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Ruth Marcus: Defense lawyers gone wild

BY RUTH MARCUS Published: September 6, 2013

“Were you wearing a bra?” asked lawyer Andrew Weinstein. “Were you wearing underwear?”

Weinstein represents 22-year-old Tra'ves Bush, one of three midshipmen at the U.S. Naval Academy accused of sexually assaulting a female classmate.

If military officials want to know why service members are reluctant to report such incidents, they need look no further than the appalling proceedings just concluded at the Navy Yard here.

The hearing, known as an Article 32 proceeding, is described as the military equivalent of a civilian grand jury, the stage at which the decision is made whether to move forward with charges.

Except the grand jury takes place behind closed doors, without the adversary involvement of defense lawyers doing what defense lawyers tend to do in rape cases: putting the victim on trial. This was a case of defense lawyers gone wild, unhampered by strict rules of evidence and with clearly inadequate supervision by the officer who presided over the melee.

The woman who says she was victimized by three of her classmates at an off-campus “toga and yoga” party last year was victimized again by defense lawyers, subjected to 24 hours of testimony over five days.

When she pleaded for a day off Saturday, according to The Washington Post's Melinda Henneberger and Annys Shin, another defense lawyer, Ronald “Chip” Herrington, pooh-poohed the suggestion that she was exhausted.

“What was she going to be doing anyway?” scoffed Herrington. “Something more strenuous than sitting in a chair? We don't concede there's been any stress involved.” A nine-hour marathon of cross-examination isn't stressful?

If this stretched the limits of decency, consider the questioning by defense lawyer Angela Tang, who repeatedly asked the woman how wide she opens her mouth to perform oral sex. This on the theory that oral sex requires “active participation,” indicating consent.

This is an episode without heroes. It illuminates a tawdry, 21st-century culture of casual sex, heavy drinking and Internet boasting about exploits that ought to remain a source of private shame. The accuser herself testified that she doesn't remember what happened that night; she gathered what had happened from boastful tweets, Facebook posts, campus gossip and ultimately one of the three football players themselves.

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