A Navy enlisted man whose rape conviction was reversed six weeks ago remains imprisoned in South Carolina, caught amid the military’s accelerating campaign against sexual assault.
Now, in an unusual move, attorneys for Airman Dustin M. Clark are urging the same military appeals court that threw out his 2014 conviction to order his immediate release. The 23-year-old Missouri native has already done too much time for a crime he didn’t commit, his attorneys say.
“It’s outrageous,” David P. Sheldon, one of Clark’s attorneys, said in an interview. “They’re making sure he stays in jail.”
It’s rare for a military appeals court to reverse a conviction because of “factual insufficiency,” as the U.S. Navy-Marine Corps Court of Criminal Appeals did with Clark’s conviction July 14. This means the appellate judges thought prosecutors failed to prove their case
Having considered the unique facts of this case...we are not personally convinced of the appellant’s guilt of rape or forcible sodomy.
U.S. Navy-Marine Corps Court of Criminal Appeals.
The government, though, apparently wants to keep Clark incarcerated at the Naval Consolidated Brig Charleston in South Carolina pending further review, a process that Sheldon estimates could last as long as 10 months.
The Clark case, in turn, is not unfolding in a vacuum. Instead, it’s occurring as the Pentagon reinforces efforts to combat what political and military leaders alike have repeatedly characterized as an “epidemic of sexual assault.”
“I think it contributed to the verdict,” Sheldon said of the current command atmosphere.
The Navy said in a statement that it has 60 days starting from an Aug. 18 court decision to decide whether to appeal, and it has until Sept. 3 to respond to defense requests that Clark be freed. The Navy declined to respond to defense criticisms.
In Fiscal Year 2014, the military reported receiving 6,131 allegations of sexual assault, an 11 percent increase from the year before. Alarmed lawmakers have been pressuring the Pentagon, imposing myriad new reporting requirements and passing what the Defense Department calls “the most sweeping reform to the Uniform Code of Military Justice since 1968.”
With Clark, the Navy has shown no sign of giving up.
The case revolves around the disputed events of March 24, 2012. A woman said that Clark assaulted her following a night of heavy drinking. She reported the alleged rape to law enforcement three months later.
“She...testified that while ‘making out’ with (Clark) on the couch earlier that night, she told him she was not interested in having sex with him,” judges later recounted.
The woman further testified that “throughout the evening she engaged in consensual amorous activity with three different men” before ultimately blacking out, judges noted.
A Navy commander found Clark guilty on Feb. 21, 2014, of rape and forcible sodomy, in a court martial held at the Washington, D.C. Navy Yard. The judge sentenced Clark to seven years in prison and a dishonorable discharge.
A three-judge panel of the U.S. Navy-Marine Corps Court of Criminal Appeals unanimously reversed Clark’s conviction, noting the lack of DNA evidence and the “disorganized” and partial memories belatedly recounted by the alleged victim.
The government asked for en banc reconsideration by all of the court’s judges. That kept Clark locked up.
Every service member must participate in creating a culture where sexist behaviors, sexual harassment, and sexual assault are not tolerated, condoned, or ignored.
Defense Department Sexual Assault Prevention and Response Office.
After the judges quickly denied the request, a government attorney advised he would recommend that officials ask for review by the U.S. Court of Appeals for the Armed Forces, the nation’s highest military court. This, too, would keep Clark in the brig pending resolution.
The government typically only asks the high military court to review a lower court’s decision about 10 times a year. The court is limited to matters of law, and does not delve into the facts of an alleged crime.
“His current confinement is illegal,” wrote Marine Corps Major Brian Magee, one of Clark’s defense attorneys, adding that “every day the government holds him in confinement...brings Airman Clark, his wife, his parents and the rest of his family additional and needless suffering.”
This week, responding to the defense attorneys’ petition for a writ of habeas corpus, the lower-level Navy and Marine Corps court gave the government until Sept. 3 to provide reasons why Clark should not be released.
Michael Doyle: 202-383-0006, @MichaelDoyle10