By Friday evening, the 21-year-old female midshipman had endured wave after wave of hostile questions and asked Monahan if she could skip testifying on Saturday because she was so weary.
“This is a cumulative thing,” she told him. He said he couldn’t excuse her as long as she was physically able to testify. She agreed to come back, adding, “But it doesn’t mean I haven’t been drained.”
The defense attorneys homed in on discrepancies in the accuser’s past accounts of the alleged assault. The Article 32 hearing at the Washington Navy Yard will determine whether the case will go to a court-martial, the military equivalent of a trial.
Tang, Graham’s military attorney, confronted the alleged victim, now a senior, about the differences between statements she made to investigators in May 2012 and statements she made later.
Under questioning, the woman conceded that she did not tell investigators initially that she remembered riding in a car with cornerback Graham and his co-defendant, linebacker Joshua Tate of Nashville, and being in a bedroom with the third defendant, Bush, of Johnston, S.C.
However, the woman repeated her prior testimony that in the months after the alleged incident in April 2012, she told investigators she was withholding information from them because she didn’t want the case to go forward. She refused to cooperate with investigators, she has testified, because she was scared of what might happen and because she didn’t want her mother to find out.
The investigation was closed in November for insufficient evidence and resumed in January after the alleged victim decided to fully cooperate. In June, Vice Adm. Michael Miller, the Naval Academy’s superintendent, agreed to charge the three midshipmen. The graduation of Bush was delayed pending the outcome. Graham is a senior, and Tate is a junior; both remain at the academy, as does their accuser.
Their accuser was repeatedly asked Friday about how she performs oral sex, which is a linchpin of Graham’s defense. When prosecutors objected, Graham’s attorneys said they were trying to show the act requires “active participation,” therefore indicating consent.
The alleged victim has testified that she can’t remember much about that night because she’d been drinking heavily.
The hearing has become yet another high-profile test case of how the military handles sexual assault cases at a time when sexual violence in the armed services has become an issue in the media and on Capitol Hill. As many as 26,000 service members said they were the targets of unwanted sexual contact last year, although only 3,374 incidents of sexual assault were reported, the Defense Department said this year.
Lawmakers have proposed putting sexual assault cases in the hands of civilian authorities instead of leaving them with the military chain of command. But that proposal does not have the support of key senators and military leaders.
That public debate has spilled into the hearing at the Washington Navy Yard this week in unexpected ways.
Defense attorneys have tried to characterize the accuser’s support for changing the way the military deals with sexual assault cases as a motive to lie about the alleged incident.
They also put Burke, the accuser’s attorney, on the stand Friday and accused her of manipulating her client into pursuing a case she doesn’t even believe in.
Once the Article 32 hearing is over, it will be several weeks before Monahan’s nonbinding recommendation reaches the desk of the academy superintendent, who will ultimately decide whether to proceed to a court-martial.