Rape Charge Against Army’s Top Enlisted Man Urged

A prosecutor urged the Army on Monday to charge its top enlisted man with rape--a charge more serious than any allegation now facing him--as a marathon pretrial hearing in the military’s highest-profile sexual misconduct case wound to a close.

In final arguments, Army prosecutor Lt. Col. Michael Child described the six servicewomen who have accused Sgt. Maj. of the Army Gene C. McKinney as “heroes” and urged the hearing’s presiding officer to “consider and act upon” the single rape charge.

McKinney’s defense team, however, ridiculed the suggestion, and in final arguments denounced the women as lying “opportunists” desperate to exact revenge, hide their own misconduct and gain national celebrity.

A 29-year veteran, McKinney faces 22 preliminary counts on alleged crimes that include sexual assault, adultery, maltreatment of subordinates and obstruction of justice. While none of those charges carries a maximum penalty of more than five years behind bars, under the military justice code, rape is--in theory at least--punishable by death.

The 8-week hearing has been riddled with explosive racial and sexual allegations and has attracted wide attention among women, black groups and members of Congress. Attorneys for McKinney, the first black to hold the prestigious post of sergeant major of the Army, have accused the service of racial discrimination in the prosecution.

Col. Robert L. Jarvis, who has presided over the fact-gathering hearing, must now recommend to his superior officer whether there are grounds to convene a court-martial against McKinney. He will make that recommendation in the days ahead after sifting through thousands of pages of hearing transcripts, including the testimony of more than 30 witnesses.

But Charles W. Gittins, McKinney’s lead defense attorney, has already predicted that the Army will call for a court-martial.

The alleged rape discussed by Child was described as an indecent assault in the list of preliminary charges, even though the accuser--a 25-year-old sergeant--described the sex as unwanted. It allegedly took place during an encounter on Oct. 30, 1996, at McKinney’s official quarters, while the accuser was 7 1/2 months pregnant with her second child.

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Army prosecutors never explained during earlier stages of the hearing why they had chosen not to bring a rape charge. Most of the alleged offenses involve McKinney pressuring women for sex, sometimes touching them while he did so.

But during cross-examination, Army investigators acknowledged they had struggled to accumulate the kind of corroborating evidence that would sustain a rape charge.

One investigator had, for example, asked military researchers to try to develop a computer model to ascertain whether a woman could have sexual intercourse sitting with her feet on the floor on an overstuffed couch, in the way the woman described.

Lt. Col. James Gerstenlauer, one of the defense attorneys, declared that the government’s lengthy investigation had turned up “no independent corroborative evidence” of a rape, either through physical evidence or the testimony of other witnesses. Even the investigators themselves, he contended, were skeptical of the woman’s story.

The defense team portrayed its client in the broadest terms as the victim of a kind of injustice that has gone on for centuries, but now, because of the climate of opinion, is easier to perpetrate.

Gittins referred to Chapter 39 of the biblical Book of Genesis and said, “The story of women making false allegations against men is as old as history.”

The defense argued that McKinney’s first public accuser, retired Sgt. Maj. Brenda L. Hoster, had leaked her accusations to the New York Times because she was angry at McKinney, her former boss, for criticizing her and wanted to become a symbol for women in the military.

“Ms. Hoster was long on drama, but short on facts,” said Lt. Col. V. Montgomery Forrester, a defense attorney. “She is in fact a media hound” who “anointed herself a spokeswomen for women in the military,” he said. “She wants to be their hero.”

The defense noted that none of the women used the Army’s elaborate reporting system at the time the misconduct allegedly occurred, nor were there witnesses to any of the alleged crimes.

The Army had tried to build a case, Gerstenlauer contended, by assembling enough false accounts that observers would conclude “we have a lot of stories--so some of it has to be true.”

But a court-martial would “send the wrong message reverberating throughout the Army,” Gerstenlauer said, that “anyone can bring an allegation and bring down their leader.”

The government, however, insisted that with the exception of Hoster, the women who accused McKinney were reluctant witnesses who had courageously come forward to right wrongs.

“They’re heroes,” said Child. “They saw wrong and they were willing to report it, stand by it and take it to the very end.”

He said Hoster had nearly let McKinney’s harassment pass, except that she was outraged by what she believed was his hypocrisy in agreeing to sit on a high-level study panel on sexual harassment. The “galling nature” of this appointment “was simply too much to bear,” he said.

Child praised the women for tolerating attacks on their reputations that, he said, McKinney’s attorneys waged during the hearing.

“They’ve endured the public humiliation” in a hearing where the rankest gossip . . . gets reported every afternoon.” The proceeding was “the most thorough Article 32 investigation [pretrial hearing] that has ever been conducted,” Child said.

Nevertheless, he said, the women are “ready, they’re willing to serve as witnesses in a court-martial . . . do not let them down.”