Unlike the problems confronted by a male student on an ordinary college campus accused of rape, a male cadet at the United States Military Academy at West Point was confronted with a better, and worse, scenario. The Uniform Code of Military Justice applied, rather than the manufactured pseudosystem at civilian colleges, but the political pressure on the military to follow the tough-on-sex crimes narrative has been intense.
“There is in my experience a tremendous amount of pressure from panels in the military to convict,” [William] Cassara said. “That was especially true at West Point.”
And convict they did.
Cadets were not authorized to have sex during Cadet Field Training. That night, however, appellant penetrated LM’s vagina with his finger and then with his penis. These sexual acts were not observed by any other cadets in their squad or company, but appellant’s semen was found inside LM’s sleeping bag.
At trial, the parties presented competing theories over this sexual encounter. The government asserted that appellant was a sexual aggressor who assaulted LM in her sleeping bag, while the defense averred that the parties engaged in a consensual sexual encounter while taking active measures to avoid detection. The parties provided a variety of evidence and arguments – both direct and circumstantial – in support of these theories, to include what happened before and after the encounter.
LM and appellant both testified at trial. In describing the alleged assault, LM said she was inside her bivy cover to the point that it completely covered her head, but she woke up to appellant penetrating her with his finger and then with his penis. LM said she remained frozen in the fetal position during the entire assault. By contrast, appellant testified that the sexual acts were precipitated by a series of escalating and consensual touchings. Appellant also said that both parties tried to avoid detection and even stopped and held their breaths after hearing a nearby noise.
Given the conflicting testimony, it would be fair to assume that the cadet was acquitted, as even under the civil preponderance of the evidence standard, there was nothing to suggest one side outweighed the other. Yet, Whisenhunt got crushed.
The cadet, Jacob D. Whisenhunt, had been convicted of three counts of sexual assault against another cadet in her sleeping bag during field training on July 7, 2016, according to the ruling.
A panel of officers, serving as a general court-martial, sentenced him in 2017 to be dismissed from the service and to 21 years in prison. He served 25 months, Cadet Whisenhunt’s lawyer, William E. Cassara, said.
While the cadet might have been prepared to give his life in service of his country, he was not prepared to give 21 years, or 25 months, in service of a narrative. The appellate panel rejected sacrificing the cadet to the narrative, and found the facts insufficient.
“It is hard to conclude beyond a reasonable doubt that appellant could complete the charged offenses without cooperation or detection,” the panel wrote. “It is even harder to conclude beyond a reasonable doubt that appellant would anticipate that (the woman) would not make any reflexive noise or movements upon being awakened, which would have alerted multiple others to his criminal activity.”
The judges said their doubt about whether the woman was raped was increased because Whisenhunt hadn’t threatened the woman or taken steps to silence her, “such as covering her mouth to prevent an outcry.”
They said they considered a rape unlikely because Whisenhunt knew the woman could identify him, yet had acted in seeming confidence that she wouldn’t report what had happened.
“Furthermore,” the court wrote, “appellant left his semen on (the woman’s) bivy cover, and there is no evidence that he tried to remove this evidence.”
The evidence of rape, equivocal at best based on the conflicting testimony, tipped in favor of the male cadet when viewed in the light of reality.
The scenario outlined by the defense and the record leaves us with a fair and rational hypothesis other than guilt.
A proper outcome? Only if one prefers a slavish adherence to facts and reason.
U.S. Sen. Kirsten Gillibrand, a New York Democrat who has campaigned publicly against sexual assault in the military, said Friday that the decision sends a “terrible message” to survivors.
“I am extremely concerned that the panel’s reasoning reflects an outdated understanding about the nature of sexual assault and may deter reporting by survivors,” Gillibrand said.
By “outdated understanding,” Gillibrand is referring to the narrative, the litany of excuses by which every accusation proves guilt, whether by facts proving it or the absence of proof.
“It’s an offensively bad decision filled with victim-blaming, a poor understanding of the impact of sexual assault on survivors and an incredibly stupid analysis of whether perpetrators will commit offenses against people they know,” [Retired Air Force Chief Prosecutor Col. Don] Christensen said.
“They say the victim didn’t act the way they thought she should act, that she basically didn’t make enough noise,” Christensen said. “But victims often freeze. That’s one of the reasons rapists get away, because of the impact of trauma. They also doubted his guilt because the victim knew who he was and could report it. But well over half the rapes that occur in the military are acquaintance rapes.”
And, of course, the usual suspects found it horrifying for the usual reasons.
Maureen Curtis, the vice president of criminal justice programs at Safe Horizon, a victims services agency, said she was disappointed in the ruling.
“This is really sad because we’ve come so far with the #MeToo movement and how people were less blaming and more believing of victims of sexual assault and victims of domestic violence,” she said.
That Cadet Whisenthunt should have been entitled to the presumption of innocence, a concept otherwise denied to male college students on campuses laboring under Title IX, is reflected in the appellate ruling, and utterly ignored in the narrative that facts should inform the outcome rather than “believe the victim” no matter what. The distinction here, of course, is that this was no campus tribunal, but a military court applying military law that ignored every applicable legal concept to convict and sentence the cadet to 21 years in prison.
“This case would never have gotten to trial in a state court,” [Cassara] said. “If it did, it wouldn’t have led to a conviction, I’m confident of that.”
That would likely have been true a few years ago. That would have true in a military court as well, a few years ago. Whether it’s true anymore, or will be true in the future, is in doubt. At least the appellate panel need not fear being Persky’d for “victim blaming,” as reliance on facts is now characterized, as civilian judges may well be.