The superintendent of the Naval Academy on Thursday ordered two midshipmen to face court-martial in an alleged rape at an off-campus party last year — going against the recommendation of a military judge who looked into the case.
The two, Eric Graham and Joshua Tate, are accused of sexually abusing a 20-year-old woman, also a midshipman, after she passed out drunk at a “toga and yoga”-themed party in April 2012.
Graham, of Eight Mile, Ala., is charged with abusive sexual conduct, and Tate, of Nashville, Tenn., is charged with aggravated sexual assault. They are also charged with making false statements to investigators.
Multiple sources confirmed to NBC News that the superintendent, Vice Adm. Mike Miller, had gone against the recommendation of the military judge, known as an investigating officer, who held a hearing on the case earlier this year.
The judge, in a 174-page report on the case forwarded to the superintendent, wrote scathing, lengthy and detailed assessment of the woman’s lack of credibility, a source familiar with the report said.
In August, she testified repeatedly that she had no recollection of what happened with the three men on the night of the party, and had surmised from comments on social media the next day that she had had sexual activity with the three men.
The superintendent decided not to court-martial a third midshipman, Tra’ves Bush of Johnston, S.C.
Bush had a previous consensual relationship with the woman. In a statement, a lawyer for Bush, Andrew J. Weinstein, wrote that his client is “gratified” that all criminal charges against him were dropped.
Bush is also accused of false statements, however, and an administrative body will hold a separate hearing, an academy spokeswoman said.
Bush is a senior at the academy, and his graduation is on hold because of the investigation. He could face a range of punishments, including being dismissed from the academy or ordered to pay the government back for his tuition.
The lawyer for Tate, one of the two who will go to court-martial, expressed disappointment in the superintendent’s announcement.
“The judge, who sat through the entire pretrial hearing, recommended not referring these charges to court-martial,” the lawyer, Jason Ehrenberg, said in an email to NBC News. “We are disappointed in the decision, but we are confident that if MIDN Tate receives a fair trial he will be found not guilty.”
A lawyer for Graham, Chip Herrington, said in a statement that the superintendent’s decision “is without question the reaction to political pressure and is inconsistent with the facts.”
“Despite our disappointment, Midshipman Eric Graham has the truth on his side and we look forward to clearing his name at trial,” he said.
The Naval Academy had no date for the courts-martial of Graham and Tate. The academy also had no estimate for when any penalties for Bush would be determined.
All three men played football for Navy, and the alleged assault took place at a residence in Annapolis, Md., known as Football House.
All three initially said that they did not see the accuser at the party, according to investigators. They were brought for further questioning after investigators gathered details from other partygoers, and from a Facebook post by Bush.
Ultimately, all three men disclosed that they had seen the woman at the party. Bush revealed he had been in a sexual relationship with the woman and eventually admitted they had sex the night of the party, though he contended it was consensual.
In August, the woman said at a military court hearing that she was unsure “on my own accord” whether the men had had sex with her, consensual or not, on the night of the alleged assault.
She also said that she would have been “almost happy if I found out nothing happened” and that she didn’t consider the men “criminals.”
The woman said she had no “factual basis for what happened” that night because she had been drinking excessively, and therefore could not definitively say whether the men assaulted her.
Susan Burke, the lawyer for the alleged victim, said Thursday in a telephone interview that she and her client were pleased that two of the three would be court-martialed but surprised that the third would not.
Burke said her client will be ordered to appear at the court-martial as a witness.
“The hope for the outcome is justice,” Burke said.
Last month, the accuser sued the Naval Academy and the superintendent, arguing that he created an environment there that was not conducive to reporting sexual assault, and that she was encouraged not to report the alleged assault.