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Two of the three Navy football players who were charged with rape will proceed to general courts martial, while the third had his charges dismissed, the Naval Academy announced Thursday.
Naval Academy Superintendent Vice Adm. Michael H. Miller, the convening authority, referred Midshipman Eric Graham and Josh Tate to generals court martial. Miller dismissed the charges against Midshipman Tra'ves Bush.
All three midshipmen played on the Navy varsity football team last year. The Navy initially charged each one with rape, sexual assault, and lying to investigators about allegedly having sex with a female midshipman who was passed out from drinking at a party on April 14, 2012.
Graham has been charged with abusive sexual contact under Article 120 of the Uniform Code of Military Justice and Tate has been charged with aggressive sexual assault Article 120 of the Uniform Code of Military Justice, the Naval Academy said Thursday. Both were charged with making false statements under Article 107.
Miller referred the two midshipmen to generals court martial even though the investigative officer who presided over the Article 32 recommended the charges against all three midshipmen be dropped.. Navy Cmdr. Robert P. Monahan, who is a military judge, presided over the Article 32 as the investigative officer and made the recommendation.
In his report, Monahan said he could find no evidence that Bush committed aggravated sexual assault. The investigative officer also stated in his report that he could only find very thin evidence linking Graham and Tate to their charges, said an official familiar with the case. Monahan said in the report that there was not enough evidence to convict any of the three midshipmen, according to the official.
John Schofield, the Naval Academy spokesman, said he had to balance all the information from the case to include the recommendation of the investigative officer.
"The convening authority determined that reasonable grounds did not exist to believe that the offense of Article 120 was committed by Midshipman Bush. He determined reasonable grounds did exist to believe that the offenses were committed by Midshipman Graham and Midshipman Tate," Schofield said.
Miller made his decision "after careful consideration of all the evidence, and the unanimous recommendations of the investigating officer, prosecutor, Region Legal Service Office commanding officers, and the staff judge advocate," Schofield said.
Ronald "Chip" Harrington, the civilian defense lawyer for Graham said the case against his client was the result of "political pressure" and "the allegations of sex abuse against him are completely false."
"We're obviously disappointed" that the superintendent chose to reject the recommendation of the investigating officer, Harrington said.
"Clearly, this case has generated an enormous amount of press coverage, including comment from the President of the United States," said Harrington. "When you weigh what happened against the evidence, there can be no other conclusion but that Vice Adm. Miller came under political pressure."
Andrew Weinstein, one of Bush's lawyers, said Bush is "gratified" that charges against him have been fully dismissed. Bush, who was held back from graduating last year, has not yet been told what his standing with the Naval Academy will be now that the charges have been dismissed, said Capt. Paul LeBlanc, one of Bush's lawyers.
"Midshipman Bush is a young man who has committed his life to the protection of our country and, with these criminal charges now behind him, he looks forward to continuing his loyal and devoted service," Weinstein said in a statement.
The 21-year-old alleged female victim testified during the Article 32 that she attended a "Yogas and Togas" all-night party at an off-campus location in Annapolis, Md., widely known as the "football house." Military.com will not identify the midshipman as it is Military.com's policy to not name victims, or potential victims, of sexual assault.
After drinking numerous shots of rum, the woman, now a senior, said she passed out at the party and learned later from friends and social media that the three defendants were bragging about having sex with her.
She repeatedly said on the stand that "I can't remember" or "I don't remember" having sex with the three defendants at the party, but acknowledged that there was a fourth football player present when she woke up at the party. She said the fourth player helped find her shoes and then had consensual sex with her before she returned to the Naval Academy grounds.
Throughout the Article 32, defense attorneys for the three midshipmen attacked the alleged victim's credibility suggesting she was lying about the events at the party. The defense lawyers also tried to point out the numerous and persistent violations of academy rules committed by the female midshipman that included the abuse of alcohol.
The investigative officer said in his report that "heavy damage" was done to the alleged victim's testimony leading to his recommendation to dismiss the charges against all three.
"I find that heavy damage done to [the female midshipman's] credibility greatly erodes the strength of her testimony about what she remembers/does not remember and how intoxicated she felt at the 14 April 2012 party, which the Government would need to heavily rely upon to prove that she was substantially incapacitated," Monahan wrote in the report.
Susan Burke, the attorney representing the female midshipman, said Thursday she was upset with the "abusive and unfair" line of questioning directed to her client during the Article 32. Burke said the investigative officer failed to control the process and allowed the defense attorneys to "exhaust" the female midshipman.
Burke and the female midshipman were briefed by the Naval Academy on Thursday morning regarding the superintendent's decision. Burke said her client is a "strong young woman" and remains committed to the case. The female midshipman will testify during the court martial if she is asked, Burke said.
The female midshipman reported the case in April 2012, but the investigation done by the Naval Criminal Investigative Service took many twists and turns. In fact, the investigation was closed in November 2012 – in the midst of the Navy football season – before it was reopened in January 2013 after the alleged victim sought legal representation.
Politics have swirled around this case as members of Congress have questioned whether changes are needed in the manner the military prosecutes sexual assault cases. Sen. Kirsten Gillibrand, D-N.Y., along with other lawmakers, tried to pass legislation taking away the power of convening authority from commanders in sexual assault cases.
Gillibrand said upon learning of the superintendent's decision that she was concerned about allowing commanders without a legal background to make decisions on sexual assault cases.
"This pre-trial hearing was yet another example of why victims don't have trust in the system and highlights the need for real reform. It is time to restore that trust. It is time to move the sole decision-making power over whether serious crimes go to trial from the chain of command into the hands of non-biased, professionally trained military prosecutors - where it belongs," Gillibrand said in a statement.
The movement from Capitol Hill for changes to the military justice system comes after reports of an increase in sexual assaults in the military. A recent Defense Department survey said that sexual assault incidents in the ranks increased in 2012 to 26,000 from 19,000 in 2010. A survey of the service academies also found an increase in sexual assault within all three academies.
Burke filed a federal lawsuit seeking an injunction that would force Miller to give up authority over the case. A federal judge denied the request on Monday saying "there are many reasons this is not a place for a [civilian] court to intrude," according to a Washington Post report.
A date and time for the court martials for Graham and Tate has not been set, Schofield said. It has also not been determined whether it will be a dual court martial or two separate court martials, he said.
"We are committed to a thorough, effective and fair conduct system and investigative process, and the Naval Academy will meet the highest standards, operate consistent with the law, and expeditiously investigate every report of unwanted sexual contact, sexual harassment and sexual assault," Naval Academy officials said in a statement.
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