Handing Army prosecutors at Aberdeen Proving Ground a setback, a military judge yesterday dismissed 19 counts of serious sexual misconduct against Staff Sgt. Delmar G. Simpson, ruling that the 13-year Army veteran had been wrongly charged with the same crimes under two laws.
Col. Paul Johnston, the military judge, removed 16 counts of sexual intercourse by fear and three counts of sodomy by fear from Simpson's long charge sheet. Simpson still faces 129 counts of sexual misconduct, including 25 rape allegations.
The ruling damages the prosecution's case.
Army prosecutors, as well as top Army leaders, have stated that consensual sex is impossible between soldiers of different rank. But prosecutors will now have to prove Simpson used physical strength or threat of serious violence to force 11 female trainees into sex.
"In some ways it will make it harder for us," said Maj. Susan Gibson, who is supervising the Army prosecutions. "But we won't know until the evidence is presented."
Johnston, who denied two previous defense motions, ruled that the Army could not charge Simpson with crimes under the federal Sexual Abuse Act of 1986 and with essentially the same offenses under military code.
The ruling removes those federal charges that could have been proven with evidence of almost any threat of violence.
It also leaves Army prosecutors without the most serious alternative charges to rape. The military panel will be selected next week for the trial scheduled for April 14.
Frank J. Spinner, Simpson's civilian attorney, called the ruling a "medium" victory.
"One of the things that has offended the defense is that the government, by the sheer number of charges they have brought, has created an environment where it looks like Sergeant Simpson and others have engaged in more misconduct than is alleged," Spinner said.
Capt. Edward W. Brady, another of Simpson's lawyers, will argue today in a 16-page motion that the Army further inflated charges against the drill sergeant by tacking on less-serious charges related to larger crimes.
For example, Brady is expected to argue that 22 counts of indecent assault against Simpson were allegedly commited during rape and should be dismissed.
If the judge agrees, more than 40 additional criminal counts against Simpson could be eliminated.
"I'm not worried about that," Gibson said. "We have known that some would be lesser included offenses. A ruling for the defense would just clean things up."
Since August, 56 female recruits have accused 22 Aberdeen soldiers of crimes and rule violations. Eleven soldiers have been criminally charged, but none faces more counts than the 32-year-old Simpson. He faces the possibility of life in prison.
At times arcane, the argument that unfolded yesterday is at the heart of the case against all Aberdeen defendants: Is consensual sex between soldiers of different rank rape?
Since November, when the Aberdeen case was announced, 40 percent of the alleged victims have admitted that sex with their superiors was consensual.
Capt. Theresa Gallagher, the Army prosecutor, said the abuse charges dismissed by the judge covered different levels of coercion Simpson used to commit his alleged crimes.
Gallagher argued that Congress, in passing the sex abuse statute 11 years ago, intended the law to be used as a catch-all in tandem with military code.
She said a rape conviction would have prompted her to drop the abuse charges, which carry a lighter sentence.
"You have consensual sex, you have rape and you have a whole spectrum in between," Gallagher said. "There was a spectrum of force used" by Simpson.
But Spinner argued that the laws were not intended to cover different aspects of essentially the same crime. The defense wants the jury to be given as few options as possible to convict Simpson. The strategy raises the bar for prosecutors by forcing them to prove difficult rape charges or else lose the most serious element of the case.
"If they can't prove rape under that doctrine [military law], then it wasn't rape," Spinner said.
Pub Date: 4/04/97