'Nicole' a scapegoat to save VFA -- lawmaker

Posted at 03/18/2009 4:06 PM | Updated as of 03/19/2009 10:25 AM

Lawmakers on Wednesday expressed shock over the recantation of Subic rape victim "Nicole", with one party-list congresswoman saying that the young Filipina would be used as a scapegoat to save a controversial defense treaty between the Philippines and the United States.

Gabriela party-list Rep. Liza Maza said she personally believes that Nicole was raped by Lance Corporal Daniel Smith in November 2005. "She talked to us personally asking for help, saying that a rape happened and that Daniel Smith should pay," Maza said in an ANC interview.

Maza said Nicole’s recantation is meant to create the atmosphere that would ultimately lead to the dismissal of the case against Smith.

"Nicole will also be made into a scapegoat instead of placing the blame on the lopsided Visiting Forces Agreement," she added.

Various parties have pointed to the Subic rape case as a reason to modify or abrogate the controversial RP-US mutual defense treaty. Under the provisions of the treaty, US servicemen found guilty of violating Philippine laws would still be remanded to the custody of US authorities.

Smith, 25, was convicted to 40 years in prison in December 2006 of raping the young Filipina at the back of a van in the company of fellow US marines in November 2005. He has stayed at the US Embassy in Manila while his case is on appeal.

On Tuesday Nicole recanted her testimony and said she doubted her previous recollection that Smith had forced himself on her against her will.

"I kept on asking myself: If Daniel Smith wanted to rape me, why would he carry me out of the ... club using the main entrance in full view of the security guards and other customers?" Nicole's statement read.

She added: "I was scared of losing not only my American boyfriend but the chance of living in the United States."

Nicole's mother said she has fired their lawyer, Evalyn Ursua, and received P100,000 in compensatory damages from Smith's lawyers.

She said her daughter had been traumatized by the publicity during and after the trial, and said she chose to escape by going to live with her American boyfriend in the United States.

"That was her own decision," the mother said. "The whole family is supporting her."

What price VFA?

Sen. Loren Legarda reiterated her call for the immediate review – and abrogation if necessary -- of the VFA in the light of the latest twist in Nicole’s case.
 
“America’s act of buying Nicole’s silence is a precedent. They are bound to do this every time. While America keeps its processes intact and its soldiers protected, our morality as a nation is trampled upon, our justice system spat on,” Legarda said in a press statement.

Sen. Francis Escudero said Nicole's affidavit is a mere scrap of paper "until she testifies before the court that she is recanting."

Former Senate President Jovito Salonga and Prof. Harry Roque said they expect the recantation will not affect their appeal before the Supreme Court to declare the VFA as unconstitutional.

The two said Nicole's sworn statement is not evidence that she had consensual sex with Smith. "Instead, it is evidence that she has already entered into an out-of-court settlement with the convict, the terms of which are only known to Mr. Smith, his counsel and Nicole," they said in a joint statement.

They also questioned the ethics of Smith's lawyer, Jose Justiniano, for preparing the affidavit of recantation for Nicole without the participation of Nicole's lawyer. "We call on the Supreme Court and the IBP to look into the conduct of this firm and ensure that the legal profession is insulated from similar deplorable conduct in the future," they said.

The petitioners said that while they do not begrudge Nicole for entering into an out-of-court settlement, they also said the case will not affect their petition to abrogate the VFA.

"We filed our petition separate and distinct from Nicole in our capacity as citizens suing to impugn an agreement that violates our constitution. When this case was scheduled by the high court for oral arguments, Nicole was not a party to the case and was not notified of the oral arguments," they said.

Salonga and Roque said the VFA seeks to re-establish the presence of US troops in the country. They said the VFA allowed the US to give special treatment to American servicemen already convicted of crimes under Philippine law.

"The lessons learned from the case of Nicole is very clear: unless abrogated, the VFA treats Filipinos as second class citizens in their own country. The message should be very clear to all Filipinos: under the VFA, American Servicemen committing non-service related offenses such as rape, could be accorded impunity as their punishment could consist of alleged detention in airconditioned facilities complete with a gym and internet access, and by Manila bay at that!" they said.

'No official irritant in RP-US ties'

Executive Secretary Eduardo Ermita said that despite Nicole's recantation, the Subic rape case is far from over because of the pending appeal before the appellate court and several anti- VFA cases before the Supreme Court.

Stopping short of praising the recantation, Ermita said the latest development in the case "if properly handled and results to something positive, enhances the VFA."

"The Subic rape case has been widely seen as a test case of some provisions of the RP-US VFA---an agreement signed under the decades old Mutual Defense Treaty of the United States and the Philippines. While the VFA had its critics, there is no official irritant between the US and the Philippines," he said.

Ermita, however, said the review of the VFA continues even as the country awaits word from the US government on whether they will still send a legal expert to work on the custody case spurred by Smith’s case.

Justice Secretary Raul Gonzalez, meanwhile, said the recantation will “not affect (the trial) very much” because it had already ended with Smith's conviction. He also doubted if it could be used to reopen the trial.

"I don’t know if the Court of Appeals will even consider that because that is not part of the record," he said.

Even if Smith and the woman had signed a settlement, "you cannot undo the judgment of the (lower court) judge," Gonzalez said.

The justice chief said it was unfair to say that the Philippine government did not do anything for Nicole because she was supported by government prosecutors.