AFA cadet acquitted of rape charge (6/03/05)

But guilty of indecent act over sex with girlfriend
By CARY LEIDER VOGRIN THE GAZETTE

A senior cadet at the Air Force Academy was acquitted of rape Thursday, the day after he would have graduated, but his future in the service is still in question.

Although cleared of the rape charge, cadet Benjamin Kuster was found guilty of a lesser charge of committing an indecent act, which the defense sought to have thrown out after the verdict was read. Defense attorney Richard Stevens said Kuster's former commander, who filed the charges for consideration, didn't want to proceed with the indecency charge if Kuster was acquitted of rape. The commander, Maj. Tyler Prevett, is expected to testify by telephone this morning before Kuster is sentenced.

Kuster could be sent to prison for up to five years on the indecency conviction. A rape conviction could have put him behind bars for life.

A jury of five military officers deliberated just longer than three hours at the academy Thursday afternoon before issuing its findings.

The charges stemmed from a night of partying in a hotel during a May 2004 field trip by the academy's scuba diving club to New Mexico. After the night of drinking broke up, Kuster and his girlfriend, Katherine Ivey, went to a room where other cadets were sleeping. The couple had intercourse on the floor before falling asleep next to the accuser, who testified that she awoke to find Kuster on top of her. The indecency charge resulted from Kuster and Ivey having sex while others were present.

The prosecution contended that the accuser, who graduated last year and is in pilot school, did not give consent to the sex. The Gazette does not identify alleged rape victims. "Not every rape is the stranger jumping out of the bushes with a gun or a knife," prosecutor Lt. Col. Michael O'Sullivan said in his closing arguments.

He said the accuser twice awoke to find Kuster's hand on her, which she brushed away both times before going back to sleep. "She rejected that hand not once, but twice. She woke up with the accused inside her. At the point she awoke, that rape was already done, it was already accomplished," O'Sullivan said. "The accused took advantage of a sleeping, unaware woman."

Stevens, the defense attorney, portrayed the accuser in his closing as a woman who was worried about her drunken acts of the previous night and their potential impact on her career and on her graduation.

He said that by accusing Kuster, she had an "insurance policy" that gives alleged rape victims amnesty from their own misconduct. "Desperation is a powerful motivator," Stevens said, saying that when the accuser awoke and sobered up, she realized her future was on the line.

"Nothing that night was nonconsensual," Stevens said, also referring to the accuser's conduct earlier in the night, when she drank several shots of rum and engaged in threeway kissing with Kuster and Ivey as others watched. He described the scene as a "`Girls Gone Wild' video." "She had broken probably numerous rules at the academy," Stevens said.

Kuster, of Iowa, did not testify in his own defense. Richards said he is grateful and relieved that his client was acquitted of the rape charge, and that he will work to see the indecency conviction dropped.

"This is not the kind of charge we deal with in a courtmartial," he said, adding that Ivey received only a letter of admonishment for having sex with Kuster in the presence of others. She was commissioned as a 2nd lieutenant during graduation ceremonies Wednesday.

"One person shouldn't have a federal criminal conviction while the other got yelled at on a piece of paper. Right now, his graduation and commissioning are up in the air. If it's appropriate for cadet Ivey, it's appropriate for cadet Kuster."

CONTACT THE WRITER: 636-0236 or cary@gazette.com