He-Said She-Said Cases in the Military
The most difficult aspect of a sexual assault case is the idea that often the only evidence of guilt is the testimony of an alleged victim. What do we mean by that? In most sexual assault cases in the military there is ample evidence that a sexual event actually took place, but the only evidence that the sexual act was non-consensual is often from the testimony of the alleged victim.
Evidence of consent is so limited because there is usually not video cameras or eye-witnesses at the time of the sexual act. Sex is ordinarily private, and because of that, the answers about consent are often only known by just the accused and the accuser.
We call these “he-said she-said” cases, because the evidence that really matters comes down to what he says versus what she says. Frankly, in many of these cases, he may never even testify because the accused has a right to remain silent, and the case only comes down to the credibility of what the alleged victim says.
How Can the Jury Be Convinced
When the Prosecution only has the testimony of the alleged victim as evidence of the lack of consent, it becomes vital for the defense team to do everything they can to highlight inconsistencies in testimony, motivations to lie, or reasons for misperceptions and misunderstandings.
Our country is in the midst of a very powerful movement called the #metoo movement. A core aspect of this movement is to eliminate sexual violence, but in the course of so doing, they often promote the idea that “victim’s don’t lie.” After handling thousands of these sexual assault cases, we can tell you that some victims most certainly do lie and manipulate investigators, prosecutors, and the jury.
The military is notorious for taking cases that local prosecutors didn’t want to take because they didn’t have enough evidence. The military then takes those cases, puts on just one witness, and uses the idea of unlawful community influence. This idea is that over years, commanders have been pounding into the heads of military members that we are to believe an alleged victim of a sexual assault merely because they are willing to say that they were sexually assaulted.
You need a good attorney in the courtroom, helping the jurors to understand the nature of our criminal justice system and the importance for evidence to be not only from the word of a single person but beyond a reasonable doubt. We’re going to make sure that the jury fully understands the nature of the importance of the burden of proof and what it means for our client to have their life and liberty stripped from them, if they are to be convicted. Evidence, as in physical, forensic, and eyewitness testimony, must be demanded. If that’s missing from the case, we’re going to pound on that podium until that jury truly understands the nature and importance of finding a person not guilty unless they are given reliable evidence that proves guilt beyond a reasonable doubt.
Will A Sexual Assault Case Be Dropped If The Alleged Victim Doesn’t Want To Participate?
A sexual assault case may go all the way to trial, even if the alleged victim has stated that they don’t want to participate. On one hand, the Department of Defense and the military at large has a policy that says they shouldn’t be forcing alleged sexual assault victims to go through with a court martial or testify, if they don’t want to. On the other hand, prosecutors and special victims’ counsel are trained to get alleged victims to participate all the way through the end of trial, even if they don’t want to. They do that by trying to play to their sympathies and trying to guilt them into it. You need an attorney who can interface, if the alleged victim is willing to talk to the attorney.
We talk to them and let them know of their rights. If they don’t want to participate, they can insist on it, and they can often have the case dropped, so they never have to go through with it. In other circumstances, we don’t have that control and all the way to the day of trial, it is unclear whether that person is or is not going to come in. In some cases, they could even be subpoenaed to come testify against you in court. If you don’t have an attorney who is able to fully defend that case in the most expert way possible, you are being foolish. I’ve seen many circumstances where my client was fully convinced that the person wasn’t going to cooperate and in the end, they did, and they were convicted. Now, they are calling us for help on appeals.
