Facts Finally Prevail For West Point Cadet

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.

14 thoughts on “Facts Finally Prevail For West Point Cadet

  1. Ron

    To the extent the “survivor” advocates of Title IX try to distinguish its impact from criminal charges, this is the nexus between the two and failed miserably. You’ve been arguing for a long time that the narrative is permeating law and would water down standards when it came to rape. Clearly, it did here.

    I would have thought a female West Point cadet strong enough that, if sexually assaulted, she would have at least been capable of reacting, if not beating her assaulter to a pulp. Apparently, women at West Point are just as fragile as Harvard. Sad.

    Reply
    1. SHG Post author

      There’s a bit of cognitive dissonance when considering that women are strong enough to fight in combat, but not strong enough to resist being raped.

      Reply
  2. B. McLeod

    I had some trouble envisioning how you get two people into a sleeping bag with one of them in “a fetal position.”

    The most poorly written media account I saw on this one stated that Whisenthunt was accused of “raping a female cadet while she slept in a nearby sleeping bag.”

    Reply
    1. SHG Post author

      It strains credulity that even if the two tried their darndest to remain quiet so the others didn’t know, one of the cadets a few feet away wouldn’t have awoken and, well, seen stuff.

      Reply
  3. Nathan Freeburg

    Interesting fact about the case:

    The prosecution asked for 14 years confinement. The West Point panel gave 21. I think that drew the appellate panel’s scrutiny as calling into question the impartiality of the panel.

    Reply
    1. pml

      Having been associated with the US Army for close to 45 years, both Active Duty and as a civilian Consultant, there is nothing impartial about a Court Martial panel. Thats why the JAG has an almost 100% conviction rate.

      I sat on 2 Panels and testified at a Death Penalty trial, it is a rigged game I hate to say.

      Reply
      1. Ray Lee

        I can’t speak to the Army but the Marine Corps does (or at least did) not have any where close to a 100% conviction rate. Many of my cases, both as Trial Counsel (prosecutor) and Defense Counsel, resulted in acqitals. Of all the tribunals I’ve appeared before, from Federal Appellate Courts to arbitrations and lots in between, I’d take a USMC Court Martial over any other 10 times out of 10 for fairness and justice.

        Reply
  4. Eric

    Oh boy. Where to start…

    I cannot agree with the assertion that it is a rigged game, largely because of the number of military cases that I observed which resulted in good/great results for the defense. Does the flag officer who refers charges get to select the pool of available members for a court martial panel (jury)? Yes. Are there ample opportunities for both sides to voir dire and challenge members for cause? Also, yes. Both prosecution and defense are permitted access to personnel data with which to evaluate each member–more than you’d ever get for a civilian jury. As with any system of justice in the US, those with the greatest knowledge of its inner workings can identify scores of flaws and perceived injustices.

    Upfront, the only real information I have is from the appellate decision, and I’ve not had the chance to peruse the record of trial. The appellate court, which I believe consisted of two men and one woman (based on names that look familiar, but I cannot be 100% sure), issued a summary decision and did not hear oral argument in this case.

    Having said this, I see the arguments for both sides.

    From the perspective that supports upholding conviction, the panel believed that he was guilty and was motivated enough to award more than two decades of confinement. I’ve seen panels that clearly wavered in their decision and felt that a conviction was justified, but barely. They often communicate their concerns with a lighter sentence–even as low as a few days/months of confinement. In the present case, they hammered this cadet. One cannot help but wonder what aspects of testimony caused them to believe this necessary, but they felt justice demanded a harsh sentence after observing, firsthand, all evidence. This panel was likely both highly educated and professionally accomplished, and they were capable of logically and dispassionately dissecting the evidence and arriving at a reasonable and just decision.

    From the perspective that supports the decision of the appellate court, the reasonable doubt here is overwhelmingly strong for a contested case. After all, most of us who have defended similar cases would be overjoyed by the type of evidence available to Whisehnunt’s team. However, this has become typical for military sexual assault cases. Because of recent political pressure, cases with weak evidence that would have previously been dropped pursuant to advice from prosecutors are now sent to trial by Generals who are fearful of public backlash. For this reason, many of my friends in the Trial Defense Service talk about current acquittal rates that would be considered absurdly high 10-20 years ago. The same political pressure can be attributed to both the panel’s findings and sentence–the panel wanted to show the world that West Point is serious about dealing with the perceived scourge of sexual assaults in the military. This was justifiably countered by an apolitical appellate court that read the verbatim record of trial and spotted the overwhelming reasonable doubt.

    Having spent most of my legal career at the table farthest from the jury box, I agree with the decision of the appellate court because of the magnitude of the evidence that supports a reasonable doubt. However, I understand the arguments from both sides.

    If you believe her, then he is getting away with a serious crime. If you believe him, then she is getting away with a violation of regulations that, for him, will likely result in administrative separation from the academy and a potential less-than-honorable discharge from the Army.

    Reply
  5. syme

    I’ve not seen discussed what struck me first.
    “Cadets were not authorized to have sex during Cadet Field Training.”
    That surely applied to both male and female cadets. If she consented, she (in theory) would equally culpable. Does that not immediately taint her testimony? I wonder if that came up during cross-examination?

    And now, given the outcome, will she be prosecuted for perjury?

    Reply

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