R. P. B. v the Philippines, Committee on the Elimination of Discrimination against Women, Views: Communication No 34/2011, 57th sess, UN Doc CEDAW/C/57/D/34/2011 (23 May 2011)
The Committee on the Elimination of Discrimination against Women has found that the Philippines breached the rights of a mute and hearing impaired girl to non-discrimination under the Convention on the Elimination of Discrimination against Women (CEDAW), in the investigation and trial of her alleged rape. The Philippines had, in investigating the crime and in the trial, failed to provide a free interpreter and had used stereotypes and gender-based myths, disregarding the victim’s specific situation as a girl who is both mute and hearing impaired. The Committee noted that the obligations of the State include the obligation to consider the specific situation of the complainant, being her age and disability.
The complainant, RPB, claimed to have been raped in June 2006 by her neighbour, J (accused). The complainant was 17 years old at the time and was mute and hearing impaired. The complainant reported the incident to the police; her sister interpreted for her using sign language. The affidavit drawn up was in Filipino. As the education system for the deaf was almost entirely in English, the complainant could not understand the affidavit, nor was she provided with an interpreter.
The accused was charged with rape in July 2006. It then took almost five years for the case to be heard and finalised, despite the fact that the only witnesses were the complainant, the accused and the complainant’s mother. Reasons for delays included the following: the failure of the court to provide an interpreter for the complainant, leaving the complainant to arrange one through the Philippine Deaf Resource Centre, who were not always able to attend; the failure of the court to hear the case until after the other cases scheduled for the day, meaning the case had to be adjourned when other cases ran over; and changes in prosecutors. In 2011 the court acquitted the accused.
In acquitting the accused, the court found that there was insufficient evidence that the complainant did not consent. The court noted the lack of evidence that she had physically resisted the assault: she had not cried out, nor attempted to escape by using force, nor were her clothes torn in any way. The court noted that an ordinary Filipina female rape victim would “summon every ounce of her strength and courage to thwart any attempt to besmirch her honour and blemish her purity”. The court found her demeanour was inconsistent with that of an ordinary Filipina and the “reasonable standard of human conduct” because she had not sought to escape or resist. The court then concluded that this failure on her part cast doubt on her credibility and rendered her claim of lack of voluntariness and consent difficult to believe.
The complainant noted that no counselling or rehabilitation had been provided to her despite her ordeal and despite the emotional and psychological damage she had suffered.
The complainant, in her complaint to the Committee, argued that the way in which the case was handled, and the gender-based myths and stereotypes about rape and rape victims, denied her justice. In particular, the use of myths and stereotypes meant that her particular situation, that of being a minor and having a disability, was not taken into account. As such, it amounted to a violation of the State’s obligation to end discrimination in the legal process under articles 1 and 2(c), (d) and (f) of CEDAW:
- Article 1 defines discrimination against women to mean “any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women…on a basis of equality of men and women, of human rights and fundamental freedoms”.
- Article 2(c) requires states to adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women.
- Article 2(d) requires the state to refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation.
- Article 2(f) requires the state to take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women.
The complainant also claimed that the lack of an interpreter, either at the investigation stage or at the trial, violated her rights under article 16 the Convention on the Rights of Persons with Disabilities (CRPD), which requires States to protect persons with disabilities from abuse, and to provide counselling and rehabilitation for victims of abuse.
The Committee found that articles 1 and 2(c), (d) and (f) had been breached by the Philippines.
In regards to interpreters, the Committee found that the provision of a sign language interpreter was essential to ensure the author’s full and equal participation in proceedings and to guarantee her the enjoyment of effective protection against discrimination under articles 2(c) and (d) of CEDAW. The Committee drew on its general recommendations No 18 and 19 (Committee 10th and 11th sessions 1992) in coming to this conclusion:
- General recommendation No 18 states that women with a disability are to be considered a vulnerable group and that it is “crucial to ensure that women with disabilities enjoy effective protection against sex and gender-based discrimination by States parties and have access to effective remedies.”
- General recommendation No 19 notes that States should “ensure that laws against family violence and abuse, rape, sexual assault and other gender-based violence give adequate protection to all women, and respect their integrity and dignity” and provide “effective complaints procedures and remedies, including compensation”.
The Committee found that the court’s attitude towards the complainant, and towards women and rape in general, revealed the existence of strong gender stereotyping, resulting in sex and gender discrimination and disregard for the “individual circumstances of the case, such as the author’s disability and age”. These gender stereotypes and misconceptions included the lack of resistance and consent on behalf of the rape victim and the necessary use of force and intimidation by the accused. The Committee found that the failure to combat such myths and stereotypes, the continuation of a presumption that there is consent simply because there is no physical resistance or use of force, and the failure to integrate “lack of consent” into the definition of rape amounted to a breach of article 2(f). The continuing use of stereotypes also meant the particular circumstances – that of the girl’s disability and age – were not considered when assessing her evidence. The Committee noted that the state’s obligations under article 2(f) to banish gender stereotypes must be assessed in light of the level of gender, age and disability sensitivity applied in the judicial handling of the case.
The Committee has previously found that the use of rape myths and gender stereotypes by police and the judiciary, and the failure by the State to combat such myths and stereotypes, amounts to a breach of CEDAW (Vertido v the Philippines, Communication No 18/2008). In contrast to the case of Vertido, however, the Committee here was asked to consider the intersectionality of age, disability and sex discrimination.
There have only been a handful of cases under CEDAW that have looked at disability and gender intersectionality, and these tend to focus on whether specific forms of gender discrimination led to a person having a disability. This case appears to be the first time the Committee has been called upon to consider the obligations of the State under CEDAW in relation to women who have a disability. While the CRPD specifically mentions women with disabilities, CEDAW is silent on bases other than gender discrimination, such as disability or race. The Committee has thus taken the interesting approach of:
- noting that myths and stereotypes prevent courts from considering the individual circumstances of the victim, which may include disability; and
- connecting the right to an interpreter to the right to effective complaints procedures and remedies in regards to gender-based violence under the article 2(c) right to equal legal protection.
Beyond a brief mention of the vulnerability of women with disability, the Committee therefore treats the complainant’s disability more as an individual concern to be considered by the courts, rather than viewing the complainant’s treatment as an example of a broader issue of systemic discrimination particular to women with disabilities. It will be interesting to see whether later treaties, such as the CRPD, which specifically note the interplay of disability and gender, are better able to respond to such systemic discrimination.
This decision is available online at: http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CEDAW%2fC%2f57%2fD%2f34%2f2011&Lang=en
Emily Christie is a Human Rights Lawyer seconded by DLA Piper to the Human Rights Law Centre.