The fifth man exonerated in the run-up to the Kavanaugh clash was Keith Barry.
IN JANUARY 2013, while much of the nation shivered, the weather in Coronado, Calif., was the kind that makes Southern California famous: fair skies and temperatures that hit the 70s by midafternoon. After another week of sexual text banter, Barry's accuser, CW, arrived in the island city on Friday, Jan. 11, to spend the weekend with Barry.
As they sat in a wine bar, CW smiled and asked Barry, “Where is this going?”
“Where is what going?” Barry said.
“It’s not going anywhere,” he said. It was the discussion they’d had before. Barry explained he wasn’t ready for a committed relationship.
Here, their stories diverge. According to Barry’s May 2013 statement to investigators, CW then asked him if he would be open to experimentation, along the lines of sexual activities described in Fifty Shades of Grey, the 2011 “bondage and discipline” novel that had suburban moms reading porn. Barry says he said yes. CW would later deny that such a conversation ever took place.
CW said throughout the weekend Barry was “distant” toward her, and even insulting. Barry says the distance developed between them after he told her a second time that he wasn’t interested in a serious relationship. The “insults,” he says, were a continuation of the banter they’d engaged in since they met.
According to the record of trial, the two engaged in sex numerous times during the weekend. On their last day together, Barry enacted what he claims was CW’s suggested “experimentation.” At trial, CW conceded that throughout this time, Barry obtained her specific verbal permission at least four times. At one point, CW said something like, “This is just like Fifty Shades!”
Then came two minutes that would alter the trajectory of Barry’s life. He performed on CW an act they’d never tried together. At the commencement of that act, both parties agree, CW said, “No, no, no, please go slow.” Both parties say Barry complied.
However, their interpretations of the entire episode were very different. Barry interpreted CW’s words, “please go slow,” as consent. CW later testified she uttered those words only because she knew Barry wouldn’t stop.
This may be true. However, attorney Neal Puckett, a former Marine Corps trial judge, says differeing views of events are a common theme in rape cases in which one party claims the encounter was consensual while the other claims it wasn’t: “It’s like one person is held responsible for not being able to read the other’s mind.”
CW conceded she did not yell or scream, “No, no, no.” Nor did she raise her voice or struggle. Instead, she finished by saying, “Please go slow.” Barry thought she meant it.
Afterward, CW showered. Then she tried to kiss him, but he had once again turned cool. Later that morning, CW asked Barry whether she would see him the following weekend. He said no, he had plans to go climbing with friends. Hurt, CW climbed into her car and drove home. On the way, she sent her cousin a chirpy text full of exclamation points about her most recent adventure in bed.
The next day, CW told her cousin the whole story. When the cousin learned CW had said to Barry, “No, no, no,” the cousin said, “So he raped you.” A week later, CW accused Barry of rape.
DURING THE OBAMA ADMINISTRATION, Congress instituted a crackdown on sexual assault in the military. U.S. Sen. Kirsten Gillibrand, a New York Democrat now running for president, led the charge. In May 2013, at the exact moment Keith Barry was fighting accusations of rape, media outlets hyped a Pentagon report that showed an increase in service members reporting sexual abuse. That was a good thing. The military had new programs emphasizing victim support and discouraging reprisals against service members who reported sexual crimes.
However, another section of the Pentagon report received little notice: It showed false allegations rising at an even faster pace than reports of rape and sexual assault overall. During this period, the Pentagon faced congressional pressure not just to investigate more thoroughly alleged assaults, but to prosecute more service members who had been accused. That’s how Barry, in the heat of a highly sexual relationship, found himself accused of performing a single act that CW alleged was against her will.
At trial, Barry’s attorney noted that CW didn’t act like a victim of sexual violence. Right after the alleged rape, she asked to see Barry the following weekend. In a videotaped statement to investigators, she gushed like a slumber-party teenager about her time in bed with Barry. The attorney also pointed out CW’s chirpy post-coital text to her cousin, and that CW only decided she’d been raped after her cousin suggested it.
The prosecution, meanwhile, built a methodical case against Barry, calling witness after witness, all of whom repeated what CW had told them. Their cumulative testimony became the only side of the story the trial judge heard. Barry’s attorney was so confident the judge, Capt. Beth Payton-O’Brien, would rule in favor of his client that he didn’t see the need to put Barry on the witness stand to defend himself.
At the end of a three-day court-martial, Payton-O’Brien found Barry guilty of rape. After 19 years of service, the Navy busted him down from senior chief to seaman. Days later, on Halloween 2014, the gates of the Naval Consolidated Brig—the military prison at Marine Corps Air Station Miramar in San Diego—slammed shut behind him.