The Military's Latest Rape-Case Mess

A sexual assault case reveals an unbalanced military justice system

By MARK THOMPSON Monday, Sept. 16, 2013
    • Patrick Semansky / AP

    Which is worse: a sexual assault by three fellow midshipmen near the U.S. Naval Academy in Annapolis, Md., or spending 20 hours over five days in a military courtroom fending off questions about one's sexual history and the circumstances of the alleged attack?

    The latter is what happened at the Washington Navy Yard beginning Aug. 27, when a female midshipman was cross-examined in a lengthy pretrial hearing designed to bring those allegedly involved to justice. The case helps explain why only 3,374 of an estimated 26,000 military members who experienced unwanted sexual contact last year filed complaints. "It is essentially the woman who is on trial, and the trial can be worse than the rape," says retired Colonel Elspeth Ritchie, who served as the Army's top psychiatrist and has testified in similar cases. "I have often thought that I would never report it if it happened to me."

    The night of April 14, 2012, began as a "toga and yoga" party at the off-campus Annapolis hangout of the academy's football team. (The men wore togas, the women yoga pants.) By most accounts, the ensuing party got wild. The next morning, the female midshipman awoke at the house with a sore back, a coconut-rum hangover--and no recollection of what had happened. She learned that three male midshipmen, all Navy footballers, were boasting to friends and on social media that they'd had sex with her; the case hinges on whether she was too drunk to consent. The accuser pressed the case only reluctantly, after another female midshipman had said she planned to report what happened. The defendants, Tra'ves Bush, 22, of Johnston, S.C.; Eric Graham, 21, of Eight Mile, Ala.; and Joshua Tate, 21, of Nashville, have denied wrongdoing, saying any sex was consensual. News organizations have declined to name the accuser, now a 21-year-old senior at the academy, as they do in most such cases.

    The hearing was brutal. While the defense lawyers attacked her with graphic, repetitive questions, the accuser sometimes gripped her meditation beads, a gift from her sexual-assault counselor. The lawyers wanted to know if she wore underwear to the party, how wide she opens her mouth during oral sex and if she "grinds" when dancing. They asked her if she "felt like a ho" the morning after (although Commander Robert Monahan Jr., the hearing officer, drew the line when a defendant's lawyer asked if she carried condoms in her purse). "This is harassment," Susan Burke, her civilian attorney, told military prosecutors during a break. "It has to stop!"

    The inquisition took place during an Article 32 hearing. That's the section of the Uniform Code of Military Justice requiring a "thorough and impartial investigation" into any charge that could lead to a court-martial. Unlike civilian proceedings, which are presented in secret by prosecutors, Article 32 hearings are public, and defense lawyers can cross-examine accusers, sometimes harshly. Intended to keep military prosecutors from steamrolling defendants, it can force sexual-assault victims to endure long rounds of intensely personal questioning before the trial.

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