The image above is the interior of a Starex van where, according to the three-woman panel of a special division of the Court of Appeals, US Marine Daniel Smith and Nicole (a fictitious name for privacy protection) consummated their “unplanned, spontaneous romantic episode” having been “carried away by their passions and stirred up by the urgency of the moment.” The romance was not supposed to be secret or private; there were four other persons present including the driver, all strangers to Nicole, when it took place in the back seat of the van.
It used to be, one may recall, that GI Joe could get away with shooting Filipinos on the prowl or scavenging at Subic simply by claiming that the poor victims have been mistaken for a wild boar. Well, now, if a “demure provinciana lass” dared “going to Subic from far away Zamboanga” with “two American friends” she met only three months ago, had a drink too many at a bar and there gyrated like Ann Margaret or Jodie Foster, would it seem alright to mistake her for a wild whore?
Nicole, a victim of a rape, according to the lower court that tried the case, got a worse treatment. She was, sorry to say, regarded like both – i.e., a swine and a whore. This is because the reviewing court reversed the decision of the trial court, ignoring in effect the vantage position of the hearing judge of actually having observed up-close the demeanor of those whose testimonies he heard, meaning the victim’s, the rapist’s and other witnesses’. Blaming the victim instead based primarily on the cold transcript of the hearing, the appeals court held: she brought (the reality) upon herself, thereby acquitting the accused “on reasonable ground.”
The pertinent facts are not complicated. 22-year old Nicole a management accounting graduate of Jesuit-run school in southern Philippines accepted the invitation of two American friends for a paid-for (except for the plane fare) three-day getaway. Destination was Subic, a former US naval base in the Philippines. So off went Nicole and her step-sister to Subic “to enjoy” – island-hopping, sailing, horseback-riding, gambling, drinking and dancing. But what had started as “euphoric self-indulgence” (the description is in the appellate court’s decision) ended up in a tragedy. Nicole found herself dumped on a curb with her pants still down after being “raped” inside the van by a young US Marine, 20-year old Smith, in the presence of three other marines and a Filipino driver. Smith claimed there was no rape because he asked Nicole, albeit jokingly, if he could have sex with her in the van and Nicole said “yes.” So they had sex at the farthest back seat of the van with Nicole’s legs hanging up and spread out, and Smith’s drunken buddies in the front seats, playful and amused. Nicole had no recollection if she was indeed rape. But she remembered that while she was lying on her back feeling very dizzy and drunk (she did not specify whether she was lying inside a van or someplace else) Smith was on top of her kissing her lips and neck and kissing and touching her breast. She had further some recollection that she warded off Smith’s advances while hearing music being played and other people around laughing.
When Nicole regained consciousness, she remembered trying to fix her pants on noticing that the zipper was at the back instead of being in front (meaning the front part of her pants was at the back).
Prior to the sexual episode in the van, Nicole had had the following hard alcoholic drinks in Neptune Club:
Vodka Sprite (three glasses)
B-52
Singapore Sling (half-glass)
B-53
Long Island Iced Tea
Half a pitcher of Bullfrog (a pitcher is equivalent to six glasses)
The bartender who was called to testify explained that all those drinks would in sum include a mixture of shots of vodka, coffee liquor, Irish whiskey, rum, cognac, gin, cherry brandy, and tequila.
An expert witness (Dr. Kenneth Go, an internist, clinical pharmacologist and toxicologist) testified that based on the alcohol consumed by Nicole, her blood alcohol content (BAC) could be estimated at 445.2 mg. At that BAC, Nicole would not be able to board a vehicle by herself, defend, resist or move voluntarily, and make a sound decision in response to a danger, or give consent to any sexual contact and it would be normal for her not to remember what happened.
Dr. Teresita Sanchez, a prosecution expert witness, confirmed a medical fact that a person with a blood alcohol content of 400 to 500 mg could even go into a coma or die.
The testimony of the Medico Legal Officer (Dr. Rolando Marfil Ortiz II) is to the effect that the vaginal contusions sustained by Nicole on the labia minora are consistent with non-consensual sex although the same contusions could be probable in consensual sex when there’s brutal sexual behavior.
Dr. Raquel Fortun, a forensic pathologist, testified on the medico legal report of Dr. Ortiz that the contusions on the arms and forearms of Nicole could have been sustained within a day or two prior to the examination and probably caused by fingertips pressure, that the contusions on both sides of the labia minora could have been the result of the forcible penetration of the opening of the vagina by an erect penis and that genital injuries are unusual in normal consensual intercourse while the same injuries are consistent in non-consensual sex.
To support his claim that the sexual intercourse he had with Nicole on the back seat of the van was consensual, Daniel Smith testified that Nicole even assisted him by holding his penis while he was putting on the condom. Smith denied an investigation report (by the NCIS) where he was quoted as answering that the other marines were cheering him while he was having sex with Nicole. At least two of the marines in the van, Silkwood and Duplantis, admitted watching Smith and Nicole having sex.
The appellate court, obviously setting a higher bar to hurdle in establishing the essential element in rape of force and intimidation, concluded that there was no force or intimidation employed by Smith upon Nicole because “she never alleged that appellant had any sort of weapon with him that made her fear for her life, neither did he inflict any physical harm on her nor did he threaten to take her life or any of her relatives if he did not have sex with him.”
Moreover, while the appellate court correctly noted that Smith has been charged with rape for allegedly having sexual intercourse with Nicole through “force, and intimidation, with abuse of superior strength and taking advantage of intoxication of the victim x x x,” it however agreed with the claim of Smith that admitting evidence showing Nicole was unconscious at the time of the supposed rape would constitute violation of due process since such a mode of commission was not alleged in the information and therefore the absence of that allegation would not afford Smith the right to be informed of the nature and cause of the accusation against him.
In the first place, by introducing evidence to refute the prosecution’s proof of unconsciousness, the defense must be deemed to have waived this right because by doing so it shows that the accused has been properly informed of the nature and cause of the charges against him. In the second place, the Rules of Court (Rule 119, Sec. 19) provides: “When it becomes manifest at any time before judgment that a mistake has been made in charging the proper offense and the accused cannot be convicted of the offense charged or any other offense necessarily included therein, the accused shall not be discharged if there appears good cause to detain him. In such case, the court shall commit the accused to answer for the proper offense and dismiss the original case upon the filing of the proper information.”
Why did the appellate court not avail of this remedy instead of finding Smith not guilty “on reasonable ground” and ordering his immediate release? Your political guess is as good as mine. But I will refrain from going into this matter for now.
On the other hand, the evidence that the victim did not willingly or voluntarily- not to mention passionately- give her consent to having sex with the accused is mounting. Unfortunately, the appellate court proceeded to ignore the established facts corroborated by various testimonies of witnesses who had no reason to perjure themselves that Nicole was seen staggering (pasuray-suray) at Neptune club (Neptune security guards Corpuz and Guyot); her head was dangling and limp(nakalungayngay) while being carried by Smith on the way to the van (Guyot); she was loaded into the van (Guyot); she was unloaded from the van by U.S. servicemen “like a pig” and she could not remember where she came from(businessman Joseph Khounghun); she looked like wilted vegetable (lantang gulay) while her underwear exposed when she was found on the street (SBMA bike patrol officer Paule); at the hospital she still could not remember anything (US Navy serviceman Mills); she was languid or very weak and smelling of alcohol (lupaypay at amoy alak) (SBMA IIO investigator). All these testimonies about Nicole’s state of intoxication seemed meaningless to the appellate court simply because Nicole did not “drop on the floor” while dancing and hence, the court speculated: “her claim that she was unconscious rings hollow, delusive and untrue.”
What’s more, the appellate court also demanded more of Nicole in resisting the sexual advances of Smith inside the van than by merely pushing him away which appeared to the court as “token resistance” and “done not in good faith.” These are the exact words of the court on this score: “Instinctively, she could have also cried out to the driver, a Filipino, for help. Resistance by words of mouth does not suffice to establish that she indeed did not give her consent to the sexual intercourse, but it must be by an act done in good faith and not through a mere pretense or token resistance under the circumstance. A woman has means to protect herself: she is equipped to interpose effective obstacles, by means of her hands, and nails, her limbs or her pelvic muscles.”
The appellate court found that Smith’s version of the incident to be “straight-forward” and Nicole’s “dubiously fanciful” and “contrary to the experience of ordinary man.”
I like the perspective of this blog which legislators should probably look into in formulating a new definitional policy on consent to guard rape victims against the social and moral values of judges: “x x x if we need to draw a line between consent and no-consent, then surely it needs to be drawn on the side of caution. And in that case, it means drawing it on the side where we can be sure that consent has been given, not on the side where we enable someone to think that it’s acceptable in some circumstances to coerce another person into sex.”
In the case of Nicole, these questions I believe remain unanswered:
If according the appellate court Nicole was only “malingering” and therefore she was in fact sober and conscious, would someone, given “the experience of ordinary of man” by which the court set its findings and conclusions, reasonably expect Nicole, an unmarried young woman and a college graduate of a reputable school, to have sex willingly, even passionately, with a stranger in a moving van in the presence of more strangers in “drunken laughter”?
If the pretense is true that Nicole actually assisted Smith put on the condom on his penis, shouldn’t she be expected too to have the ability to help herself put up her own pants or at least cover herself properly in public?
If the motive ascribed to Nicole by the appellate court in filing the rape case was “to hit back in the only way she could – to salvage, at least, a vestige of her self-esteem,” and also because someone called her a “bitch,” how could she possibly hope to redeem her self-esteem by being made to undergo a humiliating medico-legal examination of her private parts and other scrutiny and subjected to the arduous process in which she has to recount her tragic experience in detail and where complete strangers (bloggers included) would talk about and argue the innermost sanctum of her privacy and thereby exposed her to untold ridicule?
Does Nicole ever deserve to be presumed uninnocent or one who would be willing to engage in a rather scandalous “romantic episode” in the presence of other men proceeding, as the three women judges would wish to posit, from her supposed “indecorous behavior” and “her audacity and reckless abandon, flirting with Smith and leading him on”?
Come to think of it, who in this whole affair by sheer ordinary experience of man or woman is out of step in the struggle of the Filipina womanhood or has taken ten steps backwards for the progress of women’s rights in general?
Popularity: 1% [?]
Good point Pat… The traditional old view on rape case requires proof of five elements: force and resistance, penetration, no consent, absence of a spousal relationship (the marital exemption), and the state of mind (mens rea). The modern view has led many to abandon the traditional requirements. The modern evolution has a significant feature that abandon the term rape and modify it to use a gender-neutral term such as sexual battery to describe the offense.
In battery , there's a reuirement of "retreat". In this case… who can possibly retreat from sex? the woman or the man? The van is not comfortable to have sex for many women regardless of culture and upbringing. I don't think Nicole volunteered to be in that position unless intoxicated. She has never expected it that way. She was raped and could not possibly RETREAT.
According to global integrity report, the Rule of law in the Philippines is the weakest. It's not REASONABLE for any ordinary pinoy to believe that justice has been served because JUSTICE has never been implemented in the first place. Therefore, any final outcome such as this case cannot be considered ligitimate.
I'm sure DJB will blog about his own argument but it's a no brainer… :)
Applying the case to both old view and modern view, it is still RAPE. Whoever deliberated and explain this case to the three judges did not do a very good job. I feel sorry for many women in this country. No lawyer can protect them. A mere threat of FEAR can be considered "battery " therefore in the modern view , the women in this country are already raped. Battered women have very low self esteem which may affect the whole economy as a whole. Who would protect the children of this country if women have limited rights ?
The decision of the SC was a big mistake.
Quite surprisingly my first comment has vanished. But let me just say thank you Prof. Abe for this post which like a sobering rainshower in the heat of summer.
Have just reread the 71 page CA decision that reversed Smith's conviction "beyond reasonable doubt of the crime of rape."
leytenian, you are correct. By rape being downgraded as mere "battery" women are themselves degraded in the eyes of the law.
ding,
your post (and mine) is at this url:
http://filipinovoices.com/presumption-of-uninnoce...
…and please note the date, "April 1st, 2009 at 7:03 am."
Ding and baycas,
Sorry. I was editing my post when I got this phone call. My attention divided, I accidentally pressed something which locked me out of the edit process. So I deleted the original post (more than once in fact) and reposted this one.
but Abe, i dont understand presumption of uninnocence.
the only thing that happened is that there was not enough evidence to pass the presumption of innocence of the convicted.
are you saying the presumption of innocence means/implies the presumption of uninnocence?
are you then saying we should junk the presumption of innocence?
Gabby D,
It’s a play of words. But I did it explain it by saying that Nicole was cavalierly presumed by the appellate court, strong and sufficient evidence to the contrary notwithstanding, to have been “willing to engage in a rather scandalous ‘romantic episode’ in the presence of other men proceeding . . . from her supposed ‘indecorous behavior’ and ‘her audacity and reckless abandon, flirting with Smith and leading him on’"?
"…strong and sufficient evidence to the contrary notwithstanding…"
but the minimum standard is presumption of innocence, beyond reasonable doubt. Doesnt that mean its not strong nor sufficient evidence? meaning doubt was not completely removed right?
as to the unanswered question:
–> "reasonably expect Nicole, an unmarried young woman and a college graduate of a reputable school, to have sex willingly, even passionately, with a stranger in a moving van… "
isn't the effect of presumption of innocence is to NOT ask the question you ask; but instead ask: why can we reasonably doubt that smith raped nicole? Can we list reasons why we doubt this? any weaknesess in the complainant's story? once you have several answers (doubt) to this question, then you should acquit, right?
these two questions are not the same. thus the results in a trial will be different depending on what kinds of questions you ask. and what kind of 'presumptions'. right?
now, i can certainly understand if you want to say: lets not follow presumption of innocence for rape. Instead, use presumption of guilt. then you can ask the question: "…nicole, an unmarried young woman and a college graduate of a reputable school, to have sex willingly, even passionately, with a stranger in a moving van…"
in fact, i'm sympathetic to this. but first, i need to know whether or not this is in fact what you are saying.
American misbehavior in yesteryears as a background for the recent rape of Nicole is pandering on one’s emotion and bias. It is not acceptable to pin “rape” against Smith by introducing the evidence of past shooting at Subic of Filipinos by Americans because they mistook them for wild boars and now Smith mistook Nicole as a “whore”. I can understand this kind of argument from someone but not from Abe.
I will summarized Abe’s argument. There was rape because Nicole cannot give consent to a sexual liaison because she was too drunk to give consent. The CA’s argument that there was none by taking into account Nicole’s attitude towards Mr. Smith prior to the actual sexual communion.
If Nicole is a graduate of Jesuit-run college with a course of management accounting and accepted a 3-day getaway paid for by two American friends, was she of the belief that these two Americans have to underwrite the cost of this 3-day hideaways because they were on a philanthropic mission?
(please continue reading, the system won't post 4 pars. long comment)
The affidavit Nicole has executed before she left practically admits of the possibility that she could not have been raped by Mr. Smith.
It is possible that Nicole was raped but it was also possible that she wasn’t. No one now can be sure about it now. Between these two possibilities, the CA’s decision is more in accord with the general tenet that in case of doubt, the accused should be acquitted.
Nicely put JCC. I don't live in the Philippines and not a lawyer. I've lived practically all of my life outside the country and my contribution is from an outsider looking in. "Presumption of innocence until proven guilty beyond reasonable doubt" is a p.i.a. but it is a principle on which our justice system is based on. (Western, Judaeo-Christian societies which the Philippines follows.) It can be frustrating, a b…..h to prove.
The issue was rape: an individual committing a horrible crime against another individual. In this case, a woman's right alleged to have been violated. (Women can commit rape too.) But the trial smacked of US v/s Philippines, US Marine versus a Filipina. Not about Nicole, the person, the woman, versus Daniel Smith, not the person, but the Marine, the American.
Even Daniel Smith admitted that this is a horrible crime, and yes sex happened. Unfortunately, the issue of consensual or not consensual sex got overwhelmed by the circus. Now instead of a crime being established, we have two victims.
The reality is (and this is true even among Filipinos I've met there), equal rights do exist between men and women even in sex. Although a man is usually the instigator, from my knowledge, women can be as much an instigator. Sex can happen for the sake of sex, nothing more. In the right places (crusing places) spontaneous combustions do happen, with or without alcohol. And there are more than 99 ways of having sex, even in very tight places like a Starex van. I'm sure some may have tried more imaginative ways of doing it in unsual or tighter places.
Stereotyping Filipinas (virgin or whore) didn't help either. Neither did it help doing the same to a US Marine, (ugly American). There could have been technically a rape, but only maybe. Just like the Philippine media, it was difficult to separate fact from fiction. This is about 2 young foolish people whose raging hormones took over, with regrets not on account of Philippine laws but of the soap opera that became of them. I believe the three lady justices saved the day for the Philippine legal system. They called it as they saw it. Three heads are better than one.
Remember from the movie "Clueless", the law is reason without passion (Aristotle.)
Jab,
Law is reason without passion.. Was also quoted by Mr. McCoy of the Law and Order fame.
Layman-izing it you mean when in doubt don't.
I can accept that, Atty, jcc.
But may I prod you… in your heart of hearts…. do you think Daniel felt Nicole was consensually having sex with him when she was dead drunk?
If he did, going through the account in the case as included in the decision why was unable to shoot his load off.
Why not, you think? Did his conscience pinch him?
How do you know that Suzette was DEAD DRUNK when she had sex with Daniel Smith?
Remember that a Blood Alcohol Content or BAC test was NOT even done on her to determine the level of alcohol in her blood.
Prof. Abe,
After chewing on your post the whole day, here's my revisitation of the issue. Again my gratitude, po.
http://midfield.wordpress.com/2009/05/01/laffaire...
The Lynch Mob is truly inconsolable. But its angst is self-imposed and well-deserved being the just desserts of Rash Judgment. This would not have been so painful if instead you believed that the Presumption of Innocence is preserved until SCoRP renders a Final Sentence of Conviction. The RTC-CA-SCORP are Houses of the Judiciary like the HoR and the Senate are Houses of the Legislature. Convicting the accused of a crime is like passing a Law. It requires three convictions from each tier of the Court system, just like a bill must be approved by each House of Congress. The Presumption of Uninnocence after mere trial conviction by one judge and one court, is as unconstitutional and wrong as "Unicameral Con-Ass"!
Manong Dean (not Daniel),
As you will recall, I had in previous threads bade goodbye to the 'trysters'
But Prof. Abe piqued my interest anew.
I am not regurgitating my position… only reflecting on the fate that has befallen Suzette and Daniel.
They deserve where they are.
As for Danny's load, I am certain he's relieved himself by now. Wika nga rito, sago-sago na. :)
Abe :
The weakness of your blog-entry is contained in this single sentence:
Is it possible that a 20-something Filipina ….
an unmarried young woman and a college graduate of a reputable school, to have sex willingly, even passionately, with a stranger in a moving van . . . . .?
Abe: it is time for you (and apparently, leytenian, too) to wake up to the 21st-century.
hell yeah – the other stranger could be another 20-something college graduate of a reputable school, who will have sex willingly, passionately get it on in a moving van, the kitchen, the floor, the living room, the swimming pool, the patio, the beach, the forest, the elevator, the pantry cabinet, the infirmary, the office.
students from that reputable school call it "GIMIK", "PARTY", "CHILLING OUT", or flat out "GETTING LUCKY" <img src="http://img.photobucket.com/albums/v241/coldpassion/raisedeyebrow.gif">
You may not believe, this, Abe… but it is possible once those hormones kick in for a married 35-year old Filipina from a reputable school with two kids to enjoy sex passionately in a moving van ( … with her work-colleague, her boss or her boss's boss or even her husband's best friend).
But if you start with the assumption that Nicole was raped, then it stands to reason that Nicole , an unmarried young woman and a college graduate of a reputable school did not have sex willingly with Corporal Smith in the starex van.
Ding,
You want me to seek my heart to find evidence of no-consent from Nicole of this tawdry episode. My heart, it is said is a seat of my emotion. You should ask my mind. I can say I have no clue. I was nowhere inside that van. Even if I was there, the "drunken" state of Ms. Nicole would not give me any hint as to whether she was resisting it or enjoying it.
I cannot probe what was in her mind. Besides, my opinion would be immaterial in the light of the acquittal of Mr. Smith. The CA has considered Ms. Nicole's behavior before the "rape" and found that those "foreplay" had lead Mr. Smith on. The RTC looked at the physical evidence (bruises, contusion, etc) as evidence of force and non-consent, but you can also find them as consistent with "rough sex" but not necessarily "rape".
(please continue)
That the encounter at the van and the immediacy of bringing the case to the proper authorities by a Filipina go for Nicole because she would not have subjected herself to this kind of ignominy if she was only faking it. But this is also consistent with premeditated plan to milk Mr. Smith.
(please continue reading)
If this case is tried in America, one possible jury instruction is this: "If there are two possible versions of the incident, one of which will convict and the other will acquit, the jury must acquit under the principle that the guilt must be proven beyond reasonable doubt.
Thanks jcc. Dozed off while waiting for your treasured reply.
As you will recall, Ihad in previous thread bade goodbye to the 'trysters'
But Prof. Abe piqued my interest anew.
I am not regurgitating my position… only reflecting on the fate that has befallen Suzette and Daniel.
They deserve where they are.
As for Danny's load, I am certain he's relieved himself by now. Wika nga rito, sago-sago na. :)
ding, do you think that the media (or pundits) should tell everyone how the justice system works, what kind of evidence is necessary for conviction?
this is especially important in rape, where our sympathies usually lie with the woman, yet because of presumption of innocence, the woman's story is downplayed, criticized, in fact — automatically put into doubted?
this is confusing for many pinoys.
also, we can think about how evidence for rape is collected, what kind of evidence is needed to convict, etc…
Gabe,
Your last point is key. Did you know that is Suzette's case she was examined not by OB-GYNEs but by medical legal experts?
I regard the medico-legal exam presented in this case, specifically the presence and absence of certain injuries on Nicole, akin to a paraffin test – the findings are inconclusive. (The former for sexual assault or not and the latter for firing a gun or not.) Even an OB-Gynecologist’s (defense expert witness Dr. Sanchez on cross-exam) findings will practically have the same findings as the medico-legal expert Dr. Ortiz (and prosecution expert witness Dr. Fortun on cross-exam): injuries and non-injuries which are both seen in vigorous consensual sex and sexual assault. (Please refer to J. Pozon’s cited G.R. 95319 re: absence of physical injuries does not rule out rape.)
As I mentioned, the medico-legal exam is at best only to corroborate other positive pieces of evidence of rape. One thing’s for sure, if perhaps Nicole’s blood sample was tested for a very high alcohol level then the possibility of her being unconscious during the purported sexual assault will not be doubted. Her lapses and inconsistencies may also be explained. The prosecution’s theory of rape is of course strengthened and perhaps eyewitness testimonies favoring Nicole’s intoxication will not be perceived as rehearsed. The toxicologist Dr. Go and the OB-Gynecologist Dr. Sanchez obviously were not in a position to ascertain Nicole’s intoxication.
But why was the medico-legal exam not presented as a whole gamut of A Real Medico-legal Examination (enumerated in a table in the link below). Either it was not done or if done, was carried out haphazardly or…I suspect…the findings didn’t bolster the prosecution’s theory of rape.
http://www.svri.org/medico.pdf
Stop this legal analysis already.
LET’S LOOK AT THE VIOLATION OF NICOLE’S PRIVACY. Why no pekeng-peryodistas advocating for the invistigation and charging of pekeng-peryodistas’ violation of Nicoles privacy!
HA!HA!HA!HA1HA! What’s the use of nitpicking the essence of law when we cannot even protect Nicole’s privacy!
HA!HA!HA!HA!HA!HA!
GET OVER IT BETTYS!!!!!
is that a problem? di ba dapat medico-legal naman?
Reconstructing my lost post…
Having to differentiate by colposcopy vigorous consensual sex from sexual assault is difficult a task even if the incident happened on a bed…more so, in a moving crammed space. Obviously, it leaves doubt…a reasonable one at that.
In the same vein, even an absence of ano-genital injuries will not rule out rape. (*Please see no. 3 in the enumerations below.)
Why include the medico-legal evidence pertaining to the complainant’s vulva, vagina and cervix (as well as her other bodily injuries) in this rape case?
The colposcopic examination (as well as other physical examination) would at best be useful only in the criminal investigation – as a corroborative evidence – but certainly not helpful in the actual prosecution of the case as it is not conclusive of sexual assault or not.
1. There is doubt in the complainant’s testimony due to her inconsistencies.
2. There is doubt in her alleged intoxication. There is even doubt on the trial judge’s accurate reference to a SCoRP decision – G.R. 95319, mainly that the term “intoxication” is nowhere to be found in the document.
3. There is doubt in the medico-legal evidence (on the complainant’s injuries) – vigorous consensual sex or sexual assault? (*Btw, Judge Pozon’s cited G.R. 95319 actually stated “Well settled is the rule that absence of external signs or physical injuries does not negate the commission of the crime of rape. Proof of injuries is not necessary because this is not an essential element of the crime.”)
While alcohol “provokes the desire, (but) it takes away the performance,” as Shakespeare puts it.
Johnson, Phelps and Cottler in 2004 noted that when alcohol users were able to engage in sexual intercourse, orgasm was inhibited or delayed.
Another explanation could be the sudden penile detumescence when the van stopped to pick up passengers. The abrupt restoration of the swollen penis to its normal state may also explain why Smith was unable to remember what happened to the condom – because it practically fell off and become squeezed into Nicole’s panty and skin as the underwear is hurriedly pulled up.
“If he did, going through the account in the case as included in the decision why was unable to shoot his load off.”
- dingg458
While alcohol “provokes the desire, (but) it takes away the performance,” as Shakespeare puts it.
Johnson, Phelps and Cottler in 2004 noted that when alcohol users were able to engage in sexual intercourse, orgasm was inhibited or delayed.
Another explanation could be the sudden penile detumescence when the van stopped to pick up passengers. The abrupt restoration of the swollen penis to its normal state may also explain why Smith was unable to remember what happened to the condom – because it practically fell off and become squeezed into Nicole’s panty and skin as the underwear is hurriedly pulled up.
parang periswel storyang ito ni nicole, ikot ng ikot. kaka-antok, zzzzzzzzzzzzz, hilik, snooooore…..
Justice is not my cup of tea along with politics. Justice is to the powerful. Politics is to the wealthy. The outcome is always IT DEPENDS. I gave up on this subjects long time ago …
We brought the humiliation to ourselves. Nicole knows what she wanted to have: U.S. Green Card Visa. It
was the reason she targeted the Rapist Smith. If she can marry him, she gets a Green Card and will live
in the U.S. Unfortunately, she was raped. But, it turned out, she got the Green Card, anyway.
Can you blame Nicole for planning for her brighter future? Like OFWs, the country cannot offer her a
good future.
Why would some men speak in behalf of women ? Do you guys have hidden vaginas? LOL
As my patience waned infinitesimally due to the ongoing moderation of my post re: possible explanation to Smith’s failed orgasm, I will just request you to read on the effects of alcohol:
http://books.google.com.ph/books?id=2As5NR2_JygC&...
http://www.alcohol.vt.edu/Students/alcoholEffects/brainBody.htm
http://books.google.com.ph/books?id=WA0VxfDm4nQC&...
Baycas,
I won't even consider the failed orgasm as indicative of a "guilt-ridden" interruptus performed by Mr. Smith on forcing herself to an drunken woman. (As Ding had suggested). The opposite could be destructive of this theory too. That Ms. Nicole complained about this encounter as rape for the inability of Mr. Smith to deliver the much awaited payload.
Yup it became what maybe called 'a dry hump', LOL.
@ jcc,
As you will recall, I had in previous thread bade goodbye to the 'trysters'
But Prof. Abe piqued my interest anew.
I am not regurgitating my position… only reflecting on the fate that has befallen Suzette and Daniel.
They deserve where they are.
As for Danny's load, I am certain he's relieved himself by now. Wika nga rito, sago-sago na. :)
ding, i think this is important for people to know how the criminal justice system works. how to separate minds and hearts when judges decide who gets punished or not.
this is especially interesting for rape, which is not objectively determined (as opposed to murder).
its also a great time to think about how evidence for rape is collected, and what KIND of evidence is necessary for conviction. the public should be aware of what a women SHOULD do when she is raped, and what evidence the police SHOULD collect to make sure the "reasonable doubt" hurdle is satisfied.
this is stuff that the media should do, teach people about how the justice system works, instead of just bitching about how unfair things are, or how corrupt people are, etc.
Ding,
You are one guy here at FV who can take an adversarial position and be graceful about it. No rought edges and abrasiveness, only an effort to communicate and to make known your position you feel strongly about. Nobody should can fault you for that but everybody must admire you for that.
i mean no rough edges .. heheheh
I agree JCC, as what should always be the case, the need to disagree without being disagreeable..
This Nicole issue has indeed given us some of the most heated arguments here at FV, but in whatever stand you take, I think the only way to go about it is to just plainly state your case..
As I do you, sir. :)
But, some women (and men) still engage in it – not for the comfort, but for the excitement, the thrill, the possibility of being caught, the kinkiness of it all – it is an orgasm-multiplier.
It doesn't have to be a van either. It can be in the backseat of a sedan, and the oral variations allow for staying in the driver's seat as well (on the freeway at that – remember Pamela Anderson and Tommy Lee), or even in the streets of New Orleans at 3AM in the morning.
It's not about the car – it's about the entire experience – the build-up, the delivery of the payload, the clean-up, and the silly grin on your face ala the Enzyte man.
Abe,
Have you heard about the THRILL of having sex in a moving van or car?
Also, have you heard about the FUN of having rough sex and BDSM for other people?
If not, you are missing out.
Have you? And how was it and can you give us some hints within bounds what’s being missed?
Also, next time, before having the FUN, try consuming first the amount of alcohol Nicole had, and tell us the difference.
Abe,
Do not forget that a Blood Alcohol Content or BAC test was NOT done on Suzette to see the amount of alcohol in her blood.
The level of her intoxication was based on what Suzette and her so-called witnesses said.
I have experienced the thrill of sex inside a car. I have experienced the thrill of rough sex. So don’t knock it until you’ve tried it.
Abe,
Like Buwayahman I have also experienced the thrill of having sex inside a car.
I have also done rough sex and BDSM…
…and you should too.
Abe,
It would seem that the Manang Justices are hipper than you about modern Filipino womanhood.
“Hipper”? Because “on reasonable ground” it’s more acceptable to the lady justices for a "modern" daughter or granddaughter to engage in a passionate sex with a complete stranger inside a vehicle in the presence of drunken buddies than having some fun or “euphoric self-indulgence” with expenses paid for by “friends” of somewhat short acquaintance?
Aren’t we in fact hearing these from the hip and cool judges: Nicole is a cheap slut (because of her “indecorous behavior”) ergo she doesn’t deserve the protection of the law?
Abe,
Suzette had been protected by law no matter what she did and what she does.
Based on the facts and evidence, do you really think that Suzette was raped?
You better read and COMPREHEND the 71-page acquittal of Court of Appeals.
If you could NOT comprehend it, you better go back to comprehension school.
No. They are “hipper” because, unlike you, they accept the possibility that, to use your words, an unmarried young woman and a college graduate of a reputable school, can have sex willingly, even passionately, with a stranger in a moving van in the presence of more strangers in drunken laughter.
Abe,
Consider the entire population of filipina women. You will surely find some proportion of them to belong to every category between “Cheap Slut” and “Mother Theresa”, correct?
But no generalization is possible, I concede that.
And no generalization was done by the Lady Justices. You seem to think they START from a stereotype and derive the notion that Nicole must belong to that class and therefore…etc. But I think this is quite unfair and wrong.
They never called Suzette Nicolas y Sombillon a “cheap slut” even if you interpret their descriptions of her actions as that.
I think the Justices are expected to take the person and circumstances and evidence for exactly what they represent.
They are “hipper” than you because they do not also subscribe to the stereotype that YOU prefer, which is that there are NO Filipinas willing to behave in the way that Suzette behaved.
Dean,
You are still missing the point.
The simple point being driven is that it comports more with “ordinary experience” that a drunken marine will screw a dead drunk woman in front of his drunken buddies than a college-educated lady consenting to being screwed in a moving van by a complete stranger in front or in the open view of his drunken buddies who are themselves complete strangers to her.
Now, tell us what makes the lady justices “hipper” in believing the claim of the drunken marine to be “straight-forward” whereas the account of the “proviciana lass” is nothing but “malingering explanation” and “dubiously fanciful”?
In upholding the drunken marine’s version, the lady justices relied on the following speculations, among other things:
1. “Her going to Subic from far away Zamboanga with her stepsister, allowing two American friends whom they met only about three months earlier (sic) 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.”
2. “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.”
3. “She told the court that after dancing for fifteen minutes or so, he asked her to go out for some fresh air, and that was the last thing she could remember. In other words, ‘when I discovered consciousness, he was already on top of me, kissing me all over even as I was resisting his advances.’ 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 the ordinary experience of man.”
4. “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.”
What’s more, the prosecution testimonies “pasuray-suray” corroborated by disinterested witnesses are deemed by the justices to be “rehearsed” but the identical testimonies of interested witnesses for the accused, “leave that bitch” and “I’m not a bitch,” to establish a lame motive for faking a rape case (i.e., “to salvage, at least, a vestige of self-esteem,” as the court theorized it) are truthful.
Dean, one hip view of the evolving nature of rape (or “outside the square” concept as benignO would probably put it) is shared by leytenian in the very first comment in this thread:
“The traditional old view on rape case requires proof of five elements: force and resistance, penetration, no consent, absence of a spousal relationship (the marital exemption), and the state of mind (mens rea). The modern view has led many to abandon the traditional requirements. The modern evolution has a significant feature that abandons the term rape and modifies it to use a gender-neutral term such as sexual battery to describe the offense.”
Rape, even in the Philippines, is no longer a crime against the chastity of a “demure provinciana lass” (or of the Maria Clara of the ancient). It is now an assault on the personhood of the victim.
Abe,
Was she willing to have sex with Mr. Smith at her lucid moment? If we can deduce that from her earlier liaison with Mr. Smith, why do we have to inquire into what was in her mind during her “comatose” state?
The three manangs have looked at the entire encounter as one long continuous process. If she was willing to have sex earlier, was the sex later in a “drunken” state inconsistent with the earlier frame of mind of Ms. Nicole to have sex with Mr. Smith?… Doubtful?
Yes, that is why Mr. Smith was acquitted.
Let us now go to another related point.
How do you resolve the “affidavit of recantation?”. The firing of Atty. Ursua and her flight to the U.S.?
Apparently Abe, you have not practiced your law in RP. I see the hands of “back-door” operators in this case and for GabbyD’s enlightenment, these back-door operators are lawyers.
In the country there are two types of trial lawyers. Trial lawyers who go to court and try their case in the courtrooms and trial lawyers who tried their case in “chambers” and their kind of practice is known as “chamber-practice”. I call them “backdoor operators”. They lack the skills of argumentation and the suave of courtroom demeanor of true trial lawyer; their skills, if you can call that, are “connections” and “influence”. Most of them are friends or classmates of the judge. Chamber lawyers argue their case with padded envelopes, while courtroom lawyers argue their case with laws and jurisprudence.
But judges/justices have some other good use of these “back-door” operators. Where a court is in a fix, these operators come in handy. This time, the judges/jurists would not make money, but would simply to fix things up. Personally, I do not believe that the three manangs have bartered their souls in this case. Maybe in some other cases outside the “public radar”, but definitely not in this case of Nicole v. Smith.
So how did these operators come into the picture? Scenario: CA found reasonable grounds to acquit Smith but dismissal cannot be made because of the public’s “guilty verdict”. CA called “back-door” operator/s to act as emissary to Nicole and lawyer of Smith. Mission: To settle their case at the backdoor so as to prepare the groundwork for the dismissal of the case. Smith’s lawyer would be elated at this “advance notice of acquittal” and that would give him extra-leverage to milk Smith and come up with settlement money, plus some extras like passport and visa made possible by Smith’s employer, Uncle Sam.
Nicole, notified in advance of this acquittal would be upset. But back-door operators would assuage her by a package of proposal already ironed out with the lawyer of the accused. Operator/s laid out the settlement package: Visa/passport and pocket money but she has fire her lawyer, Atty. Ursua and has to execute an affidavit of recantation. Nicole said: done!
Simple as that. !!!
i’m curious about these backdoor operators. any personal experience about these operatives?
are we saying that unpopular decisions will never be made, except unless smoothed over by these operators?
GabbyD,
You bet, I have known lots of backdoor operators.
Not always. But this is a high-profile case that is out of extraordinary. It was being tied to VFA, and to GMA’s governance. It was being tied then as one of those American disregards to Pinoy lives as nothing but “wild boars” worthy only of being used for target practice at Subic Bay.
Jurists know that hard cases make bad laws.
@jcc
OK. thanks. but regarding the subic rape case, are you sure there was a backdoor operative, or are you theorizing?
i just wanna make sure its one, or the other.
GabbyD,
Consider the disengagement of Atty. Ursua from the case, the execution of the affidavit and the flight to the U.S. These are consistent circumstances to support my analysis of the presence of “back-door” operators. What will the affidavit of recantation prove? Nothing because it has no probative value, the case having been submitted for decision without the affidavit. The obvious reason is to address the guilty verdict of the public. Why was Atty. Ursua fired? Because she was not a court-insider lawyer (back-door operator) whom the court could trust and relay the information that the case had to be dismissed and that she should rather convince her client to agree on a “back-door” settlement.
What is her visa category? Most likely immigrant/student category visa and facilitated by the very embassy that is housing Mr. Smith as a convicted accused.
Read between the lines and be guided by an analysis by one who had been a court regular for 19 years.
GabbyD,
Just like the manangs, jcc is jumping from one conclusion into another (such as: “Apparently Abe, you have not practiced your law in RP”).
Anyway, more than a quarter of a century ago when the law firm that represented Daniel Smith (the largest in the Philippines then and maybe still now I think) interviewed me to be one of their trial lawyers, one of the questions asked by the head of the litigation department was whether it would bother me if I acted as what jcc calls “chamber” practitioners. I said: “Been there, done that.” Although impressed by my candidness, the law firm didn’t like my asking price so I joined another law firm instead.
Many decisions of our courts, the SC not excepted, are shameful because of the influence of these “backdoor operators.” Ultimately, I decided to quit trial practice convinced that our court system is prone to great injustice. So, jcc is not really making up things.
I am sorry about that Abe. You have been analyzing the case from a purely clinical point of view and detached from judicial realities and that somehow throw me off.
Abe,
Who said that Suzette was “dead drunk”?
Daniel said that he knew Suzette was intoxicated.
Daniel did NOT say that Suzette was unconscious.
When Daniel said that Suzette was intoxicated, Judge Pozon then rendered his verdict on Smith that since Suzette was intoxicated, therefore, she was unconscious to give consent to sex.
See the difference?
Remember that a Blood Alcohol Content or BAC test was NOT even done on Suzette to determine the level of alcohol in her blood.
Her level of intoxication was based on what Suzette and her so-called witnesses said.
@jcc
OK. so to clarify your position: you agree with the logic of the CA judges, but had it not been for these operators, it wouldn’t have happened.
so, in this specific case, the actions of these operators were not harmful? coz the CA judges were correct to do what they did…
@ABE
you reach the opposite conclusion? you do NOT agree with the CA judges’ use of presumption of innocence and their standard of evidence?
i think, this is whats not crystal clear from your original post. i understand you don’t agree with the ex-post justification by the CA judges.
but do you agree that the CORRECT thing to do is to raise doubts about nicole’s story?
i think this is a teachable moment, to teach people on how decisions work, and how judges makes these huge decisions. alot of people can get confused so a straightforward explanation of this will help people to use their heads, rather than just their hearts.
On “Speculation” No. 1 and this:
Please remember, in the minds of Zeñarosa et al, the complainant’s not an ordinary demure “provinciana” lass. With the kind of behavior and actuations she displayed, she is capable of doing extraordinary things.
On “Speculation” No. 2:
It’s really unfortunate that the complainant’s purported incapacity to consent was not established by the prosecution. Females have a leaner mass than men, they usually pass out due to drunkenness (of course relative to the BAC and individual’s tolerance).
On “Speculation” No. 3:
If only the complainant’s very high BAC (that could lead to her unconsciousness thereby incapacitating her to consent) was presented then her lapses and inconsistencies can be explained.
On “Speculation” No. 4:
In the minds of the three CA associate justices the complainant was just “natauhan” (and not awaken from an unconscious state) in the end. This is still very much consistent with their doubt on the complainant’s unconsciousness.
What’s more, there is reason to believe that the “subjective” oral testimonies of the prosecution witnesses were rehearsed, as they were not consistent with their “objective” written testimonies. The “disinterested” prosecution witnesses, I think, were no longer disinterested during their oral testimonies because of the pervasive “pinay-vs-kano” public opinion.
The backdoor operators had a hand in the mind-conditioning of Smith’s acquittal. They already floated the idea in September last year and again in March this year.
http://filipinovoices.com/manangs-acquit-rapist/comment-page-1#comment-52997
What they leaked was the unsigned Dizon ponencia with same acquittal verdict.
(In the 71-page final decision, Zeñarosa et al claimed they did not open the sealed 55-page Dizon ponencia.)
I've been dizzily going back an forth between several ongoing threads.
But one indubitable 'fact' emerging is that Daniel admitted knowing Nicole as "dead drunk" when he had "consensual sex with her."
If this is 'unassailed' or if we accept that Nicole was, for all intents and purposes. either 'de facto' unconscious – "dead drunk" — does this not come close to or is somewhat akin to necrophilia?
Nagtatanong lang po.
hey, nakakalito ano?
where did you get these facts? "dead drunk" phrase — the CA decision? pozon?
i think, correct me with the orig decisions, that daniel always said that she had access to her full mental capacity.
i didnt find dead drunk in the CA decision. it shouldn't be in the pozon decision also, but i have not read pozon.
Ding,
Who said that Suzette was “dead drunk”?
Daniel said that he knew Suzette was intoxicated. Daniel did NOT say that Suzette was unconscious.
When Daniel said that Suzette was intoxicated, Judge Pozon then rendered his verdict on Smith that since Suzette was intoxicated, therefore, she was unconscious to give consent to sex.
See the difference?
Remember that a Blood Alcohol Content or BAC test was NOT even done on Suzette to determine the level of alcohol in her blood.
Her level of intoxication was based on what Suzette and her so-called witnesses said.
Meeh,
Ok, ok. perhaps I ‘over drew’.
But may I be allowed to posit this point among the males in the room.If you were with a girl who while not being dead drunk but can no longer return your libidinous advances or clearly doesn’t know where you both are, in a manner of speaking, coming or going, still go through with The Act?
I mean I know how exciting, how much of a ‘conquering ‘ feeling one can have when he ‘does’ it to a ravishingly vavavoom (vision aided by liquor) ‘chick’ inside a car… a van even… but sobra ba tayong ‘mahahayok na lilisanin tayo ng ulirat or sense of what is right and wrong?
Muli, nagtatanong… and una na ang paumanhin ko kung mali o di kayo sang-ayong sa pananaw.
ding, that is the point of contention di ba? we do not know for sure, what her state was at the time, how engaged she was, etc. either side have different stories.
but i certainly understand that having sex ONLY because the two are drunk is unsatisfactory, to say the least.
we want sexual enounters to be meaningful. let say it, we want to make love, not have sex.
you know what i’ve been thinking about, its about young pinoy men and their attitudes towards sex.
i wonder if young pinoy men, rich and poor, want to have meaningful sexual encounters too.
Dami na nga… in the threads… teka hanapin ko….
Must have been a paraphrase…. the reference where Smith mad an admission about Nicole being intoxicated….
Meeh and the rest, reviewing the threads…
Ok, ok. perhaps I ‘over drew’.
But may I be allowed to posit this point among the males in the room.
If you were with a girl who while not being dead drunk but can no longer return your libidinous advances or clearly doesn’t know where you both are, in a manner of speaking, coming or going, still go through with The Act?
Will you be pleased with yourself and have that ‘I conquered’ feeling despite the girl being “lupaypay”?
Wouldn’t you better left jacking off?
No intent to offend any one and if I have or if you violently disagree with my POV, my advance apologies.
Ding,
Suzette was drunk… but Smith was drunk too…
So that just equates the same for them as far as having sex goes…
Suzette MIGHT be too relaxed or “lupaypay” but since Smith was also drunk, both of them probably didn’t really care about anything else other than their libido at the time.
ding:
if you have been given the go-ahead and were already in foreplay, by all means, YES.
it’s not about “i conquered” it’s about “i got laid”, and “getting laid” trumps jacking off.
Diff’rnt strokr for diffrnt folks, hehe.
Nicole’s body is a walking crime scene …. !
Everyone is nnitpicking and scrutinizing this case … WHAT ABOUT HER PRIVAY VIOLATION BY PEKENG-PERYODISTAS ….? HUH?
You people here debate about law and morality … who’s taking the cogwells of her privacy? HUH? HUH?
ZERO! NADA! ZILCH! NYET! NOT ONE PEKENG-IDIOT-PERYODISTAS TALKED ABOUT PEKENG-PERYODISTAS’ VIOLATION OF HER PRIVACY ….
YOU FLIPS ARE SOOOO STUPID!!!! YOUR PRIORITIES ARE UPSIDE DOWN TUPSY TURVY ….
Nicole’s body is a walking crime scene …. !
Everyone is nnitpicking and scrutinizing this case … WHAT ABOUT HER PRIVAY VIOLATION BY PEKENG-PERYODISTAS ….? HUH?
You people here debate about law and morality … who’s taking the cogwells of her privacy? HUH? HUH?
ZERO! NADA! ZILCH! NYET! NOT ONE PEKENG-IDIOT-PERYODISTAS TALKED ABOUT PEKENG-PERYODISTAS’ VIOLATION OF HER PRIVACY ….
YOU FLIPS ARE SOOOO STUPID!!!! YOUR PRIORITIES ARE UPSIDE DOWN TUPSY TURVY ….
Who is fighting for Nicole’s violation of her privacy by pekeng-peryoddistas? WHO? Para kayong dal-dal na dal-dal blah! blah1 blah!
Nicole was a victimee twice … raped and violated! Privcy Violated! And all you guys talk about is finer points of the law!!!!
HA!HA!HA!HA!
HYPOCRITES!!!!!