Force Was the Deciding Factor In The Rape Case.
The use of force appears to have been the deciding factor for the Convening Authority in the Air Force Academy sexual assault Article 32 Investigation. Anyone who used force in the sexual assault was referred for trial by court-martial; whereas, anyone who was patient and waited for the alcohol to take its toll was allowed to go scott free.
That is so ironic, because the only one who achieved vaginal penetration with his organ was allowed to go free. He dodged a bullet. However, on the other hand, the cadet who used his fists in the act of sexual assault never got further than heavy petting and massaging of the genitalia.
The Cadet Kyle Cressy incidents date to May 2011. The charges state that he penetrated a female cadet’s vagina with his hand or finger, as well as his penis, while she was “substantially incapacitated.” Cressy’s charges have been dropped by the Air Force Convening Authority on the recommendation of the Article 32 Investigating Officer. Cressy’s accuser said she passed out on his bed, then awoke to find a man touching and then having sex with her. She testified that she kissed him before blacking out and never said “no” — and while she recalled trying to push his hands away, the mitigating evidence, combined with a two-day delay before she reported having been assaulted, appear to have been factors in the Convening Authority’s, Brigadier General Richard Clark’s, decision to drop the charges against him.
Air Force officials say testimony about alcohol consumption was among the reasons they decided not to prosecute Cressy on sexual assault charges. In a statement released 5 March the Academy spokesperson said Article 32 Investigating Officer assigned to Cressy’s case found no reasonable grounds to prosecute. He cited testimony that the alleged victim wrote and sent a text message that she couldn’t recall, and expert testimony that it’s possible for someone to consent to sex and suffer an alcohol blackout preventing recall of the event.
Cadet Stephan Claxton, AFA Class 2013, was charged with illicit acts in March and November of last year. In the first, he’s said to have placed a cadet’s hand on his penis while engaging in underage drinking. In the second, he is accused of striking a fellow cadet on the face with his fist and unbuttoning and unzipping her pants without her consent, as well as forcibly kissing and choking her. Claxton was recommended for court martial buy the Article 32 Investigating Officer.
The court-martial was recommended by Maj. Gen. Richard Clark, Commandant of Cadets and the academy’s special court-martial convening authority. The decision is pending with Lt. Gen. Mike Gould, Superintendent and the Academy’s General Court-martial Convening Authority. Vice Superintendent Col. Tamara Rank said, “We expect the best from our cadets and do not tolerate unacceptable behaviors.”
The Cressy and Claxton hearings concluded with very different results.
The Article 32 hearing for Cadet First Class Robert M. Evenson, Class of 2011, is still under way. Evenson had three charges preferred against him in January for allegations of engaging in an unprofessional relationship, rape, aggravated sexual assault contact and indecent acts and conduct unbecoming to an officer.
Three additional charges were preferred against him last month and are under investigation. They include wrongful sexual contact and indecent acts, stalking and assault.
It appears that force and the use of force will be the new battle ground in the battle between women and the military when it comes to disposing of rape and sexual assault allegations.
In a major law suit filed by 8 present and former US Marine Corps female officers, the use of physical force is being challenged as an unnecessary element in the proof of the offense. The women argue that proof of force should not be necessary in the modern world. They argue that modern rapists are more methodical and patient; they wait for the drugs or alcohol to lower the females capacity to give or withhold consent. Once the ability to give informed consent is so impaired then the women can be raped and the rapist is left with plausible deniability if the case is prosecuted.
The women and their attorney seek to change the UCMJ and the military male-dominated culture on the issue of force in the conduct of rape and sexual assault. They want to rewrite Article 120 of the UCMJ to remove proof of the use of force as an element of the crime.
In the Webster Smith Case force was not an issue. All of the sexual encounters were found to be consensual. The Coast Guard prosecutor was reduced to trying to prove that psychological coercion was used to persuade a female to take nude pictures and perform a sexual act. Amazingly this woman’s reputation in the community since high school was that of a person with easy virtue who delivered the good faster than Federal Express. The very nature of her secret that was at the heart of the alleged coercion was about a sexual tryst with an enlisted man from another branch of the service. And to top it all off, the woman was testifying under a grant of immunity. Truly amazing, it is hard to make this stuff up.
A press conference was held at the National Press Conference Tuesday March 6, 2012 to announce a new lawsuit being filed in the US District Court in Washington, DC on behalf of eight current and former members of the Navy and Marine Corps. The lawsuit, filed by Susan L. Burke of Burke PLLC, charges that the “laws designed to reduce rape, sexual assault and harassment in the Navy and Marine Corps directly and seriously harmed Plaintiffs and others who have reported rape and sexual assault and have challenged sexual harassment. Rather than being respected and appreciated for reporting crimes and unprofessional conduct, Plaintiffs and others who report are branded ‘troublemakers,’ endure egregious and blatant retaliation, and are often forced out of military service.”
The lead plaintiffs, Adriana Klay and Elle Helmer, stationed at the central command headquarters of the Marines in Washington, DC, are both former Marine officers. Klay was a merit scholar and is an honors graduate of the US Naval Academy. She was sexually harassed and gang raped by a senior Marine Corps officer and his civilian friend in order to “humiliate her.” Elle Helmer, the Public Affairs Officer and Official Spokesperson for the Marines, was ordered to participate in a “pub crawl” by her immediate superior officer and then raped by him.
Speakers at the press conference included Susan Burke, Eleanor Smeal, Anu Bhagwati, Executive Director and Co-Founder of Service Women’s Action Network (SWAN), Linda Hallman, Executive Director of American Association of University Women (AAUW), Nancy Parrish, President of Protect our Defenders, and Colonel Ann Wright, who is retired from the military.
“Although defendants testified before Congress and elsewhere that they have ‘zero tolerance’ for rape and sexual assault, their conduct and the facts demonstrate the opposite: They have a high tolerance for sexual predators in their ranks, and ‘zero tolerance’ for those who report rape, sexual assault and harassment,” according to the lawsuit filed in the U.S. District Court in Washington.
The suit outlines a pattern of abuse and portrays, in grim detail, the alleged experiences of the eight female service members — two former Marine Corps officers, one active duty enlisted Marine, one former enlisted member of the Marine Corps and four former enlisted members of the Navy.
“At first it was easy to laugh it off,” plaintiff Elle Helmer, one of the former officers, said about her superiors’ advances.
“When you finally said, you know, I’m really not interested, I’d rather we be friends — that’s when you became the target. They hated you for standing up for yourself,” she told HLN’s Jane Velez-Mitchell on Tuesday night.
The lawsuit alleges Helmer was raped by her superior at his office in March 2006 after a required pub crawl.
She told reporters at the National Press Club in Washington earlier in the day that she hoped by going public other victims would be encouraged to speak out.
“We all just wanted to serve our country and be good Marines and service members,” former Marine Lt. Elle Helmer said. “Ultimately we were failed.”
Helmer is one of eight current and former female service members who filed a lawsuit alleging rape, sexual assault and harassment while serving in the military.
“It’s very hard to come forward and admit what they would call weakness, but what I would call strength in the sense that people are coming forward and asking for help,” Helmer said.
She claims her assault occurred while stationed at the Marine Corps Barracks in Washington, DC, as a public affairs officer.
She says after being ordered to attend a Marine Corps-endorsed pub crawl and drink excessively, her boss, a major, ordered her back to his office and raped her.
“Ultimately I fell and hit my head on the corner of his desk and was knocked out,” she said. “During the time I was knocked out was when the rape occurred.”
Helmer says she was ultimately forced out of the Marine Corps, which she says is far too common with other victims.
“The Department of Defense is ultimately losing good personnel, and victims are becoming collateral damage,” Helmer said.
The lawsuit claims many of the men questioned were barely punished, if at all. It’s an issue Helmer says goes beyond the service women who report the assaults.
“My rapist was served collateral duties at the White House,” she said. “With that said, these people guard the president.”
Helmer says she hopes the lawsuit is a catalyst for change and the military realizes how big this problem really is.
“Take care of your people, and if you’re losing your people, it’s ultimately weakening a nation. It’s a homeland security issue,” she said.
“It’s the first time I’ve had a voice in six years, so pardon if it’s a little wobbly,” said Helmer.
She was joined by Ariana Klay, another former Marine Corps officer and plaintiff, who served in Iraq in 2008 and 2009.
In August 2010, Klay was “gang-raped” by a senior officer and his civilian friend at her Washington home, the suit contends. The officer allegedly threatened to kill Klay.
She reported the rapes and the officer was eventually convicted in a military court of adultery and indecent language, and given 45 days in military confinement, Klay said.
“Their stance was there were two that said it (sex) was consensual, despite the death threat. That’s two against one. So by that logic, the more people you’re gang-raped by the less your case is,” she told Velez-Mitchell.
The Marine Corps responded to Klay and Helmer’s allegations in a written statement Tuesday that said their respective cases had been properly investigated and handled.
“Federal law and judicial rulings require commanders in all services, including the Marine Corps, to balance needs of alleged victims with the constitutional rights of service members accused of crimes,” it read.
Smeal asserted, “The women’s movement is determined to end this wonton violence against women in the armed services. The definition of rape in the military must change to comply with the new FBI definition, which has recognized that force need not be present, but rather in modern rape alcohol and drugs are used to subdue the victim. The cover-up for a few predator abusers in the military is injuring women, men, and the armed services themselves.”
The Pentagon’s “Fiscal Year 2010 Annual Report on Sexual Assault in the Military” indicated that approximately 3,000 women experienced sexual assault in fiscal year 2008, which is a 9 percent increase from the previous year. Experts say that the real rate of sexual assault in the military is five times report incidence. Because of the high level of retaliation, victims are afraid to report. For women in the military in Iraq and Afghanistan, the rate of sexual assaults by US military personnel increased by 25 percent.
According to a 2003 study by the Veterans Affairs Medical Center, at least one-third of all women veterans have experienced rape or sexual assault during their service primarily from US service personnel, and thirty percent of military women experience domestic violence. Moreover, rape occurs in the military nearly twice as often as in the civilian world.
According to the most recent Defense Department study, more than 19,000 incidents of unwanted sexual contact are estimated to have occurred in 2010, though less than 3,000 of those events were reported.
In 2010, less than 21% of reported cases went to trial. Of the 529 alleged perpetrators who were prosecuted, 53% were convicted, according to the 2011 Sexual Assault Prevention and Response Office, which is part of the Defense Department.
“As leaders of this department we are committed to doing everything we can to ensure the safety, dignity and well being of our people. One sexual assault is one too many,” Defense Department spokeswoman Cynthia Smith said in response to the lawsuit.
As a result of the pending litigation, she was unable to comment directly on the allegations.
“Because sexual assault cases are some of the toughest cases to investigate and prosecute, the department has increased funding for investigators and judge advocates to receive specialized training,” said Smith.
The lawsuit was filed less than two months after Defense Secretary Leon Panetta outlined new measures targeting sexual assaults against U.S military personnel.
In January, he promised increased funding to train military investigators and judge advocates about sexual assault cases, stressing the military has a “zero tolerance policy” for such crimes.
“Our men and women in uniform put their lives on the line every day to try to keep America safe,” Panetta said then. “We have a moral duty to keep them safe from those who would attack their dignity and their honor.”