American soldiers still demigods in PH

Inday Espina-Varona

Posted at Dec 02 2015 08:13 AM

Photos by Dennis Datu, DZMM
Photos by Dennis Datu, DZMM

Ten years after a Filipino woman accused an American of raping her during a liberty break in Olongapo City US troops remain demigods in this former colony.

Judge Roline Ginez-Jabalde of the Olongapo City Regional Trial Court's Branch 74 sentenced today US Marine Private First Class Joseph Scott Pemberton to a jail term of 6 to 12 years for the October 12, 2014 killing of Filipino transgender Jennifer Laude.

“Bittersweet” doesn’t quite begin to describe the feelings of Laude's family and supporters. Never has a legal win given the victors such grief.

The judge swept away Pemberton’s claim to self-defense. She said no one but Pemberton could have killed Laude. But she downgraded the sentence from murder to homicide. She also ordered Pemberton to very little by way of damages.

Laude’s mother, Julita, wept as she expressed  bewilderment. She thought the judge had clearly showed Pemberton’s guilt, so why the downgrading to homicide?

"Nagpapasalamat ako sa lahat. Nasiyahan naman ako dun sa pagbasa dahil inisa-isa, hinimay-himay talaga lahat... Pero hindi ako kuntento dun sa sinabi na anim na hanggang sampung (sic) taon. Bakit ganun?

"Ang importante makukulong siya. Hindi nasayang yung pinaglalaban namin. Makukulong siya. Hindi nasayang ang buhay ng anak ko na hindi niya mapagbabayaran.”

In a few hours even that consolation lay crushed under American might and Philippine subservience.

The judge ordered Pemberton immediately brought to the national penitentiary in Bilibid, a temporary arrangement, until the Philippine and US governments decided on a mutually acceptable Philippine facility for the convicted man.

Judge Gines-Jabalde's original order on Pemberton's detention. Graphic by Altermidya

That didn’t happen.

The judge allowed only one camera into the courtroom and kept journalists outside, so the public had to rely on descriptions by Laude’s prosecution team.

Ginez-Jabalde left after the promulgation. In the courtroom, Pemberton stood inside a protective circle of around a dozen American guards. Philippine cops formed an outer circle, awaiting the decision on a hand-written note of clarification passed on by the defense team.

The standoff ended when the judge issued a new order for Pemberton to be held at the Armed Forces of the Philippines (AFP) custodial center in Camp Aguinaldo.

She gave representatives for the US and Philippine governments five days to agree on a facility for Pemberton while he appeals his sentence. He remains under US custody but under the supervision of the Bureau of Corrections.

This lopsided dynamics in justice comes courtesy of Visiting Forces Agreement (VFA).

Shadow of Daniel Smith

The outcome of the Laude case roused memories of the rape case filed by the woman named Nicole against US Lance Corporal Daniel Smith.

Then and now, Americans throwing their weight around. The message: Nobody touches our boys. They may be SOBs but they're our SOBs so stuff it, world.

There was a tussle after Makati Regional Trial Court 139 Judge Benajmin Pozon declared Smith guilty on December 5, 2006. Philippine cops snatched the American from the clutches of bigger US guards. Smith was brought to the Makati City jail.

Four days later Smith’s lawyers submitted an agreement to transfer him back to the US embassy. Then US Ambassador Kristie Kenney and Chief State Prosecutor Jovencito Zuno signed the document.

Pozon denied their plea. They went to the CA, which also junked their petition.

Kenney went up the ladder and got former Foreign Affairs Secretary Alberto Romulo to sign a similar agreement.

Despite another CA rebuff, authorities spirited Smith out of the Makati City Jail and brought him to the US Embassy near midnight of Dec. 29.

In a sorry display of helplessness, the CA denied Smith’s last petition but declared the debate “moot” – rewarding an act that trampled on the Philippine justice system.

Said this story then:

The high-profile case prompted Washington to threaten to call off large-scale military exercises with Manila until Smith was transferred to a detention center within the US embassy, where he remains two years on.

The Supreme Court would later declare the Kenney-Romulo deal outside the bounds of the VFA. The SC said Smith needed to be in a Philippine facility. But Smith never returned to jail.

After a lot of suspicious actions by CA justices, the defense team later leaked a note from Nicole that called to question her recollection of events. She was offered relocation in the US.

The CA, under different judges and saying they did not factor in the so-called retraction, later overturned the conviction of Smith.

Emotional seesaw

Outside the Olongapo court, Laude’s kin, members of the Philippines’ LGBT community and militants awaited the verdict that took hours and three breaks to read.

(They were still there two hours after the reading of Pemberton’s sentence.)

Their sentiments ranged from hope to apprehension to jubilation, outrage and resignation as the clerk read a legal document chockfull of graphic descriptions normally be barred public broadcasts.

There were no snickers, however, not on the ground and not on social media.

People seemed to realize the stakes: The right to life of the country’s undetermined number of transgender people; and the justice system’s ability to do its job under great pressure from a power foreign patron.

Graphic courtesy of Altermidya

For the most part, Judge Ginez-Jabalde wrote a marvel of clarity, a rare thing in a country where too many lawyers spout dense legalese.

She said there was an unbroken chain of evidence – even without direct testimony on the actual slay act – that showed only Pemberton could have killed Laude.

She threw out Pemberton’s self-defense claim. She demolished the defense’s efforts to conjure an unknown suspect as the real killer.

Laude died of asphyxia from drowning. After getting Laude unconscious with an arm choke, Pemberton dragged the transgender to the bathroom. There he placed her by the toilet bowl and put pressure on her nape to submerge her face in water. Pemberton chose the position so he could also flush the toilet bowl to prevent Laude from breathing. And so she died.

So it was a shock when the judge decided on homicide. She said there was no attempt at treachery on Pemberton’s part. The prosecution failed to present ‘expert witnesses’ on the physical ability or frailty of transgender folk, so Ginez-Jabalde dismissed the contention of superior strength. Neither did Pemberton show cruelty, she said.

Pemberton didn’t start his date w Laude with an intention to kill her. But his arm choke left the transgender woman unconscious. Then he dragged her to the bathroom. Then he drowned her.

The American soldier didn’t just benefit from superior might. He used it to finish Laude off. If drowning an already weakened person isn’t cruelty, I don’t know the meaning of the word.

The chilling part, however, is citing as mitigating factor Pemberton’s “passion” over discovering his she-toy was a he.

I understand Ladlad’s Bemz Benedito fear that homicidal maniacs and guys, like Pemberton, too horny to ask the right questions, can now treat transgender people as fair game. Heck, guys torn by their sexuality can take it out on transgender partners.

Simply put, that is an invitation to abuse.

Disclaimer: The views in this blog are those of the blogger and do not necessarily reflect the views of ABS-CBN Corp.