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Why you don't cry 'rape' in the military

She was too drained to go on, she said. After four days of relentless questions about her medical history and motivations, her dance moves and underwear, a 21-year-old midshipman who has accused three former Naval Academy football players of raping her pleaded on Saturday for a day off from testimony. It was granted by the hearing's presiding officer but not before the request triggered more antipathy from defense attorneys, who accused the woman of faking her exhaustion.

"What was she going to be doing anyway?" asked Ronald "Chip" Herrington, one of the defense attorneys for Eric Graham, a 21-year-old senior. "Something more strenuous than sitting in a chair? We don't concede there's been any stress involved."

At a time when the military is under attack for how it handles sexual violence in its ranks, the proceedings under way at the Washington Navy Yard offer a case study on why women in uniform are so reluctant to report assaults. The hearing highlights significant disparities between the way the military and civilian world treat accusers and the accused.

Last month, Defense Secretary Chuck Hagel approved new regulations aimed at providing more support to alleged victims of sexual assault. But none of those reforms would alter how the military conducts what is known as an Article 32 hearing, the legal proceeding in the Naval Academy rape case. An Article 32 is sometimes compared to a civilian grand jury proceeding because its purpose is to determine whether a trial, or court-martial in military parlance, is warranted. But legal experts say it differs in a number of ways, with no rules of evidence and cross-examinations that can be scathing in tone.

The midshipman has come under withering cross-examination from defense attorneys, who include both civilian and military lawyers. Some of their questions focused on the night of the alleged assault in April 2012 at an off-campus party, where, she testified, she had blacked out after drinking a bottle of coconut rum.

"Were you wearing a bra" to that party? asked Andrew Weinstein, an attorney representing defendant Tra'ves Bush, 22. "Were you wearing underwear?" And Weinstein demanded to know how often she lies — "at least once a day?" — and whether she "felt like a ho" the morning after the party.

Lt. Cmdr. Angela Tang, another attorney for Graham, repeatedly asked the woman how wide she opens her mouth to perform oral sex. When prosecutors objected, Graham's attorneys argued that they were trying to show that oral sex required "active participation," on the part of the accuser, which would indicate consent.

Evidence of participation by an alleged victim, which can include sexual positions, is a standard defense strategy in Article 32 hearings, said Lisa Windsor, a retired judge advocate.

But that line of questioning probably would not be allowed in an ordinary courtroom, said Lisae Jordan, executive director of the Maryland Coalition Against Sexual Assault. "What is consensual is fair game for the defense," Jordan said. But questions about the accuser's oral sex technique "would likely be deemed irrelevant."

And Jordan doubted whether many criminal court prosecutors or judges would allow questions about whether the accuser "felt like a ho," which Windsor agreed served little legal purpose beyond "trying to discourage the victim from going forward."

During a break in this hearing, the female midshipman's personal attorney, Susan Burke, was overheard telling military prosecutors that the defense questions had to be reined in: "This is harassment, and it has to stop!"

But even when the presiding officer, Cmdr. Robert Monahan, did sustain the prosecutors' objections — barring, for example, a question about whether she carried condoms in her purse — the tone of the cross-examination did not change.

The woman has repeatedly said that on the night of the party, she drank so heavily that she blacked out and only pieced together what had happened after seeing tweets and hearing rumors that she had had sex with Bush, Graham and the third defendant, Joshua Tate, a 21-year-old junior. She has said that she had no memory of being raped but that she did have consensual sex with a different football player. She testified that she initially refused to cooperate with investigators, even after others who had heard the rumors reported them to authorities.

The hearing is expected to last several more days. After it ends, Monahan will send a nonbinding recommendation to the academy superintendent, who will decide whether to send the case to court-martial.

Why you don't cry 'rape' in the military 09/04/13 [Last modified: Wednesday, September 4, 2013 11:00am]
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