By Tonette Orejas, Ansbert Joaquin
OLONGAPO CITY -- The case of the alleged rape of a 22-year-old Filipino woman by US Marines at the Subic Bay Freeport is now in court.
Olongapo Prosecutor Prudencio Jalandoni and Assistant Prosecutor Raymond Viray yesterday filed rape charges against four of the original six American suspects and their Filipino driver, and demanded custody of the Americans and their detention in an Olongapo jail.
The four Americans are the first foreign soldiers to be charged with rape since the RP-US Visiting Forces Agreement (VFA) was implemented in 1999 to allow military exercises between the Philippines and the United States.
But in Manila, Undersecretary Zosimo Paredes, executive director of the Presidential Commission on the VFA, has all but given up on the Philippine government's efforts to gain custody of the soldiers.
The VFA allows the US government to keep custody of the accused "until the completion of the case," Paredes told the Inquirer in a phone interview.
"Warrants of arrest can be issued, but they can't be served if the US invokes the VFA. They can be refused unless the US grants our request," he said.
"When there's a clash between a domestic procedural law and a treaty like the VFA, the treaty prevails," he added, conceding that the provisions on custody were "really in [the Americans'] favor.
Chief State Prosecutor Jovencito Zuño told reporters that the Department of Justice would "abide by the VFA agreement that the US Embassy can retain custody of all the accused."
But Zuño said this did not mean that private prosecutors could not ask the court to assert its jurisdiction and order local authorities to acquire custody of the Americans.
He said the "final decision" would "come from the court."
Zuño also said it would not be far-fetched for the custody issue to reach the Supreme Court. But he said this would be disadvantageous to the prosecution given the fact that it had only one year to complete the judicial proceedings.
Sought for a reaction, the 22-year-old woman and her family -- who have since returned home to their native Zamboanga City -- sent the Inquirer a text message saying they were "very happy."
Those charged were Staff Sergeant Chad Brian Carpentier, Lance Corporals Daniel Smith, Dominic Duplantis and Keith Silkwood, and van driver Timoteo Soriano Jr.
Two other American soldiers -- Lance Cpl. Albert Lara and Cpl. Corey Burris -- were cleared after a month-long preliminary investigation.
"We believe that the victim was raped," the prosecutors said in a resolution filed before lawyer John Aquino, clerk of court at the Olongapo Regional Trial Court.
"The US military authorities holding them in custody pursuant to the [VFA] are hereby authorized to release them [to local authorities] unless held for some other cause or causes," the prosecutors said.
The alleged rape occurred on Nov. 1. The woman filed a complaint on Nov. 3.
The prosecutors dismissed the complaint against Burris and Lara because "it cannot be inferred from the records that they were inside the van when the incident occurred, despite the earlier allegation of the unreliable Soriano."
Jalandoni said Silkwood and Duplantis were the "least guilty" and could turn state witness.
Soriano was named a principal accused because he "drove the van in a slow and roundabout way, precisely to give Smith more time to sexually ravish the victim," the prosecutors said, adding:
"Thus, Soriano, like Carpentier, having exhibited overt acts, conspiracy among them is established."
They said Carpentier, the platoon leader, failed to exercise his "moral ascendancy" over his men.
Citing VFA provisions, Viray said the prosecution would leave it to the Department of Foreign Affairs (DFA) to determine the appropriate detention center for the four Americans.
Among the possible detention sites are the jails in Olongapo, the National Bureau of Investigation, and the "brig," a prison facility maintained by the US Navy until 1991 at the then Subic Naval Base, now a free port.
Jan. 3 raffle
The raffle of the case to at least three RTCs in Olongapo is set for Jan. 3, said clerk of court Aquino. The judge assigned to the case will then issue arrest warrants for the five accused.
But according to Jalandoni, the accused may also voluntarily surrender.
Viray and Jalandoni said they would serve as public prosecutors during the trial and allow private prosecutors to assist them.
Jalandoni said the judicial proceedings should be completed in one year, in accordance with a provision of the VFA.
Citing the DFA interpretation, Viray said the reckoning would start on the date of the filing of the information for the charges.
But even as the four accused undergo trial in a Philippine court, the US Navy has set court-martial proceedings against them in Okinawa, Jalandoni said.
"We will have parallel proceedings," he said.
Petition for review
Katrina Legarda, lead counsel of the complainant, said that while the legal team was glad about the filing of charges, it was "seriously considering" a petition for partial review questioning the exclusion of Lara and Burris.
She pointed out that Smith, in a report on his interrogation by the US Naval Criminal Investigative Service, admitted the presence of the two other Marines in the van.
Benjamin Formoso, counsel for Smith, said he would file a motion to quash the resolution.
He claimed that what had transpired between Smith and the woman was sex with consent.
Formoso also said the resolution had "prejudiced" the business climate in Olongapo and the free port.
"No ship will dock anymore," he said, adding that "two big [US military] ships" were diverted to Singapore in November as a result of the incident.
The custody issue alone will "take time," Formoso said, adding that he would ask the court to determine if it would be appropriate to hand Smith to local authorities.
The US Embassy in Manila has kept custody of the six original suspects, saying they had remained in the country to face judicial proceedings.
In a statement yesterday, the embassy said those charged were still here, and mentioned Smith and company by name.
It noted that the complaint against the "other US military personnel"-referring to Burris and Lara -- had been dismissed, but did not make clear if they were still in the country.
The DFA formally asked the US Embassy on Nov. 16 to turn over the six soldiers, to no avail.
"The US will continue to cooperate with Philippine authorities in accordance with the VFA as the case moves to trial under Philippine jurisdiction," the embassy said, adding:
"[Washington remains] committed to seeing that justice is served, and looks forward to a fair and impartial process that can provide for a just outcome." With reports from Volt Contreras and Armand N. Nocum in Manila