Monthly Archives: January 2015

Run, Pinay! Run!

Myth #1: A rape victim must try to escape at every opportunity. People v. Custodio, (Criminal Case No. 37,921-96, April 26, 2005).

On 16 July 2010, Karen Vertido was able to convince the international Committee monitoring and implementing CEDAW, the international bill of rights for women, to declare that judicial decisions that rely on gender-based myths and misconceptions about rape and rape victims, such as the decision above, is in violation of a woman’s fundamental right to be free of discrimination. Had Karen Vertido and her attorney not taken that fourteen year long journey to justice, rape victims’ burden would be much heavier today. However, because of Karen Vertido and her legal team, rape victims worldwide now have in their tool box Karen Vertido v. State of the Philippines, a landmark international case that holds a nation liable for judicial decisions that rely on gender-based myths and misconceptions about rape and rape victims. The Committee had recommended that the State of the Philippines provide compensation to Karen Vertido, proportionate to the damages she suffered due to the discriminatory manner in which the trial judge acquitted her perpetrator.

In an earlier entry, I said that Karen Vertido and her legal team have ultimately set in motion an institutional evolution to better the plight of Filipinas within the Philippine justice system. While women’s advocates, who are all too aware of the history of women’s universal burden across all cultures and governmental systems, are on the lookout for a new wave of feminist revolution, many rationally work along the pace of their evolving societies and governments. The legitimate question now is, “How much has the Philippine justice system evolved since 16 July 2010?” I will explore that question in greater detail at a later entry.

In my view, one cannot appreciate the present state of the universe without a clear understanding of its past. So, before we go on to examine whether the Philippines has lived up to the standard set by Karen Vertido v. State of the Philippines, addressing gender stereotyping in the legal institution that detrimentally affects rape victims, I’d like to take a moment to dive deep into the process of how Karen Vertido and her legal team were able to deliver the landmark case that, when used appropriately, clears a major roadblock to justice for rape victims. Unbeknownst to many, Karen Vertido’s communication to United Nations took about two and half years to complete; from raising the necessary funds, conducting the research, and writing the substance. While the case has since enjoyed celebrity status in the human rights and women’s rights worlds, only a small percentage of the public knows the legal and logical arguments presented to get where are now. To fill the gap, I will detail, in subsequent posts, the arguments presented against the 8 Gender-based Myths and Misconceptions in the Karen Vertido case.

For rape victims looking for justice through domestic means, I hope the following entries would assist you in your journey. In rape cases of countries arrested in patriarchal notions of governance, it has been established that the odds are stacked against female victims of sexual violence. So in seeking justice, victims of rape or other forms of sexual violence must take the crucial step of seeking the support of a competent attorney who specializes in women’s issues and has the expertise in international human rights law. Up next, I present to you an example of what that competent attorney looks like by publishing the arguments put together by Atty. Evelyn G. Ursua and her Women Legal Bureau team on behalf of Karen Vertido.

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8 Gender-based Myths and Misconceptions about Rape

In 2007, Karen Vertido communicated to the United Nations that trial court decisions in rape cases in the Philippines are systematically discriminatory against women, that said decisions “perpetuate discriminatory beliefs about rape victims.” (CEDAW/C/46/D/18/2008, para. 3.8). In her complaint, she listed eight myths and misconceptions about rape that the presiding judge, Judge Virginia Hofilena-Europa, relied upon in deciding to acquit Karen Vertido’s alleged perpetrator, and they are as follows:

1. A rape victim must try to escape at every opportunity.

2. To be raped by means of intimidation, the victim must be timid or easily cowed.

3. To conclude that a rape occurred by means of threat, there must be clear evidence of a direct threat.

4. The fact that the accused an the victim are “more than nodding acquaintances” makes the sex consensual.

5. When a victim reacts to the assault by resisting the attack and also by cowering in submission because of fear, it is problematic.

6. The rape victim could not have resisted the sexual attack if the accused was able to proceed to ejaculation.

7. It is unbelievable that a man in his sixties would be capable of rape.

8. It is easy to make an accusation of rape; it is difficult to prove but more difficult for the person accused, though innocent, to disprove.

The issue, as framed by the Committee is, “What is the Philippines’ liability for wrongful gender stereotyping in judicial decisions?” Up next, I will detail Karen Vertido’s arguments and the Committee’s views on these myths.


Dispelling Myths and Misconceptions about the Karen Vertido Case

On March 29, 1996, Jose Custodio raped Karen Vertido. In the subsequent criminal charge, both Custodio and Vertido agreed that there was sexual contact via vaginal penetration. Both parties agreed on the date, time, and place of the sexual act. Custodio did not have nor did he offer any alibi that evening. At issue was “consent.” An arrest warrant was issued on November 7, 1996 for Custodio.  He was arrested eighty days later and was detained until 26 April, 2005, nine years and one month after raping Karen Vertido, when a Philippine trial judge, Judge Virginia Hofieina-Europa, acquitted Custodio.

On November 29, 2007, Karen Vertido sought the help of the United Nations, two years and seven months after her rapist’s acquittal. She viewed the acquittal as a re-victimization by her country, the State of the Philippines, considering how rape cases go through rigorous scrutiny conducted by law enforcement agency and prosecutorial offices. Karen Vertido had asked the United Nations nine specific forms of remedy, which I will discuss in greater detail at a later entry.

To be clear, Karen Vertido did not go to the United Nations to override the Philippines’ finding that her rapist is innocent. The United Nations does not have the authority to assess the facts of a case nor does it decide the criminal responsibility of the accused in rape cases. What the United Nations does is assess whether a state action is in violation of international treaties that it oversees. More specifically, the United Nations monitors and ensures compliance by the ratifying states to the international bill of rights for women, the Convention on the Elimination of Discrimination of all forms Against Women ( the “Convention”). The Convention came into force in the Philippines on 4 September 1981, about fourteen years and seven months before the night that Karen Vertido was raped. Karen Vertido wanted the Committee to declare that the acquittal decision by Judge Hofieina-Europa (a) amounted to discrimination, and (b) violated five specific obligations of the Philippines under the Convention, which I will discuss in greater detail at a later entry.

Karen Vertido was well within her rights to seek remedy from the United Nations because she followed everything that the law required of her and more. Another piece of international treaty, the Optional Protocol to the Convention (“the Op-CEDAW”), allowed the Committee to hear individual complaints. Op-CEDAW came into force in the Philippines on 12 February 2004, three years and nine months before Karen Vertido approached the United Nations. For an individual complaint to be admissible, the Op-CEDAW requires that all domestic remedies be exhausted. Karen Vertido sought domestic remedy when she filed a criminal rape case against Custodio on 1 April 1996, within forty-eight hours of being raped, a case that ended up in acquittal on 26 April 2005. Philippine law barred Karen Vertido from filing an appeal against a judgment of acquittal because it would violate the accused’s constitutional right to double jeopardy. By filing a case, successfully appealing a dismissal for lack of probable cause, enduring a trial that dragged on for a period of eight and a half years, Karen Vertido has met the exhaustion requirement of the Op-CEDAW. On 28 July 2009, the Committee declared Karen Vertido’s individual complaint admissible.

Karen Vertido respected the Philippine judicial system. She invoked the power of the local courts for remedy by filing her case within forty-eight hours of being raped. She respected the principle of ‘presumption of innocence’ by presenting evidence at trial to meet her evidentiary burden to overcome that presumption. In addition to her testimony, she supported her claim with a certificate of medical and legal examination that she acquired within twenty-four hours of being raped. At trial, an expert in victimology and rape trauma, Dr. June Pagaduan Lopez, who treated Karen Vertido for eighteen months prior to trial, testified that “she was sure [Karen Vertido] had not fabricated her claim.” (CEDAW/C/46/D/18/2008, para. 3.8). Dr. Pagaduan also testified that Karen Vertido was suffering from post-traumatic stress disorder (“PTSD”) as a result of a rape. Another expert witness, psychiatrist Dr. Pureza T. Onate, testified that Karen Vertido was suffering from PTSD. Karen Vertido respected the accused’s right against double jeopardy, moving on to the United Nations for redress after her rapist’s acquittal. As Committee member, Yoko Hayashi, stated in her concurring opinion, men and women have fought for past centuries for the fundamental principles of the country’s criminal justice system such as ‘presumption of innocence’ and ‘the accused’s right against double jeopardy’ because they are essential for the human rights of women to flourish.

Karen Vertido’s submission to the United Nations was not due to allegations of corruption at the prosecutorial level or judiciary branch. Rather, the crux of her complaint lies in the assertion that rape victims in the Philippines seeking redress experience systematic, gender-based discrimination. She specifically argued that the acquittal of her perpetrator, despite the facts of her case, is “one among many trial court decisions in rape cases that discriminate against women and perpetuate discriminatory beliefs about rape victims.” (CEDAW/C/46/D/18/2008, para. 3.8). To illustrate this claim, Karen Vertido and her attorney listed seven trial court decisions from 1997 to 2007, showing a pattern in reasoning of trial court judges in rape cases that amount to discrimination against rape victims. The issue of corruption within the Philippine criminal justice system is a separate issue from the specific issue raised by Karen Vertido, the issue of myths and misconceptions about rape and rape victims that influence trial court decisions, to the detriment of rape victims seeking redress. While certain corrupt practices have affected rape victims, corruption generally does not discriminate.

The Karen Vertido case is an enormous contribution to those who labor for women’s rights worldwide. The United Nation’s views on the Karen Vertido case apply not just to Filipina rape victims who are effectively denied equal protection of the law because of systematic, gender-based discrimination, but to every rape victim in every country where triers of facts and law are influenced in their decision by myths about rape and rape victims. It is, therefore, critical that we are clear in our minds about what really happened in the Karen Vertido case, that in our effort in clearing our judiciary of these myths about rape and rape victims, we do not create myths and misconceptions about the Karen Vertido case or confuse the essence of the Committee’s 16 July 2010 view. Rape is a serious crime that has the great potential to utterly destroy the life of its victim. We must give the due respect to those women who suffered through the indignity inherent in the crime and the judicial process. It is no small feat that Karen Vertido endured said indignities with so much dignity, mustering the courage to stand up for her right all the way to the Committee, following the law every step of the way despite its application’s oppressive effect. Most importantly, to be effective in utilizing Karen Vertido’s case in helping rape victims, we must first understand and master the underlying facts of the case.

Up next, I’ll be going in-depth with the eight myths and misconceptions about rape and rape victims that the Karen Vertido raised.


An Homage to Karen Vertido and Atty. Evalyn G. Ursua

Lokah Samastah Sukhino Bhavantu. One of my yoga instructors recited this mantra with the class one recent morning. It translates as, “May all beings everywhere be happy and free, and may the thoughts, words, and actions of my own life contribute in some way to that happiness and to that freedom for all.”

This blog did not come to being because of a conscious plan to contribute to the happiness and freedom for all. It was more of a knee-jerk reaction to an event that occurred in the Philippines, exactly one year ago, January 22, 2014. On that day, a well-known and very visible Filipino comedian was severely beaten by a group of men, allegedly as a form of retribution for raping a woman, an allegation he denies, characterizing the beating as part of an extortion scheme. The event (the “Navarro Beating”) triggered a strong public reaction that sent ripples beyond the Pacific into the homes of Filipinos worldwide. I joined the discourse, initially, to indulge my personal desire to write and conduct legal analysis.

So much and so little can happen in the span of a year. But milestones provide excellent points of reflection and resolution. In a few weeks, on February 13, 2015, this blog will celebrate its one year anniversary. Looking back, I would like to think that my publications here have contributed, in some positive way, to someone’s life, if not the happiness and freedom for all. Although, in reading and thinking back, I realize that my writing has undoubtedly contributed to the severe negativity that is strongly attached to the legal cases that rose from the Navarro Beating. I now resolve to not allow myself to be drawn to and utilized in furtherance of that negativity.

Moving forward, I would like to pick-up from some tracks that have been laid. On a July 11, 2014 publication, I incorporated the view of the United Nations’ Committee on the Eradication of Discrimination Against Women (CEDAW) in 2010 regarding Karen Vertido’s 2007 Communication to them. I cited to that view because I thought that a portion of it is relevant to the rape cases that came to being following the Navarro Beating. That publication received a significant number of views, contributing to keeping Karen Vertido’s legacy active in the public’s consciousness.

In keeping with the mantra and my resolution above, I will be using this space to clarify the facts of the Karen Vertido’s rape case in greater detail, underscoring the significance of the United Nation’s CEDAW view to victims of rape or sexual violence in the Philippines who choose to invoke the courts’ power to provide remedy for their harm.

There is another reason why today stands out for me in a way that is related to this blog. Today is the 42nd anniversary of the landmark, United States Supreme Court case, Roe v. Wade. That case acknowledged a woman’s right to have an abortion as a constitutional right, a huge win for the feminist movement and women at large. There has been recent, significant efforts to gut Roe v. Wade by political and religious groups. The most recent is the D. C. lobbying for a bill that bans abortion, altogether, after the 20 week mark of pregnancy. The House of Representatives was supposed to vote on that bill last Wednesday but abandoned it due to women’s upheaval within the House. Instead, the House approved a bill today that denies the use of federal funds for abortions. I view that as a step back, against the interest of advocates for women’s rights and women’s health.

My yoga instructor above starts our practice by asking us to think of people in our lives that have inspired us or people in our lives that have made our lives difficult and asks us to dedicate that day’s practice to this person. I missed yoga this morning. But I would like to dedicate this blog, moving forward, to people who use their talent, skills, personal tragedy, and passion to effectively contribute in making positive changes in line with the interests of advocates for women’s rights and women’s health. I start by properly honoring Karen Vertido and the brilliant, women’s advocate, Atty. Evalyn Ursua.

Karen Vertido, in my view, is an inspiration. The way Karen Vertido handled her quest for legal remedy for her personal harm as a rape victim has led to bringing worldwide attention to a particular institutional issue that affects Filipinas. The outcome of her efforts, supported in no small part by Atty. Evalyn Ursua, is ultimately setting in motion an institutional evolution to better the plight of Filipinas within the Philippine justice system. Both Karen Vertido and Atty. Evalyn Ursua have made sacrifices and invested hard work for results that transcend their personal interests, laying down the foundation for the better treatment of the marginalized group of women in the Philippines, victims of rape and sexual assault seeking justice. We must respect, not diminish, their legacy.

Let’s start by establishing the facts and timeline of the Karen Vertido case.