Thinking 'no' can mean a rape Judge at Aberdeen cites an imbalance of power with trainee

April 19, 1997|By Scott Wilson | Scott Wilson,SUN STAFF Sun staff writer Tom Bowman contributed to this article.

The presiding judge in the Aberdeen Proving Ground sexual misconduct case ruled yesterday that a soldier facing uninvited sex with a military superior does not have to say "no" -- only think it -- for the act to be called rape.

The decision could turn the unfolding court-martial of Staff Sgt. Delmar G. Simpson into a landmark rape case. If military jurors agree, the decision would drastically tighten the rules governing sex between boss and subordinate in the American military and further complicate relationships between men and women in uniform.

"Do we have a law that is so paternalistic that now they don't even have to say no?" Frank J. Spinner, a lawyer for Simpson, shouted in the small post courtroom amid the judge's ruling. "Are women so weak they can't say no? Are trainees so ignorant they can't distinguish between a drill sergeant telling them to run up a hill or lie down on a bed?"

Some legal experts said the ruling stretches the definition of rape under military law -- even for proving rape by "constructive force." Recognizing that its regimented command chain holds a greater potential for abuse of power than the civilian world, the military defines rape not only as physically forced sex but also sex coerced by the force of rank.

"We've gone into sociological rape instead of criminal rape," said Henry Hamilton, a retired Army lawyer practicing in Columbia, S.C. "There are groups of feminists who think all sex is rape. Now we have an extension that all sex between a drill sergeant and their subordinates is rape."

Col. Paul Johnston, the Army judge at Aberdeen, refused a defense request yesterday to dismiss 17 rape charges involving four female privates who had testified that they never explicitly rejected Simpson's sexual advances.

He noted the unusual power imbalance between drill sergeant and trainee -- comparing it to a parent-child relationship.

Setback for Simpson

The ruling was a setback for Simpson as his lawyers began telling his side of a story that has become the focus of a military-wide search for sexual misconduct.

Simpson, 32, now faces 55 criminal counts. Those charges include 19 rape allegations involving six female trainees. Johnston dismissed three redundant charges yesterday.

Twelve Aberdeen soldiers -- most of them drill sergeants, the most powerful figure in the everyday lives of young trainees -- have been charged in the sexual misconduct case, based on allegations from more than 50 women who trained there.

Johnston's refusal to throw out one rape charge in particular could allow the military jury to significantly broaden the definition of "constructive force."

It involves a 20-year-old private from Tennessee, who testified this week that she did not refuse the drill sergeant's sexual advances, struggle against him or fear he would hurt her physically. But she said she was afraid of being kicked out of the Army, which Johnston ruled was enough of a threat to constitute the force needed for a rape charge.

Simpson has admitted having sex with 11 female trainees, including the private at the center of yesterday's ruling. The Army says he raped the woman in August and September.

The private, who joined the Army in March 1996, testified that she got into disciplinary trouble soon after arriving at Aberdeen in May. After Simpson asked female trainees "who were stressed out" to come see him, the private told the drill sergeant she feared being discharged. Simpson, she said, got her out of trouble but "told me I owed him. I didn't know what I could owe him."

Soon, she said, Simpson called her to his office and asked what she was wearing under her physical training clothes. She told him underwear. When he asked to see them, she lowered her shorts to reveal the top of her panties.

Then he demanded sex, she said. "The only thing he said to me was, 'You know if you tell anyone about this I'm going to hurt you,' " she testified. "He got me out of the [trouble], and I thought he could put me right back in."

On cross-examination, the private said she never told Simpson she didn't want to have sex with him and did not struggle.

"In both cases it's fair to say you participated in the sex," said Capt. Edward W. Brady, Simpson's lead military lawyer.

"Physically, yes, I did," the private answered. Later, she added, "Mentally, I felt I was being held down. I felt he was holding something over my head."

"In fact, isn't it fair to say that from your behavior Staff Sgt. Simpson may have thought you wanted to have sex with him?" asked Brady.

"Yes, sir," the private answered.

Mixed reaction to ruling

Johnston's ruling drew a mixed reaction from legal and military experts.

"I think it's an extreme ruling," said Elaine Donnelly, head of the Center for Military Readiness. "This sounds like an activist judge."

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