US marine convicted in Subic rape; 3 others acquitted
By Tetch Torres
Last updated 07:12pm (Mla time) 12/04/2006
ONE of four US Marines accused of raping a Filipina in Subic last year was found guilty while three others were acquitted by a local court Monday.
Lance Corporal Daniel Smith, 21, from St. Louis in Missouri, faces up to 40 years in prison following the verdict handed down by Judge Benjamin Pozon of Branch 139 of the Makati regional trial court (RTC).
He was also ordered to pay P50,000 in compensatory and P50,000 in moral damages.
Meanwhile, the court acquitted Lance Corporals Keith Silkwood and Dominic Duplantis and Staff Sergeant Chad Carpentier for lack of evidence.
Pozon ruled on the case 23 days before the one-year deadline under the Visiting Forces Agreement to finish the case or return the Marines to US jurisdiction would have expired.
“Nicole,” a court-appointed pseudonym, had accused Smith of raping her at the Subic Bay Freeport on Nov. 1, 2005 while the other three allegedly cheered him on.
Smith had claimed that the sex act was “consensual.” Instead, he became the first American soldier to be convicted of wrongdoing since the Philippine Senate ordered US bases shut down in the early 1990s and joint training was established under a treaty, the Visiting Forces Agreement, in 1998.
Attorney Ricardo Diaz, Smith’s lawyer, appealed to the court that his client be allowed to remain in the custody of the US embassy while his case was being appealed but Judge Pozon denied the lawyer’s motion twice.
“Rape as a harrowing experience is not remembered in detail. It casts a stigma upon the victim. Rape is a grave physical violation and it subjects the woman’s honor to scorn,” said the lengthy verdict, read by a court employee as the proceedings were televised live nationwide.
In his ruling, Pozon gave credence to the testimony of Gerald Muyot, the security guard from Neptune Bar who had witnessed Smith carry “Nicole” on his back out of the bar.
The court also took note of the testimony of Joseph Khonghun, who saw Smith and Silkwood unloading “Nicole” out of the van to the Alava pier where they left her.
“This court has no reason to doubt the foregoing testimonies of said witnesses…Evidence clearly showed accused Smith took advantage of the intoxication of the complainant in perpetrating the subject felony. So, even though there was no direct evidence to show that the crime of rape was committed, the circumstantial evidence shows otherwise,” the court said.
It noted that:
• He was the one who danced last with Nicole;
• He brought the complainant out of the bar on his back;
• He loaded the complainant to the van;
• He occupied the backseat of the van with the complainant;
• He was the one on top of the complainant while inside the van;
• He admitted having carnal knowledge of the complainant;
• Smith, together with Silkwood carried the complainant out of the van;
• The complainant felt pain in her private part;
• Realizing that she was raped, “Nicole” tried to look for Smith at the bar;
• The complainant revealed the sexual assault although not immediately to the guard at the Neptune Bar, to her sister Anna Franco, the doctor who examined her;
• Examination of the complainant showed that she suffered contusions consistent with sexual assault;
• The complainant’s vagina elicited unusual tenderness upon examination;
• Her underwear had seminal stain;
• The condom also had seminal stain;
• The seminal stain from the underwear and condom were confirmed to match Smith’s DNA.
“All these taken into account, the Court is morally convinced that Smith committed the crime charged. He admitted having sexual intercourse with the complainant whom he knew was intoxicated…thus she could not have consented on the bestial acts of the accused,” the court said.
“Thus, a severe penalty is meted out by this state, as parens patriae [father of his country] on this advert crime, to protect the women against the bestiality of persons who cannot control their libidos,” it said.
“The prosecution having presented sufficient evidence against Smith, also from the US Marine Corps, this court hereby finds him guilty beyond reasonable doubt in the crime of Rape and hereby sentences him to suffer him of reclusion perpetua…Pursuant to the Visiting Forces Agreement, accused Smith shall serve his sentence in the facilities hereafter agreed upon by the US and Philippine government. Pending agreement, Smith is hereby temporarily admitted to the Makati city jail,” the court ruled.
As for Carpentier, Silkwood, and Duplantis, the court said they could not be held as principal via indispensable cooperation, accessories, or accomplices.
“The act of Smith can be committed without the acts of Carpentier. Besides he did know of Smith’s plan. For Silkwood, the prosecution failed to present evidence that he knew what was happening at the backseat of the van,” the court ruled.
“While there was evidence that someone was uttering “f—, f—…coming, coming” there was no sufficient proof who said those words,” the court added.
“In so far as Duplantis, he did not perform separate act that could induce Smith in committing the crime subject of this case. He did not perform any act within which could lead to Smith performing such act committed to this case. He may be the one who uttered the words “f—, f—” and “coming, coming” but there was no direct evidence that he said those words. He did nothing but sit inside the van and perhaps watch what Smith was doing,” the court said.
“Likewise accused Carpentier, Silkwood, and Duplantis cannot be considered as accomplices of accused Smith for they do not know beforehand the carnal knowledge of Smith. There was no showing that they cooperated with the plan of smith,” the court said.
The court added that the three accused could not also be considered as accessories for they did not profit in the commission of the crime or tried to conceal the evidence of the crime.
“Wherefore, premises considered, due to the failure of prosecution to present evidence, Staff Sergeant Chad Carpentier, Lance Corporals Keith Silkwood and Dominic Duplantis, all of the US Marine Corps are hereby acquitted of the crime charge,” the court said.
From the court, the three had been ordered immediately released.
Some cheers and applause broke out in the courtroom, and “Nicole” began weeping as supporters embraced her.
“Thank God,” she said, as her supporters, shouting, “Jail all the rapists…Huwag palabasin ‘yang mga yan [Don't let them out],” tried to block the four Americans who were escorted out of the courtroom.
Smith, wearing a grey suit and trying to keep a poker face, tried to evade “Nicole’s” supporters by sneaking past the three other servicemen.
Security personnel deployed by the US embassy shoved “Nicole’s” supporters aside as Makati police moved in to prevent the confrontation from escalating. The American security men then surrounded the four Marines and whisked them out of the courtroom.
Television footage however showed Carpentier emerging from the court straightening his tie, which a supporter of “Nicole” had apparently succeeded in grabbing.
In a separate interview on GMA Network’s QTV-11, “Nicole” said she was “happy” with the verdict.
She also praised Pozon for ordering Smith to be sent to the Makati City Jail instead of handing him back to American custody.
When asked whether she could forgive Smith, “Nicole” was uncertain, simply saying, “God is good.”
It was unclear whether Smith would serve the sentence in the Philippines or elsewhere. He also could appeal the verdict.
The other Marines backed up Smith’s testimony, denying any wrongdoing, and were freed.
About 100 protesters gathered outside the courthouse, chanting and singing “Bayan Ko” — “My Country” — a popular nationalist song. They waved a banner that read “Justice for Nicole, justice for our nation. Scrap VFA.”
As a van dropped the Americans off and they were escorted by 50 helmeted riot police toward the court, members of women’s group came up from behind yelling, “Convict, convict! Justice, justice!” as they raised anti-US posters.
Evalyn Ursua, lawyer for the alleged victim, said acquittals could only be challenged under “exceptional circumstances” under Philippine law.
“Generally, an acquittal results in a final judgment,” Ursua said.
The four Americans had just taken part in joint military exercises.
Diaz said earlier in the day that his client would appeal a guilty verdict.
The four-month trial, which ended on October 5, unleashed a wave of anti-American protests and demonstrations outside the US embassy and around Manila.
It led to calls from the opposition for the abolition of the VFA.
While the agreement protects soldiers from prosecution during exercises, it is less specific when it comes to crimes committed while on leave.
One controversial provision allowed the US embassy here, instead of the local police, to have custody of the four defendants during the trial, which adjourned in early October.
Ursua said she would immediately ask the court to transfer custody of the defendants to Philippine authorities in case of a guilty verdict.
Not since the 1960s has a criminal case involving US servicemen created so much bitterness and anti-American feeling than what is popularly referred to as the Subic Bay rape case.
For many it has revived memories of the “ugly American” when US servicemen stationed in the Philippines were frequently accused of bad behavior and, it is claimed, literally got away with murder in some cases.
Filipinos have long been accustomed to the presence of US troops in their country.
There were some 20,000 US servicemen at Subic Naval Base, then the repair and supply yard of the Japan-based US Seventh Fleet, and the Clark Air Base, home of the 13th US Air Force, before they and a handful of smaller facilities were handed over to the Philippines in 1992.
Washington installed the bases shortly after winning control of the Philippines from Spain in the Spanish-American War of 1898.
The Philippines won independence in 1946 and a year later the US signed a military bases agreement with its former colony allowing US forces use of Subic, Clark and 19 other smaller facilities for 99 years.
With reports from Thea Alberto, INQ7.net; Tess Cerojano, AP; GMA Network