“I was shocked but not totally.”

That was how Esperanza Santos described her initial reaction to the news of Nicole’s “recantation.” Santos has been actively convening Task Force Subic Rape, a group of feminists and gender advocates who supported Nicole even before the beginning of a landmark case that convicted an American soldier for rape for the first time.

In December 2006, the Philippine court found Lance Corporal Daniel Smith for raping a Filipina in Subic, Zambales during a rest and recreation period. However on 16 March 2009, Nicole’s mother decided to terminate the services of Nicole’s counsel, feminist lawyer Evalyn Ursua. Around that time, the media reported Nicole’s “recantation.” Worse, the Philippine Daily Inquirer, the most widely-read English broadsheet published a photo of Nicole and named her.

In a statement, Ursua narrated: “Nicole’s mother personally handed me a letter…purportedly from Nicole. [The letter] serves as Nicole’s notice of termination of my services as her counsel in the criminal case against Daniel Smith and all other cases arising from or related to it.” Asked why Nicole did not hand her the letter personally, Nicole’s mother revealed that her daughter left for the United States (US) a week before. Nicole’s mother also sent Santos a text message when the latter inquired on Nicole’s condition: “Really sorry. Thank you so much. There is no justice here in the Philippines.”

In her new affidavit, Nicole expressed that she was indeed too intoxicated on the eve of 1 November 2005. She mentioned that she was attracted to Smith. She felt that she needed to disclose these afterthoughts as she has been bothered by the continuing stay of Smith at the US embassy in Manila.

It is however important to note that nowhere in the affidavit nor in the statements of Nicole’s mother was there a denial of the rape incident. Contrary to the reports of mainstream media, the affidavit was not a recantation.

Dubious Document
Nicole’s supporters remain suspicious of the affidavit. Ursua earlier mentioned that the language of affidavit was too articulate for her former client. Moreover, it was consistent with the storyline of the defense. “She has reached a level of maturity and empowerment. The affidavit was quite unlike her,” Santos shared.

The affidavit was also signed in the law offices of Sycip Salazar Hernandez and Gatmaitan, where lead defense lawyer Jose Justiniano is based. Justiniano, himself filed the affidavit at the Court of Appeals, a move that is ethically questioned in legal circles.

“Why only now, after she testified which was like being raped for the second time?” Santos lamented, recalling that during the grueling trial Nicole had an unwavering spirit, unlike her mother, “who wanted to give up.” In her interviews with the media, Nicole’s mother insisted that the new affidavit was a decision of Nicole and the family. But she also admitted having received P100,000 as part of the legal compensation. “It would be a waste if I just let that money go,” she remarked.Santos surmised that the “softer stance” of Nicole's mother can be attributed to the family's familiarity with military personnel including visiting US soldiers. The family maintained an eatery inside Camp Navarro, which also hosts the US soldiers in the Philippines.

Dangerous Diplomacy
Timing has made the release of the new affidavit even more suspicious. With the conviction of Smith, several lawmakers have been contemplating of abrogating the Philippine-US Visiting Forces Agreement (VFA), which allows the US to conduct military exercises in the country. The VFA has likewise been criticised with the reports of the participation of American soldiers in actual military operations especially in conflict-prone Mindanao.

The affidavit came just days after the phone conversation between Philippine president and Bush administration ally Gloria Macapagal-Arroyo and US President Barack Obama. The affidavit also serves to bolster the recent Supreme Court decision that upheld the constitutionality of the VFA, even as it found the current VFA onerous. However, critics pointed out that since most of the justices at the Supreme Court are appointees of Arroyo, the decision should not be a surprise.

Santos further argued that even before the start of the hearing, the government was determined to lose the case. Ursua was denied the opportunity to cross-examine Smith. Instead the government lawyers in the prosecution tapped an amateur lawyer for this crucial task. The latter also declined to perform a rebuttal.

“The bigger blame should be on the government. Imagine the Justice Secretary berating Nicole. They really wanted to lose the case that’s why the prosecution was not united,” she asserted. Nicole’s camp was also offered settlement deals even before the conviction. Just a few weeks after his conviction, Smith was whisked off from a local jail to the US embassy with the blessings of the Arroyo.

Indiscrete Disclosure
Another development that baffled the individuals and organisations who are supportive of Nicole and the Task Force Subic Rape Case was the Philippine Daily Inquirer’s publication of her photographs and real name. Under Philippine laws, the identities of rape survivors may not be made public, so as to protect their privacy and help them move on. For its part, the most-widely read English broadsheet defended its action,“The Inquirer had earlier consulted with its lawyer as well as with a former chief justice, who both said it was all right to use Nicole’s real name.” The Inquirer counts among its columnist two retired Supreme Court justices.

But Santos read the action differently: “The Inquirer feels betrayed. For them, they helped in this case by covering the trial and appreciated the side of Nicole. But by revealing Nicole’s face and name, it is as though they are showing the public that this is the woman who betrayed us.”

She also railed at the newspaper and other mainstream media which described the affidavit a recantation. “The problem is they want everything to be spoon-fed. They do not read and analyse carefully.” Asked where they could have gotten a press release on a “recantation,” she could only think of the defense.

“How come it is so easy to believe that Nicole lied? For most people, Nicole is still a loose woman who is punished for drinking. Yet boys are never questioned when they stay late at night and drink alcoholic beverages. The public also has a typical idea of rape. It could not appreciate that what happened was a rape show, that was why Smith’s fellow soldiers were cheering him on,” Santos added.

Moving Forward
The Task Force Subic Rape has no plans of disbanding. Instead, it is mobilising towards putting an end to the VFA.

Ursua further asserted, “The Nicole and the other lawyers represented is beyond the woman that Nicole and her family thought she is. Nicole is every Filipino woman who was and will be raped by American soldiers.”

Sources:
Interview with Esperanza Santos of Task Force Subic Rape (26 March 2009).

Alipala, Julie and Tarra Quismundo. (19 March 2009). “‘Not Nicole’s style, that’s defense line.'” URL:http://newsinfo.inquirer.net/inquirerheadlines/nation/view/20090319-194910/Not-Nicoles-style-thats-defense-line

Ang See, Teresita. (11 January 2007). “Like Thieves in the Night .” 

Aurelio, Julie M. and Norman Bordadora. (18 March 2009). “‘Nicole’ recants, clears Smith .” 

Avendaño, Christine and Maila Ager. (18 March 2009). “Senator Biazon: Timing of Obama call, Nicole move uncanny. Don’t blame the victim—Cayetano .” 

Bordadora, Norman and Tarra Quismundo. (25 March 2009). “‘Nicole’ didn’t recant, groups assert .” 

Nicole. (18 March 2009). “Sworn Statement .” 

Somera, Nina. (2 June 2008). “Subic Rape Case: Smith Might Walk, Women's Groups Fear .” 

Torres, Tetch. (11 February 2009). “SC orders Smith placed under RP custody .” 

Ursua. Evalyn. (17 March 2009). Statement (copy text).