False convictions, ruined lives

Editor’s note: This story includes frank discussion of a sexual relationship.

Dreams are crushed on this sunny patch of sand just north of Mexico. Dreams also come true, and the 20 or so young men tackling the beachfront obstacle course at Naval Amphibious Base in Coronado, Calif., hope theirs will. Today is Saturday. On Monday, they will begin Basic Underwater Demolition School, or BUDS, the most demanding mental and physical training in the Navy and, many would argue, the world. These men, some still teenagers, hope to emerge at the end of 24 weeks having earned the right to pin on a gold trident, the iconic emblem of the U.S. Navy SEALs. Looking on, Special Warfare Operator Senior Chief Keith Barry says some of them will quit on Day One.

That’s why he’s out here on the obstacle course, coaching three fit, square-jawed ensigns on how to handle these high-climbing, rope-swinging, rib-breaking apparatus. When Barry first attempted this course, he was like these men—22 and hungry, yearning to pass BUDS and fulfill his dream of joining the best of the best. Back then, Barry thought SEAL training was tough. Now, though, he’s 44 and, until recently, a convicted felon. And nothing the BUDS instructors could dish out, he says—in fact, nothing al-Qaeda or the Taliban could dish out—compares with the hell he endured after being accused of rape.

Sexual violence has been in the news month after month, each time with debate about whether to trust the woman or the man she says raped her. Some say, always trust the woman. Others point to some allegations proven false. I have been on both sides of this issue. My mother in the 1970s turned our Hawaii rental house into a flophouse for drug dealers. There, I was raped three times between the ages of 13 and 14, and sexually assaulted once by a regular visitor. Had I felt empowered to report those crimes, I knew it would have been my word against the perpetrators’.

And yet, it was the same for a young friend of our family in 2016. I’ll call him Josh. Foolishly, Josh, a Navy man, had consensual sex with a married woman. She then attempted to conceal the adultery by accusing Josh of rape. Naval Criminal Investigative Service agents quickly plastered wanted posters in the public areas of Josh’s apartment building. Protesting his innocence, Josh turned himself in. NCIS agents interrogated him. He likely would have become a statistic except for a text Josh produced for the cops in which the woman revealed her plan to accuse him of rape.

As both a rape survivor and the friend of a man falsely accused, I watched the 2018 clash of Justice Brett Kavanaugh and his accuser, Christine Blasey Ford, with interest. Many journalists commenting on false rape accusations invoked the words “rare” and “myth.” The truth is, false rape allegations happen every day.

BY 2012, Keith Barry had been an active duty SEAL for more than 18 years. A veteran of multiple combat deployments, he landed a job as a SEAL instructor at the mother ship, the prestigious “wet side” of Naval Amphibious Base Coronado that the SEALs call home. Diagnosed with combat-related traumatic brain injury, Barry knew he couldn’t deploy to the forward areas any longer. So, this full-circle assignment was to be his last, his “twilight tour” before retirement.

Two hours north of Coronado, a civilian woman—we’ll call her CW—was also busy with her career. CW was 33, single, and a businesswoman. In her leisure time, she hung out with a group of close girlfriends she referred to alternately as the “Vaginas” and the “Wifeys.” “Wifeys” was a reference to the women’s status as the love interests of Navy SEALs. “Vaginas” was a reference to the group’s interest in The Vagina Monologues, the Eve Ensler play that, in part, seeks to “raise awareness” about rape.

One of the Wifeys was CW’s cousin. In November 2012, the cousin’s fiancé, also a SEAL, showed CW a photo of Keith Barry. CW later said Barry was “hot,” “a Navy SEAL,” and she “of course, wanted to meet him.” After exchanging text messages, the two arranged a date for Dec. 8 in San Diego, the first of what would be just four encounters. That evening, Barry told CW he’d just moved to California, hadn’t even picked out a place to live, and wanted only a casual relationship. CW agreed. She wasn’t looking for commitment, either, she said.

When the first date ended, CW demurred from Barry’s proffered goodnight kiss. She found him charming and considerate, but she wasn’t “going to rush into anything,” and also didn’t want him to think she was a “floozy.” However, the relationship quickly accelerated.

On dates two through four, CW and Barry engaged in sex between 10 and 15 times. Explicit texting punctuated the intervals between dates, and it seemed to Barry that nothing sexual was off the table. In her texts with the Wifeys, CW began referring to Barry as “my Navy SEAL.” As the New Year rolled around, she told friends it was “love for me in 2013.”

Barry says now he once regarded casual, unmarried sex as harmless as long as it took place between consenting adults. Today, he acknowledges the deceptiveness of such thinking. He now warns that sex outside marriage has consequences far beyond quotidian troubles like venereal disease or unwanted pregnancy, all the way to the unthinkable.

BOTH CONTEMPORARY RESEARCH AND ANCIENT LITERATURE examine unthinkable acts, including false allegations of rape. A 2017 Dutch study of 57 proven false allegations revealed eight different motives: material gain, alibi, sympathy, attention, regret, a disturbed mental state, relabeling, and revenge.

That last motive applies to the first recorded instance of a false rape accusation, the one leveled against Joseph, son of Jacob, in the book of Genesis. Potiphar, captain of Pharaoh’s palace guard, looked on Joseph with great favor and put him in charge of his household. Joseph was handsome, and Potiphar’s wife wanted him. Day after day, she tried to seduce him, but he declined her advances. Spurned, she accused Joseph of attempted rape, and Potiphar had him thrown in prison.

In slaveholding America, black slaves sometimes were lynched or wound up in prison after white women accused them of rape to cover up illicit but consensual sex. Fast-forward to the Jim Crow era and two infamous cases: the Scottsboro Boys of Alabama and the Groveland Boys of Florida. In each case, white women fabricated allegations of rape, alleging multiple black male attackers.

In the 21st century, female liars flipped the racial script: At Duke University in 2006, a black female college student accused three white lacrosse players of gang rape. The rape allegations proved false, and the Durham, N.C., district attorney was disbarred for trial misconduct.

In 2014, another famous false charge: In her widely read and reprinted story, “A Rape on Campus,” Rolling Stone writer Sabrina Rubin Erdely alleged the gang rape of an unidentified female student at the University of Virginia. Erdely’s story soon unraveled. A female university dean whom Erdely had cast as chief villain sued her for “libel with actual malice” and won.

In 2018, during the Kavanaugh-Ford battle, some journalists said only 2 percent of rape allegations are false. A 2006 study of 812 rape cases supported this number. But criminologist Brent E. Turvey and his co-authors, in their 2017 book, False Allegations: Investigative and Forensic Issues in Fraudulent Reports of Crime, said the 2 percent stat “has no basis in reality. Reporting it publicly as a valid frequency rate with any empirical basis is either scientifically negligent or fraudulent.”

In the 1990s, the FBI clocked the rate of specious allegations at 8 percent, according to Turvey. A 2016 meta-analysis of seven studies found an average false reporting rate of 5 percent. In the mid-2000s, the Making a Difference (MAD) project crunched stats on 2,059 rapes and sexual assaults specifically reported to U.S. law enforcement, the only study to do so. MAD found a false allegation rate of 7 percent.

How many is that? According to the FBI, law enforcement agencies received 116,645 reports of rapes or sexual assaults in 2014, the most recent year for which comprehensive law enforcement statistics are available. Applying MAD’s 7 percent false reporting rate, that’s a total of 8,165 false reports—or about 22 every day of the year.

This figure does not count accusations not reported to law enforcement, like those made against Brett Kavanaugh. It also does not include false allegations not yet known to be false. This is the irony of the Kavanaugh reporting: While opinion-makers busily cited the 2 percent stat, they failed to mention the cases of at least five men—and one boy—exonerated of rape in the months leading up to and during the Kavanaugh hearing.

Malcolm Alexander, a Louisiana resident, served 38 years in prison before DNA evidence in January 2018 proved him innocent. Four months later, in May 2018, a New York court vacated the 1992 rape, sodomy, and kidnapping convictions of VanDyke Perry and Gregory Counts after DNA evidence forced their accuser to admit the rape never happened. Perry had served 11 years in prison, and Counts, 26.

Then in June 2018, DNA evidence cleared Christopher Miller, an Ohio resident who had served 16 years for rape. In October 2018, five Pennsylvania high school girls admitted to targeting a boy with false sexual assault allegations. The reason: They didn’t like him. By the time of the girls’ confession, though, the boy had been fired from his job, endured multiple court appearances, and been placed in juvenile detention and on house arrest.

The fifth man exonerated in the run-up to the Kavanaugh clash was Keith Barry.

IN JANUARY 2013, while much of the nation shivered, the weather in Coronado, Calif., was the kind that makes Southern California famous: fair skies and temperatures that hit the 70s by midafternoon. After another week of sexual text banter, Barry's accuser, CW, arrived in the island city on Friday, Jan. 11, to spend the weekend with Barry.

As they sat in a wine bar, CW smiled and asked Barry, “Where is this going?”

“Where is what going?” Barry said.

“This. Us.”

“It’s not going anywhere,” he said. It was the discussion they’d had before. Barry explained he wasn’t ready for a committed relationship.

Here, their stories diverge. According to Barry’s May 2013 statement to investigators, CW then asked him if he would be open to experimentation, along the lines of sexual activities described in Fifty Shades of Grey, the 2011 “bondage and discipline” novel that had suburban moms reading porn. Barry says he said yes. CW would later deny that such a conversation ever took place.

CW said throughout the weekend Barry was “distant” toward her, and even insulting. Barry says the distance developed between them after he told her a second time that he wasn’t interested in a serious relationship. The “insults,” he says, were a continuation of the banter they’d engaged in since they met.

According to the record of trial, the two engaged in sex numerous times during the weekend. On their last day together, Barry enacted what he claims was CW’s suggested “experimentation.” At trial, CW conceded that throughout this time, Barry obtained her specific verbal permission at least four times. At one point, CW said something like, “This is just like Fifty Shades!”

Then came two minutes that would alter the trajectory of Barry’s life. He performed on CW an act they’d never tried together. At the commencement of that act, both parties agree, CW said, “No, no, no, please go slow.” Both parties say Barry complied.

However, their interpretations of the entire episode were very different. Barry interpreted CW’s words, “please go slow,” as consent. CW later testified she uttered those words only because she knew Barry wouldn’t stop.

This may be true. However, attorney Neal Puckett, a former Marine Corps trial judge, says differing views of events are a common theme in rape cases in which one party claims the encounter was consensual while the other claims it wasn’t: “It’s like one person is held responsible for not being able to read the other’s mind.”

CW conceded she did not yell or scream, “No, no, no.” Nor did she raise her voice or struggle. Instead, she finished by saying, “Please go slow.” Barry thought she meant it.

Afterward, CW showered. Then she tried to kiss him, but he had once again turned cool. Later that morning, CW asked Barry whether she would see him the following weekend. He said no, he had plans to go climbing with friends. Hurt, CW climbed into her car and drove home. On the way, she sent her cousin a chirpy text full of exclamation points about her most recent adventure in bed.

The next day, CW told her cousin the whole story. When the cousin learned CW had said to Barry, “No, no, no,” the cousin said, “So he raped you.” A week later, CW accused Barry of rape.

DURING THE OBAMA ADMINISTRATION, Congress instituted a crackdown on sexual assault in the military. U.S. Sen. Kirsten Gillibrand, a New York Democrat now running for president, led the charge. In May 2013, at the exact moment Keith Barry was fighting accusations of rape, media outlets hyped a Pentagon report that showed an increase in service members reporting sexual abuse. That was a good thing. The military had new programs emphasizing victim support and discouraging reprisals against service members who reported sexual crimes.

However, another section of the Pentagon report received little notice: It showed false allegations rising at an even faster pace than reports of rape and sexual assault overall. During this period, the Pentagon faced congressional pressure not just to investigate more thoroughly alleged assaults, but to prosecute more service members who had been accused. That’s how Barry, in the heat of a highly sexual relationship, found himself accused of performing a single act that CW alleged was against her will.

At trial, Barry’s attorney noted that CW didn’t act like a victim of sexual violence. Right after the alleged rape, she asked to see Barry the following weekend. In a videotaped statement to investigators, she gushed like a slumber-party teenager about her time in bed with Barry. The attorney also pointed out CW’s chirpy post-coital text to her cousin, and that CW only decided she’d been raped after her cousin suggested it.

The prosecution, meanwhile, built a methodical case against Barry, calling witness after witness, all of whom repeated what CW had told them. Their cumulative testimony became the only side of the story the trial judge heard. Barry’s attorney was so confident the judge, Capt. Beth Payton-O’Brien, would rule in favor of his client that he didn’t see the need to put Barry on the witness stand to defend himself.

At the end of a three-day court-martial, Payton-O’Brien found Barry guilty of rape. After 19 years of service, the Navy busted him down from senior chief to seaman. Days later, on Halloween 2014, the gates of the Naval Consolidated Brig—the military prison at Marine Corps Air Station Miramar in San Diego—slammed shut behind him.

In April 2015, Rear Adm. Patrick Lorge, the officer who had convened Barry’s court-martial, reviewed the proceedings as well as Payton-O’Brien’s findings. Never had a case given him greater pause. He did not feel the prosecution had proved its case, or even that Barry received a fair trial: Lorge believed Barry was not only “not guilty” but probably actually innocent. Lorge was about to disapprove the court-martial findings when he says a pair of powerful Navy judge advocates (military lawyers), both admirals, told him that to do so would mean bad public relations for the Navy, and would also hurt Lorge’s career. Feeling he would have “a target on his back,” Lorge let the guilty verdict stand.

At the Miramar brig, officials demanded that Barry attend remedial training for prisoners convicted of sex crimes. Barry complied, but repeatedly refused to sign forms requiring him to declare himself a sex offender. In retaliation, prison officials put him in solitary and withheld the medication he’d been taking for his traumatic brain injury. He remembers that time as the darkest of his life. Barry served 2½ years in prison, all the while maintaining his innocence and filing appeals.

Released on April 1, 2017—April Fools’ Day—Barry then commenced life in the black pit located at the bottom of the long fall from decorated Navy SEAL to convicted felon. He was forced to register as a sex offender. He couldn’t get a job, not even driving an Uber, because of the background check. Before prison, Barry owned a Virginia rental property and had a sizable retirement account, but he liquidated it all for his failed defense. After prison, he survived on credit cards and loans from friends and family.

Then, 16 months later, vindication.

For three years, Rear Adm. Lorge’s decision in the case had plagued him, and to his credit, he came forward on Barry’s behalf. In September 2018, the U.S. Court of Appeals for the Armed Forces overturned Barry’s conviction, calling the Navy judge advocates’ influence in the case “unlawful” and a “manipulation of the criminal justice process.” The court overturned Barry’s conviction “with prejudice,” which means he can never be retried.

AT THE HEIGHT OF THE KAVANAUGH HEARINGS and even now, #MeToo activists seemed to regard men like Barry as acceptable collateral damage, sacrificial lambs whose blood is just payment for what they see as millennia of male violence against women. However, the Bible says “bearing false witness” is a crime, precisely because of the harm it does to the innocent—and to true victims, like me, whose testimony lies in the shadow of doubt created by unaccountable false accusers.

Even as he faced trial in 2014, Barry had faith in the American justice system. There was no way, he thought, that military lawyers would convict an innocent man. But the guilty verdict and his torment shattered the core principles around which Barry had built his life. He now feels that the American government, for whom he laid his life on the line for nearly two decades, betrayed him.

Barry isn’t sure what he’ll do now. After first resisting the appeals court’s findings, the Navy reinstated Barry as a senior chief and restored his pay. But he’s still fighting for five years of back pay and not making much progress. Sometimes, he just wants to get out of America, he says, away from the politics that destroyed his life.

“Maybe I’ll go down to South America or Mexico,” he says, “just get away from here and work with people who need help.”

On the other hand, Barry suspects that’s exactly what the Navy would like, for him to go away. But the same Navy taught him never to quit.