US MARINE CLEARED OF RAPE IN PHILIPPINES
First
Ever Conviction Of GI Ended By A Fix
Peace Researcher 38 – July 2009
-
Murray Horton
In late 2005 several US soldiers, in the
Philippines for one of the permanent series of “exercises” that provides the
flimsy justification for the renewed US military presence, went out for some
“rest and recreation” in the Americans’ old stamping ground of Olongapo (home
to the former Subic Bay US Navy Base). They ended up being arrested and charged
with raping a Filipina, identified only as “Nicole”. So, an unprecedented
situation arose with American soldiers charged with a very serious,
non-bailable crime. The US
immediately invoked the Visiting Forces Agreement (passed in 1999, during
Joseph Estrada’s Presidency) and demanded custody of the accused. President
Gloria Macapagal-Arroyo’s government acquiesced, and they awaited trial in the
comfortable surrounds of the US Embassy. The judge-only trial - there are no
jury trials in the Philippines - was eventually held in late 2006 and, despite
the obstructive approach of the Philippine government (which was supposedly
“prosecuting” the GIs but made it very clear that it greatly preferred the
whole thing to go away) one of the defendants, Lance Corporal Daniel Smith, was
convicted and sentenced to 40 years in prison. The US
immediately whisked the other, acquitted, defendants out of the country, back
to their bases on the Japanese island
of Okinawa. US
agents also tried to snatch Smith in the actual courtroom, following his
conviction, but Philippine cops got him locked up in a local prison. There he
sat for all of a fortnight, while a huge row raged about where he should be
held.
This was a historic situation – Smith was the
first American GI to have ever been convicted of anything in the Philippines.
The US
government demanded him back in its custody and the Philippine government
agreed, both citing the Visiting Forces Agreement (VFA). But Philippine courts
showed a stubborn independence and ruled that Smith must be detained in a
Philippine prison. The US
then upped the ante and cancelled the high profile Balikatan joint military
exercise in the Philippines
until they got their soldier/rapist back. Gloria didn’t take much convincing –
she issued an Executive Order transferring Smith to US custody (back to the
Embassy) while his appeal was heard and he was clandestinely removed from
prison in the dead of night in the holiday period between Christmas and New
Year 2006. The US
promptly uncancelled Balikatan. This whole squalid business greatly inflamed
nationalist fervour across the whole Filipino population and the case of Daniel
Smith and the broader issue of the Philippine/American military relationship
once again became a cause celebre (the Philippine people waged one of the
greatest and most successful anti-bases campaigns in history, succeeding in
getting the huge, 100 year old, US bases closed down and gone, in 1992).
The interminable Philippine legal process
ground on (poor defendants can remain in prison for years before ever coming to
trial; the cases of rich defendants tend to stay on the bottom of the pile and
forgotten about, while they remain at liberty); Smith stayed comfortably
ensconced in the US Embassy: and the case dropped out of the headlines. But, in
a bombshell development in February 2009, the Supreme Court ruled that Smith
must be held in custody in a Philippine prison, and quashed the deal allowing
him to be “detained” in the Embassy. Suddenly the whole issue was very much
back in the headlines and causing all sorts of problems for both governments
and their cosy military relationship. Cora Fabros
(whom the Anti-Bases Campaign toured through NZ in July 2008; see Peace Researcher 37, November 2008,
online at http://www.converge.org.nz/abc/prcont37.html)
spoke on behalf of the Stop the War Coalition-Philippines: "This is
a partial victory for all those who've been fighting for justice for 'Nicole'
and for all those who've been fighting for the sovereignty of the Philippines.
However it is only partial because the VFA should have been declared
unconstitutional. The transfer of custody could however prompt the United States
to revisit the agreement. What the US wants through the VFA is to put
its soldiers above the law, beyond the reach of local authorities. By
preventing this, the Supreme Court has struck at the heart of the VFA's ability
to give immunity to US troops" (press release, 11/2/09).
Victim
Recants
It became imperative that a deal be done to
allow business to proceed as normal. Lo and behold, in March “Nicole” filed an
affidavit recanting her testimony and withdrawing her accusation of rape against
Smith, saying that the sex had been consensual. Never mind that the affidavit
didn’t sound like she’d written it or that it was first made public by one of
Smith’s lawyers. She then promptly left for the US
with her new American boyfriend, a hard to get US visa was rushed through for her,
she was given a fairly insignificant sum of money by way of “compensation” and
she disappeared from the reach of the Philippine media. To say that it was
disappointing to her many supporters was putting it very mildly. The whole sad
story was best put into perspective by Emmi de Jesus, Secretary General of the
women’s movement Gabriela (Emmi was one of the Filipinos hosted by ABC on the
1990 Touching The Bases Tour through NZ):
“Nicole is not the first and will not be the
last rape victim to recant. As a women's alliance that for 25 years has worked
with women victims of violence, we have faced many such situations. The battle
for justice, especially in a society as unjust as the Philippines, is never easy. This rings
more true when the enemy is not a mere criminal but a symbol of US
dominance over the Filipinos and the accomplice to the crime is a Philippine
government most servile to the whims of its master. The Arroyo government can
lie through its teeth and deny with all its might its hand in Nicole's
recantation but its track record only proves otherwise. From the day the Subic rape became public, the Arroyo government has
utilised all legal and political means to protect and absolve Smith. That the
Arroyo government debauched justice by surreptitiously transferring Smith to
the US Embassy after Smith's conviction is enough proof of where the Government
stands on the Subic rape case. Currently, the
Arroyo government, through its spokespersons, cannot even hide its apparent
glee at having served its US
master well. The victim has always been not just Nicole but the Filipino
people. The enemy has always been beyond L/Cpl. Daniel Smith but the United States
government and its’ military. The accomplice has always been more than the
three other US
soldiers but the puppet Arroyo regime. The fight has always been more than
justice for the crime of rape, but justice for a people long subjugated by the
imperialist US. The struggle for justice in the Subic
rape case has never been just a single Filipino woman's battle for her dignity.
It had, and shall always be, the battle of a people united to reclaim our
national dignity. The fight will continue. The Filipino women and the Filipino
people shall maintain its stance: Justice for the Filipino people! Jail the
rapist Smith! Junk VFA!” (press release 18/3/09; “Nicole’s recantation serves
US and Arroyo government most”).
Smith
Acquitted & Freed
“Nicole” had become an expendable pawn in a
much bigger game and things turned decidedly ugly for her. The Philippine media
(which has no inhibitions about the privacy of rape victims, routinely parading
them on TV, along with the most intimate and grisly details of what happened to
them) called her all the usual sorts of names. The coup de grace came with the
April decision of the Court of Appeal acquitting Smith (immediately afterwards
he left the US Embassy and returned to the States). The all-female panel of
judges excelled themselves in putting the boot into “Nicole”, describing her rape
in a van as being 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..”. The judges claimed that she
was motivated by shame – “dumped in a kerb literally with her pants down” – so
she decided to cry rape. They ignored her testimony that she had become so
drunk that she had to be carried from the nightclub to the van where the she
was raped. “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” (how’s that for a sweeping generalisation?). And they dismissed her as a
liar: “On hindsight, we see this protestation of decency as a protective shield
against her own indecorous behaviour” (Philippine
Daily Inquirer, 24/4/09; “CA: Smith not guilty of rape. All-women court:
Twas a romantic episode”, Dona Pazzibugan).
Making
The Problem Go Away
This lamentable sort of outcome in cases
involving allegations of rape against well connected men in uniform is not one
that is confined to the Third World; we only have to think of the very recent
Louise Nicholas case against senior policemen to see an exact New Zealand
parallel (in her case it never even got to a conviction that then became
necessary to have overturned; they were acquitted). Worldwide, women have
always been treated as expendable if they threatened the interests of those in
power. The laughably labelled “romantic episode” between the GIs and “Nicole”
became a major impediment to the military relations between the US and the Philippines; it became a political
threat, a problem. So, in the best traditions of how things are handled by the
system in the Philippines,
the problem was made to go away (as was “Nicole”, literally). She can probably
count herself lucky that she got out of it alive (because murder, abduction and
disappearance are other traditional ways of solving “problems” in the Philippines).
The Smith case was an unwelcome reminder of the bad old days when the
Philippines was overrun by hordes of drunken GIs in search of “rest and
recreation”, and when the US military and its bases operated with total
impunity. Nothing much seems to have changed.