Defense uses political tack in sex cases

Strategy says Naval Academy under pressure to file charges


Attorneys for defendants charged with sexual harassment and assault at the Naval Academy and other military academies are attempting an unusual and largely untested defense: that a crackdown on such crimes is politically motivated and has led to charges being filed in cases where it is not warranted.

In essence, the lawyers assert that pressure to combat sex crimes in the military colleges has created a "witch-hunt" atmosphere that prevents their clients from receiving justice. Public accusations from commanders - such as the Naval Academy superintendent, Vice Adm. Rodney P. Rempt - are bound to pollute the pool of potential jurors, who, in military court, are officers in the same chain of command that answers to the superintendent, the lawyers said.

Experts are divided on whether the strategy is likely to succeed in convincing a jury of military officers, or, on appeal, with the military's appeals court. But it is a departure from the usual defense strategy - in military and civilian courts - of focusing on a victim's sexual history or claiming the sex was consensual.

John Hutson, president and dean of the Franklin Pierce Law Center and a retired rear admiral, said accusations of "unlawful command influence" - or saying Rempt is biasing potential jurors or trying to influence the outcome of the proceedings - could be tough to prove.

"Admiral Rempt and the entire U.S. Navy is pretty much on record as being against rape and other kinds of sexual harassment and abuse," he said. "The question is, is being opposed to rape therefore going to skew the system? ... That's very hard to prove."

In recent preliminary hearings of the court-martial of Lt. Bryan Black, an academy oceanography professor accused of making sexually explicit comments to a mixed group of midshipmen, Black's lawyer accused the academy's superintendent of bowing to political pressure - namely that of Sen. Barbara A. Mikulski - in his pursuit of a court-martial against Black.

Mikulski, a Maryland Democrat, sits on the board of visitors of the academy - an oversight group made up of members of Congress and retired military officials - and has pushed the academy to improve how it deals with rape and harassment allegations.

Last week, Charles Gittins, Black's attorney, wrote a letter to Rempt criticizing him for allowing his chief of staff, Capt. Helen Dunn, to send a message to academy faculty and staff releasing the name of Lamar S. Owens Jr., a midshipmen and football player charged with rape, and referring to his accuser as a "victim."

Referring to "the pathetic shell of an institution that my alma mater has become," Gittins wrote that Dunn's memo poisoned the potential jury pool for Owens and presumed the allegations are true.

Cmdr. Rod Gibbons, a spokesman for the academy, said any claim that the academy is being unfair is "simply not true."

"The highest standards and highest expectations of character and conduct apply equally and fairly to everyone at the academy," Gibbons said. "We take allegations of sexual harassment, assault and misconduct seriously, and this does not presuppose any outcome in any particular case."

In a written statement, Mikulski said she has never "intervened in a judicial proceeding."

"His [Gittins'] time would be better spent defending his client rather than demonizing me, and if he confuses the two, he should have a refresher course," she said. "Midshipmen are patriotic Americans who are willing to risk their lives for our freedom. They should be treated with respect - not used as a tool to achieve some political or ideological purpose."

For military trials, the convening authority - Rempt, in the academy's case - is allowed to pick jurors from a pool of his subordinates, something that Gittins implied would keep Owens from getting a fair trial. He made the same claim in Black's trial, asking for the case to be removed from Rempt's command.

His motion was denied, but he has appealed to the Navy-Marine Corps Court of Criminal Appeals.

Gittins declined to comment on either case.

But several lawyers familiar with such cases said the Black case was the first real test of Gittins' strategy. In the past, many cases are thrown out on the grounds that the sex was consensual, lawyers said. In other cases, the "political pressure" defense has largely been used with the media, since cases that reach court-martial generally focus on the facts and specifics of each case.

The academies have been under pressure to deal with assault and harassment since 2003 when the Air Force Academy was embroiled in scandal over its handling of sexual assault allegations. Since then, several Pentagon task forces and the Defense Department's inspector general have examined problems at the schools and concluded that systemic problems exist.

Later that year, a lawyer for a midshipman accused of rape repeatedly said the charges had been brought as an attempt to show that the Naval Academy was responding aggressively to rape allegations.

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