Hey, Can A Woman "Ask To Get Raped"?

http://www.nytimes.com/1997/01/25/nyregion/military-jury-acquits-cadet-in-rape-case.html

WEST POINT, N.Y., Jan. 24— After precisely five hours of deliberations, during which the accused and his family paced nervously outside the courtroom, an all-male court-martial panel of seven senior Army officers acquitted a male cadet at the United States Military Academy here of raping a female classmate.

Both the cadet, James P. Engelbrecht, a 22-year-old senior, and the young woman who accused him of rape immediately burst into tears -- he out of obvious relief, she out of apparent frustration and disappointment.

Cadet Engelbrecht turned and wrapped his parents in tight hugs. They had traveled here from his hometown of Conroe, Tex. His father, Paul Engelbrecht, lifted his arms and cried out, ''It's over!''

About two dozen cadets who packed the tiny courtroom -- all but one of whom had turned out in support of Cadet Engelbrecht -- shook each other's hands and smiled broadly. ''That's exactly the way it should be,'' one of them muttered under his breath.

The young woman, her loud sobs at one point almost drowning out the judge's remarks, hurried from the courtroom without comment. Her mother, however, said, ''We really kind of expected this in a man's world.''

Overhearing her, Paul Engelbrecht said, ''This is a world of all kinds of people -- male and female, black and white.''

The jury also acquitted Cadet Engelbrecht of a lesser charge of committing an indecent act. Both charges stemmed from an incident last Memorial Day weekend during which Cadet Engelbrecht and the young woman engaged in sexual activity at a party at a lake-front cottage in New Jersey owned by another cadet.

At a news conference after the verdict, Cadet Engelbrecht struggled to find words for his emotions. ''You can't describe it,'' he said. ''It's like an incredible burden being lifted.''

His lawyer, James Fitzgerald, said that the charge should never have come to a court-martial, but that the Army had clearly wanted to avoid creating any impression that the woman's accusation had not received full consideration.

The court-martial proceeding, which lasted four days, was the first time a cadet has been charged with raping another cadet since women were admitted to the academy in 1976. Cadet Engelbrecht could have faced life imprisonment under military law if he had been convicted.

The verdict capped a week of testimony that portrayed heavy drinking by cadets off-campus and often cast them in a highly unflattering light. It also ended a trial and an earlier investigation that drew fresh attention to questions raised by other military scandals in recent years about the coexistence of men and women in uniform.

''It has lowered in the eyes of the American public the esteem in which they hold this academy,'' Capt. Dean Raab, one of the prosecutors, said in his closing arguments.

Academy officials, clearly sensitive to public perception, handled the young woman's allegations with great care, proceeding with the court-martial even after the military's equivalent of a grand jury recommended that the rape charge be dropped.

During the court-martial, the prosecution presented witnesses whose testimony supported the contention that the female cadet had been too drunk to know what she was doing, and that the degree of her inebriation was abundantly clear. The cadet herself testified that all she specifically recalled about the sexual encounter was a roughly two-minute period during which she felt the pain of intercourse, saw Cadet Engelbrecht on top of her, and told him to ''get off me.''

But the defense presented witnesses who said that on the night in question, the young woman seemed aware of what she was doing, walked into a bedroom where Cadet Engelbrecht was sleeping, and offered no sign of protest when two other cadets at the party stumbled upon her and Cadet Engelbrecht in bed. Cadet Engelbrecht said on the witness stand that the young woman initiated sex, literally waking him with her kisses.

Paul Johnston, the military judge, in his instructions to the jurors, said that the young woman's mental incapacitation, due to intoxication, was a sufficient lack of consent to constitute a rape, providing Cadet Engelbrecht could have reasonably been expected to know she was drunk.

But, the judge added, ''if the accused had an honest and mistaken belief'' that she consented to sexual intercourse, ''he is not guilty of rape.'' He reminded the jurors that the burden of proving that the young woman was too drunk to consent to sex fell on the prosecution.

The jurors declined to comment as they left the courtroom.

The reading of the verdict capped a tense, emotional day in and around the courtroom. The young woman, returning to the courtroom for the first time since her testimony on Tuesday, bowed her head and wiped tears from her eyes as she listened to Mr. Fitzgerald branding her a ''perjurer'' in his closing arguments.

The young woman, a 20-year-old who would have been in her junior year at the academy, has been on an indefinite medical leave since December. Her mother said earlier this week that she was not sure whether her daughter would ever return to classes here.

Photo: Cadet James P. Engelbrecht, 22, center, was acquitted of rape charges yesterday in West Point, N.Y. He celebrated with his girlfriend, Jessica Futrick, left, and Susan Wilson, a fellow cadet who supported him. (Associated Press)(pg. 26)

A Strange Sort of Justice at West Point
Trent Cromartie was cleared of sexual-assault charges. But the cadet was kicked out of school anyway.
By JAMES TARANTO
July 26, 2013 6:41 p.m. ET
Fayetteville, Pa.

Raymond Cromartie grew up an Army brat. He looked up to his father, James, who retired in 2003 as a lieutenant colonel in the Medical Service Corps. "There's been so many people in the past—men and women that have died in the service of our country—that I don't think I should be sitting on my butt while they sacrifice their lives," the 23-year-old Mr. Cromartie tells me in an interview at his parents' home some 20 miles west of Gettysburg.

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Best of the Web Today columnist James Taranto on West Point's handling of sexual-assault charges against cadet Trent Cromartie. Photo: West Point/The Cromartie Family
Trent—he goes by his middle name—received an appointment to the U.S. Military Academy at West Point, N.Y., and entered in 2010. A year later, a female cadet charged him with sex crimes. Today his aspiration to serve is in jeopardy even though a court-martial acquitted him. His story illustrates both the human toll and the cost to the country of the current moral panic over sexual assault in the military.

Mr. Cromartie learned he was a suspect late in the afternoon on July 20, 2011—the day after he finished his field training exercise, a grueling three-day combat simulation in 90-degree summer heat. His company commander told him to report immediately to the campus military police station. Weakened and hungry—he was still recovering from the exertion and sleep deprivation, and he hadn't eaten dinner—he was subjected to a 6½-hour interrogation.

The investigator, Special Agent Craig Butler, began by telling him he stood accused of multiple serious crimes, including sexual assault and forcible sodomy, but withheld details of the allegations. "I was extremely confused," Mr. Cromartie recalls. "My mind started going a mile a minute. I was trying to figure out where it could have even come from." Amid his discomposure, he signed a waiver of his right to counsel.

The alleged attack turned out to have occurred during an academy-sponsored ski trip to Mont-Tremblant, Quebec, in January 2011. The 180 cadets on the trip had been told they were permitted to drink, but only if they were over 21 (Quebec's drinking age is 18) and only in public places like bars and restaurants. Both those limits were widely flouted.

The accuser would later describe the trip as "a bad parody of 'American Pie,' " the raunchy 1999 high-school comedy. "People were hanging out balconies and hanging around drunk all the time," she testified. "People were also kissing and having sex in almost every room."

Mr. Cromartie calls that an overstatement—"I wouldn't say it was a huge sex-fest"—but he agrees there was scant supervision and widespread drinking at the hotel, including by him. He also acknowledges a sexual "hookup" with the accuser, which occurred in the hotel bedroom she shared with three other female cadets. But while her account and his agree on some of the physical details, he denies her claim that he forced himself on her.

Although the accuser waited half a year to file charges, on the night of the incident she did phone Second Lt. Scott Wright, a young Army officer she described as a family friend. After hearing her version of events, Lt. Wright assumed the role of white knight. He demanded that she file a formal complaint. She demurred, so the next day, over her objection, he alerted the academy. "What that bastard did to you is vile and unforgivable," he texted her. "You can't let this go. I did what I had to do; what I knew in my heart to be right."

The officer in charge of the trip, Maj. Jonathan Bodenhamer, summoned the accuser to his hotel room. "I brought her in thinking she had been raped," he testified. What she told him sounded more like regret than rape: "I was very careful to look out for those words and triggers and descriptions of events that would lead me to believe that an assault was being reported. She didn't say he forced her, that she said 'no' or 'stop,' or that she couldn't get away." He concluded it was a false alarm.

The investigation wrapped up in April 2012, 15 months after the trip. The investigating officer, Lt. Col. Mark Visger, sent a memo to Brig. Gen. Theodore Martin, then commandant of cadets. "I feel that it is my duty to inform you that a trial will be difficult and there are significant challenges to proof beyond a reasonable doubt," Col. Visger wrote. But he had it both ways, also finding "reasonable grounds to support the charges and proceed to general court-martial." After multiple delays, the trial began in October 2012.

If anything, Col. Visger understated the threadbareness of the prosecution case. Since there were no eyewitnesses to the sexual activity, it was she-said/he-said. Because the accuser failed to report the incident immediately, there was no physical evidence.

And the accuser's testimony diverged from that of other witnesses. Most notably, she testified that she was a virgin at the time and that the alleged attack caused her to bleed profusely. "There were four or five streaks . . . 24 inches wide, 6 inches deep blood streaks along the side of [the] bed, which had white sheets," she testified. Her roommates "were grossed out by it and wondered whose blood it was," the accuser added. "I volunteered to sleep on that bed the next night." All three roommates testified that they never saw any blood and that no such discussion of sleeping arrangements occurred.

Mr. Cromartie was acquitted of all the accuser's charges. A few days later, he sent a brief no-hard-feelings email to now First Lt. Wright, who responded with a long, effusive apology. Lt. Wright wrote that after learning the facts of the case, "I was shocked and appalled. I felt as though I had been used and manipulated." When he heard of the acquittal, "I thanked God that I didn't play a part in sending an innocent man to prison."

But Mr. Cromartie's ordeal was not over. He had fallen into a perjury trap—ironically, as a consequence of his conscientiousness.

Agent Butler testified that when he interviewed Mr. Cromartie, he had already taken the accuser's statement and "preloaded some of the questions" for the accused. One point on which the accounts differed was the pair's location when he touched her genitals. He said it happened only in her bedroom; she cited multiple places in both of their suites, which were adjacent. As Mr. Cromartie explains it to me, he became confused by questions about his touching her while they were in particular spots and at one point answered: "I didn't finger her." That flat denial made it into his signed attestation, which was typed by Agent Butler and is the only record of the interrogation.

Two days after that interview, Mr. Cromartie returned and told a different agent he wanted to amend his statement. This time he acknowledged the act he'd ended up denying earlier. The court-martial panel found him guilty of making a false official statement—a statement that was provably untrue only because Mr. Cromartie had taken the trouble to set the record straight.

The panel could have sentenced him to separation from the academy, analogous to expulsion from a civilian college. Instead it chose a milder punishment: a reprimand and 30 days' restriction to quarters, the Army equivalent of house arrest. But late last month he was separated anyway, through an administrative action recommended by the West Point superintendent, Lt. Gen. David Huntoon.

Mr. Cromartie's civilian lawyer, Bill Cassara, has appealed the conviction to the Army Judge Advocate General's office. He tells me he's confident that West Point will readmit his client if the appeal succeeds. It argues that Mr. Cromartie's decision to amend his statement demonstrates that he had no intent to deceive, one of four elements that must be proven to convict a serviceman of a false official statement.

The appeal also alleges that the conviction is tainted by both political pressure and favoritism toward the accuser, or the appearance thereof. The legal term is unlawful command influence, or UCI.

The politics of sexual assault weigh heavily on West Point owing to a lawsuit by a former cadet who alleges an upperclassman raped her. In April 2012, then-Defense Secretary Leon Panetta said on CNN: "We've got to train commanders to understand that when these complaints are brought, they've got to do their damnedest to see that these people are brought to justice." Less than a month passed before Gen. Huntoon referred Mr. Cromartie's case for a general court-martial. (More recently, a similar statement by President Obama has raised militarywide concerns about UCI. Prejudicial comments by members of Congress are no less irresponsible but do not constitute UCI, as lawmakers are not in the chain of command.)

In addition, in October 2011 the accuser's father sent an inflammatory three-page handwritten letter to the commandant, Gen. Martin. The father asserted that his daughter had been "raped" and repeatedly referred to Mr. Cromartie as a "rapist." (This was not in fact a rape case; even the accuser said the sexual activity stopped well short of intercourse.) The letter began "Dear Ted." The father and Gen. Martin were classmates at the academy 30 years ago, and West Point classes are famously tightknit.

Perhaps the clearest indication of UCI came in April 2012, when the defense counsel asked Maj. Jeffrey Pickler, Mr. Cromartie's company tactical officer, to write a letter attesting to the cadet's good character. Maj. Pickler agreed, then sought advice from his superior, Lt. Col. John Vermeesch, who discouraged him from writing the letter. Maj. Pickler testified that Col. Vermeesch prefaced his recommendation with a pre-emptive denial: "Just to be clear, this is not UCI."

Although Maj. Pickler didn't write the letter, he testified as a defense witness and spoke glowingly of Mr. Cromartie: "He strikes me as the kind of cadet who has worked incredibly hard to get here, he is extremely mature compared to his peers and classmates, he is hard working, and [he] possesses incredible work ethic." That's what the Army is losing if it allows his separation to stand.

After the court-martial panel read its verdict, Mr. Cromartie took the stand in the proceeding's sentencing phase to show remorse for the misstatement: "I should have reviewed my statement thoroughly. I just skimmed it and it was my fault," he testified. "I should have asked for a lawyer."

If that is the most important lesson a young man can learn at West Point, it is an indictment of both the academy's leadership and the country's.

Mr. Taranto, a member of the Journal's editorial board, writes the Best of the Web Today column for WSJ.com.

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http://www.nydailynews.com/new-york/police-commissioner-son-not-charged-rape-manhattan-prosecutors-sources-article-1.1018760

Manhattan prosecutors cleared the police commissioner's son of rape Tuesday in a case that gripped the city and threatened his career as host of Fox 5's "Good Day New York."

Greg Kelly said he was grateful to be exonerated and promised a rapid return to his anchor chair.

"I am thankful that the investigation established what I've known all along, that I am innocent of the allegations that were waged against me," Kelly said in a statement.

'THANKFUL' KELLY SPEAKS OUT: READ THE FULL STATEMENT HERE

Manhattan District Attorney Cy Vance Jr.'s decision, first reported by NYDailyNews.com, came late Tuesday after both the accuser and Kelly's lawyer Andrew Lankler met separately with sex crimes unit chief Martha Bashford.

"We have determined that the facts established during our investigation do not fit the definitions of sexual assault crimes," Bashford wrote Lankler, in a formal letter.

Because Kelly's father, Raymond, runs the NYPD, the Police Department had no role in the probe.

A co-worker of Greg Kelly's at Channel 5 called the news "a big relief."

"Those who know Greg always felt he should be exonerated. Hopefully, the headlines will be as big for this part of the story," the co-worker said.

ANALYSIS: KELLY STILL HAS A FUTURE IN TV

The accuser's mother, visibly angry at what she called the media's "slander" of "an innocent woman," told a Daily News reporter seeking comment at her Port Washington, L.I., home that she would call the cops.

"In this town (they) do what they're supposed to do," she said pointedly, slamming her door.

The accuser, a 28-year-old paralegal, walked into Manhattan's 13th Precinct stationhouse on Jan. 24 with a bombshell statement. She told police she had gone drinking Oct. 8 at a South Street Seaport bar with Kelly, a 43-year-old former Marine Harrier jet pilot, and then took him to her law offices, where she says he raped her.

She said she got pregnant from the encounter and had an abortion. The woman's boyfriend angrily confronted Raymond Kelly about his son at a public event before she made her statement to prosecutors.

The NYPD immediately handed the case to Vance's office. Her accusation was problematic, not just because three months had passed, but because the woman had sent Kelly flirtatious and friendly messages both before and after the encounter.

Investigators interviewed both Greg Kelly and his accuser, reviewed bar receipts, security logs, text messages and telephone records — and concluded no crime occurred, Bashford said. It was a significant legal step beyond saying the allegations could not be proved.

Under state law, rape is defined as sexual intercourse without consent, either due to force, fear or impairment.

Vance spokeswoman Joan Vollero said the DA will not bring a false reporting charge against the woman.

Bashford's letter said both the woman and Kelly were interviewed early on and both were cooperative. Sources said the woman's story remained consistent throughout: She believed she was too drunk to consent to sex.

Lawyer Paul Callan, who represented Channel 7 meteorologist Heidi Jones when she was charged with making false rape claims, said he thought Kelly's accuser had no standing to file a civil suit against Kelly — but suggested Kelly could sue her for defamation.

However, he said, "the chances of him bringing a lawsuit are zero, unless he wants his entire sexual history with women discussed in the New York press."

Commissioner Kelly declined to comment on his son being cleared.

Greg Kelly, who had not been on the air or seen in public since the accusation became public on Jan. 25, is expected to discuss his return to TV with Channel 5 brass on Wednesday, sources said.

In his statement, he thanked his family, his viewers and his co-host, Rosanna Scotto, for their support.

"I will always remember her kindness, and I look forward to soon resuming my post on ‘Good Day New York' next to her," Kelly said. "I am so blessed to have a wonderful family and friends whose support for me never wavered," he said.

Channel 5 insiders said that at a staff meeting last week, news director Dianne Doctor said she expected huge ratings when Kelly returned to the air.

"I think there will be a ratings bump when or if he returns," one staffer said, "and then it will be back to business covering crime, politics and Snooki and JWoww's new show in Jersey."

One insider wondered how Kelly's on-air chemistry with Scotto may change. Before the allegations, Scotto had been the family person in the relationship, often joking about trying to get Kelly dates.

"Will he change his demeanor?" asked a source. "They always tease him as being the single guy hanging out and having fun."

With Vera Chinese, Rocco Parascandola and Barbara Ross

[email protected]