Our client was accused of sexual assault of a fellow Marine in her barracks room. Our client about 19 years old when he first met the alleged victim. She was in her mid-20’s and already had a bachelor’s degree in biology. She had traveled the world, and her father was an 0-6 in the Navy.
During the morning of the night in question, the alleged victim was flying back to Okinawa from Kyoto. She spent most of the flight, as well as the remainder of the day sexting her boyfriend in the U.S. That evening, she allowed our client to stay in her room, and sleep in her bed with her. Another Marine was also in the room sleeping on the floor.
Though they fooled around that evening, she claimed it was an assault. She claimed that instead of saying no she froze. However, even she had to admit on the stand during cross examination that she shifted and moved her body around. Further, even though she stated she got out of bed, to sleep on the futon next to another Marine, she eventually returned to the same bed our client was in. She further claimed that rather than wake up the Marine that was on the floor, she said she texted him for help. We obtained her full phone extraction and there were no indications of texts. The Marine stated he never received a text message from her. In fact, during cross examination of the NCIS Digital Forensic Expert, I was able to point out that most likely artifacts noted in the report were actually gif’s or memes. This is an important point because it showed that whatever was going on in the bed wasn’t a problem.
The alleged victim had a history of being a drama queen in the unit. She loved attention and leaned into the idea of being a victim months in advance of any accusations against our client. We also learned that she had a “reputation” in the unit regarding her interactions with men. That was highlighted by the fact that after she made the accusation against our client, she came up positive for chlamydia. She immediately blamed that on our client when she spoke to her victim witness liaison.
You might be wondering how we were able to obtain those privileged communications. As it turned out, those communications were not privileged because she already had a friendship with her so-called victim witness liaison. Their relationship was so far across the line that the VWL was reprimanded for her behavior. But…more to the point, the alleged victim in this case had turned over her full phone to be analyzed by NCIS, thus waiving her privilege to any so-called privileged communications in the first place.
After doing our homework, we figured out the AV could not have acquired chlamydia from her boyfriend as he was state side, and he has never tested positive for it. Further, our client was tested…and he didn’t test positive either. Finally, our client was accused of sexual assault using his finger. We presented expert testimony to show that you can’t get chlamydia from a finger.
The alleged victim had not made an official report of sexual assault until after she received that positive result for chlamydia. Up until this point she had only reported that our client was a bit weird and strange and that he needed to understand boundaries. Now, she needed a means to explain her chlamydia to her boyfriend stateside and our client became the scapegoat.
The other unique wrinkle to this case was that our client gave a statement where it seemed like he confessed. In fact, based on that confession alone, he was receiving advice from his Marine Defense Counsel that taking a administrative discharge to avoid the chance of a federal conviction was in his best interest. The client wasn’t so sure, and I was called to review the case to determine its viability for trial. After carefully scrutinizing my clients’ words, and conducting a thorough interview, I was not convinced that our client believed he was guilty. Instead, I was convinced that NCIS manipulated our client. Our client said many things in his statement to lead me to believe that he believed this was a consensual act. Our client’s statement to NCIS was admitted at trial. In closing, I pulled out the golden nuggets of his statement to NCIS and argued them.
Ultimately the Marine panel saw this case for what it was. The alleged victim is a manipulative liar taking advantage of a young, impressionable and scared Marine.