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Separate Opinion
Affidavits of desistance

By Isagani A. Cruz
Philippine Daily Inquirer
First Posted 00:03:00 03/22/2009

Filed Under: Subic rape case, Crime and Law and Justice, Treaties & International Organisations

I WAS one of the many people who were not surprised over the retraction by Nicole of her testimony against Daniel Smith whom she had accused of raping her. Her sworn testimony was hard to believe. She said she had gone out that night accompanied by an American friend with her mother?s permission, dined and drank with a number of US soldiers at a restaurant in Subic, Zambales, and was especially close with Smith whom she had just met. The young man, she said, raped her at a time when she could not resist because she was intoxicated.

The trial claimed the attention of many Filipinos who were outraged by the tale of woe related by the alleged rape victim. They were definitely in favor of Nicole, as she was called then, who was described as a poor undefended girl abused by an American soldier stationed here under the Visiting Forces Agreement. Nationalists not only attacked Smith but also called for the revocation of the VFA for being collaterally responsible for his offense.

The lower court believed Nicole and convicted Smith. A dispute arose on where he should be detained during his appeal and was easily resolved with our unctuous government agreeing to his confinement by his own countrymen in their comfortable premises and not in our squalid detention centers. He was ?imprisoned? in a probably air-conditioned room in the US Embassy like a privileged guest under the protection of the American government. His fellow servicemen under the VFA did not receive similar special treatment.

The Court of Appeals was taking its time to resolve the case while the majority of our people were content to wait, believing that Smith?s conviction would be affirmed and the culprit would finally be sent to Muntinlupa as he deserved. This has not happened, however. Last Wednesday, this paper headlined that ?Nicole recants, clears Smith,? as expected by many realistic Filipinos. In a moment of self-discovery and repentance, Nicole has confessed her mistake in accusing Smith of raping her and is now asking that the criminal case against him be dismissed.

While she was angrily positive at the trial and remembered every detail of her degradation, now she says in her affidavit that she was mistaken in filing that serious charge against Smith. She could only remember that she was not coerced to surrender to the lust of the gentle accused whom she now describes in effect as a perfect gentleman.

The papers also reported that Nicole was given and accepted the sum of P100,000 from Smith, who made it clear that it was not an admission of his guilt. If it was not so, why did Nicole accept it after her indignant accusations as from a pure maiden forcibly and irrevocably besmeared? Was this adequate compensation for the voluntary surrender of her innocence or was this the cost of her affidavit for confessing and branding herself a liar?

Let it be noted that what Nicole said at the trial and what she now says in her affidavit are both under oath but directly opposed to each other. Which should be believed? Affidavits of recantation are received with caution by the courts and are often disbelieved as purchased with thirty pieces of silver. One hundred thousand pesos may be a big amount in our kind of money but it is eminently a bargain in dollars to change a damaging sworn testimony.

As a justice of the Supreme Court, I do not recall accepting an affidavit reversing the sworn testimony of a witness as more believable than the earlier evidence given at the trial subject to examination by the opposing counsel and especially the trial judge. The affidavit submitted by the defense in the case against Smith has not been identified, much less defended, by Nicole who is reportedly already in the United States.

Her mother says her daughter has decided to stay there for good and has no plans to return to the Philippines, where she might identify the affidavit as her own act and deed recited in grammatical English with all its legal overtones. The US government may have its own plans, and may persuade?or force?her to come back here to validate her affidavit, which, as it stands now, is merely an unsupported scrap of paper.

It has been held that ?by itself, an affidavit of desistance is not a ground for the dismissal of an action once it has been instituted in court. A private complainant loses the right or absolute privilege to decide whether the rape case should proceed because the case was already filed and must therefore continue to be heard by the trial court.? (People v. Dimaano, 469 SCRA 647)

How will the Court of Appeals decide this case with all its legal, political and diplomatic questions confusing the final outcome of a simple case that began with a meeting of two young persons who found themselves in the middle of a casual flirtation that has become a minor international situation? The case began more than three years ago, at much cost of time, money and emotional anxieties, and has yet to be resolved. Let us hope it will be decided soon?and with full adherence to law, justice and the truth.

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