Midshipman's rape trial opens

Owens' prosecutors face tough standard on `force' and `consent'


The rape trial this week of Lamar Owens, Navy's star quarterback in 2005, will probably focus on the strict and antiquated definition of rape under military law, several experts said.

The statute - which requires proof beyond a reasonable doubt that rape was committed "by force and without consent" - makes it harder for prosecutors to win convictions in rape cases, which prompted Congress to reform the statute in 2005.

But the new law, which creates degrees of rape and drastically revises the definition of consent, will not take effect until October 2007, too late for several courts-martial coming up this summer involving U.S. Naval Academy personnel.

Jury selection in Owens' case begins today at the Washington Navy Yard. The senior, who was not allowed to graduate in May, is charged with rape, assault and conduct unbecoming an officer in the alleged sexual assault of a 20-year-old junior early on the morning of Jan. 29. He could be sentenced to life in prison, though such a punishment is rare. Through his civilian attorneys, Owens has said he's innocent.

"In military circles, it's well known that the easiest case to defend and get an acquittal [in] is a rape case, because of the way the law has been written," said Charlotte Cluverius, a former Navy lawyer and academy law instructor now in private practice in Washington. "The bright-line rule of `by force and without consent' is a very ironclad rule, and it's tougher to prove in a lot of cases."

Owens' case is one of three sexual misconduct cases being brought by Vice Adm. Rodney P. Rempt, the Naval Academy superintendent. He has taken an aggressive stance against sexual assaults in the aftermath of studies and surveys that have found a hostile climate toward women at the academy. Defense attorneys say Rempt is using their clients as scapegoats. Last week, a military judge admonished Rempt for authorizing e-mails to academy personnel that the judge says "insinuate guilt" in Owens' case.

Still, the recent trial and partial acquittal of a U.S. Coast Guard Academy cadet accused of rape illustrates the difficulties of winning rape convictions in the military justice system, said Anita Sanchez, spokeswoman for the Miles Foundation, an organization that tracks violence against women in the military.

Webster M. Smith, a former football player at the Coast Guard Academy, was acquitted of rape late last month but convicted of several other lesser charges and sentenced to six months in prison. The court-martial was the first in that academy's 130-year history and, like the Owens case, involved excessive alcohol use and at least an acquaintance relationship between the accused and the accuser.

"We're hopeful that the changes in the statute will result in justice for victims," Sanchez said. "The new law mirrors federal code and provides for a variety of different types of sexual assault and degrees of sexual assault. We hope this will support the prosecution of acquaintance, date or `offender-known' rapes."

The military academies have a dismal record when it comes to winning convictions for rape cases. At the Naval Academy, out of 56 rape accusations since 2001, two resulted in convictions, one of which came in civilian court. Other defendants were disciplined within the academy's conduct system and allowed to resign.

No cadet at the U.S. Air Force Academy in Colorado Springs, Colo. has ever been convicted of rape at court-martial, according to a spokesman at the school. According to a 2005 Pentagon study, no cadet at the U.S. Military Academy at West Point had been convicted of rape between 1994 and 2004.

Many of the Naval Academy cases resulted in acquittals or were dismissed based on the question of consent, according to defense lawyers familiar with such cases. But the new law - written after a scandal involving sexual assaults at the Air Force Academy in 2003 - could change that, Sanchez said.

It specifies that if a person is impaired "resulting from consumption of alcohol, drugs, a similar substance, or otherwise," he or she cannot consent. The person also does not have to say "no" but can decline consent physically. A dating relationship between the accused and accuser is considered irrelevant, as is the state of intoxication of the accused.

In addition, the new statute adds the charge of "aggravated sexual assault," which can be applied if someone "engages in a sexual act with another person of any age if that other person is substantially incapacitated" or incapable of appraising the act, declining participation or communicating an unwillingness to participate.

Those changes potentially could have applied to the case of Owens, who led Navy to a bowl victory and an 8-4 season.

In pretrial hearings in March, the accuser said that on the night of the alleged rape, she had as many as eight drinks, including four shots, in a short period of time and was drunk when she returned to the dorm. Owens was also drunk that night, according to witness testimony.

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