The definition of the word, contact, should have been a major issue at Army Special Forces Sgt. 1st Class Kelly A. Stewart‘s court-martial at a U.S. Army post in Germany during three days in August 2009. Unfortunately, the military judge overseeing the case thought otherwise.
Sgt. 1st Class Kelly A. Stewart
On Aug. 19, 2009, SFC Stewart was convicted of multiple offenses based almost entirely on the testimony of his accuser, a 29-year-old German woman with whom he admitted having a one-night stand a year earlier.
During pre-sentencing testimony the following day, Sgt. 1st Class Kelly A. Stewart‘s accuser — whose real name is not shown below — was cross-examined by Capt. Greg O’Malley, assistant trial counsel. Below are excerpts from their exchange:
Q. Ms. Heinrich, as you know, Sergeant First Class Stewart has been found guilty of several offenses against you. How have these offenses that he has been found guilty of affected you?
A. I am very scared.
Q. Scared of what?
A. I am scared. I am scared to be with people. I am scared of men and scared of soldiers.
Q. Why are you scared to be with people?
A. I have to think the whole time that you are not able to see–you know, look at people and see to what they are capable of doing.
Q. How has this affected you regarding men?
A. I have no contacts to men anymore.
Q. Why not?
A. Because I couldn’t bear it if something like that happened to me again.
Q. Have you been engaged in any dating relationships with any men since this attack?
Several questions required the accuser to explain how her relationships with soldiers had changed, then the prosecution’s questioning turned to her social life in general:
Q. Has your social life changed as a result of these attacks?
Q. How so?
A. I was always with people a lot of times, but that’s not this way anymore. I now spend a lot of time alone or with friends.
Q. Why do you spend so much time alone?
A. At home because that’s where I feel safe–safer.
Q. Have your sleeping–your ability to sleep been affected by the actions of Sergeant First Class Stewart?
A. I dream of him every night.
Q. How has that affected you?
A. I at the most sleep three hours a night.
Q. Is that because of the dreams you have regarding Sergeant Stewart?
SFC Stewart returns from a mission in Iraq.
More questions followed about how she said she felt after the alleged attacks and how it had changed her habits, then the prosecution’s questioning returned to how she felt about being around men:
Q. How do you feel when a man looks at you with interest?
CIVILIAN DEFENSE COUNSEL: Objection, calls for speculation as to whether the man is looking at her with interest.
MILITARY JUDGE: Overruled.
A. Most of the time I can’t bear it if men look at me.
Q. How do you react?
A. Either really harsh verbally, you know, so I–so that they leave me or I’m leaving the situation.
During a post-trial Article 39(a) hearing (a.k.a., “DuBay Hearing”) nine months later, the defense had an opportunity to present new evidence and/or testimony before the court. During that hearing, SFC Stewart’s accuser was questioned by the military judge, Major Charles Kuhfahl, about statements she had made during the aforementioned pre-sentencing testimony.
Several of the military judge’s questions were related to the accuser’s admission that she had sexual intercourse with a male teacher during the month prior to the court-martial — and to her definition of the word, contact. An excerpt from that exchange appears below:
Q. Okay. When asked why you have no contacts with men you said, “I couldn’t bear it if something like that happened to me again.”
Q. Do you remember making that response?
A. Yes, I do remember.
Q. Now, the incident that you testified to related to Sergeant Stewart, that was a one-night stand, correct?
INTERPRETER: I’m sorry, sir.
Q. The incident that you testified to regarding Sergeant Stewart was also a one-night stand.
A. Yes, correct.
Q. And the incident you testified to earlier about the teacher was a one-night stand.
A. Yes, from my point it was a one-night stand, but the teacher wanted a relationship. I didn’t.
Q. But you only had sex with him on one occasion.
A. Yes, correct, one time.
Q. And that was about a month prior to your testimony in August.
A. Yes, correct, it was in July.
Q. Did you not consider what had occurred with the teacher as contact with men?
A. We didn’t see each other for a longer period of time and it was not a relationship or partnership with this person.
Q. So when you said, “I have no contact to men,” are you saying you were defining “contact” as “relationship”?
A. I understood it to be relationship because during the daily course of life I always have contact with other men.
Q. You stated at the previous hearing that you had not engaged in any dating relationships since the attack.
Q. Was that true?
A. Yes, that’s correct.
A. I did tell the teacher at the time what had happened to me because the teacher wanted a relationship with me and I did try to restart my life again and so I tried it, but I just couldn’t.
Q. Prior to the trial in August, did anybody ever ask you whether you had had sexual intercourse with someone after the attack?
INTERPRETER: I’m sorry, sir. Can you repeat the question again?
Q. Prior to testifying in August 2009, did anyone associated with the trial ask you if you had had sexual intercourse since the attack?
A. I don’t recall that anybody had asked me that. It would have been after and not before.
Q. Did you ever voluntarily disclose to anyone associated with the trial that you had had sex with this teacher prior to the hearing?
INTERPRETER: Prior to?
Q. Prior to the hearing in August of 2009.
A short time later, the accuser fielded more questions from the military judge, including the following:
Q. Did you think that the jury would think poorly of you if they knew you had sexual intercourse a month before the trial?
A. Yes, correct.
Eventually, the military judge asked her questions about a curious statement she had made during pre-sentencing phase:
Q. When you were asked a question about not having contact–or excuse me, when you made the statement that you had no contact with men anymore, did the incident with the teacher run through your mind?
Q. Did you intentionally not mention that because you didn’t want the jury to think poorly of you?
A. No, I did not intentionally suppress that. I just was afraid that nobody would believe me.
Q. What do you mean you’re afraid nobody would believe you?
A. I mean by that I was afraid that nothing would happen to that man after he had done those things to me. I was so afraid that nobody would respect what I had to go through the entire year–nobody would understand what had happened to me.
Q. So you were afraid that the jury would not punish Sergeant Stewart if they knew about the sex with the teacher?
A. Well, the situation was very, very difficult for me. I don’t really know exactly what I thought in detail at the time, but the whole situation was very, very difficult for me.
When the military judge had finished questioning the accuser, he asked if either the prosecution or the defense had any more questions. Only the civilian defense counsel did, and he asked a single question:
Q. Ms. Heinrich, did you also have sexual contact with a very tall black guest at your pension? [Note: "Pension" is the German word for "bed and breakfast."]
The assistant trial counsel objected to the question but was overruled by the military judge, and the accuser was told to answer the question.
The accuser’s answer to that question and how others familiar with the case interpret the word, contact — or “contakt” in German — can be found inside the book, Three Days In August: A U.S. Army Special Forces Soldier’s Fight For Military Justice. It’s available in paperback and ebook via most online booksellers, including Amazon.com.