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.

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