Air Force hearing examiner says female subordinate never said “no” while having sex with accused general

Sig Christenson
San Antonio Express-News

Jan. 25—Air Force Maj. Gen. Phillip A. Stewart’s defense against charges he sexually assaulted a female subordinate rests on his claim that the two had a consensual affair and she never said “no” to him.

An Air Force hearing examiner who reviewed the evidence against Stewart said a court-martial was not warranted and the charges should be resolved administratively. Stewart’s boss, Lt. Gen. Brian S. Robinson, rejected that recommendation and ordered Stewart to stand trial. A court-martial is scheduled for June.

Now, new details have emerged about the hearing examiner’s findings. They show that Col. Brian Thompson was emphatic in advising Robinson that the evidence against Stewart was flimsy and prosecutors had “no likelihood” of securing a sexual-assault conviction at trial.

“I will not hedge; even taking the evidence presented in the light most favorable to the prosecution, no rational trier of fact could find the elements of sexual assault here beyond a reasonable doubt,” Thompson wrote in his Oct. 29, 2023, report.

“At no point did (the alleged victim) express, through words or conduct, that she was not freely agreeing/consenting to engage in the sexual acts with accused,” Thompson wrote. The woman “never said ‘no’ or ‘stop,’ or took a physical action that would have communicated ‘no’ or ‘stop,'” the report states.

Still, Thompson’s findings were far from uniformly favorable for Stewart. His report states that when Air Force investigators interviewed the woman a month after the encounter, “she believed in her mind that the sexual acts were nonconsensual.” She told investigators she was “just too shocked and scared to say anything,” and that Stewart “never asked if it were OK. He never asked if I wanted to.”

Thompson also said the general was guilty of conduct unbecoming an officer and engaging in a prohibited extramarital affair, offenses for which Stewart himself, in the past, had recommended prosecutions of subordinate officers.

‘Loss of confidence’

Thompson’s findings and recommendation grew out of an Article 32 evidentiary hearing at which he presided. Like a civilian grand jury proceeding, an Article 32 hearing is held to determine whether there is sufficient evidence of a crime to warrant a trial.

A defense lawyer for Stewart previously shared parts of Thompson’s report with the San Antonio Express-News. More recently, a separate source provided the paper with additional portions of the document. The Express-News asked the Air Force for a copy of the entire report, and for comment from Robinson on his decision to reject Thompson’s recommendation. The service did not respond to the requests.

Stewart is accused of sexually assaulting the female officer at or near Altus Air Force Base in southwestern Oklahoma on April 13, 2023, and again the following day. At the time, he was commander of the 19th Air Force at Joint Base San Antonio-Randolph, the service’s pilot training arm.

In May, Robinson, head of the Air Education and Training Command, of which the 19th Air Force is a part, stripped Stewart of his command, citing “a loss of confidence in his ability to lead.”

Stewart is only the second general in Air Force history to face a court-martial.

Thompson issued his recommendation to Robinson after the Article 32 hearing, which was held Oct. 24, 2023, at Randolph AFB’s ornate administration building, known as the Taj Mahal. At that hearing, Stewart’s defense team asserted that the sexual encounter was voluntary, and Air Force prosecutors countered that given Stewart’s rank, the woman had no choice but to submit.

In recommending that Stewart not be ordered to stand trial, Thompson said Air Force prosecutors had no evidence he forced the woman to have sex. “There is no likelihood that the government here would be able to obtain and sustain a conviction in a trial by court-martial,” Thompson wrote.

His report cited comments the woman made to Air Force investigators: “And I’ve never told him no for anything, and I’m … I don’t know why … I couldn’t. I just let him, and it was like some weird autopilot like, like, it wasn’t even me … it was just mechanical.”

Thompson said the woman told investigators that “at times she ‘encouraged’ accused” and that “when he asked/offered to perform oral sex on her she essentially allowed him to do so.”

Thompson, summarizing the evidence, wrote that the woman “engaged in conversation with (the) accused during breaks between the sexual acts, laughing at him, teasing him, and complimenting him, talking about how they would keep the sexual encounter from their spouses, letting him know she had an IUD.” He added that “she and accused continued kissing during breaks between the sexual acts.”

Thompson said Stewart and the woman lay in bed together “for long periods of time when they were not engaged in sexual acts. During this time, they interacted consistent with individuals engaged in a consensual encounter … and they continued to kiss.”

The hearing examiner advised Robinson that it would be impossible for the prosecution to prove “that accused was not acting on an honest and reasonable belief that (she) was consenting to the charged sexual acts.”

Thompson wrote that even if the woman “formed in her mind the belief that she was not consenting,” Stewart could not have known that. “Without words or facts that communicated non-consent, no reasonable person in accused’s position would have believed that (she) manifested a lack of consent to the sexual acts in any way,” the report says.

Up to 63 years if convicted

Stewart faces court-martial on four charges: sexual assault, conduct unbecoming an officer, dereliction of duty and extramarital sexual conduct. He’s also accused of violating Air Force rules by flying an aircraft after consuming alcohol within 12 hours of takeoff at Altus AFB on April 14, 2023.

Thompson recommended that all of those charges be resolved outside of a court-martial. He urged Robinson to order an Article 15 proceeding, a nonjudicial process in which a commander sets the punishment for minor violations of the Uniform Code of Military Justice. Under Thompson’s recommendation, Stewart also would have gone before a grade determination board to decide whether his rank should be reduced, a step that would cut his military pension.

Instead, Robinson ordered that Stewart face trial on all of the charges.

If convicted of all the allegations against him, Stewart would face a maximum penalty of 63 years in a military penitentiary and dismissal from the Air Force, the equivalent of a dishonorable discharge.

Thompson’s report said that although there was probable cause to believe Stewart had committed a “bottle-to-throttle” violation — drinking alcohol within 12 hours of takeoff — Air Force prosecutors could not cite a previous case in which a pilot had been court-martialed for the infraction.

‘Shady’ conduct

Thompson’s report also details the evidence underlying the charge of conduct unbecoming an officer, which arose from an incident separate from the sexual encounter at Altus AFB.

In March 2023, Stewart and the female subordinate attended a conference in Denver. Thompson’s report says Stewart texted the woman three times urging her to spend the night in his hotel room. The woman declined.

She later became upset over the exchange and showed the texts to the 19th Air Force command chief and an aide, “who thought accused’s efforts were ‘shady,'” Thompson wrote. “They were shady,” he went on. “Perhaps accused would assert that he was just looking out for the safety of one of his subordinates who was drinking late into the night. But he did not offer to secure transportation for her or offer to try to get her a room at the conference hotel.

“Rather he wanted her to come sleep in his room with him, at least at the outset on separate beds, and was disturbingly persistent in making this offer,” Thompson wrote. He concluded, “It is not difficult to define accused’s actions on 7 March 2023 as unbecoming an officer.” Nonetheless, he recommended that “this offense be disposed of other than by court-martial.”

Last week, Stewart’s lawyers petitioned Robinson to allow the general to retire rather than face trial. Air Force Secretary Frank Kendall III will have the final say on that request.

The 19th Air Force is responsible for all flight training operations within the Air Education and Training Command. As head of the 19th, Stewart oversaw 32,000 employees and 1,530 aircraft assigned to 17 wings across the United States.

He was a command pilot with more than 2,600 hours in the air, including over 600 hours in combat. Among other assignments, he served a stint as commander of the 362nd Expeditionary Reconnaissance Squadron at Balad Air Base in Iraq and was commanding general of the NATO Train Advise Assist Command-Air in Kabul, Afghanistan.

The only other general officer in Air Force history to face a court-martial was Maj. Gen. William T. Cooley, who commanded the Air Force Research Laboratory at Wright-Patterson AFB in Ohio. Cooley was convicted in April 2022 of abusive sexual conduct and was reduced to the rank of colonel. He retired in June 2023.


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