Feminist International Radio Endeavour - FIRE

January  2008 

New Hope for Victims of Rape The Karen Vertido Case

By Alda Facio

For FIRE  

From 5 to 7 December, in Katmandu, Nepal, the fourth consultation on the potential of the OptionalProtocol to the Convention on the elimination of all forms of Discrimination against Women (OP-CEDAW), focused on litigation strategies with participants from South Asia and Asia Pacific.  As the previous four, this meeting was organized by IWRAW-AP, a non-profit international women's organization based in the South. IWRAW-AP promotes the domestic implementation of international human rights standards by building the capacity of women and human rights advocates to claim and realize women's human rights. 

One of the sessions of this consultation focused on the Karen Vertido case, a communication which has been submitted by the Philippines to the CEDAW Committee through its Optional Protocol.  Taking this as a case study, the entire group went through the process of filing a complaint from the very beginning (e.g. how to determine whether a case is ready for the CEDAW Committee), through the filing process (e.g. how to put together and file the complaint), to the end (e.g. how to ensure a hopefully favorable finding is properly implemented).  

As a member of the Advisory Group to IWRAW-APs campaign on the ratification and use of the OP-CEDAW Our Rights Are Not Optional, I was impressed with the presentation of the Karen Vertido case by Mae Buenaventura of the Womens Legal Bureau of the Philippines for so many reasons, but most of all, because our group believes that this is the type of case women should be bringing to the CEDAW Committee. 

Why? Because this type of case is profoundly feminist in that it stems from the notion of the personal as political.  As such, this case will have a double-sided impact because it will promote not only the personal equality of the individual woman who files the complaint or communication, but also a more political impact in advancing overall womens equality. In other words, in contributing to the overall jurisprudence of the CEDAW Committee, each remedy suggested in this type of case will inevitably have an impact not only on the individual to whom it is addressed (personal), but will further contribute to larger change for women as a group (political). 

So, if favorably resolved, not only will Karen be able to find some kind of restitution of her dignity, but women all over the world will be able to use a favorable decision to improve access to justice for women victims of rape and other sexual crimes in their own homes.

As was discussed at the consultation, this case is also important because Karen Vertido is the first woman from Asia, or for that matter, from any country of the two thirds world, to submit a complaint under the communications procedure of the Optional Protocol.  Karen, a successful career woman until her rape on March 29, 1996, is being legally assisted by Filipino lawyer Evalyn Ursua, and the well known Womens Legal Bureau of the Philipines.

According to Mae, Karens case was dismissed allegedly for lack of probable cause.  She told us that Judge Europa said in her decision that the evidence presented by the prosecution, citing in particular the testimony of Vertido, "leaves too many doubts in the mind of the court to achieve the moral certainty necessary to merit a conviction."

_Again according to Mae, Europa did state that there could be no worse violation of a woman's person than the crime of rape but the bottom line in determining charges of rape is the credibility of the testimony of the complainant and Judge Europa was not willing to believe this victim:  __"This court is unconvinced that there exists sufficient evidence to erase all reasonable doubts that the accused committed the offenses charged, its duty to acquit him is unavoidable," the judge said in the decision.  Mae told us that supporters of Karen were not surprised that this judgment, instead of castigating the perpetrator, transformed Karen into the guilty party as this is usually what happens in rape cases. She added that the judge, though a woman, maintained the longheld male view that Karen could have resisted because she is a well-educated, articulate, "decent," and married woman. According to Karens lawyers, this judgment reinforces the myth that women who are well-educated, articulate, decent, and married cannot be raped.

Karen was able to submit this communication thanks to the adoption of the 21-article Optional Protocol to the CEDAW on 6 October, 1999, by the General Assembly of the United Nations.   By ratifying the Optional Protocol on 12 November 2003, the Philippines recognized the competence of the Committee on the Elimination of Discrimination against Women -- the body that monitors States parties' compliance with the CEDAW -- to receive and consider complaints from women such as herself who, after having tried to seek redress from her own government regarding the case of rape she filed in 1996 and after having exhausted all domestic remedies as is required by the Optional Protocol, is now seeking justice at the international level. 

At this level, Karen is not indicting businessman Jose Custodio, whom she accused of rape and who was acquitted of the charge in 2005, but the Philippine government. She alleges that her rights as a woman and a survivor of violence were violated because the judge who rendered the decision relied on gender-based myths and misconceptions such as the ones stated above.  According to Mae, the judge also relied on a distorted reading of the testimonies, including those of mental health experts.  This is one of the reasons Karen is making the government responsible for her inability to get justice since it is the obligation of the Philippines to have trained all judges on the issue of violence against women, as well as on methodologies to compensate for the male bias that exists in practically all court proceedings.

In fact, Mae told us that part of Karens brief is that the Philippine government, specifically the judiciary, has not done enough to enlighten and educate trial judges and prosecutors on the real nature of rape and violence against women, the psychological elements of a victims reaction (or lack of reaction) to abuse, and the unequal status of women in that country. The complaint also cites summaries of seven other cases where the accused rapists were likewise acquitted, and where the judges decisions relied on gender stereotypes and biased judgments.

Although we understood that Custodio will remain free, we support this case because we were told by Mae that Karen and the Womens Legal Bureau are not filing this communication in order to reverse the judgment that found him not guilty of committing rape.  They are doing it as a way to get the government to change its rape laws and to comply with their obligation to end discrimination in all legal processes.

Mae told us that Karen had decided to file this complaint a few days after the promulgation of the decision that acquitted her rapist which had left her very depressed.  But while at home in Davao province, a good friend called her up and convinced her to meet with former Ambassador Rosario Manalo, who was then a member of the CEDAW Committee and who had just been elected the bodys chair.  

According to Mae, Manalo told Karen not to give up, and that if she wanted, she could seek justice through the OP-CEDAW.  Hearing about this new mechanism gave Karen a faint spark of hope but she wondered whether she had the energy and resources to continue her struggle for justice at the international level.  She decided to call up her lawyer Ursua and asked her what filing the petition would mean. When Karen realized that a favorable decision would help thousands of other women victims of rape she decided that she had to come forward.  Both she and her lawyer decided to recruit the help of the Womens Legal Bureau.

The whole group present at the Kathmandu meeting applauded this decision since having the assistance of legal experts will increase the possibility that the CEDAW Committee will admit this case.  It is important to always keep in mind that the Optional Protocol establishes that in order for individual communications to be admitted for consideration by the Committee, a number of criteria must be met, including having exhausted all available domestic remedies.  These requirements are very technical and therefore a complaint has a better chance of being admitted if it is presented with the assistance of legal experts. 

Mae then told us that it took the Womens Legal Bureau two years to raise the money for all the research and writing it had to do in order to prepare the complaint.  Aside from Ursua, WLB relied on two other lawyers, one law graduate and two interns, as well as the cooperation of several NGOs, to complete the document.

Mae then showed us the statement that Karen prepared for a press conference held a few days before our meeting.  Although Karen was not present at the press conference, her daughter Kai, who was just a child when her mother went public with her charges and is now a young woman, read Karens statement, which opens with an acknowledgement of the men and women who made her protracted struggle for truth and justice bearable.

Karen also mentions her lawyers, particularly Ging Ursua, as well as Dory Avisado, her therapists Doctors Ping Conanan and June Lopez, former Senator Letty Ramos-Shahani who took me under her wing, and Rosario Manalo, who, at a time I needed it most was the instrument to deliver a message of hope.

Karen also acknowledges the help of Joy Uy-tioco, who after hearing Karens story and issuing a generous check to support her struggle transformed herself from a signer of her own checks into what she calls Karens official beggar.

Why do I go on fighting, reads the statement, I fight because it is I who has been given the opportunity to fight. It could have been anybody else. But it landed on my lap I fight for the young woman who reads this to you now. I fight for her daughters, and her daughters daughters. I fight for you -- every one of you, and your daughters as well.

So now I am here, Karen says in her message. And you are here. We are about to send off this communication The document carried my name but in reality (it) carries the name of every Filipino woman. For the outcome of this endeavor hopefully will change the way the judiciary and every pillar of justice handles every case of rape. 

And our great hope it that the outcome of this endeavor will not only change the way the Filipino judiciary handles every case of rape, but that it will be used by the feminist movement everywhere to change the way the judiciary handles violence against women in every country.  The myths this case is trying to cast out of the judiciary and of the minds of legal experts exist everywhere.  Therefore, it is for the womens movements everywhere to follow this case and use it to eliminate discrimination against women in court procedures everywhere.

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