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Naval Academy sex-assault accuser grilled on memory of alleged attack

WASHINGTON – The alleged victim in a Naval Academy sexual assault case faced her third day of cross-examination as counsel for one of the three accused men challenged her on more inconsistencies in previous statements to investigators regarding the events of the alleged attack.

Under cross-examination by Cmdr. Angela Tang, counsel for Midshipman Eric Graham — one of the three accused — the woman was asked to expand on comments she made to two Navy Criminal Investigative Service special agents less than a month after the alleged attack on April 14, 2012.

In those comments, which were not part of a sworn statement but which the two agents took notes on, the woman said that, upon waking up after a night of heavy drinking at a party during which three midshipmen allegedly raped her, she knew something had happened to her because she “knows [her] body.”

The woman had since said that she woke up and saw bruising around her thighs. But during cross-examination Friday, she said that she was only referring to knots that she felt in her back the next morning, which, she said, “would not insinuate that I had sex.”

Midshipmen Tra'ves Bush, Joshua Tate and Graham, each a former member of the Academy's football team, are accused of sexually assaulting the woman after she passed out drunk at a party at an off-campus Annapolis, Md., residence.

The woman had also told the special agents in May 2012 that the last memory she had the night of the party was dancing with friends in the so-called “Football House” where the party had taken place. But in subsequent sworn statements and court testimony, she said she also had snippets of recollections of sitting on a bed with one of the accused midshipmen and being in a car with the other two. 

The woman explained Friday that the recollection of dancing was the last thing she “really remembered,” seeking to make a distinction between clear memories and recalling fleeting snippets of other parts of the night.

She added that she had clearly told the NCIS special agents in May 2012 that she did not want to tell them anything about the alleged attack. She said the agents had told her she did not have to fully cooperate, but that they still wanted her to talk to them.

On Thursday, under cross-examination from a different defense attorney, the woman was pressed about why, after months of not cooperating with the NCIS, she chose to not only move forward with the investigation in January 2013 but also participate in interviews with the media.

The woman said Thursday that she "didn't have an agenda. I just wanted to tell my story."

Tang suggested that because the woman said in the May 2012 testimony that she didn’t “really remember” being in the bedroom or the car that night, it was possible it never happened.

The woman responded to Tang that if Tang thought she “had something in my brain” that would have made her “hallucinate” such scenes, “maybe I should get medically examined.”

Tang countered to the investigating officer overseeing the preliminary hearing that the alleged victim “left out the two most incriminating memories” to the special agents.

“I was in a very emotional state. I wanted to say anything that would make them go away,” the woman responded.

The hearing, held at D.C.’s Navy Yard, is one of the highest-profile military sexual assault cases since President Barack Obama made his first public condemnation of such actions at the Naval Academy’s commencement ceremony in May.

Later during Friday’s cross-examination, the alleged victim refuted a contention made during her two sworn statements that she did not believe the three men were “criminals.” She told Tang that that had been a misstatement, and that she did in fact believe they had committed crimes. 

Tang also asked her about consensual sex she had with a midshipman the morning after the alleged assault, during which she performed oral sex on the man. The defense for Graham, who is charged with forcing oral sex on the woman, contended that oral sex is by its very nature consensual.

“Otherwise, we have no defense,” said Graham’s other civilian defense counsel, Ronald “Chip” Herrington.

In a move unusual in any court proceeding, defense lawyers for the three accused also called the alleged victim’s lawyer, Susan Burke, to the witness stand. Burke testified for about an hour, replacing her client, who had asked to take a break, citing fatigue.

Burke, a vocal advocate for removing military sexual assault cases from the chain of command, was asked about her assertions during media interviews that her client was reluctant to come forward with the assault charge because one of the Naval Academy football players told her not to.

In a May 31 New York Times article, Burk said the woman was “was ostracized and retaliated against by the football players and the Naval Academy community.” 

While one of the three accused, Tate, had asked the woman not to implicate him because he feared he would end up "on the streets," the woman had previously testified that she had not felt under any duress when he asked her this. 

Burke responded to Friday’s inquiry from Tate’s lawyer Jason Ehrenburg by saying that the football player’s request was "one of the reasons" her client had stayed silent. The client had previously testified that there were other factors as well, including fear of disappointing her mother and having the case “become a headline.’

Burke contended that the exhortation to stay silent was "the reason that troubled me the most," which was why she emphasized it in interviews.  The Baltimore-based lawyer was also asked about her criticism of Naval Academy superintendent Vice Adm. Michael H. Miller in the Times article, in which she said that when her client declined to cooperate, Miller "did nothing, instead closing the investigation without charges." 

While the academy contends the alleged victim’s initial reluctance to participate was one of the biggest hindrances to the investigation, Burke during testimony Friday said there was “separate evidence” they could have pursued, rather than wait for the woman to cooperate. 

Harrington also charged that Burke, who has made multiple media appearances on behalf of this particular client as well as on the issue of military sexual assault in general, has wrapped up her client "as part of her own crusade" to bring awareness to the issue.

The female midshipman’s cross-examination will resume Saturday morning.     

NBC's Elizabeth Chuck contributed to this report.

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