The attorney for a Marine corporal who could face up to seven years behind bars for allegedly kissing a civilian woman says his case is an extreme example of the current political pressure to prosecute sex assault gone awry.
According to court documents obtained by Marine Corps Times, investigative officers recommended the case be taken to special court-martial — the military equivalent of misdemeanor court — on a simple assault charge. But the commanding officer supervising the case decided instead to prosecute the incident as a sex assault at general court-martial, the military court reserved for the most serious felony offenses. Now, lawyer Gerald Healy says he’s drafting a motion alleging unlawful command influence, saying statements from lawmakers and even the president put undue pressure on commanders to prosecute allegations beyond what is fair.
The alleged incident occurred at a July 2013 house party in South Carolina outside Marine Corps Air Station Beaufort. According to court documents, the wife of the Marine hosting the party said she went to bed early and woke up to find Cpl. Andie Arado, a guest at the party, in her room, kissing her on the mouth. Arado left, according to the allegation, when he heard the woman’s husband calling from the other room.
Arado, 32, of Marine Wing Support Squadron 273, is married and denies the incident took place. He told Marine Corps Times he was unfamiliar with the house and was looking for the bathroom when he entered the bedroom and did not see the woman asleep while he was in there.
At an investigative hearing about the accusations in April, investigators recommended the allegations be prosecuted, but said charging Arado with sex assault was problematic.
For one, the alleged victim’s initial sworn statement indicated she never opened her eyes during the incident, as she was pretending to be asleep, and identified Arado only by his accent. Even so, a jury might find the account credible and still find the incident did not amount to sex assault under the law, according to documents.
“She states that Cpl. Arado made no physical contact, of any kind or nature, with any of her other body parts ... this important fact may reasonably lead the members to not find that a sexual offense occurred,” an investigator wrote. “As [the alleged victim] declined to participate in the investigation, I was unable to evaluate her demeanor or credibility or receive any further sworn testimony to substantiate this charge. ... For these reasons, and in the interest of justice and discipline, I recommend withdrawing and dismissing [the sexual assault charge].”
In a civilian court, allegations of an unwanted kiss would have a slim chance of going to trial at all, said Jim Brown, a defense attorney based in Beaufort. The incident would likely be charged as an assault and battery in the third degree, a charge carrying a maximum sentence of 30 days’ confinement, though the court would still have to work to prove the injury that resulted from the alleged incident. A more serious charge, assault and battery of a high and aggravated nature, would be unlikely, he said.
“I think they would find that [the incident] was criminal, but I don’t think they would find it was high and aggravated,” he said.
On May 16, Lt. Col. Sean Henrickson, commander of Marine Aircraft Group 31 Headquarters Squadron, signed a memo sending the sexual assault and the simple assault charges to general court-martial, despite the investigators’ recommendations. Maj. Gen. Robert Hedelund, commander of 2nd Marine Aircraft Wing, quickly approved the decision. Given the nature of the charge, Arado could serve up to seven years in the brig if found guilty on all counts.
Henrickson did not respond to a request for comment. The attorney prosecuting the case did not respond to a request for comment either. Neither has the alleged victim, whose name has been withheld in accordance with Military Times policy.
Healy, who represents Arado through the firm Military Justice Attorneys, will claim in his motion that the politically charged climate regarding military sexual assault is stacking the deck against defendants, including his.
A similar motion from a previous case quoted President Obama in a 2013 address on the topic.
“I have spoken to [Defense] Secretary [Chuck] Hagel already today indicating to him we’re going to have to, you know, not just step up our game; we have to exponentially step up our game to go at this thing hard,” Obama said. “ ... If we find out somebody’s engaging in this stuff, they’ve got to be held accountable, prosecuted, stripped of their positions, court-martialed, fired, dishonorably discharged — period.”
Regarding the president’s and key leaders’ statements on sexual assault in the military, Healy said, “clearly the word got out very quickly: ‘We want to prosecute. We want convictions.’ ”
The subject of UCI and the issue of sex assault has loomed large in the Marine Corps since 2012, when Marine Corps Commandant Gen. Jim Amos gave a series of “Heritage Brief” lectures in which he said “80 percent” of sexual assault accusations are based on legitimate claims, spurring a flurry of UCI motions in nearly every sexual assault trial since. But the other services have also grappled with the issue: Last November, the Senate blocked the promotion of Air Force Lt. Gen. Susan Helms after she overturned the sexual assault conviction of a captain in 2012. Another Air Force three-star, Lt. Gen. Craig Franklin, opted to retire amid controversy after dismissing the sexual assault conviction of a lieutenant colonel.
“Do we think that anyone missed the point when they read about Lt. Gen. Helms having her promotion to four stars blocked or Lt. Gen. Franklin forced into retirement?” said Eugene Fidell, a former Coast Guard judge advocate who teaches military law at Yale University, in a February interview with Marine Corps Times.“When you put all these things together, you’d have to believe in the tooth fairy to not think these things affect the climate in which these decisions are ultimately made.”
Healy said his motion will ask that the case be dismissed, but is more hopeful of a finding of “apparent UCI,” which would give the defense team some advantages as the case proceeds. The court-martial is set to begin in September.
“There’s no doubt in my mind that if this happened four years ago, five years ago, this would have been, at the very worst, a [nonjudicial punishment],” he said. “If you look at the plain view of it, I don’t think anyone who could be intellectually honest with themselves could say that this case would warrant a general court-martial.”