ANNAPOLIS, Md. (WJLA) - Two midshipman will face a court-martial in an alleged sexual assault at an Aug. 2012 off-campus party while a third will not, the U.S. Naval Academy superintendent said Thursday. All three midshipmen were former Navy football players.
Vice Adm. Michael Miller referred the cases of Midshipmen Eric Graham, of Eight Mile, Ala., and Joshua Tate, of Nashville, Tenn., to court-martial, but decided Midshipman Tra'ves Bush, of Johnston, S.C., should not face one.
The victim had had a prior relationship with Bush, but her attorney said that should not have been a factor.
“Merely because a woman consents to have sex with a male on one occasion is not somehow a free check that they thereafter are always available,” Burke said.
Burke says her client, now a 21-year-old senior, is pleased, but that life at the Academy remains very difficult. The victim is largely ostracized and spends her weekends off campus.
“Imagine that, where the entire collegiate community is shunning you! It is a further testament to her courage that she is willing to do this," Burke said.
The Academy insists it has treated the victim fairly.
"We are committed to a thorough and fair conduct system and investigative process, and the Naval Academy will meet the highest standards, operate consistent with the law, and expeditiously investigate every report of unwanted sexual contact, sexual harassment and sexual assault," the academy said in a statement announcing the superintendent's decision.
Graham is charged with abusive sexual contact. Tate is charged with aggravated sexual assault. Both midshipmen also are accused of making false official statements.
The case has drawn attention at a time when the White House, Congress and the Pentagon are focusing on sexual assaults in the military. The alleged assault happened at an alcohol-fueled party in April 2012 at an off-campus house used by football team members.
The alleged victim is a fellow midshipman who was drinking that night and she has said she doesn't remember having sex. She said she heard about the allegations after the party from others.
The Associated Press generally does not name alleged victims of sexual assault.
The decision comes after an Article 32 hearing, the civilian equivalent of a preliminary hearing, in which the alleged victim's underwent more than 30 hours of cross-examination this fall by three defense teams. She faced graphic questions about sexual acts and her attorney criticized the process.
Within days of the "Toga and Yoga" party, during which men wore togas and women wore yoga pants, the Naval Criminal Investigative Service began looking into the allegations. The alleged victim initially did not want to pursue charges. During the Article 32 hearing, defense attorneys played a recording of a phone call in which she asked one of the defendants not to cooperate with investigators.
The case was closed in November 2012, but reopened in January, when the alleged victim began cooperating.
In the midst of the investigation, President Barack Obama emphasized the importance of stamping out sexual assault during his May speech to this year's graduating class. Susan Burke, the alleged victim's attorney, went public days later, disclosing the investigation and what her client knew.
Burke, an outspoken lawyer who has represented more than 200 sexual assault victims, has said the academy tried to sweep the case under the rug to protect its reputation. The academy and an NCIS agent have said an investigation was vigorously pursued.
"Miller's decisions were informed by the findings and recommendations made by the Article 32 Investigating Officer, as well as by independent legal advice from the Navy's Region Legal Service Office and the Naval Academy's Staff Judge Advocate," the academy said in a statement.
The court martial is expected to be held in December before a military jury. Attorneys for the three accused midshipmen could not be reached for comment. Burke says she is optimistic, but added conviction rates for such proceedings are historically low.