ALLEGED AIR FORCE ACADEMY SEXUAL ASSAULT VICTIM RELUCTANT TO TESTIFY
November 18, 2014
A recent Air Force Academy hearing resulted in an alleged victim stating that the accused was their friend and they did not want to see them on trial. The accused is a third-year Air Force Academy cadet that has been charged with sexual assault and abusive sexual contact. The cadet further faces a charge of failure to obey an order. These allegations come at a time when the Air Force Academy is under scrutiny for the way that it has handled other sexual assault charges.
DETAILS OF THE INCIDENT IN QUESTION
The alleged victim claimed to be reluctant to testify against their friend because they were embarrassed and did not want to believe that a sexual assault had occurred. The alleged complaining witness and the accused met when they were freshmen and spent a lot of time together outside of classes. They were romantically involved for a while but ended things in the Fall of 2013 and remained friends. In March 2014, the two were hanging out in the accused's dorm room when the complaining witness gave the accused six minutes to do whatever they wanted to do to get it out of their system. According to the complaining witness's testimony, they fell asleep and awoke to the accused penetrating their body.
The accused told a counselor at the academy about the incident. The information that was revealed led to a probe by the Air Force Office of Special Investigations, leading to formal charges being brought against the cadet.
Depending on the outcome of the case, the accused may be facing court-martial for rape. The testimony of the complaining witness, the testimony of the accused, and other evidence will be used to determine if a crime was committed. Given the recent allegations that the Air Force Academy has mishandled sexual assault cases, it may come to rest that the alleged cadet is being used as an example. When asked if the supposed complaining witness would support another option for the cadet besides a court martial, they agreed that a court-martial was especially harsh.
Notes from the Jordan UCMJ Law Group
This case has many blurred lines the rest in favor of the defendant. In this case it is clear that there is an on going relationship between the complaining witness and the accused. This creates a mistake of fact as consent defense for the accused. If the couple has an established pattern of mutual sex on a regular basis a mistake of fact as to consent defense can be raised. Additionally, even if this occurred while both parties were intoxicated, the mistake of fact as to consent defense may apply depending on how the accused is charged. If the accused is charged in such a way that the law construes this as a specific intent crime, then the mistake of fact as to consent and the voluntary intoxication defense can be raised regardless of complaining witness's level of intoxication. Voluntary intoxication is typically raised to negate a specific intent crime where the accused was drinking to the point that he could not form the intent to sexual assault the complaining witness in a specific way.
Additionally, if the case is charged in such a way, that it is a general intent crime, the mistake of fact as to consent may still apply. It applies if the complaining witness acted in such a way as to appear as a sober person who is a willing participant in sex. This behavior can occur if the complaining witness is in a "blacked out" state. If the alleged victim was blacked out, she can still be a high functioning individual who presents herself in such a way to appear to all outward persons that she is a reasonably sober individual willing and able to consent to sex. This has been a successful defense many sexual assault cases.
In many instances of sexual assault, there is no clear black and white picture of what may have occurred. Many former lovers may become jilted, and even as indicated in this case, there was some level of consent granted. With the stigma against how sexual assault cases are handled in the military, the accused are not getting their fair chance. If you want more information on the difference between a specific and general intent crime, feel free to call us. Also, look for future BLOGs as we intend to write about those issues. If you have been accused of rape of sexual assault and you are a military member, do not let your career be damaged by these claims! Contact Joseph L. Jordan, Attorney at Law, for representation. Attorney Jordan defends military members across the nation and worldwide.