After two years of waiting, a U.S. Military Academy cadet has received a decision to overturn his rape conviction from an appeals court.

Cadet Jacob Whisenhunt was supposed to graduate this year but was sentenced to 21 years for sexually assaulting another cadet in July of 2016.

On Monday, an appeals court ruled the sexual intercourse was consensual due to a lack of evidence proving otherwise.

Whisenhunt was accused of assaulting a female cadet in her sleeping bag while she slept during a summer field training exercise, but the defense argued it was clearly consensual due to how many people were around when it occurred.

The female cadet claims she froze when she woke up and realized Whisenhunt was assaulting her, but Whisenhunt testified that the intercourse was the result of “escalating and consensual touchings.”



“The defense theory was that the appellant and [the victim] engaged in a consensual sexual encounter while taking active measures to avoid detection,” according to the written decision by three military judges, according to Military Times. “In our view, the circumstantial evidence in support of this defense theory severely undercuts the government’s case.”

Whisenhunt testified that they both tried to conceal what was going on by holding their breaths when they thought they heard someone walking by.

“We have carefully reviewed the evidence and, taking into consideration that the panel saw and heard the witnesses and we did not, we nevertheless conclude that appellant’s convictions are factually insufficient,” according to a written decision by three military judges.



The judges stated they believe it was unlikely that the female cadet wouldn’t gasp or cry out during the alleged assault and Whisenhunt made no effort to silence her.

Despite being dismissed from the Army for the conviction, Whisenhunt will now have the ability to return to West Point if he chooses.

“West Point is aware of the appellate court’s ruling and will take appropriate action,” West Point spokesman Lt. Col. Christopher Ophardt said on Tuesday.



Whisenhunt also has the option to request his dis-enrollment since he was charged before he completed two years at the academy.

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