The Subic Rape Case


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Recantation seen as out-of-court settlement

March 19, 2009 06:04:00
Michael Lim Ubac Norman Bordadora
Philippine Daily Inquirer

MANILA, Philippines—The recantation of the 24-year-old Filipino woman who won the rape conviction of an American Marine is clear evidence of an out-of-court settlement, former Senate President Jovito Salonga and law professor Harry Roque Jr. said Wednesday.

In a joint statement, the two lawyers said the March 12 affidavit of “Nicole,” where she cast doubt on whether she was actually raped by Lance Cpl. Daniel Smith on Nov. 1, 2005, was not evidence that she had consensual sex with him.

“Instead, it is evidence that she has already entered into an out-of-court settlement with the convict, the terms of which are only known to Mr. Smith, his counsel and Nicole,” they said.

Salonga and Roque noted that since in this case, the out-of-court settlement was made after the introduction of evidence and after a court finding of guilt beyond reasonable doubt, the sole means to implement the settlement would be to execute an affidavit that would give rise to reasonable doubt.

“This explains why Nicole’s statement did not unequivocally say that she was not raped; only that she now doubts the accuracy of her earlier recollection of events,” they said.

Mere scrap of paper

Salonga and Roque have a pending petition with the Supreme Court questioning the constitutionality of the RP-US Visiting Forces Agreement (VFA), which governs the conduct of American troops in the country.

And since the affidavit was not presented during the 2006 trial and never identified and attested to by Nicole in court, “[it] is a mere scrap of paper,” Salonga and Roque said.

They called on the Court of Appeals, which is now hearing Smith’s appeal, to “treat the alleged recantation as a piece of paper and throw it to where it should be put—the wastebasket.”

Justice Secretary Raul Gonzalez used the same metaphor in saying that Nicole’s sworn statement had no bearing on Smith’s appeal.

“Technically you can even say that it is a mere scrap of paper, unless you will be able to convince the court to reopen the trial for admission of newly discovered evidence,” Gonzalez said.

Under the law on evidence applicable in the Philippines and the United States, an affidavit is hearsay unless the other party is accorded the right to cross-examine the affiant, Salonga and Roque pointed out.

They added: “We question the ethics of Smith’s counsel in obviously negotiating, dealing and preparing an affidavit of recantation for Nicole on the sly and without the participation of Nicole’s counsel, Atty. Evalyn Ursua.

Separate issue

“If only because Smith’s counsel is one of the largest law firms in the country, we would have wanted to see it as a paragon of virtue. We call on the Supreme Court and the Integrated Bar of the Philippines to look into the conduct of this firm and ensure that the legal profession is insulated from similar deplorable conduct in the future.”

The lawyers said their petition involving the VFA was not affected by Nicole’s act.

They said they would not “begrudge” Nicole for entering into an out-of-court settlement because it was “her prerogative as an offended party.”

But they stressed that they had filed the petition as “separate and distinct from Nicole in our capacity as citizens suing to impugn an agreement that violates our Constitution.”

“When this case was scheduled by the high court for oral arguments, Nicole was not a party to the case and was not notified of the oral arguments,” they said, adding that upon their suggestion, Ursua had asked the high court for permission to take part in the case.

According to Salonga and Roque, the VFA is not a treaty that, pursuant to the language of the 1987 Constitution, can serve as basis for the stationing of US troops in the country.

“The VFA seeks to reestablish the presence of US troops in the country, contrary to the rejection by the Philippine Senate in 1992 of proposals then to extend the [RP-US] Military Bases Agreement. The VFA seeks to accomplish precisely what the Senate, under [Salonga’s] leadership, has already rejected,” they said, adding:


“The lessons learned from the case of Nicole is very clear: Unless abrogated, the VFA treats Filipinos as second-class citizens in their own country.”

Sen. Loren Legarda also said Nicole’s affidavit did not in any way weaken the correctness of the campaign for the abrogation of the VFA.

“Whether or not Smith is eventually acquitted by the higher court, the incident has already proved that the VFA provides unequal treatment of Filipino and American soldiers, in favor of the latter,” Legarda said.

But Gonzalez said Nicole could be held “liable for perjury and false testimony in court” because of her sworn statement.

“The penalty for this is very strong—prision mayor or reclusion perpetua (or from 20 years up to 40 years in jail),” he said.

State Prosecutor Hazel Decena-Valdez, one of the public prosecutors that handled Nicole’s case at the Makati Regional Trial Court, expressed dismay that she would take back her allegations after lawyers spent long hours to see her case through.

“But as far as the appeal is concerned. I’m not bothered,” Valdez said. “The evidence is already there. What transpired during the trial would be the basis [of the appellate court’s deliberations].”

‘Meaty portions’

Gonzalez, however, said the Court of Appeals’ taking “judicial cognizance” of Nicole’s sworn statement might become a factor in the pending case.

“That is how that sworn statement might come into play,” he said.

According to Gonzalez, Nicole and lawyer Minerva Ambrosio sought an audience with him at the start of the case and asked that certain “meaty portions” of her initial affidavit accusing Smith and four other US soldiers of rape be stricken out.

“Maybe if that thing was pursued before, or if I had given audience to Nicole and her lawyer Ambrosio, this would never have gone to court,” he said.

‘Taken for a ride’

Gonzalez said Nicole had “created a lot of problems for us.”

“I am dismayed. It appears to me that we have been taken for a ride in this case. So many problems have been created by this. The foreign policy has been affected ... It has split public opinion,” he said.

Valdez said public prosecutors had spent much time on the case, to the neglect of their respective families and other cases they were handling at the Department of Justice.

“I had no social life. I had no family life,” she said.

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