'Substantially incapacitated': Alleged victim's ability to consent key as Naval Academy sexual assault hearing ends

WASHINGTON – Eight days, 20 witnesses and 70-plus pieces of evidence later, the Article 32 hearing into allegations that three Naval Academy midshipmen sexually assaulted a female student concluded Tuesday night.

Counsel for the accused and accuser asked the hearing’s investigating officer, who will recommend how to proceed with the case, to consider a key question: If sex did in fact occur between the alleged victim and any of the men, was the accuser "substantially incapacitated" to the point that she could not consent to it?

The three men are charged with varying degrees of sexual assault, while the woman says she "blacked out" and does not remember most of what happened the night of the alleged attack, April 14, 2012.

Lawyers for the government said that the accuser was substantially incapacitated, a legal term used in the military to denote a level of intoxication so high that an individual is "unable to physically communicate unwillingness to engage" in sexual activity.

Defense for the three accused men said that not only was the alleged victim in control of her faculties that night, but she was also an unreliable witness, having changed her account of the night during the hearing, the Navy's investigation and to her friends the day after the party.

During the prosecution's closing argument, government counsel Lt. Cmdr. Phil Hamon cited testimony of midshipmen who had been at the "Football House" party that April night, who recalled the woman's behaving as if she had been, on a scale of one to 10, a five or six in terms of intoxication.

Hamon said that some of the woman's friends had seen her "relatively early in the evening" and said "she was already a five," suggesting she could have kept drinking as the night wore on.

But using some of those same midshipmen's testimony, attorneys for the three accused men noted that most of the friends, even if they could tell the woman had been drinking, did not characterize her as out of control.

"Nobody came in here and said she was sober, but nobody said she was substantially incapacitated," said Andrew Weinstein, attorney for Midshipman Tra’ves Bush.

"Drunk sex is not sexual assault," added Lt. Cmdr. Angela Tang, counsel for Midshipman Eric Graham, who is charged with forcing oral sex on the woman.

Both Weinstein and Tang argued that their clients did have sex with the accuser the night of the party but that it was consensual. Weinstein pointed to testimony from a friend of the woman, Midshipman Candice Tisdale, that the two "concluded" Bush and the woman had consensual sex that night, plus the fact that Bush and the woman had recently been in a sexual "semi-relationship," as the woman put it.

Tang, whose client Graham is accused of non-consensual oral sex, contended that oral sex is by its nature an act that signifies consent, given the exertion it requires on the part of the person performing it.

"She was in the driver's seat, and she was the one being sexually aggressive," Tang said.

The other main prong in the defense's closing arguments was that the alleged victim had lied so frequently — to her friends; to federal investigators; and, in fact, to lawyers during the hearing — that her testimony was unreliable.

Cmdr. Art Record, speaking for Midshipman Joshua Tate, noted that the woman had called friends the morning after the party, acting disoriented and saying she didn't know where she was. Record said she was already trying to hide that she knowingly had sex with multiple men the night before.

"She started lying to cover up for her actions the night before, and she hasn't stopped since," he said.

Weinstein noted that the woman had lied while on the witness stand, telling him that she had never asked Tate to tell Naval Criminal Investigative Service (NCIS) agents that nothing happened between them the night of the party.

Immediately after, Weinstein played a minute-and-a-half recording of a phone conversation between Tate and the woman, in which she says, "I hate that I’m asking you to lie" but that he needs to tell investigators that "nothing happened" that evening.

"Not only did she lie, but she lied about not having lied," Weinstein said.

Each lawyer also had a quirky analogy for what he or she said were the accuser's many lies. "It’s like being in a bathtub filled with pingpong balls, trying to keep them all down at the same time," Weinstein said.

"It’s like building a house with rotted beams and the tide is about to come in," Tang offered.

Record said her lies were like a salad that fills you up momentarily but "when you get to the bottom of the bowl, you realize it's just a bunch of lettuce."

The defense’s closing arguments occasionally bordered on the theatrical, as eyeglasses were waved in the air, feet waltzed around the examination podium and voices gradually became louder.

But the hearing's investigating officer, Cmdr. Robert Monahan, has a lot of work left to do. Based on the information presented during the hearing, he will issue a report and recommendation on how the hearing's convening authority, in this case Naval Academy Superintendent Vice Adm. Michael Miller, should proceed.

The investigating officer's recommendation is nonbinding, and Miller will ultimately have the option to refer the case to a court-martial, deal with the case through academy administration or dismiss the case entirely.

Given the volume of testimony and other evidence in this hearing, the investigating officer's recommendation "may take a number of weeks to complete," said Naval Academy public affairs officer John Schofield.