She was too drained to go on, she said.
After four days and more than 20 hours of relentless questions about her medical history and motivations, her dance moves and underwear, the 21-year-old midshipman who has accused three former Naval Academy football players of raping her pleaded on Saturday for a day off from testimony. It was granted by the hearing’s presiding officer but not before the request triggered more skepticism from defense attorneys, who said the young woman was faking her exhaustion.
“What was she going to be doing anyway?” asked Ronald “Chip” Herrington, one of the defense attorneys for Eric Graham, a 21-year-old senior from Eight Mile, Ala. “Something more strenuous than sitting in a chair? We don’t concede there’s been any stress involved.”
At a time when the military is under attack for how it handles sexual violence in its ranks, the proceedings underway at the Washington Navy Yard offer a case study on why women in uniform are so reluctant to report sexual assaults. The hearing highlights significant disparities between the way the military and civilian world treat accusers and the accused.
As many as 26,000 service members said they were the targets of unwanted sexual contact last year, but only 3,374 incidents of sexual assault were reported, the Pentagon said in May.
Those numbers were accompanied by several high-profile scandals this year, including the decision of an Air Force general to overturn the conviction of a fighter pilot on sexual assault charges and the arrest of the Air Force officer in charge of sexual assault prevention in the alleged groping of a woman outside a Crystal City bar.
The result has been demands by some lawmakers to take sexual assault investigations and prosecutions out of the hands of the military chain of command — a proposal that is expected to be debated in the Senate this fall.
Last month, Defense Secretary Chuck Hagel approved new regulations aimed at providing more support to alleged victims of sexual assault, standardizing how each service handles cases and making sure senior commanders learn about every reported incident. Hagel’s reforms will require that every presiding officer at what is known as an Article 32 hearing — the legal proceeding underway in the Naval Academy rape case — be a lawyer. But that won’t necessarily change how the accusers are treated during those hearings.
An Article 32 is sometimes compared to a civilian grand jury proceeding because its purpose is to determine whether a trial, or court-martial in military parlance, is warranted. But legal experts say it differs in a number of ways, with looser procedural rules and open-ended cross-examinations that can be trial-like in nature and scathing in tone.
Roger Canaff, a former prosecutor who has helped the military improve its handling of sexual assault cases, said no civilian court in any state in the country would allow the kind of questions that are routinely permitted at Article 32 hearings. The legal proceedings are so hard on women who allege sexual assault that “a lot of cases die there as a result,” said Canaff, who now works at End Violence Against Women International. “You hear questions that would be highly objectionable in a court-martial or any civilian hearing.”
Appearing on the witness stand in her dress white uniform, the midshipman has come under withering cross-examination from defense attorneys, who include both civilian and military lawyers. (The Washington Post does not generally identify the alleged victims of sexual assault.) Some of their questions focused on the night of the alleged assault in April 2012 at an off-campus party, where, she testified, she had blacked out after finishing off a bottle of coconut rum.
“Were you wearing a bra’’ to that party? asked Andrew Weinstein, an attorney for defendant Tra’ves Bush, 22, of Johnston, S.C. “Were you wearing underwear?”
Weinstein demanded to know how often she lies — “at least once a day?” — and whether she “felt like a ho’’ the morning after the party.
Lt. Cmdr. Angela Tang, another attorney for Graham, repeatedly asked the woman how wide she opens her mouth to perform oral sex. When prosecutors objected, Graham’s attorneys argued that they were trying to show that oral sex required “active participation” on the part of the accuser, which would indicate consent.
Evidence of participation by an alleged victim, which can include sexual positions, is a standard defense strategy in Article 32 hearings, said Lisa Windsor, a retired judge advocate.
But that line of questioning probably would not be allowed in a Maryland courtroom, said Lisae Jordan, executive director of the Maryland Coalition Against Sexual Assault.
“What is consensual is fair game for the defense,” Jordan said. But questions about the accuser’s oral sex technique “would likely be deemed irrelevant” and inflammatory.