States Have Obligation to Prevent and Address Gender-Based Stereotyping

Vertido v The Philippines, UN Doc CEDAW/C/46/D/18/2008 (1 September 2010) 

The Committee on the Elimination of Discrimination against Women has held the Philippines in violation of its obligations under the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women to protect against gender-based stereotypes after a judgment issued in a rape case.  The Committee found the State party did not uphold its obligation to ensure an expeditious remedy or to prevent unfair gender-based stereotypes in violation of arts 2 (c), (f) and 5 (a) of the Convention.

Facts

A Filipino woman who served as Executive Director of the Davao City Chamber of Commerce in the Philippines brought a rape claim against the President of the Chamber of Commerce.  The accused offered to take the author home after a business meeting, to which she consented.  The accused then drove her to a nearby hotel and forced her to enter his hotel room.  The author claims he pinned her to the bed and smothered her until she lost consciousness.  When the author regained consciousness the accused was raping her.  The author eventually succeeded in freeing herself and fled the hotel room.  She was then pursued by the accused and accepted his offer to take her home.  Within 24 hours of being raped the author underwent a medical and legal examination for the rape.  She reported the case to police within 48 hours of the incident and filed charges against the accused.  The case was initially dismissed after the lower Court found a lack of probable cause.  The author filed an appeal with the Secretary of the Department of Justice which reversed the dismissal and ordered the accused be charged with rape.  The proceedings were delayed and case remained in the trial Court from 1997-2005.

The trial Court ultimately issued a verdict acquitting the accused.  The Court determined there was reasonable doubt to convict the accused based on evidence presented by the prosecution and the testimony of the author which indicated she consented to sexual relations.  The author subsequently drafted a complaint against the State party to the Committee in which she argued she suffered re-victimisation by the State party in the proceedings and that the State failed in its obligation to ensure that women are protected against discrimination by public authorities, including the judiciary.  The author alleged the Court relied on gender-based myths in its judgment, including that a rape victim must try to escape at every opportunity, that a rape victim by definition must be timid or easily cowed and that any relation between the accused and the victim is valid proof of the victims consent to the sexual act.  She further claimed the acquittal was evidence of the failure of the State party to exercise due diligence in punishing acts of violence against women.

Decision

Admissibility: Exhaustion of Domestic Remedies

Article 4 of the Convention requires an author to exhaust all domestic remedies prior to submitting a claim to the Committee.  The Committee declared the communication admissible on the basis that the author was not entitled to the remedy of certiorari in the Filipino criminal legal system.  Certiorari is only available as a remedy to those represented by the Office of the Solicitor General and not to individual victims.

Article 2(c) of the Convention

Article 2(c) of the Convention requires State parties 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, effective protection of women against any act of discrimination.  The Committee found that given the longevity of proceedings over an eight year period, the State party failed to meet its obligation under the Convention to ensure the rape case was ‘dealt with in a fair, impartial, timely and expeditious manner’.

The State Parties Violated its Obligation to Prevent Gender Stereotypes under Articles 2(f) & 5(a) of the Convention

The Committee found the State violated its obligations under arts 2(f) and 5(a) in the judgment.  Articles 2(f) and 5(a) of the Convention require State parties to take appropriate measures to modify or abolish existing state laws, regulations and practices that constitute discrimination against women.  Article 5(a) in particular requires State parties ‘to modify the social and cultural patterns of conduct of men and women with a view to achieving the elimination of prejudices and custom…or the stereotyped roles for men and women’.

The Committee found the judgment reinforced gender-based stereotypes.  The Committee stated:

It is clear from the judgment that the assessment of the credibility of the author’s version of events was influenced by a number of stereotypes… the author in this situation not having followed what was expected from a rational and ‘ideal victim’ or what the judge considered to be the rational and ideal response of a woman in a rape situation.

In a concurring opinion Committee member Yoko Hayasi also recommended that the State party review its rape laws, including both the definition of rape under the Criminal Code and related trial procedures.  Committee member Hayasi also recommended the State party conduct gender-sensitive trainings for the legal profession.

Relevance to the Victorian Charter

As a State party that has ratified the Optional Protocol to CEDAW, Australia holds a similar duty to ensure Court judgments and related legislation are free from gender-based stereotypes.  The Victorian Supreme Court may adopt a similar approach when determining rape cases or considering gender-based stereotyping.

Enshrined in s 25 (c) of the Charter is the right to fair criminal proceedings and the requirement that persons be tried without unreasonable delay.  Articles 2(f) and 5(a) of the Convention also closely mirror s 8 of the Charter which guarantees every person to the right of recognition and equality before the law.  The Victorian Supreme Court holds a similar obligation to ensure that gender-stereotypes are not reinforced in judgments issued by the Court.

The decision is at www2.ohchr.org/english/law/docs/CEDAW.C.46.DR.18.2008_en.doc.

Loren Days is an LLM candidate at Melbourne Law School and a volunteer lawyer with the Human Rights Law Resource Centre