I could not find the Inquirer editorial mentioned in the preceding post online, so I looked for it in the newspaper’s (internal) digital archives. The editorial was published on April 27, 2009.
IT IS TEMPTING TO DESCRIBE THE DECISION OF the Court of Appeals acquitting Lance Cpl. Daniel Smith of the crime of rape, promulgated by the all-female 11th special division, as the revenge of the manangs. The decision certainly seems to have been written by a conspiracy of spinsters, in vigorous denial of reality, and sustained by fantasies of chivalry (in favor of the American serviceman) and chastity (against the woman we all call “Nicole”).
“This court finds [as] deceptively posturing Nicole’s portrayal of herself as a demure provinciana lass,” the CA ruled, contrary to the unflattering characterization, sometimes using colors supplied by the victim herself, that the trial painted of flirty, hard-drinking Nicole. “On hindsight, we see this protestation of decency as a protective shield against her own indecorous behavior.”
You can almost visualize the three (married) justices crinkling their noses, at the effrontery of an indecent woman protesting rape. After all, only decorously behaved women can be raped, right? And what happened in Subic was merely the “unfolding of a spontaneous, unplanned romantic episode.”
It would be tempting to mock the justices, especially because this approach allows us to point to the ludicrousness of some of the assumptions that went into the decision. Can’t a brazen city girl (to propose an alternative to the special division’s unfair description) fall victim to rape too?
But the prudery behind the decision masks a deeper flaw. The ruling pushes the jurisprudence on rape back to the 20th century; after all this time, the special division still understands rape as essentially a private crime, as a crime against chastity.
This, truly, is unfortunate. We assail the CA’s reasoning, but we really have no quarrel with the judiciary’s role in the resolution of the Subic rape case. By and large, it did its part in the administration of justice—which is far more than you could say about the Executive, which served as either lawyer to or co-dependent of the Americans. We are deeply disturbed, however, that the acquittal is based on grounds that overturn a decade’s worth of gains in women’s rights.
A key passage (crucial, but not the most offensive) in the CA’s decision reads thus: “No evidence was introduced to show force, threat and intimidation applied by the accused [Smith] upon Nicole, even as the prosecution vainly tried to highlight her supposed intoxication and alleged unconsciousness at the time of the sexual act.”
This finding suggests that only the presence of force, threat or intimidation can affect a woman’s capacity to give consent to sex; it also intimates that women of “audacity and reckless abandon” (the language of the CA’s special division, describing Nicole’s behavior) cannot ever plead that their capacity for consent has been compromised.
The finding negates the breakthrough made in the original ruling of Makati Regional Trial Court Judge Benjamin Pozon, which emphasized that intoxication can rob a woman of the capacity to give consent. Pozon’s emphasis is in accord with the liberalizing tendency that led to the (hard-fought) victory in Congress redefining rape as a crime against persons—and is in keeping with the trend in law that grants greater recognition to the dignity of women.
The special division took issue with the RTC’s assertion that Nicole was too drunk to give her consent—“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.” This blithe and too-pat assumption runs counter to the eyewitness accounts heard in the trial court, about Smith carrying a woman on his back to the van, and about an almost unconscious woman being dumped outside the van (after the “romantic” deed was done). Worst of all, the decision trivializes the “No” of the drunk Nicole. “Resistance by words of mouth [sic] does not suffice to establish that she indeed did not give her consent to the sexual intercourse,” the court said.
What did they expect? A memo?