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
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
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
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
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
"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
"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."
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