Trial & Error
[Out, December 2008/January 2009]
By Richard Morgan
Capt. Eric Beyersdorf, a navigator with the Nevada Air National Guard and a member of the U.S. Marshals Service, woke up in his room at a Ramada Inn during a temporary duty shift in Florida one morning in March 2006 feeling great, which was his first warning. He shouldn’t have felt great; he had gotten trashed the night before and was expecting a wicked hangover. But instead he felt “euphoric,” and was even thinking about getting in a round of golf with his buddies. Then, in the shower, as he later testified, “When I was washing my butt, in that area, I realized that it wasn’t closed like it always is. It was open.” He continued, “My buttocks were bruised, and I had what I thought was like a rug burn on my penis, and my head was sore and my wrists were sore.”
Suddenly he had nightmarish flashbacks of being with an Air Force captain who got him drunk and maybe drugged, then waking up bent over a bed, being raped. In his flashbacks, he passed out only to wake up again, this time being raped on the floor, struggling and hearing multiple voices saying “Here we go. Grab him.” He remembered that he fled outside but collapsed and was dragged back to be raped while his body was draped over an ottoman.
After the flashbacks in the shower, Captain Beyersdorf talked to his fellow soldier buddies, who laughed at him about “homo-ing up” the night before with an Air Force captain they had met named Taylor. He was not sure what happened, but he eventually reported that the Air Force captain had raped him, triggering an investigation that ended Taylor’s military career.
What is known for sure is that Capt. Devery Lane Taylor had sex with men. On the witness stand he acknowledged being gay. During his court-martial at Eglin Air Force Base, in the patch of the Florida panhandle nicknamed the “Redneck Riviera,” locals branded the serial rapist “Tail Gunner.” According to testimony, he attacked his victims twice in the summer of 2004, not again until December 2005, then monthly until March 2006. In March 2007, Captain Taylor was sentenced to 50 years in prison after being found guilty on four counts of forcible sodomy, two counts of kidnapping, two counts of attempted sodomy, and one count of unlawful entry. He is ineligible for parole until the year 2027. He is now serving out his sentence in Kansas at Fort Leavenworth’s U.S. Disciplinary Barracks, the Pentagon’s only maximum-security prison (and a backup facility for Guantánamo Bay).
The Taylor trial, which stretched for nine days, highlights a particularly sticky wicket entrenched in “don’t ask, don’t tell”: A fair military trial in a same-sex rape case is practically impossible.
Prosecutors had difficulty investigating allegations without violating the “don’t ask” rule; and as the defense argued, a rape charge can’t be pleaded down to consensual gay sex because it’s also illegal in the military. (For that matter, the Pentagon also forbids consensual adultery and heterosexual sodomy.) Any soldier who gets so much as a blow job—let alone gives one—is a criminal according to the military code. So when soldiers are charged with homosexuality, the only way to avoid losing their job and retirement is to claim rape. “Don’t ask, don’t tell” becomes, in effect, “can’t ask, can’t tell.”
The court-martial judge himself pointed to an injustice that occurs under “don’t ask, don’t tell.” If the rape charges don’t stick, the gay ban could be enforced. “The government would change their mind and go, ‘Yeah, we’d rather have half an apple than no apple at all,’ ” the judge warned.
The judge’s words might have resonated with Captain Taylor, who grew up the son of apple farmers in a tiny Appalachian town where he spent his summer vacations canning food grown on his family farm. A churchgoing, God-fearing Boy Scout, Taylor majored in computer science in college, doing summer factory work to pay his tuition, and studied abroad in Romania. He worked various gigs, installing 911 computer-aided dispatch systems for the U.S. government, and completing another contract project at the U.S. Embassy in El Salvador. He spent free time volunteering at Salvation Army thrift stores and soup kitchens. (Letters sent to Captain Taylor at Leavenworth were not answered. His brother and father, reached by telephone, declined to comment for this article.)
Captain Taylor didn’t join the military until he was 33, in April 2003—his mother had wanted him to have a traditional career first—but he quickly became chief of patient administration for the 96th Medical Support Squadron at Eglin Air Force Base. Eglin was his first and last military assignment. He was honored as Company Grade Officer of the Quarter his first and third quarter there, and was Company Grade Officer of the Year for 2005. He was also awarded the Outstanding Service Medal for two years. He was very popular, organizing the base’s bake sale and chili cook off. Every performance report praised him as an excellent officer.
At 38, he sat solemnly during his court-martial, coiffed red hair and pressed dress blues entombed by the chamber’s dark wood paneling; blood red carpet spilled all around his feet. In the 274 days he was jailed between his arrest and his guilty verdict, he says he read the Bible verse by verse and wrote more than 60 songs. Nobody could argue that he wasn’t impassioned and goal-oriented.
The trial often lacked the dignity and decorum that all those sharp military uniforms evoke. Soldiers talked about being “homo’d up.” A civilian in his mid 20s—who had lost 80 pounds in five months to help achieve his lifelong dream of joining the Navy—admitted to having consensual sex with Captain Taylor and was asked, “You don’t think you’re a homosexual?” He answered, “Not now, no.” Testimonies became ensconced in a particular kind of fog: Accusers were too drunk to remember much of what happened but certain that, whatever happened, they didn’t agree to do anything gay.
Such absurdities are nothing new when “don’t ask, don’t tell” is concerned. In September 2007, a week before his retirement, Gen. Peter Pace, chairman of the Joint Chiefs of Staff, said during a Senate hearing about the Pentagon’s 2008 budget that gay soldiers are “counter to God’s law.” Immediate jeers in the Senate chamber prompted the committee chairman abruptly to adjourn the hearing and seal the doors. Five minutes later, the hearing resumed with General Pace tucking his tail between his legs, saying, “I would be very willing and able and supportive” to changes in Pentagon policy “to continue to allow the homosexual community to contribute to the nation without condoning what I believe to be activity—whether it be heterosexual or homosexual—that in my upbringing is not right.” Three months later, 28 retired admirals and generals, including a former chairman of the Joint Chiefs of Staff, responded to General Pace by submitting a petition to Congress urging the admission of openly gay soldiers.
In July this year, Congress’s House Armed Services Personnel Subcommittee held hearings on “don’t ask, don’t tell” in which Sgt. Maj. Brian Jones, a retired Army special operations officer, recounted how, sometimes, “the only way to keep from freezing at night was to get as close as possible for body heat, which means skin-to-skin … There can’t be any arousal. There can’t be that awkward feeling” (Jon Stewart, The Daily Show host, retorted on his show: “If nighttime patrol gives you a hardon, I think you’ve got bigger problems than being gay.”). Elaine Donnelly, president of the Center for Military Readiness, also told the Congressional committee that, if “don’t ask, don’t tell” were repealed, “the result would be devastating because the military doesn’t do things halfway.” An all-gay military?
For their part, the members of Congress were critical of anti-gay stances. “You’re basically asserting that straight men and women in our military aren’t professional enough to serve openly with gay people,” said Rep. Patrick Murphy (D-Pennsylvania). “How do you respect their service if you want them out?” asked Rep. Christopher Shays (R-Connecticut).
The members of Congress may have actually been sounding their constituents’ opinions. July also saw the release of a Washington Post-ABC News poll that noted striking support across demographics for allowing openly gay troops: 82% of white Catholics, 80% of Democrats, 75% of Independents and married couples, 72% of white evangelical Protestants, and 64% of Republicans. An interesting outlier was support for gay troops among military veterans: 71% approved of closeted gay troops, but only 50% approved of openly gay soldiers. Overall, 75% of Americans now support openly gay troops, the poll found, compared to 62% in 2001 and 44% in 1993.
Sometimes even the Bush administration seems rather inclusive of openly gay soldiers. While discharges related to “don’t ask, don’t tell” doubled under the Clinton administration—from 617 in 1994, the policy’s first effective year, to 1,241 in 2000—the opposite has occurred under President Bush, with discharges of gay soldiers decreasing by 50%, from 1,273 in 2001 to 612 in 2006, the most recent data available. Cynical analysis—including a damning December 2007 60 Minutes report—suggests that openly gay soldiers are being tolerated, frankly, because the Pentagon needs all the soldiers it can get. Ironically, though, many gay soldiers who have been booted out in recent years were medics, Arabic translators, and other crucial personnel. Although Captain Taylor often identified himself as a medic, his role at Eglin AFB was basically head desk assistant at the base’s hospital. He was disposable.
In May, the 9th U.S. Circuit Court of Appeals ruled that, based on the Supreme Court’s ban on anti-sodomy civil laws, the Pentagon cannot dismiss soldiers simply for being homosexual without proving that the gay soldier damages morale; dismissals purely because of homosexuality are a denial of a soldier’s constitutional right to due process, the court ruled.
As America readies itself for a new commander in chief to be sworn in on January 20, the issue of openly gay soldiers is timely. Does a new White House mean a new Pentagon too? It may.
Barack Obama has said the policy is “antithetical to the values of honor and integrity that our military holds most dear.” He supports the Military Readiness Enhancement Act, which would make discrimination against gay personnel illegal in the Pentagon.
Meanwhile, both straight and gay soldiers languish under a system that can enable gossip, threats, and witch hunts. Moreover, what’s to be made of cases, as might have happened with Captain Taylor’s trial, when a witch hunt accidentally catches a witch?
“It’s really a Samaritan snare for these guys,” said Steve Ralls, a spokesman for the Servicemembers Legal Defense Network, a nonprofit watchdog and policy group dedicated to lifting the ban on openly gay military service. “It is the opposite of teamwork and trust and loyalty and all those noble military traditions: These cases have soldiers being wary of other soldiers, not knowing whether they will get roped into trouble because of guilt by association. Even if they didn’t do anything wrong. You have to remember that some soldiers get kicked out of the military for being gay; but some soldiers get kicked out of the military because people think they’re gay.”
Without being able to out anyone as gay officially, government and defense lawyers both resorted to stereotyped circumstantial evidence, pointing out that a soldier who swears to his heterosexuality also trims his pubes, or wears a nipple ring, or sometimes puts his arm around gay friends. “You’ll hear from him, under oath, that he trims up his pubic hair. He’s a male, and he’s in his 30s, and he trims himself up. That’s how he normally does it,” a lawyer tells the jury at one point, talking about one of the accusers. At another, when an accuser says “I mean, he was draping himself on me. He was constantly trying to come on to me. He was always leaning on me. He always wants to be beside me,” an attorney follows up with “And that is not unusual in the gay community, is it?” Captain Taylor is even asked “Have you ever received any theater training?” And a line of questioning on the subject of nipple rings produces the following exchange:
Q. He wears a nipple ring?
A. He showed it to me.
Q. He admits that he’s got a nipple ring?
A. Oh, yeah. He showed it to me.
Q. Do you know any straight guys that wear nipple rings?
A. No, I don’t. That’s a gay thing, as far as I know.
Rather than calling the logo for the Human Rights Campaign a blue square with a yellow equal sign, it was described as “a blue sticker, with two parallel gold bars that appear to be captain’s bars.”
The trial exposed “don’t ask, don’t tell” not merely as an open joke in public policy but very seriously and very dangerously as an obstruction to justice. Giving an accused gay rapist a fair military trial is a catch-22 (the book Catch-22, interestingly, also involves ludicrous bureaucracy faced by Air Force soldiers): If the accused isn’t guilty of forced sex, then he’ll be expelled for consensual sex. Such an approach makes cases tougher on the innocent even as it provides ample room to hide for the guilty. How can the Pentagon hope to expose a gay rapist in its ranks if its policy is basically to sweep talk about gays under the rug? While Captain Taylor was convicted, how many unknown and unreported opportunists in uniform see a hush-hush Pentagon as a playground for rape?
“Don’t ask, don’t tell” is actually just half the story. Law journals often cite its longer nickname: “don’t ask, don’t tell, don’t pursue, don’t harass.” The policy’s recently deceased chief architect, Northwestern University sociologist Charles Moskos, called it simply “don’t ask, don’t tell, don’t pursue.”
According to the court transcript, Captain Taylor’s accusers—Captain Beyersdorf, Lt. Wayne Cox, ex-airman Keith Kaczocha, Staff Sgt. Jason Sanders, and civilians Dago Rivera and James Rogers—were all very drunk during their sexual encounters (they were all contacted to comment for this article; all declined). Their testimony overflows with bottles of Bud Light, pints of Guinness, Red Bull with vodka, lemon drop shots, tequila, oatmeal raisin cookie shots, Irish car bombs, and raspberry liqueur. They suspected Taylor of having drugged them with GHB, the iconic so-called “date-rape drug,” although all tests for the drug were negative and no GHB was found in Taylor’s residence. When Lieutenant Cox was asked point-blank “And even today, you don’t know whether you were raped or not, do you?” his response was a cold “No, sir.”
When a physical exam of Captain Beyersdorf was conducted soon after his rape, there was no trauma in his rectum or on his buttocks. Undeterred, a prosecutor asked, “How much force to have sex with a person who’s just a rag doll?” The prosecution called a doctor to the stand who testified that Captain Beyersdorf’s weird morning euphoria suggested—but didn’t prove—that he was still feeling the giddy, debilitating effects of GHB.
Without question, Captain Beyersdorf and the other accusers were angry. When one was asked why he waited so long before coming forth, he said flatly, “I was coping. I decided that I was going to hire someone to beat him up and leave a sign on him stating that he had raped a man. And I knew if I came forward that I’d be a suspect.”
When Sergeant Sanders left Captain Taylor’s apartment after a sexual encounter, he was so drunk and debilitated that he called 911 for a ride home, telling the 911 operator, “I’m just really drunk and I’ve got—I’m married and I’ve got a wife and a kid. I don’t know where the hell I’m at either.” In the span of his three-minute call, Sergeant Sanders told the 911 operator “I just want to go home” nine times. But by the time police showed up, Sergeant Sanders had hitched a ride home with a newspaper delivery van. Four days later Sergeant Sanders admitted himself to a rehab clinic for alcoholism; he had tried reporting the crime on base but says he was told by military investigators, seemingly out of the blue, “Y’know, cocaine is not a date-rape drug or anything.”
For his part, Captain Taylor was certainly not above suspicion. Cruising his favorite gay bar he introduced himself with a variety of identities, often under the name “Ma Rouge,” sometimes as an opera singer or an international fashion model or a secret agent. His preferred accents included Belgian, French, Norwegian, Scottish and Spanish—never the folksy Appalachian drawl of his rural North Carolina hometown. His voice is soft and studied, with the crisp enunciation of a newscaster. Sometimes his flirting consisted of a simple dirty look, a steadily held gaze. Other times he would approach his targets audaciously, starting a conversation with one by saying “You’ve got the most luscious set of bun-buns that I’ve ever seen” (to which the reply was “Whatever”). He had sex with many of the men the same night he met them, sometimes without knowing their names. Lots of folks, gay and straight, have one-night stands, of course; but date rapists don’t tend to score second dates.
Many of the encounters wove through a bar called Helen Back, a meeting ground for bikers, soldiers, gays, and straight civilians. It has a military night, a ladies’ night, and a guys’ night (as well as a bald night and a service-industry night). It’s a place of sexual liberties, selling T-shirts that boast of "going above & beyond the call of booty" and sandwiches with names such as French Kiss and Menage à Trois. As evidenced by the various Washington Redskins jerseys on the walls, before the Taylor court-martial the area was best known as the hometown of Danny Wuerffel, a Heisman Trophy winner who went on to have a short and lackluster NFL career.
In closing arguments, the prosecution called Captain Taylor “the worst kind of wolf in sheep’s clothing, because he threatens human trust. He violates their bodies and their minds. Single victims, married men, fathers, heterosexual, homosexual—it doesn’t matter to him.
“And what upsets Captain Taylor more than anything else? It’s not sexual assault, because the response to that is ‘No worries.’ He was a little bit upset about a suggestion that he was actually trying to kill anybody. But what he was the most upset about was if you ever insinuate that he committed oral sex on anybody,” the prosecutor continued. “I want to be clear that I don’t believe rape is a sexual crime. It is about control. It is about the primary sexual organ, the mind.”
Captain Taylor’s modus operandi was laid out for the jury: the charming conversationalist who slipped drugs into men’s drinks then milked his hospital stature to play Florence Nightingale, taking them to his home where, with nobody to protect the victims, he could have his way with them. “That’s what predators do, is lead you into a false sense of comfort,” the prosecution clarified. “To Sergeant Sanders: ‘Sit Back.’ To Captain Beyersdorf: ‘Relax.’ How pitifully condescending from this arrogant rapist. How disgusting when their bodies can’t do anything but slip away. No one is sitting back and relaxing anymore. He’s been revealed for who he is, and the stories of six men have become one very painful experience. This was not a gay roundup. They were finding a serial rapist, and they found him.”
The jury of 10 officers took seven hours to deliberate before finding Captain Taylor guilty on all counts. The accusers’ sex lives are still known only to themselves; as for reasonable doubt, “don’t ask, don’t tell” essentially mandates that it is not unreasonable to assume all soldiers are straight. When faced with a charge of “soldiering while gay,” there’s no telling what an officer might do under the gun.
During his interrogation by the sheriff’s office at his initial arrest, Captain Taylor was asked “Why would these people say these things about you?” The Air Force captain’s response: “Just look at them.” Looking is all the investigators and jury members could do. Because they couldn’t ask, and they just couldn’t tell.
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