August 26, 2016 at 10:44 am EDT | by Lou Chibbaro Jr.
Gay Air Force lieutenant found not guilty of sexual assault
Josh Seefried, gay news, Washington Blade, OutServe, SLDN

Gay Air Force Lt. Joshua Seefried was found not guilty of all charges related to a 2012 allegation of sexual assault. (Washington Blade photo by Michael Key)

A military judge on Thursday found gay Air Force Lt. Joshua Seefried not guilty of all charges stemming from a 2012 incident in a New York Hotel room in which he was accused by a fellow gay service member of sexual assault.

The verdict followed a four-day court martial proceeding at Andrews Air Force Base in Camp Springs, Md., in which Seefried was on trial more than two years after being charged in April 2014 with wrongful and abusive sexual contact and forcible sodomy based on allegations by a gay U.S. Marine.

The Marine, who was honorably discharged from the service last year, acknowledged during four and a half hours of testimony on Monday that multiple witnesses saw him and Seefried hugging, kissing and fondling one another in a hot tub in the hotel’s spa.

The judge, Air Force Lt. Col. Andrew Kalavanos, announced his verdict one hour after the opposing lawyers delivered their closing arguments at the conclusion of a four-day trial that began on Monday, indicating he quickly determined the charges against Seefried didn’t have sufficient weight to result in a conviction.

Seefried had waived his right to a jury trial, choosing to have the judge render the verdict as well as preside over the trial.

“We are very thankful and relieved about the verdict, and obviously believe it was completely supported by the state of the evidence and testimony in the case,” said Richard Stevens, Seefried’s civilian defense attorney.

“Moreover, it was wholly consistent with the actual truth about what happened on the night at issue,” Stevens said. “Josh has been through a lot over the past few years dealing with these false allegations, and I’m so relieved for him that he can, hopefully, get on with his life and start to rebuild his reputation after the weight of these accusations has been lifted.”

The gay Air Force lieutenant has been a prominent advocate for the rights of LGBT people in the military. He was the co-founder in 2010 of the LGBT military advocacy group OutServe.

Lt. Col. Brus E. Vidal, Public Affairs Director for the Air Force District of Washington, told the Washington Blade in a statement the case came down to whether the charges could be proven beyond a reasonable doubt.

“After considering the evidence and the arguments presented by both the prosecution and the defense, the military judge determined that the case was not proven beyond a reasonable doubt and found 1st Lt. Seefried not guilty of all charges,” Vidal said. “In this court-martial, as in every court-martial, the government must prove its case beyond a reasonable doubt.”

Both Seefried and the former Marine, who remained in the courtroom as an observer after he completed his testimony, declined to comment on the verdict. Friends said Seefried plans to release a statement soon.

The former Marine stated repeatedly during his testimony that he was too drunk to consent to sex in the hot tub, a nearby steam room, and a short time later in Seefried’s hotel room. He insisted he was the victim of a sexual assault, even though at least three witnesses testified he willingly participated in sexual encounters with Seefried and a then Coast Guard officer at the hotel.

Stevens argued that testimony and statements by witnesses and recorded interviews with the then Marine conducted by military investigators show that he initially believed he had consented to the sexual trysts at the hotel based on conversations with his friends who saw him in the hot tub.

Stevens noted in his closing argument on Thursday that the then Marine suddenly decided he was sexually assaulted several weeks later after a friend studying to be a psychologist told him he most likely had been raped and should report the incident to military authorities. Upon reporting the incident he named the Coast Guard officer, Lt. Commander John Fiorentine, as the perpetrator and didn’t accuse Seefried until three months later.

Military prosecutors later dropped sexual assault charges against Fiorentine in connection with the Marine’s earlier allegations. Fiorentine was among the witnesses at the trial this week who testified that the former Marine was a willing participant in a sexual encounter with him and Seefried in Seefried’s hotel room in May 2012.

According to information that surfaced in several pre-court martial hearings, Seefried, the then Marine, and Fiorentine were among seven gay junior military officers from across the country that came to New York City in May 2012 to participate in Fleet Week, an annual event in which Navy ships dock in a major U.S. city.

Most of the gay officers, including the then Marine, were members of OutServe and were also celebrating the repeal a few months earlier of the ‘Don’t Ask, Don’t Tell’ law and their behind-the-scenes efforts to push for its repeal.

In his testimony on Monday, the former Marine said he became highly intoxicated on the afternoon of May 26, 2012 when he joined his fellow officers for brunch at a Manhattan restaurant, where he said he consumed as many as eight or more mimosas.

He testified that from the time he consumed his last few drinks at brunch to the time he woke up groggy and confused in Seefried’s hotel room several hours later he had no memory of what happened. Among the things he had no recollection of, he told the judge, were the stories his friends told him of him and Seefried engaging in sex in the hotel hot tub and steam room.

In his closing arguments the lead prosecutor in the case, Air Force Capt. Peter Havern, pointed out that the former Marine testified that he regained his memory upon waking up in Seefried’s hotel room and recalled Seefried performing oral sex on him. The former Marine testified that he did not outwardly object or ask Seefried to discontinue the sexual encounter, saying he remained silent while lying on his back and crossing his arms.

“Silence, your honor, is not consent,” Havern said in his closing argument. “The defense says because nothing was said it was consent. That is not true,” he said.

The former Marine testified that the oral sex took place after he awoke in the room and discovered all he was wearing was a shirt and he could not find his pants, underwear or his cell phone. Saying he was still intoxicated, he testified in response to questions by Havern that he felt trapped in the room, with Fiorentine, who was also in the room on the bed, and Seefried appearing to be interested in having sex with him.

He was not interested in having sex with them, he testified, saying that he didn’t find either of them physically attractive.

Defense attorney Stevens, in cross examining the former Marine, pointed out that he later testified that Seefried loaned him a pair of shorts to enable him to leave the room to search for his phone and clothes and while searching had a conversation with a hotel security guard before returning to Seefried’s room.

In his closing arguments, Stevens said the claim by the former Marine and prosecutor Havern that the former Marine was trapped in the room was “absurd,” noting that the former Marine testified that Seefried never forced him to stay in the room or threatened him in any way.

Stevens also pointed out that the former Marine further testified that Seefried immediately backed away after allegedly positioning himself to engage in anal intercourse with the then Marine after the Marine pushed him away and moved to the opposite side of the bed. Stevens noted this was the only time that the former Marine acknowledged making any gesture to show he wasn’t interested in having sex with Seefried and Seefried immediately complied with his signal of disinterest.

Although the former Marine testified he had no recollection of him and Seefried engaging in anal intercourse, military authorities later cited the former Marine’s statement to investigators and a nurse specializing in sexual assault injuries that he discovered upon returning to his own hotel room after leaving Seefried’s room that there was lubricant in and around his rectum.

Several days later, he also reported suffering from rectal pain and irritation, leading him to believe that he had been penetrated while in Seefried’s hotel room. Those complaints eventually led to the forcible sodomy charge against Seefried.

But during the trial, the nurse who examined the then Marine following his reporting of rectal pain testified that her examination could not confirm that his rectal pain was caused by anal penetration. She said it could have been caused by an unrelated medical condition.

“I felt sorry for the government lawyers,” said Los Angeles attorney Tom Carpenter, a former Marine who became friends with Seefried after meeting him through OutServe. “They did not have the facts to support their asking for a guilty verdict. I think the problem was they were forced to do this.”

Carpenter was referring to concerns raised by Seefried’s LGBT activist friends who believe high-level Air Force authorities decided to prosecute Seefried knowing the evidence in the case was weak out of fear of political repercussions. They note that Seefried’s case came at a time when all branches of the military have come under fire for not being aggressive enough in prosecuting sexual assault cases.

“I think what’s going on here in the Air Force in particular is there have been a number of generals who have lost their careers [for not prosecuting sexual assault cases] and I think these convening authorities are afraid that if they don’t proceed to court martial in these sex offense cases it will adversely affect their careers,” Carpenter said.

Matt Thorn, executive director of OutServe-SLDN, the successor group to the original OutServe, released a statement announcing Seefried’s acquittal.

“We respect Lt. Col. Kalvanos’ judgement and deliberation on this case and are appreciative that this unusually long case has finally reached a conclusion,” Thorn said. “We hope that with this conclusion we are able to move forward.”

Gay activist Lane Hudson, another friend of Seefried’s, said the case has taken a “huge toll” on Seefried professionally and personally.

“It’s just a shame that it had to come to this point because there was no evidence to substantiate the charges,” Hudson said. “And Josh is not going to be able to get back the four years of his life that were just wasted.”

Lou Chibbaro Jr. has reported on the LGBT civil rights movement and the LGBT community for more than 30 years, beginning as a freelance writer and later as a staff reporter and currently as Senior News Reporter for the Washington Blade. He has chronicled LGBT-related developments as they have touched on a wide range of social, religious, and governmental institutions, including the White House, Congress, the U.S. Supreme Court, the military, local and national law enforcement agencies and the Catholic Church. Chibbaro has reported on LGBT issues and LGBT participation in local and national elections since 1976. He has covered the AIDS epidemic since it first surfaced in the early 1980s. Follow Lou

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