A former survival instructor smiled Wednesday as a Spokane jury read its decision to exonerate him of three counts of first-degree rape.
Michael W. Fassbender, 32, asked his attorney, Christian Phelps, if he was free to go and left with his friends and family.
Fassbender declined comment, but Phelps said, “The evidence wasn’t there for a conviction. From the beginning, Mr. Fassbender denied these allegations and chose to go to trial despite the enormous penalties he would have received if convicted.”
Most of the 11-man, one-woman jury also declined comment, but one of them said in passing, “It was a difficult decision.”
Phelps called the trial an emotional case.
The jury deliberated about three hours Wednesday before finding Fassbender not guilty of three counts of first-degree rape and one count of second-degree assault with sexual motivation. The potential penalty could have been up to life in prison.
As Fassbender celebrated, the 27-year-old woman who made the allegations sobbed while her family offered support.
Deputy Prosecutor Sharon Hedlund had an appointment and could not attend the verdict. But on Tuesday, she argued that Fassbender took advantage of the woman he met for the first time Oct. 19 after chatting a few days before using an Internet dating service.
“If it happened just the way Mr. Fassbender said, what’s the motive … crazy female thing? Everything goes the way he suggests it goes. If he follows every one of her demands, why does she become hysterical … and go to law enforcement?”
Fassbender had been working before his arrest as a survival instructor for civilian contractor SERE Solutions Inc., which trains military personnel in what to expect if they’re taken prisoner. The company said in a statement Wednesday that Fassbender has not been employed there since late last year.
According to court testimony, Fassbender took the woman to classified portions of Fairchild Air Force Base, including a mock prisoner of war camp and a building that houses an interrogation center.
Fassbender admitted to slapping and choking the woman during intercourse, but he said he didn’t know that she had passed out. The woman testified that she told him to stop, but he choked her to unconsciousness.
“What happened out there was the worst thing that can happen to a woman,” Hedlund said. “Mr. Fassbender would have you believe that this was all her choice. But the choice she made is the only one that got her out of there alive – she went along.”
But Phelps argued that the woman’s story kept changing and that she told Fassbender she liked rough sex.
“It’s pretty simple. You have two stories. You get to choose who to believe,” Phelps told the jury on Tuesday. “She made every effort not to let Mr. Fassbender know that she was scared.”
As he gave his final argument, the woman began crying so hard she had to be escorted out of the courtroom.
“It was consensual,” Phelps said. “She ultimately admitted that she put her hands up in the air and allowed her shirt to be pulled off. Is that consent? All of this conduct was indicative of willing” participation.
“Calling this a rape doesn’t make it a rape,” he said. “She invited that conduct and asked … for it.”