Nicole (not her real name) is now among us, somewhere in the US on a visa generously provided by the US Embassy. She is reportedly awaiting the arrival of her US serviceman fiancé who will marry her and petition her for a green card. But before she received her US visa, Nicole had to sign a sworn affidavit on March 12, 2009 prepared by Jose Justiniano, the lawyer of the man who raped her, Lance Corporal Daniel Smith. The affidavit exonerated Smith for the rape which occurred on November 1, 2005 in Olongapo City.
Justiniano had appealed the December 2006 guilty verdict against Smith and the Court of Appeals was set to rule on the appeal this month and a recantation by the rape victim would virtually ensure his client's victory. Towards that end, the US Embassy was willing to offer anything to Nicole to sign the recantation as the fate of the Visiting Forces Agreement between the US and the Philippines somewhat depended on the outcome of the case. Offering a visa to Nicole and her sister was a small price to pay to seal the deal.
The 3-page affidavit prepared by lawyer Justiniano followed the logic of Justiniano's own closing argument at the conclusion of the trial of Smith and the basis of his appeal. Here is an excerpt of the affidavit prepared by Justiniano:
“Looking back, I would not have agreed to talk with Daniel Smith and dance with him no less than three times if I did not enjoy his company or was at least attracted to him since I met him for the very first time on the dance floor of Neptune Club. With the events at the Neptune club in mind, I keep asking myself, if Daniel Smith wanted to rape me, why would he carry me out of the Neptune Club using the main entrance in full view of the security guard and the other customers? Why would the van park right in front of Neptune Club? Why would Daniel Smith and his companions bring me to the sea wall of Alaba Pier and casually leave this area that was well lighted and with many people roaming around? If they believed that I was raped, would they have not dumped me instead in a dimly lit area along the highway going to Alaba Pier to avoid detection?”
After securing Nicole's signature on the affidavit, Justiniano then included it in the supplementary “manifestation” which he submitted to the Philippine Court of Appeals panel that was reviewing Smith’s 2006 conviction by the Makati Regional Court.
As Justiniano expected, on April 23, 2009, a 3-judge panel of the Court of Appeals reversed Smith’s conviction, finding that no evidence was presented in court to show that Smith had employed force, threat and intimidation on Nicole. The panel of three women judges found the sexual tryst to be nothing but "a spontaneous, unplanned romantic episode…(with Smith and Nicole) carried aw ay by their passions."
"Suddenly the moment of parting came and the marines had to rush to the ship,” they wrote. “In that situation, reality dawned on Nicole – what her audacity and reckless abandon, flirting with Smith and leading him on, brought upon her”.
The regional trial court had earlier found that Nicole was too drunk to give consent to sex. But the appellate panel rejected that claim. “From the narration, after draining all those drinks of Sprite Vodka, B-52s, Singaporean sling, B-53 and half a pitcher of Bullfrog, although feeling dizzy, she danced with Smith through all four songs for about 15 minutes. She did not drop on the floor nor did she vomit,” they wrote. They also rejected the trial court’s finding of “forcible entry” to explain the contusions in Nicole’s genitals. “Even in consensual sex,” they explained, “contusions could be inflicted by finger grabs, as in Nicole’s case.”
Philippine Daily Inquirer columnist Rina Jimenez-David criticized the decision of the women judges which “seemed more like the admonitions of scandalized maiden aunts to a wayward niece than a reasoned, objective and compassionate appreciation of evidence. They needed only to settle one question: Was Nicole raped? Was she in possession of her faculties such that she could decide freely whether she wanted to have sex with Smith or not? Or was she so drunk that the Marine, taking advantage of her conditio n, had his way with her? But instead of answering these queries, what the justices wrote instead was a complicated scenario justifying the rape and gross abandonment of Nicole at the pier of Subic.”
In his 2006 column “Cry Rape”, Inquirer columnist Conrado De Quiros described the viciousness of the rape. “The girl was plied with drink and God knows what else in a bar, shoved into a van, and raped inside by an American serviceman while his four buddies egged him on with cries of "F__k! F__k! F__k!" Later, she was lifted out of the van by her hands and feet by two men like a pig ("parang baboy") and deposited on the pavement. She had on only a shirt and a panty, a condom still sticking to her panty. Someone from the van threw a pair of pants in her direction, and the van drove off.”
Nicole’s case might have been just another of the thousands of other cases of rape that involved US military personnel in or around US military bases in the Philippines since 1946. But no American soldier had ever been convicted of raping a Filipino woman until December of 2006 when Makati Trial Judge Benjamin Pozon pronounced Smith guilty of raping Nicole.
Judge Pozon ordered Smith remanded into the custody in a Philippine jail. But a provision of the VFA required US military personnel convicted of a crime in the Philippines to remain in US custody pending the outcome of the appeal. While this provision was disputed (and ultimately found unconstituti onal), Philippine government authorities removed Smith from a Makati jail cell and transferred him to the US Embassy where he was billeted while awaiting the eventual reversal of his conviction which occurred last week.
As Daniel Smith hurriedly departed the Philippines a few days ago, columnist Rina Jimenez-David wrote “Goodbye Danny Boy”: “Filipino women, fighting gender bias and social dictates in court, and finding themselves judged against hoary social standards, will have reason to remember you, Danny Boy. They will remember you and how you, abetted by your and our governments, manipulated the justice system and the unequal relationship between our nations, and managed to get away with a most heinous crime.”
Welcome to America, Nicole. I hope you find some measure of peace here.
(Send comments to Rodel50@aol.com or mail them to the Law Offices of Rodel Rodis, 2429 Ocean Avenue, San Francisco, CA 94127. For past columns, log on to: Rodel50.blogspot.com.)