Deconstructing Nicole’s Affidavit

By Carlos H. Conde

Nicole’s statement was not a “recantation” or a reversal of what she said during the trial. The media, of course, quickly concluded that, because this does not seem to fit with the earlier narrative, it must be a reversal.

But nowhere in the document did Nicole say that she was not raped. In fact, she even said, “I did not immediately tell my boyfriend that I was raped by Daniel Smith. All I said was that something bad happened to me.” She said she was too drunk and, as such, she “can�t help but entertain doubts on whether the sequence of events in Subic last November of 2005 really occurred the way the court found them to have happened.” She had doubts about the “sequence of events,” not on whether Smith had sex with or raped her.

She also said: “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.”

These passages do not change the fact that 1) Smith had sex with her inside the van, 2) that she was too drunk to know, let alone control, what was happening and 3) that having sex with a very drunk person, as Katrina Legarda put it on ANC this afternoon, is never consensual. “Having sex with a drunk woman is rape. It’s like necrophilia,” Legarda said.

Indeed, Nicole’s narration of events based on her affidavit may even bolster her claim that she was too inebriated that night and Smith and his friends took advantage of her condition. Whether she found Smith attractive, whether they became touchy-feely with each other — this is all beside the point, which is that she was too drunk to know what was happening, too weak to control her faculties or rein in her impulses.

So what was the point of the affidavit?

Reading and rereading Nicole’s it, I am convinced that, more than anything else, it was meant to depict Smith in a benign light, that he was not the monster that this case has made him out to be. It also depicted US servicemen as a friendly bunch — “We treated them as family,” Nicole said, whose own family lived inside a military camp in Zamboanga where they interacted with US troops on a regular basis.

Without a doubt, the point of the affidavit was to influence the justices of the Court of Appeals. They could use the “recantation” angle to paint Nicole as a liar. But they will conclude from reading Nicole’s statement that Smith and company were not monsters, that they did not set out to the Neptune Club looking for prey, that they were just a rowdy group of middle-class American boys out to have some fun, that this was all a misunderstanding.

A misunderstanding that, because of Smith’s conviction, has dire implications for the United States. The United States will never yield control of its forces to the authority of other governments, judicial or otherwise. That would be anathema to their geo-political ambitions and interests. Thus, Washington will never allow a “mere understanding” between drunk and horny people to mess things up by setting a precedent that can threaten the way America deals with other countries.

The Court of Appeals will look at Nicole’s affidavit, as well as the fact that she is now in the US for good, as an affirmation of the notion that she is getting on with her life and that this had been a mistake, a bad night for Nicole and the servicemen, who are not monsters after all, according to Nicole herself. They will think that the cost of upholding a conviction — the cost to Smith and to the interests of the Philippines and the United States — is too high a price for both nations to pay for a night of wild partying that went awry.

Which is why the Court of Appeals will overturn Smith’s conviction, and the Supreme Court ruling ordering the Americans to remand Smith to Philippine custody will be rendered moot, and everything will be honky-dory.

Which is why the United States will keep doing what it is doing.