Marine's sex assault conviction tossed as prosecution questioned

McClatchy NewspapersMarch 8, 2012 

WASHINGTON — An appeals court has thrown out the sexual assault conviction of a Marine in yet another example of the growing legal questions sparked by the U.S. military's newly aggressive stance on rape.

Nicholas Stewart, a Marine Corps captain, became one of the first to be convicted under a controversial 2006 law that allowed the military to seek charges of sexual assault if the victim was "substantially incapacitated" from drinking too much alcohol.

Stewart, 33, served more than a year out of a two-year prison sentence and was registered as a sex offender for a crime the appeals court now says he didn't commit.

"I am grateful for this long-awaited proof of the integrity of our judicial system," said Stewart, who was 29 at the time of his conviction. "I look forward to continuing to serve our country and our Marine Corps."

McClatchy detailed Stewart's case in a series of stories about questionable rape prosecutions by the military.

The Court of Appeals for the Armed Forces said in its ruling Tuesday that the military judge had given the jury improper instructions that, in essence, required the jury to determine whether Stewart was guilty of the same crime twice.

The jury found him not guilty of one charge but then had to reconsider its own verdict when it deliberated over a second charge, which was essentially the same sexual assault allegation, the court concluded. The judge "created the framework for a potential double jeopardy violation," the judges wrote, referring to the constitutional clause of the Fifth Amendment that bars citizens from being tried for the same crime twice.

"As a result of the military judge's instructions, (the jurors) were placed in the untenable position of finding Stewart both guilty and not guilty of the same offense," the judges wrote.

The case also highlighted a little known but common problem with prosecuting many military rape allegations. In many cases, both the accuser and the accused are partying together and drinking excessively. As a result, memories often are blurry and little or no physical evidence of an assault exists.

Stewart, a fighter pilot who served in Iraq, was accused of sexually assaulting a longtime friend after she had been drinking at a party. She'd had sexual relations with the Marine previously, but not intercourse. The woman herself told Stewart she didn't feel "forced" to have sex. "I can't even say I told you 'No,'" she wrote in an email that came out in court.

But she maintained she had drunk so much alcohol that she couldn't have possibly consented to sex. She didn't remember the entire encounter but Stewart asserted she did consent.

Armed with the new law, the military decided to prosecute the case even though an attorney whose job was to evaluate the evidence had recommended that the military commander dismiss the charges because of lack of evidence.

Stewart's civilian lawyer, Charles Gittins, said this week's ruling raises broader concerns about whether the military is pursuing such prosecutions for the wrong reasons. Pressed by the woman's parents to take legal action, Stewart's commander sent the case to a court-martial to let a jury decide instead of telling them that there was not enough evidence to go forward.

"The commander had a legal expert telling him that he should not pursue it but he did anyway," Gittins said. "The only reason you do that is if there's political pressure."

The Office of the Judge Advocate General of the Navy declined on behalf of the prosecution to answer questions about the legitimacy of the original decision to charge Stewart. Jennifer Zeldis, a spokeswoman, said her office is still considering whether to appeal the decision.

But if the ruling becomes final, she said, Stewart cannot be prosecuted again.

A McClatchy analysis late last year found that the military is prosecuting a growing number of rape and sexual assault allegations, including highly contested cases that would be unlikely to go to trial in many civilian courts. However, many of the accused aren't being convicted of serious sex crimes, prompting concerns that the military is prosecuting cases that should not be sent to trial because of questions about the evidence.

The problem in Stewart's case also arose because of confusion over the 2006 law, which shifted the burden of proof to defendants who were claiming the sex was consensual. In an effort to address what could have been an unconstitutional burden on defendants, Congress revised the law once again late last year, but experts say those changes don't completely clear up the confusion.

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'Flawed' new rape law roils military justice system

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