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1/12/2008 5:11:43 AM

Nicole impliedly admitted such awareness. She was able to describe the sexual encounter. Hence, she was not legally “unconscious,” and there was no rape.

Moreover, given the circumstances—Nicole was in an Olongapo bar, drinking the night away with American servicemen—it was reasonable for Smith to conclude that she wanted sex. Drinking is often a prelude to sex. Hence, he did not have the requisite criminal intent.

Feminists may cry “Unfair!” How about all the women who are unable to verbalize their objection to sex out of drowsiness or fear? The doctrine, however, does not so much discriminate against women as provide protection for any male or female accused of any crime. It would not be just to incarcerate him or her for an act committed without criminal intent.

Public outrage against a celebrity like Jalosjos ensured that he receive the harshest of penalties and that he not be pardoned. In the process, however, the greater evil of child prostitution, as instantiated by Delantar who peddled his daughter’s sexual favors, and of the toleration or protection by religious institutions of their pedophiles, remain unreported and unchecked. The public vented its rage and used its energy on one man, while conveniently neglecting the larger problem.

The rule of law was the loser in the “Nicole” case. Given the harsh glare of public opinion, the case was not decided according to its merits. The judge either incorrectly applied the law or created new law to the prejudice of the accused.

These are the more important and lasting lessons to be learned from the Jalosjos’ pardon and rape.



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