The junior Marine charged with sexually assaulting a child over the age of 12, met the girl on a dating app where she told him she was 22 years old, one of the Marine's defense attorneys said at a hearing Thursday.
The 14-year-old girl had been reported missing two weeks before she was discovered in the Marine's barracks room on Camp Pendleton June 28.
At the Camp Pendleton preliminary hearing, called an "Article 32" in the military system, prosecutors and the defense argued whether there was enough evidence for the case to proceed to a court-martial.
The Marine, Pfc. Avery Rosario, is currently in custody and was brought into the courthouse in shackles. He's charged with three counts of sexual assault of a child over age 12 and two counts of leaving base while on restriction, according to his charge sheet.
Rosario is assigned to Combat Logistics Battalion 5, 1st Marine Logistics Group.
Rosario's defense team argued that the Marine and two friends who witnessed his interactions with the girl all believed she was 22 years old. A Tinder profile the girl allegedly used under a fake name said she was 21, according to screenshots of the account shown in court.
In screenshots of direct message exchanges on Tinder and Instagram shown in court, the Marine asked her age. She told him she was actually 22.
"You're 21 right?" Rosario asked in the exchange.
"Yeah actually I'm 22," she replied.
The case received widespread media attention in July after photos of Rosario being led out of his barracks in handcuffs June 28 circulated online.
The girl was seen roaming the hallway at the barracks when military police were called, according to the defense.
The girl's aunt posted a series of videos on TikTok saying the girl had been the victim of sex trafficking and was sold to the Marine for sex.
In court, Rosario's defense said witness statements and those made by the girl to law enforcement didn't support those allegations.
According to the defense, Rosario surrendered his phone to Naval Criminal Investigative Service agents upon his arrest. The phone showed the pair initiated their conversations on Tinder then she suggested moving to direct messages on Instagram.
They spoke for several days and she suggested they meet.
Another Marine drove Rosario off base on June 27 to pick her up. The Marine told investigators the girl was with another woman when they met and that both women said the girl was 22.
In other statements to investigators, Rosario's roommate said he also believed the girl was 22. He said the girl spent the night in bed with Rosario and he heard the pair having sex.
When Rosario left for work the morning of June 28, his roommate kicked the girl out of the room because overnight visitors were not allowed, he told investigators.
In text exchanges shown in court the girl then messaged the Marine to return and let her back into the room, which he did.
But she had been seen in the hallway of the barracks and military police were called. They found her in Rosario's bed asleep, according to the defense.
She made several contradicting statements to investigators, the defense said, first giving them a false birthday. She later told them she'd lied to the Marine about her age. In further statements to law enforcement, the girl said she had been sex trafficked and had come to the base to be rescued.
Rosario's defense told the hearing officer the girl's changing statements showed her story wasn't reliable and that prosecutors had no evidence the girl was trafficked.
Prosecutors Thursday made no oral arguments — instead, they submitted several evidentiary exhibits to the hearing officer for review. They told the hearing officer the sexual assault charges were not related to consent on the girl's part, only her age.
In the military justice system, an Article 32 hearing is a preliminary one in which the prosecution and defense can each present evidence and call witnesses. Prosecutors need only establish that there's enough probable cause for the case to proceed to a court-martial.
A hearing officer — in this case, a Marine Reserve attorney — then writes a report and makes a recommendation to the military commander overseeing the prosecution. That commander makes the final decision whether to prosecute.
The commander in this case, Col. Prescott Wilson, is the commanding officer of Combat Logistics Regiment 1 at Camp Pendleton.
Gary Barthel, a former Marine attorney now in private practice, attended the hearing as an observer and is not involved with the case. He said that in the military system, if the Marine reasonably believed the girl to be 21 or 22 the charges could be dropped.
"(It) is a valid defense," Barthel told KPBS after the hearing. "If he had reasonable belief that she was of age then that would be a legal defense."
Prosecutors and defense attorneys have until next week to submit further filings to the hearing officer. It isn't clear when the officer will make his recommendation or a final decision whether to proceed to court-martial will come.
