ANALYZING TRENDS IN THE PROMOTION OF GENDER EQUALITY IN JUDICIAL DECISIONS ON WOMEN

A Report of the Urduja Womens Desk Ateneo Human Rights Center

I. Introduction The Philippine Constitution expressly provides that the State values the dignity of every human person and guarantees full respect for human rights.1 Accordingly, it has recognized the role of women in nation-building and has directed the State to ensure the fundamental equality before the law of women and men.2 Hence, several laws have been enacted in efforts to promote gender equality, such as Republic Act (RA) No. 7877 or the Anti-Sexual Harassment Act; RA Nos. 8353 and 8505 which respectively changed the classification of rape from a crime against chastity to a crime against persons and disallowed evidence of the victims past sexual conduct unless the court deemed it relevant to the case (rape shield rule); RA No. 9208 or the Anti-Trafficking in Persons Act and RA No. 9262, or the Anti-Violence Against Women and their Children Act. Despite the enactment of these several laws on women, and the efforts of the country to comply with human rights treaty obligations, such as the Convention on Elimination of all Forms of Discrimination Against Women (CEDAW)5, gender inequality has remained a challenge. Thus, in the 2011 Human Development Report of the United Nations Development Programme, the Philippines is ranked 75th in its Gender Inequality Index. Although in terms of the population with at least secondary education the women were more in numbers than the men - 65.9% compared to 63.7%, in terms of seats in the national parliament, only 21.5% were women. Also, labor participation rate of the men was higher than the women: 78.5% compared to 49.2 %.7 Very recently, in response to the clamor for a more consolidated body of laws which would not only promote empowerment of women and their equal opportunities with men; but which would also articulate the human rights of women as enunciated in the CEDAW, the Philippines has enacted Republic Act No. 9710, otherwise known as the Magna Carta of Women.8 Under the Magna Carta of Women law, the Commission on Human Rights of the Philippines (CHRP) has been designated to act as the Gender and Development (GAD) Ombud and is tasked, together with the Philippine Commission on Women (PCW) and other state agencies, in the development of indicators and guidelines to comply with their duties related to the human rights of women, including their right to nondiscrimination xxx9 Furthermore, the CHRP, in its capacity as GAD ombud, has also been given the following mandate:
(b) Designate one (1) commissioner and/or its Womens Human Rights Center to be primarily responsible for formulating and implementing programs and activities related to the promotion and protection of the human rights of women, including the investigations and complaints of discrimination and violations of their rights brought under this Act and related laws and regulations;

(c) Establish guidelines and mechanisms, among others, that will facilitate access of women to legal remedies under this Act and related laws, and enhance the protection and promotion of the rights of women, especially marginalized women;
xxx xxx xxx

Hence, this joint project was undertaken by the CHRP and the Ateneo Human Rights Center (AHRC) through its Urduja Womens desk, specifically to look into the aspect of access to justice of women whose human rights have been violated.

II. The Research A. Objectives This joint project specifically focuses on access to justice of women. The assumption of this paper is that if the justice system wants to enhance access by women who have been victims of gender-based violence, it has to create an environment where women are not re-victimized while in the process of seeking redress. This paper, therefore, examined judicial decisions involving women and issues pertaining to them, focusing not only on the ratio decidendi of the cases but also on the language used by the courts, whether they were insensitive and/or perpetuated gender biases. The following are the objectives of this short study: a. Determine whether the courts have enhanced their capacity for gender analysis and to demonstrate gender sensitivity in adjudicating cases; b. Establish an overview and reference point for the CHRP, in its capacity as GAD Ombud, to determine possible course of action in compliance with its mandate to establish guidelines and mechanisms, xxx that will facilitate access of women to legal remedies xxx and enhance the protection and promotion of the rights of women, especially marginalized women; and c. Recommend special measures to address critical issues affecting access to justice of women. As stated, the study intends to provide the CHRP a snap shot or impression, limited as it may be, of how courts have handled cases on gender-based violence, whether they had the effect of contributing to the empowerment of women or to their re-victimization. The study also offers to provide CHRP a reference point in order for its office to determine possible courses of action as GAD Ombud. On the part of AHRC, the research provides an opportunity to gain insight on whether the courts have enhanced their capacity for gender analysis and demonstrate gender sensitivity in adjudicating cases. This is especially significant for judges who have participated in the Gender Sensitivity Training and CEDAW (GST-CEDAW) seminar workshop that AHRC has been conducting in partnership with the Philippine Judicial Academy (PHILJA) and the Committee on Gender Responsiveness in the Judiciary of the Supreme Court of the Philippines.

B. Methodology Initially, the project was envisioned to merely involve desk research, doing a survey of decided cases by the Supreme Court. It intended to examine if the Supreme Courts decisions in cases involving women exhibited gender sensitivity and did not contain gender bias; or whether the Court has applied gender analysis when the occasion necessitated such application. The scope of the research targeted cases decided in 2010 until the first and second quarters of 2011 because the last update of AHRCs CEDAW Benchbook was in early 2010. This project was also an opportunity for AHRC to be able to update the Benchbook online. The Benchbook is a publication of AHRC intended to be a resource guide for members of the Bench and the bar in the application of CEDAW with the end in view of contributing to the elucidation of how court jurisprudence can help in the realization of womens human rights, using the Philippines state obligations under the CEDAW as the standard. However, upon consultation with the CHRP through its Commissioner, Ma. Victoria Cardona, who suggested that it would be better if some judges were also interviewed, especially those who have undergone the GST-CEDAW seminar workshop; and since the few students who were assisting in the case research signified that they had some extra time and did not mind going to the courts, the desk research was expanded to include a small survey of courts which have allowed the students the opportunity to interview them. Although several letters were sent by the students, only a handful twelve (12) judges - accommodated their request. Hence, there is an added data in this research which contains the opinion of 12 judges regarding GSTCEDAW seminar workshop for courts and their personnel. There was also one prosecutor who was interviewed. The judges were from the Metropolitan Trial Courts (MTCs) and the Regional Trial Courts (RTCs). The survey was also used to find out whether the judges were familiar with the CEDAW Benchbook and its applicability in the adjudication of cases. The survey was carried through personal interviews with the aid of questionnaires drafted for the project. As previously mentioned, a deputy regional prosecutor who has been actively engaged in advocating and prosecuting cases involving gender issues in the province, was likewise interviewed to provide a different perspective on how to improve womens access to justice. Data has also been obtained from PHILJA by AHRC regarding the evaluation of the GST-CEDAW seminar workshop recently conducted by AHRC in Cebu City, participated in by Court of Appeals employees coming from Cebu, including personnel working in the chambers of Justices of the Court of Appeals of the Cebu City branch. This data was added in order to provide an insight as how relevant the court personnel found the GST-CEDAW seminar workshop. As far as research on the jurisprudence is concerned, the survey of decided cases was also expanded to cover decisions from the RTC, the Court of Appeals and the Supreme Court within the period from January 2010 to the second quarter of 2011. The review of decided cases focused on whether the courts demonstrated gender sensitivity especially in writing their decisions by using of gender fair or inclusive language.

II. The Findings A. Jurisprudence In order to determine whether courts are able to show gender sensitivity in their decisions, a sampling of cases decided by the RTC, the CA and the SC was gathered and assessed in the course of the study. Of the 60 cases that were examined, 53 cases were decided by the SC, five cases by the CA, two cases by the RTC. The views of the CEDAW Committee with regard to the Communication filed by Karen Vertido against the Philippines were also included. Although majority of the cases dealt with rape, other issues on violence against women covering sexual harassment or sexual assault and slight physical injuries; as well as cases involving illegal dismissals, nullification of marriage, and administrative complaints against members of the judiciary and courts employees were also reviewed. There are cases which bear emphasis on the courts application of gender sensitivity and they will be cited here. Most of the rape cases decided by both the SC and the CA were also in favor of the female complainant. However, there are a number of decisions which exhibited gender bias, stereotyping, used insensitive language and discriminatory remarks. There were also decisions where the courts have acknowledged that victims in rape cases go through a harrowing experience during trial. Thus, A.) In deciding the credibility of the testimonies of the rape victims, courts continue to rely on the stereotypical image of young and immature girls and regard these qualities as the badges of truths. While it may be true that girl-children of young and tender ages are more likely to tell the truth than make up stories of sexual abuse, some decisions go so far as to create a mantra out of this doctrine to the prejudice of those who do not fit the description. In the cases below, emphasis has been given to statements showing gender stereotyping or bias, or the use of insensitive language. 1. Supreme Court cases:
People v. Saludo, G.R. No. 178406, April 6, 2011 Facts: AAA, a 14-year old girl was raped several times by her neighbor. After the first time, the neighbor had threatened to kill her and her mother if she told anyone what had happened

Held: It should be remembered that the declarations on the witness

stand of rape victims who are young and immature deserve full credence. Succinctly, when the offended parties are young and immature girls from the ages of twelve to sixteen, courts are inclined to lend credence to their version of what transpired, considering not only their relative vulnerability but also the shame and embarrassment to which they would be exposed by court trial if the matter about which they testified were not true.[ People v. Turco, Jr., 392 Phil. 498, 512 (2000)] Rape is a painful experience which is oftentimes not remembered in detail. For such an offense is not analogous to a person's achievement or accomplishment as to be worth recalling or reliving; rather, it is

something which causes deep psychological wounds and casts a stigma upon the victim, scarring her psyche for life and which her conscious and subconscious mind would opt to forget. Thus, a rape victim cannot be expected to mechanically keep and then give an accurate account of the traumatic and horrifying experience she had undergone. [People v. Cula, 385 Phil. 742, 753 (2000)] People v. Llamas, Jr., G. R. No. 190616, June 29, 2010 Facts: Accused raped his nine-year old daughter, AAA, twice and threatened that he will kill her and her mother if the child told on him. On the third attempt, AAA told her mother everything. The latter reported the incidents of rape to the police. Held: Testimonies of rape-victims normally carry and are given full weight and credit, since when a girl, particularly if she is a minor, says that she has been raped, she says in effect all that is necessary to show that rape has in fact been committed. When the offended party is of tender age and immature, courts are inclined to give credit to her account of what transpired, considering not only her relative vulnerability but also the shame to which she would be exposed if the matter to which she testified is not true.( Llave v. People, G.R. No. 166040, April 26, 2006 ) Youth and immaturity are generally badges of truth and sincerity.(People v. Bon, G.R. No. 166401, October 30, 2006, 506 SCRA 168; citing People v. Guambor, G.R. No. 152183, January 22, 2004, 420 SCRA 677, 682).

People v. Rellota, G.R. No.168103, August 03, 2010

Facts: Accused was found guilty of three counts of rape after it was proven that he has been abusing his 12-year old niece, AAA. He threatened to kill AAA and her siblings but finally, AAA told her sister the truth and they reported their uncle to the police. Held: As case law has it, intimidation need not necessarily be irresistible. [Amployo v. People, G.R. No. 157718, citing People v. Victor, (2002).] It is sufficient that some compulsion equivalent to intimidation annuls or subdues the free exercise of the will of the offended party. [Id., citing People v. Victor, citing Padilla, Criminal Law, Revised Penal Code, Vol. 4, p. 610 (1990 ed.)] This is especially true in the case of young, innocent and immature girls who could not be expected to act with equanimity of disposition and with nerves of steel. [Id, citing People v. Adora, 275 SCRA 441, 468 (1997).] Young girls cannot be expected to act like adults under the same circumstances or to have the courage and intelligence to disregard the threat. [Id.]

2. Court of Appeals cases:

People v. Hapin y Gitana, C.A. G.R. CR. No. 31848, March 31, 2010 Facts: The family of AAA and the accused had a harmonious relationship and she even calls him Papa Anding. One afternoon, AAA who was only two years old ran to her mother crying because her vagina was painful and she could not urinate. She also said that Papa Anding binutas pepe ko. According to her, she was playing at the house when the accused told her to sit on the chair where he kissed her vagina and inserted his finger into it. Her mother brought her immediately to the Dr. Valderama who confirmed that AAA had been a victim of sexual abuse. Then, they filed a complaint. The trial court found the accused guilty of sexual assault.

Held: AAA was able to give a categorical and candid testimony of her harrowing experience. We stress that no young girl of tender age like AAA would fabricate a story of sexual abuse, and no mother in her right mind would subject her own daughter to medical examination and undergo public trial, with concomitant ridicule and humiliation, if she is not motivated by a sincere desire to put behind bars the person who assaulted her own child Considering her tender years, she could not have invented a horrid tale but must have truthfully recounted a harrowing experience. The decision of the trial court is affirmed. People v. Metre, CA-G.R. CR-HC NO. 03588, September 24, 2010 Facts: AAA was raped and molested by Juanito Metre, Jr. at the tender age of eleven. Rather than bear her suffering in silence, she endured the scandal of a public trial recalling with excruciating detail the revolting ordeal she suffered in the hands of her defiler. Held: While AAA often lapsed into silence or shook her head as if in denial when asked about the littlest detail of her harrowing experience, xxx. We certainly cannot expect a young girl to act, think and speak like a mature adult and bravely testify in open court, in the presence of intimidating strangers, how she was sexually assaulted. Her silence every now and then was truly understandable given the traumatic and confusing experience she went through. The trial made her remember the intimate and sordid details of how she was deflowered by accused-appellant a despicable experience that she would rather blot out from her memory. That AAA did not offer resistance will not detract from the hard fact that accused-appellant ravished her young body. Given her age and lack of experience in the ways of the world, it is not

improbable that AAA was cowed into shock, fear and silence as accused-appellant gratified his lust upon her. Ineludibly, not every rape victim can be expected to act conformably to the usual expectations of everyone. Some may shout; some may faint; and some be shocked into insensibility, while others may openly welcome the intrusion. Behavioral psychology teaches Us that people react to similar situations dissimilarly. There is no standard form of behavior when one is confronted by a shocking incident. The workings of the human mind when placed under emotional stress are unpredictable. This is true especially in this case where the victim is a child of tender age under the moral ascendancy of the perpetrator of the crime. B.) In the last case cited, it is also noticeable how the court has acknowledged that prosecuting for rape is an ordeal women (and girls) have to go through because they are, indeed, humiliated and made to relive the violation committed against them. Other than the rape shield rule mentioned earlier, however, there has been no changes in the manner or procedure rape cases are heard. Trial is still generally open to the public, and taken along with other cases that a particular court is hearing that day. This is the reason why one of the judges interviewed mentioned that she has made sure photos of women presented as evidence were not circulated or passed around within the court room and that she puts rape cases at the end of the calendar of hearings so that fewer people will be present. Re-victimization is a major obstacle in the promoting access to justice to victims of gender-based violence. 1. Supreme Court cases: People v. Estrada, G.R. No. 178318, January 15, 2010
Ruling: Indeed, a witness who testified in a categorical, straightforward, spontaneous and frank manner and remained consistent on crossexamination is a credible witness. Moreover, the testimony of a rape victim, especially one who is young and immature, deserves full credit considering that "no woman would concoct a story of defloration, allow an examination of her private parts and thereafter allow herself to be perverted in a public trial if she was not motivated solely by the desire to have the culprit apprehended and punished". More so when, as in this case, the rape victim accuses a close relative of having ravished her. xxx xxx xxx

We also do not deign to dignify appellants imputation of ill-motives to the victim. We still believe that no woman would allow herself to be subjected to the indignities of a rape trial if she is not in search of truth and justice.

People v. Lauga alias Terio, G.R. No. 186228, March 15, 2010
Ruling: The Supreme Court has repeatedly held that it is unbelievable for a daughter to charge her own father with rape, exposing herself to the ordeal and embarrassment of a public trial and subjecting her private parts to examination if such heinous crime was not in fact committed. (People v. Sangil, Sr., 342 Phil. 499, 508-509 (1997), further citing People v. Mabunga, G.R. No. 96441, 13 November 1992, 215 SCRA 694, 704)

People v. Alcazar, G.R. No. 186494, September 15, 2010

Ruling: Worthy to note were the tears shed by AAA while giving an account of her awful experience in the hands of her ravisher before the court a quo. To the mind of this Court, such tears were a clear indication that she was telling the truth. AAA, young as she is, would not endure the pain and the difficulty of a public trial wherein she had to narrate over and over again how her person was violated if she has not in truth been raped and impelled to seek justice for what the appellant had done to her. As it has been repeatedly held, no woman would want to go through the process, the trouble and the humiliation of trial for such a debasing offense unless she actually has been a victim of abuse and her motive is but a response to the compelling need to seek and obtain justice. (People v. Laboa, G.R. No. 185711, 24 August 2009, 596 SCRA 733, 742.)

2. Court of Appeals case: People v. Melgar, C.A. - G.R. CR No. 29153, February 26, 2010
Ruling: There is nothing in the actuation of the offended party to intimate that she had any motive to testify against the accused except to vindicate her reputation and honor. Only a feeling of righteous indignation can compel a woman of ordinary virtue to suffer the humiliation and rigor of trial to reveal her ordeal to the world.

C.) Another gender bias that some decisions have shown is on how a woman should express her resistance in rape cases. Admittedly, part of the problem stems from how the crime of rape itself is defined because the law does not categorically state that rape is committed when a man has carnal knowledge with a woman without her consent. This is only implied when the law states that there is rape when said carnal knowledge is committed under any of the following: a. Through force, threat, or intimidation; b. When the offended party is deprived of reason or otherwise unconscious; c. By means of fraudulent machination or grave abuse of authority; and d.) When the offended party is under twelve (12) years of age or is demented, even though none of the circumstances mentioned above be present. (RA No. 8353) That said, jurisprudence has still softened previous pronouncements tending to require the presence of tenacious resistance on the part of the woman. Hence, in People v. Dulay, G.R. Nos. 14434468 (July 23, 2002), the Supreme Court said that the new rape law now provides that resistance may be proved by any physical overt act in any degree from the offended party.

However, in the following cases, it is clear that some courts still adhere to the previous requirement of unmistakable resistance on the part of the woman in order for rape to be proven. People v. Carpentier, Duplantis, Silkwood, and Smith (Subic Rape Case), CA-G.R. CR. HC. No. 02587, April 23, 2009
Facts: In a rape case filed against accused, US Marine Smith, he raised the defense that there was no rape but consensual sex between him and AAA in the back of a van. AAA had been drinking a lot before the incident because she was out to party in Subic, where she had come to for a vacation. She alleges that despite her drunkenness, she tried hard to push Smith off of her. Smith, on the other hand submits that AAA was not intoxicated. The trial court in Makati City found Smith guilty of rape so he appealed. Held: (Smith was acquitted. On the specific issue of resistance the Court of Appeals stated): At another instance where Smith was allegedly on top of her, on the narrow back seat of a moving Starex van, she said she was fighting him off by pushing him away. Instinctively, she could have also cried out to the driver, a Filipino, for help. Resistance by words of mouth does not suffice to establish that she indeed did not give her consent to the sexual intercourse, but it must be by an act done in good faith and not through a mere pretense or token resistance under the circumstance. A woman has means to protect herself: she is equipped to interpose effective obstacles, by means of her hands and nails, her limbs or even her pelvic muscles.

Karen Vertido v. Philippines, CEDAW Communication No. 18/2008 (July 16, 2010)
Facts: The author of the communication filed a criminal case for rape in the trial court alleging the following:
The accused offered to take the author home, together with one of his friends, after a meeting xxx. When the author realized that Mr. C. intended to drop off his friend first, she told him that she would rather take a taxi because she was in a hurry to get home. Mr. C., however, did not allow her to take a taxi and sped away. Shortly after the accused dropped off his friend, he suddenly grabbed the authors breast. This action caused her to lose her balance. While trying to regain her balance, the author felt something in the accuseds left-hand pocket that she thought was a gun. She tried to stop him from driving her anywhere other than to her home, but he very quickly drove the vehicle into a motel garage. The author refused to leave the car but the accused dragged her towards a room, at which point he let her go in order to unlock the door (the car was only three to four metres away from the motel room). The author ran inside to look for another exit, but found only a bathroom. She locked herself in the bathroom for a while in order to regain her composure and, as she could hear no sounds or movements outside, she went out to look for a telephone or another exit. She went back towards the room, hoping that the accused had left, but then saw him standing in the doorway, almost naked, with his back to her and apparently talking to someone. The accused felt her presence behind him, so he suddenly shut the door and turned towards her. The author became afraid that the accused was reaching for his gun. The accused pushed her onto the bed and forcibly pinned her down using his weight. The author could hardly breathe and pleaded

with the accused to let her go. While pinned down, the author lost consciousness. When she regained consciousness, the accused was raping her. She tried to push him away by using her nails, while continuing to beg him to stop. But the accused persisted, telling her that he would take care of her, that he knew many people who could help her advance in her career. She finally succeeded in pushing him away and freeing herself by pulling his hair. After washing and dressing, the author took advantage of the accuseds state of undress to run out of the room towards the car, but could not manage to open it. The accused ran after her and told her that he would bring her home. He also told her to calm down.

The trial court acquitted the accused on reasonable grounds. Consideration of the merits: xxx [T]he Committee stresses that stereotyping affects womens right to a fair and just trial and that the judiciary must take caution not to create inflexible standards of what women or girls should be or what they should have done when confronted with a situation of rape based merely on preconceived notions of what defines a rape victim or a victim of gender-based violence, in general. xxx xxx [T]he Committee, xxx, notes the following issues. First of all, the judgement refers to principles such as that physical resistance is not an element to establish a case of rape, that people react differently under emotional stress, that the failure of the victim to try to escape does not negate the existence of the rape as well as to the fact that in any case, the law does not impose upon a rape victim the burden of proving resistance. The decision shows, however, that the judge did not apply these principles in evaluating the authors credibility against expectations about how the author should have reacted before, during and after the rape owing to the circumstances and her character and personality. The judgement reveals that the judge came to the conclusion that the author had a contradictory attitude by reacting both with resistance at one time and submission at another time, and saw this as being a problem. The Committee notes that the Court did not apply the principle that the failure of the victim to try and escape does not negate the existence of rape and instead expected a certain behaviour from the author, who was perceived by the court as being not a timid woman who could easily be cowed. It is clear from the judgement that the assessment of the credibility of the authors version of events was influenced by a number of stereotypes, the author in this situation not having followed what was expected from a rational and ideal victim or what the judge considered to be the rational and ideal response of a woman in a rape situation as become clear from the following quotation from the judgement:
Why then did she not try to get out of the car when the accused must have applied the brakes to avoid hitting the wall when she grabbed the steering wheel? Why did she not get out or even shout for help when the car must have slowed down before getting into the motel rooms garage? Why did she not stay in the bathroom after she had entered and locked it upon getting into the room? Why did she not shout for help when she heard the accused talking

with someone? Why did she not run out of the motels garage when she claims she was able to run out of the hotel room because the accused was still NAKED AND MASTURBATING on the bed? Why did she agree to ride in the accuseds car AFTER he had allegedly raped her when he did not make any threats or use any force to coerce her into doing so?

Although there exists a legal precedent established by the Supreme Court of the Philippines that it is not necessary to establish that the accused had overcome the victims physical resistance in order to prove lack of consent, the Committee finds that to expect the author to have resisted in the situation at stake reinforces in a particular manner the myth that women must physically resist the sexual assault. In this regard, the Committee stresses that there should be no assumption in law or in practice that a woman gives her consent because she has not physically resisted the unwanted sexual conduct, regardless of whether the perpetrator threatened to use or used physical violence.

Since the Civil Code of the Philippines provides that Judicial decisions applying or interpreting the laws or the Constitution shall form a part of the legal system of the Philippines (Sec. 8), and owing to the principle of stare decisis, judges both of the trial and appellate courts are more likely inclined to rely on established doctrines that have been used and affirmed by subsequent decisions. This in itself is not erroneous. It becomes problematic when there is a paradigm shift where standards established by past doctrines are no longer legally accurate. Thus, the review of the above cases has not only shown that the profile of credible victims has been stereotyped and has sometimes created a bias against those who did not fit the mold; but that the old standards of resistance applied to cases of rape has also continuously been made the basis for evaluating the credibility of complainants, their non-consent to rape. D.) Discriminatory remarks have also been put to issue in some cases where judges were the subject of complaints. These cases emphasize the importance of using sensitive and nondiscriminatory language especially since the remarks have come from members of the bench, who are expected to act and speak with propriety. Benancillo v. Judge Amila, A.M. No. RTJ-08-2149, March 9, 2011
Facts: Complainant was awarded a Temporary Protection Order (TPO) against her live-in partner, Belot under the VAWC (Violence against Women and their Children) law, which would require him to turn over personal effects including properties in their diving business. Belot, then applied for reconsideration of the issuance. This new case was presided by a new Family court where the judge denied Belots motion for reconsideration. Later, he rescinded the TPO stating that the complainant was motivated by her insatiable greed to have exclusive control and possession pending trial of the case [of] all the properties of the Underworld Divers Panglao, Inc. of respondent Paul John Belot. x x x [H]e added that the complainant . . . is only a live-in partner of respondent with no specific address who was branded repeatedly by Belot as a prostitute and one only after his money. The complainant filed an administrative case claiming that she suffered psychological and emotional violence as the respondent

judge echoed Belots verbal and psychological abuse against her; and that the respondent judges remarks revealed his prejudice and lack of gender sensitivity and this was unbecoming of a family court judge. His remarks also manifested his lack of knowledge and/or utter disregard of the law on the equal protection to women-victims in intimate relationships under the anti- VAWC law which he was mandated to uphold as a family court judge. Held: In his Comment, respondent judge used derogatory and irreverent language in relation to complainant. The former in effect maliciously besmirched the character of complainant by calling her as only a live-in partner of Belot and presenting her as an opportunist and a mistress in an illegitimate relationship. The judge also called her a prostitute. The judges accusations that complainant was motivated by insatiable greed and would abscond with the contested property are unfair and unwarranted. His depiction of complainant is also inconsistent with the Temporary Protection Order (TPO) he issued in her favor as a victim of domestic violence. Verily, we hold that Judge Amila should be more circumspect in his language. It is reprehensible for a judge to humiliate a lawyer, litigant or witness. The act betrays lack of patience, prudence and restraint. Thus, a judge must at all times be temperate in his language. He must choose his words, written or spoken, with utmost care and sufficient control. The wise and just man is esteemed for his discernment. Pleasing speech increases his persuasiveness (Dela Cruz v. Carretas, A.M. No. RTJ-07-2043, September 5, 2007, 532 SCRA 218, 229.) GUILTY of Conduct Unbecoming of a Judge.

Assistant Special Prosecutor III Jamsani-Rodriguez v. Justices Ong, et al., A. M. No. 08-19-SB-J, April 12, 2011
Facts: Three justices filed a motion for reconsideration before the Supreme Court, after being found guilty of violating the New Code of Judicial Conduct for the Philippine Judiciary, regarding proper decorum. The case was filed by the Assistant Special Prosecutor and one of the acts of impropriety she complained of were the discriminatory utterances Just because your son is always nominated by the JBC to Malacaang, you are acting like that! Do not forget that the brain of the child follows that of their (sic) mother Held: Motion for reconsideration denied. Judges should be dignified in demeanor, and refined in speech. In performing their judicial duties, they should not manifest bias or prejudice by word or conduct towards any person or group on irrelevant grounds. It is very essential that they should live up to the high standards their noble position on the Bench demands. Their language must be guarded and measured, lest the best of intentions be misconstrued. In this regard, Section 3, Canon 5 of the New Code of Judicial Conduct for the Philippine Judiciary, mandates judges to carry out judicial duties with appropriate consideration for all persons, such as the parties, witnesses, lawyers, court staff, and judicial

colleagues, without differentiation on any irrelevant ground, immaterial to the proper performance of such duties.

E.) Despite what has been presented above, there are also many decisions written showing gender and child sensitivity. Even in some cases where gender stereotypes have been used to justify the credibility of the complainants for rape, at some point the decisions have also articulated the plight of the victim in a sensitive manner. For instance in People v. Metre cited above, the decision stated that not every rape victim can be expected to act conformably to the usual expectations of everyone. Some may shout; some may faint; and some be shocked into insensibility, while others may openly welcome the intrusion. xxx There is no standard form of behavior when one is confronted by a shocking incident. In People v. Saludo, also cited above, the trauma of being rape was appreciated in the light of the ability of the victim to recall the circumstances. Rape is a painful experience xxx. For such an offense is not analogous to a person's achievement or accomplishment as to be worth recalling or reliving; rather, it is something which causes deep psychological wounds and casts a stigma upon the victim, scarring her psyche for life and which her conscious and subconscious mind would opt to forget. Notably in the Vertido case, the CEDAW Committee acknowledged that there are judicial precedents that have become guiding principles and which have been applied in deciding rape cases under the doctrine of stare decisis, such as physical resistance is not an element to establish a case of rape, that people react differently under emotional stress, that the failure of the victim to try to escape does not negate the existence of the rape as well as to the fact that in any case, the law does not impose upon a rape victim the burden of proving resistance. The following cases are illustrative of the sensitivity in court decisions both in the language used and in deciding upon the merits of the case. Pfizer, Inc., et al. v. Velasco, G.R. No. 17746, March 9, 2011
Facts: Velasco extended her leave of absence due to the medical workup required for her high-risk pregnancy. While she was still on leave, she was served a notice that she was under investigation and on preventative suspension for 30 days. Velasco ended up filing an illegal suspension case. She was summoned by Pfizer for disciplinary hearings but she refused claiming that the matter can be threshed out in the illegal suspension case. As a result, she was dismissed. The Labor Arbiter declared the dismissal illegal, awarded backwages, moral and exemplary damages and reinstatement. The NLRC affirmed this. On the issue of reinstatement, Pfizer claims that it already issued its return- to-work directive but Velasco refused. Held: PFIZER makes much of respondents non-compliance by downplaying the reasons forwarded by respondent as less than sufficient to justify her purported refusal to be reinstated. The June 27, 2005 return-to-work directive implying that respondent was being relocated to PFIZERs Makati main office would necessarily cause hardship to respondent, a married woman with a family to support residing in Baguio City. However, PFIZER, as the employer, offered no reason or

justification for the relocation such as the filling up of respondents former position and the unavailability of substantially equivalent position in Baguio City. A transfer of work assignment without any justification therefore, even if respondent would be presumably doing the same job with the same pay, cannot be deemed faithful compliance with the reinstatement order. In other words, in this instance, there was no real, bona fide reinstatement to speak of prior to the reversal by the Court of Appeals of the finding of illegal dismissal.

Acebido v. Halasan, et. al., A. M. No. P-10-2803, March 30, 2011

Facts: Female respondent, Halasan, a court employee who had separated from her husband for four years, was discovered to have had a relationship with another court employee, Largo, and now both are charged with disgraceful and immoral conduct. She admitted she had a relationship with Largo but had requested to be transferred to another court and thought that this request would close the matter. Held: The court found them both guilty of immoral conduct which is a grave offense and punishable with suspension from six months and one day to one year for the first offense. However, for Halasan, instead of a suspension for six months and one day without pay which was the penalty imposed against Largo, she was merely fined by the court in the amount of P10,000.00 after considering the following circumstances, among others: a.) She solely supports five of her children who lives with her, including three minor children, one of whom is very sickly. The court viewed that her suspension from the service will be a heavy toll on the children who are innocent victims in this case and b.) Respondent Largo admitted that he took advantage of Halasans emotional weakness and vulnerability.

Ang y Pascua v. CA, et al., G.R. No. 182835, April 20, 2010
Facts: AAA filed a case under the VAWC law against Rustan for putting a photo of her face on a naked body and texting it to her and threatening to put it on the internet. Rustan alleges that today's women, like AAA, are so used to obscene communications that her getting one could not possibly have produced alarm in her or caused her substantial emotional or psychological distress. He also claims that since the relationship between AAA and him was of the "on-and-off" variety (away-bati), their romance cannot be regarded as having developed "over time and on a continuing basis," that would fall under a dating relationship under the law. Rustan also argues that the one act of sending an offensive picture should not be considered a form of harassment.

Held: What is obscene and injurious to an offended woman can of course only be determined based on the circumstances of each case. Here, the naked woman on the picture, her legs spread open and bearing AAA's head and face, was clearly an obscene picture and, to AAA a revolting and offensive one. Surely, any woman like AAA, who is not in the pornography trade, would be scandalized and pained if she sees herself in such a picture. What makes it further terrifying is that, as AAA testified, Rustan sent the picture with a threat to post it in the internet for all to see. Further, the two of them were romantically involved, as Rustan himself admits, from October to December of 2003. That would be time enough for nurturing a relationship of mutual trust and love, and therefore falls under a dating relationship. Finally, Section 3(a) of R.A. 9262 punishes "any act or series of acts" that constitutes violence against women. This means that a single act of harassment, which translates into violence, would be enough. The object of the law is to protect women and children. Punishing only violence that is repeatedly committed would license isolated ones.

There are also two cases decided by Regional Trial Courts which are worth mentioning because both have presented an opportunity for the judge to berate women in stereotypical fashion but the decisions remained focused on the merits of the case. The first one (P v. Dayrit) was a complaint for slight physical injuries filed by one woman against another woman, precipitated by alleged rumor mongering with the neighbors and hurling of insults with one calling the other Aswang (witch). The court limited its decision to the elements of the crime, omitting any remarks possibly associating women with rumor mongering and petty fights. The other case (St. Illians Makati-Inn Inc. v. Reyes) was a complaint for unlawful detainer. The woman, who is the defendant in this ejectment case, has been living at the penthouse of the plaintiff company because she was the lover of its chairperson. After the relationship was over, she occupied the entire penthouse and prevented her former lover from occupying the same, despite the fact that the penthouse was part of his remuneration package with plaintiff company. The court decided solely on the basis of whether the requirements for unlawful detainer were present. There was no insinuation, whatsoever, on the past relationship of the woman with the chairperson, how she has acted after the break-up, especially since they cohabited outside the bonds of marriage. B. The Interviews 1. Judges who attended the Gender-Sensitivity and CEDAW seminar-workshop There were twelve judges who agreed to be interviewed: six females and six males. Out of the twelve judges who agreed to be interviewed, eight of them (four were females and four were males) stated that they were able to participate in the GST-CEDAW seminar workshop conducted by the PHILJA. Six of these eight judges found the trainingworkshop to be effective in raising their awareness of existing gender biases/practices that discriminate and negatively affect women. They also stated that the training has changed the way they conduct hearings involving women. While one of the judges specifically mentioned heightened sensitivity in using language especially with words that carried stigma such as prostitute, another said that she became more observant in terms of guarding against insensitive and irrelevant questions with regard to the examination of a complainant for rape. For this reason, she deems it necessary that

trainings should be continuous because it makes judges in family courts become more aware and conscious in the court proceedings. She also feels that other lawyers, especially prosecutors should be given mandatory training as well. She cited a case where a prosecutor was not trained and as such the defense directed obscene language against the woman witness so she had to step in and stop such derogatory language. Thereafter, she let the prosecutor borrow the CEDAW Benchbook so that he would be guided during the next trial session. Meanwhile, one male RTC judge also stated that the training xxx made me recognize the differing situations and needs of women and men and to consider these in every decision I make on cases concerning women. Thus, for most of the judges, it can be gathered that the GST-CEDAW seminar workshops have heightened their gender awareness; and have affected the way they decide cases, including the need to use gender neutral language and to conduct the trial involving issues relating to women in a more gender-sensitive manner. Even the lone prosecutor who was interviewed emphasized the need for awareness raising on information regarding access to justice of women:
x x x just recently a female student complained to me of a teacher who has been sexually harassing her exchange for a passing grade in class. Although the current laws on Harassment Law will apply, there has been a violation of her right as a woman as well not just by the professor concerned but also by the school institution itself that tried to cover up the harassment issue. The female student did not know that there was gender issue involved. For abused women, they usually file a complaint with the womens desk at the police stations. However in cases where there is abuse not by an individual but by an institution for example, there is no proper procedure in place. Instances like this show that there is a need for an intense information campaign geared toward informing women of their rights and how they can avail of the justice system for redress in cases where there are violations of their rights. x x x

For the other two judges who stated that the GST-CEDAW seminar workshop did not change their conduct in hearing cases involving gender-based violence, one judge reasoned that gender-sensitivity should be inherent in judges and that he is already being sensitive as regards the cases in his court. He also thought that some cases mentioned in the training were not really offensive to women and believed that judges must have the freedom to write decisions in the manner they think appropriate. Despite his reservations, the judge expressed disapproval against the practice of some judges who want the victim to graphically describe how the rape was committed, and acknowledged that this tends to occur especially when the victim is attractive. He also did not approve of judges describing the victim in a stereotypical way. As for the other judge, while she stated that the way she has been resolving cases has not changed - which meant that she still decided them based on evidence and rules she admitted that there were some changes she has applied in her court after the training-workshop. For one, she became more conscious about the use of non-discriminatory language. Then, she has made sure that whenever photos of women in gender-based violence cases were being presented as exhibit in court, said photos were not circulated or passed around within the court room. Moreover, she also has made the effort of scheduling these kinds of cases last or at the end of the calendar of hearings so that less or fewer people will be present and no double victimization

would occur. Lastly, despite her statement that she has not changed the manner of deciding cases after the training-workshop, the judge still suggested that there should be a follow-up training on gender sensitivity. She also observed that some male judges during the training were not as accepting because they feel women should not be treated differently from men. Thus, she suggested that the necessity on why the training was being conducted should be emphasized. On the whole, it can be stated that all the judges who attended the GST-CEDAW seminar workshop are in a consensus with regard to the importance of applying sensitivity during trial, though they may have differing opinions on how it should affect changes in their respective courts. They also agree that the lack of it is detrimental for women who access the justice system for redress. 2. Judges who did not attend the Gender-Sensitivity and CEDAW seminar-workshop As mentioned earlier, there were four judges who did not receive any previous gender sensitivity training. Two were males and the other two were females. Despite the lack of training, all of them acknowledged that there is a need for the judges to participate and to receive training on gender issues affecting women as this would help increase their awareness about the right of women to enjoy equal status with men. One judge also said that the GST-CEDAW seminarworkshop should not be limited to judges in the family courts since regular courts also handle cases that deal with women issues; and that at present, he just uses common sense to handle such issues. It was also opined that lawyers should be given the training as well, citing two reasons: first, it will facilitate the speeding up of arbitration proceedings and second, it will help in maintaining order during trials. In so far as the arbitration proceedings are concerned, the judge gave an example where the parties were about to come to a settlement but the female client backed out because of some offensive words that the other counsel used against her. He likewise cited instances where some lawyers would deride a colleague on the sole ground that she was a woman. He also mentioned that there are lawyers who presume that certain lawyers are no good just because they are women. 3. Judges who received the CEDAW Benchbook during the Gender-Sensitivity and CEDAW seminar-workshop Of the twelve judges interviewed, five were given the CEDAW Benchbook during their participation in the GST-CEDAW seminar-workshop. These five judges found the book easy to read. More significantly, they found it relevant in the adjudication of cases. One MTC judge also stated that reading the CEDAW Benchbook is sufficient to make her aware of gender issues affecting women, even though her Court does not really handle cases which involve a lot of issues affecting women. C. GST-CEDAW Seminar Workshop, Cebu City There were a total of 49 participants in the seminar; and of this total, only one did not find that the workshop profitable. Unfortunately, there was no further information in the data that would indicate as to why this participant thought he or she did not profit from the seminar.

For those who wrote that that they found the seminar profitable, some said that they gained a better understanding about the concepts of gender sensitivity and gender discrimination; while others stated that they had a better comprehension and awareness of womens rights and protection under CEDAW and related laws. The participants were also asked if they would be able to apply the information they acquired from the seminar. For those who chose to respond to this query, all of them answered in the affirmative, some saying that they can actually apply the information in their everyday lives while others stated that they can apply it in their drafting of reports, resolutions and case studies. Then in areas for improvement, some suggested that there should be more examples of actual events about gender discrimination and that there should be more time for discussion; two days are not enough for the seminar.

III. Recommendations The CEDAW Committee has correctly pointed out that stereotyping affects womens right to a fair and just trial. In the cases presented, this paper has shown how gender stereotypes have worked in favor of victims, especially girl-children; and conversely, has also worked against those who did not fall under such stereotypes. The paper has also posited earlier that if the justice system wants to enhance access by women who have been victims of gender-based violence, it has to create an environment where women are not re-victimized while in the process of seeking redress. Although to a certain extent the courts are viewed as the principal duty-bearers in eliminating discrimination against women, specifically with regard to addressing gender bias and re-victimization of women during trials, this responsibility does not fall on the judiciary alone. Judges who were interviewed, including the prosecutor, opined that gender-sensitivity should also be given to prosecutors and lawyers. They recognized that gender biases in the court system can exist at different levels and in different stages of a case (i.e., from reporting the incident to the law enforcers until promulgation of decisions). Hence, this paper proposes the following recommendations for the CHRP, in its capacity as GAD Ombud: 1.) Awareness-raising. Embark on an awareness-raising campaign about gendersensitivity for both stakeholders and duty-bearers. Stakeholders are both the women and men in the communities while duty bearers are the local community leaders, barangay officials, law enforcers, prosecutors and public defenders. The members of the bench and their personnel are under the jurisdiction of PHILJA. 1.a) Emphasize during gender-sensitivity advocacy and information campaigns, trainings and during the conduct of womens rights education that gender inequality is a human rights issue and at the same time a development issue also; and that development cannot be sustainable unless the human rights of women, particularly the elimination of gender discrimination and discrimination against women are addressed.

1.b) The Prosecutor interviewed suggests for CHRP to develop a more detailed [i.e., step by step] guidelines that will direct a complaining woman how to go about in filing gender-based violence cases: to provide a flowchart instructing women what to do and what their rights are under the circumstances. She also recommends for the creation of a separate task force, specifically to monitor and investigate gender related abuse or discrimination. In this way, gender issues can be addressed separate from other related human rights violations. Finally, she recommends for the creation of a referral system whereby the prosecutor or even the police can directly refer complaints involving genderrelated human rights violations to the CHRP for proper investigation. 2.) Gender-mapping of practices. Coordinate with PCW, other co-members of the (InterAgency Council on Violence against Women and their Children (IACVAWC) and nongovernmental organizations in order to gather information on current practices of barangays and police stations (coverage can be expanded later to units of national prosecution service) regarding the handling of VAWC complaints and rape cases: how gender-sensitive are these practices and procedures (e.g., language used, confidentiality and anonymity from public) and build on this information in order to create modules for training and information campaigns towards the promotion of gender equality through gender-sensitivity. 3.) Develop indicators. Coordinate with PCW, other government agencies and nongovernmental organizations in developing indicators for assessing gender sensitivity and gender responsiveness of the practices mentioned above; and if or how they have made an impact in promoting womens rights, specifically against gender-based violence and womens access to redress.

1 2

Art. II, 11. Art. II, 14. 5 The Philippines ratified CEDAW on August 5, 1981 and entered into force on September 4, 1981. 7 < http://hdr.undp.org/en/media/HDR_2011_EN_Table4.pdf> 8 Republic Act (RA) No. 9710, August 14, 2009. 9 RA No. 9710, 39, a.