Case Result

Case Result

U.S. Coast Guard Member Sent to General Court-Martial for Charges of Rape, Sexual Assault, and Assault Consummated by Battery

U.S. Coast Guard Member Sent to General Court-Martial for Charges of Rape, Sexual Assault, and Assault Consummated by Battery

A Coast Guard Petty Officer’s spouse accused him of both simple assault and sexual assault after she learned of her husband’s intent to file for divorce. The couple married after just a few shorts months of dating and spent approximately five (5) years together before separating. The marriage had it challenges over the years, partly because of personality differences between the spouses and partly due their disabled child with congenital heart defects that required him to have surgeries, a feeding tube and manually administered oxygen. Several days after a 2-week long family vacation, the couple had a verbal argument about separation.

The husband revealed his desire for a divorce and asked his wife to move back to California where she was from with their son. The wife, insulted by this request, asked her husband to move out. He refused and within days, she reported to his chain of command that he raped and sexually assaulted her on the family trip while staying at his parents’ home in Idaho. She accused him of digitally penetrating her vagina after being told “no” and penetrating her with his penis after being told the same.

She also accused him of having assaulted her some years prior by barging through a locked bathroom door, grabbing her by the arm and tossing her into a wall or a door causing bruises to her arm and knee. The Petty Officer denied his wife’s accusations and maintained his innocence. He then filed for divorce.

The U.S. Coast Guard Command, based on the wife’s allegations, preferred charges against the Petty Officer for rape and sexual assault in violation of Article 120, Uniform Code of Military Justice (UCMJ) and assault consummated by battery in violation of Article 128, UCMJ. The charges were referred to trial by general court-martial.

The Petty Officer retained Attorney John L. Calcagni III to defend him against these most horrific accusations. If convicted, the Petty Officer faced possible punishment that included a Dishonorable Discharge from the service and up to life in prison. At arraignment, the Petty Officer pleaded not guilty and elected his right to a trial with a panel comprised of both enlisted and officer members. Trial lasted for one week and resulted in a full acquittal for the Petty Officer.

Trial began with opening statements. The government opened by alleging that the Petty Officer crossed boundaries in his marriage by raping and assaulting his wife. In support of these allegations, the government intended to offer testimony of the complaining wife and her friend, pictures of injuries she allegedly sustained at the hands of her husband during a prior physical altercation, and a forensic psychologist to discuss what is characterized as rape victim counter-intuitive behavior.

The defense responded in its opening statement that the Petty Officer did not committed any crimes. Attorney Calcagni characterized this case as being about a failed marriage mainly due to lack of communication between the spouses. He emphasized the lack of evidence to support the wife’s claims. He cited suspicious timing of the wife’s allegations in relation to her husband expressing his desire for a divorce.

Attorney Calcagni also pointed out her delayed accusations, character for being untruthful and the domineering role she played within their marriage. Based on these factors, he told the panel members that the government would not be able to prove the charged offenses and that the allegations did not amount to common sense.

The government next presented its case-in-chief or evidence against the Petty Officer. This consisted of three witness and a series of photographs. The government first called the wife. She testified against her ex-husband by accusing him of the charged offenses. She described things as follows: the couple met and married in California after dating for a few months. Then then moved to Louisiana where the Coast Guard reassigned her husband.

Their marriage took a down turn the moment the couple left California. She described her husband as someone who became angry very often. She said that one night while living in Louisiana she spent the night out at her girlfriend’s home. This was a spontaneous decision going to visit the friend and losing track of time. It soon became 0300 hours and was too late to return home. Her then 15-month old son was with her and had fallen asleep.

Therefore, the two of them stayed the night at the friend’s apartment and returned home the next day. When she arrived home, the Petty Officer was not there. When he returned, he confronted his wife about staying the night out with their son and not even calling to tell him of her whereabouts. He also chastised her because their son was required to be on oxygen at night while sleeping and the wife did not bring the oxygen tank with her to visit the friend.

The husband threatened to call this friend to confront her as well. The wife’s friend was their son’s home nurse. The husband believed that her actions were unprofessional on her part and he wanted to report them to her employer. Based on the Petty’s Officer’s reactions, the wife locked herself in the bathroom and used her cell phone to call the friend. She wanted to notify her friend of her husband’s reaction and expressed intention of calling her employer.

The Petty Officer learned his wife was on the phone with her friend. Upset over what had transpired, he wanted to speak with her. Because his wife was locked inside the bathroom, the Petty Officer used a credit card to gain access inside. He then demanded that his wife turn over her cell phone. When she refused, she claimed that he forcibly grabbed her by the arm and tossed her into the door. He then acquired the phone from her possession.

She described him as angry and outraged when this all occurred. The government then offered and the wife identified photos of her arm and knee, which she claimed depicted bruises that she sustained during this altercation. The wife then claimed she fled the apartment with her son. After returning some hours later, she said she threw her husband out of the house and did not allow him to return for several days.

A military protective order also issued during this time. In further support of the assault allegation, the government called as its second witness the wife’s friend. She was unable to offer any details or personal knowledge of the alleged altercation. She simply confirmed that she formerly was the son’s home care nurse, that she and the wife developed a personal friendship, and that the wife and her son stayed over one night. The next day, the friend remembered that the wife called to report that the Petty Officer was upset about the sleepover and threatened to call the nurse’s employer. While on this call, the friend could tell that the wife was upset, but the friend did not recall any other specific statements, details or aspects of the call.

On cross examination of topics related to the alleged simple assault, Attorney Calcagni quickly undermined the spouse’s allegation. First, she initially stressed that her husband was upset because of jealously with the wife’s and nurse’s friendship. Attorney Calcagni impeached and contradicted the wife on this by confronting her with past statements to investigators that her husband’s feelings were mainly rooted in his concern for their son being away from home without his oxygen.

Attorney Calcagni also softened the Petty Officer’s conduct of gaining access to the locked bathroom by establishing that he did not kick, barge, break or damage the door. As for his alleged anger, which the wife attempted to convince the panel was an uncontrollable rage, Attorney Calcagni again impeached her with another prior inconsistent statement to investigators where she characterized her husband’s anger as more of a tantrum. She further described him to investigators as someone who did not use profanity, swears, or inappropriate language.

Attorney Calcagni then pressed the wife on the bruising to her arm, as depicted in a photograph, which she alleged was from her husband’s grip during their altercation. The bruise pattern consisted of one large mark, opposed to multiple marks consistent with a hand print or fingers. Attorney Calcagni brought out that investigators asked the woman about the bruise pattern, perhaps themselves doubting the accuracy of her claim that she sustained the bruise when allegedly grabbed by her husband.

As for the phone, Attorney Calcagni established that the couple engaged in a tug of war over the phone. During this struggle, she lost her grip on the phone and fell back striking either a wall or the vanity in the bathroom. Attorney Calcagni also examined the wife about the fact that she punched her husband in the face during this encounter. He did not physically retaliate against her or even attempt to block her strike.

He simply absorbed her aggression and replied orally by asking if she intended to punch him again and telling her the two needed to discuss her actions. Attorney Calcagni finally elicited from the wife that she did not report to police or her husband’s chain of command this alleged assault. Instead, he volunteered the incident to his Command by seeking counseling for his marriage through a Family Advocacy Program.

During her direct testimony for the government, the wife also accused her husband of both rape and sexual assault. The couple was on a family vacation in Idaho. They stayed with his parents (her in-laws). They shared a spare bedroom in the parents’ home with their toddler son for the duration of the stay. The wife alleged that one night after retiring to bed, her husband wanted to have sex. She was tired and not in the mood.

He asked her repeatedly, to which she allegedly replied “no.” She admitted that they kissed or made out for a very short while and then she rolled over turning her back toward him to go to sleep. She claimed that her husband then placed his hand down the backside of her pajama pants and inside her under garments. He then began touching and inserting his fingers into her vagina. The wife claimed that she repeatedly said no to him during this process.

However, the husband continued to finger her while she lied on her side. The wife claimed that her husband than asked to enter her vagina with his penis. She told him “no.” He asked repeatedly and still she provided this same negative response. According to the wife, the husband penetrated her vagina with his penis anyhow in disregard of her wishes. He then ejaculated inside of her, withdrew his penis and rolled over to sleep. This was the sum and substance of sexual assault allegation.

Attorney Calcagni completely undermined the wife’s claim on cross-examination. He initially established that throughout the marriage, the couple’s respective desires to have sex did not always match There were times when the husband wanted sex and his wife did not. In these instances, the husband would ask or beg for sex. She would either give in by agreeing to sex, he would stop asking for sex or two of them would have an argument or fight about it.

On the night in question, they experienced one of these typical back and forth scenarios where he wanted sex and she did not. In response, he continued to ask her over and over again repeatedly. Attorney Calcagni’s main points here were that rapists don’t ask permission to have sex with their victims and that the couple had a sexual history in their marriage where though she said “no,” there was still a possibility the two would engage in sexual activity.

As cross examination of the wife continued, Attorney Calcagni set the scene with questions and supporting evidence such as photos and a diagram of the home in Idaho where this sexual activity occurred. After identifying for the panel members the house and bedroom where the couple stayed, the wife admitted that her in-laws were present in the home on the night in question. They were across the hallway in the master bedroom.

The wife estimated that the distance from the corner of the bed where she and her husband slept to the corner of the bed where her in-laws slept was approximately 15 feet. The wife admitted during questioning that though she told her husband “no” to any sexual contact, she never raised her voice with him, changed her tone or used any other language to communicate her lack of consent. She also admitted that she made no effort to otherwise verbally or physically resist his physical advances.

She was fully alert, awake, conscious and aware of her surroundings at all times. She was not impaired or under the influence of any drugs, alcohol or medication. Her husband also did not apply any force or restrain her in any way. He did not even apply his body weight to her or do anything to prevent her from getting up off of the bed. She acknowledged that she was free to get up off the bed at anytime and similarly free to walk out of or leave the bedroom. She had every ability to resist or leave, but failed to do so.

She admitted to Attorney Calcagni that though she claimed she did not want any sexual contact with her husband that night, she physically consented and allowed it to happen. She testified that after kissing and making out with him, she rolled over. He then placed his hand inside her pants and underwear and his fingers into her vagina. She claimed that he fingered her nonstop for approximately 20-30 minutes. During this period of time, she engaged in no resistance.

Her husband then pulled her pants and undergarments down and inserted his penis into her vagina. As he re-positioned himself and conducted this sexual act, the wife continued to lie next to him on the bed. Though still free to get up and leave, she chose to remain present and engaged in no resistance. The penile penetration lasted less than a minute. During questioning, the wife characterized her emotions regarding this incident as feeling surprised that this form of penetration ended so quickly. When it finished, the wife asked her husband why he touched or penetrated her when she told him “no.”

She testified that he responded “are you implying I raped you” or words to that effect. This statement established the Petty Officer’s defense of mistake of fact as to consent, even assuming the wife was telling the truth in that she did not consent that night. However, the Defense maintained that based on the totality of the circumstances, the wife did in fact consent to all of the sexual contact with her husband that night.

Attorney Calcagni spent considerable time questioning the wife on her activities during the days following the alleged rape and sexual assault. The couple spent an additional 3 nights and 4 days together at his parents’ home in Idaho. During this time, they engaged in multiple activities together. They went to an aquarium, a zoo and a power plant. Photographs offered by the defense depict the moments of enjoyment and good times that the wife experienced with her family during these occasions on these field trips. The wife also drove various recreational and construction equipment owned by her husband’s family in the days after the alleged assault. She expressed a desire to ride this equipment, which included all-terrain vehicles (ATV), a tractor and a small bobcat or skid steer. Photographs of these events also depict the wife as happy and having a good time.

The Petty Officer’s father (wife’s father-in-law), who later testified for the defense, also saw the couple playing basketball the morning after the alleged sexual assault. It appeared to him that they were having such a good time, he did not want to interrupt them. The wife also continued to share a bedroom and bed with her husband throughout the remainder of the trip following the alleged assault. This was the very same room and bed where she alleged that he raped her. The couple also visited various family members, attended dinner parties and interacted others such as the husband’s grandparents, siblings, friends and his in-laws.

Once the government rested, the defense presented its own case. Testimony from the husband’s family members corroborated the above-referenced moments. No one saw anything out of the ordinary between the Petty Officer and his wife. She appeared happy and having a good time at all times, both before and after the alleged rape. No one saw her distance herself from or avoid her husband in any way. By all accounts, they appeared close and affectionate towards one another.

When speaking with others, the wife never complained of her husband or accused him of any wrongdoing. She told his family members that things were going well between them and that they were planning to have a second child. She confirmed this plan with at least two relatives in the days after the alleged assault. As for the night of the alleged rape, the Petty Officer’s parents confirmed that they were awake lying in bed.

They heard someone get up and use the bathroom, but otherwise, did not hear any other voices or sounds. They were unaware of who got up to use the bathroom, but indicated it was either their son or daughter-in-law because no one else was in the home. Neither parent heard anything out of the ordinary nor unusual causing them any suspicion or concern. The Petty Officer’s father was the only parent home the next morning when his son and daughter-in-law got up. He did not notice anything unusual about her that morning or behavior toward her husband.

After the wife’s testimony, the government called a forensic psychologist who informed the panel of her extensive experience with testifying at trials regarding her work for rape, sexual assault and domestic violence victims. Over time working with these victims, this so-called expert witness developed a profile of what she called counter-intuitive victim behavior. She indicated that as a society, we have stereotypical behavioral expectations of rape and/or sexual assault victims. Society expects these victims to fight back or resist the attack, quickly report the assault to law enforcement, avoid their assailants and display outward signs of trauma.

However, she told the members that many victims do not resist, do not quickly run to the police, continue to have relations with their assailants and engage in normal behavior after as assault as a form of coping mechanism. Attorney Calcagni was quite dismissive of this paid, victim advocate and her bias testimony. He pointed out how the psychologist is part of the sexual assault victim advocate cottage industry and that no matter what asked, this victim advocate would provide a pro-victim response. Her entire testimony rested on one single assumption: the alleged victim is in fact a true victim telling the truth about having been raped or sexually assaulted.

Attorney Calcagni also elicited on cross-examination that in this particular case, the psychologist testified as what is called a blind expert. She never met the alleged victim, spoke with or treated her. The expert was also not familiar with the husband, the accusations against him or the specific case facts. Basically, she came to court with no knowledge of the case to put her credibility behind the wife, all for a pay check. For these reasons, Attorney Calcagni asked the panel members to dismiss her testimony in its entirety and instead to rely on their common sense to deciding the Petty Officer’s guilt or innocence.

The defense case consisted of six of the Petty Officer’s family members, all of whom testified about their observations (or lack of observations) of the wife and husband during their visit to Idaho. As mentioned above, no one saw, heard or even suspected that anything was wrong or unusual. By all accounts, the wife appeared happy and normal at all times during the trip. The family members also testified regarding their opinions that the wife was the dominant spouse within the marriage and that the Petty Officer was both an honest and peaceful person, arguably incapable of committing the acts for which he was accused.

The defense then called two additional witnesses who had no connection or familiarly with the husband, but were long-term friends of the wife. One was a man who grew up with the wife back in California. They knew each other for about 9-10 years, lived in the same town, attended the same church, and their families were friends. As they grew older, they even dated for a short while. The second witness was a woman who met the wife some years ago while on a religious mission in California.

The two forged a friendship that extended for many years. Both of these witnesses testified of their individual opinions that the wife is both a liar and an untruthful person. The defense offered this testimony as a further attack on the wife’s credibility, above and beyond the damage inflicted during Attorney Calcagni’s during cross-examination. The defense then rested.

During summation, the government argued for a conviction by simply reciting the wife’s testimony about the alleged assaults. The government cited the wife’s phone call with her friend and photos of her bruising to corroborate the simple assault claim. It then relied on the expert to explain the wife’s normal behavior following the alleged sexual assault. The prosecutor repeated the theme in opening statement that the Petty Officer crossed boundaries with his wife that no man should cross and for that he should be found guilty.

Attorney Calcagni quickly turned the tables. He reminded the members of how little they knew about the wife, especially after only hearing her testify for a few hours. He asked the members to credit the testimony of her friends who didn’t even know the husband, but yet traveled across the country at their own expense to make sure the panel knew his accuser was a liar. Attorney Calcagni reminded the members that a tiger does not change its stripes and similarly speaking, if the wife was believed to be a liar years ago by two of her friends, there was no reason to believe she was anything different today. Attorney Calcagni reminded the panel the Petty Officer’s guilt or innocence rested solely on his wife’s word.

The government offered no corroborating evidence to support her allegations. Further, the details of her testimony were inconsistent with her past statements to investigators, inexplicable, contrary to common sense and motivated by anger toward her husband for him filing for divorce. He also asked them to consider why after the divorce, the wife still pursued reconciliation.

As for the sexual assault allegations, Attorney Calcagni urged the members to conclude that they made no sense – 30 minutes of digital penetration followed by penile penetration, all the while the wife lied still, allowed it this sexual contact to happen and made no effort to resist or get away.

Then, in the days that followed, she lived and behaved normally among her family and friends, and toward her spouse through displayed signs of affection, visiting relatives, attending dinner parties, sharing quarters, riding equipment, going on field trips and planning to have a second child. Based on all of these factors and more, he urged the panel to conclude that the government had not met its high burden of proving the Petty Officer’s guilt beyond a reasonable doubt. After nearly 5 hours of deliberations, the panel agreed by returning a verdict of not guilty or a full acquittal to all charges and specifications.