I thought the symposium was an excellent, if short, effort to begin a more academic and thoughtful discussion of a very serious subject.  You can’t get to a lot of detail and discussion of facts and nuance in 4.5 hours (three panels each of 1.5 hours, with 15-20 minutes per speaker).  This was a student run symposium. I thought they put forth a great organizational effort and get great kudos for their work.  If there is a criticism it was that they tried to put too much into one day.

I was invited there to represent the defense perspective.

Some initial points, more later.

1.  Representative Speier “quoted,” yes she said”I quote . . . ” from the court order in Ciaoca.  Apparently neither she nor her staff have read the order – it was the same language from the movie.  Although compared to when I and Dwight saw the movie, there were only one or two gasps at Hastings.  We have posts here, here, and here about The Invisible War (TIW).

2.  Representative Speier believes that Article 32, UCMJ, should be repealed and replaced with the secret grand jury process for sexual assault cases, and intends making that happen.  While not explicitly stated, it appears that discovery rules need to go too.

3.  Representative Speier of course raised the issue of command discretion and replacing commanders as the decision makers in sexual assault cases.  Based on the comments of her staff during the last panel it is unlikely that she will be swayed by any arguments from trying to get referral authority moved to a “independent” Director of Prosecutions.  The staff member stated a zero likelihood that something along these lines would pass and also that the STOP Act is unlikely to become law.

4.  Lackland came up.  Based on the “discussion” it appears Representative Speier and others want to establish the rule where a recruit or trainee can never consent to a sexual act with an instructor, and that a difference in rank is sufficient alone to be “force.”  Of course this ignores those, admittedly few, cases in which a recruit deliberately targets instructors to engage in a sexual relationship.  The proposed rule change seems to be in reaction to one of the Lackland cases where the military judge appears to have set-aside a charge because there was insufficient evidence of force, because, “rank disparity alone is not sufficient to constitute constructive force[,]  See Simpson.  (If someone who was at the Estacio trial could repeat the case cites used by the MJ?)

The judge’s ruling [in Estacio’s case] was partly based on two earlier cases decided by the U.S. Court of Appeals for the Armed Forces.

Take a look at these cases as (we think) setting out the issue Representative Speier, SWAN, and others want to address.  United States v. Leak, 61 M.J. 234 (C.A.A.F. 2005), —United States v. Clark, 35 M.J. 432 (C.A.A.F 1992), —United States v. Simpson, 58 M.J. 368 (C.A.A.F. 2003), —United States v. Cauley, 45 M.J. 353 (C.A.A.F. 1996), —United States v. Bradley, 28 M.J. 197 (C.M.A. 1989).

5.  Rachel Natelson, Legal Director for SWAN gave the best presentation on my panel.  She made very clear what Jim Clark has already made clear with regard to civilian prosecutor discretion and decision making  – don’t expect your conviction rate to get better by handing off cases to the civilian community.  As Bridget Wilson pointed out, there are lots of pressures and reasons why civilian prosecutors don’t prosecute.  Those reasons seem similar to the reasons a CA decides not to prosecute.

6.  Professor Vic Hansen raised the idea of leader accountability in the form of a change to the UCMJ as a way to address the concerns that military leaders aren’t taking sexual assault cases seriously.  Professor Hansen suggests adding specific UCMJ language incorporating the law of war concept of command responsibility.  He mentioned Yamashita.   I think leaders can already discipline junior leaders who fail to investigate sexual assault cases or who retaliate or discriminate against sexual assault victims.  But Professor Hansen’s point is that the concept exists but is amorphous and without any real standard.  By putting specific standards into the UCMJ there will be pressure on commanders to do the right thing.  The nub of Representative Speier and her staffer’s argument is that the military leadership is allowing rapists to go free, persecuting victims, and is incapable of disciplining itself and therefore forfeits the right to decide on sexual assault cases.

7.  People, including Representative Speier were critical of restricted reporting.  It seems they want to get rid of restricted reports.  Maybe I’m wrong.  But was a restricted report offered as a solution to victims who were afraid to report, but who needed medical and mental health care they were not getting.  In other words it was intended to be a good thing.  It seems the critics don’t want victims to have the option of getting help and of not cooperating in prosecuting.

8. A large part of the symposium was about medical care, medical retirement, and resources for victims with MST.  So in that context Feres, Chappell, abstention, the VA, was discussed.  Take a look at H.R. 1517, sec. 4.  Congress has consistently declined to overrule Feres until now.

And you may note another instance of Congress not understanding the UCMJ, because in an earlier section of the proposed bill they have this language:

Revision of Manual for Courts-Martial- The Joint Service Committee on Military Justice shall amend the Manual for Courts-Martial to reflect this section, with especially section 306 of such manual concerning disposition.

—- ooops, I think they missed LTC Kennebeck’s lectures

21 Responses to “Hastings symposium on military sexual assaults”

  1. rob klant says:

    On the question of restricted reporting, I’m also moving towards elimination of the restricted reporting option, no matter how well-intentioned its establishment was. 

    Examining the rationale of those jurisdictions which mandate reporting — admittedly, a minority — I’m becoming more convinced that it’s an approach which is most consistent with military culture and best serves the ends of justice.  Given the threat these crimes present not only to the victims but to society at large, I don’t think the option to investigate and, if possible, prosecute should be left to any single individual. Within the military culture, I think it may even reinforce the stigma and shame on which sexual predators depend to isolate their victims.

    At any rate, it’s a discussion worth having.  Already there are military victims who lack this option, i.e. those who happen to be assaulted within a state jurisdiction — most significantly for the Navy, California and Illinois —  which mandates reporting by healthcare providers, among others.  If DoD is serious about preserving the restricted reporting option, it should at least take action to preempt the effect of these state laws so that all military victims may avail themselves of the option’s purported benefits.

  2. Bridget Wilson says:

    http://www.livestream.com/uchastings/video?clipId=pla_b0614ad5-3080-4564-8728-792aaab937f1&utm_source=lslibrary&utm_medium=ui-thumb
     
    Live stream video link above. There were some excellent presentations, and given the potential for difficult conflict a respectful and mostly intelligent exchange. top notch event. Mr. Cave and I were the token defense counsel. I was concerned about some of the inaccuracies in reporting the numbers from the Congressmember. Yes, there are fewer convictions, but also fewer courts-martial overall. Stats are a dangerous thing. A pleasure to meet MG Altenburg. We (defense shop) need to be a part of this discussion. It is running in a wrong direction, and I fear an increasing ineffective one to deal with the problem. But, this was one of the most interesting events I have attended. It also let me speak with some of the esteemed members of the civilian defense community, Mr. Puckett along with Mr. Cave and Victor Hansen whose proposal on command responsibility is a very interesting concept. A lot to chew on. Yes, some of this will irritate  many of you. But worth the effort. Strong but civilized disagreement-imagine that.

  3. Bridget Wilson says:

    Apparently this link is only the first part of the event. I will try to put up the rest when I locate it.
     

  4. Dew_Process says:

    “The nub of Representative Speier and her staffer’s argument is that the military leadership is allowing rapists to go free, persecuting victims, and is incapable of disciplining itself and therefore forfeits the right to decide on sexual assault cases.”

    The problem with that premise – indeed with Rep. Speier’s argument – is that it is based on two, fundamentally false premises, viz., that (1) people do not make “false” allegations of rape or sexual assault; and (2)  that the military justice system is somehow blind to that (false) premise.  Anyone who practices in the trenches knows that neither is true, either in the military or civilian sectors.

    There is considerable scholarship on the subject, both academic and official.  See, e.g.:

    Willoughby,   Do False Allegations of Rape Made by Women Affect the Workings of the Criminal Justice System?  available at:   http://www.internetjournalofcriminology.com/Willoughby_Do_False_Allegations_of_Rape_Made_by_Women_Affect_the_Workings_of_the_Criminal_Justice_System_IJC_August_2011.pdf

    Epstein, True Lies:  The Constitutional and Evidentiary Bases for Admitting Prior False Accusation Evidence in Sexual Assault Prosecutions:  available at:
    http://law.bepress.com/cgi/viewcontent.cgi?article=3704&context=expresso 

    And old (and provocative) assessment:
        “A review of 556 rape accusations filed against Air Force personnel found that 27% of women later recanted. Then 25 criteria were developed based on the profile of those women, and then submitted to three independent reviewers to review the remaining cases. If all three reviewers deemed the allegation was false, it was categorized as false. As a result, 60% of all allegations were found to be false.1 Of those women who later recanted, many didn’t admit the allegation was false until just before taking a polygraph test. Others admitted it was false only after having failed a polygraph test.”
    http://www.mediaradar.org/research_on_false_rape_allegations.php#sdendnote1sym 

    Or, as Prof. Jonathan Turley observed:
    http://jonathanturley.org/2012/05/25/woman-admits-that-she-falsely-accused-convicted-high-school-student-of-rape-after-he-serves-his-time-in-jail-woman-keeps-1-5-million-award-as-rape-victim/

    Rumney, False Allegations of Rape,  available at:
    http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1366225

    Patton, Any Four Black Men Will Do:  Rape, Race and the Ultimate Scapegoat, available at:
    http://www.d.umn.edu/cla/faculty/jhamlin/3925/4925HomeComputer/Rape%20myths/859.pdf 

    Lisak et al., False Allegations of Sexual Assault:  An Analysis of Ten Years of Reported Cases, available at:
    http://www.icdv.idaho.gov/conference/handouts/False-Allegations.pdf

    Lovett & Kelly, Different Systems, Similar Outcomes?  Tracking Attrition in Reported Rape Cases Across Europe, available at:  http://kunskapsbanken.nck.uu.se/nckkb/nck/publik/fil/visa/197/different_systems_03_web(2).pdf 

    Flowe et al., Rape Shield Laws and Sexual Behavior Evidence: Effects of Consent Level and Women’s Sexual History on Rape Allegations [Draft], available at:
    http://www2.le.ac.uk/departments/psychology/ppl/hf49/RapeShieldLaws.pdf 

    Naik et al., Fabrication of Sexual Assault: A Case Report, available at:
    http://www.academicjournals.org/jcpfm/PDF/Pdf2010/Nov/Naik%20et%20al.pdf 

    Mosteller, The Duke Lacrosse Case, Innocence, and False Identifications: A Fundamental Failure to ‘Do Justice,’ available at:
    http://lsr.nellco.org/cgi/viewcontent.cgi?article=1110&context=duke_fs&sei-redir=1&referer=http%3A%2F%2Fscholar.google.com%2Fscholar%3Fstart%3D120%26q%3Dfalse%2Ballegation%2Brape%26hl%3Den%26num%3D30%26as_sdt%3D1%2C33#search=%22false%20allegation%20rape%22

    And finally, Stern, The Stern Review [at 39 et seq. “False Allegations”] available at:
    http://beneaththewig.com/wp-content/uploads/2011/08/Stern_Review_acc_FINAL4.pdf 

    My interest in all of this is of course practical – I am representing post-conviction a service-member convicted of rape, who appears to have a verifiable “alibi” for the date / location of the alleged rape which was not presented to the members versus a “reasonable doubt” defense which was raised [and of course, they are not inconsistent defenses].

    The Representative also appears not to be well-versed in “the secret grand jury process. . . .”  Anyone who has ever prosecuted or defended in a jurisdiction using “the secret grand jury process,” knows that is where you “bury” shaky cases for which there is no review, appeal or anything.

  5. Lieber says:

    From what I’ve seen the formality behind the restricted/unrestricted reporting process is confusing to victims and unnecessarily restrictive.  It’s simply too military/bureaucratic.  Doesn’t mean that we can’t keep patient and doctor/therapist confidentiality in place.  What we’d lose is keeping track of the number of restricted reports (not that our numbers are accurate anyway).  It’s the formalization of “this is how you do a restricted report blah blah blah” that doesn’t work and places way too much responsibility on the victims.

  6. stewie says:

    I like restricted reporting and think it should be expanded. If the victim doesn’t want to come forward it is likely for one of two reasons:

    1. She simply does not want to go through the trauma of a legal process which will necessitate her being challenged by defense counsel (because that’s what the justice system demands) or having to relive things or what have you.

    2. It’s a false allegation

    Either situation isn’t well served by going forward to trial. I agree we should make it less confusing/bureaucratic and we should allow a victim to stop the train at any point up to trial. That will help weed out those few who maybe are making a false allegation once they realize how far the train is going to go.

    I do think that for folks like Congressperson Speier, false reporting is something that just doesn’t happen (the old 2% stat) so anything that makes it harder to get a conviction has to go (Article 32 hearings, discovery, etc).

  7. Phil Cave says:

    I’m in favor of retaining restricted reporting, and agree that it’s not well understood, and at times violated in principle.

    Stewie is correct I think in the two reasons, although there may be others.  Perhaps a study to determine why a person wants to follow that route, before we throw out the BWTBW.

    So — assume a victim is traumatized, the victim is aware of the potential struggle to get justice against the perpetrator, but she recognizes she needs help; and she doesn’t want to be revictimized.  A RR allows her to get help, and takes advantage of the resources and hopefully is able to regain a better life.  But those waging a war against sexual assault don’t see that as helpful to their cause.  My question to them is – please explain why it’s a good thing in your war to retraumatize a victim because it’s good for the war on sexual assault.  “Don’t worry, sure we are going to retraumatize you but we are going to get justice for your initial traumatization, and oh by the way it will help others, so please don’t be so selfish.”

    Yes, a RR may be a way that a false complainer gets some benefit by abusing the system.  But isn’t that preferable than a victim be revictimized.

  8. DH Mazur says:

    Thanks for this summary.
    Leader accountability is the most important point.  If junior commanders are making poor or biased decisions about misconduct within their units, the solution is not to give them a pass and send the decision up the chain of command.  If we can’t trust junior commanders to make good decisions about controlling assault, false reporting, and the disciplinary climates that lead to both, we shouldn’t be trusting them with the lives of young people.  The solution is to hold leadership accountable, not to pass the responsibility to someone else.
    The arbitrariness of prosecution may be a bigger problem than the number or percentage of prosecutions.  I suspect that “doing something” about sexual assault leads to an increase in arbitrariness more often than it leads to an increase in good command judgment.  It doesn’t help to increase the rate of prosecution if the prosecutions are being chosen poorly, and this is the point that we’re missing, both on the civilian and the military sides.
    And on restricted reporting:  may it soon go away.  This option has always been a gift to military leaders who would prefer to do nothing, because it absolves them of responsibility for discipline.  It sounds harsh, but the military cannot give victims control over whether a threat to unit discipline and safety is addressed.  We don’t give service members that option in any other circumstance.  Of course, not all threats will be reported, but we shouldn’t encourage lack of reporting by making it policy.  Rob Klant makes an excellent point about restricted reporting and the ability of offenders to isolate their victims.
    Law professor, University of Florida, former USAF officer, and author of A More Perfect Military: How the Constitution Can Make Our Military Stronger
     

  9. k fischer says:

    I was going to write a snarky comment asking where Congresswoman Speier was when our previous Democrat Commander in Chief was accused of sexual assault and how he engaged in sexual acts with a young intern, who could not consented based on the power differential.  So, I Googled her and found that as a Congressional Aide for Congressman Leo Ryan on a trip to Africa, she was shot five times during an ambush in which Congressman Ryan was killed.  She waited 22 hours for her wounds to be treated.  So, I might say that I have a different view and a deeper respect for this woman who is clearly a fighter.

    So, about her “occupational hazard” she attributed to the Court, I understand that the Court did not use that term.  However, it did rule in favor of the Defendant (Pentagon) who argued that sexual assault was “incident to service.”  So, perhaps Congresswoman Speier should not attribute the quote to the Court, but rather in IMHO, to the Pentagon, which would be much more damaging showing why the Pentagon can not be trusted to prosecute sexual assault.  I’m not as disappointed in the appearance of a bait and switch because I can accept that “incident to service” means “occupational hazard” and when the Pentagon argues that sexual assault is incident to service and the court rules in their favor, then the court has implicitly adopted the Pentagon’s argument.  She is looking at the issues with sexual assault prosecutions through the lens of victims who did not receive justice and the current statistics that have been adopted by the SecDef.

    I enjoyed watching Phil’s presentation, but I can’t help but think that he was making a case for the civilian’s to handle sexual assault prosecutions.  Because on the one hand you have the Kool-Aid drinkers on the victim side saying that Commanders do a poor job of prosecuting sexual assault offenses, and on the other hand you have the Defense bar saying that their client can’t get a fair trial because of UCI from Commanders, SAPR indoctrination training, and the inherent unfairness of the SVP program.  So, if each side has a problem with the Command prosecuting sexual assault, then why not give the job to the US Attorney’s office to alleviate the very valid concerns raised on both sides.  Of course, I have a sneaking suspicion that those on the victim’s rights side would then set their sights on the US Attorney’s office for their lack of prosecution, as well.  Those on the accused side will then argue of the lack of resources available for the accused, who will then have to pay out of pocket for witness travel, experts, etc. that they once enjoyed under the court martial system.

    I liked Phil’s points supporting that there is a myth that the military is soft on sexual assault prosecutions.  He astutely brought up the unfairness of the SVP program, the inequality about drinking in SA prosecutions, the contradiction between Rule 412 vs. Rule 413.  So, once the case gets to a court martial, then the system is stacked against the accused. 

    Bridget raises a good point about enforcing the rules in place.  Although I have a fundamental disagreement with the rules and policies, we at least need to enforce the rules that are out there before we say that the system is flawed against accusers.  The amendments to Article 120 and the SVP program are recent changes that have not been around long enough to determine whether or not they are working. From the accounts of those in the defense field, it would seem that the only difference is that all cases go to a court martial, even the highly questionable ones.  So, the only effect is that there is an increase of crappy cases going to trial, as Bridget stated.  

    I think that we will see a lot more cases like US v. Lucas being reversed for lack of sufficient evidence.  At some point, we will probably see the appearance of a rape epidemic replaced by the perception of a false allegation epidemic if the prosecutions continue the way they have been.  This is underscored by what MG (Ret) Altenburg said that even female judges are commenting to him that they are seeing an upswing in sexual assault cases that should have never seen the inside of a courtroom.

    I was impressed by the civility displayed to each defense counsel’s presentations.  I don’t know if Phil was getting laser beam stares from members of the seminar who were pro-accuser, but I was happy to see during part 1 that there was no screaming, yelling, or gnashing of teeth.

  10. Lieber says:

    I’m puzzled as to why RR would incentivize false allegations…if anything I would expect RRs to almost always be true.  False allegations happen because the “victim” either a. wants something (revenge, victory in a custody proceeding etc.) or b. wants to escape responsibility for something (usually being caught in infidelity…or in the military, violating GO1).  (The third category of not remembering what happened isn’t really a false allegation per se…cause there’s no falsehood involved…rather, it’s that a legal offense may not have been committed despite the veracity of the complaint.)

    RRs don’t serve either of those purposes.  RRs happen because the victim needs help and doesn’t want to go through the criminal process and make it public (in many cases they’re probably aware that they have the type of case that won’t result in a conviction beyond a reasonable doubt).

  11. stewie says:

    Phil, I think the answer to your question lies in the argument I heard recently that asserted that a small amount of sexual offenders commit the bulk of the sexual assaults, with each one responsible for a large number over his lifetime. So, if true, and looking at that point of view, they might see it as sure there is this one victim, but if he gets away with it, that’s ten or twenty more he victimizes later.

    Not defending that point of view per se, but it has a utilitarian merit to it.

  12. Phil Cave says:

    Stewie, that is the argument they are making.  It is conditioned on their theory of serial sex assaulters.

  13. Bridget Wilson says:

    Unsurprising that Prof. Mazur and I agree. I hate the restricted reporting option. It is such a bad idea. It gives a free pass to that assailant. If that assailant is one who is likely to re-offend he (most are he) will move on to the next victim. In many jurisdictions we do not permit victims of domestic violence to halt the prosecution of the crime understanding that a physical assault is a crime against the interests of the state. Assuming there is the sincere desire to address sexual assault in military, which in my experience is the case, how can we allow a rape victim to obstruct the prosecution of viable cases? Perhaps I have met many good commanders.  I have not recently encountered any who would approve of a criminal assault on one to their troops. 
    I am concerned that the current process does does little to address sexual assault and is counter-productive. If (accurately or not) those serving do not trust the process, it is doomed. The integrity of investigations and the willingness of the CA to objectively evaluate those cases to be referred are key to creating confidence in how these cases are handled. Right now it is my sense that many who serve have no confidence these cases will be adjudicated fairly. 
    Yes, I still think you have all the rules you need to prosecute sex crimes in the military, in the UCMJ.
     

  14. Bridget Wilson says:

    I believe this link will get you to all the panel presentations. I found  retired LTC Victor Hansen’s discussion very interesting.
    http://www.livestream.com/uchastings/video?clipId=pla_2286cfed-55c8-45bf-b5ce-c1d97f9c85a5&utm_source=lslibrary&utm_medium=ui-thumb
     

  15. stewie says:

    Well Bridget, the greater question is how do you get a conviction from a C-M panel if the alleged victim doesn’t want to testify/cooperate? It’s already hard enough to get a conviction from panel members these days. I mean I’m sure there’s precedent for it happening, and even a path to do it, but I’d guess the success rate wouldn’t be high.

  16. Bridget Wilson says:

    Stewie, I agree that sexual assault cases are difficult to prosecute. They are also difficult to defend.  Yes, results matter, but jamming bad cases through the courts is doomed to produce acquittals and/or injustice. The fact that it is difficult does not mean we capitulate to the grim perspective that shame controls how we deal with rape.  We have spent centuries convincing rape victims that what has happened to them is shameful. In some countries a woman who has been raped, faces “honor” killing, see, reports from the BBC of women in Libya killed by their family members after being raped by government soldiers during the 2011 revolt because of the “shame”.  http://www.bbc.co.uk/news/world-africa-13760895  .  The UN reports that no less than 1,000 women a year are murdered in Pakistan after being raped because of the “shame” it carries.
    Hiding the crime of rape renders it a weapon against the victim of the specific rape but also silences those who may speak in the future. I do oppose restricted reporting not out of any lack of sympathy for rape victims but because future victims should not be “shamed”.  The silence and whispers are not more respectful or just. IMHO.  I am not at all opposed to prosecuting sex crimes. We have to stop enforcing the culture of shame and not let ourselves become the inadvertent agents of reinforcing the shaming of rape victims.
    The rights of the accused are not an insignificant issue and not respecting those rights has been counterproductive.  Have we created an atmosphere in our military where the victims of sexual assault are even less likely to be believed? I think we have.  Charge sheets that include 120 charges for swatting someone on the buttocks, or as with  a friend of mine who had a case in which the client is now a registered sex offender for placing his hand on another man’s thigh. If the young woman has a glass of wine during the romantic evening- she lacks capacity? That might not fly in trial, but it is all too often what the troops are hearing in their training. Is it a sex crime to “make a pass” at someone? Apparently so, given some of the charge sheets coming through our offices.
    It means that all cases are going to be viewed skeptically. Have we now done any favors for the victims of rape? Is a conviction difficult? Yes, it is. But, why buttress a philosophy of silencing that has served to the benefit of rapists –probably for centuries.  False comfort.

  17. Bridget Wilson says:

    Of course, you don’t need the formatting language with the post-oops.

  18. stewie says:

    I think that all sounds great, I really do, but the reality is that any time you are a victim, there is going to be a level of shame, and since sexual assaults involve the highest degree of violation, it will have the highest shame. Yes, some of that is cultural, but some of it is basic human nature.

    So, effectively you are telling someone who doesn’t want to go through the process (and there can be varied reasons for that) either that they must go through it OR you go through the process without them, and how does that work?

    I think restricted reporting provides options for a victim, and to me, that’s the right way to go.

  19. k fischer says:

    Bridget, 

    While statements by Mr. Connolly, such as “Congresswoman Speier nor I think the military is full of rapists and those who are complicit with rape, we think that some people are trying to do the right thing” (not most or the majority…..some;  “the judicial proceedings are an impediment”; “[because of the Article 32 requirement] the defense gets a second bite at the apple,” trouble me, I was particularly interested where he discusses the “numbers” plummeting for prosecutions, courts martial, and convictions?  Do you have those statistics?  Do you know what he is referring to?  Has the  prosecution rate gone down or has the conviction rate gone down or is he referring to the number of prosecutions?

     

  20. Bridget Wilson says:

    k fischer-I am relying on the stats reported in the McClatchy articles and the SAPRO reports. One of my concerns is distorted reporting as the number of courts-martial overall has plummeted in the past couple of years. I think our fine colleagues here at CAAFlog have reported on that. I cannot determine what effect that has on the conviction rate for sexual assaults. I would make the reasonable assumption that it would be reflected in fewer sexual assault convictions.
    Perhaps some review of the the acquittals would be interesting in terms of what kind of cases were the least likely to result in convictions for sexual assault. I can make some guesses on that, but not confirm. The McClatchy articles reported a “low” conviction rate in 2009-2010 in 551 Courts-martial 147 convictions for rape or other serious sexual offenses, 114 convicted of another charge, presumably orders or adultery, frat, etc. 198 acquitted or dismissed, and another 52 SILT with 40 “other” dispositions. I have no way of knowing how that compares to the civilian sector. I do feel that there are cases going to trial that should not be in a court, and that 120 charges are being used to pressure accused in numerous circumstances into deals for fear of a sex crime conviction. 
    Mr. Connolly’s discussion of Art. 32 did not convince me that he had a clear view of military justice. I guess one could say that judicial proceedings are an impediment if we have no concern for the rights of the accused. BTW, many cases in the civilian world never make it to a grand jury let alone a trial.
    In re stewie’s concerns about victims, I share some of the concerns. i am more than happy to see support services for MST victims. I would be  happy to see effective training on the topic. I would be happy to see rapes prosecuted. But, hiding the crime behind the victim’s shame is such a bad idea. This is a crime and should be treated as such. I spoke recently with a social worker whose career started in rape crisis intervention who shares my perspective. A court of law is not a therapy session. You will not feel vindicated. Take the complaint that the accused who got 20 years in the Lackland matter did not get enough time from some advocates. Sigh, if you have been raped, there will never be sufficient punishment.
    Chances are that a prosecutor confronted with an uncooperative victim/witness will not press a prosecution. So, to that extent the case goes away. But we still need to address rape as a crime, first and foremost. IMHO. Restricted reporting sends the message that I hate to see put forth, it reinforces the false concept that somehow this is just about the victim, who is already second guessing how this may have been her/his fault-if only I had not gone here, if only I had not been drinking, if only I had not let him get me alone, etc. Reasonable people can disagree. But, I dislike the restricted reporting option for all of those reasons.
     

  21. stewie says:

    but it is all about the victim. I know we don’t want it to be, but to intentionally mangle the usual phrase, that train has sailed.

    It will never not be about the victim IMO because of the BRD standard. Now, if someone were to propose we should lower the standard in sexual assault cases, which I don’t think anyone here would agree with obviously, then I think you’d be more effective in making it less all about the victim. Or if you got rid of the right against self incrimination you could make it more of a comparison between the accused and the alleged victim.

    But given cases where the accused doesn’t testify, and the only witness is the alleged victim, then at the end of the day, it can’t help but be all about the victim.

    I think restricted reporting reflects how things are versus how we’d like them to be. I don’t think it reinforces any messaging, heck, one can make the credible argument that the presence of restricted reporting means that someone who makes an unrestricted report is doing so knowing (to some extent) what they will go through.