Supreme Court asked to probe Nicole recantation affidavit

MANILA, Philippines - The Supreme Court was asked yesterday to investigate how the affidavit of rape victim “Nicole” supposedly retracting her allegations that US Marine Lance Corporal Daniel Smith had raped her three years ago ended up being notarized by a lawyer from the law firm representing her convicted rapist.

In their petition, Nicole’s former lawyer Evalyn Ursua, former senator Leticia Ramos-Shahani, lawyer Harry Roque, anti-crime crusader Teresita Ang-See and women’s group Gabriela also called on the SC to stop the Court of Appeals from resolving Smith’s appeal after information came out that the CA is holding a draft decision acquitting the American soldier.

The petitioners said Smith’s lawyers, Sycip Salazar Hernandez and Gatmaitan, should be held liable for violating ethical and notarial rules since Ursua was still Nicole’s lawyer when her affidavit was made.

“It is most suspicious that the defense version of events and the questions that defense lawyers raised during the trial and in their memoranda have found their way into a sworn statement supposedly executed by Nicole,” read the petition.

“The language of the sworn statement itself is not consistent with Nicole’s level of articulation.”

The petitioners said Nicole’s affidavit was not a recantation of her testimony before the Makati court that convicted Smith of rape in December 2006.

The public was made to believe that Nicole has recanted her allegations of rape when her affidavit merely affirms her testimony that she was extremely drunk on the night of the incident and could not have consented to sex, the petitioners added.

The petitioners said Smith’s lawyers submitted to the CA the new affidavit, which has no legal weight because trial had already ended and Smith’s appeal has been submitted for resolution, to form part of the records of this case.

“Other than the evident objective to influence the outcome of the appeal, the publication of the sworn statement had the effect of casting a cloud of doubt on Nicole’s integrity because of the media-generated opinion that it is a ‘recant’,” read the petition.

The petitioners also assailed the Office of the Solicitor General for “not properly representing the People of the Philippines” in the case by not taking any step to know if Nicole freely, voluntarily and intelligently executed the affidavit.

Shahani was one of the principal authors of the Anti- Rape Law of 1997, which changed the classification of rape from a private to a public crime.

As a public crime, rape can be prosecuted without the participation of the victim after she had given her testimony and had identified the perpetrator.

Nicole’s retraction, a legal matter

US Ambassador Kristie Kenney said yesterday Nicole’s decision to recant her allegations of rape against Lance Corporal Smith is a legal matter for the courts to decide.

Speaking to reporters after visiting a school where US Peace Corps volunteers work, Kenney said the US government is keeping its hands off the case of Nicole’s recantation.

However, Smith will remain detained in the US embassy in Manila despite Nicole’s affidavit clearing him of the crime of rape, she added.

Kenney also downplayed the implication of Nicole’s recantation on the Visiting Forces Agreement.

“I think we’ll have to see; there’s obviously a pending legal case, and we’ll see what happens next,” she said.

Kenney also doused speculations that the US visa granted to Nicole was part of a deal to settle the rape case against Smith.

The Supreme Court was asked to reconsider its ruling ordering that Smith be transferred from the US embassy to a Philippine prison, she added.

Kenney said the SC decision is not yet final. “So it doesn’t take effect yet,” she said.

Kenney said the US government will begin discussions with the Philippine government on Smith’s custody once the SC ruling becomes final.

“Adhering to the law is what we do,” she said. — Michael Punongbayan, Ronilo Ladrido Pamonag, Edu Punay