Subic rape verdict

Perhaps unwisely, I can’t resist tiptoeing around the jagged rocks of the verdict in the Subic rape case.

First off, I was very surprised by the guilty verdict for Lance Corporal Daniel Smith as I thought the judge would do the politically expedient thing and acquit.

I also thought there were strong similarities between the events in Subic and those raised by the movie “The Accused”.

In both the question of the victim’s own complicity in the rape was raised. In the movie, the audience was asked to decide whether, by dressing and behaving provocatively, the Jodie Foster character was “asking for it”. The film made the case very persuasively that wearing a short skirt should never be interpreted as an invitation to commit an act of violence.

Similar questions were raised in the Subic case. What was this young woman from an army camp in Zamboanga doing in a Subic bar frequented by US servicemen? Given the long and well-known links between the US military and the Philippine sex trade, what did she expect to happen when she got drunk in the bar? These are the sort of questions that the judge would have had to examine in reaching his verdict on whether the sex between Daniel Smith and “Nicole” was consensual.

Another similarity between “The Accused” and the Subic rape was the presence of a male audience during the sex. As I recall the movie, the rape took place on a pool table before a slavering mob of cheering drinkers. In the Subic case, Smith and Nicole had sex in the back of a van while the marine’s three companions were reported to have shouted “Fuck! Fuck! Fuck!”

I don’t know about you, but these applauding drunks make an already sordid act seem even more gross and brutish. I was actually a bit surprised that the other three soldiers in the Subic case got off scot-free, especially on the grounds that, although shouted obscenities were heard from the van during the rape, “there was no sufficient proof of who uttered those words”. Huh? Who else would have “uttered those words”, the driver? And weren’t the soldiers at the very least present during a serious crime that they did nothing to stop, and in fact seem to have encouraged?

As in all such cases, the Subic trial hinged on the extent to which the sex was consensual. The case got me thinking about how most couples decide to sleep together the first night. In some cases I suppose the decision is a verbal one, but in many it just “happens”—a look, a touch, and off the couple go with very few or no words spoken. So if there were no words spoken, how can you prove there was consent? Of course if you were one of the parties, you would know, but proving it to a third party might not be easy, especially in a court-room.

Just to complicate matters further, the sex between Daniel Smith and Nicole took place under the influence of considerable amounts of alcohol, as is common in both consensual and nonconsensual sex. In fact the drunkenness of Nicole was an important plank in Judge Pozon’s strongly worded ruling.

[Smith] admitted having sexual intercourse with the complainant, who he knew was intoxicated and rendered unconscious by the accumulated effects of the different alcoholic drinks she had previously taken in succession at the time of the felony. Thus, she could not have consented to the bestial acts of the said accused.

However, and to show just how tricky this whole area is, in a similar recent case in the UK, the judge reached exactly the opposite conclusion, arguing that the extreme drunkenness of the woman in question meant that he could not be convinced that she had not consented to sex and therefore he could not convict the accused.

Finally, although civil society groups in the Philippines do great work, I wasn’t too keen on the protests bordering on intimidation that took place inside and outside the courthouse. I find it hard to believe that many of the protestors had actually weighed the rights and wrongs of this particular case—certainly, the language of the protests implied that once the demonstrators knew the accused was an American soldier and the complainant a Filipina their minds were made up.

It is impossible to entirely divorce this case from all the historical and cultural baggage that surrounds it of course, but this was a young woman seeking justice and a young man facing the possibility of spending most of his life in jail. They both deserved a rational and dispassionate appraisal of the facts of the case. Although I am sure that that is what Judge Pozon delivered, I could have done without all the grandstanding and shouting from militant groups.

PS Meanwhile, here come the bishops:

Women, most especially, should be taught that "womanhood is precious and noble so it is not right for them to be flaunting it around," Archbishop Oscar Cruz of Lingayen-Dagupan said Tuesday.

"They should not make themselves appear cheap and practically inviting to be violated by men," he said the day after a Makati judge sentenced Lance Corporal Daniel Smith to up to 40 years in prison after finding him guilty "beyond reasonable doubt" of raping an intoxicated Filipino woman identified in the media only as "Nicole."

Oh boy.

Comments

[cvj]

nicole needed all the support she can get and it was the cause-oriented groups who stood by her while the government played geopolitics and the rest of Philippine society looked away, secure in their prejudice. As for the bishops, oh boy indeed.

[torn]

I think that is a bit hard on “the rest of Philippine society” (and although not a citizen I would count myself in that group). Are you saying we should have made our minds up in this case without possession of all the facts? I am quite happy to go along with Judge Pozon’s verdict and I am sure he reached it after carefully considering the cases presented to him by the prosecution and defense teams. The rest of us simply did not enough information to do that and to have made up our minds during, or even before, the trial (as many groups did) would literally have been prejudging it.

[cvj]

What you call 'prejudging', i call forming a hypothesis. People are known to do that when it comes to matters they care about and it is normally considered acceptable practice. At least the 'grandstanding and shouting' militant groups took the time and effort to study the facts, form conclusions and give their support to Nicole. The rest of Philippine society just couldn't be bothered and a large proportion went along with stereotypes.

[CAN]

So the people who waited for the verdict were dealing in stereotypes and those outside the court holding “repeal the VFA” banners weren’t? That's not how I see it.

[Betol]

It's hard for me to believe that the three other bystanders, who probably pushed on that stupid kid, Smith, to show his manhood, got off scot free.

So now all you storm troopers out there who wanted some heads rolled got your sacrificial lamb, a 21 year old kid from St. Louis whom no one cares about. This story didn't even appear in the A-section of the St. Louis Post-Dispatch, only an AP release in the back pages somewhere.

[Cogs]

Whatever happened in the back of that van, it's clear that the way this trial was conducted was another example of how justice in the Philippines is now utterly debased.

Smith never had a chance, from the day early on that a congressman, on hearsay, deliberately described Nicole as having being carried from the van "like a dead pig" (this about a girl from Mindanao) to the "Convict the Rapist" placards outside the courtoom.

The law of sub judice, which precludes all public discussion of the merits of a case until the verdict, was never heeded.

The Americans will have watched all this with horror and will no doubt do their best to make sure that no more of their citizens in the Philippines are crucified this way.

Smith will be repatriated and, before very long, will be out on parole on the grounds that his trial was a display of the degeneration of the Philippine justice system. And that, in my view, would be a fair assessment.

It's hard to know who comes out of this with any honour, apart from Smith himself, who behaved with astonishing dignity as the politically driven lawyers, frothing-at-the-mouth pressure groups and racist commentators in the media demanded that he be punished in the name of Philippine sovereignty and the rights of women (in a country where thousands of women are raped and abused each day, their plight ignored by the justice system).

Did Smith do it? We'll never know. But getting to the truth was never the issue here.

[marianella]

It is interesting to see that a lot of people are ready to acquit Smith as it was a "consensual" act between him and Nicole. All are ready to believe Smith didn't do the crime -- even the 90 year old Jesuit. But just a question... what did Nicole gain by going to court and saying that she was raped by Smith? Money? Fame? Vengeance? Who would want "rape" to be part of their personal history? Who would want it to be their claim to fame? I am not Smith nor Nicole... I can't tell when it was consensual and when it ceased to be consensual... I am not the Judge... I didn't study Philippine Laws like he did so I'm not going to question his verdict over the case.

[vgave]

Can this be a case of consenting in the beginning, but because she felt that she was treated without respect because they had sex in the van instead of a private room, she was called a bitch by one of the men, and she was brought out of the van without being fully clothed, made her think she was raped?

Was there violation? Or was it just insult because she was called a bitch, embarrassment because it happened in the van and shame because she was seen by other people being brought out of the van half naked? What happened before , during and after sex can separately be interpreted. But put them all together and you'll doubt if it's clearly rape

[howie]

What's interesting to me is the point you make about one's accountability when under the influence of alcohol. Judge Pozon seems to think drunkenness is a legal defense, the UK judge does not.

[torn]

Yes, this is a huge issue in drink-fuelled societies like Britain. I looked up newspaper reports of the case and it seems that the under cross-examination the woman in question said she couldn't remember whether she had consented or not! There was some discussion about this on the Unlawyer blog.

The judge's point was "Drunken consent is still consent". I think I agree with that -- it would not be reasonable to expect the man to figure out whether the the woman was *really* consenting or just consenting because she was drunk -- especially if he was also plastered (as he probably would be).

[Sidney]

Consent or no consent it was a stupid (bestial) thing to do. You don’t have sex with a woman when other people are watching and cheering. You don’t dump her afterwards on the road. We can’t tolerate such a behavior in a civilized society. When you do things that are unethical, unlawful or dangerous you should be prepared to face the music.
I don't have much pity for Smith. In fact he should not get so much attention in the first place. Since Smith is not an “ordinary” American citizen but a soldier I am pretty sure he will not spend much time in a Filipino jail.
What can I say? Maybe the army should teach their soldiers to behave and masturbate instead of taking risks with local girls.

[Cogs]

The reason the Smith case got so much attention was precisely because he is an American serviceman. Was he the only male in the Philippines that weekend, other expats included, who, drunk himself, took advantage of a drunken woman who flirted with him in a bar?

When, precisely, will those cases come to court?

Smith wasn't on trial. What was on show in the appalling political circus that dominated the hearing was the Philippines' continuing sense of victimhood -- that whatever an American serviceman does in the Philippines, no matter how many Filipinos do the same thing -- is somehow a hangover from colonial times and a mark of disrespect for the whole nation.

It was an unpleasant display of fanaticism and it made the Philippines smaller, not taller.

[ktree]

I find it interesting that the world is full of people who are absolutely certain of what happened on 1 Nov 2005. Young people who drink too much and then have sex are not the stuff of international fire storm. I would suggest that Phillipinos and Phillipinas look elsewhere to bolster their outrage of erstwhile colonial yoke. Daniel Smith is not the enemy here. He is not a slovering oger a bestial thing preying on the unsuspecting Phillipine people. The trial was not about justice, it was about political showmanship writ large. None of you who post on this site actually know Daniel Smith. I do. He is not what he is accused of. He is not the substitute for decades old Phillipine angst. He is a kid who volunteered to be of service. He picked up a girl in a bar who decided to accompany him and had sex. Play your politics elsewhere. Send this young man home and choose another scape goat for your political grand standing.

[ktree]

Just a short comment for those of you who think service men and women are not "ordinary" people and treated differently than others. The fact that you sleep in peace is due to those ordinary people. To call someone bestial without knowing that person or knowing the actual facts of the matter is beneath contempt. American service men and women have been dying for your ability to flap your gums and I find it incredibly ungrateful of you to malign all those who care about your well being. I suppose they would just as soon you said "Thank you" and then go away

[torn]

Sidney – I know what you are saying and in some ways I agree with you, but the law is not based on such generalizations as a “bestial act” or “unethical” behaviour. Many people might find your solution, masturbation, to be bestial (OK, I know it was a tongue-in-cheek comment).

The law has to be specific, otherwise all kinds of perfectly legitimate behaviour could be branded illegal. I’ve never had sex in van myself (what a sheltered life I’ve led) but I would be outraged if someone tried to tell me there was something wrong with that. In fact as far as I am concerned there is nothing wrong with having sex before an audience, so long as everyone involved, participants and onlookers, fully consents to it.

That is why consent is at the absolute core of such cases. We cannot say “consent or no consent” because that is what the case is all about.

Vgave -- I think you have painted a plausible scenario of what might have happened. It is only one of several scenarios of course, but I think it is a possible one. I guess the judge considered it, but eventually decided that, on the evidence he had before him, it was more likely that a rape had taken place.

[kris]

witnesses saw an unconscious girl being taken out of the van and dumped on the sidewalk, with her pants and underwear down on her knees. then a used condom was thrown after her. all circumstantial perhaps, but if i see something like that, you can bet exactly what i'm going to assume.

the day after the incident the driver gave corroborating testimony, saying the girl was "gang-raped," and that he heard cheers of "go smith go!" interestingly enough, he withdrew his testimony a few days later, saying philippine authorities threatened him to make such a statement.

what's more interesting is smith's initial "flip-flopping" responses as to whether or not intercourse took place. maybe he was too drunk to remember, or maybe there was just enough of his DNA on the girl's panties to prove it. (and yes there was.)

then there're the lacerations and contusions on the victims privates. could have been consensual rough sex, yes, but it also could have been rape.

it might surprise you to know how unexpected this verdict was to the filipinos. not because smith is believed to be innocent, but because the prospect of whitewashing hung heavily in the air.

surely a bunch of people protesting against the united states is nothing new. people all over the world have been protesting against the US government for the longest time, and for good reason. even americans protest against their own government regarding its foreign policy. americans are notorious for throwing their weight around in the third world, they do rot they can't get away with in their own soil. this is one rare occasion someone got convicted, so i don't see why they behave like they're so violated. apparently this "sense of victimhood" is not unique to filipinos.

[theamateurmisanthrope]

Re: "At least the 'grandstanding and shouting' militant groups took the time and effort to study the facts, form conclusions and give their support to Nicole." How could they, when they didn't have access to the court records (the testimonial and object evidence)? These persons turned a simple rape case into a jinggoistic dilemma.

[torn]

Kris – Thanks for reminding us of those important details. I myself disagree with some of the earlier commenters who implied that this was no different from what goes on every night in the Philippines. Fortunately, I don’t think that is true – I think there was strong circumstantial evidence to imply that an act of violence had taken place.

As for protesting against America, there is nothing wrong with that -- I’ve done it myself. But Judge Pozon wasn’t employed to pass a verdict on American imperialism – his job was to decide what had happened between Daniel Smith and Nicole that night in November 2005. Any extrajudicial pressure that tried to move the focus of the case away from that essential fact – whether from the Philippine government or civil society groups – was completely wrong as far as I am concerned. It is also immoral, as it could lead to either a wrongful acquittal or prosecution.

Theamateurmisanthrope – yes, I agree with that.

[kris]

i think the call for justice will never be wrong nor immoral, no matter how loud it gets. as you said, the politically expedient thing to do would have been to acquit the defendant. what the picketing has done is to make sure this didn't happen. it didn't move the focus away from the case, if anything it sent the message that there are just enough people watching to make sure everyone does the right thing.

[cvj]

i agree with kris.

[torn]

But were the protestors trying to ensure that justice took place or that Smith was convicted? Those two are not necessarily the same thing, although they clearly were in the protestors’ minds.

Perhaps we are all being a bit too sweeping in our definition of “protestors”, since there were clearly many groups, with different motives.

I think Kris and cvj have made a good case that Nicole, one person (and, I suspect, poor and uneducated) against the weight of the American and Philippine governments, male prejudices, and a not entirely fair justice system, deserved support.

On the other hand, at least some of the protesters were clearly knee-jerk anti-American demonstrators. That is clear from the banners they were holding, many of which had nothing to do with the case at all. I think that is wrong, for the reasons I have already stated.

Perhaps if we take the view that there were different types of protestors, we can find a way to reach an amicable agreement on this point!

[gonzo]

Kris, excellent comments all. intelligently argued.

Ktree, maybe you should first learn to spell 'Filipino/filipina' before making comments on this subject. As for US soldiers "dying for us so we can sleep in peace", erm, have you asked a normal iraqi about his/her sleeping conditions lately due to the wonderful actions of the US armed forces? Based on your spelling skills, i presume you vote Republican, correct?

I too am surprised at the guilty verdict. Something new for the Philippines other than the usual whitewash. The Okinawans must be happy about this as well.

Smith and his cohorts are just a bunch of ignorant kids, probably from underprivileged families -- the targetted demographic for recruitment of the US armed forces, but his conviction i think can be seen as a symbol-- The Philippines may be getting some balls after all.

I'm hoping it's a global trend against American bullying and arrogance, as the recent presidential elections in many countries of Latin America seem to indicate. No more lapdogs to America in a region that has traditionally been subservient to American interests.

People are finally standing up to the greedy, selfish, self-centred schoolyard bully, and that can only be a good thing for the rest of the world.

[gonzo]

And btw, these 'knee-jerk anti-American demonstrators' irritate me as well. They do not do themsleves any good by jumping to conclusions before getting the facts, but i think they do help keep the case alive in the media, which then becomes a form of pressure against having the traditional whitewash whenever a US serviceman is involved in wrongdoing.

[cogs]

The Smith case is probably going to do only one thing as far as the Americans are concerned -- and that is to make sure, whenever possible, that no more of their servicemen are subjected to the cynical farce of a trial in the Philippines.

Whether or not Smith did what he is accused of doing, he did not receive a fair trial. And no amount of bleating about whitewashes in the past or a symbolic victory for the Philippines is going to change that.

Smith will go back to the States, but the justice system in the Philippines will remain one of the most corrupt and corruptible in the world.

Where's the victory in that, I wonder?

[gonzo]

The victory is Americans will want nothing to do with the Philippines, hopefully.

After decades of colonization and interference (backing the 20yr Marcos dictatorship), not to mention the murderous Philippine-American war of 1898-1902 in which the US army wiped out 1/10th of the then Philippine population-- its best, brightest, bravest, and most patriotic people-- thus preventing the Philippines from achieving its revolution and freedom from nearly 400 years of occupation by Spain (read your history), it would be a pretty welcome relief not to have any more Yanks on our soil. They've done too much already.

i'm thinking the Iraqi people are with me on this as well for their country.