Here’s a fascinating article from Joint Forces Quarterly by Marine judge advocate Linsday Rodman that, among other worthy points, analyzes the 19,000 statistic that is frequently — though, as the article demonstrates, misleadingly — cited as the annual number of sexual assaults in the military.

The article also discussed the overprosecution problem — the phenomanon of convening authorities referring weak sexual assault cases to trial, sometimes despite contrary advise from their legal advisors.  Such overprosecution, the article notes, has the perverse effect of increasing the military’s sexual assault acquittal rate:

When a prosecutor does not have good facts, conviction cannot be the expectation. Nor should we want there to be a conviction in many of those cases. That would require a standard below the “beyond a reasonable doubt” standard, creating an exception in criminal law for sexual assault cases in direct contravention of the Constitution.

19 Responses to “Unpacking the 19,000 statistic”

  1. Mike says:

    Seems like an issue that will persist so long as  prosecutorial discretion vests in commanders.

  2. Zachary Spilman says:

    If only there were some way to require prosecutors to pursue only meritorious cases and controversies; like some sort of ethical code, perhaps.

    And if only there were some way to disqualify a commander who is not disinterested; like some sort of prohibition on allowing an “accuser” to convene a court-martial, perhaps.

    And if only there was some sort of professional oversight; a counsel charged with enforcing the rules, perhaps.

    On second thought, that’s all too rigid and hierarchical, and we know how the military abhors a hierarchy.

  3. Ed says:

    I suggest any judge advocate is bound by the rules of professional responsibiity of the state(s) they are admitted in as well as the federal courts they are admitted in.

  4. Cap'n Crunch says:

    I agree with Ed.  We know the professional disciplinary system in the military is broke, or, at least broke for prosecutors.  So, refer them to the state bars in which they are licensed.  In fact, once the Salyer case is decided, I thought I might go ahead and file complaints on the attorneys involved in the disqualification of the military judge in that case to their respective state bars for discipline.

  5. Ama Goste says:

    Something tells me ZS wrote in jest because he realized rules are already in place to address all the scenarios he listed.

  6. TC says:

    Cap’n,
    What rule violation or misconduct would you report?  I assume the act you’d report would be the accessing of the MJ’s personnel records.  But how is that a violation of state bar rules?  Looking at the model rules, I suppose you could couch it as conduct that is prejudicial to the administration of justice, but if the TC truly believed the MJ’s marriage was grounds for a challenge for cause, was accessing the records prejudicial to the administration of justice?  Or was it otherwise some sort of crime reflecting adversely on the TC’s honesty?  I’m not condoning the TC’s actions, but a complaint to the state bar strikes me as an overreaction, and I feel as though the complaint would be unfounded based on the model rules.

  7. Cap'n Crunch says:

    How about the following:
     
    Advocate
    Rule 3.5 Impartiality And Decorum Of The Tribunal
    A lawyer shall not:
    (a) seek to influence a judge, juror, prospective juror or other official by means prohibited by law;
    (b) communicate ex parte with such a person during the proceeding unless authorized to do so by law or court order;
    (d) engage in conduct intended to disrupt a tribunal.
    Transactions With Persons Other Than Clients
    Rule 4.4 Respect For Rights Of Third Persons
    (a)  In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.
     
     

  8. TC says:

    If the TC’s actions were motivated by an intent to disqualify the MJ for proper reasons, I don’t think a complaint based on a violation of those rules would hold up.  The TC wasn’t trying to improperly influence the MJ, he was looking into an arguably valid ground for a challenge for cause.  He therefore wasn’t trying to disrupt the tribunal. and his purpose was not to embarrass, delay, etc.  Should the supervisory judge have been contacted?  No, I agree that shouldn’t have happened.  But was it an ex part communication?  I don’t think so.
    Again, I’m not in favor of the way the TC handled this. I just don’t think it rises to the level of a bar complaint.

  9. Cap'n Crunch says:

    And I completely disagree with you.  If this was an issue, of disqualification, it should have been raised PRIOR to the adverse rulings.  Government got adverse rulings, government takes affirmative steps to disqualify the sitting judge, including violating the Privacy Act by accessing his personnel file, complaining to his reporting/judicial superior about the rulings in an effort to improperly influence the sitting judge, violating the UCMJ by engaging in unlawful command influence.  Sorry TC, but those involved in this need a license suspension, at a minimum.

  10. TC says:

    But if it was the adverse rulings that demonstrated the need for disqualification, then I don’t think the TC was wrong in challenging the MJ at that point.  He was wrong in the way he went about it, but that’s a crucial distinction.
    A license suspension at a minimum?  That strikes me as way too hard a line to take.  But I think we’ve made our disagreements clear, and we actually agree that the TC’s behavior was innapropriate, so I don’t see any reason to keep reiterating our thoughts back and forth.

  11. Justin Henderson says:

    When does a military sexual assault case obtain “merit?”  Presumably, if it clears the 32, it is at least meretorious, right?  I’ve been out of the courtroom for a while, but remind me: are there more than a few cases in which an IO recommends dismissal, but the CA refers charges anyway?
    Perhaps underappreciated in our system is how many ways, after the 32, at trial, there are to lose sexual assault prosecutions.  Trust me.  I’ve found many of them.  Jury nullifications; stale accusations; misunderstandings about “reasonable” doubt; victim-witnesses changing testimony on the stand; judges suppressing confessions; and victim-witnesses who are deemed too overweight to be credible sexual assault victims.
    When I prosecuted each of these cases, I was firmly convinced that the accused had raped/assaulted the victims, though I retained and expressed doubts about the win-ability of the cases.  Did they lose “merit” only when the judge/panel came back with NG?

  12. Lieber says:

    I don’t see why clearing the 32 is necessary.  I’ve had 32 IOs do weird things…they’re a reality check but nothing more.  I’ve had a 32 IO recommend dismissal based upon his own independent internet research and still worked out a guilty plea cause the defense knew better. 
    as for what makes a sex assault case meritorious…I’m not sure.  it’s not unethical to bring a case because you have probable cause that it happened.  whether or not you think you have a shot of winning at trial is a separate matter…but I’ve never heard of a TC taking a case at trial where there wasn’t PC.  (but in your typical sex assault case you’d basically have to have a full, voluntary retraction not to have PC.)

  13. Justin Henderson says:

    Not necessary.  Sufficient.

  14. Dew_Process says:

    @ Ed – you are correct.  The various TJAG’s do not have the authority to issue law licenses – those come from the States.  While TJAG can “decertify” counsel, they cannot “disbar” them – the State of licensure is the only authority for that.  There’s a CAAF case that discusses referring ethical issues to the attorney’s State Bar; and as a number of DoJ attorneys found out to their dismay, the US Attorney General cannot supercede State Bar Rules.  See, e.g., In re Doe, 801 F.Supp. 478, 479-80 (D.NM 1992).

  15. k fischer says:

    Very fascinating article.  When I read the first half of the article and saw the name Lindsay Rodman, I thought that he would be skewered for being misogynistic. Then, I googled “him” and found out that “he” was a “her.”  So, then I thought that she would be skewered for not being too bright, i.e. a stereotypical Jarhead…….but, then I read she was a Harvard graduate.  Perhaps, those types who disagree with her will believe that she has been brainwashed by the military.
     
    After reading the article in its entirety, I must say that I liked the beginning that discussed the overzealousness of the prosecution of sexual offenses.  However, the article took a turn that seemed to me to advocate a system akin to colleges and universities who also have similar problems where a bunch of 18-24 year olds party and have indiscriminate drunken sex.  
     
    There is a big stink in colleges moving from a clear and convincing evidence standard to a preponderance standard in sexual assault hearings to determine whether or not a student will be kicked out of college.  Well, we have a similar proceeding for those Servicemembers who have 6 or more years in Service:  Administrative separation boards.  That would at least provide a small amount of due process for the accused, while ensuring that the accused is no longer in uniform and a threat to others.  I kind of got the feeling that she was advocating for that without coming out and saying it.
     
    I know that a separation is not as bad as a conviction and SOR, but you still lose your job, just like you get kicked out of college. (Good luck finding a college that you can apply to who will admit you after being kicked out for sexual assault.)  It is still a horrible thing that have on your record, and just because the burden of proof is lower doesn’t make kicking those who are falsely accused out of the miltiary any more palatable.

  16. Atticus says:

    Cap’n Crunch-
     
    Before you launch off on a half-hearted ethics complaint you might want to get as close as possible to making sure you “win.” Lest you have a complaint filed aginst you for making false and unmeritorious complaints against another attorney. Filing a frivilous complaint might be professional miscoduct itself, and it’s really cowardly when you get right down to it. And if you think the states will be more agressive than the military in investigating ethics allegations, you may want to do a little research first.  This is the same admonition I give young counsel before they go off filing prosecutorial miscondct motions.  If the judge finds it baseless, you end up looking like a petulant child attempting to manipulate and chill the prosecutor in the performance of his duties.  If that  happens, your reputation will be permanently tarnished. 

  17. ResIpsaLoquitur says:

    k fischer–
    Well, that, and you’d probably have a service characterization of “general” at a minimum; more than likely, it’d be a UO for sexual assault.
    It’s been awhile since I looked at the admin sep regulations–you are entitled to a hearing with a panel of officers if they’re going to discharge you with a UO, right?  I’d hope we’d give an accused that much protection if we were to start admin separating people, rather than just letting the convening authority rubber-stamp everything.

  18. another former TC says:

    I agree with most of this article and have a lot of respect for the author personally, but the section on the comparison with colleges just completely missed the mark.  So “rarely, if ever, are college students held criminally accountable for sexual assault”  and the armed forces should be emulating the way that colleges handle sexual assault?  Colleges in general do a pretty terrible job of handling sexual assault cases- the standard procedure at most places seems to involve the same academic board and governing regulations that the university would use to deal with a student writing in an exam book after time was called.  That same board usually is going to have little to no experience dealing with sexual assault or really with serious non-academic misconduct, and absolutely zero investigative power.  So of course the sexual assault cases these boards deal with are mostly going to be “he-said, she-said,” because that’s what pretty much every sexual assault case is (absent some kind of spontaneous admission) before someone with actual investigative resources at their disposal bothers to investigate it.  Then the board puts the responsibility both for presenting a “case” and defending against it entirely on the alleged victim and the alleged perpetrator.  A lot of the time the board is also going to ask the alleged victim to directly confront the alleged rapist (sometimes in close physical proximity), because their instinct for dealing with a conflict is to just get everybody together and talk it out.  On top of that, even in the event of the equivalent of a “guilty” finding, the worst that the board can possibly do is kick the respondent out, or maybe just suspend for a semester or two.  I’d say that even your typical adsep board looks like a shining model of justice (for both sides) relative to the typical college process.  Sending some cases to lower forms of resolution is pretty much what the services were already doing (before the powers that be decided that everything needed to be a court-martial), and doing a much better job of it than most colleges were.
    The comparison to civilian prosecutors also seems a little bit idealized.  Available resources and desire to achieve a decent conviction rate (i.e., by only taking cases to trial that seem to have pretty good chances of winning) are much higher bars to clear for a case to ever see a civilian trial than ethics rules.  I think it’s a good thing to take cases to trial if there is enough merit in the case to have a decent shot at a conviction, even if it’s a less than even shot and even if some civilian prosecutors might not bother with a hard case without something pretty close to an assured conviction.  At the same time, overloading trial shops with dubious cases with negligible chance of ending in a conviction does zero good for anyone involved, and Capt R’s article is dead right on that point.

  19. Capt N.S. Stewart says:

    Lieber,
    “I’ve never heard of a TC taking a case at trial where there wasn’t PC.  (but in your typical sex assault case you’d basically have to have a full, voluntary retraction not to have PC.)”
    – I’ll introduce you to U.S. v. Stewart, 71 MJ 38 (CAAF 2012).
    – no voluntary retraction and no PC at 32, just a pre-trial ruling that convinced the accused not to testify  
    http://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=3972