I’ve been watching, with great interest, developments regarding proposed Mil. R. Evid. 514: Victim Advocate – Victim Privilege (see: here and here). Until now, I beleived the proposed Mil. R. Evid. was to be the result of a legislative requirement. Congress, it seems, feels differently.

The conference report on the FY12 NDAA is available here. The following language is found on page 1425 of the pdf:

Privilege in cases arising under Uniform Code of Military Justice against disclosure of communications between sexual assault victims and sexual assault response coordinators, victim advocates, and certain other persons

The House bill contained a provision (sec. 584) that would add a new Article 140a to the Uniform Code of Military Justice establishing a privilege against disclosure of communications between a person who is a victim of a sexual assault and a Sexual Assault Response Coordinator (SARC), a Sexual Assault Victim Advocate, and personnel staffing the Department of Defense (DOD) Safe Helpline or successor operation.

The Senate amendment contained a provision (sec. 564) that would require the President to establish in the Manual for Courts-Martial (MCM) an evidentiary privilege against disclosure of communications to similar effect.

The House and the Senate recede. Neither provision is included in the conference report.

The conferees note that the DOD has indicated that a new Executive Order that would amend the MCM by adding a proposed new Military Rule of Evidence 514 Victim Advocate Privilege has completed all review within the Office of Management and Budget and is now with the President for review and approval. Additionally, DOD has amended its controlling regulations to ensure that the privilege against disclosure applies to communications with a SARC whenever their duties and responsibilities involve victim advocate functions. Once this change to the MCM is signed and implemented, the conferees believe that it accomplishes the objective of ensuring privileged communications for sexual assault victims.

Without the legislative requirement, I continue to wonder (as I did in this comment) about the notice and comment period for this new rule:

The 2009 JSC Annual Review of proposed MCM amendments includes the MRE 514 language. Link here. At the top of the document it states:

JSC 2009 Annual Review Package of Proposed Amendments to the Manual for Courts-Martial by Executive Order. Initially Published in the Federal Register on September 17, 2009.

However, the 17 Sep 2009 Federal Register notice contains no mention of MRE 514. Link here

Considering the amendments in the 19 October 2011 notice are supposed to be stylistic, I wonder if we’re missing a notice and comment period for MRE 514?

32 Responses to “Congress withdraws requirement for Victim Advocate Privilege (MRE 514)”

  1. Peanut Gallery says:

    I may have missed the CAAFlog post about it, but did anyone see that Article 125 was repealed in the Senate version of the NDAA?

  2. JWS says:

    So, the “victim” conveys information to the “advocate” that is exculpatory to the defendant — and that does not come in to evidence?  Doesn’t anyone see a constitutional problem here?
    Assuming the “advocate” is an officer, is it honorable for an officer to withhold exculpatory evidence from the trier of fact?
    Just asking.

  3. Peter Orlowicz says:

    JWS,
     
    I don’t see how the victim/advocate privilege would create any more constitutional problems than any other privilege. I suppose one could argue that an officer of the court has an affirmative duty to the court that a doctor, spouse or other privileged relationship doesn’t, but that seems a weak point of distinction. Attorneys are officers of the court as well, yet attorney/client privilege would attach to exculpatory statements of a third party. For example, if charges of theft and fraud are preferred against Sergeant X, but Corporal Y contacted a lawyer and made statements admitting to being the sole perpetrator, Corporal Y’s lawyer would, I think, be under an affirmative ethical obligation NOT to divulge those exculpatory statements to either the government or to Sergeant X’s counsel. (See Army Rule of Professional Conduct 1.6)
     
    In the victim/advocate circumstance, the entire point is for the advocate to act in the best interests of the victim, rather than representing the government, the military branch, or any other institution, right? Creating a privilege to allow the victim to be completely open and honest with the advocate would seem to be in harmony with that goal, much as we want patients to be honest with their doctors and clients to be honest with their lawyers.

  4. Phil Cave says:

    PG, the repeal of Art. 125 is not in the current NDAA conference report.  There are some interesting changes to Art. 120.

  5. Dew_Process says:

    Aside from the issues involving non-compliance with the rule-making requirements, how does this pass muster under Art. 36’s limitations?

    I know that the policy reason – appeasement to the claims that the military is not doing “enough” to enforce sexual harassment / assault issues – but one would think that the DoD lawyers and TJAG’s would at least insist on doing it “right!”  But, maybe they want to expand CAAF to 9 judges to keep up with the presumably increased workload!

  6. JWS says:

    Mr. Orlowicz:
    That, of course, is the obvious reason for the policy — but it doesn’t wash.  The “victim” is not a party & the “victim’s” liberty is not at stake.  Moreover, the use of the word “victim” itself suggests pre-judgment where the presumption of innocence must apply.
    The incidence of false accusations of sexual assault is high and material inaccuracies by complainants is even higher.  In the county where I lived, practiced & was a volunteer firefighter for 20 years, this was the accepted wisdom of the women in the sheriff’s sexual assault unit.
    And a lawyer may not allow his client to testify under oath to a falsehood — even when its his or her own client.  Why should a “victim advocate” be permitted to do so?
    And it is NOT honorable, no matter what sophistry one deploys in its defense.
     

  7. stewie says:

    I think it unnecessary but it seems pretty clear that it is only window dressing because all of the statements between the accused and the victim advocate are either going to be:
    a. barred by 412 or 403 anyways, likely requiring a hearing in front of the judge
    b. not barred by 412 and relevant testimony (either for impeachment or simply as another iteration of of the alleged victim’s story), and still likely requiring a hearing to get that result
    c. and of course the rule itself requires a, you guessed it, hearing in front of the judge, which is going to happen every time
    So all we’ve really done is maintain how things already are. The judge, accused, and government counsel will still get to hear everything she’s said to the victim advocate, and the judge will decide what comes in, and what does not.

  8. Peter Orlowicz says:

    JWS,
     
    To be clear, I’m not taking a position on whether an advocate/victim privilege is a good idea to create, but all bad ideas are not unconstitutional. In the other instances I mentioned, privilege claims are not limited to parties to a particular case, so I don’t see why the victim wouldn’t be able to claim privilege merely because he or she isn’t a party to a case. I’d also suggest the use of the word “victim” doesn’t and shouldn’t suggest pre-judgment; I can easily imagine a case where there was unequivocally a victim of a sexual assault, but the guilt of a particular suspect was open to significant doubt.
     
    As to the prohibition on a lawyer knowingly suborning perjury, that’s a little different, I think. That goes less to the issue of privilege and more to the point of a lawyer not affirmatively assisting in a continuing or future crime. Other privileged relationships don’t create such an affirmative duty, I assume because the attorney is the only individual who can control whether a client testifies. A victim advocate doesn’t (and shouldn’t) have the power to determine whether a victim testifies any more than the victim’s doctor or priest should have.
     
    “Honorable” is a tricky word. I think you have the same basic  problem when a defense attorney has actual knowledge of his (third party) client’s guilt and doesn’t share it with the court. Likewise, maybe it’s dishonorable for a defense attorney to argue for exclusion of evidence that he knows shows his client’s guilt; that’s effectively hiding evidence from the trier of fact, except in that situation it’s with the complicity of the court. I don’t think any of that behavior is unethical, however, and at least with ethics we have a set of (mostly) agreed-upon common principles that govern the relationships between the actors in the criminal justice system; objective rather than subjective criteria.
     
    Again, I have no idea about the merits of a victim/advocate privilege; it just seems far from clear to me that such a privilege violates the Confrontation Clause (or any other Constitutional right) more so than any other existing evidentiary privilege.

  9. soonergrunt says:

    @Peter Orlowicz, 12/13/2011, 2256hrs–
    <blockquote>I’d also suggest the use of the word “victim” doesn’t and shouldn’t suggest pre-judgment; I can easily imagine a case where there was unequivocally a victim of a sexual assault, but the guilt of a particular suspect was open to significant doubt.</blockquote>
    I respectfully suggest from bitter personal experience that an unfounded presumption of guilt is precisely what is created by use of the word “victim” to refer to the accuser.  People naturally think that if there is a victim, that someone must have victimized that person, whether that is in fact the case or not.
     

  10. Just Sayin' says:

    agree with soonergrunt on this one.

  11. stewie says:

    I agree with the other two, saying victim doesn’t have any suggestion of pre-judgment is, with all due respect, intellectually disingenuous. It requires one to redefine the standard dictionary meaning of the word. It’s why we call someone an accused because that word captures the nature of our system by its very definition.

  12. Phil Cave says:

    I prefer “complaining witness.”  I have a standard motion I file in all sex related cases.  Usually the MJ agrees with me.  Although agreement stops in the event of a conviction.  The MJ’s view is that there is now a victim.  While I disagree, it’s not an unreasonable approach.

    That’s my way to try and introduce some neutrality and avoid inflammatory.  Now if you want to be political and inflammatory, then “victim” is the right word. 

  13. Peter Orlowicz says:

    If it’s intellectually disingenuous to suggest the term “victim” doesn’t suggest pre-judgment, does that in turn imply that a victim isn’t a victim until there’s a suspect? If you’re merely suggesting that “victim” implies some crime was committed, then I’ll concede the point; I was trying to distinguish between that sort of pre-judgment and the idea that “because there is a victim, that means this particular defendant must have done it,” which is what I was arguing doesn’t connect. Again, if we look at something like burglary, I can clearly be a “victim” of a burglary without having any idea who might have committed the crime. Are you suggesting that it’s only in the specific context of sexual assaults that “victim” is pejorative against the accused? I suppose in sexual assault cases where the fact of sexual contact isn’t disputed but consent is, the use of the word “victim” might imply the result that yes, a crime was committed, but that’s considerably narrower than the point I was trying to make and considerably narrower than the broad universe in which the word “victim” is commonly used, if you look at the “standard dictionary definition of the word.” I do agree that “complaining witness” avoids the problem relatively well.
     
    In any case, I don’t see how that choice of language affects the constitutionality of the advocate privilege in the slightest.

  14. soonergrunt says:

    I understand what you’re saying, Mr. Orlowicz, but just as one can be a victim of a crime, such as burglary, without knowing who burgled your house, simply because your laptop is missing and a window is broken, what do you (and most other people) assume to be the case with respect to the person that the police arrest for that crime?  Even if you don’t know how they came to that conclusion, most people assume that if the police think this guy did it, he most likely did.
    For sexual assault cases, it’s amplified by the effect of the accuser (victim) pointing at the accused and saying “he raped me.”    I am the first one to grant that in the majority–I’d even say VAST majority–of cases, she’s telling the truth as she knows it, and she’s correct.  Such was not the case with me, but I digress.
    As for what bearing it has on the whole “victim” advocate thing, my question is this–is the VA required to disclose exculpatory evidence to the defense?  What if the accuser tells the advocate “nothing actually happened.  I’m lying about this just to get him in trouble?” or “I don’t want my husband to know I was cheating so I said the accused raped me”? or whatever?  What if the VA merely believes that the accuser isn’t telling the truth for whatever reason?
    My only concern–admittedly colored by my experience–is that the accused get a fair shake.  I got one after a while, and didn’t end up too banged up.  But this guy got hosed, and I thought we were supposed to be trying to prevent that kind of thing as our first concern in any Justice system, and I’m pretty leery of a system whereby the primary witness to an alleged crime should be shielded from confrontation by the accused at trial.

  15. Peter Orlowicz says:

    soonergrunt,
     
    To respond to your first point, while most people might assume the police arrested the correct person for the hypothetical burglary, that’s true regardless of whether we call me a victim or a complaining witness. Moreover, individuals who serve on a jury or as members on a court-martial are explicitly supposed to disregard those assumptions in favor of a presumption of innocence, otherwise the entire system is called into question. I tend to agree with Mr. Cave that in cases like sexual assaults, it very well may be easier for the members to do that when we use the complaining witness term rather than victim, but we do have to fundamentally assume that judges, attorneys and members are all capable of doing that in the first place.
     
    On your second point, the point of the privilege is to shield the communications between the alleged victim and the VA. So, once the privilege is created, the defense attorney can’t call the VA to impeach the victim or to give conflicting testimony (unless the victim waives the privilege). But the VA isn’t a “primary witness”, the victim is, and this privilege doesn’t prevent the victim from testifying or from being cross-examined by the defense; all it does is mean the defense can’t call the VA to testify to a different version of events. In theory, the prosecutor can’t call the VA either to reinforce the victim’s testimony, as the privilege operates both ways, but in practice I imagine if the prosecutor wanted the VA to testify in support of the victim and it was otherwise admissible, the prosecution could get the victim’s consent to waive the privilege.
     
    I’ll return to my original point, though, that this isn’t any different from any other privilege from a confrontation or constitutional standpoint. If an individual goes to the doctor for treatment and makes statements to that doctor, then later testifies as to a sexual assault, the defense can’t call the doctor to refute the victim either. The defense still gets to confront the actual accuser at trial, it just limits the particular evidence the defense can use to impeach credibility or introduce conflicting versions of the story.
     
    In a perfect world, if the victim really made those sorts of bald-faced admissions of falsehood to the victim advocate, then the VA should relay those statements to the prosecutor (assuming there’s no independent duty of confidentiality I’m unaware of) and the prosecution should decline to prosecute. The privilege only applies to admissibility of evidence at court-martial, not to out-of-court communications to the involved attorneys. In fact, the VA might even be able to communicate that to the defense attorney directly; the VA just can’t testify at trial about it. Again, there may be some independent duty for VAs to keep information confidential, I just don’t know.

  16. soonergrunt says:

    @ Peter Orlowicz,
    Sir,
    Thank you for your very informative and thorough answer.  This is why I come to this site.  I always leave knowing more than when I opened the page.

  17. JWS says:

    Mr. Orlowicz:
    I agree with soonergrunt’s comments & I thank you, as well.
    That said, I think it is more complicated.  The privileges we all recall exist at common law.  Making new ones is a bigger problem. You seem to imply there is no limit to the legislature or courts creating evidentiary privileges. At some point trials become a farce.
    And the common law privileges are not ironclad.  The medical privilege has an exception for statements by the patient that suggest future harm to a third party.  Indeed, if a patient expresses intent to harm someone, the Dr has a positive duty to report the matter to the police.  So, if a patient tells her doctor the tryst was willing & consensual and the Dr knows the patient will testify to the contrary, that is indeed a harm — serious harm — to a third party.  The attorney-client privilege has a similar exception.  It is settled law that a lawyer may not allow his or her client to commit perjury and say nothing.  It sure as heck isn’t honorable.
    This is especially true with VA’s, who often tend to lose perspective.  There is a famous case in the State of Washington (State v Titus) where a group of “advocates” convinced the victim that her unclear memory was in fact clear.  The victim ID’d the defendant on the stand.  It turned out, of course, that it wasn’t the defendant at all.  The only person to express remorse over this was the victim herself.  The VA’s disclaimed any culpability, as did the prosecutor.
    I know we’ll never agree, but recent cases on the confrontation clause and the Brady line lead me to think that any “privilege” that withholds exculpatory evidence that is otherwise admissible will be held unconstitutional.
    And there is no honor in withholding exculpatory evidence when a person’s life or liberty is at stake.  The victim’s feelings, however real and understandable, simply do not count against that.

  18. stewie says:

    Not sure why we are talking about burglaries. It is clear in what context this rule and conversation are both focused, sexual assaults. And in the vast majority of cases, the alleged victim knows the accused, and in a vast majority of those cases, the question isn’t about whether or not sex or sexual contact happened but whether or not it was consensual.

    That is not the case in burglaries. Nor would I argue are the incidents of false reporting nearly as high in those cases as in sexual assault claims.

    I agree, it isn’t a constitutional issue, but it is a question of propriety and fairness.

    As for the privilege, I would assert it isn’t like all the other privileges. The AC privilege is almost impenetrable, same for most of the other common law/statutory privileges. Only the fear of future serious criminal conduct/threat to others can pierce it in most cases. This privilege though will result in the same situation as before.

    Before: DC wants to know what alleged victim told VA. Finds out. Tries to get it into evidence. MJ decides if it comes in under 403/412/Constitution.

    Now: DC wants to know what alleged victim told VA. MJ holds hearing. Decides if it comes in under 514/403/412/Constitution.

    Pretty similar and I predict the same things will come in after as before.

  19. JWS says:

    More on the “victim” nomenclature.  The word “victim” does, indeed, impinge on the presumption of innocence.  This has long been the assumption at common law and is why words such as “complainant” and “prosecutrix” are used.  If there is a dispute as to whether the complainant was in fact assaulted, of whether the contact was consensual, the complainant is not legally a “victim” until a jury so finds.  In our state judges are not permitted to comment on the evidence, so I would assume a defense lawyer would raise the issue if a judge used the word “victim” before verdict.
     
    Phil cave is wise, though I must admit a chuckle at the modern phrasing (2 words vs 1; 5 syllables vs 3).

  20. WestCoastDefense says:

    Good, interesting discussion in this thread.
    It would seem to me that under the exceptions listed in 514(d) if a VA had knowledge of conflicting stories or damning evidence to the prosecution that the VA learned during private consultation with the alleged victim it seems to me the rule contemplates that the privilege doesn’t exist.  If a VA is hearing a story that does not make sense and the accused’s ability to receive a fair trial is on the line, seems pretty clear the privilege is waived and the VA can disclose it.  I hope and pray that VAs will be well trained and understand that communications to them are privileged starting Jan 2012, that is the default, but that can change if any of the exceptions in subpart (d) apply.  Defense counsel, even if they suspect something fishy was said between the VA and alleged victim but the VA isn’t coming forward, under subpart (e) there’s clearly the process outlined to raise the issue with the court in an open or closed hearing.

  21. k fischer says:

    WestCoastDefense,

    Subpart e provides for a hearing under the following circumstances:

     (1) In any case in which the production or admission of records or communications of a victim is a matter in dispute, a party may seek an interlocutory ruling by the military judge. In order to obtain such a ruling, the party shall:

     (A) file a written motion at least 5 days prior to entry of pleas specifically describing the evidence and stating the purpose for which it is sought or offered

    How is a Defense Counsel supposed to know that what the accuser told the VA?  If I go to the Judge and ask for a hearing, there must be a matter in dispute.  Also, I have to specifically describe the evidence.  Well if I don’t know what the accuser told the VA, then how would I know what was fishy?  It would be purely speculation.  The rape kit is a medical record, which should be privileged as a medical record exception, but I would still get it in discovery wouldn’t I?  Why can I ascertain whether or not the Accuser told the VA something different if I can’t question the VA?  The Government is going to argue that I am just going on a fishing expedition.  I would say that I am trying to engage in discovery.

    The best time to question the VA would be during the Article 32, but I can force the VA to testify because this provision only provides for a military judge to make a ruling.

    The way I see it, this rule does nothing, and we have to rely on the VA’s to come forward.  Are they trained by the SAPRO to do that when they believe the accusation is false based on what the accuser says to them?

    What is happening is that an accuser in a sexual assault case is being elevated beyond what they simply are:  a fact witness.  Period.  In no other type of case is a fact witness given all this special treatment. Why should we give special treatment to sexual assault accusers?  Do you really think there would be all these protections if women were the accused 100% of the time?  I guarantee they would be screaming blood murder about their right to discovery, Brady evidence, right to a fair trial, etc.

    If a woman who had four beers and a man who had four beers have consensual sexual intercourse, which one would be in danger of getting convicted of rape?

  22. WestCoastDefense says:

    Kfisher
     
    Ultimately defense wants to talk to the VA because the defense is looking for impeachment evidence of the accuser right?
     
    “How is a Defense Counsel supposed to know what the accuser told the VA?”
     
    In my experience as a defense counsel where an accuser has been inconsistent in the past or inconsistent with others, wouldn’t you know it, turns out the accuser told the VA yet another version of inconsistent events.  It’s obviously going to be fact specific to a case (usually accusers that decide to come forward in my experience tell other individuals besides the VA) and I could see where a defendant may have an informed hunch and it’s not simply a fishing expedition.
     
    Besides even if your hunch is wrong and the accuser told the VA the same version of events she told investigators if you have something you’ll get your hearing but I agree you’ll need something, anything, to show the judge “hey the VA might know something and didn’t come forward with it.”
     
    If accusers are just like any other fact witness than just get rid of the VA program.  Society recognizes, and I happen to agree, that accusers are not the same as other fact witnesses, that they may need help, and so victim advocates exist in both military and civilian jurisdictions.  I do agree though that VAs need to be trained to understand what the privilege is and when the privilege wouldn’t exist or justice for certain risks being undermined.
     
    Just my two cents.

  23. stewie says:

    I’m going to guess that the judges and courts are going to err on the side of minimal requirements to get to the hearing level otherwise you would be correct, unless the VA comes forward, you would never know what the alleged victim said.
    You can’t have a system that relies solely on the good faith of the victim advocates who are clearly going to err on the side of explaining away inconsistencies and thus not coming forward.

  24. k fischer says:

    WCD,

    We’re on the same page.  I do think your reasoning for the hearing would suffice for some, maybe even most, judges, but I had a case where the accuser was married to the accused, got engaged to another Servicemember a week after leaving him, threatened to contact CID if he did not sign the divorce papers the day before she went to CID, and the military judge would not allow me to ask if she was engaged under MRE 412, no matter how much I said that being engaged had nothing to do with sexual acts.  That type of judge who protects victims to the detriment of the accused’s right to confront a witness for bias or motive to fabricate under MRE 608 would want something more specific than ‘she made contradicting statements to others, so I think she could have told the VA another story.’  That judge would ask what specific evidence I had that she told the VA something else.  And the trial counsel would effectively argue that my request is not specific enough.

    I just think 514(e) will not be effective to flesh out prior inconsistent statements.  I’ve got no problems with victim advocates, but don’t give them a privilege.  And I don’t buy the argument for the privilege that if the privilege is not there, then victims won’t be as forthright with information to the VA.  Seems like a catch 22, doesn’t it?  If she makes a prior inconsistent statement, then we won’t know about it because of the privilege.  If she makes doesn’t make a prior inconsistent statement, then we won’t know about it either.  Real victims won’t be affected because their stories shouldn’t change.  The only people who will be affected are those men who are falsely accused and wrongly convicted because the accuser’s prior inconsistent statements will be privileged. 

    At least if the accuser makes a prior inconsistent statement to the trial counsel, they would have to disclose it under Brady.  But, we are coming closer and closer to giving an accuser a right to a conviction, at the expense of the accused having a right to a fair trial.

  25. soonergrunt says:

    @K Fischer, 12/16 1020hrs–
    In my case, my accuser, having decided that she wasn’t going to be put out of the Army for failure to adapt, so she accused her supervisor (me) of raping her while she was on weekend duty.  That she had engaged in intercourse with her boyfriend (who had the same type B- blood as I do) on Sunday right before he left for PLDC, and that I had been in the department office that Sunday complicated matters.  It was all sorted out before there was even an Article 32, but when the MPs take someone away in handcuffs, everybody who sees it comes to the same conclusion, and some of those people hang onto that conclusion even after the accuser is telling different stories and partying in the barracks the weekend after supposedly being raped.  It is amazing the extent that many people will go to in order to convince themselves that whatever behavior the ‘victim’ is engaging, that particular behavior is ‘consistent with’ being a rape victim.
    The boyfriend returned from PLDC and was greeted with this crazyness, and promptly went to the MPs and told them about the night before he left.  Then the DNA came back.  But even for all of that, there were still people who were absolutely certain that “something happened.”
    You said “The only people who will be affected are those men who are falsely accused and wrongly convicted because the accuser’s prior inconsistent statements will be privileged. ”  This was the fear that kept me up at night for days on end.  That nobody would believe me except people who couldn’t help me.

  26. Silence Dogood says:

    “I hope and pray that VAs will be well trained…”

    I sincerely do, too, but “hope” is a big word when an American citizen’s liberty is on the line.  This 514 effort is a nice blood and guts formulation by elected officials — their guts to write it and pass it, someone’s else blood to be spilled in court.    

    I suspect these AVA’s — Alleged Victim Advocates — will get training consistent with the re-education that has member pools walking into voir dire with the belief that one woman’s drink divorces her from capacity, yet one man’s drink marries him to criminal liability.  Yes, the very same member pools that “are explicitly supposed to disregard those assumptions in favor of a presumption of innocence.”

    To assume the current climate and training attached to that climate always allows for members who are capable of objectivity and of the appropriate judicial temperament…sorry, not quite.  We have what we have in terms of a VD process.  There isn’t much of a way to make it better than it already is because practically speaking, you simply can’t successfully challenge everyone who has had this training.  I digress.

    The point is that I also hope we will have some judicially temperate AVAs.  But I suspect that if I have no expectation of objectivity and judicial diligence from the DoD, then I will not be disappointed.  So, I am not holding my breath.  Expect our future AVA’s to be programmed in lockstep with the rest of our lemming-like ranks.

    SD 

  27. WestCoastDefense says:

    “I hope and pray that VAs will be well trained…”

    I sincerely do, too, but “hope” is a big word when an American citizen’s liberty is on the line.

    I chose that language intentionally because, like it or not, hope is what one is left with as, in a few weeks that will be the rule in military courts-martial and, unless it is found to violate a constitutional provision it’s the law.

  28. k fischer says:

    SoonerGrunt,

    Please tell me that this took place at Ft. Hood and the accuser’s first name began with a J.   Did she admit that she fabricated the whole thing?  If so, was your accuser drummed out of the military, or did she move to another unit suffering no consequences?

    I’m sorry that you had to go through what you went through.  Your case sounds like a perfect case study whether false allegations of rape in the military are common.  Some would say they are, i.e. Kanin and McDowell. When I was a TC between 2002 and 2003, CID would actually investigate evidence that the accuser was fabricating an allegation.  Now, they have been trained not to attempt to figure out whether or not the accuser’s allegation is true, so they do not further “victimize the victim.”  If the accused lawyers up, which they should always do particularly in cases involving sexual assault allegations, then the charges pretty much automatically go forward.

    Most of the SVP’s are females who will never be accused of sexual assault, so they will never be in danger of having to hire an attorney or sweating about how they can prove a negative.  They are the ones who have the discretion whether or not they will go forward with charges and how deep they want to go down the rabbit hole on the ones that are a little shady.

  29. soonergrunt says:

    @ k fischer,
    It was in Germany, and her first name began with S.  She eventually did get out of the Army early, but to my knowledge, she was never called to account in any way for her little lie.  The idea was that they didn’t want to scare off real victims.  To this day, nobody can explain to me how holding a liar accountable for her actions would scare off people who want to tell the truth.  It probably gave her another six months in the Army.

  30. stewie says:

    Well, I think for some folks they just don’t believe a woman ever lies about rape. I got called a “rape apologist” recently on a fairly liberal website (and I’m a fairly liberal guy) because I believed that sometimes women do make false allegations.

  31. k fischer says:

    Stewie,

    Perhaps you should pontificate victimization with your liberal colleagues using the logic of Gunny Hartman:

    HARTMAN

         Private Pyle, if there is one thing in this

         world that I hate, it is an unlocked footlocker!

         You know that, don’t you?

    PYLE

         Sir, yes, sir!

    HARTMAN

         If it wasn’t for ****heads like you, there

         wouldn’t be any thievery in this world, would

         there?

    PYLE

         Sir, no, sir!

  32. JWS says:

    <blockquote>Now, they have been trained not to attempt to figure out whether or not the accuser’s allegation is true, so they do not further “victimize the victim.</blockquote>
    Orwell was right — some are are more equal than others.  So much for unit cohesion.