West Point Cadet’s Rape Conviction Is Overturned, Drawing Criticism - The New York Times

An Army appeals court overturned a West Point cadet’s rape conviction last week, siding with a defense theory that the victim engaged in a consensual sexual encounter and took steps to avoid being detected by others who were nearby.

The decision drew criticism from advocacy groups. They said the ruling was upsetting in light of the #MeToo movement and highlighted flaws in the military’s justice system at a time when sexual assaults at the three military academies were on the rise.

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.

During the trial, Cadet Whisenhunt testified that the encounter began with a “series of escalating and consensual touchings” with the woman, who was identified only by her initials, the appeals panel wrote in Monday’s ruling.

The cadets’ sleeping bags were next to each other in an open site and “other squad members were within a few feet of them,” according to the ruling. It said Cadet Whisenhunt testified “that both parties tried to avoid detection and even stopped and held their breaths after hearing a nearby noise.”

By contrast, the woman said that she was inside her sleeping bag so it completely covered her head and that she woke up to being assaulted. She said she had “remained frozen in the fetal position during the entire assault,” the ruling said.

The three judges on the United States Army Court of Criminal Appeals — two women and one man, according to Mr. Cassara — wrote that it was unlikely the woman would have remained quiet during the sexual encounter.

It was difficult to conclude that the victim “would not make any reflexive noise or movements upon being awakened, which would have alerted multiple others to his criminal activity,” the decision said. It said there was no evidence Cadet Whisenhunt threatened the victim or “took any steps, such as covering her mouth, to prevent an outcry.”

The panel noted that he left his semen on the woman’s sleeping bag cover and there was no evidence he tried to remove it.

“The scenario outlined by the defense and the record leaves us with a fair and rational hypothesis other than guilt,” the panel wrote.

The Associated Press reported that Cadet Whisenhunt returned to West Point on Wednesday. West Point did not respond to a request for comment on Saturday.

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.

Ms. Curtis said that people generally think of rape as an act committed by a stranger using a weapon but that there were other ways of controlling and coercing victims into not fighting back.

She said many victims do not come forward because they do not trust the system. “They don’t believe that they will get the justice that they want,” she said. “I think this sends a message that they’re right.”

Col. Don Christensen, president of Protect our Defenders, an organization dedicated to ending rape and sexual assault in the military, said military courts need to be revamped and the quality of the judges improved.

“Congress needs to quit messing around when it comes to reforming the military justice process,” said Colonel Christensen, who is retired from the Air Force. “This is one example of many that they have allowed to go on for too long.”

He said Congress should impose stricter requirements to become a military trial or appellate judge. “The appellate courts in the military are by far the least experienced courts in the entire country,” he said.

Mr. Cassara, Cadet Whisenhunt’s lawyer, said the appeals court made the correct decision.

“The military justice system denies service members many of the procedural safeguards provided ordinary citizens,” he said in an email. “There is no requirement for a jury of 12 members, no requirement for unanimous verdicts and the panel (the equivalent of a jury) is handpicked by the general who convenes the court. The appeals court took the appropriate action to correct a terrible injustice.”

Sexual assaults at the three military academies are on the rise, according to a study released in January. A Defense Department survey found that unreported sexual assaults rose nearly 50 percent to 747 in the 2017-18 school year, compared with 507 the year before. Reported cases of unwanted sexual contact rose to 117 from 112.

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