In July 2016, U.S. Military Academy Cadet Jacob Whisenhunt was sentenced to 21 years in prison and discharged from the Army after being found guilty raping a female classmate as she slept in a nearby sleeping bag during Cadet Field Training at Camp Buckner. Whisenhunt's defense was that what transpired between him and the female cadet was consensual. But after a four-day trial, a jury of West Point faculty and staff found him guilty on three counts of sexual assault.
Now, an appeals court has thrown out Whisenhunt's conviction, vacating his sentence. And on Wednesday, the cadet returned to his class at West Point, according to The Associated Press.
The three appellate military judges who overturned Whisenhunt's conviction ruled that circumstantial evidence backed up Whisenhunt's defense that the act was consensual, based on the fact that the woman — identified by the initials LM — did not struggle loudly enough to alert other cadets who were sleeping nearby.
According to the Army Times, the female cadet testified that she froze when she woke up to discover Whisenhunt assaulting her, and remained in the fetal position for the duration of the intercourse. But the judges didn't seem to find that plausible.
"It is even harder to conclude beyond a reasonable doubt that appellant would anticipate that LM would not make any reflexive noise or movements upon being awakened, which would have alerted multiple others to his criminal activity," the ruling reads. "This is particularly true when there is no evidence that appellant threatened LM or took any steps, such as covering her mouth, to prevent an outcry."
In their ruling Monday, the judges also cited the fact that the female cadet could easily identify Whisenhunt as one of her classmates, and the fact that he did not attempt to clean up the semen he left behind in her sleeping bag, as reasons to believe it must have been consensual.
Whisenhunt "would have needed to anticipate that LM would not report his crimes at a later date, when the record is devoid of any evidence that LM could not identify him, that she was incapacitated, or that he had threatened or coerced her," the judges wrote. "Furthermore, appellant left his semen on LM's bivy cover, and there is no evidence that he tried to remove this evidence."
"A horrible message"
Former Air Force chief prosecutor, retired Col. Don Christensen, told CBS News the ruling sends "a horrible message."
"Their opinion is victim-blaming," he said. "It reads like something from decades ago. Their two bases for overturning the conviction — one was that the victim didn't act the way they wanted, and the other was that the accused surely wouldn't rape somebody that he knew, which shows that these three judges haven't got a clue when it comes to what sexual assault looks like. So, it's just going to send an incredibly bad message to the survivor community."
In May, a survey released by the Department of Defense revealed that sexual assault in the military hadsince 2016 — with an estimated 20,500 service members experiencing some kind of "contact or penetrative sexual assault" in 2018. While those numbers are staggering, they may still only represent a fraction of the sexual assaults that actually occur in the U.S. military, given that only about 1 in 3 service members report their experience of sexual assault to a Defense Department authority.
Col. Christensen, who now serves as the president of Protect Our Defenders, an advocacy group with the mission of ending the epidemic of military rape, believes that this ruling will dissuade future victims from coming forward.
"Even now, when they do come forward, the odds of them getting a conviction are astronomically slim," he told CBS News. "You know, there were only 108 convictions last year in the military out of 7,000 reports, and so the numbers are against them. And then, when they actually do get a conviction, to have it overturned on such flimsy logic is just going to dissuade people from doing it. It's time for Congress to act on this; to be bold. They have been too slow to do anything really aggressive when it comes to sex assault in the military."