NMCCA sets aside a rape conviction

United States v. Ruiz should sound familiar to most defense counsel – the basic facts that is.  An adultery case becomes a rape allegation.

In particular I recommend:

Reporting the Alleged Rape
On the night of the alleged rape, after returning to the barracks, AN P did not report the rape or tell anyone what happened. Id. at 548. Seaman (SN) M testified, contrary to AN P’s testimony, that the next day, a smiling AN P pulled him aside, told him “we did it,” and explained that she and the
appellant had feelings for each other. Id. at 1146. In the next few days, AN P discovered that rumors were spreading about her being in a hotel room with the appellant. Id. at 552, 570, 592.  SN C testified that he had previously counseled AN P when she told him she “liked” the appellant, a married man. Id. at 551, 676, 688. When he confronted her with the new rumors and she explained her version of events, he reported it to the command. Id. at 683. AN P testified that she would not report it because she was afraid she would get into trouble or be kicked out of the Navy for being in a hotel room with a married man.  Id. at 552-55, 572, 683. AN P testified that about a week after the alleged rape, upon learning she would not get in trouble as long as she was not “cooperating” with the appellant, she reported the incident, when confronted by a SAVI advocate, a chief, and a member of law enforcement. Id. at 572. The manner in which the rape was reported raises further doubt as to why AN P made the accusation.

Capt Kelly Repair and I had an acquittal on similar facts a few months ago.  The difference in our case was that the complaining witness had told her friend she might have sex with the client before they actually went on their date.  And afterwords she said she wouldn’t mind doing it again.  Oddly enough she didn’t tell NCIS that she and the client had stopped off to get condoms on the way to the hotel, and odder still NCIS didn’t ask apparently.  It was right there in her statement to a command investigator given several months before the rape report.  Fortunately for the client a smart Staff NCO did a good investigation and had her admissions to the condom purchase.   Thanks to a very thorough command investigation done by the senior Staff NCO before NCIS got involved the facts were fully developed, including a second motive to lie.  Unlike Ruiz the client does have a conviction for adultery, and some other sexual misconduct.

The senior Staff NCO started out thinking he was investigating a fraternization and adultery case with alcohol involved.  As a result of his investigation the complaining witness was informed of a summary court-martial.  About that time she attended the new and improved sexual assault training and got her road map on how to complain.  Sure enough her summary court-martial went away.  This is the same case I posted on earlier about the voir dire.  In this same case all the members had been to sexual assault training.  Eight had been to the same command training within a few months of trial.  Six of those eight came away with this “rule” or thought, “one drink means a woman can’t consent,” or words to that effect.  The Service HQ representative testified that’s not what they are supposed to be taught.  The military judge characterized the trainor as a “rogue trainer,” who obviously didn’t follow the training guide and denied a group challenge.  But the military judge gave a very strong curative instruction to the members about alcohol and consent, which I have to admit must have worked.  Of course I don’t think it helped the prosecution that the complaining witness had gotten together with the accused a few nights after the later to be alleged rape at the on-base hotel.

The Navy has just announced a program to cut down on sexual assault offenses.  Look for more of these types of cases.

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