Canto reached out to both Tiny Diapana and the senior writer/workshop panelist accused in the case. The panelist, however, declined to give a statement and did not consent to an interview.
He pointed out that he had already given an official statement on Facebook (see screenshot below) and that he stands firm in his denial of any allegation of sexual assault.
Upon checking, the panelist appears to have deactivated his Facebook account. Based on this and the request of Ms. Diapana, we have redacted the accused’s name from the screenshot.
Her nickname, Tiny, may sound small–but thanks to a single Facebook Note, she’s caused a massive, seismic furor in a usually staid Filipino literary community.
Not really surprising: it’s not every day that a young aspiring writer like Tiny Diapana accuses a senior writer in his 40s–well-established, respected, a winner of several prestigious awards–of rape.
The case is now pending at the city prosecutor’s office and both Tiny and her assailant await the decision on whether the case is deemed worthy of going to trial in court.
“Can we not mention his name?”
The voice over the phone does not sound like it belongs to a grown woman in her 20s. It’s still rather girlish, even mousy–halting, yet overall, still firm and resolute in tone.
For legal reasons, she requested that the name of her alleged assailant, a senior panelist at a well-established, national writers workshop, be redacted from this article.
When Tiny starts telling parts of her story, I understand more why her Facebook Note broke the hearts of senior female writers and enraged someone like journalist and author Joel Pablo Salud. It’s even sadder when told in that mousy, on-the-verge-of-cracking voice.
“Ano siya, ano siya po. Parang may three blackouts during that period. May memories ako before the blackout like the early onset, the start of the party with the rest of the Fellows. And then I remember what happened outside my room. And then a little bit of, a few pieces of, of the sexual acts that happened inside my room as well. Pero parang may blackout periods in-between,” Tiny said.
Tiny shared her story–how she got very drunk at a party, blacked out a few times, and somehow, with fuzzy recollections of the night’s previous events, woke up naked and alone in her room.
She remembered kissing the much older writer and panelist–and very little else. She had no clear memory of whether or not they went as far as actual sex.
However, she was sure that, had she not been so drunk, she would never have kissed the panelist nor gone beyond that.
If this was simply a case of ill-advised, spontaneous, drunken sex between two consenting adults, then the situation would be, relatively, simple. However, Tiny contends that sans the alcohol, she would never have done it.
In short, she never consented to the act–making it fall within the realm of a crime: sexual assault or maybe even rape. Tiny has resolved to file a court case against the panelist but it wasn’t an easy decision.
Af first, even she wasn’t sure if the sex act really happened. She was so drunk that she had to ask help from witnesses to tell her what transpired.
“The morning after the incident, I started asking around. I started asking people who were sober that night. I continued investigating I continued asking around. Because you know I, I wanted to make sure. I wanted to know the truth. What really happened because, I, I didn’t want it to happen!”
“I didn’t want to wake up naked, alone in my room. I just wanted really to go home. I just wanted to go home it was exhausting, to be in a workshop, and I just wanted to go home happy and, you know, safe. But instead, I find myself in this situation it was so alarming for me,” Tiny said.
Help not hurt
According to both Tiny’s Facebook Note and her statements during this interview, it seems that immediately after the incident she acted like any student would when faced with something alarming–yet also strange and confusing.
At that point, Tiny wasn’t out to save her reputation; neither was she feeling shame nor seeking to get back at anybody. She did what seems to be what any young writer, who went to the national workshop seeking mentors and guidance, would do: she asked for help.
Tiny asked for help even from the panelist involved in the drunken tryst. She describes his response in this way: “He was very unhelpful and he was very dismissive.”
Conversation on Messenger
It seems that the only conversation she had with the panelist about what happened was through Messenger Chat. Tiny described how the chat went:
”I asked him, sir, what happened. He said that he was drunk so he doesn’t remember very well. So I told him, ‘Me too, my last memory was laying down next to sir Hermie. I just want to piece things together. I really didn’t want things to get far. Do you remember who started it? I just remember we were kissing and then getting into the room. Then I blacked out. I just feel terrible. I don’t wanna hurt my boyfriend like this.’“
“And then he responds: ‘I vaguely remember being fully clothed and on my back the entire time. Even when I got up, I think.’”
“And then I respond, ‘Okay maybe nothing happened. Did anything happen, sir?’”
“Then he said, ‘Oh I’m sorry this is causing you much anguish.’”
“He’s not really admitting to anything he’s just sorry that it’s probably hurting me.”
“So I told him, ‘Sir, I’m very liberated, I make a lot of kinky jokes but I’m also very committed. I don’t wanna hurt my partner in any way. I really hope nothing happened.’”
“Then he says, ‘I understand, I’m very committed, too.’”
“Then I ask him, ‘What do you plan to do, sir?’”
“And then this is his reply, ‘Honestly, I just plan to move on with my life and so should you, I think. I’m certain that I didn’t go drinking that night with any intention, sexual or otherwise, on anyone. I’m sure neither did you.’”
“Parang he wants to shift the blame on me,” said Tiny.
Facing the court
“I really intend to pursue this matter legally,” Tiny replied when I asked her what she plans to do next, after all the furor her allegation has caused; not to mention all the bashing she and/or her claim has received in social media–interestingly, female lawyers have been bashing her claim as well.
I’ve talked to several lawyer-friends about Tiny’s case to get their opinion on it and they all say the same thing: She is going to have a tough time convincing the court that she did not consent to what happened between her and the Panelist.
This is because of one legal principle that takes effect: the court will judge the testimony of a plaintiff (the complainant) or a defendant (the accused) based on that person’s actions, not thoughts or intent.
“The presumption is, the court cannot read minds–so it’s impossible to know what’s going on in there. So instead, the court will look at what the persons involved, the accuser and the accused, were doing–not what they were thinking because that’s impossible to know–during the time the supposed crime was committed,” said my lawyer-friend Jayda.
[Not her real name, I am not using the real names of my lawyer-friends because they gave me their inputs informally, as a favor.]
Reading Tiny’s own account of what happened, her behavior (that she says she wasn’t fully aware of) on the night in question shows her participating actively in whatever was going on with her and the Panelist. There were witnesses who saw this.
She reported kissing the panelist and then going into his room with him. Later on, “M”, Tiny’s friend and co-writing fellow comes into her room to check up on her. This is what Tiny wrote about it in her FB Note: Noticing that I was no longer with everyone, M decides to head downstairs to my room to check up on me. After all, we were friends.
“However, when M enters my room, I am nowhere to be found. (Whatever happened in KS’ room, must have taken a while). [Tiny refers to the Panelist as “KS” because he was the workshop’s keynote speaker.]
“M only finds H, my roommate who drunkenly keeps going on and on about the NDMMRC. Soon after, he says that KS and I have arrived by the doorway. According to M, KS and I are already kissing. He didn’t catch who initiated it but we’re kissing, and we walk into the room.
“KS sits down on my bed, and according to M, I get on top of the panelist, and take off my clothes. I don’t remember this – I was very inebriated that night. His clothes are taken off too. Then according to M, I drunkenly ask him to ‘Friend, please….’
“I don’t understand what this is supposed to mean, but M takes it as a signal to leave, and so he takes H and leaves, locking the room behind us.”
Notice that, from an observer’s point of view, it never looks like Tiny was being forced to do anything. In fact, even her friend M who sees what’s going on, neither seems alarmed nor concerned by what’s happening. In other words, Tiny may not have consented to these acts in her mind but her body, her actions, her behavior seemed to show consent to what was going on.
Based on a general history of its verdicts in rape cases, the Supreme Court in the Philippines (and we can presume in the lower courts as well) requires that the accused assailant uses “force, threat, or intimidation” to consummate the sexual act. Without these, it will be very hard to prove rape (or even sexual assault for that matter).
“F-I-T = force, threat, intimidation” has even become a mnemonic to law students when they study rape and sexual assault cases in class. Corollary to this is the SC’s expectation that, when faced with, force, threat, and intimidation, a woman must actively resist.
Project Jurisprudence discusses this and how the Supreme Court usually demands that the alleged rape victim must resist with all her might against her alleged assailant in order to show that she is not consenting to the sex act.
The case discussed in the article, People vs. Amogis, overturned the conviction of alleged rapist Dindo Amogis (by the trial court) and acquitted him of the rape. A reading of the SC ruling in the case shows that the Court also looked for signs of injuries sustained by the alleged victim, on the premise that an unwilling female would sustain injuries due to forced penetration, as well as other injuries as a result of her struggle against her attacker.
As the SC ruling says: “Resistance must be manifested and tenacious. A mere attempt to resist is not the resistance required and expected of a woman defending her honor and chastity.”
Of course, simply because the SC demands “manifested and tenacious” resistance from a victim of sexual violence, it doesn’t mean that the high court is completely right.
Now imagine being the victim and needing to convince the court your lack of resistance doesn’t mean your assailant is not guilty.
The Supreme Court uses a “commonsense” criteria when judging consent. If a person tries to rape you, then “naturally” you would put up a fight. However, scientific studies do not support this commonsensical but still narrow view.
A study published in the medical journal Acta Obstetricia et Gynecologica Scandinavica found that the majority of victims in an emergency clinic for rape survivors in Stockholm experienced “tonic immobility” during the assault.
Tonic immobility (TI) is an “involuntary, temporary state of motor inhibition in response to situations involving intense fear.” Assessment of victims also found that women who experienced TI go into a “catatonic‐like state with muscle hyper‐ or hypo‐tonicity, tremor, lack of vocalization, analgesia and relative unresponsiveness to external stimuli.”
This means, in simpler language, that a sexual assault victim may become paralyzed and nearly catatonic: unable to move, speak, or even feel. They also become unresponsive to events around them or to what’s being done to them. This does not necessarily mean she is unconscious–just paralyzed and unable to react.
Research on tonic immobility has mostly been done on animals and is thought to be an evolved survival response to predators. In response to an extreme attack by a predator, when the prey has no other means of defense–it’s like an animal playing dead so that the attacker loses interest and, hopefully, will not cause too much damage to the prey.
(Tonic immobility in humans however, has been studied more limitedly; usually, the subjects of the study are soldiers and sexual assault victims.)
The point is, in the face of scientific and medical evidence, the Supreme Court’s criteria for consent requiring active and vigorous resistance might not reflect the reality of what actually happens to women during a sexual assault.
Certainly, if faced with the choice of dying or getting seriously hurt, tonic immobility may allow a woman to get raped but also let her survive with fewer injuries. Not the best outcome, certainly, but from a survival standpoint, still preferable than getting killed.
The reality is, we can never predict a person’s cognitive responses to instances of abuse and assault. This explains why some victims stay in abusive relationships. It also explains why some women’s brains “freeze” during a sexual assault.
We can only hope that our courts, led by the SC, would eventually consider the latest findings in neurobiology and the scientific studies on trauma victims.
Drunken sex muddles everything
The fact that both Tiny and the Panelist were both drunk during the incident does not help either of them.
We’ve all known drunk people who turn into seemingly the opposite of their sober personalities. Shy, reserved people start dancing on tabletops, maybe even taking off their clothes. Normally quiet, timid people can become aggressive and loud. Alcohol really does strange things to our brains.
Tiny contends that being so drunk made her respond sexually to the Panelist. She says that had she been sober, she would never have done so. One can also wonder if the same principle can apply to the Panelist. Is it also reasonable for the Panelist to say that had he been sober, he would not have done anything remotely sexual to Tiny?
One article discusses extensively the complications that drunken sex brings to a situation. As the author writes:
“Take, for instance, situations where people meet up, drink, and end up having a drunken one-night-stand. They wake up and neither one really remembers what happened the night before. Both may regret what happened. Maybe she gets pregnant from the encounter. Maybe they exchange some sexually transmitted disease. Maybe one of them had a significant other they just cheated on. What happens if only one regrets the encounter? Is it rape? How could he or she have consented while being wasted?”
Some people will simply say, well, if one of you is drunk, then clearly no full consent can be given. So don’t have sex. That’s well and good if one of you is sober. Or at least, less drunk and more in possession of your wits. But what if both of you are drunk? To the point where, as Tiny describes it, she barely remembers what really happened, and had to ask friends and witnesses for details.
Clearly, in this day and age, having sex while drunk is a bad, bad idea. It doesn’t even matter if you are lovers or even married. If one of you becomes drunk and unable to give clear consent, it’s possible that a rape case may be filed.
Incapacity and consent fluidity
It’s likely that, if Tiny ever faces the panelist in court, the judge will look into the level of incapacity that she experienced during the incident. Will the judge agree that, while Tiny’s behavior showed that she was actively participating in a sexual act, she was in reality incapacitated: not able to give full consent because the alcohol had impaired her cognitive functions.
In other words, she “was not herself” during the incident, merely acting out from the effects of drunkenness and therefore, unable to give true and full consent.
The Philippine Supreme Court, along with many other courts in the world, considers “incapacity” as a state where the victim has become so weakened, either by alcohol, drugs, or traumatic injuries, that she is no longer able to resist; a state where the victim is either nearly, if not outright unconscious. Or she could be mentally deranged or ill.
Being drunk, in the view of the SC and other courts, does not necessarily take away the capacity to give consent. This is a legal perspective that many women, sex assault victims, and activists are fighting to change. Women’s rights advocates say that consent must be “voluntary, enthusiastic, and clear” and an ongoing agreement between the participants to engage in a specific sexual activity.
Consent, advocates say, can be fluid: woman or a man, for instance, may give consent to sex before the act but–for one reason or another–have a change of mind during sex. He or she doesn’t want sex anymore. If sex is forced on the partner who changed his or her mind, then that constitutes sexual assault or rape.
Not sex but power
Tiny says hers is not an isolated case among female writers in the Philippines. So this fight, in a way, is not just for herself. “Opo sir, I think it’s terrible kasi parang rampant talaga yung cases of sexual assault, sexual ano, rape. Assault, misdemeanors yung mga ano. Even outside the literary scene. A lot in the literary scene. So many workshops you can just hear stories about it but the victims don’t come out.”
She added that she received little help even when she spoke to the Iligan National Workshop’’s Director, Christine Godinez-Ortega.
When I first called the workshop director she said, “O, day this is really the culture of ano, workshops. You know that. People drink and things get out of hand. Besides this is a matter that happened behind closed doors. So this is between you and him.”
Ortega has denied these allegations in an earlier interview here.
Pressure to shut up
Tiny also said that she faced a lot of pressure to just keep quiet. Mainly because there were people who doubted her story.
“Initially I was really disheartened by what happened. I really wanted to keep mum about the situation because I didn’t know if I would get as much support, knowing how patriarchal everyone could be. I knew some people would blame me; they’d say things like, ‘Maybe you wanted it’ or ‘O, kasi you were drunk naman, e.”
“They would try to lift the blame off him and say, ‘O, he was also drunk.’ In fact, some of my co-fellows even, they even blamed me. So parang, I didn’t want to take it to social media. I wanted to keep quiet about it but I was very careful and prudent about my actions. I asked for legal advice. I asked for, you know, help from the workshop.”
Despite the challenges, Tiny is determined to go to court. She is also anticipating some sort of fallout in her career as a writer because of the case.
“Yeah. That’s terrible! Parang, kasi like most, most of the time, you know the assailants are people in power and they believe, most of the time people believe people in power. And it’s so hard I, I really wanted like, I was so devastated because my first thought was, ‘How could I fight this? How could I fight this, he’s so much, he has, a better, you know, resume than I do. He’s an editor, he’s ah, the first science writer to MIT and, has so many friends in Manila.”
“Who am I? I’m just a, a small poet like uhm, I’m an aspiring poet. I don’t even have my first book, I don’t even, I have nothing! I just joined a few national workshops and that’s it. Like, who would believe me? He has so many friends in the community.”
“And my biggest fear is if I would come out, like people in the community would be divided, and they would blame me, and then whatever I would do, like if I wrote a book, if I tried to submit to Palanca, it would always be tainted. It would be tainted by you know, what happened. If I came out I would always be known, oh, as the girl who accused [the panelist] of, you know, sexual assault.”
And yet, Tiny is still resolved to pursue the case despite the odds. This is something not all rape victims are able to do–something that also reflects on the sort of society we have in the Philippines.