Military Sexual Assault: Unfair for those AccusedSeptember 23, 2019
It is not a secret that sexual assault in the military has received a lot of media and political attention in recent years. Most everyone would agree that sexual assault needs to be eradicated and punished severely when appropriate; however, the military has over-corrected. Now more than ever, Servicemembers run the risk of being falsely accused and convicted of sexual assault. Based on my experience in the military and with the military justice system, I believe the following are the reasons why:
Believe it or not, Servicemembers are incentivized to make reports of sexual assault.
As soon as a servicemember makes an allegation of sexual assault, they are entitled to their own personal JAG. This JAG acts as a shield to law enforcement, defense attorneys, and sometimes prosecutors. They are there to help the accuser get all of the resources the military has now provided for those who make a report of sexual assault. They are also there to help the accuser have the best chance of gaining a conviction against the one they accused (helping them tell their story, prepping them for trial, etc.). I can tell you from personal experience that it is immensely frustrating trying to investigate a case when the accuser can hide behind their lawyer up until the day of trial. It is a common practice for the accuser’s lawyer to refuse an interview request by a defense attorney until right before the trial. If this doesn’t sound right to you, it shouldn’t. It isn’t fair to the Servicemember who has been accused.
Furthermore, after a Servicemember makes a report of sexual assault, they immediately become eligible for something called an expedited transfer. This means that they can request to go to a different installation immediately. They even get to pick which installations they want to go to. While the military says this is just a request and it doesn’t have to be approved, I have never seen one get denied. The accuser’s first choice of new base location is also usually granted.
Imagine this. You are 18 years old, a new Soldier, and excited to be in the military. You love basic training and are very excited to be part of a great unit at a big and diverse base. You are social and love meeting new people and exploring the surrounding area of a base. Then, when assignments are handed out, you are stationed at Fort Leonardwood, Missouri, against your wishes. You are not part of an operational unit, you are stationed with Soldiers you don’t like, and the surrounding area of the base is basically barren.
A Servicemember in this situation, which isn’t uncommon, does have one way to transfer quickly. They can make a report of sexual assault and request an expedited transfer to whatever base they want. It will be approved – and then they can hide behind their lawyer. Once the transfer goes through, they can tell their lawyer they want to drop the allegation and don’t want to prosecute it anymore. The prosecutor will immediately back off and there will be no consequences.
Does that sound right to you? Well, as the military stands right now, that is completely acceptable. No questions will be asked of the Soldier in that situation. That exact scenario happens and I have personally seen it numerous times.
Servicemembers who make reports of sexual assault are also immediately placed in a protective status. Their own misconduct is way less likely to be prosecuted because everyone is afraid to “re-traumatize” him/her. Often times, Servicemembers make reports of sexual assault and successfully avoid any repercussions for their own misconduct.
There is a way to combat false reports of sexual assault. The military could prosecute those Servicemembers who make a false report. In fact, many of my former clients used to ask me after they were exonerated if the person making the allegation against them would be prosecuted. The answer always disappointed them: no! The Commanders and JAGs are afraid to prosecute anyone for a false claim because of backlash they may face from Congress and the negative effects on their career. I have never seen a Court-Martial for making a false sexual assault allegation, even though I have seen numerous Servicemembers make false reports.
If you add all this together, it means that Servicemembers are incentivized to make false reports and they will face absolutely no consequences for doing so. The Servicemembers accused, on the other hand, face dire consequences. They are stigmatized as a rapist immediately. At worst, they end up as a convicted sex offender in jail for decades.
I won’t describe, in depth, the legal complexities that have been changed in recent years to make the prosecution of sexual assault easier; however, I will briefly describe them. These reforms came from Congress in an effort to increase the number of sexual assault convictions. Some members of Congress simply want more convictions for Servicemembers accused of sexual assault and don’t care about constitutional rights.
Congress has repeatedly changed the legal elements of sexual assault and related crimes. The number of times they have revised the sexual assault article (Article 120) in recent years is laughable. They are attempting to make it easier for prosecutors to get convictions without regard for those who are accused. Congress has also added many ancillary sexual offenses to the UCMJ, making it easier to prosecute certain groups of Servicemembers (i.e. recruiters and instructors at service schools).
Perhaps the most alarming change was to the Preliminary Hearing. A Preliminary Hearing is the military’s version of a Grand Jury. These hearings are supposed to be a check on the Government’s power to bring charges against an individual. However, Congress has severely limited the Defense’s ability to present any evidence or call witnesses at this hearing. Furthermore, the prosecutor does not have to call any witnesses and can simply admit statements of individuals. This important check on the power of the Government has become a very minor speed bump for the prosecution.
Very recently, Congress set the number of members on every Court-Martial jury to 8. Before this change, the jury size varied depended on how voir dire went. Eight is historically a prosecution friendly number and the general consensus is that it will now be easier for prosecutors to get convictions.
Finally, Congress has implemented a complaining-witness friendly "rape shield" rule of evidence. This rule of evidence (MRE 412) allows a complaining witness to make a report of sexual assault and avoid talking about much of his/her history that a panel would love to hear when evaluating his/her credibility.
These are just some of the legal reforms that Congress has implemented to make prosecutions of sexual assault easier. Anyone paying attention should be scared about what these reforms are doing to due process and other constitutional rights. Unfortunately, no one seems to be paying attention.
The pressure to end sexual assault in the military has come from Congress. Members of Congress have indicated that the way to eradicate sexual assault is to prosecute those accused. If General Officers want to keep their job and/or get promoted they have to appease Congress. General Officers therefore pressure their lower commanders, and so on. After years of this attention and pressure, we now have leaders who are completely indoctrinated that sexual assault is a huge problem in the military and the way to eradicate it is to prosecute those who are accused, without asking many questions.
It is not just the Commanders that are getting indoctrinated. More alarmingly, it is the JAG officers who are given a massive amount of authority and responsibility. I was trained as a JAG officer in 2015 after I completed law school. The basic truths about sexual assault that the military wanted me to believe were simply not true. They were not based in reality or science. The military is now training its JAG officers that false reports of sexual assault basically do not happen. Essentially, anyone who says they were sexually assault is not to be questioned about it. JAG officers are supposed to take what “victims” say as the truth and figure out a way to convict the Servicemember they are accusing. These JAGs are now the prosecutors advising Commanders, and more alarmingly, the Defense Attorneys detailed to represent those accused of crimes.
One of the major problems with both the Commanders and JAGs being indoctrinated and scared of scrutiny is that they wield so much power. They decide very early on whether a case should go to a Court-Martial. It is easy for them to just throw their hands up and say, “well, it’s for a jury to decide.” That is an easy decision to make for them because they will never face scrutiny. On the other hand, if they were to say that they don’t think a case should be prosecuted, they risk facing criticism from their higher Commanders and even members of Congress. Unfortunately, they don’t seem to factor in how their decision could harm a Servicemember accused of such a crime. Even if they are ultimately acquitted, the stigma and stress of going through a Court-Martial is not something I would wish on anyone. Until Commanders and JAGs are held accountable for sending cases to Court-Martial that don’t belong there, it will only get worse.
Regrettably, it doesn’t stop there. Servicemembers accused of sexual assault are entitled to a trial, with a jury. However, the jury is made up of senior officers and non-commissioned officers, who have also been indoctrinated with the same misinformation. Adding to that, the judge in a Court-Martial is usually an O5 or O6. Basically, save for a Civilian Defense Counsel that a Servicemember wisely hires to be on their side, the military can convict a Servicemember and make them a sex offender without any scrutiny from anyone outside of their own indoctrinated circle. Obviously, this should concern any Servicemember accused of sexual assault.
This article was written by Attorney Matthew Barry