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Woman who alleged rape faces court-martial

There was beer. There were many shots of liquor. And there was sex.

But that’s about all the four young airmen from Pope Air Force Base, N.C., can agree on.

Video: A1C Cassandra Hernandez talks

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Airman 1st Class Cassandra Hernandez, 20, said she got drunk at a party the night of May 12, 2006, and she admits that her memories of the evening are fuzzy at best. Airman 1st Class Jerrel Apache, Airman Russell Basile and Airman Rotez Butler also admit they had been drinking for several hours.

But fuzzy memories alone can’t explain the discrepancies between what they say and what she says happened after the party, in the early-morning hours of May 13, 2006.

Hernandez told investigators that the men gang-raped her in a dorm room. The men say Hernandez consented to have sex with each of them, and that she instigated the sex.

The Air Force investigated Hernandez’s allegations and charged Basile with rape. But when Hernandez declined to testify at Basile’s December 2006 Article 32 hearing, the Air Force dropped the rape charge.

All four airmen — including Hernandez — were then referred for nonjudicial punishment, under Article 15 of the Uniform Code of Military Justice, for committing indecent acts.

The three men accepted the Article 15 and were punished with $300 to $400 fines or extra duties.

But Hernandez refused the Article 15, according to the Air Force. She said she refused because she would not admit to committing indecent acts. She maintains that she was raped.

Ironically, having not testified against her alleged assailants, she now faces her own trial by court-martial at which she must testify in her own defense.

The Air Force has charged Hernandez with underage drinking and willingly having sex with Apache while Basile and Butler were present.

And the three men she says raped her have been given testimonial immunity to testify against her.

If convicted at a trial slated to begin Sept. 24, Hernandez could face up to a year in prison, forfeiture of two-thirds of her pay and allowances for one year and a bad-conduct discharge. As a result, say her two Air Force lawyers, she might also have to register as a sex offender, although the Air Force disputes that.

“Airman Hernandez did not commit an indecent act,” said Capt. Christopher Eason, one of her lawyers. “She was raped. To say the least, an indecent act was committed upon Airman Hernandez.”

A new beginning

Hernandez arrived at Pope in February 2006 as an eager 19-year-old, excited to be away from home for the first time and beginning her Air Force career.

She hails from a military family in a suburb of Houston, and she had been preparing to serve in the Air Force since joining the Junior Reserve Officer Training Corps as a high school freshman.

But nearly three months after arriving at Pope, Hernandez, a member of the 43rd Operations Support Squadron, said she was still struggling to find her niche.

“It was May, and I really didn’t have that many friends at that point,” Hernandez said in an Aug. 6 interview. “People at work were just kind of urging me to go out and meet other airmen.”

Hernandez had met Apache, Basile and Butler in late February or early March at the base’s First Term Airman Course, according to signed statements the men made during interviews with Hernandez’s lawyers. (The men and their lawyers did not respond to interview requests made through Pope’s public affairs office and attempts to reach them were unsuccessful.)

The three men were close friends, but they had hung out with Hernandez only a few times, according to the men’s statements. Another friend, Airman Sean Goodwin, was throwing a party in his dorm room the night of May 12, and Basile invited Hernandez.

“I got invited to a party,” she said, “and I went.”

She couldn’t know it at the time, but that decision would change her life.

There were about 10 airmen at the party, and they were drinking beer and hard liquor.

Apache, Basile and Butler said in their statements that they saw Hernandez have no more than a few drinks, and that she did not seem drunk.

Blood samples taken when Hernandez went to the hospital at 5 a.m. and later tested by a Defense Department lab showed that her blood alcohol content was 0.11 percent. Urinalysis showed her blood alcohol content was 0.18.

A rape prevention expert working with Hernandez’s defense team said that because the human body processes alcohol equivalent to about 0.02 BAC per hour, at midnight she would have had a BAC of between 0.21 and 0.28. The legal limit above which a person cannot drive in most states is 0.08.

In her statement, Hernandez said that she was “severely intoxicated.”

Apache, in his statement, said the three friends “engaged in ‘guy talk’ about ... Hernandez ... and spoke amongst ourselves about the possibility of one of us or all three of us could probably try something with [her] that night.”

In their statements, Basile and Butler deny that conversation took place.

Hernandez says she and Goodwin got in an argument around midnight because, she claims, he touched her buttocks. Goodwin, in his statement, said the argument happened because she was being too loud and refused to quiet down.

Apache, Basile, Butler and Hernandez then left the party and went to Basile’s room in the same dormitory.

There, Hernandez said, the men took turns raping her.

“I remember very little,” she said in a written statement for Air Force Times, “but I do remember telling them no. I also remember crying and telling them to stop, but they didn’t listen; one of them kept telling me to ‘shhh.’”

The men’s statements are completely at odds with Hernandez’s account. Though the accounts of the three men vary in some details, they agree on the basic facts.

The men claim they were in Basile’s room with Hernandez when she took off her shirt. Apache, in his statement, said the men had urged her to take her shirt off after she flashed her breasts, but Basile said she took it off without the men prompting her.

She also pulled down her jeans to show them that she was not wearing underwear, according to their statements.

Hernandez then told the men to take their clothes off, they claim, and she began performing oral sex on Apache. The men then took turns having sex with her. It is unclear how long this lasted.

The men all deny that Hernandez at any time told them to stop having sex with her.

Basile, Butler and Hernandez agree that she was upset when she left Basile’s room, though the men maintain Hernandez was not upset until the end. Apache was no longer there, according to his statement.

Hernandez said in her statement: “At the end, I got out of their room, half clothed, but I managed to grab my cell phone. I left some of my clothing, my shoes and my purse in the room. I found an elevator and went downstairs and hid underneath one of the stairwells. I made a phone call trying to find somebody to pick me up, but they couldn’t understand me because I was crying so much. I heard one of the men yelling my name from an upstairs balcony, so I ran barefooted across base back to my dorm.”

Hernandez said a neighbor heard her crying and came out to help her. The neighbor took her to the hospital, where medical personnel performed an examination and collected evidence.

The examination found no injuries indicating rape, according to her lawyers. But they assert that it is common for rape victims, especially those who were drunk, to be uninjured.

After returning from the hospital, Hernandez was interviewed by the base’s Office of Special Investigations detachment and met the base’s sexual assault response team, which consisted of Capt. Michel Edwards, the sexual assault response coordinator, and Tech. Sgt. James McDaniel, the sexual assault victim advocate. (McDaniel is now a first lieutenant.)

OSI arrested Apache, Basile and Butler on the afternoon of May 13. During the course of the investigation, Basile was charged with rape. Apache and Butler were never charged with rape, and prosecutors could not be reached for comment on whether there were plans to charge them.

‘It got really, really rough’

Debra Hernandez, Cassandra’s mother, said the months after the incident were difficult for her daughter.

“Before all of this, in our family she [was] the one known for the sense of humor,” Hernandez’s mother said. After the incident “it got really, really rough. It got to the point that I told her to go commit herself” to a hospital.

Hernandez said she did seek psychological help because she had flashbacks, anxiety, panic attacks and other psychological problems.

She said she had faith that the system would work and that the men she accused of raping her would be held accountable.

But all that changed in December, she said.

A few days before Hernandez was scheduled to testify at an Article 32 hearing against Basile, she was interviewed by Capt. Jim Gentry, Basile’s lawyer.

Hernandez did not have a lawyer at this point because, she claims, the base legal office told her that since she was only a witness she did not need one.

But Gentry denied Hernandez the right to have McDaniel, her victim advocate, present during the two days of interviews, McDaniel said in a sworn statement.

“My client had asked me to join her in the room during the ... interview,” McDaniel said in the March 19 statement. “I made my client’s request known, and Capt. Gentry said that as a victim advocate I had no privilege. ... The process just seemed inappropriate.”

Carl Buchanan, deputy chief of the Air Force’s sexual assault prevention and response program, would not comment on the case, but said, “The existing policy from the Air Force ... clearly states that a victim advocate is available if the victim requests to accompany them on any of their processes, whether that be investigative interviews or medical” treatment.”

Hernandez said Gentry was very aggressive toward her, and that she felt intimidated because McDaniel was not with her.

“When he wasn’t in the room, it made a big difference because I lost confidence,” she said. “I just got really scared, and I was alone.

“I felt like I was ambushed. I felt like I was being attacked. I felt like they were waiting for me to mess up.”

Jim Russell, of the Air Force Legal Operations Agency’s military justice division, said a lawyer defending an accused rapist is in the difficult position of trying to defend his client vigorously without attacking the victim.

“An Air Force defense counsel’s primary responsibility is to his or her client,” Russell said in an e-mail. “While a defense counsel will not seek to intimidate or humiliate any witness unnecessarily, these considerations do not prevent a defense counsel from engaging in a vigorous and forceful examination of any witness.”

Hernandez said that after the interviews with Gentry, she lost her nerve and decided not to testify against Basile.

“I just wanted to be able to go to work and not worry about the rape and seeing lawyers,” she said. “I was having a lot of anxiety attacks and it was getting really stressful.”

When Hernandez declined to testify, the Air Force dropped the rape charge against Basile.

“If the victim ... declines to testify, prosecution is extremely difficult and generally not feasible,” a Pope official said in a statement.

The rape charge now dead, the Air Force instead offered Hernandez, Apache, Basile and Butler nonjudicial punishment, or an Article 15, for indecent acts — having sex while other people are present — and underage drinking.

The three men accepted the Article 15s. Apache received a suspended one-stripe reduction in rank and $300 in forfeited pay. Basile received a suspended one-stripe reduction in rank and $400 in forfeited pay. Butler received a suspended one-stripe reduction in rank and 30 days of extra duties.

Hernandez said she was shocked when her commander told her she was being referred for an Article 15. She refused to accept what amounted to a slap on the wrist.

“I was willing to take any punishment for the underage drinking part because I was guilty of it,” she said. “But I did not consent to indecent acts. I was raped.”

Hernandez’s lawyers, Eason and Capt. Omar Ashmawy, said she turned down the jurisdiction of the Article 15 and requested trial by court-martial because she did not think she could get a fair shake in an Article 15.

The Pope official said “the rights [Hernandez] is afforded under the Uniform Code of Military Justice are being fully protected.”

Hernandez was then referred for trial by summary court-martial, which could have landed her no more than 30 days of confinement. But she refused to be tried through this method because, her lawyers said, they were having difficulty receiving documents in a timely manner.

“We were denied access to discovery,” Eason said. “We were denied access to expert consultants. And she felt like she could not adequately defend herself at a summary court-martial, which is why she rejected jurisdiction.”

Hernandez said in her statement that some of the evidence against her was not released to her lawyers until one week before her trial was scheduled to begin.

The Pope official said the defense has been given all the evidence and experts it has requested.

Hernandez is now scheduled for trial by special court-martial, which can impose stiffer penalties, and her lawyers said they have been getting the information and access to experts they need to defend their client. But they said they have had to repeatedly ask a judge to compel base officials to comply with their requests.

Apache, Basile, Butler and Goodwin have been granted testimonial immunity in exchange for cooperating with the prosecution in the case against Hernandez. This means that anything they say during the trial — and any evidence discovered as a result of something they say — cannot be used against them.

This, Ashmawy said, means it would be very difficult to subsequently prosecute the men for rape.

“They could still be prosecuted for rape [but] practically speaking, it would be almost impossible now that they’ve been given testimonial immunity,” he said.

‘The system failed me’

Only Hernandez and the three men know for sure what happened that night. But her lawyers said it is significant that both the sexual assault response coordinator and the victim advocate have filed sworn statements saying they never doubted that Hernandez had been raped.

“Those involved in the case believed her,” Ashmawy said. “The government treated her as a victim after fully investigating the case for over seven months, and they preferred charges against one of the men for rape and were proceeding toward a general court-martial.”

Hernandez said she is still seeing a counselor and still has a hard time believing what has happened to her.

“I did everything I was told to do in that situation, and the system failed me,” she said. “Now I’m facing jail time and the possibility of losing everything that I love, everything that matters to me.

“I feel very disappointed in the system. I feel like I didn’t matter. ... Like they just wanted it to go away.”

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