A U.S. Coast Guard officer thought to be a lead prosecution witness in the sexual assault case against gay Air Force Lt. Joshua Seefried testified at a military hearing on Wednesday that Seefried’s accuser was a “willing participant” in a three-way sexual encounter with him and Seefried at a New York hotel room in 2012.
Coast Guard Lt. Commander John Fiorentine’s Jan. 28 testimony came at a reopened pre-court martial proceeding known as an Article 32 hearing for Seefried at Andrews Air Force Base.
Among other things, he said he, Seefried and the Marine – who has the rank of 2nd lieutenant and who’s the alleged victim in the case — ended up in Seefried’s Manhattan hotel room on May 26, 2012 after a day of heavy drinking and socializing at a restaurant with other gay military officers.
“We got into bed – the three of us,” Fiorentine said in response to a question by Capt. Robert Collins, one of the Air Force prosecutors in the case.
“Can you describe what happened next?” asked Collins.
“Non-penetrative sexual contact between me and Josh and [the Marine],” Fiorentine replied.
“Were you all three nude?” asked Collins.
“Yes,” said Fiorentine.
“It’s very hazy,” he continued. “Heavy kissing between Josh and myself and [the Marine] – oral sex with Josh and [the Marine] and me…At some point I pass out and fall asleep.”
Seefried, the Marine and Fiorentine were among a group of seven gay military officers stationed in different parts of the country that traveled to New York that weekend to celebrate Fleet Week, an annual event in which Navy and Coast Guard ships dock in a major U.S. city. They were also celebrating the repeal of the ‘Don’t Ask, Don’t Tell’ law.
Seefried several years earlier founded OutServe, a group of then closeted gays in the military who worked behind the scenes to lobby for the repeal of the ‘Don’t Ask, Don’t Tell’ law. Several of the other gay officers who gathered in New York for Fleet Week, including the Marine, knew Seefried through his work with OutServe, people familiar with the case have said.
In response to questioning by defense attorney Richard Stevens, Fiorentine testified at the hearing on Wednesday that he later witnessed what he believed to be a consensual sexual encounter in the hotel room between Seefried and the Marine after the earlier three-way encounter.
He said the second encounter took place after the three men slept in the bed for a few hours and after he got out of bed to take a phone call from his former boyfriend.
Just before he left the room, he testified, he saw Seefried “stimulating” the Marine and placing the Marine’s penis on his [Seefried’s] anus.
“I believe [the Marine] was a willing participant,” he said in response to a question by defense attorney Stevens.
Seefried, through his attorney, has so far exercised his right not to make statements about the allegations against him. Gay activist Lane Hudson, a friend of Seefried’s who attended Wednesday’s hearing, said Seefried was hopeful that his name would be cleared either through a favorable recommendation by the investigative officer presiding over the reopened Article 32 hearing or in a subsequent court martial.
The Marine initially accused Fiorentine of sexually assaulting him in the hotel room after returning to his military base in Hawaii. An Air Force investigating officer conducting an Article 32 hearing for Fiorentine found insufficient evidence to take the case to court martial, and authorities dropped the case against Fiorentine.
The Marine then accused Seefried, a prominent advocate for the rights of gays in the military, with performing sexual acts on him in the hotel room, saying he was intoxicated and unable to give consent.
Last year, two years after the alleged incident occurred, Air Force authorities charged Seefried with wrongful sexual contact, forcible sodomy and abusive sexual contact in connection with the Marine’s allegations.
Sources familiar with the case said the Marine told investigators that he became so intoxicated at the New York restaurant that he had no memory of how he got from the restaurant to Seefried’s hotel room and what had happened until he woke up naked in the bed with Seefried and Fiorentine.
Fiorentine, in his testimony on Wednesday, disputed the Marine’s claim that he was incapable of consenting to the sexual encounters. In response to questions from both Stevens and prosecutor Collins, Fiorentine said at no time while he was in the hotel room did he participate in or witness any acts of “anal penetration.”
The others present at the restaurant reportedly told investigators that at Seefried’s invitation most of them, including the Marine and Fiorentine, walked about a mile from the restaurant to Seefried’s hotel and continued socializing at the hotel’s spa and hot tub. Some of those who went to the spa and hot tub area told investigators they saw Seefried and the Marine “making out” in the hot tub in what appeared to be a consenting display of affection, sources familiar with the case have said.
The Marine reportedly told investigators that when he later woke up in Seefried’s room he could not find all of his clothes or his cell phone and felt he had no choice but to stay in the hotel room until he contacted others to find out where his cell phone was.
Sources familiar with the case say that the Marine testified at the first Article 32 hearing for Seefried in August that at some point he got partially dressed and left Seefried’s room to look for his phone. Fiorentine testified on Wednesday that the Marine approached him in the hotel lobby area to ask him if he knew where he could find his phone.
Fiorentine testified on Wednesday that he told the Marine to look in the area of the spa and hot tubs, which is where he said the Marine was prior to joining him and Seefried in Seefried’s room.
During their conversation at that time, Fiorentine testified on Wednesday that the Marine appeared alert and wasn’t showing any obvious effects of being intoxicated.
But the Marine told investigators that he then returned to Seefried’s hotel room, used Seefried’s iPad to try to track down his phone before getting back into bed – all while still in a state of intoxication.
It was at that time, while in bed, that Seefried allegedly performed oral sex on him without consent and placed his [the Marine’s] penis on Seefried’s anus, according to statements he made to investigators.
Sources say the Marine reportedly told investigators that he believes he showed his unwillingness to participate in the sexual encounter with Seefried by lying still on the bed without saying anything.
Similar to Fiorentine’s case, the investigating officer presiding over an Article 32 hearing for Seefried last August concluded that insufficient evidence existed to obtain a conviction in a court martial. The investigating officer, Col. Robert Preston, recommended that the case not be brought before a court martial. Preston also presided over Wednesday’s reopened Article 32 hearing.
In an action considered controversial, Major General Darryl Burke, commander of the Air Force District of Washington, overruled Preston’s recommendation and ordered that the case go to trial in a court martial, which was scheduled for Jan. 26.
The court martial was postponed indefinitely in December after an Air Force judge granted a motion introduced by defense attorney Stevens to reopen the Article 32 hearing to give the defense an opportunity to question Fiorentine.
Fiorentine invoked his right to refuse to testify on grounds of self-incrimination at Seefried’s initial Article 32 hearing in August after Burke refused his request for immunity from prosecution over statements he would make if he testified at the proceeding.
Burke has since granted him that immunity, enabling him to testify at the Jan. 28 hearing at Andrews.
Under an agreement with prosecutors and the defense, Preston closed part of the Jan. 28 hearing to the public so that matters deemed improper for public disclosure, such as private information pertaining to witnesses or the Marine, could be discussed. The closed part of the hearing lasted about 40 minutes.
Preston said he wanted to wait until a full transcript of the hearing was completed before making his recommendation on whether or not the case should go to court martial.
Similar to the earlier Article 32 hearing for Seefried, Gen. Burke is charged with making a final decision on whether to follow or reject Preston’s decision on whether the case should go to court martial.
At a hearing in December in which the defense moved to reopen the Article 32 hearing to listen to Fiorentine’s testimony, attorney Stevens questioned Burke over whether his decision to take the case to court martial was due to outside political pressure. Stevens noted that at least two Air Force generals in the past few years had lost their jobs after they decided against bringing an Air Force member charged with sexual assault to a court martial.
Burke, who testified by a phone hookup, said he based his decision to take the case to court martial on advice from military lawyers, but acknowledged that he was aware of the concerns raised by members of Congress and others that the military may not have been prosecuting sexual assault cases aggressively enough.
Among other issues raised by Preston at the time of the August hearing were statements by the other gay officers who had been with the Marine at the restaurant and later at the spa and hot tub at the hotel where Seefried had been staying, that the Marine asked them what he had been doing. Preston reportedly stated in his Article 32 recommendation that it could not be clearly determined whether the Marine’s account of what happened was based on his own observations or potentially faulty information he obtained in talking to others.
Preston reportedly also said in his report that the Marine, who had a security clearance, could possibly have claimed he was sexually assaulted to deflect attention away from regulations that could lead to revocation of his clearance on grounds of improper behavior such as intoxication.
According to Fiorentine, he witnessed the later sexual encounter in the hotel room between Seefried and the Marine after he was awakened by a phone call from his ex-boyfriend. He said he got out of bed, got dressed and was about to leave the room. He said his former boyfriend reminded him of a commitment he made to visit his parents, who live in the New York City area.
While acknowledging that the Marine, like he and Seefried, had consumed an unknown number of mimosas at the restaurant earlier in the day, he testified that the Marine “was not passed out” and appeared to be alert during the sexual encounters in the hotel room.
Capt. Collins, the prosecuting attorney, repeatedly pressed Fiorentine at Wednesday’s hearing on whether Seefried could have engaged in sex with the Marine while he was either asleep or out of the room.
He also pressed Fiorentine on whether he witnessed “anal penetration,” which must be proved in order to uphold the forcible sodomy charge pending against Seefried.
“Do you remember penetrating [the Marine] or Lt. Seefried?” Collins asked him.
“No, I don’t remember penetrating them or they penetrating me,” he said.
“Do you recall Lt. Seefried penetrating [the Marine]? Collins asked.
“No, not at that moment,” Fiorentine replied.
Upon further questioning by both Collins and Stevens, Fiorentine acknowledged that Seefried and the Marine could have engaged in sex while he was either asleep or after he left the hotel room.