A judge's error has overturned the 20-year sentence of a former San Antonio Air Force sergeant found guilty of three rapes.
According to the Air Force Court of Criminal Appeals, which approved the appeal on Wednesday, July 19, Michael Silva's 2015 trial was flawed
because the military judge told jurors they could use the testimony of all witnesses to decide whether Silva had "a propensity to commit sexual assault." In short, Judge Natalie D. Richardson said it was OK to consider testimony from non-victims (like other women Silva had consensual, but violent, sex with in the past) as evidence to prove his guilt.
This means that unless the Air Force decides to try him again, Silva may soon walk free. A retrial would require Silva's rape victims to agree to testify against him all over again — a rollercoaster they may not want to repeat.
Silva was one of the dozen boot camp instructors convicted in the 2012 federal investigation into sexual assault allegations streaming out of Lackland Air Force Base
's basic training program. More than 30 women came forward to report sexual misconduct, assault, and rape at the hands of their male instructors — making it the worst case of military sexual abuse in nearly 20 years.
Silva was specifically charged with raping a 17-year-old Air Force trainee twice on base in San Antonio in 1995, and raping his ex-wife once in Wyoming in 2007. Both claimed Silva had choked them while assaulting them. Three other women who testified at the trial said that when they'd had consensual sex with Silva, he had tried to choke them (and it was unwelcome).
It's the testimony of those three women that Judge Richardson was talking about when she told jurors to consider the history of Silva's "propensity" to commit sexual assault in their ruling.
"The military judge’s erroneous instruction...permitt[ed] the members, essentially, to find by a preponderance of evidence from the charged and uncharged offenses that [Silva] had a predisposition to commit
sexual assault," write the panel of appeals judges.
The Air Force has one month to decide whether or not it will retry Silva's case — or let him off.