Since this was a case of rape by intoxication, none of these missing elements were required for a rape to happen. Testimony from witnesses at the bar indicated that "Nicole" appeared to be unconscious when the defendant took her out the front door of the bar.
The Philippine Court of Appeals overturned the ruling, indicating the sexual act was consensual.
"No evidence was introduced to show force, threat and intimidation applied by the accused," the court said in its 71-page decision, which is final.
This ruling was based on judging "Nicole's" character (she went with Americans to this bar and was no innocent woman) as impure and from there it was based on speculation about "what really happened." Women who aren't innocent and who flirt always say yes and the only reason they are found like "Nicole" was found is that those women have no shame. It couldn't possibly be true that "Nicole" was raped as alleged and immediately dumped unconscious/semi-conscious and half naked at the side of the road.
This ruling was not based on the evidence of the case. This is demonstrated by a reference to the alleged victim's refusal of the offer to clear the courtroom before her testimony. The judges are baselessly assuming that no real rape victim would make that decision.
What this ruling, which frees Daniel Smith, seems to do is to effectively make rape by intoxication legal in the Philippines.
In fact much of this ruling directly supports the rationalizations which are needed before someone can convince themselves that what is in fact rape is not rape at all and that the semiconscious/unconscious person clearly wants it. She was there, she was dancing, she was flirting, she's no innocent girl/woman, etc. What better rationalization can you get than having multiple judges say this type of woman wants it and the only reason she could report this as rape is if she is trying to hide her real character.
In the published recantation of "Nicole" she does not testify that she consented and much of her recantation is speculation about what might have happened during the time she blacked out or was unconscious based on testimony of defense witnesses.
If shows of force, threat or intimidation are required in rape cases then they must be required in all other crimes such as robbery. If someone in the Philippines is robbed while passed out drunk they are not robbed at all, but only if we use the standard applied to rape cases.
If the judges and the Philippine law are inconsistent so that being raped while unconscious is legal while being robbed while unconscious is illegal then that communicates something important about the acceptance of rape.
If drinking too much nullifies rape then it must nullify all other crimes committed against the drinker which don't involve force, threat or intimidation. It's important to note that none of these would be required to suffocate someone passed out drunk which would mean that murdering someone in this way would be legal if this standard is truly valid. The only difference is that this victim wouldn't be subject to pressure which could lead to a recantation.