Opening Argument April 2007

'Rape' and the Navy's P.C. Police

A bogus rape charge shouldn't derail the Navy career of 23-year-old Lamar Owens Jr., the former quarterback of the Naval Academy's football team.
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This is a story about a 23-year-old African-American midshipman who has limitless potential to serve his country but now faces a grave risk of seeing his Navy career derailed because of a bogus rape charge by a white woman whose violations of Navy rules were worse than his.

Lamar Owens Jr., the star quarterback, captain, and MVP of the Navy football team through the 2005 season, was resoundingly acquitted of rape last July 20, after the evidence presented to a military jury of five naval officers showed clearly that his sexual encounter with a female midshipman six months before was consensual and that the rape prosecution was a travesty.

More broadly, this is a story about how overreaction to the bad old days when real rape victims were not taken seriously has fostered a politically correct presumption of guilt in many rape cases, leading to wrongful prosecutions of innocent men and, probably, the convictions of some.

In the now-infamous Duke lacrosse rape fraud, the falsely accused men are white, the lying accuser is black, and racial demagoguery has fueled the prosecution. In other cases, such as that of Lamar Owens, the races have been reversed and suspicions of racially selective prosecution muted. In most, the men and women have been of the same race.

Owens endured a court-martial that should never have been convened, in the face of powerful evidence of innocence, thanks to the "leadership" of the Naval Academy's superintendent, Vice Adm. Rodney Rempt. He has led a much-publicized crackdown on sexual assault and harassment, but has badly overshot the mark.

Owens's acquittal on the rape charge did not end Rempt's campaign to ruin the young man. On February 12, the superintendent urged Navy Secretary Donald Winter to deny Owens the Naval Academy diploma and officer's commission for which he had fully qualified, with flying colors. Rempt's reason was that Owens was convicted on two relatively minor charges. These were consensual sex in Bancroft Hall ("conduct unbecoming an officer"), the huge dorm in which all midshipmen live, and forgetfully walking past the accuser's door contrary to an order to stay out of her area of the building ("failure to obey a lawful order").

Rempt's crackdown gives off an odor of sacrificing due process to appease feminists who have appropriately assailed the service academies' sometimes appalling trivialization of serious rape allegations.

According to an affidavit sworn by prominent Naval Academy alumnus and football player Peter Optekar, he privately asked Rempt—then a dinner guest at Optekar's home, four days after the rape acquittal—why he had subjected Owens to a general court-martial. Rempt's reported response:

"Pete, I had no other choice. If I did not take him to a GCM, we would have had every feminist organization and the ACLU after us."

According to another affidavit, this one sworn by three other Navy alums who attended Optekar's dinner party, Rempt also said that the consensual-sex and failure-to-obey convictions would be considered felonies, and that they would bar Owens from voting and require him to notify any future employer, for the rest of his life, that he was a convicted felon. (Rempt has disputed the affidavits.)

This despite the fact that the military jury, after a 10-day trial, not only acquitted Owens of rape but also determined after careful deliberation that there should be "no punishment" for his two minor convictions. And despite the fact that but for the bogus rape charge there would have been no general court-martial at all—only administrative discipline under an often-violated regulation prohibiting sex in Bancroft Hall. And despite football coach Paul Johnson's characterization of Owens as the "outstanding leader" of his team, one who "cares about people that are around him" and has "a natural ability that draws people."

To brand this young man a felon or deny him his commission, on the facts established at the court-martial, would be an outrage. If Navy Secretary Winter upholds Rempt's recommendation, he, like Rempt, is unfit for his job.

Here is what happened. According to Owens's well-corroborated testimony during his court-martial, he found an instant message on his computer from the accuser upon returning to his room after 3 a.m. on January 29, 2006. Owens responded, and after more IM's back and forth the 20-year-old junior invited him to her room in Bancroft Hall. He went. She climbed into her upper bunk and motioned him to follow. He did. They had sex until he noticed that she was no longer responding. Thinking this "bizarre," he withdrew and left the room.

The accuser, whose name has not been published, told a somewhat different story: After returning to her room very drunk from an Annapolis bar, she went to sleep and awoke to find Owens standing alongside her bunk trying to kiss her. She tried "scrunching" her lips to ward off the kisses and "scooched my body up to the headboard so he would stop," she said. But Owens managed to have sex with her for several minutes and then left.

The military judge, Cmdr. John Maksym, said that her credibility had been "eviscerated" on cross-examination by Owens's defense lawyer.

She never claimed that Owens had threatened her or used force. Owens had propped the door to the lighted corridor open with a trash can the whole time to comply with a regulation banning closed-door, male-female visits. A roommate was sleeping some 10 feet away. The accuser admitted that she "did nothing to let her [the roommate] know that I needed assistance." After Owens left, the accuser talked briefly with her roommate and the accuser's boyfriend, who had visited with her earlier that evening, and the three went back to sleep. Owens called her the next morning to ask whether she was OK. There was no official report of the event for more than a week.

The prosecution's best—but far from good—evidence was a secretly taped phone call with the accuser in which Owens sounded apologetic about his conduct. At his trial, he persuasively explained that he had felt contrite about a sexual encounter gone bad with a woman whom he had not then known to be seriously impaired by alcohol.

Not only did Adm. Rempt convene a general court-martial, the most serious form of military trial, but he and his staff also sent a series of prejudicial pretrial e-mails to the Naval Academy community, from which all members of the court were to be drawn. Several referred to the woman as the "victim" or "sexual assault victim," rather than as the "alleged victim" or the "accuser."

The military judge later observed that "some of these e-mails are rather damnable; they insinuate or suggest guilt," creating "the appearance of unlawful command influence" over the members of the court.

While Owens still faces grave consequences for his minor convictions, his accuser is on her way to graduating and being commissioned. This despite the military jury's implicit finding that she was as guilty as Owens of having sex in Bancroft Hall. Not to mention her serial, admitted underage binge drinking and other violations of Naval Academy rules.

The accuser will go unpunished because Rempt granted her broad testimonial immunity. From behind this shield, she admitted at the trial that she had left Bancroft Hall "about four times" after having signed a muster sheet that she was there, and that hours before the incident with Owens she had consumed "three rum and Diet cokes, two shots of tequila, one shot of Southern Comfort, and a Kamikaze."

In addition, she had occasionally blacked out in a party house in Annapolis that she rented with male and female friends. Sperm—not from Lamar Owens—was found on her comforter in Bancroft Hall. It "could have been the sperm from some guy I was with that was on that blanket," she later said. She was known to have been sexually aggressive with multiple men. Some "victim."

The assessment of all this offered by Reid Weingarten, Lamar Owens's defense lawyer, seems more than fair: "This is a case of political correctness gone totally awry. The academy's otherwise laudable effort to protect its women broke down when their charges proved to be demonstrably and palpably untrue and their target proved to be a young man of uncommon integrity, strength, and character. They tried to make Lamar a poster child, but they picked the wrong case and the wrong kid."

So when will they stop hounding him for a two-minute mistake less serious than many a blunder committed by many a successful officer?

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Stuart Taylor Jr., a contributing editor for National Journal, is teaching a course on the news media and the law at Stanford Law School.

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