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Claiming our place, Claiming our rights: A Philippine experience on the OPCEDAW

 One woman’s search for justice
 
The CEDAW Committee found that the Philippines violated Karen’s rights under the Convention. The Government is supposed to provide Karen “appropriate compensation commensurate with the gravity of the violations of her rights” and to undertake a list of specific measures to address problems in legislation, rape prosecution and court practices that discriminate against rape victims. Significantly, the Philippines is, in effect, asked to make its legislation conform to the prevailing international jurisprudence on rape, such as, for example, the case of M.C. v. Bulgaria (by the European Court of Human Rights) and the decisions of the ad hoc tribunals for Rwanda and the former Yugoslavia.
 

In November 2007, the rape of Karen Vertido became the first individual complaint or “communication” known in the Southeast Asian region to be filed under the Optional Protocol of the Convention for the Elimination of All Forms of Discrimination Against Women (OPCEDAW).

WLB led the effort of organizing the submission of Karen’s communication to the CEDAW Committee, including filling in the research gaps, launching it publicly and training women’s groups on the use of the OPCEDAW. Karen’s legal counsel Evalyn Ursua formed and headed the research team that prepared the communication on Karen’s behalf.

The court decision as an act of discrimination, violating CEDAW, main arguments

Karen Vertido filed rape charges in 1996 against Jose Bautista Custodio, but after several years in court, she lost her case when a decision of acquittal was rendered in 2005.

How did the court rule? Wrote presiding Judge Virginia Europa who ruled on the case:

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, … 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. (italics supplied)

In effect, the court was saying that Karen said “I did not fight hard enough and therefore was responsible for my own rape. Besides, I did not fall into the mold of a woman who gets raped.” 

OP-CEDAW, Article 2 states that there must be “a violation of any of the rights set forth in the Convention [CEDAW] by the State Party”. The acquittal of Custodio on the grounds of gender biases clearly violates women’s rights against discrimination, as enshrined in the CEDAW and from which the OP derives its mandate. These gender-based myths and misconceptions about rape and rape victims include the belief that:  

  • 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, and to be raped by means of threat, there must be a clear evidence of direct threat
  • when the accused and the victim are more than mere acquaintances,  sex is consensual
  • if the accused was able to ejaculate, the rape victim did not resist the sexual act
  • it is unbelievable for a man in his 60s to rape.

Re-victimized with the acquittal of Custodio, Karen was effectively denied her equal protection of the law and a just and effective remedy for the violation and harm she suffered.  Her exercise and enjoyment of her rights and freedoms were nullified and impaired, all of which constitute discrimination under CEDAW.

The Philippine government also violated a legal obligation to respect, protect, promote and fulfill Karen’s right and the right of all Filipino women to non-discrimination, including the judiciary and other state agencies.  It failed to comply with its obligation as State Party to the CEDAW to address gender-based stereotypes that affect women particularly in law and in legal institutions. And it showed no effort at exercising due diligence to punish, in accordance with national legislation, acts of violence against women, particularly rape.

The need for continuing advocacy

According to the Philippine government’s own data, some 2.2 million women suffer from various forms of gender-based violence, which includes rape and prostitution.

Thus, even with treaties like the CEDAW in place, it cannot be assumed that States Parties like thePhilippineswill automatically respect their obligations. Sen. Leticia Shahani, one of authors of the first drafts of the Women’s Convention, rightly pointed out that “many countries like thePhilippinesratify international treaties for show…But right now the UN remains one of the few recognized international arenas where human rights are still held sacred.” While human rights are entitlements, women in particular, because of well-embedded gender based discriminations, need to claim these rights and seek accountability when these are violated.

The Optional Protocol to the CEDAW

 Optional Protocols to human rights treaties are treaties in their own right, and are open to signature, accession or ratification by countries who are party to the main treaty. The Philippines ratified the CEDAW in 1981 and the Optional Protocol in 2003. The OPCEDAW includes:

  • The Communications Procedure which gives individuals and groups of women the right to complain to the CEDAW Committee about violations of the Convention.   
  • The Inquiry Procedure enables the CEDAW Committee to conduct inquiries into serious and systematic abuses of women’s human rights in the countries of States parties to the Optional Protocol. The inquiry procedure also allows gives the Committee the opportunity to make recommendations regarding the structural causes of violations.
 For more information about the OPCEDAW, go to http://www.un.org/womenwatch/daw/cedaw/protocol/whatis.htm
The CEDAW Committee Views  (CEDAW/C/46/D/18/2008) may be accessed at http://www2.ohchr.org/english/law/jurisprudence.htm