Ivor G. Luke Hospital Corpsman Second Class (E-5), U.S. Navy Convicted Sex Offender Indecent Assault

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Name: Ivor G. Luke

Case: U.S. v. Luke NMCCA 200000481

Decided 28 September 2004

Sentence adjudged 22 February 1999.

Plea: Not Guilty

Charges: Indecent Assault

Military Branch: U.S. Navy

Listed In National Sex Offenders Registry? NO

Contrary to his pleas, the appellant was convicted of two specifications of indecent assault in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934. A general court-martial comprised of officer and enlisted members sentenced the appellant to confinement for two years and a bad-conduct discharge. The convening authority approved the sentence as adjudged.

The appellant served as a hospital corpsman aboard ship [guided missile cruiser Port Royal at Pearl Harbor]. One evening, while the ship was in homeport, the victim in this case, Seaman (SN) N, came to the ship’s medical spaces for an examination for a possible sexually transmitted disease (STD). The appellant had previously examined SN N’s boyfriend, Fireman (FN) A, who told the appellant that his skin rash had grown worse after sexual activity.

Instead of examining SN N on the examination table normally used for physical exams, the appellant directed SN N to go into the back room containing two racks. The lights were off. The appellant closed the only door to the space, leaving a small crack of light from the main office area. He ordered SN N to take off her clothes, then pushed her down on a rack.

The appellant placed his fingers into SN N’s vagina and asked her questions about her sexual stimulation. He handed her some lubricating jelly to apply to her vaginal area and continued to ask her about her sexual experience, particularly with FN A.

Claiming that she was still “too dry,” the appellant slid her bra down and placed his mouth on her breast. At this point, SN N pushed him off, dressed and left. As she was leaving, the appellant asked SN N not to tell anyone what happened.

SN N and FN A were both assigned to the ship, which had a regulation prohibiting dating between members of ship’s company. Both SN N and FN A knew of this regulation and realized that they were in violation of it. Both wanted to keep their relationship quiet so as to avoid punishment for their disobedience. At the time of the appellant’s assault upon SN N, she knew that she was pregnant with FN A’s child.

The appellant contends that the military judge committed plain error by allowing a Government expert witness, Dr. Chris Basten, to offer opinion testimony on the probability that DNA found on the bed sheet and SN N’s bra matched the appellant’s DNA, vice the DNA of some unknown person. In particular, the appellant argues that the expert witness did not identify or explain what databases he used in formulating his opinions. According to this argument, because he had no information about the databases, the military judge could not perform his “gatekeeper” function to screen unreliable evidence from the members.

We have considered the remaining assignments of error and find them lacking in merit. We specifically find that the evidence is legally and factually sufficient. The findings and the sentence, as approved by the convening authority, are affirmed.

Note: This case is still under appeal, as of July 27, 2010, twelve years after the alleged attack took place, focused around the issue of DNA evidence presented at trial. The Army suspended the DNA scientist, Phillip Mills from his job at the Army’s laboratory at Fort Gillem, Ga. Mills was under investigation by Army Criminal Investigation Command on allegations that he falsified DNA test results. Mills admitted making one false entry in a DNA case, the Army said. The Army’s Criminal Investigation Command is reviewing 479 DNA cases handled by Mills. In an opinion issued April 7, the appeals court ruled that Luke should get a new hearing on whether the DNA evidence in his case was tainted. His conviction could be reversed as a result.