A former Navy football player who was charged last year in a high-profile sexual-assault case at the U.S. Naval Academy appeared in court Tuesday for the first time as a witness for the prosecution. But his description of what happened the night of the alleged assault might help sink the prosecution’s case.
Eric Graham of Eight Mile, Ala., was the first of the three orginal defendants to speak in open court about what happened at an April 2012 “toga and yoga party,” during which a female midshipman was allegedly sexually assaulted.
In January, charges were dropped against Graham, who is in the process of leaving the Naval Academy, a spokesman for the school confirmed Tuesday. The midshipman agreed to appear Tuesday for a deposition after prosecutors granted him immunity. In a somewhat unusual arrangement, he was questioned by the judge, prosecutors and attorneys for the sole remaining defendant, Joshua Tate of Nashville.
Graham had previously told investigators that he and the accuser had a sexual encounter in a car that was parked outside the party, but he contended that it was consensual. Her ability to consent is important to Tate because he is accused of sexually assaulting her around the same time.
That question goes to the heart of the prosecution’s case, which rests on proving that the alleged victim was too intoxicated to consent.
The accuser testified at a separate hearing last year that she had had a lot to drink that night and remembered few details. She said it was only in the days after the party that she learned from friends and social media posts that she had had sex with men at the party. (The Washington Post as a rule does not identify alleged victims of sexual assault.)
Graham said Tuesday that he didn’t see the woman at the party until the alleged assault. He said he was walking into the house when he saw Tate get out of a vehicle that was parked in the driveway. Tate stopped him, he said, and told Graham that the female midshipman wanted to talk to him.
Graham said he got into the back seat, where she joined him. He said that she then initiated oral sex unprompted and that he was a passive participant — a point that Graham’s attorneys sought to bolster at a hearing last year by grilling the alleged victim about her oral sex technique.
On Tuesday, Tate’s attorneys focused on the condition of the accuser at the party. Her state of mind while she was with Graham is key to Tate’s defense because Tate’s alleged sexual encounter with the accuser took place around the same time.
“She didn’t look overly intoxicated to you?” Tate attorney Jason Ehrenberg asked Graham.
“No, sir,” Graham replied.
“She didn’t look like she was going to pass out?” Ehrenberg said.
“No, sir,” Graham replied.
“She was able to move freely on her own?”
Graham was asked whether he told investigators later that the accuser’s eyes appeared “glossy.” Graham said he did, but only after investigators suggested the term.
The judge, Col. Daniel Daugherty, asked Graham to rate the accuser’s sobriety on a scale of one to 10, where one is “drunk out of your mind” and 10 is sober. Graham said she was a “six or seven.”
As soon as Graham finished testifying, Tate’s attorneys asked the judge to reconsider their request that he dismiss the case for lack of evidence. They argued that Graham’s testimony had seriously hurt the prosection’s ability to prove beyond a reasonable doubt that the accuser had been “substantially incapacitated.”
Daugherty agreed to take up the matter and asked prosecutors to explain in writing how they plan to sustain the charges againt Tate “before we go down any more roads in this case.”
He said he intends to deliver an opinion next week. A court-martial is scheduled to begin in March in the case, which some say has helped expose the shortcomings of the military’s handling of sexual-assault complaints.
Congress recently passed limits on the role of military commanders in such cases, prohibiting them from overturning jury convictions. Also, decisions to decline to prosecute can trigger a civilian review. Those changes do not apply in this case because it began before the law passed, military law experts said.
Ehrenberg said Tuesday that prosecutors are left with a case of something that “might have” happened, and he said “that is not good enough to convict someone beyond a reasonable doubt.”