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Air Force charges airman who accused others of rape

Times Staff Writer

pope air force base, n.c. -- In the early-morning hours of May 13, 2006, after a night of partying with fellow airmen who were mixing a potent cocktail called the Incredible Hulk, Airman 1st Class Cassandra Hernandez told authorities that three of them had raped her.

One of the men was charged. After being questioned twice by the airman’s military lawyer, Hernandez said, she felt “enormous stress” and decided not to testify.

“The pressure of the judicial process was too much for me, and I felt like no one was looking out for my interests,” Hernandez, a 20-year-old Texan, wrote in a June letter to Texas Gov. Rick Perry.

What the Air Force did next, Hernandez and her military attorneys say, has a chilling effect on sexual assault victims: The military dropped the rape prosecution and instead charged Hernandez with committing an indecent act. The Air Force granted the three male airmen immunity for their testimony against her.

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Court-martial proceedings against Hernandez are scheduled for Sept. 24. If convicted, she could get as long as a year behind bars, a reduction in rank and a bad-conduct discharge. Her attorneys say she also could be required to register as a sex offender.

“Will other women come forward after a rape when they hear that this is how they may be treated?” Hernandez asked in her letter. “I am afraid they will not.”

Capt. Christopher A. Eason, one of Hernandez’s attorneys, said: “The system failed her at every level, and she is now being asked to pay the price.”

Any service member who has been sexually assaulted, said Capt. Omar S. Ashmawy, Hernandez’s other attorney, must now wonder: “Will the system do the right thing? Does the system even know the right thing to do?”

In a statement Thursday, the public affairs office at Pope Air Force Base said Hernandez had been treated fairly, with all legal procedures properly followed. It said rape charges were dropped because of “factual inconsistencies,” as well as Hernandez’s decision not to testify.

“While there have been statements made that she is being prosecuted for refusing to testify, those statements are incorrect,” the military said. In response to an allegation by Hernandez, the statement said that there had been “no effort to cover up any misconduct” by the male airmen.

In sworn statements provided to The Times by the defense, the three airmen say Hernandez initiated the sexual encounters after baring her breasts and then removing her clothes following several hours of drinking.

The men were given nonjudicial punishments for committing indecent acts in the presence of other airmen, a violation of the Uniform Code of Military Justice. All three received suspended reductions in rank, but the penalties will be lifted if there is no further misconduct. One of the men was fined two months’ pay; a second lost two months’ pay, but the penalty was suspended; the third airman got 30 days of extra duties. All three were ordered not to have contact with Hernandez.

Even though the three have been granted testimonial immunity, the Air Force’s statement said, they still could be charged with crimes. But prosecutors could not use their testimony or any evidence derived from it.

Ashmawy said that “while not technically impossible, it is practically improbable to prosecute these men for rape now that the Air Force has immunized them.”

According to Hernandez, several of the airmen she was drinking with at a base dormitory made sexual comments to her and one touched her buttocks. Hernandez said she argued with the airman and left the party. When she returned, she said, she was assaulted.

“I remember very little about that night, but I do remember telling them no,” she said. “I also remember crying and telling them to stop, but they didn’t listen; one of them kept telling me to ‘Shhh.’ ”

Airman Russell Basile, who initially was charged with rape, said Hernandez “without comment” began performing oral sex on Airman 1st Class Jerrel Apache. Minutes later, Basile said, “I asked her if I could have sex with her . . . and she told me I could. I had sex with her.”

In his statement, Apache said Hernandez performed oral sex on him after helping him undress. He said he had intercourse with her later after Basile and Airman Rotez Butler “swapped back and forth having sex with her.”

Butler said that as he was having sex with Hernandez, “she just started crying.” He said he got dressed. Hernandez, he said, “put her clothes on, grabbed her cellphone and left. She left her purse on the desk and her shoes in the room.”

Basile said he saw Butler and Hernandez sitting on the floor. When he asked her why she was crying, he said, she said “something about her being a slut.”

Hernandez, who was 19 at the time of the incident, also has been charged with underage drinking.

“I drank underage that night,” she said in her letter to Gov. Perry, a Republican. “It was wrong and it was stupid. . . . But I never consented to sex with any of those men.”

Defense lawyers point out that Hernandez has never changed her story, and that the military has not charged her with perjury or obstruction of justice.

Hernandez has said that she asked to have her military sexual assault victim advocate present during extensive interviews with Basile’s attorney, but that her request was denied. The advocate, Air Force Tech. Sgt. James E. McDaniel, said in a statement that he was told by Basile’s attorney that he was not permitted to attend because Hernandez was a potential witness.

After two days of questioning, McDaniel wrote, “my client seemed very unsettled . . and very wore down both mentally and emotionally.”

Air Force guidelines on sexual assault cases say advocates “may accompany the victim, at the victim’s request, during investigative interviews.” The policy cautions that the advocate could be called as a witness.

In a statement Thursday, defense attorneys said the Air Force statement that Hernandez’s rights had been protected and all procedures properly followed was false.

They said “important, relevant evidence” was denied them during discovery and that Hernandez decided not to plead to the same indecent-act charge as the three airmen because “she was told that she was considered guilty unless she proved herself innocent.”

Under North Carolina law, Hernandez’s attorneys said, state authorities could require anyone convicted of indecent acts to register as a sex offender. The Pope Air Force Base statement said Pentagon policies require sex offender notification only in cases involving sex with minors, or sex acts involving violence.

“Because this was a traumatic event for me, and I was severely intoxicated, my memory of the night is admittedly hazy at times,” Hernandez wrote. But she added, “To be clear: I was raped by all three men.”

In Hernandez’s letter -- which also was sent to North Carolina Gov. Michael F. Easley, a Democrat, and members of the Texas and North Carolina congressional delegations -- she said she had been a good and faithful airman.

“I am not putting myself through this process because I’m seeking attention,” she wrote. “I love the Air Force. I want to remain in the Air Force. However, the way I’m being treated is wrong.”

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david.zucchino@latimes.com


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