What Access to Justice Means to PWDs and Women

There are a lot of discussions on the rights of Persons with Disabilities (PWDs) recently.It is evident that the issue of disability has many intersectionalities with other vulnerabilities. Cross-cutting issues involve disability, minority, gender and sexuality, class or financial status, and educational background, and how this affects their civil and political rights, particularly Acces to Justice. A couple of months ago, I came upon a case which was raised to the Committee on the Elimination of All Forms of Discrimination against Women (CEDAW) under the mechanism of the Optional Protocol. The author/petitioner was not only an ordinary victim of gender-based violence. Besides being a female, she is a deaf-mute and was a minor when she was raped. At the heart of this case was an in-depth discussion on the status of implementation of our Anti-Rape law. The problems highlighted in the communication to the United Nations High Commissioner for Human Rights exemplified the gaps and flaws in Republic Act No. 8353, and makes the current initiatives in Congress to amend the Anti-Rape Law of 1997 even more relevant. While the case was primarily “mishandled” by the court, there were other aspects in the enforcement of the law where its express provisions were not only NOT followed, but were actually “violated”. Republic Act No. 8505 explicitly requires a FEMALE police officer to conduct the initial interview, but it was a male police officer who interviewed the victim. At the outset, during the initial investigation of the case, there was already great difficulty communicating with the authorities because the victim was a deaf-mute and sign language interpreters are not readily available at police stations. Only her own sister translated for the victim. This seeming insensitivity to the victim’s disability, continued until the actual prosecution of the case in court. There is no “official”, government sign language interpreter provided, and courts have to engage the services of translators from NGOs. This clearly shows the State’s inability to fully address the issues and concerns of PWDs when it comes to their right to access to justice. Hence, this is likewise not in compliance with our obligations under the United Nations’ Convention on the Rights of Persons with Disabilities (UNCRPD). Much of the issues herein are matters of policy review and legislative reform. The court glaringly failed to appreciate the evidence presented and instead, relied on gender-based myths and stereotypes. By insisting that the “victim must have done all conceivable means to evade or resist the perpetrator’s advances”, the court effectively demanded that she respond according to what the court deemed to be “reasonable standard of human conduct” and discounted the wide range of behavioral responses that can be exhibited by victims. By characterizing a “Filipina rape victim” as a woman who “summons every ounce of her strength and courage to thwart any attempt to besmirch her honor and blemish her purity”, the victim’s testimony was deemed incredible because she did not conform to such a stereotype. She was even effectively blamed for not employing sufficient or adequate means to avoid the rape. Such perspective lends to the old categorization of rape as a “crime against chastity”, instead of a “crime against person”, where the operative word is the person, and not her reputation or credibility. Note that rape is no longer considered a “private” crime, but a “public” crime which the State must pursue. It is apparent that the victim experienced layers of vulnerability which exposed her to greater risk of being subjected to abuse and violence. Most evident of all is the failure of the court to consider her disability of being deaf-mute. Using the above-mentioned framework, she was required to show proof that she struggled or made some noise because “her mouth was not covered nor stuffed by any object.” The court insisted that “she could have reached for plates of the table” where she was laid, when she already said she had cleared the table earlier and there was nothing she could use to hit her attacker with. This is the very essence of the current amendment pending before Congress – to change the language of the law that puts a premium on proof of violence, coercion and intimidation instead of the simple lack of consent, on evidence of torn clothing, threats of actual bodily hard or injury, or the victim’s showing that she screamed or shouted for help. Such technicalities thereby restrict the appreciation of the case by prosecutors and judges. In spite of all the provisions in the anti-rape law favoring the testimony of a victim, judges’ decisions are still limited by the way they appreciate the evidence using this logical framework. Nowhere is the gender-sensitivity and awareness trainings reflected in their rationalizations because they fall back on negative stereotypes and gender myths. The recommendations made in the communication are worthy of consideration by the Philippine Government. It is by no means a “source of shame” for the Philippines, should the proper officials and authorities choose to do something about it by instituting legal and policy reforms that will address these problems in implementation. It is with this clarity that our DFA must think when it makes representations in international fora like the United Nations bodies. It is with this gender-sensitivity and rights-based approach that other government agencies must act when it formulates policies, when it proposes legislative measures, and when it lays down court decisions.