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.

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

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.

[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.

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.

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