The historic symbol of justice, Justitia, is depicted as a blindfolded woman carrying a sword in one hand and, on the other, weighing scales to measure the strength and weakness of a case.
Over the years, quite a few have asked how a blindfolded person could possibly read the scales of justice. And many have questioned the wisdom of handing a sword over to someone who is blindfolded and who can indiscriminately injure anyone with that sword, including the victim.
Those questions about the symbol of justice came to the fore on April 23, 2009, when a three-woman Philippine Court of Appeals panel acquitted US Marine Lance Corporal Daniel Smith of raping the Filipina known as Nicole. It was not rape, the blindfolded judges decided, but merely the “unfolding of a spontaneous, unplanned romantic episode.”
“This court finds deceptively posturing Nicole’s portrayal of herself as a demure provinciana lass,” the Judges ruled. “On hindsight, we see this protestation of decency as a protective shield against her own indecorous behavior.” How could they "see" this with blindfolds on?
As the Philippine Daily Inquirer noted in its April 27, 2009 editorial ("The Romance of Rape"), “only decorously behaved women can be raped, right?” With this horrendous decision, the judges have given men in the Philippines the license to rape any woman who has not behaved “decorously” or who cannot rightly claim a “protestation of decency.” This is a precedent-setting decision that will cause significant harm to all women.
Rape is an extremely difficult case to prosecute because, as British Chief Justice Lord Matthew Hale declared in the 17th century, "in a rape case, it is the victim, not the defendant, who is on trial." The judges eagerly pronounced Nicole guilty because, in their eyes, she was only deceptively posturing herself as a demure provincial lass.
As the Inquirer editorial concluded, “the ruling pushes the jurisprudence on rape back to the 20th century; after all this time, the special division still understands rape as essentially a private crime, as a crime against chastity.”
But perhaps the judges were not going just a century back but thousands of years back in time to the days of the Old Testament of the Bible, when Deuteronomy (22:22-23) wrote that “if within the city a man comes upon a maiden who is betrothed, and has relations with her, you shall bring them both out of the gate of the city and there stone them to death: the girl because she did not cry out for help though she was in the city, and the man because he violated his neighbor’s wife.” The difference of course is that the judges here only ordered the rape victim to be stoned while freeing the rapist.
In modern times, the crime of rape (or "first-degree sexual assault" in some states) has been defined as non-consensual sexual intercourse that is committed by physical force, threat of injury, or other duress. A lack of consent can include the victim's inability to say "no" to intercourse, due to the effects of drugs or alcohol as the trial court found in Nicole’s case.
The judges disputed the trial court’s assertion that Nicole was too drunk to give her consent by finding that “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.” The judges were likely using their own personal experience to make this determination and using the eyewitnesses who saw Nicole dancing even after imbibing alcohol to conclude that she wasn’t that drunk.
But the judges ignored the testimonies of those witnesses who testified at the trial that they saw Lance Corporal Daniel Smith carry Nicole on his back as he took her out of the bar to a waiting van. The judges also ignored the testimonies of witnesses also testified that Nicole was semi-conscious when she was dumped from the van after she was raped.
Nicole didn’t say no to having sex with Smith because she was too drunk to say anything. But even if she was sober enough to say no, the judges also ruled that “Resistance by words of mouth [sic] does not suffice to establish that she indeed did not give her consent to the sexual intercourse.” As far as the judges were concerned, Nicole gave consent to sex, whether she was drunk or sober.
In Muslim countries which practice Sharia law, wives are barred from saying “no” to their husbands’ demand for sex so husbands can never be charged with raping their wives. In most countries, however, consent to sex is required whether in a marital relationship or not. Consent need not be expressly made as it may be implied from the context and from the relationship of the parties, but the absence of objection does not of itself constitute consent.
The International Criminal Tribunal for Rwanda in its landmark 1998 judgment used a definition of rape which did not use the word consent. It defined rape as: "a physical invasion of a sexual nature committed on a person under circumstances which are coercive.”
Nicole, as Conrado de Quiros wrote, “was plied with drink and God knows what else in a bar, shoved into a van, and raped inside by an American serviceman while his four buddies egged him on with cries of "F__k! F__k! F__k!" Later, she was lifted out of the van by her hands and feet by two men like a pig ("parang baboy") and deposited on the pavement. She had on only a shirt and a panty, a condom still sticking to her panty. Someone from the van threw a pair of pants in her direction, and the van drove off.”
In Rwanda, this would be considered rape.