW Committee in Vertido to broadly
articulate state obligations to tackle wrongful gender stereotyping [as this would stretch]...beyond the
acceptable remit of the case...

...The Vertido decision provides a robust catalyst for societal change by directly identifying and addressing
wrongful gender stereotypes, upholding a teleological interpretation of equality and boldly moving beyond
other human rights jurisprudence. To borrow the words of Professor Holtmaat, this begins to lay the
“groundwork for structural solutions to structural problems”. The [Committee's approach] in Vertido therefore
signifies one tentative step towards equality as transformation.

You might also like