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Questioning has concluded in a military hearing that will determine whether three male U.S. Naval Academy students will face a court-martial for the alleged sexual assault of a female classmate. The accused Midshipmen, all former Navy football players, declined to speak Tuesday after their accuser spent five days testifying. The case is being closely watched by many as the Pentagon, Congress and the Obama administration work to address the broader issue of sexual assaults in the military. We find out what happened at the hearing and what comes next.
- Eugene Fidell Florence Rogatz Visiting Lecturer in Law, Yale Law School; co-founder and former president, National Institute of Military Justice
- Melinda Henneberger Writer, Washington Post.
MR. KOJO NNAMDIFrom WAMU 88.5 at American University in Washington, welcome to "The Kojo Nnamdi Show," connecting your neighborhood with the world. Later in the broadcast, the story of a Virginia farm and the son who fought to save it. But first, the hearing over rape allegations at the US Naval Academy came to a close last night. Earlier in the week, when the midshipman accusing her colleagues of sexual assault stepped down from her fifth day at the witness stand, she had endured more than 24 hours of questioning.
MR. KOJO NNAMDIDefense attorneys asked her how often she lied, what her dance moves were like, and whether she was wearing underwear the night of the assault. The rape allegations center around an off campus party where members of the US Naval Academy football team allegedly sexually assaulted their fellow student after she blacked out from drinking.
MR. KOJO NNAMDIThe hearing has put a spotlight on how the military deals with cases of sexual assault within its ranks. Critics say it's a case study of why only a fraction of service members who experience sexual assault ever come forward. Here to explain is Melinda Henneberger. She's a writer for The Washington Post where she's been covering the US Naval Academy's sexual assault hearing. Well, Linda Henneberger, thank you for joining us.
MS. MELINDA HENNEBERGERThanks for having me.
NNAMDIJoining us by phone is Eugene Fidell, who teaches Military Justice at Yale Law School. He served as a judge advocate for the US Coast Guard. Eugene Fidell, thank you for joining us.
MR. EUGENE FIDELLMy pleasure.
NNAMDIIf you'd like to join the conversation, if you have comments or questions, call us at 800-433-8850. Have you been following this case at the US Naval Academy? What are your thoughts? 800-433-8850. You can send email to firstname.lastname@example.org. Melinda, the hearing for rape allegations at the US Naval Academy lasted a week, and during several of those days, the proceedings focused on the testimony of the alleged victim. And most readers of your reporting, I suspect, were as surprised as I was by both the explicit and the intrusive nature of some of the questions asked. Could you describe for us what the courtroom environment was like?
HENNEBERGERWell, one difference from anything we see in the civilian world, in a hearing like that, that's known as an Article 32 hearing, is that the kind of intimate nature of it. It's a small room. It's not a traditional courtroom. So everybody, accuser and accused, is in pretty tight quarters for a very long time. It's a more -- one of the experts I talked to called it a more collegial environment in that it's very informal. It's relatively informal.
HENNEBERGERAnd there are very few limits, as we saw, on the kinds of questions that can be asked or the length at which the defense attorneys for the accused were able to question the accuser. So, hour after hour of asking her these questions like to describe her oral sex technique. As you mentioned, was she wearing underwear to this party? Did she wear a bra to this party? Does she carry condoms in her purse? Does she grind on the dance floor? On and on and on.
HENNEBERGERAnd even in those instances, when the investigating officer, a.k.a., what we would call the judge, said let's move on from this line of questioning, then the defense attorney would cheerfully withdraw that question and start again with a very similar line of questioning.
NNAMDIAfter four days of questioning, the Naval Academy student who was the alleged victim asked for a day off. What about her testimony allowed for that unusual break in the hearing? The defense attorneys didn't seem to think that it was warranted.
HENNEBERGERNot only did they not say that it was warranted, but they accused her of faking exhaustion. And one of the defense attorneys actually said that it would be more strenuous for her to be at home than to be relaxing in a chair in the hearing room. They said, "we do not concede that there's anything stressful about this process." In the end, the accuser's private attorney, Susan Burke, sent her home even before the court gave permission saying she simply couldn't go on, and kind of, you know, after the fact, the judge said, "yeah, she can have the day off."
NNAMDIEugene Fidell, you heard the description and I'm sure you read the descriptions of the testimony that Melinda Henneberger was just describing during the woman's cross examination, when she was asked what she was wearing to the party. She was asked how often she lied about specific questions about her sexual habits. How unusual or not is this kind of questioning for a hearing of this kind?
FIDELLI thought this questioning was beyond the pale. Part of that is simply the result of the number accused, or people charged with crime here, because they all have a right to confront the witnesses against them. They all have the right to examine the witnesses. But, I must say, reading the Post's excellent coverage, that I felt the presiding officer, the Article 32 investigating officer, should have ridden her much more carefully about over the lawyers and prevented what struck me as abusive questioning by the defense council.
NNAMDISome lawmakers, Eugene, argue that all cases of sexual assault in the military should be handed over to civilian courts. How would a case like the one at the Washington Navy Yard play out in a civilian court?
FIDELLWell, to some extent, it depends on the jurisdiction the case is being tried in. You know, state law governs the rules of evidence in state cases and it varies to some extent from state to state and it varies from judge to judge. But, you know, one thing that's very important, Kojo, this wasn't the trial. This was simply a preliminary investigation to decide what the convening authority should be urged to do. The presiding officer gets to make a recommendation to the so-called convening authority, who's a naval commander.
FIDELLAnd that convening authority can either accept or reject the recommendation. So this is all just a prelude to the real McCoy, which will be the whole thing all over again, and in a courtroom, and that will be open to the public.
NNAMDIEugene Fidell teaches Military Justice at Yale Law School. He served as judge advocate in the US Coast Guard. He joins us by phone. Joining us in our studio is Melinda Henneberger. She's a reporter for The Washington Post where she's been covering the US Naval Academy's sexual assault hearing. You can call us at 800-433-8850. In your view, should the defense department go about reforming how the military handles sexual assault cases, and if so, how?
NNAMDIGive us a call. 800-433-8850 or you can us a tweet at kojoshow. Melinda, the sexual assault reportedly took place at an off campus party where both the defendants and the accuser were drinking. The alleged victim testified that she blacked out after finishing a bottle of rum. How was the issue -- how has the issue of drinking factor into the hearing?
HENNEBERGERThe issue of drinking, I think, is what this case will hinge on. The defense is arguing that she was not so impaired that she was not able to give consent. The standard is whether she was substantially incapacitated to the point that she could not give consent and the standard for that is that she was unable to physically communicate unwillingness to engage in sex. And from her testimony and testimony of her friends, this young woman who not -- we know that women metabolize alcohol differently.
HENNEBERGERShe's not a big person physically, and she and her friends say she had seven shots before she left for the party, several more on the way to the party, and finished off maybe a third of a bottle of rum while at the party, and that's the last thing she remembers. She didn't black out in the sense of losing consciousness, but in not remembering what happened. And, so, the case is really gonna hinge on was she able to give consent and are the accused -- should the accused have known that she was so impaired that that was a question?
HENNEBERGERI just want to come back to something you said earlier about taking it out of military court and turning it over to a civilian court. The legislation that Congress will be looking at again this fall, led by Kirsten Gillibrand of New York, would not actually put these sexual assault cases and other serious crimes into civilian hands, but it would take it out of the -- and a lot of people do think it would do that. But it would actually just take it out of the chain of command.
HENNEBERGERThe way it is now, essentially, it's the supervisor of the accused who decides what happens in these cases. And you can imagine if all of our bosses, whether they like us, whether they don't like us, that would seem to be a real conflict of interest if they were able to decide what happens to us in a criminal proceeding. So, the suggestion is that they take it out of the direct chain of command.
NNAMDIOnto the telephone. Here is Joy in Rockville, Maryland. Joy, you're on the air. Go ahead, please.
JOYYes. I live in the Dark Ages where women were smart enough not to get themselves into this kind of situation and anybody who has this kind of situation where you go in and you partake of all this alcohol is asking for trouble. And it seems that the people at the US Naval Academy should have a little bit more discretion. It's kind of scary that these are the people who are supposed to be in charge of our defense. I don't see much evidence of character in these people. This kind of situation should not be sanctioned, shouldn't be allowed in this environment, and the women don't have any sense.
NNAMDIEugene Fidell, last month the chief of Naval Operations announced that the Navy was rolling out plans to make alcohol less accessible on Navy bases. How do you think underage and excessive drinking plays into the military's problem with sexual assault?
FIDELLI think it's a common reason for sexual assaults. Not everything, and I can't put a number on it, Kojo, but I think in many serious sex offenses in the military, and the civilian community also, by the way, college campuses also, alcohol plays a role and there is a history of sort of hard living in the military. I think that's less so than it once was. For example, when I was on active duty, there was a lot of drinking, a lot of alcoholism. I think there's less of that, but young people are gonna drink. And you can't have prohibition, but you certainly can make it very clear that certain kinds of conduct are not permitted. And I think the Navy has got a wakeup call, if it ever needed one, in this case.
HENNEBERGERThe Post had a great story, I thought, today by Jenna Johnson on the binge drinking on college campuses, in general, so definitely this problem goes well beyond the Naval Academy. However, from what I heard, from talking to midshipmen there, there is a sort of special temptation to this sort of binge drinking when, the way they put it, they're caged all week long. So their movements are very, very tightly controlled all week long. And then, on the weekend, there's this culture of, you know, drinking until you don't know where you are, which can only, obviously, lead to problems.
HENNEBERGERBut, one question I have is about the wisdom of these alumni who fund things like renting these, you know, what's called the football house, this off campus house where these parties happen. You know, maybe the reason, part of the reason that we don't hear about Bio majors getting in all kinds of trouble is that alums of Bio majors don't tend to fund houses where they have this kind of party and these sort of things happen.
NNAMDIJoy, thank you very much for your call. The alleged victim of sexual assault at the U.S. Naval Academy, Melinda, initially did not want to go forward with the case, would not cooperate with investigators. Can you give us a sense, if you understand it, of why she was reluctant to go through with the hearing?
HENNEBERGERI think that this hearing was -- gave a pretty dramatic view of -- a look at why a lot of people wouldn't want to go through with reporting and what comes later. But she very definitely -- I mean, I -- it -- you know, in some of these stories we call her the accuser because that's sort of the form we use. But she did not want to be the accuser. She fought it every step of the way. She made very clear, even when she did come around to start to cooperate with the investigators with NCIS, that she would've given anything to get out of taking this case forward.
HENNEBERGERSo what happened was -- and I find a little bit of solace in this, is that when everybody on campus was talking about this the next day, I mean, it was the talk of the campus and, you know, there was a lot about it on social media, it was other people who stepped forward, were not even involved but who knew about it and brought it to the attention of investigators. She said on the stand that the thing that finally changed her mind about cooperating, two things.
HENNEBERGEROne, she said that her sexual assault counselor told her, you're worth it. You're worth fighting for. And the other thing she said was that when she was months later in a sexual assault training, some kind of seminar, she became overwhelmed. She sort of fled to the bathroom. She was crying in the bathroom stall and then she heard a woman in the stall next to her also crying. And she said they came out and they hugged for a long time and said, I wonder how many other women are in how many other bathroom stalls around the country.
NNAMDIIndeed, Eugene, the Pentagon reported that less than 10 percent of service members who experienced some form of sexual assault last year actually came forward. Last month Defense Secretary Chuck Hagel announced new policies designed to help the military prevent and prosecute cases of sexual assault. Did any of those reforms address the concerns that are being raised by this latest U.S. Naval Academy hearing?
FIDELLI think they're half measures. I'm glad that Secretary Hagel has taken a personal interest in this. But what's needed here is congressional action to change the uniform code of military justice. I mean, the -- going back to this particular case, if you were looking for ways to discourage people from coming forward with complaints of sexual assault, you couldn't do better than consider what happened to the accuser in this particular case.
FIDELLMy own judgment, Kojo, is that in addition to the changes that Senator Gillibrand has been championing on Capitol Hill, somebody should give serious thought to repealing Article 32 and substituting a simple preliminary hearing to determine probable cause the way we do it in the federal district courts under rule 5.l in the Federal Rules of Criminal Procedure. It doesn't subject victims to this kind of marathon abusive examination.
FIDELLSure, you've got to, you know, put some evidence in. But I think in this day and age where we have a good trial system in the military justice system, you've got judges who preside. You've got lawyers on both sides. It's time to get rid, in my view, of the Article 32 investigation, which is an artifact -- along with the convening authority by the way -- from the pre-UCMJ era. We created pretrial investigations in 1920. I think they've outworn their usefulness based on cases like the one we're discussing.
NNAMDIWant to hear from Katy in Annapolis, Md. Katy, you're on the air. Go ahead, please.
KATYHi, Kojo. I just wanted to talk about the comment made by the -- which sounded like the elder woman about ten minutes ago, as to the character of this woman and sort of this, you know, putting ourselves in bad situations. I think we're really quick to judge in terms of if there's alcohol involved that, oh, there was alcohol there so it's her fault. And I think that if you put a wallet on a desk and someone steals your wallet, yeah, you're stupid for putting your wallet on the desk. But someone still stole your wallet and that's still a crime.
KATYAnd I think to say that the character of these men and women are so low or to take that kind of a stance is -- I think that's really one-sided and I think that's not putting a lot of thought into it. Because these men and women are -- were still a microcosm of society. And to think that we are supposed to be these golden children, while we do all strive to be, it's impossible that we're not going to make these mistakes.
NNAMDIOkay, Katy. And how would you know about this?
KATYI was a recent grad.
NNAMDI...of the U.S. Naval Academy. Katy, thank you very much for your call. Melinda, the hearing concluded last night. What can we expect to happen next?
HENNEBERGERWell, now the presiding officer is going to make a report. Since there was about 1500 pages of notes and evidence admitted during this eight-day marathon, it's going to take probably a month until the advisory opinion is turned over to the superintendent of the naval academy. And it's really his final decision. That's another thing that critics of the system point to as a big problem because the person who is the ultimate decider in the case was not present for a single moment of the hearing.
NNAMDIBut that's the next step that will be taken. Melinda Henneberger is a reporter for the Washington Post. She has been covering the U.S. Naval Academy sexual assault hearing. Melinda Henneberger, thank you for joining us.
HENNEBERGERThank you for having me.
NNAMDIEugene Fidell teaches military justice at Yale Law School. He served as judge advocate in the U.S. Coastguard. Eugene Fidell, thank you for joining us.
FIDELLGood to talk to you.
NNAMDIGoing to take a short break. When we come back, the story of a Virginia farm and the son who fought to save it. I'm Kojo Nnamdi.
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