Three Navy football players facing charges of raping a female midshipman went before an Article 32 hearing Tuesday that quickly became a closed session.
Navy Cmdr. Robert P. Monahan, Jr., who is presiding at the hearing as the investigating officer, ordered the session closed in order to determine whether the alleged victim's sexual history was admissible. Defense lawyers sought to delve into the accuser's history to raise the issue of consent, a standard legal tactic in sexual assault cases.
Midshipmen Josh Tate, Eric Graham, and Tra'ves Bush have been charged with aggravated sexual assault, or rape, under Article 120 of the Uniform Code of Military Justice following an investigation by the Naval Criminal Investigative Service.
The three defendants have also been charged with making false official statements, a violation of Article 107 of the UCMJ. If convicted of all charges, each defendant could face prison terms of more than 20 years.
Monahan delayed a ruling until an evening session of the hearing, and it was unclear whether the accuser, now a senior at the Naval Academy in Annapolis, Md., would immediately offer testimony. The Article 32 hearing, often likened to a grand jury proceeding in civil law, was expected to continue through the week.
Monahan must decide whether sufficient evidence exists to send the case to a court martial. He will send his recommendation to Vice Adm. Michael H. Miller, the superintendent of the Naval Academy, who can accept or reject Monahan's recommendation.
Before the closed session began, the defense team – a total of 11 civilian and military lawyers for the three defendants – signaled that they will make an issue of the military's recent focus on combating sexual assaults in the ranks.
Navy Lt. Cmdr. Angela Tang, representing Graham and speaking for the other defense counsel, grilled Monahan on whether he could be impartial as she argued that command and Congressional influence were factors in the case.
Tang noted that "senior officers have received serious scrutiny" for demanding convictions in sexual assault and other high-profile cases, including Gen. James Amos, the Marine commandant. Defense lawyers for Marines charged with urinating on the corpses of insurgents in Afghanistan have alleged that Amos sought to exert unlawful command influence.
Tang also brought up the debate in Congress over legislation proposed by Sen. Kirsten Gillibrand, D-N.Y., that would take authority over sexual assault cases out of the chain of command and give that authority to independent prosecutors.
Monahan said he was aware of Amos' comments, the Gillibrand bill, and media reports on the charges against the three football players, but insisted he could be fair.
"I was not detailed here to be a blank slate," said Monahan, a military trial judge who has also done defense work.
The female midshipman told NCIS agents that she was sexually assaulted by the three men in April 2012 at an off-campus location widely known in Annapolis as the "football house," where players went to a party.
The midshipman, who said she drank heavily at the party, said she woke up with bruises on her arms and legs, and learned later from friends and from Facebook and other social media postings that the three players were claiming to have had sex with her while she was blacked out.
With her face hidden to protect her anonymity, the midshipman went on CBS "This Morning" in June and said the football players had bragged about it.
"They had told me to my face -- what they did," she said on CBS.
In his only comments on the charges, Navy football coach Ken Niumatololo said in June that "we take this very seriously." The team opens its season on Sept. 7.
Tra'ves Bush, a safety, had started 23 consecutive games through last season and finished second on the team in tackles. He was due to graduate in June but his graduation was held up pending a resolution of the charges.
Tate, now a senior, played in all 13 games last season at linebacker. He has been suspended from the team but remains on campus. Graham, now a senior, is not on the current team roster but was listed last year as a cornerback.
The charges against the football players were not the first involving the team. In 2006, Lamar Owens Jr., the team's starting quarterback, was acquitted of rape but found guilty of lesser charges. He was expelled.
Another member of the team, Kenny Ray Morrison, was convicted in 2007 of sexually assaulting a female classmate at a Washington hotel. He was sentenced to two years in jail.
A Defense Department survey earlier this year estimated that 26,000 servicemembers were victims of sexual assault or "unwanted sexual contact" in 2012, up from 19,000 incidents in 2011. A separate DOD report showed that sexual assaults were a "persistent problem," in the words of former Defense Secretary Leon Panetta, at all three military academies.
Sexual assaults reported by women at military academies rose by 23 percent in 2012r across all three U.S. military branches, according to the DOD report. The number of reported sexual assaults rose from 65 in 2011 to 80 during 2012 at the Army's West Point, and the Air Force and Naval Academies.
The Air Force Academy had the highest number of reported sexual assaults, with the figure rising from 33 to 52. The number of sexual assaults at West Point increased from 10 to 15. The Naval Academy saw a drop in reported sexual assaults from 22 to 13.