http://newsinfo.inquirer.net/inquirerheadlines/nation/view/20090424-201103/CA-Smith-not-guilty-of-rape

CA: Smith not guilty of rape

All-women court: Twas a romantic episode

By Dona Pazzibugan
Philippine Daily Inquirer

Posted date: April 24, 2009
MANILA, Philippines-It wasn’t rape, but a spontaneous, unplanned romantic episode stirred by alcoholic drinks.

This was the ruling of an all-female division of the Court of Appeals acquitting Lance Cpl. Daniel Smith of raping a Filipino woman code-named Nicole on Nov. 1, 2005 at the Subic Bay Freeport Zone.

In overturning the conviction handed down by the Makati Regional Trial Court in December 2006, the Court of Appeals Special Eleventh Division ordered the immediate release of the American Marine who has been under the custody of the US Embassy.

The division was composed of Associate Justices Remedios Fernando (chair), Myrna Dimaranan-Vidal and Monina Arevalo-Zenarosa, who penned the decision.

The court disregarded Nicole’s March 28, 2009, affidavit that was interpreted as a recantation of her original claim that she was raped by Smith with the help of his fellow Marines S/Sgt. Chad Brian Carpentier, L/Cpl. Dominic Duplantis and L/Cpl. Keith Silkwood.

The trial court had acquitted the group except for Smith, now 24, who was sentenced to life imprisonment.

“Ultimately, it must be pointed out that in resolving the case, we disregard the alleged recantation of Nicole submitted on March 8, 2009. Nor did we open the sealed draft decision penned by retired Justice Agustin S. Dizon which was attached to the records,” the appellate court said in its 71-page decision.

The court said it acquitted Smith based on a “careful and judicious perusal of the evidence on record,” which it said did not convince them of the “moral certainty of the guilt of the accused (Smith).”

“What we see was the unfolding of a spontaneous, unplanned romantic episode with both parties carried away by their passions and stirred up by the urgency of the moment caused probably by alcoholic drinks they took, only to be rudely interrupted when the van suddenly stopped to pick up some passengers,” the court said.

Shattering reality

“Suddenly the moment of parting came and the Marines had to rush to the ship. In that situation, reality dawned on Nicole-what her audacity and reckless abandon, flirting with Smith and leading him on, brought upon her.

“That must have been shattering. But added to this was the mocking moment she heard from inside the van: ‘Leave that bitch!’ or words to that effect, which really broke her as she shouted back her denial: ‘I am not a bitch!’,” the court went on.

From the court’s point of view, Nicole cried rape out of shame-“dumped in a curb literally with her pants down”-upon the thought of her mother and boyfriend Brian.

“She had to hit back in the only way she could-to salvage at least a vestige of her self-esteem,” the court concluded.

The court simply did not believe Nicole’s claim that Smith and his friends took advantage of her being drunk and unconscious.

No evidence to show force

“No evidence was introduced to show force, threat and intimidation applied by the accused (Smith) upon Nicole, even as the prosecution vainly tried to highlight her supposed intoxication and alleged unconsciousness at the time of the sexual act,” it said.
The court pointed out that the formal charges filed in the trial court did not say that Nicole was “deprived of reason or unconscious” at the time.

The court questioned Nicole’s claim that she was already drunk while she danced with Smith inside the Neptune Club, and that the last thing she could remember was going out of the bar with Smith and then “when I recovered consciousness, he was already on top of me, kissing me all over even as I was resisting his advances.”

“When a woman is drunk, she can hardly rise, much more stand up and dance, or she would just drop. This is a common experience among Filipino girls,” it said.

Witnesses’ testimony rehearsed

“The curious thing is that,” said the court, “she danced non-stop to the urgent beat of rock and hip-hop music in an inebriated state for 15 minutes without stumbling clumsily on the floor.”

“This gap in her narration with the malingering explanation that she was dizzy and could not remember is dubiously fanciful for being what the court perceptively describes as contrary to ordinary experience of man,” the court said.

The court found the testimonies given by three persons at the Neptune Club who described Nicole’s supposed drunken state to be “rehearsed.”

The court was suspicious that the witnesses uniformly used the word “pasuray-suray” (walking unsteadily as if swaying) in describing Nicole before the court, but they never used the word when they spoke to investigators.

“The uniform description gives the impression that the testimonies were rehearsed,” the court said.

Deceptive posturing

The appellate court overturned the lower court’s conclusion that contusions in Nicole’s private parts were caused by forcible entry. It said that the medico legal officer, Dr. Rolando Ortiz II, admitted that “it was probable that even in consensual sex, contusions could be inflicted by finger grabs as in Nicole’s case.”

The court concluded that Nicole’s portrayal of herself as a “demure provinciana lass going on a first-time vacation to Subic” as mere “deceptive posturing.”

“On hindsight, we see this protestation of decency as a protective shield against her own indecorous behavior,” the court said.

“Her going to Subic from far away Zamboanga with her stepsister, (with) two American friends whom they met only about three months earlier and accepting their offer of free hotel accommodations and other things as well-in her words, “to enjoy”-do not coincide with the demure provinciana lass we are talking about,” the court said.

The high-profile case prompted Washington to threaten to call off large-scale exercises with Manila until Smith was transferred to a detention center within the US Embassy, where he remains to this day.

The woman has since left for the United States to live with her American boyfriend who she had met after the alleged rape. With a report from Tetch Torres, INQUIRER.net