Aberdeen Rape Trial Tests Army's Credibility

There is more at stake in the court martial starting today at Maryland's Aberdeen Proving Ground than just the fate of Staff Sgt. Delmar Simpson.

The sergeant whose case sparked the biggest sex scandal in US Army history stands trial for allegedly raping six female trainees under his command. And as the case unfolds, men and women in the armed forces will be watching the proceedings closely to determine the credibility of the Army's response to the scandal.

Some analysts warn that if the evidence against Sergeant Simpson is strong and yet he is acquitted or receives a light sentence, the case will send a powerful message that the Army isn't serious about protecting female soldiers from sexual harassment and even rape.

Others question whether Simpson can receive a fair trial at a time when senior Army officials are scrambling to prevent the scandal from reaching the proportions of the Navy's Tailhook scandal of 1991.

"It is a pattern in all services to conduct showcase prosecutions, pointing to them and saying, 'See, we are addressing and solving this problem,' " says Cathy Gilbert of the Military Law Task Force in San Diego. "This does not always make for an impartial trial."

When details of Simpson's case were disclosed in November, top Army officials announced that sexual misconduct would not be tolerated.

Experienced military defense attorneys say comments by Army Secretary Togo West and commanders may have created an atmosphere in the Army that made it impossible for the Simpson case to be treated with fairness. They say it suggests the Army has a vested interest in a conviction, rather than the impartial pursuit of justice.

"It is a huge issue," says Charles Gittins, a defense attorney who specializes in military trials.

Following initial disclosures of alleged sexual misconduct at Aberdeen, Army officials announced that there would be a full investigation. They also set up a panel to determine if any systemic problems were causing the alleged misconduct.

The action fanned the flames of scandal. A toll-free hot line set up to accept sexual-harassment and other complaints was flooded with more than 1,200 allegations of wrongdoing at military bases worldwide. Of those, 485 have prompted ongoing criminal investigations.

The scandal even touched Sergeant Major of the Army Gene McKinney, who had been assigned to the panel to study the Army's sexual harassment problem. Major McKinney, was suspended from his job in February after a female staff member, now retired, accused him of sexual harassment during an alleged April 1996 encounter in a Hawaii hotel room.

McKinney denies any wrongdoing.

In the Aberdeen case, Simpson is facing 19 counts of rape and 55 other charges of sexual misconduct. His case is by far the most serious of the 22 Army officials at Aberdeen - primarily drill instructors - accused of wrongdoing.

Simpson faces up to life in prison if convicted by the six-member military jury presiding over his court martial. The panel comprises one woman and five men.

In an unusual move, earlier this week Simpson pleaded guilty to 11 charges involving having consensual sex with trainees. In the military it is illegal for a superior to have any significant social contact with subordinates.

Some legal analysts say the plea - entered only days prior to his trial on rape charges - is a defense tactic aimed at convincing the jury that the women were willing participants, not victims of rape.

To prove rape, prosecutors must be able to show that Simpson forced the women to comply, experienced military defense attorneys say. They must also show that the women tried to resist Simpson's advances.

It remains unclear to what extent Simpson used physical force in the alleged sexual assaults. But because Simpson, as the women's drill instructor, had authority over nearly every aspect of their lives, the issue of what constitutes adequate resistance to sexual propositions could loom large.

Legal experts are divided over whether Simpson's simply asking the women to comply would constitute rape.

"It does have to be without consent in some forcible way, and it is legitimate to have rank play some role in evaluating that," says Nancy Duffy-Campbell of the National Women's Law Center in Washington.

She says similar cases have been prosecuted in civilian courts in which bosses raped female employees by mentally coercing them.

Ms. Duffy-Campbell said in a military setting such an event would constitute "physical force by rank."

"It is not enough to refuse, you are required to resist," says Mike Powell, a defense attorney who specializes in courts martial. "She has to resist as much as possible under the circumstances."

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