U.S. Army Soldier Tried by Court-Martial for Sexual Assault (Article 120), Assault Consummated by Battery (Article 128) and Communicating a Threat (Article 134): Not Guilty
An Army Specialist was accused by his estranged wife of anal rape, physical assault and threatening to kill her. On the eve of his scheduled court appearance where he was expected to plead guilty to these offenses in exchange for a sentencing cap of 48 months of confinement, he hired Military Civilian Defense Lawyer, John L. Calcagni III, to defend him at trial by general court-martial. Attorney Calcagni shaped the man’s defense before trial by filing multiple winning motions to admit at trial evidence of other sexual behavior by the couple, both before and after the alleged attack, to establish the defenses of consent and mistake of fact as to consent. He also successfully motioned the military judge to preclude the government from offering into evidence hearsay statements by the wife to her family and friends describing the incident. At trial, as the evidence unfolded, the government’s case disintegrated. Attorney Calcagni first established background information that the couple’s marriage was on the rocks, they had known each other for a limited period, married too soon and prematurely conceived a child. He also showed through cross-examination questions that the allegations, which were reported to authorities 7 months later, were proceeded by months of consensual sexual intercourse, cohabitation as a family, phone sex, the husband’s repeated apologies, and his begging her to save their marriage. The Defense argued that much of this evidence weighed in favor of the consent defense on the basis that, as a matter of common sense, a rape victim would not be willfully living, sleeping and having sex with her attacker in the period of time that followed the attack. Attorney Calcagni then offered evidence of the wife’s evolution in sexual interests from her initially being against oral sex to regularly engaging in this practice after meeting the accused, and from initially being adverse to anal sex to telling her husband one day they could try the practice, and thereafter, regularly allowed him to lick her anus and rub his penis in between her buttocks. Lastly, Attorney Calcagni managed to capitalize on the government’s offered portions of the Soldier’s confession. This showed that he fully cooperated with the Criminal Investigations Division (CID), admitted to the sexual encounter with his wife, and truthfully, that he attempted to initiate anal sex, but when she opposed it, he immediately stopped, as required of him by the law. The Soldier’s account was further consistent with the lack of any physical evidence or injury to support the charge of anal rape. This collective evidence, coupled with the woman’s inappropriate courtroom attire, feigned emotion and drama, incredible statements and attempt to conceal evidence favorable to the Defense from the court-martial, all of which Attorney Calcagni artfully brought out with his questioning, caused the military panel to reject the wife’s claims against the Specialist. The panel, consisting of one Lieutenant Colonel, one Major and three Sergeants Major, returned a verdict of not guilty to all charges and specifications.