Navy Hearing in Rape Case Raises Alarm in the U.S.

For roughly 30 hours over several days, defense lawyers for three former United States Naval Academy football players grilled a female midshipman about her sexual habits. In a public hearing, they asked the woman, who has accused the three athletes of raping her, whether she wore a bra, how wide she opened her mouth during oral sex and whether she had apologized to another midshipman with whom she had intercourse “for being a ho.”
The aggressive tactics on display this month and last are part of a case that has generated intense public scrutiny and raised alarms about what are called Article 32 proceedings, which help determine whether cases are sent to courts-martial. Article 32 hearings permit questions not allowed in civilian courts and can include cross-examinations of witnesses so intense that legal experts say they frighten many victims from coming forward.

“These have become their own trials,” said Jonathan Lurie, a professor emeritus of legal history at Rutgers University and the author of two books on military justice. “If this is what Article 32 has come to be, then it is time to either get rid of it or put real restrictions on the conduct during them.”

More broadly, the case at the Naval Academy illuminates what critics say is wrong with trying sexual assault cases in the current military justice system, which is under scrutiny in Congress. One bill to be debated this fall, sponsored by Senator Kirsten E. Gillibrand, Democrat of New York, would take the prosecution of sexual assault cases outside a victim’s chain of command, with a goal of increasing the number of people who report crimes without fear of retaliation.

In the coming weeks, the military judge who presided over the female midshipman’s hearing will send a recommendation to the Naval Academy’s superintendent on how the charges should be disposed of. The superintendent, Vice Adm. Michael H. Miller, will ultimately decide whether to move ahead with a court-martial or drop the case.

Increased scrutiny of the problem of sexual assault in the military, combined with more reporting of attacks, has led to a large jump in the number of such cases that have gone to court-martial. The Defense Department says that 68 percent of sexual assault cases were sent to court-martial last year, compared with 30 percent in 2007.

But those increases have been accompanied by a series of controversies that have roiled the system, including one at Lackland Air Force Base in Texas in which more than 40 female trainees were abused by their instructors, as well as the arrest in May of the director of the Air Force’s sexual response unit, Lt. Col. Jeffrey Krusinski, for what the police said was his groping of a woman he did not know in a parking lot. A recent Pentagon survey found that an estimated 26,000 sexual assaults took place in the military last year, up from 19,000 two years before.

The Naval Academy case stems from a 2012 “yoga and toga” off-campus party near the academy in Annapolis, Md., where the woman, then a 20-year-old sophomore, arrived intoxicated and continued to drink, she said. In testimony at the hearing, held at the Washington Navy Yard, she said she had no memory of parts of the evening and may have passed out.

The next day, the woman testified, she heard from a friend of one of the three football players via social media that she had had sex with them at an Annapolis home known as “the football house.” The football players — Tra’ves Bush, 22; Eric Graham, 21; and Joshua Tate, 21 — were charged with sexually assaulting her and making false statements. The investigation was stymied in part by the woman’s initial refusal to cooperate, academy officials said.

In the Article 32 cross-examination, defense lawyers repeatedly asked the midshipman about a consensual sexual encounter she said she had the next day. In some of the most widely disseminated testimony, Andrew Weinstein, a lawyer for Mr. Bush, asked the woman whether she wore a bra or other underwear to the party and whether she “felt like a ho” afterward. Lt. Cmdr. Angela Tang, a lawyer for Mr. Graham, also asked the woman repeatedly about her oral sex technique, arguing over objections from the prosecution that oral sex would indicate the “active participation” of the woman and therefore consent.

Many military legal experts were appalled by what they heard. “What this case shows is that we think the military justice system can somehow solve the sexual assault problem, but it can’t,” said Diane H. Mazur, an emeritus law professor at the University of Florida. Several military justice experts said Article 32 proceedings should be eliminated.

But Defense Department officials, as well as lawyers and other supporters of the current system, say that Article 32 proceedings can help victims and offer reasonable protections to those accused of crimes.

“The purpose of the Article 32 hearing is twofold,” said Victor M. Hansen, a former military lawyer who is now an associate dean at the New England School of Law in Boston. “One is to ensure there is sufficient evidence to go to trial, and it provides an opportunity for the defense to discover evidence. The prosecution also might want the victim to have a dry run. So there are some advantages there for victims.”

But Mr. Hansen said the process could be changed to look more like proceedings for civilian rape trials, in which questions about a woman’s sexual techniques would not be allowed. In civilian courts, rape shield laws either prohibit or limit questions about a woman’s sexual history.

Susan Burke, the lawyer for the female midshipman, has filed a federal lawsuit seeking to strip the authority of the Naval Academy’s superintendent over the case. The superintendent does not attend the proceedings, but he decides whether to send a case to a court-martial, determines who serves on the court-martial jury and has the power to uphold or overturn the jury’s findings.

“I have been contacted by many, many rape victims told they had to go through this abusive process,” Ms. Burke said. “One of the complexities is they are forced to go through this, but the decision maker is not in the room.”

The Joint Service Committee on Military Justice, which reviews potential changes to military law, is considering a proposal that would give sexual assault victims in Article 32 hearings new protections to shield them from the kind of questioning the midshipman experienced.

The measure has picked up the support of several prominent retired generals, including Lt. Gen. Claudia Kennedy, who in 1997 became the first woman to reach the rank of three-star general, and Brig. Gen. Loree K. Sutton, who served as the highest-ranking psychiatrist in the Army.

“What we have now is a deepening erosion of trust in the military,” General Sutton said. “There is no doubt in my mind that our senior leadership are concerned about this. What I am less confident about is that they know what it takes to fix the problem.”

Culled from The New York Times