A military appeals court's reversal of a West Point cadet's rape conviction and 21-year prison sentence has outraged sexual assault victim advocates who say the decision is filled with victim-blaming and antiquated notions about rape.
But the cadet's attorney says the decision demonstrates the need for checks and balances on court martial panels hand-picked by commanders under pressure to convict in a time of intense focus on sexual assault in military service academies.
A three judge panel of the U.S. Army Court of Criminal Appeals on June 3 ordered cadet Jacob Whisenhunt of Maxwell, Nebraska, released from confinement and reinstated at the U.S. Military Academy. He had been convicted in 2017 of three counts of sexual assault after a four-day trial by a jury of six West Point faculty and staff. He had served two years behind bars before he was released and returned to the academy.
His appeal had focused on reducing his sentence, but the appeals panel, which had two females and one male, opted to throw out the charges after reviewing the evidence and finding it "factually insufficient."
Whisenhunt had been charged with raping a female classmate in her sleeping bag during summer field training in 2016. He testified the encounter was consensual and that both of them had tried to be quiet so nearby squad members wouldn't take notice. She testified that she froze in a fetal position when she awoke to find Whisenhunt assaulting her.
The judges found it implausible that the woman, identified only by her initials, would stay quiet while being raped and that Whisenhunt would be so brazen as to do this and expect to get away with it.
"It is hard to conclude beyond a reasonable doubt that appellant could complete the charged offenses without cooperation or detection," the panel wrote. "It is even harder to conclude beyond a reasonable doubt that appellant would anticipate that (the woman) would not make any reflexive noise or movements upon being awakened, which would have alerted multiple others to his criminal activity."
The judges said their doubt about whether the woman was raped was increased because Whisenhunt hadn't threatened the woman or taken steps to silence her, "such as covering her mouth to prevent an outcry."
They said they considered a rape unlikely because Whisenhunt knew the woman could identify him, yet had acted in seeming confidence that she wouldn't report what had happened.
"Furthermore," the court wrote, "appellant left his semen on (the woman's) bivy cover, and there is no evidence that he tried to remove this evidence."
U.S. Sen. Kirsten Gillibrand, a New York Democrat who has campaigned publicly against sexual assault in the military, said Friday that the decision sends a "terrible message" to survivors.
"I am extremely concerned that the panel's reasoning reflects an outdated understanding about the nature of sexual assault and may deter reporting by survivors," Gillibrand said.
Retired Col. Don Christensen, a former Air Force chief prosecutor who is now president of the advocacy group Protect Our Defenders, said the decision "sends a hugely negative message" to discouraged survivors at a time when reports of sexual assault and harassment in the military are rising.
"It's an offensively bad decision filled with victim-blaming, a poor understanding of the impact of sexual assault on survivors and an incredibly stupid analysis of whether perpetrators will commit offenses against people they know," Christensen said.
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"They say the victim didn't act the way they thought she should act, that she basically didn't make enough noise," Christensen said. "But victims often freeze. That's one of the reasons rapists get away, because of the impact of trauma. They also doubted his guilt because the victim knew who he was and could report it. But well over half the rapes that occur in the military are acquaintance rapes."
Christensen said: "What we've seen repeatedly now is that many of these judges on appellate courts see themselves as there to protect the accused from what they see as politically correct prosecution."
Whisenhunt's attorney William Cassara, said Friday that the appeals court had, in fact, corrected an injustice.
"There is in my experience a tremendous amount of pressure from panels in the military to convict," Cassara said. "That was especially true at West Point."
He said the appeals court provided an important balance in a system driven by the chain of command that picked the jury.
"The three judges who read all the evidence, dispassionate and trained in the law, did what the law required them to do, which was to find they were not convinced beyond a reasonable doubt that he had committed this crime," Cassara said. "It was the right decision. I think he was wrongly convicted."
The Associated Press does not generally identify people who say they are victims of sexual assault unless they come forward publicly.
The Pentagon released a study in January that found the number of unreported sexual assaults at the three American military academies spiked 50% to 747 during the 2017-18 academic year.
Reported cases rose only slightly, to 117 in the 2017-18 academic year from 112 the year before. At West Point, reported assaults increased from 43 to 48.
In February, West Point Superintendent Lt. Gen. Darryl A. Williams ordered classes suspended for a day so cadets could help address the persistent problem of sexual assault and harassment.
At a U.S. Senate Armed Services Committee hearing in March on the military's response to sexual assault, Christensen called for independent prosecution of crimes such as rape, murder and child sexual assault to bring accountability to the military justice system.
Cassara said it would be more equitable if the military justice system was the same as the civilian one.
"This case would never have gotten to trial in a state court," he said. "If it did, it wouldn't have led to a conviction, I'm confident of that."