Naval Academy midshipman found not guilty of sexual assault
By Pamela Wood and Matthew Hay Brown | The Baltimore Sun | Published: March 20, 2014
WASHINGTON — A former Navy football player was found not guilty Thursday of sexually assaulting a fellow midshipman at an off-campus party in Annapolis, Md., two years ago in a case that has drawn national scrutiny to the elite training ground for future officers of the Navy and Marine Corps.
Allegations that Midshipman Joshua Tate and two teammates had sexual contact with the woman while she was too intoxicated to consent have helped fuel the debate over the prosecution of sexual assaults in the military. Her experience at a preliminary hearing last summer, during which she was called to testify for more than 20 hours over several days, led Congress to change the rules for such proceedings.
Advocates for further changes said the verdict Thursday showed that commanders are incapable of prosecuting sexual assaults and an attorney for Tate agreed that the system is “broken.”
In another closely watched case Thursday, an Army general who had been investigated for an alleged sexual assault was reprimanded and fined for mistreating a subordinate with whom he had an adulterous affair.
In the Naval Academy case, Tate, a junior from Nashville, Tenn., could have been sentenced to 30 years in a military prison if convicted of sexual assault. Marine Corps Col. Daniel Daugherty, who presided over the three-day court-martial at the Washington Navy Yard, found Tate not guilty on that charge, but referred three counts accusing the midshipman of having made false statements back to Vice Adm. Michael H. Miller, the academy superintendent.
Miller declined to pursue those charges in exchange for Tate’s resignation from the academy. An academy spokesman said late Thursday that Tate was in the process of withdrawing.
Tate, who left the courtroom smiling with supporters, did not speak publicly after the verdict. An attorney for Tate said the case against his client was weak, but effectively ended his military career.
“It’s a shame he had to go through this,” attorney Jason Ehrenberg said outside the courtroom.
The alleged victim, now a senior at the academy, was not in the courtroom when Daugherty read the verdict.
The woman testified this week that she drank heavily before and during the April 2012 party at the so-called football house in Annapolis. She said she did not remember having sex with Tate in a car parked outside, but learned of it through academy rumors and comments on social media.
When she confronted Tate, she testified, he confirmed that they had had sex.
Prosecutors argued that she was too drunk to give consent. After the verdict, an attorney for the woman said his client was “beyond disappointed.”
She “is appalled by the lack of accountability,” Ryan Guilds said. “Fundamentally, this case is the result of a flawed military system.”
The Baltimore Sun does not identify alleged victims of sexual assault.
The allegations became public last year amid growing scrutiny of commanders’ efforts to confront the long-standing problem of sexual assault within the ranks. President Barack Obama raised the subject during his graduation address at the academy last spring, saying that sexual assault has “no place in the greatest military on Earth.”
The Pentagon, using confidential surveys, estimated last year that up to 26,000 service members had suffered unwanted sexual contact during the previous 12 months. But only 3,374 assaults were reported, and only 594 suspects were sent to courts-martial.
Critics say the way to improve those numbers is to take prosecutions out of the chain of command — taking the authority to order a court-martial away from military commanders, who might have conflicts of interest when weighing allegations between subordinates, and giving it to trained lawyers.
Military leaders and their allies in Congress oppose such a change. They say a commander’s authority to refer troops for court-martial is an essential tool for maintaining order and discipline — and for holding officers accountable for their units.
Rep. Jackie Speier, who has championed legislation to overhaul the military justice system, said the verdict in the Naval Academy case showed that “the military cannot competently investigate and prosecute serious crimes.”
“This case was botched from the beginning by an incompetent investigation overseen by a commander that never wanted to bring these charges forward,” the California Democrat said. “The military justice system is broken as long as legal decisions are left up to commanders with no legal expertise and a bias to protect the assailant.”
Ehrenberg said he agrees with “those on Capitol Hill who say the system is broken.”
“But it’s broken in many directions,” he said. He said the prosecution of Tate was motivated more by political pressure than by the evidence.
“Don’t use my client to advocate for your cause when you don’t have a case,” he said.
Sen. Kirsten Gillibrand, another lawmaker who has pushed to take prosecutions out of the chain of command, said the academy case showed “a military justice system in dire need of independence.”
“When survivors and defense attorneys both agree we need to reform the system — it should tell us the system needs reform,” the New York Democrat said.
Critics also condemned the sentence handed Thursday to Brig. Gen. Jeffrey A. Sinclair.
A veteran of more than 27 years and five combat tours, Sinclair was accused of threatening to kill an Army captain and her family if she exposed their three-year affair, forcing her to perform oral sex, and engaging in “open and notorious” sex in a parked car and on a hotel balcony.
If convicted of the most serious charges, he could have been sentenced to life in prison and would have had to register as a sex offender. In a deal with prosecutors, he pleaded guilty to improper relationships with two female Army officers, violating orders and conduct unbecoming an officer. He received a reprimand and was fined $20,000. He will be allowed to retire and receive a pension.
Nancy Parrish, president of the advocacy group Protect Our Defenders, said the sentence “sends one more chilling message to victims that are thinking about coming forward.”
“It provides a clear example of why nine out of 10 sexual assault victims never report their attacks,” she said. “The military’s promises of ‘zero tolerance’ for sexual offenses continues to ring hollow as yet another high-ranking official is let off the hook.”
In the Naval Academy case, Daugherty said he was unable to determine from the evidence whether the woman was too intoxicated to consent to sex or if she was so traumatized by “rude, disgusting and vulgar” social media postings that her recollection of the events was colored.
Daugherty said that amounted to reasonable doubt that prevented a conviction.
He said the case presented difficult questions such as “how drunk is too drunk” to consent, and whether one person can tell when another has crossed that threshold.
Daugherty said the investigation by the Naval Criminal Investigative Service was hampered by the unwillingness of the alleged victim to cooperate and by lies told by midshipmen who were interviewed.
In testimony this week, the woman acknowledged that she had initially urged Tate to lie to investigators. But after an encounter with a sexual assault victim, she said, she had a change of heart. She said she decided to pursue charges in part to find out what happened.
Baltimore attorney Susan Burke, who has represented the woman, said the midshipman had “done her patriotic duty.”
“Her courage has led to the reform of the Article 32 process,” said Burke, who has represented hundreds of service members in sexual assault claims against the military. “That’s a pivotal piece of getting this broken system fixed.”
The Article 32 hearing, sometimes compared to a civilian grand jury, is used by the military to investigate charges and help commanders determine whether to refer a suspect for court-martial.
After the woman in the Naval Academy case was subjected to a broad range of questions by three defense teams over five days, Speier introduced a bill to change the rules.
Her legislation limits the scope of the proceeding to determining probable cause and allows alleged victims to decline to testify. Congress approved the measure in December.
With the verdict Thursday, the Navy failed to secure a conviction against any of the three former football players who were initially investigated in the alleged assault.
Miller declined to pursue charges against Midshipman Tra’ves Bush after a preliminary hearing last year. Bush has since graduated and been commissioned as an ensign in the Navy.
Midshipman Eric Graham was charged with abusive sexual contact and making false statements, but the case was dropped when statements he made to NCIS investigators were deemed inadmissible in court. His case was sent back to the academy’s conduct system and an academy spokesman declined to comment on the outcome, citing student privacy laws.
Graham’s attorney, Ronald “Chip” Herrington, said his client has agreed to withdraw from the academy as a result of the case. He is hoping for an honorable discharge and to not be required to pay back the cost of his education.
The cost of a full academy education is $186,000, but midshipmen who leave early might not be required to repay the full amount, said Cmdr. John Schofield, an academy spokesman.
Graham’s departure from the academy was held up while he testified in Tate’s case under a grant of immunity from prosecutors, Herrington said.
It will be up to an assistant secretary of the Navy to decide whether Tate must repay the cost of his education. Midshipmen attend the Naval Academy free of charge in exchange for five years of service in the military after graduation.
David Zucchino of the Los Angeles Times contributed to this article.