Former Naval Academy football player acquitted of sexual assault, prosecution and defense decry “badly broken” system

“The military’s ‘zero tolerance’ policy once again was applied to a crime victim, and not to the perpetrators”

Topics: military sexual assault, sexual violence, Rape, Alcohol, consent, Kirsten Gillibrand, D-N.Y., Navy, u.s. naval academy, brig. gen. jeffrey sinclair, ,

Former Naval Academy football player acquitted of sexual assault, prosecution and defense decry "badly broken" system (Credit: AP)

A military judge Thursday acquitted former Naval Academy football player Joshua Tate on charges of sexually assaulting a female midshipman who says she was too intoxicated to consent; both the defense team and prosecutors have called the case a product of a “badly broken” military justice system.

As the New York Times reports, the presiding judge said that the case raised troubling questions about affirmative consent and alcohol, but that Tate’s guilt could not be proved beyond a reasonable doubt “and so, under the law, this court must find the accused not guilty.”

Tate was found to have lied to officials during the investigation, and the judge sent a charge of making false statements to the Naval Academy; Tate withdrew from the school as a result, according to a spokesperson. “By resigning, Midshipman Tate has agreed to accept the most serious form of punishment a midshipman can receive through the conduct system — a dismissal from the Naval Academy,” he said.

Lawyers for the defense and prosecution have both criticized the verdict.

Susan Burke, a lawyer representing the woman who accused Tate of assault, called the military justice system “badly broken” and tilted to protect rapists. “The military’s ‘zero tolerance’ policy once again was applied to a crime victim, and not to the perpetrators,” she said in a statement.

The woman said in her testimony that she was too intoxicated to have consented to sex with Tate, and had no memory of parts of the evening, including the encounter with Tate. She learned about the alleged assault after others who attended the party began to discuss it on social media. The woman confronted Tate, who she testified told her she may have been “too turnt up” — or too drunk — to remember the incident. The woman initially did not cooperate with investigators, she says, because she didn’t want to “make it a big deal” or upset her mother.

In a phone call with Tate, the woman expressed a desire to see the case close, but she began fully cooperating with investigators in January 2013.

Two other football players were implicated in the case, but were never charged after an Article 32 hearing — the military equivalent of a preliminary hearing.

During the Article 32 hearing, the alleged victim was questioned for 20 hours by 12 attorneys, and was forced to answer questions about her sexual history, whether or not she wore a bra, how wide she opened her mouth during oral sex, and if she considered herself a “ho” after the alleged assault occurred. After five days of invasive questioning, lawyers for the woman requested a day off from testimony, a request that was mocked by the defense. “What was she going to be doing anyway?” asked Ronald “Chip” Herrington, one of the defense attorneys for one of the football players who was accused but never charged in the case. “Something more strenuous than sitting in a chair? We don’t concede there’s been any stress involved.”

Tate escaped a possible 30-year prison sentence, but his lawyer also criticized the outcome. “The system is broken,” Jason Ehrenberg said after the ruling. “It’s broken in many different directions.” As the Times notes, Ehrenberg accused the Naval Academy of pursuing the case for political reasons and because of public perceptions about sexual assault in the military.

New York Sen. Kirsten Gillibrand, whose proposal to remove the prosecution of sexual assault cases from the military chain of command died in the Senate earlier this month, commented that the case shows how desperately reform is needed.

“Irrespective of the verdict in this case, how we got here was yet another example of a completely broken military justice system,” she said in a statement on Thursday. “Survivor after survivor has come forward asking for a fair shot at justice. When will enough finally be enough and the system reformed so that trained legal professionals are in charge of making these decisions?”

It’s a sentiment shared by many survivors of military sexual assault and other advocates for change, as Greg Jacob, policy director for the Service Women’s Action Network — which supports Gillibrand’s push for reform — told Salon.

Commenting on the two-year trial of Brig. Gen. Jeffrey Sinclar — who had been accused of sexual assault and threatening the life of an Army captain, but received a slap on the wrist after the most severe charges were dropped — Jacob noted, “Success here is not the fact that he was brought to trial, success here would have been if he was brought to trial in a system that was impartial and had some hope of justice.”

Despite bipartisan and majority Senate support, Gillibrand’s proposal was blocked earlier this month when it failed to received the 60 votes necessary to overcome a filibuster.

Katie McDonough is Salon's politics writer, focusing on gender, sexuality and reproductive justice. Follow her on Twitter @kmcdonovgh or email her at

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