A senior leader assigned to Madigan Army Medical center and Regional Health Command Pacific has been found not guilty in a sexual assault case involving a civilian employee at Joint Base Lewis-McChord.
Col. Daniel McKay was charged with three violations of the uniform code of military justice: one violation of article 120, abusive sexual contact; one violation of article 128, assault consummated by a battery; and one violation of article 133, conduct unbecoming of an officer and a gentleman. He was acquitted of all charges.
The court-martial began Monday, Aug. 31, with panel selection. Because of McKay’s rank, all eight members of the panel were one-star generals. On Wednesday, Sept. 2, opening statements were made. On Thursday, the panel deliberated for just over an hour before delivering the not-guilty verdict.
Judge advocates for the government, essentially military prosecutors, said between May and June 2019, McKay, who serves as the director of organization and leader development at Madigan, behaved inappropriately in two meetings with a woman who works at the hospital.
The defense argued the woman’s story changed repeatedly over the last 14 months.
McKay was represented by Jocelyn Stewart, a civilian attorney who specializes in military defense. She served in the Army Judge Advocate Generals Corps from 2004 to 2012.
McKay has served in the U.S. military since 1984. He has been stationed at JBLM since 2013 and previously served as the chief nursing officer at Madigan.
During her testimony, the woman said she first met McKay in May 2019 when he came into her office to ask questions about a pending credentialing action. At that meeting, she says McKay told her she was “looking really good” and that she looked like she’d lost weight. When the woman went to end the meeting, she said she extended her hand to shake his. She alleged that, instead of shaking her hand, McKay used both hands to stroke her arm.
The woman told her supervisor the incident made her uncomfortable, but she didn’t report it because she says she feared losing her job.
The woman is a civilian employee at Madigan, although she served in the Army for three years previously.
Judge advocates for the government said in a second meeting in June 2019, McKay allegedly ran his hand up the inside of the woman’s thigh. During that encounter, the woman made an excuse to leave the room and told a coworker what was going on. After that meeting, the accuser made a formal complaint about both incidents.
During his testimony, McKay said he never touched the woman’s thigh. He did acknowledge having made a comment about her losing weight, which he called “unwise.” He also said that he used a two-handed handshake in their first meeting when she says he stroked her arm.
In closing arguments on Thursday, Stewart said that there were inconsistencies in the government’s case stemming from a lack of proper investigation on their part. Stewart said that once the woman made a formal complaint about the two incidents, leadership at Madigan launched an Army regulation 15-6 investigation. However, the woman was the only person interviewed for that investigation, according to Stewart.
Stewart said the accuser gave at least three accounts of the events: one during the 15-6 investigation, one to Army criminal investigation division CID investigators and one at trial. Each time, Stewart said, the woman gave differing accounts of where McKay allegedly touched her, how he touched her, what she was wearing.
Stewart said that, when questioned about the first incident, the accuser told investigators with the Army’s criminal investigation division that she “overreacted to a harmless situation.”
Stewart argued the woman was afraid for her job, not because of McKay’s influence as a colonel in the Army, but because she’d made a professional mistake regarding McKay’s credentialing action paperwork.
“Senior leaders give their power and their trust over when they step behind a closed door with someone,” Stewart said. “Col. McKay had no idea he put his trust in a person with so many deficits.”