Last April, a 20-year-old female U.S. Naval Academy midshipman woke up feeling groggy, with a sore back, and little memory of what transpired the night before.
Today, three Navy football players, Tra’ves Bush, 22; Joshua Tate, 21; and Eric Graham, 21, are facing potential rape charges — in the midst of a larger, national conversation about sexual assaults in the military.
But this isn't a typical rape trial.
Article 32 Hearings
Since Tuesday, military and civilian lawyers have been embattled in what is called an Article 32 hearing.
Article 32 hearings are unique to the military and, in theory, function in place of a civilian's Fifth Amendment-guaranteed right to a grand jury indictment for felony charges. That is, in order for the case to go forward (in this case, a court martial) an investigating officer must conduct a "thorough and impartial investigation of charges and specification."
In actuality, these hearings serve as a form of discovery, forcing the government to reveal evidence and testimony — essentially try its case — before a trial has even begun. While defendants are not present at Grand Jury hearings, Article 32 hearings not only allow the defendants to be present, but their attorneys have opportunity to cross-examine the alleged victim.
The Pentagon said in May that at least 26,000 service members said they were a target of unwanted sexual contact last year, but only 3,374 incidents were reported. While many in Congress have called for reform in the process leading up to a court martial, nothing has taken hold yet. This fall, the Senate is expected to debate a proposal that authority for sexual assault investigations and prosecutions be removed from the military chain of command.
What's Happened So Far
On April 14, 2012, a female student attended a "Toga and Yoga" party at an off-campus house called "The Football House". There were hundreds of revelers and a Disney-themed bounce house in the yard. She testified she drank at least seven shots of rum.
She woke up the next morning groggy, with a sore back and a hazy memory. That morning, she had consensual sex with a Navy football player not connected with the case. He or a friend drove her home in a friend's car, where she vaguely remembered being the night before. She saw an open, empty condom wrapper on the floor of the car.
Trying to piece together the night, the female student later texted Joshua Tate, one of the accused. He told her she had sex with him and Eric Graham, according to her testimony.
"He was like, ‘What? You don't remember?'" she said. "He told me that we had sex and he was going to have to refresh my memory."
She's said that she remembers sitting on a bed in the house with one football player and being in a car with three others. “I was sitting on my knees on the floor in the back seat,” she told the New York Times. “I remember briefly seeing them, and I remember crying, and being upset and saying, ‘I’m sorry.’ ”
She heard rumors in days after and noticed classmates making derogatory comments about an unnamed woman on Twitter. While she was speaking to Tate, she saw that he had Tweeted, "The train tickets were on the low." The woman took this to understand that he was suggesting that she was “easy to drive a train through."
She reported the rape after a fellow student insisted she come forward, but the investigation was closed in November due to insufficient evidence. She was punished for underage drinking and forced to attend the Navy football games that her accused rapists were still allowed to play in.
The investigation resumed in January after she hired legal counsel.
She told investigators she initially withheld information because she was scared and didn't want her mother to find out.
Why Is This Different From Other Trials?
Article 32 hearings allow defense attorneys a lot more leeway in cross-examination.
While rape shield laws protect civilian accusers from similar questions, this week military lawyers have been permitted ask the female student questions like whether she was wearing a bra or underwear to the party, how often she lies, whether she "felt like a ho" the morning after, and repeated questions about "how wide she opens her mouth to perform oral sex."
Article 32 hearings are so hard on sexual assault victims that “a lot of cases die there as a result,” Roger Canaff, a former prosecutor who helped reform military sexual assault cases, told the Seattle Times.
She was also asked whether she was part of a “crusade” to change how the military handles sexual assault cases and whether she had ever imagined having a movie made about her.
When she asked for a day off from testimony after 20 hours of cross-examination spread over four days, a defense attorney accused her of faking exhaustion.
Her attorney, Susan Burke, was also put on the stand Friday and accused of manipulating the student into pursuing the case solely to bring about reform.
Other Issues
Much of the questioning has focused on inconsistencies in the female student's reports.
During a CBS interview earlier this year she said the accused men should be "convicted for what they are, rapists," but since has claimed she doesn't remember whether they had sex — consensual or not — and doesn't consider them to be criminals.
Defense attorneys also played a phone recording this week between the woman and Tate, where the woman asked him to lie to NCIS investigators because "I don't want this to go anywhere I really don't."
NBC reports that she posted on Twitter, "Gloves are off with these n*ggas if you haven't figured it out already," "I've never seen so many n*ggas squeal under pressure," and "A snitch… that 'ish I don't like."
The student admits she had recently engaged in a consensual, causal sexual relationship with Bush. His attorneys are trying to show that any sex they might have had that night was also consensual.
She also admitted on the stand Wednesday that she had lied when she initially told a counselor that she had only had two drinks at the party.
The hearing resumes today. When it ends, the presiding investigating officer's nonbinding recommendation will be sent to an Academy superintendent, who will make the final decision on whether the case should be court-martialed.
[image via AP]
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