Gender stereotyping in rape trial a

violation of CEDAW (Karen Tayag

Vertido v. The Philippines)
13 FEBRUARY 2012 / SIMONECUSACK

In 1996, Karen Tayag Vertido worked as Executive Director of

the Davao City Chamber of Commerce and Industry in the
Philippines. She filed a complaint against the then President
of the Chamber, Jose B. Custodio, accusing him of raping her.
She alleged that the accused offered her a lift home following
a business meeting one evening and that, instead, raped her
in a nearby hotel.
In April 2005, after the case had languished in the trial court
for eight years, Judge Virginia Hofilea-Europa acquitted the
accused of raping Ms Vertido, citing insufficient evidence to
prove beyond all reasonable doubt that the accused was
guilty of the offence charged. Her Honour based her
decision to acquit on a number of guiding principles from
other rape cases and her unfavourable assessment of the Ms
Vertidos testimony based, among other things, on her failure
to take advantage of perceived opportunities to escape from
the accused.
Ms Vertido subsequently submitted a communication to the
Committee on the Elimination of Discrimination against

Women (CEDAW Committee). She alleged that the

acquittal of Mr Custodio breached the right to nondiscrimination, 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).
In her communication, Ms Vertido claimed that the trial
judges decision had no basis in law or fact, but was
grounded in gender-based myths and misconceptions about
rape and rape victims without which the accused would
have been convicted. She further claimed that a decision
grounded in gender-based myths and misconceptions or one
rendered in bad faith can hardly be considered as one
rendered by a fair, impartial and competent tribunal, and
that the Philippines had failed in its obligation to ensure that
women are protected against discrimination by public
authorities, including the judiciary.
The Philippines observations on admissibility
The Philippines contested the admissibility of the
communication on the basis that Ms Vertido had failed to
exhaust domestic remedies, as required by article 4(1) of
theOptional Protocol to the Convention on the Elimination of
All Forms of Discrimination against Women (Optional

Protocol). It claimed that Ms Vertido had failed to avail

herself of the special remedy of certiorari.
Ms Vertidos comments on the Philippines
observations
Ms Vertido countered that she was not required to exhaust
the remedy of certiorari, as it could only be sought by the
People of the Philippines, represented by the Office of the
Solicitor General. In addition, she submitted that, even if the
remedy were available to her, it would have been ineffective
in redressing her particular complaint of discrimination.
CEDAW Committees admissibility decision
The CEDAW Committee declared the communication
admissible, dismissing the suggestion made by the
Philippines that Ms Vertido was required by article 4(1) of the
Optional Protocol to exhaust the remedy of certiorari.
Views
The CEDAW Committee concluded that, in failing to end
discriminatory gender stereotyping in the legal process, the
Philippines had violated articles (2)(c) and 2(f) of CEDAW, and
article 5(a) read in conjunction with article 1 and General
Recommendation No. 19 (violence against women). The
Committee declined to consider whether or not article 2(d)
had been violated, finding that it was less relevant to the
case than the other articles alleged to have been violated.

Committee member Ms Yoko Hayashi issued a separate,

concurring opinion.
Right to an effective remedy (art. 2(c))
The CEDAW Committee affirmed that implicit in CEDAW and,
in particular article 2(c), is the right to an effective remedy. It
explained 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.
The Committee determined that the Philippines had failed to
comply with its obligation to ensure Ms Vertidos right to an
effective remedy. It noted that her case had languished in
the trial court for approximately eight years before a decision
was made to acquit the accused and that, consequently, it
could not be said that Ms Vertidos allegation of rape had
been dealt with in a fair, impartial, timely and expeditious
manner.
Freedom from Wrongful Gender Stereotyping (arts. 2(f) and
5(a))
In finding violations of articles 2(f) and 5(a), the Committee
affirmed that CEDAW requires States Parties to take
appropriate measures to modify or abolish not only existing
laws and regulations, but also customs and practices that
constitute discrimination against women. It also stressed
that

stereotyping affects womens 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 . . . have done
when confronted with a situation of rape based merely on
preconceived notions of what defines a rape victim.
The majority determined that the trial judge had expected a
certain stereotypical behaviour from the author and formed a
negative view of her creditability because she had not
behaved accordingly. It went on to say that the trial judges
decision contained several references to stereotypes about
male and female sexuality being more supportive for the
credibility of the alleged perpetrator than for the creditability
of the victim.
Recommendations
Having found violations of articles (2)(c), 2(f) and 5(a) of
CEDAW, the CEDAW Committee called on the Philippines to
provide appropriate compensation to Ms Vertido. It also
made a number of general recommendations aimed at
redressing the systemic nature of many of the violations.
These included taking effective steps to ensure that decisions
in sexual assault cases are impartial and fair and not affected
by prejudices or stereotypes.