Articles Posted in Sex Offenses

[I]t is relatively straightforward for an innocent person’s DNA to be inadvertently transferred to surfaces that he or she has never come into contact with. This could place people at crime scenes that they had never visited or link them to weapons they had never handled.”

In discussing United States v. Henning, No. 20150410 (A. Ct. Crim. App. Sep. 3, 2015), a good friend had this to say about the case and about DNA examinations which are common in military sexual assault cases.

There are many problems with this opinion.

He notes that:

The KC lab has had problems in the past relevant here, e.g., “chain-of-custody,” sealing and storage issues as noted HERE, staffing issues, noted HERE, etc.

He notes then the general purpose behind evidence such as DNA results.

The logical and legal purpose of using DNA evidence is to do one of two things: either match the DNA to a specific individual, or to exclude someone from the universe of potential matches.  The DNA “results” in this case can do neither, so therefore, how can they be relevant under MRE 401?  To “conclude” that the Accused could “not be excluded” is a nonsensical statement – other than the sample was too small to draw any scientific conclusions – which is after all why DNA testing is done in the first place.

Indeed, as the FBI itself states:

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Because of the current politics surrounding sexual assaults in the military, some are wondering what they can do in advance to avoid a later false claim of sexual assault.  This has lead to a suggestion that the interactions should be video recorded, the idea being that the recording will later be evidence to defend against a false report.

Well, that doesn’t take care of the issue about the potential crime involved.  If the recording is done with knowledge and consent, that probably is defensible.  But what if it isn’t.  Many states now have statutes prohibiting unknowing or nonconsensual recordings.  As does the federal government in 18 U.S.C. 2251(a).  Now what.

See United States v. Palomino-Coronado, a decision of the Fourth.

The accused was convicted of taking pictures during sex.  He asked for the federal equivalent of a Griffiths motion, which was denied.  On appeal the court found the judge erred and the charge should have been dismissed.  The court found insufficient evidence of intent to engage in sex for the purpose of making pictures.  In other words, if he’d decided to take pictures of sex and then arranged the sex and recorded the sex—and there was evidence of that intent—then he could be found guilty.  But, as the recording was incidental and there was no evidence of intent there could be no conviction.  It’s not exactly a chicken-and-the-egg problem, but seems close.

Palomino-Coronado contends that the government failed to prove one of the elements of § 2251(a)—namely, that he acted for the purpose of producing a visual depiction.

§ 2251(a) contains a specific intent element: the government was required to prove that production of a visual depiction was a purpose of engaging in the sexually explicit conduct.  a defendant must engage in the sexual activity with the specific intent to produce a visual depiction; it is not sufficient simply to prove that the defendant purposefully took a picture.

Anyway.  If the accused is charged under UCMJ art. 134 for violating 18 U.S.C. 2251(a) or a similar statute, careful attention should be paid to Palimino-Coronado.  It is certainly not a slam-dunk, but there are arguments that can be made.

Naval Academy Professor Sues Navy Over Free Speech


This reports

A civilian professor at the U.S. Naval Academy is suing the Navy, accusing it of violating his First Amendment right to free speech and chilling academic freedom.

Attorneys for Bruce Fleming said Thursday that the professor was denied merit pay and $7,000 in summer funding based on a 2014 reprimand. It stemmed from a 2013 classroom discussion, when Fleming prompted his students to consider the academy’s sexual assault program and the potentially one-sided burdens it put on men, at a time when the academy was part of the national debate over how to stop sexual assault in the military.

Two female students disagreed with Fleming’s comments in class.

Fleming was cleared in an initial investigation. A second investigation by a more senior academy official led to the reprimand. It found the professor’s initiation of conduct cases against the two students amounted to retaliation.

The lawsuit disputes a finding by the academy that characterized the actions of the female midshipmen in complaining to sexual assault prevention officials as seeking guidance. Instead, the lawsuit alleges complaints lodged with the sexual assault prevention office “were made in bad faith and with the specific intent to have the academy censor and punish Professor Fleming for daring to criticize the (Sexual Assault Prevention and Response Program.)”

We do a lot of military sexual assault cases with alcohol involved.  It is not unusual for a complaining witness to claim they were drunk, blacked out and didn’t consent.

First, if blacked out they can’t know they didn’t consent–it’s impossible if they were blacked out, rather than them exhibiting a convenient and selective memory.

Second, we know from medical science that a person can do a whole lot of things which does include the voluntary, and apparently consensual engagement is sexual activity.  Here is an example, out of many, how a person can engage in a lot of thoughtful and physical activity and not remember it.

Enter Keith Fraley, a 19-year-old second year student of software engineering at Michigan Tech college, and his tweet about his roommate, Mark, a mechanical engineering student, who arrived home wasted and managed to design an entire plane – and woke up with no memory the next day.

Meet ‘Mark’, the crazy genius who designed an aeroplane while drunk, The Guardian.

Sixty years after Congress created the UCMJ to protect accused servicemembers from abusive and arbitrary punishment, a significant faction in Congress now believes it must be almost completely dismantled and restructured because is is not being used aggressively enough. Multiple federal organizations and a fair number of outside parties consider the notion of due process in student disciplinary hearings, the result of courage in the civil rights era, as an obstacle to be overcome or circumvented in the name of “accountability.” The federal government has used its formidable authority to shape institutional responses to sexual assault, but the aggressive rush to “fix” the problem subordinates notions of due process, truth-seeking, and even the presumption of innocence. Fueled by an underlying assumption that too few perpetrators are sufficiently punished, the poignant and emotionally-charged environment of sexual assault threatens otherwise broadly accepted principles of justice. And in that setting, it is difficult for anyone in a position of both power and publicity to argue for policies that will be seen as making it harder to punish rapists. Nonetheless, the “obligation to govern impartially is as compelling as [the] obligation to govern at all.”[1]


[1] Berger v. United States, 295 U.S. 78, 88 (1935).

There are some interesting articles for military justice practitioners in the Summer 2015, MLR.

Barracks, Dormitories, and Capitol Hill: Finding Justice in the Divergent Politics of Military and College Sexual Assault
3.  By Major Robert E. Murdough.pdf
Rudderless: 15 Years and Still Little Direction on the Boundaries of Military Rule of Evidence 513
4.  By Major Michael Zimmerman.pdf
Open-Ended Pharmaceutical Alibi: The Army’s Quest to Limit the Duration of Controlled Substances for Soldiers
5.  By Major Malcolm Wilkerson.pdf
A Better Understanding of Bullying and Hazing in the Military
7.  By Major Stephen M. Hernandez.pdf

Regardless of the type of case, motive to falsely testify of a primary witness is almost always of some relevance.  The recent case of Nappi v. Yelich, from the Tenth highlights that.

The Sixth Amendment’s confrontation right, which applies equally to defendants in state prosecutions, “means more than being allowed to confront the witness physically.”  Davis v. Alaska, 415 U.S. 308, 315 (1974).  It includes a right of cross-examination, which provides “the principle means by which the believability of a witness and the truth of his [or her] testimony are tested.”  Id. at 316; see also Pennsylvania v. Ritchie, 480 U.S. 39, 52 (1987) . . ..  To be sure, a trial judge has discretion to limit or preclude inquiry into collateral, repetitive, or “unduly harassing” subjects.  Davis, 415 U.S. at 316.  But this discretion has limits and “the exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross‐examination.”  Id. at 316‐17.

The state court’s conclusion that cross‐examination of the state’s main witness’ motive for testifying was a collateral matter was contrary to clearly established Supreme Court precedent.  See Delaware v. Van Arsdall, 475 U.S. 673, 679 (1989) (ruling that preventing cross‐examination on a subject the “jury might reasonably have found furnished the witness a motive for favoring the prosecution in his testimony” violated the defendant’s Confrontation Clause right); Brinson v. Walker, 547 F.3d 387, 392 (2d Cir. 2008) .

And for the sexual assault case:

In Olden v. Kentucky, defendants were prosecuted for, among other things, rape; the defense was consent and that the victim had a motive to lie to conceal her extramarital relationship.  488 U.S. 227, 228‐30 (1988) (per curiam).  The state court prevented defendant from exposing this alleged motive to lie, but the Supreme Court concluded that this ruling “failed to accord proper weight to petitioner’s Sixth Amendment right to be confronted with the witnesses against him.”  Id. at 231 (internal quotation marks omitted).  Here, as in Olden, the testimony of a witness whose motive was at issue was “central, indeed crucial, to the prosecution’s case.”  Id. at 233. “If the purpose of cross‐examination is to explore more than general credibility, the subject of inquiry is not collateral.”  Dunbar v. Harris, 612 F.2d 690, 693 (2d Cir. 1979).

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).