A swift-moving rape case against a Naval Academy senior abruptly fell to pieces Friday over an apparent technicality: The midshipman's accuser, a former freshman, refused a judge's order to testify about a painful episode from her childhood.
But instead of appealing the order to a higher court, the academy abandoned its case - one that two months earlier it had deemed solid enough to take to a court-martial.
The outcome has disturbed some advocates of sexual assault victims, who say that the woman's desire for privacy should not have halted the prosecution of Robert A. Curcio, 24, of Antioch, Calif. But some military law attorneys say that an accuser's refusal to testify even on a single subject gives defense lawyers strong grounds for having the case dismissed, while leaving prosecutors few alternatives.
"A witness doesn't have the right to pick and choose among questions, and the defendant has a constitutional right to cross-examine his accusers," said Eugene R. Fidell, a Washington lawyer who is president of the nonpartisan National Institute of Military Justice, a nonprofit group.
In rape cases, he said, this puts accusers in a difficult position that can be exploited to the defendant's advantage.
"Victims may be put to some very hard choices, of having been victimized once, [then] being victimized a second time in terms of a compromise of privacy," he said. "Obviously, this is a way of bringing pressure on a victim and hoping you can break a victim's will, which is exactly what happened here."
The Naval Academy said in a statement Friday that it withdrew the charges against Curcio because of the woman's decision "not to testify or participate further in the prosecution." Curcio has maintained his innocence.
His accuser, who is now 19, said in an interview Friday that she was willing to testify about Curcio's alleged misconduct, but was unwilling to let his attorney delve into what she felt was an irrelevant childhood issue.
The woman said that she was deeply distressed over the academy's decision to drop charges. She says it was just the latest instance of the military college failing to take her case seriously.
"I thought when I was attacked that that was going to be the worst thing I would ever have to go through," said the woman, who quit the academy and now attends a civilian college in another state. "That wasn't true. This has been so much worse."
The Sun does not identify alleged victims of sexual assault.
Curcio, who has completed his coursework, has been working at Naval Station Annapolis, across the Severn River from the academy, since the woman accused him in March of a second attack - trying to rape her and threatening to kill her.
The academy has not disciplined Curcio for the alleged sexual assault, but it has refused to commission him as an officer because of his failure to pass a timed run that is part of the physical readiness test required to graduate.
Delving into her past
The decision to drop the charges Friday came two months after investigators concluded there was enough evidence to bring Curcio to trial in a military court on six charges, including rape. The academy's then-superintendent, Charles W. Moore Jr., concurred and referred the case for a general court-martial, which was to begin Sept. 22.
Curcio was charged with raping the woman in his dorm room last November, violating orders, sodomy, conduct unbecoming an officer and indecent assault.
Curcio's lawyer, Greg McCormack, said that he had intended from the start of the case to use an episode from the woman's childhood to discredit her. (The details of the episode are in sealed court records.) McCormack said that the woman had told Curcio about the episode.
During an investigative hearing in June, McCormack sought to question Curcio's accuser about it. But the officer in charge of the proceeding blocked his questions, invoking a military rape shield law that bars testimony about an accuser's sexual history.
McCormack tried again during the pretrial proceedings at the Washington Navy Yard last month. This time a military judge, Marine Lt. Col. Edward W. Loughran, approved his request to depose the woman on the childhood issue. The judge had not yet ruled on whether the deposition would be admissible at trial.
McCormack said that Navy prosecutors opposed his motion to depose her on the subject, invoking the rape shield law. They lost. They asked Loughran to reconsider, but he refused.
Reached by phone yesterday, Loughran declined to comment. "Frankly, I cannot address any of my rulings on any cases to the press," he said.
According to McCormack, the prosecutors discussed appealing the judge's decision to the Navy-Marine Corps Court of Criminal Appeals. For unknown reasons, the prosecutors decided against it, he said.
Cmdr. Rod Gibbons, the academy spokesman, declined to comment yesterday.
