UN women’s committee faults RP for junking rape case

In a landmark decision, a United Nations committee probing discrimination against women has said that the Philippines violated the rights of a rape victim when a local court junked her complaint based on “gender-based myths and stereotypes." In decision dated July but released only early September, the Committee on the Elimination of Discrimination against Women (CEDAW) said that the court did not apply the guiding principles derived from previous decisions on similar cases when it dismissed the case on lack of evidence and doubts on the victim’s credibility. These principles, CEDAW said, are: that physical resistance is not required to establish rape; that people react differently under emotional stress; and that the failure of the victim to try to escape does not discount the possibility of rape. The CEDAW resolution stemmed from a case submitted in 2007 by Karen Vertido, former executive director of the Davao City Chamber of Commerce and Industry (DCCCI), pertaining to her dismissed rape case against businessman Jose Custodio, then 60 years old and a former president of the DCCCI, in 1996. The Regional Trial Court of Davao City acquitted Custodio in 2005. Through her lawyer Evalyn Ursua, who is also the head of the Women’s Legal Bureau, Vertido sought the help of the CEDAW to compel the Philippine government to fulfill its obligations under the Convention on the Elimination of All Forms of Discrimination against Women, which the country ratified in 1981. CEDAW, established in 1982, is the UN body tasked to ensure implementation of and compliance with the Convention. Seven gender-based myths In her complaint before the committee, Vertido said the Davao RTC peddled seven myths when it acquitted Custodio. They are the following:

• A rape victim must try to escape at every opportunity.
• To be raped by means of intimidation, the victim must be timid or easily cowed.
• To conclude that a rape occurred by means of threat, there must be a clear evidence of a direct threat.
• The fact that the accused and the victim are “more than nodding acquaintances" makes the sex consensual.
• It is problematic when a rape victim reacts to the assault by resisting the attack, and also by cowering in submission because of fear.
• The rape victim could not have resisted the sexual attack if the accused were able to proceed to ejaculation.
• It is unbelievable that a man in his sixties would be capable of rape.

In its resolution, CEDAW agreed that the court indeed relied on these stereotypes. The committee thus recommended that the government provide Vertido “appropriate compensation commensurate with the gravity of the violations of her rights." It likewise asked the Philippines to undertake measures to address problems in related laws, rape prosecution and court practices that discriminate against women. “Significantly, the Philippines is, in effect, asked to make its legislation conform to the prevailing international jurisprudence on rape," Ursua explained in an e-mail. According to Ursua, this is the first case brought to the committee’s attention from the Asia-Pacific region, and the first ever on rape decided under the Optional Protocol to the CEDAW. The protocol, adopted in 1999, seeks the ratification of member-states to recognize the competence of the CEDAW to receive and consider complaints from individuals or groups within its jurisdiction. Committee’s recommendations to RP CEDAW further recommends the Philippine government to:

• 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, concrete measures should include:

1. Review of the definition of rape in the legislation so as to place the lack of consent at its center;
2. Remove any requirement in the legislation that sexual assault be committed by force or violence, and any requirement of proof of penetration, and minimize repeated victimization of the complainant 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 was consenting; or - requires that the act take place in “coercive circumstances" and includes a broad range of coercive circumstances."
3. Appropriate and regular training on the Convention, its Optional Protocol and its general recommendations for judges, lawyers and law enforcement personnel;
4. Appropriate training for judges, lawyers, law enforcement officers and medical personnel in understanding crimes of rape and other sexual offenses in a gender-sensitive manner

“[T]he 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 resolution read. It added that the government should publish CEDAW’s views and recommendations, have them translated into the Filipino language and other regional languages, and widely distribute them. While the Convention does not have the legal capacity to impose sanctions and penalties against non-compliance for ratifying states, women’s and human rights group have hailed it as an “important international legal document providing moral force for obtaining the human rights of women".—JV, GMANews.TV