#Journeyto30 She who cried rape
Epi Fabonan III (The Philippine Star) - May 22, 2016 - 12:00am

MANILA, Philippines – In a dark, unlit portion of Alava Pier in Subic Bay Freeport Zone, she was found crying and disheveled. Her jeans were worn inside out and there was a used condom sticking out from her underwear.

The woman, who was given the name “Nicole,” accused an American serviceman, Lance Corporal Daniel Smith, of raping her inside a moving van on the night of Nov. 1, 2005. She added that Smith’s fellow servicemen, Staff Sergeant Chad Carpentier, Lance Corporal Keith Silkwood and Lance Corporal Dominic Duplantis, egged Smith on as he raped her. All four men served aboard the USS Essex, an amphibious assault ship that visited the country as part of 2005 Balikatan exercises.

On Dec. 27, rape charges were filed against the four men at the Olongapo City Trial Court, which ordered their arrest. The US embassy in Manila quickly denied the court’s request for custody, invoking Paragraph 6, Article 5 of the Visiting Forces Agreement (VFA).

That particular provision states that, “The custody of any US personnel over whom the Philippines is to exercise jurisdiction shall immediately reside with US military authorities, if they so request, from the commission of the offense until completion of all judicial proceedings.”

Nevertheless, in accordance with the same provision, US military authorities made the four men available to Philippine authorities after formal requests were filed for them to appear in investigations and judicial proceedings regarding the case.

Since the VFA’s enactment in 1999, the Subic rape case was the first instance that visiting American servicemen were involved in the commission of a crime. Philippine authorities were really pressured to ensure a fair yet speedy trial. The aforementioned provision in the VFA requires the Philippine government to complete all judicial proceedings within a year, or else the case will be over. 

Being a landmark case and a test of Philippine-American relations, the case garnered significant media attention. Nicole received overwhelming support from various women’s rights, anti-crime and progressive groups, as well as several anti-VFA legislators. She was initially represented by an all-female prosecution team by Katrina Legarda, and then eventually by Evalyn Ursua.

However, just before the trial in Olongapo started, Ursua filed a motion for Judge Renato Dilag to inhibit, citing his son’s involvement in the accused’s defense. The Department of Justice (DOJ) transferred the case to the Makati City Regional Trial Court, under Judge Benjamin Puzon.

It was a nerve-wracking year-long trial for Nicole. She broke down several times while testifying in front of the men who allegedly violated her. Pleading “not guilty” in the case, Smith had accused her of being a sex worker and that what happened in the van was consensual sex. Nicole strongly denied these accusations. The young lass from Zamboanga City had been on vacation in Subic together with a stepsister and another US serviceman, Petty Office Christopher Mills. 

She said that on the night of the alleged rape, she was with her stepsister and Mills at Neptune Bar partying with other US servicemen. She said she and Smith had a few drinks and that she lost consciousness afterwards. The next thing she knew, she had been raped and abandoned at Alava Pier. 

On Dec. 4, 2006, more than a year after the alleged crime took place, Judge Puzon convicted Smith of rape and acquitted Carpentier, Silkwood and Duplantis. It seemed like a victory for women’s rights as Nicole and her lawyer, together with her plethora of supporters, celebrated Smith’s conviction and detention at the Makati City Jail.

However, before the year ended, their celebratory mood turned to anguish upon the revelation of an agreement between the US and Philippine governments placing Smith under US custody. In a stunning reversal of fortune, Smith was transferred and interred at the JUSMAG Building of the US embassy on Dec. 29. He would spend the rest of his stay in the country there as his lawyers appealed his case before the higher court.

In March 2009, Nicole issued a sworn statement recanting her accusations that led to Smith’s conviction. The statement was issued without her lawyer’s knowledge. She immediately left for the US after the release of her statement.

On April 23, 2009, the Court of Appeals acquitted Smith and ordered his immediate release. The court’s decision expressed that it found no evidence of rape to uphold the conviction. It described what happened between Nicole and Smith as a “spontaneous, unplanned romantic episode with both parties carried away by their passions and stirred up by the urgency of the moment…” Smith was released and returned to the US the following day.

Whether what happened between Nicole and Smith was rape or consensual sex, the Subic rape case tested the impartiality and objectivity of our justice system, and revealed the huge influence the US wields over the administration at that time. It showed that while the US protects its citizens, the Philippines is willing to sell out its own.

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