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Issue Number 32, October 2009
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Kapatiran Issue
No. 32, October 2009
US MARINE CLEARED OF RAPE IN
PHILIPPINES
First Ever Conviction Of GI Ended By A Fix
- 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) until 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
2009 “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 the Anti-Bases Campaign 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
Lance Corporal 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 2009
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 case 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. #
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