Articles Posted in Sex Offenses

The interesting case of West v. Rieth, et. al. has come across the transom and it’s worth the read.

West alleges that the Federal Defendants, who with one exception were also U.S. Marine Corps service members at all relevant times, conspired to lodge false complaints and accusations of sexual harassment and sexual assault against him. According to the complaint, such false allegations were personally motivated by a desire to remove West and another individual from their supervisory positions and to obtain favorable transfers.[3]Investigations ensued, and West was court-martialed with respect to the allegations lodged by Rieth, Parrott, and Allen. The allegation that West raped defendant Johnson was not part of the court-martial because an investigator found that such allegation was not credible.[4]

At the court-martial in November 2014, defendants Rieth, Parrott, and Allen testified under oath against West, which testimony West alleges was false.

West was found not guilty of the majority of charges arising out of the alleged sexual assault and harassment directed towards Parrott, Harper, and Rieth.[6] He was found guilty of a subset of charges based on (1) certain sexually suggestive comments made to Allen[7] and (2) obstructing justice by conspiring with another Marine to provide Allen with copies of their text messages in an attempt to influence her testimony.[8] West alleges that as he was being escorted to serve a sentence of thirty days in confinement as a result of his convictions, “defendants Rieth, Parrott, and Allen, spit upon” him.

It’s a scope of employment and immunity case.

Is a complaining witness acting within the scope of employment when making a sexual assault or harassment complaint?

Is a complaining witness acting within the scope of employment when making a false sexual assault or harassment complaint?

First we look to state law because “Judicial review of the scope-of-employment certification “requires the application of the law of the state in which the employee’s conduct occurred.” Williams, 71 F.3d at 505.”

According to the government, the Federal Defendants, as employees of the Marine Corps, “were required to take the actions necessary to report and address any issue of sexual harassment and/or sexual assault with the appropriate United States Marine Corps officials.”[14] The government also argues that the U.S. Attorney’s certification “was appropriate because a determination had been made by the appropriate federal officials that there was enough credible evidence that the named Federal Defendants were the victims of workplace sexual harassment and/or sexual assault to refer charges to the General Court Martial.”[15] The implicit premise of the government’s argument in support of the scope-of-employment certification is that the Federal Defendants had a legitimate basis for reporting that West sexually assaulted and/or sexually harassed them and then testifying to those allegations at the subsequent court-martial.

The government is plainly correct that reporting sexual harassment and/or sexual assault by another Marine is within the reporting Marine’s course and scope of employment. Both parties have submitted Department of Defense documentation regarding the programs established to facilitate the reporting of such allegations, which documentation establishes that the military’s “goal is a culture free of sexual assault, through an environment of prevention, education and training, response capability . . ., victim support, reporting procedures, and appropriate accountability.”[16] West concedes that “sexual assault on a service member is disruptive and destructive to the military and violates its core values in a fundamental way.”[17]

The Court agrees that reporting sexual assault and/or sexual harassment would plainly be “primarily employment rooted” and “reasonably incidental to the performance of the employee’s duties.” See White, 419 F. App’x at 442. Likewise, use of a system expressly created by the Marine Corps to receive and handle such complaints is sufficiently “on the employer’s premises” and “during the hours of employment” to satisfy those factors, as would be testimony by a Marine at a court-martial instigated by such reports.

However, West alleges that the underlying allegations against him were fabricated, and that making false reports of sexual assault and testifying falsely as to those allegations cannot be characterized as within the scope of the employment of a U.S. Marine Corps service member.[18] West forcefully argues that completely false allegations made by one Marine against another solely on the basis of a personal vendetta and for personal gain would not be “reasonably incidental to the performance of the employee’s duties,” nor could such statements have “the purpose of serving the master’s business . . . to any appreciable extent.” Id.[19]

This case is an excellent read, especially for those of us considering whether they have the right case to sue a complaining witness who makes a false claim of sexual assault or harassment.  Such cases are not to be lightly pursued and require a significant degree of proof of falsity.  The need for a very thorough package of proof is illustrated in this case.

The Court concludes that West’s evidence consists of factual nitpicking, his personal “spin” on facts which equally tend to suggest that some of the allegations were well-founded, and secondhand credibility determinations. His submission falls well short of carrying his burden to establish as a factual matter that the allegations lodged against him by the Federal Defendants were false[.]

Bottom line, and I think correctly, you are not going to win a civil suit in a she said-he said case or the ubiquitous drunk sex case.

 

 

I have used the title of a new paper by Prof. Richard Leo.

Of the 1,705 post-conviction DNA and non-DNA exonerations that have occurred from 1989 to the end of 2015, approximately 13 percent of these wrongful convictions were due to false confessions, and virtually all of these occurred in either homicide or rape cases. This chapter discusses why false confessions occur and discusses the ways that law enforcement training can be modified to avoid false confessions. False confessions primarily occur due to a lack of proper training, poor investigative practices, and the use of scientifically invalidated and/or high risk interrogation techniques and strategies. To safeguard against false confessions, the author argues that investigators should receive training on the following topics: 1) the existence, variety, causes and psychology of false confessions; 2) the indicia of reliable and unreliable statements and how to distinguish between them; 3) the need to obtain corroborating evidence to verify suspects’ confessions; and 4) avoidance of inadvertent contamination of interrogations by disclosure of non-public case facts to suspects.

Leo, Richard A., Interrogation and False Confessions in Rape Cases (December 2015). in Robert Hazelwood and Ann Burgess, eds., PRACTICAL ASPECTS OF RAPE INVESTIGATION: A MULTIDISCIPLINARY APPROACH (CRC Press, 5th ed., 2016 Forthcoming); Univ. of San Francisco Law Research Paper . Available at SSRN: http://ssrn.com/abstract=2700410

Some points for consideration when seeking to suppress a confession.  General risk factors include:

  • Length of the interrogation.
  • False Evidence. Social science research has shown that false evidence ploys are virtually always present in interrogations leading to false confession, and are substantially likely to increase the risk of eliciting false confessions from innocent suspects.
  • Minimization.
  • Threats and Promises.
  • Individuals who, by their nature and personality, are naive, excessively trusting of authority, highly suggestible and/or highly compliant and who are therefore predisposed to believe that they have no choice but to comply with the demands of authorities or who simply lack the psychological resources to resist the escalating pressures of accusatorial interrogation.
  • Contamination is the leakage or disclosure to a suspect of non-public case facts that are not likely guessed by chance.

We are all familiar of Congressional and command efforts to address military sexual assaults.  Many of the revisions to the UCMJ and the MCM flowing from these efforts are appropriate, reasonable, or meaningless.

However, what does appear consistent is the failure of Congress to recognize that it has a concomitant duty to the accused to ensure that his trial is fair both in procedure and substance.  Unlike the congressional committees on the judiciary, the committees on the armed services have a more direct and at times intrusive influence on the military judicial system once enacted.  For example, the controls the Congress has on United States Attorneys (USA) and federal judges are much more limited than the direct and palpable influence of Congress on the commanders, prosecutors, and judges in the military justice system.  We are all aware of the perceptional punitive actions taken against two senior Air Force commanders for decisions in sexual assault cases, the results of which certain members of Congress disliked.  This is because military participants in the military  justice system are subject to Congressional control over their promotions and in some cases their duty assignments.  Not so the USA.

The concern, of course, is the potential for false accusations of sexual assault and congressional hands-on interference in an effort to prejudge and require convictions regardless of the complaints merit.  That may seem to be hyperbole on my part, but that is very clearly my perception and the perception of many others who are involved in the system on a daily basis. I have said before that the failure to address the potential for false accusations harms actual victims, the accused, the accused’s wife, the accused’s children, and military unit morale.

So, a lengthy introduction to a scholarly piece worth the read.  You can access, Yager, Reggie D., What’s Missing from Sexual Assault Prevention and Response (April 22, 2015). Available at SSRN: http://ssrn.com/abstract=2697788.  It appears the author is an Air Force judge advocate and the manuscript is a work in progress.

This article examines the sexual assault prevention and response (SAPR) policy in the military over the last few years. Although focused primarily on the military policy, most of the concerns addressed in this article are equally applicable to how colleges and universities are dealing with SAPR. The article argues that civilian and military leadership have neglected to protect the wrongly accused. There are three sections to this article. The first section explains why we should be concerned about the wrongly accused, using examples of wrongful convictions, false accusations, the reasons they occur, and some research about the frequency of the problem. The next section discusses why we have not done so, demonstrates that false accusations are not rare, and exposes the significant flaws with the research that is driving our unbalanced policy. The last section identifies specific flaws with policy, the justice process, and with SAPR training and offers recommendations for how we can improve prevention and response while simultaneously protecting both victims and the wrongly accused.

[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:

Continue reading →

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 Military.com:

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]

MAJOR ROBERT E. MURDOUGH, BARRACKS, DORMITORIES, AND CAPITOL HILL: FINDING JUSTICE IN THE DIVERGENT POLITICS OF MILITARY AND COLLEGE SEXUAL ASSAULT.  223 MIL. L. REV. 233 (2015).

[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