Soldier appeals sex crime conviction, says jury was likely to be confused by SHARP testimony
By NANCY MONTGOMERY | STARS AND STRIPES Published: January 14, 2020
A soldier convicted of a sex crime is arguing that testimony explaining the military’s sexual assault prevention training “unfairly prejudiced” a jury, documents filed to the nation’s highest military court say.
The Court of Appeals for the Armed Forces will hold a hearing Wednesday to decide whether Pvt. Tyler Washington’s conviction for abusive sexual contact, confinement for 30 days and bad conduct discharge were fair.
Washington and another soldier were privates at their first duty station when they met at Fort Bragg, N.C., in 2016. They were kissing on a bed when the other soldier said she was uncomfortable and told him to stop.
“Shush; just let it happen,” Washington replied, according to court documents.
He then covered her mouth with his hand, undid his pants and continued, kissing her body as she tried to wriggle away and told him twice more to stop, until he was interrupted by a knock on the door, court documents said.
It happened a week after required Sexual Assault Harassment/Assault Response and Prevention training, typically called SHARP, that discussed consent.
SHARP testimony at Washington’s 2017 sexual assault court-martial was allowed, after Washington’s lawyer indicated his defense would be that Washington had mistakenly but reasonably believed his accuser had consented to him kissing her genitals over her pants.
Prosecutors called the SHARP trainer to testify to the education Washington and others had received.
What did the training say soldiers should do if one person said “no” while engaged in kissing and caressing?
The other should “stop, walk away,” Sgt. 1st Class Wilfredo Rivera testified.
That testimony was “likely to confuse the (jury) members as to the legal ‘reasonableness’ standard,” Capt. Zachary Gray, Washington’s lawyer, wrote in his brief to the court. It “unfairly prejudiced Pvt. Washington by injecting the spectre of command at his trial” and should not have been allowed into evidence by the military judge.
Gray added that although the woman asked Washington to stop, he “would not have been able to understand her because her voice was muffled by his hand.”
Army appellate lawyers said in briefs that Rivera’s testimony was relevant and “limited to the purpose of rebutting the defense of reasonable mistake of fact.”
“Furthermore, even if the military judge did commit error, there was no prejudice given the use of the evidence, the military judge’s instructions, and the overall weight of the government’s evidence which resulted in appellant’s conviction,” Capt. Christopher Leighton wrote.
The woman reported to authorities that night that she’d been assaulted and later texted Washington to ask why he had not stopped despite her repeated pleas.
“I thought that was one of those moments when the person says stop but they want to keep going,” he replied, according to court documents. “Been with people like that before sorry.”