Turns out United States Marine Private First Class Joseph Scott Pemberton is just 19 years old and graduated High School only last year. In a report published by the American news site South Coast Today, Pemberton is described by his uncle as “a really good kid” while a neighbour called him “a friendly person” and recalled his last memory of the boy “walking home from school and just waving as I was cutting the grass”. According to the report, Pemberton graduated in 2013 from technical school majoring in metal fabrication and joining.
At 26 years old, on the other hand, the late transgender Jeffrey Laude was seven years Pemberton’s senior. Laude, we recall, was found dead in an Olongapo City apartment after supposedly checking in with Pemberton early this week. Pemberton has since been the primary suspect in an on-going homicide investigation supposedly being conducted by the Philippine police supposedly with the “full cooperation” of the US military who are in the Philippines for joint naval exercises. It was later revealed that Laude is engaged to a German national who he reportedly met on the Internet — information Laude’s family seemingly withheld from the public in the first statements they released to the media following the discovery of Laude’s remains.
In popular parlance, Pemberton is “barely legal”. United States law considers sexual relations with a minor (defined as a person below the age of 18 years) a crime and the legal drinking age under US law is 21. The equivalent of statutory rape in Philippine Law is stipulated in Republic Act 8353, or the “The Anti-Rape Law of 1997” and is called Chapter Three Rape.
Under this clause, rape is committed…
By a man who shall have carnal knowledge of a woman under any of the following circumstances:
a) Through force, threat, or intimidation;
b) When the offended party is deprived of reason or otherwise unconscious;
c) By means of fraudulent machination or grave abuse of authority; and
d) When the offended party is under twelve (12) years of age or is demented, even though none of the circumstances mentioned above be present.
A strong case could be made in Pemberton’s favour around Items (b) and (c) owing to his being under the influence of alcohol and possibly also to Laude’s significant seniority over Pemberton and the widely-held theory that he had misled Pemberton into thinking he was a woman. Indeed, according to the testimony of witness Mark Clarence Gelviro who was Laude’s other companion at the hotel, Laude had “asked him to leave before the foreigner could discover that they were transgenders.”
However, as shown in the snippet above, a quirk in Philippine law seem to imply that only men can be convicted of rape and only women can be regarded as victims of rape. While Pemberton evidently does not qualify as a minor in this case as Philippine Law has a far looser definition of what constitutes a minor, he also may not qualify because he is a man. And if that detail could be somehow circumvented by Pemberton’s defense, his attorneys will have to convince Philippine courts to regard Laude as a man — his gender at birth.
It is ironic that activists who are making this case out to be about “equal rights” could later be relying on a law that is inherently gender-biased to further their cause against not just Pemberton but the entire US Military organisation.
It is also interesting to note that Filipino transgenders have quite the track record of publicly misrepresenting themselves. A most recent case is Filipino male transgender Geena Rocero. Rocero had been a contestant at gay beauty pageants in the Philippines since he was 15 then migrated to the United States and registered himself with the authorities there as a woman. This was after he underwent the “necessary surgery” in Thailand to complete his physical transformation. Rocero then went on to a career in fashion modeling as a woman, apparently not disclosing his past as a man to his colleagues until recently.
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