In the prosecution’s closing statement, Lt. Cmdr. Phil Hamon said that all three accused men had admitted to investigators or to the accuser that they had sex with her that night.
Hamon cited defendant Tra’ves Bush’s admission to investigators that he had sex with the accuser at the party. Bush’s co-defendant Joshua Tate also made statements to the woman in the days and months after the alleged incident about having had sex with her, Hamon said. And investigators testified that defendant Eric Graham told them that the accuser performed oral sex on him.
But Hamon acknowledged that the case hinges on how intoxicated the woman was, whether she was too drunk to consent and whether the accused knew it.
To bolster the prosecution’s case, Hamon cited witnesses who testified that the accuser slurred her words and fell down. And one defendant, Graham, told investigators that he could tell the alleged victim had been drinking because her eyes were “glossy” and she smelled of alcohol.
Graham, 21, of Eight Mile, Ala., is charged with abusive sexual contact. Bush, 22, of Johnston, S.C., and Tate, 21, of Nashville, are charged with aggravated sexual assault. All three midshipmen were also charged with making false statements. They have denied any wrongdoing.
But the defense cited other witnesses who testified that the alleged victim was coherent and not incapacitated.
Defense attorneys also focused their closing statements on discrepancies in the accounts the woman gave investigators about that night and argued that any sex that may have occurred was consensual.
“Virtually everything that came out of her mouth was a lie,” said Andrew Weinstein, an attorney for Bush.
He said that because the alleged victim did not remember what happened does not mean she did not consent. He said she was acting flirtatiously.
A friend of the accuser testified Monday that the woman had told her that any sex with Bush was probably consensual. The woman has said previously in the hearing that she and Bush had a prior sexual relationship.
The Washington Post generally does not identify alleged victims of sexual assault.
Earlier Tuesday, Naval Criminal Investigative Service agent Michelle Robinson, who testified at the hearing via video from Bahrain, said she interviewed the female midshipman several times and was aware the woman was not being entirely forthcoming. The alleged victim has said she withheld information at first because she wanted the case to go away.
Weinstein also said the admission Bush made to investigators that he had sex with the accuser should not be considered, because investigators did not properly read Bush his rights before taking that statement. But Weinstein did not say Bush lied.
Lt. Cmdr. Angela Tang, an attorney for Graham, said the alleged victim was the “sexual aggressor” and that it was not Graham’s legal responsibility to tell her to stop. “People drink and people have sex and it’s not a crime,” Tang said. “And that’s what this was.”
The hearing, which took place at the Washington Navy Yard, is known as an Article 32. The proceeding, over eight days, was unusually long, academy officials said, citing the number of defendants.
The presiding officer will make a recommendation to the Naval Academy’s superintendent on whether the case should go to a court-martial.
The hearing offered a glimpse of how the military handles sexual-assault cases at a time when the armed services are facing intense scrutiny over the issue.
About 26,000 service members said they were targets of unwanted sexual contact last year, but only 3,374 incidents were reported, according to the Defense Department.
During her cross-examination, the woman was questioned about her attire, her mental-health history and how she performed oral sex. She requested several times to be excused from testifying because of exhaustion.
The defense also sought to make her attorney, Susan Burke, a part of the case, calling her to testify and accusing her of manipulating the woman to adopt a cause she did not believe in. Burke has spoken publicly about the need to change the way the military handles sexual-assault cases.
Before Bush’s defense rested, Weinstein asked that a Washington Post profile of Burke be placed into the record as evidence.
Weinstein argued that Burke “has gone into the media” because she is “clearly attempting to influence” the decision of the academy’s superintendent, Vice Adm. Michael Miller.
Cmdr. Robert Monahan Jr., the presiding officer, said he would accept the story as evidence but not necessarily Weinstein’s arguments.
It probably will be more than a month before Monahan’s recommendation on whether the case should go to a court-martial reaches Miller, academy spokesman John Schofield said. There are more than 1,500 pages of documents from the hearing.