nicole did not recant

what a shocker naman talaga.   it was bad enough hearing, first, that she had fired her lawyer evalyn ursua AND that she had left for the u.s., of all places.   it got progressively more scandalizing as the news trickled out that she had settled with smith for a hundred thou php and *omgwtf* that she had recanted *gasp*!

a day later i’m clearer about that 100k — it’s in compliance naman pala with the court order that found smith guilty of rape and liable to nicole for civil (50K php) and moral (50K php) damages, so that’s fine.   whether she left or she stayed, she had that money coming to her.   in my book she deserved more, and if she did get more, then good for her.

i’m also clearer about the so-called recantation, which is not a recantation at all — shame on everyone who calls it so.   nicole did not recant.    to recant would have been to deny now her original testimony.   to recant would have been to say now that it was all a lie, she wasn’t drunk, she remembers it all, the sex was consensual.   SHE SAID NOTHING OF THE SORT.

at most nicole ruminates on old questions raised by the defense at the trial.   she acknowledges that under the influence of alcohol she may have behaved inappropriately — which may have led smith to think that she wanted sex.   also she considers the defense line that if smith had intended to rape her he would not have so openly carried her out of the club into the van for all the world to see, so maybe he thought it was consensual?

so she behaved inappropriately under the influence of mixed drinks — but she also says, so did others in the club where there was a lot of kissing and hugging going on,  and, i’m sure, dirty dancing, and no one else got raped.    i think smith was just really horny and on white arrogant macho mode — youdon’tmesswithmeandgetawaywithitshit — never mind that the girl clearly was so drunk she couldn’t walk straight, much less do anything of her own volition.   the affidavit only makes this clearer.

finally she asks, if i was so drunk why did i suddenly become un-drunk when they dumped me on the sidewalk?   aba, kahit sino yata mahihimasmasan, matatauhan, pag biglang nagbago ang takbo ng mga pangyayari, from private to public, from warm to cold, from sounds to silence.   her alcohol-drowned mind was on party mode, even the van was on party mode, with music and cheering and clapping.   when she was dumped, the music stopped, the party was over, she’s suddenly alone, lying on a public sidewalk — the semento must have felt cold to her naked butt, and people were gathering around, someone was calling her a bitch, time to come to her senses, a matter of self-defense, of survival, what a rude awakening.

so, again, that affidavit wasn’t a retraction, rather, an affirmation, by which account, smith is no less guilty of rape.    let’s give nicole credit for managing to please smith’s camp — enough to acquire a u.s. visa perhaps — but without recanting.   that took some smarts.   good for us.

i’m sorry she’s gone but she has her own life to live, her own karma to work out.   if she were my daughter, like susan i would let her go, even insist on it.   obviously she has a karmic connection with america (american soldiers in particular).   until (like any fil-am) she works that out, she cannot be expected to do more for inang lupa than she has already done for the anti-vfa campaign.   mabuhay si nicole.


  1. Angela:

    My theory:Nicole was persuaded to sign an affidavit written by somebody
    else in exchange for her U.S.Visa and some dough.She probably was also promised a new identity in the states.

    All of these moves were made to help acquit her rapist and reduce pressure on the move to abrogate the VFA agreement.

    What price dignity?


  2. Raul Manglapus’ tenure as Foreign Affairs Secretary was overshadowed by a remark he made during a Senate hearing on the rape of Filipina domestics in Kuwait during the 1990 Iraqi invasion.

    He quipped, to general outrage, that” if rape were inevitable, one should relax and enjoy it.”

  3. The Rape Protection Law RA 8505, says in Section 5:

    Section 5. Protective Measures. – At any stage of the investigation, prosecution and trial of a complaint for rape, the police officer, the prosecutor, the court and its officers, as well as the parties to the complaint shall recognize the right to privacy of the offended party and the accused. Towards this end, the police officer, prosecutor, or the court to whom the complaint has been referred may, whenever necessary to ensure fair and impartial proceedings, and after considering all circumstances for the best interest of the parties, order a closed-door investigation, prosecution or trial and that the name and personal circumstances of the offended party and/or the accused, or any other information tending to establish their identities, and such circumstances or information on the complaint shall not be disclosed to the public.

    The accused has had his DUE PROCESS rights violated from the very beginning by the Courts, the lawyers, the Media. Even if now acquitted, as he ought to be, he will never live down the unfair and unjust “outing” of him. What actually happened in Subic is almost now irrelevant, since this is a legal requirement that even Evalyn Ursua claims constitutes “criminal liability” on the part of PDI for publishing Nicole’s picture and name and affidavit–ignoring insanely the fact that it was Pozon who first revealed it and the Supreme Court too in its 9-6 decision.

    What a sorry mess the Lynch Mobs have made of all of us!

  4. about recanting (or not):

    can we say she recanted because her original testimony said she was raped, and now she says, i don’t think i was raped.

    is this not the sense in which we understand her recantation?

  5. hey gabbyd ;) nowhere in that affidavit does nicole say unequivocally that she doesn’t think now that she was raped. all she does is raise the same questions the defense did about her allegation of rape, and agree that yes, she may have given smith the impression that she wanted sex. which is not the same as saying that she wanted it, with him, that very night.

    in paragraph 9 of the affidavit, she wonders too, like the defense, how could she remember, as she 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.”

    this merely raises the question of: was she drunk or was she not. if she was not, then the defense has a shot at proving that the sex was consensual. but if she was drunk, then talaga, some stuff you remember, some stuff you can’t remember, that’s what it’s like when one is really very drunk, the conscious mind clicks on and off, mostly off, beyond one’s control, and when you wake up the memory gaps are truly unsettling [take it from me, i’ve been there, not once but twice, but had the good fortune of being with good friends the first time and with family the next].

    again, she didn’t recant. nowhere does she say, i don’t think i was raped. her questions only confirm that she was intoxicated. check out the subic rape case website that covers her testimony at the trial []

    and also, what she drunk and how intoxicated she was [] and the effects of extreme intoxication.

  6. @angela on March 20th, 2009 at 1:36 pm

    i agree that she didnt explicitly say the words “I don’t think i was raped”

    however, don’t u agree the tone of the affidavit was that of doubt? specifically, doubt of the original conviction? see par 4:

    “Deep inside, however, I know that I may never be able to move on for as long as I continue to search for answers to so many questions that have lingered in my mind regarding the incident in Subic more that three years ago. Daniel Smith was convicted of rape because the court accepted my version that he took advantage of my intoxication i raping me inside a van that took us to the seawall …”

    here, she says that she intimates that she can’t move on, coz she has ‘questions’ over the finding of guilt.

    its not a standard, straightforward recantation.

    but can we agree she expressed doubt over the courts decision? isn’t this an unavoidable consequence of a straight reading of her affidavit?

    i think this is the sense in which she ‘recanted’, she doubts her earlier conviction that indeed she was raped.

    indeed, in par 9, she says that the unreliability of her testimony (according to her) is a chief source of her doubt. But wasn’t the conviction mostly a function of her testimony? (here, i’m not sure having NOT followed the trial itself… i’m assuming her unwavering testimony was a big part of the prosecution’s case).

    i agree with w u that there is no doubt she was drunk. Its only that she now expresses doubt, which was not there before, which implies a recantation.

  7. @gabbyd: but her doubt is only with regard to 1) the impression she may have given under the influence of alcohol that she wanted sex, not with regard to how she tried to resist smith’s assault on her in the van [] and 2) whether she was really too drunk since she could remember some of the events.

    the conviction of smith by the court was based not solely on nicole’s testimony but on medico-legal findings about the state of her genitalia and the level of alcohol in her blood, and eyewitness accounts of people in the club who noticed her pasuray-suray state and people who saw her on the sidewalk with her pants down.

    the part where she “intimates that she can’t move on, coz she has ‘questions’ over the finding of guilt” — ito lang ang concession niya to the smith camp, but these are questions whose answers do not lessen smith’s culpability.

  8. Hmmmm. I still don’t feel comfortable with her “change of mind” on how she saw the events that night. The word ‘recant’ may be too strong in that a recantation is usually something that an authoritative body (like a synod) asks one to do to avoid consequences like excommunication. So yes, I would rather call it a change of mind as to how she viewed certain aspects – that she may have behaved inappropriately that Smith thought she wanted sex and that maybe it led him to believe it was consensual.

    The thing is if she has doubts about how her actions may have sent the wrong signals, then there must be a mistrial. It is only just.

    The narrative assumes *she* wasn’t horny, and I find that unfair to Smith. Why is only the man horny? There was drinks, kissing, dirty dancing. So only a man gets turned on by that? This seems to be reverse chauvinism.

    Her affidavit states she was too drunk to do anything on her own volition. But then she goes on to say “if i was so drunk why did i suddenly become un-drunk when they dumped me on the sidewalk?”

    So which is it was she SO drunk she couldn’t walk, OR she was NOT SO DRUNK that she suddenly became un-drunk?

    What I have not read about and would like to know about is the amount of alcohol she had consumed.

    “We’ve all heard people claim that they “Sober up” very quickly, just as we’ve seen people who appear to stay drunk well into the night despite having only a few drinks.

    But both of these are actually probably false. Alcohol is one of the most predictable chemical reactions for your body. It burns off at an almost perfectly precise rate of .016 BAC per hour, about equal to 1 standard drink each hour (depending on your weight). This rate is true regardless of the size of your body. A 5’2 female burns off alcohol at the same rate as a 6’1 obese male.But regardless of size or gender, the .016 metabolic rate is a constant. So if you are trying to remove all the alcohol from your system, refer to this chart to understand the length of time it will take for your body to get rid of all of the alcohol in your system:

    You will also notice on this table that if you are at a BAC of .24 (which is very drunk – you will likely be stumbling and risk blacking out) you will still have alcohol in your body the next day, and you will still be legally drunk for 10 more hours. Despite what many people believe, there is no way to speed up this process.”

    So if scientifically there is no way to speed up this process, I doubt that even after sex, she would not have suddenly become undrunk if she was so drunk. So i think the question of how drunk was she to NOT know what she was doing, vis a vis how drunk was she to come out of her drunkeness is very crucial.

    And I would then go to the question of, when a woman has sex, she would certainly not want to be dumped. Men, when they aren’t in love would probably unceremoniously “dump” the girl. Maybe, figuratively, by falling asleep on her, or giving her taxi fare and sending her home. Which can be ok if all you wanted is sex, and you were drunk too. But not ok, if you wanted more, and a girl thus insulted may fight back, maybe benignly by just kissing and telling and making up awful stories about the size of his prick or his bad breath or his farting in his sleep or his making her take the bus instead of a cab. Whatever.

    In this case she was literally dumped on the sidewalk. Had sex, goodbye. And certainly any girl unceremoniously dumped like that, and probably not just wanting a night out on the town, but harboring a potential catch of the American dream after sex, might call it rape.

    I don’t know. I wasn’t there, I don’t know Nicole, I don’t know Smith. I don’t know the facts. I don’t think a lot of us really can say was she or wasn’t she raped, given how emotional this issue is – American soldier, pinay with an American Dream wish.

    All I can see is the story fromw hat we read, and finally the immigrant status she received. Somehow I think that Nicole got what she wanted in the end. I think she walked into the scene that night looking for a passport to America (We know that was her dream, according to the Mom.) She didn’t count on it having to be so degrading. And in the shock of the debasement, she accuses the man who could did not fulfill the dream they way she wanted it fulfilled. When she does get the dream, she softens.

    My take. There are too many questions not fully answered. Which just tells me that the wrong questions are asked there is little objective evidence.

  9. hey karen ;) hmmm. as far as i know she already had an american boyfriend when she walked into that bar. anyway youre right that second affidavit raised so many questions, which i suppose was the point, in aid of smith’s defense. pero sa akin, nicole’s questions on hindsight do not change and are not inconsistent with her testimony during the trial.

    here’s an excerpt from the subic rape case website:

    “‘Nicole’ had testified on Thursday, July 6, that Smith pulled her by the wrist to go outside the bar although she insisted that she stay where she was because she was waiting for her stepsister. She added today that her world was already spinning at the time because she was very drunk and dizzy. The next thing she remembered, she said, was that Smith was on top of her kissing her lips, neck and chest and fondling her breasts.

    “She said she tried to push him away with her hands because she didn’t like what he was doing, but was not successful because she was very weak and Smith was heavy. She turned her head to the right and to the left to avoid his kisses on her lips but was not successful either. She screamed but she said there was music. She also said that she heard voices and laughter, so she concluded that there were other people with them.

    “‘Nicole’ told the court that she knew it was Smith because she saw his face in front of her own through a light that turned on and off. She also said she didn’t know where she was.

    “She said Smith continued doing what he was doing despite her efforts to ward him off. Right then, she was afraid that she might be raped, saying: “Kasi nakahiga na ako tapos hinihipuan nya dibdib ko, nanlalaban ako pero pinapatuloy pa rin nya. San pa ba hahantong yon (Because I was already lying down and he was fondling my breasts. I fought him off but he continued what he was doing. Where else would that lead?)?”

    “‘Nicole’ said she was feeling very weak by then, her head was aching, and her brain was shutting down but she fought it because she wanted to stop Smith. The last thing she remembered was that she was fighting him.

    “She said she didn’t know what happened after that because when she came to, she was on the ground with her pants put on backwards, the zipper of her jeans at the back. She wore loose fit denim pants that night, a white panty, and a mint green blouse streaked with white. The panty and the jeans have since been admitted as evidence.

    “She also said her phone and money weren’t in the pockets of her jeans anymore, but found instead an empty blister pack of pancreatin. She said she didn’t know how it got there.

    “‘Nicole’ also said she noticed a woman crying in front of her when she regained her consciousness but didn’t notice the woman’s face because her head was aching and she was dizzy.

    “She went back to the Neptune Club with policemen later that night to look for Smith. “Gusto ko siyang murahin. Gusto ko siyang patayin…dahil ni-rape nya ako. (I wanted to curse him, I wanted to kill him…because he raped me,” eh said.

    “But they didn’t find Smith there. ‘Nicole’ found herself next in the balcony of the Grand Leisure Hotel, where she and her two sisters had checked in for their vacation. She said she didn’t know how she got there, but she saw that her stepsister Anna Liza Franco had come down from their room crying and was trying to talk to her.

    “‘Nicole’ said she didn’t answer Franco’s questions because she was confused, afraid, dizzy, and she didn’t know how to tell her sister what had happened or how to find Smith. She was also afraid that her mother might get angry because the latter had told her the morning before the alleged rape incident to pack up and go home.

    “She said she felt pain in her body and in her vagina, from which she confirmed that she had been raped. She then went to the James Gordon Memorial Hospital with Franco and two policemen to undergo a medico-legal exam.

    “At the OB Room of the said hospital, she said the doctor asked her, “Na-rape ka? Baka ginusto mo? (You were raped? You must have wanted it?)

    “‘Nicole’ said she became hysterical upon hearing this, so she retorted angrily, “Hindi ko ginusto yun! Sino bang gugustuhin na ma-rape? (I did not want it! Who would even want to be raped?)””