The BH-8 case continues to fizzle

In late summer 2014, my client and another were accused of conspiring with each other and committing sexual assaults on a single complaining witness. The events were alleged to have happened at a party at a local hotel. As the investigation progressed six others were implicated in an alleged group sexual assault.

My client and his alleged co-conspirator had charges preferred in January 2016 and in April they were arraigned at a general court-martial. We then experienced many delays because of funding issues until trial in February 2018. Over the months, the six others had their allegations resolved at summary court-martial, nonjudicial punishment, and administrative separation—all for offenses collateral to the alleged sexual assaults.

As our investigation and preparation progressed we were able to develop what we believed to be a motive to fabricate a false allegation of sexual assault, for what psychologists call secondary gain (to police and lawyers that’s called motive). The complaining witness was in trouble: she’d lied to command personnel about where she was going that day, and like the eight accused’s she violated various rules of alcohol and fraternization–she and others were about to undergo a surprise breathalyzer that night. Her answer was to claim sexual assault for what we believed to be consensual group sex.

Text messages, photos, and video often plays a part in military sexual assault cases. Therefore, it’s important to get all that evidence as soon as possible. Keep in mind that law enforcement and prosecutors often cherry-pick their way through this potential evidence for what helps a prosecution. In our investigation, we found documentary evidence, independent witnesses, a few texts not gathered by law enforcement, and video of the relevant times at the hotel (I give law enforcement credit here that they got all the hotel video available). We found video and a couple of text messages that helped support our theory. While not a smoking gun, we were able to find independent evidence to circumstantially show the complaining witness was flirting with the client prior to the alleged events and video of her checking out of the hotel shortly after the alleged events. Using the checking out video-clips we believed we had a good argument to show she was not drunk and was friendly with the alleged co-conspirator, and that she was not in any distress from an assault or being drunk.

As the six other cases were being processed those accused became available as potential witnesses for us—and they were able to fill in some gaps and also give further evidence to support our theory of consensual sexual activity followed by a false complaint.

Bottom line, the client ended up pleading guilty to violating the no alcohol order, lying to investigators (when he denied drinking and having sex), having a ménage à trois (sexual conduct by having sex in the presence of another), and an assault and battery.

The client was sentenced to a bad conduct discharge and four months confinement—42 months after the alleged offenses and through most of his enlistment.

The alleged co-conspirator will be tried soon, and it is anticipated he will be found guilty of the orders offense and obstructing justice only.