At 26, Jennifer Laude was full of joy, her friends said. She was fearless and beautiful, her sister added. She was a generous daughter, according to her mother. And she died shortly after 11 p.m. on Oct. 11, 2014, in a motel room in Olongapo, a port city about 100 miles north and west of Manila in the Philippines, at the hands of an American she had met earlier that evening at a nightclub, a Marine who was in the country for joint military exercises.
After discovering that Laude was transgender, Lance Cpl. Joseph Scott Pemberton, who was 19 at the time, choked her and pushed her head into a toilet bowl until she drowned. Then he took a taxi across town to Subic Bay, where his ship was docked, and, according to a shipmate who later testified in court, admitted what he had just done.
Fourteen months later, Pemberton was found guilty of homicide, a charge downgraded by the judge from murder, and was sentenced by the Olongapo Regional Trial Court to six to 12 years in prison, which was later reduced to a 10-year maximum on appeal. Pemberton was the second U.S. service member in living memory to be convicted of a felony by a Philippine court — and the first whose conviction stood without being overturned. It marked a major victory in the eyes of human rights advocates in the country who have been fighting to hold American service members accountable for violence against Filipina women — which they see as a byproduct of the U.S. military’s 120-year presence that fueled an exploitative and still-thriving sex industry. With the Pemberton conviction, it seemed that justice was finally moving in the right direction.
But on Sept. 13, Pemberton was put aboard a U.S. military cargo plane and flown out of the Philippines, a free man. A week earlier, President Rodrigo Duterte made the bombshell announcement that he had granted Pemberton an absolute pardon, nullifying the Marine’s sentence after less than six years served.
The pardon is the final chapter of a polarizing, high-profile case that has cost the U.S. Marine Corps more than half a million dollars and provoked debate over decades-old defense treaties between the two countries. In recent weeks, the legal maneuvering intensified in complexity and speed, to the point where the presidential pardon came just hours after Duterte’s own administration filed a motion to block a court order that would have freed the Marine on other grounds. Underscored by Duterte’s seemingly inconsistent approach to his country’s relationship with the United States and a historic power imbalance between the Philippines and its former colonial ruler, the recent developments have seen the case deteriorate into an apparent tool for political leverage rather than justice.
“This should give us a lesson that the U.S. has no respect for our sovereignty,” Virginia Lacsa Suarez, the attorney for the Laude family, told The New York Times in response to the court order to release Pemberton that was issued even before the pardon. “It shows that the U.S. looks down on us, that the U.S. does not even respect our laws.”
From the beginning, the United States maintained an influence over the Pemberton case, despite the Philippines’ jurisdiction over crimes committed by U.S. service members. In 2014, Pemberton was first questioned by the United States Naval Criminal Investigative Service instead of Philippine police, and he was initially held onboard his ship, the U.S.S. Peleliu, anchored in Subic Bay, and then under U.S. guard at a Philippine military base, instead of in a Philippine jail. After he was arrested, the Marine Corps hired an attorney to represent him and paid all his legal fees, which had exceeded $550,000 by this fall, according to Lt. Col. Chris Perrine, a spokesman for U.S. Marine Corps Forces, Pacific. “The U.S. government is authorized to enter into a contract and pay for the legal representation of service members in foreign criminal matters,” Perrine said by email.
It tells us how, even in our own country, if you are of a particular gender, if you are a transgender woman, your life matters lessRey Valmores-Salinas, Bahaghari National spokeswoman
After the guilty verdict was announced, the judge ordered Pemberton to start serving his sentence at New Bilibid Prison, the largest detention facility in the Philippines, where more than 26,000 convicted men sleep in crowded cell blocks, disease festers and temperatures can reach over 100 degrees in the summer. But that detention order was revised just hours later, in deference to the Visiting Forces Agreement, the 1999 legal framework that governs many aspects of the United States military presence in the Philippines. The agreement grants the United States considerable privileges toward determining where convicted American personnel will be detained, and Pemberton remained in a private air-conditioned cell fashioned from a shipping container at Camp Aguinaldo, a Philippine military base where he was monitored by two guards from the Philippine Bureau of Corrections and a steady rotation of U.S. service members. Pemberton’s rank remained unchanged and he continued receiving his monthly salary of about $2,300, totaling more than $160,000 since the killing. “Pemberton is entitled to receive pay until judicial proceedings, including appeals, are complete and the court affirms the conviction,” Perrine said.
The pardon last week brought back bitter memories for Filipinos of another case in which a U.S. Marine was accused of rape. In 2006, Lance Cpl. Daniel Smith received a 40-year prison sentence for raping Suzette Nicolas, whom he met at a nightclub in Olongapo — the first felony conviction of an American service member in a Philippine court since the United States closed its military installations in the early 1990s. Smith was held briefly in a Philippine jail, but after the United States canceled a joint military exercise in the Philippines, he was handed over to the U.S. Embassy. Smith remained at the embassy for more than two years, until Nicolas unexpectedly recanted her accusation and Smith was acquitted and returned home.
“In both cases, there are many forces trying to undermine the testimonies of the victims, or the witnesses or their families,” says Cristina Palabay, who was involved in protests that included picketing the U.S. Embassy in 2005 after Smith was accused of rape. Today Palabay is the secretary general of the Philippine human rights organization Karapatan. “I still really believe, in the context of the Philippines, no woman would claim that she was raped when she was not.”
Suarez, who has been working pro bono on behalf of the Laude family since 2014, said she had guessed that something was going on with Pemberton’s case almost two weeks before Duterte’s announcement. On Aug. 25, Pemberton’s attorney, Rowena Garcia-Flores, met with Laude’s older sister Marilou to hand over a check for roughly $95,000 in civil liability damages, a penalty that was issued in 2015 when the Marine was convicted. The next day, Suarez learned that Pemberton’s defense team had quietly withdrawn his appeal from the Philippines’ Supreme Court in June.
“From the get-go, it was fishy,” says Rey Valmores-Salinas, a spokeswoman for the L.G.B.T.Q. organization Bahaghari National, a Manila-based nonprofit that has coordinated events and protests using the hashtag #JusticeForJenniferLaude since 2015. “If you were in Pemberton’s shoes and you wanted to be free, why would you withdraw your petition at the Supreme Court? Our suspicions were that he was confident that he was going to be released soon.” Less than a week later, Suarez says, she received an email confirming their fears. Garcia-Flores had submitted a motion under the Philippines’ Good Conduct Time Allowance law, and Judge Roline Ginez-Jabalde, the same official who convicted Pemberton in 2015, ruled that the Marine was free to go, on the grounds that he had already served almost six years and had earned four years off his sentence for good behavior while in custody.
“A crime happened, and Pemberton paid for it under the Philippine law without any special privileges,” Garcia-Flores says. “If people think that he’s being given some special treatment, they are wrong.”
Suarez immediately moved to oppose Pemberton’s release, and so did the Department of Justice, arguing that only the Bureau of Corrections, not the Philippine courts, had the authority to determine whether Pemberton deserved time off his sentence for good conduct. But on Sept. 7, shortly after the Department of Justice filed its motion, Duterte met with Secretary of Justice Menardo Guevarra to discuss his constitutional right to grant an absolute pardon. At 4:51 p.m. the same day, Duterte’s secretary of foreign affairs, Teodoro Locsin Jr., announced the pardon in a tweet. “If there is a time when you are called upon to be fair, be fair,” Dutuerte said later in a televised address.
The news drew protests as the president’s critics took to social media and the streets, organizing demonstrations in Manila to voice their anger at Duterte’s decision. Many members of the L.G.B.T.Q. community thought the president was sending a signal that the Philippine government doesn’t believe that the lives of transgender women are important. “It tells us how, even in our own country, if you are of a particular gender, if you are a transgender woman, your life matters less,” Valmores-Salinas says. “This is about how we are the people that are silenced, that are raped, that are killed first because we are the ones that society listens to last.”
Beyond the question of whether the pardon was an anti-trans reaction by Duterte, it may have also been a strategic move to gain an advantage in relations with the United States. For nearly a century, the United States maintained a large military presence at a series of bases across the Philippines — a period that saw much abuse and violence against Filipina women and girls by American service members. At that time, military personnel were protected from prosecution in Philippine courts under a Status of Forces Agreement; criminal actions, when they were acknowledged, were instead addressed by the U.S. military justice system. In 1991, after years of protests from anti-base campaigners, a volcanic eruption and the end of the Cold War, the Philippine Senate rejected a renewal of the treaty, ending America’s ongoing military presence. But U.S. troops returned eight years later under a new Visiting Forces Agreement and continue to participate in hundreds of joint military exercises every year.
In February, Duterte gave notice that he was terminating the Visiting Forces Agreement, a move that many interpreted as a response to the U.S. State Department revoking the visa of Senator Ronald dela Rosa, the former National Police chief widely regarded as the architect of the administration’s notoriously violent war on drugs. Then in June, Duterte confirmed that he wouldn’t be canceling the agreement for at least another six months, and in July, dela Rosa announced that the United States would be reinstating his visa.
An agreement between two countries
Despite Duterte’s outwardly critical stance toward the United States, relations between the two countries remain strong. In August, the U.S. Agency for International Development donated 100 ventilators to the Philippines, as part of more than $22 million in U.S. funding to help the country tackle the novel coronavirus. Days earlier, the State Department approved a $126 million sale of scout, assault and light support boats to the Philippine government. It’s the latest in more than $1.5 billion in arms that Duterte’s administration has moved to purchase from the United States this year, despite calls from Human Rights Watch for Congress to block the sales, citing the Philippine armed forces’ lengthy history of military and human rights abuses.
John Schaus, a senior fellow in the International Security Program at the Center for Strategic and International Studies in Washington, says Duterte was always likely to take a pragmatic approach to Pemberton’s release. “He’s willing to engage with us, but it’s not his first preference in most situations,” Schaus says. “But when an opportunity presents itself to advance his priorities in a way that is palatable to him, he’s willing to entertain it. He doesn’t strike me as someone who is going to terminate things or cut things off if they’re beneficial to him.” Just months before a general election in the United States, he added, it would make more sense for Duterte to wait to see the outcome before deciding whether to scrap the Visiting Forces Agreement.
From a U.S. military perspective, visiting forces agreements (and status of forces agreements in countries where the military is permanently based) are necessary precautions in countries where the United States wants to maintain a strategic presence — including the Philippines, a key player in responding to China’s rising power in the western Pacific. The Visiting Forces Agreement ensures that the two countries have a predetermined process to be followed if a service member is arrested and charged with a crime, when tensions are likely to be high. In Pemberton’s case, Schaus thinks the process proved a success: Pemberton was consistently subject to Philippine law. “Whether or not he should be incarcerated longer or has served an adequate amount of time — the Philippine court system came up with a judgment about that, based on its own internal standards, and I think that’s exactly what the Visiting Forces Agreement would call for,” Schaus says.
Upon leaving the Philippines on Sunday, Pemberton was brought to Camp Smith in Hawaii. “The Marine Corps is taking appropriate administrative action,” Perrine said. He was unable to indicate whether Pemberton will be demoted, or if he will be given a less-than-honorable discharge.
As the Laude family grieves for their daughter, many Filipina women and members of the L.G.B.T.Q. community say the message from their president is clear: The decision to pardon Pemberton was not about justice, or Jennifer. “If you call for justice for Jennifer, that’s never going to happen for so long as the Visiting Forces Agreement stands,” Valmores-Salinas says. “That’s never going to happen for so long as any U.S. soldier stands in Philippine soil.”