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UCMJ and Sexual Assault Accusations

"Memo to prosecutors: You can repeatedly misbehave in court and still win a conviction."

It could happen to you.

Recently I began the defense of an Army sergeant accused of rape. The allegation, as is typical, stemmed from a night of heavy drinking by all involved. It was the husband who first raised the issue of rape. He alleged that he saw the accused assaulting his wife while she was passed out drunk on their bed. The wife said she didn't remember much of what happened because she was so drunk. And it became apparent that much of what she claimed was related to her by her husband afterwards when she reported the crime. The husband was himself drunk.

As is common in these cases we had requested the appointment of an expert to talk about the effects of alcohol on memory and other factors related to the effects of alcohol on a persons ability to engage in behaviors. The prosecution denied the request so a week before trial we had a hearing with the judge. The judge ordered the expert assistance. Because of the timing, the trial which was scheduled to begin the next week was delayed.

About a week later the husband approached the client and told him that he (the husband) had to come forward and tell the truth. It turns out that the husband and the complaining witness wife lied - in their statements to CID and at the Article 32, UCMJ, hearing. There was no rape. The husband has admitted that both he and the wife were awake and engaged in sexual activity themselves. The husband said the client was present, but that essentially any events in the bedroom were consensual. (There was no DNA evidence of the client on the clothing or bedding, only of the husband.)

Had we gone to trial on this charge we had a motive to lie. This accused was lucky, will you be.

Allegations of sexual assault in the military are no longer criminal allegations, they have become politically charged.

Read on, and then for more reading on my response to military sexual assault click here

Memo to military prosecutors: You can repeatedly misbehave in court and still win a conviction. Here Mike Doyle of McClatchy News is reporting on United States v. Hornback.

In a rather remarkable 3-2 decision, the court found that “significant prosecutorial misconduct” occured during the court martial of a Marine Corps enlisted man[.] Nonetheless, the court also concluded that Hornback “was not prejudiced” by the prosecutor’s misconduct, in part because the trial judge did everything possible to remove the taint.

The question must be asked why the judge should have to be doing everything possible to save the prosecution. His job is to be a neutral arbiter of the proceedings and ensure that both sides have a fair trial.

The unnamed prosecutor, according to the appeals court, “repeatedly and persistently elicited improper testimony, despite repeated sustained objections as well as admonition and instruction from the military judge.” The prosecutor the court observed, appeared to be “ inexperienced, ill prepared, and unsupervised in this case,” prompting the court to “ wonder what her supervisors were doing during the course of Appellant’s trial.”

“Instruction from the military judge.” So at what point did the military judge depart his judicial and supposedly neutral role by helping out the prosecutor?

The misconduct was “sustained and severe,” the court said. The prosecutor made “clumsy” efforts to slip in improper testimony. The misconduct was “repeated.” The prosecutor called the defendant “a criminal infection that is a plague to the Marine Corps.” The judge sustained defense objections 15 times, and repeatedly summoned attorneys for discussions at the bench.

Unfortunately the defense did not ask for a mistrial ruling at any point or challenge the military judge’s potential departure from a judicial role in the proceedings to a role that, by possible perception, of becoming something of an advocate. Experienced civilian counsel aren’t reluctant to ask for a mistrial in the appropriate case, or politely and professionally remind the judge of his role in a case.

The media and Congress have made prosecution of sexual assault allegations a political case as much as a case about the facts. When that happens the rights of the accused and of a complaining witness can get lost in the political and media mire.

Yet: Questions about alleged unlawful command influence that have dogged sexual assault cases in the Marine Corps have now been placed before the nation's top military appeals court.

Some of the legitimate attempts to address sexual assault are seeded with incorrect legal rules, incorrect medical advice, and patently wrong information.

Legal assistance reps discuss how UCMJ changes could affect servicemembers. Note the minimization of substantial changes as “minor.” They are not.

The changes do not significantly affect servicemembers accused of a sexual assault. The accused servicemember would still have the right to an impartial Article 32 hearing and the right to a fair trial. The minor changes are that a military victim may be entitled to decline to testify at the Article 32 hearing, and a JAG will serve as the investigating officer. However, even though a victim may no longer be required to testify at an Article 32 hearing, their sworn statements given to the Criminal Investigative Division can still be considered.

An Article 32, UCMJ, investigation was put in place in 1950, to protect an accused from “baseless charges” and to provide a defense discovery mechanism. For that reason it has always been critical to have the opportunity to examine a complaining witness under oath. “CID statements” are often incomplete and biased.

The stunning resignation of the military lawyer who was prosecuting an Army general on a charge of forcible sodomy is raising new questions about how commanders are handling sexual assault cases.

Here are some thoughts if accused in an educational environment. They are equally applicable (as discussed below) to the military environment.

And, as reported, Tumult over military sexual assaults far from over.

Some statistics suggest only 2% of military rape allegations are false. However:

A review of 556 rape accusations filed against Air Force personnel found that 27% of women later recanted. Then 25 criteria were developed based on the profile of those women, and then submitted to three independent reviewers to review the remaining cases. If all three reviewers deemed the allegation was false, it was categorized as false. As a result, 60% of all allegations were found to be false. Of those women who later recanted, many didn't admit the allegation was false until just before taking a polygraph test. Others admitted it was false only after having failed a polygraph test.

Is this true. There are certainly reasons to doubt the validity of the statistics above and the process used to achieve them. Here is a link to some interesting research on false rape allegations.

Two important things to know about a complaining witness:

  1. Has she made allegations before, and are they false. If there is a history of false allegations that could be a strike against the complaining witnesses credibility. Such evidence can be admissible because of the Sixth Amendment, U.S. Constitution right to confront witnesses.
  2. What is her motive to lie and put herself through all of this.

Here is a report from Marisa Taylor of McClatchy news about similar cases

I also represented SSgt Walton mentioned in the articles: Military's newly aggressive rape prosecution has pitfalls (which I would add leads to false complaints).

In a second article Ms. Talyor talks about how the sexual assault training is done wrong - plain and simple wrong - and that's affecting potential Members (jurors).

Last year, for instance, Marine Corps Staff Sgt. Jamie Walton faced charges relating to a brief affair with a 19-year-old female Marine. The charges against the married Walton included sexual assault and providing alcohol to a minor.

Prospective jurors reported that they'd been taught that a woman can't consent to sex after only a single drink. The judge instructed them to ignore the training. One juror, a Marine staff sergeant, nonetheless said he couldn't reconcile his prior training with the new instructions.

"It's just integrity, sir," the staff sergeant told the judge, a trial transcript shows. "I can't agree with it.

Here is a link to the Commandant of the Marine Corps "attitude" to sexual offenders. There has been at least one case so far where the military judge has ruled that the Commandant's comments are unlawful command influence (UCI). While the leadership may think that telling Members (juries) to convict or else is a proper way to address the politics, it could backfire. If they exercise UCI, then it's possible charges get dismissed and a guilty person goes free. The NDAA has been passed and there do appear to be some significant and interesting changes. While not a complete rejection of the issues raised about the constitutionality of Article 120 prosecutions, there are some helpful changes. See, Marisa Taylor, Congress tries again to get the sexual assault laws right. Sexual assault accusations in the military are among the easiest to allege and the most difficult to defend. You will be prosecuted under Article 120, UCMJ. That statute was significantly revamped and a new statute and charges became effective after 1 October 2007. A cynic can say that the rules were changed because not enough men were being convicted to satisfy special interest groups, the media, and Congress. One commentator on the new statute has this to say:

The Fiscal Year (FY) 2006 National Defense Authorization Act employed an unprecedented strategy to combat the threatening problem of sexual assault in the military. Congress completely overhauled Article 120 of the Uniform Code of Military Justice (UCMJ), removing "without consent" as an element of rape and other sexual assaults and opting instead to make consent and mistake of fact as to consent affirmative defenses. As an added measure, Congress took the rare step of shifting the burden of proof to the accused to prove the existence of all affirmative defenses by a preponderance of the evidence. In a final, unprecedented step, Congress shifted the burden back to the government to disprove, beyond a reasonable doubt, the existence of a defense after the accused meets his burden on the initial burden shift. This article contends, however, that depending on how the trial court implements the new Article 120's burden-shift, it will violate either the Fifth Amendment's guarantee of due process or the Sixth Amendment's promise of an absolute right to trial by jury.

Major Howard H. Hoege III, "Overshift" The Unconstitutional Double Burden-Shift on Affirmative Defenses in the New Article 120, THE ARMY LAWYER, May 2007.

Military sexual assault allegations are on the front burner due to Congress and media attention. As a result there is a great deal of pressure to prosecute and convict those accused of sexual assault. There is little, if any attention to the false allegations. I am litigating, as are my colleagues the issue of command influence on the outcome of investigations, accusations, and prosecutions. No-one disagrees that sexual assault is wrong, but ensuring unfair trials and that the innocent are victimized is not a strategy of accountability or good order and discipline.

Sexual Assault is a Major Crime, You Need an Experienced Civilian Military Lawyer

You need a military lawyer advocate who will fight for you without worrying about his or her next set of orders, promotion, or performance evaluation. In talking about prosecutors a speaker said:

"These are major crimes, not misdemeanors," said Vivian Gembara, a retired member of the Army's Judge Advocate General's Corps. "A lot of times what we see in the JAG court is very inexperienced, brand spanking new lawyers being given rape cases, murder cases."

Your military assigned defense counsel will often be similarly new and inexperienced.

  1. These cases are, as I frequently tell clients, political. There is significant and robust media attention, congressional attention, and attention from special interest groups and so commanders are scared of appearing soft on sexual assault. That means that in almost every case you are going to be prosecuted at court-martial. This can happen even in a case where a UCMJ Article 32, investigation hearing officer does not find reasonable cause or recommends a disposition other than court-martial because the case is weak or non-existent. In addition, the Congress and DOD have required and set up special resources and prosecution teams, while at the same time failing to provide similar adequate resources to staff and train the defense.
  2. Lt. Gen. Scott Black, the judge advocate general, said 15 Army lawyers are being trained as experts in sexual assault cases and they will be assigned to the Army's largest installation as prosecutors.

    There is intensive and ongoing sexual assault training. This training presents a roadmap to a complaining witness on how to make a false complaint. In some instances the training provides false information to the command and supervisors about sexual assault cases. In a recent case, fortunately an acquittal on the rape allegation, the training provided to the court members (the jury) was wrong as a matter of law and also medically wrong. The judge characterized the false training as being well-intentioned. That doesn't help you when you are sitting in the accused's chair with your future on the line and the whole system is against you.

  3. The events of most military sexual assault cases are typically a he-said/she-said situation. Rarely is a there a video or audio recording of events, and only occasionally are there witnesses. Although I have had cases where I have been able to use photographs taken at or near the time of the allegations to show that a complaining witness isn't really as drunk as she says. The most important theory you must identify is "why?" Why would she lie, why would she put herself through this, why would she come to court and talk about this?
  4. Alcohol is involved which can affect behavior and memory.
  5. Everyone is against you and typically you will be isolated and ostracized.
  6. Law enforcement will apply their psychological interrogation techniques to get you to make a statement.
  7. Law enforcement will get the complaining witness to phone you or contact you to talk about what happened. This is known as a pretext phone call. The law says this is legal, the law says that even though it is law enforcement you do not have to be advised of your rights, and the law says such statements you make in one of these "innocent" calls can be used to convict you. Moral. If you are accused of a sexual assault do not, repeat do not, have any contact with the complaining witness. To start with you could be in violation of an MPO against you.
  8. Law enforcement will tell you that they are only there to get the truth. That's not accurate. They are there to get you to confess or say something that can be twisted into a confession or admission of guilt. Generally investigators engage in what is called confirmation bias. They will hunt down and search out evidence they think will convict you. They will not hunt down something that helps you or hurts their case. They will ignore information that might be helpful to you, even going to the extent of leaving that helpful information out of their reports. The prosecutors who frequently fail to independently verify the case will then proceed based on an incomplete and biased law enforcement report of investigation.
  9. As an accused, the most important theory you and your military lawyer must identify is "why?" Why would the complaining witness lie, why would she put herself through this, why would she come to court and talk about this? Those are the arguments the prosecution will almost certainly make. An experienced military lawyer and advocate for you will be able to determine your best defense, including the reasons why the complaining witness is making a false allegation.
  10. Call for an initial free consultation to discuss your sexual assault case with an experienced successful military lawyer handling these types of cases.

A colleague is responsible for collecting these examples of legitimate research on false rape allegations, to him thanks!!!

Willoughby, Do False Allegations of Rape Made by Women Affect the Workings of the Criminal Justice System?

Epstein, True Lies: The Constitutional and Evidentiary Bases for Admitting Prior False Accusation Evidence in Sexual Assault Prosecutions:

And old (and provocative) assessment:

"A review of 556 rape accusations filed against Air Force personnel found that 27% of women later recanted. Then 25 criteria were developed based on the profile of those women, and then submitted to three independent reviewers to review the remaining cases. If all three reviewers deemed the allegation was false, it was categorized as false. As a result, 60% of all allegations were found to be false.1 Of those women who later recanted, many didn't admit the allegation was false until just before taking a polygraph test. Others admitted it was false only after having failed a polygraph test." http://www.mediaradar.org/

Or, as Prof. Jonathan Turley observed

Rumney, False Allegations of Rape

Patton, Any Four Black Men Will Do: Rape, Race and the Ultimate Scapegoat

Lisak et al., False Allegations of Sexual Assault: An Analysis of Ten Years of Reported Cases

Lovett & Kelly, Different Systems, Similar Outcomes? Tracking Attrition in Reported Rape Cases Across Europe

Flowe et al., Rape Shield Laws and Sexual Behavior Evidence: Effects of Consent Level and Women's Sexual History on Rape Allegations [Draft]

Naik et al., Fabrication of Sexual Assault: A Case Report

Mosteller, The Duke Lacrosse Case, Innocence, and False Identifications: A Fundamental Failure to 'Do Justice

And finally, Stern, The Stern Review [at 39 et seq. "False Allegations"]

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