IN 1997, before he became Chief Justice, Hilario Davide Jr. dissented together with Justice Florenz Regalado in the rape case of People of the Philippines versus Salarza, in which the accused who raped a young British woman was acquitted. Nine years later, the two justices’ dissenting opinion proved to be prophetic, whether Judge Benjamin Pozon of the Regional Trial Court of Makati has read that case or not.
In People versus Salarza, the then Associate Justices Davide and Regalado wrote that when a woman is deprived of reason or is unconscious, she is deemed to have no will. They differed from the majority in their interpretation or construction of the word “unconscious” by stating that “unconscious” cannot be tested by a physical standard only, i.e., whether one is awake or asleep, conscious or alert. The inquiry, the two justices opined, should “determine whether the victim was fully informed of all considerations so as to make a free and informed decision regarding the grant of consent.” Thus, the justices wrote that carnal knowledge with a sleeping woman is rape because the woman is completely unconscious.
In his landmark decision in People vs. Daniel Smith et al., consisting of 60 pages, Judge Benjamin Pozon convicted US Marine Corporal Daniel Smith citing proof of 14 circumstances which, taken together, overturned the constitutional presumption of innocence. Among these are: (1) Smith was the one who danced last with the complainant; (2) he was the one who brought her to the van; (3) he admitted having carnal knowledge with the complainant; (4) Smith and Corporal Keith Silkwood carried complainant out of the van; (5) complainant felt pain in her private parts; (6) complainant revealed the sexual assault to the guard at Neptune Club, to her stepsister, her boyfriend, her mother and the doctor who examined her; (7) her examination revealed contusions on different parts of arms and legs and her labia minora; (8) her panty had Smith’s seminal stains, and so did the condom.
But the final blow is in the following paragraph: “ All these taken into account, the court is morally convinced that accused Corporal Daniel Smith committed the crime charged. He admitted sexual intercourse with complainant whom he knew was intoxicated and rendered unconscious by the accumulated effects of the different alcoholic drinks she has taken in succession at the time of the felony. She could not have consented to the bestial act of the accused.”
With that, Judge Pozon ordered that Daniel Smith be imprisoned in the Makati City Jail until the governments of the United States and the Philippines have an agreement as to his place of detention pending appeal. Faster than the speed of light, the other three co-accused of Smith flew out of the country.
While there may have been no proof of conspiracy (that all the accused planned and acted concertedly in the rape), I disagree with the decision that the other three had no liability at all. At the least, their highest-ranking officer, Staff Sergeant Chad Carpentier, should have been liable for damages, for he knew that there was a Filipino woman at the back of the van with whom Smith was having sexual contact (he said he believed it was consensual) yet he did not investigate or ask Smith any question. He testified that he thought she was a commercial sex worker, but his belief, which showed that he assumed that all Filipinas in Subic were sex workers, cannot get him off the hook because he had the duty to “investigate” what was going on at the back of the van. He had a duty to do something to ensure that his ward was not breaking the law, and that he failed to do. That he was focused on reaching their ship before curfew was a lame excuse. He knew what Smith was doing, and yet he presumed that it was a normal thing for his soldier to do?
I remember the movie “The Accused” starring Jodie Foster, who played a woman who was raped on a billiard table while many other men stood around, clapped and cheered. That movie was based on a true story in the United States. The judge convicted the rapist, but slapped civil liability (damages) to all the men who were present, who cheered the rapist on or did nothing. In our jurisdiction, in the case of People vs. Ritter, which was decided before Republic Act No. 7610 (Anti-Child Abuse Act) was passed, the Supreme Court acquitted a foreigner who was accused of raping a prostituted child who died from an infection caused by a vibrator that was left inside her private parts. However, the Supreme Court ruled that the accused was liable for damages because he admitted having contact with a prostituted child.
Nevertheless, the decision of Judge Benjamin Pozon deserves our congratulations, for he appreciated the proof of 14 pieces of circumstantial evidence as sufficient to convict Smith beyond reasonable doubt, knowing that in rape, there are often no eyewitnesses. In this case, the other people present in the van were co-accused of Smith who naturally would stick to Smith’s story to save their skin.
Judge Benjamin Pozon’s decision also struck down myths about rape such as, that only “good women” could be raped, or that it was not rape because Nicole danced and drank with Smith and that she was “asking for it.” Instead of blaming the victim, Judge Pozon took Smith to task for the rape precisely because he knew that Nicole was very drunk and unconscious and Smith took advantage of that. The Supreme Court has ruled in many decisions that even sweethearts could be raped (People vs. Ylanan, penned by Justice Leo A. Quisumbing in 202). Even prostituted women could be raped. Even wives could be raped by their husbands (Republic Act No. 8353 on marital rape, and the decision of Judge Anthony Santos of the Regional Trial Court of Cagayan de Oro City). Certainly, a woman who is unconscious because she was intoxicated, could not have given her free will and informed consent.
Judge Benjamin Pozon did not cite Chief Justice Hilario G. Davide, Jr.’s and Justice Florenz Regalado’s dissenting opinion in People vs. Salarza, but he has certainly brought it to life. We hope he finds many Justices in the Court of Appeals and the Supreme Court who are of similar minds.

Rowena V. Guanzon is the lead author of “Engendering the Philippine Judiciary” and “The Davide Court.” Both are published by the University of the Philippines Center for Women’s Studies Foundation Inc.

It looks like the women lawyers ‘ wardrobe catch more attention that their competence, and it didn’t help that even the Philippine Daily Inquirer’s front page after the first preliminary investigation was that of the women lawyers, captioned “head turning counsels.” This has trivialized the work of the women lawyers, and gives the impression that they must have spent more time on their faces and wardrobe than studying their case, which is unfair and false.

Such is the extent of the media’s patriarchal mode that a lot of the dailies printed similar photos of the private prosecutors on their front pages. If you think that the w0men lawyers’ good looks are the only thing that makes them different from the defense lawyers, think again. The lead private prosecutors are all from the University of the Philippines. They are also younger than the defense lawyers. They are experienced in prosecuting rape cases. At least one of them topped the Bar. On the defense side, the lawyers are from the Ateneo and other law schools. (repeat this 2x) Oh okay, they are not as good looking as the women lawyers.

The money of course is on the defense. But I would bet my day’s earnings on the private prosecutors anytime.

Most people in Olongapo had enjoyed many years of commercial benefit from American servicemen in the past, and that has numbed their senses. The city’s economy was boosted by the dollars the Americans spent for rest and recreation in bars, clubs and hotels. Anything and everything that the servicemen wanted was for sale, including women’s bodies. Although the US military base has been closed and its facilities dismantled since 1991, Olongapo’s businesses still benefit today from the visiting US servicemen who are in the country for military exercises.

If the officials of Olongapo are slow to react to the rape of a Filipina, it is because of their collective belief that howling a protest is not good for Philippine-US diplomatic relations, which they think they have a duty to protect as host. Another reason is that the woman is not from Olongapo. Still another reason is, in a city where a number of women are sexually prostituted, a charge of rape is viewed with disbelief. If the woman had worked in the bar, everyone, especially her employer, would now be convincing her to withdraw her complaint.

In contrast, the people and the governor of Okinawa were outraged when three American servicemen kidnapped and raped a 12-year-old schoolgirl in 1995. People carried placards that said, “American animals get out of Okinawa!” The governor was outspoken against the US military base, which occupied one-fifth of his province.

All three US servicemen were convicted and served seven years in Okinawa prison. They were Navy Seaman Marcus Gill of Woodville, Texas, Marine Pfc. Rodrico Harp of Griffin, Georgia, and Marine Pfc. Kendrick Ledet of Waycross, Georgia.

The three were immediately arrested before the US authorities arrived, and the governor of Okinawa refused to give them custody. The people of Okinawa followed the case to the end, and many felt that the sentence of seven years was too light.

As if that was not lesson enough for American servicemen, in 2001 Marine Sergeant Woodlands was convicted of raping a 24-year-old Okinawa woman on the hood of a car in a parking building. Woodlands’ defense was that the sexual contact was consensual, but the woman testified that Woodlands grabbed her from behind, and that she banged the hood of the car with both her fists, so how could the accused have not understood her resistance? While on trial, Woodlands was detained in Okinawa.

In both cases in Okinawa, the US did not request for custody of the accused. So why is the US treating our country differently?

Why isn’t the US handing over the Marines and any evidence that they can acquire to the Philippine government as provided for in the Philippine-US Visiting Forces Agreement (VFA)? The undersecretaries of the Department of Foreign Affairs, when asked by Senator Miriam Defensor Santiago, admitted that the US government did not make a formal request of waiver of custody, which is required under the VFA.

Since the Philippine authorities did not make an immediate arrest, and the accused are in US custody, it is now our government that must make a request for a “handover.”

There are many questions unanswered that have bearing not only on the case but also on the implementation and review of the VFA by our officials.

When the Marines were presented to former general Jose Calimlim, vice president of the Subic Bay Metropolitan Authority, did he inform them that a rape complaint had been filed against them and therefore they were under arrest?

Even if the US immediately took custody of the accused, why did not the Philippine government try to make an arrest by going to their commander or the US embassy?

The VFA states that the US can have immediate custody of their men ‘if they so request,” but the Philippines can make known its refusal or position in “extraordinary cases.” The US has no obligation to agree, but how the case will play out depends on how much the US values its relations with the Philippines. If the Americans think our government is a pushover, they will refuse to hand over their men. That is, unless a nationwide protest haunts them and the case becomes an international issue in the US press.

Under our law, a no-warrant arrest could have been done within a reasonable time after the woman filed the complaint. If the US Marines could have been arrested, they would have stayed in the Olongapo jail until their government made a formal request for custody. Then the people would have been satisfied that our officials are protecting our sovereignty and the dignity of Filipinos.

But as you can see, our officials were stymied by the might of a superpower and an ally against terrorism. The “little brown brother” psyche is very hard to shake off, indeed.

Erratum: In my last column I cited People vs. Baygar as the case in which a Caucasian woman was raped and the accused was acquitted. The correct case is People vs. Salarza (1997), in which Chief Justice Hilario Davide Jr. dissented.

From: Steve Phillips
To: Viewpoints
Sent: Thursday, November 17, 2005 1:07 AM
Subject: BETA FEEDBACK Tell it to the U.S. Marines

Name: Steve Phillips
Email: pegasus5112@charter.net
Country Code: 01
Area Code: 817
Number: 427-3166
Address: 5112 St. Croix Ln. Ft. Worth, TX 76137
Story: http://news.inq7.net/viewpoints/index.php?index=2&col=34&story_id=55837
Message: I read Rowena Guanzon’s Nov. 8 article “Tell it to the U.S. Marines” with great interest. While I am not a Filipino, I feel compelled to respond to what threatens to create a misconception in the minds of the readers of that editorial. I am a U.S. citizen, a former service member who has spent much time in the Philippines, the father of two half-Filipino sons, and, as it happens, the 17-year husband of one of Ms. Guanzon’s former classmates. I share Ms. Guanzon’s anger over the brutal rape of the young woman. I share her desire for justice in this case, and I understand her frustration over the Visiting Forces Agreement (VFA). I feel, however, that her article will leave some with the impression that the VFA is in some way the equivalent of diplomatic immunity, which it most certainly is not. Guilty or not, those marines are in very serious trouble. If the facts of the case are indeed what Ms. Guanzon has presented, they are guilty of a very serious crime which has very serious consequences, whether or not they involve any time spent in a Philippine prison. Yes, they are being held by the U.S. embassy, and yes, they will probably receive some type of legal advice and assistance from them should they be subjected to Philippine justice. But my experience with the military tells me that this advice and assistance will be limited to ensuring that they receive a competent defense, which is the principle upon which both the U.S. and the Philippine legal systems are built upon. As an attorney, Ms. Guanzon knows this. The guarantee of competent legal defense, whether or not the accused is guilty, and regardless of the crime they have committed, is a guarantee that protects us all. The VFA is not an agreement that allows U.S. service members carte blanche access to Filipino women or blanket approval to violate Philippine law. The United states has Visiting Forces Agreements with literally dozens of countries. The Philippine VFA merely allows the U.S. military authority to discipline its own, in a situation where they are deployed for the mutual benefit of both countries. The discipline these marines will face will be harsh. Even if the facts of the case aren’t exactly as they have been reported, these marines will face harsh discipline simply for allowing a situation to develop which causes the impression of a lack of respect for Philippine law upon the U.S. military, and the Marines in particular. This whole affair is a disgrace for us. I hope for a swift resolution to this case, a resolution that will result in justice for the young woman at the center of it. Such a resolution will benefit not only her, but it will also benefit a long-standing relationship between two strong allies, the Republic of the Philippines and the United States of America.

Sincerely, Steve Phillips

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Hi Bing,

Thank you for your response. I did some looking around found out, from unofficial sources (http://www.asiaweek.com/asiaweek/96/0322/feat4.html), that the 3 U.S. service members accused of raping a 12 year-old Japanese girl in 1995 were turned over to the Japanese justice system and sentenced to to terms from 6 1/2 to 7 years in Japanese prison. There were also rape cases in 2001 and 2002 involving U.S. service members, and in both cases the accused were turned over to Japanese authorities, even though in one case the victim recanted her story.

—————————————————————————

After re-reading my letter, I don’t think I made it clear that I am not, in principle, opposed to the 5 U.S. marines in the Subic case being turned over to Philippine authorities. I just wanted to make the point that if they are not, it doesn’t mean that they will not face serious discipline. But since the 1995 Okinawa case, it appears the U.S. has shown less reticence to turning over its service members accused of crimes to their host countries.

Steven

First posted 05:27am (Mla time) Nov 15, 2005
By Rowena Guanzon
INQ7.net

WOMEN’S groups, including the Coalition Against Trafficking in Women-Asia Pacific and the Women’s Crisis Center Inc., are keeping a vigilant eye on the rape case filed in Olongapo City by a 22-year-old woman against six US marines. People are watching the progress of this case, which is not, as Senator Dick Gordon said, “an isolated case.”

We cannot view this as just one rape case, because there were previous rape and acts of lasciviousness complaints filed in Ologapo City against US soldiers before this one (but which were probably settled out of court), and this rape case is the first to be filed while the Visiting Forces Agreement is in effect. It will have a bearing in the preparation of the Implementing Rules and Regulations on the Visiting Forces Agreement (VFA), and when the VFA is up for review. Rape should fall under “extraordinary cases” in which the US cannot request a waiver of the primary jurisdiction of the Philippines. In international law, rape, especially in genocide

cases, is a crime against humanity.

I received letters from three American men, and I am quoting them here so we can appreciate that there are American men who are ashamed of what happened and some who blame the victim.

Tom Mather wrote: “I for one am ashamed to my wife, children and my family there in the Philippines that such an act has been perpetrated no matter if she was raped or otherwise. Their failure to act as ambassadors to the Philippines is an embarrassment to me as a former Marine as well as Husband and father to Filipino citizens.”

Jason More, who is engaged to a Filipina, wrote: “I fear that these men thought that they could get away with it, since the Philippines is regarded as a Third World country…. I hope that a message can be sent that just because someone may be poor, it doesnt give anyone the right to abuse the rights and spirit of another person.”

An equally interesting letter is the one sent to me by one who wrote: “As an American, I don’t care who do it, only that they get punished and that it serve as a lesson to all. However, you ask us to have faith in the Philippines justice system. Excuse me? The system that has thousands of cases languishing for years, mostly because corrupt judges are paid off or just too incompetent to get their work done? You want us to just hand the soldiers over to that system?

“I would … if the system were efficient, open and fairly corruption free as in, say, Singapore. But if it’s going to be the Philippines, it should be only when there can be full assurance of a fair trial. Not the silly leftist nonsense coming out of you, Rowena. You only want liberal-leftist hate to be part of this. Instead of really caring about women, you care principally about using the rape case to advance your leftist agenda against the US, our soldier-heroes in Zamboanga, and others. You don’t care about that unfortunate (but very foolish — what was she doing driving off with five drunken strangers at night from a bar?) — woman.”

As you can see, the last, who calls me a “leftist” and urges me to stop all the “emotional nonsense,” probably expresses what some people in the US government believe, and that is that they do not trust that their boys will get a fair trial in our judicial system.

I have to agree, the public perceives that many of our judges are corrupt. But if the writer is correct, who stands to gain from this corrupt system? Is it not the accused US soldiers, who have the dollars to pay? The complainant or her lawyers (and I know the two women lawyers personally) will not bribe the judge, not only because they don’t have the money but also because they won’t.

He also blamed the victim for “driving off with five drunken strangers at night from a bar,” which is what some people, including Filipinos, also say even if they do pity the woman. She did not “drive off” with them, she was taken to the vehicle, and the driver could not tell if she was lucid or not when she was being brought to the vehicle. I have handled three rape cases in which the victims were drunk or had passed out before they were raped.

Just because the woman agreed to have a drink does not mean that those men had license to rape her. Americans surely could not forget that one of their champion boxers was convicted of rape even if the woman agreed to join him in his hotel. The court held that when a woman refuses to have sex and she is forced, that is rape.

It is the same in our jurisdiction, where having carnal knowledge with a woman who is unconscious is likewise rape. Chief Justice Hilario Davide Jr. wrote in his dissenting opinion in People vs. Baygar (1997) that what is essential is that the woman did not have informed consent.

In that 1997 case, a Caucasian woman accused a friend of her boyfriend of raping her while she was asleep. The trial court convicted the accused, but the Supreme Court acquitted him.

In December, the University of the Philippines Center for Women’s Studies, with the support of the United Nations Development Fund for Women, will publish a book for judges that will include a critique of some decisions of the Supreme Court, as well as decisions that are recommended for use by judges. This is part of the Gender Justice Awards project.

Victim blaming in rape and other sexual abuse cases is well and alive not only among our readers and neighbors but also among our judges and prosecutors. It is unfair and wrong to place the burden of proof on the woman to show that she did not invite the rape or that she resisted it. Worse, the “death before dishonor” belief pervades in the minds of many of our judges, which is both archaic and has no basis in law. The Anti-Rape Act of 1997 in fact states that any form or expression of resistance is sufficient to prove that force was used upon the victim.

Being raped is not “emotional nonsense.” All women know that. Unfortunately, many men don’t.

From: Robert Goldman
Date: Tue, 8 Nov 2005 14:53:44 +0800
To: Viewpoints
Subject: BETA FEEDBACK Stop the emotionalistic nonsense, Rowena

Name: Robert Goldman
Email: hlcinc2002@hotmail.com
Country Code: 240
Area Code: 401
Number: 5346
Address: USA
Story: http://news.inq7.net/viewpoints/index.php?index=2_id=55837=34
Message: Oh boy. So sure, so certain, that everybody agrees with your disparaging comments on President Bush, and on the soldiers fighting Muslim child killers (and rapists — remember Gracie Burnham’s book?) in Zamboanga. Everyone condemns rape. And you cannot find an American with an ounce of common sense will will say that a rapist should be let off the hook. If any of those Marines are found guilty,let them be punished. As an American, I don’t care who does it, only that they get punished and that it serve as a lesson to all. However, you ask us to have faith in the Philippines justice system. Excuse me? The system that has thousands of cases languishing for years, mostly because corrupt judges are paid off or just too incompetent to get their work done? You want us to just hand the soldiers over to that system? I would do it… if the system were efficient, open and fairly corruption free as in, say Singapore. But if its going to be the Philippines. it should only be when there can be full assurance of a fair trial. Not the silly Leftist nonsense coming out of you, Rowena. You only want liberal-leftist hate to be part of this. Instead of really caring about women, you care principally about using the rape case to advance your Leftist agenda against the US, our soldier-heroes in Zamboanga, and others. You don’t care about that unfortunate (but very foolish — what was she doing driving off with five drunken strangers at night from a bar?) — woman. You don’t care about her. You care about YOU and your Left-wing politics. I am sure most people can see through it though. Rape is horrible. But those who try to piggy-back their political trash on top of a rape? Far worse. Ugh…

Re: Tell it to the (US) Marines in INQ7 Nov. 8, 2005

Rowena,

My point wasn’t that they would just loose their jobs but the fact is the rest of their lives are ruined guilty or not.

I agree if the evidence supports that the young lady was indeed raped. They will be tried. I have seen in the past Marines on deployment accused and found guilty of such crimes will also be tried in the Military court system. A double jeapordy of sorts but that is part of being a United States Marine and crossing the line. I have also seen the convicted offender be remanded to the Host country’s custody after being found guilty in that country and after the Military finished their adjudication.

I also know is that these Marines face a host of other charges that are also punishable in a military court system even if they are found not guilty of rape. Those Marines knew the consequences of not boarding the ship at the request of the local authorities, they also knew the consequences of all their other actions like conduct unbecoming, drunk in public and the list goes on. The United States Marine Corps does not condone or allow such a heinous crime go unpunished.

I for one am ashamed to my wife, children and my family there in the Philippines that such an act has been perpetrated no matter if she was raped or otherwise. Their failure to act as ambassadors to the Philippines is an embarrasment to me as a former Marine as well as Husband and father to Filipino citizens.

Tom