(16) RACIAL DISCRIMINATION || HR LAW || CHOI
KAREN VERTIDO CASE Case was dismissed by the prosecutors for lack of
CEDAW/C/46/D/18/2008 | July 16, 2010 | CEDAW
RACIAL DISCRIMINATION
Rape Myths
Note: Omitted the procedural portion re: double
jeopardy rule and certiorari under Rule 65.
FACTS
Karen was a member of the Davao City Chamber.
Karen served as Executive Director of the Davao City
Chamber of Commerce and Industry.
Karen was brought to a motel after a meeting when
JBC offered to bring her home. She was raped in the
motel.
On March 29, 1996, after a meeting of the Chamber, JBC
(accused), former 60-year-old President of the
Chamber, offered to take Karen home, together with
one of his friends. When Karen found out that JBCs
friend would be dropped off first, she insisted on taking
a taxi instead. When JBCs friend was dropped off, JBC
suddenly grabbed her breast. This action caused her to
lose her balance. While trying to regain her balance, the
author felt something in JBCs left-hand pocket that she
thought was a gun. She tried to stop him from driving
her anywhere other than to her home, but he very
quickly drove the vehicle into a motel garage.
When she refused to get out of the car, she was dragged
by JBC inside the motel room. She ran inside to look for
another exit but only found a bathroom wherein she
locked herself. When she regained her composure and
noticed that there was no sound from the other side of
the door, she went out to look for a telephone or
another exit. But, she saw JBC standing in the doorway,
almost naked, with his back to her and apparently
talking to someone.
When JBC felt her presence, he suddenly shut the door
and turned towards her. Afraid that JBC would reach for
his gun, JBC took the momentary fear of Karen to push
her to the bed and pin her down using his weight. While
pinned down, she lost consciousness. When she
regained her consciousness, JBC was already raping
her.
She then succeeded in pushing him away and freeing
herself by pulling his hair. She took advantage of JBCs
state of undress and ran towards the car. She could not
manage to open the door. JBC eventually caught up with
her and offered to take her home.
She had herself tested the day after. She underwent a
medical and legal examination at the Davao City
Medical Center. The certificate mentioning the alleged
rape, time, date and place it was said to have occurred
and the name of the alleged perpetrator.
She then reported to the police and filed a criminal
complaint.
CHAN GOMASAN OF SITO BERDE
probable cause. This was reversed by the Justice
Secretary.
An information was filed in court and an arrest
warrant was then issued against JBC. He was
arrested some 80 days later, after the PNP Chief made a
televised order directing the police to make the arrest
within 72 hours.
Case ran for almost 8 years.
The case remained at the trial court level from 1997 to
2005 due to the trial court judge being changed several
times and JBC having filed several motions before the
appellate courts.
Experts testified that Karen was raped.
At the trial, Dr. June Pagaduan Lopez (an expert in
victimology and rape trauma) testified as Karens
counselor. She mentions how Karen has PTSD from the
incident and that there was in no way that Karen
fabricated the incident. Dr. Lopez explained that no
physical injury was sustained because the incident was
an acquaintance or confidence rape. Such statement
was again confirmed by Dr. Pureza Onate, a
psychiatrist.
Evidence rebutted.
However, the testimony of the bell boy of the motel
shows that he had not heard any shouts or commotion
from the room at the time of the incident. A motel
security guard also testified that he did not get any
report of such incident. JBC testified that the
intercourse was consensual and that he and Karen had
been flirting for a long time.
JBC was acquitted.
Through Judge Hofilena-Europa, the RTC acquitted JBC
by following 3 principles:
1. It is easy to make an accusation of rape; 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, in
which 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 of the
defense.
Karen now files with the CEDAW claiming that she
suffered revictimization by the State party after she
was raped.
She claims that by acquitting the perpetrator, the State
party violated her right to non-discrimination and
failed in its legal obligation to respect, protect, promote
and fulfil that right. She further claims that the State
party failed in its obligation to ensure that women are
protected against discrimination by public authorities,
including the judiciary.
(16) RACIAL DISCRIMINATION || HR LAW || CHOI
Karen alleges that the Court relied on gender-based
myths and stereotypes:
1. a rape victim must try to escape at every
opportunity. She submits that such demand
requires the woman to actually succeed in
defending herself, thereby eliminating the
possibility of the rape and the failure of the victim to
try to escape does not negate the existence of rape.
2. That the victim must be timid or easily cowed.
She argues that the Court perpetuated the
stereotype of a rape victim, according to which
women who are not timid or easily cowed are less
vulnerable to sexual attacks;
3. There must be clear evidence of a direct threat,
in instances where rape occurred by means of
threat; Karen submits that the court focused on the
lack of the objective insistence of a gun;
4. That she and JBC were more than nodding
acquaintances makes the sex consensual. She
submits that it is a grave misconception that any
relationship between the accused and the victim is
valid proof of the victims consent to the sexual act;
5. When a rape victim reacts to the assault by
resisting the attack ad also by cowering in
submission because of fear, is problematic. She
alleges that she resisted as much as she could and
although there were moments when she dissociated,
this did not negate her many verbal and physical
expressions of lack of consent;
6. That the rape victim could not have resisted the
sexual attack if the accused was able to
ejaculate. She claims that whether the accused
ejaculated or not is completely immaterial to a
prosecution of rape; and
7. That it was unbelievable that a man in his 60s is
capable of this kind of rape. She claims that should
this be applied, every case where a person would
claim to have been raped by an old man would
invariably result in the acquittal of the accused.
Based on these contentions, Karen submits that these
presumptions unjustifiably and immediately places
rape victims under suspicion.
ISSUE: WON the acquittal of Mr Custodio breached the
right to non-discrimination, the right to an effective
remedy, and the freedom from wrongful gender
stereotyping, in violation of articles 2(c), 2(d), 2(f) and
5(a) of the Convention on the Elimination of All Forms
of Discrimination against Women (CEDAW)
HELD: YES
There was a violation of 2c of the CEDAW which
states that States parties are required 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
CHAN GOMASAN OF SITO BERDE
The case remained at the trial court level from
1997 to 2005. 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.
Articles 2 (f) and 5 (a) provide that the State party
is obligated to take measures to modify or abolish
not only existing laws and regulations, but also
customs and practices that constitute
discrimination against women.
The Committee notes that, 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.
The Committee notes a reference in the
judgement to three general guiding principles
used in reviewing rape cases.
The Committee finds that one of them, in
particular, according to which an accusation
for rape can be made with facility, reveals a
gender bias.
The Assessment Of The Credibility Of The Authors
Version Of Events Was Influenced By Stereotypes
While the judgement of Hofilena refers to
principles such as that physical resistance is
not an element to establish rape, that people
react differently under emotional stress, that
failure to try to escape does not negate the
existence of the rape as well as to the fact that
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 authors
credibility about how the author should have
reacted before, during and after the rape owing
to the circumstances and her character and
personality.
The judgement 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.
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 behavior from the author,
who was perceived by the court as being not a
timid woman who could easily be cowed
(16) RACIAL DISCRIMINATION || HR LAW || CHOI
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.
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.
The decision of the Court contained references
to stereotypes about male and female sexuality
and was supportive for the credibility of the
perpetrator than for the victim.
In this regard, the Committee views with
concern the findings of the judge according to
which 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 taken into account in the
judgement, 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.
The Committee notes that the lack of consent is not
an essential element of the definition of rape in the
Philippines Revised Penal Code
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. Through its
consideration of States parties reports, the
Committee has clarified time and again that
rape constitutes a violation of womens right to
personal security and bodily integrity, and that
its essential element was lack of consent
ANNEX: RECOMMENDATIONS FOR STATE PARTY
The Committee makes the following recommendations
to the State party
Provide appropriate compensation
commensurate with the gravity of the
violations of her rights
Take effective measures to ensure that court
proceedings involving rape allegations are
pursued without undue delay
CHAN GOMASAN OF SITO BERDE
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
Improve the judicial handling of rape cases, as
well as training and education to change
discriminatory attitudes towards women.
Concrete measures include:
Review of the definition of rape in the
legislation so as to place the lack of consent at
its centre.
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.
Appropriate and regular training on the
Convention on the Elimination of All Forms of
Discrimination against Women, its Optional
Protocol and its general recommendations, in
particular general recommendation No. 19, for
judges, lawyers and law enforcement
personnel;
Appropriate training for judges, lawyers, law
enforcement officers and medical personnel in
understanding crimes of rape and other sexual
offences 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.
The State party shall submit to the Committee,
within six months, a written response,
including info on any action. The State party is
also requested to publish the Committees
views and recommendations and to have them
translated into the Filipino language and other
regional languages, as appropriate, and widely
distributed to reach all sectors of society