'My conscience bothered me'

MANILA, Philippines - The Filipina who had accused a US Marine of raping her and had at one time become the rallying point in the effort to abrogate the RP-US Visiting Forces Agreement is now singing a different tune.

Saying she was bothered by her conscience, Nicole recanted her testimony and signed a sworn affidavit that she wasn’t sure if she was indeed raped by the accused.

Smith’s lawyer, Jose Justianiano, submitted the affidavit dated March 12 to the Court of Appeals. He said his client has satisfied the civil aspect of his conviction and indemnified Nicole.

“My conscience continues to bother me realizing that I may have in fact been so friendly and intimate with Daniel Smith at the Neptune Club that he was led to believe that I was amenable to having sex or that we simply just got carried away. I would rather risk public outrage than do nothing to help in ensuring that justice is served,” she said in her five-page affidavit.

Nicole said she wondered how she could recall her testimony that Smith kissed her lips and neck and held her breast inside the van, when witnesses told the court that she passed out and looked unconscious when he took her to the van.

“How could I have resisted his advances given this condition? Daniel Smith and I were alone on the third row of the van, which had limited space and I do not recall anyone inside the van who held my hand or any part of my body. What I can recall is that there was very loud music and shouting inside the van,” she explained.

“With the events at the Neptune Club in mind, I keep asking myself, if Daniel Smith wanted to rape me, why would he carry me out of the Neptune Club using the main entrance in full view of the security guard and the other customers. Why would the van park right in front of Neptune Club? Why would Daniel Smith and his companions bring me to the sea wall of Alaba Pier and casually leave this area that was well-lighted and with many people roaming around?” she added.

The victim, who reportedly flew to the US after receiving P100,000 for damages from Smith and terminating the services of her lawyer, also believes that if she was really raped by Smith, “he and his companions would have dumped me instead in a dimly lit area along the highway going to Alaba Pier to avoid detection.”

Officials said they weren’t sure if Nicole’s recantation would be given weight in the pending appeal of Smith at the CA.

Justice Secretary Raul Gonzales said yesterday Smith’s lawyer can ask the CA to declare a mistrial and the fiscal can move for the dismissal of the case on the ground that the evidence is weak.

He clarified, however, that he is not aware of Nicole’s recant and will study it once he gets hold of a copy.

Her statement was reportedly added to Smith’s appeal, which was already submitted for resolution.

This development came after the reported phone call of US President Barrack Obama to President Arroyo over the weekend where the two leaders assured continuation of their partnerships – specifically the Visiting Forces Agreement.

Smith, a participant in the RP-US Balikatan military exercise, was found guilty of raping Nicole on Nov. 1, 2005 and was sentenced to reclusion perpetua or a minimum of 20 years to a maximum of 40 years imprisonment by Makati Regional Trial Court Branch 139 presiding judge Benjamin Pozo.

The US soldier has filed a petition before the CA seeking the reversal of the lower court’s decision.

The appellate court has yet to issue a decision on Smith’s appeal after three justices inhibited themselves from handling the case for various reasons.

Last month, the Supreme Court ordered that Smith be placed under Philippine custody while the governments of the Philippines and the US renegotiate the terms of the Marine’s detention, which should be “under Philippine authorities.”

Malacañang has already reportedly declared that Smith could remain in the US embassy pending finality of his rape conviction.