Column: Defense lawyers gone wild
By Ruth Marcus
WASHINGTON — “Were you wearing a bra?” asked lawyer Andrew Weinstein. “Were you wearing underwear?”
If military officials want to know why service members are reluctant to report such incidents, they need look no further than the appalling proceedings just concluded at the Navy Yard here.
The hearing, known as an Article 32 proceeding, is described as the military equivalent of a civilian grand jury, the stage at which the decision is made whether to move forward with formal charges.
Except the grand jury takes place behind closed doors, without the adversary involvement of defense lawyers doing what defense lawyers tend to do in rape cases: putting the victim on trial. This was a case of defense lawyers gone wild, unhampered by strict rules of evidence and with clearly inadequate supervision by the officer who presided over the melee.
The woman who says she was victimized by three of her classmates at an off-campus “toga and yoga” party last year was victimized again by defense lawyers, subjected to 24 hours of testimony over five days.
When she pleaded for a day off Saturday, according to The Washington Post’s Melinda Henneberger and Annys Shin, another defense lawyer, Ronald “Chip” Herrington, pooh-poohed the suggestion that she was exhausted.
“What was she going to be doing anyway?” scoffed Herrington. “Something more strenuous than sitting in a chair? We don’t concede there’s been any stress involved.” A nine-hour marathon of cross-examination isn’t stressful?
If this stretched the limits of decency, consider the questioning by defense lawyer Angela Tang, who repeatedly asked the woman how wide she opens her mouth to perform oral sex. This on the theory that oral sex requires “active participation,” indicating consent.
Or Weinstein’s question to the woman, about whether she “felt like a ho’” the morning after. Mr. Weinstein, what do you feel like the morning after asking that?
This is an episode without heroes. It illuminates a tawdry, 21st-century culture of casual sex, heavy drinking, and Internet boasting about exploits that ought to remain a source of private shame. The accuser herself testified that she doesn’t remember what happened that night; she gathered what had happened from boastful tweets, Facebook posts, campus gossip and ultimately one of the three football players themselves.
This alcohol-fueled behavior is certainly not unique to the military academies, although the academies, among all elite institutions, may be uniquely positioned to control it.
I did not attend the proceedings; from afar and perhaps even from close up, it is difficult to know whether the accuser was sexually assaulted; whether she was so “substantially incapacitated” as to be incapable of consent; and whether the three accused midshipmen understood their classmate was so blotto.
She testified that when she woke up at the off-campus “football house” the next morning, she proceeded to have consensual sex with a different football player. With two other people in the room. Which does not answer the question of whether she was raped the night before but does say something about the prevailing atmosphere at the academy.
And she clearly lied initially to investigators and, according to a recording of a telephone conversation, encouraged one of the accused midshipmen to lie about their encounter.
“Mainly, I was scared,” she testified. “I didn’t want it to become known. I didn’t want anyone else to get in trouble. I think I just didn’t have the courage.”
No wonder, considering what has happened since.
Lives are at stake here, not only reputations and careers but freedom. In an atmosphere in which the commander in chief himself has declared zero tolerance for sexual assault in the military, it is essential that those accused of sexual assault have their rights protected — to effective assistance of counsel, to proof of guilt beyond a reasonable doubt.
But it is equally essential that the military put adequate structures in place — first, to protect the young people in its care, including from themselves; second to ensure that allegations of sexual assault are taken seriously and handled with appropriate sensitivity.
Reading about the goings-on at the academy, I would hesitate before sending my daughters there. Reading about the goings-on at the Article 32 proceeding, I would hesitate before advising them to proceed with a sexual assault complaint.
If the military, under the spotlight on sexual assault and desperate to retain its existing chain of command, can’t do better than this carnival, that chain of command needs changing.
Ruth Marcus’ email address is email@example.com.