Two midshipmen will face court-martial while a third will not in the case of three football players who were accused of raping a fellow student at the U.S. Naval Academy, it was announced on Thursday.
The decision in the abuse case comes as Congress has continued to wrestle with the growing number of sexual assaults in the military. It also comes amid notorious civilian cases involving athletes and alcohol-fueled rape such as the assault in Steubenville, Ohio.
Vice Adm. Michael Miller, the superintendent of the Naval Academy, announced that he had referred the cases of Midshipmen Eric Graham of Eight Mile, Ala., and Joshua Tate of Nashville to court-martial. Midshipman Tra'ves Bush of Johnston, S.C., should not face court-martial, he said.
"We are committed to a thorough and fair conduct system and investigative process, and the Naval Academy will meet the highest standards, operate consistent with the law, and expeditiously investigate every report of unwanted sexual contact, sexual harassment and sexual assault," the academy said in a statement emailed to reporters.
Graham was charged with abusive sexual contact and Tate was charged with aggravated sexual assault. Both midshipmen were also charged with making false official statements, the academy said.
"The case was thoroughly investigated by NCIS and was forwarded in June for further investigation at an Article 32 hearing. The Article 32 investigation concluded last month, and the investigating officer forwarded his report of findings and recommendations to Vice Adm. Miller last week," according to the military academy's statement.
"We are pleased that two cases are going forward," Susan Burke, the lawyer for the alleged victim, told the Los Angeles Times. Burke added that she and her client were briefed about the third case in which a confession would not have been admissible in court.
"The victim is a strong young woman who is very smart," Burke said. "She understands that a confession can be made under circumstances that leads to it being suppressed."
[Updated, 11:48 a.m. PDT Oct. 10: Andrew J. Weinstein, the attorney representing Bush, disagreed with Burke that charges against his client had been dismissed for technical legal reasons. In a statement to the Los Angeles Times, Weinstein said:
"Midshipman Bush is gratified that all criminal charges against him have been fully dismissed. This
decision follows a thorough 8 day, 21 witness Article 32 hearing, presided over by a Judge who, in an
exhaustive 174 page report, concluded that the allegations of sexual assault against Midshipman Bush
were unsubstantiated and that no reasonable grounds exist to believe that he committed any such crime.
Midshipman Bush is a young man who has committed his life to the protection of our country and, with
these criminal charges now behind him, he looks forward to continuing his loyal and devoted service.
Any suggestion that the case against [Midshipman] Bush was dismissed on some sort of legal technicality is baseless. As the Judge who conducted the Article 32 hearing concluded, reasonable grounds do not exist to believe that [Midshipman] Bush committed the crime of aggravated sexual assault, irrespective of any statements he may have made."]
Both the original alleged episode in 2012 and the recent Article 32 proceeding, roughly the equivalent of a preliminary hearing in civilian law, drew sharp complaints from those who monitor the military's application of justice and from women's advocates. At the proceeding, the female accuser was questioned for more than 30 hours by defense attorneys seeking to focus on the alleged victim rather than the athletes she said raped her.
The alleged incident occurred in April 2012.
The female midshipman testified that she had been drinking rum then went to a "toga and yoga" party at an illicit off-campus house known to be used by football players at the academy in Annapolis, Md. Males wore togas and females reportedly wore yoga pants. More than 100 people attended the party at the house known as "the Black Pineapple," according to testimony.
There was heavy drinking at the party where the 20-year-old woman arrived already drunk. She testified that she may have been too drunk to stay conscious.
The woman said she learned of the sex acts via social media the next day – a similar situation to the Ohio case where social media played a crucial role in forcing the case onto the public agenda.
The woman was reluctant to bring charges against her fellow student-officers. When the investigation began, she was disciplined for drinking and the males were allowed to continue their football careers, according to her attorney Susan Burke, speaking to reporters at the time. Without the woman's testimony, the case was closed in November 2012. It was reopened in January when the victim changed her mind and agreed to testify.
In September, the woman was questioned for about 30 hours over several days by defense attorneys who grilled her about her sexual habits and whether she wore a bra. She was even questioned – despite frequent objections from prosecutors -- about how wide she opened her mouth during oral sex and whether that indicated she was consenting to the sexual activity. The female midshipman was also asked if she had apologized to another sex partner "for being a ho."
The case infuriated partisans who argued that the military system of criminal justice was unable to deal with sexual assault cases and allowed lawyers to put the victim on trial. Sen. Kirsten E. Gillibrand, (D-N.Y.) was among the lawmakers continuing to push to change the current system.
The Navy case also comes as the number of sexual assaults in the military has grown to about 26,000 a year, up from the 19,000 two years earlier.