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 Representative Speier believes that Article 32, UCMJ, should be repealed and replaced with the secret grand jury process for sexual assault cases, and intends making that happen.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?)
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