Nicole has been influenced, says Magsaysay

“Nicole,” the woman who cried rape, did not complain of rape on the morning of November 1, 2005 after parting with the US serviceman she had accused of committing the act, according to a lawmaker.

Speaking at the Serye Café news forum in Quezon City, Zambales Rep Mitos Magsaysay, who claimed she was the first person to talk with Nicole after the incident, said Nicole’s latest affidavit backtracking from her previous testimony “hews more closely” to what really happened than her original complaint, which led to US Marine Lance Corporal Daniel Smith’s conviction.

“The circumstances she described in her new affidavit are what she and other witnesses narrated to me,” she said.

Magsaysay, whose district covers the Subic Bay Freeport where the rape took place, said the complaint that Nicole filed with the Olongapo Prosecutor’s Office “was different in some parts to the story that she told me.”

“There were obviously some people who took over and influenced her,” she said. Magsaysay said Nicole was crying when she first talked to her, but that she did not complain of rape. “She was more concerned about the possibility of her mother getting angry at her because she was out the whole night,” she said.

Magsaysay said Nicole narrated to her the circumstances of how the incident with Smith came about.

“And based on her narration, and the interviews I made with her sister, her cousin, other witnesses at Neptune bar (inside the free port) and the driver of the van Smith, his companions and Nicole rode in, I concluded that no rape took place,” she said.

The van driver told her and later testified in court that he heard no utterances of resistance such as “No, no!” or “Stop, stop!” from Nicole inside the van, she added.

During the same forum, Cebu City Rep Antonio Cuenco urged the Court of Appeals to now resolve Smith’s appeal. “The appeal has been pending for more than three years now,” he said.

Cuenco said he believes that Nicole’s change of heart should have no bearing on the court’s decision to uphold Smith’s rape conviction.

A group of women’s rights advocates believes that Nicole’s recantation “should not be given weight.”

In a statement, Clara Rita Padilla, EnGende Rights execuitive director, said the timing is “suspicious” as there is “strong clamor” to abrogate the Visiting Forces Agreement.

“As a private prosecutor of violence against women cases, I’d like to say that we should respect Nicole’s decision,” she said.

“The pressure must really have been too much for her. It is also important to mention that the Supreme Court has decided in a long line of cases that recantation of a witness should not be given weight.

“It has also been decided by the Supreme Court that the findings of fact of a lower court, the regional trial court in this case, bear a lot of weight.

“Thus, the conviction of Smith should be upheld by the appellate court.” Padilla said Nicole was a victim of the “ills” brought by the VFA. “If the pressure to issue the recantation was specifically made to squash the momentum to abrogate VFA, then those behind this move are mistaken because no such acts will dampen the hearts of Filipinos who want the VFA abrogated,” she said.

“The fight to abrogate the VFA will continue to rage on. Without the VFA, there wouldn’t have been a Nicole.”

Nicole must be extradited so she could swear to the truthfulness of her affidavit of recantation, an anti-crime advocate said yesterday.

Dante Jimenez, Volunteers Against Crime and Corruption founding chairman, said the US and the Philippines could forge a deal to force Nicole to return home from the United States.

“This is a special situation of a government-to-government treaty, and maybe they can look into an exception to the rule,” he said.

Jimenez said the VACC plans to ask the Supreme Court to order the reopening of the Subic rape case based on how the verdict of “guilty beyond reasonable doubt” has become doubtful.

“We thought that this was her version of the incident, that’s why we won,” he said. “I am asking now the question of how we could rectify, kung totoo yung sinasabi niya (in her new affidavit), the wrong decision on Smith,” he said.

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“The problem now lies on whether the affidavit signed by Nicole can be used to reopen the case.”

“I feel we have to reopen the case, the Supreme Court should look into this. VACC is supposed to be with victims but it seems the victim now is Smith.”

Jimenez said Nicole should personally swear to the truthfulness of her second affidavit and validate the same before a judge or a justice to clear the issue that it was written by a lawyer from the firm defending Smith.

“Who knows, maybe she didn’t really sign it,” he said.

“I still doubt that she made the affidavit, until she personally swears to it. I’m still inclined to believe what she testified to before.

“It has become complicated, the perception of who’s the victim has shifted from Nicole to Smith.”

He knew Nicole’s father because they both served in the Philippine Navy, Jimenez said.

Reacting to Jimenez’s proposal to reopen the Subic rape case, Nicole’s former lawyer Evalyn Ursua said she does not want to dignify the idea, although she herself doubts that her former client executed the affidavit recanting her earlier testimony that Smith raped her three years ago.

On the issue of charging Nicole with perjury, Ursua said Justice Secretary Raul Gonzalez and the entire government should “be held accountable” for what happened to Nicole’s case.

“From day one, they wanted Nicole not to pursue the case,” she said, adding that the DOJ secretary has been anti-Nicole from the start.

If Gonzalez and company can prove that Nicole was not forced, threatened, pressured and muzzled by the government, the US and Smith’s lawyers, “then we can talk of perjury,” Ursua said.

‘Leave her in peace’

Malacañang has called on Nicole’s critics to leave her in peace, which is what she and her family have been asking since she decided to recant her testimony and live a new life in the United States.

Speaking over government-run dzRB radio, Press Secretary Cerge Remonde said everyone concerned should respect the decision of Nicole and her mother to allow them to live a normal life.

“We must respect the sentiments of Nicole and her parents,” he said.

“I think the mother of Nicole has already given many interviews, and the people have heard what she has to say. What we are asking for now is to just respect the family’s wishes.”

Nicole and her family have stated that the US government had nothing to do with her decision to recant her testimony that Smith had raped her, Remonde said.

Deputy presidential spokesperson Anthony Golez urged the critics of Nicole to set aside their emotions and respect her decision.

“We should move on from now on,” he said.

“She should be left alone because that is what she wants.”

Meanwhile, Golez said the government was not “dragging its feet” on the VFA’s review and on Smith’s custody.

In the case of treaties, one side cannot unilaterally decide to review or take any action on the agreement, he added.

Golez said the issue of Smith’s custody has not yet been resolved because the government has filed a motion for clarification before the Supreme Court.

“The legal proceedings have not yet concluded, but the Supreme Court has ordered the transfer of the custody of Smith,” he said.

“We have to wait for the answer of the Supreme Court.” – With Helen Flores, Michael Punongbayan, Marvin Sy

A review of the VFA could still be done “with the view of improving the system,” Golez said.

The SC has ordered the government to secure Smith from the US embassy where he has been detained since he was convicted of rape in 2006. PHILIPPINE STAR