After refusing to dismiss the case for lack of evidence, a military judge is expected to rule Thursday on the guilt or innocence of a former Navy football player accused of sexually assaulting a female classmate at a party.
The defense rested its case Wednesday after failing earlier in the afternoon to persuade the judge, Col. Daniel Daugherty, to dismiss the charges against Midshipman Joshua Tate.
Tate waived his right to a jury trial last week, and testimony in his court-martial at the Washington Navy Yard took just two days.
The high-profile case, which has focused attention on the military’s handling of sexual assault accusations, centers on what happened between Tate and the alleged victim, a fellow U.S. Naval Academy midshipman, in a car parked outside a raucous off-campus party in April 2012.
The alleged victim, who finished testifying Wednesday morning, has said she had a lot to drink that night and remembers little of what happened. Prosecutors argued that she was too drunk to consent — a claim that Tate’s attorneys sought to refute Wednesday with a string of witnesses, including a former defendant in the case and a forensic psychiatrist.
Tate, of Nashville, was initially charged along with two other former Navy football players, Tra’ves Bush and Eric Graham, with sexually assaulting the woman at the party. Charges were later dropped against Graham and Bush, leaving Tate as the sole defendant.
Bush, now a commissioned officer in the Navy, had had a sporadic relationship with the accuser. (The Washington Post does not generally identify alleged victims of sexual assault.) At the start of the defense case Wednesday, Tate’s attorneys read a statement submitted by Bush that provided new details about how the night allegedly unfolded. He said that at the party, the accuser became angry after he told her that he did not see their relationship working out.
Graham testified in person Wednesday under a grant of immunity from prosecution. His comments contrasted with the prosecution’s argument that the accuser was “substantially incapacitated” when Tate allegedly had sex with her. His testimony is potentially significant because he was with the alleged victim around the same time as Tate.
Graham said he was outside the house as the party was winding down and saw Tate get out of a white Dodge Charger parked in the driveway and approach him.
Graham said Tate told him that the accuser wanted to speak to him, and he testified that the accuser initiated a sexual encounter with him when he got into the car. Defense attorneys pressed him on her level of intoxication at the time.
“Did she look like she was going to pass out to you?” asked Jason Ehrenberg, an attorney for Tate.
“No, sir,” Graham replied.
“Did she pass out when she was in the car with you?”
“Was she able to manipulate her body and move on her own without assistance?”
“Yes, sir, she was,” Graham said.
“She was able to communicate with you verbally?”
The timing of their encounter is important because the accuser has said she does not remember drinking after the first 20 minutes of the party, more than an hour before she was with Graham. Other midshipmen testified Wednesday that they saw her drinking later at the party. But they also said she appeared to be in control of her faculties. Midshipman Mitchell Kempisty said he saw her “holding her own” at the party and making witty retorts to a man who was flirting with her.
Tate’s attorneys have argued that the accuser’s inability to remember what happened does not mean that she was not in control of her actions that night. They also contend that the accuser may have had a reason to lie, because she said Tuesday she believed she had contracted a sexually transmitted disease from Tate.
Wednesday afternoon, the defense called as an expert witness a forensic psychiatrist who said that after reviewing the alleged victim’s testimony in a preliminary hearing and the testimony of other partygoers, he didn’t believe that the accuser was incapacitated the night of the party.
The prosecution’s case also rests on statements that the accuser said Tate made to her in the days after the party. She said he told her that they had had sex at the party. She said he described her condition that night as “too turnt up,” which prosecutors claim means overly intoxicated. And she said he repeatedly asked her if she had had a rape kit done. She did not.
Tate also allegedly tweeted once in her presence, “The tickets were on the low,” a reference to her having sex with multiple men that night.
Tate’s attorneys challenged the accuser’s credibility by confronting her with inconsistent statements she made to investigators.
They also played a taped phone conversation between Tate and the alleged victim that took place sometime after the party. In it, the accuser begged him to lie to investigators because she did not want the case to move forward. Tate replied, “Man, this [expletive] ain’t cool.”
The alleged victim said she was initially reluctant to report the incident, and she refused to cooperate with investigators for nine months. She began working with investigators in January 2013 and went public with her allegations in May.
Prosecutors pointed out that even in her early statements to investigators, the accuser said she had no memory of having had sex with Tate.
“What were you asking him to lie about?” Lt. Cmdr. Phil Hamon, a prosecutor, asked the alleged victim.
“I didn’t want him to tell them we had sex,” she said.
“Because you knew the truth was you had had sex because Midshipman Tate told you,” Hamon said.
“Yes,” the accuser said.
Closing arguments are scheduled to begin Thursday morning.