The outbreak of violence by individuals who seek to harm other persons or institutions cannot be reliably predicted today, the Defense Science Board said in a new report to the Secretary of Defense. Instead, efforts to counter violence should focus on prevention and mitigation of the threat.

The DSB was created and tasked in response to MAJ Hasan and the Fort Hood shootings. But does the report have important learning points in regard to sexual assault prevention.

h/t Secrecy News from the FAS Project on Government Secrecy

Here is an interesting article about the “discussion” about prison sexual assault. Can the same be said for non prison sexual assault views.

Engendering Rape Kim Shayo Buchanan* 59 UCLA L. Rev. 1630 Download Article:

Abstract

This Article highlights a systematic bias in the academic, correctional, and human rights discourse that constitutes the basis for prison rape policy reform. This discourse focuses almost exclusively on sexual abuse perpetrated by men: sexual abuse of male prisoners by fellow inmates, and sexual abuse of women prisoners by male staff. But since 2007, survey and correctional data have indicated that the main perpetrators of prison sexual abuse seem to be women. In men’s facilities, inmates report much more sexual victimization by female staff than by male inmates; in women’s facilities, inmates report much higher rates of sexual abuse by fellow inmates than by male or female staff. These findings contravene conventional gender expectations, and are barely acknowledged in contemporary prison rape discourse, leading to policy decisions that are too sanguine about the likelihood of female-perpetrated sexual victimization. The selective blindness of prison rape discourse to counter-stereotypical forms of abuse illuminates a pattern of reasoning I describe as “stereotype reconciliation,” an unintentional interpretive trend by which surprising, counter-stereotypical facts are reconciled with conventional gender expectations. The authors of prison rape discourse tend to ignore these counter-stereotypical facts or to invoke alternative stereotypes, such as heterosexist notions of romance or racialized rape tropes, in ways that tend to rationalize their neglect of counter-stereotypical forms of abuse and reconcile those abuses with conventional expectations of masculine domination and feminine submission.

* Kim Shayo Buchanan is Associate Professor at USC Gould School of Law.

Uncomfortable Places, Close Spaces: Female Correctional Workers’ Sexual Interactions With Men and Boys in Custody Brenda V. Smith* 59 UCLA L. Rev. 1690 Download Article:

Abstract

It is well known that sexual abuse occurs within the correctional system. That female correctional staff commit a significant proportion of that sexual abuse is met with discomfort bordering on disbelief. This discomfort has limited the discourse about female correctional workers who abuse men or boys under their care. Scant scholarship exists that addresses the appropriate response to sexual abuse by women; even less addresses sexual abuse by female correctional workers. Likewise, feminist jurisprudence on sexuality and desire does little to illuminate the motivations of women who engage in sexual misconduct or abuse, much less women who abuse men or boys in custodial settings. What the literature does acknowledge is that female sex offenders receive less-harsh sanctions overall than male sex offenders; they are even less likely to be prosecuted or punished when the victim is male and in custody. Additionally, although female correctional workers have access to significant power by virtue of their roles, that power may be diminished by a confluence of gender, race, and class. The literature also acknowledges that female correctional staff’s entry into the correctional system was a great success for reformist feminists and that women have become power players within the correctional system because of their ability to supervise both women and men. Despite this status, however, women still experience sexual discrimination and harassment, both from male staff members and from male inmates. For black female correctional workers, gender discrimination is compounded by race and class discrimination.

This Article examines female-perpetrated sexual abuse in custodial settings and its place at the intersection of race, class, and gender in order to disentangle complex and overlapping narratives of abuse, sex, desire, and transgression. Ultimately, this Article confronts our discomfort with and reluctance to acknowledge the fact that women sexually abuse men and boys in custody, and it offers possible explanations for these behaviors.

* Brenda V. Smith is Professor of Law at American University Washington College of Law and the Director for the Project on Addressing Prison Rape.

United States v. Parker and Woodruff

In these consolidated appeals, the Government challenged the district court’s orders dismissing its 18 U.S.C. § 4248 (2006) petitions for civil commitment of Lonnie Parker and James Woodruff, who were both convicted of various sex offenses and sentenced in military court-martial proceedings, but are currently housed within a Bureau of Prisons facility. The district court dismissed the Government’s petitions because it found that “§ 4248 does not apply to military prisoners [since] they are not `in the custody of the Bureau of Prisons’ pursuant to 18 U.S.C. § 4248(a).” In so holding, the district court relied on its order in a related case, United States v. Joshua, No. 5:09-hc-02035-BR (E.D.N.C. Jan. 13, 2010), which was recently affirmed by this court. See United States v. Joshua, 607 F.3d 379 (4th Cir. 2010) (holding that an individual convicted and sentenced by United States Army court-martial but housed within a facility operated by the Bureau of Prisons is not “in the custody of the Bureau of Prisons” under § 4248(a)). The Government concedes that these appeals present the same issue addressed in, and that the disposition of the appeals is controlled by Joshua.

Because we agree that Joshua controls the outcome of these appeals, we affirm the district court’s orders dismissing the Government’s petitions.

Long term prisoners at the USDB can end up in a federal prison near their family. There are various ways this can happen, sometimes at the prisoners request. See Para. 6.15, DODI 1325.7, Adminstration of Military Correctional Facilities and Clemency and Parole Authority.

Prisoners with approved sentences to confinement may be transferred to Federal Bureau of Prisons (FBOP) facilities with the concurrence or by direction of the appropriate Secretary of a Military Department or designee. Authority to transfer prisoners to the FBOP confers no right on prisoners to request transfer. 6.15.3. A prisoner’s desire to be or not to be transferred to a Federal institution need not be considered in making the transfer decision.

However, the above case illustrates a potential issue if the person is a sex offender. Right now the Fourth Circuit holds that military prisoners in federal prisons are not subject to civil commitment based on United States v. Joshua. That could change, and that holding is only applicable so far within the Fourth Circuit.

United States v. Messias. The court set-aside a finding of guilty to because of an inadequate providence inquiry. No sentence relief granted.

While the providence inquiry establishes facts sufficient to demonstrate that the appellant drove on base and that he believed the driving to be wrongful, there are no facts developed which establish either the invalidity of the appellant’s license, if any, or in the alternative, his failure to have a valid license in his possession. We cannot infer either eventuality from this record. We are left with a substantial basis in fact to question this plea and conclude the military judge abused his discretion in accepting this plea on these facts. We note that the appellant remains convicted of a nearly four-month period of unauthorized absence from a combat arms unit and possession of a substantial quantity of marijuana aboard a Marine Corps base. We are satisfied beyond any reasonable doubt that the sentencing landscape, now devoid of the motor vehicle operator’s license violation, has not substantially changed.

United States v. Mendoza. Here the issue was not raised by appellate counsel. But the court found that there was insufficient facts within the providence inquiry as to all of the victims. No sentence relief.

A military judge sitting as a general court-martial convicted the appellant, pursuant to his pleas, of attempted sale of military property, sexual harassment, assault consummated by battery, and sale of military property, in violation of Articles 80, 92, 108, and 128, Uniform Code of Military Justice, 10 U.S.C. §§ 880, 892, 908, and 920. The appellant was sentenced to confinement for nine months, forfeiture of all pay and allowances, to be fined $500.00, reduction to pay grade E-1, and a bad-conduct discharge.

These cases above would indicate the trial counsel is not protecting the record. Judge Mc in his article about xxx pointed out how the trial counsel should be monitoring the elements and the evidence. The cases above are examples of how the trial counsel’s failure to protect the record might have cost the government a sentence reassessment and reduction. When the military judge asks, ‘does either side request additional enquiry,’ this is when trial counsel should be saying, ‘yes,’ with some proposed questions.

United States v. Magincalda, is a post-trial speedy review case. 857 days from date of trial to CA action. No relief.

A general court-martial with enlisted representation convicted the appellant, contrary to his pleas, of conspiracy to commit larceny, housebreaking, kidnapping, false official statements, and murder; wrongful appropriation; and housebreaking, in violation of Articles 81, 121, and 130, Uniform Code of Military Justice, 10 U.S.C. §§ 881, 921, and 930. The members sentenced the appellant to 448 days of confinement, the period of pretrial confinement, and reduction to pay grade E-l. The convening authority (CA) approved the sentence as adjudged and ordered it executed.

United States v. Sperlik. A urinalysis case. The court specified an sentencing instruction issue not raised by appellate counsel. The court found no error in the errors raised, but found error and reversed on a failure to give correct instructions to the members.

The record demonstrates that the policy of zero tolerance, and its seemingly reflexive relationship to a punitive discharge in the minds of the members, carried into deliberations. Specific, clearly curative instructions were required in order to dispel the members’ biases or improper consideration of that policy. None were given by the military judge.

Interestingly there was quite a bit of discussion and some instructions on collateral effects of not adjudging a punitive discharge.

The civilian defense counsel noted the need to dispel the members’ bias to the point of asking for a mistrial during the Article 39(a) session and alternatively for an instruction explaining zero tolerance. But rather than ensuring the members’ biases were eradicated, the military judge only provided a minimal instruction — that he could not instruct on zero tolerance and only reminded them that it should not be considered. The military judge further abused his discretion, in light of the specific questions presented by the members, in failing to fully address their concerns about administrative processing.

United States v. Fields,

The appellant assigns four errors: 1) the evidence was legally and factually insufficient to support the findings of guilt to Charge II and all specifications thereunder; 2) the indecent language offense is a lesser included offense of the attempted indecent language to a child offense and should be dismissed as multiplicious; 3) the appellant’s masturbation to an unknown party via webcam over the internet was factually insufficient to constitute indecent public exposure; and, 4) the military judge improperly denied the appellant’s motion to dismiss Charge II and all specifications thereunder as an unconstitutional invasion of his privacy. We have carefully considered the parties’ pleadings and the record of trial. We find merit in the appellant’s second assigned error and set aside the guilty finding for Specification 3 of Charge II (indecent communications) and dismiss the specification. Additionally, though not assigned as error, we find that the specifications alleging indecent exposure (Charge II, Specification 1) and indecent acts (Charge II, Specification 2) constitute an unreasonable multiplication of charges; accordingly, we set aside the guilty finding for Specification 1 of Charge II and dismiss the specification. We are satisfied that the remaining convictions and the sentence are correct in law and fact and that no error materially prejudicial to the substantial rights of the appellant remains.

The commanding officer of the Little Creek-based amphibious dock landing ship Gunston Hall was relieved of command Thursday after an investigation into allegations of sexual harassment, simple assault and conduct unbecoming an officer.

Navy Times adds additional information:

The skipper of the dock landing ship Gunston Hall was fired Thursday, and the executive officer and command master chief were punished following an investigation into charges that ranged from sexual harassment and simple assault to drunk and disorderly conduct. All of the charges stemmed from conduct during the ship’s deployment that ended in early July.

Military.com reports:

A lesbian cadet who was one of the U.S. Military Academy’s highest-ranking students resigned because she said she can no longer lie about her sexuality and was troubled by the anti-gay attitudes of some around her.

Read the various articles I’ve posted about confirmatory bias in connection with this piece from CMR about Sex, Lies & Rape. Although written in 2006, the points resonate today just as clearly.

An Army captain from Colorado charged with killing two Iraqi civilians has been convicted of lesser charges in Iraq. Military officials say Capt. Carl Bjork was found guilty of reckless endangerment and negligent homicide in a general court-martial on Tuesday. He was reprimanded and will lose a third of his salary for one year.

Army Times reports:

The mother of an Army specialist from Oshkosh who was fatally shot at Fort Hood in Texas says she’s disappointed in the sentence given to the soldier who killed her son. Armando Baca will spend 20 years in a military prison at Fort Leavenworth, Kan., for shooting 30-year-old Ryan Schlack during a party at the base.

Air Force Times reports that: Chief Gurney’s Article 32, UCMJ, hearing is scheduled for 26 May 2010, at Wright-Patt AFB, OH. bnd.com also has a post.

Air Force Times reports:

Two special operations pilots flying across Africa took a gamble that cost them big time. Even though they had six passengers, a crew member and not a clue where to find an emergency landing strip, they decided to risk flying on fumes to stay on schedule. Call them fuel-hardy, refusing twice to fill up with Jet-A gas. The twin-engine DHC-8 crashed in remote scrubland, wounding all nine onboard. Five had broken bones. A few simply suffered bruises. Three had back injuries so serious that they couldn’t walk. As for the $7 million plane, the Air Force wrote it off as a total loss.

And no disciplinary action.

Williams v. Superior Court of San Diego, D055457 (10 March 2010).

Marine Times reports

The Navy-Marine Corps Court of Criminal Appeals released today its en banc decision in United States v. Medina, No. 200900053, __ M.J. __ (N-M. Ct. Crim. App. Dec. 17, 2009). The main portion of the opinion focuses on Art. 120. The majority finds Art. 120 facially constitutional, citing United States v. Crotchett, __ M.J. ___, No. NMCCA 200800770 (N-M. Ct. Crim. App. May 12, 2009) (en banc), the court’s prior decision on Art. 120.

So begins a post on CAAFLog

Included in the task force’s 30 primary recommendations are a number of actions for helping victims of sexual assault, such as a suggestion that legislation be enacted requiring the Uniform Code of Military Justice to include a comprehensive provision on privileged communications between victims of sexual assault and victim’s advocates. The task force interviewed service members who reported being re-victimized when their previous statements to medical personnel and victim’s advocates were used to cross-examine them in courts-martial.

This suggestion continues the move toward prohibiting cross-examination of a complaining witness at court-martial. Before long they will have a rule that says you can’t cross-examine a complaining witness about false, incomplete, or inconsistent statements made to investigators or at an Article 32, UCMJ, investigation.

The suggestion also mischaracterizes the advocates role in the proceedings. Or perhaps it does reflect the reality — that most so-called advocates are merely adjunct trial counsel not in disguise. Perhaps they should be included as part of the prosecution team, then we can exclude them from supposedly private interviews with complaining witnesses.