Former USMA Cadet's rape conviction overturned

She said she did not consent. And was believed in her trial. The appeals court did not hear witnesses. I maintain that the process is flawed. None of us , nor the appeals court, quite honestly, knows better than the original trial panel. The thinking here is an excellent example of why people don’t report and this problem flourishes

That’s right. She said she did not consent. He said she did. Whether a jury believes a witness is relatively uncorrelated with truth of testimony.

The problem is a problem because it is very difficult to prove a negative and in most rape cases, consent is the heart of the matter. But, the system, in my opinion cannot flip to prove consent happened or guilty.
The appeals court can't hear witnesses - they know that and take that into consideration when weighing the evidence. Great deference is given to the trier of fact who heard the witnesses and had the opportunity to judge their credibility. There is much more to this case than "he said, she said." Here, it was the circumstantial evidence that led to the acquittal. The woman claimed she was asleep in her sleeping bag with it over her head, and awoke to the male in her sleeping bag digitally penetrating her - How the hell does that happen? There were fellow cadets feet away, but no one heard a thing. She was sleeping on a crinkly space blanket, but again, no one heard a thing. It is unusual for an appellate court to find, as a matter of law, that the evidence was insufficient to justify a conviction, but here, the circumstantial evidence all points to the male telling the truth when he said they were holding their breath at times and actively seeking to avoid detection - how else could a rape avoid detection under these circumstances?

"Rape Freeze" is a horrible concept - how the hell is one party to a presumably consensual act supposed to know it isn't consensual if the other party never expresses a lack of consent? It's a dubious concept that is even more dubious when one considers the woman is a fit, confident officer in training with with fellow cadets mere feet away. There should never have been a conviction on these facts in the first place. Luckily,the appellate court was unswayed by the current political environment and the less than stellar history of the Army in dealing with sexual assault, which are irrelevant to the guilt or innocence of the accused.

I’m keeping an eye on this thread just out of pure interest for the debate. However, I have to say the following:

Be thankful you are in a position to believe “rape freeze” is only a concept. I hope you or the people you care about only ever have to think about it as a concept. It’s real and it doesn’t matter what profession someone is in or the training that they’ve been given. It doesn’t matter what your gender is, ask the guys who continue to have the lowest level of reporting of assaults. As @Capt MJ said, you hope that when it happens to you, you’ll fight back. That’s what women are told and taught to do, from the time we’re told not to talk to strangers until the time we’re told to hold our keys between are fingers as we walk to our cars alone. But, you don’t know until it happens. I didn’t.

Whether or not the alleged victim experienced rape freeze or not isn’t the issue, it’s whether or not the act was consensual. How are you supposed to know? By both parties using their brains and each getting verbal consent beforehand instead of relying on nonverbal cues that have proven time and time again to be difficult to understand. Is it romantic? No. But at least you know where the line is.

I won’t comment on whether or not I feel the accused is innocent or not. Frankly, it’s irrelevant at this point because three judges overturned the conviction, he is free, and life will go on. Sexual assault continues to be one of the most difficult crimes to try for the multiple reasons other posters have already mentioned. That aside, to have the opportunity to live in a country where appellate courts exist is a privilege. Because it’s a privilege, there are going to be times where appellate judges get it right and where they get it wrong. From there, it’s up to us to decide for ourselves which category their decision fell under. That’s the nature of an imperfect system. The question is, do the times they potentially get it wrong outweigh the times they get it right? It’s the same question that applies to the entire judicial system.


.... and further, what are we most comfortable enduring, a free guilty person or an imprisoned/executed innocent? Our system is balanced toward the former. I agree with that.

The recent me too movement and increased scrutiny here has added a further wrinkle and that’s encouraging that we believe accusers. I think this is a muddy space. In a personal context or therapy, yes. Give the benefit of the doubt to an accuser. In a legal context, it is inappropriate based on the underlying values of our legal system. He should likely never have been tried much less convicted given the presented evidence available, the logic being consistent with the appellate decision. Insufficient evidence.
 
I agree with the comment that this thread is an improvement from its first incarnation.

I applaud the fact that this thread has been for the most part, civil and educational.

Rational discourse usually brings us together through illumination as opposed to tearing us apart though disparagement and insult.

We can disagree without being disagreeable.
 
The jury in this case consisted of 6 West Point faculty and staff. You can all go ahead and defend this man. I’m glad you are comfortable in your position. Perhaps you could leave a little room in there to consider the possibility it really was a rape, and we may be returning a rapist to usma. Just as I can’t be 100 percent sure this is the case’ you can’t be that sure that it isn’t.
I am not defending the accused but 6 jurors can be wrong including 6 West point faculty and staff. Who they are and who they work for doesnt give them any more wisdom or intellegence than the normal juror in a civilian jury. The conviction of a Navy Seal conviction was also recently reversed and I would assume he also had a jury made up of officers.
 
The jury in this case consisted of 6 West Point faculty and staff. You can all go ahead and defend this man. I’m glad you are comfortable in your position. Perhaps you could leave a little room in there to consider the possibility it really was a rape, and we may be returning a rapist to usma. Just as I can’t be 100 percent sure this is the case’ you can’t be that sure that it isn’t.
I am not defending the accused but 6 jurors can be wrong including 6 West point faculty and staff. Who they are and who they work for doesnt give them any more wisdom or intellegence than the normal juror in a civilian jury. The convicted Navy Seal conviction was also reversed and I would assume he also had a jury made up of officers.
If you're talking about the current Navy Seal case, it has not gone to trial yet but there has been apparent misconduct by the prosecution and there is potential for the case to be thrown out, not just because of evidence but because of the misconduct.

One issue that is being brought up by prior posters is the issue of inappropriate Command Influence on Courts Martial. Somewhat unique to the military system, we have the jurors who work for and have their careers potentially influenced by the Convening Authority or even higher ranking people in the chain of command. There have been a number of recent examples of this in recent years, one that comes to mind is the recent court martial against the Commanding Officer of the USS Fitzgerald which was dismissed largely because the Chief of Naval Operations and the Vice Chief had publicly stated the the CO was Guilty of offenses that he was charged with. Now the future careers of the Court Martial Panel plus the judge himself are all in the hands of the CNO through the promotion board process and this undue Command Influence that was exerted by these four stars was enough to toss out the case.

In the case of this rape case, we do know that the Supes of all the academies are under huge pressure to "fix" the sexual assault/harassment issue so it is pretty clear that the institution wanted to send a clear message on this issue. Did that push the verdict a bit? I don't know but this is an issue within the military system that is not present in the civilian system where the jurors are not dependent on the "owner" of the process for their jobs.
 
The jury in this case consisted of 6 West Point faculty and staff. You can all go ahead and defend this man. I’m glad you are comfortable in your position. Perhaps you could leave a little room in there to consider the possibility it really was a rape, and we may be returning a rapist to usma. Just as I can’t be 100 percent sure this is the case’ you can’t be that sure that it isn’t.
I am not defending the accused but 6 jurors can be wrong including 6 West point faculty and staff. Who they are and who they work for doesnt give them any more wisdom or intellegence than the normal juror in a civilian jury. The convicted Navy Seal conviction was also reversed and I would assume he also had a jury made up of officers.
If you're talking about the current Navy Seal case, it has not gone to trial yet but there has been apparent misconduct by the prosecution and there is potential for the case to be thrown out, not just because of evidence but because of the misconduct.

One issue that is being brought up by prior posters is the issue of inappropriate Command Influence on Courts Martial. Somewhat unique to the military system, we have the jurors who work for and have their careers potentially influenced by the Convening Authority or even higher ranking people in the chain of command. There have been a number of recent examples of this in recent years, one that comes to mind is the recent court martial against the Commanding Officer of the USS Fitzgerald which was dismissed largely because the Chief of Naval Operations and the Vice Chief had publicly stated the the CO was Guilty of offenses that he was charged with. Now the future careers of the Court Martial Panel plus the judge himself are all in the hands of the CNO through the promotion board process and this undue Command Influence that was exerted by these four stars was enough to toss out the case.

In the case of this rape case, we do know that the Supes of all the academies are under huge pressure to "fix" the sexual assault/harassment issue so it is pretty clear that the institution wanted to send a clear message on this issue. Did that push the verdict a bit? I don't know but this is an issue within the military system that is not present in the civilian system where the jurors are not dependent on the "owner" of the process for their jobs.

It is present in the civilian system from a different source, namely, politically climbing or active district attorneys.
 
I wish I could embrace your robust endorsement of the process. As someone with no legal expertise and just a common guy, I find it hard to feel good about it. The victim finds out about the appeal and the decision through social media. What kind of detailed process is this?

The cadet returning to WP can't be any more difficult than the victim shaming face to face and behind her back that took place the last two years.

Just a tidbit, Military Appellate Courts are similar to civilian Appellate Courts in many aspects. One of those aspects is that once an appeal is filed, the prosecution and defense are notified of docketing, and ALL interested parties, victims, witnesses, trial transcripts and any evidence requested by the Appellate Court is forwarded. So to say "The victim finds out about the appeal and decision thru social media" is not correct. And, Appellate Courts exist for a reason. They review trial courts for evidentiary miscues, legal errors, and also errors in adjudication of guilt. Our system would not work without appellate systems, both civilian and military...it is the basis for our entire legal system.

In the military realm, you have two types of Courts Martial, Summary and General, both of which have varying degrees of jurisdiction, and remedies available, then you have the US Army Court of Criminal Appeals (nine judges, and a senior judge with three different panels of three judges), that automatically reviews cases that result in bad discharges, confinement of over one year, death, or dismissal of an officer, then if you so desire you have the Court of Appeals for the Armed Services (CAAF) staffed by five civilian judicial appointees, appointed for a 15yr term and approved by the US Senate. Then if you still have issue you can ask the US Supreme Court to review the case. So the victim in this case should have or did know it would be appealed.

IMHO, it is the 'system" that needs to be addressed. Too often allegations are "investigated" in house by military personnel who are susceptible to Command Influence and not as should be by the service's civilian Criminal Investigative Division. Having the military investigate itself when in the past issues such as this were "swept under the rug" often resulting in harassment, more assaults, wrongful transfer or dismissal from the service, or ridicule as "a sissy", "a weakling", or "being unfit to serve" resulting in most assaults never being reported, and if they were evidence was leaked and a cover up ensued to protect "the good old boy network" is just wrong. But by the same standard, the "Me Too" movement has likely brought about questionable accusations that can never be proved, but the accused is nonetheless penalized in many different ways. NEITHER is right! Someone with far greater legal know how than I needs to sit down and figure out a fair impartial way to investigate and if evidence found is beyond a reasonable doubt, prosecute and convict those predators who are likely out there. This is not just a military problem, it is a nationwide problem and just looking at your local sexual offender or predator map will give you an idea of just how widespread this problem is.
 
The jury in this case consisted of 6 West Point faculty and staff. You can all go ahead and defend this man. I’m glad you are comfortable in your position. Perhaps you could leave a little room in there to consider the possibility it really was a rape, and we may be returning a rapist to usma. Just as I can’t be 100 percent sure this is the case’ you can’t be that sure that it isn’t.
I am not defending the accused but 6 jurors can be wrong including 6 West point faculty and staff. Who they are and who they work for doesnt give them any more wisdom or intellegence than the normal juror in a civilian jury. The convicted Navy Seal conviction was also reversed and I would assume he also had a jury made up of officers.
If you're talking about the current Navy Seal case, it has not gone to trial yet but there has been apparent misconduct by the prosecution and there is potential for the case to be thrown out, not just because of evidence but because of the misconduct.

One issue that is being brought up by prior posters is the issue of inappropriate Command Influence on Courts Martial. Somewhat unique to the military system, we have the jurors who work for and have their careers potentially influenced by the Convening Authority or even higher ranking people in the chain of command. There have been a number of recent examples of this in recent years, one that comes to mind is the recent court martial against the Commanding Officer of the USS Fitzgerald which was dismissed largely because the Chief of Naval Operations and the Vice Chief had publicly stated the the CO was Guilty of offenses that he was charged with. Now the future careers of the Court Martial Panel plus the judge himself are all in the hands of the CNO through the promotion board process and this undue Command Influence that was exerted by these four stars was enough to toss out the case.

In the case of this rape case, we do know that the Supes of all the academies are under huge pressure to "fix" the sexual assault/harassment issue so it is pretty clear that the institution wanted to send a clear message on this issue. Did that push the verdict a bit? I don't know but this is an issue within the military system that is not present in the civilian system where the jurors are not dependent on the "owner" of the process for their jobs.
It’s another case . Navy Seal was convicted , spent some time in jail and was later released . Had to register as sex offender. His conviction was overturned because of some weird issues with the prosecutor https://news.usni.org/2018/09/06/to...-citing-unlawful-command-influence-senior-jag
 
It's my understanding that Sen. Gillibrand wishes to remove sexual assault trials from the Commanding Officer (Court Marshal? it's present system?) and have these cases tried before a military judge. If that was the case here, maybe the Appellant's decision would not have been necessary; either an innocent man spending 2 years in jail unnecessarily or a better case presented by the prosecution.
I’m sure there are many things Gillibrand would do. It is very easy for civilians, especially politicians/lawyers who have never served in the military, to look at the military justice system from the outside and point out perceived flaws. What they don’t understand is that military justice must remain separate with different standards for it to be effective.
 
It's my understanding that Sen. Gillibrand wishes to remove sexual assault trials from the Commanding Officer (Court Marshal? it's present system?) and have these cases tried before a military judge. If that was the case here, maybe the Appellant's decision would not have been necessary; either an innocent man spending 2 years in jail unnecessarily or a better case presented by the prosecution.
I’m sure there are many things Gillibrand would do. It is very easy for civilians, especially politicians/lawyers who have never served in the military, to look at the military justice system from the outside and point out perceived flaws. What they don’t understand is that military justice must remain separate with different standards for it to be effective.

Why?
 
Because you simply cannot (and don't) have the same rights in the military, as you do in civilian life.

If you don't like the military, you can't quit (unless it's for some serious hardship). If you're late for work, you can go to jail. The military is free to discriminate by gender. The Marine Corps (for instance) says that certain positions or jobs aren't available to you if you're a woman. The Coast Guard on the other hand has no restrictions whatsoever. The military is allowed to have random, no-notice urinalysis.

It is that way because we can't have a touchy-feely military and ask everyone's opinion before we do stuff.
I'm sort of joking, but not really.
 
The military is free to discriminate by gender. The Marine Corps (for instance) says that certain positions or jobs aren't available to you if you're a woman.

It is that way because we can't have a touchy-feely military and ask everyone's opinion before we do stuff.
I'm sort of joking, but not really.

I think you're a bit dated on your info, unfortunately, and description of the military. But, I digress.
 
Because you simply cannot (and don't) have the same rights in the military, as you do in civilian life.

If you don't like the military, you can't quit (unless it's for some serious hardship). If you're late for work, you can go to jail. The military is free to discriminate by gender. The Marine Corps (for instance) says that certain positions or jobs aren't available to you if you're a woman. The Coast Guard on the other hand has no restrictions whatsoever. The military is allowed to have random, no-notice urinalysis.

It is that way because we can't have a touchy-feely military and ask everyone's opinion before we do stuff.
I'm sort of joking, but not really.

My civilian job requires random no notice urinalysis. Non compliance with rules can be a federal crime, etc.... I think the details of the military could be construed as a contract. I’m not sure it is compelling that a separate justice system need exist. But, certainly the system need be knowledgeable of that contract.
 
@Tex232 @Ambrosius: The article I read several years ago stated that there was a case of sexual assault with strong supporting evidence where the defendant was found guilty. The CO disregarded their verdict & exonerated the defendant, which is his right as the CO. Her proposal was that the CO should continue to adjudicate every case of discipline/misconduct/crime except this one, sex crimes. Those should be referred outside the chain of command.
 
The military has to have special allowances to set aside due process or normal rights for members in situations where Normal won't work. I don't think anyone disputes that, even Sen. Gillibrand and the #MeToo folk. But I think the questions raised above about Command Influence and so on are real and deserve consideration. Context matters, so for example if you're in a place where external investigators are available then use them. If you're not, then go with the process in place to adjudicate within the chain of command. MREs are a necessary part of the military's preparedness too, but they aren't served at every meal. EDIT: Every process has room for improvement or evolution. Every time a situation like this arises should be a chance to consider how to avoid it in the future.
 
Because you simply cannot (and don't) have the same rights in the military, as you do in civilian life.

If you don't like the military, you can't quit (unless it's for some serious hardship). If you're late for work, you can go to jail. The military is free to discriminate by gender. The Marine Corps (for instance) says that certain positions or jobs aren't available to you if you're a woman. The Coast Guard on the other hand has no restrictions whatsoever. The military is allowed to have random, no-notice urinalysis.

It is that way because we can't have a touchy-feely military and ask everyone's opinion before we do stuff.
I'm sort of joking, but not really.

My civilian job requires random no notice urinalysis. Non compliance with rules can be a federal crime, etc.... I think the details of the military could be construed as a contract. I’m not sure it is compelling that a separate justice system need exist.

Except that command authority doesn't exist in the civilian world in quite the same way that it does in the military. UCMJ codifies the much broader latitude we give military commanders who when you look at in totality have the ability to tell you to do things that will cause you to risk/even sacrifice your life. Additionally, the UCMJ has elements that are just not going to be found in civilian law (federal or state) to include prohibitions on things like adultery, disrespectful/disparaging talk about leaders (military and civilian), or adherence to instructions (failure to obey an order) in order to maintain the cohesion and effectiveness of the organization from the Department at large down to the team level.

Civilian oversight is a fundamental bedrock of how our republic maintains a military but it has to be informed civilian oversight and unfortunately when the public or legislators only look at one cog of the machine and don't' have the perspective of the system that analysis may not always be correct.
 
@Tex232 @Ambrosius: The article I read several years ago stated that there was a case of sexual assault with strong supporting evidence where the defendant was found guilty. The CO disregarded their verdict & exonerated the defendant, which is his right as the CO. Her proposal was that the CO should continue to adjudicate every case of discipline/misconduct/crime except this one, sex crimes. Those should be referred outside the chain of command.
And on the flip side of the coin, I’ve also read about commanders dishing out punishment on those who have been falsely accused. This article is a great example. https://www.jqpublicblog.com/how-to-destroy-a-fellow-airman-in-four-words-the/

I agree with you that it isn’t a perfect system, but the problem is that you enter a slippery slope when you start involving civilians in military matters. Today congress will say that it’s only sex crimes that should be adjudicated separately, but tomorrow they may also start involving themselves in those other areas you mentioned.
It is that way because we can't have a touchy-feely military and ask everyone's opinion before we do stuff.
Reminds me of why good leaders and brutal warriors like Ronald Speirs were kept around during WWII.
 
There is a TON of Great comments on this thread. I hope no one here disagrees that the rules and regulations governing the military NEED to be different than the laws we all live by. If for no other reason than the military cannot function as a cohesive fighting force if it was forced to use civilian laws and rules of procedure in NJP and Judicial Proceedings. Can you imagine the effect if you were allowed to just walk away from your post if you felt like it? Or how about an Officer directing his Company or Unit to just go home on the next flight, because he or she thought the fight being fought is not worth it? How about the CO of a ship deciding his orders weren't right and pulls his unit out of an engagement and many others are hurt or die because a vital defensive link is lost? You would have no functional military to speak of, all without repercussion?

The UCMJ exists for a reason....the civilians who have oversight of the military realized long ago that is by its very existence it needed to follow different guidelines. There is civilian oversight, both Congressional (whenever they wish to hold a hearing or pass a law), and Judicial (The CAAF) review process, staffed by civilians who understand the UCMJ is the highest military appellate Court. While I could see a problem in some circumstances allowing the direct Commanding Officer to be able to do whatever they want in regards to the decision of a Courts Martial is a little too much leeway, maybe a change to disallow Commanders to change Judicial Verdicts and punishments in their own units could be a direction to start. Bring in outside reviewers (Flag Officers, Senior JAG Judges, or even a different Commanding Officer) to review judicial proceedings, not the internal Commanding Officer (who my have a skin in the game because of future promotions and a perceived lack of discipline or laxity). The issue of undo Command influence again.

Right now, I am not a legal scholar, nor do I have the requisite knowledge to suggest a fix, people both military and civilian are looking at the current system and asking questions, and that is good. While I am not a fan of Sen. Gillibrand, by her asking questions and making suggestions maybe it will lead to a change in the way criminal matters are handled in the military. In any case questions are the first efforts to learn and possibly improve something and I respect her for that.
 
@Tex232 : Unsure where you got the idea that civilians would be involved in Gillibrand's proposal. Sex crimes would be subject to the UCMJ, handled within the military, just not with the CO being the judge & (ultimate) jury for this one set of crimes. A military judge would be, one who had no involvement, personal or professional with any of those involved, impartial...as I recall.
 
@Tex232 : Unsure where you got the idea that civilians would be involved in Gillibrand's proposal. Sex crimes would be subject to the UCMJ, handled within the military, just not with the CO being the judge & (ultimate) jury for this one set of crimes. A military judge would be, one who had no involvement, personal or professional with any of those involved, impartial...as I recall.
I'm under the impression that she is trying to move Sex Crimes totally out from the Chain of Command. Not just the Commanding Officer but the entire flag Chain of Command. In the current system you have a Military Judge and the Defendant can choose to have a panel (jury) or just a judge but in all of those cases, the sentence gets reviewed and approved by the Convening Authority (Chain of Command) and that is what is being proposed for change.
 
@Tex232 : Unsure where you got the idea that civilians would be involved in Gillibrand's proposal. Sex crimes would be subject to the UCMJ, handled within the military, just not with the CO being the judge & (ultimate) jury for this one set of crimes. A military judge would be, one who had no involvement, personal or professional with any of those involved, impartial...as I recall.
I'm under the impression that she is trying to move Sex Crimes totally out from the Chain of Command. Not just the Commanding Officer but the entire flag Chain of Command. In the current system you have a Military Judge and the Defendant can choose to have a panel (jury) or just a judge but in all of those cases, the sentence gets reviewed and approved by the Convening Authority (Chain of Command) and that is what is being proposed for change.
That was my impression as well.
 
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