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Army sexual assault prosecutor acquitted of rape and battery

The case of two Army judge advocates and the alleged assaults that erupted from their previously consensual sexual relationship came to a close on Friday. Former Fort Sill, Oklahoma, special victims prosecutor Capt. Scott Hockenberry was acquitted on all six charges at court-martial.

Hockenberry faced life in prison for the three rape counts, as well as six months for each of three counts of assault consummated by a battery.

“Capt. Hockenberry faced incredible adversity due to inexcusable failures by Army [Criminal Investigation Command] to properly document evidence in his case,” Brian Pristera, his civilian attorney and an Army JAG reservist, told Military Times on Monday. “The real story here is about how the Army’s preeminent law enforcement unit incompetently fumbled a high profile case, causing the Army to waste immense resources and time over the four years it has taken to arrive at this verdict.”

The soldier who accused Hockenberry did not respond to a request for comment through her uniformed special victim advocate. Army Times does not identify alleged victims of sexual assault.

“We won the case on the facts, not on the administrative issue,” Pristera said. “Our closing argument was firmly rooted in the credibility of the allegations.”

The trial had originally been scheduled for early 2019, and then June of that year, but a court-ordered mental health evaluation for Hockenberry delayed it until March 2020. At that point, the COVID-19 pandemic put a hold on all courts-martial.

In the end, the trial was held in a hall at the National Defense University, at Fort McNair, D.C., with limited attendance and in full compliance with social distance restrictions.

Hockenberry’s case began in summer 2016, when a reservist he had been seeing reported her rape first to civilian authorities, then to Army CID, and filed a civil lawsuit against him in Oklahoma.

The soldier alleged she and Hockenberry had been engaged in a casual relationship, with overtones of bondage, discipline, dominance and submission, that turned criminal when Hockenberry allegedly began assaulting her.

She alleged he once punched her in the jaw ― causing an injury she sought dental care for ― and on multiple occasions raped her, including once at knife-point and without a condom, despite having clearly established rules that they would always use protection.

Much of the case hinged phone calls the soldier made to Hockenberry, with CID listening in, where he allegedly admitted to her allegations. Prosecutors also alleged Hockenberry could be heard laughing about his assaults, at one point asking the alleged victim, “Why do you have such a glass jaw?”

But CID made a crucial error at that early point in the investigation, the defense argued, by not recording the phone calls.

The lead investigator was six weeks out of special agent training when he was assigned to the case, Pristera said.

“This is a case involving a sex assault allegation by an attorney against the special victim prosecutor at Fort Sill,” he said, “This is not a small case.”

The defense hinged on a number of holes in the investigation, which Pristera attributed to the lead special agent’s inexperience.

“The agent admitted on the stand he didn’t know he had the ability to record them. He didn’t know he had the authority to record them. He didn’t know how,” Pristera said. “It was the first time he had ever conducted a pretext phone call. There was no supervision.”

Much of the prosecution’s case during the Article 32 hearing came out of two phone calls, made by the accuser and listened in on by CID, from the beginning of the investigation. Former lead prosecutor Lt. Col. Carol Brewer, had been quoting the CID agent’s notes in her arguments, rather than a transcript.

Witnesses who testified to the content of the calls differed in their recollections, Pristera said, as did outcry witnesses, to whom the alleged victim disclosed the alleged assaults after they had happened.

“I think it gave the government a false sense of the merits of this case,” Pristera. “I think if they had done a proper investigation, they would have been able to make a much more intelligent decision four years ago, about how they were going to handle this case.”

Pristera was Hockenberry’s second civilian attorney. His previous representation, Texas-based attorney Will Helixon, had built much of his defense on the fact that the accuser was a competitive boxer, and to his mind, should have been able to fight off any attack by Hockenberry.

The prosecution had previously presented the accuser as a professional woman who — despite her knowledge of self-defense techniques — froze up when she felt threatened by a man she was intimate with.

“She doesn’t hide the fact that she’s done things she’s not proud of,” Brewer said 2018. “She doesn’t deny that she should have known better.”

At the same time, hours of Hockenberry’s Article 32 hearing were conducted behind closed doors, where both sides discussed at length how much of the two’s prior sexual history could be included as evidence, as Helixon sought to build a case that the alleged assaults were part of their routine, consensual interaction.

Helixon also provided multiple letters from a past girlfriend and other previous sexual partners of Hockenberry’s, who wrote that he was respectful of women and had never assaulted or harassed them in any way.

The case focused heavily on the definition of consent, at a time when all the military services have struggled to investigate, prosecute and adjudicate sexual assaults, with many cases devolving into a he-said, she-said situation that charging authorities struggle to run to ground.

“I veered away from that. I did not want to present this idea that someone who was physically capable, and trained in martial arts, could not be assaulted,” Pristera said. “That is not a viable theory to me. Anybody can be assaulted.”

In the end, Pristera said, he presented his theory that the accuser had gotten angry with Hockenberry and made some initial reports, then felt the need to add to them as the case gained traction.

“The initial outcry had been claims of alcoholism,” he added. “That Capt. Hockenberry had an issue with alcohol. And then it turned into a slap, then turned into a sexual assault, then turned into multiple sexual assaults, with a knife. The inconsistency is really what we hung our hat on.”

Pristera said that Hockenberry is trying to figure out what is next for him in the Army. During the course of the investigation and trial, he was passed over for both looks at promotion to major and extended on active duty for the course of the proceedings.

Without that promotion, Army personnel regulations would result in an involuntary discharge.

Hockenberry in December filed a civil suit in Oklahoma against the alleged victim for assault, libel and slander. The last motion filed in the case came on January 16.

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