Re: Change!

Greg Mossman wrote:
On May 5, 9:42 am, "Douglas W. \"Popeye\" Frederick"
<Pop...@xxxxxxxxxxxxxxxxxxxxxxx> wrote:

?From the narration, after draining all those drinks of Sprite
Vodka, B-52s, Singaporean sling, B-53 and half a pitcher of
Bullfrog, although feeling dizzy, she danced with Smith through all
four songs for about 15 minutes. She did not drop on the floor nor
did she vomit.?

Alcohol takes a little while for its effects to "peak", especially if
she had anything in her stomach to slow the absorption. 15 minutes
she's still dancing, 15 minutes later she's comatose in the back of a
van getting gangbanged by a bunch of kids yelling Ooh-rah!, and 15
minutes later they're dumping her out on the road and calling her a
pig in front of witnesses.

These kids are saints!

I don't think anybody is calling them saints.


http://en.wikipedia.org/wiki/Subic_rape_case (worth the read).

Hardly worth the read. It's completely biased.

Unlike the other accounts of the proceedings... outside of the court
records.


A lot of the materials cited in the footnotes are worth reading,
however.

"A key passage (crucial, but not the most offensive) in the CA?s
decision reads thus: ?No evidence was introduced to show force, threat
and intimidation applied by the accused [Smith] upon Nicole, even as
the prosecution vainly tried to highlight her supposed intoxication
and alleged unconsciousness at the time of the sexual act.?

"This finding suggests that only the presence of force, threat or
intimidation can affect a woman?s capacity to give consent to sex; it
also intimates that women of ?audacity and reckless abandon? (the
language of the CA?s special division, describing Nicole?s behavior)
cannot ever plead that their capacity for consent has been
compromised.

Did you read the Courts' decision?

http://ia301511.us.archive.org/3/items/SubicBayRapeCaseDecisionByCourtOfAppeals/smith_decision_ca.pdf

I found the most relevant parts (including the quote supplied by your
source) on pages 68 and 69 of the pdf.

The quote continues by saying 'But it must be stressed that the Information
did not allege "deprived of reason or otherwise unconcious." Hence,
evidence as to said means of committing rape cannot be considered and which
indeed was objected to at every step during the trial.'

The decision then goes on to cite case law that basically says if the
accuser wants to use the "deprived of reason or otherwise unconscious"
section of the law, the suit must specifically state as much.

Are things any different here in the US? Can a prosecuter charge a
defendant for a crime committed under a certain section of the law and then
provide eveidence of the crime under a different section of the law?

It's much the same as a speeding ticket I got in college. I was given a
ticket for doing 53 in a 40. I contested the ticket and went to court. I
listened as the DA asked the policeman (who actually showed up) all kinds of
questions about where he was parked while using his speed gun, how the speed
gun had been calibrated, when the speed gun had last been tested for
accuracy, and a number of other such questions. When I got my chance to
"cross-examine", I asked the officer how he knew what the speed limit in a
certain area was supposed to be. He stated that he has a book that tells
him the location of every speed limit sign. I asked him if he visually
verified that the sign for the area he was shooting existed. He indicated
that he had not. I then asked him if he knew what the speed limit of the
area before said sign was and he indicated that he did not know. I had no
further questions. The DA had no further witnesses, so I took the stand. I
stated that I was reasonably certain that I was going however fast the
officer said I was. I was not contesting my speed in the case. I then went
on to say that the last sign I had seen that night was a 45 MPH sign. Since
that night, I had been back to the area on many occasions in an attempt to
locate the 40 MPH sign. I had been unable to do so. The DA then asked me a
few mostly irrelevant questions and let me step down. The judge then told
the officer to check the location to see if a sign existed and to report
back to the court his findings within a week. he judge then ruled that if
the 40 MPH sign was there (and was readily visible), then I was guilty. If
it was not, and after he asked the DA what he wanted to happen in case the
sign was not there, the DA said and hte judge ruled that the DA had not
proven his case (traveling 53 miles per hour in a 40 mile per hour zone) and
I would be not guilty. While the circumstances were different, the same
logic applied. I had been charged with a crime I didn't commit (under the
circumstances with which I was charged).

It looks to me like the rape probably occurred and the prosecuting attorney
completely screwed things up. If that's true, then it really sucks for the
accuser because she will never get justice for the crime that was committed
against her.

Does the Phillipines allow double jeopardy?


"The finding negates the breakthrough made in the original ruling of
Makati Regional Trial Court Judge Benjamin Pozon, which emphasized
that intoxication can rob a woman of the capacity to give consent.
Pozon?s emphasis is in accord with the liberalizing tendency that led
to the (hard-fought) victory in Congress redefining rape as a crime
against persons?and is in keeping with the trend in law that grants
greater recognition to the dignity of women.

No it doesn't. What it does is two things. First, it emphasizes that if
you are going to use intoxication as a reason, you have to make it known
before the proceedings begin. Second, it emphasizes that if intoxication is
going to be used as an argument, you must be able to prove the intoxication.
Neither of those things occurred in this case (at least, not to the appeal
court's satisfaction)..


"The special division took issue with the RTC?s assertion that Nicle
was too drunk to give her consent??When a woman is drunk, she can
hardly rise, much more stand up and dance, or she would just drop.
This is a common experience among Filipino girls.? This blithe and
too-
pat assumption runs counter to the eyewitness accounts heard in the
trial court, about Smith carrying a woman on his back to the van, and
about an almost unconscious woman being dumped outside the van (after
the ?romantic? deed was done).

No, what it does is state that the evidence presented was not good enough to
prove to the court that she was too drunk to give consent and that it really
doesn't matter either way because that wasn't the allegation.


"Worst of all, the decision trivializes the ?No? of the drunk Nicole.
?Resistance by words of mouth [sic] does not suffice to establish that
she indeed did not give her consent to the sexual intercourse,? the
court said.

Was there a "No" from the drunk Nicole?

Only the people in the van know for sure. I'm assuming that Nicole said
there was and that the Marines said there wasn't.

As a matter of fact, the Marines claim that there was a yes, that nicole
willingly removed her own clothes, and that she even put the condom on
Smith. That doesn't really strike me as the actions of a woman who said no.

So we have a case of he-said/she-said and, without the intoxication issue
being part of the allegations, the defense would have been unaware that they
needed to prepare for that. I'd be willing to guess that any appeals court
in this country would have ruled the same way. Is our system broken? Maybe
so, but it's the only system we've got. Would it be better to surprise the
defendant with charges that he was unprepared to face? I don't think so.


"What did they expect? A memo?"

http://www.inquirer.net/specialfeatures/subicrapecase/view.php?db=1&article=20090427-201619

What was that you were saying about biased sources?


.

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