Arrest warrants out today for GIs in Subic rape case

Olongapo City Regional Trial Court Branch 73 Judge Renato Dilag said yesterday arrest warrants will be issued today for the government to secure custody of four US Marines accused of raping a 22-year-old Filipina at the Subic freeport zone last November.

Meanwhile, the United States Embassy in Manila allowed Philippine officials to meet with the four US Marines yesterday, but gave no indication whether it would grant a Philippine government request, coursed through the Department of Foreign Affairs (DFA), to take custody of them.

Prosecutors allege that Lance Cpl. Daniel Smith raped the victim inside a van in Subic as fellow Marines cheered him on. Smith claims the sex was consensual.

Also charged were Lance Cpl. Keith Silkwood, Lance Cpl. Dominic Duplantis, Staff Sgt. Chad Carpentier and Timoteo Soriano, the Filipino driver of their rented van. The Marines are part of the 31st Marine Expeditionary Force stationed in Okinawa, Japan.

"After assessing all the evidence presented by both the prosecution and the defense, the court has determined that serving the arrest warrants is the proper action," Dilag said.

He added that Philippine authorities will serve the warrants for the US servicemen "through proper channels."

Dilag said he has consulted Foreign Affairs Undersecretary Zosimo Paredes on the provisions in the RP-US Visiting Forces Agreement (VFA) regarding the issue of detention.

The VFA, he said, states that the governments of the Philippines and the US may agree on a place to detain the American servicemen as they face the charges filed against them in the Philippines.

Dilag will hear the case today to discuss the motion filed by Olongapo City Prosecutor Prudencio Jalandoni to have custody of the American servicemen transferred from the US Embassy to Philippine authorities.

Since the complaint was filed against them, the American servicemen have been detailed at the Joint US Military Assistance Group inside the embassy compound. They could face the death penalty if convicted.

Jalandoni said in his motion that the four Marines should be under Philippine custody because primary jurisdiction over the case belongs to the Philippines.

"It being settled that the primary jurisdiction over the case belongs to the Philippines, and the act complained of demand happened in the country, the prosecution demands upon service of the arrest warrants that the physical custody of all the accused be transferred to the Philippine authorities pursuant to the VFA and Philippine laws on the matter," Jalandoni said.

Marines in detention

Meanwhile, Paredes, executive director of the Presidential Commission on the VFA (VFACom) which is closely monitoring the case, met the four Americans at the heavily guarded mission, embassy spokesman Matthew Lussenhop said.

It was not immediately clear what was discussed in the meeting sought by Philippine officials, Lussenhop said, adding that it shows the US is abiding by a pledge to make the accused available.

Paredes also inspected the Marines’ quarters, Lussenhop said.

Lussenhop said it is possible that Washington could turn down Manila’s request to gain custody of the US servicemen.

"I don’t want to speculate. But that’s a possibility because under the VFA, the custody resides with the US until the end of the judicial proceedings," he said.

Lussenhop said Washington has not responded to the Philippine government’s Nov. 16 note verbale, but pointed out that "it is a complicated issue and it is a serious request. There are lots of players involved. There is the government and the military. It is not something that will get a quick response."

He said Washington was still considering Manila’s request, although US officials say they have the right to keep the Marines in custody.

"The terms of the Visiting Forces Agreement allow for the accused to remain in US custody until the end of judicial proceedings," the embassy said in a statement.

Paredes was joined by three other officials of the VFACom when he paid a visit to the servicemen.

The four US Marines, who are under tight security, were presented to the VFACom officials by First Secretary for Political Affairs Paul Ofriel.

Paredes also visited the villa-type structure at the embassy where the accused servicemen are being held. Security personnel are on a 24-hour watch to ensure that they do not leave the area.

The VFACom officials’ visit lasted for about 15 minutes. The officials did not talk to the US servicemen, who were accompanied by their Filipino lawyers.

A VFACom official, who requested anonymity, said the Marines were in civilian clothes and that Smith appeared to have lost weight.

The official said the VFACom wrote the US embassy last week and requested that its officials and members wanted to see the four servicemen.

In a statement, Paredes said he met the Marines "to verify that the accused remain in US custody in the Philippines." He found that the servicemen "are restricted to quarters and they have no official working role at the US embassy."

The statement was in response to local press reports that the four were being allowed to roam freely around a US compound and had been detailed temporarily with a military advisory group.

The rape case is seen as a test of the bilateral VFA, which allows large-scale US military exercises in the Philippines.

Some Philippine lawmakers have called for abrogating the accord if the government fails to receive custody of the Marines. The Philippine government formally asked Washington for custody in November, but there has been no reply.

"We recognize that the VFA gives certain privileges to US soldiers, but they could not be above Philippine law," DFA spokesman Gilbert Asuque said.

DFA Secretary Alberto Romulo, who is in Washington to appear before the International Center for the Settlement of Investment Disputes in connection with the government takeover of the Ninoy Aquino International Airport Terminal 3, said all government actions in connection with the Subic rape case will be closely coordinated among the agencies involved.

He said while the Philippines’ note verbale stands, any difference between the two countries on this issue would be settled through diplomatic means.

‘No force used on victim’

In a related development, one of the four US servicemen asked Justice Secretary Raul Gonzalez yesterday to clear him of the rape charge.

In a 30-page petition for review filed through his lawyer Francisco Rodrigo, Carpentier, 27, maintained his innocence and claimed that prosecutors misread the medico-legal certificate presented by the alleged victim.

"There is no evidence to show that force or intimidation was employed against the victim," Carpentier’s petition read.

The petition asked Gonzalez to reverse and set aside the Olongapo City prosecutor’s resolution indicting him for rape.

"The contusions on the victim’s private parts do not conclusively establish rape. It is generally known that even consensual sex may cause contusions. Worth noting is the finding of deep healed lacerations at the complainant’s vagina, which indicate that these lacerations could have occurred four to 10 days prior to the medical examination," Carpentier said.

He said the complainant and Smith, 20, were together at the Neptune Club on the night the alleged rape occurred.

"The complainant boarded the van, where the rape supposedly took place, of her own volition. She was sober, not inebriated or otherwise deprived of reason, much less unconscious," Carpentier said.

He noted that the fact that the complainant recalled "with precision" the cocktails she consumed — Vodka Sprite, B-52, B-53, Long Island Iced Tea and a Bullfrog — belied her claims that she was intoxicated when she was allegedly assaulted.

Carpentier said he and Silkwood saw the complainant sitting on Smith’s lap when they went around the club in order to round up the members of their platoon.

Carpentier said they were in a van since they were in a hurry to return to their ship within the furlough period.

"Mere companionship does not establish conspiracy. When a circumstance is capable of two interpretations — one consistent with the accused’s guilt, and one with his innocence — the latter must prevail," he said, adding that conspiracy must be established not by conjectures, but by positive and conclusive evidence. — With Jose Rodel Clapano, AP, AFP