Judges Toss West Point Rape Conviction: No One Heard Her Struggle

REUTERS/Mike Segar
REUTERS/Mike Segar

A cadet who was sentenced to 21 years in prison for raping a sleeping classmate has reportedly returned to the school after three military judges overturned his conviction.

Jacob Whisenhunt was in the class of 2019 when he allegedly attacked a female cadet in her sleeping bag during Cadet Field Training at Camp Buckner on July 7, 2016. The Nebraska native was convicted in May 2017 by a jury of six West Point staff and faculty. A spokesman for the U.S. Military Academy confirmed Whisenhunt’s return on Wednesday to the Associated Press.

On Monday, a panel of three U.S. military judges ruled that the intercourse could not be considered rape beyond a reasonable doubt because there were so many squad mates in “close proximity” and the victim did not make any noise or audibly struggle hard enough, “which would have alerted multiple others” to the alleged rape. The judges’ ruling was first reported on Wednesday by the Military Times.

“It is hard to conclude beyond a reasonable doubt that [Whisenhunt] could complete the charged offenses without cooperation or detection,” the panel wrote. “There is no evidence that appellant threatened [the victim] or took any steps, such as covering her mouth, to prevent an outcry.”

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The judges also wrote that their belief was supported by the fact that Whisenhunt didn’t try to hide his identity and then left his semen on the woman’s sleeping bag. “There is no evidence that he tried to remove this evidence,” the panel said. The judges said they did not believe Whisenhunt would have so brazenly attacked a female cadet without hiding his identity or removing the evidence.

“To be convinced of appellant’s guilt, we would have to conclude beyond a reasonable doubt that the sexual acts could plausibly occur (and would not be discovered) without active cooperation from both parties,” the judges wrote.

During the trial, according to the Army Times, the woman said she froze when she awoke to find Whisenhunt penetrating her with his finger and then with his penis—and that she “remained frozen in the fetal position during the entire assault.”

Whisenhunt, meanwhile, reportedly testified that the sex was the result of “escalating and consensual touchings.”

At the time of Whisenhunt’s conviction, West Point spokesman Lt. Col. Christopher Kasker said the 21-year sentence “reflects the seriousness of the crimes of sexual assault and rape.”

Retired Air Force Col. Don Christensen, who serves as the president of advocacy group Protect Our Defenders, which aims to give a voice to survivors of sexual assault, noted that the judges’ ruling sets a legal precedent within the Army and called the written opinion “victim-blaming.”

Christensen said he believes the case will negatively affect the rate of survivors coming forward.

“There are so few convictions in the first place in the military,” he added. “Last year there were 108 convictions for sexual assault or rape in the military out of over 6,000 reports. So it’s really disheartening to see a conviction overturned on the whim of judges who weren’t even there for the trial.”

“These judges are out of touch and see themselves as the last bastion against political correctness, versus looking at the legal issues,” he continued. “It’s becoming more common for the service courts to overturn these cases on factual sufficiencies.”

“Most civilian courts do not have this authority, and that’s for a reason,” Christensen added.

Incidents of sexual assault and unwanted sexual contact at American military academies have increased by 47 percent since 2016, the Pentagon announced in January.

Most of those allegations came from West Point, which saw an increase in sexual-assault reports for the fourth year in a row, according to the report.

There were 50 cases reported in the 2017-2018 school year, compared with 26 complaints made during the 2015-2016 school year.

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