Susan Burke

Susan Burke says the superintendent has a conflict of interest because he doesn't want anything to happen that would harm his or the academy's reputation. (Barbara Haddock Taylor / Baltimore Sun / June 27, 2013)

An attorney for the Naval Academy midshipman who accused three classmates of sexually assaulting her at an off-campus party is asking a federal judge to bar the academy superintendent from deciding whether the case goes to a court-martial.

Under the military's justice system, the Naval Academy's superintendent, Vice Adm. Michael H. Miller, has the final say whether charges will go forward against the three midshipmen.

The lawsuit, filed Thursday by Baltimore-based attorney Susan Burke, says the superintendent has a conflict of interest because he doesn't want anything to happen that would harm his or the academy's reputation.

Also, Miller "has placed a great emphasis on football," the suit says. The three midshipmen accused in the case are former members of the football team.

The lawsuit alleges that Miller had a hand in the lengthy cross-examinations of the woman during the eight-day hearing on the case, because the officer conducting the hearing "had to check in telephonically with the Superintendent about the length of the trial days."

The woman was cross-examined by three sets of defense attorneys and spent more than 20 hours on the stand.

She was asked personal questions, including about how she performed oral sex on another midshipmen the morning after the party — which defense attorneys used to argue that oral sex is, by its nature, a participatory act. Two of the midshipmen are accused of having sex with the woman, while one is accused of forcing her to perform oral sex.

"The Superintendent intentionally deprived Midshipman Doe of adequate rest during the lengthy cross-examination that delved into details of her past consensual sexual interactions that are not at issue in the case," the lawsuit states.

The Baltimore Sun does not identify the alleged victims of sexual assaults.

Cmdr. Ryan Perry, a Navy spokesman, said the Navy is aware of the lawsuit.

"The Navy takes this matter seriously as it does all litigation and will work with the Department of Justice on this case," he said. "As this is now a matter of pending litigation, it would be inappropriate to offer further comment."

Miller ordered the hearing, known as an Article 32 hearing, to help him determine whether there's reasonable evidence that a crime may have occurred.

An independent hearing officer heard dozens of hours of testimony and will review thousands of pages of exhibits before recommending whether the midshipmen should be court-martialed, punished administratively or have the charges dropped.

Miller is not bound to follow the recommendations.

Three midshipmen are facing charges: Midshipman Tra'ves Bush, Midshipman Eric Graham and Midshipman Joshua Tate. Graham and Tate are still enrolled at the academy, and Bush has completed his academic requirements but has not graduated or been commissioned as an officer pending the outcome of the investigation.

The woman testified that she drank heavily before and during a "yogas and togas" party at an off-campus house in April 2012. She testified that she has no memory of engaging in sexual acts with any of the three men.

Advocates for victims of sexual assault have been pushing to change the military justice system to have prosecutors decide on charges, instead of commanding officers such as Miller. They argue that commanding officers are not trained in the law and may have conflicts of interest because they may know the parties involved.

Nancy Parrish, president of the advocacy group Protect Our Defenders, said in a statement Thursday that the Naval Academy's handling of this case is typical of the "biased and dysfunctional approach" that military leaders take with sexual assault.

Parrish said the woman in the Naval Academy case "has been re-victimized through obvious attempts to intimidate and silence her."

pwood@baltsun.com