Image: Getty

In 2017, West Point Cadet Jacob Whisenhunt was found guilty of raping his classmate while she was sleeping. But now, Whisenhunt’s free—and able to return to West Point–because three military male judges on an appeals court panel find it hard to believe that a rape victim would be quiet during an assault.

Two years ago, over the course of four days, a jury of six West Point staff and faculty heard testimony from a woman who said that on a night in July, 2016 she woke up to Whisenhunt assaulting her in her sleeping bag. She said she froze, then curled in the fetal position as he continued to rape her. Whisenhunt, who testified that the sex was an escalation of “consensual touchings,” was found guilty. He lost his pay, was discharged from the Army, and was sentenced to 21 years in prison.

Advertisement

In the military community, which has a history of mishandling rape allegations, the ruling was applauded as a rare win for survivors of sexual assault. An estimated one on four women and one in three men are assaulted by someone in the chain of command in the military, yet 81 percent of crimes go unreported. Of those who do choose to report, only about seven percent of cases go to trial, and three percent gain convictions.

“This verdict and sentence represents the integrity of a process,” said then-U.S. Military Academy spokesman Lt. Col. Christopher Kasker in a statement at the time. But on Monday, three military male judges on an appeals court reversed the ruling, arguing that because the attacker didn’t try to conceal his identity, because the woman didn’t loudly fight him off, and because he left his semen intact at the scene, the victim’s testimony was not compelling enough. In other words, the judges applied every myth of what constitutes sexual assault to the case, and used it to free a man accused of rape.

Advertisement

“We have carefully reviewed the evidence and, taking into consideration that the panel saw and heard the witnesses and we did not, we nevertheless conclude that appellant’s convictions are factually insufficient,” the decision reads.

“It is even harder to conclude beyond a reasonable doubt that appellant would anticipate that [the victim] would not make any reflexive noise or movements upon being awakened, which would have alerted multiple others to his criminal activity,” the ruling reads.

Advertisement

“Their opinion is victim-blaming,” Former Air Force chief prosecutor, retired Col. Don Christensen told CBS News. Christensen now serves as the president of military sexual assault survivor advocacy group Protect Our Defenders. “It reads like something from decades ago.”

The tragic turn in this case shows that the military is still very much in the midst of a sexual assault epidemic, and the entire system has a long, long way to go. Shame on these judges.