By Joel Warner
By Michael Roberts
By Alan Prendergast
By Michael Roberts
By Michael Roberts
By Amber Taufen
By Patricia Calhoun
By William Breathes
While being questioned on the stand, Lisa couldn't remember every detail of that night, and Max's defense attorneys used that to their advantage. "This case should end right here," lead defense attorney Captain James Williams argued. "The details she remembers are selective. She doesn't remember anything that would reflect poorly on her."
Lisa later learned through her own research that people who have experienced a traumatic event often don't remember details until much later, and she wondered why the prosecuting attorneys hadn't brought in any experts to talk about post-traumatic stress. Although much ado was made of the many drinks she'd had at the party, the academy's own regulations for dealing with sexual-assault victims state that "consent is not given where there is force, threat of force, coercion, or when the person is alcohol-impaired, underage, or unconscious."
The fact that Lisa didn't fight back was also used against her by the defense attorneys. "They ripped me apart for not screaming or kicking or hitting Max. And they said that because I'm Catholic and was a virgin, I was having regrets about that night, and that that's why I made the accusation," Lisa says. "That doesn't make sense. If I wanted to protect myself, I wouldn't have gone public like this."
Lisa's name didn't appear in news reports about the hearing, but she was nevertheless hurt by the coverage. The Gazette, in particular, she says, made her sound like a drunken floozy. The lead of one article in the Colorado Springs paper started out this way: "She was drunk, thought he was cute and followed him into a darkened bathroom, where they stripped, kissed and fondled."
With her image tarnished in both the hearing and the press, Lisa began to wonder whether the outcome would be favorable. Max was present for the daylong hearing but didn't testify. And the prosecutors didn't call all of the witnesses who supported Lisa's story, nor did they enter the rape kit into evidence.
"The Article 32 hearing is not a trial, so the prosecution, a lot of times, will not bring all the evidence forward, and there are various reasons for that, some of it tactical, having to do with trial," Major Shifrin explains. "You might not want to have all the evidence there for the defense to pick apart."
The same goes for witnesses, he adds. "If the same information can come from one witness, then the prosecution will sometimes make the decision not to bring the other witnesses forward to avoid giving the defense a preview of what the trial is going to be all about."
About a week after the hearing, Lisa's nagging doubts were proven right: The investigating officer recommended against a court martial. Lisa wanted to know the officer's reasons and filed a Freedom of Information Act request for all documents pertaining to her hearing, but the officer's comments were redacted from the file. "Once all the evidence was reviewed by the Article 32 investigating officer, it was the opinion of that officer that the government would not be able to prove the case at trial," Major Shifrin explains, adding that Lisa was denied the officer's comments because "the opinions of the investigating officer are protected by several privileges, including an attorney-client privilege and an investigative privilege under the Freedom of Information Act."
Lisa decided to talk to the commandant of cadets, Brigadier General Silvanus "Taco" Gilbert, because it was up to him to decide whether to hold a court martial. Gilbert agreed to meet with Lisa but wouldn't allow her CASIE advocate to attend; however, Michael Freimann, an attorney representing the academy, was present. "I told him that I wanted the cadet wing to know that this type of behavior is wrong and for the Air Force to say it's wrong. They say they have a zero-tolerance policy for sexual harassment and assault, and this was their chance to prove it," Lisa says. "He looked at me and said, 'I want the cadet wing to know that your behavior that night was wrong and won't be tolerated.'
"He said he has two daughters and three sisters, and that they would never behave like that. I kept saying that it wasn't my fault, and he said that any other guy would have done the same thing! He said, 'If I had my way, you'd be marching tours right next to Cadet Rodriguez.' I was so flabbergasted that my commanding officer would say those things to a victim," Lisa continues. "The attorney was sitting there the entire time and didn't say a word. The general also gave me an example. He said, 'Say I wanted to visit Israel tomorrow, and when I'm over there, I get shot. No one would say I deserve to be shot or that I wanted to be shot, but -- then he smacked his head -- what was I thinking?' I just sat there with my mouth open. I couldn't believe it. I kept looking at the attorney like, 'Help me out here.'"
Finally, she says, Gilbert told her she was accountable for her actions that night and "didn't have to go to that party, didn't have to drink that night, didn't have to play the card game and didn't have to follow him back into that bathroom. I said, 'You know what, Sir? He didn't have to rape me.'"