The full text of these cases can be found at the official UN website under the 57th session.
PHILIPPINES
Rape of a deaf and mute 17 year old woman in the
Philippines; inadequate sign language and support services; acquittal of the
perpetrator due to poor investigation/prosecution efforts, and prejudicial
misconceptions and gender stereotypes of the trial judge
R.P.B. v. the Philippines, CEDAW/C/57/D/34/2011 (March 12, 2014), decided February 21, 2014. Represented by counsel (Evalyn G. Ursua and Maria Karla L. Espinosa). Articles 1 and 2(c), (d), and (f) of the Convention. The complainant comes from a poor family near Manila and is both deaf and mute. She was raped by a neighbor when 17 years old. She filed a complaint with the local police, and was interviewed with the help of her sister who provided sign language interpretation.
She was interviewed by a
male police officer, which is a violation of applicable laws. An affidavit was prepared which she and her
sister were asked to sign, but it was prepared in Filipino, even though her
sign language fluency was in English. She was not provided a translation. She
also underwent a medical exam which concluded there was clear evidence of
trauma and sexual assault.
The perpetrator was
arrested but the hearings against him were delayed for several months due to
the unavailability of the prosecution’s witnesses. No sign language
interpretation was made available on other scheduled dates.
The trial finally went
forward on the testimony of the complainant and her mother only, plus written
stipulations from the medico-legal officer and police officer who had taken the
initial complaint and medical exam. The defendant was acquitted. The trial court challenged the credibility of
the complainant’s testimony and found that she failed to prove that the sexual
intercourse was not consensual. The
judge described in detail why he felt that the victim was not credible because
she hadn’t resisted the assault with sufficient force. Despite some evidence of injury and resistance
of her arms during the rape, the judge concluded this was not enough to negate
the implication of consent.
The Committee concludes the
victim’s rights have been violated. She
was not given adequate sign language interpreter services, since she only
understood written and sign language English and most of the hearings and
investigations were only in Filipino.
The Committee also notes the mistaken and prejudicial reliance on gender
stereotypes by the trial court about the use of force and intimidations and the
myth that women must forcefully and physically resist the sexual assault to be
blameless in its occurrence.
The Committee recommends
that the government provide reparations to the victim in this case, including monetary
compensation and free of charge psychological counseling and therapy, and in
general, that the government review its legislation on rape, guarantee free and
adequate interpreters, including in sign language, in all legal proceedings,
ensure rape proceedings are conducted in an impartial and fair manner, free
from prejudices or stereotypical notions regarding the victim’s gender, age or
disability, and provide regular, adequate training on the Convention, the
Optional Protocol, and the Committee’s general recommendations on these topics,
in particular nos. 18 and 19 on stereotypes and gender bias to legal
professionals.
The government is to
submit a written response within 6 months (Sep 2014) on the actions it has
taken to implement these recommendations. The government is also requested to
publish this decision, translate it into Filipino and recognized regional
languages, as appropriate, and widely disseminate it. VIOLATION.
NETHERLANDS
Public insurance maternity leave program enacted,
then retracted in lieu of private insurance at much higher premiums, and
leaving a gap of 2 years during which private insurers required a qualifying
period and would not cover new pregnancies.
Held to be a violation of article 11(2)(b) of the Convention.
De Blok et al v. the Netherlands, CEDAW/C/57/D/36/2012 (24 March 2014), decided 17
February 2014. Represented by counsel (Marlies S.A. Vegter of Bosch Advocaten).
Removal of a previously existing public scheme providing benefits to
self-employed women during maternity leave, without provision of an adequate
alternative. Violation of CEDAW article
11(2)(b). The case involves six Dutch
nationals, women who were pregnant, self-employed, and without adequate
maternity leave benefits after the date that the public law was rescinded and
before private insurers were willing to cover such pregnancies (2 year
qualifying period).
A Dutch law came into
effect in January 1988, the Incapacity Insurance (Self-employed Persons) Act.
It established mandatory insurance for self employed workers and their spouses
against risk of loss of income owing to their inability to work. Those insured paid premiums for coverage. A
maternity leave allowance of 16 weeks was included. The law was rescinded in August 2004,
requiring self employed workers to take out private insurance after that date
if they wanted to be covered against loss of income. However, most private insurers only covered
maternity leave benefits for pregnancies at least 2 years after taking out the
insurance. The premiums for such private
insurance were also substantially higher. Others have challenged the fairness
of these circumstances in the Dutch courts and lost, the courts concluding it
was not a discriminatory act against women.
A declaratory action was also sought by one of the complainants in 2005,
which led to a court ruling rejecting their claim in 2007 and an appeal that
also rejected their claim in 2009.
The Committee rejects the
government’s arguments that the maternity benefits provisions in article
11(2)(b) of CEDAW do not apply to self-employed persons and are “instructive”
and a “best efforts obligation” only, not mandatory. In the present case, having initially
introduced a compulsory public maternity leave scheme applicable to all, the
government abolished the system without introducing any transitory measures and
decided that self employed persons would no longer be covered by the public
insurance scheme, but must take out private insurance instead. 5 of the 6 claimants did not purchase private
insurance because they could not afford it; in one case the premiums for the
private insurance were equal to her entire income. Concludes that the abolishing of the benefits
without putting in place an adequate alternative maternity leave scheme was a
violation of article 11 of the Convention.
A new act was adopted in
June 2008, re-establishing a public maternity benefit scheme for self-employed women, but this Act did not address the lack of benefits for women who gave
birth between August 2004 and the adoption of this new program in June 2008.
The government is ordered
to provide reparation to the six complainants, including appropriate monetary
compensation, for the loss of maternity benefits. In addition, the government is ordered to
address the gap in benefits available as noted above, between August 2004 and
June 2008 when the new law reinstated a maternity benefits program.
The government has 6
months to respond (Sep 2014) on how it has implemented this decision. It is also requested to publish and
disseminate this decision to all relevant sectors of society. VIOLATION.
NETHERLANDS
Woman who is raped and abused in a domestic
relationship in Mongolia, then seeks asylum in the Netherlands. Loses her
asylum claim and files this claim with the Committee, rejected as failing to
substantiate a valid claim under CEDAW
N. v. the Netherlands, CEDAW/C/57/D/39/2012 (March 12, 2014), decided 17
February 2014. Represented by counsel
(Ilse van Kuilenburg). A woman from
Mongolia sought asylum in the Netherlands. Her application was rejected and
deportation proceedings were begun.
She had worked for an
influential businessman in Mongolia, who she claimed had raped her, beat her
up, confiscated her passport and identity papers and kept her imprisoned in his
house. She said multiple attempts to
file complaints with the local police led to bribery by her perpetrator and no
charges being filed against him. She
escaped and sought refuge with a friend, but was forcibly removed by men who returned
her to her abuser 2 months later. She
escaped a second time and this time went to live in a more remote location, but
again was discovered and forcibly removed and returned to her abuser. By this
time she was pregnant. He forced her to take some pills to try to induce a
miscarriage, but they were not successful. She eventually contacted a smuggler
and fled to the Netherlands, to seek asylum.
The Dutch immigration
service found her statements of abuse credible, but did not believe that the
Government of Mongolia was unwilling or unable to protect her. Her request for
asylum was denied. She appealed the
decision to the Dutch courts and lost.
The Committee concludes
that her complaint is not admissible before them because she failed to raise
the issue of sex-based discrimination in the handling of her asylum request in
the Dutch courts. CEDAW does not cover asylum claims as a general matter, but
only where there has been sex-based discrimination in their handling. In
addition she has not provided any explanation for why she thinks articles 3 and
6 of CEDAW have been violated, which deal with the advancement of the human
rights of women and exploitation of prostitution and trafficking of women. On
her claim of fear of gender based violence if she were to return to Mongolia,
she offers no explanation for why her perpetrator would continue to be a threat
to her five years after the events occurred.
Nor has she explained how, in the past, the Mongolian authorities have
failed to protect her in her personal circumstances or shown that there is a
real risk that these authorities would be unable to provide her with
appropriate protection upon return. Her
failure to follow up on the various police complaints she had filed was also
noteworthy to the Committee.
Therefore her complaint
is ruled INADMISSIBLE.
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