The Air Force wants to resolve one scandal by creating another. Since the Air Force Academy rape controversy broke in January, the service has been working feverishly to control the damage. It scrupulously owned up to mishandling the rape accusations, mandated a barrage of reforms to improve the school's climate, and installed a tough new academy regime to enact its agenda. Then it started criminal proceedings against some of the accused—that's where it went terribly wrong.
Last week the academy's newly installed, get-tough Commandant Brig. Gen. Johnny Weida announced the first court-martial arising from the scandal. Sophomore Douglas Meester is charged with rape, forcible sodomy, indecent assault, and providing alcohol to a minor. He faces two life sentences if convicted on the most serious charges.
But Meester appears increasingly like a convenient scapegoat. After Meester's Article 32 hearing in May—the military analogue of a grand jury—the presiding investigating officer found the charges so flimsy that he recommended the court-martial be scuttled. And Weida's own legal adviser, Staff Judge Advocate Col. James Moody, advised the commandant of the court-martial's futility in a June memo: "To be frank, the rape and forcible sodomy charges are unlikely to result in findings of guilty." Yet he curiously recommended court-martial anyway. (Moody's statements were leaked to the Colorado Springs Gazette and independently confirmed by Slate.)
No wonder the military lawyers are dubious. The case against Meester is weak: Two cadets got really drunk and had sex. She regretted it in the morning; that made him a rapist.
This was not a gangbang or an ambush. There was no accusation of premeditation to get her drunk and take advantage. The "victim" testified in open court that she never recalls protesting in any way. Instead she described flirting with Meester and his buddy Robert Rando, sitting in Rando's lap, "clinging" to Rando, and exchanging body shots with both. She initiated one body shot and chose to lick Rando's chest rather than his neck. When Meester began to kiss her, she said she kissed back.
After about six tequila shots and one mixed drink, she was "falling over like a rag doll." But by this time, Meester and Rando were both convinced she was interested, and Rando thought she would come back to his room. When Rando left to coax his roommate out, Meester seized the opportunity. He undressed her, drew her into bed, and engaged in oral, anal, and vaginal sex. She described drifting in and out of consciousness once things got going. Investigators estimated her blood alcohol content at 0.19 percent, his at 0.17 percent. When investigators questioned her a few days later, she said in a sworn statement, "I know for a fact that he probably thought what we were doing was consensual."
If getting drunk and hooking up is illegal, then half the college population in America should be remanded into custody. On any other campus, prosecuting a student for doing what Meester did would have provoked an outrage. But the academy has been so humiliated and demoralized that no cadet or faculty member would dare step forward to defend the accused. They would be crushed by the media as rape deniers. The perception inside the academy is get tough or get crucified.
The painful irony is that the Meester show trial has emerged from a bona fide soul-searching by the Air Force and a sincere effort to re-instill core values. Meester broke academy rules and he should be punished. In addition to behaving like a louse, he is clearly guilty of fraternization with a freshman, drinking in the dorms, and providing alcohol to a fellow minor. Based on current standards, he deserves a slew of demerits, several marching tours, and a period of restriction to barracks. Instead, he is facing life behind bars. Even if he beats the rape charge, he could get two years just for sharing the tequila.
Meester's show trial isn't likely to commence until the fall, but its germination can be traced back to January, when the academy reacted so feebly to the budding scandal. Female cadets charged they had been literally raped by their wingmates and symbolically raped by commanders, who ignored their charges and even punished the victims. The generals responded petulantly and paid for it dearly. The more they protested, the more they cemented the central narrative of the story: Academy brass was apathetic about rape. The corollary suggested that women were still second-class cadets. A group of congresswomen issued a statement charging a "culture of rape." The academy is still struggling to reverse that impression.
As the scandal escalated, the Pentagon assumed command of the academy, sacking the leadership, rewriting cadet rules, and installing a new team to get tough on offenders. But until Meester's May hearing, not one of the accused cadets paraded through Time, the New York Times, or 20/20 this spring had been charged. Somebody had to get locked up.
Rape cases are notoriously tough to prosecute—particularly he said/she said situations—but the academy is determined to prove it's trying, and that may be the real motive for the Meester trial. Air Force Secretary James Roche told reporters at a May 28 academy press conference that he had directed commanders here to pursue Article 32 hearings more aggressively.
Gen. Weida is not discussing his Meester decision, but one factor in the commandant's push for prosecution may be the belief that military discipline sometimes requires a scapegoat. In a military unit, it may sometimes be more important to set an example than worry too much about an individual cadet—especially one who has clearly misbehaved. Two leading military law scholars, Duke law professor Scott Silliman and National Institute of Military Justice President Eugene Fidell, said commanders are not expected to render their decisions entirely on the merits of the case. "It is absolutely appropriate for the commander to look at the impact of the decision on the entire unit," Fidell said. "Particularly with regard to the issue of discipline."
In other words, it is reasonable to court-martial an innocent man just to send a message to the troops. Fortunately, the officers Weida will appoint as Meester's jury are not under the same stricture as Weida. They are not supposed to consider the unit or the academy's reputation, only the facts of the case. Those facts are ugly, but not grounds for ending a young man's life.