On Friday, January 11, 2013, the United States Commission on Civil Rights held a hearing on Sexual Assault in the Military. C-SPAN coverage, including video of all three panels, is available at this link. The press release for the hearing (available at this link) details the three panels that addressed the Commission:

Panel 1: Rachel Natelson, Legal Director, Service Women’s Action Network (SWAN); Phillip D. Cave, Commander, U.S. Navy (Ret.), Law Office of Phillip D. Cave; Nancy Parish, President, Protect Our Defenders; Bridget Wilson, Major, California Guard, U.S. Army Reserve, Enlisted (Ret.), Rosenstein, Wilson & Dean, P.L.C.

Panel 2: Professor Dwight H. Sullivan, George Washington University Law School; Professor Elizabeth Hillman, University of California, Hastings, School of Law; Professor Victor Hansen, New England School of Law; Professor David Lisak, Ph.D., University of Massachusetts, Boston, Department of Psychology

Panel 3: Major General Gary Patton, Director, Department of Defense’s Sexual Assault Prevention and Response Office; Nate Galbreath, MSF, Ph.D., Highly Qualified Expert, Department of Defense’s Sexual Assault Prevention and Response Office; Lieutenant General Richard C. Harding, Judge Advocate General, U.S. Department of the Air Force; Vice Admiral Nanette M. DeRenzi, Judge Advocate General, U.S. Department of the Navy; Lieutenant General Dana K. Chipman, Judge Advocate General, U.S. Department of the Army; Major General Vaughn Ary, Staff Judge Advocate to the Commandant of the Marine Corps

The press release also notes the following item of interest to CAAFlog readers:

Active duty and former service members, particularly those who have been victims of sexual assault or have been accused of sexual assault, are encouraged to submit written comments. These public comments may be submitted until COB Monday, February 11, 2013 and may be sent by any of three ways: 1) by mail to 1331 Pennsylvania Ave, NW, Suite 1150, Washington, D.C., 20425, 2) emailed to publiccomments@usccr.gov, or 3) faxed to (202) 376-1163.

21 Responses to “Watch video of the U.S. Commission on Civil Rights hearing on Sexual Assault in the Military”

  1. Dwight Sullivan says:

    Two of the moments that struck me the most at the hearing were these:

    (1)  Commission Michael Yaki, at 1:16:21 of the first panel, stated:  “What we have I think can only be described as living in the hell if you were an African American in 1947 living in the deep segregated South.  That’s the comparable position that many if not all women face in the military today.”  Those of us who have been in the military know that Commissioner Yaki’s view has no relation to the reality of military service.  It’s the sort of thing one might say if one’s only exposure to the military was watching The Invisible War.  It’s worrisome that someone with such an uninformed view will play a role in formulating the U.S. Commission on Civil Rights’ official report on sexual assault in the military.

    (2)  Nancy Parrish, the President of Protect Our Defenders, included a great deal of erroneous information in her testimony.  But her comment at 1:21:46 of the first panel was particularly striking to me, since I’ve done a great deal of empirical research on the Air Force Court of Criminal Appeals’ rate of providing any relief to the defense, which is less than 4%, including reductions in the length of confinement that has already been served and minimal reductions of forfeitures.  Here’s what Nancy Parrish said:  “The Air Force Appeals Court is extremely — they’re extremely defense protective, and they should be defense protective, but it’s the extremism of the position.”  I was so surprised by that statement that I approached her after the hearing and asked for her basis for saying it.  Her response:  United States v. Gaddis.  Two problems.  One, Gaddis wasn’t an Air Force case; it was an Army case that was ultimately decided by CAAF.  Two, CAAF ruled for the government in Gaddis.  CAAF affirmed ACCA’s opinion, which upheld four of SGT Gaddis’s five convictions (dismissing one on statute of limitation grounds) and affirmed his complete sentence, including confinement for 8 years and a DD.  I would have thought that one aspect of being “extremely defense protective” would be ruling for the defense.  Ms. Parrish has argued that Gaddis gutted M.R.E. 412.  Of course, Gaddis actually left M.R.E. 412 slightly more protective of alleged victims’ privacy than F.R.E. 412 is in criminal cases.  (The proposed amendments to M.R.E. 412 would slightly narrow its scope to make it completely consistent with F.R.E. 412 in criminal cases, as it was before CAAF’s 2004 Banker decision and the resulting 2007 amendment to M.R.E. 412.) 

    While ruminating over Ms. Parrish’s citation to Gaddis to support her assertion that the Air Force Court is extremely defense protective, I seriously wondered whether she thinks that C.A.A.F. stands for “Court of Appeals for the Air Force.”  In any event, someone who thinks the Air Force Court is extremist in its protection of the defense and cites an Army case to support that proposition shouldn’t be taken seriously when discussing this issue.

  2. WWJD says:

    The CCA’s “Defense Friendly”.  Unbelievable.  That comment alone legitimizes the proceedings and how she would be able to make such an accusation based on one case (even if citing that case made any sense) speaks volumes on how these proceedings are a wast of time except for those politicians who wish to grandstand and demonize the military.  Pathetic.

  3. Paul McConnell says:

    I’m well aware that the services have been investing a great deal of time, energy, and capital in order to try and address the political pressure surrounding sex assault cases in the military.  I recognize that it is a valid opinion and position to wait and see if these measures “work.”
    My view is that given the prevailing political winds, the better course of action is to seek congressional approval to remove all sexual assault cases from the purview of the military and shift them to the exclusive jurisdiction of the Dept of Justice and the appropriate U.S. Attorney’s offices.  This will serve our commanders by allowing them to refer sex assault matters to the DoJ and focus on their mission of winning battles and wars.  Since U.S. Attorney’s are political appointees that are nominated by the President and ratified by the Senate, the politics is played out in a far different paradigm.  Moreover, the perceived (I reject that it is real) failures of the military justice system will be relieved of unfounded attacks and focus.  It can then focus on ensuring good order and discipline and continuing to provide due process to accused without undue political influence.  Our warfighting Commanders are far too sidetracked by these issues.  I do not want O’Callahan to be revisited (never Constitutionally firm in my estimation), but the some of the underlying reasoning is worthy of ratifying as a matter of discretion and choice and via a statutory change.
    IT IS NOT MY POSITION THAT THESE ISSUES ARE UNSERIOUS.  To the contrary, they are very serious.  Nevertheless, our military commanders are selected to lead us and prepare us for war.  Let these “legal,” “fairness,” and “due process” debates be entertained elsewhere.
    In sum, we cannot and will never win this political battle.  No matter how much we just invested, the better course of action is shift these issues to DoJ.  IN time, I believe others will come to see this course of action as superior.  IN all events, I salute those that are in the middle of this maelstrom.  

  4. stewie says:

    The reality is if we pursued such a system, the number of convictions/rate of convictions/cases taken to trial wouldn’t significantly increase IMO.
    That’s not totally true, I’d guess the number of cases/convictions would go down, but the rate would go up because I suspect if the civilians in the DOJ were doing it, they’d not take the really bad cases we take to trial.
    There are legitimate criticisms to be made, and we have by no means perfected things, but we are ahead of the states and how they do things IMO, and short of just giving up as you suggest, I struggle to think of what more we can do to solve the problem on the military justice side of the equation.
    Now, on the educating the force side, I think there is a lot we can do, and I think time will help. De-glamourizing alcohol in the military would also go a long way, as would re-inforcing the concept of the military as a profession (of arms) and not just a job for our younger Soldiers (the bulk of our sexual assaulters and victims).

  5. WWJD says:

    I meant *illegitimate not legitimizes in the above comment
     
    IMHO, the military is very proactive in sexual assault claims.  In fact, too aggressive.
    The problem is when these things do happen in an academic setting (Boot Camp/Academy) they get magnified.
     
    What happened at Lackland was a result of females being intimidated by the military culture not to speak.  But it is not a reflection of how the military deals with sex assault cases as evident on the real bad cases that get taken up.

  6. John S says:

    PM I have seen the MJ system take many more cases to trial than our civilian counterparts.  In fact any time and anywhere a Servicemember was accused of sexual assault the case was reviewed.  Many cases that were turned down by our civilian counterparts were picked up by the military.  Given the transition away from deployments, commanders need discretion to keep good order and discipline.  Taking away jurisdiction from commanders is certainly not the answer.

  7. Lieber says:

    I’ve become more and more convinced that the bizarre military obsession with adultery (and some forms of frat/inappropriate relationship) is a significant issue in our dealing with sex assault cases.  It both provides perverse incentives for false allegations and provides a handy argument for the defense to argue for false allegations where the complaint is true.

  8. Paul McConnell says:

    JS I agree that the MJ system takes many more cases to trial.  THAT IS THE PROBLEM.  There are some cases that should never be taken to trial and these losses feed the unjustifiable criticism that the “system doesn’t work because there are too many acquittals.”  The politiical winds and pressure on commanders in the sexual assault arena are such that “nearly every” allegation must go to trial.  This is bad for the system, bad for accused, bad for real victims (there are a lot, but not all), and bad for the commanders.  
    Also, I do not suggest that commanders do not have an important role.  To the contrary, our leaders are indispensible in creating a climate of respect, teamwork, dignity, honesty, and selflessness.  Aspiring to greatness and being able to truthfully show that the climate in the (Army)(Navy)(USMC)(AF) is superior to college campuses where allegations are buried, unreported, and tolerated by civilian academic leaders.   

  9. Jay Jones says:

    Why not a hybrid system? Something that says that any sex assault not prosecuted by MJ authorities shall be referred to the local AUSA office for a second look, assuming fed jur, such as on a base.  If the claim is that all sex assaults are prosecuted, (not true at all in my experience, particularly since defense shops only see cases that are prosecuted, and not the ones that are turned down) then this process would be rarely used.  When cases are turned down and sent to the US Atty office, how many would be picked up? Maybe a few cats and dogs, but I bet very very few. Then commanders could point out that even the US Atty office, full of political appointees and professional prosecutors with vastly more resources refused to prosecute. Just a thought. 

  10. stewie says:

    That’s certainly a hybrid, and it would both retain control/discipline with commanders, while also providing a “sanity check” so that folks who don’t trust the military system or commanders can know that someone they trust more is double-checking everything.

  11. JJhd says:

    With all the pointing at “bad cases” there seems to be complete disregard for the thousands of cases each year that legal professionals never see. For the sake of clarity, can you explain what a good case is?

  12. 4402_TC says:

    Good sexual assault case:
    -There is evidence which corroborates the victim’s testimony
    -The victim didn’t engage in counterintuitive behavior, a common example being socializing with the accused after the assault
    -The accused cooperates with investigators and prosecutors (a surprising number of victims will outright refuse to talk to us)
    -The accused doesn’t have significant motives to give a false report

  13. Lieber says:

    A “good” case is one where the victim doesn’t have consensual sex with the accused after the incident occurred; or send him romantic texts or go on further dates with him.  That usually helps.
    With that said, most commenters on caaflog tend to take a rather strong defense perspective…so keep that in mind.

  14. soonergrunt says:

    @ 4402_TC  15 Jan 13 1129–
    I’m assuming that you mean “accuser” instead of “accused” in your third and fourth bullet points?

  15. k fischer says:

    “With all the pointing at “bad cases” there seems to be complete disregard for the thousands of cases each year that legal professionals never see.”
    Perhaps the reason legal professionals never see these thousands of cases is because they are bad cases.  Keep in mind, I’ve had CID call me as a Trial Counsel to opine that a case was unfounded. So, the 1,076 cases our of 2,353 in 2011 where the military had jurisidiction that were unfounded prior to an Article 32 hearing probably had a legal professional take a look at them.
    But, to answer your question, a good case is where the accuser’s testimony:
    1.  Is consistent with the accuser’s prior statements;
    2.  Supported by evidence independent of accuser;
    3.  Makes sense.
    The failure to have all three components is not fatal to the Government, however, the failure to have at least two prongs makes the case difficult to get a conviction.

  16. Zachary Spilman says:

    There’s no such thing as a “good sexual assault case” (and I’m certain nobody means to say that there is). But before we get sucked into a serious conversation about “winnable” or “triable” cases, or “prosecutorial merit,” I think we should think about “environment” and “culture.”

    As a young Marine Corps judge advocate, in my first trial billet (dual-hatted as a trial counsel and a SAUSA), there was no greater moment than when my boss (and then his boss) sat me down and explained that my job wasn’t to win convictions, it was to do justice. And that sometimes justice takes the form of an acquittal. And that if I believe (in advance of trial) that an acquittal is the appropriate result in a particular case, then justice is probably dismissal.

    Freed of the burden of “wins” and “losses,” I set out simply to do justice. When I looked back, I had a pretty good record.

    That’s an environment that existed because of a culture. But now that culture is under political attack.

  17. justiceday says:

    As a victim of a marine sexual assault and having solid evidence of how they ignore the reports from the beginning this problem needs resolved.  I have overwhelming evidence that the Sgt Maj., ignored my report, made false official statements when I got NCIS involved, and that even the Judge Advocate and NCIS mishandled my case completely.
    My evidence and case show what a disgrace the military system is and how dishonorable the marines are.  I have had other authorities, who have no jurisdiction but do have knowledge, look at my evidence and they can’t even get the military to talk to them or look at the evidence.
    We have become the country that we would usually point the finger at. 
    These men who have ignored these rapes for years need to be convicted.  The problem is you don’t have the smartest people presenting information. 
    http://theusmarinesrape.com/

  18. k fischer says:

    ZS, 
     
    I had a similar conversation with my SJA before I went to trial on a case where he recommended dismissal, but the Brigade commander and I agreed that the Servicemember should have been tried.  The CG disregarded his SJA’s advice and referred the case.  I was a young idealistic Captain who had a ‘confession’ from the accused he hand wrote when he went down to CID to take a polygraph; I really believed that the accuser was a victim of rape.  A couple of months after the acquittal, I was at the Officers Club where I was privileged to a conversation between the Brigade Commander and the president of the panel that acquitted the accused.  The president said, “We sat in that room deliberating for over two hours because of you!  I kept telling them that COL ****** sent this case up, so there had to be something there.  He wouldn’t waste the CG’s time with a BS case.”  The COL replied, “Well, at least I don’t have to worry about CNN knocking on my door asking me why I didn’t prosecute a rapist in my Brigade.”  Hopefully, you can tell by my reference to the Officer’s Club that this attitude existed way before we had SVP’s and SAPRO’s.  I can only imagine that the fear of media and political backlash for the failure to prosecute an unwinnable sex case is in the back of every commander’s mind.
     
    While I respect the Brigade Commander for his prophetic foresight in CYA UCMJ regarding military sexual assault (I was fortunate to be assigned to his Brigade because he truly knew more about UCMJ than I did), I have grown to understand and respect even more the SJA for having the courage to recommend the dismissal.  I wonder how many SJA’s still think that way and how many have conformed to the Brigade Commander’s position based on the current political environment regarding sexual assault.
     
    I think that the current politicization of military sexual assault lies in the two schools of thought for justice.  There are some who believe that if the prosecutor thinks he or she cannot prove their case beyond a reasonable doubt and the case will result in an acquittal, then justice demands that the case be dismissed.  There are others who believe that prosecutors do not get to make that call, and that their concern is bringing to court all those cases in which there is probable cause and let the jury sort it out.  I would imagine that Ms. Parrish would not appreciate the position of my former SJA who falls in the former category, but instead prefers the latter position, so that all cases see the courtroom.  
     
    Then again, she comments disparagingly on the conviction rate in the video, so I think that military trials aren’t good enough for her, either.  Maybe she and those advocates like her will be successful one day in carving out a niche to the  5th Amendment, so that prosecutors can comment on the accused’s request to remain silent or have a lawyer present for questioning by CID.  Or, why not detail military counsel for all cases, but sexual offenses?  Perhaps, Congress can codify an exception to Brady in sexual assault offenses.  
     
    By the way, does anyone know what Ms. Parrish was referring to when she stated that a rule proposed by the President would have eviscerated Rape Shield protections in the military?

  19. Dwight Sullivan says:

    k fisher, on the 412 issue, a post-Gaddis proposal to amend 412 to remove the Banker “fix” would return Mil. R. Evid. 412 to parity with Fed. R. Evid. 412 in criminal cases.  It would, in essence, restore the pre-2007 version of Mil. R. Evid. 412.  That is what Ms. Parrish characterizes as eviscerating Mil. R. Evid. 412.

  20. Charlie Gittins says:

    Justiceday is full of crap.  And that is all i have to say about that.
     

  21. Charlie Gittins says:

    Kfisch has it mostly right.  There was a day of the dinosaur . . .  I know, I am the dinosaur, when SJAs believed that their job was to provide competent legal advice to their commander.  They read the 32; they called the NCIS case agent and asked pertinent questions and provided the CO/CG with real advice without concern for the political fall-out, even in (or especially in) alleged sex assault cases.  I have known those guys, served under them and respected them and in my one assignment where I was the SJA for a CG in a sex assault case deployed, I did the same thing. That young Corporal and his family were spared the cost and risk of a trial because a shrew female got pissed off that that CPL had sex the same night with her best friend.  Of course these were different times and in the current climate, some shit head might have tried to get me to make a different recommendation.