A Spokane jury found a former civilian survival instructor at Fairchild Air Force Base not guilty of rape and assault today.
Michael W. Fassbender, 32, smiled as the jury read the verdict. He left the court without comment.
Most of the 11-man, one-woman jury declined comment, but one of them said in passing: “It was a difficult decision.”
Defense attorney Christian Phelps called it a difficult, emotional case.
“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.”
The jury deliberated about three hours today 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.
After the decision, a smiling Fassbender asked Phelps if he was free to go and promptly left with friends and family.
Across the aisle, the 27-year-old woman who made the allegations sobbed as 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 had met for the first time in person after chatting a few days over 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?”
According to court testimony, Fassbender, who until 2009 worked as a survival instructor for civilian contractor SERE Solutions, gave the woman a tour of secure facilities at Fairchild Air Force Base.
He took her to a mock prisoner of war camp and showed her facilities where military personnel are trained to resist giving information to their captors.
During intercourse, Fassbender admitted choking the woman 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 and she awoke to find Fassbender raping her.
“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 get her out of there alive — she went along.”
But Phelps argued that the woman’s story kept changing and that she told Fassbender that 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.”
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