Over at 31(b)log, Jim Clark of TJAGLCS has posted this interesting commentary exploring the impact of feminist theory on the evolution of rape laws.

12 Responses to “Feminist theory and Article 120”

  1. k fischer says:

    “This is a lesson we have been teaching here at TJAGLCS for the last two years : “cultural cognition” — the non-legal social beliefs of the community — cause the police, prosecutors and jurors to discount rape reports that are are missing physical resistance/injury or independent corroboration.”
    Nice to see that our Servicemen are being tried by a criminal system that is striving to successfully extricate corroboration and physical evidence in order to enhance its chances for a conviction based on proof beyond a reasonable doubt.  The fact that TJAGLCS has been indoctrinating a whole generation of JAG Corps attorneys for the past two years is frightening.  Kudos to Mr. Clark for having the guts to admit it.

    I recently had an admin sep board for forcible sodomy where I had some pictures that showed a previous sexual history between the vic and accused.  The TC heard about these compromising pics and called me to ask me to share them with her, so she could get the case dismissed.  I told her I wanted to meet with her personally because I did not trust that she wouldn’t go back and coach the witness on the right things to say to get around this evidence.  She implied that I was being unreasonable for not trusting her, even though I had never met her. 

    After I met with her and her boss personally, I shared the photos and other evidence that she could not have found on her own.  She kept her word, and I was very impressed by the TC’s integrity on that case in getting it dismissed the day before the hearing.  Unfortunately, she is getting out of the JAG Corps. 

    After reading Mr. Clark’s post, I am confident that my policy of distrusting TC’s coming out of the TJAGLCS in sexual assault cases is a good one.  Combine this with statements like “we have to pass the CNN test,” “at least I’ll get some trial experience,” and “when this victim lies, she lies, but when she is telling the truth, she is really telling the truth,” every Servicemember should lawyer up when read their Article 31 rights, especially in sexual assault cases.

  2. Dwight Sullivan says:

    As a graduate of the TJAGSA career course myself, I don’t have a fear that they’re brainwashing anyone.  Nor did I interpret Mr. Clark’s post as suggesting that they’re trying to.  I don’t think it’s suprising that studies would suggest that various players in the criminal justice system discount rape allegations where there are no physical injuries, no evidence of physical resistance, and no independent corroboration.  To the extent that TJAGLCS calls its students’ attention to such studies, I think it’s an appropriate exercise of its academic mission.

  3. Jim Clark says:

    It’s not astonishing but it is unfortunate that an attorney intentionally would misread my post (even if that post could have been more beautifully written) in order to launch a diatribe questioning the ethics of every trial counsel, and condemning the entire teaching program at TJAGLCS. The comment demonstrates no knowledge of what we teach here, or how we teach it.
    First, I would invite k fischer actually to read Prof. Gruber’s article. This would make it clear that  the context of “corroboration” in my post was the historical requirement for a second eyewitness in rape cases, which has been universally eliminated by legislatures across the USA. It was not a statement that we were teaching anyone that Trial or Defense Counsel either should stop gathering or stop presenting corroborative evidence.  OF COURSE, we teach our attorneys (both TC & DC) to corroborate every witness, including a sexual assault complainant. There are many ways to do this, however, without having a second eyewitness to the crime.
    Second, “this is what we have been teaching here” referred to the theory of Cultural Cognition. Understanding the theory of cultural cognition could help to alleviate such a complete misunderstanding of my post. Cultural Cognition is an exploration of the tendency of people to make decisions based upon common societal attitudes and beliefs rather than objective evidence. In the trial context, this theory is useful to understand juror attitudes and responses to evidence and argument. Teaching about cultural cognition is  not some conspiracy to charge cases without evidence. Start here: Braman, D, Cultural Cognition and the Reasonable Person, 14 Lewis & Clark L. Rev. 1455 (2010). 
    At TJAGLCS we teach all counsel to carefully consider the evidence available, to consult with their superiors about charging recommendations, and to fully comply with discovery. The very smart lawyers who the JAG corps recruits are ethical, hard-working women and men serving their country honorably, and dedicated to fairness both to victims and to the accused. If in fact there actually are JAGs out there not adhering to those Army values, k fischer should be filing ethics complaints. But then an independent decision-maker would actually judge the credibility of those complaints. It is interesting that the comment offers no evidence for the outrageous claim that all JAG lawyers (at least the TCs) are untrustworthy. The only story offered is one that shows the honesty and sincere interest in the truth that I have found to be the norm among JAG officers. 

  4. Phil Cave says:

    KSF, Prof. Gruber’s work is quite fascinating.  In some ways her thinking might be a positive for military accused’s (actually all accused’s).  In one of her articles, which is about rape prosecutions, but which she seeks to broaden proposes:
    A “victim liability defense,” (to all crimes not just rape).  Briefly, the elements of the non-specific victim liability defense are as follows:
    1.  The victim of the crime engaged in sufficiently wrongful conduct;
    2. The victim’s conduct caused the defendant to commit the charged offense;
    3. The defendant was not predisposed to commit the charged offense; and
    4. The defendant’s response balanced against the victim’s wrongful conduct dictates that the defendant should be exculpated or his punishment mitigated.
    She does acknowledge something we’ve all been saying that the politics isn’t right.  “The suggestion of a criminal defense based on victim liability, or the victim’s contribution to the crime, elicits shocked, horrified, even vitriolic responses.”
    You can find her 2003 article here:  http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1489577
    Obviously I have picked only one point out of quite a rich amount of writing on feminism.  But I picked that one because it seems to set up a counter argument to her writings as being all about putting men in jail.  She’s actually advocating to find some balance.  That I believe is what we all want to find, but can’t because of the darn politics.

    So, let’s read the new article and go from there.

  5. Phil Cave says:

    Sorry, forgot to put this link in the above.


    And don’t forget my favorite psych point:  confirmation bias – which we can all suffer from – like the investigators.  (Sorry Jim, had to give one to the defense team.) 

  6. Phil Cave says:

    Here is a FREE link to the Culture Cognition article mentioned above.


  7. Jim Clark says:

    Phil, I completely agree about confirmation bias. That’s why the Army (the CID school) is training investigators to avoid assumptions & follow every lead. They are also being taught to interview in an open-ended way that does not suggest to witnesses what the investigator wants to know. Good defense counsel will be very alert to those confirmation biases, and legitimately challenge a tunnel-vision investigation. 
    One of my biggest clashes with the police department in my past life came from my refusal to charge a suspect with murder where several equally likely suspects were ignored by detectives. This led the detective sergeant to write an internal memo m-fing me up and down. When the memo came into prosecutorial hands, that detective was moved to check crimes from homicide.  A different person was ultimately arrested & convicted of the murder. 
    In every criminal investigation, however, the initial starting point is to credit the complaint, then do a complete investigation to confirm or refute it. Cultural norms have adversely affected rape investigations because rape myths have caused many investigators and prosecutors to treat sexual assault cases differently than other assault cases.  

  8. Bill C says:

    Kyle and Phil. I think we would all agree that the answer, as always, lies somewhere in the middle.  For every TC like the one Kyle referenced, there is usually one who would not have dismissed his case under similar circumstances.  I recently had a case in which the alleged victim told two police officers that her sexual contact with my client was entirely consensual before telling a CID agent, days later, that it wasn’t.  The TC fought me every step of the way, until the IO at the 32 recommended that my client be charged with fraternization and other offenses, but that the alleged victim be charged with perjury.  At that point the government did the right thing and dismissed.  My point is that many a trial counsel would have continued to push the case, and there are SJA’s who would have recommended referral. 
    But the distinction between a “real” rape and a “military” rape remains (although I loathe those terms and consider them to be inaccurate.)  I have a number of clients I have represented on appeal who were convicted of rape, handed down minimal sentences, but are now on the SOR for actions that would never have gotten past a state prosecutor.  Is that because state prosecutors are smarter/more ethical or whatever?  Or is it because state juries would never convict in such a case?  I have no clue. But I know that I am tired of seeing our service members thrown under the bus.  I think it also diminishes what is a horrible crime.
    OK, enough rambling.  Back to coffee.

  9. Bridget Wilson says:

    I was tempted to ignore this, because in all honesty I am as unimpressed with the “neo-feminist” analysis as I am with the theories that she attempts to refute. I am convinced that much of what is being blamed by being called “feminist” would appall the pioneering legal minds that spent decades addressing women’s social, legal and political inequality. Ruth Bader Ginsberg would be one of those. She made precedent in numerous cases in which she sued using male plaintiffs being disadvantaged by stupid laws based on sex. Aging myself, when I moved to California a woman could not be a bartender unless the she was the wife or daughter of the bar owner, a woman who was married could not have her own credit record. There were endless such silly laws that disadvantaged women in the name of protecting them. Ginsberg was a huge advocate for abolishing the death penalty for sexual assault because it almost guaranteed not getting convictions and was a de facto form of racialized prosecutions in some states. . She must be appalled to see that back on the table. When I hear of women wanting the death penalty enforced  for rapes in the military, I feel like I have been transported back to 1965. (BTW, you don’t have to like Ginsberg’s opinions to recognize that she is correct about rape penalties.)
    What I really hate is this article setting forth the false idea that this is what feminism and feminists are. It’s like calling David Duke a conservative. It is also focusing on the sometimes strange world of academia. We quit letting the victim decide about whether to prosecute a batterer 1.) to lessen his ability to manipulate the victim and 2) because assault is a crime against the state. If walk up to Cave on the street and beat him to a bloody pulp, it ought to be prosecuted. It I beat my spouse to a bloody pulp, isn’t that a crime that should be prosecuted? It is one of the things that I was ranting about the minute the military’s sexual assault program was launched. We should let rapists walk because the victim is traumatized? We should get rid of evidence in a year? What if the MF is really an escalating serial rapist? Do we really want to let that go?
    I should have said “Don’t start me”. I think we have all expressed our frustration with stupid prosecutions that no civilian authority would touch. We are still acting like rape is shameful for the victim. I get all of the above, and if any of you gentlemen want to share a coffee or other beverage some time we can discuss the BS that is not being addressed under the current regime. Have you seen sexual assault lessening under these rules? Not. But this is not about the “feminists” are bad people. It is all a matter of which ones. Soapbox surrendered.

  10. Charlie Gittins says:

    And people ask me why I don’t do MJ anymore?  Really?  You could not put a fatter finger on the scales of “so-called justice.”  Women who drive while drunk are routinely held responsible for their conduct.  I still cannot fathom why a female who makes a bad decision and F . . .cks while drunk is not held responsible for that decision, however jacked up it may be.  Man up and take personal responsibility for your conduct or do not join the military. “I was drunk” is a shitty excuse for a vic and no defense for a male, and I would personally never convict under such circumstances.  I suppose Frederick County VA will never allow me to sit as a juror, and that is OK too.  But, women should be required to accept the consequences of their decisions, even when they they have been drinking.  

  11. stewie says:

    And yet, that’s not the law, well anywhere, sooo….

  12. Generation X says:

    Mr. Gittins please come back and fight for those who don’t have a praying chance against a system that has complete tunnel vision.  There are way too many soldiers, sailors, marines, and airman getting their lives destroyed over a unconstitutional law and getting railroaded by everyone in the process.  No one is going to risk their career and not push these cases forward.  I firmly believe that if most of the woman involved in some of these he said/she said sexual assault cases would just own up and be held accountable for some of their actions and misconduct instead of being given immunity then that would deter a lot of the false regret sex reports that most of these cases are.  No one should have their lives ruined if there is misconduct on both sides which most of the time it is in these cases.  I say let the commanders handle it and give both NJP and call it a day.