The judge in the Aberdeen Proving Ground sexual misconduct court-martial appeared yesterday to pull back from a landmark ruling that could have significantly broadened the military's definition of rape.

Col. Paul Johnston rejected prosecutors' request to tell jurors they could convict Staff Sgt. Delmar G. Simpson of rape -- even without proof of physical force -- if evidence showed that the woman feared a "loss of property or damage to [her] reputation" if she did not submit.

That would have expanded the definition of "constructive force" rape, which requires a victim to fear death or "great bodily harm" if there is no evidence of physical coercion.

The legal debate among attorneys in the Aberdeen courtroom was dry -- but important to Simpson.

Some women did not resist

In the most-serious case of the wide-ranging Aberdeen sex scandal, Simpson is charged with 54 criminal counts, including 19 rape allegations involving six female trainees.

Several of the accusers have testified that they never explicitly rejected the drill sergeant's sexual advances.

One 20-year-old private from Tennessee, for example, said she did not struggle against him or fear he would hurt her physically. But she said she was afraid of being kicked out of the Army.

Last week, Johnston said that was enough of a threat to constitute a rape charge, and he appeared ready to give the six-member jury a broadened definition of rape.

The judge said he was basing his ruling on the unusual power imbalance between drill sergeant and trainee -- comparing it to a parent-child relationship.

But that ruling drew angry shouts from defense lawyers. Experts in military law, meanwhile, said it would break ground, with one former Army lawyer calling the ruling a move to "sociological rape instead of criminal rape."

Johnston will read his instructions to the panel this morning. Members will use them as a kind of legal guidebook in weighing the charges against Simpson.

After lawyers conclude closing arguments, the six-member jury will begin deliberations.

11 others are charged

Twelve soldiers have been charged with crimes related to Aberdeen trainees -- problems that have prompted a militarywide search for sexual misconduct in the ranks.

Simpson, 32, faces 32 years in prison after pleading guilty to having sex with 11 female trainees and pursuing five other subordinates.

To convict Simpson on each count in the court-martial, four of the six jury members would have to find him guilty; a unanimous decision is required in most civilian criminal cases.

A rape count carries a potential penalty of life in prison.

Pub Date: 4/24/97

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