Air Force Insider: Overzealous Sexual Assault Prosecutions Threaten Our Justice System


Disaster

It goes without saying that the views I am about to express are my own and do not necessarily represent the views of the Army, Air Force, Navy, Marine Corps, or the DoD. I mean, c’mon – I’m already using a pen-name. I don’t want my bosses getting hassled or pressured because of what I’m about to say.

Sir William Blackstone once said that, “It is better that ten guilty persons escape, than that one innocent suffer.” The concept is one of the bedrock foundations of Anglo-American common law, as it captures the concept of proof beyond a reasonable doubt.

Similar sentiments were expressed by Voltaire, Benjamin Franklin, and others.[1] Unfortunately, in the last few years, the US military as a whole has turned away from proof beyond a reasonable doubt and the presumption of innocence with regards to sexual assault prosecution. Due to a poisoned jury pool and a system bereft of crucial procedural safeguards, the system is slowly destroying good order and discipline by failing to protect the rights of the accused in sexual assault cases.

First, let me give some details about my background. I’ve been a lawyer for the greater part of a decade. I’ve served as a judge advocate, I’ve deployed, and I’ve prosecuted crimes at the federal and state level in civilian courts. I’ve sat through too many Sexual Assault Prevention and Response (SAPR) briefings to count. I’ve dismissed cases when I’ve been convinced that the alleged victim is lying. Although I respect that defense attorneys are an absolutely necessary part of the system, I’ve never had any desire to be one. Zealous defense advocacy keeps everyone sharp and on their game. (Not just prosecutors, but also law enforcement officers, lab experts, and other regular players in the criminal justice system.)

Second, I will be the first to acknowledge that the system has not always been fair to victims of sexual assault. There’s a reason why Federal Rule of Evidence 412 (similar to Military Rule of Evidence 412) and similar state rules of evidence exist. For too long, many alleged victims unfairly had to defend “what they were wearing,” “why they put themselves in that position,” and “why they didn’t try harder to resist.” Others had their sexual history paraded in front of jurors – for no other reason than to smear their character, distract from the relevant issues, and humiliate the witness. That should never have happened, but it did.

However, with all those caveats, the current witch-hunt on sexual assault (in all of the military branches) neither helps commanders maintain good order and discipline, nor does it help victims. This is what I see.

1. The SAPR program poisons the potential pool of jurors.

Anyone who has sat through a mandatory SAPR/SHARP brief hears a resounding theme: everyone claiming that they were sexually assaulted must be believed without question. SARCs may believe that this institution-wide attitude will encourage victims to emerge from the shadows, report the crime, and seek medical, mental health, and other resources. Although I don’t doubt most SARCs’ good intent, (however misguided), the concept of the “always-truthful alleged-victim” single-handedly destroys the presumption of innocence.

Just like all other criminal courts in the civilian world, courts martial place the burden of persuasion on the government to prove charges against a presumed-innocent defendant beyond a reasonable doubt. There’s no room in a criminal prosecution for both an alleged victim who must be believed no matter the evidence and the presumption of innocence. One will inevitably have to make room for the other. The testimony of an alleged victim – regardless of the crimes charged – must be weighed like that of any other witness. Demeanor on the stand, prior inconsistent and consistent statements, the witness’s ability to recall detail, potential bias, and more –should all go into a fact-finder’s determination of credibility, whether the witness is a police officer, defendant, or alleged victim of sexual assault. Jurors that would automatically believe or disbelieve a witness’ testimony (e.g., jurors that answer yes to “all police officers tell the truth” or “all cops lie”) should be (and normally are) struck for cause during voir dire.

However, by promoting the “always-truthful alleged-victim,” the SAPR program ensures all potential jurors are subject to persistent anti-defense propaganda before they ever sit on an actual panel. I’ve heard SARCs regularly question why victims should have to get cross-examined at all at trial. Some SARCs go further and smear defense attorneys for being so “cruel” (i.e., by doing their job and zealously representing their client). Commanders sit silently through the briefings and allow such remarks to go unanswered. Such silence speaks volumes and tells every member of a command that delivering a conviction is more important than protecting the rights of an accused. There’s only so much a defense counsel can do to address such a pervasive juror bias in voir dire.

The “always-truthful alleged-victim” results in another problem – there are zero consequences for a false accusation of sexual assault in the military. The reason usually given? Prosecuting false accusers for perjury would have a “chilling effect” on legitimate reporting of sexual assault. Rather, accusers are rewarded at every stage of the process – for military member accusers, they receive on-demand PCS, reassignment, and the ability to intimidate peers and supervisors. For dependent accusers – they gain leverage in civilian divorce and child-custody proceedings and a potential financial windfall from Transitional Compensation. Furthermore, the accusation alone will destroy the defendant’s career. There’s absolutely nothing to lose in wrongfully accusing a Soldier, Sailor, Airman, or Marine of sexual assault

2. Military sexual assault cases lack common civilian procedural safeguards.

In the civilian world, all state and federal felony cases require that a prosecutor prove probable cause – often to a grand jury, but in some states to a judge in a preliminary hearing. If a grand jury finds that there is no probable cause, they issue a “no-bill,” and the accused is released immediately (presuming all charges are “no-billed”).

In contrast, although the UCMJ’s Article 32 process resembles a civilian probable cause hearing in form, in practice, it no longer adequately protects the rights of the accused. Basically any sexual assault case with an alleged victim pushing for prosecution will go forward to general court martial, no matter the Article 32 Investigating Officer’s findings. It’s a sad statement on the current politics. Few General Court Martial Convening Authorities (GCMCAs) are willing to risk the wrath of Senator Kirsten Gillibrand and others in Congress to save a potentially innocent soldier, sailor, airman, or Marine.

Furthermore, presuming a civilian grand jury indicts the accused, the civilian criminal process still has more safeguards than the military. A civilian venire (the pool from which a jury gets picked) is much larger than those in the military. This allows civilian judges to grant liberal strikes for cause (i.e., getting rid of a juror because they have demonstrated they cannot be fair and impartial) and additional peremptory strikes (i.e., each side’s ability to get rid of a juror for almost any rational reason).

In contrast, potential military jurors are nominated by the command, and are often so few in number that granting even two or three strikes for cause can leave the panel too small to proceed. As a result, military judges let jurors sit on panels that would have never made it onto a civilian jury. Finally, civilian criminal trials require a unanimous verdict by a jury for conviction. The UCMJ requires only a two-thirds majority outside of death penalty cases. Furthermore, military juries control sentencing, once again in contrast to the civilian world, where judges are the sole authority. Finally, GCMCAs have their hands tied on post-trial review due to the 2014 National Defense Authorization Act.

3. Military prosecutors, Special Victim Counsel, and other problems.

As if the system couldn’t be more broken, the judge advocate side of things causes yet more problems. Military prosecutors, for the most part, have little or no legal experience outside of the military. Compounding that lack of perspective, they usually have relatively little litigation experience in contrast to civilian District Attorney offices.

In the civilian world, new prosecutors start off with misdemeanor and criminal traffic offenses, gradually working their way up to felonies. By the time a civilian prosecutor encounters a sexual assault case, they generally have at least three years of experience, dozens of jury trials under their belt, and many hundreds of cases resolved. In contrast, military prosecutors (except for a handful of specialized senior trial counsel) may have only seen one or two trials – on any type of offense – before they encounter a general court martial for a sexual assault offense. By the time military prosecutors develop any significant degree of experience – they change duties or move into management, sometimes never seeing the inside of a court again.

But wait, there’s more. Alleged sexual assault victims wield massively disproportionate power in a military context. They get their own military attorney, the opportunity to make their wishes known to the command before the case is charged, and the opportunity to intervene regarding MRE 412 motions and more. Although it’s important that prosecutors (military and civilian) consider the wishes of an alleged victim (as they’re generally required to do in most states), there’s a reason that it’s United States v. Defendant, not Angry Alleged Victim v. Defendant. It’d dangerous for victims to exercise that much influence on any prosecution.

Overzealous military sexual assault prosecution is creating an atmosphere of fear, distrust, and suspicion. No crime can be eradicated from the military, any more than it can be eradicated from society at large. In a vain attempt to the contrary, we’ve gone from the legal traditions of Blackstone to those of Bismarck and Pol Pot – where it is better that 10 innocent men suffer than a guilty one go free. Here’s hoping that the service courts of appeal and CAAF (the Court of Appeals for the Armed Forces) continue to overturn these terrible cases in droves.

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[1] “That it is better 100 guilty Persons should escape than that one innocent Person should suffer, is a Maxim that has been long and generally approved.” BENJAMIN FRANKLIN, letter to Benjamin Vaughan, March 14, 1785.—The Writings of Benjamin Franklin, ed. Albert H. Smyth, vol. 9, p. 293 (1906).

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