The version of the 2011 DOD Authorization Act that the House passed on Friday includes a title called, “Improved Sexual Assault Prevention and Response in the Armed Forces.”  It’s available here.

This 39-page title would make many changes, including amendments to the UCMJ.  One of the portions that would affect military justice practice is section 1614, which would require the convening authority to consider the alleged victim’s opinion as to how a sexual assault allegation should be handled.  That section provides:  “Before making a decision regarding how to proceed under the Uniform Code of Military Justice in the case of an alleged sexual assault or other offense covered by section 920 of title 10, United States Code (article 120), the commanding officer shall offer to meet with the victim of the offense to determine the opinion of the victim regarding case disposition and provide that information to the convening authority.”

The bill would also require publicizing the results of sexual assault cases.  Article 53 of the UCMJ would be amended by adding:  “Dissemination of Results to Command in Certain Cases- In the case of an alleged sexual assault or other offense covered by section 920 of this title (article 120), the trial counsel shall notify the servicing staff judge advocate at the military installation, who shall notify the convening authority and commanders, as appropriate. In consultation with the servicing staff judge advocate, the commanding officer shall notify members of the command of the outcome of the case.”

Article 54 would be amended to require that a copy of the ROT be given to any alleged sexual assault victim who testified in a case:  “In the case of a general or special court-martial involving a sexual assault or other offense covered by section 920 of this title (article 120), a copy of the prepared record of the proceedings of the court-martial shall be given to the victim of the offence if the victim testified during the proceedings. The record of the proceedings shall be provided without charge and as soon as the record is authenticated. The victim shall be notified of the opportunity to receive the record of the proceedings.”

The bill would establish a privilege for communications between a victim and a Sexual Assault Victims Advocate co-extensive with the patient/psychiatrist privilege.

Perhaps most significantly, section 1643 of the bill would allow a servicemember or a dependent who is an alleged sexual assault victim to make a confidential report to:

(A) Military legal assistance counsel.

(B) Sexual Assault Response Coordinator.

(C) Sexual Assault Victim Advocate.

(D) Healthcare personnel.

(E) Chaplain.

The same section would also allow such servicemembers or dependents to decline to participate in an investigation.

And the section would create a statutory entitlement to legal assistance for such servicemembers and dependents:

(a) Availability of Legal Assistance and Victim Advocate Services-

(1) MEMBERS- A member of the armed forces or a dependent of a member of the armed forces who is the victim of a sexual assault is entitled to–

(A) legal assistance provided by a military legal assistance counsel certified as competent to provide such duties pursuant to section 827(b) of this title (article 27(b) of the Uniform Code of Military Justice); and

(B) assistance provided by a qualified Sexual Assault Victim Advocate.

Finally, the bill would require a report on the effectiveness of Article 120:

    (a) Review Required- The Secretary of Defense shall conduct a review of the effectiveness of section 920 of title 10, United States Code (article 120 of the Uniform Code of Military Justice), as amended by section 552 of the National Defense Authorization Act for Fiscal Year 2006 (Public Law 109-163; 119 Stat. 3256). The Secretary shall use a panel of military justice experts to conduct the review.
    (b) Submission of Results- Not later than one year after the date of the enactment of this Act, the Secretary of Defense shall submit the results of the review to the congressional defense committees.

62 Responses to “Sexual assault provisions in House version of FY 2011 DOD Authorization Act”

  1. John Harwood says:

    What a disaster. We had 50 years of jurisprudence, experience and case law to help and guide us in prosecuting under a very simple, concise statute. Now, it’s a total Charlie Foxtrot. The best option at this point is Back to the Future – go back to the old Art. 120.

  2. Gene Fidell says:

    Did the House Armed Services Committee hold a hearing on these parts of the bill? When was the last time it or the Senate Committee conducted a hearing on military justice (as opposed to military commissions)?

  3. not says:

    Maybe it wasn’t working!!! Is it so bad to ask the victim to go forward? What is the problem codifying who a victim can talk to about an assault? Gene, what would a hearing really add beside pub for you and NIMJ?

  4. Cloudesley Shovell says:

    This is politics. There is a small but dedicated group of individuals, including some members of Congress, who have an agenda on sexual assault issues.

    The military provides them with a perfect controlled society over which Congress has near-plenary power. They will continue to tinker and experiment on the military in pursuit of their goals.

    These individuals are very passionate about this issue, and they will get whatever they want, even if it seems incredibly foolish to the military legal practitioner. Nobody in Congress is going to spend any political capital at all opposing any of this tinkering, because such opposition would be utter political idiocy (“Congresscritter Schmuckatelli is against protecting our troops from sexual assualt!).

    Get used to it. Art. 120 is not going to get “fixed.” The interventions, experiments, and tinkering will continue until those behind it retire, or get voted out of office. Unless, of course, another person of similar passion gets elected, or bureaucrats with a vested interest in perpetuating the sexual assault grievance industry enlist another Congressional supporter.

    This is all in service of an agenda, and that agenda has nothing to do with military justice or good order and discipline. The military simply presents a convenient and controllable entity upon which to carry out these legal experiments. Those who even utter a peep questioning things will get the same treatment as Mr. Fidell–mean-spirited and unwarranted (and cowardly anonymous) ad hominem attacks for something as benign as asking if there were even hearings on the issue.

    Yrs humbly,
    CS

  5. Anonymous says:

    considering what the alleged victim wants is fine. If the alleged victim doesn’t want to go forward, that should be taken into account anyways both for her own well-being and as a possible sign her allegation isn’t wholly truthful or might need deeper digging into.

    Not sure what publicizing the results will do, and the intent could backfire, especially if a rash of acquittals comes along. Might dissuade an actual rape victim from coming forward, why do it if five cases in a row have resulted in acquittals.

    Giving the victim a copy of the ROT? OK I guess, other than an additional copy being made no big deal.

    Interesting the privilege, what if she tells the SAC she is lying or it didn’t happen or if the SAC believes (rare as this is I know) that she isn’t telling the truth?

    Confidential reporting and legal assistance seem fine.

    Effectiveness of 120? You’ve taken a finely honed law that everyone understood completely, and mucked it up to the point that no one understands it very well and there will be appellate litigation on for the next ten years.

    Otherwise Mrs. Lincoln, how was the play?

  6. Anonymous says:

    One caveat, if 120 gets declared unconstitutional, in whole or in part, I suspect wiser heads might return.

  7. Tami says:

    This is absolutely ridiculous. Seems to be more “Unlawful Congressional Influence”–they are getting mad because SMs are getting acquitted of sexual assaults! (gasp!) All this Congressional posturing is simply a “politically correct” (I think incorrect) way of trying to tell panel members and/or judges that they shouldn’t acquit.

    If this stuff gets passed, I would love to see some judge hold that it constitutes UCI, or is unconstitutional.

  8. Anonymous says:

    Well said CS.

    The tragedy of this tinkering is that it unfairly skews the public’s perception of our system as incompetent and unjust for both the victim and suspect. By no means is our system perfect, but I imagine the folks on the hill would be triply more horrified to watch how the average DA prosecutes sex offenses and how the average public defender represents them. If the hill directed its attention at the civilian system, if only for a few moments, I think the public would be more confident about the military’s handling of these offenses.

  9. Anonymous says:

    Had a SAC who didn’t believe the “victim.” The SAC sent the “victim” to OSI. The “victim” eventually recieved an article 15 for false official statement based on what she said to OSI. She turned down the 15 and the CC dropped the 15. It was a total cluster and reinforced my opinion that nothing in the military is ever truly privileged.

  10. Brian the dog says:

    I am a passionate believer that there is almost nothing that is more damaging to good order and discipline than sexual assault. Back in the day, there was nothing I loved more than putting predators out of the military (preferably, with a long stop and the DB).

    And, yet, I find myself deeply troubled by the current path we are on.

    We are losing the ability to see nuance.

    We are dumbing down our training, and our troops are learning the wrong message (no, it is not automatically rape if she had two drinks). More than once, I have seen sexual assault investigations where, even if the victim’s version of events were taken as the god given truth, no crime, or even no colorable claim of a crime, occurred.

    Here is my prediction:

    1) Our current training and advertising will result in a significant increase in reporting of sexual assaults.

    2) The additional increases in reporting will be of the cases that are the least prosecutable.

    3) Commands will either choose to not prosecute these additional cases, or will take them to court and lose. This will result in both a lower rate of prosecution, and a lower rate of conviction.

    4) Congress will point to the lower numbers, beat their drum again, and direct further tinkering.

    5) All of this will significantly undermine trust in the system by Soldiers and commanders alike. One of the few things that can cause more harm to unit moral than a sexual assault, is the perception of a false accusation of sexual assault stemming from an acquittal.

  11. Phil Cave says:

    Well said.

  12. Not says:

    Dear chicken little, the sky is not falling!!!!

  13. Brian the dog says:

    The sky is not falling, but it is getting cloudy.

    Lets face it, previous Congressional forays into sexual assault are a disaster. I have never, I repeat never, met a practitioner (TC, DC, CDC, or MJ) who thinks that in aggregate, the new Art 120 was a good idea (although some, including me, believes it was well intentioned). Massive confusion, huge appellate risk, for almost nothing gained.

    I just want to put bad guys away. Now, to do that, I need to worry about more privliges, more transcripts, and yes, scheduling a meeting between the victim and the two-star (which, if the victim is not local, or the GCMCA is overseas, means more TDY, or setting up VTCs). If your at a small base, with 1 or 2 TCs and nearly no admin support, this does not make your life easier.

    And, if some appellate court overturns the new 120, and we erase dozens or hundreds of convictions, well, then, call me chicken little, because a formerly registered sex offender just landed on my head.

  14. anonymous says:

    Mandatory minimum sentences will be the most effective tool to punish and deter sexual assault. See the 2009 Naval law Review Article on sentencing reform in sexual assault cases.

  15. Anonymous says:

    I wonder what effect a state’s mandatory reporting laws would have on the privilege?

    I also notice there’s no “constitutionally required” exception, as in MRE 412.

  16. anonymous says:

    If the Victim meets with the CA, then the DC will try call the CA to testify as to the victim’s statements, right?

  17. Anonymous says:

    I will say this: If the 2-star general had met some of the alleged victims in sexual assault cases that I had to defend clients against…there wouldn’t have been a trial.

    That said, I agree with many of the above comments: The dumbing down of the sexual assault policy has created an ugly cycle: everyone reports everything, acquittals are more likely, people are more likely to see this as a need to fix what isn’t broken, and so on.

  18. Late Bloomer says:

    Interesting that it says the CO shall offer to meet with the victim and then provide the victim’s opinion to the CA. I would think that, in most cases, the CO and CA would be one in the same, unless we’re talking about Platoon or Company Commanders (once again, Congress tells us little).

    If so, does that imply that the CA will be a GCMCA? And doesn’t that in turn imply forum? Are we to assume that Congress wants these cases handled at GCM?

    Probably nothing more than awkward wording and my own paranoia at anything related to Art. 120.

  19. Steve says:

    Umm. Sure. You can call the CA’s conversation with the victim about whether he should refer the case.

    But your opening a door to allowing the CA to talk about why he referred the case. You may be turning UCI into LCI (lawful CI).

  20. Steve says:

    Ok, lets just skip the politics and prohibit service members from engaging in any sex after their partner has consumed alcohol. This is what the end goal is, lets just get to it.

    I am suggesting this with tongue placed firmly in cheek, but in case anyone takes me too seriously…

    -Please include a marital exception (wife and I both want this).
    -Please don’t make it a registerable offense (I would like to see a PTA involving a sex related offense once in my career).

    Now that I wrote this, it really would be nice if there was some offense that could capture the misconduct, but was not registerable. All those borderline cases are now 1)either never brought to trial, or 2) almost always result in acquittal. It would be great if there was something the Government could offer. All or nothing usually results in nothing (for the government). (It would even help those pesky stats!)

  21. Bridget says:

    This is not surprising at all. This is the logical extension of rules created in 2005, and modified in 2008 that set out the DoD Sexual Assault Response Program. (see, DoDD 6495.01 and DoDI 6495.02 which are accessible at the SAPR.mil website). Those regs set out the “restricted reporting” option which is the entry level of permitting sexual assault victims to chose that a crime not be reported. Amazing.

    Opinion: You don’t really need a set of new regulations and law to prosecute sexual assault, you just need to enforce the law and regulations already in existence. What problems there are in addressing sexual assault in the armed forces do not stem from lack of enforcement authority. Nor is the problem diminished by permitting crime victims to veto enforcement. Why is a victim veto on prosecuting a crime a good idea? Didn’t we learn that lesson with domestic violence-at least in some jurisdictions. (Cully, you worked with this-thoughts?)

    One of the reasons that there are many acquittals in SA cases in the military is that entirely too many cases are prosecuted that would never see a civilian courtroom.

  22. Anonymous says:

    Agreed, most of these cases have bad facts with bad victims, and, ironically, would never have been prosecuted but for the political pressure that the military doesn’t take sexual assault seriously enough.

    Honestly, in my experience, in cases where there was a legitimate victim and a clear fact pattern, a conviction was essenitally automatic.

  23. Ama Goste says:

    A hearing might result in legislation that’s not quite as jacked up (term of art) as the current Article 120 because people who actually prosecute sexual assault cases in the military would have the opportunity to weigh in on the issues.

  24. Keith Hodges says:

    My sentiments exactly. There are already substantial issues with the publicity associated with the command’s sexual assault campaigns have on members, recommendations of commanders, and decisions of convening authorities. Now with all this congressally mandated attention, the unlawful influence environment gets turned up a notch.

  25. Keith Hodges says:

    Can’t get to the bill to read it, but saw some traffic earlier on the alleged victim’s privilege. We already have a problem with victim-witness personnel refusing to be interviewed. Now we are going to give the alleged victim a privilege and a lawyer to enforce it. There are cases out there, Virginia, where the report is false or substantially incorrect and the alleged victim conveys that. If the recipient is one to whom a privileged communication can be made, how will the defense ever know? And, does the alleged victim’s testifying waive the privilege as to what she told others? This will drive MJs nuts because a DC would immediately request a delay to speak to those that up until that time could assert the privilege on behalf of the alleged victim.

  26. John Harwood says:

    Steve, you’ve hit the nail right on the head. I’ve thought for a while we should have an offense entitled “Reckless Intercourse.” It’d have two elements: (1) sex; and (2) alcohol consumption. And it wouldn’t just be “the guy” getting the Art 15 for Reckless Intercourse — it’d be “the gal,” too.

    Drunk sex is reckless by both parties: for “the guy,” it’s reckless to have sex with a drunk chick who might claim rape the next morning. For “the gal,” it’s reckless to have sex in a situation where your feelings are going to be hurt the next morning.

    Of course, mariage would be an affirmative defense.

  27. Clint Eubanks says:

    John, I trust you would make the accused prove by a preponderance of the evidence that he was married to the drunk girl, and then allow the government a chance to prove BRD that there was no marriage. Otherwise your proposal would sound absurd.

    (I kid, of course).

  28. Anonymous says:

    Marriage could be both an affirmative defense and the punishment :)

  29. Balkan Ghost says:

    Congress has the constitutional mandate to make the rules for the armed forces. These changes are within that mandate. There has been considerable institutional resistance towards previous Congressional urgings to improve reporting and prosecution of sexual assault in the military (and many of the comments to this post offer an indication of the nature of this resistance), so perhaps these proposed changes to the law are guided by a wise hand.

  30. any mouse says:

    A mandatory minimum sentence will not be effective at deterring sexual assault. Guys are not thinking about the punishment when they are wasted and sexually assault a female. The most effective way at reducing sexual assaults, if the powers that be really cared, would be to have separate male and female barracks. Having both sexes live on the same floor is just asinine if your endstate is to prevent sexual assaults.

  31. McSweeney the Victim of lying female sailor says:

    Former Chief McSweeney was wrongly accused and convicted for a false allegation of sex with a fellow female shipmate. Her false allegations destroyed this man career, financially destroyed his family only 3 months from retirement.
    He asked for help through Naval legal defense and failed. His Legal help (with out reading all statements) simply told him to take his lumps since he only had 3 months left in the military. Never asked him once if he commited these false allegations.

    I’d like to know what ever happen to innocent till proven guilty? His Command Master Chief to him he was guilty before charges were ever brought. What ever happen to if you cannot afford a attorney, one will be provided ? What ever happen to a fair and impartial trial? One that seeks the truth and facts of the case?

    What happen to Military justice system that investigates
    the facts and just dosen’t convict because a female says she thinks somehting happen?

    Not evey female tells the truth! Ask Former Chief McSweeney he was convicted by the lies of a female sailor, a female sailor that admitted at the trial that she was not even sure what happen the night she consumed 13 beers. The night she had sex with another sailor whom she been having a affair with. The same sailor that admitted he was the one that sexually assaulted her that night.
    Yes former Chief McSweeney was convicted for a crime he did not commit and the man that sexually assaulted this female? Well the same CA overturned his conviction and 5 years later is still on active duty. Oh did I mention he has been awared the sailor of the year twice (by the Navy Leagye) since he admitted to the crime!

    Nothing about the UCMJ, is fair or impartial. Is it not time that our government start protecting the right’s of all that serve? McSweeney served just shy of 24 years with a stellar career and the lying female sailor just 4,who admitted to being addicted to sex, screwed other sailors in public areas for all to see and on board the USS Momsen, and she admitted to abusing sex and alcohol because she could not cope with the Navy.

    In my opinion it is only going to get worse and false allegations will rise to a all time high.

  32. Anonymous says:

    Unfortunately the people who propose these amendments do not consider the impact that these amendments have on real life practice.

    Congress wasn’t happy that SMs were getting acquitted of SA, so we went from a fairly simple definition of rape to definitions of rape and sexual assault that you need a flowchart to understand. Also shifted the burden to the accuse to prove she consented, which created all sorts of appellate litigation.

    Congress still isn’t happy that SMs are getting acquitted, or that some cases aren’t getting prosecuted, so now there’s a mandate to be “more sensitive” to complainant’s feelings, and more “sensitivity training,” which has resulted in law enforcement being afraid to throw the BS flag even when the complainant is telling an obvious lie, and titling someone with a SA offense that will follow that person for 40 years.

    Congress still isn’t happy, even though reporting is up, convictions are up, and there was a suggestion by some Congresswoman at some point that the number of SA offenses requiring registration be reduced, because she believed panel members were acquitting solely because they didn’t want the SM to have to register! Whatever happened to panel members acquitting because they actually believed the SM wasn’t guilty?

    Now there is a new DOD rule that mandates DNA “collection” when a SM is thrown into PTC, there is PC to believe the SM committed the offense, when charges are preferred, etc. I think you all know where this is headed–say goodbye to the 4th Amendment.

    Obviously Congress still is not happy because some cases are not being prosecuted and/or SMs are being acquitted. These latest amendments are not about “improving” reporting and prosecution of SA–these amendments are about mandating prosecutions of all SA cases and finding everyone accused of SA guilty.

    There needs to be some push back that Congress just needs to stop meddling and let the MJ system work. Either that or Congress just needs to outright tell the military to ignore the 6th Amendment when it comes to SA cases.

  33. Late Bloomer says:

    McDreamy is it? You say that the UCMJ is unfair and biased. You say that guys like you are getting railroaded all over the armed forces. And yet Congress amended Article 120 because there were too many acquittals for sexual offenses. How can this be?

    It’s the old trick of using one anecdotal story in order to effect policy change. It happened to you. But the irony is that it happens in Congress all the time.

  34. McSweeney Family says:

    Late Bloomer my father’s name is McSweeney and sarcastic remarks are uncalled for. Facts are facts and statement’s speak for themselves. Too bad the Judge and the CA missed the facts to this case and convicted the wrong sailor. I am very proud to say my father is a honest man that told the truth.

  35. JimmyMac says:

    McSweeney Family,
    Let’s hope someone familiar with the facts of this case reads this and can provide an accurate recitation of the essential ones. You say the Chief was three months from retirement yet had 24 years active duty. He must have had three years left on his then-current enlistment since he was retirement eligible at his 20th anniversary date. You say he went “through Naval legal defense and failed”. Failed what? You seem to imply that his detailed defense counsel didn’t help him and yet later you refer to a court-martial. Who was his defense counsel? Or was he at non-judicial punishment on board a ship for which he had no right to refuse? Did the Navy defense counsel provide him NJP advice? Was this even a court-martial? Perhaps an administrative separation proceeding? Wow! Lots of confusion here. Hope someone with knowledge can enlighten us all.

  36. Late Bloomer says:

    You are correct. I should not have besmirched his name.

    However, you simply cannot make unfounded generalizations about the entire legal community and the UCMJ. Well, I guess you can…it’s the internet after all. But when you do, you invite attack.

  37. McSweeney Family says:

    Pick the phone up can ask for the CNO Gary Roughead, who at the time was the Commander of the Pacific Fleet. Ask him about this case, because he and Admiral Entry informed the family that after another investigation. That there is more to this story then McSweeney would ever know. How can that be? How can the US Navy make a statement that there is more to the story then the Convicted individual would know? What did the Navy uncover that they are not telling?

  38. Anonymous says:

    I heard a great proposal a few years back for a new sex offense, it was called “Regrettable Sex.”

  39. Anonymous says:

    More on McSweeny from http://usmilitary.about.com/b/2006/09/17/adultery-in-the-military.htm

    Adultery
    You mention that there are 3 elements of adultery. My husband was convicted of adultery with out and proof of element 1. The accussed wrongfully had sexual intercourse with a certain person.
    My husband was investigated twice by his command from a female sailor that says she had sex with a lot of sailors on board including my husband who was her Chief.When she found out that the investigation found no wrong doing she went to NCIS and filed raped charges.
    Those rape charges were also dropped and unfounded. Though the CO for some odd reason even though the NCIS agent said he found no evidence of adutlery or faternization at trial and the female sailor showed dought that it even happened between them. Approved the findings of both at his summary court martial. My husband was busted down from E-7 to E-6, sentenced to 60 restriction and a reprimand. The restriction was suspened because the CO did not want him back on the ship.
    My husband did not have sex with this female and I support him 100%. We talked quite often on the phone that night and I know my husband would never do these crimes he has ben convicted of. All this just 3 months out from reitrement. We lost so much pay in the reduction and with our move for retirement, looking for new jobs.
    We had to go on state food stamps. The Navy never started his retirement pay we had to fight to get it started and we lost around another 500 to 600
    dollars in retirement pay because of the rules of court martials says if
    your redudced in rate you fall under a different reitrement scale.
    We have been sentenced a life of punishment for this whole family.
    Because the lost of pay and not finding a job right away after retirement. We lost both vehicles to repo and had to file bankruptcy.
    I as is spouse who was not in the military was also sentenced to a life punishment. My credit is now ruined!My husband has appealed and I have written letters to the Sec of the Navy,
    CNO MCPON and the Commander of the Pacific Fleet. Believe me! If you metion my name they know who I am.
    My husband is innocent and the statments from the investigation clearly show. That the night in questioin this female wa sexually assualted. The sailor confessed and punished. However, this should have been a rape conviction. The CO of the ship suspended this mans punishment and then it was over turned. At the same time he was advanced to to CPO.
    This was the same CO and the court martials took place at the time. He was called to my husband court martial and lied to say my husband was in bed with her just watching to leave. I guess to try to get him self off. He was also charged with making false official statments to NCIS during this investigation.
    The navy let a rapist go and convicted a innocent man and punished family along with him. I and my husbnad are fighting and will keep fighting until the truth comes out! My husband served just short of 24 years and no one ever said Thank You!
    Navy’s Adultery policy is a bad one!
    When I asked why 6 of the Chief’s I know for fact have committed adultery and why they were not punished? No
    one has answered me. They them either reitre early or moved them to another
    command. One of them was advanced to SR Chief. The Navy picks and chooses who they want to punish. As one government official who is helping us said. The statement speak for them self’s. Now they are asking the Sec of the Navy what has happened.

  40. Late Bloomer says:

    World’slongestrunonsentence.

    Sounds like your beef is on the admin side. Your husband could have refused Summary CM, which would have arguably afforded him more protections (i.e. attorney, jury trial, etc.). He chose his forum. He didn’t like the outcome. Now you want your money.

    I’d call DFAS.

  41. McSweeney Family says:

    McSweeney is my father!

    My dad tried like hell to extend his retirement so that he could fight this case through a GCM. He spoke with his detailer. Only to have the Command tell him there was no way in hell they would extend so he could fight. The Command Master Chief simply did not like my dad, and that was proven when he told my dad he was guilty before charges were even brought against him.

    Your innocent to proven guilty! The navy told my dad he was guilty before he was even charged.

    The damage has been done, my brothers and my sister have all felt what financial devastation can do to a family. But what can be accomplished is my dad to have his name cleared and returned to the rightful rank he is intitled.

    I guess what you are saying Late Bloomer that the Navy does not give damn about the facts? As long as the convicted someone of a crime no matter if they had the right individual or not?

    Sad, I thought our US Navy was better than that :(

  42. anon says:

    I must say I am confused, but not for the obvious reason.

    You say that the “Navy’s [a]dultery policy is a bad one!” But also that your husband didn’t commit adultery.

    So which is it? Do you think that your husband committed adultery, but adultery shouldn’t be a crime? Or that adultery is a crime, but your husband didn’t do it?

    If your husband didn’t commit adultery, your beef is with him – it was his choice to proceed in a summary court-martial, with no “jury” or lawyer. He could have opted for a court-martial with all the attendant rights. This was explained to him, probably many times. (If he did do it, your beef is also with him, but for a more obvious reason).

    Of course, now he claims that the evidence was so obviously in his favor. I am going to guess that you did not attend the SUMCM, and are relying on his version of events. While I know nothing about your situation, my experience makes me skeptical. More than once, a spouse has called the command, complaining their husband is committing adultery – only to be doubly upset when they then lose a stripe.

    (And, yes, while one can believe that someone didn’t commit adultery, and adultery should not be a crime, it’s hard to believe that someone would be so upset in such a case).

  43. anon2 says:

    I am sorry about your situation, but someone is misleading you.

    If you turn down a summary court, the Navy cannot force you to have a summary court-martial. If you are about to be discharged/retited, the Navy can extend the Sailor and court-martial him at a SPCCM or GCM, or drop the criminal charges.

    Also, this string is about proposed changes to Art 120 (sexual assault). I don’t think the there are any changes to Art 134’s prohibition on adultery.

  44. Brian the dog says:

    No one is questioning whether Congress has the authority to change Art 120. They can, they did, and may do so again. They could also strike 120 from the UCMJ and legalize rape.

    Just because they can amend 120, doesn’t mean they should. And inserting the changes into a bill, without debate, certainly doesn’t lend credence to this being the actions of a wise hand. The debate taking place on this page is WHETHER the changes are smart, and there are not many takers.

    When you here DCs, TCs, and MJs all decrying the new 120, it is not because of some institutional intransigence. It is because the changes are viewed as internally inconsistent, incoherent, and self-defeating by those who must implement them.

    If the goal is to increase the conviction rate for sexual assaults, there are easy, and constitutional ways to adjust the system.

    As previously mentioned, mandatory minimums would be a very effective method. Even if they had no deterrent effect, it would drastically alter the plea bargaining process.

    Most panels do not give large sentences to garden variety sexual assaults (ie drunk and in the barracks). Accordingly, what the accused fears most from the conviction is something that the TC cannot bargain away – registration. There is little reason for an accused to enter into a PTA. There is a decent acquittal rate, but if he pleads guilty, he is guaranteed to be registered. That’s the main reason why there are so few PTAs in SA cases.

    One way to solve this impasse is for Congress to mandate large sentences, so the accused does having something to fear other than registration. Some accuseds would then be willing to bargain the offense down to a LIO, to escape the chance of massive jail time. (Or, alternatively, eliminate panel sentencing with all of its randomness).

    Mandatory minimums would be effective in increasing guilty pleas, and conviction rates. Effective, yes. Constitutional, yes. Similar to the federal system, yes. A good idea, perhaps, but not for the reasons above.

  45. McSweeney Family says:

    The SCM officer assumes the burden of prosecu- tion, defense, judge, and jury. He or she must thor- oughly and impartially inquire into both sides of the matter making sure the interests of both the govrn- ment and the accused are safeguarded and justice is done. While the SCM officer may seek advice from a judge advocate or legal officer on questions of law, he or she may not seek advice from anyone on questions of fact, since he or she has an independent duty to make these determinations.

    [Enlighten me Anon says.] Why does a sailor give up any of his legal rights for a fair trial? Just because it is a SCM does not mean a sailor is automatically guilty.

    Fact: The female stated she thought it all happen.
    Fact: NCIS Agent stated they found no evidence of adultery or fraternization.
    Fact: My dad (under oath) stated he did not have sex with this female sailor that night or any other time.
    Fact: Another sailor admitted to sexually assaulting this female sailor that night. The same sailor this female said she woke up to in bed the next morning. The same male sailor she had other epsiodes sexual episodes with. (What I don’t understand is how this male sailor got away with adultery being he was married at the time.)

  46. Anonymous says:

    Assuming the above was presented at the summary court martial, was a 69(b) petition filed with OJAG to have the conviction overturned on factual insufficiency grounds?

  47. McSweeney Family says:

    Yes, the case was reviewed, OJAG stated that SCM under article 69 (b) are only reviewed based on legal proceedings. Not for the true facts.

    Oh and you do not have to assume. Just simply request the transcripts of the SCM and you read all that was stated here to be the truth.

  48. Anonymous says:

    Did he file a writ petition with NMCCA? It may be a jurisdictional stretch, but still worth the effort.

  49. Tami says:

    McSweeney family,

    Sounds like McSweeney was taken to a Captain’s Mast (NJP or Article 15 for the Army folks) for adultery and inappropriate relationship, and that he was on a ship. You are not allowed to turn down NJP and demand trial by court-martial if you’re on a ship. Also, the burden of proof for the Navy is much lower (preponderance of the evidence) at NJP hearing than it is for the Army (beyond a reasonable doubt).

    As far as the policy against adultery and inappropriate relationship (which your husband/father having sex with his subordinate would be), ALL services have rules against both of those things–it’s not just “Navy” policy.

    Based off of what you’ve said about the case, it sounds like your husband/father got a one-grade bust and was allowed to retire. I’ve seen others get harsher punishment, plus end up with a conviction for adultery and/or inappropriate relationship. Relatively speaking, the punishment your father/husband received was pretty light.

    I feel bad that you as the family have had to suffer the consequences of your husband’s/father’s actions, and understandably, you feel that your husband/father was wronged. But in the end, it was up to the hearing officer to decide whether to believe the female Sailor or your husband/father. Obviously the hearing officer decided to believe her, and believed the evidence supported a decision that your husband/father was guilty. Your attempts to portray the female Sailor as a whore do not help your husband’s/father’s cause.

    This discussion board is about proposed changes that affect the military’s ability to prosecute and defend Article 120 offenses. If you want to vent about what happened to your husband/father, perhaps you could create your own website and invite people to look at it.

  50. Anonymous says:

    Tami – If you read above, you would have seen that the case was handled at summary court martial. Plus, a chief cannot be busted down to E-6 at NJP in the Navy. I also note that you are the first one to use the word “whore” – not the McSweeny family. Just because a woman sleeps with a bunch of guys (or women), it does not make her a whore. Sexually liberated and perhaps a poor decision maker given the fraternization issue, yes, but not a whore. More importantly, the account of her actions, however, does go to her credibility and her motive to fabricate, which does help McSweeny’s cause. Lastly, discussion threads have a life of their own. Some of the better discussion threads on CAAFlog are the ones that started one place and ended down a completely different rabbit hole.

  51. Late Bloomer says:

    Just because a woman sleeps with a bunch of guys (or women), it does not make her a whore.

    My humble nomination for CAAFlog Quote of the Year.

  52. Tami says:

    I was incorrect in believing the McSweeney case was resolved via NJP. Anonymous 0221 is correct that an E-7 sailor can’t get busted down to E-6 at NJP.

    However, when the family refers to the female sailor as a “lying female sailor, who admitted to being addicted to sex, screwed other sailors in public areas for all to see and on board the USS Momsen” and “she had sex with a lot of sailors on board including my husband who was her Chief,” why would they say stuff like this if their intent is not to portray this woman in a negative light? It’s stuff like this that resulted in MRE 412.

  53. McSweeney Family says:

    Tami: My dad never had sex with this female sailor. Nor was it ever been proven. Because it never happen. Your comment [USS Momsen” and “she had sex with a lot of sailors on board including my husband who was her Chief,”] My dad never had sex with SN H. NCIS the command never found any evidence of sexual intercourse which is the element one to prove adultery occured. We all know who had sex with SN H that night YN1 B.B.
    SN H herself stated that she had over 13 beer’s that night. She also stated that she “THINKS” it all happen. Same comment she made at the trial that are printed in black and white of the transcript’s.
    Good try! My dad is not guilty!
    Tami is just another female that feels if a female says it happen it did, but Tami you could not be more wrong.
    Tami, how’s it feel to know the Navy convicted the wrong sailor and the YN1 B.B who admitted to the sexual assault is still on active duty?

  54. McSweeney Family says:

    Late Bloomer, what does it make her? it sure in the hell does not make her a Saint!

  55. McSweeney Family says:

    My point of posting was to get everyone to see that the Military Justice system is not a fair and impartial system. It’s politc’s at it’s best.

  56. Brian the dog says:

    Most places it will make her rather popular!

  57. JaneDoe says:

    It’s frightening. Young career officer, deployed overseas, bars on base, has drinks with enlisted woman, makes a pass, she declines, he stops. Later, she’s approached by investigators wanting to know why she was fraternizing, she’s pressured, says the contact was not consensual, officer is charged with aggravated sexual contact, even though enlisted woman says no force. His options: fight, and risk conviction for sex crime, and face registration for the rest of his life, or conduct unbecoming and risk DD; try to resign, and take OTH, and have to report this on every job forever.

    Someone has to stand up to Article 120, and stop the madness of these young guys losing their lives and careers over nothing. Why are officers and enlisted even permitted in the same building? Why are there bars on base? Why, I ask, are there even women permitted near men in the military? It’s a recipe for disaster: take 20-something men and women, take them from their families, send them to foreign lands, add alcohol on base and shake well. And for the Commands who know fraternizing is going on and permit it, weren’t you ever in the 8th grade? What the Heck did you think would happen?

    Jane Doe

  58. JaneDoe says:

    Not sure why my post landed where it did. I wasn’t commenting on the McSweeney case, although I think it was a gross miscarriage of justice, and simply unfair. He was a victim of the same thing the young officer was: no one dares stand up to say don’t prosecute. To do so puts their own career on the line. We’ve elevated sexual encounters, including flirting, to the level of capital crimes, and no one, and I mean not one person in the line of command, will put their name on the line to sign off on not moving forward with a court martial. In the civilian world, these cases would never make the light of day.

    I hate to vent, and thanks for the opportunity to do so.

    Jane Doe

  59. Tami says:

    McSweeney family,

    If you had ever seen me in court, you would know I’m not “just another female that feels if a female says it happen[ed] it did.” Out of 5 rape cases I personally defended, only one got convicted–3 got acquitted and 1 got an administrative discharge (a general under honorable conditions) in lieu of court-martial after the Article 32 hearing.

    As far as the “legal help” your father got, it sounds like your father got some pretty good advice about accepting the summary court-martial, and your father was wise to follow it. If your father had demanded a full-blown court-martial, he risked the traditional consequences of being found guilty: a conviction, maybe registration as a sex offender for the rest of his life, jail time, reduction to E-1, forfeitures, and a punitive discharge which would have foreclosed his ability to retire. Your father got to avoid all these things by taking the summary court-martial.

    As much as you obviously want to continue believing your father is innocent (which is your prerogative), the bottom line is that your father was found guilty. That is not going to change.

  60. Tami says:

    If you had ever seen me in court, you would know that I’m not “just another female that feels if a female says it happen it did.” Out of the 5 rape cases I personally defended, only 1 got convicted–3 got acquitted and 1 got an administrative general discharge after the Article 32 hearing.

    As much as you want to continue believing your father is innocent (and that’s your prerogative), the fact remains that that your father was found guilty, and therefore, it was proven that he had sex with this female sailor.

    Your father was very smart to accept the summary court-martial. Had he demanded a full-blown court-martial, he would have been at great risk for: conviction and maybe registration as a sex offender for the rest of his life, jail time, reduction to E-1, forfeitures, and a punitive discharge which would have precluded him from retiring.

  61. McSweeney Family says:

    Tami, Just because the Female judge found him guilty and wanted to believe he was guilty. My father is not guilty. NCIS agent stated it himself they found no evidence of adultery or fraternization. Hell the female sailor herself stated it was another sailor that she woke up to the next morning.
    Look this female sailor had to cover her ass, she knew when the Command Survey investigation (for a seperate investigation) started she was going have her name plasted all over the sexual misconduct that had been going on. She had no choice but to make up a victisous story to cover what she herself had been doing with many lower enlisted male sailors. She herself admitted to having sex with a PO in the aft gyro room of the ship. Yet she received no punishment. WHY? Because she made a false allegation of rape against my husband. After my husband was totally cleared from the first investigation 6 months prior.
    Tami you keep thinking that it’s ok to convict a innocent man and I’ll keep putting the word out that the Navy now convicts just to please the feminist groups.

  62. McSweeney Family says:

    Tami, starting with the word WHY! I took over. How do you have the nerve to tell my children that they are wrong about their father? Do you know the case? Did you try the case? Do you have all the facts in the case? NO! Neither did the US Navy.
    SN Hatcher (and will use her name) is a liar and a total embarrasment to the US Navy and all female sailors that conduct themselves with proper military bearing. This girl had mental issues and even went as far to make X marks through the ships cruse book over sailor’s pictures she claimed to have sex with.
    My husband did not have sex with her and did pass a truth verifcation test. He stated from the first investigation he did nothing wrong. Same conclusion he was cleared of in the first investigation and the same conclusion NCIS gave at the trial. Nothing founded! Not to mention the female sailor herself said it was YN1 Brian Boyle who she woke up with the next morning. The same individual that admitted to indecent sexual assault and making false offical statements during my husband investigation.
    No the facts! Because telling a child they wrong when they know there father better than a stranger ins total unacceptable.