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A woman’s word on sexual assault meets military code

Teacher Tabitha Phegley, of Warrensburg, pictured Sept. 17, 2013, feels let down by the military justice system. A U.S. Air Force pilot she accused of rape was recently found not guilty. She holds a button made by close friend Amanda Roberts.

KEITH MYERS, KANSAS CITY STAR/MCT

By LEE HILL KAVANAUGH | The Kansas City Star | Published: November 28, 2013

WHITEMAN AIR FORCE BASE, Mo. — The B-2 pilot might have wished he were a thousand miles away, over some blank ocean perhaps, even in dark enemy skies.

Instead, the captain was quite earthbound early one morning in September, waiting for the jury to return in his general court-martial. Wondering perhaps whether he would fly the sleek stealth bombers again — or be sent behind bars, as the convicted rapist of a Warrensburg, Mo., preschool teacher.

Like so many cases, this one involved alcohol and whether the words “no, don’t” had been uttered. The lead defense attorney had called it just another “one-night stand that was a bad idea when the sun came up.” The prosecutor had called it much, much worse.

To reach a guilty verdict, military law required at least four of the five jurors, all fellow Air Force officers, nearly all from the same unit as the accused, to agree. Six hours had passed since the closing arguments ended around 8 p.m. The judge was weary, too, telling the deliberators to either “wrap this up or reconvene at 0800.”

They wrapped it.

A little after 2:30 a.m., the court reassembled. Waiting for the judge to sit first, one juror lifted her gaze from the floor and met the teacher’s eyes briefly. Tension flowed into Room 204 as it filled with bomber crews, other officers and several spouses.

The lieutenant colonel on the jury read from the slip of paper. Capt. Jason Wayne Boman, 29-year-old bachelor, graduate of the Air Force Academy, class of 2005:

“Not guilty.”

The rape accusation had been a shock on Whiteman at Knob Noster, Mo., where a few enlisted men have been convicted of sexual violence, but never one of the elite, one of 80 B-2 pilots. Those are the fliers who have guided their big black check marks over Chiefs games, waged war over Iraq, dropped dummy payloads not so far from North Korea just to make a point.

Hard feelings still erupt at the air base and in the nearby college community at Warrensburg. Nor did the court-martial enhance the reputation of the U.S. military, facing a roiling epidemic of sexual assault scandals.

Fresh numbers from the Pentagon this month showed 3,553 sexual assault complaints from October 2012 through June, a nearly 50 percent increase over the same period a year earlier. The statistics included crimes against civilians as well as service members.

Believing the service branches’ way of dealing with sexual assaults is badly broken, Democratic lawmakers like U.S. Sens. Claire McCaskill of Missouri and Kirsten Gillibrand of New York began formal debate last week over different fixes in the Senate. Their colleague, Sen. Barbara Boxer of California, also calls for specific reform of the military’s pretrial hearings, criticized for their often harsh treatment of sexual assault victims.

As Washington argues, the Whiteman court-martial offers a rare glimpse into the military’s unusual and decades-old code of justice, particularly Article 120 — “Rape, sexual assault, and other sexual misconduct.”

The judge and jurors that morning of Sept. 14 had just filed out — but not Boman’s accuser, Tabitha Phegley — before a sudden celebration erupted in the standing-room-only courtroom. Cheers and laughter, and a great relieved sobbing arose, too, from Boman’s middle-aged mother, her makeup already cried off, her shoulders shaking with each inhaled breath, as her husband patted her hand.

The 27-year-old teacher and her mom were silent during the 10-mile drive back to her Warrensburg apartment. Inside, she was met by five close friends, who had felt too intimidated to join her for support on the tightly secured air base.

But at Phegley’s apartment they wrapped her in hugs and wept. Later, days after the verdict, she would say that her girlfriends took the finding harder than she did.

“I was expecting it all along,” she says now, recalling some of the Air Force prosecutors who seemed more concerned for the pilot’s reputation. “Let’s face it, he’s a million-dollar investment for the United States of America. Do you really think they’d just let him go?”

Phegley, who called her own pretrial hearing “brutal,” is so angry at how the Air Force treated her that she changed her mind the day after the trial and allowed her identity to be used in this story.

“‘Not guilty’ does not mean ‘innocent,’ ” she said. “What happened to me was not right and I want the whole world to know.”

Boman declined to comment, but his civilian attorney, Richard V. Stevens, said by email that the verdict reflected what he called Phegley’s “inconsistent versions of events” and “lies” regarding the destruction of evidence.

That everyone lost something is clear in this cautionary tale: Boman has been transferred away from his duties as a bomber pilot. Even with an acquittal, his Air Force career is likely stunted.

And Phegley was recently put on administrative leave from her teaching duties, an act that stems from the case.

The alleged assault did not take place on the base itself, but in Boman’s home in Warrensburg, where normally the civilian courts would hold sway. But the judge advocate general’s office at Whiteman wanted this one.

Johnson County, Mo., automatically gets any DUI cases involving Air Force personnel, said Lynn Stoppy, the county prosecutor. But this was a much more serious accusation, and Air Force Lt. Col. Todd Pennington, the top JAG officer for the bomb wing, believed it should fall within his jurisdiction.

Phegley says she begged Stoppy to keep the case; the base was Boman’s home turf.

The prosecutor called it a very difficult decision, on which she’d debated Pennington for hours. In the end, Stoppy allowed the transfer.

As it involved both parties drinking alcohol and no violence beyond the intercourse, Missouri law at the time only allowed Stoppy to charge sexual assault. (A statute change since then now classifies the same circumstance as rape.) A civilian conviction meant a maximum seven-year sentence.

“The military laws at the time could exert greater punishment,” she explained, with five years to life, a dishonorable discharge and loss of all benefits. So Boman faced two Article 120 counts under the Unified Code of Military Justice — rape and aggravated sexual assault against an incapacitated person.

Since Stoppy’s decision, the Pentagon released a report that estimates as many as 26,000 service members (civilian victims were not tallied) were sexually assaulted in 2012, but as few as 3,374 actually followed through and filed complaints. In those, military prosecutors won only 238 convictions.

“It was my hope,” Stoppy said after the court-martial, “that the military jurors would hold him to a higher standard because he was an officer.

“And the victim,” she added, “was one of the strongest witnesses I’ve ever met. … I thought she had a good chance.

“My heart is heavy for her as a victim of a crime.”

Phegley did not report the incident until six days later, after her mother flew in from California, and accompanied her to the Warrensburg police station. Boman went in for questioning about a week later.

Many of the details of the night are not disputed and what follows is from Phegley’s courtroom testimony and Boman’s videotaped police questioning:

Boman told two civilian detectives that on April 27, 2012, he and his buddy, Capt. Andy Waugh, another B-2 pilot, started drinking at the Tipsy Tower bar around 5 p.m. and kept going until midnight. “I wasn’t drunk, but I was at the low end of being buzzed. I wasn’t at blackout level, though.”

Boman recently had broken up with a girlfriend. Phegley was at the end of a seven-year relationship. They knew each other through mutual friends. That night, she went over to his table to say hi.

Phegley also had imbibed heavily. Her friends would testify she was drunk. She texted friends telling them she was drunk. Worn out by her 4-year-olds that day, she agreed to go out because a close friend was leaving for Arizona.

Neither Boman nor Phegley were able to tally up for investigators just how many beers, glasses of wine, or Jack and Coke rounds they’d had.

Phegley had left her purse with her car keys in her girlfriend’s car. A mistake, because later her friend left the bar, thinking that Phegley already had gone, too. She texted the friend to come back and pick her up, but the text wouldn’t be read until the next morning.

The two pilots decided to take a cab together and not risk a career-killing DUI arrest. Boman invited his buddy and Phegley to his house for an after-bar-party. She could stay there until she reached her friend.

“I always ask everyone to come over for drinks,” Boman said. But when the cab arrived at Boman’s address, Waugh declared he was too tired and would walk to his own house a few blocks away.

Phegley admitted being a little uneasy when it was obvious no one else was coming over, but shrugged it off. She said she’d considered Boman a nice guy. He was an Air Force officer, highly respected.

And Boman told his polite but persistent police questioners: “She’s a nice girl. I won’t say anything bad about her.”

The sex had been consensual, said the 6-foot-1-inch Coloradan, who’d played football for the academy. But he said he couldn’t remember how he knew she wanted to have sex, or how they went from watching a movie in the living room to his bedroom.

In the three-hour interrogation, he answered 11 times that he couldn’t remember details. “The ‘not sure’ part of your answers is my problem,” observed a detective. “It’s just been three weeks ago.”

Phegley’s testimony indicated a much sharper memory. Boman attempted to kiss her twice, which she rebuffed, but still Phegley felt safe. “I’ve had to do that before with some guy friends.”

She told Boman she just wanted to sleep on his living room couch. He lent her a pair of his sweatpants, more comfortable than her skinny jeans. That’s when Boman tried to “help” her change, in the kitchen, she recalled. He would say she changed in the bathroom. Still, Boman stopped when asked, she testified.

Boman said he’d be a gentleman and sleep on the couch, she testified, so she went to his bedroom and drifted off. She was awakened by severe pain from Boman’s rough jabbing of her vagina with his hand, and pleaded with him to stop. But the 5-foot-2-inch blond seemed powerless to fight him off and was falling in and out of a drunken sleep, she said.

“I stopped telling him no.” On the stand, she dissolved into tears. “It didn’t hurt as much as his hand did, and I wanted it over.”

Phegley told the court that she slipped out of Boman’s bedroom when she awoke and texted friends to find someone who could pick her up. She had to find his mail to know the address, hiding in his bathroom, terrified that he might wake up.

In those early texts, she did not say she was raped, but that she’d had unwanted sex with Boman and needed a Plan B morning-after contraceptive. Her friends who called her back that morning testified that she was hysterical and crying nonstop. Said her former boyfriend during the trial: “I knew something really bad had happened.”

During Boman’s interview, a detective leaned in to ask: “Could she have said (no) and you didn’t hear it?”

Boman: “That would be a bad thing.”

When the captain woke up later, he texted Phegley, asking why she’d left so early. At trial, prosecutors read aloud her answer: “You should have stopped when I said stop. What you did to me was wrong … ”

Boman texted back: “That’s not how I remembered it.”

“Looking back now, I felt like I was the one on trial, not Boman,” she said.

Phegley spent days in her own Article 32 hearing, a public judicial process to determine if enough evidence exists for a court-martial. She was asked about her sexual history; her friends — a few of whom broke off from her in the process — were questioned about her reputation by private investigators.

“I’m a preschool teacher, who is active in her church, led a good life, and they have made me feel like a huge whore,” she said of the hearing. “So I can’t imagine how someone who hasn’t led the type of lifestyle I have could survive this.”

The defense even had dug up an old MySpace photo of Phegley from 10 years earlier. As a high school junior at Richmond, Mo., she’d posed for a choir fundraiser called the Ugly Leg Contest, with a photo of her in black fishnet stockings.

In a news conference earlier this month, Boxer called the unlimited nature of Article 32 interrogations a “disaster” that discourages alleged victims and supporting witnesses. The restrictions she introduced were spurred in part by a rape case at the Naval Academy in Annapolis.

In that case, the defense attorneys for three football players asked the woman humiliating questions, such as how wide she opened her mouth for oral sex.

“There is simply no reason that victims of military sexual assault should have to endure vicious and invasive questioning during a marathon, pre-trial interrogation that has no parallel in the civilian world,” Boxer said. U.S. Sen. Roy Blunt, R-Mo., joined ranks with Boxer and McCaskill on this point.

Boman’s attorney, a former JAG officer who specializes in defending U.S. military members, considers Article 32 a legitimate tool to ferret out the fakers and the recanters among those who say they were raped.

“There is a wildly inaccurate public narrative about how the military justice system is allegedly ‘unfair’ to those who claim rape or sexual assault,” Stevens wrote to The Kansas City Star. “This narrative is being pushed by government officials, particularly members of Congress. They base their opinions on one side of the story and hearsay, and don’t truly know or understand what happens in these trials.”

In the end, the Article 32 evidence did nothing to stop Boman’s case from proceeding to trial by court-martial.

In her 45 minutes of jury instructions, the judge, Lt. Col. Natalie Richardson, made it clear: “Phegley did willfully destroy her phone. You may use this in deciding her believability.”

Over the initial months of investigation, the Warrensburg police twice had asked for the device and Phegley had submitted it. The defense and prosecution would collect 166 pages of her text messages, which felt to her like a violation of privacy.

Then, during the Article 32 hearing, Boman’s defense team asked for it for a military forensic test to restore any deleted material.

The military prosecutors told Phegley they had vigorously fought the request, but lost. It seemed like an even worse invasion and not the only one; she would testify that Google alerted her that someone had attempted to hack her computer.

They advised her that she could refuse, but it probably would mean the court-martial would be dismissed. Phegley said she tried to hand over the phone then, only to hear it couldn’t be taken just yet.

And then the attorneys, sent in from the special victims prosecutor group set up last year by the Air Force, asked her again, just as she says they did more than two dozen times: Are you sure you want to do this? These are serious charges that will impact Captain Boman’s life forever.

“It felt like they wanted me to stop because they didn’t believe me,” she said. “I told them if they asked me that one more time I would scream.”

One of the changes in McCaskill’s Senate amendment would address such cases.

“We are requiring that every victim get their own lawyer, so they will have their counsel looking after them — as opposed to a prosecutor who might not be always looking after the victim’s best interest,” she told Missouri reporters last week.

After a day of hearings, Phegley says now, she snapped. It was her first evening alone since the incident. Her fears had led her to move in with a friend’s family, but her hosts were delayed in St. Louis. Phegley, angry about how she’d been treated, she says, started sending emails to politicians, CNN and Anderson Cooper.

When the prosecutors were ready to take custody of the device weeks later, she handed it over, saying it was no longer working, that it had been dropped into a swimming pool.

But that angry night, she had plunged her phone into a glass of salted water.

Phegley told Stoppy what happened, however, and the civilian prosecutor advised telling the truth to the military attorneys. When Phegley did, they immediately were taken off the case. Not only that, they became lead witnesses for the defense.

The Star first learned of the case when receiving an urgent email from Phegley, who wrote that she was told the previous day that “if I testify I may be charged with a federal crime (for destruction of evidence) … and that I will probably be read my rights on the stand.”

She wrote the newspaper that she was willing to take that risk. She said she also was warned that she could be sued if she proceeded with the case. Again, she said she’d take the risk.

Her email, sent just hours before the court-martial began, also said that Stevens, apparently in a final bid to get the case dismissed, had argued, “that as a civilian, who did not respect the military and/or military court, I did not deserve to have ‘my day in court’ through military court.”

Stevens, the Pensacola, Fla., attorney hired by Boman, agrees he argued that by destroying the phone, Phegley was “thumbing her nose at the system.”

The actual court-martial lasted four grueling days, often 12 and 13 hours each, on the second floor of a building designed in the shape of a B-2 Stealth Bomber.

On the walls are photographs of the Enola Gay, the B-29 of the old 509th that dropped the first atomic bomb on Japan, and framed citations of other famous Air Force sorties. Hanging from the third-story atrium ceiling is a model of a stealth B-2 with the span of a king-size bed.

Boman’s own “band of brothers” — which included at least one very pregnant “sister” pilot — showed up, some in dress blues and others straight from the flight line in green flight suits.

The night of the verdict, their mood had grown tense enough that a public information officer, apparently fearing an embarrassing outburst or confrontation from the base contingent, asked a Star reporter to leave the hallway and wait in an isolated office. Under protest, the reporter, the only media member attending, complied. Her phone was taken as well, although other observers were seen using their devices. Nor was she allowed to interview any officers after the verdict.

All but one of the jurors belonged to the 509th Bomb Wing, and all but one were men. The only pilot among them was from the 442nd Fighter Wing, a reserve A-10 unit at the base.

Stevens called them highly educated, professional and thoughtful, listening “in an oppressive environment geared toward conviction.”

Stevens made sure the jurors did not forget the ace in his legal hand: “If Miss Phegley would lie about her cellphone, what else would she lie about?”

Capt. Joshua Nettinga, leader of the replacement prosecution team, hammered at what everyone in the room had seen in Boman’s police video. He also brought up the Ugly Leg Contest photo from the Article 32 hearing as an example of how Phegley had been victimized by the process.

Stevens hotly responded in court that the prosecution was trying to distract jurors from the fact that she had destroyed potential evidence that might have exonerated his client.

“It was absolutely untrue that we were going to use anything like that picture from her MySpace page to prove her promiscuity,” Stevens said. “And unless she doesn’t understand the English language we told her that multiple times.”

Phegley sat through most of it, watching the three replacement JAG prosecutors whom she considers much more supportive than the first group. The military also assigned a victim advocate, a civilian who worked for the military, to help her. Phegley’s mother, Angie Dunn, who calls her daughter the strongest woman she knows, also had come from California.

Choosing not to testify and therefore avoiding prosecution examination, Boman spent much of the trial sitting ramrod straight and doodling with his left hand on a yellow legal pad. His videoed questioning by Warrensburg police, however, was shown in its often-intimate entirety.

The differences from civilian court were obvious. Military jurors are allowed to ask questions after each testimony; one asked Phegley how she knew which room was Boman’s bedroom.

“I don’t know,” was her answer. Later, she told The Star that the doors in his two-bedroom home were open, but the guest room seemed more a gaming room, with a futon and filled with clutter and dirty clothes. The easily observed juror-packet photos of Boman’s home, however, showed a neatly made bed in the guestroom.

But no juror had a question for Waugh, Boman’s friend, when he testified that Phegley wasn’t in the cab with him and Boman that night, that he didn’t remember any blond-haired female on the ride.

Another difference was the hours of testimony from 10 of Boman’s fellow officers lauding the character and peaceful nature of “J-Bo,” his call sign. Under McCaskill’s latest proposal, this “good military character” procedure would be sharply limited as a defense against charges, although it would still be relevant in the sentencing phase.

One vouching for Boman was Lt. Col. Craig Allen, something of a mentor, who would give him a bear hug after the acquittal verdict. Phegley had baby-sat the Allens’ infant girls and helped his wife when he was deployed. Allen and his wife testified that Phegley had once told them that Boman should date her.

Nettinga responded to that in his closing arguments:

“If she had wanted Boman, she got him! Why would she put herself through this if she got what she wanted?”

“The B-2 culture around here is king,” said Dawn Snow, a Warrensburg friend of Phegley. Most at the base, she said, thought the case would fade like a jet contrail in the sky.

“But how can Tabitha forget?”

To the discomfort of some at Whiteman — anger, from Boman’s supporters — the Internet saw an eruption of furious blogs and postings, most by Phegley’s friends.

The day after the verdict, Snow wrote about the case on her blog. She found Boman’s name and case number on the JAG docket, took a Web shot and posted it to her website. She also linked to a page where his photo was, and she listed the Air Force definition of sexual assault and consent.

She finished the post by writing: “To sum up, a drunk person cannot give consent.”

Stevens says that’s not true: “By law, a drunk person can consent to sex. The question is the level of intoxication and whether it rises high enough that it renders a person incapable of consenting or declining.”

Within hours of Snow’s post, more than 1,000 hits registered. But by the next morning, instead of opening up her blog, readers were sent to a black jack poker site. She’s been hacked again, since.

“I don’t believe in coincidences,” she wrote.

Phegley herself started a Facebook blog called, “Surviving 120” — the military justice code for rape and sexual assault charges.

“I speak up when others cannot,” the blog announced. “If you doubt the power of your voice, just look at what they do to try and silence you.”

Two days after the trial, Kori Cioca, a rape survivor featured in the Oscar-nominated documentary, “The Invisible War,” called to give support. “She told me that … the civilian stories of rapes by military isn’t talked about hardly at all,” Phegley said. “It’s the next layer of uncovering military sexual abuse.”

Phegley was diagnosed with post-traumatic stress and is taking anti-anxiety medications. She bought a gun and a Rottweiler. She said she’s gained 30 pounds, changed her phone number four times, moved five times.

Her bubbly personality, her friends say, has been replaced with an angry woman some days, a fearful one the next.

“People should be talking a lot about rape and what it is,” Phegley says. “Most people think of rape and they think of some stranger in a dark alley. You don’t think of it being rape when your friend does this to you. … My hope is that maybe in the telling of my story, others will tell what happened to them, too.”

But in telling it so often now she feels there’s nothing left in her life that’s intimate.

She was talking of another relocation, although she had expected to keep teaching her 4-year-olds at Ridge View Elementary School, a job she loves. She’s close to earning a master’s degree in education, but after all this, “I’m hearing the call of law school.”

School administrators, however, made a decision for her last week, putting her on indefinite administrative leave. A letter of reprimand noted that one of the Air Force mothers at the school complained that Phegley “had called her friend (Boman) ‘a rapist,’ ” on a website. Phegley said that the site in question was not hers, but a friend’s. The Star was unable to obtain comment from district officials.

Boman no longer is at Whiteman Air Force Base, no longer flying the bombers. While base officials would not discuss Boman’s status with The Star, citing national security, Phegley and her mother learned this from a top source — the base commander, Brig. Gen. Thomas Bussiere, who met privately with them well after the court-martial.

Bussiere confirmed last week to The Star that Boman was reassigned to north central California’s Beale Air Force Base, where the mission is reconnaissance, some of it performed by U-2 spy planes.

This was done in the name of unit effectiveness, the general said — paraphrased by the base public affairs office in an email. “Taking care of our people, who are better able to accomplish the mission if the AF takes their individual circumstances into account. …

“Sexual assault in the military is a serious issue that the Air Force is committed to stamping out. We try to create an environment where perpetrators are identified and held accountable, and where victims receive the support they need.”

Boman’s mentor, Allen, is a pilot training supervisor these days at a Texas base. Among other things, he warns his young crews how alcohol-related incidents can lead to discharge and repayment for education (an amount that can top $100,000 for academy grads). While his Internet message says nothing of the personal damage that can come from a drunken sexual encounter, he makes his point:

“Don’t trade the chance to pilot a multimillion-dollar aircraft for another three-dollar beer.”

Capt. Jason Wayne Boman, a U.S. Air Force pilot who Tabitha Phegley, of Warrensburg, accused of rape, recently was acquitted.
MCT

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