The Washington Blade has learned the officer who is investigating sexual assault allegations against a gay service member has once again recommended the case not be brought to court martial.
Sources familiar with the case against Air Force Lt. Joshua Seefried told the Blade that Col. Robert Preston issued his recommendation because of questions he has about his accuser’s credibility and what he described as a lack of evidence to convict the gay lieutenant.
Military prosecutors last year charged Seefried with wrongful and abusive sexual contact and forcible sodomy after a gay U.S. Marine alleged he performed sexual acts on him in a New York hotel room in 2012 while he was intoxicated and unable to give legal consent.
Preston, who presided over an Article 32 hearing on the case last September that is similar to civilian grand jury proceedings, recommended it should not proceed to trial by court martial because the lack of evidence would likely lead to Seefried’s acquittal.
Major Gen. Darryl Burke, commander of the Air Force District of Washington, disregarded Preston’s recommendation and ordered the case go to trial in a court martial at Joint Base Andrews.
U.S. Coast Guard Lt. Commander John Fiorentine during a Jan. 28 hearing testified that the alleged victim was a “willing participant” in a three-way sexual encounter between him and Seefried in his New York hotel room.
“We got into bed — the three of us,” Fiorentine told Air Force Capt. Robert Collins, one of the prosecutors in the case, as the Blade previously reported.
Fiorentine had been seen as a lead prosecution witness in the case against Seefried, but he told defense attorney Richard Stevens that he saw the gay lieutenant “stimulating” the alleged victim and placing his penis on his anus before leaving the room to talk on his phone.
“I believe [the Marine] was a willing participant,” Fiorentine told Stevens.
Seefried in 2010 founded OutServe, a group of then-closeted LGBT service members who helped lead the effort to repeal “Don’t Ask, Don’t Tell” the same year.
Air Force Maj. Joel Harper of the Air Force District of Washington confirmed to the Blade that Preston “finalized his addendum to the investigation report.”
“The next step in the judicial process is for the general court-martial convening authority to review the addendum,” Harper told the Blade. “That has not yet occurred.”
Lane Hudson, a Washington-based LGBT rights advocate who is a friend of Seefried’s, urged Burke to respect Preston’s recommendation not to bring the case to court martial.
“Given that the prosecution’s case has gone from bad to worse, it’s hard to see any logical reason for General Burke to override the investigating officer’s second recommendation of not proceeding to a court martial,” Hudson told the Blade. “If he ignores a well-founded recommendation again, then it raises some very serious questions.”