Since “She said-He said” is all the political rage right now, I have a couple of cases that are almost on point, both of which point out the reason why our judicial system of evidence is so important.
At one time I had planned on turning both of these tales into short stories and maybe even a script, but the thought left me years ago.
The first was a case where a WAC accused an Army sergeant of rape, told here, and the second, where an older Japanese national, who worked in the post laundry, accused an Army Spec4 (Honor Guard) of raping her. I could not represent him in Japanese court, and he was convicted, probably solely on the basis that he was a foreigner, a “gaijin”, as no foreigner had ever been acquitted in a Japanese criminal court.
Each of these stories would take several thousand words to tell, to give full detail of the evidence and behind-the-scenes political play, and how we’ve just seen elements of both trials play out on national television and the media.
I’ll only outline them here, but they are both very teachable, and both caused a great deal of injury.
About criminal rape cases in general, you don’t see a lot of news about them as most never go to trial. This is because the evidence to actually convict is usually so conclusive that the defendant will almost never take his chance with a jury. By evidence I mean the medical and photographic evidence; bruises, wounds, semen results. The accused’s testimony serves to set the accusation, but it is the evidence that convicts.
Only in the rarest of cases is there an actual fact-issue of guilt that makes it to trial.
We hear a lot about “He-said, She-said” today, but it has always been around. But standing-alone it almost never resulted in a criminal charge, let alone a conviction. That’s why we only hear about them in the media, or in front of a college complaint boards, where one party, usually the accused, aren’t really able to defend themselves. I always think about the trial of Joan of Arc or the old Court of Inquisition from the middle Ages when I hear of these.
I’ll start with the American rape case, 1974.
An SFC Robert came into see me on a Monday morning. He was with the base MP Detachment. He said at about 4 AM MP’s came to his BOQ room, hold him he’s been accused of rape, read him his rights and took him down to the station to be booked, then to the hospital to be inspected.
In my five years in the Army, he was the “strackest” (is that term is still used today) soldier I’d ever seen. Over 6′, handsome black man, unsmiling, stood at attention until I asked him to sit down, which he did by occupying about only half of the seat, back rigid, both feet on the floor, garrison cap neatly folded in his hand.
I had to pull answers out of him. He spoke in short sentences, almost as if he were reading from a police blotter, which in fact, was part of his job with the MP Detachment. He’d briefed a lot of officers in his day.
He never smiled, neither did he ad lib. Or curse. Or laugh at my famous ad libs. Stiffest man I ever met, and I quickly started to wonder about what his passions were, his friends, his hobbies.
Turns out, it was golf, which, for a black man in the 70s, was a story unto itself.
SFC Robert’s story: He told me he’d been in a golf tournament on Saturday, and had finished 3rd, his best finish he said, so picked up Spc5 Paul (his best friend on post, and best friends with his wife back in South Carolina) and they went off post for some yakitori and Kirin. Not a big drinker (he said) a few too many it seems, so Paula drove back to the WACs barracks, which was only a few hundred yards form his BOQ.
As Paula was handing him the keys, and was going in the front door, this other WAC named Ann, Spec4 Ann, leaned out a second story window and began “woo-wooing” Robert. “Oh Robert, why don’t me and you go out?”
Robert told me this WAC had been pursuing him for several months. He said that the other MP’s had told him that she’d vowed to have sex with every black member of the MP Detachment, and that he was the only hold out.
No matter where he went, NCO Club, NCO mess, no matter where, if they were in the same room, she’d come over and tease him.
With Paula standing right there, and most the WAC’s knowing the scuttlebutt about Ann’s trophy quest, Robert said he just snapped, partly because he was drunk and party because Paula heard part of this exchange. He yelled up, “Come down here” and then, when she came out the door, said “Get in the car.” Several people saw them.
He drove about half a mile to the Torii Park, with a miniature Torii Gate in the center, where kids played in the daytime.
Once parked, he said he turned to her, and began berating her. “But she began reaching for me, trying to grab my hand and put it on her.” I asked him “Where?” but he wouldn’t elaborate, “You know.” He said he grabbed her several times by the arms, and twice by the legs as she tried to crawl over the gear shift knob.
He seemed actually embarrassed in telling me this. For a 17-year E7, he was most unworldly man I’d ever seen.
She was trying to excite him, I guess. He didn’t know if she even knew he was drunk. (I’d ask her about that at a later time.) This grab-and-tickle went on for a few minutes and then he finally started up the car and drove her back to the barracks, then went to his quarters to sleep it off.
“Did you ever unzip your trousers? No, Sir. Did she unzip your trousers? No, sir.”
“OK, Sergeant, big questions then. Did you ever have “intercourse” with her? No. Sir. Did you even kiss her? No, Sir.”
Next morning Chief Prosecutor Ron came by, dropped the CID file on my desk, and said “The Boss said we’re going with a GCM (General Court Martial) per the General. ” 20 years.
I thumbed through the stack of photos and reports, looking for a semen report. “No swab?’
“Couldn’t find any, but it’s still aggravated rape with injury.”
“Because she insisted she was raped. Penetration. We’ll let the jury decide.”
I first interviewed Spec5 Paula, and she confirmed the front end of Robert’s story at the barracks, and yes, she was best friends with Robert and his wife back in the states. She also confirmed the rumor of Spc4 Ann’s pursuit of Robert. I then asked her if Robert had talked with his wife? Had she talked with his wife? Would she recommend me write his wife, to say I thought we had a 50-50 chance, which is very high in rape cases. (She never got back to me on that.)
I then canvassed the other MPs, and all confirmed this campaign by Ann, and that yes, each of them had all succumbed to her pleas. After all it was a freebie with no strings attached. Yes, a couple of them were married, too. But since they all knew it was just a list to be checked off, “Why not?”…out to the Torii Gate park, hop in the back seat, back to the office, usually within an hour, didn’t even have to buy lunch, what was the harm? Not a one of them said they’d ever been on a date with her, you know, movie, popcorn.
Then I read Spc4 Ann’s report, and she told an entirely different series of events, where they went to the Torii Park just to do some necking, and then he assaulted her, stripped her cut-offs, and her panties, and raped her. He then returned her to the barracks, where she immediately rushed to her room, took off her clothes, put them in a barracks bag, and called the MP’s, who took her straight to the hospital for examination.
(Note, “rape” means intercourse, so there must be penetration. But not all rapes are completed, as often the rapist is drunk and can’t finish the job, if you know what I mean.)
In her CID report Ann made no mention of having pursued SFC for nearly a year.
The medical exam and photos showed wrist and arm bruises and knee bruises consistent with being gripped tightly. No redness inside the thighs or groin area. She was a fair-skinned blonde, so expected. Inconclusive as to who the aggressor was though. (SFC Robert’s exam showed no scratches or body marks.)
Last, I interviewed Spc4 Ann, who was the exact opposite of SFC Robert. While he was stiff and wooden, she was as indifferent to rank, or for that matter, manners, as I’ve ever seen. I expected her to throw her legs up on my desk and light up a Marlboro, she was so casual.
This took about two hours, because I believe I knew things she didn’t know I knew. There was about a 2 hour difference in her time line and the one Robert gave, which would have given her time to get back to the room and make herself more presentable for a medical examiner. I had questions I’d save for trial, depending on whether she told the prosecutor about her long term pursuit of Robert, Turns out, she hadn’t.
Finally, I broached the whole question about penetration and completion. I mentioned that a lot of people who’d been drinking a lot couldn’t get erections, when she interrupted me, and said,
“Well, no matter how drunk they are, black men always have a semi-erection”…only she didn’t use “erection”.
My chin hit the desk. It wasn’t that she said it, but the way she said it, as if she were a college professor answering a silly question from a student.
Leading up to trial we had a complication which always angers the front office. Robert invoked his privilege to ask for a field-grade officer to defend him (Major or higher) so everything had to be set back two weeks so this new man could come on board and be brought up to snuff. Maj Jim was from Ft Lewis, Washington and arrived 5 days before trial. Surprise, Surprise, he’d never tried a case in his life. Still, he would be lead counsel, so I had to arrange for him to meet all the witness and go over all my notes. Actually, a really nice guy
I asked that he let me cross-examine Spc4 Ann, and we would collaborate with the others.
At trial, we had a full-colonel judge, which had to flown in, and a full board, headed by an O6 colonel, including three senior NCO’s and a female captain. I knew all of them.
MAJ Jim made the opening statement telling the jury what we intended to prove, beginning with a string of black MP’s waiting in an anteroom to testify about Spc4 Ann’s trophy quest. Spc4Ann was also waiting in another ante-room, so she heard none of this.
And Ann would be first to testify, so I was first up for cross-examination.
On direct, she was almost as casual as in my office. Not a good look, way too matter-of-fact in describing the assault. I’m not sure how the Prosecutor had coached her, but there was no pain or outrage. So, when I began my cross-examination I began by asking her about her relationship with SFC Jim before that night. Were they friends socially? I would lead her with questions like, “Well weren’t you chasing him?” or “Did you know he was married?” setting her up for answers Maj Jim would elicit from the other witnesses. We had witnesses waiting.
Most of all I wanted her to explain how an event she’d wanted to happen for close to a year would end up as an assault. What sort of words set that off?
Finally, as I walked her through her testimony about the assault, just as I had in my office, I asked if she was sure there had been penetration.
“Yes, I just said there was”.
“You testified that he’d been drinking? I’ve been told that most men who’d been drinking can’t get erections. How would he have been able to make penetration?”
“Oh, black men always have semi-hard-ons, even when they’re drunk”, saying it just as she did in my office, in one of those “everybody knows” tones. This was knowledge she was proud to boast about.
A gasp went up in the court room.
I said “I have nothing further with this witness, Your Honor” and she stepped down. Then the defense rested, Maj Jim took the case forward, first with Paula then four MP’s (the Prosecution stipulated to the rest) and then SFC Robert told his story just as wooden and stiff as when he first told me in my office. Then the Defense rested.
Final arguments were made, and I gotta say, Maj Jim was a natural at stating our theory of the case, “She said, He-said, who’re you going to believe?”…then outlining why the jury should think the weight of our “He-said” testimony should out-weigh her “She-said.”
The judge gave the jury their instructions and they retired….for only about 30 minutes, when the jury came back with a “Not Guilty verdict” Their only comment was that they recommended charges for the woman.
I’ll bet you think that outrageous comment I pulled out of Spec4 Ann was the clincher. Well, maybe, but in a She-said, He-said case, whether a rape, a pinch, a leer, or even an unwanted comment about nice boobs, the matter of proof revolves around believability, which is why we have juries instead of college commissions as the finders-of-fact.
Without semen as evidence, “She-said- He-said” ended in a tie, and as you know, the accused always wins the ties. At least since the Magna Carta that is, and it’ll take a new king (or queen) with a large occupying force in order to change that.
So the conduct and believability of the witnesses…only two of them…mattered. Weighing the word of a stiff, wooden, un-hip black senior sergeant who answers primarily in “Yes sirs” and “No sirs” against the word of a dishwater blonde who was a little too casual about the African-American male anatomy was an easy call for that 6-man and 1-woman jury.
The jury didn’t get their wish. Sp4 Ann was not charged. The Army just shipped her out stateside to finish her tour-of-duty But she had lied (perjury) about Ann’s year-long pursuit of Robert.
But Sp4 Ann even got her revenge, and this is the tragedy of it, for they shipped SFC Robert out as well and about six months later Spc5 Paula came by to tell me hat Robert’s wife had sued for divorce. She never believed him. Maybe we should have written that letter after all.
Sometimes all it takes is an accusation to destroy a family of lives.