Friday, April 20, 2012

The bar and bench on women

Lawyer Claire Luczon, executive director of Women LEAD, led a team that conducted a survey among 27 lawyers and six family court judges on how the Philippine legal system was addressing the issue of violence against women.

Luczon presented her team’s findings at the March 28 launch of “Justice and Healing for Survivors of Gender-Based Violence,” a program being implemented by the Women’s Feature Service, Women LEAD, Women’s Crisis Center and Assist.

According to Luczon, the legal profession is not too happy with too many laws supposedly protecting women in the legal system.

The survey shows, though, that awareness of the existence of these laws makes victims and survivors “feel better, knowing that they have rights.”

What is disheartening is that despite the existence of such laws, there remain certain mindsets, practices and biases that prevent these from truly protecting, much less empowering, women who have in one way or another experienced abuse.

Loopholes in the laws also frustrate their objectives.

Foremost among the findings is that in cases of abuse, there is over-reliance on testimonial evidence, especially of the victim.

Rape victims, for instance, are made to recount their harrowing experience in court—never mind if the courtroom is filled with litigants of all cases being tried during that session, and that the woman would rather not revisit the details of her abuse.

The challenge is now to build a case even without the participation of victims. The use of DNA evidence, for instance, must be promoted because it provides a fool-proof guide to determine the identity of the perpetrator.

Second, some of the laws have unrealistic evidentiary requirements which are difficult, if not impossible, to meet. For instance, Republic Act 9208, or the anti-trafficking law, has a provision on “intent to exploit” which must be clearly established in the arguments. Similarly, in Republic Act 9262 or the Violence Against Women and Children Act, “intent to control” needs to be proven under the provision on economic abuse. Cases have been dismissed because of the complainant’s failure to clearly illustrate the intent to control even as the economic abuse has been severe.

In sexual abuse cases, the victim is often given the burden to show there was absolutely no consent on her part. She has to prove she did not want the sex.

Luczon also observes brazen gender bias among the officers and employees of the court when it comes to dealing with victims of abuse. For example, they believe that a woman must come to court with clean hands. If a wife has been less than perfect, that virtually negates her credibility in complaining of bad treatment from her husband.

Careless remarks from court staff also show the bias. They say that women who want to get out of abusive relationships are just not willing to suffer (“ayaw magtiis”) or oversensitive (“maarte”). Some members of the staff are callous and impatient, asking why the case has not been settled yet.

Worse, they also condemn women who choose to withdraw their cases (“you are wasting the time of the court!”), not realizing that such decisions must be seen in the context of the psychological state of the victims who have been subjected to abuse by their intimate partners, the father of their children, over long periods of time.

And then, during hearings, a complainant must look the part—if she wants to prove she was a victim, she must look unkempt, disheveled, desperate. Any victim who fixes herself up or looks empowered is met with disbelief.

Many provisions of the VAWCA are also not being implemented. For instance, these cases are still not given priority among the many lodged in courts. While the courts could issue a temporary restraining order, they still hesitate to send the men out of the house. There is pressure to settle amicably. Privacy and confidentiality are violated because questioning is done in open court.

Among the family court judges, the consensus is that the laws protecting women are commendable only because women are the “weaker” sex.

There is misplaced priority on strengthening or preserving the family as an institution, even though its individual members’ (the wife’s or the children’s) rights are not respected. Courts also tend to trivialize women’s troubles, saying they are unwilling to bear the hardships of married life or are just vindictive after their husband’s infidelity.

Indeed the existence of laws for victims of gender-based violence is not a guarantee that they will be protected and their rights upheld. More needs to be done, especially by the lawyers and the judges who must be a step ahead of the rest of us on why these laws are even there in the first place.

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