Thursday, March 19, 2009

The Latest Recantation That Is Not A Recantation

As was rightfully pointed out in Filipino Voices the alleged recantation of "Nicole," from the Subic Rape Case in the Philippines, contained in her affidavit in no way exonerates US Marine Daniel Smith and it doesn't prove her to be a false accuser.

If anything the contents of the affidavit further cements his guilt.

Yet I have seen false claims spreading through the blogosphere that her statements are a changing of her story. Those spreading these false claims includes bloggers who claim to be 100% against false claims.

A rape victim -- with a low tolerance for alcohol and who cannot remember interacting with Smith except for brief moments -- who later questions how the crime against her could happen is not recanting.

Second guessing events where you were only aware of bits and pieces of what was happening around you is NOT a recantation.

Asking, "How could this have happened?" is not a recantation.

From the affidavit:

5. Daniel Smith’s witnesses said that while we were at the Neptune Club, I sat on Daniel Smith’s lap and that we kissed each other passionately. I remember that before I met Daniel Smith at the Neptune Club, all I ate was a slice of pizza at the Grand Leisure Hotel. After the pizza, everything else was alcoholic drinks from vodka sprite, B52, Singaporean sling, B53, long island ice tea to bullfrog all of which I drank bottoms up. I do not recall Daniel Smith having ordered any alcoholic drink for me. My drinks were all paid for by Chris Mills who invited me to go to the Neptune Club.

This paragraph only clears Smith of taking her from sober to drunk. It doesn't eliminate the possibility that Smith helped go from drunk to unconscious. Note that this phrasing means that she can't testify with certainty that Smith did not give her additional drinks. She is making assumptions based on the testimony of Smith's witnesses.

Smith wasn't charged with providing her alcohol, he was charged and convicted of rape. Allegedly kissing someone consensually (she blacked out by this point so she can't even confirm a single consensual kiss) is not consent for sex.

6. I had no opportunity to deny in court that I kissed Daniel Smith but with the amount of alcoholic mixed drinks I took, my low tolerance level of alcohol and with only a slice of pizza all night, it dawned upon me that I may have possibly lost my inhibitions, became so intimate with Daniel Smith and did more than just dancing and talking with him like everyone else on the dance floor. Looking back, I would not have agreed to talk with Daniel Smith and dance with him no less than three times if I did not enjoy his company or was at least attracted to him since I met him for the very first time on the dance floor of Neptune Club.

If she can't remember kissing Smith then her testimony about that kiss would have been nothing more than speculation based on hearsay. In fact, this part of the sworn statement is complete speculation. She is assuming she agreed to talk to Smith and she is assuming she agreed to dance with him 3 times. If she can't remember dancing with him her assumptions stated here say nothing about the reality of what happened.

Liking someone or enjoying their company, dancing with them or even being attracted to someone when you first meet them is not consent to sex.

But there is a pervasive belief by many people that flirting nullifies the need for consent which explains how so many rapists who think of themselves as non-rapists can rationalize raping someone. Combine that with some people's view that raping someone drunk to the point of unconsciousness hurts nobody and you've got a dangerous mix.

7. When I danced with Daniel Smith for the third time, my companion, Chris Mills has already left Neptune Club since he had to catch their curfew time at the military base. The lighting was sufficient for people to recognize each other and other marines were with their Filipino partners drinking, dancing and enjoying each other’s company and kissing and hugging among partners was a common scene.

This paragraph only shows why people in the bar wouldn't pay much attention to her. It also makes her friend look negligent for leaving her unprotected after paying for the drinks that caused her to black out and to go unconscious if those were the only drinks she was given.

8. With the events at the Neptune Club in mind, I keep on asking myself, if Daniel Smith wanted to rape me, why would he carry me out of the Neptune Club using the main entrance in full view of the security guard and the other sources? Why would the van park right in front of Neptune Club? Why would Daniel Smith and his companions bring me to the seawall of Alaba Pier and casually leave this area that was well lighted and with many people roaming around? If they believed that I was raped, would they have not dumped me instead in a dimly lit area along the highway going to Alaba Pier to avoid detection?

In one word: Entitlement.

If Smith had carried her out a different way that would have drawn more attention to his actions. As for where they dumped her, they may have been worried that she might die of alcohol poisoning and if they dumped her in a dimly lit area along the highway they might have faced murder or manslaughter charges in addition to rape charges.

Rape is what people do, it is not dependant on whether those people properly label their actions as rape or even feel the slightest bit of guilt. Many of those guilty of murder or manslaughter admit only to messing around and feel absolutely no guilt.

The law doesn't excuse murders simply because murderers didn't believe what they did qualified as a real murder. There is no dismissive statement like, "it was just a date murder."

Men who throw someone they know can't swim in a pool and laugh as that non-swimmer drowns before their eyes are still guilty even if they never spoke to each other, saying, "Let's murder that guy over there." They are still guilty even if they did nothing to avoid detection.

9. I told the court that Daniel Smith kissed my lips and neck and held my breast inside the van. Recalling my testimony, I ask myself now how could I have remembered this if witnesses told the court that I passed out and looked unconscious when I was brought to the van by Daniel Smith. How could I have resisted his advances given this condition? Daniel Smith and I were alone on the third row of the van which had limited space and I do not recall anyone inside the van who held my hand or any part of my body. What I can recall is that there was very loud music and shouting inside the van.

The answer to the first question in this section is she likely momentarily regained consciousness or at least reached the level of semi-consciousness. The question about resistance goes back to the dangerous belief that the legal responsibility for preventing rape belongs solely to the victim -- even when that victim is unconscious.

Unconsciousness and semi-consciousness equals lack of consent. Lack of consent equals rape.

Testimony from witnesses who aren't relying on speculation disprove any theory on her part that she might have given legal consent. She was clearly incapable of legal consent when she was taken from the bar.

Smith's actions were judged based on the legal definition of rape, not popular definitions of rape.

10. If the travel from Neptune Club took only several minutes and with the driver of the van trying to beat the curfew time of his passengers, how could I have instantly regained my consciousness and talked to the people upon reaching the seawall of Alaba Pier? When people gathered around me at the seawall, everyone seemed to have drawn the conclusion that I was raped except for one who called me a bitch.

Again, the answer is a simple one. An abrupt change, such as being dumped at a seawall, can rouse someone from unconsciousness. If that abrupt change is followed by a commotion that can further rouse someone from unconsciousness. This is why slapping someone who has passed out is used to try to get those people to their feet.

If she had been fully conscious and able to step out of the van then people wouldn't have gathered around her at the seawall.

11. Based on the account of SBMA police, I was very hesitant to board the mobile police car that brought me to the headquarters for investigation. I was so confused and the first thing that entered my mind was how would my mother and boyfriend react if they learn that I was last seen with Daniel Smith and that a condom was seen on my pants after Daniel Smith left the van? I was scared of losing not only my American boyfriend but the chance of living in the United States. In fact, I did not immediately tell my boyfriend that I was raped by Daniel Smith. All I said was that something bad happened to me.

Again, this in no way exonerates Smith. When she regained consciousness of course she wouldn't know she was raped. If she had been conscious and legally consented, she would have known exactly what happened in that van. Her description of, "something bad happened to me," matches what she was aware of and supports the rape conviction of Smith.

She had rational thoughts after regaining consciousness, but none of those thoughts are about hiding consensual sex which would be required if this were a recantation.

The expectation that those who are raped while unconscious immediately name what was done to them as rape sets up many rape survivors to incorrectly doubt the crime committed against them.

12. I expect many sectors to question my motives in executing this statement more than three years after the incident. However, as I practically grew up interacting with American servicemen in Zamboanga City who treated me and my family very well, and thinking over and over again how I may have conducted myself at the Neptune Club, I can’t help but entertain doubts on whether the sequence of events in Subic last November of 2005 really occurred the way the court found them to have happened.

This indicates that a major guilt trip has been played on this woman so that she feels responsible for the international fallout of this case when those responsible were Smith and his buddies. It doesn't matter how she conducted herself at the Neptune Club. Being sloppy drunk is not consent and it doesn't nullify rape.

Since she was unconscious when she was carried out of the bar of course she cannot speak with absolute authority about what was done to her. But again that doesn't exonerate Smith.

13. My conscience continues to bother me realizing that I may have in fact been so friendly and intimate with Daniel Smith at the Neptune Club that he was led to believe that I was amenable to having sex or that we simply just got carried away. I would rather risk public outrage than do nothing to help the court in ensuring that justice is served.

The affidavit ends with proof that she believes the lie that if she was in any way friendly toward Smith in the bar and might have seemed to have the potential to consent that this nullifies a subsequent rape.

It does not.

She cannot testify that she was conscious when Smith left the club therefore the testimony about her lack of consciousness is supported. And this testimony disproves her speculation that they simply got carried away.

Smith made fully conscious choices and now he and his lawyers want a woman who was unconscious to nullify his crime and to take the blame for his actions because she might have flirted with him.

Those who read this woman's affidavit and who see it as an exoneration or a genuine recantation are revealing important details about themselves and the dangerous attitudes they cling to related to rape which explain why rape continues to be so common.


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posted by Marcella Chester @ 8:08 AM   1 comments links to this post


At March 22, 2009 6:28 PM, Blogger DvaBeyondSilence said...

Last year I posted in response to your birthday blog, and was forced to remove it after being arrested by my former boyfriend and offender. I signed a statement recanting my blog site which I had created to heal and educate him and others who may stumble across my site. It also was shut down by court order. But here's my thing: No one asked questions of me. No one asked if I was angry, or if I was dangerous, or if I was trying to cause trouble etc. No one came to me to understand the full picture. It would have served them all well had they done so, as they would have seen a very different picture than he painted, or than even he would have expected. I signed the statement with the letters "u.d." into my signature as it was the only way I could sign them and still keep my own honesty and integrity while ensuring the safety of myself and my daughter which was pulled sharply into question even with his own statement in the middle of a court room; a direct threat right in front of the judge, which she also threatened with herself at her summary! The judge in question ought to have upheld the law, by taking into consideration the evidence I had in the courtroom that day, but she did not. She should have asked questions, but she did not. She did a huge disservice to our society that day, and may have put another woman's life in danger in the process, while keeping a level of danger in place for my daughter and myself, and she likely played a part in keeping my ex in a position of danger also. None of this was necessary in view of the fact that there was more love on my part than anger and a large responsibility and generosity in place for the extended families affected by his actions. It is my hope that your blog site will continue to be successful. It is also my hope that there will be a push to educate our legal system to have the judges in place educated as to the questions that would properly be asked while allowing freedom to answer them, in order to make more just decisions in the face of domestic violence and partner rape. In my experience, there is a huge lack of knowledge on their part and they contribute to the reckless treatment of women who would make our society a more civil and compassionate place to live.



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