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16 Karen Vertido
16 Karen Vertido
KAREN VERTIDO CASE Case was dismissed by the prosecutors for lack of
CEDAW/C/46/D/18/2008 | July 16, 2010 | CEDAW probable cause. This was reversed by the Justice
RACIAL DISCRIMINATION Secretary.
Rape Myths
Note: Omitted the procedural portion re: double An information was filed in court and an arrest
jeopardy rule and certiorari under Rule 65. warrant was then issued against JBC. He was
arrested some 80 days later, after the PNP Chief made a
FACTS televised order directing the police to make the arrest
Karen was a member of the Davao City Chamber. within 72 hours.
Karen served as Executive Director of the Davao City
Chamber of Commerce and Industry. Case ran for almost 8 years.
The case remained at the trial court level from 1997 to
Karen was brought to a motel after a meeting when 2005 due to the trial court judge being changed several
JBC offered to bring her home. She was raped in the times and JBC having filed several motions before the
motel. appellate courts.
On March 29, 1996, after a meeting of the Chamber, JBC
(accused), former 60-year-old President of the Experts testified that Karen was raped.
Chamber, offered to take Karen home, together with At the trial, Dr. June Pagaduan Lopez (an expert in
one of his friends. When Karen found out that JBCs victimology and rape trauma) testified as Karens
friend would be dropped off first, she insisted on taking counselor. She mentions how Karen has PTSD from the
a taxi instead. When JBCs friend was dropped off, JBC incident and that there was in no way that Karen
suddenly grabbed her breast. This action caused her to fabricated the incident. Dr. Lopez explained that no
lose her balance. While trying to regain her balance, the physical injury was sustained because the incident was
author felt something in JBCs left-hand pocket that she an acquaintance or confidence rape. Such statement
thought was a gun. She tried to stop him from driving was again confirmed by Dr. Pureza Onate, a
her anywhere other than to her home, but he very psychiatrist.
quickly drove the vehicle into a motel garage.
When she refused to get out of the car, she was dragged Evidence rebutted.
by JBC inside the motel room. She ran inside to look for However, the testimony of the bell boy of the motel
another exit but only found a bathroom wherein she shows that he had not heard any shouts or commotion
locked herself. When she regained her composure and from the room at the time of the incident. A motel
noticed that there was no sound from the other side of security guard also testified that he did not get any
the door, she went out to look for a telephone or report of such incident. JBC testified that the
another exit. But, she saw JBC standing in the doorway, intercourse was consensual and that he and Karen had
almost naked, with his back to her and apparently been flirting for a long time.
talking to someone.
JBC was acquitted.
When JBC felt her presence, he suddenly shut the door Through Judge Hofilena-Europa, the RTC acquitted JBC
and turned towards her. Afraid that JBC would reach for by following 3 principles:
his gun, JBC took the momentary fear of Karen to push 1. It is easy to make an accusation of rape; it is difficult
her to the bed and pin her down using his weight. While to prove but more difficult for the person accused,
pinned down, she lost consciousness. When she though innocent, to disprove;
regained her consciousness, JBC was already raping 2. in view of the intrinsic nature of the crime of rape, in
her. which only two persons are usually involved, the
testimony of the complainant must be scrutinized
She then succeeded in pushing him away and freeing with extreme caution; and
herself by pulling his hair. She took advantage of JBCs 3. the evidence for the prosecution must stand or fall
state of undress and ran towards the car. She could not on its own merits and cannot be allowed to draw
manage to open the door. JBC eventually caught up with strength from the weakness of the evidence of the
her and offered to take her home. defense.
She had herself tested the day after. She underwent a Karen now files with the CEDAW claiming that she
medical and legal examination at the Davao City suffered revictimization by the State party after she
Medical Center. The certificate mentioning the alleged was raped.
rape, time, date and place it was said to have occurred She claims that by acquitting the perpetrator, the State
and the name of the alleged perpetrator. party violated her right to non-discrimination and
failed in its legal obligation to respect, protect, promote
She then reported to the police and filed a criminal and fulfil that right. She further claims that the State
complaint. party failed in its obligation to ensure that women are
protected against discrimination by public authorities,
including the judiciary.
CHAN GOMASAN OF SITO BERDE
(16) RACIAL DISCRIMINATION || HR LAW || CHOI
Karen alleges that the Court relied on gender-based The case remained at the trial court level from
myths and stereotypes: 1997 to 2005. For a remedy to be effective,
1. a rape victim must try to escape at every adjudication of a case involving rape and
opportunity. She submits that such demand sexual offenses claims should be dealt with in a
requires the woman to actually succeed in fair, impartial, timely and expeditious manner.
defending herself, thereby eliminating the
possibility of the rape and the failure of the victim to Articles 2 (f) and 5 (a) provide that the State party
try to escape does not negate the existence of rape. is obligated to take measures to modify or abolish
2. That the victim must be timid or easily cowed. not only existing laws and regulations, but also
She argues that the Court perpetuated the customs and practices that constitute
stereotype of a rape victim, according to which
discrimination against women.
women who are not timid or easily cowed are less
vulnerable to sexual attacks; The Committee notes that, the Court referred
3. There must be clear evidence of a direct threat, to guiding principles derived from judicial
in instances where rape occurred by means of precedents in applying the provisions of rape
threat; Karen submits that the court focused on the
in the revised penal code of 1930 and in
lack of the objective insistence of a gun;
deciding cases of rape with similar patterns.
4. That she and JBC were more than nodding
acquaintances makes the sex consensual. She
submits that it is a grave misconception that any The Committee notes a reference in the
relationship between the accused and the victim is judgement to three general guiding principles
valid proof of the victims consent to the sexual act; used in reviewing rape cases.
5. When a rape victim reacts to the assault by
resisting the attack ad also by cowering in The Committee finds that one of them, in
submission because of fear, is problematic. She particular, according to which an accusation
alleges that she resisted as much as she could and for rape can be made with facility, reveals a
although there were moments when she dissociated, gender bias.
this did not negate her many verbal and physical
expressions of lack of consent;
The Assessment Of The Credibility Of The Authors
6. That the rape victim could not have resisted the
Version Of Events Was Influenced By Stereotypes
sexual attack if the accused was able to
ejaculate. She claims that whether the accused
ejaculated or not is completely immaterial to a While the judgement of Hofilena refers to
prosecution of rape; and principles such as that physical resistance is
7. That it was unbelievable that a man in his 60s is
not an element to establish rape, that people
capable of this kind of rape. She claims that should
this be applied, every case where a person would react differently under emotional stress, that
claim to have been raped by an old man would failure to try to escape does not negate the
invariably result in the acquittal of the accused. existence of the rape as well as to the fact that
Based on these contentions, Karen submits that these the law does not impose upon a rape victim
presumptions unjustifiably and immediately places the burden of proving resistance, The decision
rape victims under suspicion. shows, however, that the judge did not apply
these principles in evaluating the authors
ISSUE: WON the acquittal of Mr Custodio breached the credibility about how the author should have
right to non-discrimination, the right to an effective reacted before, during and after the rape owing
remedy, and the freedom from wrongful gender to the circumstances and her character and
stereotyping, in violation of articles 2(c), 2(d), 2(f) and personality.
5(a) of the Convention on the Elimination of All Forms
of Discrimination against Women (CEDAW) The judgement reveals that the judge came to
the conclusion that the author had a
HELD: YES contradictory attitude by reacting both with
resistance at one time and submission at
There was a violation of 2c of the CEDAW which another time, and saw this as being a problem.
states that States parties are required to establish
legal protection of the rights of women on an equal Court did not apply the principle that the
basis with men and to ensure through competent failure of the victim to try and escape does not
national tribunals and other public institutions the negate the existence of rape and instead
effective protection of women against any act of expected a certain behavior from the author,
discrimination who was perceived by the court as being not a
timid woman who could easily be cowed
There should be no assumption in law or in Improve the judicial handling of rape cases, as
practice that a woman gives her consent well as training and education to change
because she has not physically resisted the discriminatory attitudes towards women.
unwanted sexual conduct, regardless of
whether the perpetrator threatened to use or Concrete measures include:
used physical violence.
The decision of the Court contained references Review of the definition of rape in the
to stereotypes about male and female sexuality legislation so as to place the lack of consent at
and was supportive for the credibility of the its centre.
perpetrator than for the victim.
Remove any requirement in the legislation
In this regard, the Committee views with that sexual assault be committed by force or
concern the findings of the judge according to violence, and any requirement of proof of
which it is unbelievable that a man in his penetration, and minimize secondary
sixties would be able to proceed to ejaculation victimization of the complainant/survivor in
with the author resisting the sexual attack. proceedings by enacting a definition of sexual
Other factors taken into account in the assault that either:
judgement, such as the weight given to the fact
that the author and the accused knew each Requires the existence of unequivocal and
other, constitute a further example of gender voluntary agreement and Requiring proof by
based myths and misconceptions. the accused of steps taken to ascertain
whether the complainant/survivor was
The Committee notes that the lack of consent is not consenting; or requires that the act take place
an essential element of the definition of rape in the in coercive circumstances and includes a
Philippines Revised Penal Code broad range of coercive circumstances.
States parties should ensure that laws against Appropriate and regular training on the
family violence and abuse, rape, sexual assault Convention on the Elimination of All Forms of
and other gender-based violence give adequate Discrimination against Women, its Optional
protection to all women, and respect their Protocol and its general recommendations, in
integrity and dignity. Through its particular general recommendation No. 19, for
consideration of States parties reports, the judges, lawyers and law enforcement
Committee has clarified time and again that personnel;
rape constitutes a violation of womens right to
personal security and bodily integrity, and that Appropriate training for judges, lawyers, law
its essential element was lack of consent enforcement officers and medical personnel in
understanding crimes of rape and other sexual
ANNEX: RECOMMENDATIONS FOR STATE PARTY offences in a gender-sensitive manner so as to
avoid revictimization of women having
The Committee makes the following recommendations reported rape cases and to ensure that
to the State party personal mores and values do not affect
decision-making.
Provide appropriate compensation
commensurate with the gravity of the The State party shall submit to the Committee,
violations of her rights within six months, a written response,
including info on any action. The State party is
Take effective measures to ensure that court also requested to publish the Committees
proceedings involving rape allegations are views and recommendations and to have them
pursued without undue delay translated into the Filipino language and other
regional languages, as appropriate, and widely
distributed to reach all sectors of society