{"id":24918,"date":"2019-06-05T22:00:45","date_gmt":"2019-06-05T22:00:45","guid":{"rendered":"https:\/\/one.sightlinemg.com\/marinecorpstimes\/uncategorized\/2019\/06\/05\/overturned-west-point-rape-case-sends-hugely-negative-message-former-air-force-prosecutor-says\/"},"modified":"2026-08-08T02:31:07","modified_gmt":"2026-08-08T02:31:07","slug":"overturned-west-point-rape-case-sends-hugely-negative-message-former-air-force-prosecutor-says","status":"publish","type":"post","link":"https:\/\/one.sightlinemg.com\/marinecorpstimes\/news\/2019\/06\/05\/overturned-west-point-rape-case-sends-hugely-negative-message-former-air-force-prosecutor-says\/","title":{"rendered":"Overturned West Point rape case sends \u2018hugely negative message,\u2019 former Air Force prosecutor says"},"content":{"rendered":"\n

A three-judge panel\u2019s decision to overturn a U.S. Military Academy<\/a> cadet\u2019s rape conviction and 21-year sentence has outraged military sexual assault victim advocates.<\/p>\n\n\n\n

Jacob Whisenhunt<\/a> is free \u2015 to return to classes or dis-enroll and return to civilian life \u2015 after those judges determined there wasn\u2019t sufficient evidence in his case for a conviction. They found that because the victim did not struggle and Whisenhunt made no attempt to cover up their sexual encounter, the circumstances did not amount to rape beyond a reasonable doubt.<\/p>\n\n\n\n

That decision further stigmatizes already discouraged survivors of military sexual assault at a time when reports of assault and harassment are on the rise, a former Air Force chief prosecutor told Military Times on Wednesday. The number of cases of unwanted sexual contact in the military has seen a 37 percent increase, to more than 20,000, in the last two years, according to the Defense Department\u2019s most recent statistics.<\/p>\n\n\n\n

\u201cWhen people come forward and go through the court-martial process … it\u2019s a horrifically harsh process for them,\u201d said retired Col. Don Christensen<\/a>, advocacy group Protect Our Defenders. \u201cTo go through all that and then to have it overturned, it\u2019s not only devastating to that person, it sends a hugely negative message to any other survivor who might come forward.”<\/p>\n\n\n\n

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A U.S. Military Academy at West Point senior teaches new cadets how to salute and march during Reception Day on July 2, 2018. (Michelle Eberhart\/Army)<\/figcaption><\/figure>\n\n\n\n

Whisenhunt was convicted of three counts of Article 120 sexual assault in May 2017, by a jury of six West Point faculty and staff.<\/p>\n\n\n\n

\u201cEspecially when you have this kind of victim-blaming opinion,\u201d he added. \u201cThat opinion feeds into commanders that might already feel that way, or the rank and file who already believe that way.\u201d<\/p>\n\n\n\n

The ability of judges to throw out a conviction based on their own interpretation of the evidence \u2015 known as evaluating \u201cfactual sufficiency\u201d \u2015 is unique to the military justice system, he said, and can be dubious for a number of reasons.<\/p>\n\n\n\n

\u201cBased on my multiple decades of experience in the court-martial process, the fact that the court members gave the sentence they did \u2015 21 years, which is one of the stiffest sentences I\u2019ve ever seen for this kind of a case \u2015 that tells me they had no doubt to the accused\u2019s guilt,\u201d Christensen said.<\/p>\n\n\n\n

The original appeal <\/a>focused on reducing his sentence and condensing two of those specifications of assault, because Whisenhunt was charged twice for the same digital penetration incident. But in their decision, the appellate judges opted to throw out all three charges.<\/p>\n\n\n\n

\u201cEven though they have the authority, it should almost never be used, because they should be giving great deference to the findings of fact,\u201d Christensen said.<\/p>\n\n\n\n

In the case of a court-martial, the facts of the case and the witnesses have been vetted and substantiated by trained criminal investigators, upheld by a local commander and then affirmed by a judge and jury.<\/p>\n\n\n\n

\u201cThat is what their job is, the foundation of American justice,” he said. “This factual sufficiency that we have in the military is the antithesis of American justice.\u201d<\/p>\n\n\n\n

And, regardless of whether defense attorneys request in their appeal to review the evidence, UCMJ requires that the judges do it anyway.<\/p>\n\n\n\n

The panel wrote that they doubted Whisenhunt could have assaulted the sleeping cadet, while their squad mates slept nearby during a summer field training exercise, without anyone noticing.<\/p>\n\n\n\n

\u201cThis is particularly true when there is no evidence that appellant threatened [the victim] or took any steps, such as covering her mouth, to prevent an outcry,\u201d they wrote.<\/p>\n\n\n\n

But to Christensen, that finding amounts to an antiquated notion of rape perpetuated by officers who are not educated in the well studied dynamics of sexual assault.<\/p>\n\n\n\n

\u201cIt reads like something from the \u201950s,” Christensen said. \u201cI\u2019ve prosecuted a number of cases where the facts are very similar to what this woman described \u2015 even though there were other people around, they just froze, they couldn\u2019t do anything.\u201d<\/p>\n\n\n\n

And because of the way the military appoints appellate judges, there is no standard of experience in a court room or in handling rape cases before being assigned to hear these appeals.<\/p>\n\n\n\n

\u201cWhat they said … is really offensive, that that is why they found there was consent,\u201d Christensen said. \u201cThat tells me that these three judges have very little experience. Maybe I\u2019m wrong, but it doesn\u2019t seem like they have very much experience with sexual assault cases.\u201d<\/p>\n\n\n\n

\u201cA real problem\u201d<\/b><\/p>\n\n\n\n

The military assigns appellate judges not based on merit or experience, Christensen said, but through a general assignment process designed to fill vacancies with judges of the proper rank and years in service.<\/p>\n\n\n\n

\u201cThere is a real problem with the way the military selects appellate judges,\u201d he added. \u201cI say that having been selected as an appellate judge, \u201dadding that at one point in his career, the most experienced sitting appellate judge in the Air Force had one prior year on the bench.<\/p>\n\n\n\n

The issue of inexperience comes up often in the larger discussion of military sexual assault. While the fact-finding teams, criminal investigators and prosecuting judge advocates may specialize in those complex crimes, the commanders who levy charges and the judges who hear the cases may not.<\/p>\n\n\n\n

\u201cThe average JAG isn\u2019t dealing with [any criminal] case every year,\u201d he said. \u201cThe average commander\u2019s not even dealing with a case every year. One in 10 commanders is seeing a case go to trial every year.\u201d<\/p>\n\n\n\n

The issue dovetails with efforts from Congress, lead by Sen. Kirsten Gillibrand, D-N.Y., to professionalize the process for prosecuting sexual harassment and assault, starting by taking the decision to pursue a case away from a unit commander, who is not explicitly trained in handling them.<\/p>\n\n\n\n

It would take more legislation to put sexual assault experts at every step of the process, Christensen said, but it would be a step in the right direction.<\/p>\n\n\n\t