Sexual Assault Defense in the Military and the National Defense Authorization Act (NDAA)

Congress’ obsession with ensuring they appear tough on sexual assault in the military has reached new legislative heights.  Just this month, the President signed into law the latest NDAA which includes many changes to the rules and laws regarding sexual assault cases.  This link from the folks that keep JAGs up-to-date on the latest military justice law gives an excellent summary of the changes that affect the military justice arena.  The summary is also included below:

Summary of Changes to Military Justice in FY14 NDAA

This summary was written by Zachary D Spilman over at CAAFlog.

The compromise legislation contains 38 sections addressing military justice issues. The highlights include:

Section 1702(a), completely rewriting Article 32, changing the nature of the hearing from an investigation to a “preliminary hearing,” explicitly granting a victim the right to refuse to testify, and mandating that the hearing be recorded by “a suitable recording device.” These provisions will take effect one year after enactment.

Section 1702(b), significantly rewriting Article 60(c) to eliminate references to “command prerogative” and “sole discretion of the convening authority,” prohibiting a convening authority from disapproving findings of guilty to all but minor offenses, and significantly restricting a convening authority’s ability to grant sentence relief absent a pretrial agreement or recommendation from the trial counsel. These provisions will take effect 180 days after enactment.

Section 1703, eliminating the 5-year statute of limitations on the offenses of sexual assault (Art. 120(b)) and sexual assault of a child’ (Art. 120b(b)), effective on the date of enactment.

Section 1704, requiring, if requested by the alleged victim, the presence of “trial counsel, a counsel for the victim, or a Sexual Assault Victim Advocate” whenever “defense counsel” interviews an alleged victim of sexual assault. The section also states “defense counsel shall make any request to interview the victim through trial counsel.” There is no stated effective date for this provision (so, at enactment).

Section 1705, establishing a mandatory minimum sentence of dismissal or dishonorable discharge for the offenses of rape (120(a)) or sexual assault (120(b)), rape of a child (120b(a)) or sexual assault of a child (120b(b)), forcible sodomy (125), or attempts to commit these offenses. The section also limits jurisdiction over these offenses to general courts-martial. These provisions will take effect 180 days after enactment, and apply only to offenses committed on or after that date.

Section 1706, modifying Article 60 to allow the victim to submit matters for the convening authority’s consideration before action on the results of trial.

Section 1708, requiring deletion of the non-binding commentary in the discussion to R.C.M. 306 that suggests that a commander should consider an accused’s military service and character when making a decision on initial disposition of charges.

Section 1744, requiring creation of Service-level policies for the “review of decisions not to refer charges for trial by court-martial in cases where a sex-related offense has been alleged by a victim of the alleged offense.” This section also requires forwarding of cases in two scenarios: Forwarding to the service secretary for review any case where a staff judge advocate acting under Art. 34 recommends referral of sexual assault offenses and the convening authority refers no charges to trial; and forwarding to the next superior GCMCA for review when the SJA recommends against referral and no charges are referred.

For purposes of this article, these changes can be grouped in a couples categories: Article 32 changes; changes for “victim rights”; limiting post trial rights; general lowering of rights to an accused.

Changes to Article 32 Hearings

Article 32 hearings have traditionally been an outstanding opportunity for the attorneys from both the prosecution and defense to question witnesses and secure sworn statements made under the pressure of testimony and cross examination.  Making a statement from a witness stand in response to questioning by counsel is a very different act than making a statement in the presence of a gentle detective sympathetic to an accuser’s plight.  I have seen many sexual assault cases dismissed after Article 32 hearings because it is clear the alleged facts were lies, or the allegations simply don’t amount to a crime.  The independent review by an investigating officer gives a convening authority fresh eyes, and a typically neutral opinion.

Congress has now changed this hearing to a “kangaroo” event in which alleged victims need not testify.  How can a decision be effectively made regarding the quality of a case when the accuser isn’t even required to make a statement? Later this week, I have an Article 32 hearing that was reopened after the convening authority followed the advice in my objection to the earlier Article 32 hearing complaining that the investigating officer didn’t fully analyze the testimony of the accuser.  If this hearing had proceeded without testimony, the Defense would never had been given the opportunity to show that the elements of the offense were not satisfied.

The military environment, especially in light of recent kid-glove handling of “victims”, uniquely incentivizes individuals to make allegations of sexual assault.  Those willing to accuser another of sexual assault are stating a willingness to see the person accused face: life-time registration as a sexual offender; Dishonorably Discharged from the military; jail for life; and other collateral consequences that will forever devastate the accused if convicted.  Given the gravity of their allegation, it is not unjust to expect that person endure a few hours of cross examination on two separate occasions (Article 32 and trial).  Thankfully, the Constitution requires in-person confrontation (cross-examination) at trial, but the effort to limit pre-trial confrontation is in total disregard for the inherent justice in discovering truth.

Increasing “Victim Rights”

There is a fallacy in logic in the frequently quoted idea that “military culture often favors the rights of the accused over those of the victims.”  The truth is, once an allegation is made, the accused suffers years of isolation, degradation, and administratively required suspension of any favorable action.  I recently represented a West-Point graduate accused of rape.  It took almost a year an a half from the time the allegation was made until he was acquitted at trial.  During this time, he was removed from Ranger School, he was moved to mediocre positions, he couldn’t PCS, he received poor performance reports, was ineligible for promotion, and was made to suffer the humiliation of the military’s assumption of guilt.  Let me be clear, HE WAS ACQUITTED!!!  Yet this individual will never make O-6, he will likely be unable to retire because of all the cut-backs, and he will never be able to leave the shadow of the allegation.  The “victim” will NEVER suffer any consequence for her allegations.

Where is the justice?  Why can’t we hold an accuser to the highest of standards when their decision to report could forever alter the life of the accuser?  Why does Congress ignore the possibility of false reports?

Limitation of Post-Trial and Clemency Rights

The action of Lt Gen Craig A. Franklin in granting clemency to a O-5 pilot convicted of sexual assault created immense public outcry, and actually created the catalyst for much of the change to the military’s handling of sexual assault cases.  As a result, those convicted will no longer have the ability to receive meaning opportunity to be granted relief.  This academic paper written by Colonel Andrew Williams fully justifies the virtue of clemency in the military.

Further, the idea that those convicted of sexual assault MUST be dishonorably discharged, or any minimum punishment, is wholly in contrast to the very nature of our system.

Both the limit on clemency and mandatory sentences are wrong because the military often takes accused to trial for cases civilian courts would have never deemed serious enough for prosecution, and the military panels (juries) can suffer unlawful pressures to convict or punish in a manner that must be reviewed.  People in the military are often prosecuted for the slightest of allegations of sexual assault.  Essentially, many military members are prosecuted for acts that would be considered sexual harassment in the civilian world. In these cases it is extremely important that even if the member is convicted, they don’t face the unreasonable punishments that Congress has made mandatory.  I have represented many individuals convicted of crimes in which we were able to save them at the sentencing proceedings from discharge or lengthy confinement.  No two cases can be grouped together, and Congress shouldn’t seek to try and do so.

Clemency is so very critical because military juries and judges can get it wrong.  In one case, I represented an individual accused of sexual assault.  He was convicted of a much less serious offense, and ultimately given punishment that was less than the maximum punishment for an Article 15.  The convening authority in that case dismissed the conviction and instead gave my client only an Article 15.  You see, the discretion of the convening authority allowed him the ability to see that my client didn’t deserve to face a lifetime of consequences for being a federal convict, and that the facts the victim alleged were simply not sufficiently supported to ultimately result in this type of conviction.  Further, the convening authority was faced with a legal nuance that jeopardized whether the case would ultimately stand the scrutiny of appellate courts.  This is just one example of hundreds I could give of the necessity of clemency.

Lowering Rights of the Accused

The bottom-line is that legislators feel an unreasonable need to presume guilt, regardless of whether a case is sufficient to establish guilt.  For example, the character of an accused should absolutely be considered in every case.  The very idea of rape is the most personal invasion of a individual’s body aside from murder.  A person capable of rape has displayed the lowest respect for the victim.  Isn’t it remarkably relevant to know if the person accused has a history of being either respectful or disrespectful to females?  If a person has lived a life demonstrating the most gentle regarding for other humans, never displaying a violent or aggressive tenancy, and always striving to protect the vulnerable, shouldn’t those facts be considered in determining if he is even capable of the offense alleged?

Operators (soldiers, sailors, marines, and airmen with their finger on the trigger) have the right to make split second decisions in the field to end the life of those they deem a threat to their lives.  Low ranking officers have the command authority to lead dozens of subordinates directly into the line of fire.  Low ranking JAGs are trusted to prosecute the most serious cases in the military justice system.  However, Congress has determined that to not proceed on a sexual assault case, we need a commander with the same level of authority that can launch a nuclear war (literally).  We are also lead to believe that in light of all of this Congressional pressure, these commanders are able to make decisions without the fear of political reprisal.

How this Impacts a Sexual Assault Case

The changes to the law are frustrating and void of logic.  However, your rights at trial to prove your innocence remain largely unchanged.  These changes ultimately increase the likelihood you will face a jury if you are accused.  The need to have defense counsel experienced and skilled in the actual defense of sexual assault cases in front of juries is your best, if not only, chance to clear your name.

I have previously discussed the ways to effectively approach the actual defense in sexual assault trials (Winning Your Court-Martial, Winning Your Court-Martial, Part II, False Rape Allegations, and Accused of Sexual-Assault in the Military), and I will be sure to add articles on the topic in the future.  Today’s post was intended to highlight the ridiculous ways Congress seeks to limit rights, but ultimately, my faith in juries to reach justice is high, and with effective representation, I believe innocence will shine through.