Early on in the second day of witness testimony in the trial of Midshipman 3rd Class Nixon Keago, the prosecution and defense clearly established each of their strategies.
Prosecutors began to set up a timeline, establishing what they are arguing happened.
With the midshipman who reported sexual assault in October 2018. With those who were part of the reporting process. Then with an ensign who reported sexual assault from February 2018 and attempted sexual assault from September 2018.
The defense tactic: introduce doubt. Poke holes. Make the members second guess every statement.
Keago is charged with sexual assault, attempted sexual assault, obstruction of justice and burglary.
The first midshipman to report sexual assault detailed how Keago allegedly came into her room while she was asleep and started rubbing his penis against her vagina before trying to penetrate her. The Capital does not name victims of sexual assault.
Tonia Bussey, a forensic nurse at Mercy Medical Center, performed the Sexual Assault Forensic Examination on the midshipman.
It was during Bussey’s testimony that defense attorney Lt. Cmdr. Andrea Kissner zeroed in on whether the first midshipman to report Keago was penetrated.
Penetration is a crucial point in the case because, in order for the government to prove sexual assault, as Keago is charged relating to the midshipman, the attorneys must prove that Keago committed a sexual act.
The Uniform Code of Military Justice, the military’s laws, defines a sexual act as the penetration, however slight, as long as it is meant to harass, abuse, humiliate or otherwise degrade or to gratify sexual desire.
The midshipman testified Keago rubbed his penis against her but said he did not insert his penis into her vagina.
She told Bussey something similar, the nurse testified. Since the midshipman told Bussey there was no penetration, the forensic nurse did not do some exams, such as a cervical one.
Through her questions, Kissner began to lay out her plan. Make the members question if there was penetration.
If there was no penetration, there could be no sexual assault under military law.
The defense attorney had a similar approach for the ensign who reported Keago also sexually assaulted and attempted to sexually assault her.
The ensign told Lt. Cmdr. Paul LaPlante, who did the direct examination for the government, that she had come back after a night of drinking in February 2018. She testified multiple times she was intoxicated, and because of that, her memory is hazy.
Instead, she has flashes of memories from the night.
She remembers waking up a couple of times. Each time, she remembers there being a presence, but she would fall back asleep.
She woke up a third time to find Keago in her bed, she testified. He was naked.
“And the first thing I notice is my boxer shorts are pulled down,” the ensign said.
She also remembers the pain she felt in her vagina. That’s how she knew she was penetrated, she said.
“A million things are racing through my brain,” the ensign said. “All of these details came rushing into my brain in what felt like a second.”
She told Keago, in the same company as her, to leave. He responded she invited him into her room. She did not remember that, but after a back and forth, during which Keago left, she said she thought she must have been the one to make a mistake.
It was easier than thinking she was sexually assaulted, the ensign said.
But then, in September 2018, after a night of drinking, she woke up and found Keago in her bed again. She told him to leave, and he told her again that she invited him.
This was a lie, she said. She knew she did not. After the last time, she made it clear she did not want to talk with him again. He came back once more that night.
And after the second time, she knew she had been sexually assaulted, she said. Due to fears about her reputation, she said she chose not to report it.
Until she mentioned it during an interview with Naval Criminal Investigative Service officers, who were investigating the sexual assault, allegedly by Keago, of the other midshipman.
Kissner focused on the inconsistencies between the ensign’s multiple statements. Why did she tell LaPlante something different than she told NCIS?
Before the ensign said she had not told anyone about the assault, now there was someone she told immediately after it happened.
The ensign said these were lapses in memory that she recovered later.
In her opening statements, Kissner said that rumors were the reason Keago was charged. In questioning the ensign, she looked to make it clear the ensign only reported her sexual assault after hearing about the other incident.
The ensign said she told NCIS about the sexual assault because they asked if there was anything else they should know about Keago.
“To me, it was a sign from God I needed to tell them,” the ensign testified.
Keago’s court-martial will resume Thursday at 9 a.m.
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