West Point cadet's rape conviction overturned by military judges as victim did not 'audibly struggle' during assault

West Point cadet's rape conviction overturned by military judges as victim did not 'audibly struggle' during assault

A West Point cadet who was previously sentenced to 21 years in prison for raping a sleeping classmate has seen his conviction overturned by a panel of three military judges who ruled that the sexual assault could not be proved "beyond reasonable doubt."

According to the Military Times, Jacob Whisenhunt, who was originally set to graduate in the class of 2019 before his May 2017 conviction, will now be allowed to return to his previous duty station.

The Associated Press reported a US Military Academy spokesman saying that Whisenhunt returned to West Point and was in processing as of Wednesday.

Whisenhunt, a Nebraska native, was charged with three counts of sexual assault over a July 7, 2016, incident where he allegedly assaulted a female cadet in her sleeping bag while she slept during a summer field training event at Camp Buckner.


He was convicted of the charges by a jury of six West Point staff and faculty on May 5, 2017, following a four-day trial. A judge subsequently sentenced him to 21 years in prison, forfeiture of his pay, and discharged him from the Army.

The overturning of the conviction comes after the three military judges concluded that the victim could not have been raped as she did not audibly struggle, noting that the noisiness of the bedding set-up and squad mates sleeping nearby, "it is hard to conclude beyond a reasonable doubt that appellant could complete the charged offenses without cooperation or detection."

Whisenhunt had claimed that the intercourse was the result of "escalating and consensual touchings" and that they had both tried to conceal what was going on by holding their breaths when they thought they heard someone walking past them.

The victim, on the other hand, had testified that she had frozen when she woke up to find Whisenhunt penetrating her with his finger and then with his penis and that she "remained frozen in the fetal position during the entire assault."


In declaring his innocence, however, the military judges wrote they thought it was unlikely the victim would not grasp or cry out when she woke up next to Whisenhunt, which would have then alerted others to the assault.

They added they could not believe that Whisenhunt could have so brazenly assaulted her, knowing she could easily identify him in a rape report. They also noted that he did not try to keep her quiet, hide his identity, or remove evidence of the alleged assault.

"The defense theory was that the appellant and [the victim] engaged in a consensual sexual encounter while taking active measures to avoid detection," they ruled. "In our view, the circumstantial evidence in support of this defense theory severely undercuts the government’s case."


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