Articles Posted in Sex Offenses

The Real Cost Of Having Commanders In Charge Of Military Justice

This article has appeared in Task & Purpose as a result of United States v. Woods,  decided by the Court of Appeals for the Armed Forces on 18 June 2015.

Incredibly, a senior naval officer was appointed to be the president of a court-martial panel when in a questionnaire prepared when first told she’d be a court-martial member in the future, the member answered thus about the presumption of innocence.

In this case, the convening authority selected [x] as the senior member of the panel that would try Appellant for sexual assault, despite having access to her preliminary member’s questionnaire, in which [x] stated her belief that “enforcement of ‘you are guilty until proven innocent’ (just the opposite as in the civilian sector) is essential because the military needs to be held to a higher standard just for reasons of our mission.” During voir dire, [x] elaborated on this response, but reasonable observers could interpret her responses as confusing rather than clarifying her views (emphasis added).

On the surface, this looks bad for the line officer convening authority.  Although I’m sure there are many out there cheering for the member who in their minds got it right on the presumption.  Once you understand how the naval service selects members for a panel, you can see that they lawyers and the legally trained staff were more at fault than the convening authority.

So—I disagree with The Weirick that the existence of MJIA would have prevented United States v. Woods from happening.  Or at least, I disagree with The Weirick’s or Mr. Christensen’s implication that Woods would not have happened if MJIA were in place.  That is because it was likely the indifference or negligence of the very legal professionals running the system at best or their hubris.

In all of the Services, the staff judge advocate office (SJA) under the supervision of the SJA and the senior prosecutor, collect nominations for service as a court-martial member.  Only in the naval services do they also obtain a fairly detailed questionnaire.  The other Services include a brief summary of the person’s record.  These documents are collected into a binder and a “standing” court-martial order prepared for the SJA.  Most general court-martial convening authorities will appoint a panel for six months or a year.  Once the panel documents are prepared, they are taken to the convening authority for review, discussion, and then appointment (been there done that).  The appointing documents and the supporting questionnaires then sit in the binder for the term of those members appointment, for all to see.  The problem would not likely have arisen in the Army or Air Force because they don’t bother with questionnaires.

So the legal personnel failures are:

  • Someone didn’t read the questionnaires; the staff only collected, copied them, and put them in the binders.
  • The SJA didn’t read them.
  • The chief of justice or MOJO didn’t read them.
  • The TC didn’t read them.

Or worse.

  • The SJA read them but ignored them.
  • The chief of justice or MOJO read them but ignored them.
  • The TC read them but ignored them.

Either way, if the legally trained staff had done what the defense counsel did . . . ?

OK, so the commander failed to catch the error that his fully trained legal staff failed to catch.  That does not now justify saying that if MJIA were in place the Woods case would not have happened.  That’s silliness to be expected of some.

I am in favor of the MJIA and enactment of the O.’Callahan / Relford factors for jurisdiction.  But I cannot in good conscience use Woods to argue for those changes.  This convening authority was failed by his staff.

The version of the facts contained in the majority opinion is far more convincing than are the facts contained in the record of trial.

It is not unusual for an appellate opinion to be selective in reciting the facts of a case relevant to the decision.  This can be attributed to several factors, most of the factors are benign and unintended, sometimes a cynic might argue the facts cited are deliberately selective.  But here is the relevant part of the dissent for counsel’s takeaway in alcohol related sexual assault cases.  The noted confusion must be addressed with the fact-finder through evidence perhaps, and certainly through argument.

It appears to me that the parties at trial misunderstood the relationships between volitional behavior, consent, mistake of fact as to consent, intoxication, and lack of memory. The question is not whether the alleged victim remembers what happened, but whether she participated in the sexual activity of her own volition at a time when she had too much to drink. Chief Judge Everett‘s concurring comments United States v. Baran, 22 M.J. 265, 270 (C.M.A. 1986), are directly applicable to this case:

The victim’s] inability to recall what happened does not signify that at the time of intercourse she was unable to give consent. As this Court recognized long ago, alcohol may affect a person’s memory and inhibitions without depriving him of volition; and proof of amnesia does not conclusively establish that someone was unconscious or lacked mental responsibility at the time of the events they have forgotten.

United States v. Grier, ARMY 9700651, 1998 CCA LEXIS 589, 19-20 (A.C.C.A. Dec. 11, 1998)(Johnston, J., dissenting).

Navy Times recently interviewed the Director of NCIS.  Here is a question I found interesting and thought I’d share.

Q. There have been a number of recent cases in which inspector general investigations concluded NCIS agents weren’t following procedures. What are you doing to improve that?

A. I think if we have needed to we have tightened up quite a bit. I will give you an example: Some of the things we were cited for were actually minor deficiencies or violations of our own internal policies.

So there was a case where there was a bunch of sailors in a barracks shower. And one sailor bumped into another sailor in the shower. A few days later one of his buddies said he should report that as a sexual assault. So it gets reported. We get the referral a month after the incident, and what do we have for evidence? We have an empty barracks shower and we have no witnesses to interview. We have no suspect to interview. Part of our standard process is to photograph the crime scene and sketch the crime scene. Well, it’s a barracks shower. No one photographed the crime scene. But that gets reported as a deficiency in our investigative process.

Well, it is an investigation that clearly doesn’t have any merit that is never going to be prosecutable at any venue. In that case you can see where agents will think, well, I am not going to go through all the steps because there is really nothing here for me to do. So what we have encouraged is, because of the additional scrutiny from IG and others, is that it doesn’t make any difference; follow every step of our protocol regardless of the case. Do it anyway so at the very least we can say there is no prospective merit here — we did everything we were supposed to do.

You likely have clients as I do who are waiting months for an investigation to be completed.  Part of the answer maybe the lack of discretion afforded trained investigators to decide what effort needs to be put into a case.  Triaging is not allowed.

Being drunk and being incapacitated aren’t the same – no matter how hard military sexual assault trainers try to convince you otherwise.  Such training is not just wrong – it is – IMHO – knowingly false.

Which brings us, finally, to the drunk sex issue. So, is Sokolow suggesting that all women who say they were raped while they were drunk were not really raped? He is not. “If there’s a no, I don’t care if there’s alcohol involved, it’s rape. What I’m saying is the fact that a woman was drunk can’t be the sole criteria for whether she was raped or not,” Sokolow explains, “and frankly, a lot of schools were getting this wrong. There is a vast difference between drunk and incapacitated.”

Brett Sokolow, Meet the Man Telling Colleges How to Fix Their Rape Problem, The Cut, 21 October 2014.

These are words many don’t wish to hear but they are legally, and more importantly medically true.  Unfortunately military trainers persist in teaching false information about “one drink.”  This is not old news.  A number of years ago the Air Force had a sex scandal and came out with new training.  As a result of that training and other erroneous training, the Department of Defense was forced to come out with this little bit of accurate information.

 dd

       I got this off the web for www.sapr.mil back then, it ain’t available anymore on the current website – I wonder why?  The cynic tells me it isn’t helpful to the government meme.  Here is a link to the rest of the image.

screenshot-by-nimbus has published a symposium – articles related to military justice, specifically sexual assault cases.  Both sides will find something in the articles. Of particular interest are two articles:  Major Seamone’s article about secondary affect on military justice practitioners from over exposure to sexual assault cases, and Colonel Schenk’s disagreement with the statistics and compilation of sexual assault statistics.

Major Evan R. SeamoneSex Crimes Litigation as Hazardous Duty: Practical Tools for Trauma-Exposed Prosecutors, Defense Counsel, and Paralegals, 11 Ohio St. J. Crim. L. 487 (2014).

Lisa M. SchenckInforming the Debate About Sexual Assault in the Military Services; Is the Department of Defense Its Own Worst Enemy?, 11 Ohio St. J. Crim. L. 579 (2014).

In United States v. Blouin, ARMY 20101135 (A. Ct. Crim. App. 28 May 2014), the court has, in my view, taken a broader view of what qualifies as CP for the purpose of a guilty plea.  However, the court is not taking an unknown or unvisited trail.

Blouin was charged with possessing CP in violation of 18 U.S. Code Sec. 2256(8), to which at trial he plead guilty.

As is common in these type of cases, the prosecution threw up a whole bunch of alleged (173 to be exact) CP images, without really understanding what they were doing.  And they compounded this with offering 12 images as a “sample.”  This caused the military judge to reopen providency, because he found only three of the images were likely CP.

Continue reading →

With the ongoing politics surrounding sexual assault in the military, and whether the commander should remain as the disciplinary decision maker, the AF has done an interesting review of (convictions).

After a spate of sex-related incidents last year, the Air Force reviewed all courts-martial from the previous three years — more than 2,400 cases — and found 25 instances in which a commander disagreed with a judge advocate general’s recommendation, Air Force Chief of Staff Gen. Mark Welsh said.

I am assuming they mean that the CA granted either clemency or dismissal of one or more findings post-trial.  The article goes on to say:

“So in 12 of those 2,411 cases, which is a pretty small percentage — about 0.5 percent, actually — we did not have agreement between the commander and the JAG on the best way forward,” Welsh said during a breakfast Wednesday at the National Press Club in Washington, D.C. “One of those was a sexual-related case.”

The article does not identify the Franklin/Wilkerson fiasco, nor does it address the Helms fiasco.

A spokesman for Sen. Gillibrand’s office didn’t immediately reply to an e-mail from Military.com requesting comment.

Perhaps because those numbers don’t fit the meme?

 

Capacity to Consent to Sexual RiskElaine Craig, Dalhousie University – Schulich School of Law, 2013

Forthcoming in New Criminal Law Review, Vol. 17, Number 1, pps 103–134. © 2014 by the Regents of the University of California. All rights reserved.

Abstract: 

In delineating the legal boundaries of capacity to consent to sexual touching, law makers and jurists must grapple with tensions between sexual liberty, morality, sexual minority equality interests, and public safety. Legal rules that stipulate that an individual cannot consent in advance to unconscious sexual activity or to sado-masochism, or that an individual under a certain age or with a particular intellectual capacity cannot consent to sexual touching have an impact on sexual liberty and should be justified. This paper argues that establishing these limits based on normative assessments about specific sexual acts poses too great a threat to the liberty interests of women and sexual minorities. A better approach is to accept that in sex, as is probably true of all complex human interactions, an accurate application of the definitional turns on the particular. Context is everything. No sexual act, including one that objectifies, is inherently harmful. The paper offers an alternative approach by suggesting that laws defining capacity to consent should be justified on the basis of assessments of risk rather than moral assessments about sex. This stands to circumscribe law’s limits on sexual liberty in ways that are better for women and sexual minorities. What this approach does not resolve is the paradox presented by the reality that although sex is inherently contextual, criminal laws prohibiting violations of sexual integrity should not be applied contextually. The paper explores how a recent legal ruling in Canada denying the capacity to provide advance consent to unconscious sex reveals this paradox. The discussion concludes by asserting that the failure of law to exclude morally inculpable unconscious sex between ongoing sexual partners reveals the limits of law and in doing so suggests the need to reevaluate the law’s conception of the relationship between sexual liberty and sexual integrity.
Or how about.  Flirtation or sexual harassment? Here’s how to tell the difference, on TheWomen’sBlog at The Guardian.

Yes is the simple answer.

The harder answer is why, and how do you tell.

As I always say, the first question to consider is motive.  If you have a motive, a lot must follow to corroborate the motive.  Here is an article from the FBI Law Enforcement Bulletin about, False Allegations of Adult Crimes.

Perpetrators of false allegation crimes have various underlying motivations that fall into one or more categories. Investigators may encounter cases involving more than one motivation.

  • Mental illness/depression
  • Attention/sympathy
  • Financial/profit
  • Alibi
  • Revenge

I would place the lie to the husband/boyfriend/fiancée in the “alibi” column, when they have to explain why they were out late, or partying, or  . . . 

Law enforcement officers may find false allegation crimes complex and difficult to unravel. Further, investigators working closely with offenders may become so emotionally invested in the case that they have a hard time believing that the individual could be deceptive.

Especially if this is a military case and you have been told you must believe the “victim.”  Standard note: and all of the issues associated with confirmation bias.

J. McNamara, S. McDonald, and J. Lawrence, “Characteristics of False Allegation Adult Crimes,”Journal of Forensic Science 57, no. 3 (May 2012): 643-646.

The purpose of this study was to identify common factors in false allegation adult crimes, by examining the dynamics involved in 30 confirmed false allegation cases. The authors conducted a comprehensive review of these adjudicated cases and then completed a collection instrument to capture offender demographics, offense characteristics, and motive. The results indicated that most false allegation crimes were committed by women (73.3%) and Caucasians (93.3%). Data indicated that more interpersonally violent allegations were primarily motivated by attention/sympathy needs (50.0%), whereas more impersonal offenses involved other motivations such as providing an alibi (16.7%) or profit (13.3%). Offenders tended to be younger, high school graduates with no higher education (43.3%). A total of 23.3% of offenders had a prior criminal history. Male offenders appeared as likely as women to be motivated by attention/sympathy; however, men tended to select more violent, nonsexual offenses (e.g., attempted murder) than women.

Prof. Colin Miller has an interesting post about application of Rule 412, under Texas law, as decided in Johnson v. State, 2013 WL 531079 (Tex.App.-Waco 2013).

From Under the Shield: Court of Appeals of Texas Finds Rape Shield Rule Doesn’t Cover Alleged Victim’s Sexual Misconduct

Texas Rule of Evidence 412 mimics the federal rule which mimics the military rule.  I leave out most of the post and conclude with this.

The trial court, however, precluded Johnson from eliciting such testimony, finding that it was inadmissible under Texas Rule of Evidence 412. After Johnson was convicted, he appealed, claiming

that the excluded evidence (1) was admissible to rebut the false impression the State had left with the jury regarding the primary reason the complainant was in counseling, thereby opening the door for the sexual abuse evidence; (2) impeached the complainant’s testimony that his guilt in being the victim of sexual abuse was relieved when he made his outcry; and (3) supported the defense’s theory that the complainant had fabricated the abuse allegations against Appellant to get attention and sympathy for himself.

The Court of Appeals of Texas, Waco, agreed, concluding that

Appellant was entitled to present his defense. As a fundamental right, the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense. The complainant had already been adjudicated delinquent for sexually assaulting his younger sister. He was not particularly remorseful for that conduct, and his actions resulted in strained relations with his parents and the need for counseling. He was mad at Appellant, and, having been adjudicated delinquent for sexually assaulting his younger sister, he knew firsthand or should have known how damning and indefensible an accusation of sexual assault could be. Appellant was entitled to correct the misleading characterization of the complainant that the State had presented to the jury, but the trial court impermissibly limited his right to cross-examine both the complainant and other witnesses against Appellant and to present evidence. We therefore hold that the trial court abused its discretion by not allowing Appellant to cross-examine the complainant and other adverse witnesses with evidence of the complainant’s prior sexual victimization of his little sister.